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https://www.courtlistener.com/api/rest/v3/opinions/8485463/ | GARDNER, Chief Justice.
Jason Savage, age 5, a resident of the public housing enclave at Tafuna, was attacked and severely bitten by a stray dog bearing the improbable name of Tweeter. Through his guardian ad litem he seeks damages from the Government of American Samoa for his injuries. Before discussing the facts of this case or the applicable law, we must paint, in broad strokes, a background of the canine situation in this territory and particularly in the Tafuna Governmental Housing tract.
THE DOGS OF AMERICAN'SAMOA
There are few places on this earth which suffer more than American Samoa from an oversupply of man's so-called friend, the dog. Untold thousands of dogs roam the territory. Some are strays, some have a vague claim to ownership by a human being, a tiny fraction are actually licensed and registered. Almost without exception they are mongrels — scrawny, emaciated, mangy, in-bred, flea-bitten, diseased. Sophisticated world *103travellers usually refer to the dogs of Mexico and China as the worst looking dogs in the world. Compared to the dogs of American Samoa, the dogs of Mexico and China could qualify as best of their class at Madison Square Garden.
The territory has no leash law. It has a singularly ineffective and widely ignored license law (sections 25.1607 & 27.0243 ASCA) and a peculiar stray dog control law (section 25.0301, et seq., American Samoa Administraive Code) of which more later. As a result, large numbers of dogs, usually in groups or packs, roam the territory at will, fighting, frolicking, fornicating, barking, snarling, and during a full moon, howling either in unison or singly. All of this, standing by itself, is a nuisance. However, a more ominous result of this bulging canine population is an awesome number of attacks by dogs on human beings, usually small children. For example, during the fiscal year 1982, 215 dog bites were recorded at the LBJ Tropical Medical Center. Such a number of bites is shocking considering that the territory only has a polulation of 32,000. That is almost one dog bite for every 150 people. Obviously this statistic is but a tip of the iceberg as only severe bites would ordinarily require medical attention^
In other words, the dog situation in American Samoa is a disgrace.1
THE STRAY DOG ERADICATION AND CONTROL COMMISSION
The Governmental answer to the over-abundance of dogs in the stray dog eradication and control commission. This commission consists of a steering committee which in turn consists of the Secretary of Samoan Affairs, the three District Governors, the Commission of Public Safety, the Director of Public Health and the Veterinarian, plus the County Chiefs of each county, the Pulegu'u of each village, two public health employees, and two police officers.2
Through no fault of the court the record in this case is a little hazy as to the activities of this commission. When a subpoena duces tecum was served on the custodian of records, Office of Samoan Affairs, for records of dog bites, her superior advised her to disobey the subpoena. It was only after the court dispatched the marshal with instructions to bring the custodian to court, in custody or otherwise, that she did appear. A similar subpoena to the custodian of records, Department of Public Safety, for their records of dog bites was equally unproductive. That individual reported he was "on leave" the day of the trial. One cannot but be suspicious of the curtain of silence cast by these two governmental agencies over the subject of dog bites. (Apparently, dog bites are a touchy subject with the Secretary of Samoan Affairs and the Department of Public Safety.) Nevertheless, Malua Hunkin, Acting Commissioner of the Department of Public Safety, did graciously and voluntarily come to court and testify although he knew nothing of the department’s records in this respect. It is from his testimony and that of the lady from the Office of Samoan Affairs that a rough, inadequate, and sketchy picture of the dog control situation in American Samoa can be patched together.
*104When a dog bite is reported, police officers interview the victim, prepare a report, and forward it to the Department of Samoan Affairs. That completes the responsibility of the police. The Department of Samoan Affairs apparently then forwards the report to the Pulenu’u of the village where the attack took place. From that time on the responsibility is that of the village.' Some villages are apparently quite active and a goodly number of stray dogs are disposed of each month. However, all one has to do is travel around the territory to observe that other villages are doing precious little about their stray dog problem. If the commissin does any more than set forth above, the court was unable to discover that ^act by reason of the veil of secrecy on the subject by the two departments.3
THE DOGS OF TAFUNA
Whatever the effectiveness of the commission may be as to individual villages it affords no protection to the inhabitants of the public housing enclave at Tafuna which is not a part of any village. Insofar as the inhabitants of Tafuna are concerned, dog bite reports simply become useless pieces of paper reposing in the respective offices of the Department of Public Safety and the Department of Samoan Affairs. Nothing is done.
As a direct result of this complete lack of animal control, Tafuna is simply saturated with stray dogs. Tafuna's dog count must be mind boggling although no effective canine census exists. They travel singly or in packs as large as eight to ten. It is with this background we examine the attack on Jason by Tweeter.
JASON AND TWEETER
Jason’s father is a contract employee of the American Samoa Government. As part of his contract the American Samoa Government provides him housing in the Tafuna public housing tract for which he pays rent.
Directly adjacent to the American Samoa Government housing tract and separated by an invisible line is the F.A.A. Housing tract. Geographically the two contiguous tracts are one.
Tweeter was a stray dog inhabiting the ■ A.S.G./F.A.A. Governmental housing enclaves. In November 1981 Tweeter attacked and severely mauled the small child of Lieutenant Mike Morris, U.S.C.G., who was living in the Tafuna F.A.A. tract. The police were called and made a written report to the Department of Samoan Affairs. That, apparently, was the extent of official reaction to this attack on a small child by this particular stray dog.
Then, approximately three months later, Tweeter atacked Jason Savage, bitting him severely in the head, ear, and hand. Again a report was made but nothing was done by officialdom. Instead, frustratd with official inactivity, a vigilante spirit prevailed and some unidentified person prevailed upon a couple of Tongans to beat Tweeter to death with clubs. It wasn't pretty and the S.P.C.A. would undoubtedly have disapproved but it was effective. So much for Tweeter.
*105THE LIABILITY OF THE GOVERNMENT OF AMERICAN SAMOA
There- are two aceptable legal theories which ■ the Government - ax American Samoa iw liable in tort for Jason's injuries. It is liable ■ both in its $overHmental and its proprietary capacity.
GOVERNMENTAL CAPACITY
Ordinarily a governmental entity is not liable for its torts if they are committed in its governmental capacity. This is because of the- Doctrine of Sovereign Immunity, a doctrine Prosser calls "feudal and monarchist.” Prosser is puzzled as to gust how "the doctrine got itself translated into the law of the new and belligerently democratic Republic in America." (Prosser, the Law Torts, 4th-Edition, p. 971.) Nevertheless, in 1821, Chief Justice John Marshal adopted the Doctrine of Sovereign Immunity as the law of the land. (Cohens v. Virginia, 19 U.S. 264.)
Be that as it may, the doctrine exists in one form or another in every American Jurisdiction.
■ MICA section 43.1203(a) purports to abandon the doctrine in this Territoryo Then subdivision (b) of the same section reinstates if, in all its glory, particularly subdivision (b)(2) which provides for governmental immunity in maters depending on the exercise of- a discretionary function. That covers a great deal of territory. Thus, generally speaking, at first 'blush it would appear that whether the Government has an effective stray dog control program depends on the exercise of a discretionary function and the government is protected by the Doctrine of Sovereign Immunity. Not so in this particplar case.
Since there is- no local controlling authority we turn to other jurisdictions for guidance. While these authorities are not controlling, they may be persuasive. Fortunately, in out research we have stumbled on a most persuasive authority, the elusive “spotted calf'9 case. Under'it and under the facts of this case, the Government.loses its cloak of immunity.
In Hansen v. City of St.Paul 214, NW(2) 346 (Supreme Court - of Minnesota) the facts were striklingly similar. In Hanson there were two vicious dogs which had accumulated seven reports prior to their attack upon a woman but the principle is the same. The court held that the City had a duty- to maintain its streets and sidewalks free from the inherently dangerous condition created by known vicious 'dogs. Additionally, Minnesota had a similar discretionary function exemption from liability. The court made short shrift of this contention holding that the failure of the city to act in the face of a known dangerous condition occurred at the operational level rather than at the executive or administrative level (the deployment of personnel). "We hold that the failure of the St. Paul City officials to control vicious dogs under circumstances wherein the city had knowledge that identified and impoundable vicious dogs prowled uncontrolled on public sidewalks does not constitute a failure to exercise a discretionary function td,thin the meaning of Minnesota St. 466.03, Subd.6, and therefore the City of St. Paul is not immune from liability." (p, 350-351.)
Here, the Government of American Samoa had knowledge that a vicious dog was prowling it* streets. This created an inherently dangerous condition. “The failure of the Government to act constitutes a failure at the operational rather than the executive or administrative level. Therefore, the Government of American Samoa is liable in this case while acting in its governmental capacity.
PROPRIETARY CAPACITY
When the Government acto in a proprietary capacity it .loses its *106sovereign immunity, (Owen v. City of Independence, 445 U.S. 622, 63 L.Ed(2) 673.) Attempting to define just what is governmental and what is proprietary has resulted in an plethora of cases which, again in the language of Prosser, "has left this law in a tangle of disagreement and confusion." (Prosser, Supra, p. 977.) One court, in Weeks v. City of Newark, 62 NJ super. 166, 162 A(2) 314, affirmed, 34 NJ 250, 168 A(2) 11, complained that the rules which the courts have sought to establish in solving this problem are as "logical as those governing French irregular verbs."
It is generally accepted that an act or ommission is governmental if it is in the public good and beneficial to the citizenary at large. Contrarily, the act or ommission is said tp be proprietary if it is of benefit to a private or local interest group (63 C.J.S. 747).
Thus, the operation of a municipal golf course was held to be proprietary in Plaza v. City of San Mateo, 266 P(2) 523 (Cal. 1954), as was the collection of trash for a fee in Baumgardner v. Boston, 23 NE(2) 121 (Mass. 1939) and a housing authority created by state . statute for slum clearance and to provide housing in Muses v. Housing Authority, 189 P(2) 305 (Cal. 1948.)
Nere the Government of American Samoa owns the real property and rents it to its contract employes. This is part of the contract of employment. Tafuna is similar to company town. The employees live in the community for the convenience of the employer. The employees cannot move away as their housing has been assigned to them and no other housing is available. They cannot leave the territory without breaching their contracts of employment. There is not only a landlord-tenant relationship, the employees are virtually captives of the government.
Thus, it is obvious that a landlord-tenant relationship exists between the occupants of the Tafuna Governmental Housing tract and the Government of American Samoa. In this respect the Government of American Samoa is clearly acting in a prpprietary capacity.
The landlord owes a duty of care toward his tenant (See below). Was that duty breached? Yes,
The landlord/government knew that there, was a serious territory wide problem with stray dogs. It is common knowledge shared by the government/landlord that the entire territory is over-populated with dogs. As a result of this the landlord/government knew that the inhabitants of the territory were sufering from a veritable plague of dog bites —215 reported to the hospital in one year. Insofar as the Tafuna Governmental Housing tpacf is concerned, the landlord/go.vernment knew not only that tljere was a surplus of stray dogs but that by reason of it stray dog control program absolutely nothing was being done about this oversupply of stray dogs in the Tafuna Housing tract.
Then, addressing ourselves to this specific case, the landlord/government knew that this one dog had attacked and seriusly injured a small child. fhat dog obviously had violent and vicious propensities and becamp ^ known danger. The landlord/government knew that nothing was done about that dog. Thus, it was reasonably forseeable that particular dog would bite another child. It did.
The duty of a landlord is clear and has been distilled into a few words by California Jury instructions - Civil - Sixth Edition, as follows:
He has the duty to exercise ordinary care in the management of the premises in order to avoid exposing persons thereon to an unreasonable risk of harm. A failure to fulfill this <juty is negligence. *107Ordinary care is that care which persons of ordinary prudence world use in order to avoid injury to themselves on others. This duty of care is owed only to such persons as the owner, as a reasonably prudent person under the same or similar circumstances, should have forseen would be exposed to such a risk of harm. Thus the landlord is liable for injuries resulting from dangerous conditions of which he has knowledge.
Applying these rules to the facts of this case it is manifest that the Government of American Samoa is liable in its proprietary capacity.
DAMAGES
Having found liability on two grounds, the remaining issue is one of the damages. The child suffered serious injuries with resulting scarring and psychic trauma. The court fixes his damages in the sum of $10,000.00.
CONCLUSION
From the record in this case, it is clear that the inhabitants of the A.S.G./F.A.A. Governmental Housing tracts in Tafuna are entirely without protection against the packs of stray dogs presently infesting those areas.
Additionally, it is a sad commentary that under the authoritarian administration of the Navy the■dog situation in this territory was that of any other American community — only licensed dogs allowed — while under self rule the stray dog plight has become a territorial embarrassment. The' responsibility lies squarely on the shoulders of the Government of American Samoa.
. T'was not always thus. During the Naval Administration a dog license law was strictly enforced and any dog without a collar was quickly disposed of by the Fita Fita guard.
. With an organization of this size it seems that one could simply arm the members of the commission with nets, send them out to round up stray dogs and clean up this mess in a couple of days.
. Apparently, there was a suggestion some time ago that dog control be vested in the police department as is the usual practice in most other similar communities. However, the administration did not see fit to implement that suggestion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485464/ | GARDNER, Chief Justice.
Salvage Pacific, Ltd. (hereafter "Salvage"), a Fijian Corporation, came to American Samoa pursuant to an agreement with Korea Wonyang Fisheries Co. (hereafter "Wonyang") to re-float one of the latter's sunken vessels in exchange for $90,000.00. On 20 May .1983, the tax division of the Government of American Samoa unilaterally completed a tax form on behalf of Salvage which set the Company's tax liability for that income at $17,110.00. Three *108days later, a statement of tax due and a notice of tax lien was transmitted to Salvage by the tax division. Also on 23 May 1983, the Attorney General informed Wonyang of its obligation to withold a stated portion of its payment to Salvage to cover tax liability resulting from the business venture. As a result Wonyang has witheld $17,110.00 of the $90,000.00 contract price. Salvage brings this action to set aside the tax lien and release the money which has been witheld.
By virtue of ASCA section 11.0403, the Territory has adopted the Internal Revenue Code of 1954 as the controlling tax law. 1954 IRC Section 882, "Tax on income of foreign corporations connected with United States business," controls the tax liability in this case. Section 882(a)(1) provides for taxation in accordance with Section 11 or 1201. Section 6072 provides that the return must be filed, in the case of foreign corporations, within 6 months and 15 days after the taxable year in which the income accrued. Obviously, Salvage need not file a return with respect to income earned from its present agreement with Wonyang for quite some time. The tax assessment and lien process begun by the tax divison is thus premature. That does not mean, however, that witholding is improper.
1954 IRC Section 1442(a) authorizes witholding at the source of 30% of the income earned in' the United States by a foreign corporation-. The items of income subject to the witholding and the manner in which it is witheld is controlled by Section 1441. Section 1441 imposes a duty upon the payor to retain, in most cases, 30% of the income payable. Section 1461 provides that the witholding agent (employer) is actually liable for the taxes owed by the taxpayer (employee). The failure to retain a portion of the taxpayer's income, moreover, does not excuse the witholding agent from liability for the taxes (See Reg. Section 1.1461-2(e)).
The amount of income which has been retained by the witholding agent must be periodically reported to the taxing authority on form 1042 or one of its variations (Reg. 1.1461-2). IRC Section 6302(c), and specifically the regulations thereunder, require that the money retained be deposited in an appropriately authorized bank account. It is thus incumbent upon employers of foreign services not only to withold income, but to periodically report ■and deposit the retained sum as well. The sum which has been witheld in this case is within the 30% witholding authorized by the tax code. The burden of demonstrating the applicability of sections that eliminate the witholding, or reduce the amount withheld is upon the taxpayer. Accordingly, notwithstanding that the lien assertedly imposed upon the witheld money in this case is premature (See 1954 IRC Section 6072), the money must nevertheless be retained pursuant to 1954 IRC Section 1442(a) because Salvage has provided no basis for a contrary conclusion.
More than mere witholding is required by law, however. The Tax Division of the American Samoa Government must take such measures as are necessary to enable Wonyang, and others similarly situated, to meet their obligation to report and deposit the income witheld. Further, the witholding, reporting, and deposit requirements should be publicized. In passing, we note that the tax division should also refrain from untimely tax collection proceedings.
* •» * | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485465/ | MURPHY, Associate Justice.
This matter came on regularly for hearing pursuant to cross motions for summary judgment. Plaintiff taxpayer claims, over the goverment's objection, that he is entitled to income average. The case turns upon whether or not one must be a resident of American Samoa during the entire base period.
Party Defendant Fa’alata Liaiga, the manager of the tax division, appeared at the hearing with counsel on behalf of the government. He explained that it was the intent of the goverment to allow income averaging on American Samoan tax returns only where the taxpayer has resided and earned income in American Samoa during the base period. The taxing scheme enacted by the Fono incorporates the 1954 U.S. tax code (ASCA section 11.0403) and provides a substitution of "American Samoa" for "United States" (ASCA section 11.0401).
The problem in this case derives from the substitution into 11954 IRC section 1303 and the regulations thereunder. Section 1303 (with the substitution) provides as follows:
Sec. 1303 Eligible Individuals.
(a) General Rule - Except as otherwise provided in this section, for purposes of this part the term "eligible individual" means any individual who is a citizen or resident of American Samoa throughout the computation year.
(b) Non-resident aliens - for purposes of this part, an individual shall not be an eligible individual for the computation year if, at any time during such year or the base period such individual was a non-resident alien.
Under the applicable regulations (with the substitution), non-resident alien is defined as a person who is neither a resident nor a "citizen" of American Samoa. An amorphous section of ASCA defines "citizen of American Samoa" as a citizen of American Samoa who is not a citizen of the United States (ASCA section 11.0527).
It is easy to see that this construction of the code is not valid. First, the term "citizen of American Samoa" cannot find sanction in the Court because its meaning is unclear and because American Samoa is not a sovereign nation. Second, and more importantly, the code as constituted treats similarly situated persons unequally without a rational basis *110therefore. For example, assume that twins are born and reside most' of their lives in American Samoa. Both go to the States where they engage in a partnership that loses money in each of five succeeding years. One of the twins becomes a U.S. citizen during that time. They return to American Samoa, engage in business, and make immediate and substantial profits. The twin who has not become a U.S. citizen and is therefore still a "citizen of American Samoa" may income average on his Samoan tax return while the sibling may not. It is common knowledge that American Samoans may, and many do, apply for and receive United States citizenship, notwithstanding that the present tax structure appers to "abridge the privileges and immunities of citizens of the United States." U.S. Const. Amend. XIV. The situation is similar, even without the force and effect of ASCA section 11.0527, as between two U.S. citizens, one of whom is an American Samoan and one whom is not.
The similarly situated hypothetical taxpayers may not be treated differently for being American Samoans, United States citizens, or both. This was settled in Quaker City Cab Co. v. Commonwealth of Pennsylvania, 277 U.S. 389 (1928). In Quaker City Cab, the Court held that the equal protection clause of the 14th Amendment prohibited differing’tax treatment soley on the basis of status (there, between corporations and individuals).
Since these incorporated code sections become invalid upon the substitution of "American Samoa" for "United States", it must next be determined whether the'incorporation of the income averaging provisions are thereby invalidated, or alternatively, only the substitution. The incorporation section of the American Samoa code specifically incorporattes subtitle A, wherein lies subchapter Q, relating to income averaging (ASCA section 11.0403(a)). The Fono's intent is therefore clear. "American Samoa" is substituted for "United States" only where it is not clearly otherwise required. See ASCA section 11.0401. The substitution section has a built in limitation: substitution is not intended where to do so would render the incorporated statute constitutionally infirm. As such, the substitution yields and the incorporated statute remains as it appears.
Accordingly, it is manifest that any person who is a citizen or_ resident of the United States (including American Samoa) during the taxable year and the base period may income average on his Samoan tax return. This must be the law until the Fono codifies the government's intent by enacting a statute that restricts income averaging to persons who have resided and earned income in American Samoa for the entire base period, regardless of whether they are American Samoans, United States citizens, or both. In other words, if the Government of American Samoa wants to allow income averaging soley on the basis of income earned in the Territory, it should say so. The tax will then be imposed upon income rather than persons, without regard to their national status.
The court is aware that if the Fono chooses to enact such a statute, some persons will have a larger tax liability if they choose to move to American Samoa. However, so long as tax liability is equally imposed upon income, instead of arbitrarily or invidiously assigned to certain individuals, inadvertent and reasonably necessary discriminatory impact is constitutionally permissable. The government has considerable leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation:
...of course, the states, in the exercise of their taxing power, are subject to the requirements of the equal protection clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility *111and variety that are appropriate to reasonable schemes of taxation." Lenhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359, 35 L.Ed 2d 351, 355 (1973)
Plaintiff's motion for summary judgment is granted as set forth ' above. The tax division is ordered to promptly process Plaintiff's tax refund- in accordance with the income averaging provisions of the tax code. Interest should be added pursuant to the applicable section of the code. Costs may not be assessed against the government in the absence of a statute (Rule 54 of Civil Procedure). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485466/ | MURPHY, Associate Justice.
The above entitled matter came on Wednesday, August 3, 1983 before the undersigned court. The parties stipulated that the trial be bifurcated and the issue of liability be determined first. The matter was fully submitted and taken under advisement on August 4, 1983. The court makes the following findings and conclusions:
FACTS .
Defendant National Pacific Insurance Company (hereinafter N.P.I.) is an insurance corporation licensed to do business in the Territory of American Samoa. James McQuire has been its employee since 1977 and at all times herein relevant was its local manager. Plaintiffs own and operate various business enterprises in the Territory, including but not limited to a night club, called the Tepatasi. Adjacent to the night club was a 3 story building (hereinafter, the building) which on or about August 1, 1981 was completely destroyed by fire. That loss is the subject matter of this lawsuit.
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The negligence theory proffered by Plaintiff has not been universally accepted by the courts. There appears to be an almost even division of authority. See Annot., 32 ALR 2d 487 (1953 and Supp. 1982). The emerging and better view, however, allows recovery based on negligence in appropriate cases. Under the common law, tort recovery is predicated upon damages proximately caused by the breach of a legal duty. There is no rational reason why an insurer should be insulated from liability for an injury *112resulting from its failure to exercise due care. We hold that ah insurer jnay be liable in American Samoa for a negligent delay in acting upon an application for insurance.
"The 'negligent delay' theory, generally stated, is that an insurance company is under a duty to act upon an application for insurance within a reasonable period of time, and a violation of this duty, with resultant damages, subjects the company to liability for negligence." Continental Life & Acc. Co. v. Songer, 603 P.2d 921, 929 (Ariz. App. 1979).
The threshold issue thus confronting this Court is whether Defendant N.P.I. was negligent. We note, in passing, that many cases allowing recovery rely upon retention of a premium and a failure to indicate that no coverage exists. No premium was paid in this case and Plaintiff was aware that no coverage existed. However, these factors are not disposative. An insurer may be otherwise negligent. E.g. Telford v. Binghan County F.M. Ins. Co., 16 P.2d 983 (Idaho 19 ).
Plaintiff's trial memorandum states that Coffey v. Polimeni, 188 F.2d 539 (9th) Cir. 1951), is "remarkably similar" to the case at bar. The cornerstone of negligence in Coffey was that, for some time, the insurer (actually Coffey was an independent agent, not an insurer) had in its possession all the information it required to accept or reject the insurance application. As regards the case presently in issue, however, Defendant N.P.I. had at all times maintained that the desired insurance could not be negotiated until an appraisal was submitted. As such Alt v. American Income Life Insurance Co., 337 F.2d 472 (1964), is more persuasive.
In Alt, the decedent's application for life insurance was held in abeyance until such time as a medical evaluation was furnished the insurer. Because a medical examination was never obtained, the time for acting upon the application had not begun to toll. The application was not complete, and the "negligent delay" doctrine never became justiciable.
The facts here are similar to those in Alt. The evidence adduced at trial establishes that Plaintiff was aware that there was no coverage on the building and that an appraisal was required before a policy could be negotiated. Plaintiffs' assertion that the appraiser was an agent of Defendant N.P.I. was not supported by the evidence. It is clear that he was an independent contractor. Neither does the evidence establish that Defendant would not accept the appraisal of any other person. It establishes instead that N.P.I. would accept only the evaluation of a competent appraiser, of which there is only one in all of Samoa. That Plaintiff diligently attempted to obtain the information does not create an insurance contract. Life itself entails considerable risks and being insured against them is a matter of agreement rather than right. A policy was not issued. A premium was not paid. Plaintiff knew the building was not insured. Defendant did nothing to mislead Plaintiff and Plaintiff was not mislead. The fire was unfortunate, even tragic. But what could Defendant have done? Must an insurance company issue a policy of insurance whenever and in whatever amount a client demands?
We conclude that Defendant was not negligent in failing to insure Plaintiff's property.
* * * | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485467/ | GARDNER, Chief Justice.
By minute entry dated October 28, 1982 the parties in the above entitled matter were granted an absolute divorce. Various properties were divided among Petitioner and Respondent at that time, and an order entered in regard to child support and spousal maintenance. The court reserved ruling, however, on the division of Respondent's military pension until such time Congress shall have reacted to the decision of the United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, (1981).
In deference to Congress and the superiority of federal law, the McCarty court held that military retirement benefits were not divisable in state courts upon the dissolution of a marriage. Congress promptly manifested a contrary intent and eventually enacted the Uniformed Services Former Spouses Protection Act. The key provision in that law is 10 USC 1408(c)(1) (Supp. 1983), which states:
Subject to the limitations in this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981 either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.
The proposition that both parties to a marriage contribute equally to the union can hardly be challenged. It has therefore been the policy of this court to divide the property acquired during a marriage equally among the spouses upon dissolution. Congress has specifically determined that the High Court of American Samoa is competent to divide a military pension under the circumstances presented by this case. 10 USC 1408(a)(1). The rule generally prevailing in community property states provides that the portion of a pension earned during the marriage is divisible when the marriage fails. A like rule now pertains in American Samoa.
It appearing that Petitioner and Respondent were married during Respondent's entire term of military service, Petitioner is entitled to one half of the pension earned if and when it becomes payable. Her entitlement shall not be affected by her remarriage, but her interest cannot be disposed of by. will or any other type of transfer. 10 USC 1408(c)(2). Having determined Petitioner's entitlement, we turn now to the means by which it *114may be realized.
In overruling McCarty, Congress provided procedures for enforcing the substantive rights it created. Because the duration of both the marriage and the military service in this case was more than 10 years, these direct enforement procedures are available to Petitioner. 10 USC 1408(d). Counsel is directed to 10 USC 1408(b)(1)(A). That section provides that service is effected by forwarding a copy of this order to the secretary or designated agent of the appropriate service branch. The addresses of the respective secretaries are listed in the appendix to this order. Compliance with the congressionally mandated procedures and the regulations promulgated thereunder will result in direct payment to Petitioner of that portion of the pension to which she is entitled if and when the same becomes payable to Respondent.
WHEREFORE, IT IS ORDERED that Petitioner shall receive, during her lifetime, 50% of any military pension due and payable to Respondent.
IT IS FURTHER ORDERED that Petitioner's share of the pension be paid directly by the paymaster. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485469/ | In 1968 Tavai Esela was the senior matai of the Tavai Family in the village of Pago Pago. The family owned certain communal land known as "Molisamoa." In 1968 Tavai Esela gave ’Defendants Vitale and Doreen Silao permission to use a portion of that land for the purpose of building a dwelling upon it. A separation agreement was executed, the Silaos constructed a dwelling house on the property and, we assume, lived in that house. Then in 1976 the Silaos moved to the United States and rented the house to third parties. This was without the permission of the matai..
For a considerable period of time the Silaos received rent for the house from these third parties. The present tenant pays no rent to ,the Tavai Family. The Silaos have failed to render services to Tavai Esela or to Plaintiff Tavai V. Kaliopa, successor to Tavai Esela. Tavai V. Kaliopa testified that the Silaos were not members of the Tavai Family although we note from defendants' answers to interrogatories that Doreen Silao claims her mother's brother married Tavai Esela's sister.
DECISION
The case has been briefed and argued at length. Plaintiffs contend that, under, well-established principles of law, since defendants have not rendered service to the matai and, since a license was created, the matai or licensor may revoke the license and retake the property without any compensation for improvements. Defendants contend that, under equálly well-established principles of law, because of the improvements to the land and the separation agreement, the license is now irrevocable and that they now own.the property free and clear.
It should come as a surprise to no one that we agree with neither contention.
As Justice Murphy has often commented, the so-called law in’ the field of communal land ownership in American Samoa consists of a series of ad hoc decisions in which various courts have come to varying results in differing factual situations. This has resulted in what Justice Murphy calls the Law of Convenience.1 This is not at all surprising as, during the last 83 years *2the members of this court have tried to blend a thousand-year-old Polynesian culture with a contemporary legal system which has its roots in the English common law.
The Treaty of Cession guaranteed the Samoan way of life and the Constitution of American Samoa advises that it is our responsibility to protect persons of Samoan ancestry against destruction of the Samoan way of life. A.S.C.A. section 1.0201 states that we should apply the common law of England "as is suitable to conditions in American Samoa." Section 1.0202 states that the customs- of the Samoan people are to be preserved. A picture emerges that is bright and clear — the protection of the Samoan way of life is the court's primary responsibility.
The twin cornerstones of the Samoan way of life are communal land tenure and the matai system. Each is essential to the other. Without the matai system to administer it, the communal land system becomes anarchy. Without the communal land system, there is no reason for a matai.
In American Samoa, the family owns the land. A matai, selected by, and subject to removal by, the family,-allots the land to family members who pay a type of compensation comparable to rent in the way of service to the matai — actually, to the family. In return the matai undertakes the protection and well-being of the family members. Such is the basic Samoan custom and tradition.2
We western judges, schooled in the common law, valiantly attempt to support the matai system and communal land tenure and, in so doing, all too often confuse the issues by attempting to apply common law labels with which we are comfortable to factual situations which are controlled by Samoan custom and tradition. Accordingly, the average opinion sets forth a factual situation, states the controlling Samoan custom, then attempts to apply a common law principled-together with supporting citations — in an attempt to justify the decision.3 We should stop trying to rationalize Samoan customs and traditions by recourse to common law principles and precedents. We should accept Samoan customs and traditions as controlling authority. These customs and traditions need no common law support. Actually common law principles, which are based on private ownership of land, are often the antithesis of Samoan customs and traditions which are based on communal land tenure.
For example, previous courts have labelled transactions such as the one involved in this case a license. However, at common law license is granted *3by a private person, is revocable at any time at the will of the licensor and does not survive beyond the death of the licensor. . Here, the matai has no personal interest in the land.. The land is owned by the family. Some perplexing questions arise. Why isn't it privilege? Can a matai give a license? Can the family? If so, how and in what form? If either can, what is the duration.of the license? If expenditures are made in reliance on the license does it ripen into an easement? An easement is an interest in land. What kind of an interest in land? Individual? Why not a profit? Obviously, applying common law principles to a situation such as this opens a real can of worms.
So why not call.,the transaction by its Samoan name, "tofi," the act. by which a matai assigns a family member a parcel of communal land? We should then treat it as a Samoan institution which has no counterpart in the common law. - So, without recourse to common law principles we then decide the case on Samoan customs and traditions. We proceed to do so. , ,-
We will assume for the purpose of this decision that the defendants are family members although the record is to the contrary. Even so they are not entitled to retain the use of fhat land. .The following Samoan customs and traditions control, without resort to the common law. ,
For some seven years they have resided in the United States. An assignee abandons the land when he moves from it. Maea v. Tali (1981) LT 95-79. Additionally, defendants have failed to render services to the matai as is their duty. Leapaga v. Westbrook (1967) 4 A.S.R. 748. Under either situation the matai has the power to evict the user, of communal property. Itumalo v. FaIealili (1980) LT 33-79. Therefore, plaintiff has the authority to evict these defendants from the land in question and the land will be restored to the family.
We find the existence of the separation agreement meaningless in the context of this case. That separation agreement merely separated the house from thie land so that the house could become meaningful collateral for lending institutions. By this device they avoided the law of fixtures (a common law concept), the home did not become affixed to communal land and thus worthless as collateral. In no way did the separation agreement change the status of the parties vis-a-vis the use of the communal land.
Thus, the family owns and has the use of the.land..
The house is left dangling. It is clearly the separate personal-property of the defendants. Since Samoan customs and traditions did not contemplate a separation agreement, much less, palagi-type houses, we find- no controlling authority .in those customs and traditions. . .Instead we r.ely.on A.S.C.A. section 3.0242, which admonishes the land and title division of-,-the high court to act in such manner as it considers most consistent with "natural justice and convenience" — a wonderfully imprecise standard’ which affords the utmost flexibility in arriving at equitable results, consistent with the Samoan way of life.4
Thus, as to the house, the decision is as--follows:
1. Defendants may remove the house and, if they chose to follow- this avenue, they must do so within thirty days of the date of this opinion.
2. If the defendants do not chose to remove the house, the parties may agree on a mutually acceptable price by which.the family will buy the house. This decision must be made within sixty days of”the date of this opinion..
3. If neither (1) nor (2) transpires the court will appoint a .refere.e to determine the fair,market value of the-house and sell it to the family. •In this respect the referee will be instructed to determine the fair market *4value of the house and to deduct from that current fair market value (or give the family credit against that fair market value) the rental value of the land from the date of construction of the house until the date of appraisal. Defendants have had the use of this property during this period and must pay a fair rental to the family for the use of the land. Thus, if the house has a fair market value of $30,000 and the land has a rental value of $100 per month for the 15 years of its existence, $18,000 is to be deducted from the fair market value for rent, leaving a price of $12,000 which must be paid to the defendants by the family. Of course, defendants are entitled to credit for any rent actually paid. Any lien the bank has against the house, together with the referee's fees, must be paid prior to any distribution to defendants.
Talalelei Tulafono will be appointed referee to carry out the judgment of the court, withgut bond, and the court will determine the reasonable value of his service.5
By the Law of Convenience, each case stands on its own feet as the court *2simply arrives at an equitable disposition of the case. Actaully, the Law of Convenience isn't all bad. Unhappily, fa'a Samoa and stare decisis are often irreconcilable. Establishing a binding precedent based on the shifting sands of custom and tradition handed down through the centuries by word of mouth is a chancy undertaking. Thus, in all candor, prior decisions of the high court are of precious little value as precedent in land and title cases — a line which the ever-eloquent Justice Murphy will undoubtedly label as Gardner's death knell to the doctrine of stare decisis American Samoa.
One might ask, "Just where does the concept of individually-owned land fit into the picture." It doesn't. (See Justice Murphy's discussion of ^individually-owned land in Leuma v. Willis (1980) 1 A.S.R.2d 48.)
Somehow, judges and lawyers are not comfortable unless they can affix a citation of authority to every concept expressed, no matter how trite or banal that concept may be. This practice becomes a kind of security blanket and inhibits independent thought. To paraphrase Emerson, a slavish reliance on precedent is the hobgoblin of little minds.
If authority is-needed for the Law of Convenience, this is it.
Considering the amount of time the referee will necessarily expend in carrying out this judgment and the cost of this time, it behooves the parties to settle this matter under option (2). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485470/ | This case was previously decided in 1980 and was published at 1 A.S.R.2d 5. Subsequently a rehearing was granted but never took place. The case sat dormant until 1984 when the rehearing finally took place.
Appellee Ta'ei Ma'ae, a non-titled member of the Ma'ae family, brought an action on behalf of that family to register the land So'a as the communal land of that family. To do so he had a survey done of the property. Ma'ae Malelega, the senior matai of the Ma'ae, did not order the survey or bring the lawsuit. By reasonable if somewhat strained inference it can be said that substantial evidence would support an implied finding that he delegated to appellee, who was his son, the authority to make the survey and bring the *5lawsuit.- The actual testimony is that he "agreed" to the survey.
Substantial evidence supports the decision of the trial court. Nevertheless, prejudicial error was committed whan the trial court ruled that the action had been brought in compliance with A.S.C.A. section 27.1202, now A.S.C.A. section 37.0102(a).
That section provided that "only the senior matai of a Samoan family has the authority to request a survey of communal property of that family." Appellee contends the senior matai can delegate that authority. We disagree. We hold that the senior matai may not make such a delegation.
It takes no citation of authority .to point out that by the Treaty of Cession, the American Samoan Constitution and the statutes of American Samoa we are admonished to protect the Samoan way of life. The twin cornerstones of that way of life are the communal land system and the matai system.1
The matai system is, as we said in Fairholt v. Aulava (1983) 1 A.S.R.2d 73, 78, "alive and well." It has survived-the advent of Christianity, the imposition on it of a governmental system based on democratic principles and exposure to a western social system based on the individual rather than the family. Actually, the most clear and present dangers to the system and ones we see here in court with depressing frequency are greedy matais and absentee matais. The former enrich themselves by the individual acquisition of property at the expense of the family. The latter acquire titles, then move away, leaving their responsibilities to others. Of course, as the testimony in Fairholt revealed, the vast majority of matais are diligent, unselfish and dedicated to the protection of the family. Nevertheless, a few bad apples do embarrass the system.
The duties and responsibilities of a matai defy common law labels.2 They are more than chiefs who are merely leaders. They are more than trustees who merely protect property. A matai has an awesome responsibility to his family. He must protect it and its lands. He acts for the family in its relations with others. He gives individual family members advice, direction and help. He administers the family affairs, designates which members of the family will work particular portions of the family land, and determines where families will live. His relationship to his family is a relationship not known to the common law.
It was with this relationship in mind that the Fono provided that only the senior matai has the authority to request a survey of communal land of a family. The statute does not say that the senior matai or his designee may do so. It says specifically that only the senior matai may so act. This is consistent with the Samoan custom and tradition that only the matai may act for the family. -To permit others to do so would be inconsistent with the Samoan way of life. If, contrary to the families' wishes, a senior matai refuses to order a survey he may be removed.
There are already- too many absentee matais who, having accepted the title and its responsibilities, choose the cool climate of Carson, *6California, over the humidity of Samoa. Allowing these absentee matais to act through intermediaries would be fatal to the Samoan way of life.
The Fono said, "only the Senior Matai." We presume the Fono meant exactly what it said.
An example of a statute in which the Fono has afforded an alternative to the sole authority of the senior matai in land disputes is A.S.C.A. section 43.1309(b). That section provides that only the senior matai (sa'o) is authorized to bring an injunction action involving communal land but when the title is vacant or the sa'o is incapacitated at least two blood male matai members of the family over 18 or, lacking matais, two blood members of the family over 18 may bring the application. The Fono has conspicuously not provided an alternative to the authority of the senior matai to request a survey of communal land.
Judgment of 'the trial court reversed on the ground that A.S.C.A. section'27.1202(d), now 37.0102(a), was not complied with.
Just how well the courts have protected the communal land system is a matter of debate. The concept of individually-owned land, a concept inconsistent with the Samoan way of: life, crept into the law via the 2judiciary. See Leuma v. Willis (1980) 1 A.S.R.2d 48.
Efforts to describe Samoan customs in English have had some ludicrous results. For example, in an article entitled "Judicial Intervention in Matai Title Succession Suits in American Samoa,” which appeared in .the September 1983 copy of Oceania, it is said that an aiga has been described as a "non-exogamous cognatic descent group identified by the title of its eponymous founder." | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482217/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00368-CV
IN RE L.A.S., A CHILD
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2019EM500341
Honorable Laura Salinas, Judge Presiding
ORDER
Appellant’s brief was originally due on October 13, 2022. However, appellant has filed
an unopposed motion requesting an extension of time to file the appellant’s brief. The motion is
GRANTED. The appellant’s brief is due on or before November 28, 2022.
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482218/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-17-00310-CV
YATES ENERGY CORPORATION, EOG Resources, Inc., Jalapeno Corporation, ACG3
Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., and Curry Glassell,
Appellants
v.
BROADWAY NATIONAL BANK, Trustee of the Mary Frances Evers Trust,
Appellees
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2015PC2618
Honorable Tom Rickhoff, Judge Presiding
ORDER
Sitting: Rebeca C. Martinez, Chief Justice (not participating)
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice (not participating)
Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Appellees’ Motion for Rehearing and Conditional Motion for Reconsideration En Banc is
DENIED. See TEX. R. APP. P. 49.3, 49.5.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482219/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-17-00310-CV
YATES ENERGY CORPORATION, EOG Resources, Inc., Jalapeno Corporation, ACG3
Mineral Interests, Ltd., Glassell Non-Operated Interests, Ltd., and Curry Glassell,
Appellants
v.
BROADWAY NATIONAL BANK, Trustee of the Mary Frances Evers Trust,
Appellees
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2015PC2618
Honorable Tom Rickhoff, Judge Presiding
ORDER
Sitting: Rebeca C. Martinez, Chief Justice (not participating)
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice (not participating)
Irene Rios, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Appellants’ Joint Motion for Panel Rehearing and Motion for Reconsideration En Banc is
DENIED. See TEX. R. APP. P. 49.3, 49.5.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482216/ | Fourth Court of Appeals
San Antonio, Texas
November 4, 2022
No. 04-22-00716-CR
EX PARTE George TROTTI,
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR7385-W2
Honorable Ron Rangel, Judge Presiding
ORDER
On October 21, 2022, Appellant filed a notice of appeal regarding the denial of a post-
conviction petition for habeas relief in the trial court, which was then filed in the Fourth Court of
Appeals on October 26, 2022. Contra TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3.
Postconviction writs of habeas corpus must be filed in the court of conviction and made
returnable to the Court of Criminal Appeals. See id. The courts of appeals have no jurisdiction
over felony postconviction writs of habeas corpus. See Padieu v. Court of Appeals of Tex., Fifth
Dist., 392 S.W.3d 115, 117–18 (Tex. Crim. App. 2013) (orig. proceeding) (per curiam).
We order Appellant to show cause in writing within twenty days of the date of this
order why this appeal should not be dismissed for want of jurisdiction.
All other deadlines in this appeal are suspended pending further order of this court.
If Appellant fails to respond, this appeal will be dismissed without further notice.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482316/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
DEVIN ANDRICH, Plaintiff/Appellant,
v.
BANNER UNIVERSITY MEDICAL CENTER, et al., Defendants/Appellees.
No. 1 CA-CV 22-0013
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. CV 2020-002063
The Honorable Joseph P. Mikitish, Judge
AFFIRMED
APPEARANCES
Devin Andrich, Phoenix
Plaintiff/Appellant
Slattery Petersen PLLC, Tucson
By Gabriel O’Quin, GinaMarie Slattery
Counsel for Defendants/Appellees, Banner, Allred
Holden & Armer PC, Phoenix
By Scott A. Holden, Nathan S. Ryan
Counsel for Defendant/Appellee, Ellis
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
MEMORANDUM DECISION
Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.
C A M P B E L, Judge:
¶1 Devin Andrich appeals from a grant of summary judgment in
favor of the medical-provider defendants, Banner University Medical
Center, Dr. Carl Allred (collectively, “Banner”), and Dr. Scott Ellis.1 He
disputes the superior court’s finding that his digital medical records are not
chattel and therefore not subject to conversion. See Miller v. Hehlen, 209 Ariz.
462, 472, ¶ 34 (App. 2005) (“Conversion is an intentional exercise of
dominion or control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the
other the full value of the chattel.”). He also argues that the superior court
erred in (1) denying a motion to strike medical records and (2) awarding
$1,000 in sanctions for Andrich’s failure to concede unmeritorious claims.
Because Andrich failed to allege the factors and facts necessary to maintain
a cause of action for conversion, and because the court did not abuse its
discretion in denying Andrich’s motion to strike or awarding sanctions, we
affirm.
BACKGROUND
¶2 Andrich is a disbarred attorney who has been convicted of
defrauding his clients. While incarcerated and awaiting trial, he suffered an
injury to his right shoulder. As part of his medical care while in the Arizona
Department of Correction’s (ADOC) custody, Corizon Health managed his
medical care. Corizon referred Andrich to a Banner facility for a diagnostic
MRI, which revealed torn muscles and an accompanying cyst in Andrich’s
shoulder. Banner faxed the MRI report to Corizon within a week but
retained the actual MRI results. While in ADOC custody, Andrich had one
1 Andrich also named Dr. Allred and Dr. Ellis’ wives. Dr. Ellis is
unmarried, but Dr. Allred’s wife, Kristin Allred, remains a party on appeal.
Because Ms. Allred has no liability independent of her husband, we refer
only to Dr. Allred. See Selby v. Savard, 134 Ariz. 222, 229 (1982) (“[T]he
community is liable for the intentional torts of either spouse if the tortious
act was committed with the intent to benefit the community.”)
2
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
appointment with Dr. Ellis, an orthopedic surgeon at a non-Banner practice.
Dr. Ellis examined Andrich and provided Corizon with his consultation
report recommending an ultrasound. The ultrasound was conducted later
that month at the Arizona State Prison’s medical facility. Dr. Ellis did not
examine or treat Andrich again. Corizon arranged further treatment
through Banner with Dr. Allred, another orthopedic surgeon.
¶3 Upon his release from custody, Andrich was informed of the
process through ADOC for accessing his medical records, including the
MRI and ultrasound reports.
¶4 As part of his then-ongoing medical malpractice federal case,
Andrich sent Health Insurance Portability and Accountability Act (HIPAA)
releases to Defendants.2 The release “instruct[ed]” the recipients to
“produce any and all . . . copies of all medical records . . . and any medical
information whatsoever arising from my care and treatment at any time.”
More specifically, Andrich requested that “all recipients” produce:
1) the radiology films and/or electronic radiology films
pertaining to Plaintiff’s MRI performed on or about January
8, 2016; 2) all electronic/digital copies of the MRI . . . ; and 5)
all correspondence exchanged between and/or among
[Defendants and other providers] concerning Devin Andrich.
In the release, Andrich also “expressly warned” the recipients that he
would pursue a contempt order if they “with[held] or otherwise delay[ed]
production of any e-mails or other correspondence.” Banner and Dr. Ellis
received Andrich’s request. Dr. Allred, who no longer worked for Banner,
did not.
¶5 When Andrich did not receive the records by his stated one-
month deadline, he filed suit against the healthcare defendants.3 Andrich
brought claims for conversion and gross negligence, alleging each medical
defendant unlawfully withheld his “comprehensive medical records” by
2 Since his release from custody, Andrich has filed at least 13 lawsuits
relating to his disbarment, conviction, and at issue here, his medical
treatment and records. See, e.g., Andrich v. State Bar of Ariz., CV 19-00751,
2019 WL 11339764, at *2 n.1 (D. Ariz. May 29, 2019) (collecting federal civil
cases); State v. Andrich, 1 CA-CR 18-0600, 2019 WL 150497 (Ariz. App. Jan.
10, 2019) (mem. decision).
3 HIPAA requires covered entities to “act on” compliant requests within
30 days of receipt. See 45 C.F.R. § 164.524(b)(2)(i).
3
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
failing to respond to his HIPAA release promptly. Andrich also alleged
medical malpractice and related gross negligence against Banner and
Dr. Allred, as well as gross negligence relating to conversion against all
Defendants.4 Andrich alleged, without the records, he could not (1) fix his
shoulder, which in turn barred him from gainful employment, or (2)
provide a medical expert affidavit to support his medical malpractice claim
in this case or his federal cause of action. See A.R.S. § 12-2603(B). By the time
service had been perfected in the instant case, Andrich’s federal suit had
been dismissed.
¶6 Within weeks, in June 2020, Banner provided Andrich with
his medical records. Dr. Ellis produced copies of the medical records in his
possession and control later that summer.
¶7 In December 2020, Dr. Ellis filed a motion for summary
judgment. Banner filed a motion for joinder in Dr. Ellis’ motion for
summary judgment. Andrich then moved to strike a portion of the
statement of facts accompanying Banner’s motion for joinder, alleging that
it unlawfully “published” his medical records. The superior court granted
summary judgment in Dr. Ellis’ favor in June 2021, finding the medical
records were not chattel subject to conversion, and in any case, Andrich had
provided no evidence of intent to deprive. He also failed to demonstrate
that he could not obtain the records from ADOC.
¶8 At Andrich’s request and upon a finding of good cause, the
superior court ordered that Banner’s motion for joinder be treated as a
separate motion for summary judgment but denied Andrich’s motion to
strike. In late September, faced with the same legal arguments and similarly
sparse evidence, the superior court granted summary judgment in favor of
Banner. Noting Andrich “should have known” the Banner facts “would fare
no better under the same law that applied to Dr. Ellis,” the superior court
granted Banner’s motion for sanctions and entered a monetary award.
Andrich timely appealed.
DISCUSSION
¶9 Andrich raises three issues on appeal. First, Andrich disputes
the superior court’s finding that medical records are not chattel, and
4 Andrich has abandoned these claims by failing to appeal their dismissal.
See Belen Loan Invs., L.L.C. v. Bradley, 231 Ariz. 448, 457, ¶ 22 (App. 2012)
(“[I]ssues not clearly raised and argued in a party’s appellate brief are
waived.”).
4
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
therefore not subject to conversion. Next, he argues that the superior court
erred in denying his motion to strike exhibits attached to Banner’s
statement of facts containing medical records and deposition testimony,
and lastly, by ordering him to pay $1,000 to Banner as sanctions under Rule
11 of the Arizona Rules of Civil Procedure (Rule). We address each
argument in turn.
I. Motion for Summary Judgment
¶10 In determining whether a party is entitled to summary
judgment, we review questions of law de novo and view the facts in a light
most favorable to the party against whom summary judgment was granted.
In re Estate of Podgorski, 249 Ariz. 482, 484, ¶ 8 (App. 2020). The court should
grant summary judgment only if it finds no genuine issues of material fact
and one party is entitled to judgment as a matter of law. Grain Dealers Mut.
Ins. Co. v. James, 118 Ariz. 116, 118 (1978).
A. Medical Records Are Not Chattel Subject to a Cause of
Action for Conversion
¶11 Andrich argues that his medical records are valuable and
tangible personal property subject to a claim of conversion because, unlike
a customer list, they cannot be recreated “[i]f stolen.” See Miller, 209 Ariz. at
472, ¶ 35. In both grants of summary judgment, the court found that
Andrich’s medical records, including the MRI, are not chattel and cannot
be the subject of conversion. “Conversion is an intentional exercise of
dominion or control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the
other the full value of the chattel.” Id. at ¶¶ 34–35 (“customer list” of names
copied from database was not chattel subject to conversion); see also
Restatement (Second) of Torts § 222(A) (1965). “An action for conversion
ordinarily lies only for personal property that is tangible, or to intangible
property that is merged in, or identified with, some document”
representing a right of possession. See Miller, 209 Ariz. at 472, ¶ 35
(quotation omitted); see also Restatement (Second) of Torts § 242 cmt. a
(1965). Medical records have no value independent of the information tied
to the patient with the prospect of obtaining medical treatment in the
future.
¶12 The court concluded “that the medical records at issue in this
matter do not constitute chattel or personal property that have some
inherent value, like a stock certificate or insurance policy.” See Miller, 209
Ariz. at 472, ¶ 35. We agree. Andrich’s medical records had no independent
5
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
value; they could not be traded or sold for any value. The only value they
had was to Andrich, and they had no value to the medical defendants
whatsoever. Accordingly, medical records cannot be considered chattel.
Since the deprivation of property or chattel serves as the basis for
conversion, Andrich failed to properly allege the elements of conversion,
and the granting of summary judgment was appropriate.
¶13 Additionally, it is undisputed that Dr. Ellis and Banner
produced Andrich’s medical records, albeit not as quickly nor completely
as he would have liked, and that Dr. Allred had no records independent of
Banner to produce. Mere inconvenience or delay does not rise to
conversion; serious interference requires hostile control, or “a dominion or
control over the goods which is in fact inconsistent with the plaintiff’s
rights.” See Sterling Boat Co., Inc. v. Ariz. Marine, Inc., 134 Ariz. 55, 58 (App.
1982); Focal Point, Inc. v. U-Haul Co. of Ariz., Inc., 155 Ariz. 318, 319–20 (App.
1986) (finding no conversion when the plaintiff could have regained control
by traveling a short distance to prove right of possession to a truck).5
B. Conversion Requires Intent to Deprive
¶14 Even if we were to assume that medical records could be
considered chattel, Andrich still failed to plead properly a cause of action
for conversion. In response to Banner’s motion for joinder, Andrich pointed
to Banner’s unwillingness to produce certain documents as evidence of
hostile intent, arguing that until Banner and Dr. Allred produced the
“electronic log records” relating to his records request, no one could know
“the extent of [their] hostile intent.” Andrich also provided the court
selective quotes from internal emails as evidence that Banner
“intentional[ly] [and] deliberate[ly]” withheld records. Read as a whole, the
emails show confusion over “what to make” of Andrich’s letter, including
whether to process it as a patient or attorney request. Other than Andrich’s
speculation, he produced no evidence that the medical defendants intended
to withhold his records, much less that they did so with hostile motivation.
¶15 The superior court found no evidence produced that
demonstrated the medical defendants’ intent to deprive or seriously
interfere with Andrich’s access to the records. Even if we assume medical
records were chattel, Andrich fails to provide sufficient evidence of the
5 This conclusion disposes of the arguments raised by Andrich
regarding summary judgment granted in favor of Dr. Ellis.
6
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
medical defendants’ intention to deprive him of such. Therefore, again he
fails to provide facts sufficient to maintain a cause of action for conversion.
II. Motion to Strike Exhibits
¶16 Next, Andrich argues the superior court erred in denying his
motion to strike several exhibits appended to Banner’s motion for joinder
because they were confidential medical records under A.R.S. § 12-2292. He
contends the court should have granted his motion and ordered Banner to
file the records under seal. However, the court concluded the contested
exhibits—a mix of medical records, deposition testimony, and discovery
disclosures—“contained no more information than necessary to address the
claims raised by the Plaintiff.” We agree.
¶17 We review the superior court’s order denying Andrich’s
motion to strike for an abuse of discretion. See Birth Hope Adoption Agency,
Inc. v. Doe, 190 Ariz. 285, 287 (App. 1997). Motions to strike are authorized
in limited circumstances outside of trial or an evidentiary hearing. Ariz. R.
Civ. P. 7.1(f). One such circumstance is when the motion “seeks to strike
any part of a filing or submission on the ground that it is prohibited, or not
authorized, by a specific statute.” Ariz. R. Civ. P. 7.1(f)(1). “Unless
otherwise provided by law, all medical records . . . are privileged and
confidential.” A.R.S. § 12-2292. A patient waives this protection by placing
a “particular medical condition” at issue, either by “mak[ing] an assertion
about or present[ing] evidence about [it].” Heaphy v. Metcalf, 249 Ariz. 210,
212–13, ¶ 6 (App. 2020).
¶18 Andrich argues A.R.S. § 12-2292 and Rule 5.4(c) “required
[Banner and Dr. Allred] not to publish” the medical records. Medical
records contain information about “a patient’s physical or mental health or
condition.” A.R.S. § 12-2291(6). Implied waiver of the physician-patient
privilege occurs in two circumstances: 1) under the waiver of privilege
statute, the privilege is waived if the privilege holder offers himself as a
witness and voluntarily testifies about privileged communications, and 2)
when the holder places a particular medical condition at issue through a
claim or affirmative defense. A.R.S. §§ 12-2235, -2236, -2292; see also Heaphy,
249 Ariz. at 212–13, ¶¶ 3, 6. Here, in filing a complaint alleging medical
malpractice, he placed the subject of those records, his shoulder injury,
directly at issue, thereby waiving any claim of privilege. See Throop v. F.E.
Young & Co., 94 Ariz. 146, 156–58 (1963) (finding “highly material” claim of
“sudden” heart attack waived privilege regarding records of ongoing
treatment for heart problems).
7
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
¶19 Andrich goes on to contend he is not claiming the medical
records were privileged but that Banner “kn[e]w to file the medical records
under seal.” Once the privilege has been waived, there is no requirement to
protect that information from disclosure. Bain v. Superior Court, 148 Ariz.
331, 333 (1986). Had Andrich wanted that information taken out of the
public record, he should have moved to seal the records instead of moving
to strike them from the record. Cf. Ctr. for Auto Safety v. Goodyear Tire &
Rubber Co., 247 Ariz. 567, 572–74, ¶¶ 19–23, 27–29 (App. 2019) (protecting
trade secrets by enforcing the order to file under seal). A party cannot file a
record under seal unless authorized by statute, rule, or prior court order.
See Ariz. R. Civ. P. 5.4(c)(2) (requiring findings on the record that warrant
“overriding . . . the right of public access” absent statute, rule, or prior court
order).
¶20 Here, Andrich did not request a court order requiring his
records to be filed under seal, nor did he move to seal the exhibits after they
were filed. A motion to strike was the wrong procedural vehicle for
removing public access to the records. Therefore, the superior court did not
abuse its discretion in denying Andrich’s motion to strike.
III. The Court Properly Imposed Rule 11 Sanctions
¶21 Last, Andrich argues the superior court erred in awarding
monetary sanctions to the medical defendants. We review all aspects of an
order imposing Rule 11 sanctions for abuse of discretion.6 James, Cooke &
Hobson, Inc. v. Lake Havasu Plumbing & Fire Prot., 177 Ariz. 316, 319 (App.
1993); see also Ariz. R. Civ. P. 11. A party violates Rule 11 by filing a pleading
with a claim or defense that he should have known to be “insubstantial,
groundless, frivolous, or otherwise unjustified.” Boone v. Superior Court, 145
Ariz. 235, 241 (1985) (en banc). Andrich alleges the court imposed sanctions
“for filing the response” to Banner’s separate motion for summary
judgment. Not so. The superior court found that sanctions were appropriate
because Andrich “should have known that the facts applicable to Banner
would fare no better under the same law” than when applied to the grant
of summary judgment in Dr. Ellis’ favor.
6 Andrich argues for “a de novo review of the . . . separate motion for
summary judgment” to “confirm[] that the trial court erred in sanctioning
Appellant.” (Emphasis added.) But Andrich’s analysis is spent arguing the
sanctions were unwarranted because of the importance of preserving issues
for appeal. He seeks to vacate the order awarding sanctions; therefore, the
court’s discretion is at issue.
8
ANDRICH v. BANNER UNIVERSITY, et al.
Decision of the Court
¶22 There are consequences for pursuing frivolous claims, and the
imposition of Rule 11 sanctions was appropriate. The superior court did not
abuse its discretion in ordering Andrich to pay Rule 11 sanctions to offset
Banner’s costs and fees associated with responding to his frivolous
arguments.
CONCLUSION
¶23 For the reasons above, we affirm. Andrich failed to provide
evidence sufficient to maintain a cause of action for conversion, even if we
assumed that his medical records are personal property subject to
conversion. The superior court did not abuse its discretion in denying
Andrich’s motion to strike or awarding monetary Rule 11 sanctions,
payable to Banner. As the prevailing party, we order Andrich to pay the
Appellees’ taxable costs on appeal, pending their compliance with ARCAP
21.
AMY M. WOOD • Clerk of the Court
FILED: AA
9 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482319/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Polish Hill Civic Association, :
Appellant :
:
v. :
:
City of Pittsburgh Zoning Board of : No. 1129 C.D. 2021
Adjustment and Laurel Communities : Argued: October 11, 2022
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: November 8, 2022
The Polish Hill Civic Association (Polish Hill) appeals from the
September 15, 2021 order of the Allegheny County Court of Common Pleas (trial
court) affirming the City of Pittsburgh Zoning Board of Adjustment’s (Board) grant
of zoning relief requested in connection with 1226 Herron Avenue in Pittsburgh (the
Property). Upon review, we vacate and remand.1
1
The City of Pittsburgh and the Board did not submit appellate briefs. See City of
Pittsburgh Dep’t of Law Letter, 3/15/22.
I. Background
The Property is located in the Hillside zoning district (H District) of the
Polish Hill neighborhood in Pittsburgh.2 Board’s Decision, 12/14/20 at 2, Findings
of Fact (F.F.) 1-2, Reproduced Record (R.R.) at 171a. The Property consists of 34
recorded parcels, some of which were originally platted and recorded in a March
1869 subdivision plan, with the remainder platted and recorded in a November 1870
subdivision plan. F.F. 11; Transcript of Testimony, 9/17/20 at 17-18, R.R. at 67a-
68a.
The provisions of the Pittsburgh Zoning Code (Code) became effective
on February 26, 1999. See Code § 901.05. Of the 34 parcels on the Property, 26
currently fall short of the requisite minimum lot size of 3,200 square feet. F.F. 12.
Six of the parcels contain structures and the remaining parcels are vacant or used for
parking. F.F. 5. The combined area of the 34 parcels is approximately 99,698 square
feet. F.F. 5.
Laurel Communities (Laurel) proposed consolidating and re-
subdividing 33 of the parcels into 27 lots and constructing an attached single-family
house on each new lot. F.F. 7; see also Zoning Application at 1-2, R.R. at 4a-5a.
The new lots would range in size from 1,320 to 7,179 square feet, and 8 of these lots
would not meet the Code’s minimum lot size requirement of 3,200 square feet. F.F.
13 & 15. One parcel, No. 26-E-46, would retain its present lot boundaries and
2
Laurel Communities (Laurel) avers in its appellate brief that it is the equitable owner of
the 34 individually recorded lots on the Property. See Laurel’s Br. at 4. The Board’s decision
identifies Donald Thinnes as the owner of the Property and Geoff Campbell as the applicant for
the requested relief in connection with the Property. See Board’s Decision, 12/14/20 at 1, R.R. at
170a. Neither individual is a party to the present suit. Laurel is participating in the present matter
as an intervenor. See Trial Ct. Op., 9/15/21 at 1. Geoff Campbell submitted the application for
zoning relief on behalf of Laurel. See Zoning Application at 1-2, R.R. at 4a-5a.
2
remain undeveloped. Id. Laurel requested that the Board recognize the protected
status of the legal nonconforming lots or, in the alternative, a dimensional variance
from the 3,200-square-foot minimum lot size requirement set forth in Code Section
905.02.C.3. F.F. 17. Laurel also requested dimensional variances from the 50%
maximum area of disturbance limitation contained in Code Section 905.02.C.3 for
17 of the proposed 27 lots and from the restriction against cutting or filling slopes
within five feet of property lines. F.F. 24 & 27. Additionally, Laurel sought a special
exception to construct single-family attached dwellings on the Property. F.F. 10.
In September 2020, the Board conducted a hearing. See Transcript of
Testimony, 9/17/20 at 1-2 & 59, R.R. at 51a-52a & 109a. On December 14, 2020,
the Board issued a decision granting Laurel’s requested relief. See Board’s Decision,
12/14/20 at 1-11, R.R. at 170a-80a. The Board approved of the proposed dimensions
of the eight noncompliant lots, and, “[t]o the extent . . . required,” granted a
dimensional variance from the Code’s minimum lot size requirement. Id. at 11, R.R.
at 180a; Conclusion of Law (C.L.) 14. The Board also granted the requested
dimensional variance from the Code’s 50% maximum disturbance area limitation to
permit the disturbance of up to 51,959 square feet, or 57.9%, of the 89,679-square-
foot development area, subject to the condition that no disturbance was to occur on
the steep slope areas or on Parcel No. 26-E-46. C.L. 17-18. Further, the Board
determined that a variance from the Code’s restriction against cutting or filling
slopes within five feet of property lines was appropriate to permit reasonable
development, subject to the condition that no grading would occur on steep slope
areas. C.L. 22. The Board concluded that constructing single-family attached
residences on the Property was permissible as a special exception in H Districts
under Code Sections 911.02 and 911.04.A.69, subject to the specific criteria
3
delineated in Code Section 911.04.A.693 and determined that Laurel presented
substantial and credible evidence demonstrating that the proposed single-family
attached residential use of H District property complied with the Code. C.L. 23 &
32. The Board acknowledged the objections raised by Polish Hill and individual
residents, but found that objectors’ generalized concerns failed to discharge their
burden of proving a “high degree of probability” of specific detrimental impacts
upon the public interest. C.L. 30-31 & 33 (quoting Allegheny Tower Assocs., LLC
v. City of Scranton Zoning Hearing Bd., 152 A.3d 1118, 1122 (Pa. Cmwlth. 2017)).
Polish Hill appealed to the trial court, which affirmed. See Notice of
Land Use Appeal at 1-9, R.R. at 182a-90a; Trial Ct. Op., 9/15/21, Original Record
at 103. The trial court observed that a property owner is permitted to maintain or
reduce existing nonconformities without a variance. Trial Ct. Op., 9/15/21 at 3
(citing Money v. Zoning Hearing Bd. of Haverford Twp., 755 A.2d 732 (Pa. Cmwlth.
2000)). The trial court disagreed with Polish Hill’s contention that the proposed
consolidation and re-subdivision would forfeit any protection afforded lawful
nonconforming lots on the Property, explaining that “except for the fact that both
Laurel and the Board used the term ‘consolidation’ to describe Laurel’s proposed
plans, no other evidence exists in the record that Laurel went through the
consolidation process or intended to consolidate 33 parcels into one new lot.” Id. at
4. Thus, the trial court concluded “that Laurel intend[ed] to adjust some of the
boundaries to make the lots more conforming.” Id. The trial court affirmed the
3
The Code establishes conditions for single-unit detached and attached residential uses in
the H District pertaining to topography, soil, vegetation, access and infrastructure, including the
requirement that clusters of single-unit attached dwellings permitted by special exception in the H
district shall not exceed four units. Code § 911.04.A.69(1)-(5).
4
Board’s grant of the requested variances. See id. at 3-7.4 Further, the trial court
affirmed the Board’s approval of Laurel’s request for a special exception on the basis
that the proposed development complies with the Code’s requirements regarding
single-unit attached residential use. Id. at 5-6 (citing Code §§ 911.02, 911.04.A.69;
Exhibit 3, PS&R Report).5 Like the Board, the trial court opined that the “general
concerns” raised by Polish Hill and various individual community objectors at the
hearing failed to satisfy their burden of proof as objectors. Id. at 7.
Polish Hill timely appealed to this Court.
II. Issues
Before this Court,6 Polish Hill argues that the Board erred in granting
Laurel dimensional relief from the H District’s minimum lot size, because Laurel’s
plan requires it to consolidate 33 of the 34 parcels into a single lot before re-dividing
4
The trial court noted that the prerequisites for granting a variance are contained in Code
Section 922.09.E, but did not recite or apply these requirements. See Trial Ct. Op., 9/15/21 at 4.
Further, despite affirming the Board’s opinion in its entirety, the trial court did not discuss the
Board’s grant of the requested dimensional variance from the Code’s minimum lot size
requirement. See id. at 3-4.
5
The exhibits considered by the trial court were submitted to this Court as a separate file
that is independent of the rest of the record. It is available alongside the original record in the
Court’s internal case records management system.
6
“Because no additional evidence was presented to the trial court in [its] review of the
Board's findings, our scope of review is limited to a determination of whether the Board committed
a manifest abuse of discretion or an error of law.” Blancett–Maddock v. City of Pittsburgh Zoning
Bd. of Adjustment, 640 A.2d 498, 500 (Pa. Cmwlth. 1994). An abuse of discretion occurs when
the Board’s findings of fact are not based on substantial evidence in the record, which is defined
as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Mehring v. Zoning Hearing Bd. of Manchester Twp., 762 A.2d 1137, 1139 n.1 (Pa. Cmwlth. 2000).
A conclusion that the zoning hearing board abused its discretion may be reached only if its findings
are not supported by substantial evidence. Money v. Zoning Hearing Board of Haverford Twp.,
755 A.2d 732, 736 n.3 (Pa. Cmwlth. 2000).
5
it into 27 new lots. Moreover, Polish Hill maintains that Laurel has failed to provide
any reason why its plan could not have further lessened or eliminated any remaining
nonconformities.
Polish Hill also contends that any hardship purportedly justifying
Laurel’s dimensional variance based on the re-subdivision proposal request is self-
inflicted and that Laurel’s proposal will alter the character of the existing
neighborhood. Further, Polish Hill maintains that Laurel’s plan does not represent
the minimum variance that would afford relief and does not represent the least
modification possible of the regulation in issue.
Laurel counters that it does not plan to consolidate lots on the Property
into a single lot before effectuating the proposed re-subdivision. Rather, it merely
intends to adjust some of the boundaries to make the lots more conforming, which it
may do as of right. Thus, Laurel posits that it is not obligated to reduce the
nonconformity of any of the eight undersized lots proposed in the re-subdivision
plan. See id. at 21-22.
Further, Laurel argues that merger of lots cannot be presumed merely
because two adjoining lots come into common ownership. Merger of lots is a
creature of local ordinance, not common law, and Laurel contends that the Code
contains no merger provision.
Laurel also maintains that it is entitled to dimensional variances
because the Property is subject to unique physical conditions, such as steep slopes,
which hinder development. Laurel suggests that reducing the number of
nonconforming lots would limit impact upon adjacent uses, permit the development
to maintain additional greenspace and landscaping, minimize impact on steep slopes,
enable the type of development described in Polish Hill’s self-funded Neighborhood
6
Character Studies, and permit the development of pedestrian amenities otherwise
unavailable on the Property. Finally, Laurel contends that it did not create the
asserted hardships, as it did not alter the topography of the Property and the lots were
created more than 50 years prior to the adoption of the Code.
III. Discussion
A. Nonconforming Lots
Polish Hill argues that Laurel’s proposed re-subdivision of the Property
would require an initial consolidation eliminating the protections accorded lawful
nonconforming lots. In support of its contention, Polish Hill relies on Laurel’s
proposal in its proffered findings of fact and conclusions of law to “consolidate the
existing 34 lots, which are comprised of 26 nonconforming lots, and re-subdivide
the property into 28 lots,7 8 of which only will be nonconforming.” Polish Hill’s Br.
at 19 (quoting Laurel’s Proposed C.L. 16, R.R. at 146a). Polish Hill also points to
the Board’s statement that Laurel “proposes to consolidate and re-subdivide 33 of
the existing 34 parcels into 27 parcels[.]”8 Id. at 20 (quoting F.F. 7).
The Code states:
It is the general policy of the City to allow uses, structures
and lots that came into existence legally in conformance
with then-applicable requirements to continue to exist
and be put to productive use, but to bring as many aspects
of such situations into compliance with existing
regulations as is reasonably possible. This chapter
establishes regulations governing uses, structures and lots
that were lawfully established but that do not conform to
7
Laurel’s statement that 28 lots would remain following re-subdivision apparently
incorporates Parcel No. 26-E-46.
8
The Board’s reference to re-subdivision resulting in 27 lots excludes Parcel No. 26-E-46.
See F.F. 7 & 15.
7
one (1) or more existing requirements of this Code. The
regulations of this chapter are intended to:
1. Recognize the interests of property owners in
continuing to use their property;
2. Promote reuse and rehabilitation of existing
buildings;
3. Place reasonable limits on the expansion of
nonconformities that have the potential to adversely
affect surrounding properties and the community as
a whole; and
4. Protect the integrity of residential neighborhoods
from the potential impacts of nonconforming uses.
Code § 921.01.A (emphasis added). Polish Hill fails to point to a Code provision
predicating the perpetuation or alteration of dimensionally nonconforming lots on
the receipt of a variance or other relief, nor does our review of the Code indicate that
any such provision exists. See Campbell v. Doylestown Borough Zoning Hearing
Bd. (Pa. Cmwlth., No, 274 C.D. 2012, filed Jan. 7, 2013), slip op. at 13.
In Campbell, a landowner sought to merge two nonconforming
properties into a single nonconforming property that would remain undersized. Id.,
slip op. at 1. The zoning hearing board granted the requested relief. Id. This Court
affirmed, noting that the applicable zoning ordinance “[did] not impose any
additional requirement that [an a]pplicant seek a variance for minimum lot size when
such a dimensional nonconformity already exists and the nonconformity will be
reduced by the [p]roposed [u]se.” Id., slip op. at 13.9
9
The landowner also requested a special exception to convert two nonconforming uses on
the two separate lots into a single nonconforming use, which would be located on the proposed
merged lot. Campbell, slip op. at 1. We affirmed the Board’s grant of the requested special
exception, reasoning that the applicable zoning ordinance did not precondition the receipt of a
special exception on conformance with every dimensional requirement for the district. Id., slip
op. at 14.
8
Here, the 34 parcels on the Property were platted and recorded in 1869
and 1870. F.F. 11-12. The subsequent adoption of the Code’s 3,200-square-foot
minimum lot size requirement rendered 26 of these parcels undersized and, thus,
dimensionally nonconforming. 10 See F.F. 12; Code § 905.02.C.3. Laurel proposes
to re-divide 33 parcels into 27 larger lots, of which only 8 would remain
nonconforming. See F.F. 7, 12 & 15. However, in Campbell, the proposed
undersized lot resulted from the merger of two lawfully nonconforming parcels. See
Campbell, slip op. at 1 & 13. By contrast, here, the Board failed to determine
whether the 8 nonconforming lots proposed by Laurel’s re-subdivision plan would
be located within any of the 26 preexisting lawful nonconforming lots.11
10
The Board did not render a factual finding as to whether the Code incorporated the 3,200
square-foot-minimum lot size requirement upon the initial adoption of the Code or through
subsequent amendment, merely stating that “the nonconforming areas of 26 of the existing 34
parcels predated the Code’s minimum lot size requirement[.]” F.F. 17.
11
Laurel cites Money and Amoco Oil Co. v. Ross Twp. Zoning Hearing Bd., 426 A.2d 728
(Pa. Cmwlth. 1981), in support of its assertion that it may, as of right, re-subdivide the existing
lots on the Property to reduce legal nonconformities. We note, however, that Money and Amoco
do not squarely support Laurel’s position. In Money, a landowner applied to the township for a
building permit to replace a nonconforming garage/chicken coop with a smaller, but still
nonconforming garage. Money, 755 A.2d at 735. This Court did not hold that the landowner
possessed the unlimited right to perpetuate the nonconforming use. See id. at 738-39. Rather, we
held that because the new structure proposed by the landowner would have the effect of reducing
the nonconformity, the Board erred in concluding that a provision of the zoning ordinance
pertaining to extensions, enlargements or additions of nonconforming uses, buildings or structures
prohibited the landowner’s proposal. Id. at 736 & 736 n.4. Accordingly, we reversed and
remanded the matter for the zoning hearing board to grant the landowner the requested permit. Id.
at 739. Thus, the status of the garage/chicken coop as lawfully nonconforming did not obviate the
landowner’s need to obtain a building permit under the relevant zoning ordinance in order to
replace the structure. See id.
Likewise, we deem Amoco inapposite, as that matter centered on whether a landowner’s
proposed conversion of the lawful nonconforming use of a gas station from full service to self-
service constituted the reasonable and natural expansion of the use for purposes of the landowner’s
requests for a special exception and variances. See 426 A.2d at 730-32.
9
Critically, the Board also failed to address whether the lots were in
common ownership prior to the adoption of the Code’s minimum lot size
requirement, or whether they came into common ownership after that time. 12 In
Cottone v. Zoning Hearing Board of Polk Township, 954 A.2d 1271 (Pa. Cmwlth.
2008), we explained:
We begin with a review of merger principles. In general,
mere common ownership of adjoining properties does
not automatically result in a physical merger of the
properties for zoning purposes. Dudlik [v. Upper
Moreland Twp. Zoning Hearing Bd., 840 A.2d 1048,
1052-53 (Pa. Cmwlth. 2004)]; Daley v. Zoning Hearing
[Bd.] of Upper Moreland [Twp.], 770 A.2d 815, 819 (Pa.
Cmwlth. 2001). On the other hand, adjoining properties
under common ownership can merge when a zoning
ordinance provision causes one or more of the adjoining
lots to become undersized, depending on the facts and
circumstances of each case. [Twp.] of Middletown v.
Middletown [Twp.] Zoning Hearing [Bd.], . . . 548 A.2d
1297, 1300 ([Pa. Cmwlth.] 1988). The focus of the inquiry
is upon (1) when the properties in question came under
common ownership and (2) the effective date of the
applicable zoning ordinance.
Adjoining lots under separate ownership before a zoning
ordinance enactment makes the lots too small to build
upon are presumed to remain separate and distinct lots.
Should those adjoining, undersized lots be thereafter
acquired by a single owner, the burden is on the
municipality to show that the new common owner has
merged the two lots into one. In re Appeal of Puleo, 729
A.2d 654, 656 (Pa. Cmwlth.1999). Otherwise, the result
would be to permit separate development of each lot by
any person other than the common owner. Parkside
12
Although the Board identified Donald Thinnes as the owner of the Property on the cover
sheet of its December 14, 2020 decision, the Board did not specifically find as fact whether the 34
lots on the Property were in common ownership. See Board’s Decision, 12/14/20 at 1, R.R. at
170a.
10
[Assocs.], Inc. v. Zoning Hearing [Bd.] of Montgomery
[Twp.], . . . 532 A.2d 47, 49 ([Pa. Cmwlth.] 1987).
...
On the other hand, lots are presumed to merge as necessary
to comply with a zoning ordinance’s lot size requirements
where they are under common ownership prior to the
passage of the ordinance. It is the landowner’s burden to
rebut this presumption by proving an intent to keep the lots
separate and distinct. In re Appeal of Puleo, 729 A.2d at
656. In doing so, the landowner’s subjective intent is not
determinative; rather, there must be proof of some overt or
physical manifestation of intent to keep the lots in question
separate and distinct. Dudlik, 840 A.2d at 1052-1053.
Cottone, 954 A.2d at 1275-76 (footnote omitted). Thus, the Board’s failure to
address whether and when the lots came into common ownership precludes the
ability to ascertain which party bears the burden of demonstrating whether the lots
are lawfully nonconforming. See id.
Moreover, the Board did not discuss whether any of the 26 undersized
lots on the Property meet the definition of “nonconforming lot,” as set forth in Code
Section 921.04:
A lot shown on an approved and recorded subdivision
plat or a parcel shown on the Allegheny County Record
Of Deed’s records as a separate parcel on such date may
be occupied and used although it may not conform in
every respect with the dimensional requirements of this
Code, subject to the provisions of this section.
Code § 921.04 (titled “Nonconforming Lots”). Although the Board found that “[t]he
34 parcels that currently comprise the site were originally laid out in two recorded
subdivision plans, one recorded in March 1869 . . . and one in November 1870,” it
failed to specifically address whether any of the 26 currently undersized parcels were
originally recorded as “separate parcel[s]” for purposes of Code Section 921.04.
11
Accordingly, the trial court erred in affirming the Board’s approval of Laurel’s re-
subdivision plan.13
B. Dimensional Variance Requests
We also agree with Polish Hill that the trial court erred in affirming the
Board’s grant of the requested dimensional variances. Pursuant to Code Section
922.09.E,
[n]o variance in the strict application of any provisions of
this [] Code shall be granted by the [Board] unless it finds
that all of the following conditions exist:
1. That there are unique physical circumstances or
conditions, including irregularity, narrowness, or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the
particular property, and that the unnecessary hardship is
due to the conditions, and not the circumstances or
conditions generally created by the provisions of the
zoning ordinance in the neighborhood or district in which
the property is located;
2. That because of such physical circumstances or
conditions, there is no possibility that the property can be
developed in strict conformity with the provisions of the
zoning ordinance and that the authorization of a variance
is therefore necessary to enable the reasonable use of the
property;
3. That such unnecessary hardship has not been created
by the [applicant];
4. That the variance, if authorized, will not alter the
essential character of the neighborhood or district in
which the property is located, nor substantially or
13
Further, we observe that the Board failed to consider the Code’s policy to encourage
owners of nonconforming lots “to bring as many aspects of such situations into compliance with
existing regulations as is reasonably possible.” Code § 921.01.A.
12
permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public
welfare; and
5. That the variance, if authorized, will represent the
minimum variance that will afford relief and will
represent the least modification possible of the regulation
in issue.
In granting any variance, the board may attach such
reasonable conditions and safeguards as it may deem
necessary to implement to purposes of this act and the
zoning ordinance
The applicant shall have the burden of demonstrating that
the proposal satisfies the applicable review criteria.
Code § 922.09.E (emphasis added).
“[T]he quantum of proof required to establish unnecessary hardship is
[] lesser when a dimensional variance, as opposed to a use variance, is sought.”
Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43, 47-48
(Pa. 1998). Our Supreme Court has explained:
When seeking a dimensional variance within a permitted
use, the owner is asking only for a reasonable adjustment
of the zoning regulations in order to utilize the property
in a manner consistent with the applicable regulations.
Thus, the grant of a dimensional variance is of lesser
moment than the grant of a use variance, since the latter
involves a proposal to use the property in a manner that
is wholly outside the zoning regulation.
Id. at 47. “Although the standards for a dimensional variance are less strict than a
use variance, an applicant still ‘ha[s] the burden of demonstrating that the proposal
satisfies the applicable review criteria’ established in the requirements of [Code]
Section 922.09.E[.]” Lawrenceville Stakeholders, Inc., v. Zoning Board of
Adjustment of the City of Pittsburgh (Pa. Cmwlth. No. 1518 C.D. 2015, filed Apr.
13
12, 2016), slip op. at 6 (quoting Lamar Advantage GP Co. v. Zoning Hearing Bd.
of Adjustment of City of Pittsburgh, 997 A.2d 423, 443 (Pa. Cmwlth. 2010)
(quoting Code § 922.09.E)).
Here, the Board rendered the following factual findings pertaining to
Laurel’s requested dimensional variance from the 50% maximum lot disturbance
requirement contained in Code Section 905.02.C.3:
18. Of the existing 34 parcels, 19 are either wholly or
partially within areas affected by steep slopes.
19. The grade of the steep slopes on the upper/southern
portion of the site exceeded 30%.
20. [Laurel] does not intend any development in the steep
slope areas of the site, including the entirety of parcel No.
26-E-46.
21. The grade of the portion of the site to be developed is
generally flat with some slopes of no more than 3%.
22. Of the approximately 99,698 [square feet] of the
combined area of the parcels that comprise the site, the
proposed development would result in the disturbance of
approximately 51,959 [square feet] or 52.1% of the site.
Excluding from that calculation the 10,019[-square- foot]
area of Parcel No. 26-E-46, which is not to be disturbed,
the 51,959[-square-foot] area of disturbance would be
approximately 57.9% of the 89,679[-square- foot]
development site.
23. [Laurel] submitted a slope stability analysis, which
indicated that the existing soils and slopes on the site
[were] stable, in excess of industry standards, and that the
development of the site would help to improve slope
stability.
24. In support of its request for a variance from the 50%
maximum area of disturbance limitation, [Laurel] relies
on the site development challenges associated with the
topography of the area. [Laurel] also notes that the
14
nonconforming condition of the existing lots would
require more than 50% disturbance of each of the existing
lots and that strict enforcement of the site disturbance
provision would preclude any reasonable development of
the site for any permitted use.
F.F. 18-24. The Board determined that Laurel was entitled to the requested
dimensional variance on the basis that “any reasonable development of the site
would require disturbance of more than 50% of the site or 50% of each existing
parcel.” C.L. 16. The Board further concluded that upon consideration of “the
unique conditions of the site and [Laurel’s] representation that the steep slopes on
the site and parcel No. 26-E-46 [would] not be disturbed, . . . a dimensional
variance to allow a maximum disturbance of 57.9% of the 89,697[-square-foot]
development area [was] appropriate,” provided that no disturbance was to occur
within steep slope areas or on Parcel No. 26-E-46. C.L. 18.
The Board rendered the following factual findings with respect to
Laurel’s requested dimensional variance from the requirement that a property
owner refrain from cutting or filling slopes within five feet of property lines, as set
forth in Code Section 915.02.A.1.d:
25. [Laurel] does not propose grading on steep slopes or
within 5 [feet] of existing residential structures.
26. The grading would not impact vegetation on steep
slopes.
27. [Laurel] asserted that the development of the existing
34 lots would require grading within 5 [feet] of all
property lines to allow for reasonable development and
that the proposed grading plan for the new parcels would
reduce impacts on the hillside.
28. [Laurel’s] slope stability analysis report indicates that
the existing soils and slopes on the site are stable and that
15
the proposed development would not affect the existing
slope stability.
29. The grade change from the public roadways to the site
and topographical changes with[in] the site’s interior are
unique conditions of the [P]roperty.
30. To support the variance request, [Laurel] again relies
on the site development challenges associated with the
topography of the area and notes that [] strict enforcement
of the grading provisions would preclude any reasonable
development of the site for any permitted use.
F.F. 25-30. The Board determined that “any reasonable development of the site
would require cut[ting] or fil[ling] within 5 [feet] of property lines throughout the
site,” such that the requested dimensional variance was “appropriate to allow
reasonable development, subject to the condition that no grading occur[] on steep
slope areas.” C.L. 21-22. The Board also noted that Laurel’s re-subdivision plan
would reduce the number of parcels requiring a variance from this provision. C.L.
19.
The Board found as fact, though it did not conclude as a matter of law,
that deviation from the Code’s 50% maximum lot disturbance provision was
necessary, as “strict enforcement” thereof “would preclude any reasonable
development of the site for any permitted use.” F.F. 24. This finding corresponds
to the requirement that the Board consider whether physical circumstances or
conditions preclude any possibility of development of a property in strict
conformity with the Code and whether the requested variance is therefore
necessary to enable the reasonable use of the property. See Code § 922.09.E(2).
Regarding the Code’s requirement that a property owner refrain from
cutting or filling slopes within five feet of property lines, the Board concluded that
the requested variance was necessary to permit any reasonable development of the
16
site. See C.L. 21-22; Code § 922.09.E(2). The Board also touched upon the first
criterion under Code Section 922.09.E(1) in finding that certain topographical
features of the Property constituted unique physical conditions. See F.F. 29; See
Code § 922.09.E(1). However, the Board again failed to address the remaining
prerequisites for a variance mandated by Code Section 922.09.E. “The failure of a
zoning board to consider each requirement of a zoning ordinance prior to granting a
variance is an error of law.” Larsen v. Zoning Bd. of Adjustment, 672 A.2d 286, 289-
90 (Pa.1996). Thus, the trial court erred in affirming the Board’s grant of the
requested dimensional variances. See id.; see also Doris Terry Revocable Living Tr.
v. Zoning Bd. of Adjustment of City of Pittsburgh, 873 A.2d 57, 64 (Pa. Cmwlth.
2005) (reversing trial court’s decision upholding grant of dimensional variance,
where the zoning hearing board failed to render “enough facts to support a
conclusion that the requested variance satisfied each requirement specified in [Code]
Section 922.09.E”); Lawrenceville, slip op. at 6 (holding, inter alia, that the
landowner failed to present evidence establishing that the requested dimensional
variance would represent the least modification possible of the regulation at issue).
C. Special Exception
Polish Hill similarly asserts that Laurel’s re-subdivision plan proposes
the initial consolidation of all adjoining lots on the Property into one conforming
lot, thereby defeating any protection for lawful nonconforming lots pursuant to the
doctrine of merger, because Laurel failed to exhibit an intent to keep the lots
separate and distinct. Polish Hill’s Br. at 22-24 (citing Dudlik, 840 A.2d at 1053-
54; Price, 569 A.2d at 1031-33). Laurel counters that the “merger of lots doctrine is
only triggered where a local municipality has adopted a merger of lots provision.”
17
See Laurel’s Br. at 26 (quoting Loughran v. Valley View Developers, Inc., 145 A.3d
815, 821-22 (Pa. Cmwlth. 2016)). Laurel requests that this Court take judicial notice
that the Code contains no merger provision. Id. For the reasons that follow, we
decline to do so.
As noted above, the Code provides that
[a] lot shown on an approved and recorded subdivision
plat or a parcel shown on the Allegheny County Record Of
Deed’s records as a separate parcel on [the Code’s
effective] date may be occupied and used although it may
not conform in every respect with the dimensional
requirements of [the] Code, subject to the provisions of
this section.
Code § 921.04 (emphasis added). The Code further specifies:
If the lot or parcel was vacant on the date which [the
C]ode became applicable to it and is in separate
ownership from abutting lots or parcels, then the Zoning
Administrator shall approve the use of the lot as an
Administrator Exception for a single-unit residential use,
or the Zoning Board of Adjustment shall approve, as a
special exception, the lot for a conforming use permitted
in the district in which the lot is located, according to the
following standards:
1. The use and structure shall comply with all applicable
dimensional requirements of the code to the extent
practicable; and
2. If the applicable zoning district permits a variety of
uses or a variety of intensities of uses, and one (1) or more
uses or intensities would comply with applicable setback
requirements while others would not, then only the uses
or intensities that would conform with the applicable
setback requirements are permitted.
Code § 921.04.A (emphasis added). Code Section 911.02, titled “Use Table,” also
indicates that single-unit attached residential dwellings are permitted in the H
18
District by special exception. Moreover, “the minimum lot size standards of th[e]
Code shall not be interpreted as prohibiting the construction of a single-unit
residential dwelling unit on a lot that was legally platted or recorded prior to the
adoption of this Code.” Code § 925.01.C(1).14 “Entitlement to a special exception
is predicated on an applicant’s satisfying the special exception criteria contained in
the ordinance.” N. Pugliese, Inc. v. Palmer Twp. Zoning Hearing Bd., 592 A.2d 118,
122 (Pa. Cmwlth. 1991).
In Dudlik, a property owner applied to the township’s zoning hearing
board for a special exception to construct a single-family residence on an
undersized lot. See 840 A.2d at 1049. The relevant portion of the township’s
zoning ordinance provided as follows:
On any lot that has been or hereafter is rendered
nonconforming as to the lot area or lot width regulations
of the district in which it is located by the terms of this
ordinance or any amendments thereof, and which, at the
time it acquires such nonconforming status, was held in
a single and separate ownership and thereafter continues
to be held in single and separate ownership, a building
may be erected when authorized as a special exception by
the Zoning Hearing Board.
Id. at 1051.15 The township’s zoning code defined the phrase “Lot held in Single
and Separate Ownership” as “[a] lot the owners of which are not identical with the
14
“A single unit dwelling on a recorded zoning lot with a lot area less than otherwise
required by the [Code] . . . may be approved as an Administrator’s Exception according to the
provisions of Section 922.08.” Code § 925.01.C(2).
15
This Court has explained the approaches available to municipalities in the regulation of
preexisting, dimensionally nonconforming lots as follows:
The particular issue of nonconformance we are concerned with in
the instant matter is nonconformance that arises when one of two
19
owners of any lot adjoining the rear or either side of said lot.” Id. The township’s
zoning hearing board denied the request for a special exception on the ground that
the nonconforming lot was not held in single and separate ownership at the time
the township’s zoning code was enacted. Id. at 1050. This Court affirmed,
reasoning:
Th[e township’s zoning] ordinance defines . . . a lot [held
in single and separate ownership] as a lot “the owners of
which are not identical with any lot adjoining . . . . ” That
definition legislatively imposes the result that the Court
declined to impose under language such as that in Parkside
separate yet contiguous lots held by the same owner has been
rendered undersized by the passage of an ordinance requiring a
larger lot size than what was previously required for the permitted
use in the zoning district where the lots are located; in such
instances, the undersized lot becomes a “nonconforming lot.” Many
municipalities within the Commonwealth have adopted provisions
in their zoning ordinances specifically aimed at addressing this
event, often by requiring that the nonconforming lot merge with the
commonly held adjoining lot in order to create one contiguous lot
that is in conformity with the applicable zoning ordinance. Yet,
adoption of a merger of lots provision is not the only avenue
available to local municipalities in the event that a nonconforming
lot is created by changes to the zoning ordinance. Many
municipalities within the Commonwealth have declined to adopt
ordinances specifically addressing nonconformance or requiring
merger of adjacent lots held by the same owner in the event that a
zoning ordinance renders one of those lots nonconforming,
preferring instead to address nonconformance through the process
established by the [Pennsylvania Municipalities Planning Code, Act
of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202]
for issuing variances. In each instance, the decision to adopt or
forgo a merger provision is a decision that requires the governing
body of the local municipality to balance a host of often competing
interests and settle upon the policy that is deemed most beneficial
for the particular needs of the community the governing body
serves.
Loughran, 145 A.3d at 820-21 (footnote omitted).
20
[Associates, Inc. v. Zoning Hearing Board of Montgomery
Township, 532 A.2d 47, 48 (Pa. Cmwlth. 1987)], which
required only ownership that was “separate and distinct”
from that of adjoining property. Under this ordinance,
therefore, common ownership at the time of enactment of
the zoning change is sufficient to merge properties for
zoning purposes, and the [township zoning hearing
board’s decision] so deeming them to be merged was the
correct result.
Id. at 1053. Here, the Code does not separately define the term “separate ownership”
for purposes of construing Code Section 921.04.A.16 Thus, unlike in Dudlik,
common ownership is not sufficient to merge properties for purposes of Code
Section 921.04. See id. The Board, therefore, should have considered whether any
physical manifestation on the land indicates that the nonconforming lots upon which
Laurel seeks to build following re-subdivision of the Property are currently held in
“separate ownership.”17
This Court went on to explain in Dudlik that
16
Code Section 901.07.E provides that “[w]ords and phrases shall be construed according
to the common and approved usage of the language, but technical words and phrases that may have
acquired a peculiar and appropriate meaning in law shall be construed and understood according
to such meaning.” Code § 901.07.E.
17
We note that the applicable provision of the township’s zoning ordinance in Dudlik
required a lot to be held in single and separate ownership “at the time it acquire[d] such
nonconforming status.” 840 A.2d at 1051. By contrast, the provision of the Code at issue here
permits the granting of a special exception for a “lot or parcel [that] was vacant on the date which
this code became applicable to it and is in separate ownership from abutting lots or parcels[.]”
Code § 921.04.A (emphasis added). Nevertheless, when construed alongside the Code’s definition
of the term “nonconforming lot,” it appears that the Code requires a dimensionally nonconforming
lot both to have been originally recorded “as a separate parcel” and to remain “in separate
ownership[.]” Id.; Code § 921.04 (providing that “[a] lot shown on an approved and recorded
subdivision plat or a parcel shown on the Allegheny County Record Of Deed’s records as a
separate parcel on such date may be occupied and used although it may not conform in every
respect with the dimensional requirements of this Code, subject to the provisions of this
section”).
21
in many cases an ordinance permits building upon a lot
later rendered nonconforming where adjoining lots were
held in single and separate ownership, and it defines that
term simply as ownership that is separate and distinct from
that of adjoining property. In such cases the Court has held
that a common owner of adjoining parcels at the time of
enactment may nevertheless attempt to prove by physical
evidence an intent to hold and to use them separately.
840 A.2d at 1053. We also explained in a separate matter:
[W]e do not believe that the subjective intent of the owner
is the deciding factor in a determination of whether a lot
was held in “single and separate ownership.” The terms
“single,” “separate,” and “distinct” describe
characteristics of ownership which cannot be realized
except by some physical manifestation on the land. While
an owner can certainly intend to own a lot in single and
separate ownership, he has not achieved his intention until
he has, through some affirmative action, made his lot
separate and distinct from his other holdings. In this
respect, an owner’s burden to establish “single
and separate ownership” is analogous to an owner’s
burden to establish a nonconforming use.
W. Goshen Twp. v. Crater, 538 A.2d 952, 954 (Pa. Cmwlth. 1988). This Court has
held that the requisite physical manifestation of an intention to keep adjoining lots
separate and distinct may consist of, for instance, “a line of trees” or “a fence or wall
separating the lots.” Cottone, 954 A.2d at 1279. However, “abstract legal attributes”
such as whether the property owner purchased the lots at the same time and whether
the properties have separate deeds and separate tax identification numbers “do not
carry the day.” Id.
“An applicant for a special exception has both the duty of presenting
evidence and the burden of persuading the zoning board that his proposal is in
compliance with all of the objective requirements of the ordinance.” Appeal of
22
Phila. Ctr. for Dev. Servs., Inc., 462 A.2d 962, 965 (Pa. Cmwlth. 1983).18 Thus,
here, Laurel bore the burden of demonstrating entitlement to the requested special
exception by establishing that its development proposal comported with the
objective requirements of the Code. See id. The Board erred in failing to address
whether Laurel met its burden of establishing, for instance, whether the owner of the
Property demonstrated an intent through physical manifestations on the land to keep
the nonconforming lots for which Laurel requested a special exception “in separate
ownership from abutting lots or parcels.” Code § 921.04.A; see also W. Goshen
Twp., 538 A.2d at 955 (concluding that to qualify for a special exception, landowners
were required to “prove by objective evidence that [the lot at issue] was ‘separate
and distinct’ and not part of a larger, integrated tract owned by them, or by a
predecessor, at the time of the ordinance’s enactment”). Moreover, the Board erred
in failing to address whether these lots were vacant on the date which the Code
became applicable to them.19 Accordingly, the trial court erred in affirming the
Board’s grant of the requested special exception to construct single-family
residences on nonconforming lots on the Property. See Appeal of Phila., 462 A.2d
at 965-66 (vacating trial court’s reversal of township zoning hearing board’s denial
of special exception application and remanding to the trial court either to take
18
“If the objective requirements are met, it then becomes the protestants’ duty to present
evidence and persuade the zoning board that the proposed use will either conflict with the general
policy standards of the ordinance or will have a detrimental impact on the public health, safety and
welfare. Moreover, protestants must establish to a high degree of probability that the proposed
use will substantially and detrimentally affect the public health, safety and welfare.” Appeal of
Phila. Ctr. for Dev. Servs., Inc., 462 A.2d 962, 965-66 (Pa. Cmwlth. 1983) (citations omitted).
19
Evidence of record indicates that the Property is not entirely vacant. See, e.g., Transcript
of Testimony, 9/17/20 at 26, R.R. at 76a (testimony on behalf of Laurel regarding “an existing
structure located” on the northern side of the Property and the proposed demolition of a home
elsewhere on the Property); see also F.F. 5 (stating that six of the parcels contain structures).
23
additional evidence or to remand the matter to the Board to render “[f]indings and
conclusions” regarding the “‘objective’ standards in the ordinance pertaining to
applicant’s special exception request”).20
IV. Conclusion
For the above-stated reasons, the September 15, 2021 order of the trial
court is vacated, and this matter is remanded to the trial court with instructions to
remand to the Board to take additional evidence, if necessary, and to render a
decision in accordance with the foregoing opinion.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
20
Polish Hill does not specifically challenge the trial court’s affirmance of the Board’s
approval of a special exception for construction of single-family attached residential dwellings
following re-subdivision of the Property. Nevertheless, we find that, although raised in the context
of its argument that Laurel’s proposed consolidation and re-subdivision of the Property would
forfeit any protections enjoyed by lawful nonconforming lots on the Property, Polish Hill’s
invocation of the merger doctrine directly implicates Laurel’s special exception request. See Price,
569 A.2d at 1035 (noting “that special exception entitlements can run with the land as long as
owners take no affirmative action to change the separate and distinct character of a nonconforming
lot,” and affirming the Board’s conclusion “that the [the prior owners’] joint ownership of the lots,
and [the present owner’s] subsequent use of the two lots as one lot, in apparent conformity with
the zoning ordinance, caused a merger of the lots, thus precluding him from obtaining the benefit
of the special exception provision”).
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Polish Hill Civic Association, :
Appellant :
:
v. :
:
City of Pittsburgh Zoning Board of : No. 1129 C.D. 2021
Adjustment and Laurel Communities :
ORDER
AND NOW, this 8th day of November, 2022, the September 15, 2021
order of the Allegheny County Court of Common Pleas (trial court) is VACATED.
This matter is remanded to the trial court with instructions to remand to the City of
Pittsburgh Zoning Board of Adjustment to take further evidence, if necessary, and
to render a decision in accordance with the foregoing opinion.
Jurisdiction relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482221/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00687-CV
SEA WORLD OF TEXAS, LLC
Appellant
v.
Renada Mathis, Perreal WOODS and Joe Boston,
Appellees
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-17204
Honorable Rosie Alvarado, Judge Presiding
ORDER
The reporter’s record was due on October 24, 2022. On November 2, 2022, the court
reporter filed a notice of late record indicating the reporter’s record was not filed because
appellant had failed to pay or make arrangements to pay the reporter’s fee for preparing the
record and that appellant was not entitled to appeal without paying the fee.
It is therefore ORDERED that appellant provide written proof to this court no later than
November 14, 2022 that either (1) the reporter’s fee has been paid or arrangements have been
made to pay the reporter’s fee; or (2) appellant is entitled to appeal without paying the reporter’s
fee. If appellant fails to respond within the time provided, the court will consider only those
issues or points raised in appellant’s brief that do not require a reporter’s record for a decision.
See TEX. R. APP. P. 37.3(c).
_________________________________
Lori I. Valenzuela, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482222/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00624-CV
CITY OF LAREDO and City of Laredo Municipal Civil Service,
Appellants
v.
Tony H. MORENO,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2021-CVK-001767-D1
Honorable Jose A. Lopez, Judge Presiding
ORDER
On November 1, 2022, this court received appellants’ brief. The brief violates Rule 38 of
the Texas Rules of Appellate Procedure in that the statement of facts and the argument do not
contain any citations to the record. See TEX. R. APP. P. 38.1(g), (i). It is therefore ORDERED
that the brief filed by appellants is STRICKEN from our record. It is further ORDERED that
appellants must file an amended brief, in compliance with Rule 38.1 that includes appropriate
citations to the record. It is further ORDERED that appellant’s amended brief is due on
November 21, 2022, or this appeal will be dismissed for want of prosecution. See TEX. R. APP.
P. 38.9, 42.3.
_________________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482228/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
Nos. 04-22-00186-CV, 04-22-00187-CV, 04-22-00188-CV
IN THE MATTER OF M.A.A.
From the 436th District Court, Bexar County, Texas
Trial Court Nos. 2020JUV00120, 2020JUV01099A, 2020JUV00725
Honorable Lisa Jarrett, Judge Presiding
BEFORE CHIEF JUSTICE MARTINEZ, JUSTICE ALVAREZ, AND JUSTICE WATKINS
In accordance with this court’s opinion of this date, the March 10, 2022 order committing
M.A.A. to the Texas Juvenile Justice Department is AFFIRMED. It is ORDERED that no costs be
assessed against M.A.A. because she is indigent.
SIGNED November 2, 2022.
_____________________________
Beth Watkins, Justice | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482320/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Environmental Defense :
Foundation, :
Petitioner :
:
v. : No. 447 M.D. 2021
: Argued: September 12, 2022
Commonwealth of Pennsylvania; The :
Pennsylvania House of :
Representatives and Bryan Dean :
Cutler, in his official capacity as its :
Speaker; The Pennsylvania Senate :
and Jake Corman, in his official :
capacity as the Senate President :
Pro Tempore; and Tom Wolf, :
in his official capacity as Governor :
of Pennsylvania, :
Respondents :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: November 8, 2022
Before the Court are the preliminary objections of the Commonwealth
of Pennsylvania, the Governor of Pennsylvania, Tom Wolf, the Pennsylvania House
of Representatives and the Pennsylvania Senate (General Assembly), and House
Speaker Bryan Cutler and Senate President Pro Tempore Jake Corman (Legislative
Leadership) (collectively, Respondents) that were filed in response to the petition
for review of the Pennsylvania Environmental Defense Foundation (Foundation).
The petition for review seeks a declaratory judgment that the Snowmobile and All-
Terrain Vehicle Law1 and Section 1720-E(a) and (b) of The Fiscal Code2 violate the
Environmental Rights Amendment of the Pennsylvania Constitution. PA. CONST.
art. I, §27.3 Respondents, in separate responsive pleadings, assert, inter alia, that the
petition fails to state a claim upon which relief can be granted. We sustain the
demurrers.
Petition for Review
The Foundation is a non-profit organization incorporated under the
laws of Pennsylvania for the purpose of protecting and preserving the environmental
interests of its members in Pennsylvania. Members of the Foundation have filed
affidavits in support of the petition for review.
The petition for review identified the named Respondents as trustees of
a trust established by the Environmental Rights Amendment to the Pennsylvania
Constitution. State forests and state parks constitute the corpus of this trust. The
state forest in northcentral Pennsylvania, approximately 1.4 million acres, is “one of
the most extensive intact forest ecosystems in the eastern United States.”4 Petition
for Review (Petition) at 27, ¶61.
In 1971, the General Assembly enacted the Snowmobile Law5 to
require snowmobiles to be titled and registered and to authorize registered
1
75 Pa. C.S. §§7701-7753.
2
Act of April 9, 1929, P.L. 343, as amended, added by the Act of July 17, 2007, P.L. 141. Section
1720E-(a) was added by the Act of June 22, 2018, P.L. 281, and Section 1720E-(b) was added by
the Act of November 23, 2020, P.L. 114, 72 P.S. §1720-E(a), and (b).
3
The text of the Environmental Rights Amendment is set forth in the opinion, infra.
4
According to the Department of Conservation and Natural Resources, the state forest system
comprises 2.2 million acres of forestland in 50 of Pennsylvania’s 67 counties. See PENNSYLVANIA
DEPARTMENT OF CONSERVATION & NATURAL RESOURCES, PENNSYLVANIA STATE FOREST
DISTRICTS, https://www.dcnr.pa.gov/StateForests/Pages/default (last visited November 7, 2022).
5
Act of August 12, 1971, P.L. 299, No. 75 (Act 75). The Act of June 17, 1976, P.L. 162, No. 81
(Act 81) repealed Act 75 and reenacted the Snowmobile Law, codifying it in Title 75 of the Vehicle
2
snowmobiles to use trails in state forests developed for that purpose. In 1985, the
Snowmobile and All-Terrain Vehicle Law, 75 Pa. C.S. §§7701-7753, added all-
terrain vehicles (ATVs) to the titling and registration regime and authorized their
use on designated trails in state forests and state parks. Some ATV trails were placed
on the preexisting illegal trails. Petition at 8, ¶20.
In 1995, the Department of Environmental Resources was reorganized
into two agencies. The General Assembly created the Department of Conservation
and Natural Resources (Department or DCNR) to conserve state forests and state
parks and manage their use. In that regard, the Department is required to deposit all
revenue generated by the ATV program into restricted accounts and to use those
accounts for such ATV-related purposes as “registration and certificate of title
activities, training, education, enforcement activities, construction and maintenance
of snowmobile and ATV trails and acquisition of equipment, supplies and interests
in land[.]” Petition at 7, ¶17 (quoting 75 Pa. C.S. §7706(a)(2)).
On March 16, 2000, in response to the increased demand for more ATV
trails, the Secretary of Conservation and Natural Resources directed the
development of a five-year plan for their use in state forests. Petition at 9, ¶22. The
Department’s survey found that approximately 222 miles of ATV trails had been
approved for use in state forests, but over 2,500 miles of illegal trails had been
created by ATV users. Petition at 10, ¶24. In response, the Department adopted
enforcement policies in 2001 and 2003 to restrain ATV use in state forests. Under
pressure, however, the Department agreed to consider “strategic connector” trails in
state forests “in part to support local economic interest.” Petition at 10, 12, ¶¶25-26,
29. By 2015, the authorized ATV trails in the state forest had increased to 265 miles.
Code, 75 Pa. C.S. §§7701-7753. Act 81 was amended by the Act of July 11, 1985, P.L. 225, to
include all-terrain vehicles (ATVs).
3
The Department’s 2015 policy reiterated that except for “limited development of
connectors, as deemed appropriate by the Department[,]” the ATV trail system
should not be further expanded. Petition at 13, ¶33. That policy also stated that the
Department “does not consider state forest roads to be an option for connectors
between trails systems” due to visitor safety concerns. Petition at 14, ¶34 (emphasis
in original omitted).
One connector considered was a new ATV trail through the Sproul
State Forest District to connect the existing Bloody Skillet ATV Trail in northern
Centre County and the Whiskey Springs ATV Trail in western Clinton County.
Petition at 14, ¶35. The Department retained the Larson Design Group to evaluate
the feasibility of such a connection, but it was “unable to identify a connector ATV
route that would not impact on sensitive State Forest resources[.]” Petition at 15,
¶37.
In 2018, shortly before the Larson Design Group completed its study,
the General Assembly amended The Fiscal Code to add Section 1720-E(a). It states
as follows:
(a) Appropriations.--The following shall apply to appropriations
for the Department of Conservation and Natural Resources:
(1) The department shall, in consultation with the
Department of Transportation, develop, open and maintain
an ATV trail connecting the Whiskey Springs ATV trail
to the Blood Skillet ATV trail by utilizing existing State
roads and State forest roads by April 1, 2020.
(2) The department shall, in consultation with the
Department of Transportation, implement the full
Northcentral Pennsylvania ATV initiative and create a
network of ATV trails connecting Clinton County to the
New York State border by utilizing existing State roads
and State forest roads by April 1, 2024.
4
72 P.S. §1720-E(a) (emphasis added).
On May 10, 2019, the Secretary of Conservation and Natural Resources
advised the Governor that the Department could not meet the April 1, 2020, deadline
in Section 1720-E(a) because it lacked the necessary funding and had concerns for
“user safety, environmental consequences, user satisfaction and legality, among
others.” Petition at 17, ¶41. In response, on August 14, 2019, Senator Joe Scarnati,
then President Pro Tempore of the Senate, met with an ATV association as well as
representatives of the Department and the Department of Transportation
(PennDOT). The senator informed them that his office planned to discuss with the
Governor why the Department and PennDOT “were not complying with the
Governor’s directive to change their policies” to implement the law authorizing the
use of state roads to connect ATV trails. Petition at 17-18, ¶42.
On November 18, 2020, the Department issued a policy that stated,
inter alia, that the Department is “working to ensure that registered ATV owners
receive sufficient benefits for their registration funds while balancing the protection
of our natural resources and the needs of all recreational uses on state lands.”
Petition at 18, ¶43 (emphasis in original omitted). The policy recognized the
growing popularity of ATVs, which impacted “the core functions that state forest
lands were acquired to address” including “protection of clean water, clean air,
wildlife habitat, scenic beauty, rare and significant ecosystems, and wild plants.” Id.
The policy stated that the Department did not “consider state forest roads to be a
viable option for ATV connectors or trail systems mainly because they may not be
conducive for ATV riding.” Id.
On November 23, 2020, the General Assembly amended The Fiscal
Code to add Section 1720-E(b), which states, in pertinent part, as follows:
(b) Regional ATV pilot program for department lands.--
5
(1) The department shall establish a regional pilot program
for ATV use on department lands.
(2) As part of the pilot program, by December 31, 2020,
the department shall:
(i) evaluate department forest districts, including
Elk, Moshannon, Sproul, Susquehannock and
Tioga, for roads and trails to serve as potential
regional connectors and to provide local access or
serve as a trail complex for ATV use; and
(ii) perform an assessment regarding charging fees
for access to the department ATV pilot area.
****
(5) The department shall provide access to the department
ATV pilot area for the 2021 summer ATV riding season
from the Friday before Memorial Day through the last full
weekend in September, in addition to an extended season
to be determined by the department based on local
conditions.
72 P.S. §1720-E(b)(1)-(2), (5).
To comply with Section 1720-E(b) of The Fiscal Code, the Department
developed the 2021 ATV Regional Connector Trail Pilot (2021 ATV Pilot) on 59
miles of ATV trails (45.4 miles of existing trails and 13.6 miles of new trails). The
2021 ATV Pilot “reflects plans for an initial phase of a potential larger project, plans
for which will be submitted later. In future years the trail network may be expanded.
Any expansions of the system will be covered by subsequent SFERs.”6 Petition at
20, ¶46 (citing Exhibit N) (emphasis in original omitted). In conjunction with the
2021 ATV Pilot, the Department’s Bureau of Forestry did an environmental
assessment of the impact of the increased ATV use on erosion and sedimentation;
water quality; state forest roads; and the risk of fuel spills. Petition at 20-21, ¶48.
6
“SFERs” stands for State Forest Environmental Reviews.
6
The petition avers that the ATV trails, which are 12 feet wide to allow
passing in the opposite direction, “fragment the forest, compact the soil, concentrate
water flow causing erosion and sedimentation, and degrade high quality and
exceptional value headwater stream.” Petition at 27, ¶63. It further avers that ATV
use “generates dust and destroys habitats for sensitive species in wetlands and vernal
pools[,]” and “[e]ven more extensive impacts result from illegal ATV use of the
State Forest beyond designated ATV trails[.]” Petition at 27, ¶¶63-64. Finally,
ATVs are “loud with a noise level more akin to heavy industrial equipment[.]”
Petition at 28, ¶65. The petition avers that state forest district managers do not have
the staff and resources necessary to inventory and remedy the degradation of the
state forest by ATV use. Petition at 29, ¶68. The petition avers that the challenged
statutes have forced the Department to violate its constitutional duty to “conserve
and maintain the public natural resources.” Petition at 30, ¶70.
Based on these allegations, the petition for review seeks a judgment that
declares
the following legislative acts and actions taken pursuant to those
acts are unconstitutional under the [Environmental Rights
Amendment] and that the Respondents violated their
constitutional duties as trustees under the [Environmental Rights
Amendment] in mandating them:
(a) The legislatively forced use of ATVs on our State Forest
and State Parks by the provisions in the Snowmobile and
ATV Law that require DCNR to title and register ATVs
within the Commonwealth, authorize the use of ATVs on
our State Forest and State Parks, and thus create the
expectation among ATV users that DCNR will use the
revenue generated by ATV titling and registration
activities to provide ATV trails for their use on our State
Forest and State Parks.
7
(b) The legislatively forced use of ATVs on our State Forest
and State Parks by Section 1720-E(a) of the Fiscal Code
enacted in 2018 that requires DCNR to develop, open and
maintain new ATV trails in the Sproul State Forest District
to connect the existing Whiskey Springs and Bloody
Skillet ATV trails, to authorize the use of State Forest
roads as part of this new ATV trail system, and to create a
network of ATV trails connecting Clinton County to the
New York State border.
(c) The legislatively forced use of ATVs on our State Forest
and State Parks by Section 1720-E(b) of the Fiscal Code
enacted in 2020 that requires DCNR to implement a
regional ATV connector trail pilot program during the
summer of 2021.
(d) The [2021 ATV Pilot] opened during the summer of 2021
to comply with Section 1720-E(b) of the Fiscal Code that
further expands ATV trails on our State Forest and State
Parks, thus increasing the use of our State Forest and State
Parks by ATVs.
Petition at 41-42, ¶82 (grammatical errors not corrected).
Preliminary Objections
The General Assembly has filed preliminary objections to the petition
for review asserting insufficient specificity to the pleading, untimeliness, and legal
insufficiency (demurrer). The Legislative Leadership has filed preliminary
objections in the nature of a demurrer. The Governor has filed preliminary
objections asserting misjoinder. The Commonwealth has filed preliminary
objections asserting untimeliness, a demurrer, and sovereign immunity.
In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the petition for review and any reasonable inferences
therefrom. Thomas v. Corbett, 90 A.3d 789, 794 (Pa. Cmwlth. 2014). “The Court,
however, is not bound by legal conclusions, unwarranted inferences from facts,
8
argumentative allegations, or expressions of opinion encompassed in the petition for
review.” Id. We may sustain preliminary objections where the law makes clear that
the petitioner cannot succeed on his claim, and we must resolve any doubt in favor
of the petitioner. Id.
I. Misjoinder
We begin with the Governor’s preliminary objection asserting
misjoinder.7 The Governor argues that he is not a proper party to this action merely
because he signed into law two of the challenged statutes. The Governor contends
that “the proper party in interest to a challenged law is the government official that
implements the law,” which is not the Governor. Governor Brief at 10.
In response, the Foundation argues that the Governor is a proper party
because he directed the Department to revoke the moratorium on new ATV trails in
state forest lands and the use of state forest roads to connect existing trails.
Foundation Brief at 56. The Foundation further contends that the Department “has
little choice” when “facing the mandate by the Governor to take an action that
degrades our State Forest and State Parks.” Id. at 57. These claims about the
Governor’s directives and mandates were not alleged in the petition for review and
cannot be considered.
The allegations that are included in the petition for review are oblique
and limited as to the Governor. One allegation states that on August 14, 2019,
7
Pennsylvania Rule of Civil Procedure 1028(a)(5) states:
(a) Preliminary objections may be filed by any party to any pleading and are limited
to the following grounds:
****
(5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of
a cause of action[.]
PA.R.Civ.P. 1028(a)(5).
9
Senator Joe Scarnati pledged to discuss with the Governor’s Office why the
Department and PennDOT “were not complying with the Governor’s directive to
change their policies [regarding use of roads for ATVs] as was signed into law.”
Petition at 17-18, ¶42 (emphasis added). Another allegation states that in 2020, the
Department’s policy office, described as “an extension of the Governor’s Policy
Office,” rescinded the ATV moratorium. Petition at 18, ¶43. These passing
references to the Governor are inadequate to demonstrate his responsibility for
legislation on ATV trails in state forests and parks.
The Governor is not a proper party merely because he signed into law
The Fiscal Code amendments that are alleged to violate the Environmental Rights
Amendment in this declaratory judgment action. See Phantom Fireworks
Showrooms, LLC v. Wolf, 198 A.3d 1205, 1217 (Pa. Cmwlth. 2018). Further, the
merits of the Foundation’s constitutional challenge can be decided without the
Governor’s participation. Pennsylvania State Education Association v. Department
of Education, 516 A.2d 1308, 1310 (Pa. Cmwlth. 1986) (holding that the Department
of Education’s involvement in the implementation of the tuition agreement in
question was “minimal” and that “meaningful relief can readily be afforded without
the inclusion of the Department in the instant matter”).
We sustain the Governor’s preliminary objection asserting misjoinder
under PA.R.Civ.P. 1028(a)(5).
II. Demurrer
Next, we address the preliminary objection of the remaining
Respondents that the petition for review fails to state a claim upon which relief may
be granted. The General Assembly, the Commonwealth, and the Legislative
Leadership assert that the allegations in the petition for review are inadequate to
10
overcome the presumed constitutionality of the statutes challenged by the
Foundation.
The General Assembly argues that on its face the Snowmobile and ATV
Law demonstrates a “reasonable legislative attempt to limit and control unauthorized
ATV riding and hence limit environmental harm.” General Assembly Brief at 29.
In 1985, challenges raised under the Environmental Rights Amendment were
reviewed under the three-factor test set forth in Payne v. Kassab, 312 A.2d 86, 94
(Pa. Cmwlth. 1973), which is (1) whether the respondent complied with the
Commonwealth’s environmental laws; (2) whether the record showed a reasonable
effort to reduce the environmental incursion to a minimum; and (3) whether the
environmental harm so clearly outweighed the benefits to be derived so that allowing
the action would be an abuse of discretion. Id. The General Assembly argues that
the Snowmobile and ATV Law should be reviewed under the Payne test, which was
in effect when the statute was enacted, and not under the test announced in
Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911
(Pa. 2017) (PEDF II).8 Even so, the Snowmobile and ATV Law meets the PEDF II
standard because it reflects a “reasonably balanced legislative effort to channel and
control growing and difficult-to-manage ATV traffic.” General Assembly Brief at
31. As explained in Robinson Township, Washington County v. Commonwealth, 83
A.3d 901, 953 (Pa. 2013), the Environmental Rights Amendment prohibits a
government act that “unreasonably causes actual or likely deterioration” of public
natural resources. Further, “Section 27 rights belong to all of the People,” including
those who “choose to enjoy the Commonwealth’s natural, scenic, historic, and
8
In PEDF II, the Pennsylvania Supreme Court reversed this Court’s decision in Pennsylvania
Environmental Defense Foundation v. Commonwealth, 108 A.3d 140 (Pa. Cmwlth. 2015) (PEDF
I).
11
esthetic values by way of [an] ATV.” General Assembly Brief at 31. The General
Assembly has to balance these diverse interests, and it did so in the Snowmobile and
ATV Law. The General Assembly does not have to make “specific Section 27
findings before passing its enactments.” General Assembly Brief at 27 (citing
Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677, 701 (Pa.
Cmwlth. 2018)).
With respect to the 2018 and 2020 amendments to The Fiscal Code, the
General Assembly argues that the 2018 amendment directs the Department to
develop ATV trails “by utilizing existing State roads and State forest roads;” new
trail construction is not required. Section 1720-E(a) of The Fiscal Code, 72 P.S.
§1720-E(a) (emphasis added). The 2020 amendment calls for an ATV “pilot
program” that is experimental, not permanent, and gives the Department flexibility
to address environmental concerns that arise in the course of implementing the pilot
program. The 2020 amendment directs the Department to “perform outreach to
affected communities and stakeholders,” which includes environmental groups, such
as the Foundation. 72 P.S. §1720-E(b)(3)(ii). It also requires the Department to
collect fees from pilot program users and deposit them into the restricted account to
fund “ATV activities, enforcement and maintenance on department lands.” 72 P.S.
§1720-E(b)(8) (emphasis added). Finally, the 2020 amendment directs the
Department to “monitor the use, enforcement, maintenance needs and any associated
impacts to State Forest land resources” and submit a report to the legislature. 72
P.S. §1720-E(b)(9). In short, the 2018 and 2020 amendments to The Fiscal Code
“reasonably account for the environmental features of the affected locale” and, thus,
satisfy the Environmental Rights Amendment. General Assembly Brief at 34
(quoting Murrysville Watch Committee v. Municipality of Murrysville Zoning
12
Hearing Board (Pa. Cmwlth., No. 579 C.D. 2020, filed January 24, 2022), slip op.
at 22 (unreported),9 appeal denied, __ A.3d __ (Pa., No. 56 WAL 2022, filed August
10, 2022) (emphasis added)).
The Commonwealth makes arguments in support of a demurrer that are
substantially the same as those of the General Assembly.
In support of its demurrer, the Legislative Leadership notes that the
petition for review recites that the 2021 ATV Pilot program is sited entirely on
existing roads and trails on state forest lands. Legislative Leadership Brief at 25.
Because The Fiscal Code amendments “maximiz[e] the use of existing resources
rather than using new ones,” they meet the “ordinary prudence” standard by which
a trustee’s actions are evaluated under the Environmental Rights Amendment.
Legislative Leadership Brief at 18. Likewise, the Snowmobile and ATV Law
satisfies the constitutional standard of ordinary prudence announced in PEDF II.10
Contrary to the Foundation’s assertion, the legislature need not defer to an agency’s
opinion “on the merits” of proposed legislation. Legislative Leadership Brief at 20.
Further, the Environmental Rights Amendment does not prohibit normal and
customary outdoor recreational use of a public resource. Indeed, at the time of the
adoption of the Environmental Rights Amendment, the settlors of the public trust
were aware that some beneficiaries “chose to exercise their rights through the use of
mechanical equipment” and, thus, were developing trails for snowmobiles. Id. at
29.
9
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent.
10
Notably, the Snowmobile and ATV Law was enacted in 1971 before the service of either the
House Speaker or the Senate President Pro Tempore in the General Assembly.
13
The Foundation responds that its petition for review states a claim. The
petition challenges the statutes’ authorization of “ATV use” in state forests and state
parks because “such use degrades these constitutionally protected resources.”
Foundation Brief at 22. The duty of Respondents to “conserve and maintain” is
antithetical to “the degradation, diminution and depletion” of our public natural
resources authorized by the challenged statutes. Id. at 36. The Foundation contends
that whether the level of environmental degradation authorized by the
unconstitutional statutes is “minimal” requires evidence and a factual finding. Id. at
29.
The Foundation argues that Frederick, 196 A.3d 677, and Murrysville
Watch Committee, No. 579 C.D. 2020, are inapposite. They involved a
constitutional challenge to a zoning ordinance that allowed oil and gas development
in all zoning districts, provided certain conditions were met. This case, by contrast,
involves the constitutionality of state statutes that have violated the trustee’s duties
with respect to public lands. Respondents’ claim that they have “balanced” the
protection of trust assets with the recreational interests of ATV riders is not enough
to escape judicial review. Foundation Brief at 19. The General Assembly in 1985
had a fiduciary duty as trustee to conserve and maintain the public natural resources
when, for the first time, it authorized the use of ATVs in state forests. Prior thereto,
ATVs were not allowed on state forest roads due to concerns for the ecology and
safety. Petition at 14, 18, ¶¶34, 43.
The Department, which is the General Assembly’s “co-trustee with
expertise in conserving and maintaining the public natural resources,” has repeatedly
issued reports and policy statements opposing ATV use on state forest roads or any
new trails on state forest land. Foundation Brief at 25; Petition at 10-12, ¶¶25-28.
14
The enactment of legislation mandating the 2021 ATV Pilot program was contrary
to the Department’s advice.
The Foundation argues that the challenged statutes violate the
legislature’s duty of loyalty and impartiality because they prioritize “the desires (not
the needs) of current ATV enthusiasts and local businesses and officials interested
in economic development[.]” Foundation Brief at 29. The duty of loyalty requires
a trustee to “administer the trust solely in the interest of the beneficiaries,” which
include future generations. PEDF II, 161 A.3d at 934. The petition’s averment that
the statutes in question have reduced the value of state parks and forests for current
and future generation beneficiaries is sufficient to state a claim under the
Environmental Rights Amendment.
The Foundation’s petition for review asserts that legislation that
authorizes any ATV and snowmobile use in state forests and state parks violates the
Pennsylvania Constitution. Here, the challenged statutes have authorized 265 (or
so) miles of trails on over 2 million acres of state forest lands. The Foundation seeks
a declaratory judgment that the Snowmobile and ATV Law and Sections 1720-E(a)
and 1720-E(b) of The Fiscal Code violate the Environmental Rights Amendment.11
In addressing the parties’ demurrer, we first consider the nature of the
Foundation’s constitutional challenge and whether it is a facial or “as-applied”
challenge. We conclude that it is the former.
11
A declaratory judgment is not granted as a matter of right. Ronald H. Clark, Inc. v. Township
of Hamilton, 562 A.2d 965, 968-69 (Pa. Cmwlth. 1989). Whether a court should grant a
declaratory judgment is a matter committed to the discretion of a court of original jurisdiction.
Gulnac by Gulnac v. South Butler County School District, 587 A.2d 699, 701 (Pa. 1991). See also
Declaratory Judgments Act, 42 Pa. C.S. §§7531-7541.
15
First, the petition for review did not name the Department, which is the
agency created by the legislature to enforce the challenged statutes. An as-applied
challenge “does not contend that a law is unconstitutional as written but that its
application to a particular person under particular circumstances deprived that
person of a constitutional right[.]” Johnson v. Allegheny Intermediate Unit, 59 A.3d
10, 16 (Pa. Cmwlth. 2012) (quoting Commonwealth v. Brown, 26 A.3d 485, 493 (Pa.
Super. 2011)). To present an as-applied challenge, it is necessary to name the agency
responsible for the enforcement of the statute in question that has implemented the
statute in an unconstitutional manner. The Foundation’s petition does not name the
Department, let alone assert that it has misapplied the statutes in question. Rather,
the pleading contends that the Department has been “legislatively forced” to accept
ATV use in state forests.
Second, the petition for review named the General Assembly and its
leadership as respondents. The legislative branch of the government has no role to
play in the implementation and enforcement of the laws it enacts. It is responsible
only for the language of its legislation.
We conclude that the Foundation’s pleading has lodged a facial
challenge to the statutes in question. A facial challenge “tests a law’s
constitutionality based on its text alone and does not consider the facts or
circumstances of a particular case.” Johnson, 59 A.3d at 16 (quoting Brown, 26
A.3d at 493). “A statute is facially unconstitutional only where no set of
circumstances exist[s] under which the statute would be valid.” PEDF II, 161 A.3d
at 938 n.31 (quoting Clifton v. Allegheny County, 969 A.2d 1197, 1222 (Pa. 2009)).
“In determining whether a statute is facially invalid, courts do not look beyond the
statute’s explicit requirements or speculate about hypothetical or imaginary cases.”
16
Germantown Cab Company v. Philadelphia Parking Authority, 206 A.3d 1030, 1041
(Pa. 2019). As these standards plainly reflect, “facial challenges are generally
disfavored,” Clifton, 969 A.2d at 1223 n.37, and they are “the most difficult
challenge to mount successfully[.]” Commonwealth v. Pownall, 278 A.3d 885, 905
(Pa. 2022) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
In PEDF II, 161 A.3d 911, the Foundation, the petitioner in this case,
challenged the constitutionality of several provisions of The Fiscal Code that
directed revenue generated by the lease of state forest and park lands for oil and gas
extraction to be used to fund state government operations. The Foundation sought a
declaratory judgment that these provisions of The Fiscal Code violated the
Environmental Rights Amendment because they allowed public trust assets to be
used for purposes other than preservation of these public assets. The Supreme Court
held that some of the challenged Fiscal Code provisions, on their face, violated the
Environmental Rights Amendment.
In so holding, the Supreme Court analyzed each sentence of the
Environmental Rights Amendment, which states as follows:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of
the environment. Pennsylvania’s public natural resources are the
common property of all the people, including generations yet to
come. As trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the people.
PA. CONST. art. I, §27. The Court explained that the first sentence is “a prohibitory
clause declaring the right of citizens to clean air and pure water, and . . . the
preservation of natural, scenic, historic and esthetic values of the environment.”
PEDF II, 161 A.3d at 931. In other words, it prohibits the Commonwealth from
acting in a way that “unreasonably impairs” citizens’ rights to a clean environment.
17
Id. The second sentence confers ownership of the state’s “public natural resources”
upon Pennsylvania’s citizens, including future generations. Id. The third sentence
makes the natural resources the corpus of a public trust and names the
Commonwealth as trustee and its citizens as the beneficiaries of the trust. Id. at 931-
32. The Supreme Court held that “[a]s a fiduciary, the Commonwealth has a duty
to act toward the corpus of the trust–the public natural resources–with prudence,
loyalty, and impartiality.” Id. at 932 (quoting Robinson Township, 83 A.3d at 957)
(emphasis added). This involves two duties: “a duty to prohibit the degradation,
diminution, and depletion” of our public resources and a duty to “act affirmatively
via legislative action to protect the environment.” PEDF II, 161 A.3d at 933.
Finding the minerals under state parks and forests to be “part of the
corpus of Pennsylvania’s environmental public trust,” id. at 916, the Court held that
the Commonwealth serves as a trustee, rather than as a proprietor, of its “public
natural resources.” Id. at 935. The royalties generated from the lease of state land
for oil and gas extraction must be committed to “furthering the purposes, rights, and
protections” of the Environmental Rights Amendment. Id. at 928 (quotation
omitted). The Supreme Court ruled that Sections 1602-E and 1603-E of The Fiscal
Code12 were facially unconstitutional because they allocated the royalties from the
sale of oil and gas to the General Fund, i.e., to a “non-trust purpose.” PEDF II, 161
A.3d at 938-39.13
12
Added by the Act of October 9, 2009, P.L. 537, as amended, 72 P.S. §§1602-E, 1603-E.
13
The Supreme Court remanded the matter to the Commonwealth Court to decide whether bonuses
and rental payments deposited into the General Fund to pay for government operations in 2009
and 2010 pursuant to two fiscal enactments were part of the trust corpus. On July 29, 2019, this
Court held that bonuses and rental payments were not for the severance of natural resources and,
therefore, not part of the trust corpus. This Court held that Sections 1604-E and 1605-E of The
Fiscal Code, added by the Act of October 9, 2009, P.L. 537, and the Act of July 6, 2010, P.L. 279,
72 P.S. §§1604-E, 1605-E, and Section 1912 of the Supplemental General Appropriations Act of
18
In Frederick, 196 A.3d at 684-85, township residents appealed a zoning
hearing board’s denial of their substantive validity challenge to an ordinance that
allowed oil and gas operations in all zoning districts. The township residents argued,
inter alia, that the zoning ordinance violated the Environmental Rights Amendment
because placing an “industrial use,” such as an unconventional gas well, in
agricultural areas “degrades the local environment in which people live, work, and
recreate, including the public natural resources on which people rely.” Id. at 691
(quotation omitted). The residents argued, relying on PEDF II, that the township
breached its trustee duty in the enactment of the zoning ordinance. The trial court
affirmed the zoning hearing board.
In affirming the trial court, we relied upon the Supreme Court’s
holdings in PEDF II and Robinson Township to hold that the township residents did
not prove that the zoning ordinance “unreasonably” impaired their rights under the
Environmental Rights Amendment. Frederick, 196 A.3d at 697. Credited expert
testimony proffered in the residents’ substantive validity challenge established that
there was a long history of oil and gas development safely coexisting with
agricultural uses in the township. Further, unconventional gas development would
help preserve the ability of landowners to continue farming, thereby advancing the
object of the Environmental Rights Amendment.
We further noted that balancing the interest of private property owners
with the public health, safety, and welfare of the community goes into the enactment
2009, were constitutional. Pennsylvania Environmental Defense Foundation v. Commonwealth,
214 A.3d 748, 751 (Pa. Cmwlth. 2019) (PEDF III). The Foundation appealed, and the Supreme
Court reversed. Pennsylvania Environmental Defense Foundation v. Commonwealth, 255 A.3d
289, 293 (Pa. 2021) (PEDF IV) (holding that revenue from upfront bonus payments, rentals, and
penalty interest for leases qualified as income generated by trust assets and could not be used for
non-trust purposes).
19
of any land use regulation. Id. at 693 n.29. Indeed, zoning legislation accounts for
the “natural, scenic, historic and esthetic values of the environment” by placing
compatible uses in the same zoning district, and it is axiomatic that a zoning
ordinance must balance the public interests of the community with the individual
due process rights of private property owners. Id. at 695 (quoting PA. CONST. art. I,
§27). As our Supreme Court explained in Robinson Township, the “‘Environmental
Rights Amendment does not call for a stagnant landscape’ or ‘for the derailment of
economic or social development’ or ‘for a sacrifice of other fundamental values.’”
Frederick, 196 A.3d at 694 (quoting Robinson Township, 83 A.3d at 953).
We concluded that courts must presume that the township
“‘investigated the question and ascertained what is best for . . . the good of the
people’ when it enacted [the zoning ordinance in question].” Frederick, 196 A.3d
at 701 (quoting Khan v. State Board of Auctioneer Examiners, 842 A.2d 936, 947
(Pa. 2004)). Whether the zoning ordinance “is wise or whether it is [the] best means
to achieve the desired result are matters left to the legislature, and not the courts.”
Frederick, 196 A.3d at 701 (quoting Khan, 842 A.2d at 947).
To succeed in its facial challenge, the Foundation must show that the
statutes in question cannot be valid under any set of circumstances. Clifton, 969
A.2d at 1222. For example, a statute that authorized unrestricted and unlicensed
snowmobile and ATV use in all state forests and state parks without regard to the
particular locale may be facially invalid. However, that is not the statutory scheme
before the Court. Rather, the statutes limit the development of snowmobile and ATV
20
trails and have set up a regulatory regime to enforce those limits. On their face, they
meet the standards set forth in PEDF II and Robinson Township.14
The Environmental Rights Amendment requires the trustee to weigh
and balance reasonable use of public lands, and we must presume that, here, the
legislature investigated and balanced the recreational use of state forests and parks
with their environmental protection and preservation. The Environmental Rights
Amendment does not require a “stagnant landscape” or the “sacrifice of other
fundamental values,” such as recreation with mechanical devices. Robinson
Township, 83 A.3d at 953; Frederick, 196 A.3d at 694. Further, the General
Assembly is not required to document “some sort of pre-action environmental
impact analysis” as a pre-condition to enactment of a statute, such as the
Snowmobile and ATV Law. Frederick, 196 A.3d at 700 (quotation omitted). It is
presumed that the General Assembly enacts legislation that conforms to any and all
applicable constitutional mandates.
The Foundation’s pleading does not state facts to show that the statutes,
on their face, unreasonably impair “the environmental features of the affected
locale.” Robinson Township, 83 A.3d at 953. The factual averments are numerous
but, ultimately, conclusory and contradictory.
The pleading avers, for example, that ATV trails degrade the
environment. It avers that ATVs are noisy and that their 12-foot-wide trails
“fragment the forest, compact the soil, [and] concentrate water flow.” Petition at 27,
¶63. This broad and conclusory allegation also applies to every paved road that
14
We reject the General Assembly’s suggestion that the Snowmobile and ATV Law should be
evaluated under Payne, 312 A.2d 86, which governed application of the Environmental Rights
Amendment at the time the 1985 statute was enacted. PEDF II refined our understanding of the
Environmental Rights Amendment and overruled Payne. The principles in PEDF II govern the
Snowmobile and ATV Law.
21
passes through a state forest. Wider than 12 feet, these roads also fragment the forest
and compact the soil. Indeed, footfalls compact the soil. The pleading challenges
neither roads nor hiking trails. The pleading does not identify a particular locale
where an ATV trail is inappropriate; rather, it asserts that any ATV trail, regardless
of its location in an area of 2.2 million acres, violates the Environmental Rights
Amendment.
The petition for review asserts that the statutes have “legislatively
mandated” the Department to violate its duties as trustee. However, the petition’s
allegations contradict this proposition repeatedly. It states, for example, that the
Department issued a policy that balances “the protection of our natural resources and
the needs of all recreational uses on state lands.” Petition at 18, ¶43. The petition
states that the Department will not undertake any expansion of the ATV trail system
without “subsequent SFERs.” Petition at 20, ¶46. With regard to the 2021 ATV
Pilot, the Department did an assessment of ATV use on erosion, water quality, and
risk of oil spills. Petition at 20-21, ¶48. These allegations all contradict the
Foundation’s claim that the legislative mandates it challenges have robbed the
Department of the ability to protect and preserve our natural resources.
The petition for review seeks an absolute prohibition against the use of
state forests and parks for ATV use. However, the petition for review also alleges
that the absolute prohibition did not work because miles of illegal trails were created
even before the passage of the Snowmobile and ATV Law. Petition at 8, ¶20.
The statutes in question limit the development of snowmobile and ATV
trails and have set up a regulatory regime to enforce those limits. The 2020
amendment to The Fiscal Code directs the Department to collect fees from the 2021
ATV Pilot program users and deposit them into the restricted account to fund “ATV
22
activities, enforcement and maintenance on department lands[.]” 72 P.S. §1720-
E(b)(8) (emphasis added). The 2020 amendment also directs the Department to
“monitor the use, enforcement, maintenance needs and any associated impacts to
State Forest land resources” and submit a report to the legislature. 72 P.S. §1720-
E(b)(9). Although the pleading avers that the challenged statutes were enacted to
advance “local economic interest,” Petition at 12, ¶29, economic interests are not
anathema to the Environmental Rights Amendment. Robinson Township, 83 A.3d
at 953. The plain language of the challenged statutes demonstrates the “prudence,
loyalty and impartiality” required by the Environmental Rights Amendment. PEDF
II, 161 A.3d at 931.
That the Foundation and even the Department staff may disagree with
the balancing done by the legislature in allowing, but regulating, ATV use does not
establish that the statutory scheme is unconstitutional on its face. The General
Assembly cannot delegate its legislative power to an executive branch agency. The
Foundation’s proposition that the General Assembly must “seek and follow the
advice” of the Department before passing laws that have environmental impact, if
adopted, would violate the principle of separation of powers. Foundation Brief at
28. “The legislative power in its most pristine form is the power to make, alter and
repeal laws[,]” and “[i]t is axiomatic that the Legislature cannot
constitutionally delegate the power to make law to any other branch of government
or to any other body or authority.” Blackwell v. State Ethics Commission, 567 A.2d
630, 636 (Pa. 1989) (emphasis in original) (quotations omitted). The Foundation
seems not to appreciate that the Department is a creature of statute subject to the
legislature’s directives.
23
In short, the petition for review does not allege facts to show that
Respondents have acted in a way that “unreasonably impair[s]” citizens’ rights
protected by the Environmental Rights Amendment. PEDF II, 161 A.3d at 931;
Frederick, 196 A.3d at 697. The challenged statutes have set up a regulatory regime
to limit and manage snowmobile and ATV trails, and courts must presume that the
legislature has “investigated the question and ascertained what is best for . . . the
good of the people[]” when it enacted the statutes in question. Frederick, 196 A.3d
at 701 (quoting Khan, 842 A.2d at 947). The petition for review does not support
the claim that, on their face, the statutes show no respect for the Environmental
Rights Amendment. PEDF II, 161 A.3d at 938 n.31; Clifton, 969 A.2d at 1222. The
Foundation’s claim, if successful, would eliminate the balancing of recreational
interests with the preservation of the forests, which deviates from Robinson
Township, 83 A.3d at 953, and Frederick, 196 A.3d at 694.
For these reasons, we conclude that the petition for review fails to state
a claim under the Environmental Rights Amendment upon which relief may be
granted. We thus sustain Respondents’ preliminary objections in the nature of a
demurrer.
Conclusion
Based on the foregoing, we sustain the preliminary objections asserting
misjoinder under PA.R.Civ.P. 1028(a)(5) and demurrer under PA.R.Civ.P.
1028(a)(4) and dismiss the Foundation’s petition for review.15 Given this
15
Because we dismiss the petition for review based upon misjoinder and demurrer, we need not
address Respondents’ other preliminary objections.
24
conclusion, the Foundation should consider withdrawing its “Addendum” to this
petition for review and refiling it as a separate pleading.16
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Covey did not participate in the decision in this case.
Judge Wallace did not participate in the decision in this case.
16
On August 29, 2022, the Court granted the Foundation’s application to amend its petition for
review with an addendum. The addendum adds the Pennsylvania Department of Conservation and
Natural Resources (Department) and Cindy Adams Dunn, in her official capacity as the Secretary
of Conservation and Natural Resources, as Respondents and asserts that the Department’s actions
related to the Renovo ATV Connector Trail violated its trustee duties under the Environmental
Rights Amendment, PA. CONST. art. I, §27. By order dated September 8, 2022, the Court stayed
responsive pleadings to the petition addendum pending disposition of the preliminary objections.
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Environmental Defense :
Foundation, :
Petitioner :
:
v. : No. 447 M.D. 2021
:
Commonwealth of Pennsylvania; The :
Pennsylvania House of :
Representatives and Bryan Dean :
Cutler, in his official capacity as its :
Speaker; The Pennsylvania Senate :
and Jake Corman, in his official :
capacity as the Senate President :
Pro Tempore; and Tom Wolf, :
in his official capacity as Governor :
of Pennsylvania, :
Respondents :
ORDER
AND NOW, this 8th day of November, 2022, the preliminary objection
asserting misjoinder raised by Tom Wolf, in his official capacity as Governor of
Pennsylvania, is SUSTAINED. The preliminary objections in the nature of a
demurrer raised by the Commonwealth of Pennsylvania, The Pennsylvania House
of Representatives and Bryan Dean Cutler, in his official capacity as its Speaker, and
The Pennsylvania Senate and Jake Corman, in his official capacity as the Senate
President Pro Tempore, are SUSTAINED. The Pennsylvania Environmental
Defense Foundation’s Petition for Review is DISMISSED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482321/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Berks Area Regional
Transportation Authority, :
:
Petitioner :
:
v. : No. 1058 C.D. 2021
: Submitted: February 18, 2022
Lena Katzenmoyer :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 8, 2022
The Berks Area Regional Transportation Authority, commonly referred
to as “BARTA” (Employer), petitions for review of an order of the Workers’
Compensation Appeal Board (Board) that affirmed an order of a Workers’
Compensation Judge (WCJ) granting Lena Katzenmoyer (Claimant) total disability
benefits under the Workers’ Compensation Act (Act)1 for a psychological injury in
the form of post-traumatic stress disorder (PTSD), that resulted from an abnormal
working condition. Employer contends that the WCJ and the Board erred by finding
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
that Claimant met the required burden of proof that she sustained a compensable
psychological injury as a result of two incidents occurring within a two-month period
where Claimant’s bus was struck by bullets, constituting an abnormal working
condition. Employer argues that the WCJ mischaracterized certain evidence of
record regarding these two incidents to support the finding of an abnormal working
condition. Upon review, we affirm.
The relevant facts as found by the WCJ are as follows. Claimant
worked as a bus driver for Employer since 2014. On October 19, 2018, Claimant
was driving when she heard and saw shots being fired in her rear view mirror
(October incident). Reproduced Record (R.R.) at 135a. Claimant saw people
running up the sidewalk and screaming. Id. Claimant saw the offender shoot several
times behind her bus, and she later learned that the offender shot and killed the
victim. Id. Her bus was struck twice by bullets. Id. Claimant returned to the bus
depot, and she informed her supervisor, Sharon Stephens, about the incident the next
day. Id. Claimant cried after the incident, but she returned to work because she
thought she could deal with her symptoms. Id. Claimant did not seek treatment after
the October incident. Id.
Two months later, on December 19, 2018, there was a second incident
involving Claimant’s bus being shot at and struck by bullets (December incident).
R.R. at 135a. Claimant was driving when a big window on the passenger side of the
bus was “shot out.” Id. The driver’s side windshield above Claimant’s head was
also struck with bullets. Id. Claimant pulled over and called 911. Id. Claimant
refused to drive the bus back to the depot, and her supervisor drove the bus. Id.
After the December incident, Claimant began to experience symptoms including
sensitivity to reflections, lights, sounds, and unexpected events. Id. Claimant
2
informed her supervisor about the symptoms that she was experiencing and that she
felt she should not be driving a bus. Id. Claimant sought treatment on January 2,
2019, and began to receive therapy. Id. at 136a. Claimant has not returned to work
since January 4, 2019. Id. Claimant continues to receive therapy for symptoms
including nightmares, panic attacks, an extreme startle response, lack of
concentration, and fears of being around people. Id. Claimant was not aware of any
other incidents where shots were fired at buses. Id. Claimant received training
regarding dealing with vehicles being struck by bullets or other projectiles, but she
did not recall the training. Id. Claimant’s bus was struck by bullets once before, in
2016, but she did not have long-term effects from that incident. Id. The October
incident was different because Claimant saw a life being taken. Id. Claimant was
in fear of serious bodily injury and felt her life was threatened in both incidents. Id.
On December 5, 2019, Claimant filed two claim petitions, one alleging
psychological injury from the October incident, and one alleging psychological
injury from the December incident, both of which Employer denied. R.R. at 1a-10a,
135a. Hearings were held before the WCJ at which Claimant presented her own
testimony and the deposition testimony from Dr. Christopher Royer (Claimant’s
expert). Employer presented deposition testimony from Ms. Stephens, its manager
of training and safety (manager), and the deposition testimony from Dr. Robert
DeSilverio (Employer’s expert).
Claimant’s expert, a licensed psychologist, opined that Claimant
suffered from PTSD based on the October and December incidents. R.R. at 137a.
Claimant’s expert opined that Claimant met the criteria for PTSD because she
experienced or witnessed two events of either actual or threatened death or serious
injury. Id. Claimant’s expert opined that Claimant was unable to return to work
3
because she still had a lot of symptoms, including that “she is cautious, anxious, and
distrustful. She has anticipatory anxiety.” Id. Claimant’s expert opined that “[i]t is
unsafe for her to be in that mindset. She has a lack of sleep and reflexive reactions
which would be a problem while driving a bus.” Id.
Employer’s manager testified, in relevant part, regarding Employer’s
training for its drivers, including Claimant. Manager worked with Employer since
2004, and as of 2014, worked as Employer’s manager of safety and training. R.R.
at 138a. Manager testified that Employer provided training on how employees
should respond if various projectiles hit a bus. Id. Manager testified that in the last
three- to four-year period, “there were more busted windows by pellet guns, rocks
thrown, and various types of gunshots.” Id.
Employer’s expert, a board-certified psychiatrist and neurologist,
opined that Claimant did not suffer from PTSD, because the October incident, the
December incident, or both incidents together “do not qualify as traumatic events.”
R.R. at 137a. Employer’s expert opined that the October incident, where Claimant
“witnessed a gunshot from a parked car behind her bus,” was not enough to trigger
PTSD “because [Claimant] was not in danger herself.” Id. at 138a. Employer’s
expert opined that Claimant’s lack of improvement over time “is a subjective
worsening of someone who does not want to go back to work.” Id. Employer’s
expert opined that he found “the DSM-5 criteria for [PTSD] to have been watered
down for social and political reasons,” and that it was incumbent on Employer’s
expert “to stand for something.” Id. DSM-5 refers to the Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition.
In her decision dated November 25, 2020, the WCJ granted Claimant’s
claim petitions, concluding that, “[b]ased on the combination of events, Claimant
4
sustained a work[-]related injury of PTSD on December 19, 2018 [the December
incident], resulting in a disability commencing January 4, 2019, [Claimant’s last day
of work,] and ongoing.” R.R. at 139a. The WCJ found Claimant’s testimony to be
credible, stating:
There is no dispute that the two shooting events occurred.
While Employer may argue, and [Employer’s expert] may
advocate that a shooting at or near a public bus may not be
an abnormal working condition, the undersigned finds that
two such incidents within eight weeks of each other,
particularly where the windshield was shot just over
Claimant’s head, compounded with a shooting two years
prior, is an abnormal working condition.
R.R. at 138a.
The WCJ found the testimony of Employer’s manager credible, “but
insufficient to establish that Claimant’s experiences were other than abnormal
working conditions.” R.R. at 138a. The WCJ found that Employer’s manager
asserted that in the past three to four years, there had been
more busted windows, but provided no information as to
whether they were busted when the driver was in the bus,
or any definitive statistics about how many gunshots were
fired at buses, and particularly how many repeated events
were experienced by one driver.
Id.
The WCJ further found the opinions of Claimant’s expert “more
competent and credible” than those of Employer’s expert. R.R. at 138a. The WCJ
found that Employer’s expert downplayed the value of certain tests performed by
Claimant’s expert, instead “preferring his skills at divining truth via eye contact.”
Id. The WCJ also found that Employer’s expert’s testimony was not “professionally
based, and is based on his own admission that it is incumbent upon him to take both
a social and political stand against the ‘watering down of the DSM-5.’” Id.
5
Employer appealed the WCJ’s decision to the Board, on the basis that
Claimant failed to prove that she suffered from PTSD and that her mental disability
was caused by abnormal working conditions. The Board affirmed the WCJ in a
decision dated August 31, 2021. R.R. at 141a-151a. The Board reviewed Claimant’s
testimony regarding the October and December incidents, noting that Claimant’s
problems “got worse after the second incident[, the December incident,] to the point
where she could not go places, such as eating out or going to the drug store, because
she did not trust other people and loud noises set her off.” Id. at 146a. The Board
also reviewed the testimony of Employer’s manager, specifically involving bus
driver training. Manager testified that
Claimant underwent new hire training as a driver that
included various topics, including a classroom portion that
covers bus fires, medical emergencies, and projectiles
being thrown at the bus. It specifically went into various
types of vandalism that can occur including paint balls,
pellet guns, rocks, and bullets. [Manager] testified they
have had an increase in the number of busted bus windows
over a period of a couple years.
Id. (internal citations omitted).
The Board summarized the testimony of Claimant’s expert, Employer’s
expert, and the WCJ’s credibility determinations, noting that “determinations of
credibility and weight to be accorded evidence are the prerogative of the WCJ, not
this Board.” R.R. at 148a. The Board concluded that the WCJ did not err “in finding
that Claimant had sustained a work-related psychological injury as a result of
abnormal working conditions.” Id. The Board explained that Claimant met her
burden of establishing that she had a psychological condition caused by her
employment through the unequivocal medical testimony of Claimant’s expert, as
credited by the WCJ over the testimony of Employer’s expert. Id. The Board also
6
concluded that Claimant met her burden of proving that her psychological injury was
a result of abnormal working conditions, as required by the applicable mental-mental
standard. Id. at 149a. In evaluating the October incident, the Board stated:
Instantly, the WCJ found there were two specific
extraordinary events that occurred at work which caused
Claimant trauma and rose to the level of abnormal working
conditions. The first event occurred on October 19, 2018,
when Claimant witnessed a man in the street shooting,
including hitting her bus twice, and then murdering a
person in a car within her view. This was a traumatic event
that was outside the usual situation a bus driver would be
expected to experience. While [manager] testified that
drivers have a short classroom training on various
projectiles hitting the bus and vandalism, Claimant’s
situation was far more severe than merely vandalism or
rocks being thrown at the bus. Her bus was shot at and the
shooter murdered another person immediately afterwards,
while Claimant witnessed the event occur. We conclude
this situation rises to the level of an abnormal working
condition.
Id.
In evaluating the December incident, the Board stated:
The second event occurred on December 19, 2018, when
Claimant’s bus was shot at multiple times, blowing out the
passenger window and hitting the windshield within close
range of hitting her head. There were also other
passengers on the bus at the time who began to panic at the
situation, and Claimant was forced to flee the scene with
her bus and call the police. This again amounts to a[]
unique and unusual situation that would be unexpected for
a bus driver to experience. It was not mere vandalism but
actual gunfire being directed at a bus full of people,
shooting out a window and almost hitting Claimant in the
head if the windshield had not stopped the bullet. We
conclude this situation rises to the level of an abnormal
working condition.
R.R. at 150a.
7
The Board concluded that although each individual event could alone
rise to the level of an abnormal working condition, “the combination of the two
within two months of each other even more clearly establishes abnormal working
conditions.” R.R. at 150a. The Board explained that although “a city bus driver
could potentially experience events such as vandalism or projectiles being thrown at
the bus, these two events both were far more severe and were highly unusual and
traumatic, far outside what bus drivers would be expected to experience at their
jobs.” Id.
Employer then petitioned this Court for review.2 Employer did not seek
review of Claimant’s PTSD diagnosis and focused its arguments on the Board’s
alleged error in concluding that the two incidents constituted an abnormal working
condition.
In addition to the Court’s usual review in a workers’ compensation
appeal, when the matter involves a mental-mental injury, we must also consider
whether Claimant sustained her burden of proof that the mental injury she suffered
is something other than a subjective reaction to normal working conditions, i.e., that
Claimant’s mental injury is a result of abnormal working conditions. Payes v.
Workers’ Compensation Appeal Board (Pennsylvania State Police), 79 A.3d 543
(Pa. 2013); Pennsylvania Liquor Control Board v. Workers’ Compensation Appeal
Board (Kochanowicz), 108 A.3d 922 (Pa. Cmwlth. 2014).
2
Our scope of review in a workers’ compensation appeal is limited to determining whether
an error of law was committed, whether constitutional rights were violated, or whether necessary
findings of fact are supported by substantial evidence. Bloom v. Workmen’s Compensation Appeal
Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1318 n.4 (Pa. Cmwlth. 1996). Substantial
evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 612
A.2d 434, 436 (Pa. 1992).
8
In Payes, the Supreme Court held that a state police trooper sustained
his burden of proving that an abnormal working condition existed and that he was
entitled to benefits for a mental-mental injury3 when he accidentally struck and killed
a pedestrian with his police car, and attempted to revive her while attempting to
divert traffic from hitting him and the pedestrian. Payes, 79 A.3d at 556-57. As our
Supreme Court stated, the determination of whether Claimant’s mental injury is a
result of abnormal working conditions is a “mixed question of law and fact.” Id. at
549. Mental or psychic injuries are highly fact sensitive, and for the actual working
conditions to be considered abnormal, they must be considered in the context of
specific employment. Id. at 552. Such a fact-sensitive inquiry “‘requires deference
to the fact-finding functions of the WCJ,’” and, therefore, review of those factual
findings is limited to determining whether they are supported by substantial
evidence, and they may only be overturned “‘if they are arbitrary and capricious.
Thus, . . . appellate review of this question [is] a two-step process of reviewing the
factual findings and then the legal conclusion.’” Id. (quoting RAG (Cyprus) Emerald
Resources, L.P. v. Workers’ Compensation Appeal Board (Hopton), 912 A.2d 1278,
1284 n.6 (Pa. 2007)).
Here, Employer argues that the Board erred in describing the October
incident, and relying on its inaccurate description to support finding an abnormal
3
As the Supreme Court explained:
For purposes of determining compensation under the Act,
mental or psychic injuries are divided into three categories: mental-
mental, whereby a mental or psychic condition is caused by a
psychic stimulus; mental-physical, whereby psychic injury
manifests itself in some physical form; and physical-mental,
whereby a physical injury results in psychic distress.
Payes, 79 A.3d at 550. Here, Claimant is asserting a mental-mental injury.
9
working condition. Employer objects to the Board’s characterization of the October
incident as one where “Claimant witnessed a man in the street shooting, including
hitting her bus twice, and then murdering a person in a car within her view.” R.R.
at 149a. Specifically, Employer argues that Claimant did not witness the October
incident as the Board describes, because Claimant testified that she heard, but did
not see, the offender fire a gun behind her bus; Claimant did not learn until the next
day that the offender killed someone; and Claimant did not actually view the bullet
holes in her bus. Claimant responds that the Board did not mischaracterize the
October incident, when Claimant testified she heard and saw seven gunshots, which
she described “like fire.” Id. at 19a. Claimant further responds that Employer’s
manager later discussed the October incident with Claimant, describing details of
the incident captured on the bus video, and confirming that the bullet holes in the
bus “were big” and not made by a “grandma’s gun.” Id. at 22a.
On this point we discern no error in the Board’s description of the
October incident, based on Claimant’s testimony as credited by the WCJ. We are
mindful that in workers’ compensation cases, “the WCJ is the ultimate fact-finder
who must determine credibility and evidentiary weight. In this role, the WCJ freely
evaluates the evidence offered and can accept or reject any witness’[s] testimony, in
whole or in part, including that of medical witnesses.” Davis v. Workers’
Compensation Appeal Board (City of Philadelphia), 753 A.2d 905, 909 (Pa.
Cmwlth. 2000). As this Court noted, “[w]hile this Court can and should consider
the competency and sufficiency of evidence presented before a WCJ, the WCJ’s
assessment of witness credibility is not subject to our review on appeal.” Id.
Furthermore, in a substantial evidence analysis where, as here, both parties presented
evidence, “it does not matter that there is evidence in the record which supports a
10
factual finding contrary to that made by the WCJ, rather, the pertinent inquiry is
whether there is any evidence which supports the WCJ’s factual finding.”
Hoffmaster v. Workers’ Compensation Appeal Board (Senco Products), 721 A.2d
1152, 1155 (Pa. Cmwlth. 1998). This Court “may overturn a credibility
determination only if it is arbitrary and capricious, so fundamentally dependent on a
misapprehension of material facts, or so otherwise flawed, as to render it irrational.”
West Penn Allegheny Health System, Inc. v. Workers’ Compensation Appeal Board
(Cochenour), 251 A.3d 467, 475 (Pa. Cmwlth. 2021) (citation omitted).
Employer does not dispute that Claimant’s bus was shot at and struck
by bullets, or that Claimant heard and saw multiple gunshots take place behind her
bus during the October incident. The fact that Claimant did not learn until the next
day that a person was killed in the incident, or that she did not view the bullet holes
in her bus, does not render the Board’s description inaccurate. We also discern no
error in the Board’s finding that the October incident constituted an abnormal
working condition, based on this description. We acknowledge that mental injuries
as a result of abnormal working conditions present a mixed question of law and fact.
Payes, 79 A.3d at 549. As guided by Payes, mental injuries are highly fact sensitive,
and the question of whether the events may be considered abnormal must be
considered in the context of specific employment. Id. at 552. Such a fact-sensitive
inquiry requires deference to the fact-finding functions of the WCJ, which may be
overturned only if they are arbitrary and capricious. Id. Based upon our review of
the entire record, we discern no error in the WCJ’s or Board’s conclusion that these
two incidents, either separately or together, constituted abnormal working
conditions, in the context of Claimant’s job as a bus driver.
11
Employer also argues that the Board erred in failing to properly account
for Claimant’s training in determining whether these incidents constituted abnormal
working conditions. Critical here is the WCJ’s finding that Employer’s manager’s
testimony was “credible, but insufficient” to establish that Claimant’s experiences
constituted abnormal working conditions. Employer argues that this Court’s
decision in McLaurin v. Workers’ Compensation Appeal Board (SEPTA), 980 A.2d
186 (Pa. Cmwlth. 2009), should govern here, which Claimant disputes.
In McLaurin, this Court considered whether a bus driver who was
threatened by a young man with a gun while he was driving the bus, and who
suffered PTSD, met his burden to prove that his mental injury was caused by
abnormal working conditions. In McLaurin, the WCJ credited the testimony of the
employer’s witness, who testified that bus drivers were advised to expect dangerous
passengers, and bus drivers received specific training on how to deal with dangerous
passengers. McLaurin, 980 A.2d at 188-89. The WCJ also credited the testimony
of another employer witness, who presented statistics and incident reports
documenting the number of passenger disturbances on buses, the number of assaults
on bus drivers, and the number of bus drivers threatened with a gun, during specific
time periods. Id. Because this credited testimony showed that bus drivers were
specifically advised to expect and respond to dangerous passengers, and that threats,
threats with guns, and assaults occurred with some frequency on buses, the WCJ
found that the bus driver’s incident was not an abnormal working condition. Id. at
190. This Court explained that the bus driver failed to prove by objective evidence
that his mental injury was not a subjective reaction to normal work conditions, or
that his incident “represented something he could not anticipate.” Id. On the other
hand, the employer “offered evidence showing that such incidents did occur with
12
enough regularity that handling of them had been built into the operators’ training
program.” Id. Based on the credited evidence presented, we affirmed the Board’s
denial of benefits to the claimant for a mental-mental injury because it did not result
from an abnormal work condition. Id.
McLaurin is distinguishable from the facts presented here, because the
record lacks evidence that the events that Claimant experienced occurred with
enough regularity that she could have anticipated them, or that she received specific
training on how to respond to them. Claimant credibly testified that she was not
aware of other drivers being shot at while driving. Employer presented no statistics
or reports regarding other incidents of its bus drivers being shot at while driving.
Although Employer’s manager credibly testified that in the last three to four years,
Employer experienced more busted windows from pellet guns, rocks, and various
types of gunshots, Employer presented no evidence regarding the frequency or
specifics of these incidents, whether they occurred while drivers were on their buses,
or whether any other drivers had been shot at while driving. Further, although
Employer’s manager credibly testified, and Claimant agreed, that Claimant received
training on how to respond to emergency situations, including those where a
projectile was aimed at a bus, this general training is insufficient to support a
conclusion that Claimant should have anticipated, and was trained to respond to,
being shot at while driving a bus.
In Kochanowicz, 108 A.3d 922, this Court affirmed the WCJ’s award
of benefits for a mental-mental injury caused by abnormal working conditions, when
a manager of a liquor store suffered a mental injury after being robbed at gunpoint.
Although the claimant in Kochanowicz received training involving workplace
violence, and robberies had occurred at other liquor stores, we held that “such
13
training was not entirely relevant, and not dispositive, of whether the armed robbery
[the c]laimant experienced was a normal working condition.” Id. at 933. In reaching
this result, the Court distinguished McLaurin and determined that the “specific
armed robbery” that the claimant experienced was “not a normal working
condition.” Id. at 934. Similarly here, we find no error in the Board’s conclusion
that the specific events Claimant experienced in the October incident, the December
incident, or both, constituted an abnormal working condition.
For the foregoing reasons, we affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Berks Area Regional
Transportation Authority, :
:
Petitioner :
:
v. : No. 1058 C.D. 2021
:
Lena Katzenmoyer :
(Workers’ Compensation Appeal :
Board), :
:
Respondent :
ORDER
AND NOW, this 8th day of November, 2022, the order of the Workers’
Compensation Appeal Board dated August 31, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482329/ | J-S31001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.A.R.-K., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: L.K., MOTHER :
:
:
:
: No. 1431 EDA 2022
Appeal from the Decree Entered April 27, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000223-2022
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 8, 2022
L.K. (“Mother”) appeals from the April 27, 2022 decree granting the
petition filed by the Philadelphia Department of Human Services (“DHS”) to
involuntarily terminate her parental rights to her son, M.A.R.-K., born in
September 2019. We affirm.
We summarize the factual and procedural history as follows. DHS has
been involved with this family since 2016. In April 2016, DHS received
concerning reports that Mother failed to adequately supervise two of M.A.R.-
K.’s older siblings. The reports also noted Mother’s drug use as well as the
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S31001-22
incarceration of M.A.R.-K.’s father, A.K. (“Father”).1 N.T., 4/27/22, at 8-9.
The court terminated Mother’s and Father’s parental rights to these siblings
on June 2, 2017. Id. at 9. Likewise, on January 7, 2019, the court terminated
Mother’s and Father’s parental rights to an additional child that had been born
in October 2017. Id. at 9-10.
M.A.R.-K. became known to DHS in September 2020, upon receipt of a
General Protective Services (“GPS”) report alleging that Mother, who appeared
to be intoxicated, left him in a vehicle unsupervised. Id. at 10. After hospital
evaluations of both Mother and M.A.R.-K.,2 the agency crafted a safety plan
that placed the child with a family friend. Id. at 11. However, DHS obtained
protective custody the following day because Mother attempted to remove
M.A.R.-K. in contravention of the safety plan. Id. At the time, Mother again
appeared to be under the influence and revealed that she suffered from bipolar
disorder. Id. Since December 2020, M.A.R.-K. has remained in his current
pre-adoptive kinship foster home. Id. at 16.
The trial court adjudicated M.A.R.-K. dependent on March 23, 2021, and
found aggravating circumstances as to both Mother and Father. Exhibit DHS
____________________________________________
1 On April 27, 2022, A.K. confirmed his consent to the voluntary
relinquishment of parental rights to M.A.R.-K. He did not participate in the
instant appeal.
2 While the hospital tested Mother for the presence of drugs and alcohol,
Mother refused to release the results of those tests to DHS. N.T., 4/27/22, at
11.
-2-
J-S31001-22
2 at 32-34. It established a placement goal of return to parent or guardian
and awarded Mother weekly supervised visitations with M.A.R.-K. Id. at 33.
The court also fashioned objectives consistent with the single case plan
(“SCP”) and referred Mother to the Clinical Evaluation Unit (“CEU”) for random
drug screens. DHS provided Mother programming through the Achieving
Reunification Center (“ARC”) to address her problems with parenting,
employment, and anger management. Id.
Thereafter, the trial court conducted permanency review hearings at
regular intervals. The court characterized Mother’s compliance with the
permanency plan as minimal in July 2021 and November 2021. Id. at 35, 37.
Further, in July 2021, the court recognized Mother’s failure to visit M.A.R.-K.
since May 2021 and reduced her visitations to biweekly supervised visitation
at the agency. Id. at 36. The court anticipated further modification, noting,
If Mother fails to confirm her . . . visit or fail[s] to appear after
confirming, her visits are to be modified to once a month
supervised visits with [M.A.R.-K.]. If Mother makes 4 consecutive
visits, Mother may again have weekly supervised visits with
[M.A.R.-K.] at the agency.
Id. In January 2022, the court found “Mother non-compliant with all single
case plan objectives and recommendations.” Id. at 38.
On April 9, 2022, DHS filed petitions for the termination of parental
rights and goal change. While represented by separate counsel, neither
Mother nor Father was present at the ensuing hearing. M.A.R.-K. was
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J-S31001-22
represented by legal counsel (also referred to as a “child advocate”).3 DHS
presented Cheryl Wellington, who is the family’s case manager from
Community Umbrella Agency (“CUA”), and several exhibits, which were
admitted without objection. N.T., 4/27/22, at 5-6. Mother’s counsel did not
present any evidence.
At the conclusion of the hearing, the trial court announced from the
bench its decision to terminate Mother’s parental rights to M.A.R.-K. pursuant
to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). Id. at 22-23. The court
memorialized this determination by decree entered on April 27, 2022. Mother
filed a timely notice of appeal and a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).
Mother raises the following issues for our review:
1. Whether the trial court committed reversible error, when it
involuntarily terminated Mother’s parental rights where such
determination was not supported by clear and convincing evidence
under the [A]doption [A]ct, 23 [Pa.C.S. § 2511(a)?]
2. Whether the trial court committed reversible error when it
involuntarily terminated Mother’s parental rights without giving
primary consideration to the effect that the termination would
have on the developmental, physical, and emotional needs of the
child as required by the [A]doption [A]ct, 23 [Pa.C.S. § 2511(b)?]
3. Whether the trial court erred because the evidence was
overwhelming and undisputed that Mother demonstrated a
genuine interest and sincere, persistent, and unrelenting effort to
maintain a parent-child relationship with her child[?]
Mother’s brief at 4.
____________________________________________
3 We note with disfavor the failure of the child advocate to file a brief with
this Court.
-4-
J-S31001-22
At the outset, we observe that Mother’s third issue, concerning the
weight of the evidence, is waived because she failed to raise it in her concise
statement and the trial court did not address that contention. See In re
M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017) (explaining, in part, this
Court will not review an appellant’s claim unless it is included in both the
concise statement of errors complained of on appeal and statement of
questions involved). As the issue is waived, we do not address the contention
as stated in the statement of questions presented. Nevertheless, to the extent
that Mother’s remaining issues subsume this argument, we address it in that
context.
Our standard of review is as follows. We review involuntary termination
orders for an abuse of discretion, which our Supreme Court has explained “is
limited to a determination of whether the decree of the termination court is
supported by competent evidence.” In re Adoption of C.M., 255 A.3d 343,
358 (Pa. 2021). When applying this standard, appellate courts must accept
the trial court’s findings of fact and credibility determinations if they are
supported by the record. Interest of S.K.L.R., 256 A.3d 1108, 1123 (Pa.
2021). “Where the trial court’s factual findings are supported by the evidence,
an appellate court may not disturb the trial court’s ruling unless it has
discerned an error of law or abuse of discretion.” In re Adoption of L.A.K.,
265 A.3d 580, 591 (Pa. 2021). An appellate court may reverse for an abuse
of discretion “only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id.
-5-
J-S31001-22
Termination of parental rights is governed by § 2511 of the Adoption
Act. If the trial court determines the petitioner established grounds for
termination under § 2511(a) by clear and convincing evidence, then the court
must assess the petition under § 2511(b), which focuses on the child’s needs
and welfare. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
In the case sub judice, the trial court terminated Mother’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b). In order to affirm
a termination of parental rights, we need only agree with the trial court as to
any one subsection of § 2511(a), as well as § 2511(b). See In re B.L.W.,
843 A.2d 380, 384 (Pa.Super. 2004). As such, while the trial court analyzes
only § 2511(a)(1) and (b) in its Rule 1925(a) opinion, we review § 2511(a)(2)
and (b) within.
Here, we analyze the court’s termination decree pursuant to
§ 2511(a)(2) and (b), which provide as follows:
(a) General rule.--The rights of a parent in regard to a
child may be terminated after a petition filed on any of the
following grounds:
....
(2) The repeated and continued incapacity, abuse,
neglect or refusal of the parent has caused the child
to be without essential parental care, control or
subsistence necessary for his physical or mental well-
being and the conditions and causes of the incapacity,
abuse, neglect or refusal cannot or will not be
remedied by the parent.
....
-6-
J-S31001-22
(b) Other considerations.--The court in terminating the
rights of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare
of the child. The rights of a parent shall not be terminated
solely on the basis of environmental factors such as
inadequate housing, furnishings, income, clothing and
medical care if found to be beyond the control of the parent.
With respect to any petition filed pursuant to subsection
(a)(1), (6) or (8), the court shall not consider any efforts by
the parent to remedy the conditions described therein which
are first initiated subsequent to the giving of notice of the
filing of the petition.
23 Pa.C.S. § 2511(a)(2), (b).
With regard to termination of parental rights pursuant to § 2511(a)(2),
we have indicated:
In order to terminate parental rights pursuant to 23 Pa.C.S.A.
§ 2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that cannot
be remedied are not limited to affirmative misconduct. To the contrary, those
grounds may include acts of refusal as well as incapacity to perform parental
duties.” In re S.C., 247 A.3d 1097, 1104 (Pa.Super. 2021) (citation omitted).
“Parents are required to make diligent efforts towards the reasonably prompt
assumption of full parental responsibilities.” Matter of Adoption of M.A.B.,
166 A.3d 434, 443 (Pa.Super. 2017) (citation omitted). As such, “A parent’s
vow to cooperate, after a long period of uncooperativeness regarding the
-7-
J-S31001-22
necessity or availability of services, may properly be rejected as untimely or
disingenuous.” In re S.C., supra at 1105 (citation omitted).
In challenging grounds for termination pursuant to § 2511(a)(2), while
acknowledging past difficulties, Mother baldly asserts a present capacity to
care for M.A.R.-K. In full, she states,
As outlined by the Superior Court in the matter of In Re
Adoption of A.N.D., 520 A.2d 31 (Pa.Super. 1086), past
incapacity alone is not sufficient for involuntary termination, there
must be evidence of a parent’s incapacity. Here, though Mother
has struggled with substance abuse, Mother has worked to meet
her objectives to the best of her abilities. Grounds do not exist to
terminate Mother’s rights under § 2511(a)(2) because it is clear
that Mother has the present capacity to care for her child.
Mother’s brief at 11.
Mother’s three-sentence argument fails to identify anything to support
her assertions of progress and present capacity. However, in other sections
of her brief, Mother highlights that she attended five of the weekly supervised
visitations scheduled since March 2021, completed parenting classes, and
obtained suitable housing. Id. at 11, 12-13. However, even considering these
claimed accomplishments, the certified record belies Mother’s contention that
she complied with her SCP objectives and is has the present capacity to care
for her son.
Stated simply, Mother neglected to rebuff the evidence that she failed
complete her court-ordered goals aimed at reunification. Cheryl Wellington,
CUA case manager, recounted Mother’s SCP objectives as: (1) complying with
mental health counseling; (2) participating in a drug and alcohol treatment,
-8-
J-S31001-22
as well as random drug screening; (3) completing domestic violence and anger
management programs; (4) and attending visitation. N.T., 4/27/22, at 12-
14. Ms. Wellington further made clear that Mother was aware of these goals
which remained the same throughout the case. Id. at 12, 14-15. She also
noted Mother’s failure to provide current documentation regarding attendance
at mental health counseling and her refusal to sign new releases once prior
executed releases expired. Id. at 12. Ms. Wellington explained, “She attends
Community Counsel [sic]. However, she has not signed releases for me to
obtain the information. . . . [S]he signed consents for me last year. . . . They
expired.” Id. Ms. Wellington also highlighted Mother’s failure to provide
documentation as to her completion of the required drug and alcohol
treatment, domestic violence counseling, and anger management. Id. at 13-
14. She also confirmed Mother’s lack of compliance with random drug
screens. Id. at 13. Ultimately, Ms. Wellington opined succinctly, “Mom has
not complied with any of the objectives. And [M]om hasn’t seen [M.A.R.-K.]
since May of last year.” Id. at 15.
Hence, the certified record substantiates the trial court’s conclusion that
Mother’s repeated and continued incapacity, abuse, neglect, or refusal has
caused M.A.R.-K. to be without essential parental control or subsistence
necessary for his physical and mental well-being. Notwithstanding Mother’s
claimed achievements relating to the parenting program and housing goal,
DHS established that she still has not complied with the requirements relating
-9-
J-S31001-22
to mental health counseling, substance abuse, domestic violence, or anger
management.
Furthermore, Mother’s attendance at five of the weekly supervised
visitations during the three and one-half months between March 23, 2021,
and July 8, 2021, is scarcely evidence of progress toward the visitation goal.
This inadequacy is heightened by the fact that, subsequent to this claimed
period of achievement, the trial court found that Mother failed to visit M.A.R.-
K. since May 2021 and reduced the visitation schedule from weekly visits to
once every two weeks. See N.T., 4/27/22, at 5-6 (Exhibit DHS 2 at 36).
Thus, contrary to Mother’s protestations, DHS presented clear and convincing
evidence that Mother failed to complete her court-ordered goals and cannot
or will not remedy the causes of her parental incapacity. As we discern no
abuse of discretion, we do not disturb the trial court’s findings.
Next, we address whether termination was proper under §2511(b) and
conclude that that it was. As to § 2511(b), our Supreme Court has stated as
follows:
[I]f the grounds for termination under subsection (a) are met, a
court “shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child.” 23 Pa.C.S.
§ 2511(b). The emotional needs and welfare of the child have
been properly interpreted to include “[i]ntangibles such as love,
comfort, security, and stability.” In re K.M., 53 A.3d 781, 791
(Pa.Super. 2012). In In re E.M., [620 A.2d 481, 485 (Pa. 1993)],
this Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791. However, as
- 10 -
J-S31001-22
discussed below, evaluation of a child’s bonds is not always an
easy task.
In re T.S.M., supra at 267. “In cases where there is no evidence of any bond
between the parent and child, it is reasonable to infer that no bond exists.
The extent of any bond analysis, therefore, necessarily depends on the
circumstances of the particular case.” In re K.Z.S., 946 A.2d 753, 762-63
(Pa.Super. 2008) (citation omitted). When evaluating a parental bond, “[T]he
court is not required to use expert testimony. Social workers and caseworkers
can offer evaluations as well. Additionally, [§] 2511(b) does not require a
formal bonding evaluation.” In re Z.P., 994 A.2d 1108, 1121 (Pa.Super.
2010) (internal citations omitted). Nevertheless, “the mere existence of a
bond or attachment of a child to a parent will not necessarily result in the
denial of a termination petition.” T.S.M., supra at 267. In weighing the bond
considerations pursuant to § 2511(b), “courts must keep the ticking clock of
childhood ever in mind.” Id. at 269. The T.S.M. Court observed, “[c]hildren
are young for a scant number of years, and we have an obligation to see to
their healthy development quickly. When courts fail . . . the result, all too
often, is catastrophically maladjusted children.” Id.
Moreover,
While a parent’s emotional bond with his or her child is a major
aspect of the [§] 2511(b) best-interest analysis, it is nonetheless
only one of many factors to be considered by the court when
determining what is in the best interest of the child.
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
- 11 -
J-S31001-22
comfort, security, and stability the child might have
with the foster parent. . . .
In re Adoption of C.D.R., supra at 1219 (quoting In re N.A.M., 33 A.3d
95, 103 (Pa.Super. 2011)) (quotation marks and citations omitted).
Instantly, in determining that terminating Mother’s parental rights would
serve M.A.R.-K.’s needs and welfare pursuant to § 2511(b), the trial court
emphasized M.A.R.-K.’s relationship with his kinship foster parent. The court
reasoned:
In this case, this [c]ourt had adequate evidence of the
status of the parent-child bond to examine and determine whether
terminating Mother’s parental rights would destroy a necessary
and beneficial relationship.
This [c]ourt heard credible, persuasive testimony from
Ms. Wellington who testified [M.A.R.-K.] has been in the current
foster home with his [a]unt, N.P., since December 2020. She
noted that N.P. was interested in [a]doption and noted [M.A.R.-
K.] looks to his [a]unt to meet all his needs, as well as love,
protection, and support. Ms. Wellington opined [M.A.R.-K.] would
not suffer irreparable harm if Mother’s parental rights were
terminated and [M.A.R.-K.] were to be adopted by his pre-
adoptive resource parent. She opined [M.A.R.-K.] has a parent-
child bond with his [a]unt.
Based on the clear and convincing evidence presented, this
[c]ourt found that termination of Mother’s parental rights met the
developmental, physical, and emotional needs and welfare of
[M.A.R.-K.]. . . .
Here, the totality of the evidence supports this [c]ourt’s
conclusion that termination of Mother’s parental rights is in the
best interests of this [c]hild. This [c]ourt found that this [c]hild’s
bond with his [m]other exists in form only and not in substance.
To sever such a relationship would not destroy any existing
necessary and beneficial union.
Trial Court Opinion, 6/30/22, at 16-17.
- 12 -
J-S31001-22
Mother, however, argues that the certified record did not sustain the
court’s findings regarding the lack of a parent-child bond or that her
relationship with M.A.R.-K. was detrimental to the child. Mother’s brief at 15.
She further maintains, baldly and without reference to the certified record,
that the court erred in terminating parental rights without affording her an
opportunity to bond with M.A.R.-K. Id.
Contrary to Mother’s protestations, the certified record supports the
court’s finding that DHS established the absence of a meaningful parent-child
bond. Indeed, Ms. Wellington testified that no parent-child bond exists
between Mother and M.A.R.-K. N.T., 4/27/22, at 15. She described that when
Mother did sporadically attend the scheduled visitations with M.A.R.-K., the
child “[became] very aggressive with his mother. He hit [her], he pull[ed] her
hair.” Id. at 15. Ms. Wellington similarly recounted whining and crying by
M.A.R.-K. during supervised visits. Id. at 16.
Instead, Ms. Wellington expressed that [M.A.R.-K.] shares a bond with
his foster parent, whom he calls “mom.” Id. at 16-17. Notably, the three-
year-old child has lived in his current pre-adoptive kinship foster home for the
past two years. Id. at 16. As such, Ms. Wellington opined that there would
be no irreparable harm if Mother’s parental rights were terminated. Id. at 17.
When asked why, Ms. Wellington explained, “Mom has not visited [M.A.R.-K.]
in about a year. There’s no bond between the two of them, and [M]om’s
inability to give clean drug screens.” Id. Ms. Wellington further confirmed
that it would be in M.A.R.-K.’s best interest to be available for adoption,
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J-S31001-22
stating, “Mom has not been involved for a year. Taking him from the only
place he knows as . . . stable would cause harm for him, and putting him with
someone who is -- we don’t know if they’re still using drugs. It would be
harmful. . . .” Id. at 18. Accordingly, the certified record supports the trial
court’s finding that the termination of Mother’s parental rights serves M.A.R.-
K.’s developmental, physical, and emotional needs and welfare pursuant to
§ 2511(b).
For all of the foregoing reasons, we affirm the decree terminating
Mother’s parental rights.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
- 14 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482345/ | In the
United States Court of Appeals
for the Seventh Circuit
____________________
Nos. 19-3437 & 20-1591
DULCE M. ZARAGOZA,
Petitioner,
v.
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A061-636-606
____________________
ARGUED DECEMBER 3, 2020 — DECIDED NOVEMBER 8, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and ST. EVE, Circuit
Judges.
SYKES, Chief Judge. Dulce Zaragoza, a native and citizen of
Mexico and a lawful permanent resident of the United
States, pleaded guilty to the Indiana offense of criminal
neglect of a dependent after locking her six-year-old son in a
2 Nos. 19-3437 & 20-1591
closet for six hours. She was sentenced to one year in jail
suspended to time served plus 30 days, with the remainder
of the sentence to be served on probation. After completing
her sentence, she traveled abroad and presented herself for
admission when she returned. The Department of Home-
land Security (“DHS”) found her inadmissible based on the
neglect conviction, which the agency classified as a “crime
involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She
was placed in removal proceedings.
Zaragoza fought removal on several grounds, with her
arguments expanding as the proceedings progressed. Before
the immigration judge, she argued that the Indiana neglect
offense does not qualify as a crime involving moral turpi-
tude. The judge disagreed and entered a removal order, and
Zaragoza appealed to the Board of Immigration Appeals
(“BIA” or “the Board”). In the meantime, she petitioned the
state court to modify her sentence. Her purpose was to bring
herself within the so-called “petty offense” exception to
inadmissibility, which is available to first-time offenders
sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The
state court obliged and reduced her one-year sentence to
179 days. With that order in hand, Zaragoza argued before
the BIA that Indiana’s neglect offense is not a crime involv-
ing moral turpitude, and regardless, the petty-offense excep-
tion applies.
The BIA rejected both arguments, agreeing with the im-
migration judge that the Indiana offense is categorically a
crime involving moral turpitude, and further holding that
the sentence-modification order was not effective to estab-
lish Zaragoza’s eligibility for the petty-offense exception. For
the latter conclusion, the Board relied on a recent decision of
Nos. 19-3437 & 20-1591 3
the Attorney General declaring that state-court sentence-
modification orders are effective for immigration purposes
only if based on a legal defect in the underlying criminal
proceeding. Matter of Thomas & Thompson (“Thomas”), 27 I. &
N. Dec. 674, 690 (Att’y Gen. 2019).
Zaragoza sought reconsideration, this time adding two
more arguments: (1) the phrase “crime involving moral
turpitude” is unconstitutionally vague; and (2) the Attorney
General’s decision in Thomas is impermissibly retroactive as
applied to her. The BIA disagreed on both counts. Zaragoza
petitioned for review in this court, reprising the entire array
of arguments she presented to the Board.
We agree with the BIA’s resolution of all issues but one:
applying Thomas in Zaragoza’s case is an impermissibly
retroactive application of a new rule. We therefore remand
to the BIA for further proceedings consistent with this
opinion.
I. Background
After emigrating from her native Mexico, Zaragoza set-
tled in Indiana with her three children and in August 2011
became a lawful permanent resident. On October 9, 2013, she
punished her six-year-old son by barricading him in a closet
while she was at work. She left him with nothing except a
cup of water, a hot-dog bun with ketchup on it, and a bowl
to urinate in if needed. After instructing her older son not to
release the younger boy from the closet, she left the house.
The boy remained in confinement for six hours.
Zaragoza was charged in state court with neglect of a de-
pendent in violation of Indiana Code § 35-46-1-4(a)(2), which
makes it unlawful for “[a] person having the care of a de-
4 Nos. 19-3437 & 20-1591
pendent … [to] knowingly or intentionally … abandon[] or
cruelly confine[] the dependent.” Though the offense was a
Class D felony, id. § 35-46-1-4(a) (2013), 1 punishable by a
term of imprisonment of up to three years, id. § 35-50-2-7(a),
Zaragoza entered into a plea agreement pursuant to a statute
that permitted the court to enter judgment for a Class A
misdemeanor, id. § 35-5-2-7(c), punishable by a maximum
term of imprisonment of one year, id. § 35-50-3-2. On
March 31, 2014, a state-court judge approved the plea
agreement, accepted Zaragoza’s guilty plea, and sentenced
her to one year in jail suspended to time served plus 30 days,
with the remainder of the one-year term to be served on
probation, and a $50 fine. She completed her sentence and
was discharged from supervision in March 2015.
A few months later, Zaragoza traveled abroad. On July 7,
2015, she returned through Chicago and presented herself
for inspection as a returning lawful permanent resident.
Customs officials discovered her neglect conviction and
paroled her into the United States in anticipation of removal
proceedings. On August 6 DHS initiated removal proceed-
ings based on her neglect conviction, which the agency
classified as a “crime involving moral turpitude,” making
her inadmissible under § 1182(a)(2)(A)(i)(I).
Zaragoza moved to terminate the proceedings, arguing
that neglect of a dependent is not a crime involving moral
turpitude. An immigration judge disagreed, concluding that
Indiana’s neglect offense is a crime involving moral turpi-
tude under the categorical approach as explained in the
1Indiana now punishes the base neglect offense as a Level 6 felony. IND.
CODE § 35-46-1-4(a) (2021).
Nos. 19-3437 & 20-1591 5
BIA’s decision in Matter of Silva-Trevino, 26 I. & N. Dec. 826,
830 (B.I.A. 2016). The judge denied Zaragoza’s motion and
ordered her removed.
Zaragoza sought review in the BIA. While her appeal
was pending, she petitioned the state court to modify her
sentence to 179 days in prison. That was an odd request on
the surface, not least because Zaragoza had long since
completed her sentence. But her purpose was apparent in
light of the removal peril she faced. As a first-time offender,
if her sentence was not “in excess of 6 months,” she would
qualify for the petty-offense exception to inadmissibility
under § 1182(a)(2)(A)(ii)(II). The prosecutor approved
Zaragoza’s request, and on February 13, 2019, the state court
entered an order modifying her sentence to 179 days sus-
pended, with all terms and financial obligations satisfied.
Back before the BIA, Zaragoza reiterated her position
that the Indiana neglect offense is not a crime involving
moral turpitude, but she now also claimed that the petty-
offense exception lifted the inadmissibility bar. The BIA
rejected both arguments. In a decision issued on
November 14, 2019, the Board first agreed with the immigra-
tion judge’s ruling that the neglect offense is categorically a
crime of moral turpitude. Turning to the petty-offense
exception, the Board explained that under the Attorney
General’s recent decision in Thomas, issued just a few weeks
earlier, the state court’s sentence-modification order had no
effect for immigration purposes because it was not based on
a procedural or substantive defect in the underlying criminal
proceeding. Zaragoza’s eligibility thus turned on her origi-
nal sentence, not her sentence as modified. Because she was
originally sentenced to one year in prison, she did not
6 Nos. 19-3437 & 20-1591
qualify for the exception. The Board dismissed her appeal,
and Zaragoza petitioned for review of that order.
In the meantime, she asked the BIA to reconsider its deci-
sion. Her motion added two new arguments. She now
claimed that the statutory phrase “crime involving moral
turpitude” is unconstitutionally vague. She also argued that
applying the Attorney General’s decision in Thomas to her
amounted to an impermissibly retroactive application of a
new rule.
The Board denied the reconsideration motion, standing
by its decision that the Indiana neglect offense is a crime
involving moral turpitude and rejecting the new vagueness
challenge to the statute. The Board also rejected Zaragoza’s
claim that applying Thomas in her case is an impermissibly
retroactive application of a new rule. Zaragoza petitioned for
review of the BIA’s second order, and we consolidated the
two petitions. See 8 U.S.C. § 1252(b)(6).
II. Discussion
Zaragoza reprises the full assortment of legal challenges
that she raised before the agency. Some of the issues are
complex, and two have attracted support from amici curiae.
For ease of presentation, we separate them into two groups.
In the first group are arguments pertaining to the mean-
ing and application of § 1182(a)(2)(A)(i)(I)—specifically,
whether the phrase “crime involving moral turpitude” is
unconstitutionally vague and whether Indiana’s neglect
offense qualifies as such a crime under the categorical ap-
proach and the BIA’s decision in Silva-Trevino. In the second
group are claims pertaining to the petty-offense exception,
including Zaragoza’s arguments that the Attorney General’s
Nos. 19-3437 & 20-1591 7
decision in Thomas is wrong as a matter of law and not
entitled to deference and is impermissibly retroactive as
applied to her.
Because these are legal issues, our standard of review is
de novo, Meraz-Saucedo v. Rosen, 986 F.3d 676, 684 (7th Cir.
2021), with one important qualifier. We defer to the agency’s
reasonable interpretation of the immigration laws in its
precedential decisions and also its “[n]on-precedential
decisions that rely on applicable Board precedent.” Cano-
Oyarzabal v. Holder, 774 F.3d 914, 916 (7th Cir. 2014).
A. Crime Involving Moral Turpitude
1. Unconstitutional Vagueness
Zaragoza begins with the argument that the statutory
phrase “crime involving moral turpitude” is unconstitution-
ally vague. 2 She primarily relies on a trio of recent Supreme
Court decisions addressing vagueness challenges to the
definitions of “crime of violence” and “violent felony” in
statutes that use these terms to denote certain convictions
that carry sentencing and immigration consequences. See
United States v. Davis, 139 S. Ct. 2319 (2019) (residual clause
defining “crime of violence,” 18 U.S.C. § 924)); Sessions v.
Dimaya, 138 S. Ct. 1204 (2018) (residual clause defining
“crime of violence,” 18 U.S.C. § 16); Johnson v. United States,
576 U.S. 591 (2015) (residual clause defining “violent felony,”
18 U.S.C. § 924(e)).
2 Zaragoza purports to challenge the statute both facially and as applied,
but she does not delineate any ground on which the phrase “crime
involving moral turpitude” is vague only as applied to her. Rather, her
argument rests entirely on her view that the phrase is inherently vague.
We therefore construe this as a facial challenge.
8 Nos. 19-3437 & 20-1591
Zaragoza’s challenge immediately runs headlong into
Jordan v. De George, 341 U.S. 223, 232 (1951), a much earlier
decision specifically holding that the phrase “crime involv-
ing moral turpitude” as used in immigration law—there, the
Immigration Act of 1917—is not unconstitutionally vague.
Jordan squarely controls here.
Zaragoza responds that Jordan is no longer authoritative
because it did not consider the categorical way in which the
BIA and the courts now classify convictions for immigration
and sentencing purposes. But she challenges the language of
the statute, not the decision method courts use to classify
convictions for these purposes. And Jordon squarely holds
that the statutory phrase “crime involving moral turpitude”
as used in immigration law is not unconstitutionally vague.
Zaragoza also argues that Jordan may be disregarded be-
cause it is out of sync with the Court’s intervening decisions
in Johnson, Dimaya, and Davis. That argument cannot succeed
in the court of appeals. Jordan is binding on us until the
Supreme Court says otherwise. State Oil Co. v. Kahn, 522 U.S.
3, 20 (1997) (“[I]t is this Court’s prerogative alone to overrule
one of its precedents.”). The Court has repeatedly reaffirmed
this point: “If a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some
other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.” Agostini v.
Felton, 521 U.S. 203, 237–38 (1997) (quotation marks and
alteration omitted).
Accordingly, we and other courts have already rejected
post-Johnson vagueness challenges to the phrase “crime
involving moral turpitude.” Dominguez-Pulido v. Lynch,
Nos. 19-3437 & 20-1591 9
821 F.3d 837, 842–43 (7th Cir. 2016); see also Islas-Veloz v.
Whitaker, 914 F.3d 1249, 1250 (9th Cir. 2019) (“The Court’s
more recent decisions in Johnson and Dimaya did not reopen
inquiry into the constitutionality of the phrase.”); Moreno v.
Att’y Gen., 887 F.3d 160, 166 (3d Cir. 2018); Boggala v. Sessions,
866 F.3d 563, 570 (4th Cir. 2017). We do so again here.
2. Neglect of a Dependent Is a Crime Involving Moral
Turpitude
Zaragoza next challenges the Board’s conclusion that the
Indiana neglect offense qualifies as a crime involving moral
turpitude. Like other statutory contexts in which the agency
must classify convictions for immigration purposes, the
categorical approach applies to this inquiry. See Silva-Trevino,
26 I. & N. at 830; see also Garcia-Martinez v. Barr, 921 F.3d 674,
679 (7th Cir. 2019) (“Both Chevron deference and the sound-
ness of the Board’s reasoning in Silva-Trevino … thus lead us
to adopt that framework for characterizing crimes of moral
turpitude in immigration cases.”).
Applying that framework, we examine whether the statu-
tory definition of the offense fits within the “generic” defini-
tion of a crime involving moral turpitude. Silva-Trevino, 26 I.
& N. at 831. The comparison focuses on “the minimum
conduct that has a realistic probability of being prosecuted
under the statute of conviction, rather than on the facts
underlying the [noncitizen’s] particular violation of that
statute.” Id. (citing Moncrieffe v. Holder, 569 U.S. 184, 190–91
(2013)); see also Garcia-Martinez, 921 F.3d at 679. If Zaragoza
can show that the state courts have applied the neglect
statute to conduct that does not come within the generic
definition, then the offense is not categorically a crime
involving moral turpitude. See Moncrieffe, 569 U.S. at 206
10 Nos. 19-3437 & 20-1591
(explaining that the noncitizen has the burden of demon-
strating that the state law applies to more conduct than the
generic offense covers); see also Garcia-Martinez, 921 F.3d at
679.
We begin with the generic definition of a “crime involv-
ing moral turpitude,” acknowledging (as we must) that the
“moral turpitude label” is “an odd match for the categorical
approach.” Garcia-Martinez, 921 F.3d at 679. Though the
phrase is not defined in statute, we give Chevron deference to
decisions of the BIA reasonably interpreting that term. Cano-
Oyarzabal, 774 F.3d at 916. In Silva-Trevino the Board held
that a crime involving moral turpitude has “two essential
elements: reprehensible conduct and a culpable mental
state.” 26 I. & N. Dec. at 834. For conduct to be “reprehensi-
ble,” it must be “inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties
owed between persons or to society in general.” Id. at 833
(quotation marks omitted). A culpable mental state means
“some degree of scienter, either specific intent, deliberate-
ness, willfulness, or recklessness.” Matter of Ortega-Lopez,
27 I. & N. Dec. 382, 385 (B.I.A. 2018) (quoting Matter of
Louissaint, 24 I. & N. Dec. 754, 757 (B.I.A. 2009)).
We compare that definition with the Indiana neglect of-
fense as defined by statute and as applied by the Indiana
courts. Garcia-Martinez, 921 F.3d at 680. The relevant part of
Indiana’s neglect statute provides: “A person having the care
of a dependent … who knowingly or intentionally … aban-
dons or cruelly confines the dependent … commits neglect
of a dependent.” § 35-46-1-4(a)(2). Indiana courts have
defined “cruelly confines” as “confinement which is likely to
result in a harm such as disfigurement, mental distress,
Nos. 19-3437 & 20-1591 11
extreme pain or hurt, or gross degradation, and yet does not
necessarily endanger the dependent’s life or health.”
Hartbarger v. State, 555 N.E.2d 485, 487 (Ind. Ct. App. 1990);
Demontigney v. State, 593 N.E.2d 1270, 1272 (Ind. Ct. App.
1992) (applying the Hartbarger standard).
So defined, the Indiana neglect offense categorically
matches both elements of the generic definition of a “crime
involving moral turpitude.” First, and more straightforward-
ly, the offense requires a sufficiently culpable mental state.
The Indiana statute requires intentional or knowing conduct,
and the generic crime involving moral turpitude can be
established by “specific intent, deliberateness, willfulness, or
recklessness.” Ortega-Lopez, 27 I. & N. Dec. at 385.
Second, the neglect offense requires “reprehensible con-
duct.” Abandoning or cruelly confining a dependent, as the
Indiana courts interpret this offense, qualifies as “inherently
base, vile, or depraved, and contrary to the accepted rules of
morality and the duties owed between persons or to society
in general.” Silva-Trevino, 26 I. & N. Dec. at 833 (quotation
marks omitted).
Zaragoza emphasizes that the neglect offense does not
require proof of conduct that endangers the dependent’s life
or health, see Hartbarger, 555 N.E.2d at 487, which she be-
lieves makes the Indiana offense broader than the generic
definition of a crime involving moral turpitude. We disa-
gree. Under the Hartbarger standard, the offender’s conduct
must be “likely to result in a harm such as disfigurement,
mental distress, extreme pain or hurt, or gross degradation.”
Id. A person who exposes a dependent child to that degree
of risk by abandoning or cruelly confining him has engaged
in reprehensible conduct.
12 Nos. 19-3437 & 20-1591
Zaragoza further contends that merely causing a child
“mental distress” is not an act of moral turpitude. But the
reference to “mental distress” here must be read in context.
Hartbarger mentions mental distress in a list of risks that
includes “disfigurement,” “extreme pain or hurt,” and
“gross degradation.” Id. These are all very serious harms,
which implies that the inclusion of “mental distress” is
understood to encompass only the risk of severe emotional
trauma. See also State v. Downey, 476 N.E.2d 121, 123 (Ind.
1985) (“The purpose of [§ 35-46-1-4(a)(1)] … is to authorize
the intervention of the police power to prevent harmful
consequences and injury to dependents.”).
Additionally, as the BIA correctly recognized, Zaragoza
has failed to demonstrate that there is a “realistic probabil-
ity” that the neglect statute will be applied to actions causing
only minor mental distress, rather than conduct that is
“inherently base, vile, or depraved.” Silva-Trevino, 26 I. & N.
Dec. at 831, 833 (quotation marks omitted). She points to her
own conviction, which she claims did not involve conduct
that is inherently base, vile, or depraved. We disagree.
Zaragoza barricaded her six-year-old son in a closet using
large items of furniture and leaving him nothing but water, a
hot-dog bun with ketchup, and a bowl to urinate in, and she
then left her house for six hours. This is undoubtedly “con-
trary to the accepted rules of morality and the duties owed
between persons.” Id. at 833 (quotation marks omitted). 3
3 To be clear, we examine the facts of the underlying conviction for the
limited purpose of rejecting Zaragoza’s argument that the Indiana
neglect offense is categorically overbroad.
Nos. 19-3437 & 20-1591 13
Zaragoza also points to the specific conduct at issue in
Hartbarger and in Scruggs v. State, 883 N.E.2d 189, 190 (Ind.
Ct. App. 2008). The facts of those cases, she argues, establish
that the Indiana neglect statute sweeps more broadly that
the generic definition of a crime involving moral turpitude.
Notably, however, in both cases the defendants’ convictions
were reversed based on insufficient evidence. Hartbarger,
555 N.E.2d at 487; Scruggs, 883 N.E.2d at 191. No matter,
Zaragoza says, because the categorical approach examines
“the minimum conduct that has a realistic probability of
being prosecuted under the statute of conviction.” Silva-
Trevino, 26 I. & N. Dec. at 831 (emphasis added). Because the
defendants in Hartbarger and Scruggs were prosecuted for
neglect of a dependent, she insists that the specific conduct
at issue in both cases is relevant to the “realistic probability”
inquiry even though it was insufficient to support their
convictions.
The better reading of Silva-Trevino is that the realistic-
probability principle considers the minimum conduct that
realistically could be successfully prosecuted under the statute
in question. Silva-Trevino relied on the Supreme Court’s
decision in Moncrieffe, which explained that the categorical
approach examines “the minimum conduct criminalized by
the state statute” and requires a showing of “a realistic
probability … that the State would apply its statute” to the
specified conduct. 569 U.S. at 191 (emphases added) (quota-
tion marks omitted); see also Matter of Chairez-Castrejon, 26 I.
& N. Dec. 349, 356 (B.I.A. 2014) (applying the Moncrieffe rule
only to successful prosecutions). In other words, the Su-
preme Court’s realistic-probability test, which Silva-Trevino
incorporates, considers how state law is applied by state
courts, not prosecutors. Gonzales v. Duenas-Alvarez, 549 U.S.
14 Nos. 19-3437 & 20-1591
183, 193 (2007) (explaining that to show a realistic probabil-
ity, an offender “must at least point to his own case or other
cases in which the state courts in fact did apply the statute in
the special (nongeneric) manner for which he argues”).
This understanding of Moncrieffe and Silva-Trevino com-
ports with well-established background norms. Prosecutors
are not expositors of law—courts are, which is why we defer
to state courts in understanding the content of state law. Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Because the state
appellate court held that the specific conduct in Hartbarger
and Scruggs did not violate the neglect statute, those cases do
not help Zaragoza here.
Zaragoza also likens the Indiana neglect statute to other
state statutes that have been held not to constitute crimes
involving moral turpitude. Her comparators, however, are
inapt. For example, she points to a Fifth Circuit case holding
that a Texas child-abandonment statute is not a crime in-
volving moral turpitude. Rodriguez-Castro v. Gonzales,
427 F.3d 316, 324 (5th Cir. 2005). But the Texas statute penal-
ized mere negligence, which is not a sufficient mental state
of culpability to qualify as a crime involving moral turpi-
tude. Id. at 322–23. As we’ve explained, the Indiana neglect
statute requires intentional or knowing wrongdoing, which
squarely falls within the generic definition of a crime involv-
ing moral turpitude.
In another of Zaragoza’s examples, the BIA held that
simple battery under California law is not a crime involving
moral turpitude because it requires no more than an inten-
tional “touching” of another without consent. In re Sanudo,
23 I. & N. Dec. 968, 972 (B.I.A. 2006). Indiana’s neglect
statute, by contrast, requires a likelihood of “disfigurement,
Nos. 19-3437 & 20-1591 15
mental distress, extreme pain or hurt, or gross degradation.”
Hartbarger, 555 N.E.2d at 487. The statute thus covers a
narrower and more serious swath of conduct than the
California battery statute. 4
In sum, as interpreted and applied by the state courts, the
Indiana neglect statute requires proof that the defendant
intentionally or knowingly abandoned or cruelly confined a
dependent in such a way that will likely result in “disfig-
urement, mental distress, extreme pain or hurt, or gross
degradation.” Id. We agree with the BIA that this offense is
categorically a crime involving moral turpitude. Accord
Hernandez-Perez v. Holder, 569 F.3d 345, 348 (8th Cir. 2009)
(concluding that a similar child-endangerment statute under
Iowa law is a crime involving moral turpitude).
B. Petty-Offense Exception
Although the Indiana neglect conviction qualifies as a
crime involving moral turpitude, the inadmissibility bar is
lifted for first-time offenders like Zaragoza if the crime in
question was punishable by one year or less and the sen-
tence did not exceed six months. More specifically, Zaragoza
4 Zaragoza also criticizes the BIA and the immigration judge for relying
on Matter of Leal, 26 I. & N. Dec. 20 (B.I.A. 2012), which held that an
Arizona endangerment statute qualifies as a crime involving moral
turpitude. She correctly points out that the Arizona and Indiana crimes
are different in two ways: the Arizona offense requires a higher risk of
serious harm, while the Indiana offense requires a more culpable mental
state. The immigration judge simply balanced the difference. We share
Zaragoza’s skepticism of this approach. Nonetheless, as explained above,
our independent application of the categorical approach confirms that
the Indiana neglect offense is categorically a crime involving moral
turpitude.
16 Nos. 19-3437 & 20-1591
is not inadmissible based on her neglect conviction if (1) “the
maximum penalty possible for the crime … did not exceed
imprisonment for one year” and (2) she “was not sentenced
to a term of imprisonment in excess of 6 months (regardless
of the extent to which the sentence was ultimately execut-
ed).” § 1182(a)(2)(A)(ii)(II).
It’s undisputed that Zaragoza satisfies the first require-
ment. The neglect offense normally carries a maximum
penalty of up to three years in prison, but she pleaded guilty
pursuant to a statute that permitted the court to enter judg-
ment for a Class A misdemeanor, which carries a maximum
penalty of one year of imprisonment. IND. CODE § 35-50-3-2.
And indeed, the judgment reflects that she was convicted of
the misdemeanor offense. 5
The dispute here centers on the second requirement. The
exception applies only if the offender was sentenced to a
term of six months or less. Based on Zaragoza’s original
sentence, she is clearly ineligible. She was sentenced to one
year of imprisonment suspended to time served plus
30 days. The suspension has no effect on the analysis. As
defined in the Immigration and Nationality Act (“INA” or
“the Act”), “[a]ny reference to a term of imprisonment or a
sentence … is deemed to include the period of incarceration
or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprison-
ment or sentence in whole or in part.” 8 U.S.C.
5 In its initial decision, the BIA incorrectly stated that because the offense
is normally a Class D felony, which carries a three-year maximum, the
petty-offense exception is inapplicable. The Board abandoned this
reasoning in its decision denying Zaragoza’s motion to reconsider.
Nos. 19-3437 & 20-1591 17
§ 1101(a)(48)(B) (emphases added). The petty-offense excep-
tion itself contains similar “regardless” language: the excep-
tion applies only if the offender’s sentence “was not … in
excess of 6 months (regardless of the extent to which the
sentence was ultimately executed).” Id. § 1182(a)(2)(A)(ii)(II)
(emphasis added).
But what about the sentence-modification order? Recall
that in February 2019 while her appeal was pending before
the BIA, Zaragoza sought and obtained an order from a state
judge reducing her one-year sentence to 179 days. At the
time BIA precedent recognized state-court sentence-
modification orders as effective for immigration purposes.
See Matter of Cota-Vargas, 23 I. & N. Dec. 849, 852 (B.I.A. 2005)
(holding that an immigration court must give full faith and
credit to a state-court decision modifying a sentence). Ac-
cordingly, Zaragoza asked the BIA to evaluate her eligibility
for the petty-offense exception based on her sentence as
modified.
The BIA did not rule on her appeal until nine months af-
ter she had obtained the sentence-modification order. By
then the Attorney General had issued his decision in Thomas,
overruling Cota-Vargas and holding that state-court sentence-
modification orders are effective for immigration purposes
only if based on a procedural or substantive defect in the
underlying criminal proceeding. Thomas, 27 I. & N. Dec. at
674. Zaragoza’s sentence modification was not based on
such a defect. Applying Thomas, the Board declined to give it
effect for purposes of evaluating her eligibility for the petty-
offense exception. Because Zaragoza’s original sentence
exceeded six months, the Board found her ineligible for the
exception.
18 Nos. 19-3437 & 20-1591
Zaragoza attacks this ruling on several grounds. She first
argues that the Attorney General’s decision in Thomas is not
entitled to deference and is wrong as a matter of law. Alter-
natively, she argues that even if Thomas correctly interpreted
the relevant statutes, the decision cannot be applied to her
because she reasonably relied on the BIA’s preexisting
rules—namely, Cota-Vargas. Applying Thomas to her, she
argues, would be a manifestly unjust retroactive application
of a new rule.
1. Thomas Is Entitled to Deference
The pre-Thomas legal landscape was a patchwork of in-
consistent rules regarding the immigration consequences of
state-court orders altering a criminal sentence. If a state court
vacated a conviction for reasons other than a defect in the
criminal proceeding, then the immigration consequences
remained fixed to the original conviction and sentence.
Matter of Pickering, 23 I. & N. Dec. 621, 624 (B.I.A. 2003). But
if a state court modified a sentence, then the immigration
consequences were fixed to the new order. Cota-Vargas, 23 I.
& N. Dec. at 852; In re Song, 23 I. & N. Dec. 173, 174 (B.I.A.
2001). If a state court clarified a sentence, then the immigra-
tion judge was to consider several characteristics of the state-
court order before deciding whether immigration conse-
quences should attach to the original sentence or the clarifi-
cation order. Matter of Estrada, 26 I. & N. Dec. 749, 755–56
(B.I.A. 2016).
These inconsistencies, coupled with the perception that
state courts were using sentence modifications to circumvent
federal immigration law, led the Attorney General to step in.
In May 2019 he directed the BIA to refer two pending cases
to him for a clarifying opinion. Thomas, 27 I. & N. Dec. at 674.
Nos. 19-3437 & 20-1591 19
We pause here for a bit of background on the two cases
the Attorney General directed the BIA to send. Michael
Vernon Thomas, a citizen of Trinidad and Tobago, and
Joseph Lloyd Thompson, a citizen of Jamaica, were convict-
ed in unrelated state-court proceedings of the Georgia crime
of “family violence battery” and were sentenced to
12 months of imprisonment. Id. at 678. Years later, long after
they had completed their sentences, DHS placed them in
removal proceedings as “aggravated felons” because each
man “had been convicted of a ‘crime of violence’ for which
the ‘term of imprisonment [was] at least one year.’” Id.
(quoting 8 U.S.C. § 1101(a)(43)(F)).
While their removal proceedings were pending, Thomas
and Thompson returned to state court and obtained orders
reducing their sentences to slightly under 12 months. Id. at
678–79. The modification orders were not based on any
defect in the underlying criminal proceedings, but Thomas
and Thompson argued in their removal proceedings that
because their sentences had been reduced to less than one
year, they were no longer removable as aggravated felons.
After directing the BIA to refer the cases, the Attorney
General invited the parties and any interested amici to
submit briefs regarding the effect of state-court sentence-
modification orders for immigration purposes. Id. at 674.
On October 25, 2019, the Attorney General issued his de-
cision overruling Cota-Vargas, Song, and Estrada and holding
that state-court sentence-modification orders “have no effect
for immigration purposes if based on reasons unrelated to
the merits of the underlying criminal proceeding, such as
rehabilitation or the avoidance of immigration consequenc-
es.” Id.
20 Nos. 19-3437 & 20-1591
The decision largely flowed from the definitions of “con-
viction” and “term of imprisonment” in the INA:
(A) The term “conviction” means, with respect
to an alien, a formal judgment of guilt of the al-
ien entered by a court or, if adjudication has
been withheld, where—
(i) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or
nolo contendere or has admitted sufficient
facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on the al-
ien’s liberty to be imposed.
(B) Any reference to a term of imprisonment or a
sentence with respect to an offense is deemed to
include the period of incarceration or confine-
ment ordered by a court of law regardless of
any suspension of the imposition or execution
of that imprisonment or sentence in whole or
in part.
8 U.S.C. § 1101(a)(48) (emphases added).
Anchoring his analysis in the text of these definitions, the
Attorney General began with an uncontroversial observa-
tion: “An alien plainly has been convicted under the INA
when a court has entered ‘a formal judgment of guilt,’ and
he has received a sentence when the court orders a ‘period of
incarceration or confinement,’ no matter whether the sen-
tence [has been] executed.” Thomas, 27 I. & N. Dec. at 680–81.
In other words, by virtue of the “regardless” clause in the
definition, the terms “conviction” and “term of imprison-
Nos. 19-3437 & 20-1591 21
ment” refer to the original conviction and sentence notwith-
standing any suspension of the sentence. The “regardless”
clause, the Attorney General reasoned, also implied that
“other post-sentencing events—such as modifications or
clarifications—should not be relevant under the immigration
laws.” Id. at 682.
The Attorney General then looked to the statutory histo-
ry to confirm this implication, noting that § 1101(a)(48) was
enacted as part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 in response to deci-
sions of the BIA holding that certain suspended sentences
were excluded from the definition of “conviction” for immi-
gration purposes. Id. at 681. The new statutory definitions of
“conviction” and “term of imprisonment” in § 1101(a)(48)
displaced the BIA’s previous rule about suspended sentenc-
es. In this way, “Congress made clear that immigration
consequences should flow from the original determination
of guilt.” Id. at 682. By removing the BIA’s special treatment
of suspended sentences, “Congress ensured uniformity in
the immigration laws by avoiding the need for immigration
judges to examine the post-conviction procedures of each
State.” Id.
Based on this review of the statutory text and history, the
Attorney General concluded that “the phrase ‘term of im-
prisonment or a sentence’ in paragraph (B) is best read to
concern an alien’s original criminal sentence, without regard
to post-sentencing alterations that, like a suspension, merely
alleviate the impact of that sentence.” Id. But he carved out
an exception based on the reasoning in Pickering: “If the
original sentence was altered because of a legal defect, then
the sentence was not legally effective, and there is no valid
22 Nos. 19-3437 & 20-1591
sentence to which immigration consequences can attach.” Id.
at 682–83.
The Attorney General thus extended the Pickering vacatur
framework to all sentence alterations, including vacaturs,
modifications, and clarifications. Id. at 683–85. He according-
ly held that “state-court orders that modify, clarify, or
otherwise alter a criminal alien’s sentence … will be given
effect for immigration purposes only if based on a procedural
or substantive defect in the underlying criminal proceed-
ing.” Id. at 690 (emphasis added).
Decisions of the Attorney General interpreting the feder-
al immigration statutes are entitled to Chevron deference.
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); see also
8 U.S.C. § 1103(a)(1) (stating that the “determination and
ruling by the Attorney General with respect to all questions
of law shall be controlling”). Applying the two-step Chevron
framework, we first ask “whether ‘the statute is silent or
ambiguous with respect to the specific issue’ before [us]; if
so, ‘the question for the court [is] whether the agency’s
answer is based on a permissible construction of the stat-
ute.’” Aguirre-Aguirre, 526 U.S. at 424 (quoting Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843
(1984)).
Neither the petty-offense exception nor the definitions in
§ 1101(a)(48) unambiguously resolve whether Zaragoza’s
original or modified sentence is the correct reference point
for determining her eligibility for the exception. The answer
instead turns on Chevron Step 2. 6 Based on our own review,
6 An amicus relies heavily on BIA caselaw predating the statutory
definition of “term of imprisonment.” 8 U.S.C. § 1101(a)(48)(B). Accord-
Nos. 19-3437 & 20-1591 23
we hold that the Attorney General’s decision in Thomas is a
permissible interpretation of the operative statutes—indeed,
it is the most reasonable interpretation.
We begin with the language of the petty-offense excep-
tion. Zaragoza qualifies for relief from inadmissibility if she
“was not sentenced to a term of imprisonment in excess of
6 months (regardless of the extent to which the sentence was
ultimately executed).” § 1182(a)(2)(A)(ii)(II) (emphasis
added). The use of the past tense suggests that the statute
refers to the original sentence as a matter of historical fact;
the “regardless” qualifier excludes later alterations of it.
Next, as Thomas explains, the definition of the phrase
“term of imprisonment” in § 1101(a)(48)—and especially the
language directing us to ignore any sentence suspension—
implies that in general, subsequent alterations are to be
disregarded. The inference here may not be strong enough to
conclusively resolve the effect of sentence modifications at
ing to the amicus, those decisions establish that a “new, reduced sentence
stands as the only valid and lawful sentence imposed” for immigration
purposes, Matter of Martin, 18 I. & N. Dec. 226, 227 (B.I.A. 1982), and that
Congress intended to preserve this rule in enacting § 1101(a)(48). We are
not persuaded. As the amicus recognizes, the definition of “term of
imprisonment” displaced BIA precedent regarding the immigration
effect of suspended sentences. Any inferences about Congress’s view on
modified sentences are thin at best—certainly not convincing enough to
resolve this case at Chevron Step 1. Indeed, to the extent that we can
deduce anything from the enactment of § 1101(a)(48), it’s that Congress
wanted “immigration consequences [to] flow from the original determi-
nation of guilt,” not a modified determination. Matter of Thomas &
Thompson, 27 I. & N. Dec. 674, 682 (Att’y Gen. 2019); see also Saleh v.
Gonzales, 495 F.3d 17, 24 (2d Cir. 2007) (recognizing that § 1101(a)(48)(A)
“focuses on the original attachment of guilt”).
24 Nos. 19-3437 & 20-1591
Chevron Step 1, but it confirms that the Attorney General’s
interpretation of the statute is a reasonable one at Chevron
Step 2.
Were there any doubt about this analysis, circuit prece-
dent confirms our conclusion. After the BIA held in Pickering
that immigration consequences remain fixed to a conviction
even after it is vacated (with an important exception for
vacaturs based on a legal defect), we concluded that the
agency’s decision was entitled to Chevron deference. Ali v.
Ashcroft, 395 F.3d 722, 728–29 (7th Cir. 2005). Because the
definition of “conviction” in § 1101(a)(48)(A) is silent on
whether immigration consequences remain attached to a
vacated conviction, we did not resolve the case at Chevron
Step 1. Id. at 728. Rather, at Chevron Step 2, we held that
Pickering’s interpretation was reasonable and therefore
entitled to deference. Id. at 729.
The same result follows here. As we’ve explained, in
Thomas the Attorney General extended the Pickering vacatur
rule to all sentence alterations—including, as relevant here,
sentence modifications. True, resolving the immigration
effect of vacaturs and sentence modifications turns on
separate statutory definitions—for the former, it’s the defini-
tion of “conviction” in § 1101(a)(48)(A); for the latter, it’s the
definition of the phrase “term of imprisonment or a sen-
tence” in § 1101(a)(48)(B). But the definitions are related and
should be read harmoniously. And to the extent that it
makes sense to treat vacated convictions differently from
sentence modifications, it is far more reasonable to give
continued effect to the original sentence after it has been
modified than to give continued effect to a conviction after it
has been vacated. Cf. Ali, 395 F.3d at 729 n.4 (“[I]t would not
Nos. 19-3437 & 20-1591 25
make much sense for Ali, whose conviction was modified to
avoid deportation, to fare better than the applicant in
Pickering[,] whose conviction was outright quashed for the
same purpose.”). And yet we deferred to the BIA’s rule in
Pickering.
Zaragoza responds that deferring to Thomas is incon-
sistent with our obligation to give full faith and credit to a
state court’s modification of a sentence. See 28 U.S.C. § 1738
(requiring that “every court within the United States” give
full faith and credit to authenticated “Acts, records and
judicial proceedings”). The Attorney General addressed and
rejected that argument, reasoning that interpreting and
applying the defined terms “conviction” and “term of
imprisonment” in federal immigration law does not call into
question the validity of the state court’s order. Thomas, 27 I.
& N. Dec. at 686 (“The adjudicator is not reevaluating or
otherwise questioning the validity of the state-court judg-
ment. The adjudicator accordingly does not violate the Full
Faith and Credit Act.”). We agree. The same reasoning
defeats Zaragoza’s related argument that Thomas violates
basic federalism principles. Because the federal immigration
statutes assign independent effect to state convictions, they
do not risk overrunning the domain of state law.
In sum, the Attorney General’s decision in Thomas is enti-
tled to deference as a permissible construction of the terms
“conviction” and “term of imprisonment or a sentence” as
defined in § 1101(a)(48). Under the Thomas rule, the state
court’s sentence-modification order is not effective for
immigration purposes because it was not based on a proce-
dural or substantive defect in Zaragoza’s criminal case.
26 Nos. 19-3437 & 20-1591
2. Retroactivity
Zaragoza argued in her reconsideration motion that ap-
plying Thomas to her is an impermissibly retroactive applica-
tion of a new rule. The Board rejected that argument. We
review retroactivity questions independently, owing no
deference to the agency’s ruling. Velásquez-García v. Holder,
760 F.3d 571, 578–79 (7th Cir. 2014)
The law generally disfavors the retroactive application of
new legal rules. See id. at 579. “Elementary considerations of
fairness dictate that individuals should have an opportunity
to know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly
disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 265
(1994). But deciding when a new rule operates retroactively
“is not always a simple or mechanical task.” Id. at 268. A new
rule is not necessarily “retroactive” in effect simply because
it is applied in a case arising from conduct predating its
adoption. Id. at 269. Rather, a determination that a particular
rule operates retroactively “comes at the end of a process of
judgment concerning the nature and extent of the change in
the law and the degree of connection between the operation
of the new rule and a relevant past event.” Id. at 270. The
inquiry, in other words, “demands a commonsense, func-
tional judgment” and is “informed and guided by ‘familiar
considerations of fair notice, reasonable reliance, and settled
expectations.’” Martin v. Hadix, 527 U.S. 343, 357–58 (1999)
(quoting Landgraf, 511 U.S. at 270)).
As a general matter, “[a] rule is considered to be retroac-
tive” in effect “when it ‘attaches new legal consequences to
events completed before its enactment.’” Velásquez-García,
760 F.3d at 579 (quoting Landgraf, 511 U.S. at 270). A rule
Nos. 19-3437 & 20-1591 27
attaches “new legal consequences” to completed events
when it “takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new
duty, or attaches a new disability, in respect to transactions
or considerations already past.” I.N.S. v. St. Cyr, 533 U.S. 289,
321 (2001) (quoting Landgraf, 511 U.S. at 269).
A vexing problem in retroactivity cases is to identify the
appropriate reference point for analysis—the event or mo-
ment in time by which to judge whether an intervening legal
development imposes new consequences or disabilities. See
Vartelas v. Holder, 566 U.S. 257, 269–70 (2012); id. at 277
(Scalia, J., dissenting). Zaragoza and the government offer
competing possibilities. 7 The government contends that the
correct point of reference is March 31, 2014, when Zaragoza
was convicted and sentenced for the neglect offense. Because
she had no fixed entitlement to the petty-offense exception at
that point in time, the government argues that Thomas does
not have retroactive effect as applied to her. Zaragoza coun-
ters with two possible reference points—either March 31,
7 After oral argument we ordered supplemental briefing on the retroac-
tivity question and specifically asked the parties to brief the relevant
point of reference for retroactivity analysis in this case and the applica-
tion of the retroactivity factors discussed in Velásquez-García v. Holder,
760 F.3d 571 (7th Cir. 2014). Zaragoza asserted that the government had
waived any argument about retroactivity by failing to respond to her
discussion of Velásquez-García in her opening brief. We disagree. Alt-
hough the government did not specifically address the Velásquez-García
factors in its original brief, it responded in a more general way to
Zaragoza’s retroactivity argument, which is enough to avoid waiver.
Sec'y, U.S. Dep't of Lab. v. Preston, 873 F.3d 877, 883 n.5 (11th Cir. 2017)
(“Parties can most assuredly waive positions and issues on appeal, but
not individual arguments—let alone authorities.”).
28 Nos. 19-3437 & 20-1591
2014, when she was convicted and sentenced, or
February 13, 2019, when the state court entered its sentence-
modification order. As Zaragoza sees it, Thomas is impermis-
sibly retroactive by reference to either event.
We conclude that the proper reference point for the ret-
roactivity inquiry is the February 2019 sentence-modification
order. As we’ve noted, retroactivity analysis is concerned
with the degree of connection between the new rule and the
relevant past event. More specifically, the analysis asks
whether a new rule “impairs vested rights acquired under
existing laws.” St. Cyr, 533 U.S. at 321 (quotation marks
omitted). When the state court entered the sentence-
modification order, Zaragoza acquired a legal entitlement to
the petty-offense exception under existing immigration
law—namely, the BIA’s decision in Cota-Vargas. As of that
event, she had a complete defense to removal. The Attorney
General’s decision in Thomas overruled Cota-Vargas, eliminat-
ing the defense. So the “transaction[] or consideration[]” to
which Thomas attached legal consequences was the sentence-
modification order. Id. The rule of Thomas therefore has
retroactive effect as applied in Zaragoza’s removal proceed-
ings.
The government resists this conclusion, relying on the
Supreme Court’s decisions in Vartelas and St. Cyr, both of
which used the immigrant’s underlying conviction to evalu-
ate the retroactive effect of later legal developments. But
neither of those cases involved sentence modifications, so
the Court had no occasion to consider the problem presented
here.
Instead, this case is closer to our decision in Jeudy v.
Holder, 768 F.3d 595 (7th Cir. 2014). There, an immigrant
Nos. 19-3437 & 20-1591 29
committed a removable offense after living in the United
States for six years. He continued to live in the United States,
and just a year later, he became eligible to request cancella-
tion of removal since he had continuously lived in the
country for seven years. Congress later enacted a “stop-time
rule,” which stops the seven-year continuous-residency
clock when an immigrant commits a removable offense.
8 U.S.C. § 1229b(d)(1). Because Jeudy had committed the
removable offense before the seven years were up, the BIA
concluded that he was ineligible to apply for cancellation of
removal. Jeudy, 768 F.3d at 596–97.
We disagreed, instead holding that the stop-time rule
was impermissibly retroactive as applied in Jeudy’s case
because he “was actually eligible for discretionary relief
before [the new stop-time rule] took effect.” Id. at 603. In
other words, in Jeudy there wasn’t a retroactivity problem
simply because his conviction predated the new law; rather,
a postconviction event made Jeudy unquestionably eligible
for relief from removal, only to then be foreclosed by a later
legal development.
The same is true here. A postconviction event—
Zaragoza’s sentence modification—gave her a right to relief
from removal, only to be taken away by Thomas. Because the
state court’s sentence-modification order predated Thomas,
the decision is retroactive as applied to her.
Our next question is whether retroactive application is
impermissible in Zaragoza’s case. As we explained in
Velásquez-García, when an agency interprets a statute “as an
incident of its adjudicatory function,” it may permissibly
apply the new interpretation in the case in which it is an-
nounced. 760 F.3d at 581 (quotation marks omitted). But “a
30 Nos. 19-3437 & 20-1591
retrospective application can be properly withheld” in other
cases “when to apply the new rule to past conduct or prior
events would work a manifest injustice.” Id. (quotation
marks omitted). The “manifest injustice” inquiry turns on
several factors:
(1) Whether the particular case is one of first
impression, (2) whether the new rule repre-
sents an abrupt departure from well-
established practice or merely attempts to fill a
void in an unsettled area of law, (3) the extent
to which the party against whom the new rule
is applied relied on the former rule, (4) the de-
gree of burden which a retroactive order im-
poses on a party, and (5) the statutory interest
in applying a new rule despite the reliance of a
party on the old standard.
Id. (quoting NLRB v. Wayne Transp., 776 F.2d 745, 751 n.8 (7th
Cir. 1985)). “Like most such unweighted multi-factor lists,
this one serves best as a heuristic; no one consideration
trumps the others.” Id.
The first factor—whether the case is one of “first impres-
sion”—requires some clarification. As we’ve noted, when an
agency announces a new rule in the exercise of its adjudica-
tive function, it may apply the rule in the proceeding before
it; that is the case of “first impression.” Id. This case, howev-
er, is one of “second impression”: the BIA applied Thomas
retroactively to Zaragoza—a stranger to the case in which
the new rule was announced—even though she had already
acquired a right to relief from removal by operation of the
prior rule of Cota-Vargas. The government concedes, and we
agree, that this factor tips against retroactive application.
Nos. 19-3437 & 20-1591 31
The second factor is whether the new rule constitutes an
abrupt departure from well-established practice or merely
fills a void. Thomas overruled Cota-Vargas and therefore
departed from well-established practice, so this factor too
disfavors retroactive application.
The third factor is the extent of Zaragoza’s reliance inter-
ests. Though no one factor in the Velásquez-García list is
decisive, this one has a significant role to play. See Vartelas,
566 U.S. at 274 (“[T]he likelihood of reliance on prior law
strengthens the case for reading a newly enacted law pro-
spectively.”); Landgraf, 511 U.S. at 270 (retroactivity doctrine
is guided by “familiar considerations of fair notice, reasona-
ble reliance, and settled expectations”). “Importantly, the
critical question is not whether a party actually relied on the
old law, but whether such reliance would have been reason-
able.” Velásquez-García, 760 F.3d at 582; see also Jeudy, 768 F.3d
at 604.
Reliance on the old law was objectively reasonable in the
circumstances here. Under the rule of Cota-Vargas, Zaragoza
had clear right to relief under the petty-offense exception
when the state court modified her sentence. That is, Cota-
Vargas gave her a complete defense to removal once she
obtained the order from the state court reducing her sen-
tence to six months or less. When she did so, she reasonably
relied on then-existing law, which lifted the inadmissibility
bar and eliminated the basis for her removal.
The reliance interests here are arguably stronger than
those at issue in Velásquez-García. There, the immigrant took
preliminary steps toward acquiring permanent-resident
status but did not file an application within one year of the
date when his visa number became available, as required by
32 Nos. 19-3437 & 20-1591
statute. Velásquez-García, 760 F.3d at 574. Under three prior
non-precedential BIA decisions, the agency required an
applicant to show only that he “took ‘substantial steps’ to
acquire permanent status in order to qualify for the Act’s
protection.” Id. at 576. However, in its intervening decision
in Matter of Vazquez, 25 I. & N. Dec. 817 (B.I.A. 2012), the BIA
narrowed its interpretation of the operative language in the
statutory deadline, requiring “an immigrant [to] make a
fully compliant application for permanent residence or one
with only technical defects within one year, unless excep-
tional circumstances prevented the immigrant from filing
such an application.” Velásquez-García, 760 F.3d 576. In other
words, “substantial steps” were no longer sufficient; under
the new interpretation, a completed, compliant, and timely
application was needed. The BIA’s new interpretation
“departed sharply” from its earlier non-precedential deci-
sions. Id. We held that Velásquez-García’s reliance on the old
law was objectively reasonable because “[i]n light of the
state of the law at the critical time, a reasonable person
reasonably could have assumed that the Act did not require
him or her to file an application within one year.” Id. at 583.
If it was reasonable for Velásquez-García to rely on non-
precedential BIA decisions generously interpreting a statuto-
ry deadline to apply for immigration benefits, then it was
reasonable for Zaragoza to rely on the BIA’s precedential
decision in Cota-Vargas, which gave her a complete defense
to removability based on her sentence modification.
The fourth factor is the degree of burden that the retroac-
tive rule imposes. “Courts have long recognized the obvious
hardship imposed by removal.” Id. at 584. This factor clearly
favors Zaragoza. The final factor is the statutory interest in
Nos. 19-3437 & 20-1591 33
applying the new rule despite reliance on the old standard.
“Often, this will point in favor of the government because
non-retroactivity impairs the uniformity of a statutory
scheme, and the importance of uniformity in immigration
law is well established.” Id. (quotation marks and alteration
omitted). Applying Thomas to Zaragoza would promote
uniformity because the rule would apply to all sentence
modifications occurring before that decision was issued.
In sum, all but one of the Velásquez-García factors weigh
against retroactive application of Thomas in Zaragoza’s case.
Accordingly, we conclude that applying the new rule to her
would work a manifest injustice. We GRANT the petitions for
review and REMAND to the BIA for further proceedings
consistent with this opinion. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482224/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00410-CV
ALL OCCUPANTS,
Appellant
v.
V&S TOTAL TRADE, LLC,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 2022CV01033
Honorable David J. Rodriguez, Judge Presiding
ORDER
On October 13, 2022, this court ordered Appellant to show cause in writing why this
appeal should not be dismissed for lack of jurisdiction. All other appellate deadlines were
suspended.
On October 26, 2022, Appellant filed a response. Appellant’s response is sufficient to
reinstate this appeal on the court’s docket, without prejudice to the parties raising the issue of
mootness in their briefs if they so desire.
We reinstate the appellate timetable. Appellant’s brief is due thirty days from the
date of this order.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482225/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00420-CR
Aaron POUCH,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B19843-1
Honorable M. Rex Emerson, Judge Presiding
ORDER
Appellant’s brief was due on October 19, 2022. On the due date, Appellant asked for an
extension until November 23, 2022.
Appellant’s motion is granted. Appellant’s brief is due on November 23, 2022. See
TEX. R. APP. P. 38.6(d).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482226/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00421-CR
Aaron POUCH,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B19622-1
Honorable M. Rex Emerson, Judge Presiding
ORDER
Appellant’s brief was due on October 19, 2022. On the due date, Appellant asked for an
extension until November 23, 2022.
Appellant’s motion is granted. Appellant’s brief is due on November 23, 2022. See
TEX. R. APP. P. 38.6(d).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482247/ | Fourth Court of Appeals
San Antonio, Texas
November 2, 2022
No. 04-22-00402-CV
Jose Mario BALLESTEROS,
Appellant
v.
Sonia Rocio BARRIENTOS,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2021FLA001101D1
Honorable Jose A. Lopez, Judge Presiding
ORDER
The trial court clerk has filed a notification of late record stating that the appellant failed
to pay or make arrangements to pay the fee for preparing the clerk’s record and that appellant is
not entitled to preparation of the clerk’s record without paying the fee.
It is therefore ORDERED that appellant provide written proof to this court on or before
November 17, 2022 that either: (1) the clerk’s fee has been paid or arrangements have been
made to pay the clerk’s fee; or (2) appellant is entitled to appeal without paying the clerk’s fee. If
appellant fails to respond within the time provided, this appeal will be dismissed for want of
prosecution. See TEX. R. APP. P. 37.3(b); see also TEX. R. APP. P. 42.3(c) (allowing dismissal of
appeal if appellant fails to comply with an order of this court).
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482232/ | Fourth Court of Appeals
San Antonio, Texas
November 2, 2022
No. 04-22-00546-CV
IN THE INTEREST OF A.J.E. AND A.N.E., Children
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2020PA01611
Honorable Cynthia Marie Chapa, Judge Presiding
ORDER
In accordance with this court’s opinion of this date, the appeal is DISMISSED FOR WANT
OF JURISDICTION. Appellant is unable to afford payment of costs; no costs of court are taxed
in this appeal.
It is so ORDERED on November 2, 2022.
_____________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of November, 2022.
_____________________________
Michael A. Cruz, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482234/ | Fourth Court of Appeals
San Antonio, Texas
November 2, 2022
No. 04-22-00553-CV
IN RE Sterling DE LOS SANTOS
Original Proceeding 1
ORDER
On August 30, 2022, relator filed a petition for writ of mandamus complaining that the trial
court abused its discretion by granting real party in interest’s writ of habeas corpus. On October 3,
2022, we abated this original proceeding and ordered relator to file either an order from a hearing
occurring on October 3, 2022 (the “October 3 hearing”), a transcript of the October 3 hearing, or
the appropriate motion to dismiss this mandamus proceeding no later than fifteen days after the
October 3 hearing. Relator did not file an order or transcript from the October 3 hearing. Likewise,
relator did not file an appropriate motion to dismiss.
On October 20, 2022, we ordered relator to file an order from the October 3 hearing, a
transcript from the October 3 hearing, or the appropriate motion to dismiss this mandamus
proceeding on or before October 25, 2022. In the event relator could not obtain an order from the
October 3 hearing, a transcript from the October 3 hearing, or otherwise comply with our October
20, 2022 order, we ordered relator to file an advisory detailing the reasons he could not obtain the
order or transcript on or before October 24, 2022. 2 We put relator on notice that failure to comply
with the order issued on October 20, 2022, would result in a dismissal of his mandamus petition.
Relator has not filed an order from the October 3 hearing, a transcript from the October 3 hearing,
or an advisory detailing the reasons why he could not comply with our October 20, 2022 order.
Therefore, relator’s petition for writ of mandamus is DISMISSED without prejudice. See TEX. R.
APP. P. 42.3(c).
It is so ORDERED on November 2, 2022.
_____________________________
Irene Rios, Justice
1
This proceeding arises out of Cause No. 2022CI15379, styled In the Interest of K.L.N., a Child, pending in the 45th
Judicial District Court, Bexar County, Texas, the Honorable Laura Salinas presiding.
2
Additionally, we lifted the abatement previously issued in this matter.
04-22-00553-CV
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of November, 2022.
_____________________________
Michael A. Cruz, Clerk of Court
-2- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482246/ | Fourth Court of Appeals
San Antonio, Texas
November 2, 2022
No. 04-22-00717-CV
Jose Richard GONZALEZ and Elda E. Gonzalez,
Appellants
v.
CITY OF PREMONT, TEXAS,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 20-09-60606-CV
Honorable Richard C. Terrell, Judge Presiding
ORDER
The clerk’s record was originally due October 18, 2022, but was not filed. On October
27, 2022, the district clerk filed a notification of late record, stating the clerk’s record was not
filed because appellant had failed to pay or make arrangements to pay the clerk’s fee for
preparing the record and appellant was not entitled to appeal without paying the fee.
We therefore order appellant provide written proof to this court by November 16, 2022
indicating either (1) the clerk’s fee has been paid or arrangements have been made to pay the
clerk’s fee; or (2) appellant is entitled to appeal without paying the clerk’s fee. If appellant fails
to respond within the time provided, this appeal will be dismissed for want of prosecution. See
TEX. R. APP. P. 37.3(b).
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482342/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2898
_____________
ADORERS OF THE BLOOD OF CHRIST UNITED
STATES PROVINCE,
n/k/a Adorers of the Blood of Christ, United States Region,
Successor by Merger to Adorers of the Blood of Christ,
Province of Columbia, PA, Inc. formerly known as
Saint Joseph Convent Motherhouse of the Adorers of the
Blood of Christ,
Columbia, Pennsylvania, Inc. formerly known as Saint
Joseph's Convent,
Mother House of Sister Adorers of the Most Precious
Blood, Columbia, PA
also known as Sisters Adorers of the Most Precious Blood,
St. Joseph Convent, Columbia, PA;
SISTER SARA DWYER;
SISTER MARIA HUGHES;
SISTER DANI BROUGHT;
SISTER MARY ALAN WURTH;
SISTER THERESE MARIE SMITH,
Appellants
v.
TRANSCONTINENTAL GAS PIPE LINE CO LLC
_____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 5-20-cv-05627)
District Judge: Honorable Jeffrey L. Schmehl
_____________________________________
Argued
September 15, 2022
(Filed: November 8, 2022)
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges.
J. Dwight Yoder [Argued]
Sheila V. O’Rourke
Gibbel, Kraybill & Hess
2933 Lititz Pike
P.O. Box 5349
Lancaster, PA 17606
Counsel for Appellants
Elizabeth U. Witmer [Argued]
Saul Ewing Arnstein & Lehr
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087
Patrick F. Nugent
Sean T. O’Neill
Shane P. Simon
Saul Ewing Arnstein & Lehr
2
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Counsel for Appellee
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
This is the second attempt by the Adorers of the Blood
of Christ (“Adorers”), a religious group opposed to the
extraction, transportation, and use of fossil fuels, to challenge
the route, construction, and operation of an interstate gas
pipeline on their property as violative of their rights under the
Religious Freedom and Restoration Act (“RFRA”). Their first
attempt sought an injunction before the pipeline was
constructed; this attempt seeks money damages after its
completion. In both cases, the District Court dismissed the
complaint on the ground that the Adorers’ failure to present
their claims to the Federal Energy Regulatory Commission
(“FERC”) at any time during the years-long administrative
proceedings, which ultimately authorized the pipeline,
foreclosed their claim under the Natural Gas Act’s (“NGA”)
exclusive-review framework. We affirmed the District Court’s
order in the first action, Adorers of the Blood of Christ v. FERC
(Adorers I), 897 F.3d 187 (3d Cir. 2018), and will do so in this
case as well.
3
I.
As we explained in connection with the Adorers’ first
case, under the NGA, FERC has the sole authority to issue a
“certificate of public convenience and necessity,” which
permits private gas pipeline developers to build, operate, and
maintain new interstate gas pipelines. 15 U.S.C.
§ 717f(c)(1)(A). To determine whether to issue such a
certificate, FERC must consider the public’s input, and, to that
end, it must provide reasonable notice to various parties who
would be affected by the pipeline and provide those parties
with an opportunity to be heard. Id. § 717f(c)(1)(B). “If FERC
ultimately issues the certificate following the requisite hearing,
any aggrieved person may seek judicial review of its
decision—either in the Court of Appeals for the District of
Columbia Circuit or the circuit wherein the natural gas
company is located or has its principal place of business.”
Adorers I, 897 F.3d at 189 (citing 15 U.S.C. § 717r(b)). Before
petitioning an appropriate court of appeals for review of a
FERC order, however, the aggrieved party must first seek
rehearing before FERC. 15 U.S.C. § 717r(a). Failure to seek
rehearing before FERC bars the aggrieved party from later
obtaining judicial review. Id.
II.
The Adorers collectively comprise an order of Roman
Catholic nuns whose deeply-held religious beliefs require them
“to protect, preserve, and treasure the land that” they own and
“to protect and preserve Earth.” App. at 18 ¶ 1. They own
property in Lancaster County, Pennsylvania, and use and
maintain that property in accordance with their religious
4
beliefs, including for agricultural purposes. Among other
things, the Adorers believe the extraction, transportation, and
use of fossil fuels accelerates global warming and climate
change and, thus, defiles God’s creation. Any use of their
property to facilitate the extraction, transportation, and use of
fossil fuels, violates their religious beliefs and practices. So,
in 2014, when Transcontinental Gas Pipe Line Company
(“Transco”) notified the Adorers that it was in the early stages
of designing a new 183-mile long, 42-inch diameter interstate
gas pipeline, known as the “Central Penn Line South,” part of
the “Atlantic Sunrise Pipeline,” to transport 1.7 million
dekatherms of gas through their property each day, the Adorers
explained to Transco’s right-of-way agent that this would
violate their religious beliefs and that they would not entertain
any offer by Transco to purchase a right-of-way through their
property. Nearly a year later, Transco filed a formal
application with FERC to obtain a certificate of public
convenience and necessity. See 15 U.S.C. § 717f(c).
FERC then proceeded to publish numerous notices,
over the course of more than thirty months, as part of the
pipeline approval process and as required under the NGA and
FERC regulations. It mailed letters about the project to
thousands of parties, solicited comments from the public, and
hosted four initial open meetings to discuss, among other
things, the proposed route of the pipeline and the effect of the
pipeline’s construction and operation on various stakeholders.
Adorers I, 897 F.3d at 191-92. Although FERC received
hundreds of written comments and heard scores of comments
and objections from interested parties at its initial meetings, the
Adorers neither provided comments to FERC nor did they
attend any of those meetings. Id.
5
Even when FERC contacted the Adorers directly, they
remained silent. On October 22, 2015, FERC delivered a letter
to the Adorers describing various pipeline routes under
consideration, including routes that would directly impact their
property, and invited them to participate in the environmental
review process where the Adorers could comment on the
project and request modifications or accommodations,
including the rerouting of the pipeline.1 Id. The Adorers,
however, did not respond to the letter, did not participate in the
process, and did not otherwise formally oppose the project as
it remained under review before FERC. Id.
On February 3, 2017, after receiving still further written
comments and oral comments from hundreds of speakers at
environmental review hearings, and after Transco altered the
pipeline’s route at least 132 times in response to public
comment—in total changing the original proposed route by
about fifty percent—FERC issued a certificate to Transco
authorizing it to build, operate, and maintain the pipeline.
Transcon. Gas Pipe Line Co., 158 FERC ¶ 61,125, 2017 WL
496024, ¶ 151 (Feb. 3, 2017). The certificate also authorized
1
Indeed, some property owners obtained meaningful relief
because of their participation in this process. In response to
property owner concerns, FERC attached certain conditions to
the issuance of any certificate to Transco including, for
example, that Transco agree to “compensate [organic farm]
landowners” if their organic farm certifications were impacted
by the pipeline, Transcon. Gas Pipe Line Co., 158 FERC ¶
61,125, 2017 WL 496024, ¶ 101, (Feb. 3, 2017), and that
Transco agree to provide “monetary compensation to the
occupants of affected noise sensitive areas in the project area,”
id. ¶ 167.
6
Transco, as provided under the NGA, to use eminent domain
to take rights-of-way from any property owners unwilling to
sell a right-of-way to Transco voluntarily. Id. ¶ 67; see 15
U.S.C. § 717f(h) (providing that “[w]hen any holder of a
certificate of public convenience and necessity cannot acquire
by contract, or is unable to agree with the owner of property to
the compensation to be paid for, the necessary right-of-way to
construct, operate, and maintain a pipe line . . . it may acquire
the same by the exercise of the right of eminent domain”).
While the final pipeline route avoided some properties because
of fruitful discussion among the property owners, FERC, and
Transco during the certification process, the final pipeline
route, not surprisingly, wended through the Adorers’ property.
On April 14, 2017, Transco filed a complaint in federal
court under Federal Rule of Civil Procedure 71.1 (setting forth
the procedure for condemning real property by eminent
domain) and § 717f(h) of the NGA seeking an order of
condemnation to permit it to take title to rights-of-way in the
Adorers’ property necessary to build and operate the pipeline.
Despite service, the Adorers failed to answer or otherwise
respond to the complaint until after Transco filed a motion for
default judgment and sought an emergency order from the
District Court authorizing it to take immediate possession of
the rights-of-way.
Ultimately, the District Court granted default judgment
to Transco regarding its substantive entitlement to the rights-
of-way but deferred a decision on Plaintiff’s request for
possession until after an evidentiary hearing.2
2
The District Court later granted full possession of the right-
of-way to Transco and awarded “just compensation” to the
7
One week after the District Court granted default
judgment to Transco and just three days before the District
Court’s evidentiary hearing, the Adorers filed a separate suit in
the U.S. District Court for the Eastern District of Pennsylvania
claiming for the first time in any official filing, that FERC, and
Transco—who was later added as a defendant—violated their
rights under RFRA. They urged that under RFRA, they had
the right to raise a claim or defense for “appropriate relief.”
See 42 U.S.C. § 2000bb-1(c) (“A person whose religious
exercise has been burdened in violation of this section may
assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a
government.”). And they contended that this gave them the
right to institute an action in federal court rather than proceed
Adorers but rejected their claim for additional damages, which
the Adorers claimed arose from the same purported violation
of RFRA at issue in this case. The District Court explained
that not only was the Adorers’ RFRA claim irrelevant to the
question of the fair market value of the right-of-way, but also
that it was a counterclaim for compensatory damages beyond
the ken of condemnation proceedings under Fed. R. Civ. P.
71.1. Under Fed. R. Civ. P. 71.1, the District Court noted, “[a]
defendant waives all objections and defenses not stated in its
answer. No other pleading or motion asserting an additional
objection or defense is allowed” and “Courts have repeatedly
upheld Rule 71.1’s limitation on additional pleadings such as
counterclaims.” App. at 523 (internal quotation marks
omitted) (quoting Fed. R. Civ. P. 71.1(e)(3)). As the Adorers
failed to answer the condemnation complaint and their claim
for additional damages was not cognizable under Fed. R. Civ.
P. 71.1, the District Court rejected the claim. The Adorers did
not appeal that ruling.
8
before FERC. The Adorers sought an injunction permanently
enjoining Transco from completing its project.
Transco moved to dismiss the Adorers’ complaint for
lack of subject matter jurisdiction and the District Court
granted the motion. The District Court concluded that “RFRA
did not allow the Adorers to circumvent the specific procedure
prescribed by [Congress under] the NGA for challenging a
FERC order” and “[b]ecause the Adorers had failed to seek
FERC rehearing . . . it was foreclosed from hearing their
claims.” Adorers I, 897 F.3d at 193. Adorers appealed and we
affirmed the District Court’s order. Id. at 198.
In so doing, we rejected the Adorers’ contention that
RFRA somehow gave them the statutory right to assert their
claim in federal district court rather than before FERC. We
reasoned that the NGA’s “exhaustion provision . . . makes clear
Congress’ intent to confer exclusive jurisdiction to the NGA
by a highly reticulated statute nullifying any procedural
alternatives an aggrieved party may otherwise have.” Id. at
195. We continued,
Indeed, the NGA is the exclusive
remedy for matters relating to the
construction of interstate natural
gas pipelines. It forms the
paradigm by which FERC operates
in matters related to interstate
natural gas pipelines. By failing to
avail themselves of the protections
thereunder, the Adorers have
foreclosed judicial review of their
substantive RFRA claims.
9
Id.
We also rejected the Adorers’ “claim that, even if they
had indulged the administrative process, they could not have
asserted their rights under RFRA within the NGA because they
would have had ‘to have anticipated a possible RFRA violation
and affirmatively acted to become a party to a private third
party’s administrative application.’” Id. at 197. In rejecting
this claim, we observed that “FERC may hear any claim raised
before it—even potential violations of federal law.” Id. And
if FERC incorrectly adjudicated such a claim, the aggrieved
claimant “has the opportunity for direct appeal before a federal
court of appeals.” Id. Had the Adorers “participated in the
administrative process, FERC may have denied or modified the
conditions of Transco’s certificate . . . . [and] [u]nder these
circumstances, the Adorers would have, at the very least, had
the opportunity to seek the [injunctive] relief they so desire.”
Id. at 198.
Soon after the pipeline was completed and put into
service, the Adorers filed a new complaint in the District Court.
Although, as the District Court noted, this new complaint
“[wa]s nearly identical to the previous action filed by the
Adorers for [an] alleged RFRA violation[]” the Adorers made
three changes. App. at 7. First, the Adorers named only
Transco as a defendant. Second, rather than seek injunctive
relief as they unsuccessfully attempted to in Adorers I, they
sought money damages for the RFRA violation. App. at 41 ¶
129. Third, the Adorers alleged, somewhat differently from
their position in Adorers I, that the source of the substantial
burden on their religious exercise arose not from “FERC’s
decision to force the Adorers to use land they own to
accommodate a fossil fuel pipeline,” Compl. at 9 ¶ 45, Adorers
10
I, No. 5:17-cv-03163-JLS (E.D. Pa. July 14, 2017), ECF No. 1
(emphasis added), but instead, from “Transco’s action in
placing the Pipeline in to [sic] service using the Adorers’ land,”
App. at 37 ¶ 111 (emphasis added), thus, suggesting that their
claim was not ripe until this occurred.3
Transco again moved to dismiss this new complaint for
lack of subject matter jurisdiction and the District Court again
granted the motion. The District Court, applying our holding
in Adorers I, concluded that given Adorers’ admission that
“they not only failed to apply for a rehearing before FERC but
failed to present their RFRA claims in any manner to the
FERC, and ultimately [failed] to [appeal their claim to] the
appropriate Court of Appeals . . . . the Adorers . . . foreclosed
judicial review of their substantive RFRA claims.” App. 9, 10
(citation omitted). The District Court rejected the Adorers’
argument that “because they are seeking monetary damages . .
. as opposed to the injunctive relief they sought in Adorers I . .
. and that money damages are not available through FERC’s
administrative process, this Court has subject matter
jurisdiction.” App. at 10.
The Adorers filed this timely appeal.
3
Compare Compl. at 2 ¶ 1, Adorers I, No. 5:17-cv-03163-JLS
(E.D. Pa. July 14, 2017), ECF No. 1 (“FERC’s action in issuing
the FERC Order approving and authorizing Transco to forcibly
take and use land owned by the Adorers . . . will, if allowed to
proceed, substantially burden the Adorers’ exercise of their
deeply held religious beliefs”) with App. 33 ¶ 80 (“[T]here was
no burden placed on the Adorers’ religious exercise at the time
the FERC Order was issued.”).
11
III.4
A.
As we did in Adorers I, we find the Supreme Court’s
opinion in City of Tacoma v. Taxpayers of Tacoma to provide
the controlling principle in this case, 357 U.S. 320 (1958).
There, the City of Tacoma was to construct a power plant on
the Cowlitz River under a license issued by the Federal Power
Commission (“FPC”). Id. at 324. The building of the project
required the City to take land used as a fish hatchery and owned
by the State of Washington. Id. at 325. Unlike the situation in
this case, the State there did object and unsuccessfully opposed
the grant of the license by the FPC. Id. at 325-26. The State
later moved successfully in the Superior Court of Washington
for an order enjoining the City from proceeding to construct
the project or sell any of its revenue bonds, an order which was
then ultimately appealed and affirmed by the Supreme Court
of Washington. Id. at 331-32.
The United States Supreme Court granted certiorari and
reversed. It noted:
This statute is written in simple
words of plain meaning and leaves
no room to doubt the congressional
purpose and intent. It can hardly
4
We have jurisdiction under 28 U.S.C. § 1291. We review
threshold matters of justiciability de novo. See In re Horizon
Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 632
(3d Cir. 2017); Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d
261, 267-68, 267 n.8 (3d Cir. 2016).
12
be doubted that Congress, acting
within its constitutional powers,
may prescribe the procedures and
conditions under which, and the
courts in which, judicial review of
administrative orders may be had.
So acting, Congress in § 313(b)
prescribed the specific, complete
and exclusive mode for judicial
review of the Commission’s
orders. It there provided that any
party aggrieved by the
Commission’s order may have
judicial review, upon all issues
raised before the Commission in
the motion for rehearing, by the
Court of Appeals which ‘shall
have exclusive jurisdiction to
affirm, modify, or set aside such
order in whole or in part,’ and that
‘[t]he judgment and decree of the
court, affirming, modifying, or
setting aside, in whole or in part,
any such order of the Commission,
shall be final . . . . It thereby
necessarily precluded de novo
litigation between the parties of all
issues inhering in the controversy,
and all other modes of judicial
review.
Id. at 335-36 (emphasis added).
13
The Court then concluded that the State’s attempts to
obtain recourse from the Washington state courts constituted
“impermissible collateral attacks” on the approval by the FPC,
which was reviewed and affirmed by the U.S. Court of Appeals
for the Ninth Circuit. Id. at 341. As we observed in Adorers
I, “the Supreme Court has long held that . . . statutory review
scheme[s] [like that of the NGA, which channel all claims
relating to the certification or licensing of interstate energy
projects through an exclusive judicial review scheme], . . .
‘necessarily preclude[] de novo litigation between the parties
of all issues inhering in the controversy, and all other modes of
judicial review.’” Adorers I, 897 F.3d at 197 (quoting Tacoma,
357 U.S. at 336, 341) (emphasis added). The rule that any
claim raising issues “inhering in” the certification of a new
interstate gas pipeline must first be presented to FERC—or else
forfeited—also applies to claims that “could and should have
been” raised during the certification process. Tacoma, 357
U.S. at 339. In commenting on this principle, the Tenth Circuit
has remarked that it “would be hard pressed to formulate a
doctrine with a more expansive scope.” Williams Nat. Gas Co.
v. City of Okla. City, 890 F.2d 255, 262 (10th Cir. 1989).
The well-established doctrine of “impermissible
collateral attack” has been invoked by many of our sister courts
of appeals to bar suits brought by persons aggrieved by the
certification, construction, or operation of new interstate
energy projects. See, e.g., Bohon v. FERC, 37 F.4th 663, 666
(D.C. Cir. 2022) (concluding that “[t]he Natural Gas Act’s
review scheme precluded district-court jurisdiction over the
Bohons’ collateral attack on the FERC order”); Otwell v. Ala.
Power Co., 747 F.3d 1275, 1279 (11th Cir. 2014) (concluding
that various property owners’ state tort claims regarding the
water levels in a lake were barred as “impermissible collateral
14
attack[s]” on a FERC license to a hydroelectric dam company
that permitted the company to change the water levels in the
lake); Am. Energy Corp. v. Rockies Exp. Pipeline LLC, 622
F.3d 602, 605 (6th Cir. 2010) (concluding that a coal
company’s various claims were barred as impermissible
collateral attacks on a FERC certificate and explaining that
“[e]xclusive means exclusive, and the Natural Gas Act
nowhere permits an aggrieved party otherwise to pursue
collateral review of a FERC certificate in state court or federal
district court”); see also Simmons v. Sabine River Auth. La.,
732 F.3d 469, 477 (5th Cir. 2013) (not applying Tacoma but
otherwise concluding that a property owner’s state negligence
claim for damages caused by floods resulting from the opening
of a hydroelectric dam was an improper “attempt to force
changes to a FERC-issued license”).
The Eleventh Circuit’s opinion in Otwell is particularly
instructive. 747 F.3d 1275. Alabama Power operated a
hydroelectric dam on a lake for decades, under a license from
the FPC. Id. at 1277. As the license approached its expiration,
the utility sought to renew the license on new terms. Id. at
1278. Contrary to its long-existing practice, the utility sought
to lower the water level in the lake and release water at various
times of the year to cool a downstream power plant. Id. The
Smith Lake Improvement and Stakeholders Association
(“SLISA”), comprised of some of the landowners from around
the lake, intervened in the FERC proceedings and opposed the
renewal. Id. It requested that the utility maintain higher water
levels in the lake and minimize the release of water
downstream. Id. FERC rejected SLISA’s requests and granted
the utility a license to operate at the lower water level, which it
then did. Id.
15
Some members of SLISA then filed a putative class
action in state court against the utility, later removed to federal
district court, claiming that its lowering of the water in the lake
caused tortious injury to their property. Id. To remedy their
injuries, the plaintiffs sought “monetary damages, a
declaratory judgment[,] . . . and an injunction requiring [the
utility] to construct cooling towers at [the downstream power
plant].” Id. at 1279. The district court granted summary
judgment to the utility concluding that the plaintiffs’ claims
“were an impermissible collateral attack on the FERC’s . . .
relicensing order.” Id. at 1279. The Eleventh Circuit agreed.
Id. at 1277.
Relying on the principle articulated in Tacoma, the
Eleventh Circuit wrote that “Appellants cannot escape
[Congress’ exclusive review scheme] by arguing that they are
pursuing different claims and different relief than the parties
before the FERC.” Id. at 1281 (citing Tacoma, 357 U.S. at
336). “[T]heir . . . claims are inescapably intertwined with a
review of the FERC’s final decision.” Id. at 1282 (emphasis
added) (citations omitted). “The review entailed by
Appellants’ claims is statutorily dedicated to the court of
appeals.” Id.
The Court further concluded that the landowners were
barred from advancing their state tort claims against the utility
even though they were not themselves intervenors in the
relicensing proceedings. The Court explained,
[w]e do not read [the exclusive
jurisdiction scheme] as allowing
any person or entity that was not a
party to the FERC proceedings to
16
collaterally challenge the final
order resulting from those
proceedings. Instead, we read [it]
as limiting the persons who may
seek judicial review of an order of
the FERC to those parties who
participated in the FERC
proceedings. Thus, non-parties to
the proceedings before the FERC
may not contest the agency’s final
decision in an alternative forum by
bringing challenges that are
inescapably intertwined with a
review of the agency’s final
determination.
Id. at 1282 (emphasis added) (internal citations omitted). This
reading, the court continued, “prevents the [exclusive
jurisdiction] provision from being rendered nugatory.” Id.
Indeed, to read the provision in any other way would allow,
any person or entity with an
interest in the proceedings before
the FERC [to] evade the . . .
exclusive judicial review provision
by simply choosing not to
participate in the proceedings, or
by creating a corporate entity to
champion its interests before the
agency. Then, following an
adverse order, the non-participants
could obtain a collateral
redetermination of the identical
17
issues considered and rejected in
the FERC’s final order because
those persons were not parties to
the proceedings. Such a
construction of the statute would
do violence to Congress’s
deliberately crafted administrative
scheme.
Id. at 1282-83 (emphasis added). In the Eleventh Circuit’s
view, whether a party’s claim is an impermissible collateral
attack upon a FERC order centers on whether the adjudication
of the claim would require the court to review any issues
“inescapably intertwined” with the earlier FERC certification
process. Id. at 1282.
The Eleventh Circuit thus added another way of
determining whether the later proceeding involved issues that
“inhered in” the certification process and constituted an
impermissible collateral attack on a FERC decision. It looked
to whether the later claim raised issues “inescapably
intertwined” with the FERC certification process. This tracks
the approaches of other courts of appeals.
The D.C. Circuit in Bohon, for example, focused on
whether the plaintiff’s claims were “anchored in [the] pipeline
proceedings” and, if successful, would “directly imperil[] a
specific certificate that FERC granted.” 37 F.4th at 666. And
the Sixth Circuit in Am. Energy Corp. focused on whether the
“heart of th[e] claim[]” was bound up in the operation of the
pipeline, which was authorized by FERC’s certificate. 622
F.3d at 605. No matter the specific language employed by our
various sister courts of appeals to describe the analysis, in
18
answering the question of whether a claim is an impermissible
collateral attack, they each focus their attention not on the
plaintiffs’ characterization of their claim but rather on whether
the claim “could and should have” been presented to FERC
because the claims raise “issues inhering in the controversy.”
Tacoma, 357 U.S. at 336, 339.
The Adorers urge that the Supreme Court’s recent
opinion in PennEast Pipeline Co. v. New Jersey, supports their
position that theirs is not a collateral attack. 141 S. Ct. 2244
(2021). We disagree.
There, as in Tacoma, the recipient of a certificate of
public convenience and necessity sought to exercise its
eminent domain power against state lands. Id. at 2253. The
State of New Jersey, however, opposed the condemnation
proceedings on sovereign immunity grounds. Id. It lost before
the district court, but we reversed because we did not think that
15 U.S.C. § 717f(h) clearly delegated the federal government’s
power to pierce states’ sovereign immunity along with its
eminent domain power. Id. at 2253–54. The Supreme Court
granted certiorari and, before reaching the merits of the
dispute, held that New Jersey had not launched a collateral
attack on the FERC order granting PennEast’s certificate. Id.
at 2254. The Court explained that this case was unlike
Tacoma, because
New Jersey does not seek to
modify FERC’s order; it asserts a
defense against the condemnation
proceedings initiated by PennEast.
To determine whether the District
Court correctly rejected New
19
Jersey’s defense, the Third Circuit
needed to decide whether
§ 717f(h) grants natural gas
companies the right to bring
condemnation suits against States.
Its conclusion that § 717f(h) does
not authorize such suits did not
“modify” or “set aside” FERC’s
order, which neither purports to
grant PennEast the right to file a
condemnation suit against States
nor addresses whether § 717f(h)
grants that right.
Id. Even though the state asserted a counterclaim that would
have the effect of negating the route that FERC had set up via
the regulatory process, it was not a collateral attack because
asserting the sovereign immunity defense is not the same as
“arguing that a licensee could not exercise the rights granted to
it by the license itself.” Id. (emphasis added). Our
determination as to whether the NGA delegated the federal
power to pierce states’ sovereign immunity did not touch the
FERC order at all. See id.
The Adorers urge that Tacoma is distinguishable and
PennEast is the better analogue here because the “appropriate
relief” that is due to them under RFRA is monetary damages,
42 U.S.C. § 2000bb-1(c), and granting those does not modify
or set aside Transco’s certificate. We disagree. The fact
remains that their allegation that the presence and operation of
the pipeline on their property violated their rights under RFRA
is the essence of both lawsuits. This could and should have
been contested before FERC during the certification
20
proceedings where such issues were to be resolved.5 The
appropriate court of appeals could then have reviewed and
remedied any insufficiency in FERC’s resolution of the
Adorers’ claim. But, again, having failed to avail themselves
of the exclusive review scheme established by Congress under
the NGA for adjudicating such claims, the Adorers’ claim is
now barred as an impermissible collateral attack.
The Tenth Circuit’s analysis in Save the Colorado v.
Spellmon, --- F.4th ----, No. 21-1155, 2022 WL 4588319 (10th
Cir. Sept. 30, 2022) leads us to the same result. There, the court
let the opponents of plans to raise a local dam and expand the
reservoir behind it sue in the district court, but the basis for
their lawsuit was completely distinguishable from the
Adorers’. The at-issue agency approvals did not come from
FERC, but from the Army Corps of Engineers and the United
States Fish and Wildlife Service. Save the Colorado, 2022 WL
4588319, at *2, *7. After analyzing the underlying statutory
5
Indeed, the more “appropriate relief,” as the District Court
noted, was presumably a rerouting of the pipeline around their
property. App. at 11. The thrust of RFRA is the prevention or
elimination of a violation, not simply the compensation for
spiritual harms after the fact by an award of money. See Little
Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
140 S. Ct. 2367, 2395 (2020) (Alito, J., concurring) (emphasis
added) (citation omitted) (explaining that “[o]nce it [is]
apparent that [the Government’s action] [runs] afoul of RFRA,
the Government [i]s required to eliminate the violation. RFRA
does not specify the precise manner in which a violation must
be remedied; it simply instructs the Government to avoid
‘substantially burden[ing]’ the ‘exercise of religion’—i.e., to
eliminate the violation.”).
21
claims that the plaintiffs had brought and determining whether
each underlying issue inhered in the controversy per Tacoma,
id. at *7–12, the Tenth Circuit concluded that even though “the
municipality needed a discharge permit to raise the dam and
expand the reservoir—matters subject to [FERC’s] licensing
decision,” because the NGA did not govern the licenses
granted by the Corps or Service and FERC could not hear
challenges to those licenses, the plaintiffs’ “claims did not
attack the merits of [FERC’s] approval of an amended license,”
id. at *14. Therefore, this was not a collateral attack. Id. at *5,
14.
The Tenth Circuit noted that this conclusion was
consistent with Adorers I, because the breadth of FERC’s
authority was not an issue in that case. Id. at *9. Here, there
is no question that FERC can adjudicate RFRA claims, see
Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1213 (9th
Cir. 2008) (noting that FERC had evaluated the tribe’s RFRA
claim before relicensing a hydroelectric project), and the
Adorers do not attack any license that Transco has received
from any other agency, so Save the Colorado does not advance
the Adorers’ cause.
B.
In this case, we conclude the Adorers’ RFRA claim is
an impermissible collateral attack on the FERC certificate
because the claim could and should have been raised before
FERC. Their RFRA claim raises issues inhering in the
controversy, namely the route, construction, and operation of
the pipeline through the Adorers’ property. The Adorers allege
that “Transco’s action in placing the Pipeline in to [sic] service
using the Adorers’ land caused a substantial burden to the
22
religious exercise of the Adorers in violation of RFRA.” App.
at 37 ¶ 111 (emphasis added). They also allege that it was
Transco’s “use [of their] private property . . . to install and
operate a natural gas pipeline that . . . “damage[d] . . . the
Adorers.” App. at 39 ¶ 117. These allegations make plain that
their RFRA claim is “anchored in [the] pipeline.” Bohon, 37
F.4th at 666. It is “inescapably intertwined” with the pipeline’s
route, construction, and operation. Otwell, 747 F.3d at 1282.
And the “heart of th[e] claim[]” challenges the operation of the
pipeline, which was authorized after extensive, public
proceedings before FERC as required by the NGA and FERC
regulations. Am. Energy Corp., 622 F.3d at 605.
The consequences of a hypothetical victory for the
Adorers betray the collateral nature of their RFRA damages
suit. Were the Adorers to succeed on their RFRA claim,
moreover, a damages award could conceivably affect, among
other things, the price of gas flowing to Transco’s customers,
the gas flow rate, and the general fiscal and economic impact
of operating the pipeline. Such a result would no doubt
impermissibly, “directly imperil[]” the FERC certificate and
would otherwise undermine the certification procedure
Congress created in enacting the NGA. Bohon, 37 F.4th at
666. Furthermore, it would cause potential contractors to think
twice before embarking on a costly project only to later face
claims for damages caused by the pipeline. Thus, the Adorers’
claim is, like the plaintiffs’ claims in Tacoma, Otwell,
Williams, Bohon, and Am. Energy, an impermissible collateral
attack.
23
C.
We cannot conclude without addressing three specific
contentions pressed by the Adorers in their briefs and at oral
argument. First, they urge that because FERC cannot award
money damages, this suit was properly brought in District
Court.6 But this argument makes little sense. Had they
proceeded with an objection before FERC, and convinced the
Commission of a violation, no doubt the Commission would
have provided relief—by rerouting the pipeline or otherwise
attaching some condition upon the permit as it did in countless
other instances—and if it did not, the Adorers would have had
recourse to an appeal to an appropriate court of appeals. If their
claim was valid, they would have suffered no harm. Moreover,
any claim for damages would not have been cognizable as no
damage had yet occurred. Whether FERC can or cannot award
damages is irrelevant.
Second, the Adorers essentially repeat the argument
they made in Adorers I, that their claim was not ripe at the time
FERC issued the certificate, but rather, the claim began to
accrue only once Transco “plac[ed] the Pipeline in to [sic]
service,” App. at 37 ¶ 111, thereby, placing a burden upon their
religious exercise. In addition to the reason we previously
rejected this claim,7 we note that were we to adopt the Adorers’
suggestion that they were under no obligation to present their
RFRA claim to FERC because the claim was not ripe, the court
would effectively exempt all claims against a new pipeline’s
construction and operation from the NGA’s review scheme.
Such a rule would entirely upend Congress’s intent.
6
Appellants’ Br. at 40-47.
7
See above Section II.
24
Third, the Adorers urge that because Transco knew of
their objection to the pipeline and neither it nor FERC brought
them into the administrative proceeding to resolve it, they
should somehow be permitted to proceed in federal court. But
this turns the administrative process on its head. It is not up to
the pipeline contractor or FERC to seek out potential objectors
at its peril. To the contrary, objectors who sit on their hands
and do not raise their concerns in the administrative process do
so at their peril. To permit a party to reserve a claim, the
success of which would directly imperil a FERC decision to
certify an interstate pipeline, by remaining silent during the
FERC proceedings only to raise the claim in de novo litigation
in a different forum of its own choosing would contravene
Congress’ decision to channel all such claims through the
NGA’s exclusive review framework. Such a result would also
contravene the Supreme Court’s long-standing precedent in
Tacoma.
IV.
For these reasons, we will affirm the District Court’s
order granting Transco’s motion to dismiss.
25 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482343/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 21-2114
__________
UNITED STATES OF AMERICA
v.
RASHEEM LANGLEY, a/k/a Q,
Appellant
__________
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:20-cr-01025-001)
District Judge: Honorable John M. Vazquez
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 12, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: November 7, 2022)
__________
OPINION OF THE COURT
__________
Olubukola O. Adetula, Esq.
20 Rosewood Lane
Denville, NJ 07834
Attorney for Appellant
Rasheem Langley
Ray Brook FCI
P.O. Box 900
Ray Brook, NY 12977
Pro se
Mark E. Coyne, Esq.
Jane M. Dattilo, Esq.
Steven G. Sanders, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Appellee
KRAUSE, Circuit Judge.
When counsel for a criminal defendant seeks to
withdraw from representing her client, she must comply with
the Supreme Court’s edict in Anders v. California, 386 U.S.
738 (1967) and file what is known as an Anders brief. But
counsel filing an Anders brief confronts a paradox. On the one
2
hand, to discharge her obligations under Anders, precedent and
our Local Rules require counsel to identify all issues that might
“arguably support” the defendant’s appeal—only to explain
why those issues are frivolous. Id. On the other hand, we have
advised that counsel need not raise every frivolous issue. That
paradox is even more confounding where a defendant
subsequently files a pro se brief raising frivolous issues that
counsel did not address. What, if anything, should counsel do
in that circumstance? Does her failure either to anticipate the
defendant’s arguments or to file a supplemental Anders brief
addressing them mean that counsel’s brief is per se inadequate?
We have not been consistent in answering these questions, so
we write today to clarify counsel’s obligations.
The vehicle that brings those issues before us is the
appeal filed by Richard Langley. Langley’s court-appointed
counsel sought to withdraw from representing Langley, filing
an Anders motion and accompanying brief that, on its face, met
the standard for a “conscientious investigation . . . [of] possible
grounds [for] appeal.” Id. at 741-42. After being served a copy
of that brief, however, Langley filed his own pro se brief
raising three arguments that were not addressed by counsel but
were patently frivolous. Because we hold that counsel is not
required to anticipate or address the defendant’s arguments in
that circumstance, and we agree with Langley’s counsel that
3
there are no non-frivolous issues for Langley to raise on appeal,
we will grant counsel’s Anders motion and dismiss the appeal.
I. BACKGROUND1
In or around 2009, a group of individuals operating
under the names “CKarter Boys” or the “Jonez Boys” began a
drug trafficking operation (“DTO”) in Newark, New Jersey.
Defendant Richard Langley was a minor player in this DTO
and served as a street-level dealer between 2017 and 2019.
And after an investigation consisting of audio and visual
surveillance and controlled purchases, Langley was arrested
along with 25 other individuals in connection with the DTO on
June 18, 2019.
The Government offered Langley a plea agreement in
January 2020. The terms of that agreement provided that
Langley would plead guilty to a single count of conspiring with
others to distribute and possess with the intent to distribute 28
grams or more of crack-cocaine in violation of 21 U.S.C. §
846—an offense carrying a mandatory minimum sentence of
5-years’ imprisonment. It also provided that he would not
argue for a sentence below five years’ imprisonment, and that
he would enter into a limited appellate waiver applicable to any
challenges to the “sentence imposed by the sentencing court if
that sentence is 5 years or below.” App at 74. In exchange for
his plea, the Government agreed to not file additional charges
1
The factual and procedural background of this appeal are
taken from the Government’s criminal complaint, Langley’s
presentence report, Langley’s plea agreement, Langley’s
information, and the transcripts of Langley’s plea hearing and
sentencing hearing before the District Court.
4
against Langley for his involvement in the DTO and waived its
own right to appeal if the sentence imposed was “5 years or
above.” Id.
Although Langley and the Government acknowledged
the sentencing decision was entirely within the discretion of
the District Court and “recognize[d] that the stipulations,”
including the stipulated 5-year sentence, were “not binding
upon the Court,” both parties “nevertheless agree[d] to the
stipulations” and that a term of five-years’ imprisonment, i.e.,
60-months’, would be “reasonable.” App. at 74.
Langley accepted this plea deal and pleaded guilty in
November 2020. During his plea hearing, the District Court
engaged in a thorough colloquy under Fed. R. Crim. P. 11. The
Court confirmed that Langley wished to proceed by video
conference, that he was not intoxicated, and that he was
knowingly and voluntarily pleading guilty. See Fed. R. Crim.
P. 11(b)(2). It also confirmed that Langley understood he had
the right to plead not guilty and have a trial by jury, and that if
he chose to go to trial, he would have the right to an attorney,
the right to be present at trial, the right to subpoena witnesses,
the right not to testify, and that by pleading guilty he would
waive these rights. Id. 11(b)(1)(B)-(F).
Before Langley allocuted to an adequate factual basis
for his plea, the Court advised him of the penalties he faced for
his offense, and explained that, though non-binding, the Court
would have to calculate a sentence range using the United
States Sentencing Guidelines. Id. 11(b)(1)(G)-(O), 11(b)(3).
And importantly, for our purposes, the Court ensured that
Langley had discussed his plea agreement with his counsel and
that he understood its terms—including the terms and effect of
5
the appellate waiver. Id. 11(b)(1)(N). After affirming that he
understood each point addressed by the District Court, Langley
entered his plea.
A few months later, in May 2021, the District Court held
Langley’s sentencing hearing. There, the District Court heard
arguments from both the Government and defense counsel that
a 60-month sentence was appropriate given Langley’s minor
role in the DTO and the age of his prior convictions. Although
not required, it also addressed pro se arguments raised by
Langley, who had submitted a letter to the Court requesting a
sentence reduction based on the COVID-19 pandemic, the
effect of the crack/powder cocaine disparity on the Court’s
Guidelines calculation, and the age of the criminal convictions
used to calculate his Criminal History Category. The Court
advised Langley that his prior convictions had to be counted
because the last day of incarceration for each of these offenses
fell within the 15-year window for counting of offenses under
the Sentencing Guidelines. It also explained to him that it had
considered his arguments, but because it intended to grant a
substantial downward variance and impose the mandatory
minimum, in any event, those arguments could not reduce his
sentence any further.
Based on a Criminal History Category of VI and an
offense level of 25, the Court determined that the applicable
guideline range was 110 to 137 months. Nonetheless, after
considering arguments of counsel and the factors specified in
18 U.S.C. § 3553(a), the Court granted the downward variance
agreed upon by Langley and the Government and sentenced
Langley to 60-months’ imprisonment, followed by 5 years of
supervised release, and a $100.00 special assessment.
6
Langley filed a timely notice of appeal and requested
appointment of appellate counsel, which we granted,
appointing Langley’s trial counsel to serve on appeal. In due
course, the Clerk of Court issued a briefing schedule. When
the time came, however, in lieu of filing an appellate brief,
Langley’s counsel moved to withdraw, asserting in his Anders
brief, as required under Local Appellate Rule (L.A.R.)
109.2(a), that he identified “no issue of even arguable merit.”
Upon receipt of that motion, the Clerk issued a notice to
Langley. L.A.R. 109.2(a). Shortly thereafter, Langley
submitted his own pro se brief, objecting to withdrawal of
counsel and arguing for a further sentencing reduction on the
same grounds he had urged in the District Court.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over Langley’s appeal under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). Having received an
Anders motion, this Court must evaluate the adequacy of
counsel’s briefing and “must then itself conduct a full
examination of all the proceedings to decide whether the case
is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988)
(internal citation omitted). If there are no non-frivolous issues
for appeal, we will grant counsel’s motion to withdraw and will
dismiss the appeal.2 In conducting this analysis, we “exercise
2
Local Appellate Rule 109.2(a) states that if this Court “agrees
that the appeal is without merit, it will grant counsel’s Anders
motion, and dispose of the appeal without appointing new
counsel,” L.A.R. 109.2(a), but our cases have varied between
“dispos[ing] of the appeal” by way of dismissal, on the one
hand, and affirmance, on the other. Compare United States v.
Coleman, 575 F.3d 316, 322 (3d Cir. 2009) (disposing of
wholly frivolous appeal by affirming the district court), with
7
plenary review to determine whether there are any such [non-
frivolous] issues” and review factual findings for clear error.
Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir.
2012).
III. DISCUSSION
When counsel files an Anders brief seeking to withdraw
from representation, we ask two principal questions: (1)
whether counsel’s brief in support of her motion fulfills the
United States v. Moore, 801 F. App’x 837, 841 (3d Cir. 2020)
(disposing of wholly frivolous appeal by dismissing appeal).
Other Circuits have also varied in their approach. See, e.g.,
United States v. Seignious, 757 F.3d 155, 166 (4th Cir. 2014)
(affirming); United States v. Pesina-Rodriguez, 825 F.3d 787,
788 (5th Cir. 2016) (dismissing appeal); United States v. Zitt,
714 F.3d 511, 515 (7th Cir. 2013) (affirming conviction and
dismissing appeal); United States v. Edwards, 400 F.3d 591,
592 (8th Cir. 2005) (affirming); United States v. Bennett, 219
F.3d 1117, 1126 (9th Cir. 2000) (affirming).
Anders itself provides that if a court finds a defendant’s
appeal is wholly frivolous, “it may grant counsel’s request to
withdraw and dismiss the appeal insofar as federal
requirements are concerned, or proceed to a decision on the
merits, if state law so requires.” Anders, 386 U.S. at 744; see
also Smith v. Robbins, 528 U.S. 259, 278 (2000) (“[A]n
indigent defendant who has his appeal dismissed because it is
frivolous has not been deprived of a ‘fair opportunity’ to bring
his appeal.”) (internal citation omitted); cf. 28 U.S.C. §
1915(e)(2)(B)(i) (instructing courts to dismiss “frivolous or
malicious” appeals). We will therefore dismiss this appeal,
rather than affirm.
8
requirements of L.A.R. 109.2(a); and (2) whether an
independent review of the record presents any non-frivolous
issues. See United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001). Counsel fails to fulfill her obligation under the first
prong of the Anders inquiry where she either does not
adequately attempt “to uncover the best arguments for . . . her
client,” or she “argue[s] the purportedly frivolous issues [she
identifies] aggressively without explaining the faults in the
arguments.” Id. (quoting United States v. Marvin, 211 F.3d
778, 781 (3d Cir. 2000)). Conversely, counsel satisfies her
Anders obligation if she: (1) demonstrates to this Court that she
has thoroughly examined the record in search of appealable
issues, and (2) explains why those issues are frivolous. Id.
Once we determine whether counsel has met her Anders
obligation, we proceed to step two of the Anders inquiry.
Although at step two we conduct our own review of the
record regardless, it matters whether we found counsel’s
review adequate at the first step. It matters to the scope of step
two because if counsel has fulfilled her obligation under
Anders, then we may limit our review of the record to the issues
counsel raised. Id. at 301. It matters for clients because an
inadequate brief impairs their ability to respond by “failing to
provide them with complete information about the basis for
counsel’s motion to withdraw.” United States v. Whitely, 503
F.3d 74, 77 (2d. Cir. 2007). And it matters for counsel for the
claims against counsel that may flow from an adverse finding
in collateral proceedings and for the reputation of counsel
generally. Yet what is required to meet the standard of an
adequate review by counsel has not always been described in
our case law with clarity or consistency.
We endeavor to shed light on that standard today.
Below, we address, first, the obligation of counsel under
9
Anders and our Local Rules; second, whether Langley’s
counsel has met that obligation here; and finally, whether our
independent review of the record discloses any non-frivolous
issues for appeal.
A. The Obligation of Counsel Under Anders and
L.A.R. 109.2(a)
In Anders, the Supreme Court clarified what counsel
must do in order to withdraw from representing a criminal
defendant while still satisfying “[t]he constitutional
requirement of substantial equality and fair process.” Anders,
386 U.S. at 744. There, the defendant was convicted of a
felony drug offense and sought to appeal with the assistance of
his appointed counsel. Id. at 739. After studying the record,
court-appointed counsel concluded there was no merit to his
client’s appeal and so sent a letter to the California District
Court of Appeal seeking to withdraw and explaining:
I will not file a brief on appeal as I am of the
opinion that there is no merit to the appeal. I
have visited and communicated with Mr. Anders
and have explained my views and opinions to
him. He wishes to file a brief in this matter on his
own behalf.
Id. at 740, 742.
Extrapolating on its holding in Ellis v. United States,
356 U.S. 674 (1958), the Supreme Court in Anders held that
for counsel to withdraw from representation while still
comporting with the constitutional requirement that an indigent
defendant be provided representation, counsel must satisfy the
court that she has conducted a “conscientious investigation”
10
and “has diligently investigated the possible grounds of
appeal.” Anders, 386 U.S. at 741-42. This standard, the Court
concluded, was not satisfied by the cursory letter submitted by
court-appointed counsel in Anders. Id. at 743-44. Rather, to
demonstrate a “conscientious examination” of the record, it
required that counsel provide “a brief referring to anything in
the record that might arguably support the appeal.” Id. at 744.
Since Anders, the Supreme Court has provided
additional guidance of what is expected of counsel to
demonstrate a “conscientious examination” of the record. In
McCoy v. Ct. of Appeals of Wisc., Dist. 1, for example, the
Supreme Court noted that counsel’s obligation under Anders is
to provide “a thorough review of the record and a discussion of
the strongest arguments revealed by that review.” 486 U.S.
429, 444 (1988). Likewise, in Penson v. Ohio, the Court
emphasized that counsel’s Anders brief “serves the valuable
purpose of assisting the court in determining both that counsel
in fact conducted the required detailed review of the case and
that the appeal is indeed so frivolous that it may be decided
without an adversary presentation.” 488 U.S. at 81-82.
We have addressed the expectations of counsel when
seeking to withdraw under Anders primarily in three cases:
United States v. Marvin, 211 F.3d 778 (3d Cir. 2000), Youla,
241 F.3d at 296, and Coleman, 575 F.3d at 316. That precedent
echoes the holdings of the Supreme Court in Anders, McCoy,
and Penson that to withdraw from representing an indigent
defendant while complying with the Constitution, counsel
must submit a brief evincing a “conscientious examination” of
the record. See Marvin, 211 F.3d at 779-80; Youla, 241 F.3d
at 299-300; Coleman, 575 F.3d at 319. But recognizing that
11
the “conscientious examination” standard is less than pellucid,3
we attempted in these cases to bound the scope of the search
expected of counsel. Specifically, while we reiterated that
counsel must satisfy this Court that she has “scoured the record
in search of appealable issues” and “attempted to uncover the
best arguments” for her client, we also provided the assurance
and qualification that counsel need not raise every possible
appealable issue to meet this standard. Marvin, 211 F.3d at
780; Youla, 241 F.3d at 300; Coleman, 575 F.3d at 319.
Yet these exact same cases could be read to fault
counsel for failing to anticipate and address every issue
subsequently raised in her client’s pro se brief, regardless of
whether it was frivolous.4 See, e.g., Marvin, 211 F.3d at 781
(“As an initial matter, [counsel] does not mention all the issues
3
The Supreme Court itself has acknowledged that Anders’s
standard is subject to criticism. In Smith v. Robbins, the Court
explained that this standard is “incoherent and thus impossible
to follow” because it requires counsel to submit a brief setting
forth “arguable issues” in order to convince the court that the
appeal is “wholly frivolous,” even though the Anders Court
had described an issue that was “arguable” as “therefore not
frivolous.” Smith, 528 U.S. at 282 (quoting Anders, 386 U.S.
at 744). But the Court declined to offer a resolution by
explaining that the Constitution neither resolved the issue nor
required the Court to do so. Id. at 284.
4
Occasionally, we may receive a defendant’s pro se
submission before or contemporaneously with his counsel’s
Anders motion. As discussed in more detail below, however,
the defendant’s pro se brief is typically filed only after counsel
has filed her Anders motion and brief and served them on the
defendant.
12
raised by his client and assure us that he has considered them
and found them patently without merit.”); Youla, 241 F.3d at
301 (“While the length of a brief does not necessarily
determine the merit of its arguments, we do not believe that
Youla’s counsel mentions all the issues raised by his client . . .
.”) (internal citation omitted); Coleman, 575 F.3d at 319
(“First, Coleman’s counsel does not mention the argument
raised by Coleman in his pro se brief to assure us that he has
found it to lack merit.”).
These seemingly incongruous positions have generated
confusion and have led panels of this Court to suggest in
precedential and nonprecedential opinions alike that failing to
anticipate and discuss each issue raised—even those entirely
frivolous—in a defendant’s pro se brief automatically renders
counsel’s Anders brief inadequate, or alternatively requires
counsel to file supplemental briefing addressing those
arguments. See, e.g., Marvin, 211 F.3d at 781; Coleman, 575
F.3d at 319; United States v. Parson, 663 F. App’x 184, 187
(3d Cir. 2016); United States v. Low, 525 F. App’x 106, 108-
09 (3d Cir. 2013); United States v. Fluker, 553 F. App’x 210,
212 (3d Cir. 2014). But the best reading of Marvin, Youla, and
Coleman repudiates any per se rule and supports the
conclusion that failure to address pro se issues will sometimes,
but not always, indicate inadequacy.
We begin with Marvin, where, as here, counsel filed an
Anders brief, and the defendant then submitted his own pro se
brief raising a host of new issues not raised by counsel. Marvin,
211 F.3d at 781. It is true that we criticized counsel for failing
to “mention all the issues raised by his client,” id, but the
fundamental reason we held counsel’s Anders brief deficient
was its failure to adequately address any appealable issue. Id.
13
For example, despite listing five potential issues for appeal at
the outset of his Anders brief, Marvin’s counsel only discussed
“a few of them in the body of the brief.” Id. And even in these
discussions, counsel failed to explain why the arguments were
frivolous; instead, to the extent he offered explanations, they
were incorrect and unsupported by law. Id. at 781-82. In this
context, the error we attributed to counsel for failing to
anticipate and address each of Marvin’s pro se arguments was
essentially illustrative of the overarching deficiency in
counsel’s brief.
The same holds true for Youla. There, counsel
submitted a cursory Anders brief containing only two pages of
analysis of the potential appealable issues. Youla, 241 F.3d at
300-01. He did not cite any case law, and failed to mention,
let alone discuss, any of the clear discrepancies between the
District Court’s Sentencing Guidelines calculation and what
was recommended in the defendant’s presentence investigation
report. Id. at 300-01. In contrast, the defendant submitted a 26-
page pro se brief, raising three issues for appeal, two of which
involved arguable errors in the District Court’s application of
the Sentencing Guidelines. Id. We observed that, “[w]hile the
length of a brief does not necessarily determine the merit of its
arguments,” id. at 301, counsel’s failure to address any of the
specific issues raised in his client’s pro se brief led us to doubt
the adequacy of his Anders brief. Id. Our determination,
however, was based on counsel’s overall failure to submit a
brief with sufficient indicia that counsel had “thoroughly
searched the record … in service of his client so that we might
confidently consider only those objections raised.” Id.
(internal citation omitted).
14
Coleman is no different. There, counsel submitted an
Anders brief that addressed only one potential appealable issue.
Coleman, 575 F.3d at 319. And, despite the fact that this Court
had previously remanded Coleman’s case for resentencing due
to intervening Supreme Court precedent, counsel’s Anders
brief failed “to fully address the very issue for which [this
Court had] remanded . . . .” Id. Thus, while we ascribed error
to counsel’s failure “to address legal challenges raised by [his
client],” it was the brief’s patent inadequacy that formed the
basis of this Court’s deficiency determination. Id. at 319-20.
Taken together these cases teach that counsel’s silence
concerning issues raised in a client’s pro se brief may be
relevant to the court’s adequacy determination, for example, to
illustrate counsel’s more general failure to identify or discuss
potentially appealable issues, or to highlight her failure to raise
non-frivolous issues that were raised pro se. But counsel’s
omission of frivolous issues raised by the defendant has little,
if any, relevance where counsel’s brief, on its own terms,
reflects a conscientious examination of the record and
adequately discusses the potentially appealable issues. In that
circumstance, rejecting counsel’s Anders brief as inadequate
because of a per se rule would waste the resources and time of
both counsel and the Court.
The absurdity of a per se rule is even more apparent
when considering the context in which counsel files an Anders
brief. Like all appeals, an appeal where counsel for a criminal
defendant files an Anders brief begins with the production of
all relevant transcripts and counsel’s review of the entire
record. After her review, counsel typically consults, or
attempts to consult, with her client about potentially appealable
issues, as required by professional norms and ethics rules. See,
15
e.g., Pa. R. Pro. Conduct 1.4(a)(2) (“A lawyer shall . . .
reasonably consult with the client about the means by which
the client’s objectives are to be accomplished.”). If counsel
concludes that there are no non-frivolous issues to raise on
appeal, then under L.A.R. 109.2(a) counsel files an Anders
brief and motion to withdraw, with service on both the
defendant and the Government. Only after counsel files and
serves her Anders brief and corresponding motion does the
defendant have the opportunity to file a pro se response brief.
L.A.R. 109.2(a). At that point, having received counsel’s
Anders brief and any pro se brief filed by the defendant, the
Government files a brief responding to the Anders brief and
any pro se brief. Id.
With that typical Anders procedure in mind, it takes no
feat of imagination to envision the mischief a per se rule would
cause. A defendant might not discuss every issue he is
contemplating when consulting with counsel or might refuse to
meet with counsel altogether. But because counsel typically
files her Anders brief before the defendant’s pro se brief, a per
se rule would effectively punish such counsel for not being
clairvoyant. That is not a skill we require of defense counsel
generally, let alone court-appointed counsel, who, as here,
have heeded the Court’s call to public service and devoted their
time and effort to the representation of indigent defendants.
A defendant might communicate an issue to counsel
that is not fairly characterized as potentially appealable, and
that counsel therefore opts against including in her Anders
brief. Yet under a per se regime, all a criminal defendant
would need to do to demonstrate the inadequacy of counsel’s
Anders brief would be to review the brief after it was served
16
and then submit a pro se brief raising any other issue, however
frivolous.
Alternatively, a per se rule would require counsel to file
two Anders briefs—one with her motion, and then a second
supplemental one addressing every wholly frivolous argument
raised in her client’s pro se brief—in order to avoid a finding
of inadequacy. Under our Local Rules, that would either
require counsel to file a motion for leave to file that
supplemental brief, see L.A.R. 31.3, 111.5(c), or require that
this Court order supplemental briefing, see L.A.R. 109.2(a),
creating needless work for counsel and the Court and
unnecessarily complicating this Court’s resolution of Anders
motions. While a supplemental filing may well be warranted
if the defendant identifies a non-frivolous issue not originally
addressed by counsel, we have never required supplemental
briefing by counsel where the issues raised pro se are
determined to be frivolous, and we reject such a requirement
today.
Instead, we clarify that counsel’s failure to address
issues raised in her client’s pro se brief does not render an
Anders brief inadequate per se.5 It may be relevant, however,
5
Other Courts of Appeals are in accord. See, e.g., United
States v. Coxton, 314 F. App’x 550, 551 (4th Cir. 2008) (noting
that defendant filed pro se brief that raised an issue not reached
by counsel’s Anders brief, but nevertheless affirming the
district court’s judgment and allowing counsel to withdraw);
United States v. Burns, 69 F.3d 540 (7th Cir. 1995) (finding
counsel’s brief adequate despite client’s subsequent pro se
brief raising a new issue); United States v. Trevillion, 770 F.
App’x 302, 303 (8th Cir. 2019) (noting that defendant filed pro
17
in illustrating a more general failure to identify and discuss
potentially appealable issues, in highlighting counsel’s failure
to raise non-frivolous issues identified by the defendant, or in
otherwise demonstrating that counsel has failed to provide
“sufficient indicia that [she] thoroughly searched the record
and the law in service of [her] client,” Marvin, 211 F.3d at 781,
and “diligently investigated the possible grounds of appeal.”
Anders, 386 U.S. at 741-42.
Of course, “what constitutes ‘sufficient indicia’ [of a
conscientious examination] cannot be laid down in a formulaic
manner,” as it will vary with the nature of the proceedings in
the district court. Id. No doubt there are certain issues that
arise with such frequency that counsel’s failure to address them
ordinarily will be indicative of deficiency, such as the district
court’s compliance with Fed. R. Crim. P. 11 and the
voluntariness of the plea in the context of a guilty plea, or, in
the context of sentencing, the court’s compliance with Fed. R.
Crim. P. 32, the adequacy of the court’s reasons for the
sentence imposed, and its calculation of the sentence based on
se brief raising an additional issue not addressed by counsel’s
Anders brief, but granting counsel’s motion to withdraw);
United States v. Delacruz-Soto, 414 F.3d 1158, 1160-61, 1169
(10th Cir. 2005) (observing that after counsel filed Anders
brief, defendant submitted a pro se letter raising an ineffective
assistance of counsel argument not addressed by his counsel’s
Anders brief, and finding counsel’s submission adequate and
granting motion to withdraw).
18
the Sentencing Guidelines.6 But ultimately, our adequacy
determination must be made on a case-by-case basis. So
6
To assist counsel in identifying these and other common
issues for appeal, this Court has published an Anders Checklist
and Anders Guidelines for counsel seeking to withdraw from
representation, see Third Circuit Anders
Checklist,https://www.ca3.uscourts.gov/sites/ca3/files/ANDE
RS%20CHECKLIST.pdf (last visited Sept. 13, 2022); Third
Circuit Anders Guidelines, https://www.ca3.uscourts.gov/
sites/ca3/files/ANDERS%20GUIDELINES%203dCir.pdf
(last visited Sept. 13, 2022), as have a number of our sister
circuits, see, e.g., How to File an Anders Brief in the United
States Court of Appeals for the Second Circuit,
https://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_c
ase/pdf/Anders%20brief%20instructions%20and%20checklis
t%20combined%2010-11.pdf (last visited Sept. 13, 2022)
(instructing counsel, inter alia, that an Anders brief must
include a copy of the transcript of the proceedings below, and
that in guilty plea cases an Anders brief “ordinarily must
contain” an examination of the validity of the guilty plea, an
examination of the validity and scope of any appellate waiver,
and an examination of the government’s compliance with the
plea agreement); Fifth Circuit Anders Guidelines,
http://www.ca5.uscourts.gov/clerk/AndersGuidelines.pdf (last
visited Sept. 13, 2022) (instructing counsel, inter alia, that if
she plans to file an Anders motion and supporting brief in a
jury or bench trial case, at a minimum, her brief must include
a discussion of: the sufficiency of the defendant’s indictment,
any adverse rulings pretrial, during trial, or post trial, jury
selection, and jury instructions); Sixth Circuit Notes on Anders
Cases,https://www.ca6.uscourts.gov/sites/ca6/files/documents
19
eschewing any per se rule, we turn now to the Anders brief at
issue in this case.
B. Counsel’s Anders Brief is Adequate
Here, Langley’s counsel has filed a brief that, on its
face, fulfills his Anders obligations and the requirements of
L.A.R. 109.2(a). Counsel adequately explains why there are
no non-frivolous appealable issues regarding the sufficiency of
Langley’s plea hearing and the propriety and length of
Langley’s sentence, and given counsel’s explanations we do
not doubt that he conducted a “conscientious examination” of
the record. Anders, 386 U.S. at 744.
As for Langley’s change of plea, counsel thoroughly
reviewed the District Court’s colloquy and confirmed that it
addressed each of the factors required by Fed. R. Crim. P.
11(b)(1). See supra Section III.A. For example, he points out
that the District Court addressed Langley directly and made
certain that he understood the charge, the factual basis for his
plea, and the terms and effect of his plea, including the plea’s
limited appellate waiver. See McCarthy v. United States, 394
U.S. 459, 464-67 (1969). Counsel also noted that the Court
ensured Langley’s plea was made knowingly and voluntarily
and that Langley comprehended the penalties he faced. See
/cja/andersnotesrev.wpd__0.pdf (last visited Sept. 13, 2022)
(explaining that an Anders brief must include a recitation of
substantive and procedural facts, and at least one issue of
potentially arguable merit); Practitioner’s Handbook for
Appeals to the United States Court of Appeals for the Seventh
Circuit, https://www.ca7.uscourts.gov/rules-procedures/
Handbook.pdf (last visited Sept. 13, 2022).
20
Fed. R. Crim. P. 11; United States v. Tidwell, 521 F.3d 236,
251-52 (3d Cir. 2008). And he observed that Langley provided
affirmative responses to the Court’s inquiries, confirming his
understanding of the rights he was waiving. United States v.
Trott, 779 F.2d 912, 914 (3d Cir. 1985).
Second, Langley’s counsel correctly asserts that
Langley’s sentence is not subject to challenge on appeal. As
explained in counsel’s brief, Langley may file an appeal for
review of his sentence only if any of the conditions in 18
U.S.C. § 3742 applies, which is not the case here. The District
Court’s sentence was not: (1) imposed in violation of law; (2)
imposed as a result of an incorrect application of the Federal
Sentencing Guidelines; (3) greater than the sentence specified
in the applicable guideline range; or (4) plainly unreasonable.
See 18 U.S.C. § 3742. In fact, as Langley’s counsel details,
quite the opposite is true. The sentence Langley received was
based on a correct calculation of Langley’s Criminal History
Category, see U.S.S.G. § 4A1.2(e)(1), and a reasonable
application of the Federal Sentencing Guidelines.
See U.S.S.G. § 1B1.1. Indeed, Langley was sentenced to the
mandatory minimum of 60-months imprisonment, which was
far lower than the guideline range of 110 to 137 months, thanks
to his counsel’s work in obtaining a substantial downward
variance.
In short, the Anders brief in this case demonstrates that
counsel scoured the record, including both Langley’s plea and
sentencing hearings, for the best possible arguments for his
client. Accordingly, counsel has met his obligations under
Anders.
21
C. Our Review Establishes No Non-Frivolous
Issues On Appeal
Because we are satisfied that Langley’s counsel has
submitted an adequate Anders brief, we proceed to the second
step of our Anders inquiry and review the record before us,
guided by counsel’s brief, in search of any non-frivolous
issues. Youla, 241 F.3d at 301. Here, our review of the record
reveals no issues of arguable merit in this appeal.
Given the record in this case, see supra Section I, and
the explanations in counsel’s Anders brief, see supra Section
II.B, we concur with counsel that there are no non-frivolous
appealable issues with respect to Langley’s plea hearing or his
sentence. But even if we were to consider the issues identified
by Langley in his pro se brief, which is not required because
we find his counsel’s Anders brief adequate, see Youla, 241
F.3d at 301, our conclusion would not change.
The three issues raised by Langley in his pro se brief
are: (1) that the District Court erred by incorrectly applying the
sentencing guidelines “[b]ased on a policy disagreement [o]n
the ‘18:1 v. 1:1 crack to powder cocaine’ ratio,” Pro Se Br. at
3; (2) that at the sentencing hearing his attorney did not bring
up that Langley’s past convictions were old and that he had
completed two re-entry programs; and (3) that the District
Court erred in calculating Langley’s Criminal History
Category by counting Langley’s convictions from 1995 and
2001. Each of these arguments lack merit.
As a threshold matter, our precedent would require that
we decline to exercise our jurisdiction to review the merits of
Langley’s arguments about the powder/crack disparity, the re-
22
entry programs, and the age of his past convictions because he
waived them as part of his plea agreement. We will enforce an
appellate waiver where we conclude that: (1) the issues a
defendant pursues on appeal fall within the scope of the waiver;
(2) the defendant knowingly and voluntarily agreed to the
waiver; and (3) enforcing the waiver would not work a
miscarriage of justice. See United States v. Corso, 549 F.3d
921, 927 (3d Cir. 2008). On this record, each condition is
readily satisfied.
Langley’s appellate waiver applies to “any appeal . . .
challeng[ing] the sentence imposed by the sentencing court if
that sentence is 5 years or below.” App. at 74. Langley
received the mandatory minimum sentence of 5 years, and as
Langley’s powder/crack disparity argument seeks to challenge
the duration of his sentence, it thus falls within the scope of his
waiver. Nor is there any question Langley entered his plea
knowingly and voluntarily when he confirmed as much during
his plea hearing. Lastly, Langley’s appeal is not one of the
“rare” and “unusual” situations which requires invalidating his
waiver to avoid a miscarriage of justice as it does not implicate
fundamental rights or constitutional principles. United States
v. Grimes, 739 F.3d 125, 131 (3d Cir. 2014). Langley’s waiver,
then, would be enforceable and would preclude consideration
of his argument in any event.7
7
Even if Langley had not waived this argument, it would still
be unavailing. We perceive no error in the District Court’s
sentencing of Langley. And as noted by the District Court
during Langley’s sentencing hearing, these arguments could
have no effect on Langley’s sentence as he received the
mandatory minimum of 60 months. See 21 U.S.C. §
841(b)(1)(B)(iii). To the extent Langley may be seeking to
23
Our review also satisfies us that Langley’s third
argument is without merit. We apply an abuse-of-discretion
standard to the review of sentencing decisions. United States v.
Tomko, 562 F.3d 558, 561 (3d Cir. 2009). In considering
whether a sentence is reasonable, we must first “ensure that the
district court committed no significant procedural error” before
examining the “totality of the circumstances” in assessing
substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007). Sentences are substantively reasonable “unless no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district
court provided.” Tomko, 562 F.3d at 568.
Here, the District Court committed no procedural errors.
Though Langley disputes the District Court’s counting of his
convictions greater than fifteen years old, in calculating his
Criminal History Category the Court was right to include them.
As it explained to Langley at his sentencing hearing, the last
day of incarceration for each of these offenses occurred within
the fifteen-year window for counting offenses under the
Federal Sentencing Guidelines, so each was properly counted
raise an ineffective assistance claim, it would be premature, see
Massaro v. United States, 538 U.S. 500, 505-07 (2003), and
would be baseless: counsel effectively negotiated a plea deal
and, despite Langley’s extensive criminal history, was able to
persuade the Government and the Court to settle on the lowest
sentence available. See United States v. Hankerson, 496 F.3d
303, 311-12 (3d Cir. 2007) (finding counsel’s representation
effective because, inter alia, counsel argued for and obtained a
downward departure for his client).
24
under U.S.S.G. § 4A1.2(e)(1). Nor can we conclude that
Langley’s sentence was substantively unreasonable when he
stipulated to its reasonableness in his plea agreement and
ultimately received the lowest possible sentence permitted by
the statute for his offense of conviction. Langley’s sentencing
arguments are thus also frivolous.
IV. CONCLUSION
For the foregoing reasons, we will grant counsel’s
Anders motion and dismiss Langley’s appeal.8
8
In accordance with L.A.R. 109.2(b) we state that the issues
presented here lack legal merit, and so Langley’s counsel is not
required to file a petition for writ of certiorari with the Supreme
Court.
25 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482341/ | United States Court of Appeals
For the First Circuit
No. 21-1068
ROBERT FRESE,
Plaintiff, Appellant,
v.
JOHN M. FORMELLA, in his official capacity as Attorney General
of the State of New Hampshire,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Kayatta, Howard, and Thompson, Circuit Judges.
Brian Hauss, with whom Emerson Sykes, American Civil
Liberties Union Foundation; Gilles Bissonnette and Henry R.
Klementowicz, American Civil Liberties Union of New Hampshire;
John M. Greabe; Lawrence A. Vogelman and Shaheen & Gordon, P.A.
were on brief, for appellant.
Samuel R.V. Garland, Assistant Attorney General, with whom
John M. Formella, Attorney General of New Hampshire, and Anthony
J. Galdieri, Senior Assistant Attorney General, were on brief, for
appellee.
November 8, 2022
HOWARD, Circuit Judge. New Hampshire is among a handful
of states that allow criminal prosecution of defamation. Appellant
Robert Frese has twice been charged with violating the criminal
defamation statute and now argues that the statute itself
contravenes the First and Fourteenth Amendments. Mindful of the
Supreme Court's guidance that "the knowingly false statement and
the false statement made with reckless disregard of the truth, do
not enjoy constitutional protection[,]" we conclude that Frese's
allegations fall short of asserting viable constitutional claims.
Garrison v. Louisiana, 379 U.S. 64, 75 (1964). We thus affirm the
district court's dismissal.
I.
New Hampshire's criminal defamation statute provides
that "[a] person is guilty of a class B misdemeanor if he purposely
communicates to any person, orally or in writing, any information
which he knows to be false and knows will tend to expose any other
living person to public hatred, contempt or ridicule." N.H. Rev.
Stat. § 644:11(I). "'[P]ublic' includes any professional or
social group of which the victim of the defamation is a member."
Id. at § 11(II). A person convicted of a class B misdemeanor faces
a fine of up to $1,200. N.H. Rev. Stat. § 651:2(IV)(a). Because
such charges carry no possibility of jail time, criminal defamation
defendants have no right to trial by jury and are not afforded
- 2 -
court-appointed counsel. See State v. Whitney, 172 N.H. 380, 382
(2019); State v. Foote, 149 N.H. 323, 324 (2003); State v.
Westover, 140 N.H. 375, 377-78 (1995).
New Hampshire's misdemeanor enforcement process empowers
police departments to prosecute defamation. In the absence of the
exercise of discretionary supervisory authority by the state
Attorney General or County Attorneys, municipal police departments
may initiate prosecutions for misdemeanors, including criminal
defamation, without prior input or approval from such prosecutors.
See State v. La Palme, 104 N.H. 97, 98-99 (1962) ("The prosecution
of misdemeanors by police officers is a practice that has continued
in one form or another since 1791 and is still permissible under
existing statutes." (citing State v. Urban, 98 N.H. 346 (1953)));
see also N.H. Rev. Stat. § 41:10-a (recognizing the power of police
officers to prosecute misdemeanors). Private citizens may also
prosecute misdemeanors in New Hampshire, so long as incarceration
is not an applicable penalty. See State v. Martineau, 148 N.H.
259, 261, 263 (2002).1
Although criminal defamation is rarely prosecuted in New
Hampshire, Frese has twice been charged under section 644:11. In
1 Notably, any private citizen who commences one of these
actions could be held liable for malicious prosecution if that
person acted without probable cause; likewise, a police officer
could be liable if the officer acted wantonly. Farrelly v. City
of Concord, 168 N.H. 430, 440 (2015); State v. Rollins, 129 N.H.
684, 687 (1987) (Souter, J.).
- 3 -
2012, the Hudson Police Department arrested Frese for comments
about a local life coach that he posted on a Craigslist website.
Frese called the coach's business a scam and accused him of, among
other things, being involved in a road rage incident and
distributing heroin. Without the advice of counsel, Frese pleaded
guilty and was fined $1,488, of which $1,116 was conditionally
suspended. Six years later, the Exeter Police Department arrested
Frese for comments he had pseudonymously posted in the online
comments section of a newspaper article about a retiring Exeter
police officer. The comments included statements that the retiring
officer was "the dirtiest[,] most corrupt cop [Frese] ha[d] ever
had the displeasure of knowing" and that the officer's daughter
was a prostitute.
Frese's second arrest generated public controversy. In
response, the New Hampshire Attorney General interposed and
concluded that the police department had arrested Frese without
probable cause because there was no evidence that Frese knew his
statements were false. The Exeter Police Department subsequently
dropped the charges.
In late 2018, maintaining that he feared future arrest,
Frese filed a complaint in federal district court asserting that
section 644:11 is so vague as to violate the Fourteenth Amendment.
After initial skirmishing, Frese filed an amended two-count
complaint, which is the operative complaint before us. As before,
- 4 -
the first count charges that section 644:11 "is unconstitutionally
vague, both on its face and as applied in the context of New
Hampshire's system for prosecuting [c]lass B misdemeanors," in
violation of the Fourteenth Amendment. The second count asserts
that the statute "violates the First Amendment because it
criminalizes defamatory speech." The State moved to dismiss the
amended complaint, and the district court obliged. After first
finding that Frese had established standing to bring the case, the
court dismissed for failure to state a claim, pursuant to Federal
Rule of Civil Procedure 12(b)(6).2 Frese's timely appeal followed.
II.
We review the district court's dismissal of the
complaint under Rule 12(b)(6) de novo. See Barchock v. CVS Health
Corp., 886 F.3d 43, 48 (1st Cir. 2018) (citing SEC v. Tambone, 597
F.3d 436, 441 (1st Cir. 2010) (en banc)). "We take the complaint's
well-pleaded facts as true, and we draw all reasonable inferences
in [Frese's] favor." Id. Well-pleaded facts are those that are
"'non-conclusory' and 'non-speculative.'" Id. (quoting Schatz v.
The parties do not challenge the finding of standing, and
2
we see no error in the district court's standing analysis. See
Dantzler, Inc. v. Empresas Berríos Inventory and Operations, Inc.,
958 F.3d 38, 46 (1st Cir. 2020) ("'[B]ecause standing is a
prerequisite to a federal court's subject matter
jurisdiction' . . . we must 'assure ourselves of our jurisdiction
under the federal Constitution' before we proceed to the merits of
a case." (first quoting Hochendoner v. Genzyme Corp., 823 F.3d
724, 730 (1st Cir. 2016), then quoting Pérez-Kudzma v. United
States, 940 F.3d 142, 144 (1st Cir. 2019))).
- 5 -
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.
2012)). To survive dismissal, "the complaint must 'contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.'" Id. (quoting Tambone, 597
F.3d at 437).
A. First Amendment Claim
Frese argues that section 644:11 violates the First
Amendment because criminal defamation laws should be per se
unconstitutional. The Supreme Court, however, has upheld the
criminalizing of false speech, explaining that deliberate and
recklessly false speech "do[es] not enjoy constitutional
protection." Garrison, 379 U.S. at 75. Thus, the state can
"impose criminal sanctions for criticism of the official conduct
of public officials" so long as the statements were made with
"'actual malice' -- that is, with knowledge that [they were] false
or with reckless disregard of whether [they were] false or not."
Id. at 67 (quoting New York Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964)); see also Mangual v. Rotger-Sabat, 317 F.3d 45, 66
(1st Cir. 2003).
Frese concedes that Garrison forecloses his First
Amendment claim but argues that "[t]he time has come to revisit
that decision." But, as Frese acknowledges, we do not have the
power to revisit Supreme Court decisions. See Hohn v. United
States, 524 U.S. 236, 252-53 (1998); United States v. Morosco, 822
- 6 -
F.3d 1, 7 (1st Cir. 2016) ("[B]ecause overruling Supreme Court
precedent is the Court's job, not ours, we must follow [prior
decisions] until the Court specifically tells us not to . . . even
if these long-on-the-books cases are in tension with [newer
cases]."). Accordingly, we must find that Garrison precludes
Frese's First Amendment attack on section 644:11.
B. Fourteenth Amendment Vagueness
"The vagueness doctrine, a derivative of due process,
protects against the ills of laws whose 'prohibitions are not
clearly defined.'" Nat'l Org. for Marriage v. McKee, 649 F.3d 34,
62 (1st Cir. 2011), abrogated on other grounds by Ams. for
Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021) (quoting Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972)). A statute is
impermissibly vague if it "fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement." United States v. Williams, 553 U.S.
285, 304 (2008) (citing Hill v. Colorado, 530 U.S. 703, 732
(2000)); see also Johnson v. United States, 576 U.S. 591, 595
(2015). This creates two avenues by which to attack a vague
statute: discriminatory enforcement and lack of notice.
To prevent the chilling of constitutionally protected
speech, we apply a "heightened standard" in cases involving the
First Amendment and "require[] a 'greater degree of specificity'"
- 7 -
in a statute that restricts speech. McKee, 649 F.3d at 62 (quoting
Buckley v. Valeo, 424 U.S. 1, 77 (1976)). Additionally, "if
criminal penalties may be imposed for violations of a law, a
stricter standard is applied in reviewing the statute for
vagueness." Manning v. Caldwell for City of Roanoke, 930 F.3d
264, 272-73 (4th Cir. 2019) (citing Vill. of Hoffman Ests. v.
Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498-99 (1982)). "But
'perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.'"
Williams, 553 U.S. at 304 (quoting Ward v. Rock Against Racism,
491 U.S. 781, 794 (1989)); see also McKee, 649 F.3d at 62.
Frese mounts a facial challenge to section 644:11, as
well as a "hybrid" challenge. We first consider his facial
challenge. To succeed, Frese must "establish that no set of
circumstances exists under which the [statute] would be valid."
Dutil v. Murphy, 550 F.3d 154, 160 (1st Cir. 2008) (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)). We are mindful that
facial challenges "are disfavored" because they "often rest on
speculation," "run contrary to the fundamental principle of
judicial restraint," and "threaten to short circuit the democratic
process." Hightower v. City of Boston, 693 F.3d 61, 76-77 (1st
Cir. 2012) (quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450 (2008)).
- 8 -
Frese argues that section 644:11 is unconstitutionally
vague under both lack of notice and discriminatory enforcement
theories, training most of his attention on discriminatory
enforcement. We turn to that claim first.
1. Discriminatory Enforcement
A "statute authorizes an impermissible degree of
enforcement discretion -- and is therefore void for vagueness --
where it fails to 'set reasonably clear guidelines for law
enforcement officials and triers of fact in order to prevent
arbitrary and discriminatory enforcement.'" Act Now to Stop War
& End Racism Coal. v. District of Columbia, 846 F.3d 391, 410-11
(D.C. Cir. 2017) (quoting Smith v. Goguen, 415 U.S. 566, 573
(1974)); see also Kolender v. Lawson, 461 U.S. 352, 358 (1983)
(explaining that the most "important aspect of vagueness doctrine"
is "the requirement that a legislature establish minimal
guidelines to govern law enforcement" (internal citation
omitted)).
We conclude that the statute at issue here provides
adequate guidelines for law enforcement, and therefore passes
constitutional muster. Frese argues that the statute is
unconstitutionally vague, because different persons may have
"different standards for determining what is and is not
defamatory." But the statute provides reasonably clear guidance
-- defamatory statements are those false statements that "expos[e]
- 9 -
any . . . person to public hatred, contempt or ridicule."
Likewise, we doubt that reasonable persons will have much
difficulty in ascertaining objectively whether a false statement
exposes the victim to public hatred, contempt, or ridicule, even
if the public is defined to include professional and social groups
to which the victim belongs. Frese offers no hypothetical example
of how a factfinder might struggle unduly to determine whether a
given set of facts demonstrates the requisite tendency of the false
remarks. Indeed, for centuries factfinders have made such
determinations. E.g., Richardson v. Thorpe, 73 N.H. 532, 534
(1906) (collecting cases for the proposition that whether an
ambiguous phrase was defamatory is a question for the jury).
The parties also agree that section 644:11 adopts part
of New Hampshire's common law defamation standard. Under the
common law, "[w]ords may be found to be defamatory if they hold
the plaintiff up to contempt, hatred, scorn or ridicule, or tend
to impair [the plaintiff's] standing in the community." Boyle v.
Dwyer, 172 N.H. 548, 554 (2019) (second alteration in original)
(quoting Thomas v. Tel. Publ'g Co., 155 N.H. 314, 338 (2007)).
The incorporation of common law standards provides further
guidance to law enforcement about the meaning of the statute, not
least because the definition of defamation under New Hampshire
common law has remained relatively consistent for over one hundred
years, and has been regularly analyzed by courts and applied by
- 10 -
juries. Compare Richardson, 73 N.H. 532 at 534 ("Any written words
which directly or indirectly charge a person with a crime, or which
tend to injure his reputation in any other way, or to expose him
to public hatred, contempt, or ridicule, are defamatory."), with
Boyle, 172 N.H. at 554 ("Words may be found to be defamatory if
they hold the plaintiff up to contempt, hatred, scorn or ridicule,
or tend to impair [the plaintiff's] standing in the community."
(alteration in original) (quoting Thomas, 155 N.H. at 338)).
Additionally, common law defamation in New Hampshire is
subject to objective measurement, which further protects against
arbitrary enforcement. Under New Hampshire common law, liability
may be imposed only if "the defamatory meaning . . . [is] one that
could be ascribed to the words by persons of common and reasonable
understanding." Id. (quoting Thomson v. Cash, 119 N.H. 371, 373
(1979)).
Nevertheless, Frese contends that "the common law of
civil defamation is not stable or precise enough to define a
criminal restriction on speech." Frese cites three cases to
support this contention. But in each of these cases the laws found
to be unconstitutionally vague were significantly broader than
section 644:11 and did not contain a requirement that the speaker
know the statement to be false. See Ashton v. Kentucky, 384 U.S.
195, 198 (1966) (trial court defined criminal libel as "any writing
calculated to create disturbances of the peace, corrupt the public
- 11 -
morals, or lead to any act, which, when done, is indictable");3
Tollett v. United States, 485 F.2d 1087, 1088 n.1 (8th Cir. 1973)
(statute prohibited mailing post cards containing "language of
libelous, scurrilous, defamatory, or threatening character, or
[language] calculated by the terms or manner or style of display
and obviously intended to reflect injuriously upon the character
or conduct of another"); Gottschalk v. State, 575 P.2d 289, 290
n.1 (Alaska 1978) (statute proscribed "publish[ing] defamatory or
scandalous matter concerning another with intent to injure or
defame him").4
Thus, none of Frese's cited cases involved a statute on
all fours with the one here, and Frese offers us no reason to
discount this distinction. And at least one federal district court
3 It is worth noting that in Ashton, the Supreme Court implied
in its analysis that a criminal defamation law that prohibited
"the publication of a defamatory statement about another which is
false, with malice" would not be unconstitutionally vague. See
Ashton, 384 U.S. at 198; How v. City of Baxter Springs, 369 F.
Supp. 2d 1300, 1305-06 (D. Kan. 2005).
4 The statute in Gottschalk did not define "defamatory or
scandalous." Gottschalk, 575 P.2d at 292. The court determined
that therefore, "the common law definition must be relied on."
Id. The common law considered "any statement which would tend to
disgrace or degrade another, to hold him up to public hatred,
contempt or ridicule, or to cause him to be shunned or avoided was
considered defamatory." Id. The court in Gottschalk apparently
found that this common law definition was impermissibly vague,
though at times the court seemed to gesture towards the language
of the statute itself as the root of the vagueness problem. Id.
at 293 (explaining that the language of the statute -- prohibiting
"defamatory" or "scandalous" speech -- is vague).
- 12 -
has denied a vagueness challenge to a criminal defamation statute
broader than section 644:11. See How, 369 F. Supp. 2d at 1304
(finding statute that criminalized "communicating to a person
orally, in writing, or by any other means, information, knowing
the information to be false and with actual malice, tending to
expose another living person to public hatred, contempt or
ridicule; tending to deprive such person of the benefits of public
confidence and social acceptance" was not unconstitutionally
vague).
Section 644:11 also provides significantly more guidance
than statutes that have been determined unconstitutionally vague.
In Kolender, the Supreme Court concluded that a California statute
targeting loitering was unconstitutional. The law required a
suspect stopped by police to provide "reliable" identification and
to account for his presence. Kolender, 461 U.S. at 353. When
asked to give "examples of how suspects would satisfy the
[statute's] requirement[s]," counsel explained that "a jogger, who
was not carrying identification, could, depending on the
particular officer, be required to answer a series of questions
concerning the route that he followed to arrive at the place where
the officers detained him or could satisfy the identification
requirement simply by reciting his name and address." Id. at 360
(internal citations omitted).
- 13 -
The Supreme Court determined that this statute afforded
"full discretion" to police "to determine whether the suspect has
provided a 'credible and reliable' identification," id., and
therefore impermissibly "entrust[ed] lawmaking to the moment-to-
moment judgment of the policeman on his beat," id. (quoting Smith,
415 U.S. at 575). Other laws or regulations found by courts to be
unconstitutionally vague include statutes that contain no standard
at all about when officials can exercise their discretion, as well
as regulations prohibiting any "appearance" that is
"objectionable." Act Now, 846 F.3d at 411 (citing Niemotko v.
Maryland, 340 U.S. 268, 271–72 (1951), then quoting Armstrong v.
D.C. Pub. Library, 154 F. Supp. 2d 67, 81-82 (D.D.C. 2001)); see
also Williams, 553 U.S. at 306 (explaining that statutes that
proscribe "annoying" behavior are vague, as they involve "wholly
subjective judgments"). The statute here is a far cry from the
blank checks to law enforcement that were found unconstitutional
in these cases.
Nor is the statute vague because it requires some
exercise of law enforcement judgment -- indeed, "enforcement
[inevitably] requires the exercise of some degree of police
judgment," and the question thus becomes whether "the degree of
judgment involved . . . is acceptable." Hill, 530 U.S. at 733
(quoting Grayned, 408 U.S. at 114). The language of section 644:11
is sufficient, as it gives reasonably specific guidance to law
- 14 -
enforcement. Likewise, "[w]hat renders a statute vague . . . is
not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of precisely what that fact
is." Act Now, 846 F.3d at 411 (quoting Williams, 553 U.S. at 306).
At most, Frese contends that, in any given case, it might be
debatable whether it has been established that a statement in fact
"tend[s] to expose . . . another . . . to hatred [or] contempt."
His challenge fails accordingly.5
2. Lack of Notice
A statute is impermissibly vague for lack of notice "only
if it 'prohibits . . . an act in terms so uncertain that persons
of average intelligence would have no choice but to guess at its
meaning and modes of application.'" McKee, 649 F.3d at 62 (quoting
United States v. Councilman, 418 F.3d 67, 84 (1st Cir. 2005) (en
banc)).6 We conclude that the statute provides sufficiently clear
Frese argues that the statute must be considered in light
5
of extrinsic evidence of New Hampshire's enforcement scheme.
However, we need not address this issue, because we determine that
the core statutory text of the criminal defamation statute provides
adequate enforcement guidelines and the prosecution scheme does
not alter or overcome this conclusion. We therefore need not
address precisely what extrinsic context a court may consider in
a vagueness analysis.
The district court collapsed its discussion of lack of
6
notice into its consideration of Frese's excessive discretion
claim. As Frese points out, however, the district court's
"analysis of [his] arbitrary enforcement challenge focused largely
on notice issues."
- 15 -
notice. For the reasons described above, the language clearly
defines and delimits its scope, such that it gives a person of
"ordinary intelligence a reasonable opportunity to understand what
conduct it prohibits." Hill, 530 U.S. at 732.
In Hill, the Supreme Court confronted a challenge to a
Colorado statute that that prohibited "knowingly approach[ing]" a
person to "engag[e] in oral protest, education, or counseling with
[that] person." Id. at 707. The Court concluded that the statute
provided adequate notice. Specifically, it reasoned, while there
might be some hypothetical cases where there would be a "nice
question" about the "meaning of these terms," courts cannot require
statutes to use language with "mathematical certainty." Id. at
732-33 (quoting Am. Commc'ns Assn. v. Douds, 339 U.S. 382, 412
(1950), then Grayned, 408 U.S. at 110). As with the Colorado
statute considered in Hill, section 644:11 may beget cases where
there are questions about whether the conduct at issue falls within
the language of the statute. However, this alone does not create
a notice problem, given that "it is clear what the [statute] as a
whole prohibits." Hill, 530 U.S. at 733 (quoting Grayned, 408
U.S. at 110); see also Henderson v. McMurray, 987 F.3d 997, 1004
(11th Cir. 2021).
Refining his notice argument, Frese takes issue with
section 644:11's definition of "public" to include "any
professional or social group," which Frese claims does not consider
- 16 -
"how small the group or how peculiar its views." Frese argues
that the statute cannot provide adequate notice because
"[d]ifferent professional and social groups will often have
different, sometimes conflicting, standards for what constitutes
defamation." The statute, Frese argues, "incorporates each of
these" potentially disparate "standards as a yardstick for
criminal conviction," and as such, makes it difficult for any
person to determine what conduct the statute prohibits.7
We are not convinced. First, the incorporation of the
common law provides safeguards against imposing criminal liability
for speech that offends the views of particularly niche or
idiosyncratic groups, which in turn shields against any notice
problems. As discussed previously, the common law objectivity
standard requires that "the defamatory meaning . . . [is] one that
could be ascribed to the words by persons of common and reasonable
understanding." Boyle, 172 N.H. at 554. And section 644:11(I)'s
knowledge requirement creates additional protection.8
7Frese also asserts that "this is a constitutionally
significant departure from the common law," which imposes civil
liability for defamation only when a person's language "tend[s] to
lower the plaintiff 'in the esteem of any substantial and
respectable group, even though it may be quite a small minority.'"
Thomson, 119 N.H. at 373 (quoting Prosser on Torts § 111 (4th ed.
1971)).
Citing United States v. Alvarez, 567 U.S. 709, 736 (2012)
8
(Breyer, J., concurring in the judgment), Frese points out that a
mens rea requirement does not eliminate chilling concerns because
"a speaker might still be worried about being prosecuted for a
- 17 -
Moreover, in order for a statute to give fair notice, it
need not map out what is prohibited with "meticulous specificity."
Grayned, 408 U.S. at 110 (upholding statute that prohibited the
"making of any noise or diversion which disturbs or tends to
disturb the peace or good order of [a] school session or class
thereof"). It must only "delineate[] its reach in words of common
understanding." Id. at 112 (quoting Cameron v. Johnson, 390 U.S.
611, 616 (1968)). Thus, while there is indeed some "breadth" and
"flexibility" inherent in the scope of the statute, id. (quoting
Esteban v. Cent. Mo. State Coll., 415 F.2d 1077, 1088 (8th Cir.
1969) (Blackmun, J.)), none of Frese's arguments persuade us that
a person of average intelligence would have to "to guess" at
section 644:11's meaning or the scope of the conduct it prohibits,
Councilman, 418 F.3d at 84.
careless false statement, even if he does not have the intent
required to render him liable." Alvarez did not involve a
vagueness challenge, but there is some force to the point. Even
if, however, the mens rea requirement standing alone might be
insufficient to provide constitutionally adequate notice, it
nevertheless does assist in ameliorating notice concerns here.
Similarly, citing Smith, 415 U.S. at 580, and Ashton, 384
U.S. at 200, Frese argues that a mens rea requirement cannot cure
an inherently vague statute. Again, while this may be true, our
analysis does not rely solely on section 644:11's mens rea
component, and we have no trouble finding that the knowledge
requirement -- considered in combination with the other factors
discussed -- helps to limit vagueness concerns. See United States
v. Nieves-Castano, 480 F.3d 597, 603 (1st Cir. 2007) (explaining
that the statute's "scienter requirement ameliorates any vagueness
concerns" (citing Hill, 530 U.S. at 732)).
- 18 -
3. "Hybrid" Vagueness Claim
Having addressed Frese's facial claims, we return
briefly to what he characterizes as his "hybrid" vagueness claim.
Frese asserts that section 644:11 "is unconstitutionally vague,
both on its face and as applied in the context of New Hampshire's
system for prosecuting [c]lass B misdemeanors." (Emphasis added).
Frese characterizes this second claim as a "hybrid vagueness
claim": "it is 'facial' in the sense that it is not limited to
Frese's particular case, but it is 'as applied' in the sense that
it does not seek to strike [section 644:11] outside the context of
New Hampshire's particular misdemeanor process." The district
court dismissed Frese's "hybrid" claim for the same reasons that
it dismissed his facial claim.
As we discussed above, the New Hampshire statute is not
unconstitutionally vague, because it gives meaningful enforcement
guidelines and adequate notice. Nor does consideration of the New
Hampshire prosecution context alter that conclusion -- regardless
of the enforcement setting, the statute is not standardless and
provides adequate guidelines for enforcement. See supra note 5.
His hybrid claim therefore falls with his facial claim.
III.
Assuming Frese's 2018 prosecution to have been brought
without reasonable cause to believe that Frese knew that his speech
had been false, then it was certainly wrongful, as implied by its
- 19 -
dismissal. But that wrong had little, if anything, to do with
what Frese claims is the statute's vagueness. Certainly "knowing"
an assertion to be false is not a vague element. Nor, for the
foregoing reasons, do we think that a reasonable person has much
difficulty in ascertaining whether speech subjects a living person
to public hatred, contempt, or ridicule and what a "professional
or social group" is in this context. Accordingly, the district
court's judgment is affirmed.
-Concurring Opinion Follows-
- 20 -
THOMPSON, Circuit Judge, concurring. I agree with my
colleagues that the precedent by which we are bound, see Garrison
v. Louisiana, 379 U.S. 64, 68-70 (1964),9 and the procedural
posture in which this appeal arises oblige us to reach the above-
reasoned conclusions. I take this opportunity, however, to shine
a light on sweeping concerns and important questions this case
showcases, but upon which its resolution does not now depend. Each
of these concerns and questions, as I'll explain, stem from this
overarching query: Can the continued existence of speech-chilling
criminal defamation laws be reconciled with the democratic ideals
of the First Amendment?
Ours is a country that touts a "profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open." New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964). That commitment may well be
profound; but it is not the whole story. And lately, one needn't
look far for examples of speech curtailed or, by contrast, speech
that seems to be wholly divorced from the truth but goes
unaddressed by the law. When, as has been the case in this country
of late, the truth often seems up for grabs and objectively
accurate facts are tossed aside in favor of alternative versions
that suit a given narrative, drawing the line between truths and
As my colleagues observe, and as Frese concedes, only the
9
Supreme Court can overrule this precedent.
- 21 -
lies -- and malicious lies at that -- is exceptionally tricky.
But also exceptionally important. And yet, increasingly, whether
and where that line should be drawn as to some speech or other
speech seems to depend on who's holding the pen. The significance
of all this skyrockets when criminalizing this speech is on the
table.
It's at the intersection of history, present day, fact,
and fiction (and everything in between) that today's case arises.
As we know, this is a case about New Hampshire's criminal
defamation statute, which explains that "[a] person is guilty of
a class B misdemeanor if he purposely communicates to any person,
orally or in writing, any information which he knows to be false
and knows will tend to expose any other living person to public
hatred, contempt or ridicule." N.H. Rev. Stat. § 644:11(I).
The troubling seditious-criminal-libel historical
context that underpins a law like this one is well known to First
Amendment scholars, advocates, and jurists -- and perhaps most
deeply felt by those who've had brushes with it. See Garrison,
379 U.S. at 68-70; id. at 79-80 (Black, J., concurring); id. at
80-83 (Douglas, J., concurring); New York Times Co., 376 U.S. at
296-97 (Black, J., concurring); Beauharnais v. Illinois, 343 U.S.
250, 287 (1952) (Jackson, J., dissenting); Abrams v. United States,
250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting) (joined by
- 22 -
Brandeis, J.).10 I will not explicate the ins and outs of that
history here -- and there is a great deal of important history to
digest. For today's purposes, it suffices to say these laws have
their genesis in undemocratic systems that criminalized any speech
criticizing public officials. True, that is not today's American
system per se. But like it or not, that is where our system's
roots lie, and even in view of the rightly heightened standards we
deploy when reviewing laws that restrict speech, see Nat'l Org.
for Marriage v. McKee, 649 F.3d 34, 62 (1st Cir. 2011), abrogated
on other grounds by Ams. for Prosperity Found. v. Bonta, 141 S.
Ct. 2373 (2021), it is remarkable that we are still confronting
laws criminalizing speech at all.
Perhaps the persistence of these laws owes to society-
at-large's unawareness of or ambivalence to them. It's possible
many believe criminal defamation is basically off the books;
Garrison can be read to have been aimed at accomplishing as much,
at least from a federal standpoint, in that it nixed as
unconstitutional civil and criminal penalties for truthful
statements about public officials, leaving room to sanction only
those statements made with actual malice (knowledge of falsity or
reckless disregard for the truth). See 379 U.S. at 74. But
I urge the curious reader to consult these important cases
10
and the sources upon which they rely.
- 23 -
persist they do, with many states retaining their criminal
defamation laws.11
And indeed, this is remarkable. Particularly so given
the current political climate in this country, with "truth" at a
premium. It seems to me that if these laws were robustly enforced,
dockets in these states would be positively teeming with
prosecutions. That's not what happens. Why is that? Probably
because there is no readily discernible boundary between what
gossip or loose talk amounts to being criminal and that which does
not. Instead, the boundary emerges case by case, lying solely in
the eye of the charge-bringing beholder -- or the ego of the person
offended or called out by the speech. And this is troubling
because it underscores the simple truth that a criminal defamation
law can be wielded, weaponized by a person who disagrees with
whatever speech has been uttered.12
See, e.g., Idaho Code §§ 18-4801--4809 (2021); Kan. Stat.
11
Ann. § 21-6103 (2021); Mich. Comp. Laws Ann. § 750.370 (2021);
Minn. Stat. Ann. § 609.765 (2021); N.H. Rev. Stat. Ann. § 644:11
(2021); N.C. Gen. Stat. Ann. §§ 14-47, 15-168 (2020); N.D. Cent.
Code Ann. § 12.1-15-01 (2021); Okla. Stat. Ann. tit. 21, §§ 771-
774, 776-778 (2021); Utah Code Ann.§ 76-9-404 (2021); Va. Code
Ann. § 18.2-417 (2021); Wis. Stat. Ann. § 942.01 (2021).
I am mindful that not all criminal defamation prosecutions
12
will be successful, and yes, as my colleagues note, supra note 1,
malicious prosecution might in some instances exist as a means to
pursue recourse for wrongful prosecution. But the fact remains
that a great deal of damage could have already been done to the
person targeted by an unsuccessful (or worse, malicious)
prosecution, particularly depending on what exactly was said and
- 24 -
To those who might disagree, it strikes me as out of
touch with reality to suggest these laws are not being selectively
harnessed or that these laws aren't particularly susceptible to
such use and abuse. See, e.g., Garrison, 379 U.S. at 80-83
(Douglas, J., concurring) (warning of the dangers posed by criminal
defamation laws and those laws acting as "instrument[s] of
destruction" for free expression); Gottschalk v. State, 575 P.2d
289, 292 (Alaska 1978) ("It has become clear that the real interest
being protected by criminal defamation statutes is personal
reputation. Whether that purpose justifies use of the criminal
law has been questioned."). And by virtue of their very existence,
criminal defamation laws deter and chill speech -- indeed, their
existence represents a looming threat of criminal prosecution,
which of course will cause many to think twice before speaking
out. This is all the more so when, as in New Hampshire, a plea
deal or successful criminal defamation prosecution would show up
on a background check (and remember, criminal defamation
defendants have no right to trial by jury and don't get court-
appointed counsel). But "[f]ining [people] or sending them to
jail for criticizing public officials not only jeopardizes the
free, open public discussion which our Constitution guarantees,
done in the course of that prosecution -- that bell, as they say,
cannot be unrung.
- 25 -
but can wholly stifle it." Garrison, 379 U.S. at 80 (Black, J.,
concurring).
It is not lost on me that proponents of criminal
defamation laws see utility in having them as an alternative to
civil suits to be deployed when, for example, an alleged defamer
might be what we refer to as "judgment-proof," i.e., even if a
favorable verdict resulted from a civil defamation suit, the
defamer wouldn't have the cash available to cover any damages that
were assessed. This assumes money damages are the best relief for
a victim of defamation, and I cannot abide that premise. Does it
not also invite criminal prosecution of people with less means?
And critically, having a criminal defamation route enables an end-
run around the important constitutional restrictions imposed in
civil defamation cases. And I haven't spied any requirement that,
to bring a criminal prosecution, one must demonstrate the criminal
charge is being pursued because a civil suit just wouldn't cut it
for some legitimate reason or another. This brings me back to the
reality that criminal defamation laws are all too easily wielded
as a silencing threat of punishment for speech.
By my lights, criminal defamation laws -- even the ones
that require knowledge of the falsity of the speech -- simply
cannot be reconciled with our democratic ideals of robust debate
and uninhibited free speech. See id. at 79-80 (Black, J.,
concurring) ("[T]he Court is mistaken if it thinks that requiring
- 26 -
proof that statements were 'malicious' or 'defamatory' will really
create any substantial hurdle to block public officials from
punishing those who criticize the way they conduct their office.
Indeed, 'malicious,' 'seditious,' and other such evil-sounding
words often have been invoked to punish people for expressing their
views on public affairs.").13 And so I echo the concern voiced by
Justice Douglas in Garrison, a concern as valid today as it was
nearly sixty years ago: "It is disquieting to know that one of
[seditious libel's] instruments of destruction is abroad in the
land today." 379 U.S. at 80-83 (Douglas, J., concurring).
13Without touching on criminal defamation laws specifically,
the Court in United States v. Alvarez, striking down part of the
Stolen Valor Act, generally pointed to sweeping dangers posed by
criminal restrictions on speech regarding matters of public
concern. See 567 U.S. 709, 723 (2012) ("Permitting the government
to decree this speech to be a criminal offense, whether shouted
from the rooftops or made in a barely audible whisper, would
endorse government authority to compile a list of subjects about
which false statements are punishable. That governmental power
has no clear limiting principle. Our constitutional tradition
stands against the idea that we need Oceania's Ministry of
Truth."); id. at 736-37 (Breyer, J., concurring) (joined by Kagan,
J.) (". . . [T]here remains a risk of chilling that is not
completely eliminated by mens rea requirements; a speaker might
still be worried about being prosecuted for a careless false
statement, even if he does not have the intent required to render
him liable. And so the prohibition may be applied where it should
not be applied, for example, to bar stool braggadocio or, in the
political arena, subtly but selectively to speakers that the
Government does not like.").
- 27 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485471/ | INTRODUCTION
This action is brought under Title 43, Chapter 12, American Samoa Code Annotated, Government Tort Liability. Plaintiff's guardian ad litem filed a claim for injuries sustained by his minor son for dog bite. The attorney
general rejected his claim and a lawsuit was filed. After judgment for plaintiff this appeal followed.
*7STATEMENT OF FACTS
The facts were pretty much undisputed. There is ample evidence in the record to support the following:
The five-year-old victim is the son of a government (ASG) employee. The family lives in government owned and assigned quarters in the village of Tafuna. While playing outside his house the child was attacked and bitten by a dog. The dog was a stray; that is, no 'one claimed ownership of him. Tafuna is infested with large numbers of stray dogs. This particular dog had previously seriously injured another child, a fact that was reported to the Government. Over 200 dog bite cases a year are treated at the Medical Center.
The trial court held the Government liable and fixed damages at $10,000.
DISCUSSION
The trial court held that the government could be liable under either (or both) of 2 theories: government or proprietary capacity.
The court held that notwithstanding the doctrine of sovereign immunity the government was liable in its governmental capacity. This is so because the government had knowledge of aninherently dangerous condition (i.e., one out of every 150 residents was being treated_every year for dog bite). The failure of the government to act constituted a failure at the operational level, rather than at the executive or..administrative level. In other words, when a condition of such obvious danger exists, the government must act, or be liable.
The trial court found that rara avis, a case squarely on point. Hansen v. City of St. Paul (Minn. 1974) 214 N.W.2d 346. In that.case the city knew (or should have known) of two vicious dogs prowling'a certain area, since it had seven bite reports. The Minnesota Supreme Court held that the ' city's failure to maintain its streets and sidewalks free from the inherently dangerous condition was an operational failure, rather than a discretionary function. ‘ "
In its brief the government admits that packs of stray dogs exist and are an inherently dangerous condition. It argues, however, that, since the dog in this case was identifiable by name and "hung out" in' the neighborhood it was not a member of the pack. It was further identifiable since it had previously bitten another child, a fact reported'to the government.
The government cannot escape liability simply because this particular dog was. known. The trial court had ample evidence before it to make the findings and reach the conclusions it did. When an inherently dangerous condition exists the failure to attempt to alleviate the condition is an operational rather than a discretionary function. Furthermore, the Government of American Samoa, in addition to being a territorial sovereign', is also a municipal government. District governors áre appointed by' the governor. A.S.C.A. sec. 5.0103. Pulenu'us are also appointed'arid'paid'by the executive. A.S.C.A. sec. 5.0301. Hence the municipal administration of the villages is in fact carried out by the territorial executive.. '" '
The trial court also found the government liable in its proprietary capacity. Simply stated, the government was plaintiff's landlord. It assigned him a place to live. It owed him a duty to assign a safe place. Appellant has not addressed this issue in its brief. Apparently it cannot find fault with the trial court's reasoning. Neither can we.
Finally appellant contends the $10,000 award was excessive. Unless we find the trial court abused its discretion and acted arbitrarily and capriciously we should affirm. It didn't; we do.
*8DECISION
It is ordered that the judgment be and is hereby affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486067/ | Ioane Malaga filed his claim to succession with the Territorial Registrar to be registered as the holder of the matai title "Tela" of the village of Afono. Samuelu Aoelua objected, seeking succession himself. In these matters, the Court is guided by the four criteria set out in A.S.C.A. § 1.0409(c).1
*46
FINDINGS
I. Hereditaiy Entitlement
Ioane Malaga claims entitlement to the Tela title through his grandfather Tela Manu. He thus claims 25 % in blood ties and hereditary entitlement. Samuelu Aoelua’s hereditary claim is that his great-great grandfather was a Tela Fualaau. His claim, however, is strongly opposed by others in the Tela family. Tuato’o Tautalatasi, a member of the Tela family and a ranking orator in his own right, testified that there was no tradition in family history about a Tela Fualaau.
We find in favor of Ioane Malaga with respect to this consideration; the evidence as a whole preponderates in favor of the conclusion that Ioane Malaga has the better hereditary claim to the title Tela. Samuelu Aoelua’s blood claim is not without doubt; the claim is vigorously challenged from within the family. In any event, his asserted family connection, according to his own reckoning, is farther removed than candidate Malaga’s.
II. Support of Clans
On this issue, we find that there are three traditional clans in the Tela family, namely, Taliamanu, Vaai, and Moli. We find that Ioane Malaga secured the support of the majority of the clans of the Tela family; he quite clearly secured the overwhelming weight of family opinion. On the other hand, the evidence showed that Samuelu Aoelua’s support was, at best, that of his immediate family.
III. Forcefulness, Character, Personality, and Knowledge of Samoan Custom
*47From our observation of the candidates and from the evidence presented, we find that the parties are roughly equal in these respects. Both candidates are similarly situated in terms of age, education, work experience, service to the church, and knowledge of Samoan custom (as well as a shared contempt for the law proscribing the use of non-registered titles). Neither rises notably above the other with regard to forcefulness, character, personality, and knowledge of Samoan customs.
IV. Value to the family, village and country
We find that each candidate is equal in service to the country. However, in terms of value to the village and family, we find that Ioane Malaga prevails over Samuelu Aoelua. Ioane Malaga’s following within the family gives him the edge for leadership capacity. It goes without saying that the ability to lead effectively entails the ability to secure a following. At the same time, Malaga has had first-hand experience with family affairs, having actively served for many years as the matai taule’ale’a (leading young man) of the Tela. In such capacity he has had a broad rapport with other families on village affairs. Samuelu Aoelua, while once upon a time active as the matai taule’ale’a for the Aoelua, has comparatively been involved with village matters to a lesser degree. We are of the opinion that candidate Ioane Malaga is better situated to not only promote the dignity and welfare of the Tela family, but also to interact with other families on matters of village concern. We conclude that Ioane Malaga prevails on this criterion.
CONCLUSIONS
On the forgoing, we hold that Ioane Malaga is qualified to hold the title Tela. He prevails over Samuelu Aoelua on the first, second and fourth criteria. The Territorial Registrar shall accordingly register the Tela title from the village of Afono in candidate Ioane Malaga, in accordance with the requirements of A.S.C.A. § 1.0409(b).
It is so ordered.
This provision reads as follows:
In the trial of title cases, the High Court shall be guided by the following considerations, in the priority listed:
(1) the best hereditary right, as to which the male and female descendants are equal in families where this has been customary; otherwise the male descendant prevails *46over the female;
(2) the wish of the majority or plurality of those clans in the family as customary in that family;
(3) the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs;
(4) the value of the holder of the title to the family, village, and country. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486068/ | Orders Denying Motions for New Trial and for Stay of Execution:
By information filed by plaintiff on December 17, 1991, defendant was accused of committing the crime of sexual assault in the first degree, a Class D felony, in violation of A.S.C.A. § 43.3615. On May 19, 1992, pursuant to a plea agreement, defendant pled guilty to attempted sexual assault in the first degree, a Class A misdemeanor, in violation of A.S.C.A. §§ 43.3401 and 43.3615, false imprisonment, a Class A misdemeanor, in violation of A.S.C.A. § 46.3533, and assault in the third degree, a Class C misdemeanor, in violation of A.S.C.A. § 43.46.3522(a)(5), in lieu of the original accusation. The plea agreement did not contain any provisions regarding sentencing.
On June 23, 1992, defendant was sentenced to one year’s imprisonment on each of the Class A misdemeanors and 15 days on the Class C misdemeanor, to run consecutively. Execution of the sentence was suspended, and defendant was placed on probation for a period of *49two years on the conditions that he: (1) serve a period of detention at the Tafuna Correctional Facility of 15 days on each offense, to run consecutively, without release for any purpose other than medical emergency, except by prior Court approval; (2) depart from American Samoa immediately upon his release from detention and remain outside of American Samoa during the rest of the period of probation; (3) have no contact with the victim during the period of probation; and (4) conduct himself as a law-abiding citizen wherever he may reside during the period of probation. Credit on the probationary detention periods was granted for time in custody while awaiting trial in this prosecution.
On July 2, 1992, defendant filed a motion for a new trial on the grounds that the probationary departure order was statutorily and constitutionally invalid. On July 9, 1992, defendant amended his order to seek modification of the probationary detention periods to have them run concurrently rather than consecutively. At the hearing on the motion, also on July 9, 1992, the motion with respect to modification of the detention periods was denied. By stipulation, the hearing on the motion with respect to the departure order was continued first to August 20, 1992, and later to August 24, 1992, and the departure order was stayed pending disposition of this aspect of the motion. The further hearing took place on August 24, 1992.
One of defendant’s principal arguments on the probationary departure order is that departure from American Samoa is not specifically authorized as a condition of probation under A.S.C.A. §§ 43.2205 and 43.2206, and, hence, he was not truly informed by the laws of American Samoa of this possible consequence of his guilty pleas, particularly since departure orders have normally been used only in felony convictions. While we believe that A.S.C.A. § 46.2205 clearly authorizes probationary conditions reasonably related to the purposes of probation in a given case beyond those conditions enumerated in the statue, this argument is directly answered by A.S.C.A. §41.0614, enacted by P.L. 22-1 (1991), which expressly recognizes the Court’s power to impose probationary departure conditions.
Defendant’s arguments on other potential legal and constitutional deficiencies of probationary departure orders were addressed in depth in American Samoa Government v. Fa'amaoni, CR No. 63-89 (1989). The trial court’s reasoning on those issues in that case is persuasive. In our opinion, defendant’s arguments on these other issues are without ultimate merit.
*50We also disagree with defendant’s argument that the probationary departure order in this case was essentially punitive in nature. On the contrary, our purposes were to: (1) protect the public, including both the 13-year-old victim in this case, who resides in the Manu‘a Islands, and other potential young victims who reside there or elsewhere in American Samoa, Tutuila and Anu‘u, from any repetitious conduct by defendant; and (2) relocate defendant back to his homeland in Western Samoa, where his family and village lifestyle will be significantly more structured than will be his lifestyle as a single, young man not yet intimately associated with family or community in American Samoa and will, in our opinion, provide a greater rehabilitative influence during this young man’s development to responsible adulthood in the near term.
Accordingly, defendant’s motion for a new trial with respect to the probationary departure order is denied.
Probation granted in this action will best serve its purposes of public protection and offender rehabilitation if it is carried out immediately. Therefore, defendant’s motion for a stay of execution of the probationary departure order pending appeal is denied. As required by T.C.R.Cr.P. 38(4), it is stipulated that the term of defendant’s probation commenced on June 23, 1992.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486070/ | Plaintiff Sala Scratch seeks eviction of the defendants from her land, known as "Agasolo," located in Sogi, Vailoatai.1 The defendants counter-claim for the value of improvements which they allege they have made to the land.
This matter was set for trial on July 23, 1992. On the day of trial, plaintiff appeared with her counsel, Gata Edwin Gurr; neither the defendants nor their counsel of record, Fai’ivae A. Galea’i, appeared. We noted on file, however, a letter from counsel Fai’ivae’s office dated July 10, 1992, requesting the clerk to reschedule trial to another date. The letter, which was not filed until July 17, 1992, states that Se’i Sua was seeking medical attention in the United States and that counsel Fai’ivae was unavailable owing to a family emergency in the United States. We apprised counsel of the contents of the letter, and he objected to a continuance; he advised that his client was prepared for trial and that he had no prior notice of the letter request from Fai’ivae’s office. We sustained the objection.2
FACTS
*55Plaintiff had known the defendant Pepe Sua from the days they were growing up together in the village of Sato’oapai in Western Samoa. In 1965, plaintiff moved to American Samoa and eventually established herself in Tafeta. The defendants at one time were also living in Tafeta next door to plaintiff on Maea-family property. However, a falling-out with their host in 1985 or 1986 required the defendants to move out of Maea’s land. It was then that the defendant Pepe Sua approached plaintiff for help; she asked plaintiff whether they could live on her property in Sogi. Plaintiff, who had previously helped out the defendant Pepe Sua and her family on various occasions whenever the latter sought assistance, acceded to Pepe Sua’s request, but on the condition that the defendants render tautua (traditional service) in return for use of land.
Agasolo was purchased in 1981 and was already developed in crops by the time the defendants moved onto it. Plaintiff testified that she had initially cleared the land with a bulldozer and maintained the same for growing crops, including vegetable gardens. After the defendants moved onto Agasolo they also planted crops themselves, and at the outset they lived in a shack which plaintiff had helped in building.
The anticipated tautua proved to be sporadic. After a while it was begrudgingly given, but towards the end of 1991, the tautua ceased as the defendants resisted service. As a result, plaintiff finally asked the defendants to vacate her land, which the defendants have apparently refused to do until plaintiff reimburses them for various claimed improvements, including the value of a house which they have since built on Agasolo.
The construction of the referenced house was commenced without plaintiffs knowledge or permission; she found out about the construction shortly after Hurricane Ofa, which occurred early in 1990, when the defendants rather boldly appeared at her place of business to buy certain building material. Plaintiff further testified that she nonetheless decided to allow the defendants to finish construction since the foundation was already complete and the defendants had agreed to her stipulation that the house would remain with the land whenever the defendants eventually left. All that plaintiff could tell us about the house was that it is a brick building of fairly good size, which she diffidently gauged at "24 x something."
CONCLUSIONS
*56We conclude on the foregoing that plaintiff has established grounds for eviction; the defendants’ interest in the land is merely a personal license. The license, which was conditioned on continuing tautua, became revocable when that tautua ceased. The petition to evict will therefore be granted.
The next question is whether the defendants are entitled to equitable relief for improvements. "Such relief ... is available ... to an occupant who has made improvements in ’good faith,’ Fonoti v. Fagaima, 5 A.S.R.2d 158 (1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (1988), and whose possession must have been under some color or claim of title." Faleatua v. Tauiliili, 19 A.S.R.2d 122 (1991). The corresponding duty to compensate is derived from the "unjust enrichment of the land owner." Roberts v. Sesepasara, supra, at 131.
On the record before us, the only evidence pointing to compensable improvements relates to the home erected by the defendants. Defendants’ claim for crop improvements was contradicted by plaintiffs testimony that Agasolo was already agriculturally improved land when the defendants moved onto it. We so find. As to the home, the defendants were hardly good-faith improvers at the outset when they commenced building on plaintiffs land without permission. (Plaintiff remains unaware as to how the building permit was secured from the authorities in the first place without her approval as landowner.) On the other hand, plaintiff did subsequently allow the structure’s completion after learning that a foundation had already been laid. While the evidence further revealed an agreement between the parties to the effect that the resulting house would remain with plaintiff upon the defendants’ departure from Agasolo, it is, we feel, very apparent from the circumstances that the parties were, at the time, really contemplating a much longer presence on the land by the defendants. We conclude that these were the sort of circumstances alluded to by the Appellate Division in Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988), "where the true owner has . . . contributed to a situation in which it would be inequitable to deny compensation." However, in order to determine the value of compensable improvement, we are in need of further details on the house in question. With the procedural flexibility accorded in these cases by A.S.C.A. § 3.0242(b), we will hold a further hearing on the issue of value alone. In order to allow counsel time to secure any necessary appraisals with respect to the house, this matter will again be placed on calendar upon motion of either party. (The parties remain free, of course, to negotiate an agreement on value of the house.)
*57It is so ordered.
Plaintiff produced a deed to "Agasolo," which is registered with the Territorial Registrar in Land Transfers Volume IV, pages 189-90.
T.C.R.C.P. 7(b)(1) requires, inter alia, that "[a]n application to the court for an order shall be by motion . . . ," and T.C.R.C.P. 6(d) requires, inter alia, that "[a] written motion . . . and notice of the hearing thereof shall be served not later than 10 days before the time specified for the hearing." (Emphasis added). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486072/ | This amended opinion and order is issued in response to Mike McDonald’s motion for reconsideration of or new trial on his cross-claim against Foma‘i P. Logoai. This motion was heard and granted on August 21, 1992.
AMENDED OPINION AND ORDER
The Ava initiated the action in LT No. 32-90 for himself and the Ava family in June 1990 to declare the registration of a portion of the land called "Lalofutu" in the Village of Pava‘ia‘i, American Samoa, by the Logoais as individually owned land of Faaliliu P. Logoai and her children null and void, and to recognize this land as the communal land of the Ava family. He commenced the action in LT No. 36-90 later in June 1990 to enjoin further construction or other encroachment by Mike McDonald on a part of the registered land leased by McDonald and his wife from the Logoais. McDonald counterclaimed for damages against the Ava for unjust enrichment, should the Ava prevail. McDonald also cross-claimed against his lessor Foma‘i P. Logoai for damages and to quiet title. The actions were consolidated.
On February 5, 1991, the Logoais filed a motion for summary judgment, which was heard on February 28, 1991, and denied on May 8, 1991. The motion was based on the contention that the Certificate of Registration of the title to the land, issued pursuant to A.S.C.A. §§ 37.0101 et seq. by the Territorial Registrar in 1984 to Faaliliu and her children as their individually owned land, was conclusive. This title registration was accomplished through this Court’s order in an action entitled "In the Matter of the Application by: Fa’aliliu P.S. Logoai and Children, Applicants," LT No. 19-77, in which it was alleged that the land was Ava land and the applicants were Ava family members. The ■action in 1977 sought and obtained the Court’s order permitting survey of the land after the Ava’s alleged obstruction of this process. However, since the survey on its face was neither dated nor fully certified, and furthermore lacked an accompanying surveyor and pulenu’u certificate, the title-registration process was not completed until Foma‘i P. Logoai *67obtained the Court’s order directing nunc pro tunc dating and registration in 1984. The 1977 action did not name the Ava or anyone else as defendants, and the proceedings in 1977 and 1984 were entirely ex parte. In denying the motion for summary judgment, the Court ruled that the serious irregularities in the 1977 action, shown on the face of the registration documents, overcame the evidentiary presumption from the title registration of ownership -of the land by Faaliliu P. Logoai and her children before the registration and could not prevent the Ava from litigating the issue of this ownership in the present actions. See Ifopo v. Siatu‘u, 12 A.S.R.2d 24 (1989); Faleafine v. Suapilimai, 7 A.S.R.2d 108 (1988); Solomona v. Governor of American Samoa, 17 A.S.R.2d 186 (1990).
The present actions came regularly for trial on January 16 and 17, 1992. After the plaintiffs completed the presentation of their case, the defendants moved for dismissal on two grounds: first, the lack of a certificate of irreconcilable dispute issued by the Secretary of Samoan Affairs, pursuant to A.S.C.A. § 43.0302, on file with the Court, and second, the lack of the plaintiffs’ standing to sue in that the evidence demonstrated that the land at issue was originally under the pule or control of the Pagofie title rather than the Ava title. The Court, in its discretion under T.C.R.C.P. 41(b), declined to render any judgment until the close of all the evidence.
Strictly, these actions should not have been commenced without an accompanying certificate of irreconcilable dispute, but the time of filing is a procedural requirement that may be corrected by a later filing before judgment. However, failure to file this certificate at all deprives the Court of jurisdiction to render a decision. Thus, on February 19, 1992, plaintiffs were ordered to file a certificate, in conformance with A.S.C.A. § 43.0302, within 60 days or face dismissal of their actions.
The 60-day period was designed to afford adequate time to hold the required two appearances, each on at least 20 days’ notice, before the Secretary or his deputy before the certificate can be issued. In fact, the second hearing on April 23, 1992, and the issuance and filing of the certificate on May 4, 1992, took place after the 60-day period. For purposes of proceeding to determine these actions on their merits, however, we consider the certificate to have been filed in substantial compliance with the Court’s order of February 19, 1992.
A. FINDINGS OF FACT
*68We first summarize the several witnesses’ testimony as a prelude to finding the essential, ultimate facts.
1. Ava Vili’s Testimony. The Ava is 64 or 65 years old. He succeeded to the Ava matai title in 1970. At that time, he had been living in California for a number of years. He went there in 1947 and returned permanently to American Samoa with his family in 1973.
The land "Lalofutu" in the Village of Pava‘i‘ai, American Samoa totals approximately 25 acres and includes the 2.69 acres, more or less, at issue. "Lalofutu" was first occupied by a couple in the Ava ancestral family. Their cultivation was principally below the portion of the land at issue towards the Village proper. This couple had four children, two sons and two daughters. The children of one of the daughters included two brothers who were, respectively, the Ava’s father and Faaliliu’s father. Thus, according to the Ava, both he and Faaliliu are Ava family members, and "Lalofutu" is communal land of the Ava family. All surrounding lands are communal lands of other families.
The Ava’s father also held the Ava title, while Faaliliu’s father held the Pagofie title. Both titles are matais of the same family. Ava communal lands are under the pule of both titles in the sense that both matais, when contemporaneously filled, consult with each other before Ava communal land transactions take place, but such lands, including "Lalofutu," are Ava, not Pagofie, communal lands. There have been no Ava-authorized surveys or title registrations of Ava communal lands, other than a sale of a portion of such lands for church premises for $9,000 in 1983, under an earlier commitment by his father as the Ava and Faaliliu’s father as the Pagofie.
Although long occupied by the Ava family, "Lalofutu" was not significantly developed until 1942. The Ava, along with his father, mother and brother, then began to clear the land in earnest. They worked the land almost daily. An Ava family couple was also authorized to live within the land at issue in that year. Another Ava couple replaced this couple in the same location in 1947. The Ava’s father was involved in a shooting incident on "Lalofutu" in 1948. As one result, his father instructed the Ava never to live on this land himself, about which his mother reminded him years later when he had cinders hauled there, intending to build his house. "Lalofutu" was vacant of any residents when his father died in 1964.
*69Faaliliu’s father and his immediate family, including Faaliliu, moved to the Manu’a Islands in 1930 or 1931. He returned in 1933 and died of tuberculosis about one month later. The Ava does not recall that Faaliliu or any of her siblings were able to attended their father’s funeral. Faaliliu and her immediate family were actually still living in the Manu’a Islands in 1948 at the time of the shooting incident.
A daughter of the present Pagofie told the Ava in 1977 that Faaliliu was having the land at issue surveyed. He stopped the survey, telling the surveyor that he would ruin the surveyor’s equipment if the survey was not stopped. He thinks that the survey was completed the next day, but in any event it was done without his knowledge.
The Ava was unaware of Faaliliu’s court action in 1977 or the follow-up in that action in 1984. At no time did he see or otherwise become aware of any announcement by the Pulenu’u of Pava‘i‘ai, or any village chiefs’ meeting, or any notice, or the posting thereof, concerning the survey and title registration of the land at issue.
During the Ava’s testimony, reference was made to seven other transactions of public record affecting "Lalofutu." All seven described the land as Pagofie communal land and involved separation agreements to convert proposed residences to be constructed on "Lalofutu" to personal property of the building owner, in accordance with A.S.C.A. §§ 37.1501 et seq. Three occurred between 1964 and 1970 when the Ava title was vacant. One of the other four also involved title registration under A.S.C.A. §§ 37.0101 el seq., as individually owned land. The Ava disclaims knowledge of six of the seven transactions, stating no buildings were constructed as a result of them. The remaining transaction was a separation agreement, not involving title registration, in 1983, which the Ava signed on behalf of the Pagofie family. According to the Ava, he signed this separation agreement followingjoint approval by both the Pagofie, who was unavailable to sign, and himself.
With respect to Mike McDonald, the Ava has known him since his arrival in American Samoa and during their respective participation in the construction business here. Although he drove by "Lalofutu" almost daily, he thought that the shop, McDonald’s first building, actually belonged to Foma’i and did not stop its construction. He saw McDonald pouring the concrete foundation for a second building and told McDonald to stop. McDonald refused, claiming it was on Foma’i’s land. The action against McDonald was filed about one month later.
*702. Faaltliu’s Testimony. Faaliliu was bom in 1924 and is now 67 years of age. Her father was the eldest of two sons of a previous Ava, and held the Pagofie title. He was the first person to clear "Lalofutu," with the help of his wife and brothers, beginning in 1934, and to name the land. She is not familiar in any respect with the couple who the Ava claims first cultivated "Lalofutu." According to Faaliliu, "Lalofutu" is Pagofie communál land, other than the portion given to her as her individually owned land. Except for the cinders-excavation incident described below, no Ava has ever exercised, or attempted to exercise, pule over "Lalofutu," and no one has lived there under any Ava’s authority. She recognizes the present Ava as the senior matai of the Ava family but denies that he has any pule over "Lalofutu."
In 1937, when she was 13 years old, her family moved to the Manu‘a Islands. Her father died the following year, in 1938. Before he died, he, as the Pagofie, gave her the land at issue as her individually owned land. This gift was made in the presence of the Ava’s father, who was the Ava at that time. Her father was living in Pava‘i‘ai proper then and was using "Lalofutu," although there were as yet no plantations there.
In 1940, when Faaliliu was age 16, she married a Manu’an. She remained in the Manu’a Islands until she returned to the Island of Tutuila, initially in 1955 and permanently in 1958, to live on the land at issue according to her father’s earlier instructions and wishes. There was no one living on the land at issue in 1955. Since then, the only homes on the land at issue, other than her home, have been those of her children and sister. Her husband and a niece are buried there, solely by her authority. The couple moving onto "Lalofutu" in 1942 and others thereafter lived elsewhere within "Lalofutu" and not on the portion at issue. Likewise, the 1948 shooting incident occurred outside the area she claims to own. She also pointed out that when the road up the mountain from Pava‘i‘ai to Aloau was constructed in 1963-1964, passing immediately adjacent to the land at issue, she first objected, but withdrew her objection when the Pagofie at that time advised her to let road go through "Lalofutu" and along her land.
The only dispute between her and the present Ava came in 1977. She objected to the removal of cinders, which the Ava had authorized, from an area on the ocean side of her house. He did not object to her. survey of the land at issue at that time. She thought that the survey had been completed and the 1977 court action was brought to stop the excavation of cinders, not to permit the survey. She did not know either *71that the true nature of her petition was to compel the survey, or that the petition described the land at issue as Ava communal land.
The 1977 petition was filed with the Court as an ex parte action by an attorney. The attorney was acting on information furnished by Faaliliu or another on her behalf. Faaliliu signed the petition, which alleges that she and her children are blood members of the Ava family, the land at issue is Ava communal land assigned to their use by Ava Lafoia (the present Ava’s father), and the Ava as the present senior matai of the family had stopped their survey of the land at issue. The prayer specifically requested an ex parte order allowing the survey to proceed. The Court’s order of May 6, 1977, authorized the survey to continue and directed the title-registration process to proceed pursuant to law.
3. Foma‘i’s Testimony. Foma'i is Faaliliu’s son. He was bom in 1952 and is now 39 years old. He was bom in the Manu‘a Islands but has lived on the land at issue, beginning either in 1958 or 1962 until 1972, when he joined the U.S. Marine Corps, and since 1984, when he completed his military service. This land was given to his mother by his grandfather Pagofie. When he moved to the land, only his part of the family was cultivating any portion of "Lalofutu." Only Faaliliu’s plantations were on the land at issue since he first lived there.
"Lalofutu," including the land at issue, is Pagofie land in origin. No Ava was asked for permission to register the land at issue as Faaliliu’s individually owned land. This permission is unnecessary for Pagofie land. He was not here in 1977. However, he understood that the 1977 court action was initiated to peacefully resolve the Ava’s objections, when the present Ava threatened FomaTs mother about surveying the land at issue.
After returning in 1984, he checked with the Territorial Registrar’s Office on the status of the title registration of the land at issue. He learned from the Assistant Territorial Registrar that the title had not been registered as Faaliliu’s individually owned land, because the Territorial Registrar could not register a title based on a survey which was undated and not signed by the surveyor. The Assistant did not say anything about a pulenu'u certificate. He was advised by the Registrar to obtain either a new survey or this Court’s order to register the title. He then presented to this Court Faaliliu’s affidavit, dated September 14, 1984, stating, in essence, that the 1977 survey lacked a date, precluding the title’s registration without this Court’s order, and received this *72Court’s order to date the survey nunc pro tunc and register the land at issue.1
There was an incident in 1989 when the Ava had a load of cinders delivered to the land at issue for construction of the home of the Ava’s sister. Foma‘i stopped the unloading. The Ava arrived about ten minutes later. Despite threats, a meeting was scheduled the following Sunday, at which the Ava agreed that his sister’s home would be built on a portion of "Lalofutu" across the road from the land at issue.
Regarding McDonald, Foma‘i was first aware of the Ava’s objection to his presence when McDonald started his second building. The Ava did not take up his objection with Foma’i directly, even when the controversy of this action was discussed at the office of the Secretary of Samoan Affairs (prior to the trial and before the Court’s order of February 19, 1992).
4. Assistant Territorial Registrar’s Testimony. Pelema Kolise, who was then the Assistant Territorial Registrar, recalls being approached about the title registration of the land at issue in 1984. He does not specifically recall that Foma’i was the person who came to his office to discuss the registration. The registration had been rejected up to that time, because the survey was not dated and certified by the surveyor. So long as these defects were not corrected, the registration process could not proceed without this Court’s order. However, he does not recall advising the person who approached him on what to do to complete the title registration..
He believes the person who approached him came three times, the third time with this Court’s order to register the title to the land at issue as the individually owned land of Faaliliu and her children. He has seen in his experience more than 100 court orders to register titles to land. The order in this case was peculiar since no trial took place before its issuance. Normally, a surveyor and pulenu’u certificate is necessary, and Faaliliu’s affidavit does not cover this point. However, he acted *73upon the Court’s order of September 20, 1984, as authority to register the title to the land at issue.
The offer for registration of the land at issue as the individually owned land of Faaliliu and her children was signed by Foma'i on Faaliliu’s behalf and filed with the Territorial Registrar on September 20, 1984. The Notice for Proposed Registration of Land was issued by the Registrar on the same day. The Affidavit of Posting, signed by Kolise on November 19, 1984, shows that the notice was posted at the Court House and on two telephone poles in Pava‘ai‘i from September 20 through November 19, 1984. The Certificate of Registration, issued by the Registrar, certifies that title to the land at issue was registered as the individually owned land of Faaliliu and her children on November 29, 1984. The survey filed with the certificate of Registration is signed by the surveyor but, despite the Court’s order of September 20, 1984, is still undated. In addition, there is no surveyor and pulenu’u Certificate on file with the Registrar.
There are no Territorial Registrar’s records for lands registered under the Ava family name.
Contrary to the allegation in plaintiffs’ complaint, Kolise is not related to Faaliliu and her children.
5. McDonald’s Testimony. McDonald is a carpenter by trade and has about 25 years of experience in the construction business.
He negotiated the lease of approximately .22 acres within the land at issue with Foma‘i. The term of the lease is 20 years, beginning November 6, 1989, and ending November 5, 2009. The rent for the first five years, $9,000, is payable and was paid in advance. The rent for the remaining 15 years is $150 per month. All improvements revert to the landowner at the end of the lease. The lease was signed by Foma'i as lessor and McDonald and his wife as lessees on November 6, 1989. The McDonalds took possession immediately.
He first learned of the Ava’s objection to the lease some seven months later. The objection surprised him. He had known the Ava as a fellow member of the local construction business community for years. The Ava had seen him almost daily during his construction activity on the leased land and had said nothing about this activity. By the time of the Ava’s objection, he had constructed a shop, installed a septic tank, and started the foundation for a house on the leased area.
*74McDonald’s investment in the leasehold consists of $15,680 for the shop building, according to his estimated construction cost of $13 per square foot, $2,000 for the septic tank, and $5,000 for the house foundation, for a total of $21,560. In addition, he has paid $9,550 in rent, including the original advance and a later advance, to Foma‘i.
Resolution of Evidentiary Conflicts
There are several factors that we consider persuasive in resolving the conflicts in the various testimonies and finding the essential, ultimate facts.
First, with the possible exceptions of the land at issue and one other parcel, both within "Lalofutu," this area of Pava‘ia‘i, including "Lalofutu" and the lands surrounding it, are communal lands of various families. "Lalofutu" is clearly communal land in origin.
The seven transactions in evidence of portions of "Lalofutu" other than the land at issue, including the separation agreement executed by the Ava, again with the two possible exceptions noted above, certainly indicate that "Lalofutu" was and is Pagofie communal land. On the other hand, the fact that a Pagofie executed the documents in six of these seven transactions, particularly when the Ava executed the document in one of them, is not necessarily inconsistent with the Ava’s testimony that the Ava and the Pagofie, when both titles are filled, exercise a form of joint pule over Ava communal lands. It may be the family’s practice for the Pagofie to execute the formal documents of these transactions, or it may be that the Ava was genuinely unaware of the six transactions of which he disclaims knowledge. Three of these transactions occurred when the Ava title was vacant. Furthermore, no testimony by a knowledgeable matai of the Pagofie family was offered to contradict the Ava’s testimony. The Ava’s testimony as a whole was, in our opinion, cohesive and convincing.
Faaliliu’s testimony, however, that her father, as the Pagofie and with the concurrence of the Ava’s father as the previous Ava, gave her and her children the land at issue as their individually owned land, when she was at most 14 years of age and unmarried, is incredulous. At most, these two earlier family titleholders might have made a commitment that the land at issue would be assigned to Faaliliu’s use in the future, much like their commitment to sell a. portion of Ava communal land for church purposes, but that in her case the land would remain communal land.
*75Faaliliu and her immediate family did later move onto and cultivate the land at issue without objection, until she sought to survey and register title to this land in 1977 as the individually owned land of herself and her children. Her children were probably included in her claim to the land at this time. Their occupancy then continued after 1977 without objection, as the Ava apparently thought he had successfully prevented the title registration proposed in 1977, until the Ava first learned about the title registration well after the registration was accomplished in 1984.
Most important are the admissions in the petition filed with the Court in 1977 that the land at issue is Ava communal land assigned to Faaliliu and her children for their use, Faaliliu and her children are blood members of the Ava family, and the Ava was objecting to the survey. This petition was signed by Faaliliu and her attorney. The petition must have been prepared by the attorney based on information provided by Faaliliu or some knowledgeable person on her behalf. Of similar importance is the ex parte nature of the 1977 court action, both in that year and in 1984 when the title registration was completed, in the face of the Ava’s announced objections to the survey.
Finally, it is noted that the documentation supporting the title registration remains defective. The survey is signed by the surveyor and implicitly dated nunc pro tunc by court order. However, the customary approval for registration on the survey itself has still not been completed. Moreover, an accompanying surveyor and pulenu‘u certificate, which evidences compliance with and is mandated by A.S.C.A. § 37.0102(c), is still lacking.
We find that the essential ultimate facts are as follows:
1. The land at issue is Ava communal land.
2. Neither an Ava nor a Pagofie, either collectively or singularly when in office, authorized registration of the title to the land at issue as the individually owned land of Faaliliu and her children or of Faaliliu alone.
3. The land at issue was assigned to Faaliliu for the use of herself and her immediate family but remained Ava communal land.
*764. Neither an Ava nor a Pagofie, again either collectively or singularly when in office, authorized the lease of a portion of the land at issue to the McDonalds.
5. McDonald has paid Foma‘i $9,550 in rent for the leased land, including a payment of $9,000 for the first five years of the lease and another advance of $550.
B. CONCLUSIONS OF LAW
We reach conclusions of law as follows:
1. The registration of the title to the land at issue as the individually owned land of Faaliliu and her children is invalid and is canceled.
2. The lease of a portion of the land at issue to the McDonalds is likewise invalid and is canceled.
3. The Ava, for himself and on behalf of the Ava family, has been unjustly enriched as a result of the invalid McDonald lease and must pay to McDonald the damages McDonald suffered in constructing improvements to the land in the sum of $21,560. Since the Ava never received any of the rent paid for the lease, McDonald cannot recover these sums from the Ava.
4. McDonald shall recover the unused portion of the rental advances, totaling $4,652.86, from his lessor Foma‘i. McDonald is not entitled to have title quieted.
5. McDonald’s money judgments shall bear post-judgment interest at the statutory rate of 6 % per annum.
6.This decision implicitly rules against the defendants’ motion to dismiss on the grounds that the Ava lacked standing to sue, and that motion is denied.
Judgment shall be entered accordingly.
It is so ordered.
(Dated as of July 27, 1992.)
While the Court’s order provides for a nunc pro tunc date of May 7, 1979, it is probable that the Court intended the date to be May 7, 1977, the day after the Court’s order of May 6, 1977, permitting the survey. In any event, the copy of the survey on file with the Territorial Registrar still bears only the surveyor’s undated signature. The approval for registration remains undated and unsigned. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482236/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00592-CV
IN RE Jonathan RIVAS
Original Proceeding 1
PER CURIAM
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: November 2, 2022
PETITION FOR WRIT OF MANDAMUS DENIED
On September 15, 2022, relator filed a petition for writ of mandamus. After considering
the petition and this record, this court concludes relator is not entitled to the relief sought.
Accordingly, the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
PER CURIAM
1
This proceeding arises out of Cause No. 2021CVA000440D1, styled Roel Sauceda v. Jonathan Rivas, pending in
the 49th Judicial District Court, Webb County, Texas, the Honorable Joe Lopez presiding. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482273/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Jarvis, Slip Opinion No. 2022-Ohio-3936.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3936
DISCIPLINARY COUNSEL v. JARVIS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Jarvis, Slip Opinion No.
2022-Ohio-3936.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to act with reasonable diligence in representing a client,
failing to reasonably consult with a client about the means by which the
client’s objectives are to be accomplished, failing to maintain a normal
lawyer-client relationship with a client when the client’s capacity to make
considered decisions is diminished, and engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation—Eighteen-month
suspension stayed on conditions.
(No. 2022-0366—Submitted May 24, 2022—Decided November 8, 2022.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2021-020.
______________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Respondent, Timothy Paul Jarvis, of Lancaster, Ohio, Attorney
Registration No. 0076067, was admitted to the practice of law in Ohio in 2003. In
an August 2021 complaint, relator, disciplinary counsel, charged Jarvis with seven
ethical violations arising from the representation of a married couple and their
trustee in an estate-planning matter. Relator alleged that Jarvis had neglected his
clients’ legal matter, failed to communicate with his clients about their wishes, and
failed to assess one client’s testamentary capacity, falsely notarized various estate-
planning documents, instructed his employee to falsely indicate that she had
witnessed documents, and failed to promptly deliver their file upon the termination
of his representation.
{¶ 2} The parties entered into stipulations of fact, misconduct, and
aggravating and mitigating factors. After a hearing conducted by a three-member
panel of the Board of Professional Conduct, the board issued a report finding that
Jarvis committed six stipulated rule violations and unanimously dismissing a
seventh alleged violation. The board adopted the parties’ stipulated aggravating
and mitigating factors and recommended that Jarvis be suspended from the practice
of law for one year, stayed in its entirety on the conditions that he commit no further
misconduct and make restitution of $7,500 within 30 days of the date of our final
order. No objections have been filed.
{¶ 3} We adopt the board’s findings of misconduct, but for the reasons that
follow, we find that a greater sanction is warranted. We therefore suspend Jarvis
from the practice of law for 18 months with the entire suspension stayed on the
conditions recommended by the board.
Misconduct
{¶ 4} Frank A. and Lenor W. Balcar (jointly, “the Balcars”), were married
in 1941. They had five children—Bruce, Paul, Karen, Mark, and Barbara.
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January Term, 2022
{¶ 5} Frank suffered a massive and debilitating stroke in February 2010 and
subsequently lived in a nursing home. In May of that year, Lenor and Karen
contacted Jarvis’s law firm, Jarvis Law Office, about preserving and protecting the
Balcars’ assets from being depleted by the costs of Frank’s care. They met with
Melissa Evick, a nonattorney who, at that time, served as Jarvis’s office manager.
Lenor and Karen gave Evick basic information regarding the Balcars and their
assets. They also informed her that Frank was 94 years old and in poor health.
Evick conveyed the information to Jarvis by email later that day.
{¶ 6} On May 28, Jarvis met with Lenor and Karen. He told them that he
could create an irrevocable trust that would protect the Balcars’ assets and that he
would then apply for Medicaid on Frank’s behalf. Jarvis told Lenor and Karen that
he could save them between $95,000 and $110,000 if they retained him. Jarvis was
aware that even if Frank qualified for Medicaid, his family would still have to pay
for at least 16 months of his care due to a Medicaid “lookback” or “penalty” period.
But Jarvis has stipulated that if Karen were called to testify, she would state that he
did not advise them about the lookback period other than to tell them that it was
“very short.”
{¶ 7} After advising Jarvis about Frank’s health conditions—including a
diagnosis of Alzheimer’s disease—Lenor and Karen specifically asked if Frank was
competent to sign legal documents. Jarvis has stipulated that Karen would testify
that he advised her and Lenor that (1) Frank’s capacity would not be an issue and
(2) Frank only needed to be able to place an “X” on the appropriate lines of the
documents. Although Karen emailed additional questions to Jarvis, he refused to
respond, claiming, “I’ve learned the hard way that if I ‘give away’ all of my secrets
prior to being retained, I run the risk of someone thinking that they can do this
themselves.”
{¶ 8} In June, Karen paid Jarvis $7,500 to represent them. Although Jarvis
did not enter into a written fee agreement detailing the scope of the representation,
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SUPREME COURT OF OHIO
based on their communications, Karen believed that he would draft updated estate
documents for the Balcars, transfer the Balcars’ nonmonetary assets into an
irrevocable trust, and if necessary, probate the Balcars’ estates. Karen and Barbara
provided Evick with documentation regarding the Balcars’ assets to facilitate the
transfer of those assets into the irrevocable trust.
Drafting of Estate-Planning Documents
{¶ 9} Jarvis drafted the Balcar Family Irrevocable Trust and a certification
of trust. Consistent with an earlier revocable trust that had been created by Lenor
and the amendments to it, the irrevocable trust (1) designated Karen as the trustee,
(2) provided that upon the deaths of Frank and Lenor, 10 percent of the trust assets
would be distributed to a faith-based organization, and (3) provided that there
would be no distribution to Paul other than a watch that had belonged to Frank. In
contrast to the earlier revocable trust, which had provided that Barbara would
receive a larger percentage of the remaining trust assets, the irrevocable trust
provided that those assets would be split equally among Bruce, Karen, Mark, and
Barbara.
{¶ 10} In addition, Jarvis drafted other estate-planning documents,
including wills and durable powers of attorney.
False Signing and Notarization
{¶ 11} On June 25, Evick met with Frank at the nursing home where he
resided and had him sign the durable power of attorney. On June 28, Evick and
another employee of Jarvis’s firm met with Frank and had him sign a second copy
of that document.
{¶ 12} Although Jarvis met with Lenor, he never personally communicated
with Frank and therefore never (1) explained the purpose of the estate-planning
documents, (2) ascertained whether Frank wanted to execute the documents, or (3)
determined whether Frank had the testamentary or contractual capacity to sign
them. Nor was Jarvis present when Frank signed the durable powers of attorney.
4
January Term, 2022
However, Jarvis signed the first durable power of attorney as a witness and falsely
notarized both versions under jurats stating that Frank had personally appeared
before him and voluntarily signed the instrument.
{¶ 13} On August 11, a doctor examined Frank and noted, “Frank does not
communicate when asked questions, he looks at you but is not able to answer
questions.” The following day, Lenor and Karen met with Jarvis to review and sign
the estate documents. Lenor signed the irrevocable-trust agreement and other
estate-planning documents in Jarvis’s presence. Karen signed the agreement as the
trustee. Evick signed Lenor’s will and durable power of attorney as a witness.
Jarvis stipulated, however, that if Evick were called to testify, she would state that
she was either called into the meeting after the documents were signed or that she
signed them as a witness sometime after Lenor and Karen left—a common practice
in Jarvis’s office at that time.
{¶ 14} Even though Jarvis knew that Evick was not an Ohio notary, he
directed her to meet with Frank at his nursing home on August 13 or 14 to have
him sign the irrevocable trust and four other estate-planning documents. Jarvis did
not discuss those documents with Frank or assess Frank’s testamentary or
contractual capacity before Frank signed them. Nor was he present when Frank
signed them. But several days after Evick obtained Frank’s signature on those five
documents, Jarvis backdated and notarized all of them under jurats that falsely
stated that Frank had personally appeared before him to acknowledge his signature.
He also falsely signed Frank’s will as a witness and attested on two of the
documents that Frank appeared to be of sound mind when he signed them.
Conduct after the Estate-Planning Documents Were Executed and after the
Balcars’ Deaths
{¶ 15} At the end of September, Evick applied for Medicaid on Frank’s
behalf. Although almost seven weeks had elapsed since Frank signed the trust
agreement and the other estate-planning documents, the only asset that had been
5
SUPREME COURT OF OHIO
transferred to the irrevocable trust was a checking account belonging to Lenor. By
the end of October, the Department of Job and Family Services had determined that
the application was incomplete and had requested additional information regarding
Frank’s assets.
{¶ 16} Frank died on November 6, 2010, without qualifying for or receiving
any Medicaid benefits. Because most of his assets had not been transferred into the
irrevocable trust, they were subject to probate costs and estate taxes.
{¶ 17} In April 2011, Lenor signed a fiduciary deed to transfer her home
from the revocable trust to the irrevocable trust. Jarvis notarized the deed under a
jurat falsely stating that Lenor had personally appeared before him to acknowledge
the signature. The deed was recorded on May 4, 2011—Lenor died nine days later.
{¶ 18} Jarvis continued to represent Karen as trustee of the irrevocable trust
and executor of the Balcars’ estates. Karen and Barbara continued to correspond
with Evick and provide her with documents related to the estates and the trust.
Karen believed that Jarvis would send a letter to the trust’s beneficiaries informing
them of the trust’s existence and how it would affect them—but he never did.
{¶ 19} By July 2011, the Balcars’ son Bruce had learned that the irrevocable
trust existed. He engaged counsel, who wrote a letter to Karen requesting a copy
of the irrevocable trust and an inventory of the trust assets. Karen forwarded that
letter to Evick, who stated that Jarvis would respond to it. As a trustee, Karen had
a statutory obligation to keep the beneficiaries reasonably informed about the
administration of the trust and to promptly respond to a beneficiary’s request for
information. See R.C. 5808.13(A). Notwithstanding that obligation, Jarvis did not
respond to the request for information that Karen had received from Bruce’s
attorney or to a subsequent request that the attorney sent directly to him.
{¶ 20} Paul, another of the Balcars’ sons, met with Evick in early August
and requested a copy of the irrevocable trust. Evick declined to give him a copy of
6
January Term, 2022
the trust agreement but read to him the portions of the trust related to his distribution
and Frank’s watch. Paul left the meeting upset.
{¶ 21} Evick notified Karen about her meeting with Paul and emailed Karen
a copy of the letter that Bruce’s counsel had sent to Jarvis. Karen responded to that
email and demanded a date that the information would be sent to Bruce’s counsel.
She also expressed displeasure that Jarvis had not responded to the attorney’s first
letter, stating, “Had the original letters been sent two weeks after my mother’s death
as I was expecting most of this would have been avoided.” Jarvis responded with
an email informing Karen that the letter to Bruce’s counsel would go out when he
completed it and threatening to terminate the representation if Karen did not abide
by his rules.
{¶ 22} By the end of August 2011, Paul’s counsel had also written to Jarvis
to request complete copies of any trust instruments, all beneficiary reports or
updates, the name of the trustee, and the trustee’s compensation rate. In an October
5 email, Jarvis informed Karen that he had received a second letter from Paul’s
counsel and—for the first time—told her that she was required to provide a copy
of the irrevocable trust to the trust beneficiaries. Although Jarvis stated that he
would provide a copy of the trust to Paul’s counsel, he never responded to either
attorney’s inquiries.
{¶ 23} Jarvis’s October 5 email to Karen also stated that because Bruce and
Paul had engaged counsel, “it seems fairly likely that [they would] end up in
litigation.” For that reason, Jarvis asserted that he could no longer represent the
estates of Frank and Lenor and withdrew from the representation. That day, Karen
instructed Jarvis to send information regarding the irrevocable trust to her new
attorney. Despite having received that email and a follow-up email from Karen,
Jarvis did not forward the requested information.
{¶ 24} Later that month, Paul filed a complaint against Karen in the
Belmont County Probate Court alleging that she had failed to notify him of the trust
7
SUPREME COURT OF OHIO
or keep him apprised of trust assets as required by law. He further alleged that she
had used undue influence, coercion, or other means to persuade Frank and Lenor to
revise their estate plan. Bruce sought and was granted leave to intervene in the
proceeding. In July 2012, Karen’s counsel asked Jarvis turn over the original file
to him by July 16. On August 10—ten months after he had withdrawn from the
representation—Jarvis finally produced a copy of the case file. Although the Balcar
siblings entered into a settlement agreement in August 2013, the probate litigation
continued for another five years.
Malpractice Litigation
{¶ 25} In October 2012, Karen filed a legal-malpractice action against
Jarvis in the Franklin County Court of Common Pleas. Following a ten-day trial in
March 2019, a jury found Jarvis liable for legal malpractice and awarded Karen
compensatory damages and punitive damages. In response to the parties’ posttrial
motions, the court reduced the punitive damages to zero and awarded Karen
approximately 40 percent of her claimed attorney fees.
{¶ 26} The parties appealed the trial court’s judgment. In February 2021,
the court of appeals affirmed the trial court’s rulings in part, reversed them in part,
and remanded the case for further proceedings. See McGraw v. Jarvis, 2021-Ohio-
522, 168 N.E.3d 163 (10th Dist.). The parties have now settled, and that litigation
has been dismissed.
Findings of Misconduct
{¶ 27} The parties stipulated and the board found that Jarvis’s conduct
violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in
representing a client), 1.4(a)(2) (requiring a lawyer to reasonably consult with the
client about the means by which the client’s objectives are to be accomplished),
1.14(a) (requiring a lawyer, as far as reasonably possible, to maintain a normal
lawyer-client relationship with the client when the client’s capacity to make
adequately considered decisions in connection with a representation is diminished
8
January Term, 2022
due to mental impairment), 1.16(d) (requiring a lawyer to promptly deliver client
papers and property as part of the termination of representation), 5.3 (requiring a
lawyer possessing managerial authority in a law firm to make reasonable efforts to
ensure that the conduct of nonattorneys working for the firm is compatible with the
professional obligations of the lawyer), and 8.4(c) (prohibiting a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
{¶ 28} We adopt these findings of misconduct.
Recommended Sanction
{¶ 29} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 30} The parties stipulated and the board found that three aggravating
factors are present—Jarvis engaged in a pattern of misconduct, committed multiple
offenses, and caused harm to vulnerable victims. See Gov.Bar R. V(13)(B)(3), (4),
and (8).
{¶ 31} As for mitigating factors, the board found that Jarvis has no prior
discipline, made full and free disclosure to the board and exhibited a cooperative
attitude toward the disciplinary proceedings, and had other penalties or sanctions
imposed by virtue of the malpractice action and its anticipated damage award. See
Gov.Bar R. V(13)(C)(1), (4), and (6). The board noted that Jarvis had agreed to
refund the entire fee that Karen paid on behalf of the Balcars, even though he had
provided some legal services to them, but that he had not made that payment by the
time of his disciplinary hearing. Because no final order had issued regarding any
damages occasioned by Jarvis’s legal malpractice, the board declined to
recommend that Jarvis be required to make any restitution beyond the refund of the
Balcars’ legal fee. At his disciplinary hearing, Jarvis accepted full responsibility
for his misconduct. He freely acknowledged that he had “completely
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SUPREME COURT OF OHIO
misunderstood” the rules governing the notarization of documents and stated that
he came to understand the correct procedures shortly after Karen filed the
malpractice action against him in October 2012. He explained that he now requires
the notary and witnesses to be present with the person signing documents. The
board found that Jarvis’s remorse was genuine and noted that the procedures he
instituted in response to the malpractice action filed against him have guarded
against further incidents of misconduct over the last decade.
{¶ 32} In considering the appropriate sanction for Jarvis’s misconduct, the
board was guided by the principle that the primary purpose of disciplinary sanctions
is to protect the public rather than punish the offender. See, e.g., Disciplinary
Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53.
{¶ 33} The parties suggested that a conditionally stayed two-year
suspension is the appropriate sanction for Jarvis’s misconduct, but the board
concluded that the parties had offered no credible precedent or other justification
for that sanction. After considering the sanctions we have imposed on other
attorneys who engaged in similar acts of misconduct—including the false
notarization of documents, the failure to properly supervise the conduct of
nonattorney employees, the neglect of client matters, and the failure to reasonably
communicate with clients—the board recommended that we suspend Jarvis for one
year and stay the entire suspension on the conditions that he commit no further
misconduct and make restitution of the Balcars’ entire $7,500 fee.
{¶ 34} This court has held that generally, attorney misconduct “involving
dishonesty, fraud, deceit, or misrepresentation warrants an actual suspension from
the practice of law.” Disciplinary Counsel v. Karris, 129 Ohio St.3d 499, 2011-
Ohio-4243, 954 N.E.2d 118, ¶ 16, citing Disciplinary Counsel v. Kraemer, 126
Ohio St.3d 163, 2010-Ohio-3300, 931 N.E.2d 571, ¶ 13, and Disciplinary Counsel
v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. However, we
have stated that an exception to this rule may be justified when “an abundance of
10
January Term, 2022
mitigating evidence” is shown. Disciplinary Counsel v. Markijohn, 99 Ohio St.489,
2003-Ohio-4129, 794 N.E.2d 24, ¶ 8, citing Dayton Bar Assn. v. Kinney, 89 Ohio
St.3d 77, 728 N.E.2d 1052 (2000).
{¶ 35} We have previously imposed six-month conditionally stayed
suspensions on attorneys who, like Jarvis, have engaged in dishonest conduct by
falsely notarizing multiple documents. See Disciplinary Counsel v. Roberts, 117
Ohio St.3d 99, 2008-Ohio-505, 881 N.E.2d 1236, ¶ 19 (in light of the respondent’s
“contrition, heretofore unblemished record, and good, albeit misguided, intentions,
we do not require an actual suspension”); Disciplinary Counsel v. Clark, 154 Ohio
St.3d 349, 2018-Ohio-4491, 114 N.E.3d 201 (implicitly finding that mitigating
evidence consisting of the respondent’s resignation from his law firm, his self-
reporting of his misconduct to the relator, and his expression of sincere remorse
justified the imposition of a fully stayed suspension).
{¶ 36} Similarly, in Columbus Bar Assn. v. Christensen and Kluesener, 159
Ohio St.3d 374, 2020-Ohio-167, 151 N.E.3d 552, we imposed a one-year
conditionally stayed suspension on an attorney who issued six invalid subpoenas
seeking information about personal-injury matters before filing suit and directed a
nonattorney assistant to engage in the same type of misconduct. Like Jarvis,
Kluesener failed to take reasonable efforts to ensure that his nonattorney
employee’s actions were compatible with his professional obligations when he
instructed the employee to follow up on one of the invalid subpoenas. Kluesener
also failed to take reasonable remedial action after receiving a complaint regarding
the paralegal’s conduct, but he was not charged with dishonest conduct.
{¶ 37} In Lorain Cty. Bar Assn. v. Nelson, 144 Ohio St.3d 414, 2015-Ohio-
4337, 44 N.E.3d 268, we publicly reprimanded an attorney who neglected a client’s
legal matter, failed to reasonably communicate with the client, and failed to deliver
the client’s file at the termination of the representation. And in Disciplinary
Counsel v. Farris, 157 Ohio St.3d 527, 2019-Ohio-4810, 138 N.E.3d 1134, we
11
SUPREME COURT OF OHIO
imposed a one-year conditionally stayed suspension on an attorney who missed two
statutory deadlines in his client’s property-tax matters and lied to his clients for
more than a year to conceal his neglect—though he ultimately consented to a
$95,000 judgment in the malpractice case filed by one of his clients.
{¶ 38} Like Jarvis, Nelson and Farris had no prior discipline, accepted
responsibility for their misconduct, and received no benefit for their misdeeds. But
neither Nelson nor Farris engaged in a pattern of misconduct—let alone one
comparable to Jarvis’s pattern of fraudulently notarizing documents. Nor is there
any suggestion that either of those attorneys failed to reasonably communicate with
a client of diminished capacity.
{¶ 39} Jarvis, on the other hand, made no effort to establish or maintain a
normal client-lawyer relationship with a client whose capacity was known to be
diminished. Jarvis never met with Frank to assess his capacity or ascertain his
wishes for his end-of-life care and the disposition of his estate before preparing the
necessary documents. Instead, he drafted the documents pursuant to the
instructions of Frank’s family members. Jarvis directed his employee to obtain the
client’s signature on those documents outside of his presence and then fraudulently
notarized them under jurats falsely stating that Frank had personally appeared
before him and voluntarily signed the instrument. Jarvis further attested that Frank
appeared to be of sound mind when he signed two of those documents—even
though he was not present when those documents were signed and had no personal
knowledge of Frank’s mental status. Jarvis’s multiple failures opened the door to
allegations that Frank and Lenor had been unduly influenced or coerced to modify
their estate plan, which led to another six years of estate litigation and more than
ten years of malpractice litigation.
{¶ 40} Based upon the foregoing, we find that the totality of Jarvis’s
misconduct warrants the imposition of a sanction more stringent than the fully
stayed one-year suspension recommended by the board. Nevertheless, we conclude
12
January Term, 2022
that the mitigating factors present in this case are sufficient to rebut the presumption
that Jarvis’s dishonesty requires an actual suspension from the practice of law. We
believe that an 18-month suspension, stayed in its entirety on the conditions
recommended by the board, is the appropriate sanction in this case.
Conclusion
{¶ 41} Accordingly, Timothy Paul Jarvis is suspended from the practice of
law in Ohio for 18 months with the suspension stayed in its entirety on the
conditions that he commit no further misconduct and make restitution of $7,500 to
Karen Balcar McGraw, as trustee of the Lenor W. Balcar Revocable Living Trust,
within 30 days of the date of our final order. If Jarvis fails to comply with any
condition of the stay, the stay will be lifted and he will serve the full 18-month
suspension. Costs are taxed to Jarvis.
Judgment accordingly.
O’CONNOR, C.J., and FISCHER, DONNELLY, and BRUNNER, JJ., concur.
DEWINE and STEWART, JJ., concur in judgment only.
KENNEDY, J., dissents, with an opinion.
_________________
KENNEDY, J., dissenting.
{¶ 42} As the majority recognizes, generally, attorney misconduct
“involving dishonesty, fraud, deceit, or misrepresentation warrants an actual
suspension from the practice of law.” Disciplinary Counsel v. Karris, 129 Ohio
St.3d 499, 2011-Ohio-4243, 954 N.E.2d 118, ¶ 16, citing Disciplinary Counsel v.
Kraemer, 126 Ohio St.3d 163, 2010-Ohio-3300, 931 N.E.2d 571, ¶ 13, and
Disciplinary Counsel v. Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237 (1995),
syllabus. Respondent, Timothy Paul Jarvis, committed numerous acts of
dishonesty during his representation of Frank A. and Lenor W. Balcar. However,
the majority finds that the mitigating factors in favor of Jarvis warrant deviation
13
SUPREME COURT OF OHIO
from the general rule. Because I do not believe that the mitigating factors are
significant enough to warrant deviation from the general rule, I dissent.
{¶ 43} On three occasions, Jarvis’s office manager, Melissa Evick, obtained
signatures from Frank on numerous estate-planning documents. However, Jarvis
was not present at any of the times Frank signed the documents and had not assessed
Frank’s testamentary or contractual capacity. Jarvis falsely notarized seven
documents despite the jurats stating that Frank had personally appeared before him.
He backdated five of the documents. Jarvis also signed two documents, one of
which was Frank’s will, as a witness. And Jarvis attested on two of the documents
that Frank appeared to be of sound mind when he signed them, despite having never
assessed Frank’s testamentary or contractual capacity.
{¶ 44} Jarvis also directed Evick to sign Lenor’s will and durable power of
attorney as a witness after Lenor had already signed the documents outside of
Evick’s presence. He later notarized a fiduciary deed to transfer Lenor’s home
under a jurat falsely stating that Lenor had personally appeared before him to
acknowledge the signature.
{¶ 45} Prof.Cond.R. 8.4(c) prohibits a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation. Here, Jarvis violated this
rule by committing multiple acts of dishonesty during his representation of Frank
and Lenor.
{¶ 46} We have held that an attorney who engages in conduct involving
dishonesty, fraud, deceit, or misrepresentation generally will serve an actual
suspension from the practice of law. Karris, 129 Ohio St.3d 499, 2011-Ohio-4243,
954 N.E.2d 118, at ¶ 16, citing Kraemer, 126 Ohio St.3d 163, 2010-Ohio-3300, 931
N.E.2d 571, at ¶ 13, and Fowerbaugh, 74 Ohio St.3d 187, 658 N.E.2d 237, at
syllabus. We have explained:
14
January Term, 2022
A lawyer who engages in a material misrepresentation to a court or
a pattern of dishonesty with a client violates, at a minimum, the
lawyer’s oath of office that he or she will not “knowingly * * *
employ or countenance any * * * deception, falsehood, or fraud.”
Gov.Bar R. I(8)(A). Such conduct strikes at the very core of a
lawyer’s relationship with the court and with the client. Respect for
our profession is diminished with every deceitful act of a lawyer.
(Ellipsis sic.) Fowerbaugh at 190.
{¶ 47} In accordance with our caselaw, Jarvis’s dishonest conduct merits an
actual suspension. However, we have stated that an exception to this rule may be
justified when “an abundance of mitigating evidence” is shown. Disciplinary
Counsel v. Markijohn, 99 Ohio St.3d 489, 2003-Ohio-4129, 794 N.E.2d 24, ¶ 8,
citing Dayton Bar Assn. v. Kinney, 89 Ohio St.3d 77, 728 N.E.2d 1052 (2000).
{¶ 48} In mitigation, the majority finds that “Jarvis ha[d] no prior
discipline, made full and free disclosure to the board and exhibited a cooperative
attitude toward the disciplinary proceedings, and had other penalties or sanctions
imposed by virtue of the malpractice action and its anticipated damage award.”
Majority opinion, ¶ 31. The majority concludes that these mitigating factors “are
sufficient to rebut the presumption that Jarvis’s dishonest requires an actual
suspension from the practice of law.” Id. at ¶ 40. I disagree.
{¶ 49} While these mitigating factors are worthy of consideration, they are
not enough to overcome the numerous instances of dishonesty that Jarvis
committed during his representation of Frank and Lenor. Our caselaw supports this
conclusion.
{¶ 50} In Disciplinary Counsel v. Shaffer, 98 Ohio St.3d 342, 2003-Ohio-
1008, 785 N.E.2d 429, a client retained John S. Shaffer to handle the sale of the
client’s grandmother’s real estate. The grandmother had been incapacitated by a
15
SUPREME COURT OF OHIO
stroke for over a year. Shaffer instructed his client to forge his grandmother’s name
on a backdated power of attorney. Shaffer then “fraudulently authenticate[d] the
signature by signing as a witness, notarizing it, and backdating the jurat.” Id. at
¶ 6. Shaffer also instructed his secretary to witness the forged signature. Finally,
Shaffer assisted with the closing on the property, including representing that the
title was marketable.
{¶ 51} The court found it mitigating that Shaffer had no prior disciplinary
record, did not profit from his actions, accepted responsibility for his misconduct,
had a cooperative attitude toward the disciplinary process, and made efforts to
rectify the consequences of the misconduct.
{¶ 52} The court concluded that these mitigating factors were not sufficient
to justify a fully stayed suspension. It reasoned:
Respondent’s misconduct manifests a course of conduct
because he planned and administered a multistep process to defraud.
Respondent may have genuinely hoped to serve his client by helping
him avoid the expense of establishing a guardianship; however, he
nevertheless perpetrated fraud on the court system and public by
sidestepping safeguards in place to protect sellers and buyers of real
estate.
Id. at ¶ 13. Therefore, in accordance with the general rule calling for an actual
suspension, the court suspended Shaffer from the practice of law for one year with
six months stayed on conditions.
{¶ 53} In Karris, 129 Ohio St.3d 499, 2011-Ohio-4243, 954 N.E.2d 118,
Tom John Karris improperly notarized a woman’s signature on four financial and
real-estate documents when the woman’s husband had actually signed the woman’s
name.
16
January Term, 2022
{¶ 54} In determining the appropriate sanction, the court found as
aggravating factors that Karris had engaged in a pattern of misconduct involving
multiple offenses, failed to make complete restitution, and refused to acknowledge
the wrongful nature of his conduct. The court found as mitigating factors that
Karris did not have a prior disciplinary record and had submitted evidence of his
good character.
{¶ 55} On that record, the court “decline[d] to depart from the general rule
that offenses involving dishonesty, fraud, deceit, or misrepresentation require an
actual suspension from the practice of law.” Id. at ¶ 19. Karris was suspended from
the practice of law for six months, with none of the time stayed.
{¶ 56} Also instructive are cases in which the court disciplined attorneys
for dishonest and deceitful conduct in their relationships with their clients. In
Disciplinary Counsel v. Keller, 110 Ohio St.3d 240, 2006-Ohio-4354, 852 N.E.2d
1195, ¶ 3, Larry Wendall Keller was retained to pursue a personal-injury claim.
Keller falsely informed the client that a complaint had been filed and that he was
negotiating with the tortfeasor’s insurance carrier. During the representation, he
also falsely informed the client that he had received an offer to settle from the
tortfeasor’s insurer.
{¶ 57} The client eventually retained new counsel, who discovered that no
lawsuit had been filed and that the two-year statute of limitations had run. The
client sued Keller for malpractice and obtained a default judgment against him in
the amount of $102,800, which Keller had not satisfied by the time that the decision
issued.
{¶ 58} The court found in mitigation that Keller had no prior disciplinary
record and that there was evidence of good character, chemical dependency,
genuine remorse, and personal hardships, including the murder of the respondent’s
adopted daughter, the subsequent trial of her killer, and a difficult divorce, at the
time of the misconduct.
17
SUPREME COURT OF OHIO
{¶ 59} The court acknowledged Keller’s mitigating evidence but found that
his “attempts to conceal his neglect and his failure to remedy the harm that was
caused warrant an actual suspension.” Id. at ¶ 13. Keller was suspended from the
practice of law for 2 years with 18 months stayed on conditions.
{¶ 60} In Disciplinary Counsel v. Rooney, 110 Ohio St.3d 349, 2006-Ohio-
4576, 853 N.E.2d 663, John James Rooney misled a client about the status of a
probate matter for two years. When the client learned of Rooney’s deception, the
client terminated the representation. Rooney promptly sent the client’s file to the
new attorney but did not refund the client’s retainer until a year later.
{¶ 61} The court found the following mitigating factors: no prior
disciplinary record, the absence of a dishonest or selfish motive, a timely and good-
faith effort to rectify the consequences of the misconduct, full and free disclosure
to the board and a cooperative attitude toward the disciplinary process, and
evidence of good character. In rejecting a stayed suspension, however, the court
stated that the mitigating factors “do not warrant a departure from the ordinary rule
that an actual suspension should be imposed for dishonest conduct, particularly
when that conduct is designed to ‘mislead a court or client.’ ” Id. at ¶ 13, quoting
Akron Bar Assn. v. Holder, 102 Ohio St.3d 307, 2004-Ohio-2835, 810 N.E.2d 426,
¶ 43. The court imposed a six-month actual suspension.
{¶ 62} In Columbus Bar Assn. v. Roseman, 147 Ohio St.3d 317, 2016-Ohio-
5085, 65 N.E.3d 713, Darwin Richard Roseman neglected a client’s personal-injury
case, which resulted in the client being barred from litigating his claim in court.
During the representation, Roseman was untruthful and deceitful in his
communications with his client regarding why the client’s case, which Roseman
had dismissed without informing his client that he had done so, had not been refiled.
The client later sued Roseman for malpractice and obtained a judgment for
$135,000.
18
January Term, 2022
{¶ 63} The court found as mitigating factors that Roseman had no prior
discipline and had cooperated in the disciplinary proceedings. The court concluded
that a one-year suspension from the practice of law, with six months stayed on
conditions, was appropriate for Roseman’s dishonest behavior toward his client.
{¶ 64} The foregoing cases reveal that Jarvis’s mitigating evidence, while
favorable, does not overcome his repeated acts of dishonest conduct. Here, we are
not faced with a single act of misconduct by improperly notarizing one or two
documents. Rather, like in Karris, 129 Ohio St.3d 499, 2011-Ohio-4243, 954
N.E.2d 118, and Shaffer, 98 Ohio St.3d 342, 2003-Ohio-1008, 785 N.E.2d 429,
Jarvis committed multiple acts of misconduct, including three separate occasions
involving eight documents. And while Jarvis did not counsel his client to forge a
signature, as Shaffer did, it is equally troubling that Jarvis falsely notarized and
witnessed Frank’s signature when he did not see Frank sign the documents and
failed to ensure that Frank had the testamentary or contractual capacity to sign
them. Jarvis’s actions “perpetrated fraud on the * * * public by sidestepping
safeguards in place to protect” the estate-planning process. Shaffer at ¶ 13.
{¶ 65} I recognize the favorable mitigating factors that are present here, but
I cannot conclude that they are significant enough to warrant an exception to our
general rule that dishonest conduct on the part of an attorney warrants an actual
suspension from the practice of law. See Karris at ¶ 16. Therefore, I would suspend
Jarvis from the practice of law for 18 months with one year stayed on the conditions
that he commit no further misconduct and that he make restitution of $7,500 to
Karen Balcar McGraw, as trustee of the Lenor W. Balcar Revocable Living Trust,
within 30 days of the date of this court’s order.
{¶ 66} Because the majority does not impose an actual suspension, I
dissent.
_________________
19
SUPREME COURT OF OHIO
Joseph M. Caligiuri, Disciplinary Counsel, and Karen H. Osmond and
Adam P. Bessler, Assistant Disciplinary Counsel, for relator.
Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.
_________________
20 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482242/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-22-00407-CR
Michael HORNADAY,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 11, Bexar County, Texas
Trial Court No. 637583
Honorable Michael Keasler, Judge Presiding
BEFORE CHIEF JUSTICE MARTINEZ, JUSTICE RODRIGUEZ, AND JUSTICE
VALENZUELA
In accordance with this court’s memorandum opinion of this date, appellant’s amended
motion to dismiss this appeal is GRANTED, and this appeal is DISMISSED. See TEX. R. APP. P.
42.2(a).
SIGNED November 2, 2022.
_________________________________
Liza A. Rodriguez, Justice | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482255/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-21-00321-CR
Charles I. COPELAND,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR10159
Honorable Melisa C. Skinner, Judge Presiding
BEFORE JUSTICE ALVAREZ, JUSTICE RIOS, AND JUSTICE WATKINS
In accordance with this court’s opinion of this date, the trial court’s judgment is
AFFIRMED.
SIGNED November 2, 2022.
_____________________________
Patricia O. Alvarez, Justice | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482258/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00390-CV
Brian GILL,
Appellant
v.
Gina GILL,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2020-CI-23530
Honorable Tina Torres, Judge Presiding
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: November 2, 2022
DISMISSED FOR WANT OF PROSECUTION
In this appeal of the trial court’s judgment from May 26, 2022, Appellant’s brief was due
on September 21, 2022. On September 28, we ordered Appellant to file the brief and show cause
in writing not later than October 10, 2022, why this appeal should not be dismissed for want of
prosecution. See TEX. R. APP. P. 38.8(a). We warned Appellant that if he failed to respond as
ordered, this appeal would be dismissed without further notice.
To date, Appellant has not filed a brief. Accordingly, we dismiss this appeal for want of
prosecution. See TEX. R. APP. P. 38.8(a)(1), 42.3(b).
PER CURIAM | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482259/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00577-CV
IN THE INTEREST OF L.M.W., A CHILD
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2021PA01534
Honorable Kimberly Burley, Judge Presiding
ORDER
This is an accelerated appeal of an order terminating appellant J.C.’s parental rights,
which must be disposed of by this Court within 180 days of the date the notice of appeal is filed.
TEX. R. JUD. ADMIN. 6.2. Thus, the 180-day deadline in which this Court must dispose of this
appeal is March 6, 2023. Appellant’s brief was due October 26, 2022. However, Appellant has
filed a motion for extension of time to file his brief, requesting a twenty-day extension to
November 15, 2022. Appellant’s motion is GRANTED. Appellant J.C.’s brief is now due on or
before November 15, 2022. Given the time constraints governing the disposition of this appeal,
further requests for extensions of time will be disfavored.
It is so ORDERED November 1, 2022.
PER CURIAM
ATTESTED TO:__________________________
MICHAEL A. CRUZ,
CLERK OF COURT | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482244/ | Fourth Court of Appeals
San Antonio, Texas
November 2, 2022
No. 04-22-00549-CV
Meredith DE LA PENA,
Appellant
v.
Ruben DE LA PENA,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-24731
Honorable Nicole Garza, Judge Presiding
ORDER
In accordance with this court’s opinion of this date, this appeal is DISMISSED FOR LACK
OF JURISDICTION. It is ORDERED that costs of appeal are adjudged against appellant. See
TEX. R. APP. P. 43.4.
It is so ORDERED on November 2, 2022.
_________________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of November, 2022.
_________________________________
Michael A. Cruz, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482252/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00148-CV
Elvira JONES,
Appellant
v.
Jason Frank JONES,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 21-05-0410-CVA
Honorable Russell Wilson, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: November 2, 2022
MOTION TO DISMISS GRANTED; DISMISSED
On February 22, 2022, appellant Elvira Jones filed a notice of appeal challenging the trial
court’s February 10, 2022 order appointing a receiver in a divorce action. After we formally set
this case for submission on the parties’ briefs, appellant filed a motion seeking to voluntarily
dismiss her appeal. We grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(1).
Because the motion does not disclose an agreement regarding the assessment of costs, we order all
costs assessed against appellant. See id. R. 42.1(d) (absent agreement of the parties, costs are taxed
against appellant).
Luz Elena D. Chapa, Justice | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482293/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-707
No. COA22-116
Filed 1 November 2022
Catawba County, No. 20 CVS 2090
TOD COLES, Plaintiff,
v.
SUGARLEAF LABS, INC. (formerly known as Neptune Acquisition USA, Inc.), and
NEPTUNE WELLNESS SOLUTIONS, INC., Defendants.
Appeal by Plaintiff from an order entered 17 August 2021 by Judge Gregory
Hayes in Catawba County Superior Court. Heard in the Court of Appeals 6
September 2022.
Law Offices of Matthew K. Rogers, PLLC, by Matthew K. Rogers, for Plaintiff-
Appellant.
Jackson Lewis P.C., by H. Bernard Tisdale, III, and Janean B. Dunn, for
Defendants-Appellees.
INMAN, Judge.
¶1 Plaintiff-Appellant Tod Coles (“Plaintiff”) appeals from an order compelling
arbitration and dismissing his complaint with prejudice. The parties dispute whether
this Court has jurisdiction over this appeal. Orders compelling arbitration are
interlocutory and are generally not immediately appealable, but a dismissal of a
complaint with prejudice ordinarily operates as a final judgment from which a party
COLES V. SUGARLEAF LABS, INC.
2022-NCCOA-707
Opinion of the Court
may immediately appeal. After careful review, we hold that the trial court’s dismissal
with prejudice was in error under North Carolina law, vacate that portion of the trial
court’s order, and remand for entry of a stay. But, because we would otherwise lack
jurisdiction to consider Plaintiff’s appeal, we dismiss Plaintiff’s appeal without
consideration of its merits and leave undisturbed the remainder of the trial court’s
order compelling arbitration.
I. FACTUAL AND PROCEDURAL HISTORY
¶2 The record below discloses the following:
¶3 In 2018, Plaintiff was employed as the president of Sugarleaf Labs, LLC and
Forest Remedies, LLC, two entities involved in the processing and sale of hemp
products. The following year, Defendant Neptune Wellness Solutions, Inc.
(“Neptune”) purchased Sugarleaf Labs, LLC, and Forest Remedies, LLC, through a
newly-formed subsidiary, Defendant Sugarleaf Labs, Inc. (“Sugarleaf,” together with
Neptune as “Defendants”).
¶4 Neptune’s purchase of Plaintiff’s employers was memorialized in an Asset
Purchase Agreement (“APA”). The APA required Sugarleaf to enter into new
employment agreements with certain key employees, including Plaintiff. It also
required that any disputes relating to the APA and its “Ancillary Documents”—
defined to include Plaintiff’s employment agreement with Sugarleaf—must be
resolved through arbitration.
COLES V. SUGARLEAF LABS, INC.
2022-NCCOA-707
Opinion of the Court
¶5 On 24 July 2019, after the APA was executed, Plaintiff and Sugarleaf entered
into the contemplated employment agreement; this agreement did not include an
arbitration provision, and Plaintiff was not a signatory to the earlier APA. However,
the employment agreement did expressly state that it was a condition of the APA and
that the employment agreement “include[ed] . . . the agreements and other documents
referenced in this Agreement.”
¶6 Sugarleaf eventually terminated Plaintiff’s employment, leading him to sue
Defendants for: (1) breach of contract; (2) fraud; (3) negligent misrepresentation; (4)
Wage & Hour Act violations; (5) injunctive relief; and (6) unfair and deceptive trade
practices. Defendants filed an answer and subsequently moved “to compel arbitration
and dismiss, or in the alternative, stay pending arbitration.” Defendants premised
their motion to compel arbitration on Plaintiff’s admission in his complaint that he
was a third-party beneficiary under the APA and argued that Plaintiff could only
enforce the employment agreement consistent with the APA’s mandatory arbitration
provision. The motion included several exhibits, namely pertinent portions of the
executed APA, Plaintiff’s employment agreement with Sugarleaf, and emails showing
Plaintiff’s refusal to arbitrate.
COLES V. SUGARLEAF LABS, INC.
2022-NCCOA-707
Opinion of the Court
¶7 Both parties submitted briefs to the trial court in advance of the hearing.
Plaintiff argued that there was no evidence1 he had agreed to arbitrate any claims
because he did not sign the APA, and any attempt to enforce the APA’s arbitration
provision against him would be contrary to North Carolina public policy.
¶8 Defendants’ brief asserted that under either the Federal Arbitration Act
(“FAA”) or the North Carolina Revised Uniform Arbitration Act (“RUAA”), the trial
court was required to stay the proceeding and compel arbitration. They argued that
regardless of which statute applied, North Carolina contract and agency law requires
a third-party beneficiary seeking to enforce a contract with a mandatory arbitration
provision to do so through arbitration. Defendants’ brief also included several
additional documentary exhibits showing Plaintiff’s agency/third-party beneficiary
relationship to the APA and its signatories.
¶9 The trial court heard Defendants’ motion via Webex on 25 January 2021. It
allowed Defendants’ motion from the bench, concluding that the employment
agreement was part of the APA (and vice-versa). The trial court did not, however,
1 Plaintiff challenged the competency and sufficiency of the evidence presented below
concerning the existence of an agreement to arbitrate, and he maintains that challenge on
appeal. Because we dismiss his appeal without addressing its substance, we do not purport
to decide whether the record includes sufficient admissible evidence to compel arbitration or
support the trial court’s findings of fact to that effect. Goetz v. N.C. Dept. of Health & Human
Svcs., 203 N.C. App. 421, 433, 692 S.E.2d 395, 403 (2010) (holding that appeals dismissed as
interlocutory contain “no rulings of law which could become the law of the case”).
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expressly indicate whether it was staying the action, which typically occurs when a
motion to compel arbitration is granted, or dismissing the action, as requested by
Defendants’ motion.
¶ 10 After the parties submitted dueling proposed orders, the trial court entered a
written order compelling arbitration and dismissing Plaintiff’s complaint with
prejudice. Plaintiff now appeals, arguing that the dismissal with prejudice is a final
judgment or, if interlocutory, affects a substantial right. Failing that, he requests
this Court treat his brief as a petition for writ of certiorari.
II. ANALYSIS
¶ 11 Plaintiff asserts on appeal that the trial court’s order is immediately
appealable as a final judgment because it dismissed his complaint with prejudice.
Defendants maintain that the order is interlocutory, does not affect a substantial
right, and is thus not subject to immediate appeal. See, e.g., C. Terry Hunt Indus.,
Inc. v. Klausner Lumber Two, LLC, 255 N.C. App. 8, 12, 803 S.E.2d 679, 682 (2017)
(holding an order compelling arbitration is not immediately appealable for these
reasons).
¶ 12 Both parties are correct to some extent: a dismissal with prejudice is a final
judgment, but an order compelling arbitration—properly entered—is interlocutory
and not subject to immediate appeal as of right. Thus, by compelling arbitration and
dismissing Plaintiff’s complaint with prejudice, the trial court entered something
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akin to Schrodinger’s cat: an appealable unappealable order, an interlocutory final
judgment.
¶ 13 Faced with this quantum-state quandary, and reviewing the relevant statutes
and caselaw, we hold that the trial court erred in dismissing Plaintiff’s complaint
with prejudice. After compelling arbitration, the trial court was required to stay
proceedings based on the mandatory language of the RUAA, which supplies the
applicable procedural law in this case. We therefore vacate that portion of the order
and remand for entry of an order staying the action pending arbitration.
¶ 14 As for Plaintiff’s substantive arguments contending the trial court erred in
compelling arbitration, we dismiss that portion of the appeal because our precedents
establish that such orders are neither final judgments nor interlocutory orders
affecting a substantial right subject to immediate appeal. Lastly, we decline in our
discretion to treat Plaintiff’s brief as a petition for writ of certiorari on this issue.
A. Appellate Jurisdiction Generally
¶ 15 Appellate jurisdiction is a threshold issue that we must consider sua sponte.
Akers v. City of Mount Airy, 175 N.C. App. 777, 778, 625 S.E.2d 145, 146 (2006).
Whether this Court has jurisdiction turns largely on the nature—interlocutory or
final—of the order from which the parties appeal. A party may always appeal from
a final judgment, Embler v. Embler, 143 N.C. App. 162, 164, 545 S.E.2d 259, 261
(2001), which our caselaw defines as “one which disposes of the cause as to all the
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parties, leaving nothing to be judicially determined between them in the trial court[,]”
Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). Stated
differently, “[a] final judgment generally is one which ends the litigation on the
merits.” Duncan v. Duncan, 366 N.C. 544, 545, 742 S.E.2d 799, 801 (2013) (cleaned
up).
¶ 16 Interlocutory orders differ substantially from final judgments both in their
character and their appealability. Such orders are made “during the pendency of an
action, which do[] not dispose of the case, but leave[] it for further action by the trial
court in order to settle and determine the entire controversy.” Veazey, 231 N.C. at
362, 57 S.E.2d at 381. In layperson’s terms, an interlocutory order is entered during
an ongoing court case, while a final judgment ends a lawsuit. And, unlike a final
judgment, an interlocutory order is only appealable if the order “is final as to some
but not all of the claims or parties, and the trial court certifies the case for appeal
pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b),” N.C. Dept. of Transportation v. Page,
119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995), or if it “affects a substantial right
of the appellant that would be lost without immediate review.” Embler, 143 N.C.
App. at 165, 545 S.E.2d at 261 (citations omitted). This important limitation serves
to “prevent fragmentary and premature appeals that unnecessarily delay the
administration of justice and to ensure that the trial divisions fully and finally
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dispose of the case before an appeal can be heard.” Bailey v. Gooding, 301 N.C. 205,
209, 270 S.E.2d 431, 434 (1980).
B. Appealability of Orders Compelling Arbitration and Dismissals with
Prejudice
¶ 17 Our caselaw concerning the appealability of orders compelling arbitration
establishes two key points: (1) “[a]n order compelling the parties to arbitrate is an
interlocutory order,” Bluffs, Inc. v. Wysocki, 68 N.C. App. 284, 285, 314 S.E.2d 291,
293 (1984); and (2) “an order compelling arbitration affects no substantial right that
would warrant immediate appellate review,” C. Terry Hunt Indus., Inc. 255 N.C. App.
at 12, 803 S.E.2d at 682. Thus, as an ordinary matter, a party may not immediately
appeal an order compelling arbitration. Id.
¶ 18 Equally ordinary, however, is the principle that dismissals of lawsuits with
prejudice are immediately appealable as final judgments adjudicating matters on the
merits. See Doe v. Roman Catholic Diocese of Charlotte, 2022-NCCOA-288, ¶ 13
(noting a summary judgment order dismissing a complaint with prejudice was
immediately appealed as a final judgment); Clements v. Southern Ry. Co.¸179 N.C.
225, 102 S.E. 399, 400 (1920) (“[T]he allowance of a motion to dismiss is final, and of
course appealable.”); cf. Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 79-
80, 148 L. Ed. 2d 373 (2000) (holding that an order compelling arbitration under the
FAA and dismissing the complaint with prejudice was a final decision subject to
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immediate appellate review under federal law without deciding whether such a
dismissal was actually proper under the statute).
¶ 19 The order before us places the above precepts in direct tension. Thankfully,
North Carolina’s RUAA, the FAA, and our state’s caselaw provide a ready release: a
North Carolina state trial court may not compel arbitration and dismiss a complaint
with prejudice.
C. The RUAA Does Not Allow for Dismissal
¶ 20 The plain text of the RUAA does not contemplate dismissal upon entry of an
order compelling arbitration. To the contrary, it requires, in mandatory terms, that
“the court on just terms shall stay any judicial proceeding that involves a claim
subject to . . . arbitration.” N.C. Gen. Stat. § 1-569.7(g) (2021) (emphasis added); see
also State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979) (“As used in
statutes, the word ‘shall’ is generally imperative or mandatory.”). Consistent with
this language, we have mandated stays when reversing and remanding orders
denying arbitration under the RUAA. See Fontana v. Southeast Anesthesiology
Consultants, P.A., 221 N.C. App. 582, 592 729 S.E.2d 80, 88 (2012) (“[S]ince we have
held the breach of the employment contract is subject to arbitration, the trial court
must stay the proceedings with regard to that claim.” (emphasis added)); Ellison v.
Alexander, 207 N.C. App. 401, 415, 700 S.E.2d 102, 112 (2010) (“[T]he trial court’s
order denying Defendants’ motion to compel arbitration should be, and hereby is,
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reversed and this matter is remanded to the trial court for the entry of an order
staying all further proceedings and requiring the parties to proceed to arbitration.”).
¶ 21 Other analogous decisions further illustrate that a stay, and not dismissal, is
the proper remedy under the RUAA. In Novacare Orthotics & Prosthetics East, Inc.
v. Speelman, the trial court granted a defendant’s motion to dismiss on arbitrability
grounds. 137 N.C. App. 471, 478, 528 S.E.2d 918, 922 (2000). We vacated that
dismissal and remanded the matter for further proceedings, reasoning that
“defendant’s motion was an application to stay litigation and compel arbitration
pursuant to [the RUAA’s predecessor statute],” notwithstanding the fact that the
motion sought outright dismissal of the plaintiff’s complaint. Id. And, in another
case surveying arbitration caselaw, we described a stay as the “appropriate remedy”
when compelling arbitration. Patel v. Scottsdale Ins. Co., 221 N.C. App. 476, 484, 728
S.E.2d 394, 400 (2012) (“After reviewing the relevant decisions of this Court, we note
that, in the event that a litigant initiates civil litigation on the basis of a claim that
is subject to arbitration, the appropriate remedy is to order the parties to arbitrate
their dispute and stay the litigation pending completion of the arbitration process.”).
Indeed, Defendants’ own brief to the trial court in this matter acknowledged that the
RUAA calls for a stay when compelling arbitration.
¶ 22 Reading the RUAA to require a stay rather than dismissal is also in keeping
with the purposes and structure of the statute. There is “a strong public policy
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favoring the settlement of disputes by arbitration,” Johnston County, N.C. v. R.N.
Rouse & Co., Inc., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992), and our arbitration
statutes serve “to provide and encourage an expedited, efficient, relatively
uncomplicated, alternative means of dispute resolution, with limited judicial
intervention or participation, and without the primary expense of litigation—
attorneys’ fees[,]” Nucor Corp. v. General Bearing Corp., 333 N.C. 148, 154, 423
S.E.2d 747, 750 (1992). Notably, the RUAA itself does not allow for appeals from
orders compelling arbitration; instead, a party contending he was wrongly ordered to
submit his claim to arbitration may only challenge such a ruling by moving to vacate
the award on that ground after said award has been rendered by the arbitrator and,
should the award nonetheless be confirmed, appealing the issue after entry of that
final judgment. N.C. Gen. Stat. §§ 1-569.28 & 1-569.23(a)(5) (listing the orders
appealable under the RUAA—omitting orders compelling arbitration—and instead
allowing a challenge to arbitrability by motion to vacate an award).2
2 Orders denying arbitration are, by contrast, immediately appealable under the
RUAA. N.C. Gen. Stat. § 1-569.28(a)(1); see also Prime South Homes, Inc. v. Byrd, 102 N.C.
App. 255, 258, 401 S.E.2d 822, 825 (1991) (“[A]n order denying arbitration, although
interlocutory, is immediately appealable because it involves a substantial right which might
be lost if appeal is delayed.”). This is for good reason. See Katz v. Cellco P’ship, 794 F.3d 341,
346 (2nd Cir. 2015) (“[I]t would make little sense to receive a conclusive arbitrability ruling
only after a party has already litigated the underlying controversy.”).
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¶ 23 With these intentions in mind, it is evident that allowing orders compelling
arbitration to be entered as final judgments would re-inject the appellate judiciary
into the proceedings at the exact juncture that the court system is supposed to be
stepping aside in favor of arbitration. See Henderson v. Herman, 104 N.C. App. 482,
485, 409 S.E.2d 739, 741 (1991) (noting that, in passing the RUAA’s predecessor
statute, “the legislature intended the courts to send certain predetermined issues to
arbitration and then to step back until the arbitration proceeding is complete”). We
therefore hold, consistent with the plain language and purposes of the RUAA, that a
trial court must stay proceedings when compelling arbitration. It may not convert
what is otherwise intended to be an unappealable interlocutory order into an
appealable final judgment by dismissing a complaint with prejudice.
D. The RUAA’s Procedural Law Applies Even If the FAA Governs the
Substantive Law
¶ 24 Left unanswered by the above analysis is the FAA’s role in this appeal. That
statute contains a substantively identical provision to our RUAA that, in apparently
mandatory terms, requires the trial court to enter a stay of those claims subject to
arbitration. 9 U.S.C. § 3 (2022) (“[T]he court . . . upon being satisfied that the issue
involved in such suit or proceeding is referable to arbitration under such an
agreement, shall on application of one of the parties stay the trial of the action until
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such arbitration has been had . . . .”).3 Ultimately, what Section 3 of the FAA
procedurally requires is immaterial, as this Court has held that “Section 3 of the FAA
only applies in federal district court, not in state court.” Elliott v. KB Home North
Carolina, Inc., 231 N.C. 332, 336, 752 S.E.2d 694, 697 (2013). And because the
procedural provision of the RUAA compelling a mandatory stay furthers the purposes
of the FAA by favoring arbitration, the RUAA’s procedural provisions back-fill the
gap left by Section 3 of the FAA’s inapplicability. See Blow v. Shaughnessy, 68 N.C.
App. 1, 313 S.E.2d 868 (1984) (holding the procedural stay provision of the RUAA’s
predecessor statute, and not Section 3 of the FAA, provide the remedy when
compelling arbitration pursuant to an agreement governed by the FAA).
¶ 25 The trial court’s order dismissing Plaintiff’s complaint does not comport with
the law as set forth above. Under the RUAA, the trial court could only stay Plaintiff’s
complaint, N.C. Gen. Stat. § 1-569.7(g), and that procedural remedy is the only one
available even if the FAA substantively governs the arbitration agreement at issue.
We therefore vacate the portion of the order that dismisses the complaint with
3 The federal circuits are presently split as to whether a trial court may dismiss a
complaint in lieu of stay when compelling arbitration. See Katz, 794 F.3d at 345 (reviewing
the circuit split before holding that a stay, and not dismissal, is the only appropriate
disposition in an order compelling arbitration under the FAA). Different panels of the Fourth
Circuit have rendered conflicting decisions on the matter. See Aggarao v. MOL Ship Mgmt.
Co., Ltd., 675 F.3d 355, 376 n.18 (4th Cir. 2012) (noting that there is “some tension” between
the Fourth Circuit’s various decisions regarding the availability of dismissal under Section 3
of the FAA).
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prejudice and remand the matter for entry of an order that stays the action.
E. No Other Grounds Permit Appellate Review
¶ 26 Having held that the portion of the trial court’s order giving this Court
jurisdiction was in error, we now dismiss the remainder of Plaintiff’s appeal. He has
made no showing distinguishing this case from the decades of precedents holding
orders compelling arbitration do not affect a substantial right, relying instead on
entirely conclusory assertions without citation to caselaw or the record. See K2HN
Construction NC, LLC v. Five D Contractors, Inc., 267 N.C. App. 207, 213-14, 832
S.E.2d 559, 564 (2019) (observing that conclusory arguments are inadequate to raise
an issue on appeal).
¶ 27 We also decline to treat Plaintiff’s brief as a petition for writ of certiorari. Not
only is making such a request absent a proper petition under Rule 21 of the North
Carolina Rules of Appellate Procedure disfavored, Doe v. City of Charlotte, 273 N.C.
App. 10, 23, 848 S.E.2d 1, 11 (2020), but Plaintiff has not demonstrated any basis for
discarding the two substantial public policy considerations at play in this appeal. See
Embler, 143 N.C. App. at 165, 545 S.E.2d at 261-62 (discussing the policy behind the
prohibition against fragmentary interlocutory appeals); Nucor Corp.¸333 N.C. at 154,
423 S.E.2d at 750 (detailing the public policy rationale for favoring arbitration over
traditional litigation).
III. CONCLUSION
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¶ 28 For the foregoing reasons, we hold the trial court erred in dismissing Plaintiff’s
complaint with prejudice, vacate that limited portion of the order, and remand the
matter for entry of an order that stays the litigation. We do not address the
substantive merits of the trial court’s order and pass no judgment as to whether
arbitration was properly ordered in this case; Plaintiff may properly raise that issue
before the trial court in the post-award proceedings authorized by statute and upon
appeal of that interlocutory order from a final judgment confirming the award. See
C. Terry Hunt Indus., Inc., 255 N.C. App. at 12, 803 S.E.2d at 682 (detailing post-
award challenges to arbitration under the RUAA); In re Fifth Third Bank, Nat’l Ass’n,
216 N.C. App. 482, 487, 716 S.E.2d 850, 854 (2011) (discussing the same under the
FAA); N.C. R. App. P. 3 (2022) (allowing a party to designate an appeal from an order
after judgment).
VACATED AND REMANDED IN PART; APPEAL DISMISSED IN PART
Judge DILLON concurs.
Judge MURPHY concurs by separate opinion.
No. COA22-116 – Coles v. Sugarleaf Labs, Inc.
MURPHY, Judge, concurring.
¶ 29 I fully join the Majority in its result and its analysis. However, insofar as ¶¶
22-23 or 27, supra, could be read as even tacitly endorsing our current system or
supporting a policy favoring arbitration, I write separately to reiterate the
observations and critiques made in AVR Davis Raleigh, LLC v. Triangle Constr. Co.,
Inc., 260 N.C. App. 459, 463-66, 818 S.E.2d 184, 188-89 (2018) (Murphy, J.,
concurring). To the extent that I am not bound to do so, I refuse to perpetuate the
myth that it is the policy of the People of this state to favor arbitration over jury trials. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482290/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-710
No. COA22-46
Filed 1 November 2022
Haywood County, No. 20 CVD 725
LOUEVE, LLC, Plaintiff,
v.
TERRY RAMEY, Defendant.
Appeal by defendant from judgment entered 22 April 2021 and order entered
27 April 2021 by Judge Donna Forga and order entered 1 July 2021 by Judge Thomas
G. Foster, Jr., in Haywood County District Court. Heard in the Court of Appeals 23
August 2022.
Matney & Associates, P.A., by David E. Matney, III, for plaintiff-appellee.
Ferikes & Bleynat, PLLC, by Edward L. Bleynat, Jr., and Matthew J.
Giangrosso, for defendant-appellant.
DIETZ, Judge.
¶1 Defendant Terry Ramey appeals from the trial court’s orders granting a motion
for summary judgment against him, awarding attorneys’ fees against him, and
denying his motion for relief from those orders under Rule 60(b).
¶2 As explained below, although Ramey addressed the merits of all three orders
in his appellant’s brief, Ramey’s notice of appeal only referenced the denial of the
Rule 60 motion.
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¶3 Ramey also petitioned for a writ of certiorari, asking this Court to address the
other orders for which he did not file a notice of appeal. Because this civil case does
not involve the sort of extraordinary circumstances justifying a writ of certiorari, we
deny the petition and address only Ramey’s appeal from the Rule 60(b) order. Under
the narrow standard of review applicable to that issue, we hold that the trial court
was within its sound discretion to deny relief under Rule 60(b) and therefore affirm
the trial court’s order. We decline to address Ramey’s argument concerning the trial
court’s subject matter jurisdiction because that issue involves fact questions that
must be presented to the trial court through an appropriate motion under Rule 60.
Facts and Procedural History
¶4 In 2016, Defendant Terry Ramey entered into an oral month-to-month lease
with Lou Roman to rent property owned by Plaintiff LouEve, LLC. After Roman’s
death in December 2019, Ramey ceased making rent payments. In February 2020,
Ramey received notice of lease termination from LouEve, demanding that Ramey
vacate the property on or before 29 February 2020.
¶5 In May 2020, LouEve filed this summary ejectment action. Following a hearing
in small claims court, a magistrate dismissed LouEve’s complaint and LouEve
appealed to Haywood County district court.
¶6 In September 2020, the trial court held a hearing and entered judgment in
favor of LouEve, ordering Ramey to pay $9,000 in rent arrears and vacate the
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property. Ramey was not present at the hearing and did not put on a defense.
¶7 Ramey later filed a motion for a new trial and relief from the judgment
asserting that he “did not receive the notice of hearing, was not aware of the time or
date of the hearing and was not present in court.” The trial court granted the motion,
vacated the judgment, and ordered a new trial during the next available session of
court.
¶8 LouEve again filed a motion for summary judgment in January 2021. LouEve
initially set a hearing on the motion for 22 February 2021 and sent notice of the
hearing to Ramey, but the trial court continued the hearing to 29 March 2021 at
Ramey’s request. The court later continued the hearing again, without setting a new
hearing date. Then, on 5 April 2021, the trial court issued a calendar setting the
hearing on LouEve’s motion for summary judgment for 13 April 2021.
¶9 During this time period, as courts addressed the impact of the COVID
pandemic, the Haywood County district court had a standing order or memorandum
stating that there would be no in-court calendar calls to set hearing dates for trials
and other matters. Instead, for each term of court, the trial court published a calendar
listing the cases that would be heard during that term with the applicable dates and
times of hearings. The trial court notified parties in pending cases of these calendars
by sending an email to counsel.
¶ 10 As Ramey’s counsel later explained to the trial court, counsel was on secured
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leave on 5 April 2021, the day the trial court sent the email with the calendar setting
this matter for a hearing. As counsel further explained, the staff person at counsel’s
office responsible for reviewing the calendars overlooked the addition of this case to
the calendar:
During this vacation on April 5th, the first day that I was
on secured leave, Haywood County district court published
this district court calendar with -- well, first they published
the calendar where these matters did not appear. We did
get that calendar in my office, and our administrative staff
person looked at it and said there’s nothing on here for any
of the attorneys in our firm, okay.
Later that day, at 2:54 p.m., they published an amended
calendar, and our administrative staff looked at it again
and said, oh, this is the one we got earlier, glanced at it
quickly, said there’s nothing on here for any attorneys.
Unfortunately, our staff person missed the fact that these
two matters were added on to that amended calendar that,
again, was published on April 5th around 3:00 p.m. the day
the trial court issued the calendar for 13 April 2021.
¶ 11 On 13 April 2021, the trial court held the scheduled hearing. Ramey and his
counsel again were not present and did not put on a defense.
¶ 12 On 22 April 2021, the trial court entered an order granting LouEve’s motion
for summary judgment. The trial court ordered Ramey to vacate the property within
ten days and to pay LouEve “$1000 for each month from and including the month of
January 2020, through April 2021, and continuing on through and including each
month until Defendant has removed all his property.” On 27 April 2021, the trial
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court entered an order awarding LouEve attorneys’ fees.
¶ 13 Ramey did not appeal the trial court’s judgment or the award of attorneys’ fees.
Instead, on 3 May 2021, Ramey filed a Rule 60(b) motion for relief from the trial
court’s orders on the ground that he did not receive proper notice of the summary
judgment hearing. Later, on 29 June 2021, Ramey filed a motion to dismiss the
proceeding for lack of subject matter jurisdiction, arguing that LouEve was not a
party to the oral lease agreement. The motion further asserted that the case was moot
because Ramey already had vacated the property. There is no indication in the record
that the trial court ruled on this motion.
¶ 14 After a hearing, the trial court entered an order denying the Rule 60(b) motion.
Ramey timely appealed this order, stating in the notice of appeal that the appeal was
“from the Order Denying Defendant’s Motion for Relief From Judgment and Order
(Rule 60) entered on 1 July 2021.”
Analysis
I. Appeal from the summary judgment and attorneys’ fees orders
¶ 15 We begin by addressing Ramey’s attempt to appeal from the trial court’s
summary judgment order and corresponding attorneys’ fees order. Ramey
acknowledges that he did not file a notice of appeal from these two orders.
Nevertheless, he fully briefed the issues in his appellant’s brief and filed a petition
for a writ of certiorari together with his appellant’s brief, asking this Court to review
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the merits of those two orders.
¶ 16 Ramey correctly acknowledges that we lack appellate jurisdiction to review
these two orders absent use of an extraordinary writ. Raymond v. Raymond, 257 N.C.
App. 700, 703, 811 S.E.2d 168, 170 (2018). The failure to timely file a notice of appeal
is a jurisdictional default which “precludes the appellate court from acting in any
manner other than to dismiss the appeal.” Dogwood Dev. & Mgmt. Co. v. White Oak
Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). Because Ramey filed a
notice of appeal only with respect to the Rule 60(b) order, we can review the trial
court’s other orders only if we exercise our discretion to issue a writ of certiorari. N.C.
Gen. Stat. § 7A-32.
¶ 17 But, importantly, a “writ of certiorari is not intended as a substitute for a notice
of appeal. If this Court routinely allowed a writ of certiorari in every case in which
the appellant failed to properly appeal, it would render meaningless the rules
governing the time and manner of noticing appeals.” State v. Bishop, 255 N.C. App.
767, 769, 805 S.E.2d 367, 369 (2017). Although we routinely issue writs of certiorari
to review untimely appeals in criminal matters (because of Sixth Amendment
concerns), it “is less common for this Court to allow a petition for a writ of certiorari
where a litigant failed to timely appeal a civil judgment.” State v. Friend, 257 N.C.
App. 516, 519, 809 S.E.2d 902, 905 (2018). We ordinarily allow such petitions only
where “there are wide-reaching issues of justice and liberty at stake” and “the issues
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on appeal are meritorious.” Doe v. City of Charlotte, 273 N.C. App. 10, 23, 848 S.E.2d
1, 11 (2020).
¶ 18 As explained in more detail below, this case does not involve any vital issues
of justice or liberty, and it is not apparent from the record that Ramey has any
meritorious defenses. Ramey’s entire argument on appeal turns on the alleged failure
to provide adequate notice of the hearing. Absent some evidence that, with proper
notice, the outcome of this proceeding would have been different, we are not
persuaded that the notice issue on its own justifies the extraordinary use of certiorari.
Moreover, as explained below, Ramey in fact received notice of the hearing more than
a week in advance. His argument is not that he had no notice, but that the notice he
received is inconsistent with the trial court’s rules of practice.
¶ 19 In short, Ramey has not shown sufficient extraordinary circumstances to
justify issuance of a writ of certiorari. He is no different from countless other civil
litigants whose appeals have been dismissed for failure to timely comply with the
jurisdictional requirements of Rule 3 of the Rules of Appellate Procedure. Bishop, 255
N.C. App. at 769, 805 S.E.2d at 369. Thus, in our discretion, and in the interests of
fairness and uniform application of our extraordinary writs, we deny Ramey’s petition
for a writ of certiorari and decline to hear his appeal from the summary judgment
order and attorneys’ fees order. Dogwood Dev. & Mgmt. Co., 362 N.C. at 197, 657
S.E.2d at 365.
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II. Denial of Rule 60 motion
¶ 20 Ramey next argues that the trial court erred in denying his Rule 60 motion for
relief from the trial court’s judgment. Ramey timely appealed this order and we
therefore review it on the merits.
¶ 21 A motion for relief under Rule 60(b) “is addressed to the sound discretion of the
trial court and appellate review is limited to determining whether the court abused
its discretion.” Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975). “Abuse
of discretion is shown when the court’s decision is manifestly unsupported by reason
or is so arbitrary that it could not have been the result of a reasoned decision.” Brown
v. Foremost Affiliated Ins. Servs., Inc., 158 N.C. App. 727, 732, 582 S.E.2d 335, 339
(2003).
¶ 22 With respect to the summary judgment order, Ramey contends that he did not
receive “requisite notice” of the hearing and that “on a motion as consequential as one
for summary judgment” the lack of notice compelled the trial court to grant relief
under Rule 60(b).
¶ 23 There are several flaws in this argument. First, the record indicates that
Ramey received actual notice of the summary judgment hearing. Ramey
acknowledged at the Rule 60(b) hearing that the court sent an email to his counsel
notifying him of the hearing, but a staff person who “glanced at it quickly” overlooked
that this case was set for a hearing. Moreover, Ramey acknowledges that he received
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2022-NCCOA-710
Opinion of the Court
the motion for summary judgment and notice of hearing from LouEve many months
before the hearing date.
¶ 24 Ramey’s argument focuses on the fact that the initial hearing date was
continued multiple times and, when the trial court ultimately set a final hearing date,
Ramey only received eight days’ notice. Ramey contends that Rule 2(b) of the General
Rules of Practice for the Superior and District Courts, and the trial court’s own local
rules, requires civil calendars to be published and distributed to parties several weeks
in advance of the court date.
¶ 25 Even if we assumed that noncompliance with these general practices is an
error—and this is questionable given the interruption of these general calendaring
rules during this time period as a result of the COVID pandemic—the record
demonstrates that the trial court considered this issue and ultimately concluded that
Ramey’s notice argument failed to allege the sort of extraordinary circumstances and
manifest injustice compelling relief under Rule 60(b)(6). See Gibby v. Lindsey, 149
N.C. App. 470, 474, 560 S.E.2d 589, 592 (2002). In short, this case is a classic example
of one in which, in the exercise of judicial discretion, reasonable jurists could have
differing views about the appropriateness of relief under Rule 60(b). The transcript
of the hearing, and the trial court’s order, confirm that the court’s decision to deny
relief was not manifestly arbitrary and was a reasoned, discretionary decision.
Brown, 158 N.C. App. at 732, 582 S.E.2d at 339. Accordingly, under the narrow
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Opinion of the Court
standard of review that this Court must apply, we cannot find error in the trial court’s
ruling.
¶ 26 With respect to the attorneys’ fees award, Ramey makes a different argument.
Recognizing the exceedingly high bar for review, Ramey does not assert that the trial
court’s discretionary decision was manifestly arbitrary or detached from reason.
Instead, Ramey contends that the trial court “ruled under a mistaken impression” of
law. Specifically, Ramey asserts that the trial court did not apply “the proper legal
standards on motion for relief from judgment” because the trial judge hearing the
motion deferred too much to the ruling of a previous trial judge, rather than properly
exercising independent discretion.
¶ 27 The record does not support this argument. To be sure, the court initially
indicated that it would sign an order vacating the attorneys’ fees award and then
changed positions. But the court did so because LouEve argued that Rule 60 was not
the proper vehicle to correct that alleged legal error and, instead, Ramey should have
appealed the underlying order to this Court. The trial court agreed and therefore
denied the Rule 60 motion:
THE COURT: Well, if you’re calling it a Rule 60B – it’s not
even a notice issue, though, really. It’s more than that. It’s
not a notice issue.
[RAMEY’S COUNSEL]: Not on the order awarding
attorneys’ fees. It should be set aside because it’s contrary
to the law.
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2022-NCCOA-710
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THE COURT: I’ll sign that.
[LOUEVE’S COUNSEL]: But, your Honor, that’s what
appeals are for. That’s not what Rule 60s are for. Rule 60
would show that there’s some extraordinary condition.
THE COURT: I don’t disagree with that. The motions
before the court will be denied, and you can do what you’re
going to have to do. That’s all I can do.
¶ 28 This discussion in the hearing transcript demonstrates that the trial court
understood the applicable law. This Court has long held that Rule 60(b)(6) motions
“are not to be used as a substitute for appeal, and an erroneous judgment cannot be
attacked under this clause.” Concrete Supply Co. v. Ramseur Baptist Church, 95 N.C.
App. 658, 660, 383 S.E.2d 222, 223 (1989). Thus, although the trial court indicated
that the attorneys’ fees order may be erroneous, the court properly exercised its
discretion to deny relief from the judgment because the proper mechanism to
challenge a legal error by the trial court is to commence an appeal.
¶ 29 We conclude by acknowledging that our application of the narrow standard of
review for a Rule 60(b) motion, and our denial of the accompanying petition for a writ
of certiorari, mean this Court cannot reach the merits of the summary judgment order
at the heart of this case. This is an unfortunate outcome because this Court functions
as an error-correcting body whose core role is to review trial court decisions for
reversible legal errors.
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¶ 30 But the “public, and other jurisdictions that may be called on to recognize our
State’s court judgments, expect our courts to apply procedural rules uniformly to all
litigants who appear before them. Thus, although we recognize that justice is best
served when this Court reaches the merits of the underlying issues raised on appeal,
we are obligated to enforce” procedural and jurisdictional limits on our appellate
review. Martin v. Pope, 257 N.C. App. 641, 645–46, 811 S.E.2d 191, 195 (2018).
Because Ramey did not appeal the trial court’s summary judgment order, our review
in this case necessarily is constrained to the trial court’s discretionary decision to
deny relief from that judgment.
III. Motion to dismiss for lack of subject matter jurisdiction
¶ 31 Finally, Ramey argues that the trial court should have granted his motion to
dismiss this action for lack of subject matter jurisdiction. Ramey argues that LouEve
failed “to prove a landlord-tenant relationship existed” and thus the trial court had
no jurisdiction in this summary ejectment proceeding.
¶ 32 As noted above, Ramey never secured a ruling on this motion in the trial court.
In most circumstances, this would not be fatal to appellate review because the
“question of subject matter jurisdiction may be raised at any time.” Lemmerman v.
A.T. Williams Oil Co., 318 N.C. 577, 580, 350 S.E.2d 83, 85 (1986). But this particular
jurisdictional issue is different. This Court has held that proof of a landlord-tenant
relationship between the parties is a requirement for the trial court to exercise
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jurisdiction over a summary ejectment action. Adams v. Woods, 169 N.C. App. 242,
244, 609 S.E.2d 429, 431 (2005). As a result, this relationship must be proven in order
for the plaintiff’s remedy to be granted. Id. If “the plaintiff fails to prove the existence
of a landlord-tenant relationship, the district court lacks jurisdiction to enter
judgment in the proceeding.” Id.
¶ 33 The cases on which Ramey relies involved undisputed evidence that there was
no landlord-tenant relationship. Id.; Coll. Heights Credit Union v. Boyd, 104 N.C.
App. 494, 497, 409 S.E.2d 742, 743 (1991). Here, by contrast, the existence of a
landlord-tenant relationship is a disputed question of fact. LouEve contends, based
on sworn affidavits and other evidence, that Ramey was a tenant of the property; that
LouEve, LLC owned the property; that Lou Roman was the manager of LouEve, LLC;
and that Ramey entered into a lease agreement with Roman to lease the property
from LouEve. Ramey contends that he entered into the lease agreement with Roman
personally, not in Roman’s role as owner and manager of LouEve.
¶ 34 The trial court could not have resolved this disputed issue of fact at the
summary judgment hearing because Ramey did not appear—meaning the court
would not have been aware the matter was disputed. But this Court also cannot
resolve the question on appeal. It is a long-standing principle of appellate law that
appellate courts “cannot find facts.” Duke v. Xylem, Inc., 2022-NCCOA-449, ¶ 24.
Thus, this particular jurisdictional issue must be addressed to the trial court through
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an appropriate motion under Rule 60(b)(4). Accordingly, we decline to address the
subject matter jurisdiction issue because disputed factual questions prevent this
Court from engaging in meaningful appellate review.
Conclusion
¶ 35 We dismiss Ramey’s appeal from the summary judgment order and attorneys’
fees order and affirm the trial court’s Rule 60(b) order.
DISMISSED IN PART; AFFIRMED IN PART.
Chief Judge STROUD and Judge ZACHARY concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482288/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-712
No. COA22-41
Filed 1 November 2022
Graham County, Nos. 94 CRS 431, 14 CRS 50285, 15 CRS 253
STATE OF NORTH CAROLINA
v.
BILLY EDWARDS, Defendant.
Appeal by Defendant from order entered 11 September 2020 by Judge William
H. Coward in Graham County Superior Court. Heard in the Court of Appeals 24
August 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Zachary K.
Dunn, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for Defendant.
GRIFFIN, Judge.
¶1 Defendant Billy Edwards appeals from an order denying his motion for
appropriate relief. Defendant asserts the trial court improperly denied his MAR
because the State’s felony larceny indictment failed to allege a legal entity capable of
owning property. We affirm the trial court’s order.
I. Factual and Procedural History
¶2 On 13 June 1994, Defendant was indicted for breaking and entering, felony
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2022-NCCOA-712
Opinion of the Court
larceny, and felony possession of stolen goods. The indictment alleged Defendant
broke into a building occupied by Graham County Schools and stole a television, VCR,
and microwave. Graham County Schools was named as the owner of the property.
On 14 December 1995, Defendant pled guilty to felony larceny and was sentenced to
three years in prison.
¶3 Almost twenty years later, Defendant was indicted for possession of stolen
goods or property and safecracking. Defendant was subsequently indicted as a
habitual felon. The habitual felon indictment included the 14 December 1995 felony
larceny conviction as one of the qualifying convictions. A jury found Defendant guilty
of possession of stolen goods or property and felonious safecracking. Defendant pled
guilty to obtaining a habitual felon status. Defendant was sentenced to a minimum
of eighty-four months in prison.
¶4 Defendant appealed the ruling, and this Court reversed the conviction for
felonious safecracking, vacated the consolidated judgment, and remanded the case
for resentencing. See State v. Edwards, 252 N.C. App. 265, 2017 WL 897711 (March
7, 2017) (unpublished). The trial court entered a judgment and found Defendant
guilty of possession of stolen goods and for attaining habitual felon status.
¶5 On 11 May 2020, Defendant filed an MAR asserting that the trial court lacked
jurisdiction to accept Defendant’s 14 December 1995 felony larceny plea. Defendant
claimed the trial court lacked jurisdiction because the indictment “did not identify
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2022-NCCOA-712
Opinion of the Court
the victim as a business or other entity capable of owning property.” Additionally,
since the felony larceny conviction was one of three convictions included on
Defendant’s habitual felon indictment, Defendant argued the habitual felon
conviction should be vacated and Defendant should be resentenced pursuant only to
the charge of possession of stolen goods.
¶6 On 11 September 2020, the trial court entered an order denying Defendant’s
MAR. The trial court determined that the victim named in the indictment—“Graham
County Schools”—clearly “implie[d] the statutorily-required ownership by the
Graham County Board of Education.”
¶7 On 21 May 2021, Defendant filed a petition for writ of certiorari, which was
granted.
II. Analysis
¶8 Generally, “appellate courts review trial court orders deciding motions for
appropriate relief to determine whether the findings of fact are supported by
evidence, whether the findings of fact support the conclusions of law, and whether
the conclusions of law support the order entered by the trial court.” State v. Hyman,
371 N.C. 363, 382, 817 S.E.2d 157, 169 (2018) (citations and internal quotation marks
omitted). However, when a defendant’s MAR only raises a legal issue, this Court
reviews the challenge de novo. State v. Marino, 265 N.C. App. 546, 549, 828 S.E.2d
689, 692 (2019).
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2022-NCCOA-712
Opinion of the Court
¶9 Here, Defendant attacks the sufficiency of an indictment, which is a question
of law. See State v. Oldroyd, 380 N.C. 613, 2022-NCSC-27, ¶ 8 (citation omitted)
(“When a criminal defendant challenges the sufficiency of an indictment lodged
against him, that challenge presents this Court with a question of law which we
review de novo.”). We therefore employ a de novo standard in our review.
¶ 10 “It is well settled ‘that a valid bill of indictment is essential to the jurisdiction
of the trial court to try an accused for a felony.’” State v. Campbell, 368 N.C. 83, 83,
772 S.E.2d 440, 443 (2015) (quoting State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d
719, 729 (1981) (citations omitted)). Indictments function to “identify clearly the
crime being charged, thereby putting the accused on reasonable notice to defend
against it and prepare for trial, and to protect the accused from being jeopardized by
the State more than once for the same crime.” Sturdivant, 304 N.C. at 311, 283
S.E.2d at 731 (citation omitted). While indictments “must satisfy both the statutory
strictures of N.C.G.S. § 15A-924 and the constitutional purposes which indictments
are designed to satisfy[,]” these strictures are not intended “to bind the hands of the
State with technical rules of pleading[.]” Oldroyd, 2022-NCSC-27, ¶ 8 (citation
omitted); Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731.
¶ 11 Defendant specifically asserts his larceny indictment is fatally defective
because it failed to allege ownership by a legal entity capable of owning property.
Defendant argues the use of “Graham County Schools” in his indictment renders it
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2022-NCCOA-712
Opinion of the Court
fatally defective because “the Graham County Board of Education is the exclusive
entity capable of owning school property in Graham County.” We disagree.
¶ 12 A valid larceny indictment “allege[s] the ownership of the [stolen] property
either in a natural person or a legal entity capable of owning (or holding) property.”
Campbell, 368 N.C. 83, 772 S.E.2d at 443 (citations and internal quotation marks
omitted). An indictment alleging ownership in an entity must indicate, if the owner
is not a natural person, that the entity “‘is a corporation or otherwise a legal entity
capable of owning property,’ unless the entity’s name itself ‘imports an association or
a corporation capable of owning property.’” Id. (quoting State v. Thornton, 251 N.C.
658, 661, 111 S.E.2d 901, 903 (1960).
¶ 13 In applying these rules, our Supreme Court has held that merely listing a
company’s name that gives no indication that it is a corporation or failing to state
that it is an entity capable of owning property is insufficient for a valid larceny
indictment. See Thornton, 251 N.C. at 662, 111 S.E.2d at 904 (“In the indictment sub
judice, there is no allegation that ‘The Chuck Wagon’ is a corporation, and the words
‘The Chuck Wagon’ do not import a corporation.”). On the other hand, larceny
indictments have been upheld where the name of the entity relates back or “imports”
an entity that can own property. See Campbell, 368 N.C. at 83, 772 S.E.2d at 444
(holding that alleging “a church or other place of religious worship” as the property
owner is sufficient for a valid larceny indictment); State v. Ellis, 368 N.C. 342, 346,
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2022-NCCOA-712
Opinion of the Court
776 S.E.2d 675, 678 (2015) (affirming this Court’s recognition of “North Carolina
State University” as an entity capable of owning property).
¶ 14 In Campbell and Ellis, the Court pointed out that the entity at issue in each
case was authorized by our General Statues to own property. See N.C. Gen. Stat. §§
61-2 – 61-5 (2021) (authorizing religious societies’ ownership of property); Id. § 116-3
(authorizing “the University of North Carolina” as an entity capable of owning
property). Significant to our analysis in this case is the Court’s use of section 116-3
to hold that North Carolina State University is an entity capable of owning property
when the statute only states “[t]he Board of Governors of the University of North
Carolina . . . [and] the University of North Carolina[,]” while North Carolina State
University is a constituent institution of the University of North Carolina. Compare
id. (“The Board of Governors of the University of North Carolina shall be known and
distinguished by the name of ‘the University of North Carolina’ and shall continue as
a body politic and corporate . . . .”), with id. § 116-4 (“The University of North Carolina
shall be composed of the following institutions of higher education . . . North Carolina
State University at Raleigh . . . .”). Ellis is instructive in the case before us because
although the corporate body capable of owning property is the University of North
Carolina, North Carolina State University falls under the corporate body as a
constituent institution, yet was sufficient for a valid larceny indictment as an entity
capable of owning property. Ellis, 368 N.C. at 346, 776 S.E.2d at 678; see also Bd. of
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2022-NCCOA-712
Opinion of the Court
Governors of Univ. of N.C. v. U.S. Dep’t of Lab., 917 F.2d 812, 816 (4th Cir. 1990)
(stating that N.C. Gen. Stat. § 116-3 “constitutes the Board of Governors of UNC as
‘a body politic and corporate.’ It does not grant this status to any of the sixteen
campuses that the Board administers.” (citations omitted)).
¶ 15 Here, our General Statutes state that “[t]he board of education of each county
in the State shall be a body corporate by the name and style of ‘The .......... County
Board of Education,’ . . . [and] shall hold all school property and be capable of
purchasing and holding real and personal property[.]” N.C. Gen. Stat. § 115C-40
(2021). While the Graham County Board of Education may be the corporate body
capable of owning property by statute, we find this case similar to Ellis. The Court
there found that “North Carolina State University” was sufficient as a legal entity
capable of owning property. Here, we conclude that “Graham County Schools,” and
the addition of the specific location as “Robbinsville Elementary School,” while not
the corporate body “Graham County Board of Education,” falls under the umbrella of
the “Graham County Board of Education,” like that of a constituent institution to the
University of North Carolina.
¶ 16 We hold the use of “Graham County Schools,” with the addition of the specific
location as “Robbinsville Elementary School,” in this case was sufficient for a valid
larceny indictment because it “imports” the Graham County Board of Education.
Thornton, 251 N.C. at 661, 111 S.E.2d at 903.
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2022-NCCOA-712
Opinion of the Court
III. Conclusion
¶ 17 For the foregoing reasons, we affirm the trial court’s order denying Defendant’s
MAR.
AFFIRMED.
Judges TYSON and ARROWOOD concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482285/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-715
No. COA22-348
Filed 1 November 2022
Cabarrus County, No. 20CRS50156-57
STATE OF NORTH CAROLINA
v.
NIKITA V. MACKEY
Appeal by defendant from judgment entered 4 June 2021 by Judge
William Anderson Long, Jr., in Cabarrus County Superior Court. Heard in the Court
of Appeals 19 October 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General
Kayla D. Britt, for the State.
Shawn R. Evans for the defendant-appellant.
TYSON, Judge.
¶1 Nikita V. Mackey (“Defendant”) appeals from the judgment entered upon the
jury’s verdict from his two felony convictions of uttering a forged instrument and
obtaining property by false pretenses. Our review discloses no error.
I. Background
¶2 Defendant married Yvette Stewart in September 2016. The couple separated
two years later and divorced in 2021. Defendant and Stewart always maintained
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2022-NCCOA-715
Opinion of the Court
separate bank accounts, even while married. After the separation, Stewart moved to
Tennessee and took her vehicle with her.
¶3 Stewart’s vehicle needed repairs in March 2019. After Stewart had paid for
the repairs, she realized her vehicle was still under a third-party maintenance
warranty. She sought a reimbursement from the company issuing the warranty. The
company agreed to reimburse Stewart in the amount of $1,200.92.
¶4 Stewart waited for the check, but it never arrived. She contacted the warranty
company to inquire about her reimbursement. During that conversation, the
company informed Stewart the check had been mailed to Defendant’s address and it
had been deposited into a bank. Stewart asked for more information, and the
company sent her a copy of the cancelled check. Upon examination, she noticed the
check had been signed and recognized Defendant’s handwriting on the endorsement
line.
¶5 Stewart sought a replacement check because she believed Defendant had
forged her signature. The company informed Stewart they could not issue another
check unless she notified law enforcement. Stewart reported the incident and
provided handwriting samples to the Charlotte-Mecklenburg Police Department.
¶6 The officer in charge of investigating Stewart’s claim subpoenaed the bank for
all records related to the check. Bank records revealed Defendant had deposited the
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2022-NCCOA-715
Opinion of the Court
check into his personal bank account on 18 June 2019. Video footage from the bank
also showed Defendant visiting the bank on the same day the check was deposited.
¶7 Defendant was charged with uttering a forged instrument, obtaining property
by false pretenses, and forgery of an instrument on 2 March 2020. At trial, the State
entered the bank records and video footage into evidence. On 4 June 2021, a jury
found Defendant guilty of obtaining property by false pretenses and uttering a forged
instrument. The jury was unable to reach a unanimous verdict regarding forgery of
an instrument. Defendant moved for a mistrial. The court granted Defendant’s
motion on the forgery charge.
¶8 The trial court consolidated the remaining two charges into one judgment.
Defendant was sentenced as a level I offender and received an active sentence of 5 to
15 months, followed by 24 months of supervised probation. Defendant filed a timely
notice of appeal on 9 June 2021.
II. Issues
¶9 Defendant argues: (1) a fatal variance exists between the indictment and the
evidence entered at trial; and, (2) he is entitled to a new trial because eighteen bench
conversations were omitted from the transcript despite the trial judge ordering a
complete recordation.
III. Fatal Variance
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2022-NCCOA-715
Opinion of the Court
¶ 10 Trial courts do not possess jurisdiction over a criminal defendant without a
valid bill of indictment. State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)
(citation omitted). An indictment “is fatally defective if it fails to state some essential
and necessary element of the offense of which the defendant is found guilty.” State v.
Ellis, 368 N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (citation and quotation marks
omitted).
¶ 11 Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure delineates
the procedures for preserving errors on appeal:
In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C. R. App. P. 10(a)(1) (emphasis supplied).
¶ 12 A defendant must bring a motion to quash a fatally defective indictment to
preserve the issue on appeal. See State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644,
646 (1971) (explaining a motion to quash an indictment “on the ground of variance
between the allegation in the indictment . . . and the evidence [ ] disclosed” at trial is
appropriate “when the purpose is to challenge its sufficiency to charge a criminal
offense,” but a “motion to dismiss is in order when the prosecution fails to offer
sufficient evidence the defendant committed the offense charged”); State v. Pickens,
STATE V. MACKEY
2022-NCCOA-715
Opinion of the Court
346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (citing State v. Francis, 341 N.C. 156,
160, 459 S.E.2d 269, 271 (1995)) (“Regarding the alleged variance between the
indictment and the evidence at trial, defendant based his motions at trial solely on
the ground of insufficient evidence and thus has failed to preserve this argument for
appellate review.”).
¶ 13 Defendant failed to file a motion to quash his indictment for any variance
between the allegations in the indictment and the evidence disclosed at trial.
Defendant did not mention the words “fatal,” “defective,” or “variance” in his motion
to dismiss at the close of the state’s evidence. While the Defendant moved to dismiss
for insufficiency of the evidence, a motion to dismiss for insufficiency does not preserve
Defendant’s fatal variance argument for appeal. Waddell, 279 N.C. at 445, 183 S.E.2d
at 646; Pickens, 346 N.C. at 645, 488 S.E.2d at 172 (citation omitted).
IV. Recordation
¶ 14 Criminal defendants have a statutory right to recordation of their trial in
North Carolina. N.C. Gen. Stat. § 15A-1241 provides:
(a) The trial judge must require that the reporter make a
true, complete, and accurate record of all statements from
the bench and all other proceedings except:
(1) Selection of the jury in noncapital cases;
(2) Opening statements and final arguments of
counsel to the jury; and
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2022-NCCOA-715
Opinion of the Court
(3) Arguments of counsel on questions of law.
...
(c) When a party makes an objection to unrecorded
statements or other conduct in the presence of the jury,
upon motion of either party the judge must reconstruct for
the record, as accurately as possible, the matter to which
objection was made.
N.C. Gen. Stat. § 15A-1241 (2021) (emphasis supplied).
¶ 15 Our Supreme Court in State v. Cummings contrasts the disparate treatment
of statements made in open court before a jury and those made in private bench
conferences under N.C. Gen. Stat. § 15A-1241. 332 N.C. 487, 498, 422 S.E.2d 692,
698 (1992). The Court in Cummings concluded N.C. Gen. Stat. § 15A-1241 “appears
to be designed to ensure that any statement by the trial judge, in open court and
within earshot of jurors or others present in the courtroom, be available for appellate
review.” Id. Statements made in private bench conferences, however, are only
required to be transcribed if “either party requests that the subject matter of a private
bench conference be put on the record for possible appellate review.” Id. If a party
requests a bench conference to be transcribed per N.C. Gen. Stat. § 15A-1241, “the
trial judge should comply by reconstructing, as accurately as possible, the matter
discussed.” Id. (citing N.C. Gen. Stat. § 15A-1241(c)).
¶ 16 “This Court has repeatedly held that [N.C. Gen. Stat. §] 15A-1241 does not
require recordation of ‘private bench conferences between trial judges and attorneys.’”
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2022-NCCOA-715
Opinion of the Court
State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000) (quoting Cummings,
332 N.C. at 497, 422 S.E.2d at 697); accord State v. Speller, 345 N.C. 600, 605, 481
S.E.2d 284, 287 (1997). In Blakeney, the defendant argued the “unrecorded bench
conferences violated his statutory right to recordation under [N.C. Gen. Stat.] § 15A-
1241 and deprived him of his constitutional right to due process by rendering
appellate review impossible.” Id. at 306, 531 S.E.2d at 814. Our Supreme Court held
the trial court did not err by failing to record the bench conferences because the
“defendant never requested that the subject matter of a bench conference be
reconstructed for the record.” Id. at 307, 531 S.E.2d at 814.
¶ 17 Defendant asserts the trial court ordered a complete recordation. This
assertion is unfounded. Defendant only requested a complete recordation of the voir
dire of an expert witness. Here, the trial court did not err for the same reasons the
trial court did not err in Blakeney. Defendant “never requested that the subject
matter of a bench conference be reconstructed for the record.” Blakeney, 352 N.C. at
307, 531 S.E.2d at 814. Defendant’s argument is overruled.
V. Conclusion
¶ 18 Defendant failed to preserve his fatal variance of indictment argument for
appeal through a motion to quash. Defendant has also failed to show the trial court
committed plain error by failing, in the absence of a request, to make a complete
recordation of the eighteen bench conference conversations. Defendant never
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2022-NCCOA-715
Opinion of the Court
requested the trial court reconstruct the bench conversations for the record, despite
requesting a complete recordation of the voir dire at another point during the trial.
¶ 19 Defendant received a fair trial, free from prejudicial errors he preserved and
argued on appeal. We find no error in the jury’s verdicts or in the judgment entered
thereon. It is so ordered.
NO ERROR.
Judges ZACHARY and HAMPSON concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482287/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-713
No. COA22-70
Filed 1 November 2022
Pender County, Nos. 19CRS051667, 19CRS051668
STATE OF NORTH CAROLINA
v.
JONATHAN OMAR KELLY
Appeal by Defendant from judgment entered 28 January 2021 by Judge R.
Kent Harrell in Pender County Superior Court. Heard in the Court of Appeals 24
August 2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Daniel K.
Covas, for the State.
William D. Spence for Defendant-Appellant.
COLLINS, Judge.
¶1 Defendant Jonathan Omar Kelly appeals from judgment entered upon a jury’s
verdict of guilty of two counts of robbery with a dangerous weapon. Defendant argues
that the trial court erred by (1) allowing the investigating detective to identify
Defendant as the perpetrator, (2) denying Defendant’s motion to dismiss the charges
against him, and (3) entering judgment and commitment on two counts of armed
robbery. There was no plain error in admitting the officer’s testimony and no error
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
in denying Defendant’s motion to dismiss. The trial court did err by entering
judgment and commitment on two counts of armed robbery. We arrest the judgment
and remand for resentencing.
I. Factual and Procedural Background
¶2 Shortly before 10:00 pm on 14 October 2019, a man wearing a hooded
sweatshirt, dark-colored athletic pants, and gray high-top shoes entered the Phoenix
Travel Mart in Rocky Point, North Carolina. Surveillance video showed the man
approach two cashiers working at adjacent cash registers, brandish a firearm, and
demand money from each cashier. As the suspect reached over the counter to collect
the cash, his hooded sweatshirt was raised, revealing purple boxer shorts. The
suspect then exited the store and ran towards the interstate. The Phoenix Travel
Mart accounting records indicated a cash shortage of $1,355.34 for that day.
¶3 Lieutenant James Cotton was alerted to the robbery and responded to the
Phoenix Travel Mart, where he reviewed the surveillance video and interviewed
witnesses. Cotton completed his investigation and left the Phoenix Travel Mart for
the sheriff’s office around midnight. Approximately five miles north of the Phoenix
Travel Mart, Cotton observed Defendant walking north, and another individual
walking south along the road. Defendant was wearing black pants with a white
stripe, gray sneakers, and no shirt. Believing that Defendant fit the description of
the suspect in the Phoenix Travel Mart robbery, Cotton activated his blue lights and
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
pulled over, at which point Defendant and the other individual began walking away
from each other. Cotton asked to speak with Defendant, informed Defendant that he
fit the description of the suspect, and detained Defendant. Cotton then called
Detective Mark Lobel, the lead detective on duty that night, to come question
Defendant.
¶4 Lobel, who had also reviewed the surveillance footage and interviewed
witnesses at the Phoenix Travel Mart, met Cotton and Defendant on the side of the
road, questioned Defendant, and placed Defendant under arrest. The officers
transported Defendant to the sheriff’s office shortly before 3:00 am, where Defendant
was placed in an interview room under video surveillance while officers processed his
information and collected his clothes as evidence. A subsequent search of Defendant’s
clothes yielded $736 in cash.
¶5 Defendant was tried before a jury on 25 January 2021, where the State
introduced the surveillance video depicting the robbery from the Phoenix Travel Mart
as well as the surveillance video depicting Defendant in the interview room at the
sheriff’s office. The State also called Cotton and Lobel to testify about their
investigation and interactions with Defendant. Lobel testified that, after reviewing
the surveillance video of the robbery, he knew he was “looking for somebody with
dark-colored black or blue Adidas, three stripes with the Adidas symbol on the top,
gray high-top sneakers and a pair of purple underwear[.]” When asked, whether he
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
believed that Defendant fit the description of the suspect in the Phoenix Travel Mart
robbery, Lobel responded, without objection, “Yes, absolutely.” Lobel also testified,
over Defendant’s objection, that, in his opinion, “[D]efendant is the person that robbed
the Phoenix Travel Mart.”
¶6 After viewing and hearing all the evidence, the jury returned guilty verdicts
on two counts of armed robbery, one for each cashier at the Phoenix Travel Mart. The
trial court consolidated judgment and sentenced Defendant in the presumptive range
to 72-99 months’ imprisonment. Defendant timely appealed.
II. Discussion
A. Detective Lobel’s Testimony
¶7 Defendant first argues that the trial court erred by allowing Lobel to identify
Defendant as the person who robbed the Phoenix Travel Mart.
1. Preservation and Standard of Review
¶8 We first address whether Defendant preserved this issue for appellate review.
“In order to preserve an issue for appellate review, a party must have presented to
the trial court a timely request, objection, or motion[.]” N.C. R. App. P. 10(a)(1). “In
case of a specific question, objection should be made as soon as the question is asked
and before the witness has time to answer.” State v. Battle, 267 N.C. 513, 520, 148
S.E.2d 599, 604 (1966) (citations and quotations omitted). Where the objectionable
testimony takes the form of an unresponsive answer, the objection should be made
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
through a motion to strike the unresponsive answer. Id. “Failure to move to strike
the unresponsive part of an answer, even though the answer is objected to, results in
a waiver of the objection.” State v. Chatman, 308 N.C. 169, 178, 301 S.E.2d 71, 77
(1983) (emphasis omitted).
¶9 At trial, the following exchange took place during the State’s direct
examination of Lobel:
[STATE]: Detective Lobel, that night did you believe
that [Defendant] fit the description of the person, the
suspect in the Phoenix Travel Mart robbery?
[LOBEL]: Yes, absolutely.
[STATE]: And based upon your opinion, why do you
believe that he fit the description?
[DEFENDANT]: Objection, your Honor, as to his
opinion.
THE COURT: Ask that question again, [State].
[STATE]: Do you believe – do you have an opinion as to
whether or not [Defendant] fit the description of the
suspect in the Phoenix Travel Mart robbery that night?
[DEFENDANT]: Objection, your Honor.
THE COURT: Overruled.
[STATE]: Do you have an opinion?
[LOBEL]: Yes.
[STATE]: And what is your opinion?
[LOBEL]: That is the – the defendant is the person who
robbed the Phoenix Travel Mart.
[STATE]: And why do you believe that?
[LOBEL]: Because if I take the full totalism of the facts
of what I saw on the video which were – was the height and
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
stature of the defendant, as seen by the video, the type of
pants, which were the Adidas with three lines with the
Adidas mark up towards the top, gray colored high-tops
with some kind of design on the side of it, and then the pair
of purple boxer shorts that were seen underneath the pants
during the commission of the crime, the only thing that the
defendant, when I had interaction with him, that he did not
have on at that point was the gray – was the dark-colored
hoodie which you guys had seen in the video cinched up
along his face, and of course he didn’t have the firearm in
his hand or the glove on his hand at the time.
¶ 10 Lobel’s answer that “the defendant is the person who robbed the Phoenix
Travel Mart,” was not responsive to the State’s question “whether or not [Defendant]
fit the description of the suspect in the Phoenix Travel Mart robbery.” Although
Defendant objected to the State’s question, he did not move to strike Lobel’s
unresponsive answer identifying Defendant as the perpetrator.1 Accordingly,
Defendant’s objection is waived, and Defendant has failed to preserve this issue for
appellate review. However, as Defendant has specifically and distinctly alleged the
error amounts to plain error, we will review the issue for plain error. See N.C. R.
App. P. 10(a)(4).
¶ 11 “For error to constitute plain error, a defendant must demonstrate that a
fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723
1 Defendant does not appeal the admissibility of Lobel’s opinion that Defendant
matched the description of the suspect. Instead, Defendant focuses specifically on Lobel’s
positive identification of Defendant as the perpetrator.
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2022-NCCOA-713
Opinion of the Court
S.E.2d 326, 334 (2012) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)). “To show that an error was fundamental, a defendant must establish
prejudice—that, after examination of the entire record, the error had a probable
impact on the jury’s finding that the defendant was guilty.” Id. (citations and
quotations omitted).
2. Analysis
¶ 12 Even assuming arguendo that admitting Lobel’s identification testimony was
error, it was not plain error considering the other evidence before the jury identifying
Defendant as the perpetrator. Lobel testified that, after reviewing surveillance video
of the robbery, he knew he was “looking for somebody with dark-colored black or blue
Adidas, three stripes with the Adidas symbol on the top, gray high-top sneakers and
a pair of purple underwear.” Defendant was found approximately three hours after
the robbery, approximately five miles north of the Phoenix Travel Mart, wearing
“black Adidas sweatpants with the three stripes down the side, the Adidas symbol up
towards the upper part of the groin area, and then a gray pair of high-top sneakers
with some kind of design on the side . . . [and] purple boxer shorts.” When asked,
whether he believed that Defendant fit the description of the suspect in the Phoenix
Travel Mart robbery, Lobel responded, without objection, “Yes, absolutely.”
¶ 13 Cotton, the officer who initially stopped defendant, testified that he stopped to
speak with Defendant “[b]ecause he fit the general description, as far as the pants
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
and the shoes and everything, of the suspect that was involved in the armed robbery.”
Cotton also testified that, just before stopping Defendant, he observed Defendant
speaking with another individual. When Cotton activated his blue lights, Defendant
and the other individual separated and started walking away from each other.
Defendant was later found to have cash in approximately half the amount stolen from
the Phoenix Travel Mart.
¶ 14 Additionally, the jury saw photographs and video of the suspect during the
robbery, as well as video of Defendant in the interview room only hours later, allowing
it to compare the suspect’s appearance and clothing with Defendant’s appearance and
clothing on the night of the robbery. Considering this evidence, we cannot say that
the jury probably would have reached a different verdict had they not heard Lobel’s
objectionable testimony. Accordingly, admitting Lobel’s identification did not rise to
the level of plain error.
B. Defendant’s Motion to Dismiss
¶ 15 Defendant next argues that the trial court erred by denying his motion to
dismiss the charges against him at the close of the evidence. We review the denial of
a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33
(2007).
In ruling on a motion to dismiss, the trial court need
determine only whether there is substantial evidence of
each essential element of the crime and that the defendant
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
is the perpetrator. Substantial evidence is the amount
necessary to persuade a rational juror to accept a
conclusion. In evaluating the sufficiency of the evidence to
support a criminal conviction, the evidence must be
considered in the light most favorable to the State; the
State is entitled to every reasonable intendment and every
reasonable inference to be drawn therefrom. In other
words, if the record developed at trial contains substantial
evidence, whether direct or circumstantial, or a
combination, to support a finding that the offense charged
has been committed and that the defendant committed it,
the case is for the jury and the motion to dismiss should be
denied.
State v. Blagg, 377 N.C. 482, 487-88, 2021-NCSC-66, ¶10 (quoting State v. Golder,
374 N.C. 238, 249-50, 839 S.E.2d 782, 790 (2020)). “Circumstantial evidence may
withstand a motion to dismiss and support a conviction even when the evidence does
not rule out every hypothesis of innocence.” State v. Fritsch, 351 N.C. 373, 379, 526
S.E.2d 451, 455 (2000). However, “[i]f the evidence is sufficient only to raise a
suspicion or conjecture as to either the commission of the offense or the identity of
the defendant as the perpetrator of it, the motion should be allowed.” State v. Powell,
299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
¶ 16 The State presented the following evidence tending to show that Defendant
was the perpetrator:
¶ 17 Lobel testified that, after reviewing surveillance video of the robbery, he knew
he was “looking for somebody with dark-colored black or blue Adidas, three stripes
with the Adidas symbol on the top, gray high-top sneakers and a pair of purple
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
underwear.” Defendant was found approximately three hours after the robbery,
approximately five miles north of the Phoenix Travel Mart, wearing “black Adidas
sweatpants with the three stripes down the side, the Adidas symbol up towards the
upper part of the groin area, and then a gray pair of high-top sneakers with some
kind of design on the side . . . [and] purple boxer shorts.” When asked whether he
believed that Defendant fit the description of the suspect in the Phoenix Travel Mart
robbery, Lobel responded, “Yes, absolutely.”
¶ 18 Additionally, Cotton testified that he stopped Defendant “[b]ecause
[Defendant] fit the general description, as far as the pants and the shoes and
everything, of the suspect that was involved in the armed robbery.” Cotton also
testified that, just before stopping Defendant, he observed Defendant speaking with
another individual. When Cotton activated his blue lights, Defendant and the other
individual separated and started walking away from each other. Defendant was later
found to have cash in approximately half the amount stolen from the Phoenix Travel
Mart.
¶ 19 Furthermore, the jury saw photographs and video of the suspect during the
robbery, as well as video of Defendant in the interview room only hours later, allowing
it to compare the suspect’s appearance and clothing with Defendant’s appearance and
clothing on the night of the robbery.
¶ 20 Viewed in the light most favorable to the State, this evidence is sufficient to
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
persuade a rational juror to accept the conclusion that Defendant was the
perpetrator.
¶ 21 Defendant argues that the State’s evidence raises only a suspicion or
conjecture that he was the perpetrator because “[t]here is absolutely nothing unique
or distinctive about any of the items of [D]efendant’s clothing[, and] these items of
clothing are worn by hundreds and thousands of people.” However, it is not the
individual items of clothing, but the specific combination of clothing in conjunction
with the other evidence presented that constitutes substantial evidence that
Defendant was the perpetrator in this case.
¶ 22 For further support of his argument that the State’s evidence raises only a
suspicion or conjecture that he was the perpetrator, Defendant cites State v.
Stallings, 77 N.C. App. 189, 334 S.E.2d 485 (1985); State v. Chavis, 270 N.C. 306, 154
S.E.2d 340 (1967); State v. Jones, 280 N.C. 60, 184 S.E.2d 862 (1971); and State v.
Heaton, 39 N.C. App. 233, 249 S.E.2d 856 (1978). The cases cited by Defendant are
distinguishable from the present case because in each of those cases, the State lacked
critical evidence tying the defendant to the crime. Here, the State presented
substantial evidence linking Defendant to the crime. Accordingly, the trial court
properly denied Defendant’s motion to dismiss the charges against him. Fritsch, 351
N.C. at 379, 526 S.E.2d at 455 (“Once the court decides that a reasonable inference of
defendant’s guilt may be drawn from the circumstances, then it is for the jury to
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
decide whether the facts, taken singly or in combination, satisfy [it] beyond a
reasonable doubt that the defendant is actually guilty.” (citation omitted)).
C. Sentencing
¶ 23 Defendant next argues that the trial court erred by entering judgment and
commitment upon two counts of armed robbery when only a single armed robbery
occurred.
1. Preservation and Standard of Review
¶ 24 We note that by failing to object to the convictions or sentence on double
jeopardy grounds, “[D]efendant has waived his right to raise this issue on appeal.”
State v. Coleman, 161 N.C. App. 224, 234, 587 S.E.2d 889, 896 (2003) (citation
omitted). Nonetheless, we invoke Rule 2 of the North Carolina Rules of Appellate
Procedure to consider the merits of Defendant’s argument. See id. (applying N.C. R.
App. P. R. 2 to review a double jeopardy issue on appeal).
2. Analysis
¶ 25 The essential elements of armed robbery are “(1) the unlawful taking or
attempted taking of personal property from another; (2) the possession, use or
threatened use of ‘firearms or other dangerous weapon, implement or means’; and (3)
danger or threat to the life of the victim.” State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d
367, 373 (1978); see N.C. Gen. Stat. § 14-87 (2019). “[W]hen the lives of all employees
in a store are threatened and endangered by the use or threatened use of a firearm
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
incident to the theft of their employer’s money or property, a single robbery with
firearms is committed.” State v. Potter, 285 N.C. 238, 253, 204 S.E.2d 649, 659 (1974).
¶ 26 In Potter, defendant used a firearm to rob a food market, taking a total of $265
from two cash registers operated by two different employees. Id. at 241, 204 S.E.2d
at 652. Defendant was indicted separately on two counts of armed robbery, one for
each employee. Id. at 238-39, 204 S.E.2d at 650. He was convicted on both counts
and sentenced to two consecutive prison terms. Id. at 246, 204 S.E.2d at 655. Our
Supreme Court held that the two verdicts had “the same effect as if defendant had
been found guilty after trial on a single indictment which charged the armed robbery”
of the two employees. Id. at 252, 204 S.E.2d at 658. The Supreme Court modified
the judgment and remanded the cause with instructions to enter commitment for a
single armed robbery, and to adjust the sentence accordingly. Id. at 254, 204 S.E.2d
at 659.
¶ 27 Here, as in Potter, Defendant took a single employer’s property from two of its
employees. Also, as in Potter, Defendant was charged with, and convicted of, two
counts of armed robbery, one for each employee. Following Potter, the trial court
should have entered judgment and commitment upon only one count of armed
robbery. Although Defendant’s convictions were consolidated into one judgment, and
Defendant was sentenced within the presumptive range, “the separate convictions
may still give rise to adverse collateral consequences.” State v. Etheridge, 319 N.C.
STATE V. KELLY
2022-NCCOA-713
Opinion of the Court
34, 50, 352 S.E.2d 673, 683 (1987). Furthermore, “we cannot assume that the trial
court’s consideration of [the second count] had no effect on the sentence imposed.”
State v. Mulder, 233 N.C. App. 82, 95 n. 5, 755 S.E.2d 98, 106 n. 5 (2014) (arresting
judgment and remanding for resentencing even though the original sentence was
within the presumptive range for the surviving conviction). Accordingly, we remand
this issue to the trial court for resentencing, with an instruction to arrest judgment
on one of the convictions.
III. Conclusion
¶ 28 For the reasons set forth above, the trial court did not plainly err by admitting
Lobel’s identification. Nor did the trial court err by denying Defendant’s motion to
dismiss at the close of the evidence. The trial court erred, however, by issuing a
judgment and commitment upon two counts of armed robbery. The matter is
remanded to the trial court for resentencing, with an instruction to arrest judgment
on one of the convictions.
NO PLAIN ERROR AND NO ERROR AT TRIAL; REMANDED WITH
INSTRUCTIONS FOR RESENTENCING.
Judges HAMPSON and JACKSON concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482284/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-716
No. COA22-220
Filed 1 November 2022
Alamance County, No. 18CRS056582
STATE OF NORTH CAROLINA
v.
ERIC DOUGLAS MOORE
Appeal by Defendant from judgment entered 24 May 2021 by Judge David T.
Lambeth, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 4
October 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Francisco Benzoni, for the State-Appellee.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
VandenBerg, for Defendant-Appellant.
COLLINS, Judge.
¶1 Defendant Eric Douglas Moore appeals from judgment entered upon a jury
verdict of guilty of first-degree murder. Defendant contends that his counsel was per
se ineffective because he “implicitly admitted [Defendant’s] guilt to second-degree
murder[;]” that his counsel was prejudicially ineffective because he promised a
defense that was not delivered, presented a “pointless” defense witness, and asserted
an incoherent defense that conceded guilt without permission; and that the trial court
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
erred by admitting certain opinion evidence. After careful review, we conclude
Defendant did not receive ineffective assistance of counsel and admission of the lay
witness opinion testimony did not amount to prejudicial error.
I. Procedural History and Factual Background
¶2 On 17 December 2018, Mary McBroom and her friend Tiyanna Love drove to
the Sheetz on Alamance Road to purchase drugs from Defendant. McBroom told Love
she intended to pay for the drugs with a “fake 100 dollar bill.” Love “had told her not
to do it but she was so desperate to do it she did it anyways.” McBroom kept her car
running while she walked over to Defendant’s car to retrieve the drugs. After the
purchase, she jogged back to the car and sped off. Defendant was accompanied by
Alexxa McKnight, who was in the passenger seat during the transaction. After
McBroom left, Defendant looked over at McKnight, “flashed” the money, and said “I
think I just got got. This is not real.” According to McKnight, Defendant appeared
agitated and upset after the transaction.
¶3 Shortly after the transaction, McBroom and Love received text messages from
Defendant with “[l]aughing emojis and saying, watch this.” Defendant called
McBroom but she did not answer. Around this time, Defendant called Quiana Miles,
McBroom’s friend with whom she was staying, via Facebook and told her that he was
looking for McBroom because “she had gave him a fake -- some fake money[,]” and
that “he didn’t play about his money basically.” McBroom and Love returned to Love’s
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
boyfriend’s house and “chilled until like 3:00 -- like 4:00 or 5:00 in the morning” before
McBroom went to Miles’ residence on Tucker Street, where she was staying.
¶4 Between 4:04 A.M. and 4:21 A.M., Defendant and McBroom exchanged a series
of text messages in which McBroom acknowledged that she owed Defendant money,
Defendant asked when she would have it, and McBroom replied that she would try
and donate plasma. From approximately 4:22 A.M. to 5:51 A.M., McBroom called
Defendant 22 times attempting to meet up with him. Defendant told McKnight and
her boyfriend, Laking Crews, that he wanted to go to Tucker Street Apartments to
“pick something up.” Shortly after McKnight backed into a parking spot at Tucker
Street, “somebody approached the back of the car on [Defendant’s] side.” McKnight
heard a short span of dialogue and then a gunshot. McKnight was startled and drove
away. After driving a short distance, Defendant told McKnight to “stop and get the
‘F’ out of the driver’s seat.” Defendant drove to the Short Stop and then his cousin’s
house before he “dropped himself off at home.”
¶5 At approximately 6:18 A.M., McBroom called the police and reported that she
had been shot. Officers arrived on the scene and found McBroom “laying on their
back face up, not moving.” McBroom ultimately died from “a penetrating gunshot
wound of the torso.” The autopsy revealed that there was no soot or stippling in the
entrance wound, and “[t]here were no other findings that would allow determination
of the range of fire.”
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
¶6 Defendant was indicted for first-degree murder, and the case proceeded to trial
on 18 May 2021. Prior to opening statements and outside the presence of the jury,
defense counsel informed the trial court that Defendant planned to concede that he
fired the shot that resulted in or proximately caused McBroom’s death. Defense
counsel also informed the trial court that at some point, he might argue that
Defendant was guilty of lesser-included offenses. The trial court conducted a colloquy
wherein Defendant indicated that he consented to this strategy.
¶7 During opening statements, defense counsel acknowledged that Defendant
was a drug dealer and had previously sold drugs to McBroom, that Defendant met
with McBroom at Tucker Street Apartments, that McBroom tried to grab drugs out
of Defendant’s hand and started “wrestling them out of the vehicle[,]” and that
Defendant fired a shot that entered McBroom’s midsection.
¶8 At trial, the State introduced Detective Adam Snow to testify regarding the
text messages between Defendant and McBroom before the murder. Over
Defendant’s objection, Snow testified that, in his experience, it would be easier for
somebody to lure a victim by “continu[ing] on the normal path of drug business.”
During his case-in-chief, Defendant introduced Ramona Rascoe, an evidence
technician with the Burlington Police Department. Rascoe testified that a plastic
baggie with a white powdery substance was found in the grassy area behind the
apartment along the alley. Although Defendant initially intended to testify, he later
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
invoked his right to remain silent and not testify. When asked whether he spoke with
counsel about not testifying, whether he was satisfied with his legal services, and
whether the decision was in his best interest, Defendant responded, “[y]es.”
Thereafter, the defense rested.
¶9 During closing arguments, defense counsel argued that the State had not met
its burden of proving premeditation and deliberation for first-degree murder. He
argued that Defendant did not “express any kind of anger, hatred, ill will, spite,” in
any of the text messages between Defendant and McBroom, and that Defendant did
not have “a premeditated and deliberated plan, to go over there and kill Mary
McBroom.”
¶ 10 The jury returned a guilty verdict, and Defendant was sentenced to life in
prison without parole. Defendant timely appealed.
II. Discussion
A. Ineffective Assistance of Counsel
¶ 11 Defendant argues that he received per se ineffective assistance of counsel or,
in the alternative, prejudicial ineffective assistance of counsel, in violation of his
Sixth Amendment right to counsel.
¶ 12 “The right to assistance of counsel is guaranteed by the Sixth Amendment to
the Federal Constitution and by Article I, Sections 19 and 23 of the Constitution of
North Carolina.” State v. McNeill, 371 N.C. 198, 217, 813 S.E.2d 797, 812 (2018)
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
(citation omitted). “When a defendant attacks his conviction on the basis that counsel
was ineffective, he must show that his counsel’s conduct fell below an objective
standard of reasonableness.” State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241,
248 (1985) (citation omitted). Defendant must satisfy a two-part test to meet this
burden:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s error were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)). “The fact that counsel made an error, even an unreasonable
error, does not warrant reversal of a conviction unless there is a reasonable
probability that, but for counsel’s errors, there would have been a different result in
the proceedings.” Id. at 563, 324 S.E.2d at 248 (citation omitted).
1. Per se Ineffective Assistance of Counsel
¶ 13 Defendant first contends that he received per se ineffective assistance of
counsel because defense counsel “implicitly admitted Mr. Moore’s guilt to
second-degree murder.”
¶ 14 We review per se ineffective assistance of counsel claims de novo. See State v.
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2022-NCCOA-716
Opinion of the Court
Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985).
¶ 15 A defendant claiming ineffective assistance of counsel must ordinarily show
both that counsel’s performance was deficient, and that counsel’s deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687. However,
“ineffective assistance of counsel, per se in violation of the Sixth Amendment, has
been established in every criminal case in which the defendant’s counsel admits the
defendant’s guilt to the jury without the defendant’s consent.” Harbison, 315 N.C. at
180, 337 S.E.2d at 507-08. Statements by defense counsel “must be viewed in context
to determine whether the statement was, in fact, a concession of defendant’s guilt of
a crime[.]” State v. Mills, 205 N.C. App. 577, 587, 696 S.E.2d 742, 748-49 (2010)
(citation omitted). Where “defense counsel’s statements to the jury cannot logically
be interpreted as anything other than an implied concession of guilt to a charged
offense, Harbison error exists unless the defendant has previously consented to such
a trial strategy.” State v. McAllister, 375 N.C. 455, 475, 847 S.E.2d 711, 723 (2020).
“[T]he trial court must be satisfied that, prior to any admissions of guilt at trial by a
defendant’s counsel, the defendant must have given knowing and informed consent,
and the defendant must be aware of the potential consequences of his decision.” State
v. Foreman, 270 N.C. App. 784, 790, 842 S.E.2d 184, 189 (2020) (citation omitted).
¶ 16 Here, Defendant consented to counsel’s strategy of admitting that Defendant
fired the shot that resulted in or proximately caused McBroom’s death, and arguing
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
that Defendant was guilty of lesser-included offenses. Prior to opening statements,
the trial court conducted the following colloquy with Defendant regarding trial
strategy:
THE COURT: [Your attorney] has talked to you about this
issue. You’ve prepared your defense and what he’s telling
me is that you all discussed it and that you’ve agreed with
him that your best strategy in this case is to acknowledge
the fact that you did fire the shot but that you did so in self-
defense or by accident I think is what [your attorney] said
yesterday would be potentially where he sees this evidence
going.
And that you don’t believe that you’re guilty of first degree
murder but it’s possible that you’d be asking for some this
(sic) lesser included offenses when we get to the end of this
trial.
Has [your attorney] discussed all of that with you?
DEFENDANT: Yes.
THE COURT: Okay. And do you agree and do you consent
that that’s a strategy that you’d like to follow to go ahead
and admit -- have him admit as early as opening
statements that you, in fact, fired the shot even though it
wasn’t on purpose potentially or it was in self-defense
potentially?
DEFENDANT: Yes.
THE COURT: And is that a decision that you make freely,
voluntarily and understandingly and of your own free will?
DEFENDANT: Yes.
THE COURT: All right. And do you fully consent to him
taking that strategy and going ahead and throughout this
trial, again, starting as early potentially as the opening
statement, going ahead and letting the jury know those are
the facts as you see them?
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
DEFENDANT: Yes.
THE COURT: Okay. All right. Thank you. You may have
a seat.
Because Defendant consented to his counsel’s implied concession of Defendant’s guilt
to second-degree murder, no Harbison error exists, and Defendant did not receive per
se ineffective assistance of counsel. Foreman, 270 N.C. App. at 790, 842 S.E.2d at
189.
2. Prejudicially Ineffective Assistance of Counsel
¶ 17 Defendant alternatively contends that he received prejudicially ineffective
assistance of counsel because defense counsel promised a defense that was not
delivered, presented a “pointless” defense witness, and asserted an incoherent
defense that conceded guilt without permission.
¶ 18 “The merits of an ineffective assistance of counsel claim will be decided on
direct appeal only when the cold record reveals that no further investigation is
required.” State v. Friend, 257 N.C. App. 516, 521, 809 S.E.2d 902, 906 (2018)
(internal quotation marks and citation omitted). Here, we address Defendant’s
ineffective assistance of counsel claim because no further investigation is required to
do so.
a. Self-Defense
¶ 19 Defendant first argues that counsel was prejudicially ineffective because he
promised to argue self-defense in opening statements and subsequently failed to do
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2022-NCCOA-716
Opinion of the Court
so. Prior to opening arguments, defense counsel stated to the court:
Your Honor, at my opening, either whether it’s done now
or at the State’s evidence, and obviously during any closing
arguments, we’re going to concede that Mr. Moore actually
fired the shot that resulted or proximately caused Ms.
McBroom’s death and I need his consent on the record and
permission for me to do that. And at some point I may be
arguing obviously for lesser included offenses and I want
his consent to do that as well. We’ve discussed it. He
understands that you’re going to be asking him questions
under oath about that.
Defendant indicated to the court that he consented to this strategy. During opening
statements defense counsel stated,
At that point, Mary McBroom tries to grab the drugs out of
Mr. Moore’s hand and starts wrestling them out of the
vehicle. And as Mr. Moore is trying to get those drugs back
from her, she reaches back like she’s going to pull
something out of her pocket.
Now, Mr. Moore had Laking Crews’ .22, pistol in the back
seat of the car. He pulls it out and as she’s reaching back,
makes one shot and it enters her midsection. And at that
point, Alexxa McKnight takes off. Mary McBroom walks
off. They didn’t know if she was hit or what else happened
to Mary McBroom. Obviously, Ms. McBroom later calls 911
after the three left the area.
After the State rested, defense counsel indicated to the trial court, “I’ll have one short
witness and then the defendant is going to testify in the morning.” The trial court
conducted the following colloquy with Defendant to confirm that he understood his
defense:
THE COURT: [Your attorney] has been representing you
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2022-NCCOA-716
Opinion of the Court
and you’ve had time to talk to him about your defense and
about the different issues in the case, right?
DEFENDANT: Yes, sir.
THE COURT: He’s indicating to me that it’s your intention
as a defendant to put on evidence, number one. And
number two, as part of that evidence, actually to testify in
your own defense. Is that correct?
DEFENDANT: Yes, sir.
THE COURT: Do you understand that, of course, the law –
I’m sure [Your attorney]’s gone over this with you and
you've heard me tell the jury this more than several times
here this week. The law requires you to put on no defense
at all, right? You can sit down and say I’m not saying a
word, I’m not putting on any evidence, no defense, no
witnesses, nobody, because it’s solely the State’s burden of
proof to prove whether you're guilty or not. You
understand all of those things?
DEFENDANT: Yes, sir.
THE COURT: Do you understand that it’s your absolute
right as a defendant to remain silent and not testify
yourself. Do you understand that?
DEFENDANT: Yes, sir.
...
THE COURT: And then, secondly, we’re not going to get to
it this afternoon but I’m expecting tomorrow morning at
some point, if you still want to take the stand, that you
would be called to the stand by your attorney. Is that what
you wish to do?
DEFENDANT: Yes, sir.
THE COURT: And is that – and testify in your own
defense?
DEFENDANT: Yes, sir.
THE COURT: Is that a decision that you make freely,
voluntarily and understandingly and of your own free will?
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2022-NCCOA-716
Opinion of the Court
DEFENDANT: Yes, sir.
¶ 20 On the final day of trial, however, Defendant decided not to testify, and the
trial court conducted the following colloquy with Defendant:
THE COURT: All right. I’ve had a pretrial conference this
morning. Not pretrial. Pre-session conference this
morning with the attorneys. And [your attorney] informed
me, Mr. Moore, that upon reflection and upon meeting last
night with [your attorney] and, again, confirming this
morning with him, that you decided not to testify. Is that
correct?
DEFENDANT: Yes, sir.
...
THE COURT: Okay. So we went through a colloquy
yesterday about – dialogue yesterday, and you told me you
understood you had the right to remain silent, you
understood you didn’t have to call any witnesses but you
were going to do so anyway and understood you had the
right to testify or not to testify. That is your absolute right
under the Constitution of the United States. You
understand all of that?
DEFENDANT: Yes.
THE COURT: You told me yesterday that you had decided,
and talked to [your attorney] all along about all of this, but
you had decided to testify yesterday and it’s my
understanding now you changed your mind and decided to
invoke your right to remain silent and not testify. Is that
correct?
DEFENDANT: Yes.
¶ 21 Defendant endorsed the strategy used by defense counsel by expressing to his
counsel, which he acknowledged on the record, that he consented to counsel putting
on a self-defense defense, which included admitting that he fired the fatal shot, and
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2022-NCCOA-716
Opinion of the Court
that he intended to testify in his own defense. Defendant cannot now be heard to
complain that this strategy was ineffective.
b. Witness Testimony
¶ 22 Defendant next contends that counsel was prejudicially ineffective because he
called only one witness “whose testimony was pointless.” Roscoe’s testimony revealed
that a plastic baggie containing a white powdery substance was discovered near the
scene but was not tested in any way. Roscoe’s testimony was not “pointless” because
it showed potential shortcomings in processing the crime scene in that the substance
was not tested for fingerprints or otherwise. See State v. Brindle, 66 N.C. App. 716,
718, 311 S.E.2d 692, 693-94 (1984) (“Ineffective assistance of counsel claims are not
intended to promote judicial second-guessing on questions of strategy and trial
tactics.”). Therefore, defense counsel’s presentation of evidence was not deficient and
did not amount to ineffective assistance of counsel.
c. Closing Argument
¶ 23 Defendant contends that counsel’s closing argument was deficient and
prejudicial because it “conceded guilt without permission and . . . did not outline a
clear, coherent defense or contention as to verdict.” Defendant mischaracterizes the
nature of counsel’s closing argument. As an initial matter, Defendant previously
consented to arguing for lesser included offenses, and counsel’s statements during
closing argument did not amount to a concession of guilt to second-degree murder.
STATE V. MOORE
2022-NCCOA-716
Opinion of the Court
During closing arguments, counsel argued, inter alia, a lack of premeditation and
malice, thereby negating the essential elements of first-degree murder. When
discussing the elements of second-degree murder, counsel defined “malice” as
not only hatred, ill will, or spite, as it ordinarily is
understood -- to be sure that is malice -- but it also means
that condition of the mind which prompts a person to take
the life of another intentionally or to intentionally inflict
serious bodily harm which proximately results in another’s
death without just cause, excuse or justification.
Defense counsel argued,
when you consider all the evidence that you’ve heard, that
the most that you could find Mr. Eric Moore guilty of in this
particular case is second degree murder upon a finding of
malice.
And, again, you’ve not been presented any witnesses from
the State that actually saw the exchange that went on
between those two that led up to this. Didn’t have
somebody that saw that. And the State obviously can prove
their case and the judge will instruct you about
circumstantial evidence but I’m arguing to you that that
doesn’t mean that you fill in a lot of gaps with what you
think or speculate as to exactly what happened because
anybody charged with a crime is due the benefit of any
reasonable doubt that you might have.
Defendant contends that, instead of this strategy, counsel could have “(1) explicitly
argued for a not guilty verdict based on the State’s failure to prove who the shooter
was given Mary’s statement (‘I don’t know’ who shot me), the texts, the physical
evidence, and the witnesses who were clearly hiding something; or (2) explicitly
argued (with consent) for a second-degree verdict.” However, we are not in a position
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2022-NCCOA-716
Opinion of the Court
to “second-guess counsel’s assistance after conviction or adverse sentence . . . [and] a
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” State v. Smith, 241 N.C. App. 619, 629-30, 773
S.E.2d 114, 121 (2015) (quoting Strickland, 466 U.S. at 689). We conclude that
defense counsel presented a coherent closing argument to negate the elements of
first-degree murder, and Defendant did not receive ineffective assistance of counsel.
Braswell, 312 N.C. at 562, 324 S.E.2d at 248.
B. Opinion Evidence
¶ 24 Lastly, Defendant argues that the trial court erred by admitting Snow’s
opinion testimony and that without his testimony, “there is a reasonable possibility
the defense could have convinced the jury there was doubt as to both first- and
second-degree murder.”
¶ 25 “We review a trial court’s ruling on the admissibility of lay opinion testimony
for abuse of discretion.” State v. Belk, 201 N.C. App. 412, 417, 689 S.E.2d 439, 442
(2009) (citation omitted).
¶ 26 Lay witness opinion testimony is “limited to those opinions or inferences which
are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in issue.” N.C. Gen.
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2022-NCCOA-716
Opinion of the Court
Stat. § 8C-1, Rule 701 (2021). “In determining whether a criminal defendant is
prejudiced by the erroneous admission of evidence, the question is whether there is a
reasonable possibility that, had the evidence not been admitted, the jury would have
reached a different verdict.” State v. Malone-Bullock, 278 N.C. App. 736,
2021-NCCOA-406, ¶ 27 (citation omitted).
¶ 27 During Snow’s testimony, the following colloquy took place:
STATE: Regarding the discussions that occurred between
Mr. Moore and Ms. McBroom after the incident at Sheetz,
in your experience, would it be easier or more difficult for
somebody to lure their victim to them by threats or by
promises?
DEFENSE: Objection.
THE COURT: Overruled.
SNOW: It would [be] easier to continue on the normal path
of drug business. So if I’m trying to recontact somebody I
had done a previous deal with, then I would continue
business as usual if I want to make another attempt to
contact that user.
STATE: So when Ms. McBroom contacted Mr. Moore
around 4:07 or afterwards that evening, had Mr. Moore
said, I’m going to kill you, it’s unlikely that Ms. McBroom
would have made herself available to the defendant?
DEFENSE: Objection.
THE COURT: Overruled.
SNOW: Correct.
¶ 28 Even if the testimony was erroneously admitted, its admission does not
amount to prejudicial error. The State did not refer to Snow’s testimony during
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2022-NCCOA-716
Opinion of the Court
closing arguments, but rather alluded generally to the commonsense notion that:
If he had said, Mary, I’m going to get you; Mary, I’m going
to kill you; I’m coming for you Mary, Mary would have
ducked and run. She would have covered. She would have
found something to do. She would have got out of the way.
He lured her into a false sense of security. Hey, we’re good.
I got your back. You don’t have somebody’s back. You don’t
want to front somebody -- you’re not going to front
somebody anymore money when they’ve already stolen the
drugs from your hand and ripped you off. He plays the
friend card. He plays that game so that she’ll come to him.
And she did.
Thus, Defendant has failed to show a reasonable possibility that the jury would have
reached a different verdict absent Snow’s testimony. Malone-Bullock, 278 N.C. App.
736, 2021-NCCOA-406, ¶ 27.
III. Conclusion
¶ 29 Defendant did not receive ineffective assistance of counsel and admission of
Snow’s opinion testimony was not prejudicial error.
NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART.
Judges TYSON and INMAN concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482286/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-714
No. COA21-685
Filed 1 November 2022
Macon County, No. 18 CRS 000493
STATE OF NORTH CAROLINA
v.
DANIEL LUCAS, Defendant.
Appeal by defendant from judgments entered 2 February 2021 by Judge
William H. Coward in Macon County Superior Court. Heard in the Court of Appeals
10 August 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General John R.
Green, Jr., for the State
Lindsay Law, PLLC, by Nicholas A. White, Mary Ann J. Hollocker, and
Stephen P. Lindsay, for Defendant-Appellant.
CARPENTER, Judge.
¶1 Daniel Lucas (“Defendant”) appeals from final judgments entered upon a plea
agreement to challenge the denial of his motion to suppress evidence obtained during
the warrantless search of his Franklin, North Carolina home (the “Home”). On
appeal, Defendant argues the search violated N.C. Gen. Stat. § 15A-1343(b)(13)
because the State failed to show that the officers reasonably believed Defendant’s
Home was probationer Samantha Green’s (“Ms. Green”) premises, and that the
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
search was “directly related” to Ms. Green’s probation supervision. Defendant further
argues the trial court erred in concluding the search warrant was issued on a
sufficient showing of probable cause. For the reasons explained below, we affirm the
order (the “Order”) denying Defendant’s motion to suppress.
I. Factual & Procedural Background
¶2 This case concerns the warrantless search of Defendant’s Home conducted
pursuant to N.C. Gen. Stat. § 15A-1343(b)(13). The search was initiated following
positive drug screening and drug possession by probationer, Ms. Green, who was
reported on multiple occasions by her supervising probation officer as being
Defendant’s live-in girlfriend. On 25 February 2019, Defendant filed a “Verified
Motion to Suppress” seeking to suppress any and all evidence obtained during the
search of his Home and property on or about 15 August 2018. On 12 February 2020,
Defendant filed a “Supplemental Verified Motion to Suppress.”
¶3 Beginning on 18 February 2020, Defendant’s motions were heard in Macon
County Superior Court before the Honorable William H. Coward, judge presiding.
Testimony from the hearing revealed the following: In September of 2017, the Macon
County District Court placed Ms. Green on supervised probation with a North
Carolina Department of Public Safety (“DPS”) probation office following the entry of
a judgment against Ms. Green related to misdemeanor larceny and forgery offenses.
The back of the judgment form stated the regular and special conditions of Ms.
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
Green’s probation, pursuant to N.C. Gen. Stat. § 15A-1343. The conditions included,
inter alia, Ms. Green:
1. [c]ommit no criminal offense in any jurisdiction.
....
10. [s]ubmit at reasonable times to warrantless searches by
a probation officer of [her] person and [her] vehicle and
premises while [she] is present, for purposes directly
related to the probation supervision, but [she] may not be
required to submit to any other search that would
otherwise be unlawful.
....
12. [n]ot use, possess, or control any illegal drug or
controlled substance unless it has been prescribed for [her]
by a licensed physician and is in the original container with
the prescription number affixed on it; not knowingly
associate with any known or previously convicted users,
possessors, or sellers of any such illegal drugs or controlled
substances; and not knowingly be present at or frequent
any place where such illegal drugs or controlled substances
are sold, kept, or used.
¶4 On or about 15 September 2017, Ms. Green’s supervising probation officer,
Officer Alise Sutton of DPS, conducted an initial intake appointment wherein Ms.
Green provided Defendant’s Home address as her “premises” address. On the same
date, Officer Sutton provided Ms. Green with form DCC-117 – Regular Conditions of
Probation – G.S. 15A-1343, which was consistent with the regular probation
conditions found on the back of the judgment form. Ms. Green initialed by each
condition and signed the form.
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
¶5 Officer Sutton testified that, as a probation and parole officer, her duties
include making unannounced visits at probationers’ homes and performing
discretionary warrantless searches of probationers’ homes. A warrantless search by
a probation officer is usually a “plain view” search of the home unless something
suspicious is found, in which case, a “deeper search” may be performed by the officer.
Early on in a probation case, a probation officer determines the areas of the residence
in which the probationer does not have access or does not have a privacy interest. As
part of a probation case plan, a probation officer performs an initial visit to a
probationer’s residence, or “home contact,” “to determine if the defendant [is] home.”
Additionally, a probation officer conducts regular, at least once per month, “offender
management contacts” in the probation office, and the first question the probation
officer asks the probationer is whether their address has changed.
¶6 On 17 September 2017, Officer Sutton performed an initial home contact at the
Home. Officer Sutton knocked on the glass door and observed Defendant approach
the door, and Ms. Green head in another direction. As Ms. Green walked away, she
appeared to be hiding something in the sofa. When Officer Sutton told Ms. Green
she, Officer Sutton, was going to see what was hidden, Ms. Green admitted to
“smoking a pill” and hiding the remaining “burnt foil” in the sofa. Officer Sutton
warned Defendant, whom Officer Sutton noted in her report as being the “boyfriend
who owns the house,” and Ms. Green that she cannot behave in this manner during
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
subsequent home contacts as the behavior creates a safety concern for the officer and
the probationer. Officer Sutton further advised Defendant of two conditions of Ms.
Green’s probation: (1) that she consent to warrantless searches of her home; and (2)
that she has no firearms in her home. Defendant responded he “had no problems”
meeting either requirement.
¶7 In December 2017, a criminal judgment was entered against Ms. Green in
Macon County Superior Court related to pending drug possession charges that
preexisted Ms. Green’s placement on regular probation. The new judgment included
a conditional discharge sentence under N.C. Gen. Stat. § 90-96 as well as a
probationary sentence with special conditions.
¶8 On 28 December 2017, Officer Sutton performed a warrantless search of
Defendant’s Home in the presence of Defendant and Ms. Green. During this visit,
Officer Sutton walked through the general areas of the Home as well as the hallway
and bedroom. Ms. Green showed Officer Sutton her daughter’s bedroom and the
master bedroom, which Ms. Green described as the bedroom she shared with
Defendant. Ms. Green informed Officer Sutton that her friend was sleeping in her
daughter’s bedroom. Officer Sutton recognized the name of Ms. Green’s friend and
advised Ms. Green that her friend is a “known drug user.” Officer Sutton further
explained that it was a violation of Ms. Green’s probation for a known drug user to
be in the home.
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
¶9 To balance caseloads within the probation office, Officer Sutton transferred
Ms. Green’s file on 8 May 2018 to Officer Christie Kinsland, who became Ms. Green’s
primary supervising probation officer. On 4 June 2018, Ms. Green confirmed while
in Officer Kinsland’s office that the Home was her residence. During June 2018,
Officer Kinsland made multiple attempts to perform a “home contact” with Ms.
Green. No one was available at the Home at the times of these visits.
¶ 10 On 24 July 2018, Officer Kinsland visited the Home with another officer and
spoke to Defendant. Defendant was upset and advised Ms. Green was not home nor
had she been home for “several nights.” Officer Kinsland observed filled trash bags
on the front porch, and Defendant stated he had placed Ms. Green’s belongings in
those trash bags.
¶ 11 On 26 July 2018, Ms. Green reported to Officer Kinsland, as instructed. She
notified Officer Kinsland that she “had worked everything out” with “her boyfriend”
and would be returning to his Home that night. On 29 July 2018, Officer Kinsland
performed a home contact at the Home and found Ms. Green “standing in the front
yard.” Ms. Green reported she and Defendant “were doing a lot better and . . . were
working things out.” Officer Kinsland noted the trash bags of clothes were no longer
visible on the porch. On 6 August 2018, Ms. Green visited Officer Kinsland’s office
for an offender management contact where she confirmed her address as Defendant’s
Home.
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
¶ 12 On 15 August 2018, Ms. Green reported to Officer Kinsland to submit to a drug
screen. The drug screen came back “positive for cocaine, THC, and opiates.” This
was Ms. Green’s first drug screen that Officer Kinsland had “seen . . . test positive
for cocaine.” Officer Kinsland performed a pat down search on Ms. Green’s person
because she was acting nervously, and her behavior was “off.” Officer Kinsland found
no drugs or contraband during this search.
¶ 13 Officer Kinsland decided to search Ms. Green’s vehicle based on her suspicious
behavior and drug screen results. Ms. Green admitted to having a pill in the glove
compartment when Officer Kinsland asked if she had any drugs or weapons in the
vehicle. After the pill was found, Ms. Green stated she had pills in her purse, located
in the back seat of the vehicle.
¶ 14 While Officer Kinsland and other officers performed the search of the vehicle,
Officer Sutton observed Ms. Green “put[ting] her hands down the front of her pants.”
Ms. Green then pulled a “baggie full of pills” from the front of her pants. Shortly
thereafter, Ms. Green claimed to the officers that she was working as an informant
for Detective Matthew Breedlove of the Macon County Sheriff’s Office. Officer Sutton
called Detective Breedlove to the scene of the Macon County Courthouse. Detective
Breedlove arrived and confirmed Ms. Green was not an informant.
¶ 15 Detective Breedlove observed the pills and “formed an opinion that [they were]
an oxycodone illegal substance.” Officer Kinsland and Detective Breedlove
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
announced their plans to search Ms. Green’s premises. Officers Kinsland and Sutton,
Probation Officer John Coker, Detective Breedlove, and Ms. Green headed to Ms.
Green’s residence, the Home. When they arrived at the Home sometime between 5:00
p.m. and dusk, Defendant was on his porch, and two Hispanic males were standing
by a truck in the driveway. The two men claimed to be employees of Defendant. The
officers “could smell the obvious [odor] of marijuana . . . emitting from the truck.”
Detective Breedlove searched the vehicle and found “some green vegetable material
[he] believed to be marijuana and some drug paraphernalia . . . .”
¶ 16 Officer Kinsland advised Defendant the officers were there to conduct a
warrantless search of the Home as part of Ms. Green’s probation, and Defendant
stated he “understood.” Detective Breedlove remained outside on the deck of the
Home for security reasons. As the officers entered the residence, they “immediately
. . . detect[ed] . . . a strong odor of marijuana.” Officer Kinsland asked Ms. Green if
she had any illegal drugs, controlled substances, or drug paraphernalia. Ms. Green
directed Officer Kinsland to her bedroom and advised there was marijuana in the
“bedside table on her side of the bed.” Officer Sutton and Defendant remained in the
living room during the search. Detective Breedlove then entered the residence and
recovered from a nightstand in the bedroom “a small amount” of what he believed to
be marijuana, based on his training and experience.
¶ 17 Officer Kinsland and Officer Coker continued to clear the residence, looking in
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
places where a person could hide, and made their way down an unlocked stairwell
leading to the basement. Defendant “saw [the officers] go down the steps.” From
halfway down the staircase, Officer Kinsland “saw three long guns in the corner[,] up
against the wall.” Officer Kinsland also found “a scale and some baggies” as she
searched the room. At that point, Defendant objected to the search, contending the
officers had no “right to search [the] area due to restricted access.” The officers
stopped the search and cleared the home while Detective Breedlove headed to his
office to prepare a search warrant. At no time prior to the search on 15 August 2018
did Defendant inform the probation officers of any area that “was off limits or [had]
limited access . . . .”
¶ 18 Officer Kinsland spoke with Ms. Green while Officer Kinsland waited for
Detective Breedlove to return with the search warrant. Ms. Green confided in Officer
Kinsland that “there [were] pounds of marijuana in the [basement gun] safe and there
was a lot of money . . . and some opiates and some Xanax . . . .”
¶ 19 Detective Breedlove submitted his search warrant application at 9:22 p.m., and
the search warrant was executed at 9:50 p.m. that night at Defendant’s Home.
Detective Breedlove spoke with Defendant, provided him a copy of the executed
search warrant, and read the warrant to him. The officers completed the search of
the Home and recovered, inter alia, forty-two sealed, plastic freezer bags of
marijuana; ammunition; a rifle; various pills; and a bag containing $42,594.00 in
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
United States currency. Both Defendant and Ms. Green were arrested.
¶ 20 On 26 November 2018, Defendant was indicted by a Macon County grand jury
on the charges of trafficking in opium or heroin, pursuant to N.C. Gen. Stat. § 90-
95(h)(4); trafficking in marijuana, pursuant to N.C. Gen. Stat. § 90-95(h)(1); and
knowingly and intentionally maintaining a dwelling house used for keeping and/or
selling a controlled substance, pursuant to N.C. Gen. Stat. § 90-108(a)(7).
¶ 21 On 10 July 2020, the trial court entered its written suppression Order, denying
Defendant’s 25 February 2019 Verified Motion to Suppress and his 12 February 2020
Supplemental Verified Motion to Suppress. The trial court concluded, inter alia, (1)
“the search of [Ms.] Green’s premises was directly related to the purposes of her
[probation] supervision”; (2) “the probation officers who conducted the warrantless
search on August 15, 2018 reasonably believed that [Defendant’s Home] was [Ms.]
Green’s premises”; (3) “the probation officers’ viewing of [evidence, including digital
scales, marijuana, baggies, and a large gun safe in Defendant’s basement] was proper,
and was not a violation of Defendant’s statutory or constitutional rights”; and (4) the
application of the search warrant complied with the applicable statutory and
constitutional requirements and “was adequately supported by probable cause.”
¶ 22 On 2 February 2021, Defendant pled guilty to the charges of trafficking in
opium or heroin and trafficking in marijuana pursuant to a plea agreement, and the
State dismissed the remaining charge. On 8 February 2021, Defendant filed written
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notice of appeal. We note Defendant expressly reserved his right to appeal from the
Order in the plea agreement. See State v. Pimental, 153 N.C. App. 69, 74, 568 S.E.2d
867, 870 (2002) (explaining N.C. Gen. Stat. § 15A-979(b) requires a defendant to
notify the State and the trial court during plea negotiations of his or her intention to
appeal from an order denying a motion to suppress to avoid waiving the right to
appeal following a guilty plea), overruled on other grounds by, State v. Killete, 2022-
NCSC-80, ¶ 16.
II. Jurisdiction
¶ 23 Defendant contends “Judge Coward’s order denying [his] Verified Motion to
Dismiss and Supplemental Verified Motion to Dismiss is appealable to the Court of
Appeals pursuant to N.C. Gen. Stat. § 15A-979(b).” We acknowledge Defendant’s
reference to motions to dismiss in the Statement of Grounds for Appellate Review
section of his brief is a typographical error. Instead, Defendant’s appeal concerns his
Verified Motion to Suppress and Supplemental Verified Motion to Suppress. We
agree this Court has jurisdiction to address Defendant’s appeal from the Order
pursuant to N.C. Gen. Stat. § 15A-979(b) (2021).
III. Issues
¶ 24 The issues before this Court are whether the trial court erred in concluding:
(1) a probation officer’s belief as to the location of probationer Ms. Green’s premises
was reasonable, thereby supporting the officers’ authority to conduct a warrantless
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search of Defendant’s Home under N.C. Gen. Stat. § 15A-1343(b)(13); (2) the search
warrant was issued on a sufficient showing of probable cause where the officer did
not include information about Ms. Green’s credibility as an informant or the source
of her information; and (3) the warrantless search of Ms. Green’s premises was
directly related to the purposes of her supervision, as required by N.C. Gen. Stat. §
15A-1343(b)(13).
IV. Standard of Review
¶ 25 Our Court’s review of a trial court’s denial of a motion to suppress “is strictly
limited to determining whether the trial judge’s underlying findings of fact are
supported by competent evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the judge’s ultimate
conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
Unchallenged findings of fact “are deemed to be supported by competent evidence and
are binding on appeal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)
(citation omitted). “Conclusions of law are reviewed de novo and are subject to full
review.” Id. at 168, 712 S.E.2d at 878 (citation omitted and emphasis added).
¶ 26 At a hearing on a motion to suppress, “the burden is upon the [S]tate to
demonstrate the admissibility of the challenged evidence[.]” State v. Powell, 253 N.C.
App. 590, 595, 800 S.E.2d 745, 749 (2017) (quoting State v. Cheek, 307 N.C. 552, 557,
229 S.E.2d 633, 636 (1983)).
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V. Analysis
¶ 27 Defendant’s principal argument on appeal is the trial court erred in denying
his motion to suppress. The State contends Defendant gave implied consent to the
search of his home, the search warrant was based on probable cause, and the search
was directly related to the supervision of Ms. Green’s probation; therefore, we should
affirm the Order. After careful review, we agree with the State.
A. Reasonable Basis to Conduct Probationary Search of Defendant’s Home
¶ 28 Defendant challenges the portion of conclusion of law 9, which states, “the
probation officers had a reasonable belief that [Defendant’s Home] was [Ms.] Green’s
premises,” as not supported by findings of fact. He also challenges finding of fact 2,
which similarly states this conclusion. Because we conclude finding of fact 2 is a
conclusion of law, we review it as such, concurrently with conclusion of law 9. See
State v. Campola, 258 N.C. App. 292, 298, 812 S.E.2d 681, 687 (2018) (“If the trial
court labels as a finding of fact what is in substance a conclusion of law, we review
that ‘finding’ de novo.”).
¶ 29 The Fourth Amendment to the United States Constitution, made applicable to
the states through the Due Process Clause of the Fourteenth Amendment, protects
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures . . . .” U.S. Const. amend. IV; see State
v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997).
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¶ 30 “Consent . . . has long been recognized as a special situation excepted from the
warrant requirement, and a search is not unreasonable within the meaning of the
Fourth Amendment when lawful consent to the search is given.” Smith, 346 N.C. at
798, 488 S.E.2d at 213. “The question whether consent to a search was in fact
‘voluntary’ or was the product of duress or coercion, expressed or implied, is a
question of fact to be determined from the totality of all the circumstances.” State v.
Motley, 153 N.C. App. 701, 707, 571 S.E.2d 269, 273 (2002) (citation omitted). “The
standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness—what would the typical reasonable
person have understood by the exchange between the officer and the suspect?” State
v. Stone, 362 N.C. 50, 53, 653 S.E.2d 414, 417 (2007) (quoting Florida v. Jimeno, 500
U.S. 248, 251, 111 S. Ct. 1801, 1803–04, 114 L. Ed. 2d 297, 302 (1991)).
¶ 31 A warrantless search pursuant to a probation condition has also been found to
satisfy the Fourth Amendment prohibition against unreasonable searches. United
States v. Knights, 534 U.S. 112, 121, 122 S. Ct. 587, 592, 151 L. Ed. 2d 497, 506 (2001).
“Just as other punishments for criminal convictions curtail an offender’s freedoms, a
court granting probation may impose reasonable conditions that deprive the offender
of some freedoms enjoyed by law-abiding citizens.” State v. Robinson, 148 N.C. App.
422, 428, 560 S.E.2d 154, 158 (2002) (quoting Knights, 534 U.S. at 119, 122 S. Ct. at
591, 151 L. Ed. 2d at 505).
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¶ 32 In North Carolina, a court may grant the condition of warrantless searches of
a probationer. NC. Gen. Stat. § 15A-1343(b)(13) (2021); see United States v. Midgette,
478 F.3d 616, 624 (4th Cir. 2007) (discussing how North Carolina has “narrowly
tailored” the authorization of warrantless searches under N.C. Gen. Stat. § 15A-1343
to meet the State’s needs of supervising probation “to promote [probationers’]
rehabilitation and protect the public’s safety”), writ denied, 551 U.S. 1157, 127 S. Ct.
3032, 168 L. Ed. 2d 749. Under the statute, a probationer must “[s]ubmit at
reasonable times to warrantless searches by a probation officer of the probationer’s
person and of the probationer’s vehicle and premises while the probationer is present,
for purposes directly related to the probation supervision,” as a regular condition of
probation. N.C. Gen. Stat. § 15A-1343(b)(13).
¶ 33 In his first argument, Defendant does not challenge the constitutionality of
N.C. Gen. Stat. § 15A-1343, nor does he contest that the warrantless search was made
at a reasonable time or that Ms. Green was present for the search. Rather, he argues
the probation officer’s belief that his Home was Ms. Green’s “premises” was
unreasonable. Defendant provides three reasons as support for this argument. We
consider in turn each of Defendant’s arguments as to this conclusion of law.
¶ 34 First, Defendant argues “the facts and circumstances available to [Officer]
Kinsland as of 15 August 2018 included notice that Ms. Green likely moved out of
[his Home] because [Officer] Kinsland had formed that opinion as of 24 July 2018.”
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We disagree.
¶ 35 While it is true the trial court found as fact that “[Officer] Kinsland concluded,
from her conversation with Defendant on July 24, 2018 and from seeing the bags on
the porch, that [Ms.] Green and Defendant had ‘parted ways,’” the trial court also
found as fact: (1) Officer Kinsland saw Ms. Green in Defendant’s front yard five days
later, on 29 July 2018, during a home contact; (2) Ms. Green told Officer Kinsland
during this 29 July 2018 visit that she and Defendant “were doing a lot better and
were trying to work things out”; and (3) Ms. Green again verified her address as the
Home on 6 August 2018. Based on the events subsequent to 24 July 2018, Officer
Kinsland could reasonably conclude Ms. Green and Defendant had reconciled since
24 July 2018, and the couple continued to cohabitate in late July 2018.
¶ 36 Second, Defendant argues Officer Kinsland failed to verify Ms. Green moved
back in with Defendant before 15 August 2018 by speaking with Defendant, observing
Ms. Green’s daughter in the house, verifying Ms. Green had a key to the house, or
entering the house. We disagree and conclude such actions were not necessary for
Officer Kinsland to form a reasonable belief that Defendant’s Home was Ms. Green’s
premises.
¶ 37 Officer Kinsland not only confirmed with Ms. Green that she was living in
Defendant’s Home at least three times between 24 July 2018 and 15 August 2018,
but Officer Kinsland performed a home contact on 29 July 2018 where Officer
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Kinsland found Ms. Green standing in the front yard of the Home. Additionally, Ms.
Green told Officer Kinsland on a least two occasions she made up with Defendant.
Therefore, it was reasonable for Officer Kinsland to conclude Defendant’s Home was
Ms. Green’s premises on 15 August 2018.
¶ 38 Third, Defendant argues it was unreasonable for Officer Kinsland to rely on
Ms. Green’s assertion of her home address because “Ms. Green had proven to be
untruthful and uncredible.” We disagree.
¶ 39 Here, unchallenged findings of fact 9, 11, 18(a)-(f), 18(h)-(j), 18(l)-(m), 18(r),
18(t), 18(v)-(x), 18(z), 19, 33, 35, 38, and 42 demonstrate that before 15 August 2018,
Ms. Green verified to her probation officer that her premises was Defendant’s Home
on at least nine occasions; Ms. Green had never provided an address to her probation
officer other than that of the Home from September 2017 to August 2018; Ms. Green
never denied living at the Home; and Ms. Green’s supervising probation officer made
at least one other warrantless search of the Home in the presence of Ms. Green and
Defendant to which Defendant did not object. Moreover, Defendant replied he
“understood” when Officer Kinsland advised him the officers were at his Home to
perform a warrantless search on the evening of 15 August 2018. A reasonable person
having such an exchange with another’s probation officer would have notified the
officer that the probationer no longer resided at the address—if that were true. See
Stone, 362 N.C. at 58, 653 S.E.2d at 417. Based on the totality of the circumstances,
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Defendant’s response to Officer Kinsland indicated his implied consent to the search
of his Home. See Motley, 153 N.C. App. at 707, 571 S.E.2d at 273. Lastly, the above
findings support the conclusion “the probation officers had a reasonable belief that
the [Home] was [Ms.] Green’s premises”; therefore, finding of fact 2 and this portion
of conclusion of law 9 are binding on appeal. See Cooke, 306 N.C. at 134, 291 S.E.2d
at 619.
B. Substantial Basis for Concluding Probable Cause Existed
¶ 40 Next, Defendant challenges conclusion of law 21, which provides “[t]he
affidavit prepared by Detective Breedlove was adequate to establish probable cause
for a search of the Defendant’s residence,” on the basis it is not sufficiently supported
by findings of fact. Likewise, Defendant argues finding of fact 61 is not supported by
competent evidence. The State contends the trial court properly concluded the search
warrant was based on probable cause by considering only the facts in the affidavit
that the trial court found to be “operative and competent,” and excluded the
remaining facts. After careful review, we agree with the State.
¶ 41 “The common-sense, practical question of whether probable cause exists must
be determined by applying a totality of the circumstances test.” State v. Benters, 367
N.C. 660, 664, 766 S.E.2d 593, 597 (2014) (citation omitted). Our Supreme Court
explained that under the totality of the circumstances test,
[t]he task of the issuing magistrate is simply to make a
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practical, common sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is fair
probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing
court is simply to ensure that the magistrate had a
“substantial basis for . . . conclud[ing]” that probable cause
existed.
State v. Arrington, 311 N.C. 633, 638, 319 S.E.2d 254, 257–58 (1984) (citation
omitted).
¶ 42 “The affidavit is sufficient if it supplies reasonable cause to believe that the
proposed search for evidence probably will reveal the presence upon the described
premises of the items sought and that those items will aid in the apprehension or
conviction of the offender.” Id. at 636, 319 S.E.2d at 256 (citation omitted).
“Reviewing courts should give great deference to the magistrate’s determination of
probable cause and should not conduct a de novo review of the evidence to determine
whether probable cause existed at time the warrant was issued.” State v. Greene, 324
N.C. 1, 9, 376 S.E.2d 430, 436 (1989) (emphasis added and citations omitted), vacated
on other grounds by, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990).
¶ 43 In State v. Stinson, our Court considered the issue of whether the inclusion of
an informant’s tip without a proper basis invalidated a search warrant affidavit
where the affiant also included substantial personal observations. 39 N.C. App. 313,
249 S.E.2d 891, disc. rev. denied, 296 N.C. 739, 254 S.E.2d 180 (1979). We reasoned
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it was not necessary to consider the reliability of the informant or understand where
the informant obtained the information when it was clear “the affiant did not rely
heavily on th[e] hearsay information, and the magistrate’s finding of probable cause
could not have been based primarily on the hearsay.” Id. at 318, 249 S.E.2d at 894.
“Where the affiant relies heavily on an informant’s tip[,] the two-prong test of Aguilar
v. Texas, 378 U.S. 108, [84 S. Ct. 1509], 12 L. Ed. 2d 723 (1964) and Spinelli v. United
States, 393 U.S. 410, [89 S. Ct. 584], 21 L. Ed. 2d 637 (1969), must be met.” Id. at
317, 249 S.E.2d at 893–94; see Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317,
2332, 76 L. Ed. 2d 527, 548 (replacing the two-prong test of Aguilar and Spinelli with
the totality of the circumstances test). We vacated and remanded the order
suppressing evidence, concluding the personal observations described in the search
warrant affidavit provided the magistrate with sufficient facts and circumstances to
establish probable cause. Stinson, 39 N.C. App. at 319, 249 S.E.2d at 894–95.
¶ 44 In the case sub judice, we conclude the affiant, Detective Breedlove, did not
“rely heavily” on Ms. Green’s statements, and the trial court properly considered
Detective Breedlove’s personal observations in concluding probable cause existed.
See id. at 318, 249 S.E.2d at 894.
¶ 45 Here, the affiant, Detective Breedlove, described his approximate fourteen
years in law enforcement, including his education, training, and experience.
Detective Breedlove swore to have experience in investigating the distribution of
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prescription medication, the manufacture of marijuana, and drug trafficking. He also
swore to have “considerable training and experience in relation to the possession, sale
and distribution of controlled substances in and around the Macon County and
Western North Carolina area.”
¶ 46 The affidavit described Detective Breedlove taking a call from Officer Sutton
who told him that Ms. Green made a voluntary statement to Officer Sutton that she
was in possession of a large amount of opioids and $1,000.00 in cash. Although the
information from Officer Sutton was hearsay, a magistrate could have reasonably
found Officer Sutton to be a credible source who obtained the knowledge regarding
Ms. Green from her direct observations. See Arrington, 311 N.C. at 638, 319 S.E.2d
at 257–58.
¶ 47 The affidavit indicated Detective Breedlove met with the probation officers and
Ms. Green where they recovered a bag of pills, identified as “oxycodone hydrochloride
30 mg tablets.” Detective Breedlove accompanied the probation officers to Ms.
Green’s residence where they conducted a warrantless search and found a plastic bag
“containing green vegetable like matter in a dresser.” In a downstairs room, the
officers found in plain view a gun safe, “scales with marijuana,” and firearms.
Thereafter, the officers confirmed Defendant was “a convicted felon out of Florida.”
¶ 48 Finally, the affidavit stated the probation officers “gained information from
[Ms.] Green that she has known of large amounts of marijuana in the [H]ome,” she
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“believes that . . . drugs are in the [H]ome currently,” and that Defendant is a
convicted felon. We note, however, the affidavit does not consider the reliability of
Ms. Green or the grounds upon which she formed her belief that drugs could be found
in the Home on 15 August 2018. See Arrington, 311 N.C. at 638, 319 S.E.2d at 257–
58; see also State v. Crawford, 104 N.C. App. 591, 596, 410 S.E.2d 499, 501 (1991) (“If
the affidavit is based on hearsay information, then it must contain the circumstances
underlying the informer’s reliability and the basis for the informer’s belief that a
search will uncover the objects sought by the police.”).
¶ 49 Notwithstanding the inclusion of informant information lacking a proper basis,
the affidavit demonstrates Detective Breedlove did not “rely heavily” on the hearsay
information provided by Ms. Green; thus, we need not consider the propriety of these
statements. See Stinson, 39 N.C. App. at 317, 249 S.E.2d at 893–94. Rather,
Detective Breedlove details the personal observations he made as well as the direct
observations of Officer Sutton, which prompted her call to Detective Breedlove. These
observations provided the magistrate with a substantial basis for finding the
existence of probable cause. See Stinson, 39 N.C. App. at 317, 249 S.E.2d at 893;
Arrington, 311 N.C. at 638, 319 S.E.2d at 257–58.
¶ 50 Further, the trial court, which was charged with the duty of evaluating the
facts and applying the appropriate legal standards, properly disregarded the
information gained from Ms. Green’s hearsay statements. See State v. McKinney, 361
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N.C. 53, 63, 637 S.E.2d 868, 875 (2006) (considering the trial court’s legal and factual
basis for denying the defendant’s motion to suppress where the search warrant
affidavit included tainted information). In its Order, the trial court made the
following pertinent findings of fact:
59. Although the application for the search warrant
contains a lot of other information, on its face, the operative
and competent facts are (paraphrased):
a. That in the course of a warrantless probation
search of the residence of [Ms.] Green, marijuana
had been found in an upstairs bedroom before there
([the Home]).
b. That in the course of the warrantless probation
search, probation officers had opened an interior
door that allowed access to the downstairs area of
the home, and downstairs they had seen “digital
scales with marijuana” on a bed in the basement.
c. That probation officers had seen a large gun safe
in the basement.
d. That the owner of the house is a convicted felon.
e. That individuals in the driveway of the residence
admitted to possession of marijuana in the truck
parked with them in the driveway.
60. The operative and competent facts stated above are
based in part on what was told to Detective Breedlove by
probation officers.
61. The operative and competent facts stated above do not
include, and are not based upon, statements by [Ms.] Green
as to what she believed to be in the house, because she did
not state how she came to know such information and her
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credibility is highly questionable.
¶ 51 The trial court then made the following pertinent conclusions of law:
21. The affidavit prepared by Defendant Breedlove was
adequate to establish probable cause for a search of
Defendant’s residence.
....
23. It was acceptable for Detective Breedlove to base his
affidavit on statements by fellow probation officers as to
what they personally saw in plain view.
24. The court concludes that the application for the search
warrant in this matter complied with the requirements of
[N.C. Gen. Stat. §] 15A-244, the Fourth Amendment of the
United States Constitution, Article I, Section 20 of the
North Carolina Constitution, and related case law, and
that the search warrant was adequately supported by
probable cause.
(Citations omitted).
¶ 52 These findings and conclusions tend to show the trial court considered the facts
and circumstances set forth in the affidavit, and properly determined the weight to
be given to Ms. Green’s statements. See Arrington, 311 N.C. at 638, 319 S.E.2d at
257–58. In finding of fact 61, the trial court identified Ms. Green’s statements as
hearsay, found Ms. Green’s credibility “highly questionable,” and found Ms. Green
did not provide the source of her information. The officers’ testimonies regarding Ms.
Green and the search warrant affidavit support finding of fact 61. See Cooke, 306
N.C. at 134, 291 S.E.2d at 619.
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¶ 53 Finding of fact 59 outlines the “operative and competent facts” considered by
the trial court, which provided probable cause to believe criminal activity was afoot
in the Home. See Arlington, 311 N.C. at 636, 319 S.E.2d at 256. Moreover, finding
of fact 59 is not challenged on appeal; thus, it is “deemed to be supported by competent
evidence and [is] binding on appeal.” See Biber, 365 N.C. at 168, 712 S.E.2d at 878.
Therefore, the trial court did not err in concluding Detective Breedlove’s personal
observations set out in the search warrant affidavit were sufficient to establish
probable cause for a search of the Home. See Arrington, 311 N.C. at 638, 319 S.E.2d
at 257–58; Stinson, 39 N.C. App. at 318, 249 S.E.2d at 894.
C. Warrantless Search Directly Related to Probation Supervision
¶ 54 Finally, Defendant argues the trial court erred in concluding the warrantless
search of his Home was “directly related” to the purposes of Ms. Green’s probation
supervision, as mandated by N.C. Gen. Stat. § 15A-1343(b)(13). Relying on State v.
Powell, 253 N.C. App. 590, 800 S.E.2d 745 (2017), Defendant further argues the
search was unlawful because the officers’ testimonies revealed their “warrantless
search included a purpose of investigating potential criminal conduct from which new
charges against Ms. Green could be derived.” (Emphasis added). The State argues
the warrantless search was directly related to Ms. Green’s probation supervision
because ascertaining whether and to what extent Ms. Green was not in compliance
with the terms and conditions of her probation were the duties of the supervising
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probation officer. We agree with the State.
¶ 55 Under N.C. Gen. Stat. § 15A-1343, a probation officer may search a
probationer’s premises as a regular condition of probation when the probationer is
present and “for purposes directly related to the probation supervision . . . .” N.C. Gen.
Stat. § 15A-1343(b)(13) (emphasis added). In Powell, this Court interpreted the
General Assembly’s 2009 amendment to N.C. Gen. Stat. § 15A-1343(b)(13), changing
the phrase “for purposes reasonably related to the probation supervision” to “for
purposes directly related to the probation supervision . . . .” Powell, 253 N.C. App. at
599–00, 800 S.E.2d at 751 (emphasis added) (“The word “directly” has been defined
as “in unmistakable terms.”). The Powell Court explained that this amendment
demonstrated the General Assembly’s intent “to impose a higher burden on the State
in attempting to justify a warrantless search of a probationer’s home than that
existing under the former language of this statutory provision.” Id. at 600, 800 S.E.2d
at 751 (emphasis removed).
¶ 56 In Powell, the defendant argued the trial court erred in denying his motion to
suppress evidence obtained in a warrantless search of his home. Id. at 593, 800
S.E.2d at 748. Specifically, he argued the warrantless search was not “directly
related” to the supervision of his probation, as required by N.C. Gen. Stat. § 15A-1343
(b)(13). Id. at 591, 800 S.E.2d at 746–47. This Court concluded the search was
unlawful because the State failed to meet its burden of showing the warrantless
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search complied with N.C. Gen. Stat. § 15A-1343(b)(13). Id. at 605, 800 S.E.2d at
754. To reach that conclusion, we carefully considered the testimonies of the officers
who searched the defendant’s home since this was the evidence upon which the State
relied to argue the search was valid. Id. at 595, 800 S.E.2d at 749. The testimony
revealed the search of the defendant’s home was initiated by a United States
Marshal’s Service task force as part of an ongoing operation “targeting violent
offenses involving firearms and drugs.” Id. at 604, 800 S.E.2d at 753 (emphasis
removed). The record did not show the “[d]efendant’s own probation officer was even
notified—much less consulted—regarding the search of [the d]efendant’s home.” Id.
at 604 n.3, 800 S.E.2d at 753 n.3. Additionally, the officers were not aware of the
defendant engaging in any illegal activity prior to or at the time of the search. Id. at
597, 800 S.E.2d at 750. Importantly, the testimony failed to show the search was
“directly related” to the supervision of the defendant’s probation. Id. at 605, 800
S.E.2d at 754. Thus, the warrantless search was investigatory in nature rather than
“supervisory” and was therefore unlawful. Id. at 604–05, 800 S.E.2d at 754.
¶ 57 In this case, the record evidence and testimony at the suppression hearing
show Ms. Green was placed on supervised probation for eighteen months in
September 2017, pursuant to a judgment entered by the Macon County District
Court. In December 2017, the Macon County Superior Court entered a judgment
against Ms. Green for the conditional discharge of felony drug possession charges,
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pursuant to N.C. Gen. Stat. § 90-96(a1). The conditional discharge included twelve
months of supervised probation under regular probation conditions as well as special
conditions, including Ms. Green enroll in a “drug education school.” On 15 August
2018, Ms. Green tested positive for cocaine, THC, and opiates—violating an express
regular condition of her probation: to “[n]ot use, possess, or control any illegal drug
or controlled substance . . . .” See N.C. Gen. Stat. § 15A-1343(b)(15) (2021). According
to Officer Kinsland, Ms. Green was acting nervously and tested positive for cocaine
for the first time while under Officer Kinsland’s probation supervision. During the
search of Ms. Green’s vehicle, a bag of oxycodone pills was found on her person, which
led Officer Kinsland to search Ms. Green’s premises.
¶ 58 The facts of the instant case are readily distinguishable from Powell because
here, Ms. Green’s probation officer prompted the search in direct response to Ms.
Green’s actions, which not only violated her probation conditions but were also
unlawful. Conversely, in Powell, a distinct law enforcement agency task force
initiated the search, using “a random selection of offenders,” to further its own goals.
Powell, 253 N.C. App. at 592, 597, 800 S.E.2d at 747, 750; see also State v. Jones, 267
N.C. App. 615, 625–26, 834 S.E.2d 160, 167–68 (2019) (distinguishing the facts of the
case from State v. Powell partly because the search in Powell was conducted by a
separate law enforcement agency serving its own purpose). Furthermore, Officer
Kinsland had reason to believe Ms. Green was engaging in illegal activity and
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
violating the conditions of her probation following her positive drug screen and
vehicle search. These events caused Officer Kinsland to expand the scope of her
search to Ms. Green’s premises to determine the nature and extent of Ms. Green’s
probation violations.
¶ 59 In reviewing the testimony of the officers, Detective Breedlove testified he was
present at the search of the Home to both “investigate new criminal behavior” and
“to assist probation.” He did not actually take part in the search of the Home or enter
the residence until contraband was found. Although the search may have served two
purposes, (1) to further the supervisory goals of probation, and (2) to investigate other
potential criminal behavior, we conclude the dual purpose of the search did not make
the search unlawful under N.C. Gen. Stat. § 1343(b)(13).
¶ 60 When asked on cross examination if she had training as to the meaning of
“directly related to the probation supervision,” Officer Sutton testified:
Well, yes. And that would be, like you said, [Ms. Green]
was on probation for larcenies and for forgery. It is well
established early that she had drug addiction, which that
addiction could have been related to these larcenies, could
have been related to these forgeries.
So when [Ms. Green] presented a problem with the drug
addiction, she was referred to treatment, and we made
proper steps. Then on the day in question, the 15th of
August when she came in and she not only failed her drug
screen, but she possessed an illegal substance on her at
that time, to me that just opened the door on into the
residence.
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
¶ 61 Officer Kinsland testified it is common for probation officers to request law
enforcement assistance when drugs are found or when there is evidence of a crime
because probation officers cannot bring charges—they can only enter probation
violations, which are later approved by the chief probation officer and served on the
probationer. Officer Kinsland, Ms. Green’s supervising probation officer, led the
search of the Home although other officers, including Detective Breedlove and Officer
Sutton, were present at the Home. Officer Kinsland testified on cross examination
that she and the other officers “just upped the search” to Ms. Green’s premises
following the positive drug screen and the search of Ms. Green’s vehicle, where “a
trafficking amount” of opiate pills was found.
¶ 62 Further, we note Detective Breedlove’s and the deputies’ presence at the scene
of the warrantless search of the premises did not invalidate the search under N.C.
Gen. Stat. § 1343(b)(13). See State v. Howell, 51 N.C. App. 507, 509, 277 S.E.2d 112,
114 (1981) (rejecting the defendant’s argument that the presence of police officers to
help with the warrantless search pursuant to N.C. Gen. Stat. § 1343(b) made the
search unreasonable).
¶ 63 Lastly, Defendant does not challenge finding of fact 33, which states Officer
Kinsland’s purpose in performing the warrantless search of Ms. Green’s premises was
to “determin[e] if [Ms.] Green was trafficking in controlled substances, with the goal
of minimizing recidivism and helping her successfully complete her probation . . . .”
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
The trial court also made findings, not challenged on appeal, regarding the events
that led to the officers’ decision to search her premises, including the positive drug
screen and vehicle search incident, which are not challenged on appeal. Therefore,
these findings “are deemed to be supported by competent evidence and are binding
on appeal.” See Biber, 365 N.C. at 168, 712 S.E.2d at 878. The findings in turn
support the trial court’s conclusion “that the search of [Ms. Green’s] premises was
directly related to the purposes of her supervision.” Id. at 168, 712 S.E.2d at 878.
¶ 64 Therefore, the trial court did not err in concluding the warrantless search of
Ms. Green’s premises was “directly related” to her probation supervision under
Officer Kinsland. See N.C. Gen. Stat. § 1343(b)(13); see also Powell, 253 N.C. App. at
595, 800 S.E.2d at 749.
VI. Conclusion
¶ 65 We hold the trial court did not err in concluding the warrantless search of the
Home was authorized by N.C. Gen. Stat. § 1343(b)(13) because the State met its
burden of showing that the Home was Ms. Green’s premises and that the search was
directly related to Ms. Green’s probation supervision. In addition, we hold the trial
court did not err in concluding the affidavit prepared by Detective Breedlove was
adequate to establish probable cause for a search of Defendant’s Home. Accordingly,
we affirm the Order.
AFFIRMED.
STATE V. LUCAS
2022-NCCOA-714
Opinion of the Court
Judges MURPHY and JACKSON concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482248/ | Fourth Court of Appeals
San Antonio, Texas
November 2, 2022
No. 04-22-00572-CV
FRITZ MANAGEMENT, LLC, Fries Restaurant Management, LLC, and Sun Holdings, Inc.,
Appellants
v.
ALFORTISH CONTRACTORS, LLC,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2020CI07323
Honorable Rosie Alvarado, Judge Presiding
ORDER
On October 27, 2022, appellants filed a motion requesting an extension of time to file the
appellants’ brief. The motion is GRANTED. The appellants’ brief is due on or before
November 16, 2022.
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350139/ | Filed 12/23/22 P. v. Williams CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094467
Plaintiff and Respondent, (Super. Ct. No. 20FE007516)
v.
RONALD WILLIAMS,
Defendant and Appellant.
A jury found defendant Ronald Williams guilty of two counts of committing a
lewd and lascivious act on K.D., a child under 14, and the trial court sentenced him to
21 years in state prison. Defendant contends the trial court erred by admitting evidence
of prior uncharged sexual offenses against three minors under Evidence Code section
1108,1 and in excluding proffered defense evidence that he claimed undermined the
1 Further undesignated statutory references are to the Evidence Code.
1
credibility of K.D. and the investigating detective, namely: that K.D. had also accused
her cousin of sexually assaulting her, which the cousin denied, and that law
enforcement’s investigation of the cousin, who had never been charged, was inadequate.
He claims the errors were individually and cumulatively prejudicial, violating his federal
and state constitutional rights to due process and a fair trial.
Finding no merit to his contentions, we affirm.
FACTS AND PROCEEDINGS
A. Charges
Defendant was charged with committing two counts of lewd and lascivious acts
against his minor niece, K.D. (Pen. Code, § 288, subd. (a); count one [licking area near
her ear] & count two [hand to thigh]), who was between the ages of 8 and 10 at the time.
It was further alleged that defendant had a prior strike (Pen. Code, §§ 667, subds. (b)-(i),
1170.12), and a prior serious felony conviction (Pen. Code, § 667, subd. (a)).
B. Motions in Limine
Prior to trial, the prosecutor moved in limine to introduce five prior instances of
sexual misconduct under section 1108. These included: (1) a 1977 sexual assault of
eight-year-old Kimberly B. who alleged that defendant attacked her and tried to force her
to orally copulate him (defendant was acquitted of the charges); (2) a 1982 rape and
sodomy of the mother of defendant’s former girlfriend for which defendant was
convicted of first degree burglary and rape by force or fear and sentenced to 13 years in
state prison; (3) a 1995 incident with 12-year-old Melissa C., who reported that defendant
had repeatedly tried to entice her to have sex, asked to see her vagina and open her legs,
and masturbated in front of her; (4) a 1995 incident with 10-year-old Briana M. who
reported that defendant masturbated in front of her and also asked her to open her legs;
and (5) prior incidents involving defendant’s minor niece, Paige A., who alleged
defendant made inappropriate sexual comments to her, put his hand on her thigh and
2
moaned, tried to get her to sit on his lap, and walked around the house in his underwear
with his penis visible.
Defendant moved to exclude the section 1108 evidence, arguing it was irrelevant
and that its probative value did not outweigh its prejudice.
In ruling on the competing motions, the court set forth the applicable standards
under section 1108 and section 352, and, after weighing the relevant factors, admitted
three of the five prior incidents under section 1108--those involving Melissa, Briana, and
Paige. The court found the 1977 Kimberly B. acquittal and the 1982 rape conviction
inadmissible as more prejudicial than probative under section 352.
The parties also filed respective motions in limine regarding the admissibility of
evidence that K.D. claimed another family member had sexually abused her. Defendant
sought to introduce evidence that when making her allegations against defendant, K.D.
also had accused a teenage cousin of forcing her to orally copulate him multiple times
around the same time period, and that because she was inconsistent as to when that
alleged misconduct happened, and the cousin subsequently denied the accusations, that
K.D.’s allegations against the cousin were false, which would undermine her credibility
at trial. Defendant also sought to admit evidence to show law enforcement did not
adequately investigate the cousin because the cousin had never been charged, and the
detective failed to locate the cousin during his investigation even though the defense
easily contacted him after the fact. The People moved to exclude any reference to the
fact that K.D. also claimed to have been sexually abused by her cousin.
The court ruled that, under section 1103, evidence that K.D. previously had falsely
accused someone of sexually assaulting her could be relevant to impeach her credibility.
However, after considering the probative value of the proffered evidence against its
prejudicial effect under section 352, including the undue consumption of time needed to
prove whether K.D.’s allegations against her cousin were actually false and potential
3
confusion of the issues, the court ruled both lines of evidence inadmissible as more
prejudicial than probative.
C. Trial
At trial, 16-year-old K.D.2 testified that defendant was her great-uncle. When she
was younger, K.D. lived at her great-aunt Bonnie W.’s house with Bonnie, K.D.’s mother
Gloria W., and K.D.’s great-grandmother. K.D. and her mother shared an upstairs
bedroom in the two-story home. At some point between 2012 and 2015, when K.D. was
between 8 and 10 years old, defendant, whom K.D. referred to as “Uncle Ronnie,” also
moved into Bonnie’s house.3
Sometimes when K.D. was alone with defendant at the house, he would try to get
her to sit on his lap, and he would show her pictures of women in lingerie on his phone.
K.D. did not disclose defendant’s conduct even though it made her uncomfortable.
While she was uncertain as to precise dates, K.D. testified that one night sometime
between 2012 and 2015, K.D. stayed home with her great-grandmother and defendant
while her mother and Bonnie left to play bingo. K.D. was alone in her bedroom, lying on
her side on the bed watching television. She was wearing a tank top, underwear, and
pajama pants.
Defendant came into K.D.’s room and lay down behind her on the bed, “spooning”
her with his body, and wrapping his arm around her waist. Defendant did not say
anything to her, but licked her right ear and rubbed his hand on the inside of her thigh
towards her vagina. K.D. froze with fear.
Defendant tried to pull K.D.’s pants down. K.D. cried and told defendant to stop
as she tried to pull her pants back up. Defendant pulled K.D.’s pants around her knees as
2 K.D. was born in 2004.
3 Defendant is the brother of great-aunt Bonnie and Gloria’s father.
4
she kicked him and repeatedly told him to stop. As defendant tried to pull her pants all
the way down while she struggled to keep them up, defendant angrily told K.D. to “stop
kicking.” At that point, K.D. thought defendant was going to rape her. K.D. continued to
resist, and, after landing one of her kicks on defendant, he gave up and left the room.
K.D. immediately locked her bedroom door.
K.D. cried herself to sleep. She did not tell her mother what defendant had done
when her mother returned from playing bingo. She was afraid to tell her mother because
she thought her mother would not believe her.
About a year later, K.D. told her cousin Paige, who was about three years older
than K.D., what defendant had done that night. Paige encouraged K.D. to tell her mother.
That same day, K.D. told her mother what happened with defendant, but she thought her
mother might not have believed her. K.D. did not believe her mother ever contacted law
enforcement after her disclosure.
Several years later, in July 2019, 14-year-old K.D. was with her aunt Jackie (on
her father’s side) and got in trouble for having inappropriate anime photos on her cell
phone. In an attempt to get out of trouble, K.D. disclosed to Jackie what defendant had
done to her years earlier. Jackie told K.D.’s mother that K.D. should report defendant to
law enforcement, and K.D.’s mother called police.
K.D. spoke with law enforcement at her apartment in July 2019. Although she
testified that she told the responding officers the truth about what happened with
defendant, she acknowledged that she did not tell the officers that defendant had lain
behind her or spooned her. She also admitted that she had told the officers that defendant
never touched her when he tried to pull her pants down.
About a week later, Sacramento Police Department Detective Terrence Mercadal
interviewed K.D. at the police station. She told him that defendant’s behavior towards
her when she was 8 to 10 years old was sexual in nature. She also said that sometimes
her cousin S.H., who was about the same age as K.D., was around when defendant
5
showed her inappropriate photos on his phone, although K.D. never said that defendant
also showed the pictures to S.H. or otherwise discussed the pictures with her.
During cross-examination, K.D. conceded that she told the responding officers
that defendant had shown her naked pictures of women, but later told Detective Mercadal
that the women were in lingerie. K.D. explained that she remembered more details by the
time Detective Mercadal interviewed her. K.D. also conceded that she told law
enforcement that her cousin Paige was known to be a liar when she was younger, but said
that she was simply repeating something her mother told her and that her statement was
not based on any personal experience with Paige. K.D. was unsure whether defendant
moved out of great-aunt Bonnie’s house first, or whether she and her mother moved out
before him.
Paige, who was 19 years old at trial, testified that when she was approximately 11
or 12 years old, she would visit Bonnie’s house where her cousin K.D. and defendant
both lived at the time. One day, K.D. disclosed to Paige that defendant had done
something inappropriate to her. K.D. said that defendant had touched her, but she would
not tell Paige any details of what happened, and she did not want Paige to tell anyone. A
short time later, Paige told K.D.’s mother. K.D.’s mother cried and seemed to take her
seriously.
Afterwards, Paige felt awkward at Bonnie’s house and stopped visiting. Paige
moved out of state about a year later, and did not keep in contact with K.D. or that side of
her family, including defendant. In 2019, K.D.’s mother called Paige to alert her that a
detective might contact her to discuss the incident between defendant and K.D.
Paige told Detective Mercadal that she herself felt uneasy around defendant when
she used to visit Bonnie’s house. According to Paige, defendant would sit next to her
when no other adults were around and put his hand on her upper thigh and moan, causing
her to get up and move away from him. She saw defendant try to get K.D. to sit on his
lap as well, and while it made Paige uncomfortable, she was unsure at the time how K.D.
6
felt about his attempts. However, Paige felt like K.D. always wanted her to be around
whenever defendant was present and K.D. did not want Paige to leave her alone with
defendant. She got the impression that K.D. was trying to avoid defendant.
Several times, defendant slowly walked around the house in his underwear with
the outline of his penis visible, and, on four or five occasions, he tried to get Paige to sit
on his lap when he was outside in front of the house. One time, when Paige was in the
kitchen eating noodles that were hot, defendant told her: “Blow on it . . . blowing on
stuff will get you further in life.” She did not tell anyone about defendant’s conduct
towards her even though it made her very uncomfortable because she did not like to
discuss it.
On cross-examination, Paige conceded that she had told Detective Mercadal that
she had never witnessed any inappropriate behavior between defendant and K.D. She
also acknowledged that she never told her mother any of the details regarding defendant’s
behavior that made her uncomfortable.
K.D.’s mother, Gloria, testified that she and K.D. moved in with her aunt Bonnie
when K.D. was in second grade, and they lived there for about four years. Defendant
moved into the house while they lived there.
According to Gloria, K.D. told her something happened with defendant one night
when Gloria returned home from playing bingo, although she did not specify details of
what happened. Gloria later admitted that she was unsure when exactly K.D. told her
something inappropriate had happened. While Gloria believed her daughter, she was
young and scared and did not know what to do. Gloria did not call the police, but
thereafter stayed home with K.D. to ensure her safety.
Gloria testified that in July 2019, after K.D. got in trouble with her aunt Jackie for
having inappropriate images on her phone, K.D. disclosed to Jackie what defendant had
previously done to her several years earlier, and Jackie made K.D. tell Gloria. Gloria
then called the police.
7
Gloria told Detective Mercadal that she was not sure she could believe K.D.
because K.D. had been around Paige, who was “always lying all the time.” Gloria did
not remember if she ever told law enforcement that Paige told her that defendant had
acted inappropriately with both Paige and K.D. She also conceded that she did not tell
the detective that defendant had ever licked K.D.’s ear or touched her thigh.
Detective Mercadal, who worked in the Sex Assault and Child Abuse Unit,
testified that he interviewed K.D. in July 2019, when she was 14 years old, about the
incident with defendant that occurred approximately four to seven years earlier. K.D.
reported that when she was between 8 and 10 years old, defendant had shown her pictures
of women in lingerie two or three times. Sometimes her cousin S.H. was home, although
K.D. did not say that defendant also showed S.H. the pictures. K.D. explained that one
night defendant pulled her pajama pants down in her bedroom and rubbed her thigh
towards her groin area. He also licked her ear.
Detective Mercadal also interviewed Paige. She told him that defendant walked
around Bonnie’s house about five times with his penis “hanging out,” contrary to her trial
testimony that the outline of his penis could be seen through his underwear. Paige also
reported that K.D. was sometimes at home during these episodes, although she did not
say K.D. ever saw defendant in his underwear and K.D. herself never mentioned this
conduct to Detective Mercadal.
Briana M. testified that in July 1995, when she was about 10 or 11 years old, she
lived in the same apartment complex as defendant. One day, she sat outside her
apartment alone and chatted with defendant, who lived in the apartment next door.
Defendant was seated on the ground in his doorway, and she could see his hand moving
inside his pants. Defendant asked her a question that she could not hear so she moved
closer to him. As she got closer, she saw that defendant appeared to be masturbating.
Defendant then asked her to open her legs so he could look at her. She started crying and
8
quickly went back inside her apartment. Briana told her parents what happened, and
reported it to police a few days later.
Melissa C. testified that in June or July 1995, when she was 12 years old, she lived
in the same apartment complex as defendant and Briana. Her apartment was a few doors
down from Briana’s apartment as well as defendant’s apartment. She recalled that one
time she walked past defendant’s window and saw him masturbating through the open
blinds. On the evening of July 3, Melissa was downstairs in a friend’s apartment when
defendant stopped by and said he wanted to meet her upstairs, intimating he wanted to
have sex with her, and that she was “not gonna back out.” He told her he would “make
love” to her. Defendant’s comments made her feel uncomfortable and scared.
The following day, July 4, while in another friend’s apartment, defendant walked
in and sat next to her on the couch. He began touching her upper thigh several times and
speaking quietly to her. He told her that she had nice, muscular thighs, and he tried to get
her to go upstairs with him. Defendant got up and left the apartment, but Melissa did not
follow. He returned a few minutes later, angry and irritated that she had not gone
upstairs, and he again tried to coax her upstairs with him. Later that night, Melissa
encountered defendant near the open door of his apartment where he told her to “[o]pen
your legs,” and “[s]how me your pussy” while he masturbated in front of her. The
incident was reported to police.
Defendant did not testify, but he called two witnesses on his behalf: his niece,
Elizabeth N., and her daughter S.H. Elizabeth was Gloria’s cousin, and Bonnie was
Elizabeth’s mother.
Between 2015 and 2016, Elizabeth and S.H. lived at Bonnie’s house for about
eight or nine months. After defendant was arrested in May 2020, Elizabeth learned from
Bonnie that sometime before she and S.H. moved in, K.D. alleged that defendant had
engaged in inappropriate sexual behavior with her. Elizabeth never saw K.D. trying to
distance herself from defendant. She also did not observe Gloria staying home with K.D.
9
as if she was trying to protect her; rather, she would leave K.D. at home when defendant
was present.
Elizabeth, who was 34 years old, testified that she had known defendant her whole
life, and she did not believe it was in defendant’s character to engage in lewd conduct
with children. She had no concerns about her daughter interacting with defendant.
However, during cross-examination, she acknowledged that she was unaware of the
sexual allegations against defendant involving Briana, Melissa, and Paige.
S.H. testified that she used to be close with her cousin K.D. when they were both
about 10 years old. S.H. did not notice any strange behaviors between K.D. and
defendant, nor did she observe K.D. trying to distance herself from defendant. K.D.
never told S.H. that defendant was inappropriate with her, and defendant was never
inappropriate with S.H. On cross-examination, S.H. acknowledged that she was not
present on the night K.D. alleged defendant accosted her in her bedroom and had no
personal knowledge of the incident. She also conceded that K.D. was not around
defendant that much.
Following the close of evidence, the jury found defendant guilty as charged.
Defendant waived a jury trial on the prior conviction allegations, and in a subsequent
proceeding, the court found the prior serious felony and prior strike allegations true
beyond a reasonable doubt.
The court denied defendant’s Romero4 motion to strike the strike prior, and
sentenced defendant to an aggregate term of 21 years in state prison. The court imposed
the upper term of eight years on count one, doubled to 16 years for the strike prior
conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), a concurrent 16-year term for
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
10
count two (the upper term of eight years doubled for the strike prior), plus five years for
the prior serious felony enhancement (§ 667, subd. (a)). Defendant timely appealed.
DISCUSSION
I
Admission of Uncharged Sexual Offenses Under Section 1108
Defendant contends the trial court abused its discretion by admitting evidence of
uncharged sex offenses against Briana, Melissa, and Paige under section 1108 to prove he
had a propensity to commit the charged sexual offenses against K.D. His argument is
twofold. He first contends section 1108 is unconstitutional. He next argues that even if
the statute is constitutional, the court erred in finding the prior uncharged sexual offenses
more probative than prejudicial under section 352. We reject both contentions.
A. Section 1108
Character or disposition evidence is generally inadmissible under section 1101,
subdivision (a) to prove a defendant’s conduct on a specified occasion. (People v. Leon
(2015) 61 Cal.4th 569, 597; § 1101, subd. (a).) Section 1108 creates an exception to the
general rule in section 1101 that character evidence is not admissible to prove propensity.
(People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta) [“the Legislature enacted
section 1108 to expand the admissibility of disposition or propensity evidence in sex
offense cases”].)
“Subdivision (a) of [section 1108] provides in pertinent part that ‘In a criminal
action in which the defendant is accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by Section
1101, if the evidence is not inadmissible pursuant to Section 352 [permitting court to
exclude evidence on weighing probative value and prejudicial impact].’ ” (Falsetta,
supra, 21 Cal.4th at p. 911.) In enacting section 1108 the Legislature recognized the
“ ‘serious and secretive nature of sex crimes and the often[-]resulting credibility contest
at trial,’ ” and intended in sex offense cases to relax the evidentiary restraints imposed by
11
section 1101 “to assure that the trier of fact would be made aware of the defendant’s
other sex offenses in evaluating the victim’s and the defendant’s credibility.” (Falsetta,
at p. 911; see also People v. Escudero (2010) 183 Cal.App.4th 302, 306 [such evidence is
presumed to be admissible to assist the trier of fact in evaluating the credibility of the
victim and the defendant].)
By its terms, section 1108 requires a trial court to engage in a section 352 analysis
before admitting evidence of prior sex offenses. Under section 352, a “court in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
(§ 352.) The following factors are particularly significant in a section 1108 case: “(1)
whether the propensity evidence has probative value, e.g., whether the uncharged conduct
is similar enough to the charged behavior to tend to show the defendant did in fact
commit the charged offense; (2) whether the propensity evidence is stronger and more
inflammatory than evidence of the defendant’s charged acts; (3) whether the uncharged
conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or
distract the jurors from their main inquiry, e.g., whether the jury might be tempted to
punish the defendant for his uncharged, unpunished conduct; and (5) whether admission
of the propensity evidence will require an undue consumption of time.” (People v.
Nguyen (2010) 184 Cal.App.4th 1096, 1117.) “A trial court balances this first factor, i.e.,
the propensity evidence’s probative value, against the evidence’s prejudicial and time-
consuming effects, as measured by the second through fifth factors.” (Ibid., citing People
v. Branch (2001) 91 Cal.App.4th 274, 282.)
We review a trial court’s decision to admit or exclude evidence under section 352
for abuse of discretion. (People v. Leon, supra, 61 Cal.4th at p. 597; People v. Ochoa
(2001) 26 Cal.4th 398, 437, disapproved on other grounds in People v. Prieto (2003)
30 Cal.4th 226, 263, fn. 14.) Reversal is warranted only when “ ‘ “the court exercised its
12
discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” (Ochoa, at pp. 437-438.)
B. Due Process Challenge
We first consider defendant’s due process challenge to section 1108. Although he
acknowledges that established law is to the contrary, to preserve the issue for future
potential postconviction review, defendant argues that section 1108, both facially and as
applied, violates his constitutional right to due process and a fair trial, and impermissibly
reduced the People’s burden of proof.5
Our California Supreme Court has repeatedly rejected the argument that admitting
prior crimes evidence under section 1108 violates the constitutional right to due process
and a fair trial. (See, e.g., People v. Dworak (2021) 11 Cal.5th 881, 900; People v.
Rhoades (2019) 8 Cal.5th 393, 415; Falsetta, supra, 21 Cal.4th at p. 917 [recognizing
that the trial court’s discretion to exclude propensity evidence under § 352 “saves section
1108 from defendant’s due process challenge”].) And it has also found that section 1108
does not improperly alter or reduce the prosecutor’s burden of proof. (Falsetta, at
p. 920.)
We must follow this binding authority. (Auto Equity Sales, Inc. v. Superior Court
of Santa Clara County (1962) 57 Cal.2d 450, 455 [“Under the doctrine of stare decisis,
all tribunals exercising inferior jurisdiction are required to follow decisions of courts
exercising superior jurisdiction”].) As Auto Equity Sales explains, it is not our function,
as a court exercising inferior jurisdiction, to attempt to overrule decisions of a higher
court, and we decline defendant’s invitation to do so here. (Ibid.)
5 The trial court granted defendant’s motion in limine to federalize defendant’s
objections to include a due process objection.
13
C. Admission of Section 1108 Evidence
Defendant maintains the trial court should have excluded the prior uncharged
sexual offense evidence involving Briana, Melissa, and Paige because it was too remote
in time, too dissimilar to the current charged offenses, highly inflammatory, and, because
he had never been punished for those crimes, there was a danger the jury would use the
present case as a means of punishing his prior sexual misconduct with those girls. We
disagree.
The record shows the trial court properly weighed the relevant factors under
section 352 at a pretrial hearing before admitting the challenged evidence. These factors,
as the court explained, included: the evidence’s “nature, relevance, possible remoteness,
the degree of certainty of its commission and the likelihood of confusing, misleading, or
distracting the jurors from their main inquiry, its similarity to the charged offense, its
likely prejudicial impact on the jurors, the burden on the defendant in defending against
the uncharged offense and the availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant’s other sex offenses or
excluding irrelevant, though inflammatory, details surrounding the offense.”
In conducting its section 352 analysis, the court found that defendant’s prior
sexual misconduct with Briana, Melissa, and Paige all involved similarly aged victims
and the same general type of conduct as charged. Defendant, however, argues that the
prior conduct with Briana and Melissa--masturbating in front of them at the apartment
complex while trying to coax them into showing him their vaginas or for Melissa to have
sex with him--was “highly dissimilar” to the charged conduct.
We conclude there was no abuse of discretion in the trial court’s similarity
assessment as the charged and uncharged offenses bear significant similarities. Both
involved defendant making unsolicited sexual advances to young girls that he knew when
an opportunity arose to be alone with the victims. He would get irritated when they did
not acquiesce to his sexual advances as when defendant got mad when Melissa refused to
14
follow him upstairs or when he told K.D. to stop kicking when she fought back as he
pulled her pants down.
While it is true that the prior conduct was not identical to the charged conduct,
“there is no requirement that the charged and uncharged offenses be so similar that
evidence of the prior acts would be admissible under section 1101.” (People v.
Hernandez (2011) 200 Cal.App.4th 953, 966.) Indeed, “[i]f such strict similarities were
required, ‘section 1108 would serve no purpose. It is enough the charged and uncharged
offenses are sex offenses as defined in section 1108.’ ” (Ibid.) Any dissimilarities in the
alleged incidents related only to the weight of the evidence, not its admissibility under
section 1108. (Hernandez, at p. 967.)
Defendant also asserts that the prior uncharged conduct involving Melissa and
Briana was too remote to be admissible because there was a 20-year gap between those
1995 uncharged offenses and the charged offenses against K.D., which occurred
sometime between 2012 and 2015. Not so.
Other courts have found that gaps of between 20 to 40 years were not too remote,
especially if the uncharged and charged conduct was similar like it was here. (See e.g.,
People v. Hernandez, supra, 200 Cal.App.4th at pp. 967-968 [40-year gap not too remote
where evidence demonstrated the defendant’s propensity to make unwarranted sexual
advances against young female children with whom he had a close familial connection
while they were entrusted in his care]; People v. Branch, supra, 91 Cal.App.4th at
pp. 284-285 [30-year gap between offenses not too remote where prior and current
offenses were “remarkably similar”]; People v. Waples (2000) 79 Cal.App.4th 1389,
1395 [gap of up to 20 years not too remote given similarity of prior and current acts];
People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 991-992 [passage of 20 to 30 years
does not automatically render prior incidents prejudicial when uncharged and charged
sexual offenses are similar].) Given the similarities of his targeted victims (minor
females between the ages of 10 and 12 years old who lived near or with him) and the
15
circumstances under which he accosted them (usually when they were isolated and alone,
rubbing their upper thighs, getting irritated when they failed to submit to his sexual
advances), the trial court appropriately concluded that the incidents with Melissa and
Briana were not too remote to be admissible.
Nor do we agree that the 1995 incidents were impossible or problematic to defend
as defendant claims. Both Melissa and Briana testified and were subject to cross-
examination by defense counsel. Defendant thus had the opportunity to challenge their
testimony and defend against the uncharged conduct. Defendant, moreover, does not
identify any witness who was not available to testify on his behalf. As in most sex
offense cases, the number of witnesses potentially available to aid the defense was
limited as the prior sexual misconduct mostly occurred when Melissa and Briana were
each alone with defendant. (Falsetta, supra, 21 Cal.4th at p. 918 [§ 1108 enacted in
recognition of the serious and secretive nature of sex crimes].)
We likewise reject defendant’s claims that the evidence regarding Melissa and
Briana was unduly inflammatory and would likely tempt the jury to punish defendant for
the uncharged conduct. Attempting to engage young girls who lived nearby, or his niece
who lived in the same house, in unwanted sexual activity were similar and none more
inflammatory than the other. The court excluded the most inflammatory prior conduct--
defendant’s conviction for raping and sodomizing his former girlfriend’s mother and his
acquittal for trying to force an eight-year-old girl to orally copulate him.
Nor is there any indication in the record that the jury punished defendant for the
uncharged prior offenses. Testimony elicited at trial showed that defendant’s prior
conduct with Briana and Melissa was reported to police, and, at least as to Melissa, that
she went to court regarding the incident. From such testimony, the jury rationally could
have concluded that defendant’s prior conduct had already been reported to law
enforcement making it much less likely the jury punished defendant for the prior
uncharged conduct.
16
Furthermore, in accordance with CALCRIM No. 1191A, the trial court properly
instructed the jury that it could, but was not required to, consider the evidence of the
uncharged crimes to conclude that defendant was disposed or inclined to commit sexual
offenses. But if the People failed to prove the prior crimes evidence by a preponderance
of the evidence, the jury was instructed to disregard the evidence entirely. The court also
instructed the jury that even if it concluded defendant committed the prior uncharged
offenses, that that conclusion was only one factor to consider along with all the other
evidence and was not sufficient by itself to prove that defendant was guilty of committing
the charged lewd and lascivious acts against K.D.; the People still had to prove each
charge beyond a reasonable doubt.
Given Elizabeth’s character testimony that defendant was not a person given to
lewd conduct with children, the court further instructed the jury with CALCRIM No. 350
that such evidence could, by itself, “create a reasonable doubt whether the [d]efendant
committed the offenses charged in this case.”
We presume jurors understand and follow instructions. (People v. Morales (2001)
25 Cal.4th 34, 47.) Contrary to defendant’s arguments, these instructions did not lower
the prosecution’s burden of proof. Instead, the instructions informed the jury of the
permissible ways in which it could use the limited purpose section 1108 evidence.
We conclude the trial court properly discharged its duty to conduct a careful
analysis of the five prior sexual offenses the prosecution sought to admit, and
appropriately found that evidence of the three uncharged sex crimes involving Melissa,
Briana, and Paige was more probative than prejudicial. While such prior acts evidence
tended to demonstrate a propensity to commit the charged offenses, and, hence, were
damaging to defendant, they were not prejudicial in the sense required under section 352.
(People v. Karis (1988) 46 Cal.3d 612, 638 [in applying § 352, “prejudicial” is not
17
synonymous with “damaging”].) Defendant, therefore, has failed to demonstrate that the
court abused its discretion by admitting the evidence.6
II
Exclusion of Defense Evidence
Defendant contends the trial court abused its discretion under section 352 by
excluding his proffered evidence that K.D. had accused her cousin of sexual misconduct
around the same time period, and that inconsistencies in K.D.’s version of events coupled
with the cousin’s denial of misconduct showed that K.D.’s allegations were false, which
would undermine her credibility at trial. In a related argument, defendant contends the
court should have permitted him to question Detective Mercadal about his investigation
of the cousin, which defendant characterizes as inadequate since the detective had trouble
locating the cousin even though the defense easily found him before trial. The exclusion
of both lines of evidence, he contends, violated his federal constitutional rights to due
process, a fair trial, the right to confront witnesses, and the right to present a complete
defense. The trial court did not abuse its discretion by excluding defendant’s proffered
false allegation and inadequate investigation evidence.
It is true that a complaining witness’s prior false allegation of sexual molestation
is relevant and admissible under section 1103 as a specific instance of nonsexual conduct
tending to disprove the truthfulness of the complaining witness’s testimony in a present
trial for sexual offenses. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456.) But
prior molestation complaints would have no bearing on the complaining witness’s
6 Given our conclusion that the court did not err in admitting the evidence of prior
uncharged sexual offenses against Melissa, Brianna, and Paige under section 1108, we
need not address defendant’s argument that the federal harmless error test in Chapman v.
California (1967) 386 U.S. 18 applies.
18
credibility unless it also was established that those prior complaints were false. (Id. at
p. 1457; see also People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 598-600.)
Here, with regard to the evidence concerning K.D.’s allegations of sexual
misconduct against her cousin, it is not readily apparent that those prior allegations were
false. The fact that K.D.’s cousin denied forcing her to orally copulate him when he was
a teenager does not conclusively establish that K.D.’s allegations were false, especially
since she maintained that they were true. Nor does the fact that K.D. delayed reporting
the incident with her cousin until she reported defendant’s misconduct or that she was
unsure of whether the misconduct with her cousin occurred before or after the
misconduct with defendant mean that her allegations involving her cousin were false.
(See, e.g., People v. Gray (1986) 187 Cal.App.3d 213, 218) [recognizing that “[d]elayed
reporting and inconsistency is not unusual with victims of child molest”].)
In People v. Bittaker (1989) 48 Cal.3d 1046, our Supreme Court upheld a trial
court’s exercise of discretion to exclude evidence pursuant to section 352 that the
complaining witness had made false charges of sexual molestation against two other men
after she testified that when she rejected the defendant’s advances, he pulled a gun and
said she “ ‘wouldn’t argue if [he] pulled the trigger.’ ” (Bittaker, at p. 1097, rejected on
other grounds by People v. Black (2014) 58 Cal.4th 912, 919.) In so ruling, our Supreme
Court reasoned that “[t]he value of the evidence as impeachment depends upon proof that
the prior charges were false. This would in effect force the parties to present evidence
concerning two long-past sexual incidents which never reached the point of formal
charges. Such a proceeding would consume considerable time, and divert the attention of
the jury from the case at hand.” (Bittaker, at p. 1097.)
The same is true here. Although there may have been some evidence that K.D.
made inconsistent statements about whether the sexual misconduct with her cousin or
with defendant occurred first, there was no conclusive evidence that her prior complaints
against her cousin were false. As the trial court recognized, the fact that her cousin
19
denied the allegations while she maintained that they were true amounted to a he-said
she-said on uncharged conduct, which had significant potential to confuse the jury and
lead to an undue consumption of time to embark on the task of litigating the truthfulness
of K.D.’s complaint against her cousin.
For similar reasons, we conclude the trial court properly exercised its discretion to
exclude evidence regarding Detective Mercadal’s alleged insufficient investigation of
K.D.’s cousin on sexual misconduct allegations that occurred separate and apart from any
allegations involving defendant. The adequacy of law enforcement’s investigation of
K.D.’s cousin has little, if any, tendency to prove or disprove whether defendant licked
K.D.’s ear or rubbed her thigh toward her vagina while he tried to pull down her pants
when she was between 8 and 10 years old. (§ 210 [defining relevant evidence as having
any tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action, including the credibility of a witness or hearsay
declarant].)
III
Cumulative Error
Defendant contends that cumulative prejudice from the alleged errors require
reversal even if any individual error fails to mandate reversal on its own. However,
because we have not found any prejudicial errors, there is no prejudice to accumulate.
(People v. Sorden (2021) 65 Cal.App.5th 582, 618.)
20
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
EARL, J.
21 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350154/ | Wright v Wilson (2022 NY Slip Op 07386)
Wright v Wilson
2022 NY Slip Op 07386
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
908 CA 21-01112
[*1]SHANIEKA WRIGHT, PLAINTIFF-APPELLANT,
vJEREMIAH WILSON AND BARRY WILSON, DEFENDANTS-RESPONDENTS.
PENBERTHY LAW GROUP LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (Paul Wojtaszek, J.), entered July 13, 2021. The order, among other things, granted in part and denied in part the motion of defendants for summary judgment on the issue of serious injury and denied those parts of the cross motion of plaintiff for summary judgment on the issue of serious injury.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries that she allegedly sustained in a rear-end motor vehicle collision. Plaintiff alleges that, as a result of the accident, she sustained serious injuries under the permanent consequential limitation of use, significant limitation of use, and 90/180-day categories of Insurance Law § 5102 (d). Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff cross-moved for partial summary judgment on, inter alia, the issue of serious injury. Supreme Court, inter alia, granted that part of defendants' motion for summary judgment dismissing plaintiff's claims under the permanent consequential limitation of use and 90/180-day categories, denied that part of defendants' motion with respect to the significant limitation of use category, and denied those parts of plaintiff's cross motion with respect to the three aforementioned categories of serious injury. Plaintiff appeals and we affirm.
We conclude that, contrary to plaintiff's contentions on appeal, the court properly denied those parts of her cross motion with respect to the three categories of serious injury in question, and properly granted defendants' motion insofar as it sought summary judgment dismissing plaintiff's claims under the permanent consequential limitation of use and 90/180-day categories. With respect to the 90/180-day category, we conclude that defendants met their initial burden on the motion. "To qualify as a serious injury under the 90/180[-day] category, there must be objective evidence of a medically determined injury or impairment of a non-permanent nature . . . as well as evidence that plaintiff's activities were curtailed to a great extent" (Zeigler v Ramadhan, 5 AD3d 1080, 1081 [4th Dept 2004] [internal quotation marks omitted]; see Licari v Elliott, 57 NY2d 230, 236 [1982]). Here, defendants properly relied on plaintiff's deposition testimony, which established that her typical daily activities had not been significantly curtailed during the relevant time frame (see Cohen v Broten, 197 AD3d 949, 950 [4th Dept 2021]; McIntyre v Salluzzo, 159 AD3d 1547, 1547-1548 [4th Dept 2018]; Kracker v O'Connor, 158 AD3d 1324, 1325 [4th Dept 2018]). In opposition, plaintiff did not raise an issue of fact (see Cohen, 197 AD3d at 950; Pastuszynski v Lofaso, 140 AD3d 1710, 1711 [4th Dept 2016]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
With respect to the permanent consequential limitation of use category, a plaintiff must [*2]"submit objective proof of a permanent injury" to establish a qualifying serious injury (McKeon v McLane Co., Inc., 145 AD3d 1459, 1461 [4th Dept 2016]; see Schaubroeck v Moriarty, 162 AD3d 1608, 1610 [4th Dept 2018]). We conclude that defendants met their initial burden on the motion with respect to that category "by submitting evidence that plaintiff sustained only . . . temporary [muscle] strain[s], rather than any significant injury to h[er] nervous system[, left shoulder] or spine, as a result of the accident" (Williams v Jones, 139 AD3d 1346, 1347 [4th Dept 2016]; see Gamblin v Nam, 200 AD3d 1610, 1613 [4th Dept 2021]). We further conclude that plaintiff failed to raise an issue of fact in opposition with respect to that category (see generally Zuckerman, 49 NY2d at 562; Smith v State Farm Mut. Auto. Ins. Co., 176 AD3d 1608, 1609 [4th Dept 2019]).
With respect to the significant limitation of use category, "[w]hether a limitation of use . . . is significant or consequential
. . . relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002], rearg denied 98 NY2d 728 [2002] [internal quotation marks omitted]; see Habir v Wilczak, 191 AD3d 1320, 1322 [4th Dept 2021]). We conclude that plaintiff did not satisfy her initial burden on the cross motion with respect to that category, inasmuch as her own submissions raise triable issues of fact whether, inter alia, she sustained merely "minor, mild or slight limitation[s] of use" with respect to her left shoulder and cervical and lumbar spine (Crane v Glover, 151 AD3d 1841, 1842 [4th Dept 2017] [internal quotation marks omitted]; see Savilo v Denner, 170 AD3d 1570, 1570-1571 [4th Dept 2019]; see generally Gaddy v Eyler, 79 NY2d 955, 957 [1992]).
We have considered plaintiff's remaining contentions and conclude
that none warrants reversal or modification of the order.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350159/ | Spine Surgery of Buffalo Niagara, LLC v Geico Cas. Co. (2022 NY Slip Op 07343)
Spine Surgery of Buffalo Niagara, LLC v Geico Cas. Co.
2022 NY Slip Op 07343
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, AND BANNISTER, JJ.
791 CA 22-00038
[*1]SPINE SURGERY OF BUFFALO NIAGARA, LLC, PLAINTIFF-RESPONDENT,
vGEICO CASUALTY COMPANY, GEICO INDEMNITY COMPANY, GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY, DEFENDANTS-APPELLANTS.
RIVKIN RADLER LLP, UNIONDALE (HENRY MASCIA OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
THE MORRIS LAW FIRM, P.C., BUFFALO (DANIEL K. MORRIS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered October 25, 2021. The order denied the motion of defendants to dismiss the complaint.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff, as the assignee of certain claims for no-fault benefits, previously commenced an action against defendant GEICO Casualty Company asserting a single cause of action for prima facie tort and seeking, inter alia, punitive damages. GEICO Casualty Company moved to dismiss the complaint pursuant to CPLR 3211 (a) (7), and Supreme Court (Montour, J.) granted the motion. On plaintiff's appeal, we affirmed the substantive ruling but modified the order to provide that the dismissal was without prejudice (Spine Surgery of Buffalo Niagara v GEICO Cas. Co., 179 AD3d 1547 [4th Dept 2020]). Plaintiff thereafter commenced this action against defendants, asserting the same cause of action and again seeking, inter alia, punitive damages. Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). The court (Nugent Panepinto, J.) denied that motion, and defendants appeal.
"The requisite elements of a cause of action for prima facie tort are (1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful" (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). A plaintiff alleging prima facie tort must therefore allege that the defendant's "sole motivation was 'disinterested malevolence' " (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983]). Here, we conclude that the court erred in denying defendants' motion. Despite the additional allegations in the complaint and the additional materials that were submitted in opposition to the motion, the complaint still fails to state a cause of action for prima facie tort. Although the complaint alleges that defendants " 'acted maliciously' and 'with disinterested malice,' " (Greater Buffalo Acc. & Injury Chiropractic, P.C. v Geico Cas. Co., 175 AD3d 1100, 1101 [4th Dept 2019]), it does not allege that defendants' "sole motivation was 'disinterested malevolence' " (Burns Jackson Miller Summit & Spitzer, 59 NY2d at 333; see Medical Care of W. N.Y. v Allstate Ins. Co., 175 AD3d 878, 880 [4th Dept 2019]). "There can be no recovery [for prima facie tort] unless a disinterested malevolence to injure [a] plaintiff constitutes the sole motivation for [the] defendant['s] otherwise lawful act" (Medical Care of W. N.Y., 175 AD3d at 880 [emphasis added and internal quotation marks omitted]; see Walden Bailey Chiropractic, P.C. v Geico Cas. Co., 173 AD3d 1806, 1807 [4th Dept 2019]).
In light of our determination, we do not address defendants' remaining contentions.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350152/ | 2022 IL App (1st) 201206-U
FIFTH DIVISION
December 23, 2022
No. 1-20-1206
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Respondent-Appellee, ) Circuit Court of Cook County.
)
v. ) 07 CR 1022
)
ANDRE PATTERSON, ) Honorable Thaddeus L. Wilson,
) Judge Presiding.
Petitioner-Appellant. )
PRESIDING JUSTICE CONNORS delivered the judgment of the court.
Justices Mitchell and Lyle concurred in the judgment.
ORDER
Held: Petitioner did not receive unreasonable assistance of postconviction
counsel where counsel did not amend the pro se postconviction petition and
did not withdraw as counsel.
¶1 Petitioner, Andre Patterson, appeals from the trial court’s dismissal of his second-stage
postconviction petition. Patterson contends that he was denied reasonable assistance of counsel
during his second-stage postconviction proceedings where counsel: (1) failed to amend his pro se
postconviction petition and adequately respond to the State’s motion to dismiss, and (2) did not
move to withdraw. For the following reasons, we affirm.
No. 1-20-1206
¶2 I. BACKGROUND
¶3 On November 9, 2010, Patterson pled guilty to one count of second-degree murder for
killing her cellmate in exchange for a 20-year sentence. 1 The incident occurred on December 5,
2006, when Patterson was 17 years old. Prior to accepting her guilty plea, the trial court
reviewed with Patterson that: (1) the sentencing range for second-degree murder was 4 to 20
years and that she would receive the sentence of 20 years plus a 3-year term of Mandatory
Supervised Release; (2) her sentence would run consecutive to the sentence to be imposed on
Patterson’s other pending case; and (3) if Patterson chose to plead guilty, she would be waiving
her rights to: a trial by jury, trial by judge, have her lawyer confront and examine the State’s
witnesses, and have the State prove Patterson guilty beyond a reasonable doubt. Patterson
acknowledged that she understood those statements. The trial court then confirmed, prior to
accepting Patterson’s signed jury waiver, that it had her signature on it and that it was made
freely and voluntarily. Patterson stated that it was.
¶4 The State then read into the record the following factual basis for the plea:
“The evidence would show that on December 5, 2006, [Patterson], as well
as the victim in this case, were being housed together in cell 1261 on the wing of
the Cook County Jail. Both of them were prisoners within the Cook County Jail at
that time.
They were in the cell alone together. There is a solid door on the cell, and
during the evening hours on that date, [Patterson] then put [her] hands around the
victim’s neck and strangled him.
1
Patterson identifies as female and will be referred to accordingly in this brief. While her name is now Janiah
Monroe, we will refer to her as “Andre Patterson” for the sake of consistency with the record and past orders.
2
No. 1-20-1206
The victim suffered the following injuries as a result of [Patterson’s]
strangling him. The victim had an abrasion on his right eye, his left cheek, his
lips. His neck had numerous abrasions and bruises. He had bite marks on his back
and shoulders and abrasions on his wrists and hands. He fractured – had a fracture
to his hyoid bone, fracture to his thyroid tissue. He had petechial hemorrhages
within the muscle of his throat and hemorrhage of his tongue.
The DNA – there was a positive DNA match to [Patterson] from the bite –
one of the bite marks as well as fingernail clippings of the victim. The victim died
as a result of those injuries he suffered at the hands of [Patterson].”
¶5 Patterson’s counsel stipulated that this would be the trial testimony.
¶6 The trial court found that Patterson understood the nature of the charge against her, that
her plea was freely and voluntarily given, and that there was a sufficient factual basis. The court
found her guilty of one count of second-degree murder. Before sentencing Patterson, the court
confirmed that she was waiving her right to a presentence investigation and written report.
Patterson was then sentenced to 20 years in prison with three years of Mandatory Supervised
Release. She did not file a motion to withdraw her guilty plea, or a direct appeal.
¶7 On March 24, 2016, Patterson filed a pro se postconviction petition arguing a claim of
actual innocence based on self-defense and her mental instability. She also argued that her guilty
plea was involuntary due to her mental instability and inability to consult with counsel. She
claimed that she received incompetent advice of plea counsel and that her plea counsel was
ineffective for several reasons, including failing to order a second fitness evaluation and failing
to investigate a rape kit that was allegedly performed on Patterson.
3
No. 1-20-1206
¶8 On March 24, 2017, the petition was docketed for second-stage proceedings because the
court had inadvertently allowed the initial 90-day limit for first-stage dismissal to lapse. A public
defender was appointed to represent Patterson.
¶9 On April 18, 2017, Assistant Public Defender, Barbara McClure, appeared on behalf of
Patterson and indicated to the court that she needed time to order and review the transcripts of
the case. On July 18, 2017, McClure told the court that she had received and reviewed the
transcripts, and had reviewed Patterson’s pro se petition, a section 2-1401 petition in the case,
and a “closed file” that contained mental health records from the Illinois Department of
Corrections. She still needed certain medical records.
¶ 10 On October 24, 2017, McClure informed the court that she had reviewed Patterson’s
Behavioral Clinical Exams (BCX) and Cook County Jail records but that she was still awaiting
notes and records from Cermak. On December 13, 2017, McClure obtained a court order for
Patterson’s records from River’s Edge and Hartgrove psychiatric facilities. On February 21,
2018, McClure informed the court that she would need an expert to review all the medical
records since Patterson challenged her fitness and sanity at the time of her plea.
¶ 11 On May 30, 2018, McClure informed the court that Assistant Public Defender, Abby
Clough, would be taking over the case. McClure told the court that she had a long conversation
with Patterson during which she “advised [her] again of the risks involved in pursuing this
petition, and [she] still wishes to proceed, so we are continuing to work and investigate the
merits of [her] claims.”
¶ 12 On July 11, 2018, Clough told the court that she had gone through hundreds of pages of
Patterson’s medical records and criminal history at the jail and that she would be reviewing the
case with her supervisor about whether she needed to obtain an expert.
4
No. 1-20-1206
¶ 13 On August 15, 2018, Clough reported that she had spoken with an expert who requested
two more items before the expert could decide whether to take on the case, which included
IDOC records and a conversation with Patterson. Clough said she hoped to arrange the meeting
between the expert and Patterson in the next month. Clough stated that petitioner had been given
a BCX three times during the pendency of her incarceration, but there was no forensic exam
within a year of the plea due to Patterson’s history of mental illness, her suicide attempts, and her
identifying as transgender.
¶ 14 On January 15, 2019, Clough stated that she received the BCX evaluation from a private
attorney in Livingston County, as well as a packet of medical records, and that she needed to find
a new expert.
¶ 15 On May 10, 2019, Clough informed the court that her office had approved hiring an
expert and that the expert needed about six weeks to review all of the records and meet with
Patterson. On July 23, 2019, Clough stated that the expert had finished her evaluation and was
able to interview Patterson.
¶ 16 On August 20, 2019, Clough told the court that she had spoken with Patterson, who
wanted to raise an additional issue regarding her mittimus and the credit she received.
¶ 17 On October 15, 2019, Clough filed her Illinois Supreme Court Rule 651(c) compliance
certificate, stating that: she had consulted with Patterson to ascertain her contentions of
deprivations of constitutional rights; she obtained and examined the transcript of her plea and
sentencing, transcripts, and medical records; she had read and researched the issues presented in
the petition; and she had not prepared a supplemental petition for postconviction relief as the
previously-filed petition adequately set forth Patterson’s claims.
5
No. 1-20-1206
¶ 18 On January 16, 2020, the State filed a motion to dismiss. In its motion, the State argued
that: Patterson’s petition was untimely; her allegations of trial court error and due process
violations were meritless; the allegations of ineffective assistance of trial counsel did not meet
the Strickland standards; her claim of actual innocence was baseless; and her allegations should
be dismissed because she voluntarily pled guilty.
¶ 19 On March 12, 2020, the court heard arguments on the State’s motion to dismiss. The
State noted that all of Patterson’s BCX reports found her fit, and that Patterson had not presented
anything to establish that she was unfit at the time of the plea. Clough acknowledged that she had
not amended Patterson’s pro se petition. She noted that Patterson was a juvenile when she was
brought over, and put in an adult prison. She also highlighted Patterson’s claim of being attacked
“by an adult male who [she] ultimately killed and argues in self-defense.” Clough stated that
after Patterson pled guilty to second-degree murder, her life “sort of spiraled out of control
towards a life in IDOC custody.”
¶ 20 On October 26, 2020, the trial court granted the State’s motion to dismiss. The court
found that Patterson had failed to make a substantial showing of actual innocence where even
though she claimed that the victim had attacked her, Patterson’s account of what happened “does
not address every element of self-defense, especially that Patterson’s use of a deadly force was
reasonably necessary. Thus, the evidence is far from conclusive in character.” The court also
noted that Patterson failed to make a substantial showing that she was unfit at the time of her
plea since mental illness alone does not equate with unfitness, and where Patterson was found fit
for trial in two evaluations conducted in October 2006 and September 2008. Accordingly, the
court found that Patterson’s “unspecific and unsupported allegations” were insufficient to show
that she was unfit at the time of the guilty plea and to overcome the record’s showing of fitness.
6
No. 1-20-1206
¶ 21 The court also found that Patterson failed to make a substantial showing of ineffective
assistance of trial counsel for failing to request another fitness evaluation since petitioner’s
allegations did not specify that anything occurred after the 2008 fitness evaluation but before the
guilty plea that would have apprised trial counsel to believe that the court had a bona fide doubt
of Patterson’s fitness. The court further noted that other than making a conclusory claim that the
expert witness was inadequate, Patterson failed to provide any other explanation or supporting
documents. The court found that Patterson failed to make a substantial showing of insanity
because her “sole allegation that she had a history of mental illness is insufficient to make a
showing of insanity as a matter of law.”
¶ 22 Patterson now timely appeals.
¶ 23 II. ANALYSIS
¶ 24 On appeal, Patterson contends that she was denied reasonable assistance of counsel
during his second-stage postconviction proceedings where counsel: (1) failed to amend
Patterson’s pro se postconviction petition and adequately respond to the State’s motion to
dismiss, and (2) did not move to withdraw. The State maintains that Patterson cannot rebut the
presumption that counsel fulfilled her duties under Rule 651(c).
¶ 25 The Post-Conviction Hearing Act (Act) provides a mechanism for convicted defendants
to assert that their convictions resulted from a substantial denial of their constitutional rights. 725
ILCS 5/122-1 (West 2022). A postconviction proceeding is a collateral attack on a conviction,
not an appeal of the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). The
purpose of the proceeding is to allow inquiry into constitutional issues relating to the conviction
or sentence that were not, and could not have been, determined on direct appeal. People v.
Griffin, 178 Ill. 2d 64, 72-3 (1997). Res judicata bars claims that were raised and decide on
7
No. 1-20-1206
direct appeal, and principals of waiver and forfeiture preclude claims that could have been raised
on direct appeal but were not. People v. Blair, 215 Ill. 2d 427, 443-47 (2005).
¶ 26 At the second stage, counsel may be appointed to an indigent defendant and the State
may file a motion to dismiss or an answer to the petition. 725 ILCS 5/122-4, 5 (West 2022). If
the court appoints counsel at the second stage, appointed counsel is required to file a certificate
showing compliance with Illinois Supreme Court Rule 651(c) (eff. Jul. 1, 2017), namely, stating
that appointed counsel has consulted with the defendant, examined the record of trial
proceedings, and made any necessary amendments. At this stage, the circuit court must
determine whether the petition and any accompanying documentation make a “substantial
showing of a constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001). During
the second stage, the petitioner bears the burden of making a substantial showing of a
constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006).
¶ 27 Relevant to the controversy in this case, it is settled that there is no constitutional right to
assistance of counsel during postconviction proceedings. People v. Cotto, 2016 IL 119006, ¶ 29.
Accordingly, our supreme court has explained, “[t]he right to assistance of counsel in
postconviction proceedings is a matter of legislative grace, and a defendant is guaranteed only
the level of assistance provided by the [Act].” People v. Hardin, 217 Ill. 2d 289, 299 (2005). Our
supreme court has concluded that the Act provides a postconviction petition with “reasonable”
assistance. Id. The reasonable level of assistance provided for by the Act is “less than that
afforded by the federal or state constitutions.” Pendleton, 223 Ill. 2d at 472. The parameters of
the reasonable assistance postconviction petitioners are provided under the Act are codified in
Illinois Supreme Court Rule 651(c), which states in pertinent part:
8
No. 1-20-1206
“The record filed in court shall contain a showing, which may be made by the
certificate of petitioner’s attorney, that the attorney has consulted with petitioner,
either by mail or in person to ascertain his contentions of deprivation of
constitutional right, has examined the record of proceedings at the trial, and has
made any amendments to the petition filed pro se that are necessary for an
adequate presentation of petitioner’s contentions.”
¶ 28 Fulfillment of the third obligation under Rule 651(c) does not require postconviction
counsel to advance frivolous or spurious claims. People v. Greer, 212 Ill. 2d 192, 205 (2004). At
this juncture, a petitioner is not entitled to “advocacy of counsel for purposes of exploration,
investigation and formulation of potential claims.” People v. Davis, 156 Ill. 2d 149, 163 (1993).
Postconviction counsel is only required to investigate and properly present the petitioner’s claims
– had the legislature intended otherwise, it would have provided for appointment of counsel prior
to the filing of the original petition. Id. at 164. Counsel’s responsibility is to adequately present
those claims which the petitioner raises. Id. We review de novo both the trial court’s dismissal of
Patterson’s postconviction petition without an evidentiary hearing (Pendleton, 223 Ill. 2d at 473)
and the interpretation of a supreme court rule, including whether counsel fulfilled her duties
under Rule 651(c) (People v. Suarez, 224 Ill. 2d 37, 41-42 (2007)).
¶ 29 Here, Patterson’s counsel filed a certificate pursuant to Rule 651(c), asserting that she:
consulted with Patterson; examined the record of trial/plea proceedings including the common
law record, forensic clinical evaluations, and the medical records; researched Patterson’s claims;
and had not filed a supplemental petition because the initial petition provided an adequate
presentation of Patterson’s contentions.
9
No. 1-20-1206
¶ 30 The filing of a Rule 651(c) certificate gives rise to the presumption that postconviction
counsel provided reasonable assistance during second-stage proceedings under the Act. See
People v. Rossi, 387 Ill. App. 3d 1054, 1060 (2009) (upon the filing of a certificate in accordance
with Rule 651(c), the presumption exists that postconviction counsel “adequately investigated,
amended and properly presented those claims contained within petitioner’s successive
postconviction petition”). Accordingly, it falls on the petitioner to overcome that presumption by
demonstrating counsel’s failure to substantially comply with the duties mandated by Rule 651(c).
See People v. Richardson, 382 Ill. App. 3d 248, 257 (2008).
¶ 31 Patterson alleges that counsel should have amended the petition “with necessary support
for Patterson’s pro se claim that her plea counsel was ineffective for failing to investigate and
present evidence concerning” a rape kit. However, “[a] mere failure to amend the pro se petition
is not enough to establish inadequacy of representation in the absence of a showing that the
petition could have been successfully amended.” People v. Johnson, 232 Ill. App. 3d 674, 678
(1992). Patterson has pointed to nothing in the record showing that a rape kit exists. Accordingly,
we cannot presume the existence of an error which is not affirmatively shown in the record. See
People v. Boshears, 228 Ill. App. 3d 677, 681 (1992); see also People v. Johnson, 154 Ill. 2d
227, 241 (1993) (“In the ordinary case, a trial court ruling upon a motion to dismiss a
postconviction petition which is not supported by affidavits or other documents may reasonably
presume that postconviction counsel made a concerted effort to obtain affidavits in support of the
postconviction claims but was unable to do so.”).
¶ 32 The record reveals that counsel informed the court on multiple occasions that she
collected and reviewed Patterson’s medical records and hired an expert to review the medical
records. When the first expert was unable to take the case, counsel hired another expert to review
10
No. 1-20-1206
the medical records. If a rape kit had been performed, it presumably would have been in the
medical records. Patterson does not indicate when the rape kit was performed or who performed
it on her. Furthermore, the expert met with Patterson, after which counsel indicated that she was
going to meet with Patterson again before filing her 651(c) certificate. The record demonstrates
that counsel fulfilled all the obligations Rule 651(c) imposes on postconviction counsel. Just
because a rape kit was not found by counsel, does not mean that Patterson’s claim was frivolous
or patently without merit such that counsel should have withdrawn. It merely means that counsel
found no further evidence to support Patterson’s claim of self-defense.
¶ 33 To the extent that Patterson claims that counsel should have amended the petition, we
find the case of People v. Bass, 2018 IL App (1st) 152650, to be instructive. In Bass,
postconviction counsel filed a Rule 651(c) certificate indicating that the petitioner’s pro se
postconviction petition adequately stated his contentions and declined to amend the petition. Id.
¶ 7. The State moved to dismiss, and counsel did not file a written response. Rather, counsel
stood on the petition but informed the court that he had attempted to obtain witness affidavits and
was unsuccessful. Id. ¶ 8. The circuit court dismissed the petition. Id. ¶ 9. On appeal, the
petitioner argued that his postconviction counsel rendered unreasonable assistance by failing to
amend his petition to include witness affidavits, to explain the absence of those affidavits, or
move to withdraw. Id.
¶ 34 In rejecting the petitioner’s claims, this court stated that petitioner’s argument “begs the
question since he presumes (without any support in the record) that counsel’s failure to amend
his petition was the result of some deficiency in his lawyer’s performance rather than the
inability to substantiate [his] claims.” Id. ¶ 14. The court noted that when, after conducting his
investigation, the petitioner’s lawyer determined that he could not obtain evidence to support it,
11
No. 1-20-1206
the petition did not ipso facto become frivolous or patently without merit, but nevertheless
remained defective, and counsel determined he was unable to cure that defect. Id. ¶ 19. The court
found that the petitioner “offers nothing to suggest that his lawyer’s conclusion was wrong or
that he acted unreasonably in declining to amend.” Id. The court found that the petitioner could
not overcome the presumption that attaches to counsel’s Rule 651(c) affidavit. Id.
¶ 35 Similarly here, we find that counsel’s failure to amend was not the result of some
deficiency on her performance but rather her inability to substantiate Patterson’s claims. Counsel
investigated the claims, met with Patterson, hired two separate experts, and was simply unable to
find the evidence that Patterson argues would have lent further support to her claims.
¶ 36 We find Patterson’s reliance on People v. Greer, 212 Ill. 2d 192 (2004), to be
unpersuasive. In Greer, the appointed attorney found the petitioner’s petition to be meritless and
asked for leave to withdraw. Id. at 194-95. The trial court granted the request. Id. The court then
dismissed the petitioner’s petition sua sponte. Id. The appellate court then affirmed the trial
court’s grant of the attorney’s leave to withdraw but reversed the court’s decision to dismiss the
petition sua sponte. Id. The only issue before the Illinois Supreme Court was whether the trial
court erred when it granted the attorney’s request for leave to withdraw. Id. at 195-96. The
Supreme Court found that the trial court properly granted the attorney’s request for leave to
withdraw, and that “the Act presents no impediment to withdrawal of counsel.” Id.
¶ 37 While the holding in Greer certainly permits an attorney to withdrawal if the record
affirmatively rebuts the claims in the postconviction petition, it does not require an attorney to
withdraw if that attorney simply cannot find additional evidence to supplement the petition.
Here, counsel investigated the claims, hired an expert, spoke to Patterson, and ultimately was
unable to supplement the petition with additional evidence. The petition did not ipso facto
12
No. 1-20-1206
become frivolous or patently without merit. See Bass, 2018 IL App (1st) 152650, ¶ 19. To the
extent it remained defective for failing to have the proper evidence attached, counsel determined
she was unable to cure that defect. Id. Patterson offers nothing to suggest that counsel was wrong
or that she acted unreasonably in declining to amend. Id. Accordingly, Patterson has not
sustained her burden to overcome the presumption that attaches to counsel’s Rule 651(c)
affidavit.
¶ 38 Patterson nevertheless maintains that if counsel “discovered evidence that rebutted the
claim” she had “a duty not to submit the claim to the court and, if none of the other claims in the
petition could be shaped into proper legal claims, a duty to move to withdraw.” However, we
reiterate that because counsel in this case did not find that Patterson’s claims in her pro se
petition were affirmatively rebutted by the record, and therefore frivolous or patently without
merit, she was under no obligation to request to withdraw from the case. Accordingly,
Patterson’s argument that Bass was wrongly decided because it rejected the defendant’s
argument that his counsel’s failure to withdraw after discovering his claims were frivolous
deprived him of the ability to defend his postconviction petition pro se, has no bearing on this
case. Counsel in this case did not find the petition to be frivolous, and therefore had no reason to
withdraw.
¶ 39 III. CONCLUSION
¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 41 Affirmed.
13 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350151/ | 2022 IL App (1st) 220106-U
FIFTH DIVISION
December 23, 2022
No. 1-22-0106
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 10 CR 11999
)
GILBERTO VARGAS, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge, presiding.
JUSTICE DELORT delivered the judgment of the court.
Presiding Justice Connors and Justice Lyle concurred in the judgment.
ORDER
Held: We reverse, in part, the circuit court’s denial of defendant’s petition for leave to
file a successive postconviction petition because the petition set forth a colorable
actual innocence claim. We affirm the court’s denial of leave for defendant to file
his sentencing claim because he could not demonstrate cause for failing to raise
the claim in his initial petition.
¶1 Defendant Gilberto Vargas appeals from the circuit court’s denial of his petition for leave
to file a successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et
seq. (West Supp. 2021)). He contends the court erred regarding two claims—one for actual
No. 1-22-0106
innocence, and the other that his sentence is unconstitutional. We reverse the court’s ruling
regarding the actual innocence claim and remand for further proceedings on that claim, but
affirm the court’s ruling regarding defendant’s sentencing claim.
¶2 BACKGROUND
¶3 In People v. Vargas, 2020 IL App (1st) 172568-U, this court recited the facts adduced at
trial and those relating to the resolution of defendant’s direct appeal and resolved his appeal from
the dismissal of his initial postconviction petition. Herein, we update some facts and repeat those
which are most relevant to his current claims.
¶4 Defendant’s conviction arose from the shooting death of Jose Galaviz on June 20, 2009,
in Chicago. After his arrest, defendant was charged by indictment with multiple counts of first
degree murder, attempt first degree murder, and aggravated discharge of a firearm. The State
proceeded on six counts of first degree murder. At defendant’s 2012 jury trial, Yesenia Galaviz
testified that on the day in question, she and her brother, Jose, gathered with several friends.1
Early that evening, the group set out in a minivan for the Puerto Rican Day parade in Humboldt
Park. Larry Garvin drove, Danny Olave sat in the front passenger seat, Erick Alamo and Jose sat
in the middle row, and Jessica Macias and Yesenia sat in the back row. All the minivan’s
windows were rolled down and both sliding doors were open.
¶5 Shortly before 7 p.m., as the group was stopped in southbound traffic on Western Avenue
near the intersection with Hirsch Street in Chicago, a man approached the passenger side of the
minivan. He was about four feet from Yesenia and nothing obstructed her view of his face. He
had a short haircut, “[a]most bald, but not quite.” In court, Yesenia identified defendant as this
man. Defendant asked Jose if he or anyone in the minivan was a gangbanger. Jose said, “[N]o.
1
Because Jose and Yesenia share a last name, we will refer to them by their first names.
2
No. 1-22-0106
We don’t gangbang. We’re partying.” Defendant responded that they were “cool” and walked
back to the corner, where he joined several other men.
¶6 Garvin briefly continued driving southbound on Western, but the group decided to go
home because the encounter gave them a “bad feeling” that something would happen. As they
were waiting on Western to turn left onto North Avenue, a vehicle occupied by two men pulled
beside the driver’s side of the minivan so that the vehicle’s passenger was in-line with
Jose. Yesenia recognized the passenger as defendant from his interaction with Jose 10 minutes
earlier. Defendant said, “I thought you all don’t gangbang” and shot Jose. When Jose leaned
forward, Yesenia grabbed him, looked to her left, and made eye contact with defendant.
Defendant told the driver of the vehicle to “keep going” and the vehicle drove off. Yesenia
pulled Jose into the back row of seats and hit his face repeatedly in an effort to keep him
conscious as Garvin drove to St. Elizabeth Hospital.
¶7 While at St. Elizabeth Hospital, Yesenia spoke with the police. She told them what
happened and provided a description of defendant. At some point, Jose was transferred to Stroger
Hospital, where he died. Yesenia spoke with the police at Stroger Hospital and, later that
evening, went to the police station. There, she identified defendant in a photo array. On June 23,
2009, she identified him in a lineup.
¶8 On cross-examination, Yesenia agreed that she never saw the vehicle’s passenger with a
firearm, never saw a firearm in his hand, and never saw a firearm extend out of the vehicle’s
window. When asked, “You saw the passenger lean back and then you heard the shot, right?” she
answered affirmatively.
¶9 Macias, Olave, Alamo, and Garvin testified to substantially the same events as Yesenia.
They agreed that defendant, whom they all identified in court and described as having a short or
3
No. 1-22-0106
“low” hairstyle, approached their minivan on foot and asked about gang affiliation. They denied
gang affiliation and drove off, but shortly thereafter turned around, and while they were waiting
to turn left onto North Avenue, a vehicle pulled beside them. Defendant, who was in the
passenger seat, made a comment about gangbanging.
¶ 10 Macias testified that she saw defendant pull out a firearm, point it at Jose, and fire. Olave
testified that defendant shot Jose; he specified that he saw a firearm in defendant’s hand and
heard a “big pop.” Alamo stated that he saw defendant draw a firearm and shoot Jose. Garvin
testified that he saw defendant raise and point a firearm at Jose, ducked, accelerated, and heard
one gunshot. At the police station, Garvin identified defendant from a “bunch of pictures,” and
Olave and Alamo also testified that they identified defendant in photo arrays. Macias, Olave,
Alamo, and Garvin all testified that they later identified defendant in lineups.
¶ 11 Erick Ortiz testified that on June 20, 2009, he saw defendant, who was his cousin’s
boyfriend, at the corner of Western and Hirsch. Defendant was with two other men, one whom
Ortiz did not know, and the other whom he knew as “G-Man.” Ortiz joined defendant, who was
“looking around, watching people, and just looking at people into cars and stuff like that.” Later
in the afternoon, defendant and G-Man left the corner and jogged across the street toward a
barber shop. After 20 to 30 minutes, Ortiz called defendant. He then went to a friend’s house to
meet defendant in the gangway. Defendant, who was with G-Man and some other men, said, “I
f*** up.” Ortiz asked what he meant, but defendant just kept repeating himself.
¶ 12 Chicago police sergeant John Folino testified that on June 22 and 23, 2009, he and a
detective who had Mirandized defendant had several video- and audio-recorded conversations
with defendant while he was in custody. Defendant stated that on the day of the shooting, his
son’s mother dropped his son off at his house. He and his son were inside all day because his son
4
No. 1-22-0106
had a “double ear infection.” Then, around 7 p.m., defendant’s mother dropped him and his son
off at a barbeque at a friend’s house, where they stayed until 10 or 11 p.m.
¶ 13 Patricia Sasso, the mother of defendant’s son, testified that on the day of the shooting, she
went to the Puerto Rican Day festival and left their son at home with her other child’s
grandmother. Sasso stated that she did not drop their son off at defendant’s house and that
defendant had no contact with him that day. She also denied that their son had a double ear
infection.
¶ 14 Chicago police detective Demosthenes Balodimas testified that he responded to St.
Elizabeth Hospital. There, he spoke with Yesenia, Garvin, Macias, Olave, and Alamo, and
received a description of the shooter. Early the next morning, the witnesses went to the police
station. Garvin identified defendant as the shooter from a “pile” of 29 photos. Then, Yesenia,
Olave, and Alamo identified defendant in separate six-person photo arrays. On June 23, 2009,
Yesenia, Garvin, Macias, Olave, and Alamo returned to the police station and each separately
identified defendant in a lineup.
¶ 15 Balodimas spoke with defendant’s mother, Norma Vargas, on June 23, 2009. She said
she did not drive defendant to a barbecue on the day of the shooting. The last time she saw him
was about a week before her interview.
¶ 16 On cross-examination, Balodimas admitted that Macias did not report to him that the
shooter was the same individual who had approached the group earlier, and could not identify
defendant in a photo array.
¶ 17 Defendant did not testify or present evidence. The jury found defendant guilty of first
degree murder and that he personally discharged a firearm causing Jose’s death.
5
No. 1-22-0106
¶ 18 Defendant’s pre-sentence investigation report (PSI) indicated his highest education level
was eighth grade, from which he graduated while incarcerated. He was single but had two
children. Defendant belonged to the Spanish Cobras gang. His father had little involvement in his
upbringing, but defendant did not suffer physical, sexual, or mental abuse, and he denied having
alcohol or drug problems.
¶ 19 At sentencing, defense counsel argued defendant was “young and immature” at the time
of the offense. The circuit court imposed a sentence of 30 years in prison for first degree murder,
plus 25 years for personally discharging a firearm, for a total sentence of 55 years.
¶ 20 On direct appeal, defendant contended that the circuit court failed to adequately consider
his age and family ties as mitigating factors at sentencing. This court affirmed. People v. Vargas,
2015 IL App (1st) 130189-U.
¶ 21 On October 2, 2015, through private counsel, defendant filed a postconviction petition
asserting that Gerardo “G-Man” Gonzalez, the driver of the vehicle, shot and killed Jose.
Defendant claimed, in relevant part, actual innocence based on newly discovered evidence, and
supported his petition with a self-executed affidavit, affidavits from Lucas Mercado, Anthony
Pitts, and Marina Cruz, and an article from a news website reporting that on October 25, 2009,
Gonzalez hanged himself and died in a Chicago police lockup.
¶ 22 Defendant stated in his affidavit that he approached the van on June 20, 2009, and asked
the occupants whether they “gangbang.” Afterwards, defendant entered Gonzalez’s vehicle and
Gonzalez pulled beside the van. Defendant tried to persuade Gonzalez that the occupants were
not gang members, so he lowered his window and said, “yall [sic] don’t bang right?” Then,
Gonzalez reached across defendant, fired one shot at the van, and drove away. Defendant
explained that he gave the police a false alibi because immediately after the shooting, Gonzalez
6
No. 1-22-0106
held a firearm to his head and threatened to kill him and his family if he told anyone the truth.
Defendant stated that when Ortiz met him after the shooting, defendant was telling Gonzalez that
Gonzalez “f*** up.” Defendant also stated, “Shortly after [Gonzalez] and I parted ways I
decided to keep my distance from him.”
¶ 23 Mercado stated in his affidavit, dated June 9, 2015, that on June 20, 2009, he was
standing by an alley near the intersection of Western and North when he saw Gonzalez pull
beside a van. Gonzalez reached across a person in the passenger seat, fired a single shot out of
the vehicle’s passenger-side window toward the van, and drove away at a high speed. Mercado
did not previously come forward with this information because he feared being a “snitch.”
¶ 24 Pitts stated in his affidavit, dated April 21, 2015, that he was friends with Garvin, who
once visited him in jail. During the visit, Garvin said he felt guilty about defendant being
incarcerated for Jose’s murder. Garvin told Pitts defendant was innocent of the shooting, as it
was the driver of the other vehicle who shot into the van.
¶ 25 Cruz stated in her affidavit, dated September 24, 2015, that on September 27, 2009,
Gonzalez, with whom she had an intimate relationship, told her he shot and killed a man in a van
at North and Western during the Puerto Rican week festival. Gonzalez told Cruz that although
defendant was in Gonzalez’s vehicle with him, defendant had no knowledge that Gonzalez had a
firearm and would shoot the man in the van.
¶ 26 The circuit court granted the State’s motion to dismiss the petition at the second stage.
This court affirmed. People v. Vargas, 2020 IL App (1st) 172568-U.
¶ 27 On September 9, 2021, defendant filed a pro se petition for leave to file a successive
postconviction petition. In the petition, defendant, in relevant part, claimed actual innocence and
7
No. 1-22-0106
that his sentence violated the proportionate penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. 1, § 11).
¶ 28 To support his actual innocence claim, defendant attached affidavits from Garvin (dated
March 15, 2021), Olave (April 10, 2021), Ortiz (August 14, 2020), and Jennifer Morales (August
14, 2020). Defendant claimed each affidavit was unavailable at the time of trial. In their
affidavits, Garvin, Olave, and Ortiz each retracted their trial testimony, and claimed they only
testified against defendant because Balodimas coerced them. Garvin and Olave now claimed that
Gonzalez, not defendant, was the actual shooter, while Ortiz stated that defendant never said, “I
f*** up.” Defendant also attached to the petition information regarding other cases where
Balodimas allegedly coerced false testimony or testified falsely himself.
¶ 29 Morales, the mother of defendant’s child, stated in her affidavit that she told Balodimas
she heard Gonzalez confess, but Balodimas threatened her to testify against defendant, or
Balodimas would imprison her and she would lose her child. Morales further stated that she
interacted with Gonzalez in the police station, who said that he had already confessed he was the
shooter.
¶ 30 Defendant also attached the previous affidavits of Mercado, Pitts, and Cruz, along his
own affidavit, in which he claimed he had no prior knowledge that Gonzalez had a firearm or
planned to shoot Jose.
¶ 31 Defendant also argued that his 55-year sentence constituted a de facto life sentence under
People v. Buffer, 2019 IL 122327, and thus violated the proportionate penalty clause as applied
to him because his brain development was more akin to that of a juvenile at the time of the
offense. Specifically, defendant claimed that his father abused him and his mother, then
abandoned the family home; his living conditions as a child were poor; and he was forcefully
8
No. 1-22-0106
inducted into the Spanish Cobras when he was 12 years old because the gang threatened to kill
his mother and brother if he did not join. Defendant further contended that he began abusing
drugs and alcohol at the age of 10. He claimed these circumstances affected his development,
leaving him with “incomplete brain maturation,” and that “at the time of the offense” his
maturity was “that of a juvenile.” Defendant attached law review articles and scientific studies
regarding brain development in young adults to the petition.
¶ 32 On December 15, 2021, the circuit court denied defendant leave to file his successive
petition. In its written order, the court stated, in relevant part, that defendant’s actual innocence
claim failed because the argument that defendant was not the shooter was available at the time of
trial, recantation testimony is untrustworthy, and the allegations that Balodimas coerced
testimony were immaterial. The court further explained that the affidavits were not conclusive
because multiple witnesses besides Olave and Garvin testified at trial that defendant was the
shooter. The court stated that res judicata barred the proportionate penalty clause claim because
defendant challenged his sentence on direct appeal, and even if was not barred, the claim lacked
merit because the sentencing court appropriately considered and weighed the relevant factors in
aggravation and mitigation. Defendant timely appealed.
¶ 33 ANALYSIS
¶ 34 On appeal, defendant first claims the circuit court erred by denying him leave to file his
successive postconviction petition because the petition set forth a viable claim of actual
innocence.
¶ 35 The Act provides criminal defendants a mechanism to challenge a conviction on the
grounds that it violates their constitutional rights. People v. Robinson, 2020 IL 123849, ¶ 42. A
defendant may file only one petition as of right, and must receive leave from the circuit court to
9
No. 1-22-0106
file successive petitions. 725 ILCS 5/122-1(f) (West Supp. 2021). Leave is appropriate under two
circumstances: (1) the defendant can demonstrate cause for not raising the claim earlier, and
prejudice should he not be permitted to pursue the claim, and (2) the defendant can demonstrate
a colorable claim of actual innocence. Robinson, 2020 IL 123849, ¶ 42. A petition for leave to
file a successive postconviction petition is reviewed using a higher standard than initial
postconviction petitions, which must only raise claims that are not frivolous or patently lack
merit. People v. Edwards, 2012 IL 111711, ¶¶ 24-29.
¶ 36 A defendant need not show cause and prejudice to state a colorable claim of actual
innocence. People v. Taliani, 2021 IL 125891, ¶ 58. Instead, the defendant must show that the
evidence at issue is (1) newly discovered, (2) material and noncumulative, and (3) conclusive. Id.
Conclusiveness is the most important element. Robinson, 2020 IL 123849, ¶ 47. Evidence is
newly discovered if it is discovered post-trial, and could not have been discovered earlier
through due diligence. Id. “Evidence is material if it is relevant and probative of the petitioner’s
innocence.” Id. Evidence is non-cumulative if it “adds to the information that the fact finder
heard at trial.” Id. To establish conclusiveness, the defendant must show that the new evidence,
considered alongside the trial evidence, would probably lead to a different result at retrial. Id.
The new evidence need not be entirely dispositive, as, “Probability, not certainty, is the key as
the trial court in effect predicts what another jury would likely do, considering all the evidence,
both new and old, together.” People v. Coleman, 2013 IL 113307, ¶ 97. The credibility of newly
discovered evidence is not considered at the leave to file stage. People v. Sanders, 2016 IL
118123, ¶ 42. We review a court’s denial of leave to file a successive postconviction petition de
novo. Taliani, 2021 IL 125891, ¶ 52.
10
No. 1-22-0106
¶ 37 Defendant claimed actual innocence in his initial postconviction petition based on the
newly discovered evidence of affidavits from Mercado, Pitts, and Cruz. Here, he again claims
actual innocence, based on the additional affidavits of Garvin, Olave, and Ortiz, alongside his
own affidavit, and the affidavits from his initial petition (defendant admits in his reply brief that
Morales’ affidavit is irrelevant to his actual innocence claim).
¶ 38 Defendant contends that the affidavits of Garvin, Olave, and Ortiz are newly discovered
evidence because as recantations of trial testimony, the evidence was necessarily unavailable at
trial. The State responds that defendant has failed to demonstrate the recantations of Garvin,
Olave, and Ortiz were not available earlier through due diligence.
¶ 39 First, we note that defendant’s own affidavit cannot be considered newly discovered
because the information therein, specifically that defendant did not know Gonzalez had a firearm
and intended to shoot Jose, was information known to defendant before trial. See Robinson, 2020
IL 123849, ¶ 53. Thus, we cannot consider his affidavit when analyzing his actual innocence
claim.
¶ 40 Respecting Garvin, Olave, and Ortiz’s affidavits, however, we find that defendant has
demonstrated that the affidavits are “newly discovered” for purposes of his actual innocence
claim. As the court in People v. Harper, 2013 IL App (1st) 102181, explained in addressing
whether a recantation affidavit from a trial witness was newly discovered evidence, “Clearly, due
diligence could not have compelled [the witness] to testify truthfully at the first trial.” Harper,
2013 IL App (1st) 102181, ¶ 42. In Harper, the recanting witness claimed that “his trial
testimony was a lie and that police officers threatened him to obtain the testimony.” Id.
Similarly, here, defendant could not have known before trial of the alleged coercion by
Balodimas, and the role that coercion played in procuring Garvin’s, Olave’s and Ortiz’s trial
11
No. 1-22-0106
testimony. See People v. Ayala, 2022 IL App (1st) 192484, ¶ 134 (in the context of a newly
discovered evidence analysis for an actual innocence claim, the due diligence requirement
“applies to the diligence shown before trial”).
¶ 41 Next, the State concedes that the affidavits of Garvin and Olave are material and non-
cumulative, but contends Ortiz’s affidavit is immaterial because he did not witness the shooting
itself. We disagree, and find Ortiz’s testimony to be material and non-cumulative. Ortiz’s trial
testimony was that defendant repeatedly stated “I f*** up” when Ortiz saw him shortly after the
shooting, with the implication that defendant was demonstrating regret for shooting Jose. Ortiz’s
affidavit now claims that defendant said that Gonzalez “f*** up,” with the implication now
switching to defendant chastising Gonzalez for the shooting. Should the jury accept this
evidence, it would be relevant to support defendant’s theory that Gonzalez was the shooter.
Additionally, the jury did not hear any evidence at trial contending that it was Gonzalez, and not
defendant, who was the shooter, making Ortiz’s new testimony non-cumulative.
¶ 42 Finally, we find that the new evidence as described in Garvin, Olave, and Ortiz’s
affidavits, if accepted as true by the jury, could change the result at trial such that defendant has
satisfied his conclusiveness showing at this stage. See Robinson, 2020 IL 123849, ¶ 60. Garvin
and Olave identify Gonzalez as the shooter, and Ortiz’s affidavit claims that defendant stated that
Gonzalez “f*** up” shortly after the shooting. Additionally, as defendant argues, there is no
confession or physical evidence linking defendant to the shooting. Should the jury accept this
testimony, along with the contention that Balodimas coerced Garvin and Olave into identifying
defendant as the shooter, the jury could credit the affiants’ version over that of the other
eyewitnesses and acquit defendant on the theory Gonzalez was the shooter.
12
No. 1-22-0106
¶ 43 The State argues that the affidavits are not sufficiently conclusive because they do not
defeat defendant’s guilt via an accountability theory. Our supreme court in Robinson, however,
considered and rejected this same argument from the State. Id. ¶ 75. In Robinson, the court
rejected the argument as “entirely without merit” because “the State never introduced an
accountability theory into the case.” The same is true here; the State never wavered from the
theory that defendant was the shooter, and as such, factoring in an accountability theory to
determine how a hypothetical jury would weigh the new evidence alongside the existing trial
evidence is improper.
¶ 44 The State also argues that the testimony of the other van occupants and eyewitnesses,
Macias, Alamo, and Yesenia, remains unrecanted, and thus the affidavits are insufficient to
establish a probability of a different result at retrial. Balancing the weight of their testimony
against the new hypothetical testimony of Garvin and Olave, however, would require us to assess
Garvin and Olave’s credibility. Such an assessment is improper at this stage, and should only
occur at the third stage of postconviction review at an evidentiary hearing. Id. ¶ 61. Here, we
must assume a jury would accept Garvin and Olave’s version of events as true and credible;
given that circumstance, the potential for the newly discovered evidence to change the result at
trial is clear. See Id. ¶ 60. This also negates the State’s argument that Garvin’s affidavit should
be discounted because it is inconsistent with Pitts’ statement of Garvin’s motive for testifying
falsely at trial; any contradiction could affect the credibility of Garvin’s affidavit at an
evidentiary hearing, but at this stage, Garvin’s version must be accepted as true. Accordingly, the
circuit court erred in dismissing the actual innocence claim in the successive post-conviction
petition, and we remand for second stage proceedings on that claim.
13
No. 1-22-0106
¶ 45 Our decision that defendant’s actual innocence claim should go forward does not
conclude our review here, however, because the circuit court had to apply a different standard to
determine whether to grant defendant leave to file his sentencing claim. As mentioned above, for
the circuit court to grant a defendant leave to file a claim in a successive postconviction petition
(outside of an actual innocence claim), that defendant must establish cause as to why he did not
include the claim in his initial postconviction petition, and prejudice should he be denied the
chance to pursue the claim. People v. Dorsey, 2021 IL 123010, ¶ 32. “[A] petitioner must
establish cause and prejudice as to each individual claim asserted in a successive petition.”
People v. Pitsonbarger, 205 Ill. 2d 444, 463 (2002); see also People v. Woods, 2020 IL App (1st)
163031.
¶ 46 To establish cause, the defendant must identify an “objective factor that impeded the
ability to raise a specific claim during the initial postconviction proceeding.” Id. Again, we
review a circuit court’s denial of leave to file a successive postconviction petition de novo, and
additionally, we may affirm the court’s denial on any basis supported by the record, regardless of
the court’s reasoning. People v. Anderson, 401 Ill. App. 3d 134, 138 (2010).
¶ 47 Defendant here argues his 55-year sentence constitutes an unconstitutional de facto life
sentence in violation of principles derived from Miller v. Alabama, 567 U.S. 460 (2012), People
v. Harris, 2018 IL 121932, and People v. Buffer, 2019 IL 122327. In Miller, the United States
Supreme Court held that mandatory life sentences without the possibility of parole for juvenile
offenders violated the eighth amendment to the United States Constitution. Miller, 567 U.S. at
479. In Harris, the Illinois Supreme Court explained that while Miller itself only applied to
juveniles, its reasoning could be applied to young adult offenders who establish that their brain
development was akin to that of a juvenile via a claim based on the proportionate penalties
14
No. 1-22-0106
clause of the Illinois Constitution. Harris, 2018 IL 121932, ¶¶ 34-48. Finally, in Buffer, the
Illinois Supreme Court found that a sentence of longer than 40 years constituted a de facto life
sentence for juvenile offenders. Buffer, 2019 IL 122327, ¶ 41.
¶ 48 Defendant claims he can establish cause for not raising this claim in his initial
postconviction petition because a claim under the proportionate penalty clause, derived from
Miller as applied to him by Harris and Buffer, arises from case law that post-dates his initial
postconviction petition. The State responds that the fact that defendant’s initial petition pre-dated
Miller and its progeny does not provide cause for purposes of a successive postconviction
petition, citing Dorsey. In Dorsey, where the defendant was 14 years old, the Illinois Supreme
Court stated that, “we find that Miller’s announcement of a new substantive rule under the eighth
amendment does not provide cause [for purposes of a petition for leave to file a successive
postconviction petition] for a defendant to raise a claim under the proportionate penalties
clause,” reasoning that “Illinois courts have long recognized the differences between persons of
mature age and those who are minors for purposes of sentencing.” Dorsey, 2021 IL 123010, ¶ 74.
Reviewing courts have applied Dorsey to find young adult defendants could not rely on the
unavailability of the Miller/Harris framework at the time of their initial postconviction petitions
to establish cause for purposes of obtaining leave to file a successive petition. See People v.
Walker, 2022 IL App (1st) 201151, ¶ 30.
¶ 49 Based on Dorsey and its subsequent application by this court as explained above, we find
that defendant here has not established cause for not raising his proportionate penalties claim in
his initial postconviction petition because he relies solely on the fact that his initial petition pre-
dated Miller and its progeny. As the Walker court stated, “If Miller’s announcement of a new
substantive rule does not provide a minor cause to bring a successive petition, it follows that
15
No. 1-22-0106
[Harris and its progeny] *** does not provide cause for a young adult’s successive petition
either.” Walker, 2022 IL App (1st) 201151, ¶ 29. While the circuit court did not discuss this
issue, but we may affirm its decision on any basis supported by the record. Anderson, 401 Ill.
App. 3d at 138.
¶ 50 Defendant argues that certain panels of this court have previously found that the
Miller/Harris framework’s unavailability at the time of an initial petition established cause.
However, this court has previously distinguished these holdings, reasoning that the panels that
have allowed such claims only did so when the State conceded cause; however, “when cause has
been fully litigated *** this court has universally applied the holding in Dorsey to conclude that
cause has not been established based on the prior unavailability of Miller and its progeny.”
People v. Walsh, 2022 IL App (1st) 210786, ¶¶ 32-33 (contrasting the case with People v.
Horshaw, 2021 IL App (1st) 182047, ¶ 122, amongst other matters, where the State conceded
cause). The State contests cause here.
¶ 51 Defendant also argues that the Dorsey language at issue was obiter dictum, and thus need
not be followed by this court. A different panel of this court addressed and rejected this same
argument, on the basis that we must follow the supreme court’s obiter dictum as precedential
unless erroneous. See People v. Winters, 2021 IL App (1st) 191625-U, ¶ 51 (citing Cates v.
Cates, 156 Ill. 2d 76, 80 (1993)). We agree with this reasoning, and follow it here.
¶ 52 Finally, because we find defendant cannot establish cause, we need not resolve whether
his petition demonstrated prejudice.
¶ 53 CONCLUSION
¶ 54 Defendant’s petition set forth a colorable claim of actual innocence, and as such, the
circuit court erred by denying him leave to file his successive petition to pursue that claim. The
16
No. 1-22-0106
court correctly denied leave regarding the sentencing claim, however, because defendant cannot
establish cause for not raising it in his initial petition. Accordingly, we remand for second stage
proceedings on the actual innocence claim alone.
¶ 55 Affirmed in part; reversed and remanded with instructions in part.
17 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350150/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARY JANE WILLIAMS, et al., :
:
Plaintiffs, : Civil Action No.: 21-1150 (RC)
:
v. : Re Document Nos.: 59, 62, 63
:
MARTIN J. WALSH, et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING DEFENDANTS’ MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiffs, seasonal crawfish processing workers in Louisiana, together with a nonprofit
workers’ organization, bring suit against the Department of Labor (“DOL”), DOL Secretary
Martin J. Walsh in his official capacity, the Department of Homeland Security (“DHS”), and
DHS Secretary Alejandro Mayorkas in his official capacity (collectively, the “Defendants”).
Plaintiffs allege that Defendants’ rule concerning prevailing wage determinations in the H2-B
visa program—the 2015 Wage Rule—is procedurally and substantively deficient under the
Administrative Procedure Act (“APA”).
As described in more detail below, the Court finds that Plaintiffs have standing to
challenge the 2015 Wage Rule. The Court holds that the rule is procedurally invalid under the
APA, and that its lack of notice and comment prejudiced Plaintiffs. As a result of this procedural
defect, the Court has no occasion at this moment to rule on Plaintiffs’ facial APA challenges. As
for Plaintiffs’ as-applied APA challenge, the Court concludes that Defendants’ application of the
2015 Wage Rule to prevailing wage determinations based on a 2021 survey was unlawful. As a
result of Defendants’ unlawful actions, the Court elects to remand the case (without vacatur) to
the agencies for further consideration consistent with this ruling. Accordingly, the Court will
deny Defendants’ motion to dismiss, grant in part and deny in part Plaintiffs’ motion for
summary judgment, and grant in part and deny in part Defendants’ cross-motion for summary
judgment.
II. BACKGROUND
A. Regulatory Framework
This is the Court’s third opinion in this case. See Williams v. Walsh (“Williams I”), 581
F. Supp. 3d 237 (D.D.C. 2022); Williams v. Walsh (“Williams II”), No. 21-cv-1150, 2022 WL
2802354 (D.D.C. July 18, 2022). The Court repeats much of the background discussion from its
prior opinions in this case, adding updates where necessary. Under the H-2B visa program, if a
United States employer cannot find enough United States workers to perform temporary non-
agricultural unskilled work, it may obtain visas for the admission of foreign workers to fill the
gap. When Congress authorized this program, it was mindful of the risk that unfettered
admission of foreign workers willing to work at lower rates might harm United States workers
by depressing wages in their fields. Therefore, Congress required employers seeking H-2B visas
to show that their employment of foreign workers will not adversely affect the wages and
working conditions of United States workers. Comité De Apoyo A Los Trabajadores Agrícolas
v. Perez (“CATA III”), 774 F.3d 173, 177 (3d Cir. 2014) (citing 8 U.S.C. §§ 1101(a)(15)(H)(ii),
1182(a)(5)(A)(i)(I)–(II)).
By delegation from DHS, DOL holds responsibility for evaluating employer applications
for H-2B visas in order to determine whether granting the requested employment of foreign
workers will adversely affect United States workers. Williams II, 2022 WL 2802354, at *1. This
involves making two determinations: “(1) [that] qualified workers are not available in the United
2
States to perform the employment for which foreign workers are sought, and (2) [that the foreign
workers’] employment will not adversely affect wages and working conditions of similarly
employed United States workers.” CATA III, 774 F.3d at 177 (citing 8 C.F.R.
§§ 214.2(h)(6)(iii)(A), (iv)(A)). The wage an H-2B employer offers is central to this
determination, both because the availability of United States workers will depend on whether the
work pays a satisfactory wage and because admitting foreign workers willing to work for
reduced wages may decrease the wages available to United States workers looking to work in the
same industry. Thus, to be eligible to participate in the H-2B program, an employer must obtain
from DOL a determination that the employer offers at least the “prevailing wage” for the
relevant occupation. Williams II, 2022 WL 2802354, at *1; 20 C.F.R.§ 655.0(a)(2); id.
§ 655.10(a).
Just how to calculate the prevailing wage for a particular occupation has been the subject
of dispute between employers and workers for some time, and Congress, DOL, DHS, and the
courts have all weighed in over the years. At first, DOL enlisted state agencies to calculate a
prevailing wage for each occupation within their jurisdictions. CATA III, 774 F.3d at 178. In
2005, for occupations not subject to any collective bargaining agreement, DOL began to consider
both employer-submitted, private wage surveys and the Bureau of Labor Statistics Occupational
Employment Statistics (“OES”)1 survey. Id. According to Plaintiffs, surveys submitted by
employers tend to suffer from methodological defects not present in the OES survey, including
defining the relevant occupation too narrowly by using specific job duties as the determinative
criterion and failing to ensure that all relevant employers have submitted wage data. Williams II,
1
The OES recently changed its name to the Occupational Employment and Wage
Statistics Survey, or OEWS, but the Court uses the term OES for consistency with the record and
briefing.
3
2022 WL 2802354, at *2. Therefore, Plaintiffs allege that employer-submitted surveys indicate
that the prevailing wage is lower than it is under the preferable OES method, and that DOL’s
consideration of employer-submitted wage surveys systematically depresses wages in H-2B
industries. Id.
A 2008 rule formalized DOL’s practice of making prevailing wage determinations based
either on employer-submitted surveys or the OES wage. See Labor Certification Process and
Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered
Nursing in the United States (H-2B Workers), and Other Technical Changes (“2008 Rule”), 73
Fed. Reg. 78020, 78056 (Dec. 19, 2008). And a 2009 guidance document set out the standards
by which DOL would determine the adequacy and validity of the survey methodology. See
DOL, Prevailing Wage Determination Policy Guidance (Nov. 2009) (“2009 Wage Guidance”),
https://dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
Though the notice of proposed rulemaking in the 2008 Rule solicited comments generally, it did
not permit comments on the specific topic of acceptance of employer-submitted surveys. See
Williams II, 2022 WL 2802354, at *2. A district court held that a separate feature of the 2008
rule—its division of OES data to identify OES wages for different “skill levels”—was arbitrary
and capricious in violation of the APA. Comité de Apoyo a los Trabajadores Agrícolas v. Solis
(“CATA I”), No. 09-240, 2010 WL 3431761, at *19 (E.D. Pa. Aug. 30, 2010). DOL responded
with a notice of proposed rulemaking, and ultimately a final rule in 2011 that, among other
things, forbade employers from submitting their own surveys when an applicable OES wage (or
another approved federal wage measure) was available. See Wage Methodology for the
Temporary Non-agricultural Employment H-2B Program (“2011 Wage Rule”), 76 Fed. Reg.
3452, 3465–67 (Jan. 19, 2011). The 2011 Wage Rule created two narrow exceptions to this ban:
4
employer surveys could still be used in situations where the OES does not provide data in the
geographic area or where the OES does not accurately represent the relevant job classification.
Id. at 3466–67. In support of its change in policy, DOL explained that the OES survey was “the
most consistent, efficient, and accurate means of determining the prevailing wage rate for the H-
2B program.” Id. at 3465. But Congress refused to provide appropriations to implement the
2011 Wage Rule,2 so DOL continued to operate under the 2008 Rule, including by
differentiating among skill levels and by accepting employer-provided surveys. Williams II,
2022 WL 2802354, at *2. Yet again, the Eastern District of Pennsylvania ordered DOL to cease
its skill-level differentiation. Comité de Apoyo a los Trabajadores Agrícolas v. Solis (“CATA
II”), 933 F. Supp. 2d 700, 711–12 (E.D. Pa. 2013).
In response, and without notice and comment, DOL and DHS published a joint Interim
Final Rule in 2013, which, among other things, officially returned to the policy of requiring DOL
to accept employer-provided surveys. Williams II, 2022 WL 2802354, at *2; Wage
Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2 (“2013
IFR”), 78 Fed. Reg. 24047, 24054–55 (Apr. 24, 2013). The 2013 IFR responded to CATA II by
removing skill-level differentiation from the calculation of OES wages, see 2013 IFR at 24053,
but left untouched the 2008 Rule’s provisions governing survey methodology, see id. at 24054–
55 (stating that the 2013 IFR does “not revise or amend” 20 C.F.R. § 655.10(f) “of the 2008
rule”). Despite returning the agency to the 2008 Rule’s employer-survey regime, the 2013 IFR
highlighted that DOL nonetheless had “the concerns expressed in the 2011 rule about the
2
The Consolidated and Further Continuing Appropriations Act, 2012, enacted on
November 18, 2011, provided that “[n]one of the funds made available by this or any other Act
for fiscal year 2012 may be used to implement, administer, or enforce, prior to January 1, 2012,
the [2011 Wage Rule].” Pub. L. No. 112–55, § 546, 125 Stat. 552, 640 (2011).
5
consistency, reliability and validity of these surveys[.]” Id. at 24055. The 2013 IFR solicited
post-rule public comments on a number of issues, such as “the accuracy and reliability of private
surveys,” including “state-developed” surveys. Id. Meanwhile, DOL decided to indefinitely
delay the effective date of the 2011 Wage Rule because Congress continued to refuse
appropriations to implement it. See Wage Methodology for the Temporary Non-Agricultural
Employment H-2B Program; Delay of Effective Date (“Indefinite Delay Rule”), 78 Fed. Reg.
53643, 53645 (Aug. 30, 2013); Wage Methodology for the Temporary Non-Agricultural
Employment H-2B Program (“2015 Wage Rule”), 80 Fed. Reg. 24146, 24150 (Apr. 29, 2015)
(explaining this history).3
But the 2013 IFR, too, was quickly vacated; in late 2014, the Third Circuit in CATA III
concluded that DOL and DHS had not sufficiently explained their policy of approving employer
survey submissions and held, based on the then-existing record, that the policy was arbitrary and
capricious in violation of the APA. CATA III, 774 F.3d at 186–91. The Third Circuit ordered
that “private surveys no longer be used in determining the mean rate of wage for occupations.”
Id. at 191. But it adopted the two narrow exceptions from the 2011 Wage Rule: “where an
otherwise applicable OES survey does not provide any data for an occupation in a specific
geographical location, or where the OES survey does not accurately represent the relevant job
classification.” Id. CATA III also vacated the 2009 Wage Guidance as arbitrary and capricious
on the basis that it continued to maintain skill-level considerations in violation of DOL’s own
rules. Id. at 190–91.
3
On January 17, 2014, the Consolidated Appropriations Act, 2014, Pub. L. No. 113-76,
128 Stat. 5, was enacted. For the first time, DOL’s appropriations did not prohibit the
implementation or enforcement of the 2011 Wage Rule. See 2015 Wage Rule at 24150. To date,
however, DOL and DHS have not revisited the Indefinite Delay Rule.
6
In response, DOL and DHS jointly published the 2015 Wage Rule. This rule is at the
center of the parties’ current dispute. Defendants published it without notice and comment, and
the agencies expressly disclaimed invoking the good cause exception. 2015 Wage Rule at 24153
n.17. The 2015 Wage Rule purports to finalize the 2013 IFR (even though it had been vacated);
because the 2013 IFR solicited (and the agencies had received) comments on the appropriate
methodological requirements for and propriety of using employer-submitted surveys, the
agencies concluded that further notice and comment was not necessary. Id. Among other things,
the 2015 Wage Rule requires DOL to accept prevailing wage surveys from employers who wish
to participate in the H-2B program, so long as the survey “was independently conducted and
issued by a state, including any state agency, state college, or state university.” 20 C.F.R.
§ 655.10(f)(1)(i); 2015 Wage Rule at 24184. Under this rule, “it is appropriate to permit
prevailing wage surveys that are conducted and issued by a state as a third, limited category of
acceptable employer-provided surveys, even where the occupation is sufficiently represented in
the OES.” 2015 Wage Rule at 24169–70.
Per the 2015 Wage Rule, when an employer submits such a survey to DOL as part of its
application package, it must include “specific information about the survey methodology,
including such items as sample size and source, sample selection procedures, and survey job
descriptions, to allow a determination of the adequacy of the data provided and validity of the
statistical methodology used in conducting the survey.” 20 C.F.R. § 655.10(f)(4). The employer
must also attest via a standard form, Form ETA-9165, that the survey was conducted by a third
party (not an employer or its agents), that the surveyor either contacted a randomized sample of
relevant employers or attempted to contact them all, and, among other things, that the “survey
includes wage data from at least 30 workers and three employers.” Id. §§ 655.10(f)(4)(i)–(iii).
7
An employer-submitted survey “must be the most current edition of the survey and must be
based on wages paid not more than 24 months before the date the survey is submitted for
consideration.” Id. § 655.10(f)(5). Once DOL accepts an employer survey and relies on it to
certify that the employer is paying the prevailing wage and therefore eligible to participate in the
H-2B program, it must specify how long its survey-based determination of the prevailing wage
in the industry remains valid. Id. § 655.10(h). The maximum validity period for any prevailing
wage determination is one year from the date of the determination. Id.
At the end of 2015, Congress chimed in with its own view of the use of employer surveys
in DOL’s prevailing wage determinations. Beginning in fiscal year 2016 up to the present,
Congress has attached a rider to each annual appropriations act that takes the decision whether or
not to accept employer-submitted surveys out of DOL and DHS’s hands:
The determination of prevailing wage for the purposes of the H–2B program shall
be the greater of—(1) the actual wage level paid by the employer to other
employees with similar experience and qualifications for such position in the same
location; or (2) the prevailing wage level for the occupational classification of the
position in the geographic area in which the H–2B nonimmigrant will be employed,
based on the best information available at the time of filing the petition. In the
determination of prevailing wage for the purposes of the H–2B program, the
Secretary shall accept private wage surveys even in instances where Occupational
Employment Statistics survey data are available unless the Secretary determines
that the methodology and data in the provided survey are not statistically supported.
Consol. Appropriations Act, 2022, Pub. L. No. 117-103, § 110, 136 Stat. 49, 439 (2022); see also
Consol. Appropriations Act, 2021, Pub. L. No. 116-260, § 110, 134 Stat. 1182, 1564–65 (2020)
(same); Further Consol. Appropriations Act, 2020, Pub. L. No. 116-94, § 110, 133 Stat. 2534,
2554 (2019) (same); Dep’t of Defense, Labor, Health and Hum. Serv., and Educ. Appropriations
Act, 2019, and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, § 111, 132 Stat.
2981, 3065 (2018) (same); Consol. Appropriations Act, 2018, Pub. L. No. 115-141, § 112, 132
Stat. 348, 712 (2018) (same); Consol. Appropriations Act, 2017, Pub. L. No. 115-31, § 112, 131
8
Stat. 135, 518–19 (2017) (same); Consol. Appropriations Act, 2016, Pub. L. No. 114-113, § 112,
129 Stat. 2242, 2599 (2015) (same). Because the above-quoted language of each annual
appropriations rider is identical, the Court will refer to each version as the “Appropriations
Rider” without distinction for ease of discussion.
Thus, from 2016 through the present, DOL has been required by statute to accept all
statistically supported employer-submitted surveys, regardless of what the DOL regulations,
including the 2015 Wage Rule, say. Notably, the Appropriations Rider is broader than the DOL
regulations; it does not limit private employer survey submissions to surveys conducted by a
state or state university. See 20 C.F.R. § 655.10(f)(1)(i). In this way, the Appropriations Rider
largely displaces the 2015 Wage Rule’s provision for DOL acceptance of state-run employer
surveys, id. § 655.10(f)(1)(i), and, arguably, the 2015 Wage Rule’s methodological requirements
for state-run employer surveys, id. §§ 655.10(f)(2), (f)(4).
By its terms, the Appropriations Rider raises the question of how DOL is to determine
whether “the methodology and data in” a particular employer survey are “statistically
supported.” Pub. L. No. 117-103, § 110, 136 Stat. at 439. Days after Congress passed the
Appropriations Rider for the 2016 fiscal year, DOL answered this question. DOL released a
guidance document interpreting these terms to mean the same thing as “those methodological
criteria for surveys set out in the 2015 Wage Rule.” DOL, Emp’t & Training Admin., Effects of
the 2016 Dep’t of Labor Appropriations Act (the “FAQ”) at 4 (Dec. 29, 2015), https://www.dol.
gov/sites/dolgov/files/ETA/oflc/pdfs/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.
pdf.4 The FAQ goes on to list specific requirements, many of which match the 2015 Wage Rule
4
The Court notes that Williams II inaccurately (albeit harmlessly) stated that this
guidance was released months after the passage of the Appropriations Rider in 2015. 2022 WL
2802354, at *6.
9
requirements for state-institution-run employer surveys codified at 20 C.F.R. § 655.10(f)(4). See
Williams II, 2022 WL 2802354, at *6 & n.3. Thus, the FAQ clarifies that the methodological
requirements of the 2015 Wage Rule, 20 C.F.R. §§ 655.10(f)(2), (f)(4), still play a role in
prevailing wage determinations.
B. Procedural History
Every crawfish season—from January at the earliest to July at the latest each year—
crawfish processing plants in Louisiana hire both American and, under the H-2B program,
foreign workers to peel crawfish. Williams II, 2022 WL 2802354, at *4. Like any other
prospective H-2B employer, Louisiana crawfish processors must submit applications to DOL for
approval to participate in the H-2B program, and as part of this process must obtain a
determination that they offer the prevailing wage in the industry. Id. Crawfish processors
typically apply for prevailing wage determinations well in advance of each year’s crawfish
season kickoff, and they often submit their own wage surveys. Id. According to Plaintiffs,
DOL’s acceptance of employer-provided surveys depresses wages in the crawfish industry. Id.
For example, Plaintiffs allege that in 2020, “more than two dozen Louisiana seafood companies
provided DOL with surveys pursuant to 20 C.F.R. § 655.10(f)(1)(i) that allowed them to pay
their workers anywhere from $0.18 to $4.97 less per hour than would have been required under
the OES survey”; this amounted to wage losses of “up to 35% of the applicable OES wage.” Id.
(citation omitted).
DOL issues most of its prevailing wage determinations in August of each year. Id. The
same pattern held this year—DOL adjudicated most crawfish-processor H-2B prevailing wage
applications for the 2022 crawfish season in August 2021. See id. For the 2022 crawfish season,
DOL issued at least 20 prevailing wage determinations to Louisiana crawfish processers based
on the 2021 edition of the employer-submitted Louisiana Crawfish Wage Survey, a survey
10
conducted by the Louisiana State University Agricultural Center. Id. One of these prevailing
wage determinations went to Crawfish Distributors, Inc. of Breaux Bridge, Louisiana. Id. The
2021 Louisiana Crawfish Wage Survey returned an average hourly rate for crawfish pickers of
$10.43, and Louisiana crawfish employers are offered positions at this rate. Id. Meanwhile, the
OES survey hourly rates for these employers are significantly higher than $10.43; for Crawfish
Distributors, the applicable OES wage is $13.51 per hour. Id.
This lawsuit began on April 27, 2021, when Plaintiffs filed a four-count Complaint
raising procedural and substantive claims against Defendants. See generally Compl., ECF No. 1.
Counts I–III each claimed that the portions of the 2015 Wage Rule that provide for the
acceptance and evaluation of employer-submitted state wage surveys (20 C.F.R.
§§ 655.10(f)(1)(i), (f)(4)) violate the APA. Id. ¶¶ 102–09. For relief, Counts I–III each sought a
declaration that the challenged portions of the 2015 Wage Rule were unlawful and an order
vacating them. Id. ¶¶ 104, 107, 109; see also id. at 32. Count IV was pleaded in the alternative;
it alleged that DOL had “repeatedly approv[ed]” past versions of the Louisiana Crawfish Wage
Survey “without observing the safeguards required by 20 C.F.R. § 655.10(f)” or the
Appropriations Rider’s requirement to ensure that the study was “statistically supported.” Id.
¶¶ 110–13.
In Williams I, this Court dismissed all counts in the original Complaint. Williams I, 581
F. Supp. 3d at 265. The Court held that Plaintiffs lacked standing to bring Counts I–III because
their injuries—depressed wages due to DOL’s reliance on the employer-submitted Louisiana
Crawfish Wage Survey rather than the OES wage—were not redressable. Id. at 252–54. The
Court noted that even were it to grant Plaintiffs their requested relief and vacate 20 C.F.R.
§§ 655.10(f)(1)(i), (f)(4), the Appropriations Rider would still control and require DOL to accept
11
any employer survey it deemed statistically supported. Id. at 253. Accordingly, for the same
reason, the Court denied Plaintiffs’ request for a preliminary injunction with respect to Counts I–
III. Id. at 259. Turning to Count IV, the Court held that it was moot because the challenged
prevailing wage determinations based on past versions of the Louisiana Crawfish Wage Survey
governed only previously concluded crawfish seasons, and there was no indication that Plaintiffs
were, for example, seeking a judicial ruling as a basis to seek backpay in a future suit. Id. at
259–60. Williams I, however, granted Plaintiffs leave to file a Supplemental Complaint to add a
new Count V and found that Plaintiffs had standing to bring Count V. See id. at 251–52. Count
V claims that DOL’s prevailing wage determinations for the 2022 crawfish season based on the
2021 Louisiana Crawfish Wage Survey must be vacated under the APA because they are
arbitrary and capricious and contrary to law. Suppl. Compl. ¶¶ 30–32, ECF No. 39.
In Williams II, Plaintiffs moved for partial reconsideration of the Court’s dismissal of
Counts I–III, and a preliminary injunction in relation to Count V. 2022 WL 2802354, at *5.
Plaintiffs no longer challenged the use of an employer survey when an OES wage is available,
nor did they seek reconsideration of the Court’s dismissal of Count IV. Id. at *6 n.2. The Court
granted reconsideration of Counts I–III and revived them insofar as they challenged the 2015
Wage Rule at 20 C.F.R. §§ 655.10(f)(2), (f)(4). Id. at *6. It explained that the parties’ failure in
Williams I to mention the existence of the FAQ guidance document gave the Court “an
incomplete understanding of the governing regulatory regime.” Id. at *8. With the FAQ in the
picture, “these portions [sections 655.10(f)(2), (f)(4)] of the 2015 Wage Rule continue to operate
as a means of interpreting and implementing the Appropriations Rider,” and therefore the
injuries alleged in Counts I–III were redressable. Id. The Court therefore reinstated Counts I–III
to the extent that they challenged 20 C.F.R. §§ 655.10(f)(2), (f)(4). Id. Williams II, however,
12
denied Plaintiffs’ motion for a preliminary injunction with respect to Count V. Id. The Court
found that Plaintiffs could not carry their burden of showing irreparable harm because of the
possibility that their economic injuries could be compensated at a later date. Id. at *8–13.
Williams II was decided in July 2022, at the tail end of the 2022 crawfish season. That
season is now over. The 2022 Louisiana Crawfish Wage Survey has been released, and DOL has
received prevailing wage applications for the 2023 crawfish season that rely on the new survey.
See Defs.’ Notice of Admin. Action (Sept. 9, 2022) at 1, ECF No. 64. The 2022 survey,
according to Plaintiffs, is merely an update of the 2021 survey. See Pls.’ Mem. Opp’n to Defs.’
Second Mot. to Dismiss (“MTD Opp’n”) at 5, ECF No. 60 (stating that emails Plaintiffs obtained
through a public records request from Louisiana State University show that the 2022 Louisiana
Crawfish Wage Survey “update[s]” the 2021 version).
Defendants now move to dismiss Count V as moot on the basis that the 2022 crawfish
season has ended. See Defs.’ Mem. of Points and Auth. (“MTD”) at 1, ECF No. 59-1.
Meanwhile, Plaintiffs move for summary judgment on their remaining counts—Counts I, II, III,
and V. Pls.’ Mem. Supp. Pls.’ Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. 62-1. Plaintiffs ask
the Court to vacate two provisions of the 2015 Wage Rule, at 20 C.F.R. §§ 655.10(f)(2), (f)(4),
on the basis that they lack adequate notice-and-comment under the APA; are contrary to the
language of the Appropriations Rider; and are arbitrary and capricious under the APA. Id. at 11–
38. Plaintiffs also ask the Court to find DOL’s prevailing wage determinations, based on the
2021 Louisiana Crawfish Wage Survey, unlawful because they claim that survey violates the
2015 Wage Rule. Id. at 38–40.
For their part, Defendants filed a cross-motion for summary judgment. Defs.’ Cross-Mot.
for Summ. J. (“Defs.’ Cross-Mot.”), ECF No. 63. Defendants argue that Plaintiffs lack standing
13
to challenge the 2015 Wage Rule. Defs.’ Reply in Support of Their Cross-Mot. for Summ. J.
(“Defs.’ Reply”) at 1–10, ECF No. 70. On the merits, Defendants claim that the 2015 Wage
Rule: satisfied the APA’s notice-and-comment requirements; is not arbitrary and capricious
under the APA; and is not contrary to the Appropriations Rider. Defs.’ Cross-Mot. at 10–24.
Defendants also argue that DOL properly applied the 2015 Wage Rule in issuing prevailing wage
determinations based on the 2021 Louisiana Crawfish Wage Survey. Id. at 24. Finally, they
propose that if Plaintiffs are entitled to a remedy, remand without vacatur is the appropriate
remedy. Id. at 24–26. The motion to dismiss and the cross-motions for summary judgment are
now ripe for decision.
III. MOTION TO DISMISS
The Court will first address Defendants’ motion to dismiss Count V as moot. Count V
claims that DOL’s prevailing wage determinations based on the 2021 Louisiana Crawfish Wage
Survey fail to comply with the 2015 Wage Rule. The Court finds that although the 2022
crawfish season is over, Count V is not moot because a determination of the unlawfulness of the
2021 Louisiana Crawfish Wage Survey will enable Plaintiffs to bring potential claims for
backpay. In the alternative, Count V meets the mootness exception of capable of repetition, yet
evading review.
The United States Constitution limits the jurisdiction of the federal courts to “Cases” and
“Controversies.” U.S. Const. art. III, § 2. The same Article III case-or-controversy requirement
that underpins the standing doctrine means that federal courts lack jurisdiction to decide moot
cases. See Noble v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 285 F. Supp. 3d 128, 132 (D.D.C.
2018). “A case or claim is moot ‘when the issues presented are no longer live or the parties lack
a legally cognizable interest in the outcome.’” Id. (quoting Schmidt v. United States, 749 F.3d
14
1064, 1068 (D.C. Cir. 2014)). Thus, mootness deprives the court of jurisdiction and requires
dismissal when “intervening events make it impossible to grant the prevailing party effective
relief, or when the [c]ourt’s decision will neither presently affect the parties’ rights nor have a
more-than-speculative chance of affecting them in the future.” Id. (cleaned up and citations
omitted). “The party seeking jurisdictional dismissal must establish mootness, while the
opposing party has the burden to prove that a mootness exception applies.” Reid v. Hurwitz, 920
F.3d 828, 832 (D.C. Cir. 2019).
A. Possibility of Back Wages
The parties trade arguments about whether the 2022 crawfish season’s expiration renders
Count V moot. Defendants argue that Count V should meet the same fate as Count IV, which
Williams I dismissed as moot because vacatur of the 2018, 2019, and 2020 Louisiana Crawfish
Wage Surveys could not have affected wages for the 2021 crawfish season, which had already
expired. MTD at 6; see Williams I, 581 F. Supp. 3d at 260 (“Vacatur of these approvals would
do nothing to help Plaintiffs with respect to their wages during upcoming crawfish seasons or
otherwise, so Count IV is moot.”). That reasoning would suggest that Count V, which seeks
vacatur of wage determinations under the 2021 Louisiana Crawfish Wage Survey, is also moot
because the 2022 crawfish season is over. But unlike their position in Williams I, Plaintiffs
specifically tie their relief to backpay: they argue there is meaningful relief available because if
the Court finds the wage determinations under the 2021 Louisiana Crawfish Wage Survey
unlawful, Plaintiffs “may use that judgment to seek the wages they are owed for the 2022
season.” MTD Opp’n at 2. Plaintiffs point out that the Court denied them a preliminary
injunction for Count V on the basis that the potential to seek backpay in future suits showed that
they did not suffer irreparable harm. See Williams II, 2022 WL 2802354, at *10 (“It appears
that, if Plaintiffs were to prevail on the merits, at least some of them would have potentially
15
viable claims for backpay[.]”). It would be illogical, Plaintiffs argue, for the Court to now “deny
Plaintiffs the relief that would make subsequent [backpay] suits possible.” MTD Opp’n at 2.
Although Plaintiffs did not cite a case for the proposition that an action against a
defendant is justiciable because a ruling could serve as a predicate for a future backpay suit
against a third party, the Court has located a similar case in this District that supports their
position: Calixto v. Walsh, No. 19-cv-1853, 2022 WL 4446383 (D.D.C. Sept. 23, 2022). Calixto
involved a suit brought by seasonal laborers under the H2-B program against the Secretary of
Labor alleging that DOL’s vacatur of certain supplemental wage determinations was arbitrary
and capricious. Id. at *1. There, the agency argued that the court could not provide meaningful
relief to the plaintiffs because “the challenged agency action involved [a] directive issued to
Plaintiffs’ employers (rather than Plaintiffs themselves).” Id. at *11. The court rejected that
argument. It ruled that a judicial ruling on the lawfulness of the agency’s action “would permit
Plaintiffs to pursue back wages based on the wage rates specified” in the vacated supplemental
wage determinations. Id. at *12. As in Calixto, a judicial determination here that prevailing
wage determinations based on the 2021 Louisiana Crawfish Wage Survey are unlawful is
meaningful to Plaintiffs because they plan to use this as a basis to claim backpay in future suits.
Even though the outcomes of those future suits are uncertain, “[a] party need not demonstrate
with certainty that its injury will be redressed[.]” NTCH, Inc. v. Fed. Commc’ns Comm’n, 841
F.3d 497, 506 (D.C. Cir. 2016). Thus, Count V is not moot.
B. Capable of Repetition, Yet Evading Review
The Court holds in the alternative that even if Plaintiffs’ potential claim for damages does
not save their claim from mootness, it is capable of repetition, yet evading review. It is well
established that although a case may be moot, “an exception to the mootness doctrine” exists “for
a controversy that is ‘capable of repetition, yet evading review.’” Kingdomware Techs., Inc. v.
16
United States, 579 U.S. 162, 170 (2016) (cleaned up and citation omitted). “To satisfy the
exception, a party must demonstrate that ‘(1) the challenged action is in its duration too short to
be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that
the same complaining party will be subjected to the same action again.’” Ralls Corp. v. Comm.
on Foreign Inv. in U.S., 758 F.3d 296, 321 (D.C. Cir. 2014) (cleaned up) (quoting Clarke v.
United States, 915 F.2d 699, 704 (D.C. Cir. 1990)).
Here, Count V is a “classic example of a legal injury that is capable of repetition yet
evading review.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 325 (D.C. Cir.
2009). First, the challenged action evades review. An action “evades review” when “it is too
short in duration to be fully litigated in the United States Supreme Court before it expires.”
Ralls, 758 F.3d at 321. Thus, “[a]s a rule of thumb, ‘agency actions of less than two years’
duration cannot be fully litigated prior to cessation or expiration, so long as the short duration is
typical of the challenged action.’” Id. (cleaned up) (quoting Del Monte, 570 F.3d at 322). Here,
DOL’s prevailing wage determinations for the 2022 crawfish season based on the 2021
Louisiana Crawfish Wage Survey were only valid for one year. See Williams II, 2022 WL
2802354, at *3 (citing 20 C.F.R. § 655.10(h)); Defs.’ Reply Supp. Mot. to Dismiss (“MTD
Reply”) at 6, ECF No. 61. And Plaintiffs’ opportunity to challenge those prevailing wage
determinations was “shorter still.” MTD Opp’n at 6. Using the 2022 crawfish season as an
example, Plaintiffs explain that DOL did not release information regarding 2022 prevailing wage
determinations until November 2021, and the 2022 crawfish season ended in July 2022—thus
affording Plaintiffs merely nine months to challenge agency action. Id.
Defendants do not contest the brevity of Plaintiffs’ window. Instead, they argue that
Plaintiffs’ self-inflicted delays are responsible for mooting this case. Defendants rely on
17
Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008), for the proposition that “[a] litigant cannot
credibly claim his case ‘evades review’ when he himself has delayed its disposition.” Id. at
1296; see Newdow v. Roberts, 603 F.3d 1002, 1009 (D.C. Cir. 2010) (“It is clear the principle
of Armstrong requires a plaintiff to make a full attempt to prevent his case from becoming moot,
an obligation that includes filing for preliminary injunctions and appealing denials of preliminary
injunctions.”). Defendants argue that Plaintiffs could have moved for a preliminary injunction
on Count V sooner, and that Plaintiffs took the fatal misstep of failing to appeal the Court’s
denial of their motion for preliminary injunction. MTD at 10–11. Plaintiffs counter that they did
not delay, and in any event, would not have been able to exhaust the review process within a
year. MTD Opp’n at 6–7.
Plaintiffs have the better view. As Newdow explains, Armstrong stands for the
proposition that “[t]he capable-of-repetition doctrine is not meant to save mooted cases that may
have remained live but for the neglect of the plaintiff.” 603 F.3d at 1009 (emphasis added); cf.
Burrage v. United States, 571 U.S. 204, 211 (2014) (stating that “but for” causation requires
action that was “the straw that broke the camel’s back”). Thus, in Ralls, the D.C. Circuit found
that an agency’s order that was in effect for 57 days (and no more than 90 days maximum)
satisfied the capable of repetition, yet evading review exception. 758 F.3d at 321–23. Ralls
distinguished Armstrong on the basis that Armstrong involved “just two levels of [judicial]
review” and that, “[h]ad Armstrong acted with more alacrity, he might have been able to obtain
review” by the Supreme Court before his claim was mooted. Id. at 323. Given Ralls’s short
timeline to challenge the agency’s order, however, the Circuit refused to “attach [ ] significance”
to Ralls’s purported delays, because “[e]ven if Ralls had sought judicial review of the CFIUS
18
Order on the day it issued, it could not have obtained review by the district court, this Court and
the Supreme Court before the order was revoked.” Id. (emphasis added).
This case is like Ralls. “Even if” Plaintiffs moved with utmost speed, they would not
have been able to obtain review of DOL’s 2022 prevailing wage determinations in this Court, the
D.C. Circuit, and the Supreme Court in the nine-month window before the 2022 crawfish season
expired. Id. To put the pace of this litigation in perspective, by the time this Court denied
Plaintiffs’ motion for a preliminary injunction on Count V in mid-July 2022, the 2022 crawfish
season was already weeks away from ending. Given the short timeline Plaintiffs had to work
with, an earlier-filed motion for a preliminary injunction or an appeal of the denial of the
preliminary injunction would not have made a difference here, and therefore, like the D.C.
Circuit in Ralls, the Court will not “attach [ ] significance” to these purported delays. Id. Thus,
DOL’s 2022 prevailing wage determinations satisfy the evading review prong of this exception.5
Second, the agency action at issue is also capable of repetition. Whether an unlawful
agency action is capable of repetition turns on “whether the legal wrong complained of by the
plaintiff is reasonably likely to recur,” and not “whether the precise historical facts that spawned
the plaintiff’s claims are likely to recur.” Del Monte, 570 F.3d at 324. “In estimating the
likelihood of an event’s occurring in the future, a natural starting point is how often it has
occurred in the past.” Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir. 1990).
Here, the legal wrong at issue is DOL’s prevailing wage determinations based on the
purportedly flawed 2021 Louisiana Crawfish Wage Survey. Plaintiffs claim that “[e]very year
for at least the past four years, DOL has approved employer-provided surveys that are
5
Plaintiffs did not invoke the “capable of repetition, yet evading review” doctrine with
respect to Count IV, which the Court dismissed as moot and on which Plaintiffs did not move for
reconsideration. Williams I, 581 F. Supp. 3d at 262; Williams II, 2022 WL 2802354, at *6 n.2.
19
functionally identical to the 2021 Louisiana Crawfish Wage Survey.” MTD Opp’n at 4; see also,
e.g., id. at 5 (stating that emails that Plaintiffs obtained through a public records request from
Louisiana State University show that the 2022 Louisiana Crawfish Wage Survey “update[s]” the
2021 version). According to Plaintiffs, these annual surveys suffer from the same flaws. Id. at
4; see Pls.’ Mot. at 38 (“[T]he 2021 Survey fails to comply with the requirements of the 2015
Wage Rule.”). Defendants, however, argue that Plaintiffs engage in “pure speculation”
regarding whether employers will continue to use these surveys in future years and whether DOL
will issue prevailing wage determinations based on these surveys. MTD Reply at 6. Yet days
after filing their reply brief, Defendants notified the Court that DOL had recently received
“several prevailing-wage-determination [ ] applications relying on a newly-released Louisiana
Crawfish Wage Survey” and that it would “process them in due course.” Defs.’ Notice of
Admin. Action at 1.
Plaintiffs have the better argument. “[T]he capable-of-repetition prong is not to be
applied with excessive ‘stringency.’” Ralls, 758 F.3d at 324 (quoting Honig v. Doe, 484 U.S.
305, 318 n.6 (1988)). “[A] controversy need only be ‘capable of repetition,’ not ‘more probable
than not.’” Id. (emphasis in original). For that reason, “a controversy is capable of repetition
even if its recurrence is far from certain.” Id. (emphasis in original). Plaintiffs have met this
standard here. Plaintiffs plan to continue working in this industry. See, e.g., Johnson Suppl.
Decl. ¶ 6, ECF No. 74-1. Defendants’ reliance on the Louisiana Crawfish Wage Surveys in the
previous four years, coupled with their insistence on the surveys’ soundness, show that this
precise dispute is likely—and at the very least, capable—of repetition in the near future.
Accordingly, Count V is not moot.
20
IV. MOTION FOR SUMMARY JUDGMENT
Having resolved Defendants’ motion to dismiss, the Court now turns to the parties’ cross-
motions for summary-judgment. To recap, Defendants argue that Plaintiffs lack standing to
bring their claims. Plaintiffs argue that the 2015 Wage Rule is procedurally and substantively
defective under the APA. Plaintiffs also aver that DOL improperly applied the 2015 Wage Rule
to its prevailing wage determinations based on the 2021 Louisiana Crawfish Wage Survey. The
Court will consider these arguments in order.
A. Standing
Courts employ the doctrine of standing to determine whether a plaintiff’s claims present a
case or controversy. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). It is by now
familiar
that the irreducible constitutional minimum of standing contains three elements. 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 traceable to the
challenged action of the defendant, and not the 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.
Id. at 560–61 (cleaned up). Plaintiffs bear the burden of establishing each of these elements for
each form of relief they seek. See Cato Inst. v. SEC, 4 F.4th 91, 94 (D.C. Cir. 2021) (per
curiam). Moreover, “each element must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Thus, “on summary
judgment, the plaintiffs must prove injury in fact with ‘specific facts’ in the record.” Humane
Soc’y of the United States v. Perdue, 935 F.3d 598, 602 (D.C. Cir. 2019) (citation omitted).
21
In Williams II, the Court already explained that “vacatur of 20 C.F.R. § 655.10(f)(2),
(f)(4) . . . would likely redress the injuries Plaintiffs claim in connection with [Counts I–III].”
Williams II, 2022 WL 2802354, at *7.
With the FAQ and the challenged portions of the 2015 Wage Rule out of the picture,
DOL would likely issue a new interpretation of the Appropriations Rider “statistically
supported” requirement that would not be guided by the alleged methodologically
defective requirements of the 2015 Wage Rule. Such an interpretation could well benefit
Plaintiffs by implementing more stringent methodological requirements that result in
surveys that report higher wages.
Id.; see also id. (“[T]he relief requested in connection with Counts II and III would likely
redress, and indeed prevent, future injuries in the form of depressed wages these plaintiffs sustain
as a result of employer survey methodologies that are acceptable under current rules.”). The
Court noted, however, that “Defendants remain free to raise any additional arguments about
standing, and even about redressability, at the summary judgment stage.” Id. at *8.6
Defendants’ standing objections now center on injury in fact and traceability. With
respect to injury in fact, they argue that “Plaintiffs have not directly related this theory of injury
to themselves, either currently or going forward.” Defs.’ Reply at 3. Not so. As the Court
previously observed, “Plaintiffs allege that 20 C.F.R. § 655.10(f)(2) and 20 C.F.R. § 655.10(f)(4)
permit employer surveys that report artificially low wages.” Williams II, 2022 WL 2802354, at
*7. Under Plaintiffs’ theory, they are injured by DOL’s “methodologically defective
requirements of the 2015 Wage Rule” and its decision to forgo “more stringent methodological
6
It is not clear to the Court whether Defendants also lodge a standing challenge against
Count V. Regardless, the Court finds that Plaintiffs have standing to bring Count V. The
Court’s ruling above that Count V is not moot also goes to show that Plaintiffs’ alleged injury is
redressable. See Cause of Action Inst. v. Tillerson, 285 F. Supp. 3d 201, 207–08 (D.D.C. 2018)
(“Both mootness and standing involve the question of redressability.”). Plaintiffs have also
demonstrated injury and traceability for the reasons discussed in Williams I, see 581 F. Supp. 3d
at 263–64, and this section.
22
requirements that [would] result in surveys that report higher wages.” Id. According to
Plaintiffs, DOL’s prevailing wage determinations based on employer surveys under the 2015
Wage Rule cause them to receive artificially low wages. That is plainly a direct and concrete
injury.
Plaintiffs have also established injury under a theory of competitor standing. Even if
Plaintiffs’ employers do not rely on employer surveys, the use of methodologically defective
employer surveys by other Louisiana crawfish employers will result in competitive harm for all
Plaintiffs. See Pls.’ Sur-reply Regarding Injury-in-Fact and Traceability (“Pls.’ Sur-Reply”) at 6,
ECF No. 74. “The D.C. Circuit ‘has repeatedly held that an individual who competes in a labor
market has standing to challenge allegedly unlawful government action that is likely to lead to an
increased supply of labor—and thus competition—in that market.’” Garcia v. Stewart, 531 F.
Supp. 3d 194, 206 (D.D.C. 2021) (quoting Save Jobs USA v. Dep’t of Homeland Sec., 942 F.3d
504, 509 (D.C. Cir. 2019)). According to Plaintiffs, “approval of a substandard wage rate for
any Louisiana crawfish processors necessarily impacts both the wages that their non-H-2-B
competitors will pay and the workers’ opportunities to apply for those jobs at higher wages.”
Williams II, 2022 WL 2802354, at *10 (emphasis removed); see also Pls.’ Sur-reply at 6 (“[T]he
increase in competition from foreign workers admitted at the substandard wages permitted by the
survey regulations will adversely affect the wages of all workers in the industry.”). That makes
sense. As this Court previously observed, “[w]hen Congress authorized this program, it was
mindful of the risk that unfettered admission of foreign workers willing to work at lower rates
might harm United States workers by depressing wages in their fields.” Williams II, 2022 WL
2802354, at *1; see also Garcia, 531 F. Supp. 3d at 206 (observing that “basic economic logic”
teaches that “an increase in labor supply drives labor prices (i.e., wages) down” (cleaned up)).
23
Defendants’ attempt to minimize Plaintiffs’ injury to “some day” intentions, Defs.’ Reply
at 3 (quoting Lujan, 504 U.S. at 564), is doubly wrong. As an initial matter, Plaintiffs intend to
seek backpay for allegedly artificially deflated wages (at least for the 2022 crawfish season), and
this past injury—what the Supreme Court has called “foregone action”—adequately satisfies the
injury in fact element to standing. Lujan, 504 U.S. at 561. Defendants also overlook the
ongoing/future injury here. Plaintiffs represent that crawfish processing is the “source of their
livelihood.” Pls.’ Sur-reply at 4. In Williams I, the Court noted that several Plaintiffs had
worked at the Crawfish Distributors plant for numerous years and planned to continue working
there for the 2022 season. See 581 F. Supp. 3d at 247. Although the 2022 season is now over,
Plaintiff Martin Johnson has submitted a supplemental declaration attesting that he intends to
continue working for Crawfish Distributors and has received assurance from his employer that
he will be hired back for 2023. Pls.’ Sur-reply at 4; Johnson Suppl. Decl. ¶ 6. Moreover,
Defendants admit that DOL has recently received “several prevailing-wage-determination [ ]
applications relying on a newly-released Louisiana Crawfish Wage Survey” and that it would
“process them in due course.” Defs.’ Notice of Admin. Action at 1.7 Thus, Plaintiffs like Mr.
Johnson who intend to work in the 2023 crawfish season will continue to be injured, whether in
the form of artificially low wages or other competitive harms in the industry. Plaintiffs therefore
have amply demonstrated injury in fact.
7
Defendants did not indicate one way or the other whether Crawfish Distributors was one
of the employers that submitted the 2022 Louisiana Crawfish Wage Survey for consideration.
Under the theory of competitive harm as explained above, however, Plaintiffs’ standing does not
turn on whether their specific employers will rely on the 2022 Louisiana Crawfish Wage Survey.
And because at least one Plaintiff has standing, the Court need not analyze whether other
plaintiffs have standing. See Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4, 10 (D.C. Cir.
2015); Williams II, 2022 WL 2802354, at *7 n.4.
24
Defendants’ traceability objection fares no better. They argue that Plaintiffs’ alleged
injury is not traceable because of “a protracted chain of causation” between the 2015 Wage Rule
and Plaintiffs’ alleged lower pay. Defs.’ Reply at 7 (quoting Fla. Audubon Soc’y v. Bentsen, 94
F.3d 658, 670 (D.C. Cir. 1996)). While “mere speculation about the decisions of third parties”
does not suffice to establish traceability, “the predictable effect of Government action on the
decision of third parties” does. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019). In
New York, the plaintiffs, consisting of government and non-government entities, challenged the
Secretary of Commerce’s decision to reinstate a citizenship question on the 2020 census
questionnaire. Id. at 2561. The government argued that the plaintiffs could not trace the harms
associated with a depressed census response rate to the Secretary’s decision because such harms
would be caused by “the independent action of third parties choosing to violate their legal duty to
respond to the census.” Id. at 2565. The Supreme Court disagreed. Citing to evidence that
“noncitizen households have historically responded to the census at lower rates than other
groups,” the Court found that plaintiffs adequately showed that “third parties will likely react in
predictable ways to the citizenship question.” Id. at 2566. It therefore found that plaintiffs had
standing. Id.
So too, here. If DOL continues to administer the regulatory scheme under 20 C.F.R.
§§ 655.10(f)(2), (f)(4), employers will likely continue to submit allegedly methodologically
defective surveys. As rational economic actors, employers have an incentive to pay low wages.
See Pls.’ Sur-reply at 8 (citing 2011 Wage Rule at 3465). As Plaintiffs aver, “[e]very year for at
least the past four years, DOL has approved employer-provided surveys that are functionally
identical to the 2021 Louisiana Crawfish Wage Survey.” MTD Opp’n at 4. Indeed, Defendants
recently informed the Court that DOL received “several prevailing-wage-determination [ ]
25
applications relying on a newly-released Louisiana Crawfish Wage Survey” and that it would
“process them in due course.” Defs.’ Notice of Admin. Action. The employers’ “historical[]
respon[se]” to the regulatory scheme shows that their behavior is closely and predictably tied to
the allegedly unlawful agency action at issue. New York, 139 S. Ct. at 2566; see also Growth
Energy v. EPA, 5 F.4th 1, 33 (D.C. Cir. 2021) (finding that “‘voluntary but reasonably
predictable’ third-party conduct suffices to establish redressability” (citation omitted)).
Defendants’ cases from this Circuit are inapposite. See Bentsen, 94 F.3d at 666, 671
(finding that plaintiffs who attempted to tie tax credit to agricultural pollution failed to establish
causation because they relied on “a lengthy chain of conjecture” and “sound economic reasoning
may well suggest a contrary result”); Turlock Irr. Dist. v. FERC, 786 F.3d 18, 25 (D.C. Cir.
2015) (finding that intervenors failed to establish standing by arguing that FERC’s failure to
consolidate two licensing proceedings into one resulted in uncoordinated fish passage and
therefore a decline in tourism revenue, because the record showed it was “wholly speculative” to
suggest that FERC could not coordinate fish passage despite separate licensing); Arpaio v.
Obama, 797 F.3d 11, 20–21 (D.C. Cir. 2015) (rejecting plaintiff sheriff’s traceability argument
that government’s DACA or DAPA policies would result in increased expenditures by plaintiff
because it was unreasonable to think that foreign citizens would attempt to enter the United
States illegally in reliance on a policy that could not benefit them).
Finally, Defendants attempt to weave a statute of limitations argument into their
objection to standing. “[A] suit challenging final agency action pursuant to [the APA] must be
commenced within six years after the right of action first accrues.” Harris v. FAA, 353 F.3d
1006, 1009 (D.C. Cir. 2004). Notably, Defendants admit that Plaintiffs timely filed the original
Complaint. See Defs.’ Cross-Mot. at 8. But they argue that Plaintiffs lacked standing at the
26
commencement of this lawsuit, and then improperly relied on facts outside the six-year statute of
limitations in the Supplemental Complaint to cure their standing defect. That is not the case.
Williams II established that Plaintiffs adequately demonstrated standing based on “Counts I–III
of the original Complaint.” 2022 WL 2802354, at *8 (emphasis added). Subsequent factual
developments alleged in the Supplemental Complaint merely show that Plaintiffs continue to
have standing to bring their timely claims. Because Plaintiffs have established standing, the
Court will proceed to assess their APA claims.8
B. APA Challenges
Plaintiffs bring both procedural and substantive APA challenges to the 2015 Wage Rule.
First, they argue that the 2015 Wage Rule fails to satisfy the APA’s notice-and-comment
procedures. Second, Plaintiffs argue that the 2015 Wage Rule is facially arbitrary and
capricious. Third, they argue that DOL’s prevailing wage determinations under the 2021
Louisiana Crawfish Wage Survey are unlawful. For the reasons described below, the Court finds
that the 2015 Wage Rule fails the APA’s notice-and comment requirement, and accordingly
declines to address at this moment whether the 2015 Rule is also facially arbitrary and
capricious. Finally, the Court finds that DOL’s prevailing wage determinations under the 2021
Louisiana Crawfish Wage Survey are unlawful.
1. Procedural Challenge to 2015 Wage Rule
Plaintiffs argue that the 2015 Wage Rule fails to satisfy the APA’s notice-and-comment
procedures. Recall that the 2015 Wage Rule purports to finalize the 2013 IFR, but the Third
8
In Williams II, the Court noted that a claim of injury to procedural rights (Count I) is
subject to a more relaxed standing standard. See 2022 WL 2802354, at *7. Because the Court
finds that Plaintiffs have established standing under the usual standard, it need not assess the
merits of standing under the more relaxed standard.
27
Circuit vacated the 2013 IFR in CATA III. Williams II, 2022 WL 2802354, at *2–3. Plaintiffs
rely on AFL-CIO v. Chao, 496 F. Supp. 2d 76 (D.D.C. 2007), for the proposition that the vacatur
of the 2013 IFR required Defendants to either open notice and comment anew or find good cause
not to do so before issuing the 2015 Wage Rule. In Chao, the plaintiff challenged a DOL rule
establishing a new annual reporting requirement for labor organizations. Id. at 78. On appeal,
the D.C. Circuit vacated a portion of that rule. Id. In response, DOL “reissued the rule in
modified form without providing notice and an additional period for interested parties to
comment.” Id. The district court found that the agency’s reissuance of the vacated rule without
providing new notice and comment or invoking the good cause exception violated the APA. Id.
at 79. Relying on a pair of D.C. Circuit precedents, the court found that “the effect of the
vacatur” was “critical” to the analysis. Id. at 85 (emphasis in original) (citing Action on Smoking
and Health v. Civil Aeronautics Bd., 713 F.2d 795 (D.C. Cir. 1983); Mobil Oil Corp. v. U.S.
EPA, 35 F.3d 579 (D.C. Cir. 1994)). Vacatur, the court explained, “takes[s] the rule off the
books and reinstate[s] the prior regulatory regime.” Id. As a result, “[i]f the agency then wants
to reissue the rule—that is, if it wants to engage in rulemaking—it must follow the APA’s
rulemaking procedures, which require notice and comment or a finding of good cause on the
record.” Id.
Chao is directly on point. In CATA III, the Third Circuit vacated the 2013 IFR with
respect to its provision governing employer surveys, 20 C.F.R. § 655.10(f), thereby “tak[ing] the
rule off the books and reinstat[ing] the prior regulatory regime.” Chao, 496 F. Supp. 2d at 85.
Thus, to promulgate the 2015 Wage Rule’s employer-survey provision—that is, “to engage in
rulemaking”—DOL and DHS were put “to a simple either/or choice: either notice-and-comment
procedures or the good-cause exception.” Id. at 84–85; see also Am. Great Lakes Ports Ass’n v.
28
Zukunft (“American Great Lakes I”), 301 F. Supp. 3d 99, 103–04 (D.D.C. 2018) (“When a court
vacates an agency’s rules, the vacatur restores the status quo before the invalid rule took effect
and the agency must initiate another rulemaking proceeding if it would seek to confront the
problem anew.” (citation omitted)), aff’d sub nom. Am. Great Lakes Ports Ass’n v. Schultz
(“American Great Lakes II”), 962 F.3d 510 (D.C. Cir. 2020). Defendants acknowledge that they
failed to elect either choice. Accordingly, the 2015 Wage Rule fails the APA’s notice-and-
comment requirements.
Defendants’ attempts to get around Chao are unpersuasive because they gloss over
vacatur’s impact on subsequent rulemaking. Even though the Court instructed Defendants to
“engage[]” with Judge Bates’s “persuasive” analysis in Chao, their opening brief makes no
mention of Chao’s discussion of vacatur. Williams II, 2022 WL 2802354, at *14. Predictably,
then, their two main cases are inapposite. In Federal Express Corp. v. Mineta, 373 F.3d 112
(D.C. Cir. 2004), plaintiffs were air cargo carriers who sought review of Department of
Transportation compensation rules in the wake of the September 11, 2001 terrorist attacks. Id. at
113–14. Over the course of a year, the agency issued four cumulative and superseding final
rules. Id. at 114. The agency published the first three rules without notice and comment, but in
each case invited notice and comment after the rule’s publication. Id. at 114–15. The agency’s
fourth and final rule responded to the prior rules’ comments. Id. at 115, 120. The D.C. Circuit
agreed with the agency that it had satisfied the APA’s notice-and-comment procedures, because
“interested persons, including [plaintiffs], had three opportunities to comment on the Fourth
Final Rule while it was still in the formative stage.” Id. at 120 (cleaned up and citation omitted).
Mineta is not analogous because none of the final rules in that case was vacated, and the opinion
never had occasion to consider the APA’s procedural requirements in the context of a rule’s
29
vacatur. It is telling that Chao did not find Mineta—Circuit precedent available to it at the time
of decision—worth mentioning at all.
Defendants’ out-of-circuit case, Bayou Lawn & Landscape Servs. v. Johnson, 173 F.
Supp. 3d 1271 (N.D. Fla. 2016), is also unpersuasive. In that case, H-2B employers brought suit
to challenge various rules under the H-2B program, including, as here, the 2015 Wage Rule. Id.
at 1275–76, 1287. The court had occasion to analyze the same issue here: whether “DHS and
DOL violated the APA by failing to allow for notice and comment before promulgating the 2015
Wage Rule.” Id. at 1286. The court relied on Mineta in finding that the agency adequately
satisfied APA procedures because “the public had a meaningful opportunity to comment on the
major issues of the 2015 Wage Rule in response to the interim version of that rule promulgated
in 2013.” Id. at 1287. But like Defendants’ briefing here, Bayou Lawn did not acknowledge the
significance of the 2013 IFR’s vacatur. Nor did it mention Chao. By only assessing whether
“the public had a meaningful opportunity to comment,” Bayou Lawn did not give any
consideration to the impact of the 2013 IFR’s vacatur. Id. The Court will therefore follow the
persuasive analysis of Chao—a case in this District applying this Circuit’s caselaw—in
concluding that the 2015 Wage Rule violates the APA’s notice-and-comment requirement.9
9
Perhaps realizing their failure to engage with the issue of vacatur, Defendants’ reply
brief attempts to distinguish the vacatur of the 2013 IFR on the basis that “the notice aspect of
the 2013 IFR was not itself vacated.” Defs.’ Reply at 10–12. Besides the fact that Defendants’
new argument is late to the game and forfeit, see Conservation Force v. Jewell, 160 F. Supp. 3d
194, 204 n.4 (D.D.C. 2016), the Court is also unpersuaded by its merits. Nothing in Chao
suggests that after a rule is vacated, the notice component of that rule lives on. That idea would
contradict Chao’s straightforward instruction that to engage in rulemaking post-vacatur, the APA
puts the agency “to a simple either/or choice: either notice-and-comment procedures or the good-
cause exception.” Chao, 496 F. Supp. 2d at 84. Because Defendants have not elected either
choice here, the 2015 Wage Rule violates the APA.
30
But that is not the end of the inquiry. As Chao observed, if a rule violated the procedures
under the APA, the Court must determine whether that failure was harmless error. See 496 F.
Supp. 2d at 88; 5 U.S.C. § 706 (“[T]he court shall . . . [take] “due account . . . of the rule of
prejudicial error.”). In Chao, the court applied the Circuit’s harmless error standard “that
normally applies where the procedural error at issue is failure to provide notice and comment.”
Id. at 89.10 The D.C. Circuit “has not required a particularly robust showing of prejudice in
notice-and-comment cases.” Chamber of Com. of U.S v. S.E.C., 443 F.3d 890, 904 (D.C. Cir.
2006).
Neither a showing of actual prejudice nor proof that the agency would have reached a
different result is required to establish prejudicial error. Rather, the challenging party
“must indicate with reasonable specificity what portions of the [rule] it objects to and
how it might have responded if given the opportunity.” “[A]ll that is required to defeat
[the agency’s] claim of harmless error” is a showing that the party could “mount a
credible challenge” to the rule on remand.
Chao, 496 F. Supp. 2d at 89–90 (cleaned up) (citing Chamber of Com., 443 F.3d at 905; Sprint
Corp. v. FCC, 315 F.3d 369, 377 (D.C. Cir. 2003); Gerber v. Norton, 294 F.3d 182, 182 (D.C.
Cir. 2002)). The burden is on Plaintiffs to show that the error was harmful. See Shinseki v.
Sanders, 556 U.S. 396, 409 (2009); Chao, 496 F. Supp. 2d at 89.
The Court finds that Plaintiffs have shown they are prejudiced by the 2015 Wage Rule’s
lack of notice and comment. Consider, for example, the 2015 Wage Rule’s definition of the
relevant occupation. Plaintiffs argue that the 2013 IFR gave “no notice at all” that the 2015
Wage Rule would allow a survey to consider “actual job duties” of a “particular position rather
Chao did not apply the more demanding “utter failure” harmless error test because it
10
noted that “[t]he Secretary’s initial compliance with notice-and-comment procedures arguably
means that the subsequent error does not rise to the level of an ‘utter failure’ to comply with the
APA.” Chao, 496 F. Supp. 3d at 89. Likewise, the parties do not dispute that Defendants
properly provided a post-rule comment period for the 2013 IFR. Therefore, the Court will not
apply the “utter failure” test.
31
than an occupational classification.” Pls.’ Response in Opp’n to Defs.’ Cross-Mot. for Summ. J.
(“Pls.’ Opp’n”) at 14, ECF No. 66; Pls.’ Mot. at 15–16; see 2015 Wage Rule at 24170–71.
Plaintiffs aver that had they received proper notice, they would have highlighted the problems
behind the agency’s decision to narrowly define the relevant occupation. Pls.’ Opp’n at 13–14.
According to Plaintiffs, the 2015 Wage Rule is “internal[ly] inconsisten[t]” because it permits
the surveying of “actual job duties” while simultaneously abolishing SCA and DBA surveys on
the basis that those surveys “gave employers an ‘incentive to craft job descriptions to fit the
relatively more narrow SCA and DBA occupational categories.’” Pls.’ Mot. at 25 (quoting 2015
Wage Rule at 24164). And it makes no sense, Plaintiffs add, to “permit[] the surveying of a
particular job while simultaneously requiring surveys to consider wages across ‘industries that
employ workers in the occupation.’” Pls.’ Opp’n at 13 (quoting 20 C.F.R. § 655.10(f)(4)(iv)).
Here, as with Chao, Plaintiffs have “indicated with ‘reasonable specificity,’ even
precision, the portions of the [2015 Wage Rule] to which [they] object and how [they] would
respond if given the opportunity.” Chao, 496 F. Supp. 2d at 90 (citation omitted). Defendants
counter that the 2013 IFR’s post-rule comment period already gave Plaintiffs an opportunity to
address this precise issue because it invited comment on “methodological standards” in employer
surveys, and “[a]ctual job duties are one of several factors that comprise the methodological
standards for private wage surveys.” Defs.’ Opp’n to Pls.’ Mot. for Summ. J. (“Defs.’ Opp’n”)
at 8, ECF No. 67. But that open-ended invitation did not give Plaintiffs any insight into
Defendants’ decision to narrowly define the relevant occupation, much less the apparently
contradictory reasoning behind its change. Out of the 2013 IFR’s over 300 post-rule comments,
Defendants have only identified one sentence of one comment touching on this issue, and even
that comment did not contemplate the narrower classification that Defendants ultimately
32
adopted. See SAR at 672, ECF No. 75 (Joint Appendix).11 The Court is satisfied that Plaintiffs
have raised a “colorable claim” that they “would have more thoroughly presented [their]
arguments” had they received the proper notice. Chao, 496 F. Supp. 2d at 90 (quoting Sprint,
315 F.3d at 377 (D.C. Cir. 2003)); Gerber, 294 F.3d at 184. “Nothing more is required to
establish prejudice[.]” Chao, 496 F. Supp. 2d at 90.
As another example supporting Plaintiffs’ claim of prejudice, consider the 2015 Wage
Rule’s adoption of Form ETA-9165. Recall that the 2015 Wage Rule requires, as a new policy,
that employers submit information about the employer survey on a standard form—Form ETA-
9165—and attest that the information “is true and accurate” “to the best of [their] knowledge.”
2015 Wage Rule at 24190. Simultaneously, the 2015 Wage Rule eliminates section 655.10(f)’s
reference to the 2009 Wage Guidance, which Plaintiffs claim required additional documentation.
Compare 20 C.F.R. § 655.10(f)(2) (2009) (requiring employers to “provide specific information
about the survey methodology . . . in accordance with guidance issued by the OFLC national
office [2009 Wage Guidance].” (emphasis added)), with 20 C.F.R. § 655.10(f)(4) (2021)
(eliminating the italicized portion above).12 The 2009 Wage Guidance required an employer to
“[p]rovide documentation” on “[m]ethodology used for the survey to show that it is reasonable
and consistent with recognized statistical standards and principles.” 2009 Wage Guidance, App.
F at 3. Per Plaintiffs, this language required employers to document things such as “margin of
11
Defendants make much of the fact that one of several counsel behind this comment is
counsel to Plaintiffs here, but that is of little significance. See Fertilizer Inst. v. EPA, 935 F.2d
1303, 1312 (D.C. Cir. 1991) (“[T]he EPA must itself provide notice of a regulatory proposal.
Having failed to do so, it cannot bootstrap notice from a comment.” (cleaned up) (emphasis in
original)).
12
OFLC stands for the DOL’s Office of Foreign Labor Certification. See 2015 Wage
Rule at 24158. There is no dispute that the 2009 Wage Guidance is part of the “guidance” to
which section 655.10(f)(2) (2009) referred. See id. at 24172.
33
error, level of confidence, and efforts made to guard against nonresponse bias and other forms of
non-sampling error.” Pls.’ Mot. at 37.13
The upshot of Plaintiffs’ argument is that Form ETA-9165 alone does not provide
Defendants sufficient documentation to determine whether employer surveys are statistically
supported. Following the 2013 IFR but prior to the 2015 Wage Rule, CATA III vacated the 2009
Wage Guidance, see CATA III, 774 F.3d at 191, which might explain why section 655.10(f) no
longer mentions the 2009 Wage Guidance, see 2015 Wage Rule at 24510 (acknowledging that
CATA III vacated 2009 Wage Guidance); id. at 24184 (amending section 655.10(f) to omit
refence to the 2009 Wage Guidance). Because Plaintiffs were not afforded an opportunity to
comment on the consequences of the 2009 Wage Guidance’s vacatur and what documentation a
standard form should require to sufficiently assess a survey’s reliability, they could not have
shared their views about the inadequacy of Form ETA-9165. While the 2013 IFR gave Plaintiffs
notice that Defendants were considering how “the validity and reliability of employer-submitted
surveys can be strengthened,” it certainly gave no insight into their decision to create a standard
form that, in Plaintiffs’ view, actually weakens the reliability of employer surveys. 2013 IFR at
24055; see Pls.’ Mot. at 36–37. Plaintiffs have therefore shown that they could “‘mount a
credible challenge’ to the rule on remand.” Chao, 496 F. Supp. 2d at 89–90 (cleaned up and
citation omitted); see also CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1082–83
(D.C. Cir. 2009) (finding that where the notice of proposed rulemaking “nowhere even hinted
that the [agency] might consider” adopting a particular data requirement, plaintiffs “were
13
Notably, Defendants’ briefing does not contest Plaintiffs’ characterization that ETA
Form-9165 requires less statistical documentation from employers compared to the now-vacated
2009 Wage Guidance. The Court will not attempt to independently assess the merits of this
assertion. It suffices to say that Plaintiffs have raised colorable claims showing they were
prejudiced by a lack of opportunity to comment on these important issues.
34
prejudiced by their inability to persuade the [agency] not to adopt the [policy] in the first place,
thus requiring them to litigate the issue”).
To sum up, the 2015 Wage Rule fails the APA’s notice-and-comment requirements
because Defendants promulgated it following the 2013 IFR’s vacatur without a new notice and
comment period or the good cause exception. Defendants’ failure to provide notice and
comment prejudiced Plaintiffs. Because of the 2015 Wage Rule’s procedural defects, the Court
will not reach Plaintiffs’ facial substantive challenges to the 2015 Wage Rule.14 See, e.g., Chao,
496 F. Supp. 2d at 93 (noting that “the resolution of the [plaintiff’s] procedural argument in its
favor has obviated the need for the Court to pass on [its] ‘potentially meritorious’ substantive
challenge”); Bauer v. DeVos, 325 F. Supp. 3d 74, 96 (D.D.C. 2018) (“Because the Court
concludes that the Department improperly invoked the good cause exception . . . there is no need
to reach Plaintiffs’ substantive challenges.”); Shands Jacksonville Med. Ctr. v. Burwell, 139 F.
Supp. 3d 240, 266 (D.D.C. 2015) (“Because commenters were not able to raise [substantive]
concerns in response to the deficient notice of proposed rulemaking, however, no administrative
record was ever developed for the Court to review. Thus, the Court concludes that these
arguments should be addressed, if at all, after further proceedings at the administrative level and
an opportunity for additional comment.”). The only question that remains concerning the 2015
14
These facial challenges claim that: (1) requiring employer surveys to include H2-B
wages is arbitrary and capricious, Pls.’ Mot. at 25–28; (2) the definition of the relevant
occupation is (a) arbitrary and capricious because its explanation is cursory and internally
inconsistent; and (b) contrary to law because the plain language of the Appropriations Rider does
not allow DOL to consider a particular job in a survey, id. at 17–25; and (3) reliance on Form
ETA-9165 is arbitrary and capricious because it weakens the existing methodological standards
by not requiring sufficient documentation of statistical support as was the practice in the now-
vacated 2009 Wage Guidance, id. at 29–38.
35
Wage Rule’s procedural defects is whether remand, or vacatur, is the appropriate remedy. The
Court will consider the issue of remedy in its own section at the end.
2. As-Applied Challenge to 2015 Wage Rule
Plaintiffs’ last claim, Count V, is an as-applied challenge to the 2015 Wage Rule.
“Where a challenged rule does not exceed statutory authority and comports with the APA,”
plaintiffs may still “bring as-applied challenges against any alleged unlawful applications.”
Brennan v. Dickson, 45 F.4th 48, 61 (D.C. Cir. 2022) (quoting Ass’n of Priv. Sector Colls. &
Univs. v. Duncan, 681 F.3d 427, 442 (D.C. Cir. 2012)). Plaintiffs argue that even if the 2015
Wage Rule withstands their procedural and substantive challenges under the APA, Defendants
improperly applied the 2015 Wage Rule in issuing prevailing wage determinations based on the
2021 Louisiana Crawfish Wage Survey. Pls.’ Opp’n at 20; see Suppl. Compl. ¶ 30 (alleging that
these prevailing wage determinations were “contrary to [DOL’s] regulations governing the
approval of employer-provided surveys at 20 C.F.R. § 655.10(f)”). The Court agrees.
Plaintiffs find fault with a host of issues in the 2021 Louisiana Crawfish Wage Survey,
such as its allegedly poor survey outreach, its inability to conduct a cross-industry survey, and
email communications between employers and the state surveyor (LSU) purportedly revealing
improper employer involvement in the survey process. Pls.’ Mot. at 38–40. The Court need not
parse through each of these issues because one defect alone demonstrates that the 2021 Louisiana
Crawfish Wage Survey is flawed and should not have been used to issue prevailing wage
determinations. Specifically, the 2021 survey failed to comply with the 2015 Wage Rule’s
instructions on surveying beyond the area of intended employment. The 2015 Wage Rule:
permits the survey to cover a geographic area larger than the area of intended
employment only if all of the following conditions are met: (1) The expansion is
limited to geographic areas that are contiguous to the area of intended
employment; (2) the expansion is required to meet either the 30-worker or three-
36
employer minimum; and (3) the geographic area is expanded no more than
necessary to meet these minimum requirements.
2015 Wage Rule at 24173. The 2015 Wage Rule defines “area of intended employment” as “the
metropolitan statistical area of the job opportunity and the area within normal commuting
distance from the job opportunity.” Id. Here, the 2021 Louisiana Crawfish Wage Survey
covered the entire state of Louisiana, yet only provided one sentence to justify its sweeping
geographic scope: “[i]n an effort. [sic] to mask dominant employers, and due to remote plant
locations, we have surveyed statewide.” CAR at 22, ECF No. 75 (Joint Appendix). This cursory
explanation is inadequate. The 2015 Wage Rule explains that the “no more than necessary”
requirement “reflects DOL’s view that surveys submitted for labor certification purposes must
take a careful approach to expansion rather than default immediately to state-wide coverage.”
2015 Wage Rule at 24174 (emphasis added). The 2021 survey fails to heed this admonition. It
does not explain why expansion to the entire state was “necessary” to meet the 30-worker/three-
employer threshold. Id. at 24174. The survey justifies the expansion on “remote plant
locations,” CAR at 22, but those three words do not show that it considered, for example, where
these plants were located, how they affected the 30-worker/three-employer threshold, and why
statewide expansion was needed instead of a “more incremental approach.” Id.; cf. id. at 24173
(“[I]n most cases a surveyor should be able to report data for at least 30 workers and three
employers in the occupation and area of intended employment without expanding the survey
beyond the area of intended employment.”).
Worse still, the 2021 Louisiana Crawfish Wage Survey also expanded the geographic
scope to “mask dominant employers,” CAR at 22, but that consideration is decidedly not one of
the “limited circumstances” the 2015 Wage Rule enumerates that would justify expansion, 2015
Wage Rule at 24173. Indeed, section 655.10(f) clearly instructs that “the geographic area
37
surveyed may be expanded beyond the area of intended employment . . . only as necessary to
meet the requirement[]” that the survey “include[] wage data from at least 30 workers and three
employers.” 20 C.F.R. §§ 655.10(f)(3), (4)(ii) (emphasis added); see also, e.g., U.S. Dep’t of
Labor, Form ETA-9165 – General Instructions, https://www.dol.gov/sites/dolgov/files/ETA/oflc/
pdfs/Form_ETA-9165_Instructions_rev_DOL%20Appropriations_Act.pdf (“Note that the only
permissible reasons to expand the survey beyond the area of intended employment are to meet
the 3 employer or 30 worker standards[.]”). Because the 2021 Louisiana Crawfish Wage Survey
does not comply with the 2015 Wage Rule’s instructions on surveying beyond the area of
intended employment, Defendants’ prevailing wage determinations relying on this survey are
unlawful.
C. Remedy
Having established that the 2015 Wage Rule is procedurally deficient (and prejudicial),
and that the application of the rule to the 2021 Louisiana Crawfish Wage Survey was unlawful,
the Court must decide the appropriate remedy. “The final question is which of two available
remedies, vacatur or remand without vacatur, is the appropriate one.” Chao, 496 F. Supp. 2d at
90. “When a rule is contrary to law, the ‘ordinary practice is to vacate’ it.” Am. Bankers Ass’n
v. Nat’l Credit Union Admin., 934 F.3d 649, 673 (D.C. Cir. 2019) (citation omitted). Even
though “vacatur is the normal remedy,” the D.C. Circuit has stated that “a court [may] remand
without vacating the agency’s action in limited circumstances.” American Great Lakes II, 962
F.3d at 518 (quoting Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014)).
“To determine whether to remand without vacatur, this court considers first, the seriousness of
the [action’s] deficiencies, and, second, the likely disruptive consequences of vacatur.” Id. at
518 (cleaned up) (quoting Allied-Signal, Inc. v. Nuclear Reg. Comm’n, 988 F.2d 146, 150–51
(D.C. Cir. 1993)). “Because vacatur is the default remedy . . . defendants bear the burden to
38
prove that vacatur is unnecessary.” Friends of the Earth v. Haaland, 583 F. Supp. 3d 113, 157
(D.D.C. 2022) (quoting Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 99
(D.D.C. 2019)).
The first Allied-Signal factor weighs in favor of vacatur. The notice-and-comment defect
to the 2015 Wage Rule is “unquestionably” serious. Chao, 496 F. Supp. 2d at 91. “Failure to
provide the required notice and to invite public comment . . . is a fundamental flaw that
‘normally’ requires vacatur of the rule.” Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193,
199 (D.C. Cir. 2009) (citation omitted); accord Allina Health Servs., 746 F.3d at 1110; Cap.
Area Immigrants’ Rts. Coal. v. Trump, 471 F. Supp. 3d 25, 58 (D.D.C. 2020). But see Shands,
139 F. Supp. 3d at 267 (noting that this proposition is “not absolute” and citing Circuit cases
remanding agency action without vacatur). Vacatur is also favored where, as here, it “has the
virtue of eliminating the significant risk that [plaintiffs] will be forced . . . to comply with a rule
that this Court has found to be procedurally defective and whose substantive validity has not yet
been confirmed.” Chao, 496 F. Supp. at 93; accord Cap. Area Immigrants’ Rts. Coal., 471 F.
Supp. 3d at 58. Of course, it is entirely possible that with a new notice and comment period, the
agency may be able to cure the procedural defect and justify its decisionmaking. But the
“uncertainty” of this outcome “merely highlights the magnitude of the procedural violation.”
Shands, 139 F. Supp. 3d at 268.
The second Allied-Signal factor, however, weighs substantially in favor of remand
without vacatur. On this point, this Court’s opinion in American Great Lakes I is instructive.
That case involved a 2016 rule promulgated by the Coast Guard for calculating rates that
international shippers must pay maritime pilots on the waters of the Great Lakes. 301 F. Supp.
3d at 100. The Court found that the Coast Guard’s failures to explain its ten-percent upward
39
adjustment policy, or the propriety of using weighting factor revenue in its rate setting
methodology, were arbitrary and capricious. Id. at 101. On the issue of remedy, the Court found
that although the defects were serious under the first Allied-Signal factor, the second Allied-
Signal factor weighed against vacatur because of the “considerable disruption that vacatur would
likely invite.” Id. at 105. That was so, the Court reasoned, because “[s]hipping companies and
pilotage associations would, after vacatur, find that every payment that was made in the 2016
season was erroneous” and that it would be plainly disruptive for pilotage associations to issue
refunds. Id. at 104. Accordingly, the Court found that “the appropriate remedy is to remand the
matter to the Coast Guard” for further action. Id. at 105.
The D.C. Circuit affirmed on appeal. American Great Lakes II, 962 F.3d at 520. The
Circuit noted that “[u]nder our precedents, a quintessential disruptive consequence arises when
an agency cannot easily unravel a past transaction in order to impose a new outcome.” Id. at
519. It agreed with this Court that vacatur would be disruptive, as it could “involve the Coast
Guard and the Shippers attempting to recoup and redistribute funds that changed hands years ago
in numerous separate transactions,” in addition to the fact that “the precise amount of each
refund would be unclear given the lack of an operative 2016 rate.” Id.
As with American Great Lakes I and II, the second Allied-Signal factor substantially
weighs in favor of remand without vacatur here. Vacating the 2015 Wage Rule’s
methodological provisions for employer surveys, 20 C.F.R. §§ 655.10(f)(2), (f)(4), would “set
aside” Defendants’ employer-survey based prevailing wage determinations since 2015—that is,
potentially seven years’ worth of wage determinations. American Great Lakes I, 301 F. Supp. 3d
at 104; Williams II, 2022 WL 2802354, at *13. Like the lack of a clear operative rate upon
which to base refunds in American Great Lakes II, the long and convoluted history of the H2-B
40
wage rules—which have gone to the drawing board time and again—complicates the question of
what prevailing wage would set the basis for refunds here. See Sugar Cane Growers v.
Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002) (“The egg has been scrambled and there is no
apparent way to restore the status quo ante.”).
Plaintiffs argue that the disruptive consequences are mitigated for two reasons, but
neither is persuasive. First, they note that vacatur of sections 655.10(f)(2), (f)(4) would not
disrupt DOL’s ongoing administration of the H2-B program because it could still issue
prevailing wage determinations from non-employer surveys—that is, OES surveys. Pls.’ Opp’n
at 21. This argument fails to recognize that the Appropriations Rider requires DOL to “accept
[statistically supported] private wage surveys even in instances where [OES] survey data are
available.” Appropriations Rider (2022); see Pls.’ Mot. Recons. at 1 n.1, ECF No. 41-1. If those
methodological standards are vacated, DOL will be in a position where it cannot administer this
statute.
Second, Plaintiffs argue that vacatur would not open the floodgates to backpay claims
because employers are apparently only liable for backpay if they were properly on notice. Pls.’
Opp’n at 21–22. The Court is skeptical that a potential defense that some employers could
attempt to raise in future litigation is enough to stem the demands for backpay that would follow
vacatur. See Williams II, 2022 WL 2802354, at *13 (“The Court cannot say for certain whether
or not Plaintiffs would be able to defeat a hypothetical reasonable reliance argument in a
hypothetical future action for back wages[.]”). Even if Plaintiffs are right that the universe of
viable claims is more limited, they downplay the sheer number of transactions that vacatur could
call into question. Consider that in Williams II, the Court observed that employers were arguably
on notice since April 2021, when this lawsuit was filed. Id. To put things in perspective, in the
41
fourth quarter of fiscal year 2022 alone, DOL granted over ten thousand H2-B prevailing wage
certifications. See U.S. Dep’t of Labor, Performance Data, https://www.dol.gov/sites/dolgov/
files/ETA/oflc/pdfs/H-2B_Disclosure_Data_FY2022_Q4.xlsx; cf. SAR 656 (comment noting
that DOL approved certifications for 74,458 job vacancies in fiscal year 2012). Vacatur against
this backdrop is inevitably “an invitation to chaos.” Sugar Cane Growers, 289 F.3d at 97.
To conclude, although the 2015 Wage Rule is procedurally deficient, the significant
disruptive consequences that would follow from vacatur leads the Court to conclude that remand
without vacatur is the best route. See American Great Lakes I, 301 F. Supp. 3d at 105 (balancing
competing Allied-Signal factors and taking same approach); Shands, 139 F. Supp. 3d at 270
(same).15 The Court is sympathetic to Plaintiffs’ concern that the agencies on remand might not
address their concerns as expeditiously as compared to vacatur. But the Court is bound to apply
the Allied-Signal factors, which weigh in favor of remand without vacatur. The Court expects
that on remand, DHS and DOL will act with haste for further consideration consistent with this
Opinion.
V. CONCLUSION
For the foregoing reasons, the Court will deny Defendants’ motion to dismiss, grant in
part and deny in part Plaintiffs’ motion for summary judgment, and grant in part and deny in part
Defendants’ cross-motion for summary judgment. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
15
The Court also remands without vacatur Defendants’ unlawful application of the 2015
Wage Rule to prevailing wage determinations based on the 2021 Louisiana Crawfish Wage
Survey. See EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 132 (D.C. Cir. 2015)
(finding petitioners’ as-applied challenges meritorious but remanding without vacatur to avoid
“substantial disruption”). It does so for the same reasons described in this section.
42
Dated: December 23, 2022 RUDOLPH CONTRERAS
United States District Judge
43 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350162/ | Rick v Teculver (2022 NY Slip Op 07347)
Rick v Teculver
2022 NY Slip Op 07347
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
803 CA 21-01169
[*1]WILLIAM C. RICK, PLAINTIFF-RESPONDENT,
vWAYNE H. TECULVER AND CAPRI M. TECULVER, INDIVIDUALLY, AND AS CO-ADMINISTRATORS OF THE ESTATE OF MATTHEW R. TECULVER, DECEASED, AND TREVOR S. BAYLE, DEFENDANTS-APPELLANTS.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (RICHARD J. ZIELINSKI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ROBBINS & JOHNSON, P.C., JAMESTOWN, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Chautauqua County (Lynn W. Keane, J.), dated July 27, 2021. The order denied the motion of defendants for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when his snowmobile collided with a snowmobile operated by Matthew R. TeCulver (decedent) and owned by defendant Trevor S. Bayle. At the time of the collision, plaintiff and another snowmobile driver were traveling north along a snowmobile trail, while decedent, Bayle, and another driver (decedent's group) were traveling south along the same path. The collision happened as the two groups converged along a straight, flat portion of the trail. Although the parties dispute the particulars of the collision, there is no dispute that decedent was traveling on the right side of the snowmobile trail, whereas plaintiff moved his snowmobile to the left, eventually entering decedent's lane of travel. Defendants moved for, inter alia, summary judgment dismissing the complaint. Supreme Court denied the motion. Defendants appeal, and we affirm.
We conclude that defendants failed to meet their initial burden on the motion inasmuch as their own submissions raised triable issues of fact whether decedent and Bayle were negligent (see Ebbole v Nagy, 169 AD3d 1461, 1462 [4th Dept 2019]; Pagels v Mullen, 167 AD3d 185, 187 [4th Dept 2018]). Although defendants submitted deposition testimony establishing that the accident occurred after plaintiff veered to the left into decedent's lane of travel (see generally Shanahan v Mackowiak, 111 AD3d 1328, 1329 [4th Dept 2013]; Clough v Szymanski, 26 AD3d 894, 895 [4th Dept 2006]), defendants' submissions failed to eliminate all questions of fact with respect to the negligence of decedent and Bayle because the submissions contained evidence that decedent and Bayle were traveling at an unsafe speed at the time of the collision (see Moore v Curtiss, 129 AD3d 1504, 1505 [4th Dept 2015]; see generally Haider v Zadrozny, 61 AD3d 1077, 1078 [3d Dept 2009]; Pinkow v Herfield, 264 AD2d 356, 358 [1st Dept 1999]). Indeed, there also was evidence that decedent's group had been drag racing, three abreast, along the trail, which raised "factual questions concerning the reasonableness of [decedent's and Bayle's] actions under the circumstances [and] whether [decedent] could have done something to avoid the collision" (Haider, 61 AD3d at 1078 [internal quotation marks omitted]; see generally Halbina v Brege, 41 AD3d 1218, 1219 [4th Dept 2007]; Acovangelo v Brundage, 271 AD2d 885, 887 [3d Dept 2000]).
Because defendants failed to meet their initial burden on the motion, the burden never shifted to plaintiff, and denial of the motion "was required 'regardless of the sufficiency of the opposing papers' " (Scruton v Acro-Fab Ltd., 144 AD3d 1502, 1503 [4th Dept 2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Smith v Szpilewski, 139 AD3d 1342, 1343 [4th Dept 2016]).
We reject defendants' further contention that the court erred to the extent that it concluded that an issue of fact exists concerning whether plaintiff was negligent.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350157/ | Weaver v Deronde Tire Supply, Inc. (2022 NY Slip Op 07328)
Weaver v Deronde Tire Supply, Inc.
2022 NY Slip Op 07328
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
766 CA 21-01545
[*1]RYAN WEAVER, PLAINTIFF-RESPONDENT,
vDERONDE TIRE SUPPLY, INC., ET AL., DEFENDANTS, AND ESTES EXPRESS LINES, DEFENDANT-APPELLANT.
NASH CONNORS, P.C., BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
DAVID W. POLAK ATTORNEY AT LAW, P.C., WEST SENECA (DAVID W. POLAK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Paul Wojtaszek, J.), entered October 20, 2021. The order, insofar as appealed from, granted the motion of plaintiff for leave to reargue his opposition to the motion of defendant Estes Express Lines for summary judgment and, upon reargument, denied the motion of defendant Estes Express Lines for summary judgment dismissing the complaint and cross claims against it.
It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this negligence action seeking damages for personal injuries he sustained when tires that were being moved by a forklift struck him when they fell from the forklift after it drove over a crack in the concrete floor. Insofar as relevant to this appeal, the complaint asserted a negligence cause of action against Estes Express Lines (defendant), which owned the premises on which plaintiff was injured, alleging that defendant negligently permitted a dangerous condition to exist on the premises that contributed to his injury, i.e., the crack in the concrete floor. Defendant moved for summary judgment dismissing the complaint and all cross claims against it, and Supreme Court granted the motion on the ground that defendant was an out-of-possession landlord that did not retain control of the leased premises. Thereafter, plaintiff moved for leave to reargue his opposition to the motion, and defendant now appeals from an order that granted leave to reargue and, upon reargument, denied defendant's motion for summary judgment.
We agree with defendant that it met the initial burden on its motion of establishing that it was an out-of-possession landlord not liable for plaintiff's injuries. It is well settled that "[a]n out-of-possession landlord is not liable for injuries that occur on the premises after the transfer of possession and control to a tenant unless the landlord (1) is contractually obligated to repair the premises or (2) has reserved the right to enter the premises to make repairs, and liability is based on a significant structural or design defect that violates a specific statutory safety provision" (Reichberg v Lemel, 29 AD3d 664, 665 [2d Dept 2006]; see Ferro v Burton, 45 AD3d 1454, 1454-1455 [4th Dept 2007]). In support of its motion, defendant submitted the lease between it and plaintiff's employer (lessee). The lease does not include a general requirement that defendant repair or maintain the premises, including the floor, and instead limits defendant's responsibility to repair the premises to structural defects in the bearing walls and roof. The lessee was responsible for all other maintenance and repairs. Further, defendant established that it relinquished control of the premises. Although the lease permitted defendant to enter the premises for purposes of inspection and making repairs required as a result of a default by the lessee, that contractual right standing alone is "insufficient to establish the requisite degree of control necessary for the imposition of liability with respect to an out-of-possession landlord" (Addeo v Clarit Realty, Ltd., 176 AD3d 1581, 1582 [4th Dept 2019] [internal quotation marks [*2]omitted]). " '[A]n out-of-possession landlord who reserves th[e] right [to enter the leased premises for the purposes of inspection and emergency and structural repair] may be held liable for injuries to a third party only where a specific statutory violation exists' " (Regensdorfer v Central Buffalo Project Corp., 247 AD2d 931, 932 [4th Dept 1998]; see Schwegler v City of Niagara Falls, 21 AD3d 1268, 1269-1270 [4th Dept 2005]). Here, plaintiff failed to allege a specific statutory violation pertaining to the condition of the floor and, instead, alleged that the state of the concrete floor on the premises resulted in violations of the Property Maintenance Code of New York and the Code of the Town of Tonawanda (Town Code). Even assuming, arguendo, that violations of regulations as opposed to statutory violations would suffice (see Brown v BT-Newyo, LLC, 93 AD3d 1138, 1139 [3d Dept 2012], lv denied 19 NY3d 815 [2012]; cf. Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565 n 3 [1987]; Boice v PCK Dev. Co., LLC, 121 AD3d 1246, 1248 [3d Dept 2014]), we conclude that "the cited provisions of the Property Maintenance Code [and the Town Code] are either inapplicable or general rather than specific" (Brown, 93 AD3d at 1139).
However, plaintiff raised a triable issue of fact whether defendant was liable based on its contractual obligation to maintain the structural integrity of the roof and walls. We therefore conclude that, contrary to defendant's contention, the court properly granted the motion for leave to reargue (see generally CPLR 2221 [d] [2]; Smith v City of Buffalo, 122 AD3d 1419, 1420 [4th Dept 2014]), and, upon reargument, properly denied defendant's motion for summary judgment. In opposition to defendant's motion, plaintiff submitted an affidavit from one of plaintiff's former colleagues and from a code enforcement officer, who each averred that the damage to the floor may have been caused by water damage or water infiltration due to poor maintenance of the roof and walls. Plaintiff's former colleague further averred that defendant had conducted annual inspections of the property and had previously repaired damage to the floor of the premises. Thus, there is a question of fact concerning defendant's liability for defects in the condition of the floor (see Young v J.M. Moran Props., 259 AD2d 1037, 1038 [4th Dept 1999]; see generally Meyers-Kraft v Keem, 64 AD3d 1172, 1173 [4th Dept 2009]).
All concur except Curran and Montour, JJ., who dissent and vote to modify in accordance with the following memorandum: We agree with the majority that Estes Express Lines (defendant) met its initial burden on its motion for summary judgment dismissing the complaint and the cross claims against it by establishing that it was an out-of-possession landlord not liable for plaintiff's personal injuries. We depart from the majority's further conclusion, however, that in opposition to defendant's motion, plaintiff raised a triable issue of fact whether defendant was liable based upon its contractual obligation to maintain the structural integrity of the roof and walls of the premises. We therefore dissent, and we would modify the order by granting defendant's motion for summary judgment dismissing the complaint and all cross claims against defendant.
Contrary to the view of the majority, we conclude that the affidavits submitted by plaintiff were insufficient to defeat the motion for summary judgment. As the majority notes, it is true that defendant was contractually "responsible for structural defects in the bearing walls and roof." The affidavits submitted by plaintiff, however, are wholly speculative to the extent that they allege that defendant made previous repairs to the floor in the area where plaintiff sustained his injury, or that the crack in the concrete floor that allegedly contributed to plaintiff's injury was caused by water infiltrating through the roof or walls. Such speculation is insufficient to raise a triable issue of fact (see Zetes v Stephens, 108 AD3d 1014, 1017 [4th Dept 2013]; Woods v Design Ctr., LLC, 42 AD3d 876, 877 [4th Dept 2007]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Other than the speculation contained in the affidavits submitted by plaintiff, there is no evidence in the record establishing any nexus between structural defects in the bearing walls and roof, which were defendant's responsibility to repair, replace and maintain, and the floor defect that allegedly caused plaintiff's injuries.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350158/ | Utica Mut. Ins. Co. v American Re-Insurance Co. (2022 NY Slip Op 07370)
Utica Mut. Ins. Co. v American Re-Insurance Co.
2022 NY Slip Op 07370
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
867 CA 21-00932
[*1]UTICA MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLANT,
vAMERICAN RE-INSURANCE COMPANY, NOW KNOWN AS MUNICH REINSURANCE AMERICA, INC., DEFENDANT-RESPONDENT.
HUNTON ANDREWS KURTH LLP, WASHINGTON, D.C. (SYED S. AHMAD, OF THE WASHINGTON, D.C. BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND FELT EVANS, LLP, CLINTON, FOR PLAINTIFF-APPELLANT.
RUBIN, FIORELLA, FRIEDMAN & MERCANTE LLP, NEW YORK CITY (BRUCE M. FRIEDMAN OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Oneida County (Gregory R. Gilbert, J.), entered June 22, 2021. The order, inter alia, granted the motion of defendant for summary judgment dismissing the complaint on the ground of collateral estoppel, granted defendant's cross motion for summary judgment dismissing plaintiff's claim for interest on allegedly late loss payments, and declined to reach defendant's motion for summary judgment dismissing plaintiff's claim for defense costs.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the fifth and sixth ordering paragraphs, denying defendant's motion for summary judgment dismissing the complaint as barred by collateral estoppel, granting defendant's motion for summary judgment dismissing the complaint insofar as it asserts a claim for defense costs, denying plaintiff's cross motion for summary judgment on the issue of defense costs, denying defendant's cross motion for summary judgment dismissing the complaint insofar as it asserts a claim for interest on allegedly late loss payments and reinstating the complaint to that extent and as modified the order is affirmed without costs.
Memorandum: Plaintiff issued primary and umbrella policies of insurance to nonparty Burnham Corporation (Burnham) covering, as relevant to this appeal, a period from 1977 to 1984. Plaintiff obtained from defendant reinsurance coverage for the same period related to the umbrella policies. Burnham was sued by individuals who were allegedly injured by exposure to equipment that was manufactured by Burnham and that contained asbestos (underlying actions). Plaintiff paid defense costs and losses under the primary policies and, when it allegedly exhausted the primary policies, it began to pay claims under the umbrella policies. Plaintiff sought reimbursement from defendant for defense costs under the reinsurance policies, but defendant refused to pay, contending that plaintiff was not obligated under the umbrella policies to pay such costs and that the reinsurance contracts thus were not triggered.
Plaintiff thereafter commenced this action, asserting, inter alia, a cause of action for breach of contract. In 2016, the parties entered a settlement as to certain sums defendant allegedly owed to plaintiff under the reinsurance policies. As part of that settlement, plaintiff retained its claim to what the parties denominate loss interest, i.e., interest on the payment made under the settlement, which was allegedly untimely. Defendant moved for summary judgment dismissing the complaint on the ground of collateral estoppel and plaintiff cross-moved for summary judgment on its causes of action and dismissing defendant's counterclaims. In a separate set of motions, defendant moved for summary judgment dismissing the claim for [*2]defense costs and plaintiff cross-moved for summary judgment on the claim for defense costs and dismissing defendant's counterclaims. Lastly, plaintiff moved for partial summary judgment on the loss interest claim, and defendant cross-moved for summary judgment dismissing that claim. Plaintiff appeals from an order of Supreme Court that, inter alia, granted defendant's motion for summary judgment based on collateral estoppel, denied plaintiff's corresponding cross motion, declined to reach defendant's motion for summary judgment dismissing the claim for defense costs and plaintiff's corresponding cross motion, granted defendant's cross motion for summary judgment dismissing the loss interest claim, and denied plaintiff's corresponding motion.
As an initial matter, we agree with plaintiff that the court erred in granting defendant's motion for summary judgment dismissing the complaint as barred by collateral estoppel based on the decision in Utica Mut. Ins. Co. v Munich Reins. Am., Inc. (7 F4th 50 [2d Cir 2021]), and we modify the order accordingly. The issue of the interpretation of the language of an insurance policy involves a pure question of law, and "the doctrine of collateral estoppel does not preclude [plaintiff] from litigating that issue again, despite the Federal court['s] prior adverse determination on the point" (American Home Assur. Co. v International Ins. Co., 90 NY2d 433, 440 [1997]). Moreover, collateral estoppel does not apply unless the previously litigated issue was "identical to that in the subsequent action and decided after a full and fair opportunity to litigate" (Medlock Crossing Shopping Ctr. Duluth, Ga. L.P. v Warren, 175 AD3d 934, 936 [4th Dept 2019]), and "[t]he party seeking to invoke collateral estoppel has the burden to show the identity of the issues" (Matter of Dunn, 24 NY3d 699, 704 [2015]). Inasmuch as the language at issue here differs in certain respects from that in the documents that were the subject of the prior litigation, defendant failed to meet that burden.
Nevertheless, we conclude that defendant established that its interpretation of the umbrella policies—i.e., that those policies did not cover defense costs in the underlying actions inasmuch as those costs were covered by the primary insurance policies—is the only fair construction thereof (see generally Arrow Communication Labs. v Pico Prods., 206 AD2d 922, 923 [4th Dept 1994]). We therefore further modify the order by granting defendant's motion for summary judgment dismissing the complaint with respect to defense costs and denying plaintiff's corresponding cross motion. The umbrella policies here provided that, "[w]ith respect to any occurrence not covered by the policies listed in the schedule of underlying insurance or any other insurance collectible by the insured, but covered by the terms and conditions of this policy (including damages wholly or partly within the amount of the retained limit), the company shall: (a) defend any suit against the insured" (emphasis added). We conclude that "the unambiguous terms of the umbrella policies establish that defendant[was] not required to reimburse plaintiff under the reinsurance contracts for the disputed defense costs related to the underlying actions" (Utica Mut. Ins. Co. v Abeille Gen. Ins. Co., 206 AD3d 1666, 1669 [4th Dept 2022]).
We agree with plaintiff, however, that the court erred in granting defendant's cross motion for summary judgment dismissing the complaint insofar as it asserts a claim for loss interest. Defendant failed to "sufficiently demonstrate entitlement to judgment, as a matter of law, by tender of evidentiary proof in admissible form" (Ritts v Gowanda Rehabilitation & Nursing Ctr., 201 AD3d 1341, 1342 [4th Dept 2022] [internal quotation marks omitted]). Because defendant failed to meet its initial burden on its cross motion, the burden never shifted to plaintiff, and denial of the cross motion "was required 'regardless of the sufficiency of the opposing papers' " (Scruton v Acro-Fab Ltd., 144 AD3d 1502, 1503 [4th Dept 2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). We therefore further modify the order by denying defendant's cross motion and reinstating the complaint insofar as it seeks loss interest.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350167/ | People v Works (2022 NY Slip Op 07360)
People v Works
2022 NY Slip Op 07360
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
854 KA 19-01870
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vJAMELL WORKS, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered November 8, 2018. The judgment convicted defendant upon his plea of guilty of criminal possession of a weapon in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a guilty plea of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). In appeal No. 2, defendant appeals from a judgment convicting him upon a guilty plea of driving while ability impaired by drugs as a class E felony (Vehicle and Traffic Law §§ 1192 [4]; 1193 [1] [c] [i] [A]). In appeal No. 3, defendant appeals from a judgment convicting him upon a guilty plea of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs as a class E felony (§§ 1192 [4-a]; 1193 [1] [c] [i] [A]). In appeal No. 4, defendant appeals from a judgment convicting him upon a guilty plea of aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a]).
Defendant initially contends in all four appeals that his plea was "improperly" entered because he provided only "yes" and "no" responses to questions asked of him during the plea colloquy. Defendant, however, failed to preserve that contention for our review (see People v Pagan, 200 AD3d 1724, 1725 [4th Dept 2021], lv denied 38 NY3d 953 [2022]; People v Turner, 175 AD3d 1783, 1784 [4th Dept 2019], lv denied 34 NY3d 1082 [2019]). In any event, defendant's contention lacks merit (see Pagan, 200 AD3d at 1725; People v Bennett, 165 AD3d 1624, 1625 [4th Dept 2018]).
Defendant further contends in all four appeals that his constitutional right to a speedy trial was violated. We reject that contention. Preliminarily, we note that, as the People correctly concede, the waiver of defendant's right to a speedy trial under CPL 30.30 that defense counsel signed did not encompass defendant's constitutional speedy trial contention. However, defendant's contention that his constitutional right to a speedy trial was violated is unpreserved for our review because defendant failed to move to dismiss the accusatory instruments on that ground (see People v Chinn, 104 AD3d 1167, 1169 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]; People v Kemp, 270 AD2d 927, 927 [4th Dept 2000], lv denied 95 NY2d 836 [2000]). In any event, defendant's contention lacks merit. Upon our review of the record in light of the relevant factors (see People v Taranovich, 37 NY2d 442, 445 [1975]), we conclude that those factors would have compelled denial of a motion based on defendant's constitutional right to a speedy trial, and we note in particular that "there [was] a complete lack of any evidence that the defense was impaired by reason of the delay" (People v Benjamin, 296 AD2d 666, 667 [3d Dept 2002]; see People v Schillawski, 124 AD3d 1372, 1373 [4th Dept 2015], lv denied 25 NY3d 1207 [2015]).
Defendant further contends in all four appeals that he was denied effective assistance of counsel because defense counsel waived defendant's statutory speedy trial rights and because defense counsel failed to pursue an allegedly meritorious motion on constitutional speedy trial grounds. That contention, however, does not survive defendant's guilty plea inasmuch as defendant does not contend " 'that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance' " (People v Lucieer, 107 AD3d 1611, 1612 [4th Dept 2013]; see People v Brinson, 151 AD3d 1726, 1726 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]; see also People v Speranza, 96 AD3d 1164, 1165 [3d Dept 2012]).
We perceive no basis in the record for us to exercise our power to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]). Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgments.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350160/ | Skaneateles Country Club v Cambs (2022 NY Slip Op 07315)
Skaneateles Country Club v Cambs
2022 NY Slip Op 07315
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
687 CA 21-01218
[*1]SKANEATELES COUNTRY CLUB, PLAINTIFF-RESPONDENT,
vOLIVIA CAMBS, DEFENDANT-APPELLANT.
GOEDE, DEBOEST & CROSS, PLLC, NAPLES, FLORIDA (PETER J. CAMBS OF COUNSEL), AND MACKENZIE HUGHES LLP, SYRACUSE, FOR DEFENDANT-APPELLANT.
Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered July 26, 2021. The judgment granted the motion of plaintiff for summary judgment, declared that the subject agreement is a license terminable at plaintiff's will and denied the cross motion of defendant for summary judgment.
It is hereby ORDERED that the judgment so appealed from is reversed on the law without costs, the motion is denied, the declaration is vacated, the counterclaims are reinstated, the cross motion is granted, the complaint is dismissed, and judgment is granted in favor of defendant as follows:
It is ADJUDGED and DECLARED that the subject agreement is a license not terminable at plaintiff's will.
Memorandum: Plaintiff is a country club that owns property containing boat slips adjacent to Skaneateles Lake. The parties entered into an assignment agreement (agreement) pursuant to which, inter alia, plaintiff transferred the use and occupancy rights of one of its boat slips to defendant, a member of the country club. The agreement was executed along with a boat slip payment agreement (payment agreement) whereby defendant contributed $5,000 to fund construction of the boat slips. Defendant was one of 80 members of plaintiff who initially agreed to contribute money to the construction costs for the boat slips and who would, in return, be assigned the use and occupancy of a boat slip on the premises. The agreement required defendant to, inter alia, pay an annual maintenance fee and comply with plaintiff's rules and policies. It is undisputed that, at all relevant times, defendant has complied with those provisions.
Following a small claims dispute over the computation of the annual maintenance fee, plaintiff elected to terminate the agreement along with defendant's corresponding right to use and occupy a boat slip on the premises. It thereafter commenced this action seeking a declaration that the agreement is a license terminable at will by plaintiff. Defendant answered and asserted two counterclaims, the first seeking a declaration that the agreement is not terminable at will by plaintiff and the second seeking a permanent injunction requiring plaintiff to provide defendant access to the identical boat slip currently assigned to her under the same terms and conditions as set forth in the agreement. Defendant appeals from a judgment that granted plaintiff's motion for summary judgment on the complaint and dismissing the counterclaims, declared that the agreement is a license terminable at will by plaintiff, and denied defendant's cross motion for summary judgment on her counterclaims and dismissing the complaint.
Defendant contends that Supreme Court erred in granting plaintiff's motion and in denying her cross motion. We agree. We conclude that the agreement, despite being a license, does not provide plaintiff with the right to terminate it at will and, under these circumstances, [*2]defendant is entitled on her cross motion to a declaration in her favor under the first counterclaim and to the injunction sought in the second counterclaim. A license is "a revocable privilege given 'to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands' " (Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d 648, 656 [2014], quoting Trustees of Town of Southampton v Jessup, 162 NY 122, 126 [1900]). Although, generally speaking, licenses are terminable at will (see generally Quik Park 808 Garage, LLC v 808 Columbus Commercial Owner LLC, 187 AD3d 488, 489 [1st Dept 2020]; Z. Justin Mgt. Co., Inc. v Metro Outdoor, LLC, 137 AD3d 577, 578 [1st Dept 2016]; American Jewish Theatre v Roundabout Theatre Co., 203 AD2d 155, 156 [1st Dept 1994]), that does not mean that all licenses must be terminable at will regardless of the language contained in the license agreement. Parties to an agreement are, of course, free to agree otherwise. The agreement is in writing and must be construed according to well-settled principles of contractual interpretation by engaging in " 'the process of determining from the words and other objective manifestations of the parties what must be done or forborne by the respective parties in order to conform to the terms of the[ ] agreement[]' " (Tomhannock, LLC v Roustabout Resources, LLC, 33 NY3d 1080, 1082 [2019]). "In construing a contract we look to its language, for 'a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' " (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014], quoting Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).
Contrary to plaintiff's contention, the fact that the subject matter of the agreement is a license entitling defendant to use and occupy a boat slip does not automatically afford plaintiff a right to terminate the agreement at will. Indeed, plaintiff's contention that the terms of the agreement entitle it to terminate the license to use the boat slip at any time and at its sole option is contrary to the reasonable expectations of the parties as expressed in the agreement (see Bestform, Inc. v Herman, 23 AD3d 253, 253-254 [1st Dept 2005], lv denied 6 NY3d 705 [2006]), and fails to "achieve[] 'a practical interpretation of the expressions of the parties' " (Greenwich Capital Fin. Prods., Inc. v Negrin, 74 AD3d 413, 415 [1st Dept 2010]). Here, the terms of the agreement unambiguously state that defendant is required to pay the annual maintenance fee and to comply with plaintiff's rules and policies, thereby establishing through implication that plaintiff may terminate the license only when defendant fails to comply with those specified terms (see generally Albanese v Consolidated Rail Corp., 245 AD2d 475, 476 [2d Dept 1997]). Plaintiff's interpretation of the agreement as permitting plaintiff to terminate the license at will, despite the aforementioned provisions governing defendant's obligations, renders those specific provisions nugatory, contrary to the general approach to interpreting contracts (see generally Roman Catholic Diocese of Brooklyn v National Union Fire Ins. Co. of Pittsburgh, Pa., 21 NY3d 139, 148 [2013]; Laba v Carey, 29 NY2d 302, 308 [1971], rearg denied 30 NY2d 694 [1972]).
Additionally, the agreement expressly permits defendant to terminate it and receive a return of the monies contributed pursuant to the payment agreement, less any monies owed to plaintiff. We agree with defendant that the express inclusion of a right of termination for her compels the conclusion that the exclusion of any corresponding express right for plaintiff to terminate the agreement was intentional (see generally Quadrant Structured Prods. Co., Ltd., 23 NY3d at 560; Dunn Auto Parts, Inc. v Wells, 198 AD3d 1269, 1271 [4th Dept 2021]). Thus, the very structure of the agreement establishes that the license is not terminable at will by plaintiff.
We also note that "[t]he most fundamental canon of contract interpretation, taking precedence over all others, is that primary attention be given to the purpose of the parties in making the contract" (Massachusetts Mut. Life Ins. Co. v Thorpe, 260 AD2d 706, 709 [3d Dept 1999], lv denied 93 NY2d 814 [1999]; see Morgan v Herzog, 301 NY 127, 135 [1950]). "A fair and reasonable interpretation, consistent with that purpose, must guide the courts in enforcing the agreement" (Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1, 6 [1976]). Here, we conclude that plaintiff's interpretation of the agreement as allowing it to terminate the license at will is unreasonable because it implies that, under such circumstances, plaintiff would have no obligation to return the monies that defendant contributed to the construction of the boat slips, which patently undermines the purpose and intent of the parties as memorialized in the agreement (see generally Greenfield, 98 NY2d at 569).
In light of the foregoing, we reverse the judgment, deny the motion, vacate the [*3]declaration, reinstate the counterclaims, grant the cross motion, dismiss the complaint, and grant judgment in favor of defendant declaring that the agreement is a license not terminable at plaintiff's will.
All concur except NeMoyer and Bannister, JJ., who dissent and vote to affirm in the following memorandum: We agree with the majority's conclusion that the parties' agreement at issue constituted a license and not a lease. We respectfully disagree, however, with the majority's further conclusion that the parties' license was not revocable at will by plaintiff, the licensor.
Generally, licenses for real property are revocable at will by the licensor (see Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d 648, 656 [2014]; American Jewish Theatre v Roundabout Theatre Co., 203 AD2d 155, 156 [1st Dept 1994]; see also Sarfaty v Evangelist, 142 AD2d 995, 996 [4th Dept 1988]). There are limited exceptions to that general rule. For instance, a license may not be revocable at will if the conduct of the licensor makes it inequitable to permit the licensor to revoke it (see generally Sarfaty, 142 AD2d at 996; Ski-View, Inc. v State of New York, 129 Misc 2d 106, 110 [Ct Cl 1985]).
Here, the parties' agreement is unambiguously a license, and we must therefore view it in light of the general rule whereby a license is terminable at will by the licensor. We conclude that the agreement does not unambiguously express an intention on behalf of the parties that the general rule should not apply, and we further conclude that there is no basis for determining that any exception to the general rule applies (see generally Sarfaty, 142 AD2d at 996). Therefore, we conclude that the judgment should be affirmed.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350156/ | Williams v Kaleida Health (2022 NY Slip Op 07383)
Williams v Kaleida Health
2022 NY Slip Op 07383
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
904 CA 22-00652
[*1]ASTON B. WILLIAMS, M.D., PLAINTIFF-APPELLANT,
vKALEIDA HEALTH, DEFENDANT-RESPONDENT.
ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HODGSON RUSS LLP, BUFFALO (SARAH NAGEL MILLER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Lynn W. Keane, J.), entered April 21, 2022. The order, insofar as appealed from, denied the motion of plaintiff for a preliminary injunction, granted in part the motion of defendant to dismiss the verified complaint and dismissed the verified complaint without prejudice.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff is a licensed physician who had medical staff privileges at medical facilities owned by defendant, Kaleida Health, including Buffalo General Medical Center (Buffalo General). Plaintiff applied to defendant for, as relevant to this appeal, a medical exemption from the COVID-19 vaccine mandate for health care workers. In response, plaintiff received a letter from defendant informing him that his medical exemption was denied following review, and plaintiff's privileges at Buffalo General were subsequently suspended due to his noncompliance with the vaccine mandate. Plaintiff thereafter commenced this action and moved by order to show cause for, inter alia, injunctive relief preventing defendant from revoking his privileges at Buffalo General or deeming those privileges abandoned. Defendant moved to, among other things, dismiss the complaint with prejudice. Plaintiff appeals from an order that, inter alia, denied plaintiff's motion, granted defendant's motion in part, and dismissed the complaint without prejudice.
We reject plaintiff's contention that Supreme Court erred by denying his motion and granting defendant's motion in part. Plaintiff does not dispute that his complaint alleges a claim of improper practices under Public Health Law § 2801-b (1). Further, plaintiff states in his appellate brief that, after the court's order, he filed a complaint with the Public Health and Health Planning Counsel (PHHPC) under the Public Health Law. This Court has held that "[a]n injunction action under Public Health Law § 2801-c is the exclusive remedy for an alleged violation of section 2801-b (1)" (Farooq v Millard Fillmore Hosp., 172 AD2d 1063, 1063 [4th Dept 1991]; see Matter of Fogel v Kaleida Health, 175 AD3d 1102, 1103 [4th Dept 2019]). Where, as here, a physician challenges a determination to suspend or diminish that physician's professional privileges in a hospital, Public Health Law § 2801—b (2) "provides the allegedly aggrieved physician with a procedural avenue through which he [or she] can present his [or her] claim of a wrongful denial of professional privileges to the Public Health Council" (Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736, 737 [1978]), which must then investigate the allegations of the complaint (see § 2801-b [3]). Therefore, we conclude that the court properly denied plaintiff's motion and granted defendant's motion in part, by dismissing the complaint without prejudice, on the basis that plaintiff must first pursue his remedy before the PHHPC (see generally Fogel, 175 AD3d at 1103; Shapiro v Central Gen. Hosp., 173 AD2d 601, 603 [2d Dept 1991]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482250/ | Fourth Court of Appeals
San Antonio, Texas
November 2, 2022
No. 04-22-00678-CV
ESTATE OF GLORIA MARIE SHRIVER, DECEASED
From the County Court, Jim Wells County, Texas
Trial Court No. 13-07502-PR
Honorable Michael Ventura Garcia, Judge Presiding
ORDER
On October 27, 2022, the trial court reporter filed a notification of late record, notifying
this court that the reporter’s record was not filed when it was originally due because appellants
have failed to pay or make arrangements to pay the reporter’s fee for preparing the record. It is
therefore ORDERED that appellants provide written proof to this court within ten (10) days of
the date of this order that either (1) the reporter’s fee has been paid or arrangements have been
made to pay the reporter’s fee; or (2) appellants are entitled to appeal without paying the
reporter’s fee. The reporter’s record must be filed no later than ten (10) days after the date
appellants’ written proof is filed with this court. If appellants fail to respond within the time
provided, appellants’ brief will be due within twenty (20) days from the date of this order, and
the court will consider only those issues or points raised in appellants’ brief that do not require a
reporter’s record for a decision. See TEX. R. APP. P. 37.3(c).
_________________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482264/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00072-CV
JMI CONTRACTORS, LLC,
Appellant
v.
Jose Manuel MEDELLIN,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-CI-05983
Honorable Aaron Haas, Judge Presiding
ORDER
Appellee’s brief is currently due by November 1, 2022. On October 26, 2022, appellee
filed an opposed motion requesting permission to exceed the word limit. After consideration, we
grant the motion.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482256/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00321-CR
Charles I. COPELAND,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR10159
Honorable Melisa C. Skinner, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: November 2, 2022
AFFIRMED
Appellant Charles Copeland appeals his conviction (two counts of indecency with a child
by exposure), arguing that the trial court committed reversible error in the punishment phase by
refusing to instruct the jury that Copeland’s sentences could run consecutively if the trial court so
ordered. Finding no error, we affirm.
BACKGROUND
Appellant Charles Copeland was convicted of two counts of indecency with a child by
exposure. During punishment phase proceedings, Copeland asked the trial court to instruct the
04-21-00321-CR
jury that the State was seeking consecutive sentences: “We’d like to add an instruction to the jury
regarding the possibility or potential for a stacked sentence, a consecutive sentence, and that it’s
up to the Court to determine whether the sentences for each count will run consecutive or
concurrent.” The trial court denied the request.
The jury was instructed that the offense of indecency with a child by exposure is subject to
a term of imprisonment “not more than ten years or less than two years.” It was charged with
assessing Copeland’s punishment for each count within that range. It was not informed that the
trial court could cause those punishments to run consecutively, i.e., that the trial court could “stack”
the sentences.
This appeal followed.
STANDARD OF REVIEW
The first part of a jury charge appeal is to determine whether the trial court committed
error, i.e., “that any requirement of various statutory provisions referenced in Article 36.19 ‘has
been disregarded.’” See Posey v. State, 966 S.W.2d 57, 59 (Tex. Crim. App. 1998) (citing TEX.
CODE CRIM. PROC. ANN. art. 36.19; Almanza v. State, 686 S.W.2d 157, 160–74 (Tex. Crim. App.
1984) (op. on reh’g)). If this court finds error in the jury charge, then the error is subject to harm
analysis. See id.
DUTY TO INSTRUCT ON “STACKING”
A. Parties’ Arguments
Copeland argues that the trial court’s refusal to inform the jury that the trial court may
choose to run the jury’s assigned punishments consecutively violates article 36.19 of the Texas
Code of Criminal Procedure via article 36.14. The State responds that, because the decision to run
Copeland’s sentences consecutively or concurrently lies solely within the trial court’s purview, the
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04-21-00321-CR
law regarding “stacking” is not applicable law for the jury and that the trial court has no duty to
instruct the jury on it.
B. Law
Texas Code of Criminal Procedure 36.14 states in relevant part: “[T]he judge shall, before
the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a
written charge distinctly setting forth the law applicable to the case….” TEX. CODE CRIM. PROC.
ANN. art. 36.14; accord Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2007); Alcoser v.
State, No. PD-0166-20, 2022 WL 947580, at *2 (Tex. Crim. App. Mar. 30, 2022).
How a judge decides what law is applicable for punishment instruction is ultimately the
responsibility of the trial court and must be based on available statutes and caselaw. Taylor v.
State, 332 S.W.3d 483, 488 (Tex. Crim. App. 2011) (citing Delgado v. State, 235 S.W.3d 244, 249
(Tex. Crim. App. 2007)); Posey v. State, 966 S.W.2d 57, 69 (Tex. Crim. App. 1998) (citing Doyle
v. State, 631 S.W.2d 732, 738 (Tex. Crim. App. 1982) (plurality opinion)).
The current guidance regarding a “stacking” instruction is that it is improper to give. See
Robles v. State, No. 02-21-00131-CR, 2022 WL 3097288, at *3 (Tex. App.—Fort Worth Aug. 4,
2022, no pet. h.) (citing Stewart v. State, 221 S.W.3d 306, 316 (Tex. App.—Fort Worth 2007, no
pet.); Clay v. State, 102 S.W.3d 794, 798 (Tex. App.—Texarkana 2003, no pet.)); Tellez v. State,
No. 08-13-00141-CR, 2015 WL 5449728, at *7–8 (Tex. App.—El Paso Sept. 16, 2015, pet. ref’d)
(not designated for publication); Villarreal v. State, No. 13-08-00601-CR, 2010 WL 2638486, at
*2 (Tex. App.—Corpus Christi–Edinburg June 29, 2010, no pet.) (mem. op., not designated for
publication); Peterson v. State, Nos. 01-02-00603-CR, 01-02-00604-CR, 2003 WL 22681607, at
*5 (Tex. App.—Houston [1st Dist.] Nov. 13, 2003, pet. ref’d) (mem. op., not designated for
publication).
-3-
04-21-00321-CR
“Stacking”, like sentencing, 1 has been described as a normative policy decision. Barrow
v. State, 207 S.W.3d 377, 382 (Tex. Crim. App. 2006). But while Texas provides a statutory right
for defendants to elect a jury sentencing, 2 the decision whether to run a defendant’s sentences
consecutively or concurrently has remained firmly within the discretion of the trial court. Barrow,
207 S.W.3d at 382; accord Grizzle v. State, No. 10-14-00204-CR, 2015 WL 222349, at *5 (Tex.
App.—Waco Jan. 15, 2015, pet. ref’d). The effect has been that no Texas court of appeals has
held that a trial judge is expected to instruct on cumulative sentencing. See, e.g., Stewart v. State,
221 S.W.3d 306, 316 (Tex. App.—Fort Worth 2007, no pet.); Clay v. State, 102 S.W.3d 794, 798
(Tex. App.—Texarkana 2003, no pet.).
C. Analysis
Copeland’s point is well-taken that when jurors are not instructed on the possibility of
“stacking,” their own process lacks transparency to them, and they cannot be said to be making a
fully rational decision as to what they believe is the most appropriate punishment. See Fuller v.
State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992), overruled on other grounds by Castillo v.
State, 913 S.W.2d 529 (Tex. Crim. App. 1995) (citing Barrow, 207 S.W.3d at 382) (“Our
precedents teach that qualified prospective jurors must be willing to consider the full range of
punishment applicable to the offense submitted for their consideration.”). This point is especially
well-taken, considering that Texas Code of Criminal Procedure Article 37.07, section 4(a),
regarding the possibility of parole, is a mandatory instruction. See Luquis v. State, 72 S.W.3d 355,
363 (Tex. Crim. App. 2002); Villarreal v. State, 205 S.W.3d 103, 107 (Tex. App.—Texarkana
2006, pet. ref’d, untimely filed).
1
“Deciding what punishment to assess is a normative process, not intrinsically factbound.” Mendiola v. State, 21
S.W.3d 282, 285 (Tex. Crim. App. 2000) (quoting Miller–El v. State, 782 S.W.2d 892, 895–96 (Tex. Crim. App.
1990)).
2
TEX. CODE CRIM. PROC. ANN. art. 37.07
-4-
04-21-00321-CR
However, instructing the jury on the trial court’s “stacking” discretion could skew results
against justice and against a defendant’s best interest. See Camacho v. State, No. 04-06-00713-
CR, 2007 WL 3270766, at *5 (Tex. App.—San Antonio Nov. 7, 2007, no pet.). In Camacho, the
defendant-appellant complained that a “stacking” instruction could incentivize a jury to pad its
sentences to hedge against concurrent sentences. See Camacho v. State, 2007 WL 3270766, at *5.
While acknowledging that a jury is presumed to follow the trial court’s instructions, we simply
note that a trial court cannot know what conclusions a jury will draw from an instruction that a
trial court could “stack” sentences. See Luquis, 72 S.W.3d at 362 (discussing the waning
applicability of a “good conduct time” instruction).
Ultimately, juries must not be invited to gamble on the final sentencing outcome; they can
only be asked to consider the question before them. 3 See Thompson v. State, 89 S.W.3d 843, 850‒
51 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Here, the jury was tasked with deciding
what the punishment should be for each count that Copeland was convicted of, not ultimately how
long he should be in prison. That was for the trial court to decide. See Barrow, 207 S.W.3d at
380 (citing TEX. PEN. CODE ANN. § 3.03; TEX. CODE CRIM. PROC. ANN. art. 42.08). The trial court
did not err in denying Copeland’s requested “stacking” instruction. See Stewart, 221 S.W.3d at
316; Clay, 102 S.W.3d at 798.
3
In Kentucky, the legislature has empowered jurors to make a recommendation to the trial judge regarding whether a
defendant’s sentences should run concurrently or consecutively. See KY. REV. STAT. ANN. § 532.055; Dotson v. Com.,
740 S.W.2d 930, 931 (Ky. 1987). But no such practice has been adopted in Texas.
-5-
04-21-00321-CR
CONCLUSION
Although Copeland raised the issue of jury charge error after the trial court refused to give
his requested “stacking” instruction, we conclude that the trial court’s ruling did not constitute
error. Thus, we affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
-6- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486753/ | ORDER GRANTING MOTION TO AMEND COUNTER-CLAIM TO ADD A PARTY
The defendant, American Samoa Community College (“ASCC”), moves to amend its pleadings to add another party, JCW, Inc., to its counterclaim. Because plaintiffs, RDL, Inc./CIDA, Inc., d.b.a. Pacific Design Build Collaborative (“PDBC”), have filed a responsive pleading and answered ASCC’s counterclaim, leave of the court is therefore required to add a new party. T.C.R.C.P. Rule 15(a); 3 JAMES Wm. Moore et al., Moore’s Federal Practice, § 15.16(1) (3d ed. 1999). Rule 15(a) applies equally to plaintiffs and defendants. Id.
Whether to grant a motion to amend the pleadings lies within the court’s sound discretion. Ape v. Am. Samoa Gov’t, 25 A.S.R.2d 106, 108 (Trial Div. 1993). In the exercise of its discretion, T.C.R.C.P. Rule 15(a) requires the court to grant amendments “freely when justice so requires.” Leave to amend will, however, be denied upon the finding of “such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment.” Vera v. Bush, 980 F. Supp. 255, 256 (S.D. Tex. 1997).
Moreover, when a motion to amend concerns the addition of a *258party, the movant bears the burden of demonstrating whether the third party they seek to join satisfies the requirements of either T.C.R.C.P. 19(a) (necessary joinder) or T.C.R.C.P. 20 (permissive joinder). See Inman v. Comm’r, 871 F.Supp. 1275, 1276 (E.D. Cal. 1994); 4 JAMES Wm. Moore et al., Moore’s Federal Practice, § 20.02(2)(a)(ii) (3d ed. 1999). ASCC argues that JCW, Inc. is a necessary party to the litigation. It is unclear, however, whether JCW, Inc. actually is. T.C.R.C.P. 19(a) defines a necessary party as a person whom “in his absence complete relief cannot be accorded among those already parties.” Here, ASCC has not shown why failing to join JCW, Inc. would frustrate recovery of complete relief, in the form of money damages, they seek from PDBC. See Perrian v. O’Grady, 958 F.2d 192, 196 (7th Cir. 1992) (distinguishing between being a necessary party and an indispensable party). That they have claims against JCW, Inc. in the form of joint and several liability is of no avail. See Shon v. Mollerup Moving & Storage Co., 24 A.S.R.2d 50, 52 n.4 (Trial Div. 1993) (joint and several liability does not make a party “indispensable” for purposes of T.C.R.C.P. 19).
Nonetheless, at the very least, we see no reason why JCW, Inc. cannot be made a party under T.C.R.C.P. 20. Multiple parties may, but need not be, joined if claims against them “(1) ‘aris[e] out of the same transaction, occurrence, or series of transactions or occurrences’ and (2) will present some ‘question of law or fact [in] common.’” 4 JAMES WM. Moore etal., Moore’s Federal Practice, § 20.02(l)(a)(3ded. 1999) (citing Fed. R. Civ. P. 20(a)). Both of these prongs are satisfied here. ASCC’s claims against JCW, Inc. arise out of the same transaction, namely the construction of the library. And they present issues of common fact and law: whether JCW, Inc., as a partner, is liable for damages arising out of an alleged breach of contract. See Acme Elec. Corp. v. Sigma Instrument, Inc., 121 F.R.D. 26, 28 (S.D.N.Y. 1988).
Furthermore, PDBC has presented no substantial reason why they would be prejudiced by the inclusion of JCW, Inc. In this respect, we do not attribute any bad faith motives or tactics on ASCC’s part in moving to amend the pleadings nor have they unnecessarily delayed in making the motion. Finally, ASCC has not presented any different factual allegations which may have complicated PDBC’s defense. See Ryan, Inc. v. Vaka, 5 A.S.R.2d 31, 32 n.1 (Trial Div. 1987).
Therefore, in the interest of justice, judicial economy, and finality, we exercise our discretion in favor of ASCC’s motion to amend the pleadings to include JCW, Inc. The motion is granted.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486755/ | ORDER DENYING PETITION AGAINST ESTATE AND ADMINISTRATOR OF ESTATE
On October 15, 2002, objector Tautai A.F. Faalevao (“Tautai”) petitioned the Court to exclude a certain parcel of the Fano family’s communal land from the estate of the intestate decedent, Rose F.S. Tinner. Tautai file his petition as a blood member representing the interest of the Tautai clan of the Fano family.
Tautai’s petition was first heard on November 18, 2002, the same day scheduled for the hearing on the motion of administrator Rene L.F. *274Clemens (“Clemens”) for approval of his final account and reporting and for distribution of the estate. The Court continued the hearing until November 25, 2002, to afford Tautai and Clemens the opportunity to further research and file briefs on the objection issue.
The issue is over Clemens’ inclusion in the inventory of the estate’s assets the decedent’s leasehold interest in the Fano family’s communal land. We hold that the leasehold is an asset of the estate.
Discussion
The leased land is a portion of communal land, known as “Matautu Ridge at Tulutulu,” containing approximately 4.755 acres, plus a 40 foot right of way for ingress and egress, containing approximately 1.065 acres, in the Village of Faga'alu, American Samoa. The lease was executed on July 19, 1990, approved by the Governor, as required by A.S.C.A. § 37.0221(a), on December 7, 1990, and recorded with the Territorial Registrar on December 10, 1990. The lease was signed by Fano Salilo, the Fano family’s sa 'o, for himself and on behalf of the Fano family, as the lessor, and by the decedent, as the lessee. Both parties committed “their executors, administrators, successors and assigns” to perform the lease. The term is for 55 years, the maximum period permitted under A.S.C.A. § 37.0221(a). The rent is $1.00 per year.
Tautai claims that the parties entered into the lease to provide collateral for bank financing, a common purpose of communal land leases, and argues that in the existing absence of any outstanding mortgage, the lease expired upon the decedent’s death. In this regard, Tautai also points to paragraph 9 of the lease that provides options for lease termination upon full satisfaction of a mortgage debt. He asserts that under the circumstances, termination upon the decedent’s death is consistent with Samoan custom for the use of family communal land.
Fundamentally, the lease provided the decedent the right to long-term occupancy and use of the lease premises. The mortgage financing authorization is simply permissive and a secondary purpose. Both parties’ rights and responsibilities under the lease terms are contractual. Cf. Lindgren v. Betham, 20 A.S.R.2d 98, 101 (App. Div. 1990) (Damages for breach of lease are determined by general principles of contract). Both parties clearly intended those rights and obligations to be binding on their executors, administrators, successors, and assigns. On a contractual basis alone, therefore, the leasehold is properly included in the decedent’s estate, and her heirs are entitled to succeed as lessees under the lease, under the laws of intestate succession. See Hunkin v. Grisard, 13 A.S.R.2d 38, 40 (Trial Div. 1989).
*275Tautai correctly points out that territorial statutes unequivocally exclude communal land from testamentary devise, intestate succession, and estate administration. A.S.C.A. §§ 40.0106, 40.0206, and 40.0302. Communal land is the land ownership concept at the very core of the Samoan land tenure system. As an alternative to the prevailing means of land ownership in fee simple by individuals and other legal entities generally prevailing in United States jurisdictions, communal land tenure precludes fee simple ownership in favor of extended family control over land, under the occupancy and use directions of the family’s sa 'o (“head chief’).
Tautai’s argument, however, widely misses the mark. The concept of communal land ownership deals with the land itself, not with lesser interests, such as leasehold, easements, and licenses, having readily identifiable rights and obligations of a contractual nature. As Tautai asserts, leases of communal land may not wholly conform to traditional occupancy and use of communal land, unlike the more customary sa 'o assignment to family members of occupancy and use of areas within the family’s communal lands. However, leases of communal land are statutorily authorized. A.S.C.A. § 37.0221. Moreover, the statute does not prevent either members or nonmembers of the family from becoming lessees of the family’s communal lands. Once the leasehold is created, the parties to the lease, and their executors, administrators, successors and assigns, are entitled to have the contractual terms of the lease respected and upheld. See Miller & Desatnik Mgmt. Co. v. Bullock, 221 Cal. App. 3d Supp. 13, 17 (Cal. Ct. App. 1990) (fixed termed .tenancy not terminated by death); RESTATEMENT (SECOND) OF PROPERTY § 1.5 cmt. F (same). This result is not fatal in any sense to the integrity of the communal land system. The underlying land itself does not lose its character as communal land.
The family, in this case the Fano family, retains the land as the family’s communal land. Contrary to Tautai’s contention, our holding is not violative of the American Samoa Government’s constitutional duty to protect communal lands from alienation. Timu v. McMoore, 6 A.S.R.3d 41, 43-44 (App. Div. 2002). The duty pertains to alienation from American Samoans to foreigners. Id.
Clemens requests an award of attorney’s fees against Tautai for his failure to provide any genuine legal authority for excluding the leasehold from the estate and has caused the estate unnecessary expense. In other words, the objection is frivolous and not made in good faith. We would be inclined to agree but for the absence of any High Court decision directly on point and the need to clearly address it. However, Fano’s affidavit states that Tautai’s authority to represent him and the Fano *276family was limited to ensuring that communal land was not included in the estate and that Fano wanted the leasehold to pass on to the decedent’s heirs. Fano’s statement puts in question Tautai’s standing to take on the objector’s role and certainly establishes that Tautai exceeded his authority, whether in his own right or on Fano’s behalf, by challenging inclusion of the leasehold in the estate contrary to Fano’s direction. Tautai made no effort to contradict Fano’s statement during the hearing. Under these circumstances, an award of reasonable attorney’s fees, which we assess at $500.00, to offset the unnecessary expense Tautai’s action has caused the estate, is in order.
Order
1. The lease of a portion of the Fano family’s land known as “Matautu Ridge at Tulutulu” to the decedent is included in the decedent’s estate.
2. Tautai shall pay to Clemens, the administrator of the decedent’s estate, $500.00 as reasonable attorney’s fees to offset the unnecessary expense of defending against Tautai’s inappropriate objection to inclusion of the lease in the estate.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486756/ | ORDER GRANTING TIME TO FILE AMENDED COMPLAINT CORRECTING PLEADING DEFICIENCIES
*279Before us is the motion of defendants Seugogo H.B. Schirmer (“Seugogo”) and W.T. (Bill) Andrew (“Andrew”) to dismiss for failure to state a claim under T.C.R.C.P. 12(b)(6). Defendants Fulton Hogan Holdings, Ltd., Fulton Hogan, Ltd., and Mark Keane (“Keane”), later joined in the motion.1 The legal issues involved are novel, and present important questions concerning the status of certain civil rights in the Territory.
Background
Plaintiffs Havila Magalei Purcell and Duke Purcell are United States Nationals and residents of American Samoa who own plaintiff Island Builders Architects, Consultants & Engineers.2 They are also self-described “minority contractors.” Seugogo and Andrew are both employees of the American Samoa Government (“ASG”) in ASG’s Department of Port Administration (“DPA”). Seugogo is the Director of DP A. Fulton Hogan Holdings, Ltd., a New Zealand Corporation, and Fulton Hogan, Ltd., an American Samoa Corporation, are both engaged in business in the Territory.3 Keane is an agent of Fulton Hogan.
For purposes of this motion, we must assume the factual allegations to be true.4 The dispute arose out of a contract awarded by ASG to Fulton Hogan for a DPA capital improvement project at the Pago Pago International Airport. The plaintiffs claim that they were unlawfully prevented from bidding on portions of the contract. They brought suit against the defendants, claiming the defendants acted as part of a civil conspiracy to deny the plaintiffs their constitutionally protected rights to make and enforce contracts on account of their race and sex as codified under 42 U.S.C.A. § 1981.5 They also brought suit against Seugogo and *280Andrew individually, acting under color of law as employees of ASG, alleging the same deprivations of rights. They assert that our jurisdiction over the suit is found in A.S.C.A. § 3.0208. The defendants counter that the plaintiffs do not have a legally cognizable claim or, at the very least, that they have not properly pled the claim of civil conspiracy.
Discussion
With that relatively simple background, we proceed to the wholly complex question of whether § 1981 is applicable in American Samoa and, if so, to what extent.
A. T.egal Framework
The plaintiffs and the defendants have misconstrued the differences between subject matter jurisdiction, rights of action, and causes of action as these terms relate to this case. The plaintiffs began their pleadings by ' noting that their action was brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); it seems they were relying on Bivens as granting them the right of action for their suit. The defendants counter that Bivens “recognized a new basis of federal court jurisdiction, namely, a federal private cause of action that can arise under the Fourth Amendment.” Therefore, because the plaintiffs allegations did not implicate the Fourth Amendment, and because a Bivens claim is strictly a cause of action available in the federal courts, they argue we lack jurisdiction to hear this suit. Neither contention is exactly right.
Subject matter jurisdiction, rights of actions, and causes of action are three very different concepts. Subject matter jurisdiction speaks to a *281court’s “power to adjudicate a case.” Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998) (emphasis in original); see also Merrell Dow Pharms. v. Thompson, 478 U.S. 804, 807- (1986). Without jurisdiction, a court “cannot proceed at all in any cause.” Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 7 Wall 506, 514 (1869)). Whether a court has the power to hear a case is different from whether a plaintiff has a right to bring the case or is claiming a legally recognized right. See Steel Co., 523 U.S. at 89 (citing Bell v. Hood, 327 U.S. 678, 682 (1946)) (a court can have subject matter jurisdiction over a claim yet not be able to grant the relief sought because no right or cause of action exists).
Courts often confuse the terms “right of action” and “cause of action.” See generally Davis v. Passman, 442 U.S. 228, 237-44 (1979) (discussing the various applications of a “cause of action”); 1 AM. JUR. 2D Actions § 2 (2d ed. 1994). A right of action grants a plaintiff “the right to pursue a judicial remedy.” 1 Am. JUR. 2d Actions § 2; see also Davis, 442 U.S. at 239 (right of action “is employed specifically to determine who may judicially enforce the statutory [or Constitutional] rights and obligations.”); Bivens, 403 U.S. at 396 (finding United States Constitution implicitly allows citizen to bring suit for violations of Fourth Amendment rights); 42 U.S.C.A. § 1983 (statutory right of action for deprivation of constitutional rights under color of law). On the other hand, “a cause of action is based on the substantive law of the legal liability.” 1 Am. JUR. 2d Actions § 2. That is, a cause of action refers to “recognized legal rights upon which a litigant bases his claim for relief.” Davis, 442 U.S. at 237 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693 (1949)).
B. Subject Matter Jurisdiction
As noted, simply because a right of action may exist does not mean we automatically have jurisdiction to hear the case. We must first make that determination. See supra note 4.
There is a substantial amount of case law, at the federal level, discussing the issue of subject matter jurisdiction in civil rights cases. Jurisdiction to hear suits arising under § 1981 (and other civil rights statutes) is usually based on 28 U.S.C.A. §§ 1343, 1331. See Tripati v. U.S.I.N.S., 784 F.2d 345, 346 n.1 (10th Cir. 1986); Mummelthie v. Mason City, Iowa, 873 F. Supp. 1293, 1304 (N.D. Iowa 1995). That is not to say that state or territorial courts cannot entertain these types of suits. Federal courts do not have exclusive jurisdiction in this area. Instead, they have concurrent jurisdiction. See DeHorney v. Bank of Am. Nat. Trust & Sav. Ass’n, 879 F.2d 459, 463 (9th Cir. 1989); 15 AM. JUR. 2d Civil Rights § 33 (2d ed. 1994); see also Maine v. Thiboutot, 448 *282U.S. 1, 3 n.l (1980) (state courts can hear § 1983 claims). Therefore, we must evaluate our own jurisdictional grant to determine whether the High Court is a proper forum for § 1981 claims.
Unlike federal courts, the Trial Division of the High Court is not a court of limited jurisdiction; rather, it is “a court of general jurisdiction with the power to hear any matter not otherwise provided by statute.” A.S.C.A. § 3.0208 (emphasis added). This broad grant expanding our jurisdiction was added in 1979. P.L. 16-28 (1979). The statute was passed by the Legislature as a valid exercise of its power to define the High Court’s jurisdiction. See generally Swift v. Trial Division, 4 A.S.R. 983, 986-88 (1975) (noting that Congress has delegated, through the Executive, to our Legislature the power to define our jurisdiction as long as it is consistent with the laws and treaties of the United States and American Samoa); Meaamaile v. Am. Samoa, 550 F. Supp. 1227, 1235-36 (D. Haw. 1982). While it may have been a close question before that amendment, we have no doubt that § 3.0208 clearly grants us the power, i.e. the jurisdiction, now to hear claims brought under § 1981. See Meaamaile, 550 F. Supp. at 1235-36 (assuming High Court can entertain § 1981 suits).
C. Right of Action under § 1981
Having determined we have jurisdiction, we must decide whether § 1981 creates a private right of action so that the plaintiffs may enforce their claim.
Bivens arose out of a citizen suit against federal agents for violations of Bivens’ constitutional rights under the Fourth Amendment of the United States Constitution. Congress had created a right of action for such a suit arising against state (and territorial) agents, see 42 U.S.C.A. § 1983, but had not created one for suits against federal agents. Bivens, 403 U.S. at 429 (Black, L, dissenting). The Court in Bivens found that notwithstanding the lack of an explicit grant by Congress, the United States Constitution provided for an implied right of action in federal courts to enforce Fourth Amendment violations by federal agents.6 Bivens, 403 U.S. at 400-02 (Harlan, J., concurring).
*283Defendants are correct, then, that Bivens has no application to this case. A Bivens action is applicable only in federal courts. The plaintiffs’ reference to Bivens was thus misplaced; but more importantly, it was unnecessary. Section 1981 itself creates a right of action, explicitly created by Congress, for the enforcement of certain civil rights violations. See generally Patterson v. McLean Credit Union, 491 U.S. 164 (1989); Runyon v. McCrary, 427 U.S. 160 (1976); Giles v. Equal Employment Opportunity Comm’n, 520 F. Supp. 1198, 1199 (1981) (Section 1981 “provide[s] a remedy in cases in which jurisdiction is present.”).
Furthermore, on its face, § 1981 applies to United States Territories. 42 U.S.C. § 1981 (“All persons ... shall have the same right in every State and Territory . . ..”). We have no doubt that, even though § 1981 was passed before American Samoa became a Territory of .the United States, by using such clear language, Congress intended that § 1981 apply to this Territory. The word “Territory”, in a statute is presumed to apply to American Samoa unless, had “the acquisition of that insular dependency . . . been foreseen, Congress would have so varied its comprehensive language as to exclude it from the operation of the act.” United States v. Standard Oil Co., 404 U.S. 558, 559 (1972); see also Ferstle v. Am. Samoa Gov’t, 4 A.S.R.2d 160, 162-63 (Trial Div. 1987) (Section 1983, on its face, applies to American Samoa); Tuivai v. Suiava, 2 A.S.R.2d 35, 36 (Trial Div. 1984) (same); Fleming v. Dep’t of Pub. Safety, 837 F.2d 401, 404-05 (9th cir. 1988) (Sections 1981 and 1983 apply to Northern Mariana Islands); Bunyan v. Camacho, 770 F.2d 773 (9th Cir. 1985) (implying § 1983 applies to Territory of Guam). But see Temengil v. Trust Territory of Pac. Islands, 881 F.2d 647, 651-52 (9th Cir. 1989) (Sections 1981 and 1983 do not apply to the Trust Territory of the Pacific Islands).
This right of action clearly extends to private actors. Patterson, 491 U.S. at 171-75; Runyon, All U.S. at 168-75. The portion of the suit against Fulton Hogan and Keane is properly before us. Similarly, § 1981 creates a right of action for lawsuits against state actors. See Fed’n of African Am.. Contractors v. Oakland, 96 F.3d 1204, 1210-14 (9th Cir. 1996).7 Therefore, the portion of this suit against Seugogo and Andrew, *284acting under color of law, is also properly before us.
D. Cause of Action
We now come to the crux- of this case — what is the plaintiffs’ cause of action? That is, do they have a legally recognizable claim in American Samoa for the conduct they now complain was committed?
Section 1981 protects rights arising both under the Thirteenth and Fourteenth Amendments of the United States Constitution.8 See Jett, 491 U.S. at 722 (plurality opinion); Patterson, 491 U.S. at 197-99 (Brennan, J. concurring and dissenting in part); Runyon, 427 U.S. at 190 (Stevens, J., concurring); Vietnamese, Etc. v. Knights of K.K.K., 518 F. Supp. 993, 1008 (S.D. Tex. 1981). It was passed, in part, “under Congress’ Thirteenth Amendment power to identify and legislate against the badges and incidents of slavery.” Patterson, 491 U.S. at 197 (Brennan, J. concurring in part and dissenting in part). It also derived, however, from the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and was “intended to secure ‘the full and equal benefit of all laws and proceedings for the security of persons and property . . . .’” McLaughlin v. Florida, 379 U.S. 184, 193 (1964); see also Runyon, 427 U.S. at 195-205 (White, J., dissenting) (arguing § 1981 was passed solely under Congress’ Fourteenth Amendment powers).
The problem facing us is that this court has never determined whether or not the Thirteenth Amendment of the United States Constitution, its implementing federal law, and the protections they afford, have been incorporated into the law of American Samoa. Additionally, we have said that “[t]he extent to which the equal protection clause of the Fourteenth Amendment applies in the territory is unclear . . . .” Macomber v. Am. Samoa Gov’t, 12 A.S.R.2d 29, 30 (Trial Div. 1989); *285see also Banks v. Am. Samoa Gov’t, 4 A.S.R.2d 113, 123-28 (Trial Div. 1987). The resolution of these uncertainties is paramount to the outcome of the decision on the present motion; if the rights are incorporated, then § 1981 is enforceable in American Samoa and the plaintiffs have claimed a valid cause of action.
The test for incorporation has been stated by this Court as follows: “the federal Constitution applies here only insofar as its tenets restate ‘those fundamental limitations in favor of personal rights’ that are ‘the basis of all free government . . . Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 129 n.9 (Trial Div. 1990) (quoting Dorr v. United States, 195 U.S. 138, 146 (1922)). It has been stated somewhat differently at the federal appellate level: “whether the claimed right is one which would be impractical or anomalous in [the Territory].” Wabol v. Villacrusis, 958 F.2d 1450, 1461 (9th Cir. 1990); see also King v. Morton, 520 F.2d 1140, 1147 (D.C. Cir. 1975); STANLEY K. LAUGHLIN, Jr., THE LAW OF United States Territories and Affiliated Jurisdictions §§ 10.5, 10.7 (1st ed. 1995) (commending this approach). We will address both tests.
It can hardly be doubted that the prohibition against slavery, and against its badges and incidents, is a fundamental right of any free society. In enforcing the Thirteenth Amendment, [Congress] undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible form; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely: the same right to make and enforce contracts, to sue, be parties, [and] give evidence ... as is enjoyed by white citizens ... [In passing § 1981, Congress acted] only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.”
Civil Rights Cases, 109 U.S. 3, 22 (1883) (emphasis added); see also Jones v. Alfred H. Mayor Co., 392 U.S. 409, 440-41 (1968). Given that these rights are so fundamental, it is no surprise that they are safeguarded by our own Constitution. AM. SAMOA REV. CONST, art. I, § 10 (“Neither slavery, nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in American Samoa.”); see also Banks, 4 A.S.R.2d at 125, n.5 (when determining whether or not a right is fundamental, it is relevant whether or not our own Constitution contains a similar clause).
As for the interplay of the Equal Protection Clause, we see no reason *286why the fundamental rights arising out of the Thirteenth Amendment would be any less fundamental if they derived from the Fourteenth Amendment. It cannot be said, for example,- that the rights under § 1981 are incorporated into American Samoa only to the extent that they abolish the incidents and badges of slavery but not to the extent that they provide for the equal protection of laws. It is a distinction without a difference.
Furthermore, it would not be impractical or anomalous to apply these rights in the Territory. Section 1981 speaks to intentional or purposeful racial discrimination. Albert v. Carovano, 851 F.2d 561, 571-72 (2d Cir. 1988) and cases cited. No part of the laws or culture of American Samoa promotes or relies on racial classifications in terms of employment, contracts, or access to -the courts — all of which fall under the ambit of § 1981. Banks is not inapposite.
In Banks, albeit in dicta, this Court upheld the residential hiring preference, codified in A.S.C.A. § 7.0205, against constitutional attack. We noted that to the extent that the preferences conflicted with the Equal Protection Clause, those rights were not incorporated into American Samoa. Banks, 4 A.S.R.2d at 121-28. This Court was careful to state, however, that the “American Samoa preference is not a racial classification at all... . Although the preference has an obvious racial effect . . . [it] is essentially a preference for permanent residents rather than for ethnic Samoans . . . .” Id. at 128; see also A.S.C.A. 12.0210 (Local Preference statute for government contracts). In making that determination, the Court relied in part on Appendix A to A.S.A.C. § 4.1108, the implementing regulations for A.S.C.A. § 7.0205. The Appendix, still in force, contains a policy statement that states, inter alia, “[i]t is the policy of the ASG to provide and promote equal opportunity in employment to people without discrimination because of race, creed, color, [or] national origin . . . .” Appendix A to A.S.A.C. § 4.1108 (emphasis added); see also A.S.A.C. §§ 4.1101-.1108. Clearly this is evidence that some of the rights encompassed by § 1981 have already been embraced by ASG. Moreover, it is evidence that applying § 1981 to American Samoa, because it protects fundamental rights arising out of the Thirteenth and Fourteenth Amendments of the United States Constitution, would not be inconsistent or anomalous with the laws and customs of American Samoa.9
*287The defendants are right that judicial review of a procurement decision lies in the first instance before the Office of the Administrative Law Judge. See A.S.C.A. § 4.0604(e)-(g); see also A.S.A.C. § 10.0282. But the plaintiffs’ complaint goes beyond allegations of noncompliance with administrative regulations; the complaint alleges intentional racial discrimination, a claim that does not belong at the administrative level. Therefore, we conclude that § 1981 creates a cause of action enforceable here in American Samoa, for claims of intentional racial discrimination. Section 1981 does not, however, apply to claims based on sex discrimination. See Runyon, 427 U.S. at 167; Taylor v. Shell Offshore, Inc., 700 F. Supp 314, 315 (M.D. La. 1988). To the extent that any of the claims here are based on sexual discrimination, they are dismissed.
E. Pleadings
Notwithstanding the foregoing discussion, the plaintiffs’ pleadings are still deficient. For actions under § 1981, a plaintiff must specifically plead “intentional discrimination on account of race,” otherwise known as “racial animus.” Evans v. McKay, 869 F.2d 1341, 1344, 1345 n.3 (9th Cir. 1989). While the plaintiffs have alleged intentional discrimination, they have not pleaded any facts that would tend to show the actions by the defendants were racially motivated. See Yusuf v. Vasasr College, 827 F. Supp. 952, 954-56 (S.D.N.Y. 1993) (causal link between defendant’s conduct and plaintiffs race too conclusory). Overt acts coupled with some direct evidence, such as, for example, racial slurs, would suffice. Evans, 869 F.2d at 1345. The plaintiffs have not pled any such direct evidence.
Furthermore, the plaintiffs’ claim that the defendants conspired to deprive them of their constitutional rights is likewise defective. Claims of conspiracy to deprive someone of their rights are properly brought under 42 U.S.C. § 1985(3).10
*288[A] complaint must allege that the defendants did (1) ‘conspire . . (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or caused to be done, ‘any act in furtherance of the object of [the] conspiracy,’ whereby another was (4a) ‘injured in his person or property’ or (4b) ‘deprived of having and exercising any right or privilege of a citizen of the United States.’
Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971)).
Nonetheless, in order to “facilitate a proper decision on the merits of the case,” Thomsen v. Bank of Haw., 28 A.S.R.2d 86, 87 (Trial Div. 1995), or at the very least, to assure that dismissal is based on the failed factual allegations and not inartful pleading, we are allowing the plaintiffs leave to amend the pleadings to conform with this opinion. T.C.R.C.P. 15(a) (party may amend pleadings by leave of court when justice so requires).
Order
The plaintiffs shall have 30 days to file an amended complaint that corrects the deficiencies in the present complaint. If the plaintiffs fail to adequately correct the deficiencies in the complaint within this time period, the motion to dismiss will be granted.
It is so ordered.
We will refer to all defendants collectively as “the defendants.”
We will refer to all plaintiffs collectively as “the plaintiffs.”
We will refer to them collectively as “Fulton Hogan.”
While Seugogo and Andrew argue that we do not have jurisdiction in this case, their motion is one for failure to state a claim under T.C.R.C.P. 12(b)(6). Lack of jurisdiction is governed by T.C.R.C.P. 12(b)(1). To be fair, there is some overlap between jurisdiction and a right of action in this case. “Where the defendant’s challenge to the court’s jurisdiction is also a challenge to the existence of a [right] of action, the proper course of action... is to find that jurisdiction exists and deal with the objections as a direct attack on the merits of the plaintiffs case.” Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981). This also benefits a plaintiff in that under the law of 12(b)(6), we must consider the allegations in the complaint as true. Id. at 412. We apply this standard now because we do have jurisdiction to hear this suit. See Part II.B, infra.
Section 1981, entitled Equal rights under the law, provides in relevant *280part:
(a) Statement of equal rights
All person within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ...
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Implied rights of actions have also been found under the United States Constitution, Fifth Amendment, Davis v. Passman, 442 U.S. 228, and Eighth Amendment, Carlson v. Green, 446 U.S. 13 (1980). See Bush v. Lucas, 426 U.S. 367, 374 (1983) (noting that in some cases, the United States “Constitution itself supports a private [right] of action for damages against a federal official”).
In Jett v. Dallas Ind. School Dist, 491 U.S. 701 (1989), the Supreme Court held that while state actors could violate § 1981, it did not create a right of action to sue; instead, § 1983 created the exclusive right of action in that situation. Id. at 731. Subsequently, § 1981 was amended to add subsections (b) and (c). Civil Rights Act of 1991, Pub.L. 102-166 § 101. In effect, the new amendments overruled this holding of Jett. See Fed’n, 96 F.3d at 1210-14 (finding that 1991 amendment to § 1981 created right of action against state actors); Dennis v. County of Fairfax, 55 F.3d 151, *284156 n.1 (4th Cir. 1995); Philippeaux v. N. Cent. Bronx Hosp., 871 F. Supp 640, 653-56 (S.D.N.Y. 1994). Jett also held that § 1983 provides the exclusive right of action for suits against municipalities. The appeals courts are split as to whether the amendments overruled this aspect of Jett. Compare Fed’n, 96 F.3d at 1214-15, with Philippeaux, 871 F. Supp at 654-56. This issue is not before us and thus we need not resolve it.
The Thirteenth Amendment states in part, “Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
The Fourteenth Amendment states in part, “No State shall. . . deny to any person within its jurisdiction the equal protection of the laws.”
Nothing in this opinion should be interpreted as overruling or altering at all the current state of our land alienation laws. We are cognizant that 42 U.S.C. § 1982, which took root also from the Thirteenth and Fourteenth Amendments, seemingly conflicts with the explicit racial requirements for land ownership codified in A.S.C.A. §§ 37.0201-.0230. While the right to land ownership may be a fundamental right, Congress has *287“carefully preserve[d] for the Samoan people the exclusive right to determine by local statute how their culture and land tenure system will be regulated.” Craddick Dev., Inc. v. Craddick, 2 A.S.R.3d 20, 39 (App. Div. 1998) (Ward, J., concurring). At the very least, incorporation of this specific fundamental right would be impractical and anomalous in American Samoa. See Wabol, 958 F.2d at 1461-62 (applying analysis and upholding land alienation restrictions of the Northern Mariana Islands).
Section 1985(3) prohibits, “two or more persons in any State or Territory [from] conspir[ing] ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the *288laws].]” This section creates a right of action to enforce existing federal laws, such as § 1981. See Great Am. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 383 (1979) (Stevens, J., concurring) (private conspiracies to deprive individuals of their right to be free from the badges of slavery are actionable under § 1985(3)); Nieto v. United Auto Workers Local 598, 672 F. Supp. 987, 991-92 (E.D. Mich. 1987). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482253/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-22-00148-CV
Elvira JONES,
Appellant
v.
Jason Frank JONES,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 21-05-0410-CVA
Honorable Russell Wilson, Judge Presiding
BEFORE JUSTICE CHAPA, JUSTICE WATKINS, AND JUSTICE RODRIGUEZ
In accordance with this court’s opinion of this date, the appeal is DISMISSED. We
ORDER appellant Elvira Jones bear all costs of this appeal.
SIGNED November 2, 2022.
_____________________________
Luz Elena D. Chapa, Justice | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482257/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-22-00390-CV
Brian GILL,
Appellant
v.
Gina GILL,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2020-CI-23530
Honorable Tina Torres, Judge Presiding
BEFORE JUSTICE ALVAREZ, JUSTICE CHAPA, AND JUSTICE RIOS
In accordance with this court’s opinion of this date, this appeal is dismissed for want of
prosecution. Appellant is unable to afford payment of court costs; no costs are taxed in this appeal.
SIGNED November 2, 2022.
_____________________________
Patricia O. Alvarez, Justice | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350438/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00414-CV
No. 02-22-00417-CV
No. 02-22-00418-CV
No. 02-22-00419-CV
No. 02-22-00420-CV
No. 02-22-00421-CV
No. 02-22-00422-CV
No. 02-22-00423-CV
No. 02-22-00424-CV
No. 02-22-00425-CV
___________________________
BRADLEY BOWEN, Appellant
V.
VIRGINIA GRAHAM, Appellee
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court Nos. 22-0356-393, 22-0356-393, 22-0356-393, 22-0356-393, 22-0356-393, 22-0356-393,
22-0356-393, 22-0356-393, 22-0356-393, 22-0356-393
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Bradley Bowen has filed ten1 appeals challenging a variety of
interlocutory orders entered in his divorce and child-custody case. He challenges an
order withholding his income for child support, two sets of temporary child-custody
orders, and seven orders quashing subpoenas. But none of the challenged trial court
orders are final or appealable. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a); Tex.
Fam. Code Ann. § 105.001(e); Booker v. Mahmoudi, No. 05-18-01054-CV, 2018 WL
6322174, at *1 (Tex. App.—Dallas Dec. 4, 2018, no pet.) (mem. op.) (holding order
quashing subpoena not appealable); In re K.K., No. 02-15-00141-CV, 2015 WL
4652774, at *1 (Tex. App.—Fort Worth Aug. 6, 2015, no pet.) (per curiam) (mem.
op.) (stating that “temporary orders in suits affecting the parent–child relationship are
not appealable”). And appeals may be taken only from final judgments or appealable
interlocutory orders.2 See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001);
Bowen v. Graham, No. 02-22-00333-CV, 2022 WL 4545567, at *1 (Tex. App.—Fort
Worth Sept. 29, 2022, no pet. h.) (mem. op.); cf. Booker, 2018 WL 6322174, at *1
(dismissing for want of jurisdiction); K.K., 2015 WL 4652774, at *1 (similar).
Appellant filed 11 notices of appeal, but two of his notices appear to challenge
1
the same trial court order.
2
But see Indus. Specialists, LLC v. Blanchard Ref. Co., 652 S.W.3d 11, 14 (Tex. 2022)
(plurality op.) (questioning whether “[l]imiting appeals to final judgments can no
longer be said to be the general rule” given the number of statutory exceptions for
interlocutory appeals (quoting Dall. Symphony Ass’n, Inc. v. Reyes, 571 S.W.3d 753, 759
(Tex. 2019))).
2
Accordingly, we notified Bowen of our concern that we lacked jurisdiction over
his appeals, and we warned that we would dismiss the appeals unless, within ten days,
he (or any other party) showed grounds for continuing them. See Tex. R. App. P.
42.3(a), 44.3. More than 30 days have passed, but Bowen has failed to respond.
Because none of Bowen’s attempted appeals challenge a final judgment or
appealable interlocutory order, we dismiss all ten appeals for want of jurisdiction.3
Tex. R. App. P. 42.3(a), 43.2(f).
Even if Bowen were challenging final judgments or appealable interlocutory
3
orders, his appeals would still be jurisdictionally barred as untimely. See Mitchell v.
Estrada, No. 02-22-00005-CV, 2022 WL 1183342, at *1 (Tex. App.—Fort Worth Apr.
21, 2022, no pet.) (mem. op.) (quoting In re Guardianship of Fulbright, No. 02-16-00230-
CV, 2016 WL 4395804, at *1 (Tex. App.—Fort Worth Aug. 18, 2016, no pet.) (per
curiam) (mem. op.)); see Tex. R. App. P. 25.1(b).
Generally, a notice of appeal must be filed within 30 days after the appealable
judgment or order is signed, but an interlocutory appeal must be filed within 20 days.
Tex. R. App. P. 26.1, 28.1(a). An appellant can request a 15-day extension if the
request is filed within 15 days after the deadline for the notice of appeal, see Tex. R.
App. P. 26.3, and such a request is implied if an appellant (1) files a tardy notice of
appeal within the 15-day grace period and (2) reasonably explains the need for an
extension. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner,
959 S.W.2d 615, 617 (Tex. 1997); Terreforte v. Gonzalez, No. 02-22-00349-CV, 2022 WL
15076264, at *1 (Tex. App.—Fort Worth Oct. 27, 2022, no pet. h.) (mem. op.).
Eight of Bowen’s notices of appeal challenge trial court orders signed between
February 25, 2022, and September 14, 2022, so when Bowen filed his notices of
appeal on October 24, 2022, the 20-day deadlines had already expired, as had the 15-
day grace periods. Bowen’s other two notices of appeal challenge trial court orders
issued on September 19, 2022, and September 26, 2022, so although Bowen’s October
24, 2022 notices came after the 20-day deadlines had expired, the notices fell within
the 15-day grace periods. However, Bowen did not reasonably explain his need for an
extension, and when we asked him to file an explanation, he failed to respond.
3
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: December 22, 2022
4 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350436/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00304-CV
___________________________
DANIEL GREGORY MACLELLAN, Appellant
V.
MARCIA MACLELLAN, Appellee
On Appeal from the 211th District Court
Denton County, Texas
Trial Court No. 21-4710-211
Before Bassel, Womack, and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is a restricted appeal from a no-answer default judgment in a divorce case.
In a single issue, Appellant Daniel Gregory MacLellan argues that the trial court
abused its discretion by dividing the parties’ community property without any
evidence of the value of the items. Appellee Marcia MacLellan did not file a brief
refuting Daniel’s contention. 1 Because error is apparent from the face of the record,
as there is no evidence to support the trial court’s property division, we reverse the
final decree of divorce in part and remand the case for a new trial solely as to the
property division; we affirm the portion of the final decree that grants the divorce.
II. Procedural Background
After Marcia, who was proceeding pro se, filed her original petition for divorce,
Daniel filed a waiver of service. Marcia then retained counsel, filed an “Affidavit for
Prove-Up of Default Divorce Without Children,” and “submitted a decree of
divorce.” Six days later, the trial court signed a final decree. No postjudgment
motions were filed. Daniel then filed a notice of restricted appeal.
1
We provided two extensions of time for Marcia to file her brief, extending the
deadline from December 23, 2021, to April 25, 2022. A late-brief notice was sent on
June 8, 2021, giving Marcia until June 21, 2022, to file her brief. The orders granting
the extensions, as well as the late-brief notice, were mailed to the address on file for
Marcia and were not returned as undelivered.
2
III. Restricted Appeal Requirements Met
In his sole issue, Daniel argues that the trial court erred by entering the final
decree of divorce “when the evidence presented was legally and factually insufficient
to support the relief granted.” Specifically, Daniel argues that “there is a complete
absence of evidence to support the division of property because there is no evidence
of the properties’ values.” We begin by setting forth the requirements of a restricted
appeal and analyzing the first three elements to determine our jurisdiction over this
appeal. After confirming we have jurisdiction, we determine that error is apparent
from the face of the record because no evidence was presented to show the values of
the property that was divided.
To prevail in this restricted appeal, Daniel must show that (1) he timely filed a
notice of restricted appeal; (2) he was a party to the underlying suit; (3) he did not
participate in the hearing that resulted in the complained-of judgment and did not
timely file either a postjudgment motion, request for findings of fact and conclusions
of law, or a notice of appeal within the time permitted by Rule 26.1(a); and (4) error is
apparent from the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); In re S.W., 614 S.W.3d 311, 313
(Tex. App.—Fort Worth 2020, no pet.). The first three requirements are necessary to
invoke our restricted-appeal jurisdiction, but the fourth is not. Ex parte E.H., 602
S.W.3d 486, 496 (Tex. 2020).
3
A. Analysis of the First Three Requirements
Here, as to the first requirement, the record reflects that Daniel timely filed his
notice of restricted appeal within the six-month deadline set by Texas Rule of
Appellate Procedure 26.1(c). See Tex. R. App. P. 26.1(c), 30. With regard to the
second requirement, Marcia’s petition listed Daniel as the respondent, so he was
necessarily a party to the underlying suit. As to the third requirement, the final decree
shows that Daniel “waived issuance and service of citation by waiver duly filed and
did not otherwise appear,”2 and the record reflects that Daniel did not timely file a
postjudgment motion, a request for findings of fact and conclusions of law, or a
notice of appeal within the time permitted by Rule 26.1(a). Accordingly, Daniel has
met the three requirements necessary to invoke our restricted-appeal jurisdiction.
B. Analysis of the Fourth Requirement
Daniel argues that he met the fourth requirement because the record
demonstrates that no evidence was presented to support the allegations in the
petition. 3 In evaluating this argument, we first set forth the standard for reviewing a
The Texas Supreme Court, under the former writ-of-error procedure, held that
2
signing an agreement incident to divorce and a waiver of citation “were not sufficient
acts of participation to preclude [the appellant] from obtaining writ[-]of[-]error
review.” Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). Thus, merely signing a
waiver of citation is not a sufficient act of participation to preclude a restricted appeal.
3
Although Daniel makes this broad assertion, the crux of his argument appears
to take aim at the property division, not the granting of the divorce, because he
concludes his argument by stating that “[c]onsequently, the trial court abused its
discretion in the division of property.” Moreover, Marcia’s affidavit proved up the
4
property division and then conduct a review under that standard to see if there is
error on the face of the record before concluding that there is.
The trial court has broad discretion in making a “just and right” division;
absent a clear abuse of discretion, we will not disturb the trial court’s division. Jacobs v.
Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Hamilton v. Hamilton, No. 02-19-00211-CV,
2020 WL 6498528, at *6 (Tex. App.—Fort Worth Nov. 5, 2020, no pet.) (mem. op.).
A trial court abuses its discretion if it acts arbitrarily or unreasonably or does not
analyze or apply the law properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). Whether
the evidence supporting such rulings is legally and factually sufficient is relevant in
deciding whether the trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872
(Tex. App.—Fort Worth 2002, pet. denied) (op. on reh’g). To determine whether the
trial court abused its discretion because the evidence is insufficient to support its
decision, we consider whether the trial court (1) had sufficient evidence upon which
to exercise its discretion and (2) erred in its exercise of that discretion. Logsdon v.
Logsdon, No. 02-14-00045-CV, 2015 WL 7690034, at *3 (Tex. App.—Fort Worth
Nov. 25, 2015, no pet.) (mem. op.) (citing Neyland v. Raymond, 324 S.W.3d 646, 649
(Tex. App.—Fort Worth 2010, no pet.)).
grounds for the divorce by stating that the “marriage ha[d] become insupportable
because of a discord or conflict of personalities that destroy[ed] the legitimate ends of
the marriage relationship.” We therefore uphold the portion of the decree ordering
the parties divorced.
5
In a restricted appeal, we may consider only the evidence that was included in
the appellate record and that was before the trial court at the time the judgment was
rendered. McCoy v. McCoy, No. 02-17-00275-CV, 2018 WL 5993547, at *2 (Tex.
App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.) (citing Norman Commc’ns v. Tex.
Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)).
In order to prove up a property division in a no-answer default divorce,
“the petition may not be taken as confessed if the respondent does not
file an answer.” Tex. Fam. Code Ann. § 6.701. Thus, if the respondent
in a divorce case fails to answer or appear, the petitioner must present
evidence to support the material allegations in the petition. Heap-Welch[
v. Welch, No. 05-19-01260-CV], 2020 WL 6304992, at *2 [(Tex. App.—
Dallas Oct. 28, 2020, no pet.) (mem. op.)]; Watson v. Watson, 286 S.W.3d
519, 523 (Tex. App.—Fort Worth 2009, no pet.) (“Technically, there can
be no default judgment in a divorce action.”). Accordingly, a default
divorce judgment is subject to evidentiary attack on appeal. Heap-Welch,
2020 WL 6304992, at *2.
Evidence is legally insufficient to support a decree’s property
division when no evidence of the divided property’s value is adduced.
[See, e.]g., id.; Watson, 286 S.W.3d at 524–25; Wilson v. Wilson, 132 S.W.3d
533, 537–38 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); O’Neal
v. O’Neal, 69 S.W.3d 347, 348–50 (Tex. App.—Eastland 2002, no pet.).
B.K. v. T.K., No. 02-19-00472-CV, 2021 WL 2149621, at *2–3 (Tex. App.—Fort
Worth May 27, 2021, no pet.) (mem. op.).
Here, the appellate record consists solely of a clerk’s record and a first
supplemental clerk’s record. The record contains Marcia’s affidavit, but her affidavit
does not set forth any property or any property values:
6
My name is Marcia MacLellan. I am above the age of eighteen years,
and I am fully competent to make this affidavit. The facts stated in this
affidavit are within my personal knowledge and are true and correct.
I am presently married to Daniel Gregory MacLellan.
Before the filing of this suit, I was a domiciliary of Texas for the
preceding six-month period and a resident of Denton County, Texas[,]
for the preceding ninety-day period.
We were married on January 18, 2014, and we ceased to live
together as spouses on or about April 5, 2021.
Our marriage has become insupportable because of a discord or
conflict of personalities that destroys the legitimate ends of the marriage
relationship.
There is no reasonable expectation of reconciliation.
There are no children born during this marriage.
There are no children adopted during this marriage.
There is no child expected at this time.
There has been no family violence or abuse within two years
before or during this suit.
There is no bankruptcy proceeding affecting this suit.
I have submitted a decree of divorce, which I have signed.
The divorce decree dedicates four and a half pages to dividing the parties’
property and debts. The record, however, does not reflect that the trial court was
apprised of any information regarding the value of the property or debts and, as a
result, does not establish that the division was fair and equitable. Accordingly, the
trial court had insufficient evidence to divide the property equitably and thus abused
7
its discretion in its division of the parties’ marital estate. See B.K., 2021 WL 2149621,
at *3; Heap-Welch, 2020 WL 6304992, at *2.
With respect to the trial court’s division of the marital estate, we hold that
Daniel has shown that error exists on the face of the record. We therefore sustain
Daniel’s sole issue.
IV. Conclusion
Having determined that the record contains evidence to support the portion of
the decree that grants the divorce but having determined that Daniel has shown error
in the decree’s property division on the face of the record, we affirm the portion of
the divorce decree that grants the divorce, but we reverse the remainder of the decree
and remand the case for a new trial regarding property division.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: December 22, 2022
8 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482263/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00690-CV
Matthew KUNKEL,
Appellant
v.
ACCELERATED INVENTORY MANAGEMENT, LLC,
Appellee
From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 2022CV03570
Honorable J Frank Davis, Judge Presiding
ORDER
On October 17, 2022, appellant Matthew Kunkel filed a notice of appeal challenging a
final judgment signed on October 6, 2022. On October 28, 2022, appellant filed a letter
informing us he would “not be moving forward with the appeal process.” We construe
appellant’s letter as a motion requesting voluntary dismissal of this appeal pursuant to Texas
Rule of Appellate Procedure 42.1(a)(1). See TEX. R. APP. P. 42.1(a)(1) (stating court may
dismiss appeal on motion of appellant). If appellant is not seeking a voluntary dismissal of his
appeal, we order appellant to file a response by November 14, 2022. If we do not receive a
response by that date, then we will act on the motion and dismiss the appeal. See id. R. 2,
42.1(a)(1).
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482261/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00355-CV
SSC WIMBERLEY OPERATING COMPANY, LLC; Randall Morris; Bozena Mrozek;
Calvin Boutte; SavaSeniorCare Administrative and Consulting, LLC; and
SSC Equity Holdings MT, LLC,
Appellants
v.
Shellie GOODMAN,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CI17165
Honorable Norma Gonzales, Judge Presiding
ORDER
Appellants’ reply brief is due on November 3, 2022. See TEX. R. APP. P. 38.6(c). Before
the due date, Appellants filed an unopposed motion for a seven-day extension of time to file the
reply brief.
Appellants’ motion is granted; the reply brief is due on November 10, 2022. See id. R.
38.6(d).
It is so ORDERED November 1, 2022.
PER CURIAM
ATTESTED TO:__________________________
MICHAEL A. CRUZ,
CLERK OF COURT | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482266/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00598-CR
EX PARTE Jesus Alfredo GARCIA CASTILLO,
From the County Court, Kinney County, Texas
Trial Court No. 10574CR
Honorable Tully Shahan, Judge Presiding
ORDER
On October 26, 2022, appellant filed a motion requesting an extension of time to file his
brief. However, the clerk’s record is not complete and not due until October 31, 2022.
Accordingly, we order appellant’s brief due twenty days after the clerk’s record is complete.
See 4th Tex. App. (San Antonio) Loc. R. 8.2. Counsel is advised if by that date he needs more
time to file his brief, he should file a motion in compliance with Rule 10.5(b) of the Texas Rules
of Appellate Procedure. See TEX. R. APP. P. 10.5 (providing requirements for motions seeking
extension of time).
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482267/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00596-CR
EX PARTE Edwing Ricardo ALVARADO RODRIGUEZ
Appellant
From the County Court, Kinney County, Texas
Trial Court No. 10500CR
Honorable Tully Shahan, Judge Presiding
ORDER
Appellant’s brief is currently due on October 31, 2022. On October 26, 2022, appellant
filed an unopposed motion requesting a sixty-day extension of time to file his brief. We GRANT
the motion and ORDER appellant to file his brief by December 30, 2022. Further requests for
extensions of time will be disfavored.
_________________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482268/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-21-00557-CV
CARDINAL SENIOR CARE, LLC,
Appellant
v.
Greg BRADWELL,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CI11679
Honorable Mary Lou Alvarez, Judge Presiding
ORDER
Sitting: Luz Elena D. Chapa, Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
On February 3, 2022, this court stayed the underlying trial court proceedings until
disposition of this appeal or further order of this court. On October 14, 2022, Norma L.
Thompson, a defendant in the underlying proceedings but not a party to this appeal, filed an
unopposed motion in this court seeking a partial lift of the stay for the limited purpose of filing a
motion to substitute counsel and allowing the trial court to rule on the motion to substitute
counsel. The motion is GRANTED.
We ORDER the February 3, 2022 stay lifted for the limited purpose of allowing:
(1) Thompson to file her motion to substitute counsel; (2) a hearing on the motion to substitute
counsel, if requested; and (3) the trial court to rule on the motion to substitute counsel. We
FURTHER ORDER the February 3, 2022 stay remains in effect for all other purposes.
It is so ORDERED November 1, 2022.
PER CURIAM
ATTESTED TO:__________________________
MICHAEL A. CRUZ,
CLERK OF COURT | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482269/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00540-CV
Al SUAREZ, as Mayor of the City of Converse, Jeff Beehler, as Place 5 Member, City Council
of the City of Converse, Kathy Richel, as Place 1 Member, City Council of the City of Converse,
Shawn Russell as Place 3 Member, City Council of the City of Converse, Marc Gilbert, as Place
6 Member, City Council of the City of Converse, Le Ann Piatt, City Manager of the City of
Converse, Holly Nagy as Secretary of the City of Converse, and the City of Converse,
Appellants
v.
Katherine SILVAS,
Appellee
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CI22419
Honorable Aaron Haas, Judge Presiding
ORDER
The Appellee’s Unopposed First Motion for Extension of Time to File Appellee’s Brief is
hereby GRANTED. The appellee’s brief is due on or before November 30, 2022.
_________________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1st day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482241/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00007-CV
Patricia SKELTON,
Appellant
v.
Guy James GRAY,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. 16416A
Honorable Albert D. Pattillo, III, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: November 2, 2022
REVERSED AND REMANDED
Appellant Patricia Skelton appeals the trial court’s dismissal of her suit for want of
prosecution. We reverse the trial court’s order of dismissal and remand the cause to the trial court
for further proceedings.
BACKGROUND
In 2016, Skelton filed a legal malpractice suit against appellee Guy James Gray, an attorney
who represented Skelton in a 2007 criminal trial. In the criminal proceedings, Skelton appealed
her conviction on, inter alia, ineffective assistance of counsel grounds. See Skelton v. State, No.
04-22-00007-CV
04-08-00720-CR, 2010 WL 2298859, at *4 (Tex. App.—San Antonio June 9, 2010, pet. ref’d)
(not designated for publication). We affirmed the conviction and the Texas Court of Criminal
Appeals refused Skelton’s petition for discretionary review. See id. Skelton then applied for a writ
of habeas corpus, which the trial court denied. See Ex parte Skelton, 434 S.W.3d 709, 716 (Tex.
App.—San Antonio 2014, pet. ref’d) (opin. on reh’g). In the habeas appeal, we reversed the trial
court’s judgment, granted habeas relief on ineffective assistance grounds, and vacated the criminal
judgment against Skelton. Id. at 732–34.
In the malpractice case, Gray filed an answer, a jury demand, and a Rule 91a motion to
dismiss. His motion to dismiss relied on the Peeler doctrine, which provides that convicted
individuals may not sue their criminal-defense attorneys for malpractice unless they have been
exonerated. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (plurality op.).
The trial court dismissed the malpractice case with prejudice in 2016. This court reversed the trial
court’s dismissal of the claim and remanded the cause to the trial court for further proceedings.
Skelton v. Gray, 547 S.W.3d 272, 276–77, 280 (Tex. App.—San Antonio 2018) (holding Peeler
doctrine did not apply because Skelton’s conviction had been vacated), aff’d, 595 S.W.3d 633
(Tex. 2020). The Texas Supreme Court granted Gray’s petition for review, affirmed our judgment,
and remanded this case for trial. Gray v. Skelton, 595 S.W.3d 633, 636, 641 (Tex. 2020)
(concluding that Peeler doctrine did not bar Skelton’s malpractice claim, but that she must prove
her innocence as a necessary predicate). The Supreme Court issued its mandate on March 26, 2020,
returning jurisdiction over the malpractice case to the trial court.
After a year with no activity on the case, on March 18, 2021, the trial court sua sponte
notified the parties of its intent to dismiss the case for want of prosecution based on Rule 165a and
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04-22-00007-CV
the Local Rules of Practice. 1 At the April 19, 2021 dismissal hearing, the trial court: (1) retained
the case “until 10/30/21 on which date it shall be automatically dismissed”; and (2) ordered the
parties to mediate by July 30, 2021. On May 13, 2021, Gray filed a no-evidence motion for
summary judgment; on June 7, 2021, Skelton filed a traditional motion for summary judgment.
On July 27, 2021, the trial court denied both motions. On October 28, 2021, Skelton filed a motion
asking the trial court to set the case for a jury trial in January or February 2022 and to refer the
case to mediation.
On November 15, 2021, the trial court signed an order dismissing the case for want of
prosecution. Skelton filed a notice of appeal and a verified motion to reinstate. In that motion,
Skelton averred that Gray’s counsel had “advised [Skelton’s] counsel and the Court’s coordinator
that [he] was not available for a jury trial until 2022.” In response, Gray’s attorney swore, “I never
said I had no availability in 2021.” The trial court overruled by operation of law Skelton’s motion
to reinstate the case.
In her appellate brief, Skelton raises two issues. First, she claims the trial court abused its
discretion by dismissing the case for want of prosecution despite the parties’ “demonstrated desire”
to resolve the case via jury trial when juries were not available for civil trials due to the COVID-
19 pandemic. Second, she argues the trial court abused its discretion by failing to set a hearing on
her verified motion to reinstate.
1
See Doss v. Robinson, No. 04-16-00560-CV, 2017 WL 2124488, at *2 (Tex. App.—San Antonio May 17, 2017, no
pet.) (mem. op.) (noting the relevant local rule provides “[i]f no action is taken by a party seeking affirmative relief in
non-family civil matters within nine (9) months directed toward a trial on the merits, the Court will proceed to dismiss
the case for want of prosecution in accordance with Rule 165a.”).
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04-22-00007-CV
ANALYSIS
Dismissal for Want of Prosecution
Applicable Law and Standard of Review
A plaintiff has a responsibility to prosecute a suit to an end with reasonable diligence,
“failing which a trial court may dismiss for want of prosecution.” In re Conner, 458 S.W.3d 532,
534 (Tex. 2015) (orig. proceeding) (per curiam). “A trial court’s authority to dismiss for want of
prosecution has two sources: Rule 165a of the Texas Rules of Civil Procedure and the trial court’s
inherent power.” Dobroslavic v. Bexar Appraisal Dist., 397 S.W.3d 725, 727 (Tex. App.—San
Antonio 2012, pet. denied). Under Rule 165a(2), a trial court can dismiss a case “not disposed of
within time standards promulgated by the Supreme Court[.]” TEX. R. CIV. P. 165a(2); Dobroslavic,
397 S.W.3d at 727–28. Those standards require district courts to ensure, “‘so far as reasonably
possible,’” that non-family law civil cases in which a jury has been demanded are brought to trial
or final disposition within eighteen months of the appearance date. In re Conner, 458 S.W.3d at
535 (quoting TEX. R. JUD. ADMIN. 6.1(b)(1)). “At the dismissal hearing, the court shall dismiss for
want of prosecution unless there is good cause for the case to be maintained on the docket.” TEX.
R. CIV. P. 165a(1); In re Conner, 458 S.W.3d at 535 (noting that “while Rule 165a(2) does not
refer to Rule 165a(1)’s procedural requirements, including notice and a hearing, neither does it
suggest a basis for deviating from those procedures”). The trial court also “has the inherent power
to dismiss when a plaintiff fails to prosecute his case with due diligence.” Dobroslavic, 397 S.W.3d
at 728. “This authority stems from the trial court’s power to maintain and control its docket.” Id.
“To decide the diligence issue, trial courts consider the entire history of the case, including whether
the plaintiff requested a trial setting, the amount of activity in the case, the passage of time, and
the plaintiff’s excuses for the delay.” Id. at 729.
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04-22-00007-CV
We review a trial court’s order dismissing a case for want of prosecution for an abuse of
discretion. Id. at 728. A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner or without reference to any guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). With respect to factual matters, an abuse
of discretion occurs only when the record shows “the trial court could reasonably have reached
only one decision.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “We may not reverse for
abuse of discretion merely because we disagree with the decision of the trial court.” Dobroslavic,
397 S.W.3d at 728.
Application
Here, the trial court’s dismissal references its prior order that if the case was not “finalized”
by October 30, 2021, it would be dismissed. When the court set the hearing that led to its prior
order, it referenced “Rule 165a, Texas Rules of [C]ourt, and the Local Rules of Practice.” We
construe this as an invocation of Rule 165a(2) and the trial court’s inherent authority. See Dueitt
v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco 2005, pet.
denied) (where plaintiffs did not request fact findings and trial court did not specify dismissal
standard used, appellate court must “affirm on the basis of any legal theory supported by the
record”).
Because more than eighteen months had passed since the Texas Supreme Court’s mandate
issued, this delay meets the prima facie standard for what is unreasonable in terms of prosecuting
a case. Doss, 2017 WL 2124488, at *2; see also TEX. R. CIV. P. 165a(2) (“Any case not disposed
of within time standards promulgated by the Supreme Court under its Administrative Rules may
be placed on a dismissal docket.”). Because this delay gave rise to a presumption of abandonment,
we must determine whether Skelton sufficiently explained the delay using well-established factors.
In re Conner, 458 S.W.3d at 535; see also Dobroslavic, 397 S.W.3d at 729.
-5-
04-22-00007-CV
Whether plaintiff requested a trial setting. Skelton twice requested that the case be set
for trial: on April 19, 2021 (at the dismissal hearing) and again on October 28, 2021 (in a motion).
The amount of activity in the case. Aside from some informal settlement negotiations,
there was no activity in the case before the trial court’s April 19, 2021 dismissal hearing. After
that, the record reflects the following activity:
• 4/20/21 Gray served written discovery on Skelton 2
• 5/13/21 Gray filed a no-evidence motion for summary judgment
• 5/20/21 Skelton responded to written discovery requests
• 6/7/21 Skelton filed a traditional motion for summary judgment
• 6/28/21 The trial court heard the parties’ motions for summary judgment
• 7/27/21 The trial court signed an order denying both motions
• 10/28/21 Skelton filed a motion to set the case on the jury docket and refer it to
mediation
Approximately two weeks after Skelton filed her motion to set the case on the jury docket, the trial
court dismissed the case for want of prosecution.
The passage of time. The Texas Supreme Court issued its mandate returning the case to
the trial court on March 26, 2020; the trial court dismissed the case on November 15, 2021. The
case was therefore on the docket for just under twenty months.
The plaintiff’s excuses for the delay. At the dismissal hearing, Skelton did not offer
evidence, but explained that the case could not be heard by a jury due to the court’s pandemic-
related backlog; she had been unable to obtain any jury setting from the court’s administrator, “Ms.
McEntyre.” We agree with Skelton that the trial court acted in an arbitrary and unreasonable
2
This date, as well as the May 20, 2021 date Skelton responded to Gray’s discovery, come from the affidavit Gray’s
counsel attached to Gray’s response to Skelton’s motion to reinstate. The clerk’s record does not contain this
discovery.
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04-22-00007-CV
manner by dismissing the case after setting a deadline it knew the parties would be unable to meet
and in the face of their ongoing active participation in the case. By the time the Texas Supreme
Court’s mandate issued, the COVID-19 pandemic had disrupted every facet of life in this state.
The Texas Supreme Court had issued emergency orders prohibiting in-person proceedings and
jury trials, with certain exceptions, due to safety concerns associated with the pandemic. See, e.g.,
Eighteenth Emergency Order Regarding COVID-19 State of Disaster, 609 S.W.3d 122, 123 (Tex.
June 29, 2020); Twenty-Second Emergency Order Regarding COVID-19 State of Disaster, 609
S.W.3d 129, 130 (Tex. Aug. 6, 2020).
By the April 19, 2021 dismissal hearing, the Texas Supreme Court had lifted many
restrictions on jury trials. See Thirty-Sixth Emergency Order Regarding COVID-19 State of
Disaster, 629 S.W.3d 897, 898 (Tex. March 5, 2021). Despite that, the trial court recognized that
the parties’ chances of having a jury available for a civil trial in the next year were slim, stating,
“I don’t know that you’ll get a jury in the next-year either. We’ve got a year’s worth backlog of
criminal cases that are -- they jump the line, they take a precedence over civil cases, so any trial
setting you get is all going to be subject to a criminal jury anyway.” In ruling, the trial court
reiterated that obtaining a jury trial would be a challenge, stating:
Plaintiff’s case is retained until October 30th of 2021, on which date it will be
automatically dismissed. The parties shall mediate the case on or before July 30 of
2021. . . . And that will be the end of the road. So I don’t know if you can get a trial
date by then or not. That’s going to be a hurdle you have to overcome then.
When Skelton asked, “[W]hat do we do if we’re unable to get a trial date?” the trial court
responded, “You might consider a bench trial or mediate and settle.” 3
3
Importantly, Gray—not Skelton—filed the jury demand in this case. Skelton lacked the ability to waive Gray’s
demand that the case be tried to a jury. See Cardenas v. Montfort, Inc., 894 S.W.2d 406, 408 (Tex. App.—San Antonio
1994, writ denied) (recognizing a court “does not have discretion, when a party has properly requested a jury trial
under TRCP 216, and is present in court, to deny that party a jury trial without that party’s assent.”); see also Tex.
Const. art. I, § 15 (“The right of trial by jury shall remain inviolate.”).
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04-22-00007-CV
Activity in the case continued, with both parties participating in the discovery process and
filing motions for summary judgment, and with Skelton’s October 28, 2021 motion to set the case
on the jury docket and to refer the case to mediation. The trial court dismissed the case for want
of prosecution in the face of mitigated and explained delay. The facts here bear no resemblance to
facts the Texas Supreme Court recognized as raising a conclusive presumption of abandonment of
the plaintiff’s suit. In re Conner, 458 S.W.3d at 534–35 (plaintiff offered no explanation for the
eight-year delay in bringing the case to trial) (citing Veterans’ Land Bd. v. Williams, 543 S.W.2d
89, 90 (Tex. 1976) (finding seven-and-one-half year delay as failing to satisfy the demands of
reasonable diligence); Denton County v. Brammer, 361 S.W.2d 198, 201 (Tex. 1962) (same for
five-year delay); Bevil v. Johnson, 307 S.W.2d 85, 88 (Tex. 1957) (same for eight-year delay)).
Nor do the facts here resemble those in Pence v. S&D Builders, LLC, No. 07-21-00080-
CV, 2021 WL 5919466, at *4 (Tex. App.—Amarillo Dec. 15, 2021, no pet.) (mem. op.)—a case
cited by Gray in which our sister court upheld a dismissal of a case pending during the COVID-
19 pandemic. There, the appellate court rejected the plaintiffs’ argument that the trial court erred
in not cancelling its dismissal docket during the pandemic because the plaintiffs did not present
that argument to the trial court at the hearing on the motion to dismiss. Id.
Another case cited by Gray, in which another sister court upheld a dismissal for want of
prosecution during the pandemic, is also distinguishable. In In Matter of McBryde Family Tr., No.
13-20-00473-CV, 2021 WL 4897562, at *7 (Tex. App.—Corpus Christi–Edinburg Oct. 21, 2021,
no pet.) (mem. op.), plaintiff’s counsel argued that the need to assist and supervise his children
during the early months of the pandemic severely hindered his ability to prosecute his client’s case
for five of the eighteen months the case was on file. The appellate court held the trial court could
have reasonably concluded that COVID-19 was not a reasonable excuse for delay given the
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04-22-00007-CV
“minimal activity for a case on file for eighteen months” and counsel’s lack of a detailed
explanation of how the closures affected plaintiff’s case. Id.
Here, Skelton explained how COVID-19 affected her case—she could not obtain a jury
trial. Gray makes much of Skelton’s failure to present evidence that she could not obtain a jury
setting, but the trial court expressed its own awareness on the record of the fact that juries likely
would not be available for civil trials, even the following year. Gray also notes that Skelton made
no attempt to mediate the case before July 30, 2021, and only asked the trial court to set the case
for mediation in her October 28 motion. But that pleading followed the parties’ motions for
summary judgment and the trial court’s denial of those motions, demonstrating Skelton’s active
prosecution of her case. Examining the entire record, and in light of the history of this dispute—
including four appeals to this court, two appeals to the Texas Court of Criminal Appeals, and one
appeal to the Texas Supreme Court—we conclude the trial court’s decision was arbitrary,
unreasonable, and without reference to guiding principles. See Downer, 701 S.W.2d at 241–42.
CONCLUSION
For these reasons, and in the interests of justice, we reverse the trial court’s order
dismissing the case and remand this matter to the trial court to reinstate Skelton’s case on the
court’s docket. TEX. R. APP. P. 43.2(d), 43.3. Having sustained Skelton’s first issue, we need not
consider Skelton’s second argument about the trial court’s failure to hold a hearing on her motion
to reinstate. TEX. R. APP. P. 47.1.
Beth Watkins, Justice
-9- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482260/ | Fourth Court of Appeals
San Antonio, Texas
November 1, 2022
No. 04-22-00726-CV
IN RE Maria GONZALEZ, Eliseo Gonzalez, Lucy Harvest, Scott Grice, Miriam Grice and
Democrats Abroad
Original Proceeding1
Sitting: Rebeca C. Martinez, Chief Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
On October 31, 2022, relators filed a petition for writ of mandamus containing a request
for immediate emergency relief. After considering the petition and this record, this court
concludes relators are not entitled to the relief sought. Accordingly, the petition for writ of
mandamus is DENIED. See TEX. R. APP. P. 52.8(a). Relators’ request for emergency relief is
DENIED as moot.
It is so ORDERED on November 1, 2022.
_____________________________
Rebeca C. Martinez, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 1 day of November, 2022.
_____________________________
Michael A. Cruz,
Clerk of Court
1
This proceeding arises out of relators’ federal postcard application complaint against Bexar County Election
Officials. See TEX. ELEC. CODE ANN. § 273.061(a) (“[A] court of appeals may issue a writ of mandamus to compel
the performance of any duty imposed by law in connection with the holding of an election or a political party
convention, regardless of whether the person responsible for performing the duty is a public officer.”). | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482215/ | Fourth Court of Appeals
San Antonio, Texas
November 4, 2022
No. 04-22-00640-CV
Paul MICHAEL,
Appellant
v.
Maria Guadalupe MASCORRO,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2021-CI-05662
Honorable Karen H. Pozza, Judge Presiding
ORDER
After the clerk’s record was due to be filed in this court, the Bexar County District Clerk
notified this court that Appellant has not paid the clerk’s fee for preparing the record and
Appellant is not entitled to a free clerk’s record. See TEX. R. APP. P. 35.3(a).
We order Appellant to provide written proof to this court within ten days of the date of
this order that (1) the clerk’s fee has been paid or arrangements have been made to pay the
clerk’s fee, or (2) Appellant is entitled to appeal without paying the clerk’s fee. See id. R. 20.1.
Further, Appellant must file an amended notice of appeal certifying proper service on the
responsible court reporter(s). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.017(a); TEX. R. APP.
P. 25.1(e). We order Appellant to do so within ten days of this order.
Finally, Appellant must pay the filing fee of $205 for this appeal or show proof that he is
entitled to appeal without paying the filing fee. See TEX. R. APP. P. 5; In re R.J.G., No. 04-19-
00817-CV, 2020 WL 214769, at *1 (Tex. App.—San Antonio Jan. 15, 2020, no pet.) (mem. op.).
We order Appellant to do so within ten days of this order.
If Appellant fails to respond as ordered, this appeal will be dismissed for want of
prosecution without further notice. See id. R. 37.3(b); see also id. R. 42.3(c) (authorizing
dismissal if Appellant has failed to comply with the rules, a court order, or a notice within a
specified amount of time).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482245/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00549-CV
Meredith DE LA PENA,
Appellant
v.
Ruben DE LA PENA,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-24731
Honorable Nicole Garza, Judge Presiding
PER CURIAM
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: November 2, 2022
DISMISSED FOR LACK OF JURISDICTION
Sensing a defect in our jurisdiction because of an untimely notice of appeal, this court
ordered appellant to show cause in writing why this appeal should not be dismissed for lack of
jurisdiction. See TEX. R. APP. P. 42.3. Appellant’s response provided us with no legal basis for
why we would possess jurisdiction.
The trial court signed a final judgment on May 3, 2022. Appellant filed a timely motion
for new trial on May 5, 2022. Therefore, the notice of appeal was due to be filed August 1, 2022.
See TEX. R. APP. P. 26.1(b). A motion for extension of time to file the notice of appeal was due
04-22-00549-CV
on August 16, 2022, but none was filed by that date. See TEX. R. APP. P. 26.3. Instead, appellant
filed a notice of appeal on August 26, 2022. 1
A notice of appeal filed more than fifteen days after August 1, 2022, did not invoke this
court’s appellate jurisdiction. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997); see also TEX.
R. APP. P. 26.3. Therefore, we dismiss the appeal for lack of jurisdiction. 2 See TEX. R. APP. P.
42.3(a).
PER CURIAM
1
The trial court signed a Final Decree of Divorce on May 3, 2022. Appellant’s notice of appeal states she desires to
appeal “the judgment or other appealable order rendered on May 24, 2022.” The clerk’s record does not contain a May
24th judgment or order.
2
Appellant’s motion for mediation and abatement is dismissed as moot.
-2- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482229/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00313-CV
In the Interest of G.K.T., a Child
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2021PA00800
Honorable Kimberly Burley, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: November 2, 2022
AFFIRMED
Appellants E.T. (“Mother”) and J.C.T. (“Father”) appeal from a judgment terminating their
parental rights to G.K.T. (“the child”). 1 Both parents contend the evidence is legally and factually
insufficient to support the trial court’s best interest finding. We affirm.
BACKGROUND
On May 7, 2021, the child, who was only nine months old at the time, was removed from
Mother’s care because of concerns about her continued drug use and unaddressed mental health
issues. On the same day, the Department filed a petition for termination of Mother’s and Father’s
parental rights. The Department prepared service plans for Mother and Father, requiring them to
1
To protect the identity of the minor child, we refer to the parties and the child by fictitious names, initials, or aliases.
See TEX. FAM. CODE. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
04-22-00313-CV
complete substance abuse and psychosocial assessments and to participate in individual
counseling, domestic violence classes, and parenting classes. Additionally, both service plans
called for Mother and Father to demonstrate their sobriety by passing random drug tests.
On May 6, 2022, the case proceeded to a bench trial. At the time of trial, the child was
twenty-one months old. The Department presented the testimony of three witnesses—the
Department’s family-based services caseworker, the Department’s legal caseworker, and a CASA2
volunteer. Mother did not present any witnesses. Father testified on his own behalf. After hearing
the evidence, the trial court signed a judgment terminating Mother’s and Father’s parental rights
based on two predicate grounds: (1) constructive abandonment of the child, and (2) failure to
complete their court-ordered family service plans. See TEX. FAM. CODE § 161.001(b)(1)(N),(O).
The trial court also found that termination of parental rights was in the child’s best interest. Id.
§ 161.001(b)(2).
Both Mother and Father appeal the trial court’s termination judgment. Neither parent
challenges the predicate grounds for termination. However, both parents challenge the sufficiency
of the evidence to support the trial court’s best interest finding.
STANDARD OF REVIEW
To terminate parental rights under section 161.001 of the Texas Family Code, the
Department has the burden to prove by clear and convincing evidence that parental rights should
be terminated pursuant to one of the predicate grounds in subsection 161.001(b)(1) and that
termination of parental rights is in the child’s best interest. See TEX. FAM. CODE
§ 161.001(b)(1),(2). In reviewing the legal sufficiency of the evidence to support these findings,
we look “at all the evidence in the light most favorable to the finding to determine whether a
2
Child Advocates San Antonio.
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04-22-00313-CV
reasonable [factfinder] could have formed a firm belief or conviction that the finding was true.” In
re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002)). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting
evidence. Id. at 345. “If, in light of 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, then the evidence is factually insufficient.”
Id. (quoting In re J.F.C., 96 S.W.3d at 266). Under these standards, the factfinder is the sole judge
of the weight and credibility of the evidence. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
THE CHILD’S BEST INTEREST
Under Texas law, there is a strong presumption that the best interest of the child is served
by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In determining
whether the child’s parent is willing and able to provide the child with a safe environment, we
consider the factors listed in section 263.307(b) of the Texas Family Code. 3 TEX. FAM. CODE
§ 263.307(b). In addition to these statutory factors, we consider the non-exhaustive list of factors
set forth by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 4
3
These factors are: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-
home placements; (3) the magnitude, frequency, and circumstances of harm to the child; (4) whether the child has
been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is
fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7)
whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the
child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the
child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the
child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate
agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting
skills; and (13) whether an adequate social support system consisting of extended family and friends is available to
the child. TEX. FAM. CODE ANN. § 263.307(b).
4
These factors are: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) the
present and future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6)
the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or the proposed
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“The absence of evidence about some of these considerations would not preclude a factfinder from
reasonably forming a strong conviction or belief that termination is in the child’s best interest,
particularly if the evidence were undisputed that the parental relationship endangered the safety of
the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence that proves one or more statutory
ground for termination may also prove that termination is in the child’s best interest. Id. at 28. “A
best interest analysis may consider circumstantial evidence, subjective factors, and the totality of
the evidence as well as the direct evidence.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San
Antonio 2013, pet. denied).
MOTHER’S APPEAL
In her sole issue, Mother argues the evidence is legally and factually insufficient to support
the trial court’s finding that termination of her parental rights was in the child’s best interest.
At trial, Blanca Rosales, a family-based caseworker, testified that the Department started
working with the family because of Mother’s marijuana use and her unaddressed mental health
issues. Mother told Rosales she had been diagnosed with bipolar disorder, anxiety, and ADHD. A
doctor had prescribed medication for her, and Mother needed help with taking her medication.
Rosales tried to get Mother the assistance she needed to address her mental health issues. On one
occasion, Rosales even arranged transportation for Mother to attend an appointment at a mental
health facility.
Rosales testified that, during the family-based services phase of the case, Mother tested
positive for methamphetamines. Mother admitted that she struggled with cocaine, marijuana, and
heroin use, but nevertheless insisted that she was able to use illegal drugs and care for the child.
Mother did not acknowledge the threat her drug use posed to the child. During one home visit,
placement; (8) the parent’s acts or omissions indicating that the existing parent-child relationship is not a proper one;
and (9) any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
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Rosales noticed that Mother appeared to be under the influence—Mother was argumentative,
fidgety, and unable to walk properly. Rosales sent Mother for a drug test and the results showed
that Mother was using the same drugs that she had admitted to using in the past. Rosales tried to
work with Mother to develop a safety plan for the child, such as finding someone to supervise
Mother with the child. However, these efforts were unsuccessful. Additionally, when Rosales
arranged for the child to participate in early childhood intervention (“ECI”) services, Mother failed
to ensure that the child participated in these services.
Kisha Mitchell-Dinkins, a legal caseworker for the Department, testified that Mother failed
to participate in individual counseling, but she did complete parenting classes, domestic violence
classes, and an inpatient substance abuse program. Unfortunately, Mother soon relapsed. Mother,
who was then pregnant with another child, admitted to Mitchell-Dinkins that she was continuing
to use cocaine. Mitchell-Dinkins twice referred Mother for another substance abuse assessment,
but she refused to participate. “Illicit drug use is relevant to multiple Holley factors, including the
child[]’s emotional and physical needs now and in the future, the emotional and physical danger
to the child[] now and in the future, Mother’s parental abilities, the stability of Mother’s home,
and the acts or omissions which may indicate an improper parent-child relationship.” In re A.N.,
No. 04-19-00584-CV, 2020 WL 354773, at *3 (Tex. App.—San Antonio Jan. 22, 2020, no pet.).
Mitchell-Dinkins testified that she also sent Mother for drug testing. On all but one
occasion, Mother failed to show up for drug testing. Mother’s failures to show up for drug testing
when requested by the Department are treated as positive results. See In re E.R.W., 528 S.W.3d
251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[A] fact finder can reasonably infer
that a parent’s failure to submit to court-ordered drug tests indicates the parent is avoiding testing
because they were using illegal drugs.”). The one time Mother showed up to take a drug test, the
results showed that Mother was using some of the same illegal drugs that she had used in the past.
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Mitchell-Dinkins further testified that initially Mother attended her visits with the child.
However, in the four months preceding trial, Mother missed eight of her visits with the child.
Based on her observations of Mother’s visits, she noticed an improvement in the way Mother held
the child and talked to him. Mitchell-Dinkins attributed this improvement to Mother’s participation
in parenting classes. Mitchell-Dinkins acknowledged that there was a bond between Mother and
the child. Nevertheless, Mitchell-Dinkins expressed concern that Mother did not have the stability
to provide for the child, noting that during the pendency of this case Mother was unemployed and
had lived in five different places.
The evidence showed that the child had been placed in a foster home immediately upon
removal and was living in the same foster home at the time of trial. “When a child is too young to
express his desires, the factfinder may consider whether the child has bonded with the foster
family, is well-cared for by them, and has spent minimal time with a parent.” In re F.M.A., No.
04-16-00318-CV, 2016 WL 4379456, at *3 (Tex. App.—San Antonio 2016, pet. denied). “The
stability of the proposed home environment is an important consideration in determining whether
termination of parental rights is in the child’s best interest.” In re J.D., 436 S.W.3d 105, 120 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). “Stability and permanence are paramount in the
upbringing of children.” Id. “[T]he prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest.” TEX. FAM. CODE § 263.307(a).
A CASA volunteer testified that he performed an unexpected visit to the foster home where
the child was living. During the visit, the CASA volunteer observed the foster father interacting
with the child and teaching him how to play with a toy. According to the CASA volunteer, the
foster home was well-kept, and the foster mother worked at caring for the child.
Mitchell-Dinkins testified the child’s foster home was safe and stable. She observed the
interaction between the foster mother and the child. Mitchell-Dinkins saw the way the child looked
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at and responded to the foster mother. She also saw the way the foster mother responded to the
child. Mitchell-Dinkins described the child as adventurous, talkative, and very smart. The child’s
younger sister was living in the same foster home. Both children had a bond with the foster parents,
who were very attentive to the children and cared for their needs. According to Mitchell-Dinkins,
the foster home was “directed toward the children” and the foster mother “ha[d] dedicated herself
to the children.” Mitchell-Dinkins explained that if the court were to terminate Mother’s and
Father’s parental rights, the foster parents wanted to adopt both children. She thought the foster
parents would be an appropriate long-term placement for the child.
In reviewing all the evidence in the light most favorable to the trial court’s finding, we
conclude a reasonable factfinder could have formed a firm belief or conviction that termination of
Mother’s parental rights was in the child’s best interest. There was ample evidence from which the
trial court could have concluded that Mother did not address her sobriety during the pendency of
the case, that she was unwilling to complete counseling services, that she lacked stable housing
and employment, and that she was inconsistent in visiting the child. Based on the evidence, the
trial court could have reasonably concluded that Mother was incapable of meeting the child’s
emotional and physical needs now and in the future, that the child’s foster parents were meeting
his current emotional and physical needs, and that the Department would ensure that the child’s
future emotional and physical needs were met. We conclude the evidence is legally sufficient to
support the trial court’s finding that termination of Mother’s parental rights was in the child’s best
interest.
With regard to factual sufficiency, we recognize there was some evidence that relapses
may be part of the recovery process and that Mother completed some of the services in her service
plan. However, given all the other evidence presented, we conclude the evidence is factually
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sufficient to support the trial court’s finding that termination of Mother’s parental rights was in the
child’s best interest.
We overrule Mother’s issue.
FATHER’S APPEAL
In his sole issue, Father argues the evidence is legally and factually insufficient to support
the trial court’s finding that termination of his parental rights was in the child’s best interest.
Rosales testified that the Department’s involvement in the case began in Laredo, Texas.
During the family-based phase of the case, Father was asked to complete random drug tests. One
time when Father was asked to drug test, he failed to show. Instead, the family left Laredo and
moved to San Antonio. Father admitted to Rosales that the family left Laredo because he knew
that if he took a drug test, the results would be positive for illegal drugs. After the family moved
to San Antonio, the Department contacted Father and directed him to take another drug test. Father
appeared for this drug test and the results were positive. Father did not dispute the results and he
admitted to using illegal drugs. At the time, Father acknowledged that he needed help with a drug
assessment and treatment, yet he missed multiple drug assessment appointments. Father finally
completed a drug assessment, and he was referred to the Best Option drug treatment program.
Mitchell-Dinkins testified that Father failed to complete the Best Option drug treatment
program. Father was discharged from the program twice for failing to participate. However, Father
did participate in some Department-mandated drug testing. Mitchell-Dinkins said Father’s drug
test results from August 2021, January 2022, and April 2022 were “concerning.” When asked
about the first two drug test results, Father acknowledged that he was struggling with marijuana.
Father told Mitchell-Dinkins that he was having mental health issues. According to Mitchell-
Dinkins, the April 2022 drug test result was positive for drugs “beyond marijuana.” As to this drug
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test, Father said the results could not be true because he was drug testing for pretrial services and
those results were negative.
Mitchell-Dinkins testified that Father had been arrested multiple times for offenses
involving drugs. At the beginning of the family-based case, Father was on parole in Laredo. Then,
in November 2021, eight months after the Department filed its termination petition, Father was
arrested for manufacturing of a controlled substance, a first-degree felony. Father told Mitchell-
Dinkins he was on probation for this offense, but he did not provide her with any supporting
documentation. According to Mitchell-Dinkins, Father’s pattern of criminal activity and
incarceration interfered with his ability to care for the child. “A history of drug abuse and an
inability to maintain a lifestyle free from arrests and incarcerations is relevant to a trial court’s
best-interest determination.” In re F.M.A., 2016 WL 4379456, at *3.
Mitchell-Dinkins testified that Mother and Father were in a relationship for much of this
case. She had seen Mother and Father “cussing in the lobby, at the Department.” However, by the
time the case went to trial, Mother and Father were no longer in a relationship. Early in the case,
Father admitted that he and Mother had arguments that included physical contact such as throwing
objects. Later in the case, Father said that he and Mother still had arguments but he insisted that
they were only verbal in nature.
Mitchell-Dinkins further testified that Father failed to complete the domestic violence
course as required by his service plan. The first time that Father enrolled in a domestic violence
course, he was discharged for failing to attend classes. The month before trial, Father enrolled in
another domestic violence course, which consisted of eighteen classes. By the time of trial, Father
had only attended one of the classes. 5 Additionally, during much of the case, Father failed to
5
There was evidence that Father attended other domestic violence classes, but they were not the correct program for
him.
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04-22-00313-CV
participate in individual counseling as required by his service plan. Father was discharged by three
separate counselors for failing to show up or for failing to schedule appointments. At the time of
trial, Father was seeing a new counselor, but he had not attended very many sessions. The first
time Father enrolled in parenting classes, he was discharged for failing to participate. Father had
recently re-enrolled in parenting classes, but he had not completed the course. Mitchell-Dinkins
recognized that Father had some mental health issues in January and February 2022, which may
have affected his ability to engage in services for a brief time. However, she pointed out that the
Department’s suit was filed in May 2021. Father could have engaged in services for the first half
of the case, but he failed to do so.
Mitchell-Dinkins testified that Father’s record of visiting the child was inconsistent. Father
participated in thirty-seven visits and missed thirteen visits. Father told Mitchell-Dinkins that the
reason he missed some visits was because he was in a psychiatric facility. Father also represented
to Mitchell-Dinkins that he was late to some visits because of his job. During the visits, the child
and Father watched movies and played with toys, and Father encouraged the child to eat. Mitchell-
Dinkins acknowledged that the Father had a bond with the child.
According to Mitchell-Dinkins, Father told her that he worked in construction and lived
with his father. On the morning of trial, Father provided Mitchell-Dinkins with paystubs.
Nevertheless, Mitchell-Dinkins characterized Father’s life as unstable because of his recent
incarcerations and continued drug use. Based on the facts and circumstances of the case, Mitchell-
Dinkins believed that Father’s relationship with the child was not a proper one. Finally, as
previously detailed, the child was living in a foster home with foster parents who were very
attentive and caring for his needs.
Father testified on his own behalf. He attributed his delay in engaging in services to his
incarceration, stating that his “mentality was more about being in prison.” However, Father said
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he now realized that his children were the most important part of his life. Father confirmed he had
past arrests for controlled substances and harassment of a public servant, and a recent arrest for
manufacturing and delivery of a controlled substance.
Father contended that he was discharged from the Best Options drug treatment program
because of scheduling conflicts with his job. Father said that he had an upcoming drug assessment
and he planned to keep this appointment. As to his other service plan requirements, Father testified
he needed only two more classes to finish the parenting course, and he recently participated in two
individual counseling sessions.
Father disputed the accuracy of his recent Department drug test, which was positive for
cocaine and marijuana. Father noted that his recent drug tests for pretrial services were clean, but
admitted that the Department drug test was different from the pretrial services drug test. The
Department drug test included a hair follicle test, which can detect drug use over a longer time
period. The pretrial services drug test was only a urinalysis and did not include a hair follicle test.
Finally, Father testified that he had four other children from another relationship, but he
was not raising them. Father’s four other children lived with his mother. Father said he was not
raising his other children because he was saving money to buy a house.
In reviewing all the evidence in the light most favorable to the trial court’s finding, we
conclude a reasonable factfinder could have formed a firm belief or conviction that termination of
Father’s parental rights was in the child’s best interest. There was ample evidence from which the
trial court could have concluded that Father did not address his sobriety, that he was inconsistent
in visiting the child, that he was unwilling to complete counseling services, and that he was
unwilling to effectuate positive personal changes in his life within a reasonable time period. Based
on the evidence, the trial court could have reasonably concluded that Father was incapable of
meeting the child’s emotional and physical needs now and in the future, that the child’s foster
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04-22-00313-CV
parents were meeting the child’s current emotional and physical needs, and that the Department
would ensure that the child’s future emotional and physical needs were met. We conclude the
evidence is legally sufficient to support the trial court’s finding that termination of Father’s
parental rights was in the child’s best interest.
With regard to factual sufficiency, Father disputed the accuracy of his recent drug test
results. In addition, there was some evidence that Father’s work schedule and his mental health
issues affected his participation in services and his visitation with the child. However, given the
other evidence presented, we conclude the evidence is factually sufficient to support the trial
court’s finding that termination of Father’s parental rights was in the child’s best interest.
We overrule Father’s issue.
CONCLUSION
The trial court’s judgment is affirmed.
Liza A. Rodriguez, Justice
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https://www.courtlistener.com/api/rest/v3/opinions/8482297/ | IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. POPE
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
TEMARCO S. POPE, JR., APPELLANT.
Filed November 8, 2022. No. A-21-984.
Appeal from the District Court for Lancaster County: RYAN S. POST, Judge. Affirmed.
Jonathan M. Braaten, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Temarco S. Pope, Jr. appeals his convictions of possession of a firearm by a prohibited
person, subsequent offense, and possession of marijuana, more than one pound. He contends that
(1) the district court erred in overruling his motions to suppress and motion to quash, and in
sustaining the State’s motion in limine; (2) the evidence was insufficient to support his conviction
of possession of a firearm by a prohibited person, subsequent offense; (3) the sentences imposed
were excessive; and (4) trial counsel “was ineffective in the general trial strategy.” Brief for
appellant at 7. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
FACTS LEADING TO ARREST
On June 5, 2020, Lincoln police officer John Hudec was traveling on I-80 when he
observed a vehicle with out-of-state plates with the driver’s side tires driving on the yellow
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shoulder line. Officer Hudec’s radar clocked the vehicle going 74 m.p.h. in a 65-m.p.h. zone.
Hudec also observed that the vehicle was following too closely and failed to signal a lane change.
The events of the traffic stop were captured on Officer Hudec’s cruiser camera and were received
into evidence at trial.
As Officer Hudec approached the vehicle, which he learned was a rental vehicle by running
the vehicle’s license plate, he contacted the driver of the vehicle and the front passenger who was
identified as Pope. The driver provided Officer Hudec with his identification but did not have
registration or rental paperwork for the vehicle. Officer Hudec requested that the driver accompany
him to his cruiser while he issued him a warning. Officer Hudec completed a data check on the
driver which indicated that the driver had a substantial criminal history including involvement with
narcotics.
Officer Hudec observed that the driver appeared nervous during their interactions despite
that he was only issuing him a warning. The driver indicated that they had been coming back from
Colorado from visiting the driver’s sister. During this time, Officer Hudec stated he observed that
the artery in the driver’s neck was pulsating and the driver was unable to provide any paperwork
or information as to who had rented the vehicle that he was driving.
In order to obtain more information on the rental vehicle, Officer Hudec exited his cruiser
to obtain the VIN number from the vehicle. During this time, he asked Pope about the nature of
the trip which Pope was unable to answer immediately. After thinking about the answer for a
moment, Pope stated that he and the driver were returning to Des Moines, Iowa, from protests in
“Hampton.” Officer Hudec was familiar with Hampton, Nebraska, but was not aware of a
Hampton, Colorado. When asked, Pope was unable to identify in what state “Hampton” was
located.
Officer Hudec returned to the cruiser and informed the driver that he was free to go but
then asked if the driver would be willing to answer more questions. The driver agreed. Officer
Hudec asked if there was contraband in the vehicle in which the driver responded that there was
not. Officer Hudec then received consent from the driver to search the vehicle. While their vehicle
was searched, Pope and the driver were placed in the backseat of the cruiser for the safety of the
individuals and the officers. During the search of the vehicle, Officer Hudec and another officer
who had been called to assist, located a 9-millimeter pistol including a magazine and six rounds
of ammunition under the floormat of the front passenger seat. Officers also located a bag in the
rear cargo area that contained approximately 1.9 pounds of marijuana in dispensary containers,
several receipts, and a cell phone. The receipts showed purchases from various marijuana
dispensaries in Colorado made the previous day. There was also a receipt dated 2 days prior from
a gas station in Des Moines, Iowa.
During the search of the rental vehicle, the cruiser camera was still recording and captured
a conversation between the driver and Pope wherein Pope stated “I can’t take that pipe, bro”
referring to the pistol. The driver asked Pope why he did not hide it, and Pope responded, “Bitch,
I put it under the floorboard under the rug.” During the conversation, Pope also asked whether the
officers “know that’s weed” as the officers were searching the cargo area of the vehicle. The two
began discussing what they had told Officer Hudec about their trip and Pope reiterated that he
“can’t take the pipe” and the driver responded, “I got you.”
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Following the search of the vehicle, Officer Hudec read both the driver and Pope their
Miranda rights, which they waived. Officer Hudec asked the two how much marijuana was in the
car and neither party responded. Officer Hudec exited the cruiser again, and the parties again began
conversing while the cruiser camera was recording. They discussed that they believed the amount
of marijuana in the rental car was under 2 pounds. When Officer Hudec returned and asked who
the gun belonged to, the driver stated, “it’s mine.” Officer Hudec asked whether Pope’s DNA
would be found on the pistol, and Pope said no but declined to take a DNA test. Officer Hudec
again left the cruiser and the camera captured Pope apologizing to the driver stating, “it’s my fault”
since he had asked the driver to come with him. As a result of these events, Pope was charged with
possession of a firearm by a prohibited person, and possession of marijuana, more than one pound.
The State later amended the possession of a firearm charge to allege that it was a second or
subsequent offense.
PRETRIAL MOTIONS
Prior to trial, Pope filed several pretrial motions including three motions to suppress and a
motion to quash. The first motion to suppress sought “to suppress all evidence seized from [Pope],
including, but not limited to, any visual and auditory observations made by the officers of the
Lancaster County Sheriff’s Office for the reason that the officers lacked probable cause to stop
[Pope].” The second motion to suppress sought to suppress “any and all pre-trial admissions or
statements made by [Pope] to any law enforcement personnel, for the reasons that such statements
were not made and rights were not waived knowingly, intelligently, and voluntarily . . . and were
obtained in violations of [Pope’s] rights.” The third motion to suppress sought to suppress
any and all items of evidence seized from [Pope], . . . his motor vehicle or any other place
in which he had an expectation of privacy for any one or more of the following reasons:
1. Said items of evidence were taken from [Pope] or [an] area in which he had an
expectation of privacy without any valid or legal consent to seize the same. Any alleged
consent was tainted by the unlawful arrest of [Pope].
2. There existed no reasonable suspicion or probable cause for the search or seizure
of any of . . . said evidence.
3. Said search for and seizure of said items of evidence violated [Pope’s federal and
state constitutional rights] and . . . relevant provisions of the Nebraska Revised Statutes.
4. The search and seizure was not incident to a lawful arrest, nor is it allowed
pursuant to any other recognized exception to the warrant requirement.
5. Said search and seizure was not conducted pursuant to a lawfully issued warrant
from any court or magistrate.
Each of these motions to suppress were denied by the district court.
Pope also filed a motion to quash the State’s amended information because “there is a
defect apparent upon the face of the record, to wit: Count I in the Amended Information setting
forth a penalty if a IB felony classification as applied to [Pope] in this matter is in violation of Neb.
Const. art. I, [§] 15 . . . that requires all penalties shall be proportioned to the nature of the offense.”
This motion to quash was denied by the district court.
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The State filed a motion in limine requesting an order precluding
the defense from arguing, adducing evidence, or in any way commenting, during opening
statement, cross-examination, direct examination, or closing argument, on the following;
as such evidence constitutes hearsay, assumes facts not in evidence, is contrary to law, and
would tend to mislead the jury.
1. That [the driver] made any statements regarding the ownership of the handgun
found in the vehicle that . . . Pope . . . was traveling in unless or until [the driver] testifies
in open court, under oath and subject to cross-examination.
2. That . . . Pope . . . be prohibited, should he elect to testify, from commenting or
testifying about any statements made by [the driver], in particular any and all statements
regarding the ownership of the handgun.
3. Further, if [Pope] intends to subpoena [the driver] to testify, the then State
respectfully requests that a hearing be held pursuant to Neb. Rev. Stat. [§] 27-513(2)
outside the presence of the jury to determine if [the driver] will assert his 5th [A]mendment
privilege against self-incrimination if called to testify and if it is determined that he will
that [the driver] not be allowed to appear before the jury as it would be prejudicial to the
State.
The district court sustained the State’s motion in limine.
JURY TRIAL
During the jury trial, evidence was adduced consistent with the facts as previously
described. Additional evidence was adduced that DNA samples from Pope and the driver were
obtained pursuant to a search warrant and were compared to DNA profiles found on the pistol, the
magazine, and the rounds inside the magazine. There was a mixture of three individuals found on
the pistol with Pope being the major contributor of the DNA and the driver being excluded as a
major contributor. The mixture of DNA found on the pistol was 1 septillion (1 followed by 26
zeroes) more likely to have originated by Pope and two unknown unrelated individuals than if it
had originated from three unknown, unrelated individuals. Both Pope and the driver were excluded
as major contributors on the magazine and the rounds located inside the magazine. The defense
did not present any evidence.
JURY VERDICT, ENHANCEMENT, AND SENTENCING
The jury found Pope guilty of possession of a firearm by a prohibited person and possession
of marijuana, more than one pound. Following an enhancement hearing, Pope’s conviction of
possession of a firearm by a prohibited person was enhanced to a second offense. Thereafter, the
district court sentenced Pope to 35 to 48 years’ imprisonment for possession of a firearm by a
prohibited person, subsequent offense, and sentenced him to 1 to 2 years’ imprisonment for
possession of marijuana, more than one pound. The sentences were ordered to run consecutively
to each other and to any other sentence previously imposed on Pope. Additionally, Pope was given
credit for 529 days served. Pope has timely appealed to this court and is represented by different
counsel than represented him before the district court.
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ASSIGNMENTS OF ERROR
Pope’s assignments of error, restated, are that (1) the district court erred in overruling his
motions to suppress and motion to quash, and in sustaining the State’s motion in limine; (2) the
evidence was insufficient to support his conviction of possession of a firearm by a prohibited
person, subsequent offense; (3) the sentences imposed were excessive; and (4) trial counsel “was
ineffective in the general trial strategy.” Brief for appellant at 7.
STANDARD OF REVIEW
When reviewing a trial court's ruling on a motion to suppress based on a claimed violation
of the Fourth Amendment, an appellate court applies a two-part standard of review. State v. Garcia,
302 Neb. 406, 923 N.W.2d 725 (2019). Regarding historical facts, an appellate court reviews the
trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court's
determination. Id.
Regarding questions of law presented by a motion to quash or plea in abatement, an
appellate court is obligated to reach a conclusion independent of the determinations reached by the
trial court. State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal
conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be
affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed
most favorably to the State, is sufficient to support the conviction. State v. Cerros, 312 Neb. 230,
978 N.W.2d 162 (2022); State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
Assignments of error on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not scour the remainder of
the brief in search of such specificity. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
ANALYSIS
ALLEGED ERRORS RELATED TO PRETRIAL MOTIONS
Pope’s first assignment of error is that the district court erred in overruling his motions to
suppress, overruling his motion to quash, and in sustaining the State’s motion in limine. In its brief,
the State argues:
As an initial matter, the State questions whether this claim has been properly
presented on appeal. As argued, Pope’s brief sets forth the nature of these three motions
and a general recitation of the parties’ positions and the district court’s rulings on the three
motions, but this is the extent of his argument. He provides virtually no legal analysis on
any of the three motions, nor any analysis on the court’s rulings on the motions or why
those rulings were supposedly wrong. Appellant’s Brief at 14-17. Therefore, the State
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questions whether this assignment of error has been sufficiently presented to this court. See
State v. Blake, 310 Neb. 769, 800 (2022) (reiterating and explaining that “[w]here an
appellants’ brief contains conclusory assertions unsupported by a coherent analytical
argument, the appellant fails to satisfy the requirement that the party asserting the alleged
error must both specifically assign and specifically argue it in the party’s initial brief. . . .
An argument that does little more than restate an assignment of error does not support the
assignment, and an appellate court will not address it.).
Brief for appellee at 18-19. We agree with the State. The entirety of the brief for appellant consists
of statements regarding the nature of the motions to suppress, the motion to quash, and the State’s
motion in limine, and the parties’ positions thereon; the district court’s rulings on the three
motions; and recitations of caselaw, but contains no analysis of why the district court erred in its
rulings. Pope merely makes a conclusory statement that “[t]he District Court erred in overruling
the defense’s motions to suppress and motion to quash and sustaining the State’s motion in limine.”
Brief for appellant at 17. This is insufficient to comply with our rules that “[a]lleged errors of the
lower court must be both specifically assigned and specifically argued in the brief of the party
asserting the errors to be considered by an appellate court.” State v. Lessley, 312 Neb. 316, 326,
978 N.W.2d 620 (2022). Accordingly, we decline to consider Pope’s first assignment of error.
We also note that regarding his motion to quash, Pope failed to comply with Neb. Ct. R.
App. P. § 2-109(E) regarding his claim that the district court erred in overruling his motion to
quash which alleged that the penalty for possession of a firearm by a prohibited person, if imposed,
would be unconstitutional as applied to him. Section 2-109(E) mandates that a party presenting a
case involving the federal or state constitutionality of a statute must file and serve notice thereof
with the Supreme Court Clerk by separate written notice or in a petition to bypass at the time of
filing such party's brief and provide the Attorney General with a copy of its brief if the Attorney
General is not already a party to the case. State v. Catlin, 308 Neb. 294, 953 N.W.2d 563 (2021).
A litigant must strictly comply with § 2-109(E) whenever the litigant challenges the
constitutionality of a statute, regardless of how that constitutional challenge may be characterized.
See State v. Catlin, supra. See, also, State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016)
(distinction between facial and as-applied constitutional challenges immaterial when it comes to
§ 2-109(E) notice). In this case, because Pope did not strictly comply with § 2-109(E) in that he
did not provide a separate notice or a petition to bypass to the Supreme Court Clerk, this issue has
not been preserved.
INSUFFICIENCY OF EVIDENCE
Pope next argues that the evidence was insufficient to support his conviction of possession
of a firearm by a prohibited person, subsequent offense. Pope contends that the evidence was
insufficient to establish that he was in possession of the firearm. We note that Pope does not dispute
that the evidence was sufficient to find him guilty on the possession of marijuana charge. Likewise,
he does not dispute the sufficiency of the evidence to support the enhancement of his conviction
of possession of a firearm by a prohibited person. He only challenges the sufficiency of the
evidence to support his guilt on the underlying offense of possession of a firearm by a prohibited
person. Accordingly, we limit our consideration to this issue.
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Neb. Rev. Stat. § 28-1206(1) (Cum. Supp. 2020), as relevant to this case, prohibits a person
from possessing a firearm if he or she has previously been convicted of a felony. “Possession of a
deadly weapon which is a firearm by a prohibited person is a Class ID felony for a first offense
and a Class IB felony for a second or subsequent offense.” § 28-1206(3)(b).
Possession of a firearm may be actual or constructive. See State v. Warlick, 308 Neb. 656,
956 N.W.2d 269 (2021). Actual possession is defined as including only those weapons on one's
person or within one's immediate control, which is the area within which one might immediately
gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). Constructive
possession may be proved by mere ownership, dominion, or control over contraband itself, coupled
with the intent to exercise control over the same. State v. Warlick, supra. The fact of possession
may be proved by circumstantial evidence. State v. Long, 8 Neb. App. 353, 594 N.W.2d 310
(1999).
Here, the parties stipulated that Pope had previously been convicted of a felony. Thus, there
is no dispute that, at the time of the offense, Pope had a prior felony conviction and was a prohibited
person. The only disputed issue is whether the evidence was sufficient to find that Pope was in
possession of the firearm. We find that the evidence on this issue was sufficient. The evidence,
when viewed in the light most favorable to the State, established that, during a consensual search
of the rental vehicle, a gun was located under the floorboard of the passenger seat. Pope was sitting
in the passenger seat of the vehicle and Pope was found to be the major contributor of DNA found
on the gun. When considered with Pope’s statement that he made while he was located in the police
cruiser and speaking to the driver regarding the subject of the firearm, we reject Pope’s contention
that there was insufficient evidence to convict him of the charge. This assignment of error fails.
EXCESSIVE SENTENCE
Third, Pope contends that the sentences imposed were excessive. Pope was convicted of
possession of a firearm by a prohibited person, subsequent offense, a Class ID felony, and
possession of marijuana, more than one pound, a Class IV felony. See, Neb. Rev. Stat.
§ 28-1206(1)(a) and (3)(b) (Cum. Supp. 2020); Neb. Rev. Stat. § 28-416(1) and (12) (Cum. Supp.
2020). Pope was sentenced to 36 to 50 years’ imprisonment on the Class ID felony. This sentence
is within the statutory sentencing range for Class ID felonies which are punishable by a mandatory
minimum of 3 years’ imprisonment and a maximum of 50 years’ imprisonment. See Neb. Rev.
Stat. § 28-105 (Cum. Supp. 2020).
Pope was sentenced to 1 to 2 years’ imprisonment on the Class IV felony. This sentence
was within the statutory sentencing range for Class IV felonies which are punishable by a
minimum of no imprisonment and a maximum of 2 years’ imprisonment followed by 12 months
of post-release supervision and/or a $10,000 fine. Further, although conviction of a Class IV felony
normally calls for a sentence of probation except in certain circumstances, because Pope’s sentence
was ordered to run consecutively to another felony conviction, the district court was not required
to impose a sentence of probation in this case. See Neb. Rev. Stat. § 29-2204.02(2)(a) (Reissue
2016).
When sentences imposed within statutory limits are alleged on appeal to be excessive, the
appellate court must determine whether the sentencing court abused its discretion in considering
well-established factors and any applicable legal principles. State v. Blake, 310 Neb. 769, 969
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N.W.2d 399 (2022). A judicial abuse of discretion exists only when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence. Id.
When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved in the commission of the crime. Id.
The sentencing court is not limited to any mathematically applied set of factors, but the
appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing
judge's observations of the defendant's demeanor and attitude and all the facts and circumstances
surrounding the defendant's life. Id.
At the time of the presentence investigation report, Pope was 27 years old, single with one
dependent, and had received his GED. His criminal history included convictions for second degree
burglary, escape, assault on peace officers and others, third degree burglary, voluntary absence or
escape, voluntary absence from custody, attempted third degree burglary, possession of a weapon,
possession of marijuana, and possession of a controlled substance (cannabidiol). Pope has a history
of revocation on prior terms of probation and supervised release and was on federal supervised
release at the time he committed the current offenses. The level of service/case management
inventory assessed Pope as a very high risk to reoffend. Further, although Pope admitted to
smoking marijuana almost every day, he did not believe that he had a drug problem. Pope further
engaged in minimization or denial regarding his involvement in the current offenses stating “I was
at the wrong place at the wrong time. I didn’t know about a gun. I got thrown around due to (my)
prior record. I got the short end of the stick.”
Based upon factors including that the sentences imposed were within the relevant statutory
sentencing ranges, Pope’s very high risk to reoffend, his criminal history, his history of revocation
on terms of probation and supervised release, that he was on supervised release at the time that he
committed the current offenses, and his minimization or denial regarding his involvement in the
current offense, the sentences imposed were not an abuse of discretion. This assignment of error
fails.
INEFFECTIVE ASSISTANCE OF COUNSEL
Pope’s final assignment of error is that trial counsel “was ineffective in the general trial
strategy.” Brief for appellant at 7.
Recently, in State v. Drake, 311 Neb. 219, 236-37, 971 N.W.2d 759, 774 (2022), the
Nebraska Supreme Court set forth the directives that must be followed when addressing an
ineffective assistance of counsel on direct appeal:
When a defendant's trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective
performance which is known to the defendant or is apparent from the record; otherwise,
the ineffective assistance of trial counsel issue will be procedurally barred.
Once raised, an appellate court will determine whether the record on appeal is
sufficient to review the merits of the ineffective performance claims. The record is
sufficient if it establishes either that trial counsel's performance was not deficient, that the
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appellant will not be able to establish prejudice as a matter of law, or that trial counsel's
actions could not be justified as a part of any plausible trial strategy. Conversely, an
ineffective assistance of counsel claim will not be addressed on direct appeal if it requires
an evidentiary hearing.
The necessary specificity of allegations of ineffective assistance of trial counsel on
direct appeal for purposes of avoiding waiver requires, at a minimum, allegations of
deficient performance described with enough particularity for an appellate court to make a
determination of whether the claim can be decided upon the trial record and also for a
district court later reviewing a potential petition for postconviction relief to be able to
recognize whether the claim was brought before an appellate court. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must specifically allege
deficient performance, and an appellate court will not scour the remainder of the brief in
search of such specificity.
When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the
appellant is not required to allege prejudice; however, an appellant must make specific allegations
of the conduct that he or she claims constitutes deficient performance by trial counsel. State v.
Devers, 306 Neb. 429, 945 N.W.2d 470 (2020). General allegations that trial counsel performed
deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance
claim on direct appeal. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). In order to know
whether the record is insufficient to address assertions on direct appeal that trial counsel was
ineffective, appellate counsel must assign and argue deficiency with enough particularity (1) for
an appellate court to make a determination of whether the claim can be decided upon the trial
record and (2) for a district court later reviewing a petition for postconviction relief to be able to
recognize whether the claim was brought before the appellate court. State v. Devers, supra.
For example, the Nebraska Supreme Court has found that an error assigning that trial
counsel was ineffective in “‘fail[ing] to adequately investigate [the defendant's] defenses’” lacked
the specificity we demand on direct appeal. State v. Mrza, 302 Neb. 931, 935, 926 N.W.2d 79, 86
(2019). Likewise, the Supreme Court recently held that an error assigning that trial counsel was
ineffective in “‘Failing to Investigate the Case Fully’” lacked the requisite specificity as to what
component of investigation counsel was allegedly deficient in failing to conduct. State v. Wood,
310 Neb. 391, 436, 966 N.W.2d 825, 858 (2021). Similarly, this court has held that an error
assigning that trial counsel was ineffective in “‘failing to investigate the case and in limiting [his]
defense’” which did not specifically identify which aspects of the case trial counsel allegedly failed
to investigate or in what manner counsel limited his defense was insufficiently pled. State v.
Santos-Romero, 31 Neb. App. 14, 19, 974 N.W.2d 624, 628 (2022).
Here, Pope has assigned as error that his trial counsel “was ineffective in the general trial
strategy.” Brief for appellant at 7. Pope’s alleged error makes no specific allegations of the conduct
that he claims constitutes deficient performance by trial counsel and is nothing more than a
placeholder. This general allegation which does not direct this court to any claims regarding
specific deficiencies of trial counsel’s actions or inactions is insufficiently pled. Therefore, we do
not address his claim.
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CONCLUSION
Having considered Pope’s assignments of error and found them to be insufficiently
preserved or without merit, we affirm his convictions and sentences.
AFFIRMED.
- 10 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482296/ | IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ROBINSON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
ERIC M. ROBINSON, APPELLANT.
Filed November 8, 2022. No. A-21-609.
Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
ARTERBURN, Judge.
I. INTRODUCTION
Eric M. Robinson filed a motion for absolute discharge in the district court for Lancaster
County, alleging a violation of his statutory right to a speedy trial. The court overruled Robinson’s
motion, and he appeals. Finding no error, we affirm.
II. BACKGROUND
On October 12, 2018, the State filed a two-count information charging Robinson with
possession of burglar’s tools, a Class IV felony, and possession of a controlled substance
(methamphetamine), also a Class IV felony. Robinson first appeared before the district court on
October 17, and pleas of not guilty were entered on his behalf.
On October 22, 2018, Robinson’s counsel filed four discovery motions, including a motion
to require the State to provide any mitigating evidence to the defense, a motion to allow defense
counsel to depose the State’s endorsed witnesses, a motion to allow the defense to conduct general
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discovery, and a motion to require the State to produce within 30 days any statement made by
Robinson to law enforcement. The district court sustained each of Robinson’s discovery motions
on November 13, 2018.
On December 19, 2018, the district court filed a journal entry setting a jury trial for the jury
term beginning on January 7, 2019. Robinson’s counsel filed seven pretrial motions on January 4,
in preparation for the scheduled trial. Such motions included a motion to require the State to
disclose whether during the trial it would use evidence of other crimes or wrongful acts committed
by Robinson, a motion to require the State to disclose whether during the trial it would refer to any
of Robinson’s prior convictions, a motion for Robinson to wear civilian clothing and to have his
restraints removed during the trial, and a motion to sequester the witnesses during trial.
On January 7, 2019, a hearing was held to address Robinson’s pretrial motions. During this
hearing, the district court attempted to address a pro se motion filed by Robinson which indicated
his desire to have new counsel appointed. The following colloquy occurred during the court’s
inquiry about Robinson’s pro se motion:
THE COURT: But some of what I understand your complaint to be is that you no
longer want to be represented by [defense counsel]; is that correct?
[ROBINSON:] May I address the record, Your Honor?
THE COURT: I asked you a question. You no longer want to be represented by
[defense counsel]; is that correct?
[ROBINSON:] I don’t want to answer the question yet. I’d like to address the
record, if I may.
THE COURT: Well, you need to answer my question.
[ROBINSON:] No, I don’t. Judge [], under 29-2801 and 29-2807, due to your
misconduct on my habeas corpus, your office is terminated. I’m going to stand on that and
on 22-40 that I plead to the federal courts, and that’s it.
THE COURT: Mr. Robinson, I’ve asked whether or not you want to be represented
by [defense counsel] or not.
[ROBINSON:] I’m going to stand on –
THE COURT: It’s a yes-or-no question.
[ROBINSON:] I don’t have to answer it.
THE COURT: Okay. I’m having a hard time communicating with you. I don’t
know whether or not you really understand what we’re doing here today. I question your
competency, so I’m ordering that you be evaluated for competency. I’ll ask [the State] for
an order to that effect.
On January 11, the district court entered a written order requiring Robinson to be examined and
evaluated to determine his competency to stand trial. Such evaluation was to take place at the
Lancaster County Jail where Robinson was being held pending his trial. Given the court’s sua
sponte order to have Robinson evaluated for competency, the court did not address at the January
7 hearing the pretrial motions filed by defense counsel. And, upon our review of the record, it
appears that the district court has not yet ruled on those motions.
The same day that the district court entered its written order to have Robinson’s
competency evaluated, Robinson filed with the court a document he entitled “Affidavit in Truth.”
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In this document, Robinson indicated his intent to disobey the district court’s order requiring that
he undergo a competency evaluation. A subsequent letter sent to the district court from a forensic
psychiatrist who attempted to conduct the evaluation of Robinson indicated that Robinson refused
to leave his jail cell in order to participate with the competency evaluation. As such, on January
31, 2019, the district court entered another order requiring Robinson to undergo a competency
evaluation. This order required Robinson to be transferred from the county jail to the Lincoln
Regional Center for the evaluation: “[Robinson] shall remain there until said examination is
completed, and thereafter be returned by Lancaster County Corrections to the Adult Detention
Center of Lancaster County.”
On May 7, 2019, Mindy Abel, a clinical psychologist at the Lincoln Regional Center
submitted to the district court the results of her competency evaluation of Robinson. Abel
concluded as follows:
It is the opinion of the undersigned that Mr. Robinson’s competency related abilities are
being impacted by both symptoms of a mental illness and characterological traits. Mr.
Robinson has the capacity to understand the nature and object of the proceedings he is
facing. At this time Mr. Robinson is displaying symptoms of mania that are likely
exacerbating his characterological traits leading to interference with his capacity to
comprehend his own condition in reference to such proceedings. In addition, while Mr.
Robinson may have rational ideas for his defense, his current mental health symptoms
interfere with his capacity to clearly communicate his thoughts without perseverating on
his own beliefs about how his case should proceed. There is a substantial likelihood that
the use of psychiatric medication will address the symptoms of mania that Mr. Robinson
is exhibiting. As noted psychiatric medications[s] are unlikely [to] address the underlying
characterological traits that also contribute to his working with an attorney.
A hearing on Robinson’s competency to stand trial was held on May 28, 2019. At that hearing,
Abel’s evaluation was submitted into evidence. Defense counsel subsequently asked to continue
the hearing so that Abel could be subpoenaed to testify. The district court granted the request for
a continuance and entered an order requiring Robinson to remain at the Lincoln Regional Center
until further order of the court.
The competency hearing continued on June 18, 2019. At the conclusion of the hearing, the
district court found Robinson competent to stand trial. The court tentatively scheduled trial for
July 8. Robinson was ordered to be released from the Lincoln Regional Center into the custody of
Lancaster County Corrections.
On June 28, 2019, Robinson’s defense counsel filed two motions to suppress. The first
motion to suppress argued that there was no reasonable suspicion or probable cause to warrant law
enforcement stopping and questioning Robinson prior to his arrest. That motion also alleged that
there was no cause to warrant the subsequent search of Robinson and that, as a result, the evidence
found by law enforcement should be suppressed. The second motion to suppress argued that
Robinson’s statements to law enforcement on the night of his arrest should be suppressed because
such statements were made in violation of Robinson’s Miranda rights.
While the motions to suppress were pending in the district court, Robinson filed a pro se
interlocutory appeal with this court regarding the district court’s decision to strike his pro se motion
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for new counsel. This appeal divested the district court of jurisdiction over the proceedings until
November 13, 2019, when we issued our mandate dismissing Robinson’s appeal. After spreading
the mandate, the district court held a hearing on Robinson’s motions to suppress on January 14,
2020. The district court overruled both motions in an order entered on April 29. Trial was
scheduled for the jury term beginning July 6. On June 29, defense counsel filed a motion to
continue the trial. The court granted defense counsel’s motion and continued the trial to the
September jury term. Robinson was ordered to appear for a docket call on August 19.
On August 24, 2020, Robinson filed his motion for absolute discharge on statutory speedy
trial grounds. A hearing on the motion was scheduled for October 29. Defense counsel filed a
motion to continue the October 29 hearing because he had been exposed to COVID-19 and had to
quarantine. The hearing was continued to November 10. At the November 10 hearing, Robinson
indicated to the court that he no longer wanted to be represented by anyone from the Lancaster
County Public Defender’s Office. Instead, he wanted time to find new counsel. Based upon
Robinson’s request, the district court allowed the public defender’s office to withdraw from the
case and continued the hearing on the motion for absolute discharge to December 15, in order to
give Robinson time to hire new counsel.
Robinson’s new counsel entered his appearance in the case on December 10, 2020. Over
the next few months, Robinson’s counsel filed three written motions to continue the hearing on
the motion for absolute discharge in order for counsel to prepare for the hearing and acquire
necessary evidence. The hearing on the motion for absolute discharge was finally held on April
28, 2021, 8 months after the motion was initially filed. At the start of the April 28 hearing, defense
counsel made an oral motion to again continue the hearing. The district court overruled the motion
and both Robinson and the State offered evidence. Robinson offered into evidence the records
from his stay at the Lincoln Regional Center and emails between himself and his former counsel.
The State offered into evidence Abel’s competency evaluation of Robinson, transcripts of various
hearings held in the district court, a printed copy of the Judge’s Notes, and the State’s speedy trial
calculation. The court received all of the exhibits and heard arguments from both parties.
On July 2, 2021, the district court entered an order overruling Robinson’s motion for
absolute discharge. The court observed that the initial speedy trial clock would have run on April
12, 2019. The court then performed a calculation of excludable time, including “numerous pretrial
motions, competency evaluations, and a motion to continue.” The court found that a total of 558
days were excludable between October 12, 2018, when the information was filed, and August 24,
2020, when Robinson filed his motion for absolute discharge. Thus, the district court concluded
that “the last day the State could have brought [Robinson] to trial before the expiration of the
speedy trial period . . . was October 21, 2020. As such, [Robinson]’s right to a speedy trial was not
violated.”
Robinson appeals from the district court’s order denying his motion for absolute discharge.
III. ASSIGNMENTS OF ERROR
Robinson asserts, restated, that the district court erred in failing to find that his statutory
right to a speedy trial was violated. Robinson also asserts that the district court abused its discretion
in denying his motion to obtain the recordings from the court proceedings so that he could
determine the accuracy of the written record.
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IV. STANDARD OF REVIEW
Generally, a trial court’s determination as to whether charges should be dismissed on
speedy trial grounds is a factual question which will be affirmed on appeal unless clearly
erroneous. State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).
V. ANALYSIS
1. STATUTORY RIGHT TO SPEEDY TRIAL
A criminal defendant’s statutory speedy trial rights are governed by Neb. Rev. Stat.
§§ 29-1207 and 29-1208 (Reissue 2016). As pertinent to this appeal, § 29-1207 provides, in
relevant part:
(1) Every person indicted or informed against for any offense shall be brought to
trial within six months, and such time shall be computed as provided in this section.
(2) Such six-month period shall commence to run from the date the indictment is
returned or the information filed[.]
....
(4) The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant,
including, but not limited to, an examination and hearing on competency and the period
during which he or she is incompetent to stand trial; the time from filing until final
disposition of pretrial motions of the defendant, including motions to suppress evidence,
motions to quash the indictment or information, demurrers and pleas in abatement, and
motions for a change of venue; and the time consumed in the trial of other charges against
the defendant;
(b) The period of delay resulting from a continuance granted at the request or with
the consent of the defendant or his or her counsel.
To calculate the deadline for trial under the speedy trial statutes, a court must exclude the
day the State filed the information, count forward 6 months, back up 1 day, and then add any time
excluded under § 29-1207(4). State v. Blocher, 307 Neb. 874, 951 N.W.2d 499 (2020). Here, the
State filed the information against Robinson in district court on October 12, 2018. Excluding the
day the information was filed, counting forward 6 months, and backing up 1 day, the statutory
speedy trial clock would have run on April 12, 2019, unless the State proved excludable time
periods. The State has the burden to show by a preponderance of the evidence that enough time is
excluded under § 29-1207(4) if it does not bring the defendant to trial within 6 months. State v.
Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007).
(a) Discovery Motions
The plain terms of § 29-1207(4)(a) exclude all time between the time of the filing of a
defendant’s pretrial motions and their final disposition, regardless of the promptness or
reasonableness of the delay. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018). The
excludable period commences on the day immediately after the filing of a defendant’s pretrial
motion. Id. Final disposition under § 29-1207(4)(a) occurs on the date the motion is granted or
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denied. State v. Carrera, supra. Here, Robinson filed four motions for discovery on October 22,
2018. The court granted these motions on November 13. Thus, the speedy trial clock was tolled
for 22 days. In his brief on appeal, Robinson does not appear to contest this excludable period.
Adding the 22 excludable days to April 12, 2019, the new speedy trial deadline was May 14.
(b) Competency Evaluation
Under § 29-1207(4)(a), time is excluded from the speedy trial clock for “[t]he period of
delay resulting from other proceedings concerning the defendant, including but not limited to, an
examination and hearing on competency and the period during which [the defendant] is
incompetent to stand trial[.]” This time period begins when the defendant’s competency to stand
trial is brought to the attention of the court and concludes when and if the court finds the defendant
competent to stand trial. See State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010). Here, the
district court, sua sponte, determined that Robinson’s competency to stand trial needed to be
evaluated after he was unable to answer the court’s yes-or-no questions regarding whether he
wished to have new counsel during the hearing held on January 7, 2019. Ultimately, the district
court found Robinson to be competent to stand trial after the conclusion of the competency hearing
on June 18, 2019. Thus, the speedy trial clock was tolled for an additional 163 days. Adding the
163 excludable days to May 14, 2019, the new speedy trial deadline was October 24.
In his brief on appeal, Robinson challenges whether the time for his competency evaluation
should be excluded from the speedy trial clock. Specifically, Robinson asserts that there should
never have been a competency evaluation ordered because the court cannot, on its own motion,
order such an evaluation. Robinson cites to Neb. Rev. Stat. § 29-1823 (Cum. Supp. 2020) to
support this assertion. However, Robinson left out of his recitation of the statutory language that
portion of the statute which addresses the court’s ability to order a competency evaluation. The
relevant language of § 29-1823 provides:
If at any time prior to or during trial it appears that the defendant has become mentally
incompetent to stand trial, such disability may be called to the attention of the district or
county court by the county attorney or city attorney, by the defendant, or by any person for
the defendant. The judge of the district or county court of the county where the defendant
is to be tried shall have the authority to determine whether or not the defendant is competent
to stand trial. The judge may also cause such medical, psychiatric, or psychological
examination of the defendant to be made as he or she deems warranted and hold such
hearing as he or she deems necessary.
This court has recently explained that the “trigger” for a competency hearing under this statute is
as follows: “If at any time while criminal proceedings are pending, facts are brought to the attention
of the court, either from its own observation or from suggestion of counsel, which raise a doubt as
to the sanity of the defendant, the question should be settled before further steps are taken.” State
v. Saufley, 29 Neb. App. 592, 604, 956 N.W.2d 726, 737 (2021).
Here, the district court observed behavior from Robinson during the January 7, 2019,
hearing which raised doubts as to Robinson’s ability to understand the proceedings and to
competently participate in the proceedings. Accordingly, the district court ordered Robinson to
undergo a competency evaluation pursuant to § 29-1823. After Robinson was evaluated by a
-6-
mental health professional and the court had received the resulting report, the court held a hearing
to determine whether Robinson was competent to stand trial. There is no error in the district court’s
handling of the competency issue. Thus, pursuant to § 29-1207(4)(a), the district court properly
excluded from the speedy trial clock the time from the court’s order that Robinson be evaluated to
the time of the court’s determination that Robinson was, in fact, competent to stand trial.
Robinson’s assertions to the contrary simply lack merit.
(c) Motions to Suppress
Under § 29-1207(4)(a), time is also excluded from the speedy trial clock for the time from
the filing until final disposition of motions to suppress evidence. Robinson filed two motions to
suppress evidence on June 28, 2019. The district court overruled these two motions on April 29,
2020. We note that the delay as to the final disposition of the motions was caused by Robinson
filing a pro se interlocutory appeal with this court in July 2019. After Robinson filed this appeal,
the district court was divested of jurisdiction over the criminal proceedings pending our resolution
of the appeal. See State v. Rieger, 8 Neb. App. 20, 588 N.W.2d 206 (1999) (district court is divested
of jurisdiction when appeal of that case is perfected to appellate court). We issued our mandate
dismissing Robinson’s appeal on November 13, 2019, and thereafter, the district court scheduled
a hearing on Robinson’s motions to suppress. In his brief on appeal, Robinson asserts that the
hearing on the motions to suppress should not have been delayed pending the outcome of his
interlocutory appeal. Robinson’s argument has no merit. The district court temporarily lost
jurisdiction over the criminal proceedings while Robinson’s appeal was pending in this court.
As a result of the filing of the motions to suppress, the speedy trial clock was tolled from
June 29, 2019, the day after the motions were filed, through April 29, 2020, the day the district
court ruled on the motions. The filing, thus, added 306 excludable days to October 24, 2019. The
new speedy trial deadline was August 25, 2020.
(d) Motion to Continue Trial
Section 29-1207(4)(b) excludes from the speedy trial clock the period of delay resulting
from a continuance granted at the request or with the consent of the defendant or his or her counsel.
On June 29, 2020, Robinson’s counsel made an oral motion to the court to continue the trial, which
had been scheduled for the jury term beginning on July 6. The district court granted defense
counsel’s motion. As a result, the speedy trial was tolled beginning on June 30, the day after
defense counsel’s motion for a continuance. The exact new trial date is not clear from our record,
as we only know that it was set for the September jury term. However, at a minimum, defense
counsel’s motion tolled the speedy trial clock through August 24, 2020, when Robinson filed his
motion for absolute discharge. Thus, at least 56 additional excludable days were added to the
speedy trial deadline of August 25, 2020. The new speedy trial deadline was October 26.
(e) Speedy Trial Waiver
As we mentioned above, Robinson filed his motion for absolute discharge on August 24,
2020, well in advance of the October 26 speedy trial deadline. Because we find that Robinson’s
motion for absolute discharge was prematurely filed based on the excludable periods resulting
from his discovery motions, his competency evaluation, his motions to suppress, and his motion
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to continue the trial, we need not address whether any other excludable periods are present. Most
notably, we do not decide the effect of the pretrial motions that were filed in January 2019, and
appear to have not yet been ruled on by the district court.
We affirm the judgment of the district court overruling Robinson’s motion for absolute
discharge. We also find that Robinson has waived his statutory right to a speedy trial under
§ 29-1207 by filing an unsuccessful motion to discharge that necessitated continuing the trial
beyond the 6-month period. See State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
2. AMENDMENT TO RECORD
On appeal, Robinson also asserts that the district court abused its discretion by denying his
motion to obtain “the sound recordings of the proceedings used to make the written transcript.”
Brief for appellant at 11. Robinson believes that the written record “is not a fair and accurate
representation of the events that transpired” during the proceedings held below. Id. In the argument
section of his brief, Robinson does not cite to that portion of the record which contains either the
motion he filed regarding the sound recordings or the court’s order denying such motion. And,
upon our review of the voluminous transcript filed in this case, it does not appear that the motion
or the order were made a part of the appellate court record.
As a general proposition, it is incumbent upon the appellant to present a record supporting
the errors assigned; absent such a record, an appellate court will affirm the lower court’s decision
regarding those errors. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020). Because our record
does not include Robinson’s motion to obtain the “sound recordings” or the court’s order denying
such motion, we do not consider Robinson’s assignment of error regarding this issue.
VI. CONCLUSION
We conclude that Robinson’s statutory right to a speedy trial was not violated.
Accordingly, the district court did not err when it overruled Robinson’s motion to discharge on
that basis.
AFFIRMED.
-8- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486758/ | *299OPINION AND ORDER CONTINUING PROCEEDINGS AND REMANDING MATTER TO LAND COMMISSION
Introduction
This matter concerns a small commercial building in Fagatogo, commonly known as the BP Building (“the building”), located on land claimed by the Ta'amuvaigafa (“Ta'amu”) family. The building whs built by the Bruns Philip (South Seas) Co. Ltd. (“BP”), in the early 1950s and it was used as one of BP’s merchandizing outlets. At the time, BP had leased the site from the then sa'o of the Ta'amu family, Ta'amu Faiumu. The lease term was originally for twenty years but it was subsequently extended in May 1972, for an additional ten years, by Ta'amu Iosefo Elisara.' In both instances of lease and renewal, the lease process was handled strictly in accordance with the statute governing the alienation and leasing of native (communal) land, A.S.C.A: §§ 37.0221 et seq., (the “Alienation of Land Act”). That is, the lease agreement was routed through the Land Commission and approved by the Governor.
BP’s tenancy finally ended in 1982. In accordance with the terms of the lease, the building became part of the lessor’s property. Thereafter, the building remained under the control and direction of the family sa'o up until' the demise of Ta'amu Iosefa Elisara. Following the death of Ta'amu Iosefa Elisara, the family’s matai title remained vacant for many years until the succession of defendant Ta'amu Ta'alolo Iakopo in June 1998. In the interim, however, Le'ala Pili (“Le'ala”), a member of the Ta'amu family, took it upon herself to rent the building out to third-parties. She initially let the premises out to Mrs. Nive Reed for an unspecified rent and term, applying the rental proceeds derived from that tenancy to the use of her immediate side of the family; namely, the heirs of Ta'amu Ma'alona.
Le'ala subsequently entered into another lease agreement, again on behalf of “the Ta'amu Ma'alona heirs,” with plaintiff/cross-defendant Tumua Anoa'i (“Anoa'i”) for a term of 10 years at a monthly rental of $800. This instrument, dated April 25, 1995, was accepted by the Territorial Registrar for recording as a “House Lease,” without regard to the requirements of the Alienation of Land Act,- as more fully discussed below.
According to Le'ala, she has never received any rents from Anoa'i, but it was also evident that she did not pursue the unpaid rents with any vigor. Anoa'i in turn sublet the building to defendant/cross-claimant Michael Lienshui Lai (“Lai”), a “nonnative.” A.S.C.A. § -37.0201(e). This sublease, executed with Lai on June 15/1996, provided for a term of 5 years with a graduated monthly rental rate of $2,100 during the first year, *300$2,200 during the second, and $2,300 for the remaining years.
Shortly after the current Ta'amu took office, he intervened on the family’s behalf making a demand upon Lai, who then decided to deal with the Ta'amu family’s matai. Consequently, Ta'amu, on behalf of the Ta'amu family, and Lai, as “President Evergreen Corporation, Inc.,” entered into an entirely separate lease agreement commencing January 1, 1999, for a term of 5 years, at a monthly rental of $2,300.
Findings and Discussion
The proceedings now before the Court first arose with Anoa'i filing suit against Lai on their sublease agreement. Lai responded with a counterclaim seeking damages against Anoa'i, alleging the latter’s failure to renovate the building with rental advances made to him for that purpose. Additionally, Lai filed an interpleader action joining both Anoa'i and Ta'amu. Pending final disposition of the matter, the Court earlier issued an interim order requiring Lai to deposit into registry of the Court the rental proceeds on interpleader.
Le'ala was called by Anoa'i to explain her dealings with the building. She testified that the building was not on Ta'amu land, but on communal land of the Tiumalu family, of which she is also a member. According to her understanding, Ta'amu Ma'alona, who was also a member of the Tiumalu family, dealt with BP not as sa 'o of the Ta'amu family but as a member of the Tiumalu family. Le'ala thus, somehow, claims entitlement to lease the building on behalf of Ta'amu Ma'alona’s immediate descendants.1
The evidence, however, quite clearly shows that the former Ta'amu titleholders who dealt with BP were dealing as Ta'amu titleholders rather than as some dubious sort of agent for the Tiumalu family. The alienation process giving rise to the BP’s leases, which included proceedings before the Land Commission and approval by the Governor, is conspicuously void of any suggestion whatsoever that the demised premises in question was anything but Ta'amu family property. We further find that the Ta'amu titleholders who dealt with the Land Commission in 1953 and 1972 were Ta'amu Faiumu and Ta'amu Elisara respectively. Also conspicuous over the years to this day is the lack of any objection or adverse claim to the leasehold site from any of the *301Tiumalu titleholders.
Wé find that the building is the property of the Ta'amu family.
A. T,e'a1a-to-Anoa’i Lease, Anoa'i-to-T,ai Sublease
It is black letter law that the sa'o has pule or the authority to make decisions about family lands. See generally Sagapolutele v. Sagapolutele, 20 A.S.R.2d 16 (Land & Titles Div. 1991); Lutu v. Taesaliali'i, 11 A.S.R.2d 80 (Land & Titles Div. 1989); Gi v. Temu, 11 A.S.R.2d 137 (Land & Titles Div, 1989); Coffin v. Mageo, 4 A.S.R. 14 (Trial Div. 1970); Lutu v. Fuimaono, 4 A.S.R. 450 (Trial Div. 1964); Tiumalu v. Scanlan, 4 A.S.R. 194 (Trial Div. 1961). Conversely, ah untitled family member has no pule or authority to unilaterally deal in family property. Malaga v. Alaga, 4 A.S.R. 735, 737 (Trial Div. 1966) (‘“Who can act as a matai?’ The law in American Samoa is quite clear .. . only a matai has the powers, the authority, the pule of the matai”); Lolo v. Heirs of Sekio, 4 A.S.R. 477, 481 (Trial Div. 1964) (“[U]nder Samoan custom, family lands are under the jurisdiction of the matai. ... A young man has no authority to permit strangers to live on communal family lands”). See also Gi v. Temu, 11 A.S.R.2d 137-, 141 (Land & Titles Div. 1989) (“A unilateral and . . . secret attempt by [a matai] to give his daughter sole authority over family land to the exclusion of his successors in title would seem to have been inconsistent with Samoan tradition, and would certainly have been contrary to statutory law of American Samoa with regard to the alienation of family land”).
Quite clearly, Le'ala had no authority, cognizable either in law or in custom, to lease out Ta'amu family property to Anoa'i. As she was without right to convey a leasehold estate to Anoa'i, the latter equally had nothing in the way of a leasehold interest to sublet. Moreover, the building, as we have found, is a part of the communal property of Ta'amu family. As such, any lease thereof is subject to the requirements of the Alienation of Land Act, which in pertinent part provides:
(a) Native [or communal] land may, with the approval of the Governor, be leased to any person for any term not exceeding 55 years for any purpose, except for the working of minerals and cutting timber.
(b) Provisional agreements for the leasing of native land as provided in subsection (a) may be entered into with the native proprietor or proprietors. Every such provisional agreement, stating in full its terms and conditions, shall be submitted with a plan showing the situation of the land to the Governor for approval, and it shall have no validity until such approval has been signified in writing.
*302A.S.C.A. § 37.0221 (emphasis added).
None of the lease instruments presented to the Court are in compliance with statute. The documents pertaining to the lease and sublease involving Anoa'i are not even in contemplation of § 37.0321(b) so as to at least quality as “provisional agreements]” pending gubernatorial approval. That is because the claimed lessor Le'ala does not qualify as a “native proprietor,” as that term appears in the enactment. From the cases above discussed, the term “native proprietor” necessarily references in this instance the family sa'o or senior matai Ta'amu.
Even if the building was the separate property of the heirs of Ta'amu Ma'alona, and it is clearly not, we fail to see how calling a lease a “house lease” thereby excludes the transaction from the requirements of the Alienation of Land Act, applicable to native land leases. First, the Alienation of Land Act requires the Land Commission to meet periodically for purposes of “making recommendations respecting the approval or disapproval of instruments affecting . . . possession of [communal] land.” A.S.C.A. § 37.0203(b). Leaseholds clearly come within the reach of this enactment. Moreover, the house-lease stratagem too conveniently ignores the reality that the communal land on which a structure is located, is necessarily encumbered. Buildings do not exist in a vacuum, notwithstanding the Separation of Structures From Communal Land Act, A.S.C.A. §§ 37.1501 et seq., (the “Separation Act”). This statute provides a vehicle for treating what would otherwise be realty into personalty for the sole statutory aim of facilitating secured financing for family members who build on communal land. The Separation Act does not purport to do anything more. It certainly does not attempt to in any way to repeal the mandates of the Alienation of Land Act as it regulates the leasing of native land.2
The Separation Act clearly does not facilitate the automatic encumbrance of the situs realty without the agreement of the landowner (that is, the sa'o of the landowning family). For instance, a mortgagee who takes a mortgage on a separated structure has, without more, only the salvage value of the separated structure in the event of foreclosure. Nothing more. The mortgagee has no interest in the underlying land without agreement of the landowner (the Samoan family through its sa'o) properly transferred in accordance with Land Alienation Act.
*303Similarly with a leasehold situation, it cannot be sensibly suggested that the lease of a separated house or building does not involve the situs realty. To the contrary, the lease of a house or building also inextricably involves the transfer of “possession,” A.S.C.A. § 37.0203(c), of the situs realty. This hard and fast reality simply cannot be blissfully ignored on some vague assumption that the Separation Act has somehow otherwise adjusted property rights.
Moreover, the functionality of any house or building is meaningful only in context that include such real property incidents such as rights of ingress/egress and access to a certain curtilage area for parking and other attendant needs. Again, buildings do not exist in a vacuum, and there is absolutely nothing in the Separation Act that remotely suggests that these sort of rights are part and parcel of the fictional statutory state of separation. ' •
Furthermore, and from a policy3 point of view, it does not take too much imagination to picture the sort of mischief potential with' the “house-lease” ruse. Among other things, this stratagem is anti-fa'a Samoa. It is in derogation of Samoan custom that recognizes that an untitled person does not have the right to permit strangers to live on communal land. Heirs of Sekio, 4 A.S.R. at 481. It'thus has the potential for eroding the notion of matai pule, and hence a “cornerstone” of the fa'a Samoa (the Samoan way of life). Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983) (“The Samoan way of life has twin cornerstones, the matai system and communal land tenure”). It opens the door to the extended encumbrance of communal lands (situs realty) to the exclusion of the matai and family. The Alienation of Land Act limits the leasing of communal land to terms not exceeding 55 years. A.S.C.A. § 37.0221(a). If these limits are not applicable to a “house-lease,” such would appear to be without any limits as to term. Additionally, the house-lease ruse would open the door to communal property dealings *304which bypass legislative policy regulating the leasing of communal property, see A.S.C.A. § 37.0221, and it would open the door for unsupervised “improvident” communal land dealings, A.S.C.A. § 37.0203(c).4
B. Ta'amiivaigafa-to-Lai I.ease
With respect to the Ta'amu and Lai lease, this instruinent, although seemingly dated — it was executed February 22, 1999 — qualifies as a “provisional agreement” pending gubernatorial approval in contemplation of the Alienation of Land Act, A.S.C.A. § 37.0221(b). The evidence shows that the contracting parties, Ta'amu and Lai with capacity to enter into a lease of communal land submitted their concluded, but provisional, lease agreement, together with a plan of the demised premises as required by § 37.0221(b), to the Land Commission for approval processing in accordance with the requirements of § 37.0203(b). Notwithstanding this statutory mandate, the Land Commission inexplicably altered the whole statutory process by withholding the parties’ leasehold instrument from the Governor solely on the unelaborated observation that the “Taamuvaigafa matter is being removed because this is a house lease.” (See Land Comm’n Minutes, Feb. 18, 2000.) This exceptionary treatment appears even less merited given the actual terms of the proposed lease agreement which refer to the demised premises as “that pieces (sic) of land situated in the village of Fagatogo,” followed by a detailed description of that land in metes and bounds. The Land Commission thus committed gross error with its apparent theory that land is not land if you call it something else. We remind the Land Commission of the civil penalties that flow from any violations of Chapter 02, of Title 37 (see A.S.C.A. § 37.02305), which apply equally to private individuals and public officials whose acts thwart the Governor’s statutory duties.
Conclusions
A. T.e'aia-to-Anna'i Lease, Anoa'i-to-T,ai Sublease
*305We conclude that the Anoa'i lease and sublease are nullities, being in violation of Alienation of Land Act, A.S.C.A. § 37.0221(b), and being nullities concluded between competent contracting parties, neither can be heard to complain. Anoa'i having had nothing to lease to Lai, he has no claim upon which relief can be based and his complaint should, therefore, be dismissed. Equally, Lai’s counterclaim against Anoa'i must also be dismissed. As a normative failing to comply with the mandatory provisions Alienation of Land Act, he is without a remedy. Specifically, A.S.C.A. § 37.0230 provides in pertinent part provides:
[A]ny normative failing to conform to [Title 37] [] chapter [02] . . . shall be liable to the forfeiture to the owner of land, of all improvements he may have erected or made on the land and no action shall lie for recovery of any payment he may have made or other expenditure he may have incurred in respect thereof.
Emphasis added.
B. Ta'amuvaigafa-to-T,ai Lease
We conclude on Lai’s interpleader action that Ta'amu, on behalf of the Ta'amu family, has clearly shown' superior rights to the land, and hence the building, over Anoa'i’s claim. We note, however, from the Land Commission’s file on the Ta'amu and Lai proposed lease, in evidence as Ex. “8,” that there were a number of objections lodged with the Land Commission, besides Anoa'i’s. While Anoa'i has had his day in court, it is not clear to us on the record before us that the other objectors have. Presumably with the tact taken by the Land Commission to avoid meeting on the merits of the Ta'amu and Lai proposed lease, the claims of the other objectors, if not voluntarily withdrawn, still remain pending. Without any of the other objectors before us, full and final relief sought here by Lai’s interpleader action is not available at this time. In aid of our jurisdiction, this matter should be continued. We invoke the procedural flexibility permitted the Land and Titles Division by A.S.C.A. § 3.0242(b), and find it “most consistent with natural justice and convenience,” to continue and remand to the Land Commission.
Order
For reasons given, and in aid of our jurisdiction in this matter, the following orders are entered:
1) Anoa'i’s complaint against Lai on the sublease is dismissed and Anoa'i shall take nothing thereby.
2) Lai’s cross-complaint against Anoa'i on the sublease is dismissed and *306Lai shall take nothing thereby.'
3. The Ta'amu/Lai proposed lease is remanded to the Land Commission and Governor for approval processing in accordance ' with the requirements of Land Alienation Act.
4. This matter is continued sine die pending proceedings before the Land Commission and Governor.
It is so ordered.
Le'ala’s legal theory escapes us. Even if the land is the communal property of the Tiumalu family as claimed, we fail to see how the land could have possibly devolved to the issue of Ta'amu Ma'alona, as the territory’s law on descent and distribution does not apply to “communal land.” See A.S.C.A. § 40.0106 and § 40.0206.
Cf. Tiumalu v. Levi, 4 A.S.R.3d 272, 274 (Land & Titles Div. 2000) (“Lease for buildings or portions of a building ... are not subject to the requirement that leases of communal land be approved by the Governor”).
AM. SAMOA Rev. Const, art. 1, § 3 provides:
It shall be the policy of the Government of American Samoa to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interests. Such legislation as may be necessary may be enacted to protect the lands, customs, culture, and traditional Samoan family organization of persons of Samoan ancestry, and to encourage business enterprises by such persons. No change in the law respecting the alienation or transfer of land or any interest therein shall be effective unless the same be approved by two successive legislatures by a two- ■ thirds vote of the entire membership of each house and by the Governor.
This enactment charges the Land Commission with the duty of preventing the “improvident alienation” of communal lands. It goes without saying that the provision in the Ta'amu-to-BP lease that kept the building part of the lessor’s property upon the expiration of the lease, was a critical term of the lease that would have featured in the Land Commission’s favorable deliberations and the Governor’s approval.
This enactment in pertinent part provides that “any person committing, or attempting to commit, a breach of a provision of (Title 37] [] chapter [02] ... shall be liable to a fine not to exceed $200.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486759/ | ORDER DENYING MOTION FOR RECONSIDERATION OR NEW *307TRIAL, CONTINUING STAY OF RENT PAYMENTS, AND SETTING ASIDE TITLE REGISTRATION
I. Motions for Reconsideration or New Trial and Stay of Judgment
On December 13, 2001, defendant Tautolo Gaosa (“Tautolo”) timely moved for reconsideration or new trial with respect to the court’s opinion and ordered entered on November 30, 2001. Tautolo also moved to stay execution of the judgment, pending the outcome of the first motion and the existing and any further appeal of this action. The court heard the motions on January 25, 2001. All three counsel were present.
During the hearing, we granted by bench order the motion to stay execution of the judgment with respect to payment by defendant American Samoa Power Authority (“ASPA”) of the rentals for its leases of the well site and waste disposal site on the total land at issue. We have now considered the issues raised by Tautolo’s motion for reconsideration or new trial. Tautolo’s concerns are without merit. This motion will therefore be denied. However, the present stay of execution of the judgment will remain in effect pending the existing appeal and any subsequent appeal. We will also address two other matters.
II. Ownership of Land “Lepue”
We need to clarify our decisions regarding ownership of the land called “Lepue.” For purposes of the discussion of this and the second matter, we will refer to three parcels of land by náme: “Agaoleatu,” “Lepue,’’ and “Anaoleatu.” “Agaoleatu” consists of approximately 6.301 acres at the western end of the total land at issue. ASPA’s well site is within “Agaoleatu” but outside of the portion of this parcel now determined, as noted below, to be the Faumuina family’s communal land. “Lepue” embraces approximately 3.291 acres immediately east of “Agaoleatu.” Part of the disposal site is within “Lepue.” “Anaoleatu” covers approximately 23.333 acres and encompasses the entire land in dispute, including both “Agaoleatu” and “Lepue.” The disposal site is entirely within “Anaoleatu.”
Plaintiff Faumuina Safa'i Satele (“Faumuina”) offered to register the title to both “Agaoleatu” and “Lepue” as the Faumuina family’s communal land. Both offers went through the formal registration process, which generated Tautolo’s objections and claim to “Anaoleatu.” The unresolved title disputes to “Agaoleatu” and “Lepue” were sent to this court for judicial determination. Though surveyed as of the trial in July 2000, Tautolo had not offered to register the title to “Anaoleatu” as Tautolo family’s communal land.
*308Our original decision entered on August 3, 2000, expressly adjudicated title to “Agaoleatu” in Tautolo’s favor. We directed the Territorial Registrar to register the title to “Agaoleatu” as the Tautolo family’s communal land. We also held that as between Faumuina and Tautolo, the portion of “Anaoleatu” outside of “Agaoleatu” was also the Tautolo family’s communal land. This portion also encompasses “Lepue.” However, because Tautolo had not offered “Anaoleatu” for registration, we advised the parties that Tautolo must offer the area in “Anaoleatu” outside of “Agaoleatu” for registration in order to provide notice to other potential claimants before the title to this area could be adjudicated. “Lepue” is located within “Anaoleatu,” and though properly before us for title determination, we clearly, in hindsight, but inadvertently overlooked definitively deciding this title issue, except implicitly with respect to Faumuina and Tautolo, in our August 3, 2000 decision.
We modified our decision on ownership of “Agaoleatu” in the order of November 6, 2000, partially granting reconsideration, to hold that a portion of the western side of “Agaoleatu” is the Faumuina family’s communal land. This modification was confirmed in our decision of November 30, 2001.
In the decision of November 30, 2001, we also modified our findings with respect to the title to “Anaoleatu” outside of the portion in “Agaoleatu” held to be the Faumuina family’s communal land, deciding that we could not determine by a preponderance of the evidence presented the titleholder(s) to this entire area as between Faumuina and Tautolo, and for that matter any other still unidentified claimants not yet before the court. This change was based on out inspection of the land and other abundantly clear evidence showing that, for many years, the Tautolo family and Fa'i family, a subfamily of the extended Faumuina family, had mutually, peacefully and harmoniously, occupied and used “Anaoleatu,” outside of the portion of “Agaoleatu” now recognized as the Faumuina family’s communal land, and in a manner so irregularly intermingled that any areas of separately owned land by the Tautolo family and, as the case may be, the Fa'i family or Faumuina family could not be defined.
“Lepue” is within “Anaoleatu” outside of the portion of “Agaoleatu” owned by the Faumuina family as communal land. Thus, under the modification now in effect, we have still implicitly held that “Lepue” could not yet be registered as between Faumuina and Tautolo. We stand by that implicit finding.
III. Territorial Registrar’s Registration of October 25, 2000
The Territorial Registrar registered title to land as the Tautolo family’s *309communal land, and recently an amended version, both dated October 25, 2000. In the present motion for reconsideration or new trial and during the hearing on the motion, Tautolo expressly noted the Registrar’s initial registration. We advised counsel that we would examine the Registrar’s registration files.
Tautolo states that the initial registration pertains to approximately 23.333 acres, the area contained in “Anaoleatu.” Apparently, Tautolo justifies this interpretation on the timing of the registration. He followed our admonition and offered his survey of “Anaoleatu” for registration shortly after entry of our decision of August 3, 2000, and the required 60-day notice period expired shortly before the registration was issued on October 25, 2000. However, Tautolo’s conclusion ignores the facts that three timely objections, one by Faumuina, were filed with the Registrar, and the controversy thus framed has not yet gone through the dispute resolution proceedings before the Secretary of Samoan Affairs, let alone ultimate judicial determination.
Recently, the Territorial Registrar recognized the ambiguity in the first registration issued on October 25, 2000, and reissued an amended registration, specifically for the 6.301 acres in “Agaoleatu.” The amended registration is consistent with our original adjudication of August 3, 2000, and the Registrar’s corrective action is understandable. The Registrar has not yet received official notice of the revision of our original adjudication to recognize that a portion of “Agaoleatu” is the Faumuina family’s communal land, and that title to “Anaoleatu,” including “Lepue,” outside of the portion of “Agaoleatu” held by the Faumuina family as communal land, is presently undeterminable. The corrective action is, of course, insufficient in light of the revision. Accordingly, we will set aside the initial and amended registrations, pending final determination of the title to areas within “Agaoleatu.” We will also keep the Registrar fully informed about judicial developments in this action.
Order
1. Tautolo’s motion for reconsideration or new trial is denied.
2. The stay of execution of the judgment shall remain in effect pending the existing and any subsequent appeal. The stay applies specifically and only to ASPA’s payment of rentals for the leases of the well site and waste disposal site on the land at issue.
3. The original and amended versions of the Territorial Registrar’s registration of Tautolo’s title, both dated October 25, 2000, are set aside pending final resolution of the title to the areas within “Agaoleatu.”
*3104. The clerk of the court shall cause delivery to the Territorial Registrar of certified copies of the court’s orders: (a) order partially granting motion for reconsideration arid denying new trial of November 6, 2000; (b) order granting motion for reconsideration or new trial of March 1, 2001; (c) opinion and order of November 30, 2001; and (d) this order. When appropriate, we- will direct the clerk to transmit to the Registrar future court orders in this action.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486760/ | PRELIMINARY INJUNCTION
On March 19, 2002, plaintiffs Tuilepa Tuileata (Telesia) Faime and Pale Fe'a for the Tuileata family (“Tuileata family”)1 filed this action to enjoin defendant Tuiolemotu Family (“Tuiolemotu family”) from excavation, construction, or work of any kind on, and from other uses of, land owned by the Tuileata family, known as Olovalu, in the Village of Malaeloa. The Court denied the Tuileata family’s application for a temporary restraining order, but we issued an order to show cause for a hearing the family’s request for a preliminary injunction. The hearing was held on March 26, 2002. Both counsel were present. •
In this action, the Tuileata family seeks injunctive, relief in a controversy involving communal land claimed by both the Tuileata family and the Tuiolemotu family. Presently, neither family has a sa 'o in office. When the sa'o’s position is vacant, an action for injunctive relief concerning communal land must, under A.S.C.A. § 43.1309(b), be brought by at least two blood male matai members of the-family, over age 18, or if the family does not have such members, by at least two blood members, over age 18. Apparently, the two named plaintiffs qualify to bring this action under the last alternative, but it is not entirely clear that the Tuileata family lacks at least two adult blood male matai members. The Tuiolemotu family did not, however, challenge compliance with the qualification statute, and for present purposes at least, we accept the named plaintiffs’ qualifications. Though not free of doubt, we find the named plaintiffs qualified for immediate purposes in the absence of definitive contrary evidence.
In addition, pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs must issue a certificate of irreconcilable dispute, following at least two appearances by the parties for dispute resolution *312proceedings, before this Court has jurisdiction to judicially determine the dispute. At the time the complaint was filed, one. appearance had taken place, but the second meeting had not yet been scheduled. Resolution was not achieved at the first meeting before the Secretary, and when the Tuiolemotu family continued to carry on the activities at issue on the land, the Tuileata family brought this action. In accordance with A.S.C.A. § 43.0304, we can, under these circumstances, issue an interim order, such as a preliminary injunction, when such action is appropriate, but stay further proceedings unrelated to the necessary interim action until the jurisdictional certificate of irreconcilable dispute is issued. Tupua v. Faleafine, 5 A.S.R.2d 131, 133 (Land & Titles Div. 1986).
The Tuiolemotu family’s immediate activates, particularly the cinder excavation, are resulting in irreparable injury to the land before a trial can be, fairly held on whether a permanent injunction should issue. The Tuiolemotu family does not contest this fact. Thus, one of the two criteria forming the basis for a preliminary injunction is met. A.S.C.A. § 43.13010) (2).
The second criterion, a substantial likelihood that the Tuileata family will prevail at trial on the merits, A.S.C.A. § 43.1301(j)(l), is not so readily apparent. As requested by the parties, however, we have examined the files of several previous cases before this court concerning the titles to portions of Olovalu.
The file in Tuileata Family v. Amituana'i, 4 A.S.R.2d 168 (Land & Titles Div. 1987), aff’d 8 A.S.R.2d 173 (App. Div. 1988), is especially significant for present purposes. The trial court’s decision in that case determined the ownership of most of Olovalu. However, in light of overlapping claimed areas, the decision left the area where the cinder pit is apparently located open to the parties’ negotiated settlement of their respective boundaries in this area. There is no follow through regarding these negotiations of record in the file. Moreover, when comparing the decision with the surveys on file, both the defining boundaries of Olovalu as a whole and the exact location and sizes of the awarded Tuileata and Tuiolemotu family lands are not entirely clear to us.
It appears, therefore, that ownership of the land now at issue is an open issue, and the Tuileata family has made a sufficient factual showing a good chance of prevailing on the merits. If a preliminary injunction applicant demonstrates a legitimate issue to litigate with more deliberate consideration, the criterion of likely success on the merits at trial is sufficiently met. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 101, 103-104 (Trial Div. 1985).
Accordingly, we will issue the following preliminary injunction.
*313Order
1. During the pendency of this action, the Tuiolemotu family, its family members, officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from all new construction of any kind and further excavation of cinders or other natural materials on the portion of Olovalu claimed by the Tuileata family as its communal land.
2. A hearing is scheduled on April 8, 2002, at 9:00 a.m. for the purpose of clearly defining the exact land area affected by this , preliminary injunction. The parties shall come to this hearing prepared to show this area on existing surveys as precisely as is presently possible.
3. Further proceedings in this action, except as may be related to this order or other necessary interim orders, are stayed pending compliance with A.S.C.A. §43.0302 (a). .
It is so ordered.
The third named plaintiff in the complaint, Fe'afe'aga Tauama II, advised the court, through the Tuileata Family’s counsel, at the beginning of the order to show cause hearing on March 26, 2002, that he was withdrawing from this action. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486761/ | *315On December 14, 2001, this Court entered judgment awarding the matai title Mauga of Pago Pago to Uta'ifeau T.M. Asuega (“Uta'ifeau”). Claimant Tuilefano M. Vaela'a (“Tuilefano”) filed a motion for a new trial, which was denied, and then filed for an appeal. None of the.other candidate-claimants, and hence their respective supporters, have taken further issue with the trial court’s decision. Claimant Tuilefano now moves this court to stay the judgment pending his appeal. As Uta'ifeau has already procured registration of the title, Tuilefano is essentially asking the court to enjoin the title investiture ceremony that Uta'ifeau and remaining members of the Mauga family have already begun planning to take place later this month.
The court may grant a stay of execution pending appeal, beyond the ten days after an order is issued, at the court’s discretion. T.C.R.C.P. 62. The court’s discretion to grant the stay, however, should be exercised only for cause shown and a stay should not be granted casually. Asifoa v. Faoa, 71 A.S.R. 10, 12 (App. Div. 1990). The moving party must establish: 1) failure to grant the stay would cause irreparable harm; 2) a likelihood of success on appeal; and 3) the public interest would be harmed by not granting the stay. In re Matai Title Mulitauaopele, 17 A.S.R.2d 71, 73 (Land & Titles Div. 1990).
Discussion
1. Irreparable Harm
Tuilefano’s arguments for irreparable harm focus on the potential for disharmony in the family if a title investiture ceremony takes place without his and his supporter’s participation. As we understand, the argument, there are family members who still support Tuilefano’s candidacy pending appeal, and who will not be able to exercise their rights as family members to participate in the investiture ceremony while the appeal is pending. It is also claimed that these family members who support his appeal will be ostracized for non-participation. Hence, it is claimed, disharmony will result.
Tuilefano further argues that if he wins on appeal, and title investiture has already taken place, there would be disharmony and confusion concerning the title, and monetary expenses would have been wasted on the pending ceremony.
First, we reject Tuilefano’s wasted-money argument as constituting irreparable harm. Monetary loss is the very prototype of reparable harm. Whether the expense of a Samoan title investiture ceremony might later prove to be a colossal waste of money, because of a subsequent appellate ruling, the economic harm resulting would hardly inure to the irreparable *316harm of the Mauga family, as a Samoan institution, and to those members who choose to participate. There is simply no evidence to suggest this. To the contrary, experience teaches otherwise. There have been, albeit infrequently, instances whereby the cost of an investiture ceremony has been for naught, because of a later appellate ruling. But in these instances, the fa 'a Samoa and the traditional institutions of matai and family have nonetheless continued to endure notwithstanding the outward economic waste.
Second, the claim to ostracism is just that, a claim (in part attributable to “golf course” rumors). When Uta'ifeau was confronted with these claims, he assured under oath that such claims had no basis in fact.
Part of assessing irreparable harm when considering a stay involves the balancing of equities. T.C.R.C.P. 62 (a), (c); Asifoa, 71 A.S.R.2d at 12, 13. If Tuilefano’s motion is denied, he and his supporters would have a choice — to either attend the investiture ceremony or not attend. Whether they attend or not has absolutely no prejudicial effect whatsoever on the merits of Tuilefano’s appeal. Choosing not to attend would potentially have a negative impact on the harmony of the family. Choosing to attend, however, while it might be seen by some as a sign of acquiescence, could equally be viewed by others as a noble effort to maintain honor, and family harmony, while the appeal is pending.
If the motion is granted, the investiture ceremony, for which the entire family besides Tuilefano’s supporters is preparing, would be put on hold until the appeals process is complete. The title would remain symbolically unfulfilled, and the great majority of the family would likely be unhappy with the delay, inevitably creating significant discord. Balancing the equities produces a result in favor of allowing the investiture to continue as planned. While either result could lead to discord, granting the stay negatively impacts a significantly greater number of people which could result in as much or more unrest as not granting the stay. Additionally, if the stay is not granted, Tuilefano and his supporters still would have the option to attend, avoiding most of the potential for discord while not affecting his legal claims in the slightest.
2. Likelihood of Success on Appeal
The likelihood of success on appeal is also a factor that weighs in favor of denying the motion. Tuilefano’s appeal is limited only to those issues which were raised in his motion for new trial, since the appellate court has no jurisdiction to consider any issues not raised on his motion for new trial. See Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 149-50 (App. Div. 1988). A review of Tuilefano’s appeal, combined with his arguments, submitted both orally and in writing, has hardly shown a high *317likelihood of success on appeal. In fact, the thrust of his appeal seems principally to be in the way of a quarrel with this court’s factual assessments, void of substantive legal argument. An appeal which merely suggests that the losing party’s arguments and factual position were better and should have prevailed, without showing clear error on the part of the trial court, is not likely to succeed. See Moea'i v. Alai'a, 12 A.S.R.2d 91, 92 (App. Div. 1989); Utuutuvanu v. Mataituli, 12 A.S.R.2d 88, 90 (App. Div. 1989) (“It is not within the province of the appellate court to reweigh the evidence and interfere with a decision based on the lower court’s choice of one version of the facts over another”).
3. Public Interest
Like his arguments concerning irreparable harm, Tuilefano’s efforts to show that the public interest demands a stay of execution focuses on the potential discord of allowing an investiture ceremony to take place while the appeal could still be granted. While it is true that the public interest would favor a simple solution without controversy, discord would also result if the pending ceremony is delayed because of the interests of one faction of the family. None of the other candidates for this title have challenged the appointment of Uta'ifeau, and they represent the vast majority of the family, which is apparently already investing in the title investiture ceremony.
Lastly, as Tuilefano acknowledges, the title Mauga has national and historical significance. But the title has been vacant for many, many years while the Mauga heirs struggled with the vicissitudes of a traditional decision making process that promotes indefinite postponement in the absence of consensus. In the meantime, Mauga’s extended family, the Tei ma Anoalo, Matua ma Nofofanau, ma Anoaloifale, and the village of Pago Pago, have had to sit by patiently throughout this inordinate time frame. The solidarity of their presence in court at the hearing of the motion to stay did not escape the attention of Associate Judges. Undoubtedly, these third-parties no less demand continuity with their traditional institutions now long held in abeyance while a successor Mauga titleholder was being sought. These countervailing factors must, at least for the historically significant Mauga title, enter into the public interest assessment.
In our view, the public interest could be equally or more greatly harmed by delaying the investiture ceremony at this point as by allowing it to continue.
Order
We conclude that claimant has not shown sufficient cause to warrant this *318court staying execution of judgment or imposing an injunction on a title investiture ceremony pending appeal. Accordingly, the motion to stay execution, and/or for injunctive relief, is denied.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486762/ | OPINION AND ORDER
Plaintiff Christine Kruse (“Kruse”) brought this action to enable her participation as a claimant to the “Fanene” matai title of the Village of Nu'uuli. Kruse contends that the Territorial Registrar and Secretary of Samoan Affairs, as agents officiating on behalf of defendant American Samoa Government (“ASG”), denied her constitutional right to compete for the title. Both parties moved for summary judgment, and the hearing was scheduled on February 19, 2002.
After this action was filed, concomitant claims to the “Fanene” title were submitted for judicial determination in the now pending action, In re Matai Title “Fanene”, MT No. 11-01. On January 28, 2002, at the hearing on Kruse’s motion to intervene and stay proceedings in MT No. 11-01, we deferred acting on the motion pending the outcome of this action.
*320The essential facts are undisputed and the legal issues are primary in this action. It can be, and should be, expeditiously decided to avoid undue delay of the proceedings in MT No. 11-01. Thus, counsel were advised that the trial in this action, rather than a summary judgment hearing, would proceed on February 19, 2002, and that the parties should present witnesses and other evidence to confirm and supplement the facts set forth in the affidavits supporting the summary judgment motions. The trial began on February 19th and concluded on February 21, 2002. All counsel were present.
Factual Background
Kruse is a naturalized citizen of the United States and has been a resident of Nu'uuli for over 10 years. She was bom in [Western] Samoa in 1942 where her parents then resided. Her father was a citizen of Samoa and her mother was a United States National bom in American Samoa. Her mother was a member of the Fanene family. Kruse moved to American Samoa with her mother when she was approximately three years old. She has served the Fanene family from 1968 until the present time.
In early June of 2001, the Fanene family decided that a member of its Taffeta clan, to which Kruse is a member, would be the next holder of the vacant “Fanene” title leading the family. This clan nominated three people, including Kruse, as candidates. On June 6, 2001, one nominee, not Kruse, offered to register the Fanene title with the Territorial Registrar. In late June, 2001, Kruse and the third nominee filed counterclaims to register the title. A member of another family clan also filed a counterclaim to the title.
The Territorial Registrar then forwarded the names of three of the claimants, excluding Kruse, to the Secretary of Samoan Affairs for dispute resolution proceedings, pursuant to the mandate of A.S.C.A. § 43.0302(a). The Territorial Registrar informed Kruse that she was excluded from the list because of the birthplace requirement in A.S.C.A. § 1.0403(b). Though the Secretary of Samoan Affairs was advised by Kruse of her disagreement with the omission of her name, the Secretary proceeded with the dispute resolution process and, on October 22, 2001, issued a certificate of irreconcilable dispute. The “Fanene” title controversy was then referred to this court for judicial determination and is pending as MT No. 11-01.
Discussion
Kruse disputes the constitutionality of A.S.C.A. § 1.0403(b). This statute prescribes one of the necessary qualifications of eligibility to succeed to a matai title as follows:
*321(b) He must have been bom on American soil; provided that a person bom of parents who were inhabitants of American Samoa, but temporarily residing outside of American Samoa or engaged in foreign travel, at the date of birth of such child, may, for the purposes of this subsection, be considered as having been bom on American soil if:
(1) while actually residing in American Samoa, and at any time within one year after he attains the age of 18 years, he files with the territorial registrar a renunciation, under oath, of allegiance to the country of his birth, or
(2) he has resided in American Samoa for a continuous period of not less than 10 years prior to the time of filing his application to be registered as the holder of a matai title.
Kruse challenges the statute on three fronts: (a) as violating a fundamental right, (b) as discriminatory against individuals on the basis of national origin, and (c) as violating the duty of the Legislature of American Samoa to preserve fa 'a Samoa, the Samoan way of life.1
Kruse correctly asserts that this Court has applied the standard developed under the equal protection clause of the 14th Amendment of the United States Constitution to a substantive due process challenge under Article I, Section 2 of the Revised Constitution of American Samoa. See generally Am. Samoa Gov’t v. Macomber, 8 A.S.R.2d 182 (Trial Div. 1988). Kruse argues that holding a matai title is a fundamental property right and aspiring to hold a matai title is a fundamental liberty right in the Samoan culture entitled to constitutional protection. Basic rights at the heart and soul of the American way of life, having an explicit or implicit constitutional foundation, are fundamental and are entitled to have laws impacting them strictly scrutinized. See, e.g., Plyer v. Doe, 457 U.S. 202, 221 (1982); San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973).
The hierarchial matai title and communal land systems, along with the Samoan language, are pillars of fa 'a Samoa. The holder of the sa 'o *322matai title heads the family, the key unit of Samoan society. The family ideal is a close-knit group of loyal and dedicated members, with a well-defined structure of lesser motáis, overseen, by the sa'o. The sa 'o is entrusted with grave responsibilities for the protection and management of the family’s communally owned lands, the single' most important tangible family asset, and the family’s affairs. See Pen v. Lavata'i, 25 A.S.R.2d 164, 167-69 (Land & Titles Div. 1994).
An individual does not hold the matai title of a family sa 'o simply by birth as a blood member of the family. A sa 'o matai title, or any other matai title for that matter, and the matai selection process are neither property rights nor privileges having constitutional origin, nor liberty rights of the same dimension. In most families, a matai title is traditionally granted to an individual by consensus of the family, usually based on blood connection with and service to the family. The recipient does not have the freedom to use the title as a personal possession, but rather must carry out the fiduciary duties of the position. Pen v. Lavata'i, 25 A.S.R.2d at 168.
To assign possession of a matai title status as a fundamental right would be akin to recognizing the status of an elected office as a fundamental right. It would even elevate’ a mere potentiality to the level of elemental standing for the person aspiring to hold the title. Neither a matai title nor the aspiration to attain the title is a property right, or any other constitutional right of fundamental importance, so to require strict scrutiny of A.S.C.A. § 1.0403(b).
We would still apply strict scrutiny in reviewing A.S.C.A. § 1.0403(b) if the law discriminated on the basis of national origin. However, this Court already decided this issue. See, e.g., In re Matai Title "I'aulualo ”, 25 A.S.R.2d 155, 158 (Land & Titles Div. 1994). An individual bom outside of American or American Samoan soil can still qualify as a candidate for a matai title as long as the parents were then bona fide inhabitants of American Samoa. Id. at 158 (even an individual who is not a U.S. national may qualify). Because A.S.C.A. § 1.0403(b) does not exclude individuals based on national origin, we will not apply the strict scrutiny test, but will instead apply the rational basis analysis to review A.S.C.A. § 1.0403(b). This means that the statute passes constitutional muster if it is rationally related to a legitimate territorial interest. See, e.g., Heller v. Doe, 509 U.S. 312, 319-20 (1993).
Kruse also argues that A.S.C.A. § 1.0403(b) violates the duty of the American Samoa Government or the Legislature of American Samoa to preserve fa 'a Samoa. That duty is prescribed in various direct and indirect ways. See Cession of Tutuila and Aunu'u of April 17, 1900; AM. SAMOAREV. Const, art. I, § 3 & art. II, §§ 1, 9; A.S.C.A. § 1.0202. *323Her argument is premised on the concept that .no traditional rule requires a potential matai to be bom on American soil. If the law were subject to strict scrutiny, this argument might be enough. As the law need only be rationally related to a legitimate territorial purpose, Kruse must go further to succeed.
Matai titles are of central importance in Samoan customs, and maintaining a proper selection process is important to preserve fa'a Samoa. However, Kruse fails to establish that the restriction of A.S.C.A. § 1.0403(b) is not rationally related to the very legitimate purpose of preserving Samoan culture. In fact, this statute works towards that very purpose.
Samoan culture is dynamic. The basic tenets of matai leadership and communal land ownership must stand tall and firm for the Samoan way of life to survive. However, this does not mean that the culture cannot endure after accommodating changes in custom. Fa 'a Samoa, like all living cultures, finds constructive ways to adapt to the times and evolve. The fateful decisions leading the acceptance of political division of once unified Samoa and allegiance of American Samoans to the United States created a situation of adaptation as well the need to preserve,/» 'a Samoa. The new political identity would surely lead to changes in the matai system. The matai system today is not exactly the same as it was 100 years ago.
The constitutional and statutory protections of fa'a Samoa do not prevent the Legislature of American Samoa from enacting and the Governor of American Samoa from approving rational laws designed to preserve changed attitudes and practices, including new ways of keeping fa'a Samoa in tune. Close identification with American Samoa as a qualification to hold a matai title was a logical and legitimate historical development. Clearly, the Legislature and Governor held the view that requiring a foreign bom candidate for a matai title to have parents who retained American Samoa as their permanent home and were abroad for a transitory purpose was, and is, a rational way to ensure that a titleholder has close association with the territory. It is not the Court’s function to second guess this legislative judgment. While there are other, and perhaps even better, ways that the Legislature and Governor might have chosen, and may yet choose, to achieve the objective of close attachment to the territory, the one selected rationally serves that purpose.
Order
Because the statute is rationally related to the legitimate purpose of recognizing accepted criteria for the selection of a matai, in an effort to preserve fa'a Samoa, Kruse’s challenge of the constitutionality of *324A.S.C.A. § 1.0403(b) falls short. Her claim fails,, and this action is dismissed. We will also deny Kruse’s motion to intervene and stay proceedings in MT No. 11 -01:
It is so ordered.
Kruse also argues that if A.S.C.A. § 1.0403(b) is not constitutionally void, she still has an alternative remedy under the federal civil rights statutes, in particular 42 U.S.C. §§ 1981, 1983, and 1985. These statutes are expressly applicable to the territory. 42 U.S.C. § 1981. This Court has held, however, that if the particular right, privilege, or immunity at issue is not secured in the territory by the U.S. Constitution, the parallel remedy provided by the federal civil rights statutes is also unavailable. Banks v. Am. Samoa Gov’t, 4 A.S.R.2d 113, 128 n.7 (Trial Div. 1987). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482223/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00400-CV
B&V LANDSCAPING,
Appellant
v.
Roscoe Robert HARVEY, Nancy Joyce Harvey and Harvey R&N Trust,
Appellees
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CVCD-XX-XXXXXXX
Honorable M. Rex Emerson, Judge Presiding
ORDER
Appellees’ brief was due on October 31, 2022. See TEX. R. APP. P. 38.6(b). To date, no
Appellees’ brief or motion for extension of time has been filed.
If Appellees wish to file a brief in this appeal, Appellees are hereby ordered to file
within ten days of the date of this order (1) Appellees’ brief and (2) a reasonable explanation for
failing to timely file the brief. See id. R. 38.6(d). If Appellees wish the response to serve as a
motion for extension of time, the response must comply with Rule 10.5(b)(1) of the Texas Rules
of Appellate Procedure and the Fourth Court of Appeals’ local rules. See id. R. 10.5(b)(1); 4TH
TEX. APP. (SAN ANTONIO) LOC. RS., https://www.txcourts.gov/4thcoa/practice-before-the-
court/local-rules/.
If Appellees fail to file an adequate response within ten days of the date of this order, the
appeal will be set for submission without Appellees’ brief. See Jackson v. Tex. Bd. of Pardons &
Paroles, No. 01-03-00862-CV, 2008 WL 921035, at *1 n.2 (Tex. App.—Houston [1st Dist.]
Apr. 3, 2008, no pet.) (mem. op.) (“‘In a civil case, the court will accept as true the facts stated
[in Appellant’s brief] unless another party contradicts them.’” (alteration in original) (quoting
TEX. R. APP. P. 38.1(g))).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482220/ | Fourth Court of Appeals
San Antonio, Texas
November 3, 2022
No. 04-22-00508-CR
William James HODGE,
Appellant
v.
The STATE of Texas,
Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2021CR9880
Honorable Melisa C. Skinner, Judge Presiding
ORDER
After a hearing on the State’s motion to revoke Appellant Hodge’s community
supervision, the trial court granted the motion and imposed Hodge’s suspended sentence of four
years in the Texas Department of Criminal Justice.
Appellant timely filed a notice of appeal, but the clerk’s record does not contain a trial
court’s certification of the defendant’s right of appeal.
“The trial court shall enter a certification of the defendant’s right of appeal each time it
enters a judgment of guilt or other appealable order.” TEX. R. APP. P. 25.2(a)(2). “When the
defendant is notified that the defendant’s community supervision is revoked for a violation of the
conditions of community supervision and the defendant is called on to serve a sentence in a jail
or in the Texas Department of Criminal Justice, the defendant may appeal the revocation.” See
TEX. CODE CRIM. PROC. ANN. art. 42A.755(e).
Therefore, this appeal is abated, and we order the presiding judge of the 437th District
Court of Bexar County, Texas to (1) sign a completed certification indicating whether the
defendant has a right of appeal and (2) forward it to the Bexar County Clerk within twenty days
of the date of this order. See Lyons v. State, No. 12-18-00242-CR, 2019 WL 2220123, at *1
(Tex. App.—Tyler May 22, 2019, no pet.) (not designated for publication) (citing TEX. R. APP.
P. 25.2(a), 44.4).
We further order the Bexar County Clerk to file a supplemental clerk’s record
containing the trial court’s certification of the defendant’s right of appeal in this court within ten
days after the trial court provides the certification to the clerk. See id. (citing TEX. R. APP. P.
25.2(d), 34.5(c)(2)).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482211/ | Fourth Court of Appeals
San Antonio, Texas
November 4, 2022
No. 04-22-00436-CV
IN THE INTEREST OF B.E.R., A CHILD
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-CI-02261
Honorable Tina Torres, Judge Presiding
ORDER
After the clerk’s record was due to be filed in this court, the Bexar County District Clerk
notified this court that Appellant has not paid the clerk’s fee for preparing the record and
Appellant is not entitled to a free clerk’s record. See TEX. R. APP. P. 35.3(a).
We order Appellant to provide written proof to this court within ten days of the date of
this order that (1) the clerk’s fee has been paid or arrangements have been made to pay the
clerk’s fee, or (2) Appellant is entitled to appeal without paying the clerk’s fee. See id. R. 20.1.
Further, Appellant must pay the filing fee of $205 for this appeal or show proof that he is
entitled to appeal without paying the filing fee. See TEX. R. APP. P. 5; In re R.J.G., No. 04-19-
00817-CV, 2020 WL 214769, at *1 (Tex. App.—San Antonio Jan. 15, 2020, no pet.) (mem. op.).
We order Appellant to do so within ten days of this order.
If Appellant fails to respond as ordered, this appeal will be dismissed for want of
prosecution without further notice. See id. R. 37.3(b); see also id. R. 42.3(c) (authorizing
dismissal if Appellant has failed to comply with the rules, a court order, or a notice within a
specified amount of time).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482272/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
McDonald v. Black, Slip Opinion No. 2022-Ohio-3938.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3938
MCDONALD v. BLACK, WARDEN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as McDonald v. Black, Slip Opinion No. 2022-Ohio-3938.]
Habeas corpus—Petitioner failed to attach commitment papers as required by R.C.
2725.04(D)—Writ denied.
(No. 2022-0646—Submitted August 30, 2022—Decided November 8, 2022.)
IN HABEAS CORPUS.
________________
Per Curiam.
{¶ 1} On May 27, 2022, petitioner, Dewitt McDonald Jr., an inmate at the
Richland Correctional Institution, filed a petition for a writ of habeas corpus against
respondent, Kenneth Black, the warden of the institution. We previously ordered a
return of the writ. 167 Ohio St.3d 1404, 2022-Ohio-2047, 188 N.E.3d 1088. We
now deny the writ.
SUPREME COURT OF OHIO
I. BACKGROUND
A. The allegations in the habeas petition
{¶ 2} McDonald was convicted of aggravated murder and other felonies in
1995. According to McDonald, the sentencing entry for those convictions failed to
state an aggregate prison term.1 On direct appeal, the Sixth District Court of
Appeals affirmed, construing the sentence as one of life imprisonment. State v.
McDonald, 6th Dist. Erie No. E-95-046, 1997 WL 51221, *3 (Feb. 7, 1997). In
later decisions, however, the court indicated that McDonald’s actual sentence was
“a life term of imprisonment without parole possibility for 20 years.” State v.
McDonald, 6th Dist. Erie No. E-06-016, 2007-Ohio-2148, ¶ 2; accord State v.
McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 3. In a November 2020
judgment entry, on McDonald’s motion to clarify his sentence, the common pleas
court found that under the terms of the original sentencing entry, McDonald was
eligible for parole consideration after 20 years.
{¶ 3} Although McDonald has been eligible for a parole hearing since at
least 2016, one has not been held. In December 2021, McDonald filed a petition
for a writ of habeas corpus in the Erie County Court of Common Pleas. On March
29, 2022, the court granted the writ and ordered McDonald’s immediate release
from prison. However, on May 4, the court vacated that order, concluding that it
had lacked jurisdiction.
{¶ 4} On May 27, McDonald filed the present petition for a writ of habeas
corpus in this court. The petition notes that in other contexts, courts have held that
violations of a defendant’s due-process rights may deprive a trial court of
jurisdiction to impose sentence. McDonald argues by analogy that the failure to
1. As discussed below, the copy of the sentencing entry attached to the petition was incomplete.
2
January Term, 2022
accord him a parole hearing, as required by the sentencing entry, violates his due-
process rights and entitles him to immediate release.2
B. The warden’s return of the writ
{¶ 5} In his return, the warden offers four reasons why the writ should be
dismissed or denied, one of which is that McDonald failed to attach his commitment
papers, as required by R.C. 2725.04(D). Because this issue is dispositive, we need
not consider the warden’s other contentions.
II. LEGAL ANALYSIS
{¶ 6} R.C. 2725.04(D) requires a habeas petition to include the inmate’s
commitment papers “if [they] can be procured without impairing the efficiency of
the remedy.” Failure to attach the required documents is fatal to a habeas petition.
Griffin v. McFaul, 116 Ohio St.3d 30, 2007-Ohio-5506, 876 N.E.2d 527, ¶ 4.
{¶ 7} McDonald attached only the first page of his 1995 sentencing entry to
his habeas petition. In an affidavit attached to the petition, an employee of the law
firm representing McDonald attested as follows:
Despite numerous attempts to obtain the required
documentation of Dewitt McDonald’s commitment papers, our
office has been unsuccessful.
According to the state via Lieutenant Froy, the state claims
that they no longer have that information. Lieutenant Froy asserts
that due to the age of this case, the state is not required * * * to keep
the requested documentation.
2. In his response to the warden’s return, McDonald concedes that he has no due-process right to be
released on parole but argues that he does have a due-process right to receive parole consideration
after serving 20 years in prison.
3
SUPREME COURT OF OHIO
Based on these representations, we ordered a return of the writ, notwithstanding the
absence of the complete sentencing entry.
{¶ 8} The warden’s return observes that the affidavit does not indicate
where “Lieutenant Froy” is employed or explain how Lieutenant Froy is positioned
to speak on behalf of the state. More importantly, the return notes that the affidavit
does not indicate whether the affiant had attempted to obtain a copy of McDonald’s
sentencing entry from the Erie County clerk of courts. In addition, it alleges that
the entry was filed electronically in two federal cases and that the claim that the
entry no longer exists is therefore false.
{¶ 9} In his response, McDonald no longer contends that it was impossible
to obtain the sentencing entry. Instead, he responds by arguing that he was not
required to attach the entry to his habeas petition. He asserts that “R.C. 2725.04
does not say ‘judgment entry[;]’ it says, ‘commitment papers.’ Commitment papers
are a set of documents wholly separate from a judgment entry.” According to
McDonald, the papers he is required to attach to satisfy R.C. 2725.04(D) are those
that “state[] that the defendant is placed in [custody] for a specified amount of
time.”
{¶ 10} But the term “commitment papers” does not actually appear in the
statute. R.C. 2725.04(D) provides that a habeas petition must include a copy of
“the commitment or cause of detention” of the inmate. And as we have held, “the
commitment or cause of detention” includes “all pertinent papers that caused [the]
commitment, including sentencing entries and parole-revocation decisions.”
(Emphasis added.) State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213, 2018-Ohio-
4184, 120 N.E.3d 776, ¶ 6.
{¶ 11} In light of McDonald’s explanation in his brief—and specifically the
admission that he did not attempt to locate his sentencing entry—it is now clear that
the affidavit attached to his habeas petition did not offer a legitimate justification
4
January Term, 2022
for his failure to comply with R.C. 2725.04(D). We therefore deny McDonald’s
request for a writ without considering the warden’s remaining arguments.
III. CONCLUSION
{¶ 12} Based on the foregoing, we deny the petition for a writ of habeas
corpus for McDonald’s failure to comply with R.C. 2725.04(D).
Writ denied.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, STEWART, and
BRUNNER, JJ., concur.
DONNELLY, J., concurs and notes that petitioner is not precluded from
refiling.
_________________
Kimberly Kendall Corral, for petitioner.
Dave Yost, Attorney General, and Jerri L. Fosnaught, Assistant Attorney
General, for respondent.
_________________
5 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482271/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Gray v. Kimbler, Slip Opinion No. 2022-Ohio-3937.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3937
STATE EX REL. GRAY, APPELLANT, v. KIMBLER, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Gray v. Kimbler, Slip Opinion No.
2022-Ohio-3937.]
Prohibition—R.C. 2301.03(U) does not apply to divest the general division of a
common pleas court of subject-matter jurisdiction over domestic-relations
matters—Relator has an adequate remedy in the ordinary course of the
law—Court of appeals’ judgment affirmed.
(No. 2021-1216—Submitted March 29, 2022—Decided November 8, 2022.)
APPEAL from the Court of Appeals for Medina County, No. 20CA0077-M,
2021-Ohio-2868.
________________
DEWINE, J.
{¶ 1} This is an appeal from a decision denying a writ of prohibition. David
Gray is engaged in a legal battle with his ex-wife’s estate about the former spouses’
monetary obligations under their separation agreement. He filed an action against
SUPREME COURT OF OHIO
the estate in the general division of the Medina County Court of Common Pleas.
But he now contends that an Ohio statute divests the general division of subject-
matter jurisdiction over postdecree matters in divorce cases. He therefore seeks an
order prohibiting the general-division judge from exercising further authority over
some of the claims in the case.
{¶ 2} The statute Gray relies on does not divest the court of subject-matter
jurisdiction. And Gray may challenge the judge’s exercise of jurisdiction over his
case in a direct appeal. Because he has an adequate legal remedy through appeal,
he is not entitled to a writ of prohibition. We therefore affirm the judgment of the
Ninth District Court of Appeals dismissing his complaint.
I. The postdecree proceedings in the trial court
{¶ 3} Gray married Kelly Motta in 1993. They divorced in 2015. The
couple’s separation agreement was incorporated into a divorce decree issued by the
Medina County Domestic Relations Court.
{¶ 4} After Motta died in 2018, Gray filed a claim with her estate to recover
funds he said he was entitled to under the separation agreement. See generally R.C.
2117.06 (presentation of creditors’ claims against an estate). The estate rejected his
claim, so Gray brought an action against Motta’s estate in the general division of the
Medina County Court of Common Pleas. See generally R.C. 2117.12 (action on a
claim rejected by the estate). Gray’s complaint alleged that Motta had violated the
terms of the separation agreement by failing to pay certain expenses. The estate filed
a counterclaim against Gray, asserting that he had breached his own obligations under
the agreement. Judge Joyce Kimbler presided over the case. Gray v. Hamilton,
Medina County Common Pleas Court case No. 18 CIV 1005.
{¶ 5} The parties filed cross-motions for summary judgment. But before the
trial court issued its decision, Gray raised a challenge to the court’s subject-matter
jurisdiction to hear the estate’s counterclaim. Gray asserted that because the estate’s
breach-of-contract claim was based on a separation agreement that had been
2
January Term, 2022
incorporated into a divorce decree, the domestic-relations division had exclusive
jurisdiction to hear that claim.1 The trial court disagreed and held that it had subject-
matter jurisdiction.
{¶ 6} On the summary-judgment motions, the estate conceded that Gray was
entitled to $15,353.50, so the trial court awarded judgment in favor of Gray in that
amount. But the trial court determined that there were genuine issues for trial that
precluded summary judgment on Gray’s remaining claims.
{¶ 7} The trial court granted partial summary judgment in favor of the estate
on its counterclaims. The court determined that Gray owed the estate $152,800 for
Motta’s equity in the couple’s Lahaina, Hawaii property. It also concluded that the
estate was entitled to portions of Gray’s employee stock options, 401(k) plan, and
rollover individual retirement account and that the amounts owed should be
determined at trial.
II. The prohibition action
{¶ 8} Following the trial court’s ruling on the summary-judgment motions,
Gray filed a complaint for a writ of prohibition in the Ninth District Court of Appeals,
seeking to prevent Judge Kimbler from taking further action on the estate’s
counterclaim.
{¶ 9} A writ of prohibition “prevents an inferior court from exceeding its
jurisdiction.” State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265
(2001). To establish a right to relief, Gray must show that Judge Kimbler is
exercising judicial power, that the judge is not authorized by law to do so, and that
Gray lacks an adequate remedy in the ordinary course of law to challenge the
court’s action. See State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-
3628, 40 N.E.3d 1138, ¶ 13. In most cases, “a court having general subject-matter
jurisdiction can determine its own jurisdiction, and a party contesting that
1. Gray maintains that the general division nevertheless retained subject-matter jurisdiction over his
action against the estate under R.C. 2117.12. We do not address that issue here.
3
SUPREME COURT OF OHIO
jurisdiction has an adequate remedy by appeal.” State ex rel. Plant v. Cosgrove,
119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5. We dispense with the
adequate-remedy requirement only when the inferior court patently and
unambiguously lacks subject-matter jurisdiction over a cause of action. State ex
rel. Ohio Edison Co. v. Parrott, 73 Ohio St.3d 705, 707, 654 N.E.2d 106 (1995).
{¶ 10} Gray alleged in his complaint that the general division patently and
unambiguously lacks subject-matter jurisdiction over the counterclaim and that
exclusive jurisdiction over that claim is vested in the domestic-relations division.
Judge Kimbler filed a motion to dismiss. The court of appeals granted Judge
Kimbler’s motion. It concluded that Gray had not shown that the general division
patently and unambiguously lacked jurisdiction to hear the estate’s counterclaim, and
it therefore held that Gray had failed to establish entitlement to a writ under that
narrow exception to the adequate-remedy requirement. 2021-Ohio-2868, ¶ 2, 16.
{¶ 11} Gray appealed to this court. Along with his merit brief, he filed a
request for oral argument and a motion to stay the proceedings in the general division
pending a final decision in this appeal. Gray has offered no compelling reason for
this court to hear oral argument, so we deny that motion. See S.Ct.Prac.R. 17.02;
State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-
5339, 855 N.E.2d 444, ¶ 15. And because we today decide this case on the merits,
we deny the motion for stay as moot.
A. There is no patent and unambiguous lack of jurisdiction
{¶ 12} We now turn to the merits of Gray’s prohibition claim. There is no
dispute that Judge Kimbler has exercised judicial power. And as we will explain
below, Gray does not meaningfully dispute that he has an adequate legal remedy
by way of an appeal from the trial court’s judgment. This case therefore turns on
the question whether Judge Kimbler patently and unambiguously lacks subject-
matter jurisdiction to hear the estate’s counterclaim. If Gray cannot establish a
4
January Term, 2022
patent lack of jurisdiction, then his remedy is to contest the trial court’s exercise of
jurisdiction through a direct appeal.
{¶ 13} We have explained that “[w]hen a court has the constitutional or
statutory power to adjudicate a particular class or type of case, that court has
subject-matter jurisdiction.” Ostanek v. Ostanek, 166 Ohio St.3d 1, 2021-Ohio-
2319, 181 N.E.3d 1162, ¶ 36, citing Corder v. Ohio Edison Co., 162 Ohio St.3d
639, 2020-Ohio-5220, 166 N.E.3d 1180, ¶ 14. The Ohio Constitution vests courts
of common pleas with “such original jurisdiction over all justiciable matters and
such powers of review of proceedings of administrative officers and agencies as
may be provided by law.” Ohio Constitution, Article IV, Section 4(B). We have
understood the “provided by law” language to mean that the general subject-matter
jurisdiction of the common pleas courts “is defined entirely by statute.” State v.
Wilson, 73 Ohio St.3d 40, 42, 652 N.E.2d 196 (1995).
{¶ 14} The General Assembly has given the courts of common pleas general
subject-matter jurisdiction over “all civil cases in which the sum or matter in dispute
exceeds the exclusive original jurisdiction of county courts.” R.C. 2305.01.
Additionally, the legislature has expressly provided that “[t]he court of common
pleas including divisions of courts of domestic relations, has full equitable powers
and jurisdiction appropriate to the determination of all domestic relations matters.”
R.C. 3105.011(A).
{¶ 15} In light of this broad grant of authority, we have explained that when
a court of common pleas patently and unambiguously lacks jurisdiction to hear a
case, “it is almost always because a statute explicitly removed that jurisdiction.”
Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-
2845, 136 N.E.3d 436, ¶ 9. A statutory grant of exclusive jurisdiction over a
specific type of case to another court, office, or agency divests the common pleas
court of jurisdiction over that type of case. See Ostanek at ¶ 29.
5
SUPREME COURT OF OHIO
{¶ 16} Gray contends that a different statute has divested the general
division of jurisdiction over postdecree proceedings in divorce cases. He says that
R.C. 2301.03(U) grants exclusive jurisdiction over such proceedings to the
domestic-relations division. We disagree.
{¶ 17} R.C. 2301.03(U) provides that the domestic-relations judge
shall be assigned all divorce, dissolution of marriage, legal
separation, and annulment cases * * * and all post-decree
proceedings and matters arising from those cases and proceedings,
except in cases that for some special reason are assigned to another
judge of the court of common pleas.
(Emphasis added.) This language does not address the domestic-relations court’s
“jurisdiction” over postdecree proceedings. In fact, on the topic of jurisdiction, the
statute says the opposite of what Gray suggests. It provides that the domestic-
relations judge “shall have the same qualifications, exercise the same powers and
jurisdiction, and receive the same compensation as other judges of the court of
common pleas.” (Emphasis added.) Id.
{¶ 18} R.C. 2301.03(U) contains no language indicating that the domestic-
relations court possesses exclusive jurisdiction over the matters assigned to it.
Instead, it says that the domestic-relations judge has “the same powers and
jurisdiction” as other common-pleas-court judges. Id. Indeed, it is difficult to see
how R.C. 2301.03(U) could be read to divest the general division of subject-matter
jurisdiction over domestic-relations matters when the statute expressly provides
that general-division judges may hear such cases if “some special reason”
necessitates it, id. Gray has thus failed to establish that the general division patently
and unambiguously lacks subject-matter jurisdiction over the estate’s counterclaim.
6
January Term, 2022
B. Gray has an adequate remedy at law
{¶ 19} Gray’s central argument is that the general division lacks subject-
matter jurisdiction. But he briefly asserts that even if the trial court has jurisdiction,
he nevertheless has no adequate legal remedy to challenge the court’s judgment.
Gray does not dispute that he may appeal the judgment. Rather, his argument is
premised on the harms he claims he will suffer as a result of the court’s order—
specifically, harm to his reputation and harm from having to sell the Hawaii
property to cover the amount of the judgment owed. But these sorts of generalized
harms are often present in the litigation process and are not sufficient to establish
that an appeal is an inadequate legal remedy. See State ex rel. Lyons v. Zaleski, 75
Ohio St.3d 623, 626, 665 N.E.2d 212 (1996) (“contentions that appeal from [an]
adverse final judgment would be inadequate due to time and expense are without
merit”); State ex rel. Woodbury v. Spitler, 34 Ohio St.2d 134, 137, 296 N.E.2d 526
(1973) (“Extraordinary remedies * * * are available only when usual forms of
procedure are incapable of affording relief”). Indeed, Gray sets forth no
explanation for why he could not obtain relief through the normal course of appeal
following a final judgment by the general division. We therefore have little
difficulty concluding that Gray has an adequate remedy at law.
{¶ 20} To sum up, the general division does not patently and
unambiguously lack subject-matter jurisdiction to hear postdecree matters in
divorce cases. And there is no need for us to decide at this juncture whether the
case should have been assigned to the domestic-relations division under R.C.
2301.03(U) or whether any prejudice resulted from the case being adjudicated in
the general division. Our general rule is that “absent a patent and unambiguous
lack of jurisdiction, a writ of prohibition should not be granted when a party can
appeal the lower court’s order.” Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845,
136 N.E.3d 436, at ¶ 15. Gray may appeal the matter and challenge Judge
7
SUPREME COURT OF OHIO
Kimbler’s exercise of judicial power over the postdecree proceedings. Our analysis
ends there.
III. Conclusion
{¶ 21} The general division does not patently and unambiguously lack
subject-matter jurisdiction and Gray has an adequate legal remedy by way of direct
appeal. We therefore affirm the judgment of the court of appeals dismissing Gray’s
complaint for a writ of prohibition.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
_________________
Triscaro & Associates, Ltd., and Joseph J. Triscaro, for appellant.
S. Forrest Thompson, Medina County Prosecuting Attorney, and Vincent
V. Vigluicci, Assistant Prosecuting Attorney, for appellee.
_________________
8 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482270/ | USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 1 of 19
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10147
Non-Argument Calendar
____________________
CHRISTINE MAY,
Plaintiff-Appellant,
versus
DEPUTY JOSEPH PRITCHETT,
Morgan County, Individually, et al.,
Defendants,
MORGAN COUNTY GEORGIA,
Defendant-Appellee.
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 2 of 19
2 Opinion of the Court 22-10147
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 3:19-cv-00082-CDL
____________________
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Christine May owned a vacation home on Lake Oconee in
Morgan County, Georgia, which she regularly rented to others for
one-week terms. May has consistently (and, it turns out, correctly)
maintained that she was within her rights to engage in short-term
rentals of her property. But the County disagreed, ultimately pros-
ecuting her for violating its zoning rules after they were amended
to expressly prohibit such short-term rentals. May was convicted
and spent two days in jail as a result. After the Georgia Supreme
Court vindicated May’s position in 2019 and dismissed her convic-
tion, May brought this action for malicious prosecution against the
County under 42 U.S.C. § 1983. The district court granted sum-
mary judgment for the County, and May appeals. After careful re-
view, we conclude that the County’s mistake of law did not erase
the probable cause for May’s prosecution. Because probable cause
existed, May has not established a violation of her Fourth Amend-
ment rights, an essential element of her § 1983 claim. We therefore
affirm the judgment in favor of the County.
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 3 of 19
22-10147 Opinion of the Court 3
I.
A. Events Leading to Amendment of the County’s Zoning Ordi-
nance
May is a real-estate agent from New Jersey who built a tim-
ber-frame vacation home on Lake Oconee in Morgan County in
2007. To offset the costs of the land and home construction, May
began renting the property to vacationers beginning in 2008. Until
2016, May regularly rented the property for terms of less than 30
days, usually one week at a time.
When May began renting her home, the County’s zoning
ordinance listed permitted uses for properties in May’s zoning dis-
trict (LR-1) and banned any uses that were not listed. There was
no mention of rentals of any duration.
In practice, the County took the position that the ordinance
prohibited rentals of single-family dwellings for less than 30 days.
A magistrate judge agreed with that interpretation in 2008, finding
a homeowner guilty of engaging in illegal nightly rentals of his
property. Nevertheless, the judge told County representatives that
“they needed to revise the ordinance” to provide greater clarity for
short-term or vacation rentals.
Consistent with its interpretation of the ordinance, in July
2009, the County issued cease-and-desist letters to several home-
owners, including May, after receiving complaints from neighbors.
The letters advised that vacation or short-term rentals of less than
30 days violated the zoning ordinance, citing the magistrate judge’s
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 4 of 19
4 Opinion of the Court 22-10147
ruling and Chapter 4.6 of the ordinance, which prohibited all uses
not expressly permitted. An attorney for one of the homeowners
responded in part that Chapter 4.6 failed to comply with due pro-
cess by giving fair warning that short-term rentals were prohibited.
Despite issuing the cease-and-desist letters, the County
doubted whether it could enforce the zoning ordinance against
short-term renting. Minutes from a July 2010 meeting of the
County Planning Commission show that the County did not be-
lieve it could enforce the magistrate judge’s “case-specific” ruling,
that “staff and the County Attorney had concerns regarding the le-
gality of enforcing” Chapter 4.6, and that “more concrete” lan-
guage was needed to regulate the rapidly growing vacation rental
business.
Towards that end, in October 2010, the County amended
the zoning ordinance to prohibit rentals for periods of less than 30
consecutive days in all zoning districts, except where specifically
allowed as a conditional use. Short-term rentals were not permit-
ted as conditional uses in the zoning district where May’s property
was located.
B. The Criminal Case Against May
Because May continued to rent her home for weekly terms,
the County issued her a citation in August 2011 for violating the
amended zoning ordinance, thereby initiating a misdemeanor
criminal proceeding against her. The criminal case was stayed for
several years, however, while she and the County litigated a civil
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 5 of 19
22-10147 Opinion of the Court 5
lawsuit May filed challenging the amended zoning ordinance’s ban
on short-term renting. A state trial court initially agreed with her
claim that her use of the property for short-term rentals was lawful
under the old ordinance and so was “grandfathered” under the
amended ordinance. But the Georgia Court of Appeals vacated
that judgment and remanded the case for a ruling on two “thresh-
old” procedural grounds. And on remand, the trial court con-
cluded that May’s lawsuit was barred for failure to exhaust admin-
istrative remedies or to timely challenge the amended ordinance.
Both the Georgia Court of Appeals and the Georgia Supreme
Court denied review. 1
Meanwhile, after the criminal case was revived in 2015, May
filed a motion to dismiss the citation, again contending that she had
a grandfathered right to engage in short-term rentals of her prop-
erty. She asserted that the zoning ordinance in effect when she be-
gan renting either did not prohibit such rentals or did not give con-
stitutionally adequate warning that such rentals were prohibited.
In November 2015, the state trial court denied the motion to dis-
miss, concluding that May’s use of the property for short-term
1 After losing the state-court lawsuit, May also filed an application for rezoning
and a corresponding request that the County recognize her grandfathered
rights. The County denied her application and her subsequent appeal of that
decision. In addition, May filed an action in federal court in May 2015 seeking
essentially the same relief as her prior state-court lawsuit sought, but that case
was dismissed for lack of subject-matter jurisdiction under the Rooker-Feld-
man doctrine. See May v. Morgan Cnty., 878 F.3d 1001 (11th Cir. 2017).
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 6 of 19
6 Opinion of the Court 22-10147
rentals was not lawful under the old ordinance, so it was not grand-
fathered under the amended ordinance.
Then, in March 2016, the state trial court found May guilty
of violating the amended zoning ordinance and sentenced her to
six months of probation, to serve the first 30 days in jail, and fined
her $500.00. At the sentencing hearing, the court found that May’s
testimony regarding her rental activity was not “an attempt to be
forthright and truthful” and that nothing was “going to get her at-
tention except some time in Morgan County jail.” The court or-
dered her taken into custody, and she ultimately served two days
and two nights in jail before being released on a supersedeas bond.
As a condition of granting May’s motion for a supersedeas
bond pending appeal, the trial court ordered May to remove her
listings for short-term rentals and to notify the County of any
renters or guests. In April 2016, May notified the County of her
intent to sell the property. Soon after, May entered an agreement
with the County to not rent her home at all in exchange for re-
moval of a warning sign about short-term renting that the County
had placed in front of her house.
On appeal, the Georgia Court of Appeals affirmed the trial
court’s ruling that short-term rentals were barred under Chapter
4.6 of the old zoning ordinance. May v. Morgan Cnty. (May I), 807
S.E.2d 28 (Ga. Ct. App. 2017). Nonetheless, the court remanded
for the trial court to address May’s argument that the old ordinance
was void for vagueness as applied to her, though it “d[id] not envy
the trial court’s task.”
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 7 of 19
22-10147 Opinion of the Court 7
On remand in May 2018, the state trial court ruled that the
County’s pre-2010 zoning ordinance was void for vagueness on the
issue of short-term renting as applied to May. As a result, the court
found that May’s use of her property prior to the 2010 amendments
was lawful, such that she retained a grandfathered right to continue
that use after the amendments. The County appealed to the Geor-
gia Supreme Court, which unanimously affirmed the trial court’s
ruling that the old zoning ordinance was void for vagueness as ap-
plied to May’s use of her property for weekly rentals. May v. Mor-
gan Cnty. (May II), 824 S.E.2d 365 (Ga. 2019). The court explained
that the County’s interpretation of the old ordinance—“[t]hat May
would have been allowed to rent her house for a month but crimi-
nally prosecuted for renting it for a week”—“was nowhere to be
found in the text of the old ordinance” and would not have been
apparent to a person of ordinary intelligence. Id. at 367–68. Ac-
cordingly, May’s criminal citation for violating the amended ordi-
nance was dismissed.
II.
In September 2019, May filed the present lawsuit under 42
U.S.C. § 1983 against the County in federal court. 2 She alleged that
2 May also brought 42 U.S.C. § 1983 claims against several individuals, and she
asserted a state-law claim of malicious prosecution. The district court granted
judgment on the pleadings for the defendants on those claims, and May does
not appeal that ruling.
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 8 of 19
8 Opinion of the Court 22-10147
the County had maliciously prosecuted her and had her jailed “for
violating a zoning ordinance that did not even apply to her.”
The district court granted summary judgment to the
County. The court found that May’s detention after a conviction,
based on a mistake of law by the trial judge, did not implicate the
Fourth Amendment’s prohibition against unreasonable seizures.
And even if the jailing amounted to a Fourth Amendment seizure,
the court continued, May did not establish that the County was the
“moving force” behind that seizure. The court explained that, de-
spite the code-enforcement proceeding, May was never arrested or
detained by a County official before her conviction, and that public
officials, absent evidence of misconduct like lying to or bribing the
judge, are “not liable for a Fourth Amendment seizure based on
the intervening acts of a judge who convicts and sentences a sus-
pect.” The court did not address whether probable cause sup-
ported the prosecution.
III.
We review the district court’s grant of summary judgment
de novo, construing the evidence and drawing all reasonable infer-
ences in favor of May, the non-moving party. Washington v. How-
ard, 25 F.4th 891, 897 (11th Cir. 2022). Summary judgment is ap-
propriate if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In other words, “[w]here the record taken as a whole
could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial,” and summary judgment
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 9 of 19
22-10147 Opinion of the Court 9
may be granted. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997) (quotation marks omitted). We may affirm on any
ground supported by the record, even if the district court did not
address it. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1251–
52 & n.5 (11th Cir. 2013).
IV.
“A constitutional claim brought pursuant to § 1983 must
begin with the identification of a specific constitutional right that
has allegedly been infringed.” Paez v. Mulvey, 915 F.3d 1276, 1285
(11th Cir. 2019). May claims that the County violated her Fourth
Amendment rights by maliciously prosecuting her based on a zon-
ing ordinance that, as the Georgia Supreme Court later recognized,
did not apply to her.
We use “malicious prosecution” only as “a shorthand way
of describing certain claims of unlawful seizure under the Fourth
Amendment”—that is, seizures pursuant to legal process. Wil-
liams v. Aguirre, 965 F.3d 1147, 1157–58 (11th Cir. 2020) (quotation
marks omitted). For this claim, May must prove both “a violation
of her Fourth Amendment right to be free of unreasonable sei-
zures” and “the elements of the common law tort of malicious
prosecution.” Paez, 915 F.3d at 1285 (quotation marks omitted).
To establish the common-law elements of malicious prosecution,
a plaintiff must prove that the defendant “instituted or continued a
criminal prosecution against [her], with malice and without proba-
ble cause, that terminated in [her] favor and caused damage to
[her].” Williams, 965 F.3d at 1157 (quotation marks omitted).
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10 Opinion of the Court 22-10147
One of the Fourth Amendment’s protections is “the right to
be free from arrest without probable cause.” Barnett v. MacArthur,
956 F.3d 1291, 1296 (11th Cir. 2020). A Fourth Amendment viola-
tion involving seizures pursuant to legal process “occurs when le-
gal process itself goes wrong—when, for example, a judge’s proba-
ble-cause determination is predicated solely on a police officer’s
false statements.” Williams, 965 F.3d at 1158 (quotation marks
omitted). “In these situations, legal process has gone forward, but
it has done nothing to satisfy the Fourth Amendment’s probable-
cause requirement.” Id. (cleaned up). However, “the existence of
probable cause defeats a § 1983 malicious prosecution claim.”
Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010).
In addition to proving the elements of malicious prosecution
under § 1983, May must prove causation. In particular, she must
show that the County, “through its deliberate conduct, . . . was the
‘moving force’ behind the injury alleged.” Bd. of Cnty. Comm’rs
of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
Although the district court did not directly address the issue,
we affirm on the ground that probable cause supported the prose-
cution against May, even assuming she was subject to a Fourth
Amendment seizure that was caused by the County.3 See Felici-
ano, 707 F.3d at 1251–52 & n.5. Because probable cause supported
3 For that reason, we need not and do not consider whether her detention
pursuant to a conviction was a Fourth Amendment seizure or whether the
County was a moving force behind the alleged injury.
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 11 of 19
22-10147 Opinion of the Court 11
the prosecution, May has not established a violation of her Fourth
Amendment rights, which is an essential element of her § 1983 ma-
licious-prosecution claim.
A.
May argues that the prosecution against her was not sup-
ported by probable cause because she “was not ever subject to the
ordinance.” In her view, when evaluating probable cause for mu-
nicipal liability—as opposed to individual liability, which is subject
to qualified immunity—we must apply current law rather than the
law in effect at the time of the allegedly wrongful conduct. If we
apply that law—specifically the Georgia Supreme Court’s 2019 de-
cision in her criminal case—it’s clear that the amended zoning or-
dinance under which she was charged and convicted does not ap-
ply to her. See May II, 824 S.E.2d at 369.
Unlike individual defendants, municipalities cannot assert
qualified immunity as a defense to suit under § 1983. Owen v. City
of Independence, 445 U.S. 622, 650–51 (1980). So a municipality
may be liable for a constitutional violation even if it acted reasona-
bly or in good faith. Id. Without the protection of a good-faith
defense, the Supreme Court reasoned, “officials who may harbor
doubts about the lawfulness of their intended actions” may be
more likely “to err on the side of protecting citizens’ constitutional
rights” and “to minimize the likelihood of unintentional infringe-
ments on constitutional rights.” Id. at 652.
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12 Opinion of the Court 22-10147
Our decision in Cooper v. Dillon illustrates how the lack of
qualified immunity may affect municipal liability. There, the edi-
tor and publisher of a weekly newspaper sued after he was arrested
for violating a law that prohibited the disclosure of information ob-
tained as a participant in an internal law enforcement investigation.
403 F.3d 1208, 1212–13 (11th Cir. 2005). After concluding that the
law violated the First Amendment as an impermissible content-
based restriction on speech, we turned to the question of liability
for that constitutional injury. Id. at 1219. We held that the officer
was not liable in his individual capacity due to qualified immunity,
because “[a]t the time of Cooper’s arrest, the statute had not been
declared unconstitutional, and therefore it could not have been ap-
parent to [the officer] that he was violating Cooper’s constitutional
rights.” Id. at 1220. But that same officer was liable in his official
capacity as a policymaker for the city, we explained, because his
decision to enforce the law caused a constitutional deprivation. Id.
at 1222–23. Put differently, we held that the city was liable even
though the law “had not been declared unconstitutional” until
Cooper itself was decided. See id. at 1220.
May’s attempt to analogize this case to Cooper is unpersua-
sive, despite some facial similarities. As we noted above, our anal-
ysis must be guided by the “specific constitutional right that has
allegedly been infringed.” Paez, 915 F.3d at 1285. In Cooper, our
conclusion that the law at issue violated the First Amendment as
an impermissible content-based restriction on speech meant that
the plaintiff’s free-speech rights were violated when he was
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22-10147 Opinion of the Court 13
arrested under that law. See 403 F.3d at 1219–23. Because there is
no good-faith exception for municipal liability, it made sense to
hold the city liable for that constitutional violation even though the
law had not been declared unconstitutional at the time of arrest.
See Owen, 445 U.S. at 650–52.
Here, though, May’s claim is based on an allegedly unrea-
sonable seizure under the Fourth Amendment—that is, she asserts
that the prosecution against her was not supported by probable
cause. The Georgia Supreme Court’s ruling in 2019 that the old
zoning ordinance was unconstitutionally vague under the due pro-
cess clause, such that the amended zoning ordinance did not apply
to her, does not, by itself, establish a violation of May’s rights under
the Fourth Amendment. 4 Rather, that ruling matters only insofar
as it affects the assessment of probable cause.
The short answer is, it doesn’t. Contrary to May’s view, we
assess probable cause without the benefit of hindsight. See Wash-
ington, 25 F.4th at 904 (“The Fourth Amendment does not have
that special feature known as hindsight.” (quoting United States v.
Robinson, 535 F.2d 881, 884 (5th Cir. 1976))). “[T]he ultimate
touchstone of the Fourth Amendment is ‘reasonableness.’” Heien
v. North Carolina, 574 U.S. 54, 60–66 (2014). As a result, according
4 We note it’s unclear whether the Georgia Supreme Court applied state or
federal law, or both. But in any event, a violation of federal-due-process guar-
antees does not necessarily equate to a violation of rights protected by the
Fourth Amendment.
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14 Opinion of the Court 22-10147
to the Supreme Court, “the Fourth Amendment allows for some
mistakes on the part of government officials.” Id. at 60–61. In par-
ticular, probable cause or reasonable suspicion can rest on objec-
tively reasonable mistakes of fact or law. 5 Id. at 60–61, 65–66 (“The
Fourth Amendment tolerates only reasonable mistakes, and those
mistakes—whether of fact or of law—must be objectively reasona-
ble.”). So when a “mistake of law relates to the antecedent ques-
tion of whether it was reasonable for an officer to suspect that the
defendant’s conduct was illegal,” “there [is] no violation of the
Fourth Amendment in the first place.” Id. at 66.
Without directly addressing Heien, May maintains that the
Supreme Court’s decision in Owen controls and that, under it, we
must apply the Georgia Supreme Court’s 2019 ruling when ad-
dressing the existence of probable cause for her earlier prosecution
and detention. We disagree. Owen teaches that, once a constitu-
tional violation is established, a municipality cannot avoid liability
by claiming that its officials acted reasonably or in good faith. See
Owen, 445 U.S. at 650–51. But Heien prescribes the analysis we
use to determine whether there was an unreasonable seizure, and
5 The Supreme Court noted that, in Michigan v. DeFillippo, 443 U.S. 31, 64
(1979), it had held that a search was reasonable and therefore constitutional
even though DeFillipo “could not be prosecuted under the identification ordi-
nance,” which was found to be unconstitutional after his arrest and search.
Heien v. North Carolina, 574 U.S. 54, 63–65 (2014).
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 15 of 19
22-10147 Opinion of the Court 15
therefore a Fourth Amendment violation, “in the first place.” 6
Heien, 574 U.S. at 66. And under Heien, an objectively reasonable
but ultimately mistaken view of the law does not undermine the
existence of probable cause or otherwise establish a violation of the
Fourth Amendment’s prohibition on unreasonable seizures. See
id. While that inquiry may overlap to some degree with the quali-
fied-immunity inquiry for individual liability, as May suggests,
Heien makes clear that the inquiries are “distinct.” Id. at 67.
For these reasons, May cannot prove that her prosecution
was unreasonable based solely on the fact that the amended zoning
ordinance was later found not to apply to her. See May II, 824
S.E.2d at 367–68. Rather, to defeat the existence of probable cause
for her prosecution, she must show that the County officials’ view
of the law was not only mistaken but objectively unreasonable. See
Heien, 574 U.S. at 66.
B.
May has made no effort to do so on appeal in the argument
sections of her briefing, despite the County’s direct arguments on
this point. So she has abandoned the issue. See Sapuppo v. Allstate
6 May cites Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), for the propo-
sition that Owen applies in the Fourth Amendment context. But in Pembaur,
the city had conceded that the later-decided Supreme Court opinion applied
retroactively in that case. Id. at 477 n.5. Even without that concession, though,
Pembaur is not on point because the Fourth Amendment issue concerned
whether a warrant was required to enter a third party’s premises to execute
an arrest warrant, not the reasonableness of a seizure. See id. at 474 & 477 n.5.
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 16 of 19
16 Opinion of the Court 22-10147
Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (“We have
long held that an appellant abandons a claim when he either makes
only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”).
Nor can we say that the record would support a finding that
the County’s view of the law was objectively unreasonable. May’s
conduct facially violated the amended zoning ordinance, the gen-
eral validity of which is not in dispute. While May raised an (ulti-
mately valid) affirmative defense to prosecution based on grandfa-
thered rights and vagueness, May v. Morgan Cnty., 878 F.3d 1001,
1003–04 nn. 3 & 4 (11th Cir. 2017), affirmative defenses usually do
not “vitiate probable cause,” Paez, 915 F.3d at 1286.
Plus, the state trial judges reached conflicting views about
whether the pre-2010 zoning ordinance prohibited short-term rent-
als, and the Georgia Court of Appeals eventually sided with the
County. That same court in 2017 recognized that the vagueness
issue was by no means an easy one. See May, 807 S.E.2d at 32. May
also offers no evidence of fraud or false statements by County offi-
cials. See Williams, 965 F.3d at 1158. Despite evidence that the
County doubted whether the pre-2010 ordinance could support a
prosecution for short-term renting, we are not persuaded that it
was objectively unreasonable for the County to believe that May
was subject to prosecution under the amended zoning ordinance,
notwithstanding her assertion of grandfathered rights.
In sum, May has not shown that the prosecution against her
was initiated or maintained without probable cause. She therefore
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 17 of 19
22-10147 Opinion of the Court 17
has not established a violation of her Fourth Amendment right
against unreasonable seizures. See Williams, 965 F.3d at 1157–58.
And without proof of that element, she cannot prevail on her
§ 1983 claim of malicious prosecution. See Paez, 915 F.3d at 1285;
Grider, 618 F.3d at 1256 (“[T]he existence of probable cause defeats
a § 1983 malicious prosecution claim.”). We therefore affirm the
district court’s decision to grant summary judgment to the County.
V.
May also argues that that neither the County nor the district
court addressed the claims she raised under the Fourteenth
Amendment. She does not identify with any precision what those
claims were, however. In any case, we decline to consider any in-
dependent Fourteenth Amendment claim because the only claim
May raised at summary judgment was her § 1983 claim for mali-
cious prosecution.
It is well established “that arguments not raised at the district
court level will generally not be considered on appeal,” including
“grounds alleged in the complaint but not relied upon in summary
judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587,
598–99 (11th Cir. 1995) (en banc). That’s because “[i]n opposing a
motion for summary judgment, a party may not rely on [her]
pleading to avoid judgment” and must instead formulate the argu-
ments she wants the district court to consider. Id. at 599. “There
is no burden upon the district court to distill every potential argu-
ment that could be made based upon the materials before it on
summary judgment.” Id. Grounds not raised by a plaintiff in
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 18 of 19
18 Opinion of the Court 22-10147
opposing a motion for summary judgment are “deemed aban-
doned.” Id.
In moving for summary judgment, the County asserted that
May’s sole claim was for malicious prosecution under the Fourth
Amendment and sought dismissal of her entire complaint. That
was a reasonable construction of her complaint because she cited
the Fourteenth Amendment in the context of her § 1983 malicious-
prosecution claim, which we have said is a type of Fourth Amend-
ment claim, and the Fourteenth Amendment is how the Fourth
Amendment applies to the States. See, e.g., Torres v. Madrid, 141
S. Ct. 989, 997 (2021) (noting that the Fourteenth Amendment “in-
corporated the protections of the Fourth Amendment against the
States”).
May, however, in her own motion for summary judgment
and her response opposing the County’s motion, did not raise any
independent claim or argument under the Fourteenth Amend-
ment. Rather, her briefing raised only a § 1983 malicious-prosecu-
tion claim. As a result, she abandoned any other claims she may
have had. See Resolution Trust, 43 F.3d at 598–99. And given
May’s failure to develop a Fourteenth Amendment claim with any
clarity on appeal, this is not a case “where refusal to consider it
would result in a miscarriage of justice.” Id. Accordingly, we de-
cline to consider any claim beyond the Fourth Amendment claim
for malicious prosecution we have addressed above.
USCA11 Case: 22-10147 Date Filed: 11/08/2022 Page: 19 of 19
22-10147 Opinion of the Court 19
VI.
In sum, we affirm the district court’s judgment in favor of
the County on May’s § 1983 claim of malicious prosecution.
AFFIRMED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482276/ | USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10227
Non-Argument Calendar
____________________
GLOBAL TRAVEL INTERNATIONAL, INC.,
Plaintiff-Appellant,
versus
MOUNT VERNON FIRE INSURANCE COMPANY,
A foreign corporation,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-00716-GAP-GJK
USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 2 of 8
2 Opinion of the Court 22-10227
____________________
Before WILSON, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
This is a duty to defend insurance dispute brought by the
insured, Global Travel International, Inc. (GTI), seeking a declara-
tion that Mount Vernon Fire Insurance Company (Mt. Vernon) has
a duty to defend GTI in a breach of contract arbitration proceeding.
GTI appeals from the district court’s grant of summary judgment
in favor of Mt. Vernon. The order held that Mt Vernon had no
duty to defend GTI because the claim fell within a relevant policy
exclusion (exclusion Q). An appeal ensued. At issue now is
whether the district court erred by holding that the amended arbi-
tration demand’s language was akin to “conclusory buzz words”
that do not trigger coverage.
After careful review of the policy and the allegations in the
amended arbitration demand, we affirm the district court’s holding
for the reasons set out below.
I. Background
A. The Policy
GTI is a travel agency that provides hotel reservation and
other travel-related services to its customers, primarily over the in-
ternet. Mt. Vernon insured GTI under a professional errors and
USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 3 of 8
22-10227 Opinion of the Court 3
omissions liability insurance policy (the policy). At all relevant
times, Mt. Vernon insured GTI under the policy.
The Parties agree that coverage part A is the relevant cover-
age part for this dispute. Coverage part A states that “the Company
will pay on behalf of an Insured, Loss and Claim Expenses resulting
from a Claim . . . such Claim must be reported to the Com-
pany . . . .” Doc. 1-2 at 39 (emphasis in original). Exclusion Q to
coverage part A provides the condition that:
The Company shall not be liable for Loss or Claim
Expenses on account of any Claim or Cyber Event:
…
Q. arising out of, directly or indirectly resulting from
or in consequence of or in any way involving actual
or alleged contractual liability, obligation, warranty,
representation or guarantee including:
1. any breach of a written contract…
Except this exclusion shall not apply to:
…
(3) unintentional breach of a written contract result-
ing from the rendering of or failure to render Profes-
sional Services.
Doc. 1-2 at 24, 26 (emphasis in original).
USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 4 of 8
4 Opinion of the Court 22-10227
B. The Underlying Arbitral Demand
GTI entered into a Merchant Card Processing Agreement
with Qualpay, Inc. (Qualpay), a credit card processor, to help carry
out GTI’s business as a travel agent. Under the agreement,
Qualpay “agreed to process GTI’s credit and debit card transac-
tions, and GTI, as Qualpay’s merchant, agreed to pay Qualpay cer-
tain fees and expenses associated with that processing activity,” in
addition to reimbursing Qualpay for “chargebacks.” 1 Doc. 1-6 at
6.
In February 2019, GTI discovered that an employee respon-
sible for reconciling financial transactions had been using his posi-
tion to engage in fraudulent activities that resulted in approxi-
mately $1.1 Million being embezzled from company funds. Con-
sequently, GTI was left unable to fulfill many financial commit-
ments, including its payment obligations to Qualpay under the Pro-
cessing Agreement. Qualpay began arbitration proceedings for
breach of contract. The demand first alleged in paragraph 11 that
1 The Merchant Card Processing Agreement describes a chargeback as an oc-
currence where “a customer contacts the bank issuing a credit or debit card
and asks that a sales transaction be reversed… Upon the initiation of a charge-
back by a consumer, funds that were previously paid to a merchant (such as
GTI) for a transaction are debited back from its processor (here, Qualpay),
leaving the processor to collect the chargeback from its merchant customer.”
Doc. 1-6 at 6.
USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 5 of 8
22-10227 Opinion of the Court 5
GTI 2 and its guarantor have not paid Qualpay for chargebacks or
fees as required under their agreement, which left Qualpay “hold-
ing the bag” for more than $300,000. Doc. 1-6 at 7.
Later, Qualpay filed an amended demand that changed only
paragraph 11; the amendment added that: “[u]pon information and
belief, these breaches of contract were not reflections of intentional
obstinacy by GTI or based upon a denial that the amounts are due,
but rather were unintentional and caused by an embezzlement
event within GTI that left it unable to pay its debts and obliga-
tions.” Doc. 1-6 at 2 (the amended language).
GTI notified Mt. Vernon after each demand, requesting that
they provide a defense under the policy. Both times, Mt. Vernon
declined coverage, concluding that the claims asserted against GTI
were not covered under the policy.
GTI subsequently filed an action seeking declaratory judg-
ment that Mt. Vernon must defend GTI in the arbitration proceed-
ing. The parties cross motioned for summary judgment on the is-
sue. The district court granted summary judgment for Mt.
Vernon, finding that the amended arbitration demand falls within
Exclusion Q. GTI timely appealed.
II. Discussion
2 The initial demand incorrectly stated that a demand for payment was made
upon Qualpay. The language is corrected in the amended demand to reflect
that demand for payment was made to GTI and its guarantor.
USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 6 of 8
6 Opinion of the Court 22-10227
On appeal, GTI argues that the amended language is enough
to place the arbitration demand within the exception to Exclusion
Q and trigger the duty to defend. Mt. Vernon argues that the dis-
trict court was correct because Qualpay’s claim is based upon an
alleged breach of contract, and simply calling GTI’s alleged breach
“unintentional,” as the amended language does, amounts to a con-
clusory ‘buzz word.’
We review a district court’s order granting summary judg-
ment de novo. Huff v. DeKalb County, 516 F.3d 1273, 1277 (11th
Cir. 2008). Construction of an insurance contract is a question of
law to be reviewed de novo. Technical Coating Applicators, Inc.
v. United States Fid. & Guar. Co., 157 F.3d 843, 844 (11th Cir. 1998).
In this diversity case, the parties have agreed that Florida substan-
tive law applies. See Provau v. State Farm Mut. Auto. Ins., 772 F.2d
817, 819 (11th Cir. 1985). In Florida, ordinary contract principles
govern the interpretation and construction of insurance policies.
Atlantic Cas. Ins. v. Innovative Roofing Sys., Inc., 411 F. Supp. 3d
1287 (M.D. Fla 2019). “[T]he central inquiry in a duty to defend
case is whether the complaint ‘alleges facts that fairly and poten-
tially bring the suit within policy coverage.’” Hartford Accident &
Indem. Co. v. Beaver, 466 F.3d 1289, 1292 (11th Cir. 2006) (quoting
Jones v. Fla Ins. Gar. Ass’n., 908 So. 2d 435, 442–43 (Fla. 2005) (per
curiam)); see also State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d
1226, 1230 (11th Cir. 2004) (“Under Florida law, the general rule is
that an insurance company’s duty to defend an insured is deter-
mined solely from the allegations in the complaint against the
USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 7 of 8
22-10227 Opinion of the Court 7
insured, not by the true facts of the cause of action against the in-
sured, the insured’s version of the facts or the insured’s defenses.”).
But “conclusory ‘buzz words’ unsupported by factual allegations
are not sufficient to trigger coverage.” Steinberg, 393 F.3d at 1230
(citing Amerisure Ins. v. Gold Coast Marine Distributors, Inc., 771
So.2d 579, 582 (Fla. Dist. Ct. App. 2000)). In addition, inferences
are insufficient to trigger coverage. Fun Spree Vacations, Inc. v.
Orion Ins., 659 So. 2d 419, 421–22 (Fla. Dist. Ct. App. 1995).
The threshold question in this case is whether the amended
language sufficiently alleges unintentional conduct. The district
court held that it does not, but instead alleges only that GTI
breached the Qualpay contract because it could not afford to pay
the fees due under the agreement—a statement that amounts to a
conclusory ‘buzz word.’ We agree.
The parties agree that GTI had a contractual obligation to
pay Qualpay for fees associated with the service provided, and that
Qualpay initiated the underlying action as a result of the breach of
that obligation. The amended language creates, at most, an infer-
ence into the circumstances that created the breach. Qualpay’s
“belief” that an “embezzlement event” caused the breach, standing
alone, is not enough to allege an unintentional breach of contract.
As the district court noted, Qualpay needed to point to an alleged
fact that would show the breach is unintentional. Here, the
amended demand alleges only that Qualpay believes the breach
was unintentional.
USCA11 Case: 22-10227 Date Filed: 11/08/2022 Page: 8 of 8
8 Opinion of the Court 22-10227
Additionally, the use of the word ‘unintentional’ is not
enough to bring the claim within coverage because, without facts
to support its claim, it is a conclusory buzz word meant to unlock
coverage. For these reasons, the amended demand does not allege
facts to support Qualpay’s belief that an embezzlement event re-
sulted in an unintentional breach of contract.
Because the underlying action seeks to recover for breach of
contract, and the amended language amounts to a conclusory
‘buzz word’ that infers Qualpay’s subjective belief, we AFFIRM.
AFFIRMED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482279/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
SANDRA R. GAVALDON, Petitioner/Appellee,
v.
JOSE G. GAVALDON, JR., Respondent/Appellant.
No. 1 CA-CV 22-0302 FC
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. FC2011-090133
The Honorable David E. McDowell, Judge
AFFIRMED
COUNSEL
Popp Law Firm, P.L.C., Tempe
By James S. Osborn Popp
Counsel for Petitioner/Appellee
Raymond S. Dietrich, PLC, Phoenix
By Raymond S. Dietrich
Counsel for Respondent/Appellant
GAVALDON v. GAVALDON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Peter B. Swann joined.
C R U Z, Judge:
¶1 Jose G. Gavaldon, Jr. (“Husband”) appeals the superior
court’s post-dissolution order in favor of Sandra R. Gavaldon (“Wife”) that
Husband’s undisclosed defined contribution savings plan be divided via a
qualified domestic relations order (“QDRO”). For the following reasons,
we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Husband and Wife divorced in 2012. In 2020, Wife petitioned
for entry of a QDRO against Husband’s Arizona Pipe Trades Pension Trust
Fund pension plan. The superior court ruled in favor of Wife and in early
2021 entered a QDRO against the pension plan.
¶3 Later that year, Wife contacted the administrator of the
pension plan about the QDRO and discovered that Husband also had an
Arizona Pipe Trades Defined Contribution savings plan (“savings plan”)
that she had been unaware of. Wife petitioned for division of the savings
plan as an omitted asset.
¶4 The superior court held an evidentiary hearing. The court
found Husband’s testimony that he had disclosed the savings plan to Wife
unpersuasive, found that the savings plan was an omitted asset, and
awarded Wife one-half of the community’s interest in the savings plan. The
court ordered the savings plan to be divided by a QDRO. It awarded Wife
attorneys’ fees and costs based on disparity of financial resources and the
unreasonableness of Husband’s position in the litigation. See Ariz. Rev.
Stat. (“A.R.S.”) section 25-324. Husband appealed, and after entry of a final
judgment, we have jurisdiction pursuant to A.R.S. § 12-2101(A)(2).
DISCUSSION
¶5 Husband argues the savings plan was not an omitted asset
under A.R.S. § 25-318(D) because the 2012 divorce decree awarded the plan
2
GAVALDON v. GAVALDON
Decision of the Court
to Husband. Husband argues the savings plan was his sole and separate
property because of a catchall clause in the decree, which provided:
Each party shall retain as his or her sole and separate property
any disclosed savings, checking or other financial account
held in that party’s name.
(Emphasis added.) The decree contained no express reference to the
savings plan. Nor was the savings plan mentioned in the superior court’s
pre-decree minute entry ruling, wherein the court ordered Husband’s
pension plan to be divided by a QDRO.
¶6 We review the superior court’s interpretation of a dissolution
decree de novo. Cohen v. Frey, 215 Ariz. 62, 66, ¶ 10 (App. 2007). We review
the superior court’s factual findings for clear error. Ahwatukee Custom Ests.
Mgmt. Ass’n v. Turner, 196 Ariz. 631, 634, ¶ 5 (App. 2000). The
determination of witness credibility and the resolution of conflicting
evidence are functions of the superior court. Lee v. Lee, 133 Ariz. 118, 123
(App. 1982).
¶7 The superior court may divide an asset omitted from a decree
of dissolution under A.R.S. § 25-318(D), which provides:
The community, joint tenancy and other property held in
common for which no provision is made in the decree shall
be from the date of the decree held by the parties as tenants in
common, each possessed of an undivided one-half interest.
¶8 Here, the superior court found that the savings plan was
omitted from the decree, and even if it was a “financial account” that could
be subject to the catchall provision, that provision did not apply because
the savings plan had not been disclosed to Wife. In making its
determination, the court accepted Wife’s testimony that Husband did not
disclose the savings plan and rejected Husband’s testimony that he did so.
We will not reweigh the conflicting evidence, and we defer to the superior
court’s credibility determination. See Hurd v. Hurd, 223 Ariz. 48, 52, ¶ 16
(App. 2009). We find no error in the superior court’s determination that the
savings plan was an omitted asset subject to post-decree division.
¶9 Husband argues the decree was unmodifiable because under
A.R.S. § 25-327(A), “[t]he provisions as to property disposition may not be
revoked or modified, unless the court finds the existence of conditions that
justify the reopening of a judgment under the laws of [Arizona].” Husband
suggests that because the superior court did not find “evidence of fraud,
3
GAVALDON v. GAVALDON
Decision of the Court
misrepresentation, or misconduct,” or “mistake or newly discovered
evidence,” the decree was unmodifiable. See Arizona Rule of Family Law
Procedure (“ARFLP”) 85(b). We disagree. Under ARFLP 85(b)(6), the
superior court may grant relief from final judgment for “any other reason
justifying relief.” And, as noted above, A.R.S. § 25-318(D) allows the
superior court to divide an asset omitted from a decree of dissolution. We
find no error.
¶10 Husband acknowledges that “A.R.S. § 25-318(D) does not
mandate a standard of proof,” but nevertheless argues the superior court
erred by applying a clear and convincing evidence standard of proof rather
than a preponderance of the evidence standard, noting “the superior court
required documentary evidence to prove disclosure of the annuity.” Even
if Husband did not waive this argument by failing to raise it in the superior
court, the record does not reflect that the superior court applied a higher
standard of proof or required documentary proof of disclosure. The
superior court properly reviewed the record for evidence of disclosure of
the savings plan and noted there was none other than Husband’s testimony,
which the court found “unpersuasive.” We find no error.
¶11 Finally, Husband argues Wife’s petition for division of the
savings plan is barred by laches. The superior court noted in its order that
Husband “cites no . . . equitable limitations arguments against division of
[the savings plan],” and “makes no argument that he has been prejudiced
by the late division of this omitted asset.” The record supports this
determination. Accordingly, Husband has waived his laches argument on
appeal. See Regal Homes, Inc. v. CNA Ins., 217 Ariz. 159, 171, ¶ 52 (App.
2007).
¶12 Wife requests attorneys’ fees pursuant to A.R.S. § 25-324. We
have considered the relative financial resources of the parties and the
reasonableness of the positions asserted on appeal. In the exercise of our
discretion, we grant Wife reasonable attorneys’ fees in addition to her costs
on appeal, upon compliance with ARCAP 21.
4
GAVALDON v. GAVALDON
Decision of the Court
CONCLUSION
¶13 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
5 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482278/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
CHARLES OSTERING, Petitioner/Appellant,
v.
LAURA OSTERING, Respondent/Appellee.
No. 1 CA-CV 19-0084 FC
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. FC2015-009673
The Honorable Kevin B. Wein, Judge
AFFIRMED IN PART; DISMISSED IN PART
COUNSEL
Charles Ostering, Litchfield Park
Petitioner/Appellant
Lincoln & Wenk, PLLC, Phoenix
By Michael A. Lincoln, Russell F. Wenk, Lisa Monnette
Counsel for Respondent/Appellee
OSTERING v. OSTERING
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Peter B. Swann joined.
C R U Z, Judge:
¶1 Charles Ostering (“Father”) appeals the superior court’s
orders modifying legal decision-making, parenting time, and child support
and denying motions for relief from monetary sanctions filed by Laura
Ostering (“Mother”). For the reasons below, we affirm in part and dismiss
in part.
FACTUAL AND PROCEDURAL HISTORY
¶2 Mother and Father were married in August 2008 and are
parents to three children, A.O., C.O., and Z.O. The parties were divorced
in February 2017 and granted joint legal decision-making, with Mother as
the primary residential parent and Father having parenting time every
weekend.
¶3 Five months after the court entered its decree, Mother
petitioned to enforce its orders and hold Father in contempt for failing to
comply. And six months and one day from the date the decree was filed,
Mother petitioned to modify legal decision-making, parenting time, and
child support, alleging Father’s behavior was unreasonable and made it
“impossible” for the parties to co-parent because Father “aggressively”
tried to override Mother’s wishes and harassed her with “inappropriate”
text messages and phone calls.
¶4 The court ordered the parties to attend post-decree mediation
to resolve the legal decision-making, parenting time, and child support
issues, and set an evidentiary hearing on the contempt allegations.
¶5 After the December 2017 evidentiary hearing, the superior
court found Father in contempt and ordered him to comply with the court’s
orders. Father petitioned for reconsideration, but the court denied Father’s
petition as “wholly unreasonable.”
¶6 Father continued sending Mother “inappropriate, harassing,
threatening, intimidating” emails, and Mother moved for monetary
2
OSTERING v. OSTERING
Decision of the Court
sanctions. The superior court held a hearing on Mother’s petition for
modification and motions for monetary sanctions. In its December 2018
order, the court awarded Mother sole legal decision-making authority and
Father temporary, supervised parenting time. The court did not resolve
attorneys’ fees and denied Mother’s motions for monetary sanctions.
¶7 Father timely appealed the December 2018 orders, but later
moved to stay his appeal for the superior court to rule on a parenting time
issue and attorneys’ fees. This court stayed Father’s appeal until the
superior court issued its June 2019 order resolving issues of parenting time
and child support arrears, as well as granting Mother a partial award of her
reasonable attorneys’ fees subject to her proper application for the same.
Father filed an amended notice of appeal following the June 2019 ruling.
The superior court then heard the remaining matter of Mother’s request for
attorneys’ fees and issued its final orders in July 2019. Father did not file a
notice of appeal after the superior court’s July 2019 ruling.
¶8 Separately, in July 2020, Father petitioned the court to modify
legal decision-making, parenting time, and child support. The superior
court entered temporary orders, held an evidentiary hearing, and in
November 2020 ordered the parties to share joint legal decision-making
with Mother having final authority. The parties were awarded equal
parenting time (one week on/one week off). Neither party appealed these
orders.
¶9 After delaying the matter for nearly three years, largely
because of Father’s bankruptcy proceedings, this court lifted its stay in
February 2022.
DISCUSSION
¶10 Father appeals the superior court’s December 2018 and June
2019 orders. “This court has an independent duty to examine whether we
have jurisdiction over matters on appeal.” Camasura v. Camasura, 238 Ariz.
179, 181, ¶ 5 (App. 2015). The superior court must have “fully resolved all
issues raised in a post-decree motion or petition before an appeal can be
taken.” Yee v. Yee, 251 Ariz. 71, 76, ¶ 14 (App. 2021). If the superior court’s
order resolves some but not all issues and does not contain finality language
under Arizona Rule of Family Law Procedure (“Rule”) 78(b), the order is
not final or appealable. Natale v. Natale, 234 Ariz. 507, 509, ¶ 9 (App. 2014).
“[A] notice of appeal filed in the absence of a final judgment . . . is ineffective
and a nullity.” Camasura, 238 Ariz. at 182, ¶ 9 (citation and internal
quotation marks omitted). The failure to file a notice within thirty days
3
OSTERING v. OSTERING
Decision of the Court
deprives this court of jurisdiction except to dismiss the attempted appeal.
James v. State, 215 Ariz. 182, 185, ¶ 11 (App. 2007); ARCAP 9(a).
¶11 The June 2019 order would be a final judgment if it disposed
of all claims, or the court had certified it as final under Rule 78(b). However,
that order did not resolve attorneys’ fees or contain Rule 78(b) language.
Because the order was not final or appealable, Father’s amended notice of
appeal was premature and a nullity, and we lack jurisdiction to entertain it.
See James, 215 Ariz. at 185, ¶ 11.
¶12 Father has preserved his objections as they relate to the
December 2018 orders, and we address them below.
I. Mother’s Petition to Modify Legal Decision-Making, Parenting
Time, and Child Support
¶13 Father first argues the superior court erred in “accepting and
not dismissing” Mother’s petition because (1) Mother petitioned the court
only six months after the decree, not after one year; (2) Mother did not file
an emergency petition or allege emergency bases; and (3) there was no
material change in circumstances. Father also makes numerous arguments
challenging the superior court’s best interests findings including that the
court (1) disregarded Father’s concerns about Mother’s boyfriend; (2)
disregarded the lack of domestic violence history; (3) gave no weight “to an
opinion submitted by an educated, trained licensed psychologist that
Father did not have violent tendencies”; (4) considered Father a threat with
no legal basis; and (5) abused its discretion in finding Father likely has some
level of mental illness and a forensically informed psychological evaluation
was in the children’s best interests.
¶14 As Mother notes in her brief, Father petitioned the superior
court in 2020 to modify legal decision-making, parenting time, and child
support after both the December 2018 and June 2019 orders. The superior
court ordered the parties to share joint legal decision-making with Mother
having final authority and equal parenting time (one week on/one week
off). Father’s challenges to the December 2018 order as they relate to
Mother’s petition are rendered moot by the court’s subsequent November
2020 orders. The appeal of these rulings is dismissed. See Cardoso v. Soldo,
230 Ariz. 614, 617, ¶ 5 (App. 2012) (this court generally dismisses an appeal
as moot “when our action as a reviewing court will have no effect on the
parties”) (citation omitted).
4
OSTERING v. OSTERING
Decision of the Court
II. Direct Payments
¶15 Father next argues the superior court erred in denying him
credit for payments he allegedly made directly to Mother, not through the
Clearinghouse. He also claims the court violated his constitutional rights
by excluding his trial exhibits proving the alleged payments.
¶16 These arguments flow from the superior court’s January 2018
order finding Father in contempt for failing to comply with the court’s child
support orders. Father again raised these arguments in his motion for
reconsideration, but the court found Father’s position “wholly
unreasonable.” Because Father failed to timely appeal from these rulings,
we lack jurisdiction to address them, and they are dismissed. See ARCAP
9(a).
III. Sanctions
¶17 Father argues the superior court erred when it (1) did not
consider Father’s ability to pay sanctions; (2) “sanctioned excessive fines”;
and (3) “did not reverse all sanctions levied against Father in this case.” It
is unclear which orders Father’s arguments reference. Father’s first two
arguments presumably relate to the January 2018 order in which the
superior court held Father in contempt and sanctioned him for failing to
comply with its orders. As stated above, see supra ¶ 16, Father failed to
timely appeal these rulings, and we lack jurisdiction to address them. See
ARCAP 9(a).
¶18 Father’s argument that the court should have “reversed all
sanctions levied against” him in this case presumably relates to the
December 2018 order. But the court did not sanction Father in this order.
And Father did not make this argument in the superior court. Father
instead requested the court lift liens so he could pay the sanctions in
installments. Because Father did not raise this argument below, he has
waived it on appeal. As such, we decline to address it further and affirm
the court’s judgment. See BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588,
593-94, ¶ 25 (App. 2021) (arguments not timely raised in the superior court
are waived on appeal) (citation omitted).
CONCLUSION
¶19 For the foregoing reasons, we affirm in part and dismiss in
part. Both parties have requested their attorneys’ fees and costs on appeal.
We have considered the relative financial resources of the parties and the
reasonableness of the positions asserted on appeal. See Arizona Revised
5
OSTERING v. OSTERING
Decision of the Court
Statutes section 25-324(A). In the exercise of our discretion, we grant
Mother a partial award of her reasonable attorneys’ fees and costs on
appeal, upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
6 | 01-04-2023 | 11-08-2022 |
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