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https://www.courtlistener.com/api/rest/v3/opinions/8482275/ | USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14405
Non-Argument Calendar
____________________
ROBERT KESSE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. 096-441-960
____________________
USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 2 of 6
2 Opinion of the Court 21-14405
Before WILSON, LUCK, and MARCUS, Circuit Judges.
PER CURIAM:
Robert Kesse, an Ivory Coast national proceeding through
counsel, seeks review of the Board of Immigration Appeals’ (“BIA”)
final order affirming the Immigration Judge’s (“IJ”) denial of his
motion to reopen his removal proceedings. Before he filed the mo-
tion to reopen, the IJ had granted him voluntary departure and en-
tered an alternate order of removal, but Kesse failed to depart by
the voluntary departure deadline. In the instant petition, Kesse ar-
gues that: (1) the penalties for failing to voluntarily depart -- which
make him ineligible for adjustment of status for 10 years -- do not
apply to him because the government failed to remove him after
he provided his plane ticket and luggage and signed a request for
travel documents; and (2) the BIA erred by determining that his
motion was untimely. After careful review, we deny the petition
for review.
I.
We only review the final BIA determination unless the BIA
expressly adopts the IJ’s decision or relies upon its reasoning. Tang
v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009). We have
an obligation to inquire into our own jurisdiction sua sponte, and
we review jurisdictional questions de novo. Lin v. U.S. Att’y Gen.,
881 F.3d 860, 866 (11th Cir. 2018). We lack jurisdiction to review a
BIA decision not to sua sponte reopen removal proceedings, but
USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 3 of 6
21-14405 Opinion of the Court 3
we can consider the denial of a motion to reopen pursuant to stat-
utory requirements, the BIA’s legal reasoning, and the sufficiency
of the decision. Id. at 871.
We review the denial of a motion to reopen removal pro-
ceedings for abuse of discretion, but review claims of legal error de
novo. Id. at 872. Eligibility for adjustment of status is a legal con-
clusion. See Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1197
n.14 (11th Cir. 2008). The BIA abuses its discretion if it exercises its
discretion arbitrarily or capriciously. Lin, 881 F.3d at 872. The
party moving to reopen bears a heavy burden because those mo-
tions are disfavored, especially in removal proceedings. Id. When
a movant seeks to adjust his status, the BIA has discretion to deny
the motion because he failed to establish a prima facie case of eligi-
bility for adjustment of status. Chacku v. U.S. Att’y Gen., 555 F.3d
1281, 1286 (11th Cir. 2008). The BIA generally cannot engage in de
novo factfinding on appeal. See 8 C.F.R. § 1003.1(d)(3).
We review whether the BIA afforded a petition reasoned
consideration de novo. Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333
(11th Cir. 2019). The BIA must consider the issues raised and an-
nounce its decision in terms sufficient to enable review. See In-
drawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015). We
have sustained reasoned consideration claims in three general cir-
cumstances: when the BIA (1) misstates the contents of the record,
(2) fails to adequately explain its rejection of logical conclusions, or
(3) provides justifications for its decision which are unreasonable
and unresponsive to arguments in the record. Ali, 931 F.3d at 1334.
USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 4 of 6
4 Opinion of the Court 21-14405
The BIA need not discuss all record evidence but must implicitly
or explicitly acknowledge highly relevant evidence that would
compel a different outcome absent discussion of the evidence. Id.;
Farah v. U.S. Att’y Gen., 12 F.4th 1312, 1329 (11th Cir. 2021).
A petitioner seeking review of a BIA decision abandons is-
sues not raised in his brief on appeal. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005). We can consider an aban-
doned issue sua sponte only if a forfeiture exception applies and
extraordinary circumstances warrant review. United States v.
Campbell, 26 F.4th 860, 873 (11th Cir.) (en banc), cert. denied, 2022
WL 4651666 (Oct. 3, 2022).
II.
We are unpersuaded by Kesse’s argument that the BIA
abused its discretion in concluding that he had not established that
his failure to depart was involuntary. An alien who is granted vol-
untary departure but voluntarily fails to depart within the allotted
time is ineligible for adjustment of status pursuant to the Immigra-
tion and Nationality Act (“INA”), 8 U.S.C. § 1255(a), as well as other
forms of relief, for 10 years. 8 U.S.C. § 1229c(d)(1)(B). The BIA has
concluded that, under the “voluntariness exception,” an alien who
is physically unable to depart through no fault of his own is not
subject to the penalty for failing to depart. In re Zmijewska, 24
I&N Dec. 87, 94 (BIA 2007). As a condition of voluntary departure
prior to the completion of removal proceedings, an alien must pre-
sent the Department of Homeland Security (“DHS”) his passport
or other travel document sufficient to assure entry into the country
USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 5 of 6
21-14405 Opinion of the Court 5
to which he is departing unless a travel document is unnecessary
or the DHS already possesses the document. 8 C.F.R. §
1240.26(b)(3)(i).
Here, the BIA did not abuse its discretion in concluding that
Kesse failed to show that his failure to depart was involuntary and,
therefore, that he failed to establish a prima facie case of eligibility
for removal. See Chacku, 555 F.3d at 1286; Alvarez-Acosta, 524
F.3d at 1197 n.14; 8 U.S.C. § 1229c(d)(1)(B). As we’ve explained,
Kesse sought to show that the penalties for failing to voluntarily
depart -- which include making him ineligible for adjustment of sta-
tus for 10 years -- did not apply to him. In order to do so, he needed
to provide the DHS with a travel document sufficient to assure his
entry into the Ivory Coast. 8 C.F.R. § 1240.26(b)(3)(i).
But, as the record reflects, Kesse only offered as evidence an
expired passport, tickets to fly to the Ivory Coast, and a post-dead-
line e-mail from his counsel to ICE asking for his removal to be
expedited. He also said in his motion that his counsel had delivered
his ticket and luggage to ICE, and the record indicated that he was
detained. These materials -- and, in particular, the expired passport
-- were insufficient to establish a prima facie case of eligibility for
removal. See id. As for his claim that he signed a request for a
travel document from the Ivory Coast’s embassy, we can find noth-
ing in the record to support it.
As for the BIA’s refusal to consider new evidence Kesse of-
fered on appeal, this decision was proper, and, in any event, he has
abandoned any challenge to that refusal. See 8 C.F.R. §
USCA11 Case: 21-14405 Date Filed: 11/08/2022 Page: 6 of 6
6 Opinion of the Court 21-14405
1003.1(d)(3); Sepulveda, 401 F.3d at 1228 n.2. He also has aban-
doned any argument that the BIA failed to afford him reasoned
consideration and, again, the record reveals that the BIA suffi-
ciently considered the issue of voluntariness. See Sepulveda, 401
F.3d at 1228 n.2. Finally, because we conclude that the BIA did not
abuse its discretion in affirming the IJ’s denial of his motion to reo-
pen his removal proceedings, we need not address whether the mo-
tion was untimely.
PETITION DENIED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482274/ | USCA11 Case: 22-10026 Date Filed: 11/08/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10026
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MARCELO TEALDI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cr-20271-KMW-1
____________________
USCA11 Case: 22-10026 Date Filed: 11/08/2022 Page: 2 of 5
2 Opinion of the Court 22-10026
Before LUCK, LAGOA, and MARCUS, Circuit Judges.
PER CURIAM:
Carlos Marcelo Tealdi appeals his 72-month sentence for
possession of child pornography, which was a downward variance
from the guideline range of 78 to 97 months. Tealdi argues that his
sentence was substantively unreasonable because the district court
focused solely on the nature of the offense and failed to consider
his personal circumstances, like his age and low likelihood of recid-
ivism. After thorough review, we affirm.
We review the sentence a district court imposes for “reason-
ableness,” which “merely asks whether the trial court abused its
discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).
When reviewing for substantive reasonableness, we consider the
“‘totality of the circumstances.’” Id. at 1190 (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). The party challenging the sentence
bears the burden of establishing that it is unreasonable. United
States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018).
The district court must impose a sentence “sufficient, but
not greater than necessary to comply with the purposes” listed in
18 U.S.C. § 3553(a). 1 The court must consider all of the § 3553(a)
1 The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the sen-
tence imposed to reflect the seriousness of the offense, to promote respect for
USCA11 Case: 22-10026 Date Filed: 11/08/2022 Page: 3 of 5
22-10026 Opinion of the Court 3
factors, but it may give greater weight to some factors over others
-- a decision which is within its sound discretion. United States v.
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). The district
court is not required to discuss each of the § 3553(a) factors, and an
acknowledgement that it has considered the § 3553(a) factors will
suffice. United States v. Turner, 474 F.3d 1265, 1281 (11th Cir.
2007).
A sentence may be substantively unreasonable when a court
(1) fails to consider relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper facts. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc). However, a sentence that suffers from one of
these symptoms is not per se unreasonable; rather, we must exam-
ine the totality of the circumstances to determine the sentence’s
reasonableness. Pugh, 515 F.3d at 1192. “[W]e will not second
guess the weight (or lack thereof) that the [court] accorded to a
given [§ 3553(a)] factor . . . as long as the sentence ultimately im-
posed is reasonable in light of all the circumstances presented.”
United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010)
the law, and to provide just punishment for the offense; (3) the need for the
sentence imposed to afford adequate deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the pertinent policy statements of the Sentencing Com-
mission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims. 18 U.S.C. § 3553(a).
USCA11 Case: 22-10026 Date Filed: 11/08/2022 Page: 4 of 5
4 Opinion of the Court 22-10026
(quotation, alteration and emphasis omitted). We will vacate a
sentence only if we are left with the “definite and firm” conviction
that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that is out-
side the range of reasonable sentences dictated by the facts of the
case. Pugh, 515 F.3d at 1191.
While we do not presume that a sentence within the guide-
line range is reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Cabezas-Montano, 949 F.3d 567, 611
(11th Cir. 2020). Another indicator of a reasonable sentence is one
that is well below the statutory maximum for the crime. United
States v. Dougherty, 754 F.3d 1353, 1364 (11th Cir. 2014).
Here, Tealdi’s below-guidelines sentence was not substan-
tively unreasonable. As the record reflects, the district said that it
considered the parties’ arguments, the presentence investigation
report, the advisory guidelines, and the § 3553(a) factors. We can
discern nothing in the record suggesting that the court failed to
consider any relevant factors, nor that it considered any improper
factors, nor that it otherwise committed a clear error of judgment.
See Irey, 612 F.3d at 1189.
As for Tealdi’s claim that the court did not consider his per-
sonal characteristics, the court expressly considered Tealdi’s age,
the fact that he will face deportation upon being released from
prison, and that he was incarcerated throughout the COVID-19
pandemic. The court balanced these considerations with other rel-
evant factors, including the seriousness of the offense and other
USCA11 Case: 22-10026 Date Filed: 11/08/2022 Page: 5 of 5
22-10026 Opinion of the Court 5
personal characteristics, like Tealdi’s limited support network and
the questionable accuracy of the sex-offender risk assessment.
Indeed, while Tealdi adds that the district court did not give
adequate weight to Dr. Brannon’s opinion that Tealdi had a low
risk of reoffending, the record reveals that the court did consider
this evidence. However, the court also noted that Tealdi possessed
several TrueCrypt containers -- special encrypted folders used to
prevent others from gaining access to the information within -- for
which Tealdi refused to provide the passwords. Based on this evi-
dence, the district court observed that there was a “clear indication
that contraband is on them,” which meant that the risk assessment
could easily have given a much different result if the contents of
the TrueCrypt containers were fully known. This discussion
shows that the court considered the expert witness testimony but
prescribed it lesser weight than other factors -- something the court
has full discretion to do. Rosales-Bruno, 789 F.3d at 1254.
In short, Tealdi has not shown that the district court com-
mitted a clear error of judgment in concluding that only a slight
downward variance was warranted when weighing the nature of
the offense and the time he had been viewing the material, against
Tealdi’s personal characteristics. Moreover, the court imposed a
sentence below the guideline range and well below the statutory
maximum of 240 months -- two factors that indicate that the sen-
tence is reasonable. Cabezas-Montano, 949 F.3d at 611;
Dougherty, 754 F.3d at 1364.
AFFIRMED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486763/ | OPINION AND ORDER
(Trial Phase I)
Leapagatele Kesi (“Leapaga”), as the sa 'o (head chief) of plaintiff Leapagatele Family (“Leapaga family”), commenced this prolonged litigation in 1991 when he filed LT No. 10-91. Leapaga later died and was replaced by the three family members, the plaintiffs now named as individuals in the case caption. Isumu Leapagatele (“Isumu”) and defendant Isumu’s Children (“Isumu’s children”), along with several other individuals, were the original defendants in LT No. 10-91. Isumu also died, leaving his children as the defendants representing his and their interests.
LT No. 33-95 and LT No. 35-95 were also filed, and the three actions were consolidated. Thus, as the litigation progressed, numerous other individuals and entities were added as defendants in LT No. 10-91 or as parties to the other two actions.
Leapaga initiated LT No, 10-91 to set aside the registration by the Territorial Registrar on January 11, 1972, of land named “Leatuvai,” *326consisting of approximately 12.696 acres, in the Village of Nu'uuli, American Samoa, as individually owned land of Isumu and Isumu’s children, and to quiet title to the same land, surveyed as approximately 13.190 acres and registered on October 15, 1950, as the communal land of the Paepaeuli family. The 1950 registration was ordered by this Court in Maluia v. Isumu, 2 A.S.R. 557 (Trial Div. 1950). The title issue framed in LT No. 10-91 is central to the full determination of these actions. Isumu and Isumu’s children entered numerous transactions involving the land with other persons, whose rights in the land are dependent on the title held by Isumu or Isumu’s children at the time of their respective transactions.
The transactions by Isumu and Isumu’s children with third persons are appropriately included in this litigation. However, they made management of the trial complex and unwieldy. Therefore, we ordered a separate trial on the underlying title issue. The parties and their counsel identified in the counsel section at the head of this decision were the active participants in the trial.
Facts
Isumu began to clear and cultivate this land in support of his immediate family many years ago. In Maluia, Isumu maintained that he started to work the land in 1929. He also admitted that he was on the land with his father Leapaga Tapili’s permission. Leapaga Tapili was the Leapaga family’s sa'o from 1906 until 1940. He claimed, in Maluia, that he authorized Isumu to cultivate the land but not until 1947. However, Leapaga Tapili was elderly and feeble at the time of Maluia. He had also resigned from the Leapaga title and been replaced by Leapaga Masunu in 1940. Some evidence in Maluia also indicated that Isumu’s grandfather Faitala, evidently an untitled member of the Leapaga family, acquired the land and gave it to Leapaga Tapili at some earlier time. This at least suggests that Leapaga Tapili had individual ownership of the land to pass on to Isumu. In light of all these factors, however, we are persuaded that Isumu first went on the land by permissive occupancy, at some juncture during the portion of Leapaga Tapili’s tenure as the Leapaga family’s sa'o from 1929 until 1940.
In 1949, Isumu had the land surveyed and offered to register it as his individually owned land. Six objectors came forth. The matter was adjudicated in Maluia. Isumu emphatically testified during the trial in Maluia that he individually owned the land. The Court found, however, that the land was communal land, and that Isumu was on the land under the authority of his father Leapaga Tapili as the sa'o of the Leapaga family. The Court also found the existence of the Paepaeuli family of Nu'uuli, comprised of six matai (chiefs) who participated in the action *327and were identified as the Lavata'i, Maluia, Leapaga, Fagaima, Taumua, and Tonu titles. On this basis, the Maluia Court held that the land was communal land of the Paepaeuli family. On October 15, 1950, the land was registered as the Paepaeuli family’s communal land by court order.
Clearly, however, based on the evidence in the present case, there is no Paepaeuli family of Nu'uuli. The Lavata'i, Maluia, and Leapaga are matai titles from Nu'uuli. The Fagaima title is -from the Village of Tafuna. Taumua and Tonu are not known matai titles, and apparently the persons so named in Maluia were actually untitled members of presently unknown families. “Paepaeuli” is the name associated with the site of the Leapaga guest house.
We also note that in Maluia, the holder of the Puailoa title of Nu'uuli claimed the land through cultivation by his family’s members. The Court found, however, that the Puailoa cultivation was outside the land, but noted that the Puailoa family probably had communally owned land nearby. This fact, along with evidence in this case, is indicative of communal land surrounding the land. On the other hand, there is also other adjacent individually owned land.
Because of Leapaga Tapili’s assignment to Isumu, the Court in Maluia also permitted Isumu to maintain his plantations on the land. Isumu continued to occupy and use the land without objection or interference by the sa 'o or members of the Leapaga or any other family for the next 20 years. While the evidence in Maluia showed that the persons held to be the matai of the fictitious Paepaeuli family cultivated portions of the land along with Isumu prior to 1950, no one else from the families in the Paepaeuli group, or any other family, used the land between 1950 and 1970. It appears that Isumu and his family exclusively used the land during this period.
In 1971, Isumu again had the land surveyed and, this time, offered it for registration as the individually owned land of himself and his children. The offer underwent the statutory registration process, no one objected, and the land was registered on January 11, 1972, as the individually owned land of Isumu and Isumu’s children.
The parties contested whether Isumu had identical lands surveyed in 1950 and 1971. They presented considerable evidence on this issue. We are persuaded that both surveys are of the same land and will not dwell on this evidence in great detail. The total areas of each survey are certainly not quite the same, approximately 13.190 acres in 1950 and approximately 12.696 acres in 1971, a difference of about 0.494 of an acre. However, each survey was done by a different surveyor who may have used slightly different techniques. Moreover, Magnetic North was *328used in surveys prior to 1962, when the present Datum system and True North were introduced in the territory. These factors can readily result in somewhat different surveys of the same land. In addition, the land in each survey has substantially the same boundary configuration and is in the same location in the field. The only significant difference is the jog appearing along the portion of the southerly boundary near the southwesterly comer in the 1950 survey, as distinguished by a generally straight southerly boundary in the 1971 survey. Finally, the only professional surveyor who testified opined that the land was essentially the same in each survey, and we find that he used sound methods and analysis in reaching this opinion.
Clearly, following the registration in the name of Isumu and Isumu’s children as individually owned land in 1972, Isumu and his family continued to occupy and use the land consistently with the authority purportedly established by the registration. He sold subdivided portions of the land to third parties, who or whose successors are parties to this litigation. He actually began this activity as early as 1950 and continued to enter these transactions up to 1999. One of his daughters entered additional transactions even after LT No. 10-99 was filed. The specific circumstances of these transactions are not relevant, however, to determination of the immediate title issue and, therefore, are not yet in evidence. Those findings will wait until trial of the separated issues becomes necessary.
Isumu also permitted other persons in his family to live on the land. In 1973, he allowed his then wife’s relatives to live there, and in 1977, he signed a separation agreement for their residence. However, after his wife died and he remarried, his new wife and former wife’s relatives could not get along harmoniously, and eventually Isumu successfully evicted the relatives on the ground that they were on the land under a terminable license. See generally Isumu v. Palaia, 12 A.S.R.2d 98 (Land & Titles Div. 1989). The evidence even indicates that Leapaga himself sought Isumu’s permission on occasion to harvest produce from the land.
Again, following Isumu’s registration in early 1972, no other Leapaga family member, or anyone else without Isumu’s permission, ever occupied and used the land. Also, no one carried out any objection to the recorded title and presence of Isumu and Isumu’s children, or to others’ occupancy and use of the land by Isumu’s subdivision sales or authorizations until LT No. 10-91 was filed in 1991, approximately 20 years later. Only one aborted effort was made when, in 1978, Leapaga and another family member made but then abandoned an objection to a separation agreement signed by Isumu. See generally Isumu v. Leapaga, LT No. 40-78, slip op. (Land & Titles Div. 1978).
*329Finally, we point out that Isumu did not provide much, if any, tautua (traditional service) to the Leapaga title for many years. Based on the evidence in Maluia, he ceased to render tautua in 1948 or 1949. It also appears that after 1938 or 1939, Isumu no longer extensively participated in the Leapaga family’s affairs, and may not even have served his father Leapaga Tapili, or Leapaga Masunu, who ascended to the title in 1940, according to Samoan traditions. Isumu certainly did not serve his brother Leapaga, who took over the title in 1958. Leapaga and Isumu had a particularly confrontational personal relationship. See generally Randall v. Leapaga, 25 A.S.R.2d 90 (Land & Titles Div. 1993).
Discussion
Based on the foregoing findings of fact and the. discussion on the following legal issues genuinely raised by these proceedings, we conclude that the Isumu and Isumu’s children originally, and now Isumu’s children, own the land as individually owned land.
A. Maluia is not Rea Judicata
The doctrine of res judicata is a primary issue in this case.- Res judicata holds that a final judgment on the merits in an action bars a later action involving the same parties, or their privies, and the same issues. See Taulago v. Patea, 4 A.S.R.2d 186-87 (Land & Titles Div. 1987); Te'o v. Estate of Sotoa, 5 A.S.R.2d 80, 97 (Land & Titles Div. 1987), aff’d Estate of Sotoa v. Te'o, 8 A.S.R.2d 165, 169 (App. Div. 1988). The policy is aimed at curtailing multiple, vexatious and expensive litigation and wasted judicial resources. 46 AM. JUR. 2D Judgments § 515 (2000).
The judgment in Maluia held that the land then at issue was the communal land of the Paepaeuli family of Nu'uuli and directed that the title be so registered. The parties in this action strenuously put at issue whether ownership of the land adjudicated in Maluia was the same land at issue in this action. The land as litigated in 1950 in Maluia and then registered was not exactly the same size as the land litigated in this action. The land in the survey presented in Maluia and registered in 1950 was approximately 0.494 of an acre greater in area than the land registered by Isumu without objection in 1972 and now litigated for ownership in this action. However, the configuration of the land, except partially along one boundary, was virtually the same in both lawsuits. A professional surveyor studied available surveys and related information and is certain that both registrations are of essentially identical land areas. The physical differences are, therefore, immaterial for purposes of applying the res judicata doctrine. We conclude that issue preclusion is present.
*330The common identity of the parties or their privies, however, is another matter. Isumu was a party in both Maluia and the present action. His children, parties in this action, are his privies for res judicata purposes. The opposing parties in both cases are, however, a different matter.
The Court in Maluia adjudicated title to the land as the communal land of the Paepaeuli family of Nu'uuli, comprised of six matai who had cultivated portions of the land. The Court appeared to hold that the six identified members of this family owned undivided shares in the land in the nature of tenancy-in-common interests. Three of the named matai were sa 'o of distinct families in Nu'uuli. One was the sa 'o of a family from Tafuna. The remaining two persons were not titleholders. The Paepaeuli family does not exist in fact. In essence, the Court created a fictitious family that was inconsistent with usual Samoan customs pertaining to families and villages. While it is true that the holder of the Leapaga title was one of the six members, the court did not recognize his claim over the land, except in common with the other five members. The interests of the six members in common in Maluia were distinct from the interests of the Leapaga family in this case. We therefore conclude that the judgment in Maluia does not provide party preclusion for purposes of the issue of ownership of the land in the present litigation.
B. Tsumu Adversely Possessed the, Land
The Leapaga family, represented by the three named plaintiffs who are family members replacing the deceased Leapaga, claims that the land is the Leapaga family’s communal land. Their claim is entitled to a presumption favoring communal ownership of land in American Samoa. Leota v. Faurnuina, 4 A.S.R.2d 11, 13 (App. Div. 1987).
The presence of surrounding communal land is sometimes mentioned in support of the presumption. Avegalio v. Leatuinauga, 18 A.S.R.2d 9, 11 (Land & Titles Div. 1991). In this case, however, both communal land and individually owned land are adjacent to the land.
Beyond the presumption, the named plaintiffs’ claim is based in part on Maluia, even though the judgment in that case held that the fictitious Paepaeuli family, not the Leapaga family, owned the land as communal land. The resulting title registration is still in the name of the Paepaeuli family. Nonetheless, the court in Maluia found that Isumu occupied and cultivated the land under Leapaga Tapili’s authority, indicative of the Leapaga family’s communal ownership. Moreover, though Isumu claimed in Maluia that he cleared the land from virgin bush, he also admitted that he occupied the land by his sa'o’s designation. Additionally, the present holder of the Maluia title testified that the land is the Leapaga family’s communal land.
*331It appears that the Leapaga family has a legitimate claim to communal ownership of the land. We acknowledge that a family member usually cannot adversely possess an assigned portion of his family’s 'communal land and acquire individual title to the land in this manner. See Reid v. Puailoa, 1 A.S.R.2d 85, 88 (Land & Titles Div. 1983) (stating that a family member cannot adversely possess communal land). The Reid pronouncement, however, was dictum. This Court has recognized that a family member can acquire title to his family’s communal land by adverse possession for 30 years, as provided by A.S.C.A. § 37.0120. Ava v. Logoai, 19 A.S.R.2d 75, 77 (Land & Titles Div. 1991); Puailoa v. Estate of Lagafuaina, 11 A.S.R.2d 54, 74 (Land & Titles Div. 1989).
Possession is adverse if it is exclusive, continuous, open, notorious, and hostile to another person’s ownership for the 30-year statutory period. Magalei v. Atualevao, 19 A.S.R.2d 86, 92, 94-95 (Land & Titles Div. 1991). However, a family member cannot adversely possess his family’s communal land unless he first gives actual notice to other family members that he claims individual ownership of the land. Tuanaitau v. Paogofie, 4 A.S.R. 875, 881 (Trial Div. 1963).
During the trial in Maluia, if not before, Isumu through his testimony made it abundantly clear to his father Leapaga Tapili and Leapaga Masunu, then the family sa 'o, that he claimed the land as his individually owned land. He thus gave actual notice to the Leapaga family of his ownership claim. Both before the trial, and certainly from that time forward, Isumu and his immediate family occupied and used the land without any contrary occupancy or other interference by other members of the Leapaga family. He and his family possessed the land exclusively, continuously, openly, notoriously, and hostilély to the Leapaga family’s claim of ownership. Isumu adversely possessed the land far in excess of the required 30-year period — approximately 41 years from 1950 until LT No. 10-99 was filed in 1991. This is a classic case of adverse possession of the land by Isumu and his family as individually owned land against the Leapaga family’s claim to the land as communal land. We conclude that as opposed to the Leapaga family, Isumu acquired title to the land by adverse possession, and Isumu’s children as his successors retain that title.
C. Separate Issue: The Surveyor’s Compensation
Lawrence P. French (“French”), a professional surveyor, was retained by the plaintiffs presently named in LT No. 10-99 to perform necessary professional survey services in the preparation for the trial of this action. On the day trial began, French requested postponement until the unpaid balance of his professional fees were paid. We denied the request but indicated we would order the named plaintiffs to pay the outstanding *332amount.
French charged $2,840.00 for his services. His work was substantial and well done, and his fee is reasonable. As of the time of the trial, the named plaintiffs had paid him $1,805.00, leaving an unpaid balance of $1,035.00. Mr. French is entitled to payment of the unpaid balance.
Order
1. Isumu Leapagatele and his children own the land named “Leatuvai,” consisting of approximately 12.696 acres, in the Village of Nu'uuli, as their individually owned land.
2. The registration of the land in the name of “ISUMU LEAPAGA & CHILDREN (AS THEIR INDIVIDUALLY-OWNED LAND)” on January 7, 1972, in the Territorial Registrar’ Office, is validated and remains in full force and effect.
3. The registration of the land named “Leatuvai” and consisting of approximately 13.190 acres in the Village of Nu'uuli in the name of the “Paepaeuli Family”, as that fictitious family’s communal land, on October 15, 1950; in the Territorial Registrar’s Office, is voided.
4. The named plaintiffs, Tusipasi Tiapula, Savaliga Masunu, and Kolopa P. Tuiasosopo shall pay $1,035.00, the unpaid fees for professional surveyor services, to L.P. French Professional Services, Inc. Payment shall be made immediately, unless there is agreement on an alternative payment plan. Payment of the surveyor’s fee is in addition to payment of usual costs of suit.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486764/ | OPINION AND ORDER
This case is but yet another sad chapter in what unfortunately has been an ongoing, longstanding contest between two family factions, apparently unrelated by blood but tied to a common matai title, Fanene, attached to the village of Pago Pago. The Fanene title today has two holders, one from each faction; however, the village of Pago Pago has been neither *334prepared to recognize nor accept the Fanene- title as a split title. Consequently, this state of affairs has begotten its own parade of practical problems since there is only one Fanene title cognizant within the traditional village polity.1
To compound difficulties, court decisions have declared that certain Fanene family land known as Lalopua, at issue before us now, is exclusively owned by one of these Fanene factions, although in part occupied by the other for many years. The faction asserting ownership is seeking to oust or evict the other.
Discussion
The modem day situation with the Fanene family of Pago Pago has in large part been the product of a tortuous evolutionary process generated not through customary Samoan development, but by operation of law within the imported legal framework.
A. Split Matai Titles & Communal Factionalism
For reasons now clouded with time, two persons were permitted to first register the Fanene matai title in 1906, when the then newly established U.S. Naval government first began to regulate matai title registration. The origin of dual Fanene titleholders was alluded to in testimony given and discussed in Taofi v. Foster, 1 A.S.R. 464 (Trial Div. 1932). It appears that at some time prior, there were two factions that had also emerged within the Mauga family of Pago Pago, each -with its own titleholder — a Mauga Manuma and a Mauga Lei. Id. at 465. Each- of these Mauga appointed his own Fanene. Fanene Tavai and Fanene Mataumu respectively. Id. It further appears that from this precedent, dual Fanene title-holders have persisted. Our review of the cases reveals that principally because of the fact of dual registration in 1906, the Court in 1965 determined that the Fanene title was a “split title” between two unrelated Fanene family groups, and thereby affirmed the registration of a second titleholder in Fanene Filo v. Vaoalii K. Fanene, 4 A.S.R. 603 *335(Trial Div. 1965), hereafter “the 1965 split title decision.”2 Ironically, however, the Court early arrested the notion, and any development, of dual Mauga titleholders. Thus in 1913, the Court in Mauga v. Taelase, 1 A.S.R. 276 (Trial Div. 1913), declared that the Mauga title was not a split title for division among multiple titleholders because it would, among other things, destroy the prestige and dignity of the great title. This was later affirmed in In re Matai Title Mauga, 4 A.S.R. 132, 140 (Lands & Title Div. 1971) (“We are reversing our decision in Tauvevematalilo [sanctioning split titles] since upon reconsideration it was ill-advised and in substantial derogation of Samoan custom”).
The upshot of these court decisions is undeniably the following: the attempted splitting of the Mauga title, which in turn gave rise to the creation of split Fanene titles, was stifled by judicial fiat while its Fanene split-title spin off was not only left undisturbed, but given the Court’s imprimatur. The Court has thus seemingly given inconsistent effect to fa'a Samoa.
B. T-and T,a1opna
We next note that in 1932 the Court, in Taofi v. Foster, had awarded the Fanene title to Filo Foster, plaintiff Fanene Scanlan’s predecessor in title. See generally 1 A.S.R. 464 (Trial Div. 1932). Filo then singularly held the Fanene title for a period of thirty-three years until, as we have seen, the Court in the 1965 split title decision allowed a Vaoali'i K.. Fanene (defendant Fanene Kava’s predecessor in title) to be registered as a second Fanene titleholder.
While Filo alone held the Fanene title, he offered Lalopua for registration, on October 11, 1944, as the communal property of “the Fanene family.” This offer to register not only attracted a third-party counter-claim, from the Mauga family, but also a counter-claim from within the Fanene family from one Taofi, the same individual who vied with Filo for the Fanene title in the 1932 case. Taofi attempted to claim Lalopua as his “individually-owned” land, and the resulting land dispute came before the Court in 1945 as Taofi v. Fanene, 2 A.S.R. 197 (Trial Div. 1945), hereafter “the 1945 Lalopua land case.” The Court, not surprisingly, found in favor of the extended family and against the individual family member (as well as against the third-party claimant).3
*336C. Split Titles & Factional Communal Ownership
In 1971, the Land and Titles Division further took up the issue of Lalopua and redefined the scope of the 1945 Lalopua land case’s holding — that the land belonged to the Fanene family — by declaring that Lalopua was owned by the Fanene Filo faction of the family, to the exclusion of Fanene Tauveve’s (defendant Fanene Kava’s predecessor in interest) faction. Fanene Foster for Herman Scanlan v. Fetaiaiga T. Fanene, LT No. 1089 & Fanene Foster & Richard Foster v. Tauveve Fanene, LT No. 1154 (Consolidated), (Land & Titles Div. 1971) (Findings of Facts and Judgment, entered Nov. 1, 1971) (hereinafter LT Nos. 1089 & 1154). The Court therefore further held that pule lay with the mate! of Fanene Filo’s branch.
Without regard to Samoan realities, the 1971 Court in its cursorily worded opinion simply arrived at these conclusions by first taking “judicial notice” of and then “re-affirm[ing],” without elaboration, “pertinent portions of the Court’s decision in the 8-1932 (Foster, 1 A.S.R. 464) and 20-1945 (the Lalopua land decision) cases between these two families.” LT Nos. 1089 & 1154, slip op. at 4. Seven months after, and apparently realizing that parts of Lalopua were being occupied by Fanene Kava’s side of the family, the 1971 Court felt constrained to add, by way of separate addendum, that those members of the other side of the family occupying Lalopua—viz., Fetaiaiga Kava, now the present defendant Fanene F. Kava, and her children — could nonetheless remain on Lalopua as long as they rendered tautua (the obligation of rendering traditional service) to the holder of pule. See generally Fanene Foster for Herman Scanlan v. Fanene, 4 A.S.R. 66 (Land & Titles Div. 1972). The only attempt at explanation given by the Court for the addendum" was “inadvertence and clerical error.” Id. at 67. Otherwise the reader is provided neither rhyme nor reason for this belated amendment.
Intuitively, at least, the result seems only fair, but the underlying reasoning is conspicuously absent while the Court’s premise remains baffling. Quite clearly, the Court, after apparently realizing the harshness of disentitling family members from family lands, had effectively attempted to mitigate matters by ready resort to equity without explanation. But by doing so, the Court has also effectively turned *337Samoan custom on its head, with the cumulative outcome of case development being the anomaly of a Samoan family split into two,4 each with its own titleholder, and with one branch declared landless and owing tautua to the other. This incongment state of affairs has, not surprisingly, proven to be a recipe for enduring turmoil and discontent.5
D. T ,T No 1089 and 1154 Holdings and T.and Ownership
The 1971 Court, in our view, read too much into 8-1932 (Taofi v. Foster, 1 A.S.R. 464) and 20-1945 (the Lalopua land decision) in order to find a basis for its conclusion that Lalopua was owned only by the Fanene Filo faction of the family. First, Taofi v. Foster was a matai title contest The issue here had nothing to do with landholding and the matai court had absolutely nothing to do with Lalopua.
Second, the 1945 Lalopua land case Court specifically found that “the true owner of the property in question is the Fanene family and Fanene Filo, as the matai of this family is entitled to register this land as communal land owned by him as the matai of the family.” 2 A.S.R. at 200 (emphasis added).
Noteworthy with the Lalopua land case is the fact that the land Lalopua was offered for registration by Filo not as the communal land of Fanene Filo’s side of the family, but as the communal land of the Fanene family. Additionally, and to put the 1945 case in proper perspective, there was, at the time, only one Fanene family- — the family was not split until the 1965 split title decision — and one Fanene titleholder, Fanene Filo who represented the whole Fanene family. Support for this finding — that Fanene Filo was representing the whole Fanene family, as opposed to only one faction of the family — is to be found in the .records of the 1965 split title decision as well as in Fanene Filo v. Tauveve L. Fanene, LT No. 1035 (Trial Div. 1970), wherein both instances Fanene Filo vigorously objected to the proposition that the Fanene title was a split title. Therefore, when Filo offered Lalopua for registration in 1944, he was operating under the premise that the family was not a split family, and thus in 1944, he was representing all of the Fanene family. The issue of factionalism was neither before the court in 1945 nor anywhere within *338its contemplation. Nowhere within the 1945 Court’s judgment is there even the slightest hint of factional ownership of Lalopua.
Moreover, the 1971 Court’s conclusions in LT Nos. 1089 and 1154 are in stark contrast with our treatment of other, albeit isolated, “split”, title cases, where family lands were accorded corresponding “split” effect in accordance with factional usage. For example, the matai title Mulitauaopele of Lauli'i has had two titleholders from two unrelated family groups “for at least a hundred years.” In re Matai Title Mulitauaopele, 16 A.S.R.2d 63, 69 (Land & Titles Div. 1990). In rejecting an attempt by one of the Mulitauaopele family lines to unify the title by seeking to abolish the other line’s claim, the Court not only gave effect to the fact that “the two families have different lands,” but went on to say that “it would be contrary to Samoan custom for them to . . . choose a single title holder with pule over both families’ lands.” Id. at 68.
Lastly, the consequence of the holdings in LT Nos. 1089 and 1154 is the rather peculiar, if not farcical, situation of a matai title co-holder owing his peer the subservient obligation of tautua, an obligation which in the normal course runs from a family member to the family sa 'o or senior matai. An even more curious consequence of the LT Nos. 1089 and 1154 holdings is the resulting situation of a Samoan family cognizant at law with a registerable matai title, but no communal lands; a state of affairs which simply cannot be reconciled with the truism that “the Samoan way of life has twin cornerstones, the matai system and communal land tenure.” Fairholt v. Aulava, 1 A.S.R.2d 73, 78 (Land & Titles Div. 1983) (emphasis added).
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 the matai.
Lavata'i v. Pen, 30 A.S.R.2d 10, 15 (App. Div. 1996) (quoting Tavai v. Silao, 2 A.S.R.2d 1, 2 (Land & Titles Div). 1983)) (emphasis added). In Lavata'i, the Appellate Division further alluded to the constitutionally mandated policy of protective legislation requiring the courts to interpret statutes in a way which is protective of the Samoan custom. Id. at 16; see also Am. Samoa Rev. const, art. I, § 3. What we have seen here, however, is that the matai registration enactment has been, at least as far as the Fanene family has been concerned, somehow given effect to divide a once united family to the point that with subsequent case development, one branch of that family has been disenfranchised with respect to family land. Thus without communal land, or entitlement to land, what *339essentially befalls the defendant’s side of the family is the suggestion that one of its traditional foundations — cornerstones—is rendered legally non-existent.
We are loath to continue upholding this aberrant view of Samoan custom. Although other decisions of this Court have seemingly upheld the 1971 Court’s holdings in LT Nos. 1089 and 1154,6 we note that these decisions, citing to the doctrine of res judicata, were grounded on mere acceptance of the holdings in LT Nos. 1089 and 1154, without comment or critical evaluation. Because we are of the view that the holdings of the 1971 Court were not only wrongly footed but simply inconsistent with the customs of the Samoan people, we decline to follow, and in lieu of the doctrine of res judicata, we cite to the provisions of the Treaties of Cession which require, among other things, “respect and protection]' .... of all people dwelling in Tutuila to their lands,”7 and that “the rights of.. . all people concerning their property according to their customs shall be recognized.”8
Findings and Conclusion
The evidence here shows that defendant’s side of the family has occupied and shared Lalopua with members of plaintiffs side for generations. With the Court’s visit to view the land in question, we noted not only shared burial ground with members of plaintiffs branch, but a defined area of settled occupation by defendant’s side of the family in the way of permanent structures with subsistence plantations toward the mauga side, consistent with longstanding and settled occupation. This settled occupation exists side by side with a sub-faction within' the Fanene Filo branch, Johnny Foster’s family, who have been quite content to co-exist in harmony side by side with the defendant and her family.9 The evidence further suggests that the animosity been the plaintiff and the defendant in this matter, as evident by the number of times they have appeared before the Court in recent times, predates to the 1971 litigation, when Fanene Filo signed a separation agreement on Lalopua in favor of Herman Scanlan, now Fanene Scanlan, which was objected to then by the present defendant. According to the defendant, plaintiff had at the time *340wanted to put up a structure on Lalopua, in anticipation of a lease to the one of the canneries and in derogation of her family’s use of the land.
Since both parties have each assumed the matai title Fanene, the discord appears to have magnified. Plaintiff has variously complained about defendant’s unwarranted intrusion into his sphere of pule, as upheld by the Courts, while defendant has countered with claims -of capriciousness on the part of plaintiff in the exercise of pule.10 Defendant claims, for example, that plaintiff has resisted her obtaining requisite government permits to allow her side of the family to do necessary repairs and renovations to their deteriorating homes.
Quite clearly, the resultant and atypical state of affairs with the once unitary Fanene family of Pago Pago persists to date with the plainly unworkable principle of two families, two matai, but one pule. From the evidence, and from our review of Fanene family history, we conclude that the 1971 Court’s interpretation of the 1945 Court’s holding in the Lalopua land case, viz., that land Lalopua is exclusively owned by only one branch of the Fanene family, was not only unnecessary but, as noted above, in derogation of defendant’s branch’s rights to “their lands” in accordance with Samoan custom. See April 17, 1900 Cession of Tutuila and Aunu'u (February 20, 1929, ch. 45 Stat. 1253.)
In our reading of the 1945 Lalopua land decision, all "that the Court decided was that the land Lalopua was the communal property of the Fanene family — nothing more, and nothing less. In rejecting Taofi’s individually owned claim, the 1945 Court did not thereby throw out the communal entitlement of those family members who are not members of Fanene Filo’s branch, as the 1971 Court has necessarily implied.
Having regard to fundamental precepts of Samoan custom, as enunciated in Fairholt v. Aulava, Tavai v. Silao, and Lavata'i v. Pen, discussed supra, and taking into account Fanene family history as it evolved incongruously within the courts, we opt to follow the literal holding of the 1945 Lalopua land decision and decline to follow the unnecessary interpretation of the 1971 Court in LT Nos. 1089 and 1154. *341To the present panel of Samoan Associate Judges, a landless Samoan family with a legally recognized matai, especially with a longstanding history as communal land occupants, does not add up. To the contrary, the Court here is satisfied, and finds, that defendant’s branch of.the family are also members of the Fanene extended family attached to the Village of Pago Pago; and as such are accordingly entitled to Fanene communal family holdings Lalopua, as they-have-been occupying; in accordance with the 1945 Lalopua land decision. As such, the defendant and her branch of the family’s entitlement to communal land is a proprietary right within the due process clause of the territorial constitution,,- Am. Samoa Rev. Const, art. I, § 2; Fairholt, 1 A.S.R. 2d at 74; Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87 .(Land & Titles Div. 1989).
We further conclude, consistent with fundamental precepts of Samoan custom that pule, at least with regard to those portions of Lalopua, under occupation and cultivation by defendant’s family, lies in their sa 'o, or senior matai, viz., Fanene F. Kava.
Plaintiffs petition for eviction on the basis of pule must be, and it is hereby denied. Judgment will enter for defendant.
It is so ordered.
Plaintiff Fanene Scanlan claims that the Fanene holders from his family branch are the only legitimate reference in the village honorifics, or salutation, “tei ma anoalo.” However, he readily admits to present day realities that not only recognizes but admits his co-holder Fanene Kava to be seated at the village council and be deferred to as the Fanene. Plaintiff explained that the defendant and he have operated under an informal understanding that whomever arrives first at a village council meeting assumes the Fanene’s seat and post. It goes without saying that plaintiff’s claim to singular legitimacy is vigorously opposed by the defendant’s side.
The Court here observed that “[t]he matai name register shows that Pulu Saofeatalai was registered as the holder of the Fanene title on October 10, 1906, and that on October 30, 1906, Vaomalo was also registered as a Fanene.” 4 A.S.R. at 604. It then concluded that “the Fanene title is a split title.” Id.
Taofi’s claim to title was simply that, a mere claim to title. In order to *336establish a claim to individually owned land, a party must couple his claim with a showing that the land was (1) cleared in its entirety or substantially so from the virgin bush by him through his own initiative and not by, for, or under the direction of his aiga or its senior matai; (2) cultivated entirely or substantially so by him; and (3) occupied by him or his family or his agents continuously from the time of the clearing of the bush. Fanene v. Magalei, LT No. 64-77 (1977).
The fact that the two.branches of the Fanene family are not blood related does not ipso facto render a family split into two. Indeed, the Mauga family itself, the derivative source of the Fanene split, is comprised of three clans who are not blood related. See In re Matai Title Mauga, MT No. 12-98 (Land & Titles Div. 2001). But as we have seen the cases have declared that the Mauga title is not a split title.
See Fanene v. Fanene, 26 A.S.R.2d (Land & Titles Div. 1994), for a sketch of the Fanene factions’ litigation history.
See generally Fanene v. Fanene, 19 A.S.R.2d 69 (Land & Titles Div. 1991); Fanene v. Fanene, 26 A.S.R.2d 8, 12 (Land & Titles Div. 1994).
April 17, 1900 Cession of Tutuila and Aunuu (February 20, 1929, ch. 45 Stat. 1253.)
July 16, 1904 Cession of Manua Islands (May 22, 1929, ch. 6, 46 Stat. 4.)
Plaintiff has also encountered familial estrangement within his own branch of family. See In re Petition to Remove Fanene Title, MT No. 04-95 (Land & Titles Div. 1995).
The Samoan concept of pule, not to be confused with the notion of “ownership,” is the power or trust vested in the senior matai to administer family lands. Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 87-88 (Land & Titles Div. 1989). However, a matai’s authority or pule over family lands is not unfettered when it comes to dealing with the rights of family members; rather, it must be used for the benefit of family members justly and fairly. It must not be used unreasonably and unjustly. Pen v. Lavata'i, 25 A.S.R.2d 164, 168 (Land & Titles Div. 1994), aff’d Lavata'i v. Pen, AP No. 08-94 (App. Div. 1996). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486765/ | . OPINION AND ORDER
Plaintiff Amituanai Iosefa (“Amituanai”) brought this action to evict defendants Sataoa Kaleuati (“Sataoa”),- Tuiagamoa Tavaf Tomasi (“Tuiagamoa”), and Kereta Vaili (“Kereta”) from certain land. The secretary of Samoan affairs held unsuccessful mediation hearings on the dispute on August 9 and September 27, 2000, and issued a certificate-of irreconcilable dispute on September 28, 2000. Amituanai served a 30-day eviction notice, dated October 4, 2000, on .Tuiagamoa, Sataoa, and Kereta, and on November 22, 2000, when they did not vacate the land, he filed this action.
Discussion
Amituanai is the sa 'o (head chief) of the Amituanai family of the Village of Malaeloa, American Samoa. Tuiagamoa is the sa 'o of the Tuiagamoa family of the same village. Sataoa and Kereta are members of the Tuiagamoa family.
The land at issue is approximately 4.7 acres in Malaeloa, American Samoa. Kereta constructed a residence on the land in 1990 (“the Kereta house”). Sataoa and his family presently reside in the Kereta house. Amituanai claims that the Kereta house is on the Amituanai family’s communal land named “Olovalu.” Tuiagamoa claims that the Kereta house is on the Tuiagamoa family’s communal land named “Lefiso.”
A. The Holding of Tuileata v. Amituanai
In Tuileata v. Amituanai, 4 A.S.R.2d 168, 170 (Land & Titles Div. 1987). aff’d, 8 A.S.R.2d 173 (App. Div. 1988), this Court held that the *343Amituanai family owned and could register approximately 36.62 acres of “Olovalu” as the family’s communal land. The approximately 4.7 acres at issue lie within the 36.32 acres of “Olovalu.” Complying with the trial Court’s decision in Tuileata, the territorial registrar registered this portion of “Olovalu” as the Amituanai family’s communal land on June 3, 1987. The boundaries of the registered portion are established by Amituanai’s survey of November 16, 1985, presented in Tuileata, except for a small area in the southeast comer not relevant to the present case. Amituanai discovered that the Kereta house was erected within the registered portion as a result of a resurvey in 1998.
None of the witnesses during the trial, including two professional surveyors, contested the location in the field of either the survey of the approximately 36.62 acres of “Olovalu” registered as the Amituanai family’s communal land, or of the approximately 4.7 contested acres within the registered land.
After hearing the testimony and receiving other evidence, the Court inspected the land in the presence of Amituanai, Tuiagamoa, and their respective counsel. Clearly, the Kereta house, or a substantial portion of it, is situated within the registered 36.62 acre portion of the “Olovalu.”
Tuiagamoa has held the sa'o title of the Tuiagamoa family since 1978. Significantly, Tuileata was initiated when Tuileata Mu Manumaleuga (“Tuileata”) attempted to register another portion of “Olovalu” as the Tuileata family’s communal land in 1984. The land Tuileata claimed was located a considerable distance from the land Tuiagamoa now claims. The 1984 registration offer was duly noticed, and Amituanai, Tuiolemotu Fa'aopega (“Tuiolemotu”), and others, but not Tuiagamoa, objected to the registration. The matter was eventually referred to this Court for judicial resolution. The Court had several surveys, including Amituanai’s survey now at issue, to consider. The Court held that the Amituanai family owned all but a small portion of the land included in Amituanai’s survey and authorized registration of the land owned as the Amituanai family’s communal land. Amituanai’s registration, however, was accomplished without following formal notice and other statutory requirements.
B. Tmagamoa’s Claims on T.egal Tssnes
Tuiagamoa asserts that he was not party to Tuileata and is therefore not bound by that decision as a matter of res judicata. We note at this point that Malaeloa is divided into two distinct sub-villages. Amituanai resides in one named Ituau. Tuiagamoa resides in the other named Aitulagi. The Tuiolemotu title is also appurtenant to the Aitulagi sub-village. The Tuiagamoa and Tuiolemotu families are related, though no precise *344connections are in evidence. Tuiolemotu’s claim in Tuileata was to land remote from Tuiagamoa’s present land claim. Moreover, in Tuileata, Amituanai and Tuiolemotu claimed distinct, adjacent lands, except for part of the same small area in Amituanai’s survey noted above, which was not included in the Court’s registration authorization because Amituanai, Tuiolemotu, and other claimants to this small area asked the court to allow them to settle the boundaries in this area. In essence, Amituanai and Tuiolemotu were not adversaries with each other in Tuileata.
Tuiagamoa further maintains that he had no reason to respond to the notice of Tuileata’s offer to register land remote from his family’s land claim, and had neither actual nor constructive knowledge of Amituanai’s land claim in 1984, unnoticed survey in 1985, and unnoticed registration in 1987. Tuiagamoa argues that he is therefore not prevented from pursuing his family’s land claim by any notice preclusion.
We agree with Tuiagamoa’s position on the res judicata issue but disagree with his position on the notice issue.
C. The Res Judicata Tssne'
Tuiagamoa was not a party to Tuileata. Even though the Tuiagamoa and Tuiolemotu families are apparently related, Tuiagamoa had no interest in the land claimed by Tuiolemotu. The connection between the two families does not constitute privity for res judicata pürposes. The Tuileata: decision constitutes neither issue nor party privity preclusion to Tuiagamoa’s land' claim in this case.
D. The Title Registration Notice Tssne
Amituanai’s title registration of 32.62 acres of “Olovalu” in 1987, made pursuant to judicial authorization, is conclusive as between Amituanai, on one hand, and Tuileata, Tuiolemotu and other parties to Tuileata, on the other hand. Tuileata offered to register a large portion of “Olovalu” in 1984. The offer was processed, in compliance with the notice and other statutory requirements, but the court’s decision in Tuileata went largely against him. Tuileata’s offer to register, however, could not adversely effect Tuiagamoa’s claim to land remotely located from the land claimed by Tuileata.
Amituanai’s 1985 survey and 1987 judicially authorized registration of most of his surveyed land were done without compliance to the notice and other prescribed statutory procedures with respect to non-parties to Tuileata. Therefore, Tuiagamoa is not precluded, on' the basis of constructive notice of Amituanai’s registration, from claiming that the *345Tuiagamoa family is the hue owner of the land occupied by the Vaili house. See Faleafine v. Suapilimai, 7 A.S.R.2d 108, 113 (Land & Titles Div. 1988).
Tuiagamoa’s claim that he was without actual knowledge of Amituanai’s survey or title registration, however, borders on the incredible. Sataoa has cultivated areas within the .land surveyed by Amituanai' for many years, first alongside of his parents beginning in 1962, and then in his own right beginning in 1968 after his marriage to the. daughter of Tuiagamoa’s predecessor to the sa'o. title. As a perennial planter in,the area, Sataoa must have known about the survey that Amituanai had made of the portion of “Olovalu” now registered as the Amituanai family’s communal land and Tuileata while that case was pending. As a loyal member of the Tuiagamoa family, providing tautua (traditional service;) to the sa 'o of the. family, Sataoa would haye informed Tuiaganjoa of Amituanai’s survey and the Tuileata judicial proceedings. .. . ,
Tuiagamoa must have known about the survey and the Tuileata judicial proceedings, at least from Sataoa as his informant, .and. most likely from other sources as well. Involving the families of several Malaeloa matai, the Tuileata case would have been common knowledge in the village while the case was ongoing. Tuiagamoa failed in his duty to timely investigate the impact of the Tuileata case on his perception of the Tuiagamoa family’s communal land interests. He did not take any steps to counter Amituanai’s claim during the Tuileata proceedings, which were commenced in 1984, approximately 16 years before-'the current action was filed, and were not concluded until 1987, about three years later. Despite his inaction, Tuiagamoa more than likely knew at the time of the Tuileata decision, and we find he did know, that .the Tuileata court authorized Amituanai to register the surveyed 32.62 acres as the. Amituanai family’s communal land and that the territorial registrar then complied with Amituanai’s request to register this land in this manner. Tuiagamoa also did not take any steps to invalidate the registration until he was called upon to defend this action some 13 years later. A classic example of laches is presented.
Laches is unreasonable delay of one party’s assertion- of rights resulting in the other party’s undue prejudice. Siofele v. Shimasaki, 9 A.S.R.2d 3, 14-15 (Trial Div. 1988); see also Simmons Creek Coal Co. v. Duran, 142 U.S. 417 (1892). A claimant to land ownership is charged with actual notice upon receiving information that would put a person of ordinary prudence to an inquiry that would lead to knowledge of adverse title. See Faleatua v. Tauiliili, 19 A.S.R.2d 122, 123-24 (Land & Titles Div. 1990).
Tuiagamoa had actual knowledge of Amituanai’s claim. He did not exert *346his own claim for a time period of at least 13 years and as much as 16 years. This time frame constituted unreasonable delay under the circumstances. The delay injured Amituanai by forcing multiple litigation of the same issue, as well as leading to Amituanai’s reliance on Tuiagamoa’s non-assertion of alleged rights.
Based on Tuiagamoa’s actual knowledge, the registration, pursuant to the Court’s decision in Tuileata, of approximately'32.92 acres, including the approximately 4.7 acres at issue, as the Amituanai family’s communal land is also valid as against Tuiagamoa and his family. ’
Order
1. As between Amituanai and all other Amituanai family members of the Amituanai, on one hand, and Tuiagamoa, Sataoa, Kereta, and all other Tuiagamoa family members, on the other hand, the registration on June 3, 1987, of approximately 32.62 acres of “Olovalu,” encompassing the approximately 4.7 acres at issue, as the Amituanai family’s communal land is valid and effective.
2. Tuiagamoa, Sataoa, Kereta, and all other Tuiagamoa family members are evicted from the approximately 4.7 acres.
3. Tuiagamoa, Sataoa, and Kereta shall remove the Kereta house from fhe 4.7 acres within 90 days after the entry date of this order. The Kereta house shall become the property of the Amituanai family if it is not removed from the 4.7 acres within the 90-day period.
4. Tuiagamoa, Sataoa, Kereta, and all other Tuiagamoa family members shall cease farming any portion of the 4.7 acres after 90 days from the entry date of this order, unless Amituanai permits them to continue this activity. During the 90-day period, they may harvest their agricultural produce. After the 90-day period, the agricultural crops and trees planted by them within the 4.7 acres shall become the property of the Amituanai family.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486766/ | DECISION AND ORDER
This matter came on regularly for trial on September 26, 2002, with both parties appearing with counsel.
Findings
The court having heard the evidence and examined the proofs presented makes the following A.S.C.A. § 1.0409(c) findings:
1. Best Hereditary Right
There is no dispute that claimant Soa'imaile A. Silila (“Soa'i”) here prevails; her grandfather was a past titleholder. On the other hand, counter-claimant Asofa'afetai Ailua Maga (“Aso”) had to trace his bloodline back several generations since most of the immediately past matai have come from Soa'i’s side of the family. 'While satisfied that both candidates are blood connected to the Utofili title, we find, using the *348traditional rule, that Soa'i prevails on this consideration.
2. Wish of the Clans
Both sides acknowledge the existence of two clans as customary today in the Utofili family. While the parties were not particularly clear on clan definition and while not in exact agreement as to family labels assigned to the clans,1 the parties were clearly in accord as to the existence of two distinct family branches. These clans respectively gave past Utofili titleholders such as Mativa, Soa'i’s paternal grandfather, and Vaimauga, Aso’s paternal uncle. Soa'i is from Mativa’s branch while Aso hails from Vaimauga’s side of the family. For the sake of convenience, we refer, for these purposes only, to the two family branches as being Soa'i’s side on the one part and Aso’s side on the other.
The evidence alluded to a number of family meetings called to address the matai vacancy and that these meetings invariably resulted in favor of Aso succeeding to the title. Soa'i, on the other hand, testified and maintained that these meetings only involved Aso’s side of the family and not her’s.
We find that notice reasonably calculated to reach Soa'i was given for at least two family meetings which she did not attend. We further find that there wás at least one family gathering that was publicly nbticed through the media and was attended by members of both cláns,- including members of Soa'i’s immediate family. We find that this meeting concluded in a family consensus to not only appoint Aso as the successor matai but to present him the 'ava cup as well. There, the 'ava cup was indeed presented to Aso before the assembled clans, significantly without objection.
We are satisfied on the evidence that Aso’s candidacy enjoys the support of all of the family’s clans.
3. Forcefhlness, Character and Personality, and Knowledge of Samoan Customs
While these factors tend to lend themselves to subjective assessment, we find that the parties’s personal achievements demonstrably favor a finding in favor of Aso in terms of forcefulness. His education, career, and positions held within his church speak somewhat louder in terms of ambition and personal accomplishment. Judging by the number of *349important government commissions to which Aso has been appointed, his achievements have also apparently weighed with the American Samoa Government.
On matters of character and personality, we were differently impressed with the parties’ respective reaction to the family’s decision on Aso’s succession. Rather than immediately offering the matai title for registration with the Territorial Registrar’s Office, following the family’s favorable decision, Aso delayed doing so first seeking reconciliation with Soa'i. The latter’s response, however, was confrontational in essence, as. she then offered the title herself for registration, absent any indication of family endorsement, and in effect attempting to by-pass ’ the family altogether. In terms then of character and personality, we find Aso to be more conciliatory in tone and outlook. These are valuable personal traits showing the more promising aptitude for enhancing family harmony.
With regard to knowledge of Samoan customs, we find that Aso’s experience and responses to the Associate Judges’ questions, demonstrated better familiarity with matters of Samoan customs.
In terms of this third criterion, we conclude that Aso prevails.
4. Value to government, village, and family
We have already alluded above to Aso’s demonstrated value to the Government on the basis of his membership on a number of important government commissions. These include membership on the Board of Higher Education; HIV-AIDS Committee; Department of Health’s Executive Committee; Tobacco Control Committee; the Data Committee; Preventive Health Committee; Dog Control Program Committee; and the hospital’s Disciplinary Actions Committee. While both parties have served the local government admirably in their respective career positions, Aso emerges ahead on this factor with his appointment to the various government commissions he has been called to serve on.
With regards to value to the village, Aso’s involvement with village affairs has been more pronounced in terms of his service as a lesser matai of the Utofili family, his attendance to village council gatherings and participation in village fund raising. As a lesser matai, and since assuming the mantle of family spokesman by his being awarded the 'ava cup, Aso has enjoyed some measure of recognition and stature as spokesman on inter-family occasions. At the same time, since he enjoys strong family support and following, he is, therefore, better situated to lead the family and take on the burdens and responsibilities of family sa'o. Coupled with his conciliatory strengths, Aso quite clearly shows the stronger potential to serve the family more effectively.
*350We also find that Aso prevails on this criteria.
Conclusions
On the foregoing, we conclude that Aso is qualified to hold the title Utofili. While Soa'i prevails on hereditary considerations, Aso prevails over Soa'i on the second, third, and fourth criteria. The Territorial Registrar shall,- in.accordance with A.S.C.A. § 1.0409(b), register the matai title Utofili, attached to the Village of Fagaitua, in candidate Asofa'afetai A. Maga.
It is so ordered.
Soa'e labels the clans as Fa 'atauva 'a and Vaimauga while Aso refers to the clans as Mativa and lela. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486767/ | OPINION AND ORDER
On April 26, 1999, Fotu F. Manaea filed his claim to succession with the Office of the Territorial Registrar to the matai title “Manaea”. pertaining to the village of Amouli. Malaetia T. Manaea and Leatualoa F. Manaea subsequently filed objections and their respective counter-claims- .tp succession. After the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute pursuant to A.S.C.A. § 43.0302, the matter was referred for determination to the Lands and Titles Division of the High Court in accordance with A.S.C.A. § 1.0409. Malaetia T. Manaea subsequently withdrew his objection and counter-claim in open court. We proceeded to trial upon the remaining claims to succession.
Discussion
In these matters, the Court is guided by the four criteria set out in A.S.C.A. § 1.0409(c): (1) best hereditary right; (2) clan support; (3) forcefulness, character and personality, and knowledge of Samoan customs; and (4) value to family, village, and country.
1. Best Hereditary Eight
Claimant Fotu Tupuola Leuta (“Fotu”) claims 12.5% hereditary entitlement tracing his roots to Manaea Petero,1 his great-grandfather. *352Counter-claimant Leatualoa F. Fuamoli (“Fuamoli”) claims 50% entitlement through her father Manaea Fa'aloloi Vaimaona.
We find that both parties are blood related to the title Manaea. Applying the traditional formula for evaluating and measuring heredity, we further find that Fuamoli prevails because she can show the shortest descent path to a past titleholder.
2. Clan Support
The only semblance of common ground between the parties on this issue is that the family’s clans number two and the parties are not' from the same clan. Beyond that, the parties’ divisiveness on clan identity and make-up is total. Fotu, who does not command the support of Fuamoli’s side of the family, feels that he can claim complete support of all' the clans by simply ignoring Fuamoli’s side as Manaea family members.2
The apparent deep-seated contention between Fotu’s side of the family and Fuamoli’s side of die family is more far-reaching. The evidence clearly points to factional rivalry beyond the affairs of the Manaea family itself.- The ill will between the parties is enveloped in a longstanding controversy between the principal families of Amouli, engendered by their competing, and apparently ongoing, claims to historical prominence and supremacy in the village. :This inter-family controversy has been the bane of village discord and root of many land disputes from Amouli. See e.g. Utu v. Fuata, 17 A.S.R.2d 104 (Land & Titles Div. 1990).
As Fotu’s side of the family is related to the Gogo title, while Fuamoli’s side of the family is akin to the Utu title, the matai dispute before us took on the unmistakable flavor of the extended inter-family rivalry. In terms of oral tradition, for example, the parties’ respective versions were appropriately slanted. Where both had agreed that the Manaea title had its origins in a pigeon hunting excursion with High Chief Liufau, the parties disagreed as to the identity of the village founding father involved and, hence, the progenitor of the first Manaea titleholder. Fotu’s side naturally claimed that Liufau’s hunting partner was Gogo while Fuamoli’s side unsurprisingly said it was Utu.
*353We find that while meetings were called to consider the issue of matai succession, these meetings were in essence sub-family gatherings and not meetings of the Manaea family as a whole. The evidence showed, for instance, that while a Manaea family meeting was called by Gogo to discuss matai succession, it also showed that Gogo’s timing strategically coincided with the off-island medical evacuation of the ailing Utu titleholder. This particular meeting opportunity was, therefore, hardly calculated to attract a strong showing from the Utu aligned faction of the Manaea family.
In our view, the claim to family support on the basis of these so-called family meetings translates at best to mere blessings from one’s own side of the family. We find that neither candidate enjoyed the total support of the Manaea family’s two clans, and, therefore, conclude that neither candidate prevails on this consideration.
3. Forcefiilness, Character and Personality, and Knowledge of Samoan Customs
In our evaluation of the parties, we find from our observation, of the candidates and from our review of personal background and achievements that Fotu prevails on this consideration. Fotu’s career path has been more impressive; primarily he was a professional law enforcement officer, retiring as Captain from the Department of Public Safety, while Fuamoli, who has also retired, has largely been involved with employment of a clerical nature. Additionally, Fotu in his early years served with United States Marine Corp. He continues to utilize his law enforcement background in a private business. We feel that these resultant career achievements signify a greater measure of ambition and drive.
Moreover, in assessing personal attributes under this criterion, the Court may look to “demeanor, personality, presence of mind, the- clarity, speed and correctness with which the answers were given, the. self-confidence and other qualities reflected from . . . speech and behavior.” See Reid v. Talalele, 4 A.S.R. 458, 463-64 (Land & Titles Div. 1964). Under this heading, Fotu stood out as the more forceful personality, self-assured and assertive. We also rate him ahead of Fuamoli in terms of knowledge of Samoan custom.
Fuamoli, on the other hand, urges us to view Fotu’s aggressive posture towards her side’s entitlement as a serious character flaw bespeaking haughtiness. While the submission is appealing at first blush, we are inclined to believe, however, that Fotu’s apparent obduracy is more reactive in nature rather than inherent. As with the Gogo and other principal families of Amouli, Fotu’s stance seems atypically reactive to a *354continuing claim of the Utu titleholders to suzerainty, as alluded to in the testimony of Fuamoli’s witness Fainu'ulelei, and as previously advanced, and opposed, in Utu v. Fuata, 17 A.S.R.2d 104, 107 (Land & Titles Div. 1990). That is, the Utu family has maintained,' over the vigorous opposition of other families, that Amouli is a one family village with the Utu as the village headman. Suffice it to say that the evident continuing ill will between the family’s factions is something that requires reciprocal effort towards a resolution.
We find that Fotu prevails under this consideration.
4. Value to Family, Village, and-Country
We also find in favor of Fotu under this criterion. In terms of valué to the country, both candidates have creditably served, and retired from, the territorial government. But as alluded to above, Fotu’s career path has been more impressive. This is reflected in his greater retirement income, a relevant factor to account hereunder in assessing value to family. Tuinei v. Ieriko, 2 A.S.R. 117, 123 (Trial Div. 1940) (recognizing income as factor in determining candidate’s value). Also in terms of value to family and village, we find that unlike Fuamoli, whose family ties primarily keeps her focus in Lauli'i serving the Vaimaona title, Fotu’s heart and involvement has been service to the Manaea family and the village of Amouli. Fotu has lived with the Manaea family in Amouli serving and actively participating in Manaea fa 'alavelave (family affairs), acting as family spokesman on numerous occasions. He has also participated in Amouli village affairs, including service to the church and ongoing village projects. As such, Fotu has accumulated greater awareness with Manaea family matters and has naturally fostered better rapport with the Amouli village council. By contrast, Fuamoli’s contact with Amouli village has only been intermittent through her tautua (service) to the Utu family, not the Manaea family. She is therefore not as familiar with family needs, nor knows the members of the family. See Aano v. Sitau, 2 A.S.R. 107, 110 (Trial Div. 1940).
Furthermore, the Manaea title’s prestige and influence in village affairs has necessarily waned over the years. The family was left leaderless for many, many years with the extended off-island absence of one of its former titleholders, who was subsequently removed for dereliction of duty. Coupled with the vicissitudes of village politics and intrigue among Amouli’s principal matai, the Manaea family today has much need of strong leader. We find that Fotu better fits the bill; he prevails under this heading proving to offer the greater potential to family, village and country.
*355Conclusion and Order
On the foregoing, we conclude that Fotu is qualified to hold the title Manaea. While Fuamoli prevails on hereditary considerations, Fotu prevails over Fuamoli on the third and fourth criteria, with neither prevailing on the issue of clan support. The Territorial Registrar shall, in accordance with A.S.C.A. § 1.0409(b), register the matai title Manaea, attached to the village of Amouli, in candidate Fotu Tupuola Leuta.
It is so ordered.
Manaea Petero was a Wallis Islander who apparently held the title by virtue of his family membership through marriage. Petero was married to Siv, the daughter of a prior titleholder. See Tuitui v. Leuma, 2 A.S.R. 418, 421 (Trial Div. 1948). Since we find that Fuamoli clearly prevails on the *352issue of heredity, we need say no more on the exact degree of Fotu’s blood entitlement.
This obdurate claim is erroneous. In prior litigation, the Court in Tuitui v. Leuma, 2 A.S.R.2d 418 (Trial Div. 1948), not only found that Fuamoli’s father, Vaimaona Leuma, was a blood member of the Manaea family, but concluded that he was also the most eligible claimant then to hold the family’s tide. Vaimaona Leuma was duly certified by the Court and he held the Manaea title for many, many years. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486768/ | OPINION AND ORDER
TCW Special Credits (“TCW”) appeals from a judgment of the Trial Division holding that following its foreclosure of a preferred ship mortgage on the F/V Kassandra Z (Kassandra Z), TCW must pay Michael Datin, et al., Kassandra Z’s crew, statutory wages under 46 U.S.C. § 11107 and quantum meruit damages because the chip’s former owner failed to do so prior to the arrest of the ship in 1996. The crew also appealed and cross-appealed. The Trial Division had jurisdiction over this action pursuant to A.S.C.A. § 3.0208(a). We have jurisdiction *6over these timely appeals pursuant to A.S.C.A. § 3.0208(c). We affirm in part, reverse in part, and remand to the Trial 'Division for further proceedings.
I.
The Kassandra Z was part of a family of eleven tuna seiners owned by the Zuanich family who operated out of various ports, including American Samoa, Guam, New Zealand, and San Diego, California. The Zuanich family began to experience financial difficulty in 1995. Seeking relief, the Kassandra Z Fishing Co., Inc., one of the companies owned by the Zuanich family granted a preferred ship mortgage to TCW secured against its vessel, the Kassandra Z. On July 2, 1996, TCW filed a foreclosure action against the Kassandra Z in the Trial Division and had the vessel arrested by the High Court Marshal. The crew members on board were removed from the ship, and most were repatriated to their homeland in Croatia.
Thereafter, the crew members intervened in the foreclosure action, alleging that they were owed unpaid wages for two full voyages, as well as “short checks” — adjustments in pay based on the cannery’s final calculation of the haul to be canned — left unpaid from other trips. Because the crew members were never given written fishing agreements as required by 46 U.S.C. § 10601 they asserted they were entitled to statutory wages under 46 U.S.C. § 11107. Section 11107 provides that “[a]n engagement of a seaman contrary to a law of the United States is void. A seaman so engaged ... is entitled to recover the highest rate of wages at the port from which the seaman was engaged or the amount agreed to be given the seaman at the time of engagement, whichever is higher.” 46 U.S.C. § 11107.
Following a three-day trial the Trial Division awarded judgment for the crew in the amount of $713,623.14. The Court determined the amount of the award based upon unpaid wages under Section 11107 for two trips, wages for the time the crew spent waiting in port for what was to be the final voyage of the ship, prejudgment interest, and other costs. Both sides moved for reconsideration of portions of the Trial Division’s decision, and the Court issued a second order, holding that Section 11107 wages for the short checks were available, and adjusting the crew’s award to $1,396,155.55.
On appeal, TCW argues that the wages awarded to the crew under 46 U.S.C. § 11107 are really “penalties” that cannot be recovered in rem with priority over TCW’s preferred ship mortgage. It also argues that the Trial Division erred in awarding wages under Section 11107 for the “short checks” that were never paid. TCW alleges that the Trial Division erred in allowing the crew to prove the rate of wages to which they were *7entitled under Section 11101 by a “prima facie” showing only. Finally, it asserts that the Trial Division erred in awarding any wages for the crew’s in-port waiting time for the final journey that never happened. The crew argues on cross-appeal that the court erred in requiring the crew to prove any comparability under Section 11107. They assert that instead they should receive the highest wage paid to “any seaman” on board the ship. In the alternative, they suggest that the Trial Division should have used a rating system as suggested by the Court of Appeals for the Ninth Circuit in TCW Special Credits v. Chloe Z Fishing Co., 129 F.3d 1330 (9th Cir. 1997).
n.
One preliminary matter deserves attention. Long after briefing had closed and just weeks before oral argument, the crew filed what it styled a “supplemental brief,” which urged that under the unpublished decision in TCW Special Credits v. Barandiaran, 238 F.3d 431 (Table), 2000 WL 1277939 (9th Cir. Sept. 8, 2000), the Trial Division additionally erred in ruling that the Kassandra Z’s Master and Fish Captain were not entitled to wages under Section 11107. The Court of Appeals for the Ninth Circuit does not ordinarily allow citation to unpublished decisions. Ninth Circuit Rule 36-3(b). The crew does not provide a reason why we should consider a decision the authoring court does not deem to be of precedential authority.
However, we need not decide this issue. We conclude the crew’s claim in its “supplemental brief’ is jurisdictionally barred. While parties may direct our attention to legal authority established subsequent to briefing, they are not free to raise new arguments not addressed in their briefs. The crew did not raise this issue in either their appellee’s brief or their cross-appeal brief. Therefore, the “supplemental brief’ does not meet the ten-day time limitation for filing a notice to appeal, A.C.R. 4(a). Because the deadline for filing a notice of appeal is jurisdictional, A.S.C.A. § 43.0802(b), Taulaga v. Patea, 17 A.S.R.2d 34, 35 (App. Div. 1990), we will not address this issue.
in.
We review questions of law de novo. Anderson v Vaivao, 21 A.S.R.2d 95, 98 (App. Div. 1992). We may not set aside the findings of fact of the Trial Division unless they are clearly erroneous. A.S.C.A. § 43.0801(b); Anderson, 21 A.S.R.2d at 98. A finding is clearly erroneous when “the entire record produces the definite and firm conviction that the court below committed a mistake,” according particular weight to the trial judge’s assessment of conflicting and ambiguous facts.” E. W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992).
*8With this in mind, we turn first to whether the Trial Division erred in concluding that the statutory wages it awarded the crew for unpaid trips under 46 U.S.C. § 11107 were recoverable in rem against the Kassandra Z and with a preferred lien status over TCW’s ship mortgage.
TCW urges us to call these statutory wages “penalties” or “punitive damages,” and asserts that we should hold that they are not recoverable in rem with priority over TCW’s preferred ship mortgage. TCW correctly points out that the purpose of the portion of statutory wages awarded under Section 11107 that is more than what the seaman would have received had his fishing agreement been valid is designed to punish ship owners who illegally engage seamen. Seattle-First Nat’l Bank v. St. Elias Ocean Prods., Inc., 98 F.3d 1195, 1198 (9th Cir. 1996). Historically, the purpose of the requirement of a written shipping articles agreement was to protect seamen from exploitation and mistreatment, Sylvis v. Rouge Steel Co., 873 F.2d 122, 125 (6th Cir. 1989), while its modem purpose is to avoid disputes about wages and other terms and conditions of employment precisely like the one in this lawsuit. Id. As such, the “punishment” for violation of this requirement is that the ship is answerable to the crew for a rate that may be higher than what they invalidly agreed to in the first place.
We understand that punitive damages cannot be recovered against a vessel. Hunley v. Ace Mar. Corp., 927 F.2d 493, 496 (9th Cir. 1991). Nonetheless, statutory wages awarded under Section 11107 are not punitive damages. The statute expressly states that the seaman illegally engaged “is entitled to recover the highest rate of wages at the port from which the seaman was engaged or the amount agreed . . . whichever is higher.” 46 U.S.C. § 11107 (emphasis added). The statute therefore substitutes for the oral agreement, and calls for the rate of wages that are to be paid. Thus, the amount awarded under Section 11107 is not a “punitive damages” award — it rather represents wages owed at a rate statutorily set. Courts have long held this to be the case. See West Winds, Inc. v. M.V. Resolute, 720 F.2d 1097, 1103 n.4 (9th Cir. 1993) (citing to predecessor statutes discussed in Collie v. Fergusson, 281 U.S. 52, 54 (1930) and Gerber v. Spencer, 278 F. 886, 889 (9th Cir. 1922)); Buckley v. Oceanic S.S. Co., 5 F.2d 545, 546 (9th Cir. 1925) (predecessor statute).
Statutory wages awarded under 46 U.S.C. § 11107 give rise to preferred maritime liens that are recoverable in rem. 46 U.S.C. § 31301(5)(D); Seattle-First Nat’l Bank v. Conaway, 95 F.3d 1195, 1198-99 (9th Cir. 1995). This is so because, as the Supreme Court recognized early in American history, a ship is liable in rem for the unpaid wages of a Seaman. The John G. Stevens, 170 U.S. 113, 119 (1898). Moreover, seamen’s wage liens have always been granted the highest priority after in custodia legis costs. Key Bank of Wash. v. S. Comfort, 106 F.3d 1441, *91443-44 (9th Cir. 1997); Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125-26 (9th Cir. 1994). The Ship Mortgage Act also makes clear that liens for wages of the crew have priority over preferred ship mortgages. 46 U.S.C. § 31326(b)(1).
TCW urges us to adopt the holding of the Fifth Circuit in Governor & Co. of Bank of Scotland v. Sabay, 211 F.3d 261, 275 (5th Cir. 2000), and apply it here. Sabay held that penalty wages awarded under 46 U.S.C. § 10313(g) are not recoverable in rem against the sale proceeds of a fishing vessel. Id. at 275. However, the plain language of Section 10313(g), with which Sabay dealt, makes the holding in that case inapplicable to the case before us. Section 10313(g) states that when the master does not pay each seaman the balance of wages due “without sufficient cause, the master or owner shall pay to the seaman 2 days’ wages for each day payment is delayed.” 45 U.S.C. § 10313(g) (emphasis added). The Fifth Circuit interpreted this statute’s plain language to “preclude . . . enforcement of the penalty wages liens at issue against the sale proceeds. The statute imposes liability for such wages only on the vessel master or owner. Sabay, 211 F.3d at 275. Because the sale proceeds were insufficient to satisfy all of the liens against the vessel, the owner no longer had an interest in those proceeds; therefore the lien could not be enforced against proceeds in which the owner no longer had an interest. Id. at 275-76. Sabay is inapplicable to this case, where Section 11107 has no language limiting recovery only as against the vessel’s master or owner.
TCW’s final argument is that it is an “innocent lienholder” and shouldn’t have to pay the crew’s wages under Section 11107. But when TCW secured its mortgage on the Kassandra Z, the statutes at issue in this case, 46 U.S.C. § 10601 and 45 U.S.C. § 11107, were already law. Commercial Wishing Industry Vessel Safety Act of 1988, Pub. L. 100-424, § 6(a), 102 Stat. 1591 (codified as 46 U.S.C. § 10601); Act of Aug. 25, 1983, Pub. L. 99-89, 97 Stat. 580 (codified as 46 U.S.C. § 11107). The relevant cases, West Winds, 720 F.2d at 1103 n.4 (holding that Section 11107 wages are wages and not punitive damages) and The John G. Stevens. 170 U.S. at 119 (holding that “as long as a plank of the ship remains, the sailor is entitled, against all other persons, to the proceeds as a security for his wages”) had long been decided. When TCW secured the mortgage on the Kassandra Z, it should have been aware of what the law was, even if, as it asserts, it was standard practice in the fishing industry to operate without written fishing agreements. Indeed, compared to fishermen, mortgagees like TCW are in a better position to demand that vessel owners make written agreements with their seamen through covenants in the mortgage contract.
We therefore hold that the Trial Division did not err in awarding the statutory wages to the crew under Section 11107’s preferred status over *10TCW’s ship mortgage.
IV.
We next deal with TCW’s challenge to the Trial Division’s decision to award approximately $600,000 under 46 U.S.C. § 11107 for unpaid wages owed on certain “short checks” unpaid at the time of the vessel’s arrest. It is standard practice in the tuna fishing industry to pay crew wages in two installments: the first is a substantial payment of 90-95% of the wages owed based on the estimated weight of the fish off-loaded; the second is for the remaining 5-10%, known as a “short check,” which is calculated after the cannery determines the quantity of “rejects.” Short checks typically are issued within a few weeks after the catch is offloaded; however, the owners of the Kassandra Z never paid crew members their short checks for nine of the twenty-six fishing trips they made. TCW argues that the Trial Division erred in awarding statutory wages for these missing short checks. TCW’s argument is based upon three contentions: (1) the seamen were “fully paid” for the nine trips in question; (2) permitting the recovery of statutory wages would be unfair and would cause dire consequences to the fishing industry; and (3) the crew’s claims are barred by the equitable doctrine of laches.
As for TCW’s first contention, the Trial Division found that the crew members were not fully paid for these trips. We hold the finding was not clearly erroneous. That they received the first payment of 90-95% does not mean they were “fully paid.”
The “unfairness” argument, based upon the crew recovering more wages than they would have had their fishing agreements been valid, is addressed to the wrong forum. We cannot change what is clear on the face of the statute. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992); Griffin v Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982). The statutory-language here is unambiguous: statutory wages are awarded any time there is an unlawful engagement of a seaman. 46 U.S.C. § 11107. Operation of Section 11107 is automatic because it renders “engagement of a seaman contrary to the law of the United States . . . void.” Id. As the Trial Division observed, “A void contract is a legal nullity, and cannot serve as the basis for equitable estoppel. In the event that the oral agreements between the [cjrew and [the Kassandra Z Fishing Company] were void, partial payment on their terms does not constitute a bar to the recovery of statutory wages under 46 U.S.C. § 11107.” TCW Special Credits, Inc. v F/V Kassandra Z, 4 A.S.R.3d 154, 164-65 (Trial Div. 2000). The crew members are entitled to statutory wages for those trips, regardless of whether they had already been paid a majority of their wages. The result of the Trial Division considering the old trips for which the crew admittedly was mostly paid is a consequence of the plain language of the statute. Such seemingly harsh consequences *11are precisely directed by the statute at forcing compliance with Section 10601. Thus, TCW should direct this argument to Congress.
TCW’s third assertion is that the crew’s claims for statutory wages on these prior trips are barred by laches. Laches is an equitable doctrine that bars an action where there has been an unreasonable delay in bringing the suit, and the other party has been prejudiced as a result of the delay. Czaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 533 (1956); Sandvik v. Alaska Packers Ass’n, 609 F.2d 969, 971 (9th Cir. 1979). Given a proper use, claims involving old trips aheady mostly paid for might cause application of the doctrine of lathes to mitigate the harsh consequences of the automatic operation of Section 11107. But TCW only argues that if any of the crew members had raised then claims for wages under Section 11107 earlier, the issue would have been resolved right away. But with no record support, it would be difficult to conclude that such claims would have been resolved with any speed, given the fact that the owners of the Kassandra Z had repeatedly failed to pay the crew what they were owed under the invalid oral agreements. Furthermore, TCW has not made an express claim of undue delay or prejudice, nor has it made a record of any prompt payment. The best that TCW has been able to suggest is that if the crew members had raised then Section 11107 claims before the foreclosure action, perhaps the vessel’s owners would have paid them. This is an allegation, not proof, and there is no basis upon which we could hold that the action of the crew members as to these nine trips is barred by laches.
V.
TCW next challenges the “light burden” of proof to which the Trial Division held the crew when it came to determining the amount of wages to which the crew was entitled for its unpaid voyages and short checks under Section 11107. The Trial Division decided that the crew need only make what it called a “prima facie” showing that an individual seaman was comparable to another seaman' who made a higher wage at the port where the seamen were employed. The Court borrowed the comparability requirement from the Court of Appeals for the Ninth Circuit’s holding in Chloe Z, 129 F.3d at 133, that “a wronged seaman is entitled to recover the higher of either the wages he orally agreed to, or the higher rate of wages that could be earned by a seaman at the port of hire who has the same rating as the complainant.” “Rating” refers to the seaman’s “rank, job classification, duties and ability.” Id. at 1331. We hold that Chloe Z properly states the rule. In most cases, it requires that seamen seeking statutory wages under Section 11107 prove that the wage rate they claim is a rate derived from the salary of a seaman with the same rank, job classification, duties and ability. However, these considerations are not exclusive. We examine the totality of the circumstances in determining whether a seaman has demonstrated that he *12or she is comparable to another seaman for purposes of Section 11107. The Trial Division accepted a “prima facie” showing as making out the crew’s claim of comparability.
To prevail in a civil action, a party must make the required showing by a preponderance of the evidence. Tuia Suasuai v. Salave'a, 3 A.S.R.2d 1 (Lands & Titles Div. 1986). Here we are called upon to determine whether the Trial Division erred when it allowed crew members to demonstrate the applicable wage rate by merely submitting rosters. Those rosters listed various crewmen with job labels such as “deckhand” or “seaman” and the corresponding person with the same label who was earning the most money elsewhere in the Zuanich fleet. However, the Trial Division made extensive findings of fact that the wage rate for ordinary deckhands in the Zuanich fleet was determined largely by intangible factors such as loyalty to a captain or even nepotism, rather than factors such as rank, job classification, duties or ability. TCW has not proven these findings to be clearly erroneous, and therefore, the findings must be accepted. The Court’s findings of fact suggest that deckhands were not generally comparable because their wages depended not on identifiable factors like rank, job classification, duties or ability, but rather on intangibles such as personality or relationship to the Fish Captain. As the Court found:
There are indeed significant distinctions in the rate of wages offered deckhands, not only from one ship to another, but even on a single trip of a single vessel. Certainly the reasons for these differences were based at least in part on issues such as ability and seniority. ... At the same time, the facts established at trial also demonstrate that most deckhands performed substantially the same day-to-day tasks, including stacking nets and cork, standing watch, sorting fish, painting, and other such duties not requiring any particular expertise or training .... The method of hiring replacement deckhands is particularly illustrative of the interchangeable nature of these workers .... [Fish Captain Gojko] Milisic would simply put in a call to have someone flown out from Croatia, or would hire any available seaman off the docks, regardless of whether the deckhand to be replaced happened to have served in a specialized role such as spotting fish or driving the skiff.... [I]n his words, the deckhands were “[j]ust. . . laborer^]” and needed “no license, no skill.” .... While we find that experience and abilities may have played a small role in [determining wages], as discussed above, the evidence indicates that the more critical contributing factors were significantly less tangible. For example, Fish Captain Milisic testified that, among other things, he might pay one seaman more than another because “I like the guy” or because he’s not *13“a trouble maker” . . . Total experience as a seaman might be marginally relevant to wages, but loyalty to a particular captain appears to be much more significant.
TCW Special Credits, Inc. v. F/V Kassandra Z, 163 3 A.S.R.3d 163, 170-71 (Trial Div. 1999).
Because TCW has provided us no basis upon which to conclude that this finding dealing with ordinary deckhands aboard the Kassandra Z is clearly erroneous, there is no basis for requiring proof in addition to the rosters of the crew. We affirm the Trial Division’s decision with respect to those deckhand crew members because the Trial Division made specific findings of fact that the Chloe factors of rank, job classification, duties and ability played only a small role in determining the deckhands’ wages.
We now turn to the other members of the crew. The Trial Division constructed its overall “prima facie” case mechanism after considering the purpose of Section 11107 and the historical position of seamen in the fishing industry. The Trial Division placed a “light burden” on the crew for proving comparability based upon concerns about the ability of seamen to search out and identify someone from their port who has the same duties and skills as he, and the seaman’s traditional role as a “ward ... of admiralty.” TCW, 3 A.S.R.3d at 171. The Trial Division concluded that requiring complicated methods of proof would thwart the primary purpose of Section 21107: to provide “a quick and efficient means by which wronged seamen can get the wages owed to them.” Id. Instead, the Court decided it would be better to place the heavier burden of rebutting prima facie comparability on the vessel’s owner, who would have better access to the personnel in his fleet. Id. at 172. In addition, the Court pointed out that burdens of production and proof in admiralty claims are generally relatively minimal. Id. at 171 (citing Comeaux v, T.L. James & Co., 702 F.2d 1023, 1024 (5th Cir. 1983) (seaman’s burden of proving cause in Jones Act cases is “featherweight”); Yelverton v. Mobile Labs, Inc., 782 F.2d 555, 558 (5th Cir. 1986) (“A seaman’s burden of production in establishing the value of his maintenance is feather light.”)).
Nonetheless, we disagree with the Trial Division that crew members in this case, other than ordinary deckhands, are entitled to recover the wage of the highest paid Zuanich fleet employee with the same job label such as “assistant engineer” or “fish captain” based on crew rosters alone. These, terms are too general; the Trial Division made no finding of fact that such generalities were reflective of the actual computation of these crew members’ wages. To the contrary, the Court stated “[tjhere appears to be little debate that for the most established positions aboard a tuna boat captain, engineers, helicopter pilots, deck boss, cook, etc.), *14these factors [rank, job classification, duties and ability] will, by definition, all be [capable of comparison] from boat to boat and from fleet to fleet.” TCW, 3 A.S.R.3d at 169. Therefore, the Court’s determination that “each member of the [c]rew is [equal] to his counterparts throughout the Zuanich fleet, within the meaning of the Ninth Circuit’s decision in Chloe Z,” id. at 173, is clearly erroneous in light of the crew’s burden of proving its case by a preponderance of the evidence and the lack of facts that would support the finding that crew members, other than ordinary deckhands, were “interchangeable” without reference to their rank, job classification, duties and abilities. Instead, it would have been helpful, for example, if these crew members had correlated themselves to someone in the fleet with the same rank, job classification, duties and ability (whether contained in his job description or not). This is not too much of a burden on these crew members in light of the monetary import of entitlement to statutory wages under Section 11107.
On cross-appeal, the crew members argue for a literal reading of the statute and a conclusion that they are entitled to whatever the highest wage rate is at the port at issue, regardless of what kind of job that person holds. Section 11101 is ambiguous as to exactly whose wages at the port in question should be used as a substitute for the seaman engaged without fishing articles. It says “the highest rate of wages at the port from which the seaman was engaged or the amount agreed . . . whichever is higher.” The crew’s reading, however, is patently absurd, as the phrase “whichever is higher” would have no meaning: someone at the port (e.g., the chief executive officer of a shipping company, etc.) will always have a wage higher than the one a crew member was promised as a seaman. In any event such a holding is foreclosed by Chloe Z, 125 F.3d 1333.
Therefore, we reverse the Trial Division’s ruling other than the deckhands, that the crew’s prima facie showing of comparability proved their case by a preponderance of the evidence.
VI.
Finally, TCW argues that the Trial Division erred in awarding the crew wages for the time they spent waiting in port for what was to be the Kassandra Z’s final voyage before the ship’s arrest. The Trial Division awarded fourteen crew members wages for the period of November 21, 1996 through July 2, 1996, the time between the end of the 215th trip and the time the Kassandra Z was arrested. The Trial Division awarded wages based on the doctrine of quantum meruit, which awards a plaintiff an amount equal to the value of the benefit he has provided to protect against the unjust enrichment of the beneficiary. RESTATEMENT (Second) of Contracts § 370 (1981).
*15TCW argues that tuna fishermen are not ordinarily paid wages for in-port wait time, and that there was little or no work performed by the crew during this period. Whether fishermen are ordinarily paid wages for time spent waiting in port is irrelevant to the question whether the crew can recover in quantum meruit for the value of the benefit they conferred upon the Kassandra Z and its owners. Moreover, the Trial Division found that “the [c]rew was indeed active in maintaining the vessel and preparing it for its next fishing voyage.” TCW, 3 A.S.R.3d at 179. The Trial Division found that the crew was instrumental in keeping the vessel in working order, which was valuable even if the imminent voyage never materialized because it maintained a higher price upon judicial sale of the vessel than would have been realized if die vessel were run-down. This finding is not clearly erroneous, and thus we hold that it was not error for the Trial Division to award recovery in quantum meruit for in-port waiting time.
We next turn to the method the Court used in calculating the quantum meruit damages owed to the crew. The Court multiplied 43 days (the number spent waiting) by an “average daily catch” (as if the crew had been fishing), which it found to he 14427 tons; and multiplied this amount (619.93 tons) by the rate it determined to be the highest rate of wages paid to a comparable “seaman.” Id. at 185. This calculation cannot be correct because quantum meruit is an award based on the actual value of the benefit conferred, not the hypothetical benefit that might have accrued (catching a certain tonnage of fish) had the ship taken a last voyage. Furthermore, the statutory wage provision of Section 11107 (highest rate of wages at the port of engagement) cannot come into play in the calculation of an award for benefits conferred during the in-port waiting time. Section 10601 (whose violation results in an award of statutory wages under Section 11107) provides that a written fishing agreement shall be made “before proceeding on a voyage.” 46 U.S.C. § 10601. The Kassandra Z did not “proceed on a voyage” after Trip 26 (the last before the ship was arrested), so Section 10601 could not have been violated, nor Section 11107 implicated. We therefore reverse the Trial Division’s decision regarding the method of calculating the quantum meruit award, with direction to find facts and make a calculation of the benefit conferred upon the Kassandra Z by the crew’s efforts in those 43 days.
TCW argues that even if quantum meruit recovery is warranted, it cannot be awarded in rem against the sale proceeds of the ship. However, American Samoa law allows in rem recovery against a vessel of a quantum meruit award. Zuguin v. M/V Captain M.J. Souza, 23 A.S.R.2d 7, 10 (Trial Div. 1992). Zuguin permitted a helicopter pilot engaged to prepare a ship for a voyage to recover in quantum meruit in an in rem proceeding against the vessel where the méchame had quit *16prior to the planned voyage. Id. at 10-11. We therefore hold that the Trial Division may allow in rem recovery of the quantum meruit award.
vn.
In summary, we affirm the Trial Division’s award of wages under Section 11107 for ordinary deckhands, the grant of priority to these wages over TCW’s preferred ship mortgage, and the allowance in rem award of quantum meruit damages for services performed while the Kassandra Z was in harbor.
We reverse the Trial Division’s decision allowing the crew, other than the ordinary deckhands, to prove comparability by prima facie showing only, and its method of calculating the quantum meruit recovery owed to the crew for in-port waiting time.
We remand for the Court to conduct such further hearings as the Trial Division wishes in keeping with our decision. No costs.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486769/ | OPINION AND ORDER
In these two consolidated appeals, Defendants-Appellants Faatulu Samana and Kalolo Stowers appeal from the district court’s denial of their separate motions for a new trial. The district court in each case determined that neither A.S.C.A. § 3.0232 nor the American Samoa Constitution gave the defendants a right to a jury trial in the district court. The district court had jurisdiction under A.S.C.A. § 3.0302. We have jurisdiction over this timely appeal pursuant to A.S.C.A. § 3.0309. We reverse and remand for new trials.
*19I.
Samana and Stowers were separately charged with driving under the influence of alcohol, a class A misdemeanor, A.S.C.A. § 22.0707, punishable by up to one year imprisonment, A.S.C.A. § 46.2301, and/or up to a one thousand dollar fine. A.S.C.A. § 46.2102. Over their objections, the cases were heard by the district judge rather than a jury. After they were convicted, each filed a motion for a new trial, arguing he had a statutory and constitutional right to a jury trial. Each of these motions was denied.
n.
Whether the defendants have a right to a jury trial in the district court under A.S.C.A. § 3.0232 is a question of law we review de novo. Anderson v. Vaivao, 21 A.S.R.2d 95, 98 (App. Div. 1992) (questions of law are reviewed de novo); see also Kulas v. Flores, 255 F.3d 780, 783 (9th Cir. 2001) (the right to a jury trial is a question of law reviewed de novo).
Here we are called upon to interpret A.S.C.A. § 3.0232, which states:
(a) Any person charged with an offense carrying a maximum possible punishment of over 6 months of imprisonment shall be tried by a jury unless he personally waives this right in writing or in open court. The Chief Justice of the High Court may promulgate Petit Jury Rules and Standard Jury Instructions to govern jury trials in the High Court and district court. The petit jury shall be comprised of 6 persons. The jury verdict must be unanimous. Voir dire of prospective jurors shall be conducted by the court.
(b) Notwithstanding any law to the contrary, whenever petit jury trials are held as provided in subsection (a), 2 associate judges shall sit with either the Chief or Associate Justice, who acts as presiding judge of the court. All questions of law shall be ruled upon by the presiding judge.
Both the language and the history of the statute demonstrate that A.S.C.A. § 3.0232 provides Stowers and Samana with a right to a jury trial in the district court.
A. Interpretation of the Statute
Clearly, the first sentence of Section 3.0232(a) gives them this right, and the sentence admits of no exceptions or qualifications. To read the right as lacking in the district court is to read out of existence Section *203.0232(a)’s expressly allowing the Chief Justice of the High Court to promulgate petit jury rules “to govern jury trials in the ... district court.”
The government presents a number of arguments against this interpretation of the statute. First, the government argues that even if Section 3.0232(a) permitted jury trials in the district court, the language of Section 3.0232(b) governing the composition of the court somehow trumps Section 3.0232(a). The Chief Justice and Associate Justice preside over High Court cases, A.S.C.A. § 3.1002(a), and associate judges sit in the High Court. A.S.C.A. § 3.1005. District court sessions, in comparison, are conducted by “a district court judge sitting alone.” A.S.C.A. § 3.0303(a). The government argues that subsection (b)’s requirement of two associate judges sitting with the Chief or Associate Justice presiding must mean that jury trials may not be conducted in the district court, because district court proceedings are conducted by a district judge alone.
The government errs in its reading of subsection (b) as a descriptive, rather than a prescriptive, statement of the composition of the court in hearing jury trials. Subsection (b) does not simply describe the court that hears jury trials; rather, it prescribes the composition of the court when hearing jury trials. Thus, subsection (b) is prefaced by the phrase “[notwithstanding any law to the contrary,” to demonstrate that subsection (b) trumps the Code provisions providing district court sessions are to be conducted by a district court judge sitting alone.
The government’s reading of the statute would make nonsense of subsection (a)’s explicit reference to the district court. When the legislature speaks in the form of a properly adopted statute, courts must attempt to provide a rational interpretation. The government’s reading would also make unnecessary A.S.C.A. § 3.0232(b)’s explanation that “either the Chief or Associate Justice ... .act[ ] as presiding judge of the court.” If jury trials were held only in the High Court, subsection (b)’s explanation would be redundant, because the Chief Justice or Associate Justice preside over the High Court. A.S.C.A. § 3.1002(a).
The government’s textual arguments violate the elementary canon of construction that a statute is not to be construed to render its provisions mere surplusage. See TRW, Inc. v. Andrews, 534 U.S. 19 (2001); Biodiversity Legal Found, v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002); Am. Vantage Cos. v. Table Mountain Rancheria, 292 F.3d 1091, 1098 (9th Cir. 2002); United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir. 1999). Instead, each provision of a statute is to be given Ml effect. See Duncan v. Walker, 533 U.S. 167, 174 (2001); Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1177 (9th Cir. 1999); Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 834 (9th Cir. 1996). Additionally, given the explicit language of the amendment’s preamble, *21we will not pretend that the insertion of the words “district court” was a slip of the pen. Pub. L. No. 16-53 (1980) (“A number of statutes are amended by substituting the words ‘district court’ for ‘trial division of the High court’ [sic] ... to clear up inconsistencies in the Code concerning jurisdiction of the district court and High Court.”).
Finally, the government argues that because of the placement of the jury trial statute in the chapter entitled “High Court,” and not in the chapter entitled “District Court,” the statute should not be interpreted to permit jury trials in the district court. Yet section headings “are for the purpose of convenience only, and are not to be considered a part of any section, or as altering or affecting in any way the provisions of any section.” A.S.C.A. § 1.0102. Moreover, a more coherent interpretation of the statute would dictate that the placement of the statute in the High Court chapter is to reflect the fact that the High Court Justices are to preside over the jury trial, even when the trial is conducted in the district court.
B. History of the Statute
Not only does the text of the statute support the conclusion that jury trials are to be held in district court, but the history of the statute supports it as well. The jury trial provision came on the heels of King v. Andrus, 452 F. Supp. 11, 17 (D.D.C. 1977), which held that the United States constitutional right to a jury trial extended to the territory of American Samoa. In response, the American Samoa Legislature enacted legislation authorizing jury trials in felony cases. 5 A.S.C. 413(a) (Supp. 1979). Approximately six months later, the Legislature created the District Court system (District Court Act) and, within a year of that, amended the District Court Act to correct inconsistencies between it and the petit jury trial statute. Pub. L. No. 16-53 (1979). The amendment extended the jury trial right from felony cases to all “offense[s] carrying a maximum possible punishment of over 6 months of imprisonment,” forming the current A.S.C.A. § 3.0232(a).
The Legislature believed that the former petit jury trial statute’s provision for jury trials only in felony cases fell short of the requirements of Andrus. Pub. L. Pub. L. No.16-53 (1979) (“The statute governing jury trials is amended to provide jury trials for all offenses carrying sentences of over six months, in conformity with constitutional requirements.”). At that time, though not necessarily today, this was a reasonable conclusion. Years before Andrus, the Supreme Court held that the right to a jury applied to all crimes carrying a maximum penalty of more than six months. Baldwin v. New York, 399 U.S. 66, 69 (1970) (plurality opinion); accord United States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983). Given the Legislature’s likely concern with the constitutionality of denying a jury trial to a defendant charged with an offense carrying a maximum penalty of more than six months, it is a *22reasonable conclusion that the Legislature did not intend the statutory jury trial right extend only to those defendants charged with such crimes before the High Court, but not before the district court.
m.
The district court held that interpreting the statute to permit jury trials in the district court would amount to an unconstitutional amendment by reference. American Samoa’s Constitution states, “No law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section or sub-section as amended, shall be reenacted and published at full length.” Am. Sam. Rev. Const, art. II, § 17. The district court stated that this constitutional mandate was violated when the legislature amended the statute because it failed to republish other subsections of the Code dealing with district court. Thus, the district court concluded:
the Legislature may have intended, by including by reference the “District Court” as falling under the rules to be promulgated for petit juries in subsection (a) of A.S.C.A. § 3.0232, that the statutory right to a jury trial be afforded to misdemeanants tried before the District Court. Yet amendment by reference is precisely what Sec. 17, Article II of the Revised Constitution prohibits.
Am. Samoa Gov't v. Petelo Lafaele, DCCA No. 43-00, slip op. at 18 (Dist. Ct. July 13, 2000).
Several states have enacted nearly identical constitutional provisions. Ala. CONST, art. IV, § 45 (“[N]o law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length”); ARIZ. CONST, art. IV, § 14 (“No Act or section thereof shall be revised or amended by mere reference to the title of such Act, but the Act or section as amended shall be set forth and published at full length”); ILL. CONST, art. IV, §8(d) (“A bill expressly amending a law shall set forth completely the sections amended”); TEX. CONST, art III, § 36 (“No law shall be revived or amended by reference to its title; but in such case the act revived, or the section or sections amended, shall be re-enacted and published at length.”); WASH. CONST, art. II, § 37 (“No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length”). These states’ interpretation of provisions similar to Section 17 informs our decision.
Some states employ a test asking two questions to determine whether a statute presents an unconstitutional amendment by reference. The first *23question is whether the amendment is such a complete act so that “the scope of the rights or duties created or affected by the legislation . . . can be determined without referring to any other statute or enactment.” Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 800-01 (Wash. 2001); accord State v. L.N.A.0, 811 So. 2d 637, 642-43 (Ala. Crim. App. 2001); City of Sierra Vista v. Dir., Ariz. Dep’t of Envtl. Quality, 988 P.2d 162, 167-68 (Ariz. Ct. App. 1999); Elford v. City of Rattle Ground, 941 P.2d 678, 683 (Wash. Ct. App. 1997) (amendment which is virtually incomprehensible without referring to another statute is not a complete act). The second question is whether “a straightforward determination of the scope of rights or duties under the existing statutes be rendered erroneous by the new enactment.” Amalgamated Transit, 11 P.3d at 801; accord In re King, 49 P.3d 854, 858-59 (Wash. 2002); L.N.A., 811 So. 2d at 642. If the amended statute is sufficiently complete and does not render existing statutes erroneous, then Section 17 is not violated. If the amended statute is either incomplete or renders existing statutes erroneous, and fails to reenact and publish these preexisting statutes, then Section 17 is violated.
The amendment to the petit jury statute is complete because it can be understood without reference to other acts. The amendment republished the former subsection in full, and clearly signified what was amended and how. An accused misdemeanant’s right to a jury trial can be determined without referring to any other statute. While the procedural nuances of the jury trial are determined only by examining pre-existing statutes, the scope of the right created by subsection (a), an accused misdemeanant’s right to a jury trial in the district court, can be determined without reference to any other statute. The amendment is not incomplete or unintelligible merely because executing its provisions requires resort to other statutes. L.N.A., 811 So. 2d at 643.
Moreover, though subsection (b) was not republished, this does not amount to a violation of section 17. Section 17 states that if a law is amended, the “sub-section as amended, shall be reenacted and published at full length.” Section 17 does not require the re-enactment and publication of an entire statute when the amendment affects only one subsection. See, e.g., Freeman v. Purvis, 400 So. 2d 389, 392 (Ala. 1981) (the prohibition of amendment by reference “does not necessarily require the re-enactment of an entire legislative Act when only one section is to be amended. An amendatory Act publishing at length the section to be amended is sufficient.”); accord L.N.A., 811 So. 2d at 640.
The second question is also satisfied: a straightforward determination of the scope of rights or duties under the existing statutes would not be rendered erroneous by the amendment. Prior to the amendment, the Code was silent as to an accused misdemeanant’s right to a jury trial in the district court. Though the amended petit jury statute may impliedly *24affect other sections, it would be absurd to require the legislature to identify and publish all statutes that might be1 affected by every amendment.
[T]o say that every statute which thus affects the operation of another is therefore an amendment of it would introduce into the law an element of uncertainty which no one can estimate. It is impossible for the wisest legislator to know in advance how every statute proposed would affect the operation of existing laws.
Am. Lung Ass’n v. Wilson, 59 Cal. Rptr. 2d 428, 432 (Cal. Ct. App. 1996) (quoting Hellman v. Shoulters, 44 P. 915, 920 (Cal. 1896)). Because the amended petit jury statute does not render erroneous the scope of rights or duties under pre-existing statutes, the second question in the test is satisfied. Section 17’s prohibition of amendments by reference was not violated.
IV.
We are bound by the explicit language of the statute, which unequivocally requires all jury trials to be heard before two associate judges sitting with either the Chief or Associate Justice, even if the jury trial is held before the district court. A.S.C.A. § 3.0232(b). “As in all statutory construction cases, we begin with the language of the statute . . . . The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (internal quotation marks and citation omitted); accord Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). Though applying subsection (b) to jury trials held in the district court might be an “administrative nightmare,” as the dissent suggests, we cannot substitute- our policy judgments for the legislature’s. We interpret statutes; we cannot rewrite them.
The dissent argues that the legislature clearly intended the District Court to be a single-judge court. Yet the statute expressly requires three judges in all jury trials. A.S.C.A. § 3.0232(b). Except for the language of the statute, there is no clear indication of what the legislature’s intent was. The legislators and staff might have overlooked subsection (b) in P.L. 16-53, but we are bound by the clear words of the statute, and we cannot speculate as to what the legislators might have overlooked, and hypothesize what they would have done had they remembered subsection (b). “In analyzing a statute, we begin by examining the text, not by psychoanalyzing those who enacted it.” Carter v. United States, 530 U.S. 255, 271 (2000) (internal quotation marks and citation omitted).
*25The dissent argues that our interpretation of the statute leads to an “absurd result” because it would work a change in the way that the composition and powers of the Chief Justice, Associate Justice, and the district court are specified in other sections of the code. Yet a statute is not absurd because it is an exception to other statutes. A statute is not irrational simply because it changes the prevailing practice. Otherwise, legislatures would be condemned to enact only those statutes that change nothing.
While we understand the administrative hardship the statute may bring, we lack the power to ignore the statute’s clear language. “[Cjourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Barnhart, 534 U.S. at 461-62 (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). The dissent has identified a significant and important problem. We do not disagree. But the answer to the stated problem must be found by the legislature. It has full power to amend the statue; separation of powers prevents us from doing so.
V.
Thus, under A.S.C.A. § 3.0232(a), every defendant “charged with an offense carrying a maximum possible punishment of over 6 months of imprisonment,” whether appearing before the High Court or the district court, has the right to a jury trial. Even when the jury trial is held in the district court, “2 associate judges shall sit with either the Chief or Associate Justice, who acts as presiding judge of the court.” A.S.C.A. § 3.0232(b). This right was violated by the district court.
Our interpretation of the statute is in harmony with the well-established . principle that “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” United States ex rel Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909); accord United States v. Jin Fuev Moy, 241 U.S. 394, 401 (1916); Murray v. The Charming Betsy, 2 Cranch 64 (1804). This centuries-old principle of judicial restraint continues to this day. Zadvydas v. Davis, 533 U.S. 678, 689 (2001); I.N.S. v. St. Cyr., 533 U.S. 289, 299-300 (2001); Jones v. United States, 529 U.S. 848, 858 (2000); Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1122 (9th Cir. 2002); Ma v. Ashcroft, 257 F.3d 1095, 1106 (9th Cir. 2001); United States v. Bulacan, 156 F.3d 963, 974 (9th Cir. 1998).
As jurisprudential considerations of advisory opinions, mootness, ripeness, standing, and other rules of judicial self-restraint *26demonstrate, judicial review is a reluctant power, exercised only when and to the extent necessary to resolve disputes appearing before the court. Courts are not to “lightly assume that [the legislature] intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.” St. Cyr., 533 U.S. at 300 n.12 (quoting Hooper v. California, 155 U.S. 648, 657 (1895)); accord Rust v. Sullivan, 500 U.S. 173, 191 (1991); Rescue Army v. Mun. Court of City of Los Angeles, 331 U.S. 549, 571 (1947). Moreover, constitutional issues are not to be needlessly confronted, as judicial review of legislative acts presents a grave and final act, difficult to change and in tension with a pure democratic system. A constitutional holding can be reversed by other government actors only by the arduous process of constitutional amendment. Further, judicial restraint is necessary because of the judiciary’s inherent limitations “arising especially from its largely negative character and limited resources of enforcement.” Rescue Army, 331 U.S. at 571. To maintain their credibility and preserve their normative capital, courts must be diligent in avoiding gratuitous constitutional analysis.
The statute’s text and history, as well as the canon of construction of avoiding unnecessary but grave constitutional questions, require us to interpret the statute as we have. However, if the statute were later to be amended to remove the criminal jury trial power from the district court, the later amended statute would not necessarily be unconstitutional. It is constitutional doubts, not the certainty of unconstitutionality, that is the precondition to the canon of construction we invoke.
Reversed and remanded.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486770/ | MOLLWAY, Acting Associate Justice,
concurring.
Although I join in the prevailing opinion, I write separately to address an issue raised by the dissent. As the dissent notes, the prevailing opinion is not joined in by any judge who lives in American Samoa, instead, I and my colleague on that opinion are acting associate justices, invited to sit in light of conflicts that preclude a full complement of justices based in American Samoa. I recognize that it is the dissenters and other members of American Samoa’s bench who will have to deal with the effects of our holding today. I do not, however, for that reason cavalierly join in the prevailing opinion. To the contrary, it is only because I conclude that the statutes in issue demand our result that I join in it. If I could, in good faith, reach a contrary result true to the statutory language, I would gladly do so.
*27The record contains no evidence indicating that the Legislature intended anything other than what the statutes provide. The dissent argues that, to those who live in American Samoa, it is clear that the Legislature did not intend to enact what it did enact. But when the record does not actually establish such an error, a court, whether in American Samoa or elsewhere, cannot rewrite legislation. To permit judicial redrafting would be particularly dangerous here, where the legislation concerns the court itself. I must trust that, if the Legislature of American Samoa did not intend the result stated in the prevailing opinion, it will act promptly to correct its own pronouncements.
RICHMOND Associate Justice, SAGAPOLUTELE, Associate Judge, and MAMEA, Associate Judge, concurring in part and dissenting in part.
We join the prevailing opinion insofar as it declares that the defendants have a right to a jury trial in the District Court. We disagree, however, with its conclusion that jury trials in the District Court must be conducted by the Chief or Associate Justice of the High Court, joined by two Associate Judges. We do not believe this was the intention of the Legislature. When appropriate, we would adhere to the principles of judicial statutory interpretation enunciated in the prevailing and concurring opinions. However, we believe that these stated principles are misapplied in this case. In our view, the prevailing opinion unnecessarily creates a result of potentially titanic impracticality — a result directly in conflict with various statutes regulating the composition of the High Court and District Court, and defining the functions of the Justices and Judges of our court system.
Standard of Review
In construing a statute, while we must give due weight to its explicit language, we are not bound to interpret the statute so as to create an absurd result. We characterize the result as “absurd” not in any derogative or pejorative sense but as a word of art employed in the judicial standard applicable, in our view, to the issue before the Court.
“It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.” Mova Pharm. Corp v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir. 1998) (quoting Holy Trinity Church v. United States, 143 U. S. 457, 459-60 (1892)); In re Pac.-Atl. Trading Co., 64 F.3d 1292, 1303 (9th Cir. 1995) (Court should not “presume Congress intended an absurd result”); Bechtel Const., Inc. v. United Bd. Of Carpenters, 812 F.2d 1220, 1225 (9th Cir. 1987) (“Legislative enactments should never be construed as establishing statutory schemes *28that are illogical, unjust, or capricious.”). When such a situation arises, “in determining how to avoid an absurdity generated by the plain language of a statute, a court is to look to [legislative] intent.” In re Investment Bankers, Inc., 4 F.3d 1556, 1564 (10th Cir. 1993). “[T]he intention of the drafters, rather than the strict language, controls.” Mova Pharmaceutical Corp, 140 F.3d at 1068 (quoting United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989)).
Discussion
A. The Prevailing Holding Will Have Absurd Results
We acknowledge, as set forth in the prevailing opinion, that A.S.C.A. §3.0232(a) was clearly intended to extend the right of a jury trial to the District Court. Further, the plain language of A.S.C.A. § 3.0232(b) would seem to dictate that when such jury trials are had at the District Court, they shall be presided over by the Chief or Associate Justice of the High Court and two Associate Judges. The prevailing opinion stops there, though, ignoring the implications of such a construction. The Chief Justice and Associate Justice, by statute, are only assigned to the various divisions of the High Court. See A.S.C.A. §§ 3.0209(a) (“The Chief or the Associate Justice shall have power to hear and determine alone any preliminary or supplementary matter in any case before the divisions of the High Court’) (emphasis added), 3.1002 (“The Chief Justice and the Associate Justice shall preside at all [the High Court’s] divisions”), 3.0220 (Appellate Division), 3.0230 (Trial Division), 3.0240 (Land and Titles Division). The same restriction applies to the Associate Judges. That is, by statute, they are only assigned to sit on cases at the High Court. See A.S.C.A. §§ 3.0210 (“The associate judges shall be entitled to be heard on all questions before any division of the High Court’) (emphasis added), 3.1004 (“There shall be no less than 5 associate judges of the High Court’) (emphasis added), 3.0220 (Appellate Division), 3.0230 (Trial Division), 3.0240 (Land and Titles Division).
On the other hand, the District Court is composed of only District Court Judges. A.S.C.A. § 3.0301. No statute envisions the Chief Justice, Associate Justice, or any Associate Judge sitting at the District Court. Indeed, “[a]ll sessions of the district court are conducted by a district court judge sitting alone.” A.S.C.A. § 3.0303 (emphasis added)
Furthermore, it makes sense that the Associate Judges are not designated to sit at the District Court. The District Court does not have jurisdiction over matai titles; the High Court has exclusive jurisdiction. A.S.C.A. § 3.0208(b). And it is in these cases that the Associate Judges perform their most integral function — determining the result in matai title controversies. See, e.g., In re Matai Title "Tuaolo, ” 28 A.S.R.2d 137 *29(Land and Titles Div. 1995) (if majority of the four associate judges agree in result, presiding Justice need not even vote); compare A.S.C.A. § 3.0241(b) (Justice’s decisional role limited to resolving a tie vote among the Associate Judges in matai title cases), with A.S.C.A. §§ 3.0221 (difference of opinion between Justices and Associate Judges in Appellate Division), 3.0231 (difference of opinion between Justice and Associate Judges in Trial Division), 3.0241(a) (difference of opinion between Justice and Associate Judges in land cases).
The prevailing opinion disregards this carefully crafted organizational scheme and implicitly declares that the Legislature, with the slip of a pen, clearly intended to overlook the current structure of our judiciary. Nelson v. Irvine, 143 F.3d 1196, 1207 (9th Cir. 1998) (“Sections of statutes should be construed consistently with other statutory sections whenever possible.”). This result is clearly absurd, inconsistent, and impractical. To read the statute in such a way will create, to say the least, an administrative nightmare. The High Court has only seven authorized and budgeted judicial positions, two Justices and five Associate Judges, and is therefore not equipped to man both the High Court and District Court on any regular or routine basis. It would be particularly and unnecessarily burdensome when jury trials are scheduled in both courts.1
B. The Intent of the Legislature
The prevailing opinion is not only problematic. We do not believe it effectuates the actual intent of the Legislature clearly evident in the evolutionary development of A.S.C.A. § 3.0232.
The Legislature understood, when it enacted the original version of A.S.C.A. § 3.0232 (5 A.S.C. 413, the present code’s forerunner at that time), P.L. No. 15-100 (1978) that King v. Andrus, 452 F. Supp. 11 (D.D.C. 1977), required jury trials in felony prosecutions. Felony prosecutions were then, and still are, only heard before the High Court. A.S.C.A. § 3.0208. At that juncture, we think the Legislature clearly expressed that intent in A.S.C.A. § 3.0232(a) (then 5 A.S.C. § 413 (a)) by applying the statute to the High Court. Moreover, A.S.C.A. § 3.0232(b) (then 5 A.S.C. § 413(b)) clearly complemented subsection (a) as originally enacted. Thus, the phrase “Notwithstanding any law to the *30contrary,” in our understanding, had meaning only in reference to the usual Trial Division quorum requirement of one sitting Associate Judge. A.S.C.A. § 3.0230 (then 5 A.S.C. § 408(c)).2
The Legislature enacted P.L. No. 16-53 (1980) 18 months later. That act “refined” numerous provisions of the “District Court Act of 1979,” including recognition of the constitutional requirement of jury trials in prosecutions of offenses having potential sentences of more than six months, and as stated in the preamble, with the intention to eliminate statutory inconsistencies concerning the respective jurisdictions of the High Court and District Court.
It seems clear that the author of the bill that became P.L. 16-53, and dining the legislative process, the legislators and their staff, overlooked A.S.C.A. § 3.0232(b) and thereby failed to provide clear consistency between subsections (a) and (b) for purposes of the distinctly different and normal composition of judges sitting on jury trials in the High Court and District Court. The oversight, in our view, did not alter the original and readily apparent intent of only mandating two Associate Judges sitting on all jury trials in the High Court — a practice routinely followed. See MCI Telecomm. Corp. v. Am. Tel. & Tel. Co, 512 U.S. 218, 228 (1994) (“[T]he most relevant time for determining a statutory term’s meaning” is when the act became law). We see no reason why we are compelled to interpret subsection (b) other than the evident way the Legislature originally intended.
Opinions Compared
The prevailing opinion correctly states that a “statute is not irrational simply because it changes the prevailing practice.” But dramatically altering not just prevailing practice but the entire court structure is certainly a sign that such a statute may be problematic. When such a situation arises, our goal as a court is to make sense of (he overall statutory scheme, to reconcile the conflicts and harmonize legislative enactments. We should not abdicate this responsibility simply because the plain language of a statute allows for a plausible, yet probably unintended, result. See Pub. Citizen v. Dep't of Justice, 491 U.S. 440, 454-55 (1989).
It seems that the philosophy of statutory interpretation expressed in the *31prevailing opinion differs from the one set forth in this separate opinion. Both methods are reasonable, and we do not mean to discredit the prevailing opinion’s approach. Nonetheless, in our view, the interpretive philosophy of the prevailing opinion is unsuitable in this instance. The prevailing opinion’s claim that there is no indication of what the Legislature intended belies reality.3 Though not overwhelming on the intent issue, the timing of the amendments, existing statutes, and the structure of the Judiciary, coupled with local practice and understanding are sufficient to provide us with a legislative history. Or simply put, there is evidence of the proper context in which to view this statute.
What is considered legislative history in stateside jurisdictions — as examples, records of the proceedings of committee hearings, floor debates, and joint resolutions — is still largely non-existent in this jurisdiction. In saying what the law of this Territory is — what a statute means — we must be cognizant of all relevant factors, of local customs and traditions, and we must allow common sense to prevail. Perhaps this is the most glaring divide between the prevailing opinion and our separate opinion.
In this respect, the three local judges adhering to this separate opinion agree on one interpretation of the statute. The prevailing opinion consists of the two visiting Acting Justices and their contrary view. Thus, while the vote count stands at 2 to 3, the law commands that their opinion prevails. See A.S.C.A. § 3.0221. But this only emphasizes the divide between our viewpoint and the reasoning of the prevailing opinion. In putting form over substance, the prevailing opinion expresses fidelity to a legal dogma that will create a great burden on the Territory and the Judiciary’s resources. In deference to local knowledge and experience with interpreting the Territory’s legislation, we believe that our view is the view of the Legislature.
Conclusion
*32Accordingly, while we concur in the decision stated in the prevailing opinion that an accused is entitled to a jury trial in the District Court, we dissent from the holding in that opinion that requires a Justice and two Associate Judges of the High Court to sit on jury trials, conducted in the District Court.
In view of the prevailing opinion, we urge the Legislature to enact clear legislation in the immediate future stating its intention on the judicial composition sitting on jury trials in the District Court, whether the District Court Judge presides or otherwise.
To firrther emphasize our point, one can wonder why, if the Legislature intended Justices and Judges of the High Court to sit on all jury trials, it did not simply provide that all jury trials take place at the High Court? The prevailing opinion apparently sees nothing absurd about uprooting the High Court’s judges and other resources to the District Court each time a jury trial is held there. We will not attribute such illogic to the Legislature.
The prevailing opinion uses this clause to sanction a ‘wholesale revision of our courts’ composition, without pausing to question its effect. As stated, we think this language references (he number of Associate Judges sitting on a jury trial in the High Court. At the very least, the lack of a consensus as to the purpose of this clause suggests that the plain language of this statute is far from clear.
Ironically, according to the prevailing opinion, it seems that even if there had been express, rather than implicit, legislative history contradicting their interpretation of the plain meaning of the statute, they would still not use it as guidance. See supra at 24 (“When the words of a statute are unambiguous, then ‘judicial inquiry is complete.’”). Contrast, e.g., Pub. Citizen, 491 U.S. at 455 (quoting Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928) (“Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress’ intention, since the plain-meaning rule is ‘rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.’”)). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486771/ | OPINION AND ORDER
Introduction
The defendant-appellant, Alamoana Mulitauaopele (‘Mulitauaopele”), was charged in a two-count information with unlawful possession of methamphetamine and cocaine. After a jury trial, Mulitauaopele was convicted on both counts and sentenced to two consecutive ten-year terms of imprisonment.
Mulitauaopele appealed, arguing that: 1) the admission of expert testimony by Captain Va'aomala K. Sunia (“Sunia”) was improper; 2) the imposition of two consecutive ten-year terms was improper; 3) the two consecutive ten-year terms amounted to cruel and/or unusual punishment; and 4) the government failed to produce sufficient evidence at trial to support the convictions.
Because Sunia improperly provided an opinion that was tantamount to saying that Mulitauaopele was guilty, and because that opinion lacked an admissible foundation, we reverse Mulitauaopele’s convictions.
Background
A. The Evidence Regarding Drug Trafficking.
Mulitauaopele asked fifteen-year-old Pio Vitolio, Jr. (“Vitolio”), to take a trip to buy drugs and bring them back to American Samoa. Mulitauaopele made all of the preparations for the trip. He got Vitolio a birth certificate and a certificate of identity and paid for Vitolio’s airline ticket in cash. Mulitauaopele gave Vitolio two envelopes containing money and told Vitolio to carry them. Mulitauaopele flew with Vitolio to Honolulu, Hawaii, and then to Los Angeles, California.
In Los Angeles, they purchased a substance containing Methamphetamine. On their way back to American Samoa, they stopped in Honolulu, where Mulitauaopele made a phone call and then went out to pay for some cocaine. He told Vitolio to stay at a house and wait for two men to bring the cocaine.
Mulitauaopele and Vitolio then returned to the Honolulu airport separately. Vitolio was carrying the drugs--one bag of methamphetamine and two bags of cocaine. He had gotten a ride back to *35the Honolulu airport from the men who had given him the cocaine. Vitolio got to the airport so late that the plane had left the gate without him and had to be called back so that he could board.
Mulitauaopele and Vitolio met in the bathroom after they arrived at the airport in Pago Pago. Mulitauaopele told Vitolio to follow him. They then went to the baggage area, picked up Mulitauaopele’s bags, and walked to the customs area.
Mulitauaopele and Vitolio handed Territorial Custom Inspector Patrick Tuvale (“Tuvale”) a single customs declaration form. When Tuvale asked why only one form was being used for two people, Mulitauaopele answered that Vitolio did not know how to complete the form. Tuvale asked about the bags and Mulitauaopele told him that the bags belonged to Mulitauaopele, but that Vitolio’s clothes were in one of them. Tuvale then asked whether they were visiting American Samoa. Mulitauaopele affirmed that they were “visiting.” Tuvale noticed that Vitolio’s certificate of identity had been issued three days earlier in American Samoa, suggesting that Vitolio was not just visiting American Samoa. Tuvale was also suspicious because Mulitauaopele had been answering the questions put to Vitolio, and because Vitolio appeared nervous. Tuvale therefore directed a “one hundred percent search” of both Mulitauaopele and Vitolio. Authorities found two bags of cocaine and one bag of methamphetamine on Vitolio.
At trial, Vitolio, who was cooperating with the government, testified that Mulitauaopele had recruited him and directed his actions.
B. Sunia’s Expert Testimony
The government offered Simia, a police captain, as “an expert witness in the area of controlled substance imvestigation including the street value of drugs and the methods of drug smuggling.” The government says it needed Sunia to explain to the jury how Mulitauaopele could “possess” drugs when the drugs were being carried by someone else, a procedure called “muling.”
Sunia testified that there were three kinds of “muling operations.” The third type involved a “vulnerable mule,” usually an unemployed person acting out of fear, or a pregnant or young person. Sunia said his observations of the witnesses, the testimony of the witnesses, and other evidence led him to conclude, in light of his training and experience, that the “operation” was consistent with a “muling operation” using a “vulnerable mule.” Sunia recapped the evidence, referring to Tuvale’s testimony that Vitolio had appeared nervous and that Mulitauaopele had answered all questions asked of him and Vitolio. Sunia noted that Vitolio had testified that all travel documents and tickets were obtained *36for him and that he had been brought to the airport at the last minute by the men who gave him drugs. Sunia then opined that Vitolio “appears to be a person who was very — who was persuaded early into accepting what was offered to him.” Sunia concluded that “[t]hey used this kid’s weaknesses, his ignorance of what’s surrounding him. He was just following instructions.”
Analysis
A. Sunia’s Expert Testimony Regarding Methods of Drug Smuggling was Admissible Under Rule 702
Rule 702 of the American Samoa Rules of Evidence provides for the admission of expert testimony when “scientific, technical, or other specialized knowledge will assist the trier of fact.” In such situations, “a witness qualified as an expert by knowledge, skill, experience, training, or education may testify ... in the form of an opinion or otherwise.” Id. The starting point for determining whether any expert testimony is admissible is first finding that it is relevant and reliable.
In Daubert v. Merrell Dow Pharm., Inc., 50 U.S. 579, 589 (1993), the Supreme Court focused on the admissibility of scientific expert testimony. Under Rule 702 of the Federal Rules of Evidence, which at the time was identical to American Samoa’s present Rule 702, the court found that expert testimony is admissible only if it is both relevant and reliable. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 146 (1999), the Court explained that the presiding judge’s role in ensuring the reliability and relevancy of expert testimony extends to all expert testimony.1
Daubert outlined specific factors, such as testing, peer review, error rates, and acceptance in the relevant scientific community, some or all of which might assist in determining the reliability of a particular scientific theory or technique. Daubert, 309 U.S. at 593-94. The Daubert test is “flexible,” and the “list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a [trial] court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho, 526 U.S. at 141. Under Rule 702, Daubert, and Kumho, Sunia’s testimony was admissible only if he was qualified as an expert and his testimony was reliable and relevant, and would assist the trier of fact.
*37In United States v. Mendoza-Paz, 286 F.3d 1104, 1112-13 (9th Cir. 2002), the Ninth Circuit held that the trial court did not err in qualifying an expert to give testimony regarding the value of seized marijuana. Although Mendoza-Paz did not explicitly discuss Rule 702, it concluded that the Daubert/Kumho test for reliability was satisfied because the valuation expert testified that he had investigated illegal narcotics trafficking for eleven years and had participated in seminars on methods and techniques of drug trafficking organizations. He farther testified that he learned about the value of illegal narcotics through his experience working with intelligence databases, in-house intelligence agents, confidential informants, defendants he debriefed, and cooperating defendants.
Just as the Ninth Circuit concluded in Mendoza-Paz, we conclude that the Daubert/Kumho test for reliability was satisfied here as to Sunia’s expertise in the area of the methods of drug smuggling. Sunia testified that he had spent eight of his fifteen years as a law enforcement officer involved, at least in part, in the investigation and detection of controlled substances. For four of those eight years, Sunia’s primary focus was controlled substances investigations. Additionally, Sunia had been in charge of the vice and. narcotics division of the police department for about a year to a year and a half. Sunia testified that he attended training sessions “on how drugs are being used by gangs in L.A.” He further testified that he participated in undercover drag investigations. Through this experience, Sunia testified, he had become familiar with the way methamphetamine and cocaine were smuggled. Accordingly, Sunia’s expert testimony on the methods of drag smuggling was admissible.
B. Sunia’s Testimony Went Beyond Admissible Expert Testimony
“A trial, court has broad discretion concerning the admissibility or exclusion of expert testimony, and its action will be sustained unless its action is shown to be manifestly erroneous.” EW Truck & Equip Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992). Although Sunia’s testimony satisfied Rule 702, Mulitauaopele argues that it amounted to improper drag courier profile evidence that should not have been admitted. We agree.
Drag courier profile evidence is a “somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics.” United States v. Lui, 941 F.2d 844, 847 (9th Cir. 1991) (quoting Reid v. Ga., 448 U.S. 438, 440 (1979) (per curiam)). Sunia testified that Vitolio fit the “vulnerable mule” description because Vitolio was young and nervous and let Mulitauaopele answer questions *38and fill out the declaration form. This was drug courier profile evidence.2
The Ninth Circuit has “denounced the use of drug courier profile evidence as substantive evidence of a defendant’s innocence or guilt.” Lui, 941 F.2d at 647. Drug courier profiles are “inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.” Id. at 847 (quoting United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir. 1983)). Accordingly, the Ninth Circuit has cautioned that drug courier profile evidence should not be used to prove a defendant’s guilt. Lui, 941 F.2d at 847. The unfair prejudicial effect of such profile evidence far outweighs its probative value and therefore the profile evidence should be excluded. See United States v. Lim, 984 F.2d 331, 335 (9th Dir. 1993). In short, such profile evidence may be excluded under T.C.R.Ev. 403, which mandates exclusion of evidence when its probative value is substantially outweighed by its unfair prejudicial effect.
Other circuits agree that drug profile evidence should not be used as *39substantive evidence. In United States v Williams, 957 F.2d 1238 (5th Cir. 1992), the Fifth Circuit noted:
While the government may introduce evidence that the defendant exhibited individual behaviors that make up the profile, it is something entirely different to tell the jury that all the behaviors together fit a law enforcement mode: of a drag courier. Despite the wide latitude district judges have in determining whether evidence is more probative than prejudicial, in our view the probative value of a drug courier profile is so low in relation to its prejudicial effect that its admission is error.
Id. at 1242 (internal citation omitted); accord United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990) (stating that it is improper to use expert testimony as substantive evidence to show that the defendant fits a profile and, therefore, must have intended to distribute drugs); United States v. Carter, 901 F.2d 683, 694 (8th Cir. 1990) (“Drag courier profiles are investigative tools, not evidence of guilt. The admission of a profile into evidence is inherently prejudicial and can easily influence a jury into thinking that the defendant is guilty. Drug courier profiles are not to be admitted as substantive evidence of guilt.”) (internal quotation marks and citation omitted); see also Commonwealth v. Poitras, 777 N.E.2d 647, 650-51 (Mass. App. Ct. 2002) (reversing a sexual assault conviction because an expert improperly testified as to a profile typically found in child sex abuse cases, and noting the prejudice to defendant because guilt or innocence turned on the complainant’s credibility and the jury might have found that the defendant fit the profile).
Drag courier profile evidence, however, is not always improper. For example, a court does not abuse its discretion in allowing such evidence to rebut a defendant’s claim that he or she does not fit the typical drag courier profile. See United States v. Beltron-Rios, 878 F.2d 1208, 212-13 (9th Cir. 1989). It may also be used to establish a modus operandi in complex cases. United States v. Klimavicius-Viloria, 144 F.3d 1249, 1259 (9th Cir. 1998); Lui, 941 F.2d at 848 (recognizing that drag courier profile evidence may be allowed in complex drag-smuggling conspiracy cases). The present case does not involve either exception. Sunia provided a drag courier profile when he testified that Vitolio fit the “vulnerable mule” description because he was young and nervous, and because Mulitauaopele answered all of the questions put to Vitolio and filled out the declaration form for him This case is very much like Lim.
In Lim, the trial court allowed an agent to testify regarding the drag courier “shotgun” profile, in which the “shotgun” carries no drags, instead traveling with a “mule” who carries the drags. Lim, 984 F.2d at 334. Noting that the expert testimony was not presented to rebut *40testimony by the defendant, the Ninth Circuit then determined that there was “nothing complex about this conspiracy.” Id. at 335. In Lim, the drug courier “shotgun” profile was applied to “two innocuous bits of evidence concerning Lim - the fact that he was engaging in domestic travel and was not carrying drugs.” Id. Lim noted that the prejudicial effect of the “shotgun” profile far outweighed its probative value. Accordingly, Lim held that the drug courier profile was improperly used as substantive evidence of guilt. Id.
Here, the unfair prejudicial effect of the drug courier profile evidence substantially outweighed its probative value, as it merely explained a relatively simple crime. The evidence should have been excluded under Rule 403 and the court committed a manifest error by admitting it. Accordingly, we conclude that the trial court abused its discretion in allowing Sunia to testify that Vitolio fit the profile of a vulnerable mule.
C. Sunia Improperly Testified That Mulitauaopele Used Vitalio’s Weaknesses
Sunia’s testimony went beyond the improper profile evidence. Sunia opined that Mulitauaopele had used Vitolio’s weaknesses. This was tantamount to saying not just that Vitolio fit a profile but that Mulitauaopele was guilty. This opinion was also inadmissible. Although T.C.R.Ev. 704 does not contain the prohibition in Fed. R. Evid. Rule 704(b) against expert testimony in a criminal case as to whether a defendant had the mental state constituting an element of the offense charged, American Samoa’s rules do not open the door to all expert testimony on the ultimate issue of a defendant’s guilt. Rule 704 allows expert testimony “in the form of an opinion or inference” only when it is “otherwise admissible.” T.C.R.Ev. 704.
Although Sunia was qualified to provide expert testimony as to methods of drug smuggling, Sunia’s opinion that Mulitauaopele was actually using Vitolio’s weaknesses to smuggle drugs was based on improper drug courier profile evidence that was not admissible.3 Of course, an expert’s opinion may be based on inadmissible facts or data under Rule 703. Here, however, Sunia’s opinion as to Mulitauaopele’s use of Vitolio’s weakness was so completely intertwined with and dependent on Sunia’s drug courier profile testimony that the inadmissibility of the profile evidence left Sunia with nothing to present to the jury in support of his opinion as to Mulitauaopele’s use of Vitolio. Without the inadmissible drug courier profile evidence, his opinion was an unadorned and unexplained statement that Mulitauaopele was guilty. Such a statement would not assist the jury and so was inadmissible under *41Rule 702, which permits expert testimony if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Moreover, the opinion as to guilt ran afoul of Rule 403, which provides for exclusion of evidence when its probative value is substantially outweighed by its unfair prejudicial effect. A bald, unsupported opinion as to guilt is highly prejudicial and totally lacking in probative value. Sunia’s opinion that Mulitauaopele was using Vitolio’s weaknesses to smuggle drags should have been excluded.
D. Allowing Sunia to Testify that Mulitauaopele was Using Vitolio’s Weaknesses to Smuggle Drugs Was Not Harmless Error
The trial court’s errors in allowing Sunia to provide drag courier profile evidence and opine that Mulitauaopele was using Vitolio’s weaknesses to smuggle drags require reversal of Mulitauaopele’s convictions unless they were harmless. See Lui, 941 F.2d at 848 (unless there is “a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required”) (quoting Schneble v. Fla., 405 U.S. 427, 432 (1972)); United States v. Binder, 769 F.2d 595, 601-02 (9th Cir. 1985) (erroneous admission of expert testimony is reversible when it more probably than not materially affected the verdict) (citing United States v. Valle-Valdez, 554 F.2d 911, 916 (9th Cir. 1977)). In other words, reversal is required unless “it is more probable than not that the prejudice resulting from the error did not materially affect the verdict.” Lim, 984 F.2d at 335; Lui, 941 F.2d at 848; see also T.C.R.C.P. 52(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”).
Although T.C.R.Ev. 704 does not prohibit experts from testifying as to ultimate issues, we hold that allowing Sunia to provide an opinion that Mulitauaopele used Vitolio’s weaknesses when Sunia could provide no proper foundation for his opinion was an error that was not harmless. Sunia’s testimony that Mulitauaopele was using Vitolio’s weaknesses to smuggle drags was improper and prejudicial evidence by a police expert that Mulitauaopele was, in fact, guilty. Under these circumstances, we cannot conclude that it is more probable than not that Sunia’s testimony did not materially affect the verdict.
Our conclusion that admission of Sunia’s opinion as to Mulitauaopele’s guilt was reversible error makes it unnecessary for us to decide whether the error in admitting drag courier profile evidence, standing alone, was reversible error. As the record clearly contains sufficient evidence to permit conviction even without any of Sunia’s testimony, we are not persuaded by Mulitauaopele that his convictions should be reversed based on insufficient evidence. However, we cannot say that the jury would probably have found Mulitauaopele guilty absent Sunia’s opinion as to guilt. It is difficult to conceive of expert testimony that is more *42prejudicial and less probative than an opinion by a law enforcement expert, unsupported by .anything permitted by court rules, that a defendant is guilty. The judgment against Mulitauaopele is reversed and this case is remanded for a new trial.4
It is so ordered.
The federal rule was amended in 2000 in response to Daubert, Kumho, and other similar cases. See Fed. R. Evid. 702 advisory committee’s note.
Sunia’s testimony about the types of muling operations, as well as his comments on Mulitauaopele’s purchase of Vitolio’s airlines tickets and remarks about Vitolio’s late arrival at the airport, however, were modus operandi (“MO”) evidence, not drug courier profile evidence. United States v. Gil, 58 F.3d 1414, 1422 (9th Cir. 1995) (stating that MO evidence aids a jury’s understanding of complex criminal activities and notifies the jury that combinations of seemingly innocuous events may indicate criminal behavior). Government agents may testify regarding the general practices of criminals to establish an MO in complex criminal cases. Id. (permitting “expert testimony that drug traffickers often employ counter- surveillance driving techniques, register cars in others’ names, make narcotics and cash deliveries in public parking lots, and frequently use pages and public telephones”); accord United States v. Cordoba, 104 F.3d 225, 229-30 (9th Cir. 1997) (noting that testimony regarding drug traffickers’ practice of avoiding giving large amounts of cocaine to couriers who do not know what they are transporting was not drag courier profile evidence, but instead permissible MO evidence in a complex criminal case). The definition of what is a sufficiently complex criminal case to allow expert testimony differs in the MO and drag courier profile contexts. In the latter, for instance, the Ninth Circuit has found “nothing complex” about a drag conspiracy involving two defendants traveling on the same plane with only one of the two carrying the drags. United States v. Lim, 984 F.2d 331, 335 (9th Cir. 1993). The present case offers complexity sufficiently analogous to that in Gil and Cordoba to permit MO evidence. As noted below, however, that is not the same as saying that this case was sufficiently complex to permit drug courier profile evidence.
The evidence described in footnote 5 above did not support Sunia’s opinion that Mulitauaopele was using Vitolio’s weaknesses.
As we reverse Mulitauaopele conviction, we need not determine whether his sentence was improper or unconstitutional. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486773/ | WALLACE, Acting Associate Justice,
dissenting:
I understand the concerns expressed by the majority and am not unsympathetic. However, as an appellate court, our responsibilities are governed by certain limits critical to the smooth operation of the justice system. Three of those cause me to dissent. First, we are limited to the lower court’s factual record. A second limit is the standard of review: here, abuse of discretion. The standard of review is important not only because it is sometimes dispositive to the outcome of the appeal, but also because it traces the proper distribution of judicial power between the trial and appellate courts. The third limit is the law applicable to the case before us. Because I disagree with the majority in these critical areas, I am unable to join in the majority disposition.
I.
I start with the issue of the drug courier profile evidence. The majority concludes:
[T]he unfair prejudicial effect of the chug courier profile evidence substantially outweighed its probative value, as it merely explained a relatively simple crime. The evidence, should have been excluded under Rule 403 and the court committed a manifest error by admitting it. Accordingly, we conclude that the trial court abused its discretion in allowing Sunia to testify that Vitolio fit the profile of a vulnerable mule.
*44Majority Opinion, page 12. Here I disagree with the majority’s understanding of the law. While recognizing that the question is whether the evidence’s unfair prejudicial effect substantially outweighed its probative value, T.C.R.Ev. 403; accord Fed. R. Evid. 403, the majority fails to identify how the evidence’s prejudicial effect is unfair, and how it substantially outweighs its probative value. Indeed, there is no showing that there was any unfair prejudice at all, much less that it substantially outweighed the evidence’s probative value.
But that is not all. The majority articulated the correct standard of review, abuse of discretion, but it failed to apply this standard in any meaningful sense. “A trial court has broad discretion concerning the admissibility or exclusion of expert testimony.” EW Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (1992). To be of concern to the appellate court, the trial court must have abused its discretion. United States v. Hanna, 293 F.3d 1080, 1085 (9th Cir, 2002); United States v. VonWillie, 59 F.3d 922, 928 (9th Cir. 1995) (stating that there is no difference between the “abuse of discretion” standard and the “manifestly erroneous” .standard, and adopting the former characterization); United States v. Rohm, 993 F.2d 1405, 1409-10 (9th Cir. 1993) (same). In effect, the majority determined what the trial court should have done, but the appellate court cannot substitute its judgment for the lower court’s. United States v. McMullen, 98 F.3d 1155, 1159 (9th Or, 1996). Under an abuse of discretion standard, an error is not enough. The trial court’s evidentiary rulings may be reversed only if there is abuse of discretion, which has been defined as “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Wing v. Asarco, Inc., 114 F.3d 986, 988 (9th Cir. 1997) (emphasis added, internal quotation marks omitted). Reversal is possible only “when the appellate court is convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000).
I would have difficulty holding there was trial court error in admitting the evidence at issue. Certainly, then, applying the law and the applicable standard of review, as I must, I cannot conclude that the trial court abused its discretion. The majority cites United States v. Lim, 984 F.2d 331 (9th Cir. 1993), United States v. Lui, 941 F.2d 844 (9th Cir. 1991), United States v. Jones, 913 F.2d 174, 177 (4th Cir. 1990), United States v. Carter, 901 F.2d 683, 684 (8th Cir. 1990), and Commonwealth v. Poitras, 774 N.E.2d 647, 650-51 (Mass. App. Ct. 2002), but this case is significantly different. Unlike Lim, Lui, Jones, Carter, and Poitras, Sunia did not opine that the defendant fit the drug courier profile. This is not “a case in which the government attempted to establish the defendant’s guilt by showing that he has the same characteristics as a drug courier.” Cf. Jones, 913 F.2d at 177. Instead, the officer opined that *45Mulitauaopele’s alleged accomplice, Vitolio, fit the drug courier profile. Considering that Vitolio himself testified that he was a “mule” (drug courier), there was no unfair prejudicial effect. Unlike the cases the majority cites, the chug courier profile was not used as substantive evidence of the defendant’s guilt, but only of Vitolio’s guilt. Put another way, as the majority recognizes, drug courier profiles are “inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers.” Lui, 941 F.2d at 847 (internal quotation marks omitted). This unfair prejudice is suffered by the person profiled, Vitolio. Mulitauaopele suffers no unfair prejudice, and he cannot complain of Vitolio’s harm.
The majority’s citation of Poitras is doubly ironic because, in that child abuse case, the court permitted profile evidence of child abuse victims. 774 N.E.2d at 649-50. The appellate court held that the trial court abused its discretion only when it admitted an opinion that the defendant fit the profile of child abusers. Id. at 650. The prejudicial effect was improper because the jury might conclude that, because the defendant fit the profile, he is more likely to have committed the crime. Id. There is no such unfair prejudice here, where the profile is of the accomplice, not the defendant. Just as the trial court in Poitras did not abuse its discretion in permitting profile evidence of child abuse victims, the trial court here did not abuse its discretion in permitting profile evidence of the accomplice. The analysis in Poitras, a case relied on by the majority, demonstrates why the majority is wrong in its holding.
n.
The majority holds that because “Sunia opined that Mulitauaopele had used Vitolio’s weaknesses,” this was “tantamount to saying ... that Mulitauaopele was guilty.” I read the record differently. Sunia never opined that Mulitauaopele used Vitolio’s weaknesses. Instead, Sunia opined that “they” used Vitolio’s weaknesses. The majority just assumes, with no basis in the record, that Sunia meant “Mulitauaopele” when he said “they.” I cannot agree with the majority’s description of the record.
But, even assuming that Sunia said what the majority claims, I disagree that his opinion is “tantamount” to saying that Mulitauaopele was guilty. Sunia did not state Mulitauaopele was guilty. Sunia did not even necessarily imply guilt. Mulitauaopele could use Vitolio’s weakness and yet not be guilty of drug possession. Suppose, for instance, that Mulitauaopele mistakenly thought that he was using Vitolio to smuggle Russian diamonds or Cuban cigars instead of illegal drugs. In that case, Mulitauaopele would have used Vitolio’s weaknesses, but he is not guilty of unlawful possession of drugs. Under the majority’s reasoning, anytime an expert gives an opinion that tends to show that the defendant *46is guilty, i.e., every time an expert’s opinion is relevant — a necessary precondition to it being admissible at all — the expert is somehow giving an opinion that the defendant is guilty.
m.
So far, I have disagreed with the majority’s conclusion that Sunia’s opinion that Mulitauaopele (or “they”) used Vitolio’s weakness was inadmissible because the opinion was based on improper drug courier profile evidence. But even assuming for the sake of argument that drug courier profile evidence would be improper in this case, the majority’s conclusion still does not follow.
First, Sunia’s opinion was based not on profile evidence, but on the officers’ firsthand observations that Vitolio was weak. This is not profile evidence, and it is not inadmissible just because other drug couriers tend to act similarly. Sunia’s opinion was properly based on the officers’ observations that Vitolio did not answer the questions put to him, he was fifteen years old, he appeared nervous, all his travel arrangements were made by another, his airline ticket was paid for by another, he let another fill out his declaration form, etc. Sunia’s opinion that Mulitauaopele used Vitolio’s weakness was not based at all on any drug courier profile. It does not matter how other mules act. All that mattered, as far as Sunia’s opinion was concerned, was what Mulitauaopele (or “they”) did, and how Vitolio acted.
Second, even if Sunia’s opinion was based entirely on an inadmissible drag courier profile, his opinion is nonetheless admissible under the rules of evidence. T.C.R.Ev. 702 governs the admissibility of expert opinions, and nowhere is there a requirement that the basis of the opinion be admissible. As the majority opinion observes but does not apply, T.C.R.Ev. 703 permits an expert’s opinion to be based on inadmissible facts or data. According to Rule 705, the basis need not be disclosed. T.C.R.Ev. 705 (stating that the “expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise” or unless the basis is elicited on cross-examination). Under the applicable rales of evidence, an expert may give, what the majority calls, an “unadorned” and “unexplained” opinion. The majority opinion fails to follow the rales of evidence. This I cannot do.
IV.
Because I disagree with the majority’s reading of the record, its failure to apply the appropriate standard of appellate review meaningfully, and its understanding of applicable law, I must dissent. I would affirm the conviction. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486774/ | ORDER DENYING MOTION TO SUPPRESS
*51Before the court is a motion to suppress statements given by the defendant in the course of police interrogation. We deny the motion.
Findings of Fact
Based on the evidence adduced at the hearing on the motion on November 15, 2002, and judicial notice of the record in American Samoa Government v. Paulava Malala, CR No. 30-01, we make the following findings of fact.
Around 2:00 a.m. on Sunday July 14, 2002, there was a brawl in front of the Curve nightclub in Faganeanea. Several persons were injured. Because defendant Paulava Malala (“Malala”) suffered a head wound, the police initially viewed him as a victim. Injured persons, including Malala, were taken to the hospital for medical examination and treatment. When he was released from the hospital, around 5:00 a.m. the same day, he was taken to the central police station in Fagatogo (“CPS”) for general questioning by Det. John Cendrowski about the incident.
The police continued their investigation of the melee at the Curve. After interviewing some witnesses, Malala became a suspect in the fatal stabbing of another person and for discharge of a shotgun during the Curve incident. Malala was taken to the correctional facility at Tafuna (“TCF”), apparently later on July 14, 2002, allegedly for protection from possible retaliatory action by the deceased’s family. The following day, Monday, July 15, 2002, Malala was arrested under a warrant issued for an alleged violation of a probation condition in CR No. 30-01. He was either served with this warrant at the TCF or taken there after this arrest.
During the midday of Tuesday July 16, 2002, at the'direction of Capt. Va'a Sunia, the head of the Criminal Investigation Division (“CID”) and lead investigator of the Curve incident, Lt. Ta'ase Sagapolutele escorted Malala from the TCF to the CID office at the CPS for questioning. Lt. Sagapolutele had not yet seen the autopsy report and was not sure of the cause of death. However, because Lt. Sagapolutele intended to conduct a custodial interrogation about Malala’s participation in the brawl, he first gave Malala Miranda warnings that he had the right to remain silent and to have an attorney, and that anything he said could be used against him. Malala signed a waiver of his rights, written in Samoan, and proceeded to give a statement to Lt. Sagapolutele, first orally and then in his own handwriting, except for two changes made by Lt. Sagapolutele. The Lieutenant wrote “doorman” above a striken word, which appears to be “door,” and “tbrusted” above the striken word “waved” after Malala demonstrated what he did with the knife. He did not, however, initial or otherwise acknowledge the changes.
In essence, Malala wrote, with the two appended changes, that in self-*52defense he removed a knife from his pants and thrusted it at someone, who may have been hurt a little. After one person hit his head with a beer bottle and another threw a bottle at his face, he was able to retrieve a shotgun from his car and fired it in the air twice to scare off people before his brother took the shotgun away from him. He then passed out. This is the written statement Malala seeks to suppress.
There are two points of contention regarding these events. First of all, Malala claims that when Lt. Sagapolutele told him to get into the police unit at the TCF to take him to the CPS, Malala refused and said he wanted a lawyer. In response, Lt. Sagapolutele hit the vehicle door, told him to get into the vehicle, and told him that there would be no attorney at that time. In effect, Malala asserts that Lt. Sagapolutele ignored Malala’s plea for an attorney. Lt'. Sagapolutele testified, on the other hand, that throughout his contact with Malala on July 16, Malala was cooperative and neither said, nor did, anything to make him believe that Malala did not want to talk with him.
The first issue boils down to credibility. We simply do not believe Malala’s self-serving testimony. We are incredulous that Lt. Sagapolutele would ignore such a blatant appeal for an attorney.
The second point of contention concerns the overall tone and manner of the interrogation. In Malala’s version, at the CID office, before he wrote the statement, Malala denied having a knife and stabbing the deceased victim and Lt. Sagapolutle responded by banging his fist on the table and screaming that something bad would happen to Malala if he did not speak the truth. He testified that several times Lt. Sagapolutele threatened to beat him and said Malala would be locked up forever. He also claims that Lt. Sagapolutele falsely stated that the deceased died of a gunshot wound, and if Malala admitted to the knife stabbing, he would not be prosecuted for the killing. Malala maintains that he was afraid and wrote what Lt. Sagapolutele told him what to write — untruths such as admitting that he had a knife in his pants but did not intend to kill anyone with one when he actually did not even have a knife on his person. Malala also stated that Lt. Sagapolutele offered to buy him lunch if he signed the written statement.
Lt. Sagapolutele contradicted Malala’s testimony. He indicated that throughout his contact with Malala on July 15, Malala was cooperative, showed no fear, had no reservation about talking with him, and no difficulty writing his statement. Lt. Sagapolutele maintained that he did not raise his voice, threaten Malala with physical force, or make any promises or inducements. He did grant Malala’s request for a cigarette break while Malala was still writing his statement. He had informed Malala that he would return with him to the TCF after the questioning, but he did not offer Malala lunch until he and Capt. Sunia, with Malala, *53were on the way there, because he knew that the TCF lunch period was over.
Again, the issue boils down to credibility: We believe Lt. Sagapolutele’s version.
Analysis
Plaintiff American Samoa Government (“ASG”) “bears the burden of proving by a preponderance of the evidence that a defendant waived Ins Miranda rights.” United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998); see also Colorado v. Connelly, 479 U.S. 157, 168 (1986). Likewise, ASG “bears the burden of proving by a preponderance of the evidence that [a] statement was voluntary.” United States v. Braxton, 112 F.3d 777, 781 (4th Cir. 1997). Our ultimate determination of both these issues is based on the totality of the circumstances. Garibay, 143 F.3d at 536 (waiver); Braxton, 112 F.3d at 781 (voluntariness).
A. Request for Counsel
Malala argues that because he requested an attorney, the police were required to cease all interrogation until counsel had been made available. A little background is necessary.
A suspect’s right against self-incrimination, and the now familiar Miranda doctrine, arise in the context of custodial interrogation. See Am. Samoa rev. Const. art. I, § 6; U.S. CONST, amend. V; Miranda v. Arizona, 384 U.S. 436 (1966). In this setting, if a suspect requests counsel interrogation must cease until counsel is made available, “even if the suspect later attempts to waive that right.” United States v. Avants, 278 F.3d 510, 514-15 (5th Cir. 2002) (explaining Edwards v. Arizona, 451 U.S. 477 (1981)). “Once the suspect has invoked the right to counsel, any subsequent conversation must be initiated by him.” Michigan v. Jackson, 475 U.S. 625, 626 (1986) (quoting Solem v. Stumes, 465 U.S. 638, 641 (1984)) (explaining Edwards rule). The Edwards rule that interrogation must cease applies even if renewed interrogation concerns a separate investigation. See Arizona v. Roberson, 486 U.S. 675 (1988). Furthermore, the rule that an attorney be “made available” means that interrogation cannot resume “without counsel present.” Minnick v. Mississippi, 498 U.S. 146, 153 (1990).
Under the right to have the assistance of counsel, the rules are a little different. Am. Samoa Rev. Const, art. I, § 6; U.S. Const, amend VI. The right attaches “at or after the time that judicial proceedings have been initiated.” Main v. Moulton, 474 U.S. 159, 176 (1985) (quoting Brewer v. Williams, 430 U.S. 387, 398 (1977)); see also Massiah v. United States, 377 U.S. 201 (1964). In terms of interrogation, after the *54right attaches, the accused has “the right to rely on counsel as a ‘medium’ between him and the State.” Moulton, 474 U.S. at 176. The right “is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” Id. However, even though the right attaches, if an accused does not affirmatively request counsel, further interrogation is not forbidden as long as the accused properly waives his right. Patterson v. Illinois, 487 U.S. 285, 290-297 (1988) (finding that Miranda warnings are sufficient to apprise a suspect of his Sixth Amendment rights). On the other hand, if an accused affirmatively requests the assistance of counsel, further interrogation is prohibited without counsel present, despite a waiver of Miranda rights.1 See Michigan v. Jackson, 475 U.S. 625, 636 (1986) (extending Edwards cease-interrogation and waiver rules to the Sixth Amendment); see generally Daniel A. Klein, Annotation, Requirement, under Federal constitution, that law enforcement officer’s custodial interrogation cease after suspect requests assistance of counsel— Supreme Court cases, 129 L.Ed.2d 955. But see Texas v. Cobb, 532 U.S. 162, 174-177 (2001) (Kennedy, J., concurring) (questioning continuing validity oí Jackson).
B. Right to Counsel
Because we have explicitly found, by a preponderance of the evidence, that Malala did not request an attorney, we can declare that the cease-interrogation rule is not applicable to this case. Therefore, as to this argument, it is irrelevant whether the interrogation took place under the rubric of the right against self-incrimination or the right to assistance of counsel.
Nonetheless, even though Malala did not request an attorney, he argues that because he was in custody for the parole violation, and because he was represented in that matter, the statements concerning the events at the Curve were taken in violation of his right to counsel. As already noted, once this right attaches, and the suspect does not ask for counsel, the police can interrogate a suspect without counsel present provided he validly waives that right. See Patterson, 487 U.S. at 290-297. Assuming the right had attached, because Malala did not request counsel, and because he validly waived his rights — Malala was given Miranda warnings and signed a waiver — there was no constitutional bar to the interrogation. Id.
*55Furthermore, even had Malala not waived his rights, the police officers were not precluded from asking Malala questions concerning a different offense from the one in which he was represented. The right to counsel, unlike the right against self-incrimination, only applies to crimes that constitute the same offense. Compare McNeil, 501 U.S. at 175 (“The [right to counsel] is offense-specific.”), with Roberson, 486 U.S. at 684 (Because of the privilege against self-incrimination, a “suspect’s request for counsel should apply to any questions the police wish to pose”). “[T]he definition of an ‘offense’ is not necessarily limited to the four comers of a charging instrument.” Cobb, 532 U.S. at 173. Relying on its Double Jeopardy jurisprudence, the United States Supreme Court has held that “when the . . . right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the [Blockburger v. United States, 284 U.S. 299 (1932)] test.” Id. The Court rejected, as applied by various lower courts, an expansive exception to the offense-specific definition “for crimes that are ‘factually related’ to a charged offense.” Id. at 168.
Therefore, Malala’s right to counsel did not apply to the interrogation concerning the events at the Curve. Malala was on parole after having entered a plea of guilty to stealing, A.S.C.A. § 46.4103, in June 2001. In that matter, Malala was represented by the public defender (“PD”). He now asserts that this representation extended to his detention for the probation violation. We assume without deciding that this is trae. Nonetheless, the interrogation in this case dealt with the incident at the Curve, and not with Malala’s probation violation. Applying the Blockburger test to determine whether the two offenses are the same for purposes of the right to counel, it is clear that a probation violation “requires proof of a fact which [the offenses that arose' out of the incident at the Curve] do[] not.” Cobb, 532 U.S. at 173 (quoting Blockburger, 284 U.S. at 304; see Avants, 278 F.3d at 517 n.5. Compare A.S.C.A. § 46.2209 (requiring violation of condition of probation), with A.S.C.A. 46.4203 (requiring the carrying of a concealed weapon), A.S.C.A. § 46.4221 (requiring possession of arms without a license), and A.S.C.A. § 46.4231 (requiring discharge of arms).2
C. Voluntariness
Finally, Malala argues that his confession was not voluntary. Even if a suspect waives his Miranda rights, a court must still determine whether his confession was voluntary and not obtained under the due process of law. AM. SAMOA Rev. CONST, art. I, § 2; U.S. CONST, amend *56XIV; see Withrow v. Williams, 507 U.S. 680, 688-89 (1993); Colorado v. Connelly, 479 U.S. 157, 163 (1986); Miller v. Fenton, 474 U.S. 104, 109-110 (1985); People v. Massie, 967 P.2d 29, 46 (Cal. 1998). Our determination is based on the totality of the circumstances. See Williams, 507 U.S. at 688-89.
Those potential circumstances include not only the crucial element of police coercion, the length of the interrogation, its location, its continuity, the defendant’s maturity, education, physical condition, and mental health. They also include the failure of police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation.
Id. at 693-94 (1993) (citations omitted). Also, voluntariness is determined by “whether the confession was extracted by any sort of threats or violence, [or] by any direct or implied promises, however slight, [or] by the exertion of any improper influences.” United States v. Braxton, 112 F.3d 777, 780 (4th cir. 1997) (internal quotations omitted). A confession is not voluntary if any of these circumstances show that “the defendant’s will has been overborne or his capacity for self-determination critically impaired.” Id. (internal quotations omitted).
Given our findings of facts, we hold that Malala’s statement was indeed voluntary. The police officers did not use physical threats or violence, nor did they induce Malala. Furthermore, Malala made no claims, nor does the evidence support any, concerning other factors, such as age, education, or location of interrogation.
Conclusion
For the reasons stated above, the motion to suppress is denied.
It is so ordered.
When Jackson is invoked, however, it prohibits further interrogation for only the same offenses. See McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). For a further discussion on what constitutes a same offense, see infra II.B.
It seems that the offenses in this case would not. even be considered “closely related” under the test proposed by the dissent in Cobb. Cobb, 532 U.S. at 186-87 (Breyer, J., dissenting). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486775/ | ORDER DENYING RESPONDENT’S MOTION FOR RECONSIDERATION OR NEW TRIAL, AND GRANTING PETITIONER’S MOTION FOR RECONSIDERATION OR NEW TRIAL
Petitioner, Boral Gas of American Samoa (“Boral”), brings this motion for reconsideration or new trial with respect to the Court’s opinion and order of October 3, 2002, granting partial summary judgment to the respondent, Faafetai Iaulualo (“Iaulualo”), as the Acting Treasurer of American Samoa and Commissioner of Internal Revenue under the Samoan Income Tax. Act (“SITA”). Our order held that Boral was liable for tax deficiencies for the years 1997, 1998, and 1999. For the reasons discussed below, we deny this motion.
Boral also requests, in the event of denial of its motion for reconsideration or new trial, the Court to clarify whether the time of filing a notice of appeal is 90 days from entry of the judgment, excluding the time the motion for reconsideration or new trial is pending, pursuant to SITA § 7483 or 10 days from entry of the order denying the motion for reconsideration or new trial, pursuant to A.S.C.A. § 43.0802.
Iaulualo also brings a motion for reconsideration or new trial with respect to the Court’s tentative award of litigation costs related to the summary judgment granted to Boral for the tax years 1994 and 1996. For the reasons discussed below, we will grant this motion.
I. The Boral Motion
A motion for reconsideration or new trial “should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons.” Am. Samoa Gov't v. S. Pac. Island Airsystems, Inc., 28 A.S.R.2d 170, 171 (Trial Div. 1995). We made clear in our order that there were no genuine issues of any material facts. Boral does not dispute that. Instead, Boral urges us reconsider or to grant a new trial as to the result reached. As we stated, our holding was “one of statutory interpretation, which is purely a question of law.” Boral Gas of Am. Samoa, Inc. v. Iaulualo, 6 A.S.R.3d 232, 237 (Trial Div. 2002) (citing United States v. Blue Cross Blue Shield of Mich., 859 F. Supp. 283, 286 (E.D. Mich. 1994)). The arguments Boral now advances are the same as the ones they advanced at the summary judgment stage and present no substantial reasons to reverse our opinion.
Boral continues, to argue that A.S.C.A. § 11.0403 automatically incorporates any changes to the Internal Revenue Code (“IRC”) even if it *59would result in repealing an existing SITA section. It insists the only time that § 11.0403 does not operate in that manner is when our Legislature uses language that clearly “de-links” a SITA provision with its “mirror” IRC provision.
Though it would be clearer if the Legislature were so explicit, it does not follow that the absence of any “de-linking” language will subject a SITA section to automatic impermanence. Instead, in cases where the language of SITA is ambiguous and conflicts with the IRC, we must, and did, determine whether the Legislature intended to “de-link” a SITA section. For the reasons stated in our opinion, we continue to believe they did so intend in this case (to de-link A.S.C.A. 11.0533 from IRC § 11(b)).
Holmes v. Dir. of Rev. & Tax., Gov’t of Guam, 827 F.2d 1243 (9th Cir. 1987) does not support Boral’s position. That case, like other cases interpreting territorial mirror tax schemes, simply does what we did— provide the proper statutory interpretation for ambiguous sections of a tax code. See generally id.; Great Cruz Bay, Inc. v. Wheatley, 495 F.2d 301 (3d Cir. 1974); Sayre & Company v. Riddell, 395 F.2d 407 (9th Cir. 1968). Moreover, those cases involved the interpretation of federal law by federal courts, as the U.S. Congress created the mirror tax codes for Guam, the Commonwealth of the Northern Mariana Islands, and the Virgin Islands. In this respect, while we may look to those cases for guidance, w6 are free to interpret our own laws differently than similarly worded federal laws. See Alamoana Recipe Inc. v. Am. Samoa Gov’t, 24 A.S.R.2d 156, 157 (Trial Div. 1993); see also Wray v. Wray, 5 A.S.R. 2d 34, 45 (Trial Div. 1987).
n. Time to Appeal
In tax deficiency proceedings, the “High Court sits as a Tax Court.” Klauk v. Am. Samoa Gov’t, 13 A.S.R.2d 52, 55 n.2 (Trial Div. 1989); see A.S.C.A. § 11.0401. In doing so, we follow the tax court rules and procedures set forth in the IRC. See generally Stephens v. Coleman, 15 A.S.R.2d 87 (Trial Div. 1990) (applying jurisdictional standards of IRC); Klauk, 13 A.S.R.2d. 52 (same); A.S.C.A. § 11.0409.
Under 26 U.S.C.A. § 7483, “Review of a decision of the [High Court, sitting as the] Tax Court shall be obtained by filing a notice of appeal with the clerk of the [High Court] within 90 days after the decision of the [High Court] is entered.” See A.S.C.A. § 11.0401 (substituting “High Court” for “District Court” and “Tax Court”). Furthermore, “absent an express rule to the contrary, a motion for reconsideration terminates the running of the ninety day limitations period,” and, in effect, restarts the clock for appealing if and when the motion is denied. Nordvik v. Comm’r I.R.S., 67 F.3d 1489, 1493 (9th *60Cir. 1995). Therefore, notwithstanding the 10-day time limit in A.S.C.A. § 43.0802, we are bound to apply in tax proceedings the time limit of § 7483. See Atuatasi v. Moaali'itele, 8 A.S.R.2d 53, 59 n.2 (Trial Div. 1988) (noting that a later statute [in this case SITA] governs the earlier [in this case A.S.C.A. § 43.0802]).1
m. The Iaulualo Motion
During the hearing on both pending motions, Boral acceded to Iaulualo’s position that Boral is not entitled to litigation costs. Determination of litigation costs could involve further evidentiary hearings on possibly complex issues, such' as the exhaustion of administrative remedies, contested amounts, and substantial justification of Iaulualo’s positions before and during this action. We will, therefore, not belabor the issue and grant Iaulualo’s motion.
Order
1. Boral’s motion for reconsideration or new trial regarding the court’s decision on the tax years 1997, 1998 and 1999 is denied.
2. Iaulualo’s motion for reconsideration or new trial regarding litigation costs related to the tax years 1994 and 1996 is granted. Boral shall not recover litigation costs for those tax years.
It is so ordered.
We note that we apply-the “later statute governs the earlier” standard in this situation because: 1) there is no evidence, either explicitly through a statute or implicitly through Legislative history, that the Legislature intended to “de-link” § 7438 in favor of A.S.C.A. § 43.0802, and 2) following § 7438 is not incompatible with § 43.0802 but rather creates uniformity between tax proceedings here and at the federal level. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486776/ | ORDER DENYING MOTIONS TO DISMISS AND TO TAKE DEPOSITIONS
Defendant brings before us a motion to dismiss the prosecution and to take depositions pursuant to T.C.R.Cr.P. 15. We deny both motions as premature.
Background
*62Defendant is charged with violating A.S.C.A. § 13.1022.1 He was arrested at the port facilities in Fagatogo after authorities discovered what is alleged to be approximately 8 pounds of marijuana in a box defendant carried. At the time, he told the authorities that he had no knowledge of what was in the box. Instead, he insisted that he was bringing it as a favor to an acquaintance from the Independent State of Samoa (“Samoa”). He alleges that there are witnesses currently residing in Samoa that can corroborate his statements.
I. Motion to Dismiss Prosecution
Defendant moves to dismiss the prosecution on the basis that the statute in question violates the territorial and U.S. constitutional prohibitions against cruel and/or unusual punishments.2 We decline to rule on the *63motion since the issue is not ripe for adjudication.
Any constitutional attack on a particular punishment is normally not ripe for review before the punishment has been given, indeed, before the trial has even commenced. See United States v. Quinones, 313 F.3d 49, 58 (2d Cir. 2002). However, courts will mle if “(1) the issues are fit for judicial consideration, and (2) withholding of consideration will cause substantial hardship to the parties.” Id. (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967)). While a facial attack on the statute may be fit for judicial consideration, the second requirement has not been met in this case. Unlike Quinones, defendant’s strategy will not change by invalidating the punishment portion of A.S.C.A. 13.1022; nor will the procedures in his trial vary. Cf. id. at 58-61. Instead, only the sentencing stage would be affected.3
Furthermore, review of the punishment scheme involved in this case would be more complete if undertaken after trial. At that time, we could not only entertain a facial attack on the statute but also review the constitutionality of the punishment as applied to this specific defendant. Additionally, it is likely that the United States Supreme Court will have issued an opinion further delineating the scope of the cruel and unusual clause. See Andrade v. Attorney Gen., 270 F.3d 743 (9th Cir. 2001), cert. granted, 535 U.S. 969 (April 1, 2002) (No. 01-1127); People v. Ewing, 2001 WL 1840666 (Cal. App. 2d Dist. April 25, 2001), cert. granted, 535 U.S. 969 (April 1, 2002) (No. 01-6978).
H. Motion to Take Depositions
Defendant also requests us to order depositions of potential witnesses currently residing in Samoa. Defendant’s main contention is that these witnesses will not be able to afford the trip to American Samoa to testify at trial. At this stage of the proceedings, however, defendant has failed to meet his burden under T.C.R.Cr.P. 15.
Though “the taking of depositions in criminal cases is generally disfavored,” United States v. Des Marteau, 162 F.R.D. 364, 367 (M.D.*64Fla. 1995), T.C.R.Cr.P. 15 allows them in cases of “exceptional circumstances.” It is within our discretion to grant such an order, but only if the moving party has met his burden. Id. We look to several factors: “[1] whether the deshed witness is unavailable to testify at trial, [2] whether the witness’, testimony is material to the moving party’s case and [3] whether the taking of the deposition would cause injustice to the nonmoving party.” Id; see 2 CHARLES ALAN WRIGHT & ARTHUR R.' Miller, Federal Practice and Procedure §§ 241, 242 (3d ed. 2000).
At the very least, defendant has not shown that the witnesses here will be unavailable.
Our ruling does not preclude defendant from making this showing at some point later in the proceedings. We only decide that he has not yet done so.
Conclusion
For the foregoing reasons, both motions are denied.
It is so ordered.
13.1022 Possession of controlled substance unlawful.
(a) Except as authorized by the director, it is unlawful for a person to possess a controlled substance.
(b) A person who violates this section is guilty of a felony and shall be punished as follows:
(1) for a first offense, a fine not less than $5,000 and not more than $20,000 or not less than 5 years and not more than 10 years in prison, or both;
(2) for a second offense, a fine not less than $20,000 and not more than $30,000 or not less than 10 years and not more than 20 years in prison, or both; and
(3) for a third offense, a fine not less than $30,000 and not more than $40,000 or not less than 15 years and not more than 30 years in prison, or both;
There shall be no parole for a conviction under this section.
(c) The above penalties are mandatory.
The Eighth Amendment of the U.S. Constitution provides, “Excessive bail shall not be required. Nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (emphasis added). Article 1, Section VI of the Revised Constitution of American Samoa states in part, “Excessive bail shall not be required. Nor excessive fines imposed, nor cruel or unusual punishments inflicted.” (emphasis added).
At this juncture, we need not comment on whether the grammatical difference between the two clauses — that the U.S. Constitution is in the conjunctive and the Revised Constitution of American Samoa is in the disjunctive — provides for different and greater protections or rather is merely a matter of semantics. Compare People v. Anderson, 493 P.2d 880 (Cal. 1972) (holding that the “cruel or unusual” language of the California Constitution provides greater protection than the Federal Constitution), superseded by Cal. CONST, art. I, § 27, and People v. Bullock, 485 N.W.2d 866 (Mich. 1992) (same with regards to Michigan Constitution), with Thomas v. State, 634 A.2d 1, 10 n.5 (Md. 1993)
*63(finding no distinction between the two phrases).
Defendant’s attack on the entire statute sweeps too broadly. We do not believe that a successful constitutional attack on the punishment portion of the statute would invalidate the entire statute. If successful, his motion would not result in immunity from prosecution or, if brought after trial, require reversal of the underlying conviction. Instead it would require different considerations at the sentencing stage or, if after trial, resentencing. See Quinones, 313 F.3d at 60-61. Therefore, we treat defendant’s motion as simply attacking the constitutionality of A.S.C.A. § 13.1022(b) and (c). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486777/ | ORDER GRANTING MOTION TO DIMISS
Plaintiff Agaoleatu Charlie Tautolo (“Agaoleatu”) has brought this action on behalf of himself, and as representative of the class of similarly situated individuals, against defendants Matagi Ray Mailo McMoore and Sese Peko McMoore (collectively “the McMoores”). The McMoores have moved to dismiss the action on various grounds. Because we agree with them that Agaoleatu lacks standing, we dismiss the action and avoid discussion of their other claims.1
Background
Agaoleatu’s complaint alleges that the McMoores misappropriated and converted public monies in violation of Territorial laws and procurement *66regulations. Furthermore, he claims these actions resulted in the McMoore’s unjust enrichment. He prays for a court order demanding return of the monies — which would necessarily require, a court ruling that the McMoores’ conduct was unlawful — and an injunction barring the McMoores from future violations of Territorial law and regulations.
Standard of Review
Agaoleatu’s complaint is replete with conclusions of law entirely unsupported by specific facts. Nevertheless, the allegations necessary to determine our jurisdiction have been sufficiently pled. In evaluating standing, we “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 597, 1001 (9th Cir. 1998) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). If needed, we may look beyond the pleadings themselves. 5A CHARLES Alan Wright & Arthur A. Miller, Federal Practice and PROCEDURE § 1350 (2d ed. 1990). Furthermore, since standing “is a jurisdictional element that must be satisfied prior to class certification,” LaDuke v. Nelson, 762 F.2d 2318, 1325 (9th Cir. 1985), our decision should not be read as an endorsement, or a denial, of class certification. Our disposition precludes us from reaching that issue.
A. Standing
The principles of standing articulated by the Federal courts “generally apply to the judiciary of this territory.” Mulitauaopele v. Togafau, 26 A.S.R.2d 52, 53 (Trial Div. 1954). We need not rehash the long list of requirements to establish standing. Suffice it to say, a party must demonstrate that it has suffered an ‘“injury in fact,” by which we mean an invasion of a legally protected interest that is ‘concrete and particularized.’” Id. (quoting Ne. Fla. Chapter of the Ass'n Gen. Contractors of Am. v. Jacksonville, Fla., 508 U.S. 656, 663 (1993)). Agaoleatu has not met this burden.
Agaoleatu has brought this action on behalf of himself and the class of persons which the “Faipule intended as beneficiaries of Fono money.”2 (Pl.’s Compl. ¶ 9). By this, Agaoleatu seems to mean that he represents the other House members — they being the potential beneficiaries of money which was budgeted specifically for use by the Fono, e.g., the Fono’s equipment or travel budget. Indeed, he asks that we order the McMoores to “pay or return [the money] to the budgeted appropriations fund of the Fono.” Id.
*67Read literally, Agaoleatu’s complaint fails to allege a cognizable injury. Any money budgeted specifically for the Fono’s use is not property of the Fono or the Legislators; it is not, as Agaoleatu puts it, “Fono money.” This hubristic claim has no basis in law, fact, or policy. Instead, like all the money used to support the American Samoa Government (“the Government”) and its agents and agencies, if it belongs to anyone, it belongs to the people of American Samoa — for it is they who are the true beneficiaries of the Government’s operations. The Fono’s budget exists so that the Legislators can better serve the people and not so that the Legislators may profit from their position. The old adage comes to mind that ours is a “government of the people, by the people, for the people.” Agaoleatu’s complaint mocks this ideal.
On the other hand, if the allegations, serious as they are, were to be proven true, the McMoores’ conduct cannot be considered benign. If true, the McMoores’ conduct is abstractly injurious: they have violated the laws of the Territory, defrauded the Government, and breached the trust of our whole society. Therefore, construing the Complaint in favor of Agaoleatu, we deem this to be the injury he claims. However, the breadth of these alleged transgressions necessarily precludes Agaoleatu from claiming a specific injury. His claim is a general grievance that two individuals, one being the Speaker of the House, broke the law. Yet a claim “to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on [this Court.]” Allen v. Wright, 468 U.S. 737, 754 (1984).
That is not to say that this Court could never recognize this type of claim. At the Federal level, for example, the alleged conduct would fall under the umbrella of § 3729 of the False Claims Act, 31 U.S.C.A. §§ 3729-3731. Under 31 U.S.C.A. § 3730(a), the Attorney General of the United States, on behalf of the United States Government, may bring a civil action to recover money from any person who has defrauded that Government. Furthermore, under 31 U.S.C.A. § 3730(b)(1), the U.S. Congress has conferred standing on private persons to prosecute these claims on behalf of the United States Government. These suits, known as qui tam actions, reflect a policy decision “to enlist the aid of the citizenry in combating the rising problem of ‘sophisticated and widespread fraud’” within the federal government. United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 745 (9th Cir. 1993); United States ex rel. Kreindler v. United Techs., 985 F.2d 1148, 1153-55 (2d Cir. 1993).
But such a statute, while constitutional, underscores the fact that absent legislation a private person would have no recourse in the courts. “No common law right to maintain qui tam actions exists and authority to file such actions must be found in legislation.” United States ex rel. Burnette v. Driving Hawk, 587 F.2d 23, 24 (8th Cir. 1978). And because *68a member of the Legislature of American Samoa is also subject to standing requirements, the member cannot benefit from the status of a legislator; in the context of this case, the member is like any other person. See Boehner v. Anderson, 30 F.3d 156, 159-60 (D.C. Cir. 1994). Agaoleatu’s downfall, then, is the lack of an equivalent of the Federal False Claims Act enacted in American Samoa.
Finally, we recognize that we have before conferred standing on members of our Legislature. See generally The Senate v. Lutali, 26 A.S.R.2d 125 (Trial Div. 1994). That case, however, and others like it, is distinguishable in that there the Legislators had proven that they suffered an injury in fact — dilution of their voting power. Id. at 127-28; Michel v. Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994); Vander Jagt v. O’Neil, 699 F.2d 1166, 1168-71 (D.C. Cir. 1983); Kennedy v. Sampson, 511 F.2d 430, 433 (D.C. Cir. 1974).3 We reiterate that Agaoleatu has shown no like injury in this case.
Conclusion
Because Agaoleatu lacks standing, we grant the motion to dismiss the suit for want of jurisdiction.
It is so ordered.
The McMoores have not extensively briefed the issue of standing. However, because standing is a jurisdictional requirement, and therefore speaks to our power to hear this case, we have a duty to make the determination sua sponte.
In this context, the Samoan word “Faipule” refers to members of the House of Representatives of the Legislature of American Samoa, and “Fono” means a legislative meeting.
That said, even if Agaoleatu had standing, we would be confronted with the question of whether we should exercise our equitable discretion to avoid “interfere[nce] with the legislative process.” Riegle v. Fed. Open Market Comm., 656 F.2d 873, 882 (D.C. Cir. 1981). Because the complaint is vague, we cannot determine whether this case presents a “dispute properly within the domain of the legislative branch.” Boehner, 30 F.3d at 160. If it did, though, and there was no claim of a constitutional violation, we would likely decline jurisdiction in the interest of comity; “if a legislator could obtain substantial relief from his fellow legislators through the legislative process itself, then it is an abuse of discretion for a court to entertain the legislator’s action.” Melcher v. Fed. Open Market Comm., 836 F.2d 561, 565 (D.C. Cir. 1987); see also Brown v. Hansen, 973 F.2d 1118, 1121-22 (3d Cir. 1992); Gregg v. Barrett, 771 F.2d 539, 543-46 (D.C. Cir. 1985). But see Vander Jagt, 699 F.2d at 1170-71 (courts must provide remedy if Congress adopts rules inconsistent with the Constitution); see generally Fa'amausili v. The Senate, 6 A.S.R.3d 259 (Trial Div. 2002) (courts must provide remedy if the Legislature acts inconsistent with the Revised Constitution of American Samoa). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486783/ | JUDGMENT OF CONTEMPT
On December 2,2002, the Court first heard the application of Defendant La Fénix Boliviana (“LFB”), by its Special Deputy Liquidator (“the Liquidator”), to hold Don Fuimaono (“Fuimaono”) in contempt for failing to comply with the Court’s order of February 28,2001, requiring Defendant Insurance Company of Samoa (“ICS”) to pay the Liquidator $2,180.20, the amount of earned interest paid to Fuimaono while the Defendant Amerika Samoa Bank (“ASB”) held the $50,000 statutory insurance deposit on ICS’s behalf. On January 15, 2003, the Court pointed out that the order of February 28, 2001, was directed to ICS, not Fuimaono, and that as of the December 2 hearing, no factual or legal basis was established to hold Fuimaono personally in contempt for nonpayment. We scheduled a second hearing on the application, which took place on February 21, 2003. The three counsel named above were present. Fuimaono was present only by his counsel and not in person.
Non-payment of the $2,180.20 to the Liquidator, by either ICS or Fuimoano, is a stipulated fact. We will not rehash the additional complicated facts that lead us to this motion, but rely on evidence supporting the findings of fact in our prior decisions in discussing the issues raised by the present contempt proceedings.
Discussion
The only issue before us is whether we should pierce .the corporate veil and hold Fuimaono responsible for the debts of ICS, a corporate entity. A corporation is a legal fiction, which exists as a separate entity from its shareholders and “exempt[s] the shareholders’ property from corporate debts.” Amerika Samoa Bank v. Adams, 22 A.S.R.2d 38, 42 (Trial Div. 1992); see N.L.R.B. v. Greater Kansas City Roofing, 2 F.3d 1047, 1051 (10th Cir. 1993). Exemption from liability “is the norm, not the exception,” N.L.R.B., 2 F.3d at 1051, but will be abrogated if “there are circumstances justifying disregard of the corporate entity to prevent abuse of corporate privileges, either by one or more individuals or by another corporation.” Amerika Samoa Bank, 22 A.S.R.2d at 42.
*94The following combination of circumstances justify piercing the corporate veil:
“First, that the corporation is mot only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of said person and corporation has ceased; second, that the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.
Amerika Samoa Bank, 22 A.S.R.2d at 42 (quoting Minifie v. Rowley, 202 P.2d 673, 676 (Cal. 1921)); N.L.R.B., 2 F.3d at 1052; RRX Industries, Inc. v. Lab-Con, Inc., 772 F.2d 543, 545 (9th Cir. 1985).
As to the first requirement, there is no exhaustive or determinative list of factors. See, e.g., N.L.R.B., 2 F.3d at 1052 n.6. Instead, we look to the totality of the circumstances. See Amerika Samoa Bank, 22 A.S.R.2d at 43. In the present case, we find that a unity of interest between Fuimaono and ICS is apparent. Fuimaono is the dominant, if not the only, stockholder of ICS. There is no evidence of a corporate structure or of adequate corporate records and minutes. Furthermore, he admitted to paying off ICS debt with his own personal funds. It was even unclear, when he attempted to get the security deposit from ASB, and when he actually succeeded in withdrawing the interest on the security deposit, whether he was acting on his own behalf or as an agent for ICS.
In fact, we had previously ordered that LFB was entitled to the original security deposit, subject to any outstanding claims by defrauded policyholders. In doing so, we allowed anyone with a claim to file it with the Court. Fuimaono attempted to do so, alleging that he had paid some $30,000 of ICS’s debt out of his own personal funds.5 He claimed *95that he was unable to produce any documentation because it had been subpoenaed by a federal grand jury. However, the entire incident buttresses our factual findings, demonstrating how his own personal records and funds seemed fo be those of the corporations, and vice versa.
As to the second requirement for piercing the corporate veil, we find that adherence to the corporate fiction would indeed promote an injustice. “The showing of inequity necessary to satisfy the second prong must flow from the misuse of the corporate form.” N.L.R.B., 2 F.3d at 1053. There is no better example of such a misuse than the case at hand.
In our original order on the merits, we found that, in attempting obtain a certificate of authority to transact insurance business in American Samoa, ICS had “never submitted financial or business statements for evaluation.” Am. Samoa Gov’t v. Amerika Samoa Bank, 4 A.S.R.3d 249, 256 (Trial Div. 2000). Any certificate ICS had received was “obtained by misrepresentation in violation of A.S.C.A. § 29.0213, prohibiting false or misleading filings.” Id. We concluded that ICS was not “authorized to transact insurance business as an insurer.” Id. at 11. Yet, despite ICS’s status, it, or better yet, Fuimaono, still attempted to collect the $50,000 security deposit, holding itself out as a legitimate insurer in the Territory.
This is not a simple case of a corporation incapable of paying its debts. N.L.R.B., 2 F.3d at 1053. Instead, it is the case of Fuimaono, acting through ICS, misusing the corporate form for his own personal gain. Accordingly, we find that it is in the interest of justice to shed the corporate veil to hold Fuimaono and ICS responsible and liable for each one’s actions.
The order of February 28, 2001, requiring payment to the Liquidator of the $2,180.40 collected from ASB by Fuimaono was duly issued. At all times since issuance of the order, Fuimaono had knowledge of and ability to comply with the order. Neither ICS nor Fuimaono, ICS’s alter ego, have complied with the order. Fuimaono’s failure to comply with the order was willful and contemptuous.
Order
1. Fuimaono is in contempt of this Court.
*962. Imposition of punishment is suspended on condition that Fuimaono pay $2,180.40 to the Liquidator not later than 60 days after entry of this judgment. Payment shall be made to the Clerk of the Court, who shall disburse the funds received to the Liquidator’s counsel on behalf of the Liquidator.
3. This matter is continued to July 10,2003, at 9:00 a.m. for the purpose of reviewing compliance with this Court’s orders and, if appropriate or necessary, imposing punishment on Fuimaono for his contempt of this Court. Fuimaono shall appear at the hearing on July 10, 2003, without further order, notice or subpoena.
It is so ordered.
On April 30, 2001, and again on December 2, 2001, Fuimaono submitted to the Court copies of his post-judgment claim to the Insurance Commissioner to a portion of the $50,000 insurance bond in the amount of $21,900, and now contends that the Court has not addressed this claim. Fuimaono had his opportunity to present his claim against the $50,000 prior to and during the trial of this action on March 10 and 27, 2000. Rights to the $50,000 were the primary issue during the trial. Those rights were determined in the Liquidator’s favor by the Court in the opinion and order of December 4, 2000, and reaffirmed by the denial of the motion for reconsideration or new trial on February 28, 2001. His post-judgment claim was irrelevant, as he was not an unpaid or defrauded policyholder at issue for identification during post-*95judgment claim proceedings undertaken before transmitting the $50,000 to the Liquidator. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486784/ | ORDER GRANTING PLAINTIFF ÁND DENYING DEFENDANT SUMMARY JUDGMENT
Before us are cross-motions for summary judgment. We grant plaintiffs motion and deny defendant’s motion.
*98I. BACKGROUND
Plaintiff Kelemete Misipeka (“Misipeka”) is a resident of American Samoa. He is in the business of supplying sound systems. In the past, he has worked for the Teuila and Mosooi Festivals, the 1997 South Pacific Mini-Games, and the 1998 Miss Americans Samoa Pageant. In 1998, Misipeka provided sound system services to Defendant Legislature of American Samoa (“Legislature”) for the festivities of the Fono ■ Golden Jubilee held in honor of the Legislature’s 50th anniversary. He purportedly made an oral agreement with Senator Moaali'itele Tu'ufuli (“Senator Moaali'itele”), the Chairman of the Fono Golden Jubilee Committee.
The festivities spanned six days and included performers of all types. Misipeka was responsible for accommodating the various audio applications including instrumental hook-ups, extra speakers and special microphones. Additionally, Misipeka assisted KVZK, the local television provider, in broadcasting both live and recorded television feeds.
After the festivities ended, Misipeka sent a detailed invoice to Senator Moaali'itele. The total amount due was for $33,090. On October 30, 1998, the invoice was initialed and approved for payment by Senator Moaali'itele. Legislative Financial Officer, Velega Savali certified payment on October 21, 2002. Despite the seeming approval of Misipeka’s invoice, he was not paid. He contacted the Legislature and numerous attempts were made to settle the matter. These efforts, however, were to no avail; the Legislature, for one reason or another, refused to pay Misipeka for his services.
Understandably, after years of hying to collect, Misipeka’s frustration pushed him to file this suit. Normally, this would be a simple contract dispute ripe for resolution. However, it is complicated by one glaring defect. The original contract between Misipeka and the Legislature — • specifically with Senator Moaali'itele, as chairman of the Jubilee committee — was not put in writing. The only writing evincing any agreement is the invoice Misipeka subsequently sent to the Legislature.
Both parties have moved for summary judgment. The Legislature, in seeking to avoid payment, argues that the only agreement that existed, if any, was the verbal agreement between Senator Moaali'itele and Misipeka. If true, the consequence of such an agreement would be dismissal of the suit because the statute of limitations has run. See A.S.C.A. § 43.0120(3) (three year statute of limitation on unwritten contracts). In the alternative, the Legislature posits that even if there was a written agreement, the only officers that can bind the Legislature are the President of the Senate and the Speaker of the House (“the binding *99officers”). Neither of the binding officers, however, signed or initialed Misipeka’s invoice.
Misipeka, on the other hand, argues that the invoice he sent, initialed and approved by Senator Móáali'itele (and Velega Savali), constitutes a written contract that extends the statute of limitations to 10 years. See A.S.C.A. § 42.0120(5). Furthermore, Misipeka contends that it is possible to contract generally with the Legislature through agents other than the binding officers. Indeed, he responded to the solicitation on behalf of the Legislature, generally, and Senator Moaali'itele, as Chairman of the Jubilee Committee, specifically, for his sound system services.
XL STANDARD
Summary judgment is appropriate when there is “no genuine issue as to any material fact.” T.C.R.C.P. 56(c); Plaza Dep’t Store v. Dunchnak, 26 A.S.R. 2d 82, 83 (Trial Div. 1994). The pleadings and supporting documents are viewed in the light most favorable to the non-moving party. See Amerika Samoa Bank v. United Parcel Serv., 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11 A.S.R.2d 133, 136 (Trial Div. 1989). Furthermore, as in this case, “disputed ‘legal questions .. . present nothing for trial and [are] appropriately resolved on a motion for summary judgment.’” Flair Broad. Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y. 1990) (quoting Holland Indus. v. Adamar of New Jersey, Inc., 550 F. Supp. 646, 648 (S.D.N.Y. 1982)).
m. DISCUSSION
A. Written or Unwritten Contract
The cmx of this case comes down to one question: was the contract between Misipeka and the Legislature written or unwritten? The importance of this question derives from our statutes of limitations: oral, or unwritten, contracts carry with them a three-year statute of limitations, A.S.C.A. § 43.0120(3), as opposed to written contracts, which can be enforced within 10 years after the action accmes, A.S.C.A. § 43.0120(5). See generally Pene v. Bank of Hawaii, 17 A.S.R.2d 168, 170 (App. Div. 1990). Because any contract between the parties was reached approximately five years ago, if it was merely an oral agreement, the suit is subject to dismissal but if it was written, the suit can proceed.
While the definition of a written contract would seem straightforward, applying it to various situations can be difficult. A written contract, for purposes of the statute of limitations, is one “containing all the terms of a completed contract between the two parties [and] is executed by one of the parties and accepted or adopted by the *100other.” Id. at 171, (citing 3 A.L.R.2d 809, 819 (1949)). Put another way, “[a] written contract, is one which is all in writing, so that all its terms and provisions can be ascertained from the instrument itself.” Id. (quoting Mills v. McGaffee, 254 S.W.2d 716, 717 (Ky. 1953)); see Clark v. Robert W. Baird Co., Inc., 142 F. Supp. 2d 1065, 1075 (N.D. Ill. 2001); Empire Land Title v. Weyerhaeuser Mortgage, 797 P.2d. 467, 469 (Utah App. 1990); Urban Dev., Inc. v. Evergreen Building Prods., L.L.C., 59 P.3d 112, 119 (Wash. 2003).
In the instant case, we need not go beyond the invoice itself to determine “the essential elements of the contract, which include the subject matter, parties, terms and conditions, and price or consideration.” Urban Dev., Inc., 59 P.3d at 119; see Empire Land Title, 797 P.2d at 469. But see Clark, 142 F. Supp. 2d at 1075 (no contract because parole evidence necessary to establish terms of contract). The invoice in this case clearly defines the parties to the contract — Misipeka and the Legislature; both parties signed the contract; the contract was for services rendered at the Jubileé; Misipeka was to provide the sound system for the events of the entire six days; and the price of the services is meticulously documented.
The Legislature raises two points in opposition. First, it notes that the document was signed after the event took place and after the services were rendered. However, “a memorandum that memorializes an oral agreement between the parties satisfies the writing requirement” for purposes of the statute of limitations. Urban Dev., Inc., 59 P.3d at 119; see Evans v. Pickett Bros. Farms, 499 P.2d 273, 275 (Utah 1972); cf. Am. Samoa Gov’t Employees Fed. Credit Union v. Sele, 28 A.S.R.2d 21, 23 (Trial Div. 1995) (subsequent memorandum sufficient to satisfy statute of fraud). But cf., Evans, 499 P.2d at 276 (Ellett, L, dissenting) (arguing that contract was not in writing for purposes of statute of limitations, though it may have qualified as a writing for purposes of statute of frauds). Again, the question is not when the contract was put in writing, but whether the writing is sufficient to constitute a contract. See Urban Dev., Inc., 59 P.3d at 119.
The Legislature also points out that after Senator Moaali'itele had signed the invoice, Misipeka altered portions of it which had originally offered a discount. Misipeka reasons that he did so because the discount was only for prompt payment. The Legislature argues that this act prevented any bargained-for consideration. We disagree with the Legislature’s contention. At most, Misipeka’s actions create a dispute as to the sum owed. But the fact remains that the invoice clearly shows that a sum is owed, regardless of the amount. That is sufficient to show an element of the contract, even if we now have to interpret the contract and determine how much is due. See Claxton v. Mains, 514 N.E.2d 427, 429 (Ohio App. 1986).
*101B. Contract with the Legislature
The Legislature’s other argument is that even if we find a written contract existed, that contract was between Misipeka and the Senator Moaali'itele. Furthermore, it argues that such a contract is not enforceable against the Legislature since only the binding officers can obligate the Legislature by written agreement. In support, the Legislature cites Legislative internal rules that are, at best, ambiguous.1 The Legislature’s argument is not only self-serving but also specious.
But even assuming the Legislature’s argument has some merit, it can still be hable under the theory of agency. Nothing prevents the binding officers from delegating their authority to others, or acting in a way to create liability generally. In this case, we find that, at the very least, if the binding officers are truly the only legislators who have the power to contract, they are estopped now from denying the Legislature’s liability and shifting the burden solely to Senator Moaali'itele.
We seriously doubt that the binding officers were unaware of Senator Moaali'itele’s conduct in organizing the Jubilee celebration. We take judicial notice that Senator Moaali'itele was the Chairman of the Committee, that funds for the event were appropriated, and that the Legislature solicited services from the public for the Jubilee celebration. Furthermore, Misipeka reasonably relied on Senator Moaali'itele’s power of the purse. There was ample time and circumstances where the binding officers could have clarified to those dealing with Senator Moaali'itele that only the binding officers could approve their contracts. Instead, the binding officers’ inaction and acquiescence to Senator Moaali'itele’s conduct carelessly caused Misipeka to rely on the fact that he had entered into a valid contract. See generally RESTATEMENT (Second) of Agency § 8B (1958).
Otherwise, if we adopt the Legislature’s argument, then every contract authorized by Senator Moaali'itele alone in regards to the celebration would be void. Any written contract not entered into by at least one of the binding officers for any procurement of services or sale of goods would be invalid. Such a scheme would lead to preposterous results and bring the government to a screeching halt.
*102IV. DAMAGES
Having found that there was indeed a valid, written contract between, the parties, we are left only to calculate the damages. In this respect, there are no genuine issues of fact either. The original invoice provided that the amount due was $33,090.00. Misipeka, however, had given the Legislature a 35% discount in honor of the “momentous occasion.” Having applied that discount, the total on the invoice came to $21,508.50. It is not disputed that some time after Senator Moaali'itele approved payment, Misipeka, having become disheartened by the situation, unilaterally crossed out the portion of the invoice granting the discount.
Misipeka claims that he did so because the discount was only offered if payment was received in a timely fashion. However, on the invoice, there is no such limiting condition on the granting of the discount. As a matter of law, such unilateral action is not valid and was not agreed upon by the Legislature. We interpret the plain meaning of the contract to reflect that despite late (or no) payment, the Legislature is still privy to the discount and only owes the principle amount of $21,508.50.
V. ORDER
1. Misipeka’s motion for summary judgment is granted. The Legislature’s motion for summary judgment is denied.
2. The Legislature shall pay Misipeka $21,508.50, plus statutory interest of 6% annum ($3,547 per day) from October 31, 1998, to May 8, 2003, the date of entry of judgment, in the amount of $5,856.10, for a total amount of $27,364.60, and costs of suit. The Legislature shall also pay Misipeka statutory interest of 6% per annum on the outstanding balance of total amount of judgment, including prejudgment interest and costs of suit, until the judgment is paid in full.
It is so ordered.
For example, the Legislature finds support in that '“[t]he Speaker shall approve all expenses for the operation of the House and directly administer the House’s budget,” See House Rule 11(b), and that “[I]t shall be the duty of the President [of the Senate] . . . [t]o do and perform such other duties as are required by law or by these rules, or such as may properly pertain to such office.” See Senate Rule 8(12). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486820/ | ORDER DENYING MOTION TO EXTEND TIME AND GRANTING MOTION TO DISMISS
The trial court’s decision from which this appeal was taken was rendered on July 18, 2003. On October 17, 2003, the trial court denied Appellant YHT, Inc.’s (“YHT”) motion for reconsideration or new trial. On October 23, 2003, YHT filed its notice of appeal. On January 14, 2004, YHT filed a motion for a thirty-day extension of time in which to file its brief and to designate the record. Appellee Progressive Insurance Company (“Progressive”) opposed the motion to extend time and moved to dismiss YHT’s appeal under Appellate Court Rules 10(b)(5) and 31(c). For the reasons stated below, we deny YHT’s motion for an extension of time and grant Progressive’s motion to dismiss under Appellate Court Rule 31(c).
On January 14, 2004, YHT filed its motion for an extension of time claiming that a mail delay prevented its attorney from preparing the brief. According to YHT, the trial transcripts were served on its attorney (via his court mailbox) on December 3, 2003. However, YHT’s attorney was located in Grand Junction, Colorado and claims that during this time *4there was a delay in mail service from American Samoa to Colorado because of the “holiday flight schedules and flights being cancelled because of weather conditions.” Because of this alleged delay, YHT seeks an extra thirty days in which to file its brief.1
Progressive opposes the motion, arguing that YHT failed to comply with Appellate Court Rule 10(b) regarding the record on appeal, and therefore, failed to perfect its appeal. Progressive also argues that even assuming YHT met the requirements of Rule 10(b), it still failed to timely move for an extension of time and failed to serve Progressive with its motion. Progressive also argues that it will suffer prejudice if YHT’s motion for an extension of time is granted because the extension will prevent the appeal from being heard at the upcoming April appellate session. Progressive makes its motion to dismiss the appeal using many of the same arguments.
Assuming YHT complied with Rule 10(b) regarding the trial transcript and that it was served with the transcript on December 3, 2003 (as indicated by YHT’s counsel), its brief was due on January 12, 2004.2 A.C.R. 31(a). However, YHT did not move for an extension of time until January 14, 2004, after the deadline had already passed. YHT makes no attempt to excuse or even acknowledge its failure to request an extension prior to the filing deadline. Motions for an extension of time should be filed before rather than after a deadline has passed. See Hawaiian Airlines v. Am. Samoa Gov’t, 11 A.S.R.2d 116, 117 (App. Div. 1989); Leota v. Sese, 10 A.S.R.2d 155, 157 (App. Div. 1989). Moreover, YHT failed to serve Progressive with its motion and made no attempt to excuse its failure to follow the Appellate Court Rules. A.C.R. 27(a). YHT’s motion to extend the deadline for the filing of its brief is untimely and, therefore, denied.
Even if YHT made a timely motion for an extension of time in which to file its brief, it would have still been denied. Any extension will delay the appeal until the next appellate session. This Court “has been *5especially careful not to grant extensions that would cause the hearing of an appeal to be delayed from one annual appellate session to the next.” Alaimalo v. Sivia, 17 A.S.R.2d 25, 28 (App. Div. 1990).
Additionally, because YHT has failed to file a timely brief in accordance with Appellate Court Rule 31(a), its appeal is dismissed pursuant to Appellate Court Rule 31(c).3
Order
1. Appellant’s motion for an extension of time in which to file its brief is denied.
2. Appellee’s motion to dismiss the appeal under Appellate Court Rule 31(c) is granted.
It is so ordered.
Even though the transcripts were served on YHT’s counsel on December 3,2003, they were not sent to him in Colorado until December 17,2003. At this same time, the client case file was sent to YHT’s attorney in Colorado. YHT does not explain why there was a two week delay in sending the packages off-island nor does it explain why the client case file (a file its counsel says he “needed to properly prepare” the brief) was not sent at an earlier date. If YHT’s counsel wants to practice from Colorado, he is expected to practice with the sort of diligence required to effectively represent his clients. See, e.g., Kaho v. Ron Pritchard Ground Servs., Inc., 4 A.S.R.2d 40, 45 (Trial Div. 1987).
Even assuming YHT’s counsel was not served with the transcript until December 4,2003, the brief would have been due on January 13,2004.
Although Progressive’s arguments regarding YHT’s failure to comply with Appellate Court Rule 10(b) have merit, the appeal can be independently dismissed under Appellate Court Rule 31(c). Under Rule 31(c) one judge of the appellate panel may dismiss the appeal when the appellant fails to file a brief; however, a dismissal under Rule 10(b)(5) must be by the appellate panel. See, e.g., Opapo v. Puailoa, 17 A.S.R.2d 30, 31 (App. Div. 1990). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486821/ | OPINION
GOODWIN, Acting Associate Justice:
Michael Agasiva appeals his conviction for assault in the second degree. He assigns error to tire jury instructions, the sufficiency of the evidence and ineffective assistance of counsel.
Background
On April 11, 2002, in the Village of Amaluia, Agasiva, a traditional matai, drove his pick-up truck into a chair that had been left in the middle of the street by three children who had been standing on it to reach vi fruits with a bamboo fruit-picking stick. When the children ran into a nearby house, Agasiva got out of his truck and pursued them. According to several witnesses, he entered the house by kicking the door in, spoke with the children, and then went back outside. The children also left the house and a ten-year old girl picked up the bamboo stick. Agasiva then took the stick from her and hit her with it four times.
At trial, the victim testified that Agasiva struck her on the back of her left shoulder, on her right and left elbow and on her right wrist. A second child present testified that Agasiva “spanked” the victim once on the back and three times on the hands with the bamboo stick. The victim’s mother, who was walking toward her house at the time, saw her “daughter ... being spanked” four times.
The bamboo stick used by Agasiva was between two and a half and four feet long, and between an inch and two inches thick. Officer Tiali'i Lutu, who responded to the incident, testified that the victim had minor cuts on both hands and both elbows, as well as redness on her left cheek, neck *9and back. He said that the door to the house was slightly ajar and had a muddy footprint on it.
After the prosecution rested, defense counsel moved to acquit and the court denied the motion. Counsel then sought to introduce an emergency medical technician’s (“EMT”) report that had been discussed during the victim’s mother’s testimony. That motion was denied. Defense counsel tendered jury instructions, some of which were given. These rulings are challenged on appeal.
The Trial Division then instructed the jury on the elements of burglary in the second degree and the lesser included offense of criminal trespass. The court also instructed the juiy that to be guilty of assault in the second degree, Agasiva must have “knowingly . . . attempted] to cause physical injury to another person ... by means of a dangerous instrument.” The court gave an instruction on the lesser included offense of assault in the third degree, explaining that the difference between second and third degree assault is whether a dangerous instrument was used. The court stated that a person acts “knowingly” when “he is aware of the act and does not act through ignorance, mistake, or accident.”
The juiy found Agasiva guilty of criminal trespass, the lesser included offense in count one, and guilty of assault in the second degree on count two. Agasiva filed a motion for a new trial, contending that, inter alia, his proposed instruction on assault in the third degree should have been given and that sufficient evidence did not support the conviction. The court denied the motion, ruling that defendant’s proposed instruction on assault in the third degree was unwarranted by the evidence and that the juiy had sufficient evidence to support its verdict.
Discussion
I. Jury Instruction on Assault in the Second Degree
Agasiva argues for the first time on appeal that the Trial Division’s instruction on assault in the second degree was inadequate. He contends that the court improperly defined the crime charged in the information, failed to instruct on the requisite mental state, and did not make clear that the mental state applies to both elements of the crime.
Although given the opportunity at trial, Agasiva did not object to the instruction on assault in the second degree, nor raise it as an issue in his motion for a new trial. Thus, the instruction cannot be reviewed unless it falls under the plain error exception.
Rule 30 of Rules of Criminal Procedure, entitled “Instructions,” states that “[n]o party may assign as error any portion of the charge or omission *10therefrom unless he objects thereto before the jury retires to consider its verdict. . . Plainly read, this section would foreclose appellate review of an error in the jury instructions where no objection has been made. However, T.C.R.Cr.P. 52(b) countermands that reading because it states that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
Prior to 2002, Federal Rule of Criminal Procedure 30, which contains language identical to T.C.R.Cr.P. 30, “could be read literally to bar any review of . . . error. . . .” Jones v. United States, 527 U.S. 373, 388 (1999). The U.S. Supreme Court ruled that Rule 30 “is mitigated, however, by Rule 52(b), which allows plain errors affecting substantial rights to be noticed even though there was no objection.” Johnson v. United States, 520 U.S. 461, 466 (1997).1 Similarly, we conclude that T.C.R.Cr.P. 52(b) tempers the apparent categorical preclusion of review found in T.C.R.Cr.P. 30 by providing for limited review of errors not timely brought to the attention of the trial court.
Under T.C.R.Cr.P. 52(b), there must be (1) “errors or defects,” (2) that are “plain,” and (3) that “affect . . . substantial rights.” See also Johnson, 520 U.S. at 466-67 (discussing review under Fed. R. Crim. P. 52(b)). The presence of “or” in “errors or defects” does not create two separate categories; the inquiry is solely for error. See United States v. Olano, 507 U.S. 725, 732 (1993). “Plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’” Id. at 734 (citation omitted). And substantial rights are affected where the defendant can show prejudice, meaning that the outcome would have been different. Id. lATrere the criteria are met, an appellate court should choose to notice the error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 736 (alteration and citation omitted). With this framework in mind, we turn to the merits.
Under A.S.C.A. § 46.3521(a)(1), a person commits the crime of second degree assault if “he knowingly causes or attempts to cause physical injury to another person by means of a deadly weapon or dangerous instrument.” The crime can be committed in two ways: by knowingly causing physical injury or by attempting to cause physical injury. A person acts with knowledge if he is aware of his conduct, the circumstances or the likely result. A.S.C.A. §§ 46.3202(c)(1), (2). But *11to attempt to commit a crime, the person must take a step toward commission of the crime and have the more culpable mental state of acting with the purpose of committing the offense. A.S.C.A. § 46.3401(a).
Since Agasiva was charged in the information with attempting to cause physical injuiy to the victim by means of a dangerous instrument, the government was obligated to prove that it was his purpose to cause physical injury. Moreover, the government also needed to prove that it was his purpose to cause the injury by means of the bamboo stick. The jury was then to decide whether the bamboo stick was readily capable of causing death or serious physical injury under the circumstances in which it was used. A.S.C.A. § 46.3111(7).
The court erred in instructing the jury on the government’s burden because it defined the offense as “knowingly . . . attempts to cause physical injuiy,” without defining attempt or explaining that the more culpable mental state of acting purposely applies. However, the error was harmless in this case. The result of the trial would have been the same if the juiy had been given the correct instruction. Because the evidence showed that Agasiva took the bamboo stick from the victim and swung it at her four times hard enough to open minor cuts, the error in instructing the jmy on attempt did not affect his substantial rights. The evidence was overwhelming that Agasiva had the purpose of causing the victim physical injury, which is to say physical pain, see A.S.C.A. § 46.3111 (19), by means of the bamboo stick.2
II. Jury Instruction on Assault in the Third Degree
Agasiva argues that the Trial Division erred by not instructing the jury on the four additional definitions of the lesser included offense of assault in the third degree. He contends that the evidence supported an instruction that he recklessly caused physical injuiy, that he recklessly used the bamboo stick in a manner that could cause serious physical injuiy, that he intended to merely instill fear of physical injury in the victim, and that he knowingly caused offensive, not injurious, contact.
*12Where a party objects to or proposes an instruction that is not given, the [trial] court’s formulation of instructions is reviewed for an abuse of discretion. United States v. Franklin, 321 F.3d 1231, 1240-41 (9th Cir. 2003). The refusal to instruct on a lesser included offense is reviewed de novo. United States v. Technic Serv,, Inc., 314 F.3d 1031, 1038 (9th Cir. 2002).
Tire second set of instructions dealt with the elements of assault in tire third degree as a lesser included offense. The court is obligated to instruct on lesser included offenses if they are supported by the evidence. A.S.C.A. § 46.3108(a). But the court may choose not to give the instruction where there is no basis for acquitting the defendant on the offense charged and convicting him on the included offenses. A.S.C.A. § 46.3108(b).
The trial court refused to give the instruction, holding that the evidence, if believed, was that the defendant intentionally struck the child at least four times with the bamboo stick. The court ruled that there was no evidence of a reckless or criminally negligent mental state, and that the evidence showed that Agasiva went substantially beyond placing the victim in apprehension or knowingly causing offensive contact. We conclude that, while giving an instruction on a lesser included offense is favored where the record would support a verdict of guilt on that offense, there was no error in this case in denying the request.
III. Sufficiency of the Evidence
Agasiva contends that the government did not prove that he took a substantial step toward using the bamboo stick as a dangerous instrument because he never aimed it at a vital part of her body, he did not use excessive force and he voluntarily stopped striking her.
Sufficient evidence exists if, viewing the evidence in a light most favorable to the government, and drawing all reasonable inferences in favor of the jury’s verdict, a reasonable juiy could have found all elements of the offense beyond a reasonable doubt. American Samoa Gov’t v. Tauala, 25 A.S.R.2d 179, 180 (Trial Div. 1994); see also United States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir. 2003). A dangerous instrument is an instrument that is readily capable of causing death or serious physical injury. A.S.C.A. § 46.3111(7). A serious physical injury, in turn, is one that creates a substantial risk of death or that causes serious pennanent disfigurement or protracted loss or impairment of a bodily member or organ. A.S.C.A. § 46.3111(24).
Here, there was sufficient evidence to go to the juiy on assault in the second degree.
*13IV. Ineffective Assistance of Counsel
Agasiva alleges that he received ineffective assistance of counsel because his attorney failed to certify and properly introduce the EMT’s report. He contends that the excluded medical report would have shown that the victim’s injuries were minimal and that he did not strike her four times with the bamboo stick. The report was correctly excluded because no foundation had been laid for its offer, and it was irrelevant as proof of the number of blows struck.
Claims of ineffective assistance of counsel are reviewed de novo. United States v. Alaimalo, 313 F.3d 1188, 1191 (9th Cir. 2002). However, such claims are generally more appropriate for collateral review because the record will be fully developed as to “what counsel did, why it was done, and what, if any, prejudice resulted.” United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000) (quoting United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988)). The two exceptions are where the record is sufficiently developed to permit review and counsel’s assistance was so inadequate as to obviously deny a defendant his constitutional right. Id.
To establish ineffective assistance of counsel, a defendant must demonstrate (1) that counsel’s activities were outside the wide range of professionally competent assistance, and (2) that the defendant suffered prejudice. Strickland v. Washington, 466 U.S. 668, 687-90 (1984). Prejudice exists where there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Here, the record is not sufficiently developed to detennine whether counsel inadvertently failed to establish the document’s foundation, as Agasiva suggests, or whether counsel concluded that more hann than good would have come from calling the EMT to testify about the validity of the report. Because we cannot say, on this record, that counsel’s performance was inadequate, Agasiva’s assigmnent of error for ineffective assistance of counsel is rejected. The rejection is without prejudice if the claim is renewed in subsequent post-conviction proceedings.
*14Conclusion
The Trial Division’s error in instructing the jury on the requisite mental state to commit assault in the second degree did not affect Agasiva’s substantial rights. The limited instruction on the lesser included offense was justified, and the verdict was supported by sufficient evidence. The record is not sufficiently developed to conclude that defendant received ineffective assistance of counsel. Accordingly, we AFFIRM.
It is so ordered.
In light of the Supreme Court’s language in Jones, Federal Rule of Criminal Procedure 30 was amended to state that appellate review exists “as permitted under Rule 52(b).” Fed. R. Crim. P. 30(d) (2002) advisory committee’s note (“As the Supreme Court recognized in Jones[,] read literally, current Rule 30 could be construed to bar any appellate review absent a timely objection when in fact a court may conduct limited review under a plain error standard.”).
Appellant’s citation to United States v. Hove, 52 F.3d 233, 236 (9th Cir. 1995), for the proposition that failing to instruct on an element of the offense can never be harmless error, is misplaced. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2000) (en banc) (“The district court’s failure to instruct the jury on the intent element of the offense was harmless error if we conclude that it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’” (quoting Neder v. United States, 527 U.S. 1, 18 (1999))). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486822/ | OPINION
KRUSE, Chief Justice:
J.M. Gebauer, Inc. (“JMG”) and Kepaoa Development Corporation (“Kepaoa” or collectively with JMG, “lessor”) appeal from the trial court’s judgment in this case, which involves a dispute over the breach of a lease agreement. Appellants contend that the trial court erred in its order and opinion by: (1) failing to apply the “modem rule” in order to determine damages due under the lease; (2) finding Appellants accepted the appellee’s surrender of the lease; (3) finding Appellants permitted the appellee to use space outside of the lease agreement for no charge; (4) finding appellee was entitled to $25,000 for unpaid utility bills; and (5) awarding Appellants an insufficient amount of punitive damages. For the following reasons, we AFFIRM in part and REVERSE in part.
Background
On November 5, 1997, American Samoa Power Authority (“ASPA” or *16“lessee”) and J.M. Gebauer, Inc. entered into a lease for a property in Nu'uuli commonly known as the Aiga Basket (“the premises”) for a term of twenty years. Gebauer v. American Samoa Power Auth., 5 A.S.R.3d 204, 206 (Trial Div. 2001). In 2000, Kepaoa Development Corporation assumed the lessor’s rights and obligations under the lease agreement. Id. As part of the lease agreement, JMG was obligated to pay its outstanding utility bills to ASPA.
Throughout the lease period, ASPA used approximately 272 square feet of additional space without paying rent. Id. On October 18, 2000, lessor notified ASPA that it was in default on the rental payments and also demanded payment for the 272 square feet of additional space. Lessor notified ASPA that it had thirty days to remedy the default. Id. On November 14, 2000, ASPA quit the premises. Id. at 207. ASPA caused substantial damage to the premises during the move, which the lessor repaired at its own expense. Id.
Trial was held on July 12, 2001. On December 7, 2001, the trial court awarded JMG and Kepaoa $21,626.26 in compensatory and $5,000 in punitive damages. This award was to compensate JMG and Kepaoa for the damages ASPA caused to the premises. Id. at 210. The trial court also found that JMG and Kepaoa accepted ASPA’s surrender of the premises, and that ASPA had paid all the rentals that it owed prior to JMG and Kepaoa’s acceptance. Id. at 208. Additionally, the trial court found that ASPA was not liable for its use of the extra space. Id. at 209. The trial court also awarded ASPA $25,000 in damages on its counterclaim for unpaid utility bills. Id. at 211. JMG and Kepaoa filed a motion for a new trial or reconsideration which was denied by the tidal court on February 5, 2002. On February 11, 2002, JMG and Kepaoa filed a notice of appeal.
Discussion
I. Standard of Review
“A trial court’s factual determinations are reviewed for ‘clear error’ and questions of law or mixed questions of law and fact are reviewed de novo.” Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992) (emphasis omitted). The test for clear eiror is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).
II. “Old Rule” v. “Modern Rule”
Appellants argue that the trial court should have applied the “modem *17rule”1 rather than the “old rule”2 in detennining ASPA’s liability under the lease.3 The Appellants failed to raise this issue in their motion for a new trial or reconsideration. A motion for a new tidal is a jurisdictional prerequisite to appeal. A.S.C.A. § 43.0802(a). As such, we cannot review this issue that was not raised in Appellants’ motion for a new trial or reconsideration. See Kim v. Star-Kist Samoa, Inc., 8 A.S.R.2d 146, 149 (App. Div. 1988) (finding the appellate court lacked jurisdiction to consider appellant’s argument that the appellee was independently negligent when the appellant failed to raise that issue in its motion for a new trial).
III. Acceptance
Appellants contend that the trial court’s finding that JMG and Kepaoa accepted ASPA’s offer of surrender after ASPA abandoned the premises is clearly erroneous. Whether the lessor accepted the lessee’s surrender is a question of fact. See, e.g., Onal v. BP Amoco Corp., 275 F. Supp. 2d 650, 669 (E.D. Penn. 2003); Riggs v. Murdock, 458 P.2d 115, 118 (Ariz. Ct. App. 1969); 49 Am. Jur. 2d Landlord and Tenant § 249 (1995). The trial court considers the evidence “in light of the surrounding circumstances and determine^] whether the dominion and control exercised by the landlord was for the landlord’s own benefit or *18for the benefit of and on behalf of the original tenant.” Riggs, 458 P.2d at 118.
The trial court’s finding that JMG and Kepaoa were acting for their own benefit when they reentered the premises is supported by substantial evidence. “Whether or not a dissatisfied litigant had himself presented substantial evidence is not... the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court=s conclusions.” Moea'i v. Alai'a, 12 A.S.R.2d 91, 93 (App. Div. 1989). Accordingly, the trial court’s finding that the lessor accepted the lessee’s surrender of the premises is not clearly erroneous and will not be disturbed.4
IV. Additional Space
Appellants argue the trial court’s finding that they permitted ASPA to use an extra 272 square feet of space free of charge until October 18, 2000 was clearly erroneous. The lessor claims this decision was clearly erroneous because the evidence demonstrated that the parties had negotiated for the additional space prior to the October 18, 2000 demand for compensation, and because the trial court’s decision was inconsistent with other findings. (Appellants’ Br. at 23-25.)
There was conflicting evidence presented at trial on this issue. Hugo Ryanny Gebauer, Jr. (“Ryanny”) testified for JMG and Kepaoa that he did not allow ASPA to use the space for free and that he was trying to reach an agreement with ASPA regarding the space. (Trial Tr. at 13-15, 26-28, 35.) However, Gary Sword testified that JMG and Kepaoa allowed ASPA to use the space for free, and that ASPA never accepted any agreement with JMG and Kepaoa to make rental payments for that space. (Trial Tr. at 52, 54-55, 66.) In light of the evidence adduced at trial, the trial court’s finding that the lessor did not demand compensation until October 18, 2000 and that the use prior to this time was pennissive is not clearly erroneous. See Roman Catholic Diocese of Samoa Pago Pago, 20 A.S.R.2d at 73 (“The reviewing court accords particular weight to tire trial judge’s assessment of conflicting and ambiguous facts.”); American Samoa v. Makuati, 1 A.S.R. 663, 664 (App. Div. 1938) (“[I]t is not the province of the appellate court to detennine the credibility of conflicting evidence.”) (citations omitted). Accordingly, the trial court’s finding that the lessor permitted ASPA to use the extra space free of *19charge will not be disturbed.
V. Unpaid Utilities
The trial court found that ASPA “established the unpaid electrical and water charges at $25,000.” Gebauer, 5 A.S.R.3d at 210. In its order denying a new trial or reconsideration, the trial court found that “the agreements between the parties” supported its position that JMG and Kepaoa were liable for the unpaid utility charges. Gebauer v. American Samoa Power Auth., CA No. 139-00, Order on Motion for Reconsideration or New Trial at 2-3 (Trial Div. Feb. 5, 2002). The trial court also found that “[testimony showed that Ryanny Gebauer had the authority to enter the agreement on plaintiffs= behalf.” Id. at 3.
The Appellants argue that no evidence was produced at trial demonstrating that the lessor “had any obligation to settle any of its related entities’ outstanding accounts” or that “Gebauer had the authority to negotiate and settle the accounts of the other entities.” (Appellants’ Br. at 26.)
The trial court did not specify which agreement or agreements it found entitled ASPA to the $25,000 in unpaid utility bills from JMG and Kepaoa. The parties agreed at trial that the amount owed by JMG to ASPA for unpaid utility bills is $4,774.88. (Trial Tr. at 93.) Accordingly, it appears the trial court’s remaining award of $20,225.12 to ASPA was to cover debts incurred by JMG’s “related entities.” Thus, the trial court detennined that JMG was obligated for these debts under an agreement or agreements. Gebauer, CA No. 139-00, Order on Motion for Reconsideration or New Trial at 2-3.
Essentially three agreements were discussed at trial: (1) the lease (Trial Ex. 24); (2) the guarantees (Trial Ex. 33); and (3) the purported settlement regarding the additional space and outstanding utility bills (Trial Tr. at 27-28, 88-90). The relevant provision of the lease states:
Furthermore, Landlord will bring current any outstanding indebtedness to Tenant from previous utility accounts within ninty [sic] (90) days or such sums, upon reconciliation between Landlord and Tenant, shallbe [sic] deductible from Lease payments.
(Trial Ex. 24.) In the lease, “Landlord” is defined as J.M. Gebauer, Inc. (Id.) Ryanny signed the lease for JMG as its corporate officer. (Id.) According to the lease, JMG as the “Landlord” was responsible for bringing its utility debts current. ASPA argues that trial testimony indicated that it was understood by the parties that this provision also included debts owed by JMG affiliated companies. (Appellee’s Br. at *2031-32.) However, the trial court did not find the lease ambiguous nor did the parties make any argument to this effect. Therefore, under the terms of the lease the only outstanding payments ASPA was entitled to were those owed by JMG. Any testimony to the contrary is parol evidence and not appropriately considered. See, e.g., Asifoa v. Nat’l Pac. Ins. Co., 26 A.S.R.2d 99, 100 (Trial Div. 1994); 11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts §§ 33:1, 33:37 (4th ed. 1999). As such, ASPA was not entitled to the remaining amount of $20,225.12, an amount attributed to JMG’s “related entities,” under the lease agreement.
Three “Utility Payment Agreements” were introduced at trial. (Trial Ex. 33.) One agreement between ASPA, Ryanny, and Jude Corporation/ Ryan, Inc. shows an outstanding debt to ASPA of $29,049.30. Ryanny was listed as the customer in the agreement. Ryanny signed this document as the “owner” of the ASPA “customer” in the agreement and agreed to make monthly payments on this outstanding debt. The agreement makes no mention of JMG or Kepaoa and no evidence demonstrates that Ryanny’s signature on this agreement obligates JMG or Kepaoa to be responsible for the debt. Likewise, another one of these agreements is between Ryanny, Hugo Gebauer, Jr. and ASPA showing a delinquent amount of $2,065.90. This agreement also fails to mention JMG or Kepaoa. These agreements do not indicate that JMG or Kepaoa is responsible for these debts or that Ryanny’s signature on them obligated JMG or Kepaoa to pay the debts.5 Moreover, Ryanny is not a plaintiff to this action and the trial court made no findings that Ryanny was the alter ego of JMG or Kepaoa. Accordingly, the “Utility Payment Agreements” do not show that JMG or Kepaoa was liable to ASPA for the remaining award of $20,225.12 in unpaid utility bills.
Evidence was also presented at trial that Ryanny and ASPA were negotiating for payment of the outstanding utility bills in exchange for use of the 272 square feet of extra space. ASPA presented evidence that it never accepted this agreement. The trial court did not explicitly address these negotiations, but its finding that ASPA was allowed use of the extra space for free until October 18, 2000 indicates that it did not find an agreement had been reached between ASPA and JMG regarding the extra space and outstanding utility debt. Gebauer, 5 A.S.R.3d at 209. Accordingly, the trial court could not have relied on these negotiations as the basis for imposing liability on JMG and Kepaoa for the outstanding utility debt. Absent any factual or legal basis for the trial court’s award *21of $20,225.12 to ASPA for the unpaid utility bills of Ryanny or other JMG “related entities,” it is clearly erroneous and, therefore, we reverse this award.
VI. Punitive Damages
Appellants argue that the trial court’s award of $5000 in punitive damages was inadequate and irrational. The appellants failed to raise, this issue in their motion for a new trial or reconsideration. As such, we cannot review this issue. See supra, at 17; Kim, 8 A.S.R.2d at 149.
Conclusion
The trial court’s award to ASPA of $20,225.12 in damages for the unpaid utility bills of entities other than JMG or Kepaoa is REVERSED. The trial court’s decision is AFFIRMED in all other respects.
It is so ordered.
According to Appellants, under the “modem rule,” “when a tenant wrongfully abandons the property, the landlord is under a duty to mitigate its damages and may sue the tenant for breach of contract damages.” (Appellants’ Br. at 11.)
According to Appellants, under the “old rule,” the lessor has three options upon a tenant’s abandonment:
(1) the landlord could accept the surrender of the premises, which would tenninate the lease and the tenant’s obligations under the lease, and sue only for unpaid rent up to the date of termination; (2) the landlord could re-enter the property and attempt to mitigate his damages, holding the tenant liable for any deficiencies that occur; or (3) the landlord could allow the property to remain vacant and sue the tenant for rent for the remainder of the lease term.
(Appellants’ Br. at 10.)
The trial court held that the lessor could:
(1) accept the lessee=s offer of surrender and tenninate the lease, leaving lessee liable only for rent accrued before the acceptance and damage caused by the abandonment or (2) attempt to lease the premises to another lessee as a means of mitigating the loss of rents, in which case the original lessee is liable for the difference between promised rent and rents obtained.
Gebauer, 5 A.S.R.3d at 208.
JMG and Kepaoa argue that even if they did accept ASPA’s surrender of the premises, they are still entitled to recover contract damages. (Appellants’ Br. at 22-23.) Like their argument regarding the “modem rule” versus the “old rule” {see supra at 16), Appellants failed to raise this issue in their motion for new trial or reconsideration. As such, we cannot review it. See Kim, 8 A.S.R.2d at 149.
The third agreement is between Ryanny Gebauer, J.M. Gebauer, and ASPA in the amount of $2,321.64. However, this amount is already included in the parties’ stipulated amount of $4,774.88. ASPA’s Opp. to Mot. for New Trial or Reconsideration at 5, Gebauer, CA No. 139-00 (Trial Div.). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486823/ | OPINION
GOODWIN, Acting Associate Justice:
This appeal presents two questions: (1) whether the challenged award was supported by substantial evidence, and (2) whether the Trial Division followed the law in affirming it.
Background
On August 25, 1997, claimant William Reardon, an employee of William Reardon Law Offices, Inc., felt a severe headache while at work in his office preparing for an upcoming deposition. Shortly thereafter he lost consciousness. Upon being hospitalized, he was treated for hypertension and released. The next day, he was readmitted to the hospital after complaining of head-pain and dizziness. While in the hospital, he began to feel numbness on the left side of his body, which his treating physician, Dr. Aloiamoa Anesi, diagnosed as a stroke.
Reardon then went to Honolulu for specialized treatment, and on September 10, 1997, he filed a claim for workmen’s compensation benefits with National Pacific Insurance Company, Ltd. (“NPI”), the workmen’s compensation insurance provider for William Reardon Law Offices. NPI requested Reardon’s medical records, and, by letter dated December 22, 1997, denied the claim on the ground that the disability was not sufficiently work-related to fall within the coverage of the insuring engagements.
The claim proceeded to the Workmen’s Compensation Commission *24(“Commission”), where hearings were held on May 20, June 24, and June 30, 2000. At the hearings, Reardon testified that he anticipated the August 25th deposition would be the most difficult of his twenty-seven year legal career. (Hr’g Tr. Day 1 at 28.) Dr. Anesi opined that the stressful conditions preceding the deposition triggered Reardon’s stroke. {Id. at 79.) In contrast, Dr. Satupaitea Rema Viali, an expert retained by NPI, attributed the stroke to Reardon’s smoking, alcohol use and hypertension, but not his stress. (Hr’g Tr. Day 2 at 44.)
Because Dr. Anesi had treated Reardon at the time of the stroke, the Commission relied on Dr. Anesi’s opinion in finding that the stroke “was triggered and accelerated by the stress condition [Reardon] experienced, emanated from his work and manifested in headaches and dizziness while working in his office.” {Id. at 5.) The Commission awarded Reardon workmen’s compensation benefits.
NPI appealed the award to the Trial Division of the High Court. After briefing and argument, the Trial Division affinned the Commission’s award. Nat’l Pac. Ins. Co. v. American Samoa Gov’t Workmen’s Comp. Comm’n, CA No. 75-01, slip op. (Trial Div. May 15, 2002). NPI now appeals to this court.
Discussion
In American Samoa, as in a number of other jurisdictions, judicial review of workmen’s compensation awards is governed by statute. The full text of A.S.C.A. § 32.0652(a) reads:
If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the commissioner, and instituted in the High Court of American Samoa.
The language “not in accordance with law” has produced volumes of litigation in the field of industrial accident and workmen’s compensation law. In sum, errors of law can be reviewed and remedied by each level of the reviewing courts, but findings of fact are to be reviewed deferentially.
U.S. Supreme Court Justice William O. Douglas, writing in an early case involving the question whether an injured workman was a harbor worker or a member of a vessel’s crew, had this to say about the power of federal courts to set aside, in whole or in part, compensation orders if not in accordance with law: “In considering those provisions of the Act in the Basset case, we held that the District Court was not warranted in setting aside such an order because the court would weigh or appraise the *25evidence differently. The duty of the District Court, we said, was to give the award effect, ‘if there was evidence to support it.’” Norton v. Wainer Co., 321 U.S. 565, 568 (1944) (citation omitted).
Likewise, the Commission’s findings of fact will be upheld if supported by “substantial evidence.” Cont’l Ins. Co. v. Workmen’s Comp. Comm’n, 8 A.S.R.2d 152, 155 (App. Div. 1988). Whether substantial evidence exists “is limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.” Id. (citation and quotation marks omitted). The Commission’s findings of fact are reviewed in light of the entire record. Harris v. Comm’r of the American Samoa Gov’t Workmen’s Comp. Comm’n, 29 A.S.R.2d 184, 186 (Trial Div. 1996).
If the record before the Commission contains evidence from which the Commission could have made the findings challenged in this appeal, and if the Trial Division ruled “in accordance with law,” our function is concluded.
NPI contests the sufficiency of the evidence to support the award, arguing that the record does not support Reardon’s account of his stress or Dr. Anesi’s opinion about the cause of the stroke. In response, Reardon and the Commission point to the evidence that supports the Commission’s award.
The Commission found that Reardon was under work-related stress in the days preceding his stroke. (Comm’r Decision at 5.) This finding is supported by Reardon’s testimony that he was preparing for the most difficult deposition of his twenty-seven year legal career. The Commission could reasonably have relied on Reardon’s account of the events and also could reasonably have concluded that he suffered work-related stress.
NPI’s strenuous dispute that Reardon did not prove that he was under stress, and that he failed to prove that his condition was work-related, misperceives the function of an appellate court reviewing findings of fact. See Cont’l Ins. Co., 8 A.S.R.2d at 155 (“The lower court’s reference to factual conflicts upon which reasonable people may differ does not attempt to establish a new standard of review but rather explains the proper application of the ‘substantial evidence’ standard.”).
The principal issue before the Commission was whether Reardon’s paralytic onset was causally related to his work. The Commission found that Reardon’s stroke was triggered by the stressful conditions of his work, citing Dr. Anesi’s opinion. Dr. Anesi testified that Reardon’s hypertension, though elevated for ten years, was highest when he had *26been treated in the emergency room on August 25, 1997. (Dr. Anesi’s Report May 20, 1999 at 2.) He concluded that Reardon’s stress, as well as his coping mechanisms and hypertension, “contributed to the development of acute increase in blood pressure which precipitated vasospasms causing significant ischaemia and right pontine infarction.” {Id. at 3.) The Commission, as the fact finder, was justified in relying on Dr. Anesi’s testimony that the stroke was caused, in part, by stress. See Palmer Coking Coal Co. v. Dir., Office of Workers’ Comp. Programs of U.S. Dept. of Labor, 720 F.2d 1054, 1058 (9th Cir. 1983) (“It is properly within the competency of the fact finder, not of the reviewing court, to credit or discredit evidence and to draw inferences from the credited evidence.”). Thus, substantial evidence exists in the fonn of Dr. Anesi’s report and his testimony to support the Commission’s finding on causation.
As a procedural matter, NPI argues that the Commission erred in refusing to allow testimony from a local attorney, a litigator in private practice, about the level of stress inherent in practicing law. There was no error. In Cont’l Ins. Co., this court explained that the Commission “is purposely specialized in make up. [It] comprises a Commissioner, a medical member, a law member, a fiscal member, and an employee member.” 8 A.S.R.2d at 156 n.1 (citing A.S.C.A. § 32.0505(b)). The Commission is not obligated to receive evidence on an issue within its competency, as it recognized in ruling that “private law practice is private law practice.” (Trial Tr. Day 3 at 68.) Moreover, counsel for NPI accepted the Commission’s decision without objection, saying, “I have no problem with that.” {Id.) NPI cannot now cite as error a ruling with which it expressly agreed.
NPI also ai-gues that American Samoa law requires a finding of “unusual stress,” and that the Commission did not make such a finding. Reardon and the Commission dispute NPI’s assertion that the Commission needed to find, or did not find, “unusual stress.”
NPI cites the Trial Division’s unpublished decision in Felise v. Workmen’s Comp. Comm’r, CA No. 27-93, slip op. (Trial Div. Dec. 12, 1996). There, the claimant suffered two minor strokes while at work, leaving him partially paralyzed. Felise, CA No. 27-93, slip op. at 1. The Commission denied his request for total disability benefits. Id. at 2. On appeal, the Trial Division affirmed, ruling that petitioner had presented no evidence of a causal relationship between his job stress and his strokes. Id at 3-4. The court elaborated that “even had petitioner offered such evidence, he would also have to show that the stress inherent in his job is greater than that which all workers are occasionally subjected.” Id. at 4 (citing Pence v. McSwain, 623 N.E.2d 201, 203 (Ohio App. 1 Dist. 1993)).
*27A.S.C.A. § 32.0520 permits recovery of compensation benefits for “injury to or death of. . . employees arising out of and in the course of employment without regard to fault as to cause of the injury or death.” American state courts are divided on whether “unusual stress” must be shown to recover benefits, with the majority not imposing the heightened standard. See 2 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 43.0311(2000); accord Mudd v. Neosho Mem’l Reg’l Med. Ctr., 62 P.3d 236, 241 (Kan. 2003). The U.S. federal courts that have construed the federal Longshoremen’s and Harbor Workers’ Compensation Act (“Longshoremen’s Act”) have not required a showing of unusual stress for recovery. See Wheatley v. Adler, 407 F.2d 307, 311 (D.C. Cir, 1968) (en banc) (“The law in this jurisdiction does not require any unusual stress, and contemplates awards so long as the death or injury results from activity in the course of employment.”); see also Mitchell v. Woodworth, 449 F.2d 1097, 1099 (D.C. Cir. 1971). Given that the American Samoa Workmen’s Compensation Statutes closely resemble the Longshoremen’s Act, these federal decisions are persuasive. See Haleck v. Scanlan, 4 A.S.R. 998, 1002 (App. Div. 1975).
Here, however, we need not decide whether unusual stress must be shown to recover, because the Commission’s opinion meets the heightened standard of unusual stress under Felise. Reardon presented substantial evidence that his stress preceding the stroke was atypical. In making its findings of fact, the Commission stated that Reardon had testified to being in a “very stress [ed] condition prior to and including August 25, 1997,” and that Dr. Anesi had found that Reardon was “under a lot of mental/emotional [stress] then prior to the incident.” (Comm’r Decision at 2, 3.) We cannot say that the stress inherent in taking a contentious deposition is no greater than the stress to which all workers are occasionally subjected. The question here was one of fact.
The compensation award is supported by substantial evidence and is in accordance with law. Accordingly, the Trial Division’s ruling is AFFIRMED.
So ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486824/ | OPINION
GOODWIN, Acting Associate Justice:
Tuifau Iosefa Etuale was convicted by a jury of burglary and sodomy upon his fifteen-year-old female cousin. He admitted entering the victim’s home at night and engaging in sexual activity with her, but denied that he used force or threat of force. The victim and the Defendant both testified and both were vigorously cross-examined.
*29The victim testified that on the night of July 4, 2001, she was asleep on a bed with her ten-year-old female cousin, in a room in which seven other family members were also sleeping. She testified that she awakened some time after midnight to find that someone had placed a hand over her mouth and eyes, and was holding her down on the bed. She soon recognized her cousin, Etuale, and saw a knife on the bed. She testified: “He said if I screamed or make noise, then no member of my family will ever see me again.” The victim then described the sexual assault and said that afterward the Defendant left the room through the window through which he had apparently entered. The victim testified that she did not invite the Defendant to enter the house, and that she never consented to the sexual behavior.
The victim said that no member of the family was awakened, and that she told no one about the event for several weeks. She testified that after the assault, she saw Etuale every day and that he would renew his threats against her. The prosecution introduced evidence that some six weeks after the assault, the Defendant apologized to the victim and her aunt “for the ugly things that he did.” However, the victim still did not tell the aunt that Etuale had sexually assaulted her. She told the aunt about the assault on August 25, 2001, and her aunt took her to the police station where the victim gave statements. These statements contained details that were inconsistent with some of her later testimony.
It was undisputed that friction between the victim’s family and the Defendant’s family culminated in an altercation that involved rock throwing and threats of violence followed by police intervention. The violent clash between the families was cited by the defense in its jury argument as motivation for the victim to falsely accuse Etuale of the crime charged.
Etuale’s testimony, consistent with his own statements to the police, admitted that he had entered the room where the victim was sleeping and that he engaged in the behavior substantially as described by the victim. However, Etuale swore that she consented to everything that happened. He denied making any threat, or holding or using the knife in a threatening manner. The defense was allowed to develop fully the credibility questions in direct and cross-examination. The bad blood between the families was fully exploited as a possible motive for a false accusation. The jury nonetheless rejected Etuale’s defense of consent, and believed the victim’s version of the events.
During closing arguments, the prosecution stated that the victim’s inconsistent statements were reasonable: “And one would expect that a child or anyone inexperienced in situations like that might well get details mixed up as she told this story over and over again, but she would never forget the essentials of the terror.” Defense counsel attempted to *30counter this statement by challenging the government’s characterization of the victim as “inexperienced,” and began discussing her prior sexual experiences. The court sustained the prosecution’s objection, and advised the jury to disregard the challenged argument.
The motion for a new trial raised all the credibility questions that lurked in the two conflicting versions of the charged conduct, and challenged the rulings of the trial court that restricted final argument by defense counsel. The motion also challenged the sufficiency of the evidence. These same points were briefed and argued on appeal.
The rulings by the trial court that restricted a part of the defense’s closing argument to the jury were well within the discretion of the trial court, to prevent the discussion of irrelevant or inadmissible material. State v. Cecotti, 639 P.2d 243, 246 (Wash. App. 1982) (“Absent a showing of abuse resulting from the limitation in scope of the defense counsel argument, the trial court’s rulings will be upheld.”).
Etuale’s argument that the evidence was insufficient to support his conviction is also unavailing. The jury’s verdict is supported by substantial evidence. See 5 Am. Jur. 2d Appellate Review § 663; In re Kelly W., 95 Cal. App. 4th 468, 471 (Cal. Ct. App. 2002).
AFFIRMED.
So ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486825/ | OPINION AND ORDER
RICHMOND, Associate Justice:
This case involves a dispute over the succession to the Ava matai title in the village of Pava'ia'i. The Ava title became vacant in 1997 following the death of Ava Vili, Jr. Appellant Alcapo Kofe Alcapo (“Alcapo”) contends that the trial court erred in its order and opinion awarding the Ava matai title to Appellee Lufilufi Lafoia Ava Peneueta (“Lufilufi”) by: (1) declining to adjudicate Appellant’s eligibility to hold the Ava title before analyzing the statutory factors; (2) denying Appellant’s post-trial motion to allow DNA evidence; and (3) determining three of the four statutory factors in favor of Appellee. For the following reasons, we AFFIRM the trial court’s decision.
Background
On April 19, 2001, Lufilufi offered the Ava title for registration with the Office of the Territorial Registrar. On June 15, 2001, Akapo timely filed his objection and counterclaim with the Territorial Registrar. Pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute after the parties failed to resolve their claims. Accordingly, the case was referred to the High Court for resolution. In re Matai Title "Ava,” 7 A.S.R.3d 211 (Land & Titles Div. 2003).
Trial was held on June 3 and 4, 2002. On June 4, 2002, following testimony that Akapo was actually bom in Savaii, Samoa, Lufilufi filed a motion to dismiss Alcapo’s claim arguing that Akapo is ineligible to hold the Ava title under A.S.C.A. § 1.0403(b). After the close of evidence but prior to submitting closing arguments, Alcapo filed a motion for DNA testing. Lufilufi opposed the motion. On September 24, 2002, the trial court denied the motion for DNA testing.
*33On January 8,2003, the trial court awarded the Ava title to Lufilufi. The court found Lufilufi prevailed over Akapo on the first, second and fourth criteria used in determining matai title succession. In light of this outcome, the court declined to address Lufilufi’s motion to disqualify Akapo. Akapo filed a motion for a new trial or reconsideration which was denied by the tidal court on May 1, 2003. On May 9, 2003, Akapo filed a notice of appeal.
Discussion
I. Standard of Review
We review the trial court’s evidentiary rulings for abuse of discretion. Freeman v. Allstate Life Ins. Co, 253 F.3d 533, 536 (9th Cir. 2001). The tidal court’s factual determinations are reviewed for clear eiTor. See In re Matai Title “Tauaisafune,” 6 A.S.R.2d 59, 61 (App. Div. 1987). The test for clear error is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the tidal court’s decision.” Toleafoa v. Am. Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).
II. Eligibility
During the trial, Lufilufi’s counsel filed a motion to dismiss Akapo’s claim arguing that under A.S.C.A. § 1.0403(b) Akapo is not eligible to hold the Ava title. At tidal, the court informed the parties it was taking the motion under advisement and would address the issue in the final decision. (Trial Tr. at 144.) In its opinion, the trial court declined to decide whether Akapo was eligible for the Ava title. Instead, after finding in favor of Lufilufi on three of the four factors, the trial court determined it was unnecessaiy to decide Lufilufi’s motion to disqualify Akapo. In re Matai Title “Ava,” 7 A.S.R.3d at 213, n.1.
Akapo argues that a detennination of eligibility is a condition precedent to applying the four statutory factors. He argues that if the court had determined that he was ineligible to succeed to the matai title, the case should have been dismissed, Lufilufi should have been required to re-register, and other family members would have been able to object and file counterclaims. (Appellants’ Br. at 13-14.)
Akapo’s understanding is incorrect. If the trial court had determined that Akapo was ineligible to hold the Ava title, Akapo’s counterclaim would have been dismissed and Lufilufi would have prevailed. A.S.C.A. § 1.0407 provides, “[f]or a period of 60 days immediately following the posting of notice ... any interested person may file a counterclaim or objection.” Accordingly, if family members decide to support a particular candidate rather than file a timely objection or counterclaim, *34they are resigned to the court’s determinations of eligibility and merit regarding their chosen candidate. Therefore, even if the trial court should have made a detennination regarding eligibility before analyzing the four factors, the outcome would have been the same. See, e.g., In re Matai Title “Fonoti,” 20 A.S.R.2d 22, 25-26 (Land & Titles Div. 1991) (ordering one candidate be registered as the successor to a matai title after the other candidate was found ineligible). As such, we will not disturb the trial court’s decision.
III. DNA Testing
The trial court denied Akapo’s post-trial motion for DNA testing jfinding that he “presented no good reason, at this stage of the proceedings, to reopen the record for the taking of new and additional evidence.” In re Matai Title “Ava,” MT No. 09-01, Order denying Motion for DNA Testing at 1 (Land & Titles Div. Sept. 24, 2002). Appellant argues that the trial court should have reopened the case because “Akapo... w[as] willing and ready to pay the expenses,” because “[t]he court also had trouble resolving the conflict in the pedigrees proffered,”1 and because “DNA testing would have provided scientific evidence of whether or not the candidate... descended from Tulifaga Lafoia.” (Appellant’s Br. at 15.) The tidal court acted within its discretion in denying Akapo’s motion to allow DNA evidence post-trial. See, e.g., Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3rd Cir. 1995) (setting forth the requirements for the admission of new evidence).
IV. The Statutory Factors
A.S.C.A. § 1.0409 lists the four factors in order of priority that the trial court should take into consideration when determining matai title succession cases:
(c) 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 descendent prevails over the female;
*35(2) the wish of the majority or plurality of those clans of 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; and
(4) the value of the holder of the title to the family, village, and country.
A.S.C.A. § 1.0409(c). Akapo contends that the trial court erred by finding in favor of Lufilufi on the first, second and fourth criteria.
A. Best Hereditary Right
The witnesses at trial disagreed about the paternity of Lufilufi’s father. It is through her paternal grandfather, Ava Lafoia Tulilefaga (“Tulilefaga”), that Lufilufi claims her 25% heredity right. The trial court decided the conflicting family accounts in favor of Lufilufi. In making its detennination, the trial court relied on the testimony of Lufilufi, which was corroborated by other witnesses including her paternal aunt, Folole Tulilefaga Ava (“Folole”). In re Matai Title “Ava,” 7 A.S.R.3d at 212. Appellant argues that the trial court erred in crediting Folole’s testimony over Taeaoleilei Tialavea, a witness for Akapo and a daughter of Tulilefaga. (Appellant’s Br. at 16.) However, “[t]he reviewing court accords particular weight to the trial judge’s assessment of conflicting and ambiguous facts.” Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). There was substantial evidence to support the trial court’s finding on this factor and, therefore, the trial court’s finding was not clearly erroneous.
B. Clan Support
The trial court was also presented with conflicting testimony on this issue. Appellant acknowledges that “[a]t the very least, there was evidence that members from each of the four clans supported both Akapo and Lufilufi ....” (Appellant’s Br. at 16.) Lufilufi and Akapo both testified that they received support from each clan. “[I]t is not the province of the appellate court to determine the credibility of conflicting evidence.” American Samoa v. Makuati, 1 A.S.R. 663, 664 (App. Div. 1938) (citations omitted). The trial court’s detennination in favor of Lufilufi on this factor was supported by substantial evidence.
C. Value to Family. Village, and Country
The trial court found that Lufilufi’s value to her family and village was superior to that of Akapo, and that Akapo’s value to his country was superior to that of Lufilufi. As such, the trial court found that Lufilufi prevailed on this factor. In re Matai Title "Ava,” 7 A.S.R.3d at 213. In *36determining this factor, the trial court noted that Lufilufi renders tautua to the village of Pava'ia'i and has done so her entire life. The trial court also noted that Lufilufi has been raised with the Ava family and is better acquainted with the family’s needs. The trial court found that Akapo’s main ties are to the village of Vaitogi, where he currently holds a matai title. See In re Matai Title "Fagaima," 4 A.S.R. 83, 90-91 (Land & Titles Div. 1973) (“We have said many times that a claimant who lives in the family and the village is more familiar with members and die needs of family members than the claimant who has never lived in the family or village.”). The record amply supports these findings and they are not clearly erroneous.
Conclusion
For the aforementioned reasons, the trial couit’s decision is AFFIRMED.
It is so ordered.
Although the trial court acknowledged in its opinion that there were conflicting views regarding Lufilufi’s hereditary right to the Ava title, it did not claim it had trouble resolving the conflict. Indeed, Appellant cites to Judge Logoai’s questioning of one witness, Pagofie Fiaigoa, to corroborate his argument. (Appellant’s Br. at 15 n.8.) However, this questioning occurred early in the trial before Lufilufi’s corroborating witnesses were called. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486826/ | OPINION
Bom in [Western] Samoa on March 13, 1942, appellant Christine Kruse (“Kruse”) is a naturalized citizen of the United States. Her mother, Evelyn Kruse, was American Samoan, and her father, Fritz Kruse, was a citizen of Samoa. After her parents divorced, when she was approximately three years old, Kruse moved to American Samoa. Kruse asserts a blood connection to the Fanene title through her maternal grandmother, daughter of Fanene Tuiafetoa. She has served the Fanene family from 1968 until the present time.
Desiring to hold the Fanene title for her family, Kruse objected to another claimant’s title registration offer. The Territorial Registrar and Office of Samoan Affairs decided to exclude her as a candidate for the title because of the birthplace requirement provision of A.S.C.A. § 1.0403(b). Seeking injunctive relief against the agencies, Kruse brought suit before the trial court, numbered MT No. 08-01. Subsequently, the Territorial Registrar submitted the Fanene matai title dispute, case MT No. 11-01, to the Land and Titles Division of the High Court. Excluded from MT No. 11-01, Kruse attempted to intervene. After the trial court denied injunctive relief in MT No. 08-01, the Land and Titles Division denied Kruse’s motion to intervene in MT No. 11-01. Upon the denial of Kruse’s motion for reconsideration or new trial in MT No. 08-01, she made this appeal.1
*38Reporting on the current status of the Fanene title dispute, Kruse’s appellate argument forces us to dismiss her appeal.2 While this case was pending appellate review, tire Land and Titles Division dismissed MT No. 11-01 without prejudice. See In Re Matai Title “Fanene,” MT No. 11-01, slip op. (Land & Titles Div. Sep. 15, 2003). Agency proceedings on the Fanene title restarted with the filing of another registration offer. Kruse filed an opposition to this second registration attempt. At this time, neither the Territorial Registrar nor the Office of Samoan Affairs has excluded her from the restarted proceedings. As administrative proceedings continue and Kruse is not currently aggrieved by an agency decision, we dismiss this case for lack of ripeness. Sala v. American Samoa Gov’t, 20 A.S.R.2d 80, 81 (App. Div. 1992).3
It is so ordered.
This action was initiated after the Registrar advised Kruse that she was *38“ineligible, due to her place of birth,” because “A.S.C.A. § 1.0403(b) disqualified her to vie for the title.” Clearly, the provisions specifically addressing the eligibility of an objector or counter-claimant to file, A.S.C.A. § 1.0404, and the sufficiency of the supporting documents, A.S.C.A. § 1.0407, do not precondition such filings with the assertion of eligibility to succeed to the matai title. The determination of a disputed title claim is specifically reserved for the High Court, A.S.C.A. § 1.0409, after a full hearing to determine the circumstances of the claimant’s foreign birth. See In Re Matai Title “I'aulualo,” 25 A.S.R.2d 116, 119 (Land & Titles Div. 1994).
Although both Kruse and ASG provided extensive briefs to the trial court on applicable case law, we note neither party included in their briefs any legislative history, committee reports, floor debate comments, transferal letters or any other infonnation surrounding the enactment of the underlying statutes at issue in the case below. A brief review of the Matai Title statutes, A.S.C.A. § 1.041 et seq., reveals that nearly every section of this chapter was affected by the enactment of Public Law 10-61 in 1968. A bill of such sweeping scope and effect with respect to the matai system would likely generate a rich legislative history which might aid the trial court during any determination of whether a counter-claimant’s foreign birth was statutorily entitled to be considered as occurring on “American soil.”
An increasing number of cases are being filed in the Land and Titles Division praying for equitable, injunctive relief against agencies and officers of ASG. Generally, adequate remedies at law exist under the Administrative Procedures Act for judicial review and a stay of administrative proceedings. A.S.C.A. §4.1001 et seq. Filing for review of an administrative decision under the Act avoids the nagging jurisdictional issues and the multiplicity of lawsuits presented in the case below. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486827/ | OPINION AND ORDER
This case involves a dispute over the succession to the Puailoa matai title in the village of Nu'uuli. Appellant Avea T. Va'afusuaga (“Avea”) contends that the trial court erred in its order and opinion awarding the Puailoa matai title to Appellee Ma'ae Taei (“Ma'ae”) by: (1) failing to malee appropriate findings of fact and conclusions of law under A.S.C.A. § 1.0409(d); and (2) erring in its findings, pursuant to A.S.C.A. § 1.0409(c), on the third statutory factor of the candidates’ forcefulness, character, personality, and knowledge of Samoan customs, and fourth statutory factor of the candidates’ value to the family, village, and country. For the following reasons, we AFFIRM the trial court’s decision.
Background
Tepatasi M. Puailoa (“Tepatasi”) offered the Puailoa title for registration with the Office of the Territorial Registrar. Subsequently, Tuitogamaatoe P. Fanene (“Tuitogamaatoe”), La'au Seui (“La'au”), Ma'ae, Archie Soliai (“Archie”) and Avea filed their objections and counterclaims. Pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute after the parties failed to resolve their claims. Accordingly, the case was referred to the High Court for resolution. In Re Matai Title “Puailoa, ” 7 A.S.R.3d 228, 229 (Land & Titles Div. 2003).
Trial was held over several days in January of 2003. On May 1, 2003, the trial court awarded the Puailoa title to Ma'ae. The court found candidates Tepatasi and Tuiotgamaatoe prevailed equally over Ma'ae and Avea on the first or hereditary right statutory criterion used in determining matai title succession.1 The court also found that no one *41prevailed on the second or clan preference criterion, and that Ma'ae prevailed over the other candidates on the third and fourth criteria. Avea filed a motion for a new trial or reconsideration which was denied by the trial court on July 7, 2003. Shortly thereafter, Avea filed a notice of appeal.2
Discussion
I. Standard of Review
The trial court’s factual detenninations are reviewed for clear error. See In re Matai Title “Tauaisafune, ” 6 A.S.R.2d 59, 61 (App. Div. 1987). The test for clear error is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the tidal court’s decision.” Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).
II. Application of A.S.C.A. § 1.0409(d)
Avea argues that the trial court’s findings and conclusions are deficient under A.S.C.A. § 1.0409(d). She claims the court is required to “separate the fact finding from the legal conclusions” and assess the “relative margins” by which a candidate prevails over other candidates on each statutory factor. (Appellant’s Br. at 4.) Additionally, Avea argues that the Appellate Division should “insist on an uniform and fair standards [sic]” for each criterion. {Id. 10.)
The relevant part of the current statute states:
(c) In the trial of title cases, the High Court shall be guided by the following consideration, 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 descendent prevails over the female;
(2) the wish of the majority or plurality of those clans of the family as customary in that family;
(3) the forcefulness, character and personality of tire persons under consideration for the title, and their knowledge of *42Samoan customs; and
(4) the value of the holder of the title to the family, village, and country.
(d) The court shall issue a written decision that must contain finding of facts and conclusions of law on each issue under (c) above.
A.S.C.A. § 1,0409(c)-(d). The trial court made findings and conclusions consistent with the statute. In Re Matai Title "Puailoa,” 7 A.S.R.3d at 229-235.
Appellant’s argument that the court needs to fonnulate some sort of additional standard is not in accordance with the Fono’s current statutory scheme. As Avea points out in her brief, the Fono has been tweaking and revising this statute over the years to provide the court with guidance on deciding matai title cases. (Appellant’s Br. at 3-5.) “When the Court attempts to resolve a dispute among family members about who should hold a matai title, it is doing its best to apply the criteria that the Fono believes the family would have applied if there were no external means of dispute resolution.” In re Matai Title "Soata,” 6 A.S.R.2d 91, 95 (App. Div. 1987). Indeed, if the Fono thought that the court’s decisions in matai title cases left something to be desired, it could revise the statute.
Additionally, Avea argues that the trial court failed to assess the relative margins by which Ma'ae prevailed over the other candidates. The court is directed by statute to give each criterion less weight than the one it follows. A.S.C.A. § 1.0409(c). Other than this statutory requirement, “the comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness.” In re Matai Title "Tuaolo," 28 A.S.R.2d 137, 143 (Land & Titles Div. 1995); See also, e.g., In re Matai Title "Tuaolo," 27 A.S.R.2d 97, 102 (Land & Titles Div. 1995); In re Matai Title “Tauala,” 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990). An assessment of the relative margins in all cases on all factors is impractical. In all respects, the trial court’s findings and conclusions satisfy A.S.C.A. § 1.0409(d). See, e.g., In re Matai Title "Tauaisafune," 6 A.S.R.2d at 60; In re Matai Title "Atiumaletavai, ” 22 A.S.R.2d 94, 95 (Land & Titles Div. 1992) (noting “the frequent but not universal approach in this Court’s matai-title decisions to include substantial comparative discussions of the title candidates’ qualifications under each of the four statutory criteria which must be considered. While this method can provide useful analysis to the reader of matai-title judicial decisions..., the only legal requirement is a written decision containing findings of fact and conclusions of law on each of the four statutory criteria.”).
*43III. The Statutory Factors
Avea contends that the trial court erred by finding in favor of Ma'ae on the third and fourth criteria.3
A. Forcefulness. Character. Personality. Knowledge of Samoan Custom
Avea contends that the trial court erred by finding in favor of Ma’ae on this criterion. (Appellant’s Br. at 5-7.) The trial court noted “it relie[d] in part on personal observation of each candidate while on the witness stand.” In Re Matai Title "Puailoa,” 7 A.S.R.3d at 233. The court also listed “[leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai” as other factors it considered relevant to this criterion. Id. (citations omitted) (alteration in original). In finding Ma'ae prevailed on this criterion, the trial court noted Ma'ae’s matai and career experiences as well as his demeanor on the witness stand. “[I]t [i]s for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses.” Reine v. Taotoai, 25 A.S.R.2d 136, 138 (App. Div. 1994). The trial court’s detennination in favor of Ma'ae on this factor was supported by substantial evidence.
B. Value to Family. Village, and Country
Avea disputes the trial court’s conclusion that Ma'ae’s value to his family, village, and country is superior to that of the other candidates. In detennining this factor, the trial court noted that Ma'ae served his country through military service and commented on his service to the territory. In Re Matai Title "Puailoa,” 7 A.S.R.3d at 233. The trial court found that Ma'ae’s experience as a matai would serve his family and village. The court also based its conclusion on this factor on the in-court observation of the candidates’ testimony. “[Ajppellant is in essence urging this court to reweigh the facts presented at trial, an area specifically reserved for the trier of fact, who is in a unique position to hear evidence and observe the demeanor of witnesses.” Uiagalelei v. Ulufale, 26 A.S.R.2d 118, 119 (App. Div. 1994). The record amply supports the trial court’s findings, and we will not disturb them.
*44Conclusion
For the aforementioned reasons, the trial court’s decision is AFFIRMED.
It is so ordered.
The tidal court found La'au’s “hereditary connection claim to be, at best, doubtful,” and that Archie’s “connection is tenuous.” In Re Matai *41Title "Puailoa,” 7 A.S.R.3d at 231. While neither La'au nor Archie appealed the court’s decision, we caution that the decision should not be interpreted in and of itself as preventing either La'au or Archie from participating in the Puailoa family’s affairs or from asserting a claim to the Puailoa title in the future.
Tuitogamaatoe filed a separate notice of appeal. See In re Matai Title "Puailoa,” 8 A.S.R.3d 41 (App. Div. 2004).
Avea also contends that the trial court failed to make conclusions of law on the first criterion by failing to “assign [] what weight would be assigned to heredity.” (Appellant’s Br. at 5.) We believe this issue is adequately addressed in our discussion supra. The trial court made factual findings and ranked the candidates as follows: Tepatasi and Tuitogamaatoe prevailed equally over Avea and Ma'ae who, in turn, prevailed equally over La’au and Archie. In Re Matai Title “Puailoa,” 7 A.S.R.3d at 232. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482280/ | STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
TIMOTHY JOHN METHVIEN NO. 2022 CW 0897
VERSUS
OUR LADY OF THE LAKE NOVEMBER 7, 2022
HOSPITAL, DR. JENNIFER
DAVIDSON, AND ABC INSURANCE
COMPANY
In Re: Dr. Jennifer Meyer, applying for supervisory writs,
21st Judicial District Court, Parish of Livingston,
No. 164875.
BEFORE : WELCH, PENZATO, AND LANIER, JJ.
WRIT GRANTED. On July 14, 2022, the trial court rendered
a written judgment denying the defendant’s, Dr. Jennifer
Davidson Meyer’s, declinatory exception of insufficiency of
service of process and motion for involuntary dismissal.
However, at the June 20, 2022 hearing on Dr. Meyer’s exception
and motion, the trial court acknowledged that the plaintiff,
Timothy John Methvien, had died. There is no indication from
the record of this matter that a proper party plaintiff was
substituted for Mr. Methvien prior to the trial court’s July 14,
2022 judgment. Upon the death of a litigant, a proper party
plaintiff must be substituted to allow the action to continue.
Foster v. State, Dep’t of Health & Hosps., 2009-0806 (La. App.
lst Cir. 10/27/09) 2009 WL 3460685, *1. A judgment rendered for
or against a deceased party is an absolute nullity. Id. (citing
Rainey v. Entergy Gulf States, Inc., 2001-2414 (La. App. Ilst
Cir. 6/25/04), 885 So.2d 1193, 1197, writs denied, 2004-1878,
1883, and 1884 (La. 11/15/04), 887 So.2d 478 and 479).
Therefore, the trial court’s July 14, 2022 judgment is null and
is hereby vacated.
WIL
COURT OF APPEAL, FIRST CIRCUIT
A cp]
DEPUTY CLERK OF COURT
FOR THE COURT | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482289/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-711
No. COA21-674
Filed 1 November 2022
Guilford County, Nos. 16CRS67908; 16CRS67909
STATE OF NORTH CAROLINA
v.
GERARDO AMBRIZ, Defendant.
Appeal by defendant from judgment entered 28 May 2021 by Judge Alyson A.
Grine in Superior Court, Guilford County. Heard in the Court of Appeals 22 March
2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Caden
William Hayes, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
VandenBerg, for defendant.
STROUD, Chief Judge.
¶1 Gerardo Ambriz (“Defendant”) appeals from a judgment entered upon jury
verdicts finding him guilty of one count of trafficking in methamphetamine by
possession, one count of trafficking in methamphetamine by transportation, and one
count of conspiracy to traffic in methamphetamine by possession. Defendant argues
the State’s evidence was insufficient to support his convictions and that he was denied
the speedy trial as guaranteed under our state and federal Constitutions. Because
STATE V. AMBRIZ
2022-NCCOA-711
Opinion of the Court
the State presented sufficient evidence to submit Defendant’s charges to the jury, and
because the trial court did not err by denying Defendant’s speedy trial motions, we
conclude the trial court committed no error.
I. Background
¶2 The State presented evidence from two law enforcement officers and one of
Defendant’s co-defendants, who pled guilty and agreed to testify in exchange for a
possibly reduced sentence. The State’s evidence tended to show that on 6 February
2016, a drug deal involving a trafficking quantity of methamphetamine was
scheduled to take place in Greensboro, North Carolina. This deal was prearranged
between Mr. Gomez, a police informant, and Mr. Gomez-Macedo, whose street name
was “Paco.” Paco was connected “to the Atlanta, Georgia, area, [and] knew people in
that area that could bring drugs” to Greensboro; he was to provide nearly five
kilograms of methamphetamine. On 6 February 2016, the informant and Paco met
at a La Fiesta Restaurant in Greensboro. At the restaurant, the informant contacted
his handlers with the Greensboro Police Department and worked with Detective
Monge, who posed as the buyer, to show Paco $150,000 in “flash cash” to facilitate the
deal. “Flash cash” is money managed by individual police departments for the
purposes of facilitating these types of transactions, because sellers in transactions of
this magnitude often want to observe the money before providing drugs. Detective
Monge drove the money to the La Fiesta Restaurant, where the informant and Paco
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2022-NCCOA-711
Opinion of the Court
observed the money. Shortly afterward, the informant and Paco learned the narcotics
had been delayed in Alabama. The evidence indicated the vehicle transporting the
narcotics was “broken down” or was experiencing “mechanical issues[,]” but also that
the driver was stopping to rest. After it became apparent the deal would not occur
that day, the informant and Paco left the La Fiesta Restaurant.
¶3 Detective Williams with the Greensboro Police Department testified at trial
regarding communications between Defendant and Mr. Reyes, another participant in
this deal with connections to the driver, the informant, and Paco. Detective Williams
also testified regarding the circumstances of the deal. On 6 February, Mr. Reyes sent
Defendant a file with the driver’s contact information. Defendant responded and told
Mr. Reyes, “cousin, tell them they’re going to call him on behalf of Pitufo.”12 Later
that evening, Mr. Reyes asked Defendant “Are you coming here, cousin?” He then
sent a text message to Defendant at 2:17 a.m. the morning of 7 February and told
Defendant “he is here in Alabama, cousin. He’s going to stop there and rest.”
Defendant responded to this message: “It is good, cousin.” Defendant then sent Mr.
Reyes a Georgia address later in the morning, and Detective Williams did not testify
1 The text messages the State’s witnesses testified about were originally in Spanish.
The text messages were translated as part of the State’s investigation. We discuss the text
messages as translated and testified to by the State’s witnesses.
2 The Greensboro Police Department did not identify anyone as “Pitufo” during their
investigation.
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Opinion of the Court
about any other text messages of note.
¶4 Later on 7 February, when officers began arriving at the La Fiesta in
Greensboro, they noted the informant had already arrived. Shortly after arriving,
Detective Williams “observed [the] informant, along with [Paco] and two other
unidentified Hispanic males” exit the La Fiesta Restaurant. These two individuals
were later identified as Mr. Reyes and Defendant. The group left La Fiesta and
shortly afterward the driver arrived in a “gray Toyota Prius” registered in Georgia.
When the Prius arrived, Defendant and Mr. Reyes got into the Prius while the
informant and Paco got into the informant’s rental vehicle, a “gold or tan Chevrolet
Suburban.” These two vehicles then “traveled in tandem or one behind the other, the
Suburban leading the way[,]” until they arrived at a “public storage facility”
approximately five minutes from the La Fiesta Restaurant where the informant had
rented a unit.
¶5 The driver testified about the events inside the storage facility. Upon arriving
at the storage unit, the driver “backed up the car inside so the cameras wouldn’t see,
and Leo [Reyes] told the young man, ‘Get out and get the drugs out.’” The driver
identified the “young man” as Defendant. But Defendant was unable to exit the Prius
because the driver “had activated the child locks, and because [Defendant] couldn’t
get out and [the driver] wanted it to be fast, [the driver] was the one that took the
drugs out.” After dropping the drugs off at the storage unit, the driver, Reyes, and
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Opinion of the Court
Defendant left and drove to a nearby gas station.
¶6 Reyes and Defendant rode to the gas station with the driver inside the Prius.
The driver of the Suburban waited at the storage facility for “approximately ten
minutes” then drove to the gas station where Reyes and Defendant got into the
Suburban. Both vehicles then left the gas station separately, and officers followed
the Suburban to another nearby restaurant. While at that restaurant, the informant
called the officers, pretending to arrange delivery of the money. Eventually, the
driver of the Suburban returned to the storage unit where Defendant and the other
participants in the drug deal were arrested.
¶7 Defendant was indicted for one count of trafficking in methamphetamine by
possession, one count of trafficking in methamphetamine by transport, and one count
of conspiracy to traffic in methamphetamine by possession. Defendant was tried
three times for these offenses. The first two trials from 3 April 2018 to 6 April 2018
and 19 August 2019 to 26 August 2019 ended in deadlocked juries. Defendant’s third
trial began on 24 May 2021 and a jury found Defendant guilty on all charges on 28
May 2021. Defendant gave notice of appeal in open court, and a judgment was
entered the same day.
¶8 The procedural history of this case for purposes of Defendant’s speedy trial
claim is laid out separately below.
II. Analysis
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Opinion of the Court
¶9 Defendant makes two arguments on appeal. First, he contends the trial court
erred by denying his motion to dismiss because there was insufficient evidence to
support his convictions. Next, he argues the trial court erred by denying his motions
to dismiss based upon violations of his right to a speedy trial.
A. Sufficiency of the Evidence
¶ 10 Defendant first argues the State presented insufficient evidence to show he
participated in the methamphetamine deal. Defendant made a general motion to
dismiss at the close of State’s evidence, and therefore we address each of defendant’s
convictions. See State v. Glisson, 251 N.C. App. 844, 847, 796 S.E.2d 124, 127 (2017)
(This Court has “precedent holding that a general motion to dismiss for insufficiency
of the evidence preserves all issues regarding the insufficiency of the evidence, even
those issues not specifically argued before the trial court[,]” and a general “motion to
dismiss require[s] the trial court to consider whether the evidence was sufficient to
support each element of each charged offense.”).
¶ 11 In ruling on a motion to dismiss:
the trial court must determine whether the State has
presented substantial evidence of each essential element of
the offense charged and substantial evidence that the
defendant is the perpetrator. If substantial evidence of
each element is presented, the motion for dismissal is
properly denied. Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to
support a conclusion. It is immaterial whether the
substantial evidence is circumstantial or direct, or both.
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Opinion of the Court
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. The
evidence need only give rise to a reasonable inference of
guilt in order for it to be properly submitted to the jury.
State v. Shelman, 159 N.C. App. 300, 304-05, 584 S.E.2d 88, 92 (2003) (quotations,
citations, and alterations omitted).
¶ 12 “In determining whether the State has presented sufficient evidence to support
a conviction, ‘the trial court is required to view the evidence in the light most
favorable to the State, making all reasonable inferences from the evidence in favor of
the State.’” Id. at 305, 584 S.E.2d at 92 (quoting State v. Kemmerlin, 356 N.C. 446,
473, 573 S.E.2d 870, 889 (2002)). Any “[c]ontradictions and discrepancies must be
resolved in favor of the State . . . .” Id. (alteration in original) (quoting State v.
Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)). “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. Loftis, 185 N.C. App. 190, 196, 649 S.E.2d 1, 6 (2007) (alteration
in original) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). On
appeal, “[w]hether the State presented substantial evidence of each essential element
of the offense is a question of law; therefore, we review the denial of a motion to
dismiss de novo.” State v. Crockett, 368 N.C. 717, 720, 782 S.E.2d 878, 881 (2016)
(italics added).
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Opinion of the Court
1. Trafficking by Possession
¶ 13 Defendant moved to dismiss the offense of trafficking in methamphetamine by
possession of 400 grams or more of methamphetamine. Defendant argues “[t]he State
did not present substantial evidence that [Defendant] possessed the drugs.” He also
argues the State conceded Defendant never actually possessed the drugs, and “[t]he
State failed to establish [Defendant] had constructive possession” of the drugs. The
State argues theories of constructive possession and acting in concert for this offense.
The State contends Defendant’s proximity to the drugs combined with his attempted
exit from the car to put the drugs in the storage locker constituted constructive
possession of the drugs. The State also argues Defendant, the driver, and various
middlemen in this case “all acted in concert to transport, possess, and sell the
methamphetamine.” Because there was substantial evidence to show that Defendant
was acting in concert with the other participants of this methamphetamine deal, the
trial court did not err by denying Defendant’s motion to dismiss.
¶ 14 The State was required to present “substantial evidence of each essential
element” of trafficking in methamphetamine by possession. Shelman, 159 N.C. App.
at 304, 584 S.E.2d at 92. “To convict a defendant of [trafficking in methamphetamine
by possession], the State must prove the [D]efendant (1) knowingly possessed . . .
methamphetamine, and (2) that the amount possessed was greater than 28 grams.”
Id. at 305, 584 S.E.2d at 93; see N.C. Gen. Stat. § 90-95(h)(3b) (2016). “The ‘knowing
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Opinion of the Court
possession’ element of the offense of trafficking by possession may be established by
a showing that . . . (2) the defendant had constructive possession, or (3) the defendant
acted in concert with another to commit the crime.” See State v. Reid, 151 N.C. App.
420, 428, 566 S.E.2d 186, 192 (2002) (quotation omitted) (applying North Carolina
General Statute § 90-95(h)(3) in a cocaine trafficking case). “Constructive possession
[of a controlled substance] occurs when a person lacks actual physical possession, but
nonetheless has the intent and power to maintain control over the disposition and
use of the [controlled] substance.” State v. Alston, 193 N.C. App. 712, 715, 668 S.E.2d
383, 386 (2008) (alteration in original) (quoting State v. Wilder, 124 N.C. App. 136,
139-40, 476 S.E.2d 394, 397 (1996)). “As to the [State’s acting in concert theory], [a]
defendant acts in concert with another to commit a crime when he acts in harmony
or in conjunction . . . with another pursuant to a common criminal plan or purpose.”
Reid, 151 N.C. App. at 429, 566 S.E.2d at 192 (second alteration and ellipsis in
original) (internal quotations omitted).
¶ 15 Because the State presented “relevant evidence that a reasonable mind might
accept as adequate to support [the] conclusion” that Defendant knowingly possessed
the methamphetamine under an acting in concert theory, Shelman, 159 N.C. App. at
304, 584 S.E.2d at 92, we do not need to address Defendant’s constructive possession
argument. Viewed “in the light most favorable to the State,” id. at 305, 584 S.E.2d
at 92, the State’s evidence tended to show Defendant was acting in concert with the
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Opinion of the Court
other methamphetamine deal participants. State’s evidence showed the following
sequence of events: (1) Reyes, an apparent middleman, notified Defendant early in
the morning on 7 February, the day of the deal, that the driver bringing the drugs
was stopping to rest in Alabama; (2) as testified to by Detective Williams this message
was consistent with the 6 February meeting between the informant, and the Atlanta
connection, Paco; (3) later that day Defendant met with Reyes and the driver at the
La Fiesta Restaurant in Greensboro; (4) Defendant rode together with Reyes and the
driver to the storage unit to drop off the methamphetamine; (5) Reyes instructed
Defendant to transfer the methamphetamine from the car to the storage unit but
Defendant was stopped by the child locks on the driver’s vehicle; (6) Defendant left
the storage unit with Reyes and the driver for a nearby gas station where Defendant
and Reyes transferred to another vehicle, a Suburban driven by the informant, in
which they travelled to a nearby restaurant with the informant and Paco to wait for
the money; and (7) then Defendant travelled with the group back to the storage unit
where they were apprehended by police. Viewed “in the light most favorable to the
State,” a “reasonable inference[]” drawn from this evidence is that the group,
including Defendant, was working together to sell the methamphetamine. Shelman,
159 N.C. App. at 305, 584 S.E.2d at 92. Defendant, the driver, and the various
middlemen were working together “pursuant to a common criminal plan or purpose”
to sell nearly five kilograms, well over 28 grams, of methamphetamine. Reid, 151
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Opinion of the Court
N.C. App. at 429, 566 S.E.2d at 192. There was substantial evidence to show, as
argued by the State, “that Defendant was an active participant in the drug trafficking
and sale.” Both the “knowing possession” and possession amount elements of
trafficking by possession are supported by substantial evidence.
¶ 16 Because there was substantial evidence of each essential element of the
trafficking by possession offense, the trial court committed no error in denying
Defendant’s motion to dismiss as to this offense.
2. Trafficking by Transport
¶ 17 Defendant was also tried for and moved to dismiss the offense of trafficking in
methamphetamine by transport of 400 grams or more of methamphetamine.
Defendant’s argument here is similar to his argument as to the trafficking by
possession offense. Defendant argues “[t]he State did not present substantial
evidence that [Defendant] acted together with others with a common purpose to
transport the drugs” and the State argues there was substantial evidence to support
an acting in concert theory for trafficking by transportation. Defendant also argues
the State “relied on speculation and ambiguous facts” to show Defendant was merely
present at the transaction and nothing more than a “passive observer” of the
methamphetamine deal. Because the same substantial evidence supporting the
trafficking by possession offense also supports this trafficking by transport offense,
the trial court did not err in denying Defendant’s motion to dismiss.
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Opinion of the Court
¶ 18 The elements of this offense are similar to trafficking by possession. “To convict
a defendant of [trafficking in methamphetamine by transportation], the State must
prove the [D]efendant (1) knowingly . . . transported methamphetamine, and (2) that
the amount possessed was greater than 28 grams.” Shelman, 159 N.C. App. at 305,
584 S.E.2d at 93; see N.C. Gen. Stat. § 90-95(h)(3b). The “knowing possession element
of” trafficking by transport can be proved by an acting in concert theory, and “[a]
defendant acts in concert with another to commit a crime when he acts ‘in harmony
or in conjunction . . . with another pursuant to a common criminal plan or purpose.’”
Reid, 151 N.C. App. at 428-29, 566 S.E.2d at 192 (citation omitted).
¶ 19 The same evidence above, considered “in the light most favorable to the State,”
constitutes “evidence that a reasonable mind might accept as adequate to support
[the] conclusion” that Defendant knowingly transported methamphetamine in
connection with this drug deal. Shelman, 159 N.C. App. at 304-05, 584 S.E.2d at 92.
The evidence indicated Defendant was engaged in regular communication with one
of the middlemen while the driver was on his way to North Carolina with the
methamphetamine, and Defendant was present with the driver and middlemen while
the methamphetamine was being exchanged for the $150,000. If not for the child
locks on the driver’s vehicle, Defendant, instead of the driver, would have taken the
methamphetamine from the trunk and placed it in the storage unit. A “reasonable
inference[]” drawn from all the State’s evidence is that the group, including
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Opinion of the Court
Defendant, was working together to transport and sell the methamphetamine.
Shelman, 159 N.C. App. at 305, 584 S.E.2d at 92.
¶ 20 For the same reasons as above, the trial court committed no error in denying
Defendant’s motion to dismiss as to this offense.
3. Conspiracy to Traffic by Possession
¶ 21 The third offense Defendant was tried for and moved to dismiss was conspiracy
to traffic in methamphetamine by possession. Defendant argues the State’s
circumstantial evidence, and any related inferences, are insufficient to support a
conviction. The State argues the sum of the evidence “point[s] unerringly to the
existence of a conspiracy.” We again disagree with Defendant. The trial court did
not err in denying Defendant’s motion to dismiss.
¶ 22 This Court in State v. Glisson summarized the State’s burden to show a
criminal conspiracy well:
“A criminal conspiracy is an agreement between two or
more people to do an unlawful act or to do a lawful act in
an unlawful way.” State v. Bell, 311 N.C. 131, 141, 316
S.E.2d 611, 617 (1984) (citation omitted). To prove the
crime of conspiracy, “the State need not prove an express
agreement;” rather, “evidence tending to show a mutual,
implied understanding will suffice.” State v. Morgan, 329
N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citation
omitted). “The existence of a conspiracy may be
established by direct or circumstantial evidence, although
it is generally established by a number of indefinite acts,
each of which, standing alone, might have little weight,
but, taken collectively, they point unerringly to the
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Opinion of the Court
existence of a conspiracy.” State v. Worthington, 84 N.C.
App. 150, 162, 352 S.E.2d 695, 703 (1987) (internal
quotation marks and citations omitted). “In ‘borderline’ or
close cases, our courts have consistently expressed a
preference for submitting issues to the jury, both in
reliance on the common sense and fairness of the twelve
and to avoid unnecessary appeals.” State v. Hamilton, 77
N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985) (citations
omitted).
Glisson, 251 N.C. App. at 848, 796 S.E.2d at 128 (addressing the sufficiency of
evidence to support a conviction for felonious conspiracy to traffic opium).
¶ 23 Here, as in Glisson, “the State presented evidence of indefinite acts amounting
to substantial evidence that Defendant conspired with” the other participants of this
deal to traffic methamphetamine. Id. The State’s evidence showed Defendant and
Reyes, a middleman, were texting each other the morning of the methamphetamine
deal and these texts refer to the delivery being delayed in Alabama. Defendant then
met Reyes and the driver at the La Fiesta in Greensboro before travelling together to
the public storage facility. At the public storage facility, Defendant attempted to take
part in dropping off the methamphetamine but was unable to do so because he was
locked in the back seat. Defendant continued to travel with Reyes to a nearby gas
station where he transferred to another vehicle in which he rode together with the
informant, Reyes, and Paco to a nearby restaurant to wait for the money to arrive.
Defendant ultimately returned to the storage unit with the group before being
apprehended by the police.
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Opinion of the Court
¶ 24 Defendant argues his “presence alone does not support a conspiracy,” and the
text messages are too “unrelated to this deal” to evidence an agreement between him
and any other participant in the methamphetamine deal. “[T]he trial court is
required to view the evidence in the light most favorable to the State, making all
reasonable inferences from the evidence in favor of the State.” Shelman, 159 N.C.
App. at 305, 584 S.E.2d at 92 (quoting Kemmerlin, 356 N.C. at 473, 573 S.E.2d at
889). Each of these acts “might have little weight, but, taken collectively, they point
unerringly to the existence of a conspiracy.” Glisson, 251 N.C. App. at 848, 796 S.E.2d
at 128 (quoting Worthington, 84 N.C. App. at 162, 352 S.E.2d at 703). The State
presented sufficient “relevant evidence that a reasonable mind might accept as
adequate to support [the] conclusion” that the drug deal participants, including
Defendant, had “a mutual, implied understanding” to traffic the methamphetamine.
Shelman, 159 N.C. App. at 304, 584 S.E.2d at 92 (first quote); Glisson, 251 N.C. App.
at 848, 796 S.E.2d at 128 (second quote). The State’s evidence “[gave] rise to a
reasonable inference of guilt” and was “properly submitted to the jury[.]” Shelman,
159 N.C. App. at 305, 584 S.E.2d at 92 (second alteration in original) (quotation
omitted).
¶ 25 The State presented substantial evidence to show Defendant was part of a
criminal conspiracy to traffic methamphetamine. The trial court did not err in
denying Defendant’s motion to dismiss.
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B. Speedy Trial Motions
¶ 26 Defendant argues both his federal and state constitutional rights to a speedy
trial were violated. He argues “the trial court committed constitutional error in
failing to dismiss” his case based upon each of his four speedy trial motions.
(Capitalization altered). The State argues no speedy trial violation occurred and
proposes a novel rule for measuring the time periods of delays to determine whether
a violation has occurred.
We review an alleged violation of a defendant’s Sixth
Amendment right to a speedy trial de novo. State v.
Wilkerson, 257 N.C. App. 927, 929, 810 S.E.2d 389, 391
(2018). In reviewing the denial of a motion to dismiss for a
speedy-trial violation, “[w]e review the superior court’s
order to determine whether the trial judge’s underlying
findings of fact are supported by competent evidence and
whether those factual findings in turn support the judge’s
ultimate conclusions of law.” Id. (citation and internal
quotation marks omitted). In reviewing the conclusions of
law, we “consider the matter anew and substitute our
judgment for that of the trial court.” State v. Johnson, 251
N.C. App. 260, 265, 795 S.E.2d 126, 131 (2016) (citation
omitted).
State v. Spinks, 277 N.C. App. 554, 561, 2021-NCCOA-218, ¶ 20. “Competent
evidence is evidence that a reasonable mind might accept as adequate to support the
finding[s].” State v. Newborn, 279 N.C. App. 42, 49, 2021-NCCOA-426, ¶ 24
(quotation omitted).
¶ 27 The timeline for this case is complex, with several distinct periods of time for
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Opinion of the Court
consideration based upon Defendant’s arrest, his speedy trial motions, the two
declared mistrials, and the ultimate trial in which Defendant was convicted. The
State’s arguments rely on these separate time periods. The dates of note for purposes
of this analysis are as follows:
7 February 2016: Defendant was arrested in connection with the
methamphetamine deal. He was later indicted on 2 May 2016.
6 July 2017: The trial court held Defendant’s first “status hearing.”
Defendant rejected the State’s first plea offer and asserted his right to a
jury trial at this hearing.
13 November 2017: The trial court held Defendant’s second “status
hearing.” Defendant rejected a second plea offer and reasserted his right
to a jury trial at this hearing.
30 January 2018: Defendant was represented by counsel but filed a pro
se motion asserting his right to a speedy trial.
12 February 2018: Defendant filed his first speedy trial motion
through counsel asserting violations of his right to a speedy trial under
both our state and federal Constitutions. This motion was heard before
the trial court 6 March 2018. The trial court entered an order without
findings of fact on or about the same day denying Defendant’s motion.
3 April 2018 through 6 April 2018: On 3 April 2018 Defendant’s
counsel filed another written motion “renew[ing] and maintain[ing]” his
first speedy trial motion. Our record and transcripts do not show if or
when the renewed motion was heard by the trial court. Defendant’s first
trial was held. Defendant’s first trial ended in a mistrial on 6 April 2018
due to a hung jury. The trial court entered an order 27 April 2018
declaring the mistrial.
October 2018: Defendant, again acting pro se, sent an undated letter
to the court and reasserted his right to a speedy trial. The court
responded 31 October 2018 and informed Defendant as to the proper
procedure for filing motions.
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Opinion of the Court
Approximately 23 April 2019:3 Defendant filed his second speedy trial
motion through counsel. This motion was heard 6 May 2019. The court
then entered a written order denying the motion without findings on 7
May 2019.
7 August 2019: Defendant filed a third speedy trial motion through
counsel. The trial court denied the third motion by an order entered 23
August 2019. This order included findings of fact.
19 August 2019 through 26 August 2019: Defendant’s second trial
started on 19 August 2019 and ended in a mistrial due to a hung jury on
26 August 2019. The court entered an order the same day declaring the
mistrial.
March 2020 through Fall 2020: The Covid-19 pandemic shut down
many court proceedings, including jury trials, and caused significant
delays in trial court proceedings.4
8 January 2021: Defendant filed his fourth and final speedy trial
motion through counsel. This motion was denied by a written order
entered 16 February 2021. The order did not include findings of fact.
24 May 2021: Defendant’s third and final trial begins.
28 May 2021: Defendant was convicted during his third jury trial and a
judgment was entered as addressed above.
¶ 28 The parties agree on the framework for a speedy trial analysis and the
3 The file stamp on Defendant’s second speedy trial motion is illegible.
4 The Chief Justice of the Supreme Court of North Carolina first issued emergency
directives postponing proceedings and limiting district and superior court proceedings to
remote proceedings on 13 March 2020. Order of the Chief Justice Emergency Directives 1
to 2 (13 March 2020). Proceedings were repeatedly postponed through 2020. See, e.g.,
Order of the Chief Justice Emergency Directives 1 to 7 Postponing Court Proceedings until
June 1 (2 April 2020); Order of the Chief Justice Emergency Directives 9 to 16 (21 May
2020); Order of the Chief Justice Extending Emergency Directives 9-15, 20-22 (15 August
2020). Several of the emergency directives were extended well into 2021. See, e.g., Order of
the Chief Justice Extending Emergency Directives 3, 5 (4 June 2021).
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Opinion of the Court
standard of review but dispute how to weigh the factors in the analysis.
[T]he United States Supreme Court identified four factors
“which courts should assess in determining whether a
particular defendant has been deprived of his right” to a
speedy trial under the federal Constitution. These factors
are: (1) the length of the delay, (2) the reason for the delay,
(3) the defendant’s assertion of his right to a speedy trial,
and (4) whether the defendant has suffered prejudice as a
result of the delay.
State v. Flowers, 347 N.C. 1, 27, 489 S.E.2d 391, 406 (1997) (quoting Barker v. Wingo,
407 U.S. 514, 530, 33 L. Ed. 2d 101, 117 (1972)). Our appellate courts follow the
Supreme Court of the United States’s analysis in Barker v. Wingo when reviewing
speedy trial claims under both our state and federal Constitutions. See id. (citing
State v. Webster, 337 N.C. 674, 678, 447 S.E.2d 349, 351 (1994) (“We follow the same
analysis when reviewing such claims under Article I, Section 18 of the North Carolina
Constitution.”)).
The right to a speedy trial is different from other
constitutional rights in that, among other things,
deprivation of a speedy trial does not per se prejudice the
ability of the accused to defend himself; it is impossible to
determine precisely when the right has been denied; it
cannot be said precisely how long a delay is too long; there
is no fixed point when the accused is put to a choice of
either exercising or waiving his right to a speedy trial; and
dismissal of the charges is the only possible remedy for
denial of the right to a speedy trial.
State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383, 388 (1978) (citing Barker, 407 U.S.
514, 33 L. Ed. 2d 101).
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Opinion of the Court
No single factor is regarded as either a necessary or
sufficient condition to the finding of a deprivation of the
right to a speedy trial. “Rather, they are related factors and
must be considered together with such other circumstances
as may be relevant. In sum, these factors have no
talismanic qualities; courts must still engage in a difficult
and sensitive balancing process. But, because we are
dealing with a fundamental right of the accused, this
process must be carried out with full recognition that the
accused’s interest in a speedy trial is specifically affirmed
in [both] Constitution[s].”
Id. (quoting Barker, 407 U.S. 514, 33 L. Ed. 2d 101).
¶ 29 Here, Defendant filed two pro se motions and four motions through counsel to
dismiss based upon a violation of his right to a speedy trial. The first two orders
denied his first and second motions without findings of fact, the third order denied
his third motion with findings of fact, and the fourth order denied his fourth motion
without findings of fact. Defendant argues “[t]he failure of the trial courts in both
the first and second speedy trial hearings to make any findings or conduct any
analysis would normally require remand.” But Defendant also argues no remand is
needed because “the State has already had ample opportunity to explain the delays
at multiple hearings . . . [and] asks this Court to find his right to [a] speedy trial was
violated without resorting to remand.” The State argues remand is unnecessary
because we “review[] speedy trial motions de novo, substituting [our] judgment for
the trial court[,]” and all four Barker factors “clearly favor the State.”
1. Appellate Review
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Opinion of the Court
¶ 30 Because three of the four orders denying Defendant’s motions were made
without findings of fact, we first must determine whether we may review all four of
Defendant’s motions or if we are required to remand for additional findings. See State
v. Sheridan, 263 N.C. App. 697, 705, 824 S.E.2d 146, 152 (2019) (remanding for “a
proper Barker v. Wingo analysis and appropriate findings” where the “record on
appeal [was] insufficiently developed” for review by this Court); State v. Wilkerson,
257 N.C. App. 927, 937, 810 S.E.2d 389, 396 (2018) (“A full evidentiary hearing is
required in order for the superior court to hear and make an appropriate assessment
of Defendant’s arguments.”); State v. Howell, 211 N.C. App. 613, 711 S.E.2d 445
(2011) (remanding because the trial court “reached its Sixth Amendment ruling
under a misapprehension of the law and without conducting a complete analysis,
including consideration of all the relevant facts and law in [the] case”).
¶ 31 Trial courts are not always required to enter written findings when analyzing
speedy trial motions:
In ruling on a motion for a speedy trial the trial court is not
always required to conduct an evidentiary hearing and
make findings of facts and conclusions of law. See State v.
Dietz, 289 N.C. 488, 495, 223 S.E.2d 357, 362 (1976). In
those instances, however, when the motion to dismiss for
denial of a speedy trial is based on allegations not
“conjectural and conclusory [in] nature,” an evidentiary
hearing is required and the trial court must enter findings
to resolve any factual disputes and make conclusions in
support of its order. Id. When there is no objection,
evidence at the hearing may consist of oral statements by
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Opinion of the Court
the attorneys in open court in support and in opposition to
the motion to dismiss. See State v. Pippin, 72 N.C. App.
387, 397–98, 324 S.E.2d 900, 907 (findings properly based
on oral arguments of attorney where opposing party did not
object to procedure), disc. rev. denied, 313 N.C. 609, 330
S.E.2d 615 (1985).
State v. Chaplin, 122 N.C. App. 659, 663, 471 S.E.2d 653, 656 (1996).
¶ 32 Here, Defendant only challenges the lack of findings in the orders from the
first speedy trial hearing on 6 March 2018 and second speedy trial hearing on 6 May
2019. He challenges findings and conclusions in the trial court’s written order
addressing his third speedy trial motion, and he simply describes the trial court’s 16
February 2021 order denying his fourth motion.
a. First Speedy Trial Motion
¶ 33 Defendant’s first motion was filed on 30 January 2018. Although he was
represented by counsel, he filed a handwritten, pro se motion asserting his right to a
speedy trial. He filed his first speedy trial motion by counsel on 12 February 2018,
which was appropriately filed and served upon the State. The trial court heard the
motion filed by counsel on 6 March 2018 and entered an order denying the motion on
or about the same day. We first note that a defendant is not permitted to proceed
both pro se and by counsel, so defendant’s initial pro se motion was subject to
dismissal for this reason alone. But even if we consider the initial pro se motion as a
properly filed motion, these motions simply recount the fact that Defendant had been
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Opinion of the Court
arrested, was incarcerated, and “his lengthy pretrial confinement is oppressive and
prejudicial in that he has been deprived of his freedom for approximately two years
without trial.” In his first motion filed by counsel, Defendant then quotes State v.
Johnson, 3 N.C. App. 420 (1969), and State v. Chaplin, 122 N.C. App. 659 (1996), yet
fails to articulate why these cases apply to the circumstances surrounding his
incarceration at the time either motion was made. He fails to allege “factual
allegations necessary to support his contentions of unnecessary and deliberate delay
on the part of the prosecution, or of actual prejudice[,]” State v. Goldman, 311 N.C.
338, 346, 317 S.E.2d 361, 366 (1984), and his motion is “conjectural and conclusory
[in] nature[.]” Chaplin, 122 N.C. App. at 663, 471 S.E.2d at 656. Thus, the trial court
did not err by denying the first speedy trial motions without making findings of fact.
¶ 34 Defendant then renewed his first speedy trial motion filed through counsel by
another written motion filed the first day of his first trial, 3 April 2018. The record
is unclear if, when, and how this motion was denied. Defendant’s trial proceeded and
ended in a mistrial due to a hung jury 6 April 2018. The trial court entered an order
27 April 2018 declaring the mistrial.
b. Second Speedy Trial Motion
¶ 35 After his first mistrial, in October 2018 Defendant sent an undated letter
addressed to Judge Lindsay Davis Jr. to the Guildford County Courthouse and
reasserted his right to a speedy trial. The court responded 31 October 2018 by letter
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Opinion of the Court
informing Defendant that the addressee of his letter, Judge Davis, had retired and
that “[f]uture communications with the Court must be in the form of motions or other
appropriate pleadings filed with the Clerk of Court and served on the District
Attorney.” The court also informed Defendant, “[i]t is inappropriate to write ex parte
letters to any individual presiding judge. No judge is allowed to speak with you about
your case except in open court.” The letter also gave Defendant information on how
to dismiss his court-appointed attorney and information on how to file a motion.
¶ 36 Defendant then filed his second speedy trial motion through counsel on or
about 23 April 2019. This motion again asserted his right to a speedy trial, quoted
Johnson and Chaplin, and failed to allege “factual allegations necessary to support
his contentions of unnecessary and deliberate delay on the part of the prosecution, or
of actual prejudice.” Goldman, 311 N.C. at 346, 317 S.E.2d at 366. Defendant’s
motion simply stated he had been arrested and imprisoned, that he had filed speedy
trial motions, that he had been tried, and that he continued to maintain his
innocence. He again quoted Johnson and Chaplin, asserted his “lengthy pretrial
confinement is oppressive and prejudicial in that he has been deprived of his freedom
for three years and two months without resolution[,]” but failed to allege any
deliberate delay by the prosecution or actual prejudice as required by Johnson or
Chaplin.
¶ 37 The trial court held an evidentiary hearing and then entered an order on 7 May
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Opinion of the Court
2019 denying Defendant’s motion “without prejudice at this time.” This order did not
include findings of fact, but it stated that “the Defense may refile the Motion after
August 15, 2019.” The trial court also continued trial to 22 July 2019.
¶ 38 Upon a review of the record, disregarding Defendant’s pro se motions, we find
Defendant’s second speedy trial motion filed by counsel was “conjectural and
conclusory [in] nature,” and the trial court was not required to make findings of fact.
Chaplin, 122 N.C. App. at 663, 471 S.E.2d at 656 (quoting Dietz, 289 N.C. at 495, 223
S.E.2d at 362); Goldman, 311 N.C. at 346, 317 S.E.2d at 366. The motions filed by
counsel recounted a simple history of Defendant’s arrest and imprisonment, made a
bare assertion of his right to a speedy trial, and lacked factual allegations sufficient
to show a violation of his speedy trial right. Even so, for each motion the trial court
held evidentiary hearings and Defendant received the opportunity to present
arguments and provide evidence in the form of oral statements by his attorney. We
find no error by the trial court in failing to enter findings of fact and conclusions of
law as to the first and second speedy trial motions.
c. Third Speedy Trial Motion
¶ 39 After hearing Defendant’s third speedy trial motion, the trial court entered an
order with findings of fact and conclusions of law. The initial four findings addressed
the dates of Defendant’s arrest and the charges against him, as addressed above. The
trial court then found and concluded:
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Opinion of the Court
4. Defendant was one of four co-defendants.
5. Up through May, 2017, the state was preparing for
the trial of one of the co-defendants, which included
a lengthy process by the North Carolina
Administrative Office of the Courts of transcribing
recorded contact between certain of the co-
defendants and an informant, with the process of
transcription taking, as it was described to the State
at the hearing on this motion, taking up to one hour
for every minute of the recording transcribed.
6. The co-defendant’s case came on for trial on May 8,
2017, and the co-defendant pled guilty during the
trial.
7. The Defendant rejected a plea offer on or about July
6, 2017, and the State began efforts to schedule a
trial, which required coordination of witnesses from
numerous jurisdictions and several law enforcement
agencies. These witnesses included a witness from
the Drug Enforcement Administration and an
expert witness from the DEA forensic lab in Miami,
Florida.
8. Defendant was presented with a second plea offer,
which he rejected on or about November 13, 2017.
9. Defendant filed his first speedy trial motion on
February 12, 2018.
10. Defendant’s trial commenced on April 3, 2018, and
ended in a mistrial on April 6, 2018.
11. Transcripts of the trial proceedings were requested,
and, through no delay attributable to the District
[A]ttorney’s [O]ffice, these transcripts took eight
months to prepare, and were obtained at the end of
2018.
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Opinion of the Court
12. Defendant filed his second speedy trial motion on or
about April 23, 2019, which was heard and denied,
without prejudice to refile at a later time, by the
Honorable William Wood.
13. During the intervening time period, the State was
awaiting the resolution of a motion for appropriate
relief filed in a co-defendant’s matter, to determine
whether a trial proceeding against defendant should
be joined with those matters in the event the motion
for appropriate relief was granted.
14. The State is now indicating that it is ready to
proceed with trial during this session of Court.
15. The delays in these matters being reached for trial
are not purposeful or oppressive, are not owing to
any neglect of the District Attorney, and are not
intended to hamper the defense or gain a tactical
advantage in these matters.
The trial court then made conclusions of law, addressing each of the Barker factors,
and denied Defendant’s motion.
¶ 40 “In reviewing the denial of a motion to dismiss for a speedy-trial violation, ‘[w]e
review the superior court’s order to determine whether the trial judge’s underlying
findings of fact are supported by competent evidence and whether those factual
findings in turn support the judge’s ultimate conclusions of law.’” Spinks, ¶ 20
(quoting Wilkerson, 257 N.C. App. at 929, 810 S.E.2d at 391). “Competent evidence
is evidence that a reasonable mind might accept as adequate to support the
finding[s].” Newborn, ¶ 24. Competent evidence for purposes of a speedy trial motion
“may consist of oral statements by the attorneys in open court in support and in
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Opinion of the Court
opposition to the motion to dismiss.” Chaplin, 122 N.C. App. at 663, 471 S.E.2d at
656 (citing Pippin, 72 N.C. App. at 397–98, 324 S.E.2d at 907 (summarizing
discussion from Pippin as “findings properly based on oral arguments of attorney
where opposing party did not object to procedure”)).
¶ 41 Although Defendant’s brief states he challenges some of the trial court’s
findings of fact as unsupported by the evidence, his entire argument challenging the
findings is that Findings 5 through 7 are “partially unsupported and incomplete;”
Finding 11 is “unsupported and inapposite;” Finding 13 is “incorrect and based on
misstatements of the prosecutor;” and Finding 15 is “unsupported and incorrect.”
Defendant does not address how the trial court’s findings were incomplete,
unsupported, or incorrect. Since he has made no substantive argument regarding
these findings, he has waived any challenge to these findings and we will consider
them as binding on appeal. N.C. R. App. P. 28(b)(6) (“An appellant’s brief shall
contain . . . An argument, to contain the contentions of the appellant with respect to
each issue presented. Issues not presented in a party’s brief, or in support of which
no reason or argument is stated, will be taken as abandoned.”) See Yeun-Hee Juhnn
v. Do-Bum Juhnn, 242 N.C. App. 58, 62-63, 775 S.E.2d 310, 313-14 (2015) (“However,
defendant fails to set forth any specific challenges to the findings of fact and instead
presents a broad argument which merely contends that ‘the evidence at trial [did] not
support a finding that [defendant] acted in bad faith, warranting the imputation of
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Opinion of the Court
income to [defendant.]’ It is well established by this Court that where a trial court’s
findings of fact are not challenged on appeal, they are deemed to be supported by
competent evidence and are binding on appeal. . . . As defendant has failed to
articulate challenges to these specific findings of fact, we find these findings to be not
only binding on appeal, but also supported by competent evidence demonstrating that
defendant did indeed act in bad faith regarding his income.” (internal citation
omitted)).
¶ 42 Defendant also contends that the trial court’s conclusions of law do not
properly address the Barker factors and the trial court erred by denying his motion.
We will discuss the trial court’s conclusions of law in our de novo review of the trial
court’s order ruling on the third speedy trial motion below.
d. Fourth Speedy Trial Motion
¶ 43 As discussed above, the trial court had entered an order addressing
Defendant’s third speedy trial motion in August 2019; Defendant filed his fourth
motion on 8 January 2021. This motion recites the history of the case, including the
prior motions to dismiss and the trial court’s rulings upon those motions, and alleges
that “a transcript of the witness testimony from the second trial [in August 2019] has
been ordered by Judge Stuart Albright.” This motion alleged additional delay since
the mistrial in August 2019; that his motion to unsecure his bond “so that he may
begin his federal sentence while the third trial is pending” was denied in October
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Opinion of the Court
2019; and repeated general allegations of prejudice and anxiety from the continued
pretrial confinement. We also note Defendant did not make any allegations as to any
delay in 2020 based upon the suspension of some trial court proceedings, including
jury trials, due to the emergency directives from the Covid-19 pandemic.
¶ 44 The trial court held a hearing on 16 February 2021 and entered an order
denying Defendant’s fourth motion without making findings of fact. In his brief
Defendant simply notes “[t]here were no written findings[,]” before again arguing the
Barker factors cut in his favor. Additionally, there were no disputed facts at the
fourth speedy trial hearing and the court did not need to “resolve any factual disputes
and make conclusions in support of its order.” Chaplin, 122 N.C. App. at 663, 471
S.E.2d at 656. At the hearing, Defendant’s counsel introduced his motion and the
Barker analysis, then State’s counsel recounted the procedural history of this case
and the cases of the co-defendants. Defendant did not object to the procedure used
by the trial court, nor did he argue that the State’s proffered reasons for delay were
incorrect or false. Even when the prosecutor stated, as to State’s preferential order
of prosecuting the four co-defendants, that “[Defendant’s Counsel] and his client,
[Defendant,] certainly tacitly consented to the approach on the State’s part[,]”
Defense counsel did not object. The trial court did not err in failing to enter findings
of fact or conclusions of law as to Defendant’s fourth motion.
¶ 45 Because the trial court did not err by holding four hearings to consider
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Opinion of the Court
Defendant’s motions, or by failing to make written findings after the first, second,
and fourth hearings, we find no error as to the procedures used by the trial court to
hear Defendant’s speedy trial motions. Findings were not required in the first,
second, and fourth orders, and the order entered upon the third motion adequately
addressed any disputed facts. We will now address Defendant’s challenges to the
trial court’s conclusions of law in the order entered after hearing of the third speedy
trial motion as well as the trial court’s denial of Defendant’s fourth and last speedy
trial motion.
2. Substantive Review of Denial of Defendant’s Speedy Trial Motions
¶ 46 Because Defendant’s motions were “conjectural and conclusory [in] nature,”
and because “[t]he information before the trial court is not in dispute” as to the first,
second, and fourth hearings, “the failure of the trial court to making findings of fact
does not prevent review by this Court” and we now turn to the Barker factors.
Chaplin, 122 N.C. App. at 663-64, 471 S.E.2d at 656 (citing Harris v. North Carolina
Farm Bureau Mut. Ins. Co., 91 N.C. App. 147, 150, 370 S.E.2d 700, 702 (1988));
Harris, 91 N.C. App. at 150, 370 S.E.2d at 702 (“[R]emand to the trial court is not
necessary if the facts are not in dispute and if only one inference can be drawn from
the undisputed facts.”). Defendant argues throughout his brief that all four Barker
factors weighed in his favor at the time each motion was made, and these factors
weighed progressively more heavily in his favor as time passed.
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Opinion of the Court
a. Length of the Delay
¶ 47 “The United States Supreme Court has found post-accusation delay
‘presumptively prejudicial’ as it approaches one year.” Flowers, 347 N.C. at 27, 489
S.E.2d at 406 (quoting Doggett v. United States, 505 U.S. 647, 652 n. 1, 120 L. Ed. 2d
520, 528 n. 1 (1992)). “However, presumptive prejudice ‘does not necessarily indicate
a statistical probability of prejudice; it simply marks the point at which courts deem
the delay unreasonable enough to trigger the Barker enquiry.’” Id.; Barker, 407 U.S.
at 530, 33 L. Ed. 2d 117 (“The length of the delay is to some extent a triggering
mechanism. Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance.”).
¶ 48 In the trial court’s order denying Defendant’s third motion, the conclusions of
law begin by noting the Barker factors. The trial court did not make a specific
conclusion of law as to the first factor, the length of the delay, but clearly the trial
court concluded that the length of the delay was sufficient to trigger the Barker
inquiry, as the trial court made findings of fact and conclusions of law specifically
addressing the second, third, and fourth Barker factors.
¶ 49 In most cases, the length of the delay is the most straightforward factor and it
is generally not in dispute. Here, the situation is different because of the various
motions and the two trials ending in mistrial. The parties’ interpretations of our case
law diverge as to how we should consider the length of the delay. Defendant contends
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Opinion of the Court
the clock continues to run from his initial arrest until his final trial; the State
contends the speedy trial clock should “reset” upon each mistrial. The State argues
the protection afforded a criminal defendant by his right to a speedy trial “is for a
speedy trial not a speedy adjudication.” (Emphasis in original.) In the State’s
interpretation of this factor, the lengths of delay are then: (1) 24 months between
Defendant’s arrest in February 2016 and his first speedy trial motion in February
2018; (2) 12 months between Defendant’s first mistrial in April 2018 and his second
speedy trial motion in April 2019; (3) 16 months between Defendant’s first mistrial
in April 2018 and third speedy trial motion in August 2019; and (4) 17 months
between his second mistrial in August 2019 and final speedy trial motion in January
2021.
¶ 50 In response to State’s proposed “reset upon mistrial” rule Defendant “contends
the most fair approach is to calculate the length of delay from arrest to final
judgment, and to consider mistrials or other similar interruptions under the ‘reason
for delay’ factor.” He argues such an approach “prevents the absurd result of a person
being retried to mistrial every eleven months, never reaching a final verdict, and
never qualifying for a presumptive speedy trial violation.” He also argues, “[e]ven
using the State’s approach . . . the time period before each of the three trials was
presumptively prejudicial[.]” Under Defendant’s interpretation of this factor, the
total delay from his arrest in February 2016 until the final adjudication of his case in
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Opinion of the Court
May 2021 was 63 months (five years, three months), during which he filed four speedy
trial motions and his first two trials were declared mistrials.
b. State v. Carvalho
¶ 51 Both parties cite our decision in State v. Carvalho. 243 N.C. App. 394, 777
S.E.2d 78 (2015) cert. denied sub nom. Carvalho v. North Carolina, — U.S. —, 199 L.
Ed. 2d 19 (2017). Defendant argues that “[a] mistrial does not reset the speedy trial
clock.”5 The State argues “the Carvalho [C]ourt’s implicit decision to not reset the
timer upon both mistrials was, at most, dicta, and does not preclude this Court from
fully addressing the issue now.” (Original emphasis.)
¶ 52 The facts of the underlying offenses in Carvalho are not pertinent to this
appeal, but the procedural history of that case is. In Carvalho, the defendant was
arrested on 16 November 2004 and indicted for two separate murders on 3 January
2005. Carvalho, 243 N.C. App. at 395, 777 S.E.2d at 80-81. The defendant was tried
for the second of these murders in 2009, and the trial court declared a mistrial due to
a deadlocked jury. Id. at 395, 777 S.E.2d at 81. The defendant was retried in 2010
and a second mistrial was declared due to a deadlocked jury. Id. The defendant then
5 At this point, it is important to note that Defendant introduces this Carvalho-based
argument in a footnote. The State argues Defendant’s argument should therefore be
considered abandoned pursuant to Rule 28. Because Defendant addressed Carvalho both in
this footnote in his primary brief and again at oral argument, and because we find Carvalho
useful to our discussion regarding the case at bar and to State’s proposed rule regarding the
resetting of “the speedy trial clock,” we will address Defendant’s argument.
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Opinion of the Court
“filed a motion to dismiss the charges based upon a speedy trial violation on 3
December 2012 . . . .” Id. at 397, 777 S.E.2d at 82. Similar to the case at bar,
“Defendant asserted he was denied his constitutional right to a speedy trial due to
the overall length of his imprisonment, as well as a lack of evidence sufficient to
obtain a conviction due to [a State witness]’s unwillingness to testify.” Id. “On 6 June
2013, the trial court held a hearing on Defendant’s motion to dismiss and entered an
order denying Defendant’s motion on 2 January 2014.” Id. at 398, 777 S.E.2d at 82.
¶ 53 The defendant was then tried for the first of the two murders and robbery with
a firearm on 7 October 2013. Id. at 399, 777 S.E.2d at 83. “The trial court declared
a mistrial after the jury deadlocked. Six months later, Defendant was tried a second
time for the murder . . . and robbery with a firearm on 1 April 2014.” Id. “Defendant
moved to dismiss the charges at the close of the State’s evidence, and again at the
close of all of the evidence. The trial court denied Defendant’s motions.” Id. The
defendant was ultimately found guilty of both offenses 7 April 2014. Id. “[A]lmost
nine years elapsed between the time the State indicted Defendant in 2004 and the
time of the June 2013 hearing on his motion to dismiss [based upon a speedy trial
violation.]” Id. at 401, 777 S.E.2d at 84.
¶ 54 The State asserts the Court in Carvalho did not discuss in great detail how the
issue of this nine-year delay impacts the Barker analysis. In Carvalho, this Court
noted the one-year “presumptively prejudicial” rule as to post-accusation delay and
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Opinion of the Court
then determined the nine-year “delay clearly passes the demarcation into
presumptively prejudicial territory and triggers the Barker analysis.” Id. at 401, 777
S.E.2d at 84 (citing Flowers, 347 N.C. at 27, 489 S.E.2d at 406). The Court then
immediately concluded its analysis of this factor with: “The almost nine-year delay .
. . ‘is not per se determinative of whether a speedy trial violation has occurred,’ and
requires careful analysis of the remaining factors.” Id. (quoting Webster, 337 N.C. at
678-79, 447 S.E.2d at 351). As argued by the State, “the Carvalho [C]ourt’s implicit
decision to not reset the timer upon both mistrials . . . does not preclude this Court
from fully addressing the issue now.” (Original emphasis.)
¶ 55 Additionally, the 9-year timeline in Carvalho as to speedy trial motions and
mistrials is distinguishable from the timeline in the present case. In the present case,
Defendant was arrested on 7 February 2016 and filed a speedy trial motion 24 months
later. Defendant renewed this motion on 3 April 2018 and the first mistrial was
declared on 27 April 2018 after a jury deadlock. After the first mistrial Defendant
filed two more speedy trial motions; his second motion was filed on or about 23 April
2019, his third motion on 7 August 2019. Then, Defendant’s second trial ended in a
mistrial because “the jury is hopelessly deadlocked . . . .” Defendant’s fourth and final
“Motion to Dismiss for Violation of Speedy Trial Right” was filed 8 January 2021
before he was ultimately convicted in his third jury trial and a judgment was entered
28 May 2021. (Capitalization altered.)
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Opinion of the Court
¶ 56 In Carvalho, the defendant did not file his “motion to dismiss the charges based
upon a speedy trial violation [until] 3 December 2012[.]” Id. at 397, 777 S.E.2d at 82.
The defendant did not file his motion to dismiss until after both mistrials were
declared as to the second murder, and before his trial for the first murder and robbery
had even began. See id. at 395-99, 777 S.E.2d at 81-83. The defendant did not assert
his right until 2012, over eight years after his initial arrest in connection with the
first murder and over two years after the two mistrials in connection with the second
murder. See id. at 402-403, 777 S.E.2d at 85. Defendant notes the Court in Carvalho
“count[ed the] full nine-year interval between indictment and final trial, which
included two mistrials, when analyzing [the] speedy trial claim.” But Defendant does
not note, as discussed above, that most of this delay was due to the fact the defendant
waited years to assert his right to a speedy trial.
¶ 57 Whether we use the State’s “reset” rule or not, the delay was sufficient to
trigger a speedy trial inquiry. As Defendant noted, and as in Carvalho, “the time
period before each of the three trials was presumptively prejudicial[.]” We decline to
adopt State’s proposed “reset” rule. Whether we consider the delay as 12, 16, 17, 24,
or even 63 months, the “post-accusation delay [is] ‘presumptively prejudicial’”
because each of these time periods is at least one year. See Carvalho, 243 N.C. App.
at 401, 777 S.E.2d at 84 (citing Doggett, 505 U.S. at 652 n. 1, 120 L. Ed. 2d at 528 n.
1).
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Opinion of the Court
¶ 58 As discussed below, the reasons for each delay are more significant than merely
the fact that a mistrial occurred, so we will consider the substance of the State’s
contentions under the second Barker factor. Regardless of whether we follow the
State’s or Defendant’s approach to measuring time for the purpose of a Barker
analysis, the analysis was triggered, and the prejudicial effect of the delay(s) is
addressed in more detail below. See id. at 400-401, 777 S.E.2d at 84.
c. Reason for the Delay
¶ 59 The trial court concluded “As to the second Barker factor, the reasons for the
passage of time in this case between indictment and trial is not due to any negligence
or willfulness of the State. The defendant does not allege in his motion nor provide
any evidence of any willfulness or intentional delay by the State.”
¶ 60 The trial court’s conclusion as to the reasons for the delay is supported by the
evidence and findings of fact. On de novo review, we agree the second Barker factor
does not particularly favor either party. At best, it slightly favors the defendant, but
there was also no showing of any deliberate delay by the State.
Generally, the defendant “bears the burden of showing the
delay was the result of neglect or willfulness of the
prosecution.” Wilkerson, 257 N.C. App. at 930, 810 S.E.2d
at 392 (citation and internal quotation marks omitted).
However, a “particularly lengthy” delay “creates a prima
facie showing that the delay was caused by the negligence
of the prosecutor.” State v. Strickland, 153 N.C. App. 581,
586, 570 S.E.2d 898, 902 (2002), cert. denied, 357 N.C. 65,
578 S.E.2d 594 (2003).
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Opinion of the Court
Spinks, ¶ 26 (emphasis in original). “Upon a prima facie showing of prosecutorial
neglect by a lengthy delay, ‘the burden shifts to the State to rebut and offer
explanations for the delay.’” Id. ¶ 27 (quoting Wilkerson, 257 N.C. App. at 930, 810
S.E.2d at 392). “Once the State offers a valid reason ‘for the lengthy delay of [the]
defendant’s trial, the burden of proof shifts back to the defendant to show neglect or
willfulness by the prosecutor.’” Id. (alteration in original) (quoting Strickland, 153
N.C. App. at 586, 570 S.E.2d at 902). “The State is allowed good-faith delays which
are reasonably necessary for the State to prepare and present its case, but is
proscribed from purposeful or oppressive delays and those which the prosecution
could have avoided by reasonable effort.” Id. ¶ 28 (quoting Wilkerson, 257 N.C. App.
at 930-31, 810 S.E.2d at 393).
¶ 61 Defendant argues that this factor cuts in his favor at the time he made each
motion. As addressed above, if we take Defendant’s measure of 63 months for a
speedy trial delay then Defendant undoubtably shows a “particularly lengthy delay.”
Id. ¶ 26. Even taking the more State-friendly measurement of 24 months between
arrest and Defendant’s first speedy trial motion we find a “prima facie showing that
the delay was caused by the negligence of the prosecutor.” Id. ¶ 26 (quoting
Strickland, 153 N.C. App. at 583, 570 S.E.2d at 902). The State does not make
arguments specifically rebutting whether the initial delay “create[d] a prima facie
showing that the delay was caused by the negligence of the prosecutor[,]” id., and
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Opinion of the Court
instead cites State v. Spivey, 357 N.C. 114, 119, 579 S.E.2d 251, 255 (2003), to argue
“[o]nly after the defendant has carried [t]his burden of proof . . . must the State offer
evidence fully explaining the reasons for the delay and sufficient to rebut the prima
facie evidence.” The trial court’s uncontested findings of fact address the reasons for
each delay, and none indicated negligence or willful delay by the State.
¶ 62 The trial court’s findings establish Defendant was arrested and charged on 7
February 2016 and was later indicted on 2 May 2016. “Defendant was one of four co-
defendants[,]” and through May 2017 “the state was preparing for the trial of one of
the co-defendants, which included a lengthy process . . . of transcribing recorded
contact between certain of the co-defendants and an informant,” and this
transcription took approximately “one hour for every minute of the recording
transcribed.” On 8 May 2017 the co-defendant pled guilty during his trial, and on 6
July 2017 Defendant rejected his first plea offer. The State began scheduling
Defendant’s trial, “which required coordination of witnesses from numerous
jurisdictions and several law enforcement agencies . . . includ[ing] a witness from the
Drug Enforcement Administration and an expert witness from the DEA forensic lab
in Miami, Florida.” Defendant rejected a second plea offer around 13 November 2017,
then filed his first speedy trial motion on 12 February 2018.
¶ 63 “Neither a defendant nor the State can be protected from prejudice which is
an incident of ordinary or reasonably necessary delay[,]” State v. Armistead, 256 N.C.
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Opinion of the Court
App. 233, 239, 807 S.E.2d 664, 669 (2017) (quoting Johnson, 275 N.C. at 273, 167
S.E.2d at 280), and Defendant waited 24 months after his arrest before filing his
speedy trial motion. Some amount of this delay was “incident of ordinary” trial
preparation, because it simply takes time for a case to progress from indictment to
trial. As the State notes, and as the trial court’s unchallenged findings of fact in its
third order establish, Defendant’s charges arose out of a complex investigation
involving several law enforcement agencies which resulted in prosecution of several
defendants. Defendant was also offered two plea deals, and over half of the delay was
caused by the prosecution of the co-defendant and the transcription of recorded
contact between the participants of the drug deal.
¶ 64 While the 24-month period between Defendant’s arrest and first motion may
be “presumptively prejudicial,” the State made a sufficient showing to rebut the
Defendant’s initial showing. The burden then shifted back to Defendant “to show
neglect or willfulness by the prosecutor.” Strickland, 153 N.C. App. at 586, 570
S.E.2d at 902-03 (emphasis added). As to the delay between Defendant’s arrest and
first speedy trial motion, he has failed to make this showing.6 Spinks, ¶ 26 (quoting
6 Defendant also argues that prosecutorial preference in the order in which
coconspirators are tried is not a legitimate and valid reason for the delay between his arrest
and trial and fault can be attributed to the prosecutor. But, “[t]his court has also
recognized that there may be selectivity in prosecutions and that the exercise of this
prosecutorial prerogative does not reach constitutional proportion unless there be a
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Opinion of the Court
Wilkerson, 257 N.C. App. at 930, 810 S.E.2d at 392); Spivey, 357 N.C. at 117, 579
S.E.2d at 254 (quotation omitted) (“[I]n assessing defendant’s speedy trial claim, we
see no indication that court resources were either negligently or purposefully
underutilized.”). There is no evidence the State intentionally delayed Defendant’s
trial; there is ample evidence the State was preparing to prosecute Defendant. The
State has “fully explain[ed] the reason for the delay.” Farmer, 376 N.C. at 415, 852
S.E.2d at 341.
¶ 65 The delay between Defendant’s first mistrial and second speedy trial motion is
also “an incident of ordinary or reasonably necessary delay.” Armistead, 256 N.C.
App. at 239, 807 S.E.2d at 669. The trial court’s unchallenged findings establish,
after Defendant’s first trial, “[t]ranscripts of the trial proceedings were requested,
and, through no delay attributable to the District [A]ttorney’s [O]ffice, these
transcripts took eight months to prepare, and were obtained at the end of 2018.”
Defendant then filed his second speedy trial motion in April 2019. Between his
second and third speedy trial motion in August 2019, “the State was awaiting the
resolution of a motion for appropriate relief filed in a co-defendant’s matter, to
determine whether a trial proceeding against defendant should be joined with those
showing that the selection was deliberately based upon an unjustifiable standard such as
race, religion, or other arbitrary classification.” Spivey, 357 N.C. at 121, 579 S.E.2d at 256
(discussing prosecutorial preference in trying a backlog of murder cases in the speedy trial
context) (quotations omitted).
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Opinion of the Court
matters in the event the motion for appropriate relief was granted.” Ultimately, the
trial court found “[t]he delays in these matters being reached for trial are not
purposeful or oppressive, are not owing to any neglect of the District Attorney, and
are not intended to hamper the defense or gain a tactical advantage in these matters.”
The record also indicates the case was continued from February to April 2019 at the
agreement of both parties.
¶ 66 For 10 of the 12 months between Defendant’s first trial and second speedy trial
motion, and 10 of the 16 months between Defendant’s first trial and third speedy trial
motion, the State could not calendar Defendant’s case. If we were to follow
Defendant’s rule for calculating speedy trial delays, the delay between his arrest and
second motion is 38 months and the delay between his arrest and third motion is 42
months. We have already determined the delay leading to the first trial did not
violate Defendant’s speedy trial rights, and during the delay leading to the second
trial 8 months were occupied waiting on transcripts, “through no delay attributable
to the District attorney’s office”; the proceedings were continued for two months; and
between Defendant’s second and third motion the State “was awaiting the resolution
of a motion for appropriate relief . . . to determine whether a trial proceeding against
defendant should be joined” with a co-defendant’s matter. Defendant again fails to
show “the delay was the result of neglect or willfulness of the prosecution.” Spinks,
¶ 26 (emphasis omitted) (quotation omitted). Defendant was then tried again at the
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Opinion of the Court
42-month mark of his incarceration, resulting in the second mistrial.
¶ 67 The delay between the second and third trials is justified largely by truly
neutral factors. The delays prior to the first and second trial may still be considered
here. But the second trial took place in August 2019. The third trial occurred in May
2021. During a large portion of 2020, most of the time period between these two trial
dates, the Covid-19 pandemic caused significant shutdowns and backlogs in our
judicial system. These shutdowns were required by Executive Orders issued by the
Governor of North Carolina and by Emergency Directives issued by the Chief Justice
of the Supreme Court of North Carolina.7
¶ 68 A lengthy delay alone will not weigh against the State, but Defendant is
required to show “purposeful” delays or “those which the prosecution could have
avoided by reasonable effort.” Spinks, ¶ 28; Spivey, 357 N.C. at 121, 579 S.E.2d at
7 The Chief Justice of the Supreme Court of North Carolina issued multiple orders
postponing proceedings, including jury trials, by thirty days in response to the Governor’s
declaration of a state of emergency due to Covid-19. See Order of the Chief Justice
Emergency Directives 1 to 2 (13 March 2020); Order of the Chief Justice Emergency
Directives 9 to 16 (21 May 2020); Order of the Chief Justice Extending Emergency
Directives 9 to 16 (20 June 2020); Order of the Chief Justice Extending Emergency
Directives 9-15, 20 (20 July 2020); Order of the Chief Justice Extending Emergency
Directives 9-15, 20-22 (15 August 2020); Order of the Chief Justice Extending Emergency
Directives 2-6, 8-15, 18, and 20-22 (15 September 2020); Order of the Chief Justice
Extending Emergency Directives 2-5, 8-15, 18, and 20-22 (14 December 2020). These orders
may be found on the North Carolina Judicial Branch’s website at:
https://www.nccourts.gov/covid-19. In early 2021 the Chief Justice allowed proceedings to
resume on a county-by-county basis depending upon the current state of Covid-19 cases in
that county. See Order of the Chief Justice Extending Emergency Directives 2, 3, 5, 8, 11,
12, 14, 15, 21 (14 January 2021).
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Opinion of the Court
256 (“Indeed, defendant relies solely on the length of delay and ignores the balancing
of other factors. In light of these reasons, we conclude that the delay was caused by
neutral factors and that defendant failed to carry his burden to show delay caused by
the State’s neglect or willfulness.”). Defendant did not make any allegations of delay
based upon Covid-19 shutdowns and did not demonstrate the prosecutor here could
have avoided any delay caused by the pandemic, and this delay will not weigh against
the State. Cf. Farmer, 376 N.C. at 416, 852 S.E.2d at 341-42 (discussing how some
neutral factors, like crowded criminal case dockets, weigh against the State because
the State has a “more authoritative role in the delay”). Additionally, the record
indicates approximately two months of the final delay between Defendant’s second
and third trials was due in part due to a medical issue suffered by Defendant’s own
counsel.
¶ 69 While the time periods between Defendant’s arrest and trials is lengthy enough
to shift the burden to the State, “the State offers a valid reason ‘for the lengthy delay
of [the] defendant’s trial, [and] the burden of proof shift[ed] back to the defendant to
show neglect or willfulness by the prosecutor.’” Spinks, ¶ 27 (quotation omitted).
With respect to each motion, Defendant has not shown any actual neglect or
willfulness by the prosecutor in any of the delays between his arrest, trials, and
motions. Although there are some reasons for the delay that weigh slightly against
the State, the State offered valid reasons for the delay, including delays incident to
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Opinion of the Court
normal trial procedure and delays due to the effect of the Covid-19 pandemic on our
court system in 2020. This factor does not particularly favor either party, and at best
it might slightly favor Defendant, at least prior to 2020.
d. Defendant’s Assertion of the Right
¶ 70 As to the third Barker factor, the trial court concluded, “The defendant has
first asserted the right to a speedy trial by motion on February 12, 2018, after the
matter had been pending for two years, and after acquiescing to the State’s approach
during the prior two years of addressing the matters of the other co-defendants prior
to trying the defendant’s cases.”
¶ 71 The third Barker factor favors Defendant. As the trial court noted, Defendant
waited about two years to assert his right to a speedy trial, but at that point, he
asserted his right to a speedy trial repeatedly. The State concedes as much.
“A criminal defendant who vigorously asserts his right to a
speedy trial will be considered in a more favorable light
than a defendant who does not.” Strickland, 153 N.C. App.
at 587, 570 S.E.2d at 903. A failure to assert the right, or
a failure to assert the right early in the process, weighs
against a defendant’s contention that his right has been
violated. [State v.] Grooms, 353 N.C. [50,] 63, 540 S.E.2d
[713,] 722 [(2000)].
Spinks, ¶ 33.
¶ 72 Defendant first asserted his right to a speedy trial by a pro se motion and letter
filed 30 January 2018. His first motion filed through counsel was filed 12 February
2018. Defendant filed three additional speedy trial motions: the second motion on or
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Opinion of the Court
about 23 April 2019, after his first mistrial; the third motion on 7 August 2019; and
the fourth and final motion on 8 January 2021, between the second mistrial in August
2019 and his third trial in March 2021. Defendant also sent an undated letter to a
retired judge, presumably at some point in October 2018, as we can estimate by the
trial court’s response. Even accepting the State’s argument, citing Spivey, 357 N.C.
at 121, 579 S.E.2d at 256, that “a represented defendant ‘cannot also file motions on
his own behalf or attempt to represent himself[,]’” Defendant’s four motions filed
through counsel unequivocally establish he “vigorously assert[ed] his right to a
speedy trial . . . .” Id.
e. Prejudice to the Defendant Resulting from the Delay
¶ 73 “As to the fourth Barker factor,” the trial court concluded, “the alleged delay
has not caused any significant prejudice to defendant, and the defendant has not
alleged specific prejudice, such as any alleged unavailability of witnesses given the
passage of time, in his motion.”
¶ 74 We agree that the final factor favors the State:
Prejudice “should be assessed in the light of the interests
of defendants which the speedy trial right was designed to
protect.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193, 33
L.Ed.2d at 118. The identified interests the constitutional
right to a speedy trial protects are: (1) avoiding prolonged
imprisonment; (2) reducing anxiety of the accused; and (3)
creating the opportunity for the accused to assert and
exercise their presumption of innocence. See id. The last
of these interests is the most important aspect to the
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Opinion of the Court
speedy trial right, “because the inability of a defendant
adequately to prepare his case skews the fairness of the
entire system.” Id.
Carvalho, 243 N.C. App. at 403, 777 S.E.2d at 85. “A defendant must show actual,
substantial prejudice.” Spivey, 357 N.C. at 122, 579 S.E.2d at 257.
¶ 75 Defendant has not shown “actual, substantial prejudice.” Id. The first two
interests protected by the right to a speedy trial are evident in nearly all
incarcerations. Defendant was imprisoned for several years awaiting trial for the
offenses he was ultimately convicted upon, and this imprisonment undoubtably
caused significant “anxiety of the accused.” Carvalho, 243 N.C. App. at 403, 777
S.E.2d at 85. But from arrest through conviction Defendant received three
opportunities “to assert and exercise [his] presumption of innocence.” Id.
¶ 76 Defendant admits his defense was not prejudiced by any delay, “because he did
not call witnesses; he instead relied on the fact that the State had no evidence of his
participation.” Defendant argues he “should not be punished due to the arbitrary
factor that his defense was not damaged by the passage of time.” Additionally,
Defendant argues he was prejudiced because he was “unjustly locked away, unable
to work and see and support his family.” The State cites Farmer and argues
“Defendant only cite[s] generalized concerns surrounding detention” and “[t]hese are
the exact arguments our Supreme Court already said were not sufficient.”
¶ 77 As to Defendant’s argument that his incarceration was prejudicial because he
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Opinion of the Court
was “unjustly locked away, unable to work and see and support his family[,]”
Defendant is required to allege more than simple separation from his family, or the
type of separation inherent to pretrial detention. See Spinks, ¶ 38 (discussing State
v. Washington, 192 N.C. App. 277, 292, 665 S.E.2d 799, 809 (2008)). Defendant has
not alleged any reason why separation from his family was particularly prejudicial
as a result of the delays before his trial. He has not argued how that separation
affects any of the interests protected by the right to a speedy trial above the prejudice
inherent in every pretrial incarceration. Defendant instead makes a bare assertion
that separation from his family was “unjust . . . given the weakness of the State’s case
. . . .” This argument falls short of “actual, substantial prejudice.” Spivey, 357 N.C.
at 122, 579 S.E.2d at 257.
¶ 78 Defendant also argues that he is prejudiced because none of his time spent in
State jail will count against his future federal sentence. Defendant does not expand
upon this argument. We find this argument unpersuasive. It is not uncommon for a
criminal defendant to serve consecutive sentences for multiple offenses or for a
defendant to be prosecuted by both State and Federal authorities. And, as we
discussed above, the State’s evidence was sufficient to convict Defendant on all three
charges. Although “[t]he fact a defendant is already incarcerated while awaiting trial
‘does not mitigate against his right to a speedy and impartial trial[,]’” Wilkerson, 257
N.C. App. at 934, 810 S.E.2d at 395 (quotation omitted), Defendant does not explain
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Opinion of the Court
how this future sentence constitutes prejudice protected against by his right to a
speedy trial. He does not allege the possibility of a concurrent sentence being lost, or
an increase in his present imprisonment, or any worsening of the conditions of his
imprisonment due to the “pendency of another criminal charge outstanding against
him.” Id. (quoting Smith v. Hooey, 393 U.S. 374, 378, 21 L. Ed. 2d 607, 611 (1969)).
The fact that Defendant will have to serve a federal sentence in addition to his state
sentence does not constitute “actual, substantial prejudice” as Defendant presents it
to us. Spivey, 357 N.C. at 122, 579 S.E.2d at 257.
¶ 79 As to Defendant’s argument that he “should not be punished due to the
arbitrary factor that his defense was not damaged by the passage of time[,]” we do
not find that Defendant is being punished because this case took several years and
multiple trials to resolve or because he did not present evidence in his defense.
Defendant has failed to show any prejudice that is not inherent to all pretrial
detentions, and ultimately the only showing of prejudice is Defendant’s lengthy
incarceration alone. While we acknowledge the oppressive and anxiety-inducing
nature of pretrial incarceration, it is not enough by itself to show “actual, substantial
prejudice.” This factor weighs in favor of the State.
f. Weighing the Factors
¶ 80 The reasons for the delay were not solely the fault of the State. Defendant has
not presented evidence to show the delay was due to “neglect or willfulness by the
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Opinion of the Court
prosecutor.” Spinks, ¶ 27 (quotation omitted). While Farmer indicates the State
bears some burden for the exercise of prosecutorial preference in the order Defendant
and co-defendants were tried, see Farmer, 376 N.C. at 416, 852 S.E.2d at 342, “[t]his
Court has also recognized that there may be selectivity in prosecutions and that the
exercise of this prosecutorial prerogative does not reach constitutional proportion
unless there be a showing that the selection was deliberately based upon an
unjustifiable standard such as race, religion, or other arbitrary classification.”
Spivey, 357 N.C. at 121, 579 S.E.2d at 256 (quotations omitted) (discussing the effect
of prosecutorial preference in trying capital versus noncapital murder cases).
¶ 81 “No one factor is determinative of a speedy-trial violation; ‘they must all be
weighed and considered together[.]’” Spinks, ¶ 41 (alteration in original) (quotation
omitted). Here, the balance of the factors weighs in favor of the State. Defendant
has failed to show purposeful, neglectful, or willful delay by the prosecutor.
Defendant has also failed to show “actual, substantial prejudice” as a result of any
delay. Spivey, 357 N.C. at 122, 579 S.E.2d at 257. Upon de novo review, we hold the
trial court did not err in balancing the Barker factors as to any of Defendant’s motions
and denying his motions to dismiss based upon denial of his right to a speedy trial.
III. Conclusion
¶ 82 We conclude the State presented sufficient evidence to convict Defendant on
each charge and the trial court did not err in denying Defendant’s motions to dismiss
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Opinion of the Court
based upon his assertion of a denial of his right to a speedy trial. The trial court
committed no error.
NO ERROR.
Judges TYSON and HAMPSON concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482299/ | IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
PEREZ CARMENATE V. WAL-MART STORES
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).
MADALYS PEREZ CARMENATE, APPELLANT,
V.
WAL-MART STORES, INC., APPELLEE.
Filed November 8, 2022. No. A-22-234.
Appeal from the Workers’ Compensation Court: JOHN R. HOFFERT, Judge. Affirmed.
Jon Rehm, of Rehm, Bennett, Moore & Rehm, P.C., L.L.O., for appellant.
Jenna M. Christensen, of Caswell, Panko, & Westerhold, L.L.C., for appellee.
PIRTLE, Chief Judge, and BISHOP and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
Madalys Perez Carmenate (Carmenate) filed a petition in the Workers’ Compensation
Court seeking an award of benefits for injuries that occurred during her employment with
Wal-Mart Stores, Inc. (Walmart). Following trial, the compensation court awarded Carmenate
temporary total disability for 21.1429 weeks and permanent partial disability (PPD) for 3.5 weeks;
it also ordered Walmart to pay Carmenate’s medical expenses related to the treatment of her left
wrist injury. Carmenate appeals the court’s award, claiming her PPD benefits should have been
based on a loss of earning capacity. She also challenges the court’s decision not to award her future
medical expenses. We affirm.
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II. BACKGROUND
1. INJURY AND CLAIM
Carmenate began employment as a merchandise stocker with Walmart in May 2015. She
was injured on July 23, 2020, when a box of condensed milk cans fell off a shelf. As she attempted
to stop the box from falling, it hit her left wrist. She was later diagnosed with De Quervain’s
tenosynovitis and was found to have a partial tear of the scapholunate ligament. She eventually
underwent a left first dorsal compartment release surgery in November 2020.
On April 26, 2021, Carmenate filed a petition in the compensation court seeking
compensation for injuries sustained in the course of her employment with Walmart on July 23,
2020. She claimed injuries to her left arm, wrist, shoulder, and elbow. Carmenate sought temporary
disability benefits, permanent disability benefits, payment of medical expenses, vocational
rehabilitation benefits, waiting time penalties, attorney’s fees, and interest. In its answer, Walmart
admitted that Carmenate experienced an “accident” arising out of and in the course of her
employment with Walmart on July 23, but denied the nature and extent of the injuries and disability
alleged by Carmenate.
2. TRIAL
Trial was held on December 21, 2021. The parties had reached agreement on several issues,
including that Carmenate sustained a left wrist injury arising out of and in the course of her
employment on July 23, 2020. However, whether Carmenate had suffered any additional injuries
from the July 2020 incident was contested. Carmenate testified with the help of an interpreter and
various exhibits were received into evidence.
(a) Left Wrist Injury
Carmenate testified that she began working for Walmart in May 2015 as a full-time
merchandise stocker. She typically worked overnight shifts lifting, carrying, and opening boxes
weighing about 15 to 20 pounds.
On July 23, 2020, Carmenate was placing a box of condensed milk cans on a shelf and the
box fell. As she raised her arms to stop the box from striking her face, the box hit her left wrist and
she felt “a lot of pain and had to hold [her] wrist.” Immediately following her injury, Carmenate’s
supervisor took her to an urgent care center where Carmenate was prescribed Tylenol and
instructed to wear a splint. The treating medical provider restricted Carmenate from lifting or
carrying objects weighing more than 3 pounds for more than 8 hours per day or grasping, reaching,
overhead reaching, or extending or flexing her wrist.
After the urgent care visit, Carmenate experienced worsening pain so she attended
numerous appointments with medical professionals ranging in specialty, including orthopedic
surgery, physical therapy, and pain management. We summarize the relevant notes from the
appointments here and discuss the details of such appointments as necessary.
After the July 2020 incident, Dr. Kerri Kulovitz began treating Carmenate for her left wrist
injury. In September, Dr. Kulovitz confirmed that Carmenate had developed De Quervain’s
tenosynovitis and further diagnosed her with a “scapholunate ligament sprain[] and mild
degenerative changes of the STT joint and the first CMC joint.” After various noninvasive
-2-
treatments failed to remedy her wrist injury, Carmenate underwent a left first dorsal compartment
release surgery in November; one of the risks associated with the surgery was complex regional
pain syndrome (CRPS). In December, Dr. Kulovitz expressed concern that Carmenate “may be
developing CRPS” and recommended that Carmenate continue occupational therapy and see a
pain management specialist.
Following her surgery, Carmenate attended 36 occupational therapy appointments between
December 2020 and April 2021. Throughout Carmenate’s time in occupational therapy, her left
wrist pain significantly decreased, and she demonstrated marked improvement in her left wrist
mobility and strength.
In a report authored in June 2021, Dr. Kulovitz stated that Carmenate had reached
maximum medical improvement (MMI), and regarding Carmenate’s left wrist, she was “safe to
attempt returning to full duty at work.” Dr. Kulovitz placed Carmenate at “an assigned . . . 2%
impairment rating of the upper extremity, and 1% of the whole person.” However, Dr. Kulovitz
further stated that Carmenate had “developed diffuse chronic pain in her left upper extremity,
including her shoulder and elbow” and deferred to the evaluation of Carmenate’s shoulder and
elbow pain by Drs. John Massey and Thomas Saylor.
(b) Injuries Beyond Carmenate’s Left Wrist
As previously noted, Dr. Kulovitz was concerned that Carmenate may have developed
CRPS and referred her to Drs. Massey and Saylor. In February 2021, Dr. Massey, a pain
management specialist, examined Carmenate, diagnosed her with CRPS, and gave her a
prescription for Lyrica. In July, Dr. Saylor, an orthopaedic surgeon, examined Carmenate’s left
shoulder. He noted that Carmenate’s shoulder pain was “likely non organic with symptom
magnification and significant compensation.” Dr. Saylor recommended that Carmenate participate
in physical therapy. In October, Dr. Massey “started” Carmenate on a Medrol Dosepak and stated
that he would “get her scheduled for stellate ganglion block.”
Carmenate began seeing Deirdre Schoenfelder, a physical therapist, in October 2021 for
her left shoulder pain. At her initial appointment, Carmenate indicated that “the really strong pain
[was] gone . . . in [her] hand,” but that she had developed pain in her shoulder instead. She rated
her pain at a 10 on a scale of 1 to 10. Throughout the course of her 10 physical therapy
appointments, Carmenate continued to rate her pain at a 9 or 10 and expressed that her shoulder
was not improving. Carmenate testified that physical therapy did not help at all.
In October 2021, Dr. Donato Borillo conducted an independent medical examination via a
telehealth video call with Carmenate to examine her injury; no medical personnel were physically
present with Carmenate during this appointment. Dr. Borillo authored a letter to Carmenate’s
attorney stating the following:
In my medical opinion, Ms. Carmenate suffered several injuries to her left upper
extremity on August 23, 2017 while handling boxes. She recovered and returned to work.
By July 23, 2020, [Carmenate] had suffered another injury working at Walmart and
on MRI, a left wrist TFCC and scapholunate ligament injury with dorsal subluxation of the
ulna. [Carmenate] developed[,] as flow through conditions[,] left elbow medial
epicondylitis, left wrist DeQuervain’s [sic], left shoulder strain, and left wrist extensor
carpi ulnaris tendinosis. She favored the wrist ailments and the neighboring joints
-3-
accommodated and became strained and inflamed. Despite surgical intervention,
symptoms and clinical findings persist.
....
For the left wrist, a four percent (4%) hand impairment is assigned. The
DeQuervain’s [sic] condition, despite surgery, impacts thumb, MP function in accordance
with figure 16-5 page 457, and IP function in accordance with figure 16-12; also,
abduction, figure 16-18 page 459, and opposition figure 16-19 page 460, yield a left-hand
impairment of four percent (4%). Eight percent hand (8%) [sic] equates to seven percent
(7%) upper extremity impairment. Left upper extremity impairment, for the injuries
suffered on July 23, 2020, based upon the combined values chart found on page 604, is
sixteen percent (16%) whole person impairment.
Several months earlier, on April 8, 2021, Dr. Nicholas Bruggeman conducted an in-person
independent medical examination of Carmenate’s neck, shoulder, elbow, forearm, hand, and wrist.
Dr. Bruggeman authored a letter addressed to Walmart stating that he “[does] not believe
[Carmenate] suffers from complex regional pain syndrome” and that she has reached MMI
regarding her left wrist injury. He also found that “no further treatment is required. No physical
therapy or diagnostic procedures are necessary.” He assigned no permanent impairment rating
related to Carmenate’s July 2020 accident.
3. COMPENSATION COURT AWARD
The compensation court issued its award on March 3, 2022. The court noted that the parties
had reached various stipulations, including that Carmenate sustained an injury to her left wrist on
July 23, 2020; the court accepted the stipulations. The court found that “to the extent that
[Carmenate] claimed other injuries[,] the medical evidence . . . lacked the needed underpinnings
to support a finding favorable to [Carmenate].” The court awarded Carmenate temporary total
disability for 21.1429 weeks and ordered Walmart to pay medical expenses incurred by Carmenate
in the treatment of her left wrist injury. However, the court found that there was insufficient
evidence to show that Carmenate required any future medical treatment for her left wrist injury
and thus denied her an award of future medical expenses. The court also granted Carmenate a PPD
award for 3.5 weeks for a scheduled member injury.
Carmenate appeals.
III. ASSIGNMENTS OF ERROR
Carmenate claims restated and reordered, that the compensation court erred in (1) failing
to award her PPD benefits based on a loss of earning capacity and (2) finding that she was not
entitled to future medical expenses.
IV. STANDARD OF REVIEW
A judgment, order, or award of the compensation court may be modified, reversed, or set
aside only upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient
competent evidence in the record to warrant the making of the judgment, order, or award; or (4)
-4-
the findings of fact by the compensation court do not support the order or award. Martinez v. CMR
Constr. & Roofing of Texas, 302 Neb. 618, 924 N.W.2d 326 (2019).
An appellate court is obligated in workers’ compensation cases to make its own
determinations as to questions of law. Id. Findings of fact made by the Workers’ Compensation
Court after review have the same force and effect as a jury verdict and will not be set aside unless
clearly erroneous. Id.
As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of
witnesses and the weight to be given their testimony. Id.
V. ANALYSIS
1. LOSS OF EARNING CAPACITY
The compensation court determined Carmenate’s PPD benefits based on a loss of use of a
scheduled member pursuant to Neb. Rev. Stat. § 48-121(3) (Reissue 2021) (“[f]or disability
resulting from permanent injury of the following classes, compensation shall be: . . . [f]or the loss
of a hand, sixty-six and two-thirds percent of daily wages during one hundred seventy-five
weeks”). The compensation court accepted and adopted Dr. Kulovitz’ impairment rating, entitling
Carmenate to a 2 percent medical impairment to her hand. This resulted in “weekly permanent
partial disability benefits of $452.76 ([average weekly wage] of $679.24 × 2/3) for a period of 3.5
weeks (statutory maximum for hand injury of 175 weeks × 2 percent medical impairment rating).”
However, Carmenate claims she should have instead been compensated for her injury
based on a loss of earning capacity under a different paragraph in the same statute. Carmenate
refers to language found in the third paragraph of § 48-121(3), which was added to the statute by
2007 Neb. Laws, L.B. 588. See Rodgers v. Nebraska State Fair, 288 Neb. 92, 846 N.W.2d 195
(2014). The third paragraph of § 48-121(3) states:
If, in the compensation court’s discretion, compensation benefits payable for a loss
or loss of use of more than one member or parts of more than one member set forth in this
subdivision, resulting from the same accident or illness, do not adequately compensate the
employee for such loss or loss of use and such loss or loss of use results in at least a thirty
percent loss of earning capacity, the compensation court shall, upon request of the
employee, determine the employee’s loss of earning capacity consistent with the process
for such determination under subdivision (1) or (2) of this section, and in such a case the
employee shall not be entitled to compensation under this subdivision.
The paragraph quoted above “provides a discretionary remedy consisting of a loss of earning
capacity award in lieu of scheduled member compensation where two or more members are
involved and there is a 30-percent loss of earning capacity.” Rodgers v. Nebraska State Fair, 288
Neb. at 101, 846 N.W.2d at 202.
Carmenate claims she has been “assigned impairments to her left hand, wrist, elbow, and
shoulder,” and that the compensation court could have considered Carmenate’s testimony “on the
extent of her own disability when addressing loss of earning power and permanent disability
benefits.” Brief for appellant at 6. Carmenate contends that since she testified that she “would not
be able to complete the jobs she had in the past because of the pain in her left wrist, elbow, and
-5-
shoulder,” and “because there was no light work to accommodate her injuries,” her earning power
has been “greatly decreased.” Id. at 6-7.
We first note that it is unclear from the record whether Carmenate requested that the
compensation court award her PPD based on her loss of earning capacity. Regardless, the court
could not have granted her a PPD award on that basis because the court expressly found that
Carmenate sustained only a left wrist injury in the July 23, 2020, accident. The court further stated
that there was insufficient credible medical evidence to support a finding of other injuries. Because
§ 48-121(3) requires the court to find “a loss or loss of use of more than one member or parts of
more than one member” to award PPD on a loss of earning capacity basis and the court made no
such finding, Carmenate was not eligible to receive a loss of earning capacity award.
To the extent that Carmenate impliedly challenges the compensation court’s finding
regarding the extent of her injuries beyond her left wrist, we cannot disturb the compensation
court’s factual findings if the record contains evidence to substantiate the factual conclusions
reached by the compensation court. See Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398
(2000). As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility
of witnesses and the weight to be given their testimony. Martinez v. CMR Constr. & Roofing of
Texas, supra. When the record presents conflicting medical testimony, an appellate court will not
substitute its judgment for that of the Workers’ Compensation Court. Leitz v. Roberts Dairy, 237
Neb. 235, 465 N.W.2d 601 (1991).
The record shows that there was conflicting medical evidence presented as to the extent of
Carmenate’s injuries beyond her left wrist. While the compensation court found Dr. Kulovitz to
be credible and relied on her expert medical opinion, Dr. Kulovitz primarily treated Carmenate’s
left wrist injury. In her June 2021 report, Dr. Kulovitz deferred to Drs. Massey and Saylor for
opinions regarding the condition of Carmenate’s shoulder and elbow. While Dr. Massey diagnosed
Carmenate with CRPS affecting her left arm, Dr. Saylor found that Carmenate’s shoulder pain was
“likely non organic with symptom magnification and significant compensation.” Drs. Borillo and
Bruggeman also evaluated Carmenate and each came to a different conclusion regarding whether
she had injuries beyond her left wrist. Dr. Bruggeman found that Carmenate only suffered a left
wrist injury and had reached MMI; he also found that Carmenate had not developed CRPS. On the
other hand, Dr. Borillo found that Carmenate suffered “several injuries” to her left upper extremity.
However, the court explicitly stated that it did not find Dr. Borillo to be credible because he
conducted his examination of Carmenate remotely, outside the presence of medical personnel.
As previously stated, findings of fact made by the compensation court have the same force
and effect as a jury verdict and will not be set aside unless clearly erroneous. See Martinez v. CMR
Constr. & Roofing of Texas, supra. We find no clear error in the court’s conclusion that Carmenate
suffered an injury only to her left wrist. Accordingly, Carmenate was not eligible for a PPD award
based on a loss of earning capacity.
2. FUTURE MEDICAL EXPENSES
Carmenate also claims the compensation court erred when it denied her request for future
medical expenses. Pursuant to Neb. Rev. Stat. § 48-120(1)(a) (Reissue 2021), “[t]he employer is
liable for all reasonable medical, surgical, and hospital services . . . which are required by the
nature of the injury and which will relieve pain or promote and hasten the employee’s restoration
-6-
to health and employment[.]” Before an order for future medical benefits may be entered, there
should be a stipulation of the parties or evidence in the record to support a determination that future
medical treatment will be reasonably necessary to relieve the injured worker from the effects of
the work-related injury or occupational disease. Tchikobava v. Albatross Express, 293 Neb. 223,
876 N.W.2d 610 (2016). Whether medical expenses are reasonably necessary and related to the
work-related injury is a question of fact to be determined by the trial judge. Visoso v. Cargill Meat
Solutions, 18 Neb. App. 202, 778 N.W.2d 504 (2009).
Finding no stipulation between the parties regarding an award of future medical benefits,
the compensation court reviewed the medical evidence to determine whether it was probable that
Carmenate would need future medical care in relation to her left wrist injury. The court stated that
“neither Drs. Kulovitz [nor] Bruggeman[,] who the Court relied upon in determining the nature
and extent of [Carmenate’s] injury[,] has recommended any future medical care for the wrist
injury.” Accordingly, the court concluded that it was not probable that Carmenate would need
future medical care for her left wrist.
Carmenate argues that her future need for medical care was demonstrated by the fact that
“Dr. Kulovitz referred [her] to Dr. Saylor and Dr. Massey for future pain management relating to
CPRS.” Brief for appellant at 5. She further points out Dr. Massey’s recommendation of a “stellate
ganglion block and a Medrol Dosepak” and Dr. Saylor’s recommendation that she have an MRI
and continued physical therapy. Id.
Carmenate’s argument refers exclusively to evidence aimed at demonstrating future
medical needs related to injuries beyond her left wrist. However, as previously addressed, the
compensation court did not find that Carmenate suffered any injuries beyond her left wrist injury
as a result of the July 2020 accident. Any future medical expenses unrelated to Carmenate’s left
wrist injury are not relevant to the court’s denial of an award of future medical expenses. Thus,
there was no error in the court’s decision declining to award future medical expenses.
VI. CONCLUSION
For the reasons set forth above, we affirm the compensation court’s March 3, 2022, award.
AFFIRMED.
-7- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482295/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-705
No. COA22-198
Filed 1 November 2022
Wake County, No. 03 CVD 11249
ALICE BRACEY (formerly Murdock), Plaintiff,
v.
MICHAEL WELBORN MURDOCK, Defendant.
Appeal by defendant from order entered 29 September 2021 by Judge J. Brian
Ratledge in Wake County District Court. Heard in the Court of Appeals 6 September
2022.
Wake Family Law Group, by Nancy Grace, Kelley Cash, and Zach Underwood,
for plaintiff-appellee.
Rik Lovett & Associates, by S. Thomas Currin II, for defendant-appellant.
ZACHARY, Judge.
¶1 Defendant Michael Welborn Murdock appeals from the trial court’s order
granting Plaintiff Alice Bracey’s motion to dismiss, dismissing Defendant’s motion
for entry of qualified domestic relations orders (“QDROs”), and dismissing as moot
his other pending motions. After careful review, we affirm.
I. Background
¶2 The trial court granted Plaintiff an absolute divorce from Defendant on 31
BRACEY V. MURDOCK
2022-NCCOA-705
Opinion of the Court
October 2003, while retaining jurisdiction over, inter alia, both parties’ claims for
equitable distribution. On 28 February 2005, the trial court entered the parties’
consent order and judgment for equitable distribution (the “2005 Consent Order”).
The 2005 Consent Order provides, in pertinent part:
Plaintiff shall retain her 401(k) account and IRA account
as her separate property. Plaintiff shall transfer to
Defendant $31,618.00, equal to one-half of the date of
separation balance in her IRA and $75,203.74, equal to
one-half of the date of separation balance of her 401(k)
account. The judgment of divorce in the above-entitled
action shall be amended to create the tax free transfer of
funds from Plaintiff’s IRA account. . . . Defendant’s
attorney shall prepare a [QDRO] to create the tax free
transfer of funds from Plaintiff’s 401(k) account. Plaintiff
shall cooperate in obtaining all information necessary for
the preparation of the [QDRO].
The requisite documents were not submitted to the trial court, and the ordered
amounts were not transferred from Plaintiff’s IRA and 401(k) accounts to Defendant.
¶3 On 25 February 2021, nearly 16 years after the entry of the 2005 Consent
Order, Defendant filed a motion for (1) a temporary restraining order, (2) a
preliminary injunction, and (3) “the entry of [QDROs] (or other appropriate orders)
to effectuate the provisions of” the 2005 Consent Order. That same day, the trial court
entered an ex parte order denying Defendant’s motions for a temporary restraining
order and a preliminary injunction.
¶4 On 22 March 2021, Plaintiff moved to dismiss Defendant’s remaining motion
BRACEY V. MURDOCK
2022-NCCOA-705
Opinion of the Court
for the entry of QDROs. On 3 June 2021, Defendant filed a motion to strike, correct,
and/or revise the trial court’s ex parte order. After serving discovery requests upon
Plaintiff, to which Plaintiff obtained extensions of time to respond, on 17 August
2021, Defendant filed a motion to compel discovery from Plaintiff and a motion to
strike Plaintiff’s motions for extensions of time.
¶5 The parties’ several motions came on for hearing on 17 September 2021 in
Wake County District Court. By order entered 29 September 2021, the trial court
granted Plaintiff’s motion to dismiss, dismissed Defendant’s motion for entry of
QDROs, and dismissed as moot Defendant’s motion to strike, correct, and/or revise
the court’s order, motion to strike Plaintiff’s extension motions, and motion to compel
discovery. Specifically, the trial court concluded that “Defendant’s motion for entry of
a [QDRO] does not state a claim upon which relief can be granted because Defendant’s
claim is barred by the statute of limitation[s] pursuant to N.C. Gen. Stat. § 1-47. In
the alternative, the equitable doctrine of laches bars Defendant from obtaining relief.”
¶6 Defendant timely filed notice of appeal.
II. Discussion
¶7 Defendant argues that the trial court erred by concluding that his motion for
entry of QDROs is time-barred by N.C. Gen. Stat. § 1-47 (2021), and that, in the
alternative, his motion is barred by the equitable doctrine of laches. For the reasons
below, we affirm the trial court’s order.
BRACEY V. MURDOCK
2022-NCCOA-705
Opinion of the Court
A. Standard of Review
¶8 Our appellate courts “review a dismissal under Rule 12(b)(6) de novo, viewing
the allegations as true and in the light most favorable to the non-moving party.
Dismissal is proper when the complaint fails to state a claim upon which relief can
be granted.” Christenbury Eye Ctr., P.A. v. Medflow, Inc., 370 N.C. 1, 5, 802 S.E.2d
888, 891 (2017) (citations and internal quotation marks omitted). When conducting
de novo review, this Court “considers the matter anew and freely substitutes its own
judgment for that of the trial court.” Jackson v. Charlotte Mecklenburg Hosp. Auth.,
238 N.C. App. 351, 353, 768 S.E.2d 23, 25 (2014) (citation omitted).
B. Analysis
¶9 This case requires that we determine the nature of Defendant’s motion for
entry of QDROs. Defendant argues that the trial court erred by granting Plaintiff’s
motion to dismiss pursuant to N.C. Gen. Stat. § 1-47, which provides a ten-year
statute of limitations for an action “[u]pon a judgment or decree of any court of the
United States, or of any state or territory thereof, from the date of its entry.” N.C.
Gen. Stat. § 1-47(1). Defendant contends that his motion for the entry of QDROs is
neither an “action” generally nor an “action upon a judgment” as specifically
contemplated by § 1-47. Defendant further asserts that his motion “is also NOT a
‘Claim’ or ‘Action’ governed by the Statute of Limitations at all.” “Rather than
commencing a new action,” Defendant alleges that his motion for the entry of QDROs
BRACEY V. MURDOCK
2022-NCCOA-705
Opinion of the Court
“seeks to finalize the current action.” We disagree.
¶ 10 Upon careful review of Defendant’s motion, it is plain that he does not simply
“seek[ ] to finalize” the 2005 Consent Order or to effectuate its equitable distribution
provisions. The 2005 Consent Order provides that Plaintiff shall make two transfers
to Defendant: one from her 401(k) and one from her IRA, each for a sum certain “equal
to one-half of the date of separation balance” of each account. Yet Defendant’s motion,
although titled “Motion For Entry of [QDROs],” in fact seeks relief beyond the entry
of QDROs to effectuate the 2005 Consent Order’s retirement account provisions. In
this motion, Defendant asserts that he “is entitled to, not only the amounts listed in
the [2005 Consent] Order, but also all passive gains and losses on his portion of the
retirement accounts through the entry of the QDROs[,]” and that he “is in need of,
and entitled to, discovery” to enable him to determine the amounts of the passive
gains and losses on each account. Indeed, he also moves to compel discovery with
regard to the passive gains and losses on the retirement accounts.
¶ 11 As Plaintiff correctly noted in her motion to dismiss, “[t]he 2005 [Consent]
Order does not award Defendant passive gains and losses on the funds[.]” The 2005
Consent Order does not divide the retirement accounts between the parties; it
provides that “Plaintiff shall retain her 401(k) account and IRA account as her
separate property.” Instead, the trial court’s awards of $31,618.00 and $75,203.74 to
Defendant were distributive awards. “A distributive award is a sum certain and does
BRACEY V. MURDOCK
2022-NCCOA-705
Opinion of the Court
not include gains and/or losses.” Harris v. Harris, 162 N.C. App. 511, 517, 591 S.E.2d
560, 563 (2004). Accordingly, Defendant actually seeks to amend or modify the 2005
Consent Order to include passive gains and losses, rather than to finalize or
effectuate its provisions.
¶ 12 “Because motions are properly treated according to their substance rather than
their labels, we treat [Defendant]’s motion for what it really was, namely, a Rule 59
motion” to amend the 2005 Consent Order. Scott v. Scott, 106 N.C. App. 379, 382, 416
S.E.2d 583, 585 (1992) (citation omitted). A Rule 59 motion to amend a judgment
must “be served not later than 10 days after entry of the judgment.” N.C. Gen. Stat.
§ 1A-1, Rule 59(e). Therefore, “because [Defendant]’s motion was made well beyond
the 10-day limit, [his] motion to amend was not timely” and was properly dismissed.
Scott, 106 N.C. App. at 382, 416 S.E.2d at 585.
¶ 13 Moreover, Defendant’s attempt to modify the 2005 Consent Order is hindered
by its status as a consent judgment. “A consent judgment incorporates the bargained
agreement of the parties. Such a judgment can only be attacked on limited grounds.
The party attacking the judgment must properly allege and prove that consent was
not in fact given, or that it was obtained by mutual mistake or fraud.” Stevenson v.
Stevenson, 100 N.C. App. 750, 752, 398 S.E.2d 334, 336 (1990) (citation omitted). The
trial court entered the 2005 Consent Order “with the consent of the parties,” and
Defendant does not allege either that “consent was not in fact given,” or that the 2005
BRACEY V. MURDOCK
2022-NCCOA-705
Opinion of the Court
Consent Order “was obtained by mutual mistake or fraud.” Id. Therefore, the trial
court did not err by granting Plaintiff’s motion to dismiss and dismissing Defendant’s
motion.
¶ 14 “Where a trial court has reached the correct result, the judgment will not be
disturbed on appeal even where a different reason is assigned to the decision.” Eways
v. Governor’s Island, 326 N.C. 552, 554, 391 S.E.2d 182, 183 (1990). As a result, “a
trial court’s ruling must be upheld if it is correct upon any theory of law, and thus it
should not be set aside merely because the court gives a wrong or insufficient reason
for it.” Templeton v. Town of Boone, 208 N.C. App. 50, 54, 701 S.E.2d 709, 712 (2010)
(citations and internal quotation marks omitted). Although our analysis relies on
neither a statute of limitations nor the equitable doctrine of laches, after conducting
de novo review and “consider[ing] the matter anew and freely substitut[ing our] own
judgment for that of the trial court[,]” Jackson, 238 N.C. App. at 353, 768 S.E.2d at
25 (citation omitted), we nevertheless uphold the trial court’s ruling.
III. Conclusion
¶ 15 For the foregoing reasons, the trial court’s order is affirmed.
AFFIRMED.
Judge GORE concurs.
Judge JACKSON concurs in the result only. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482307/ | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 22-5181 September Term, 2022
1:22-cv-00346-UNA
Filed On: November 8, 2022
Reginald G. McFadden, also known as Abdul
Ghaffaar Muhammand,
Appellant
v.
Antony J. Blinken, U.S. Sec. of State and
United States Citizenship and Immigration
Services, Director,
Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Henderson and Wilkins, Circuit Judges, and Sentelle, Senior Circuit
Judge
JUDGMENT
This appeal was considered on the record from the United States District Court
for the District of Columbia and on the brief filed by appellant. See Fed. R. App. P.
34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the foregoing, the motion to
proceed in forma pauperis and for appointment of counsel, and the motion for other
relief, it is
ORDERED that the motion for appointment of counsel be denied. In civil cases,
appellants are not entitled to appointment of counsel when they have not demonstrated
sufficient likelihood of success on the merits. It is
FURTHER ORDERED AND ADJUDGED that the district court’s May 11, 2022
order be affirmed. The district court dismissed appellant’s petition for writ of mandamus
because, among other reasons, it concluded that the U.S. Citizenship and Immigration
Services (“USCIS”) does not have a ministerial duty to grant appellant’s requests to
renounce his U.S. citizenship. Appellant does not challenge this ruling on appeal.
Instead, he argues that USCIS had a ministerial duty to respond to his renunciation
requests—either by granting or denying them—and that USCIS failed to perform this
ministerial duty. However, appellant forfeited this argument by not first raising it in
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 22-5181 September Term, 2022
district court. See, e.g., Salazar ex rel. Salazar v. District of Columbia, 602 F.3d 431,
436–37 (D.C. Cir. 2010). It is
FURTHER ORDERED that the remaining motions be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
Page 2 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482301/ | 21-2815-cr
United States v. Deverso
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of November, two thousand twenty-two.
PRESENT: JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
STEVEN J. MENASHI,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 21-2815-cr
v.
DONALD JAMES DEVERSO,
Defendant-Appellant. *
FOR DEFENDANT-APPELLANT: Melissa A. Tuohey, Assistant Federal
Defender, for Lisa A. Peebles, Federal
Public Defender, Syracuse, NY.
FOR APPELLEE: Rajit S. Dosanjh, Assistant United States
Attorney, for Carla B. Freedman, United
*
The Clerk of Court is directed to amend the caption as set forth above.
1
States Attorney for the Northern District
of New York, Syracuse, NY.
Appeal from an order modifying the conditions of supervised release for Defendant-
Appellant, Donald J. Deverso, entered on November 5, 2021, in the United States District Court for
the Northern District of New York (Norman A. Mordue, Senior Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.
Defendant-Appellant Donald J. Deverso (“Deverso”) appeals from an order modifying the
conditions of supervised release that prohibits Deverso from viewing or possessing materials
depicting “sexually explicit conduct, as defined in 18 U.S.C. [§] 2256(2).” We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Deverso contends that the condition is invalid because (1) the District Court imposed it in a
procedurally unreasonable manner; (2) it is not “reasonably related” to one or more of the 18 U.S.C.
§ 3553(a) sentencing factors and is therefore substantively unreasonable; and (3) it is vague and
overbroad, thus violating his First Amendment rights. We address each claim in turn.
First, Deverso argues that the condition is procedurally unreasonable because the District
Court failed to conduct an individualized assessment. “A district court is required to make an
individualized assessment when determining whether to impose a special condition of supervised
release, and to state on the record the reason for imposing it; the failure to do so is error.” United
States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). Although we ordinarily review the imposition of a
special condition of supervised release for “abuse of discretion,” United States v. Peterson, 248 F.3d 79,
82 (2d Cir. 2001), where an appellant failed to raise a claim of procedural error at the district court,
we review only for “plain error,” United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007); United
States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008). Here, we apply the plain error standard
because Deverso “failed to challenge th[e] [sexually explicit material] condition in the district court.”
United States v. Haverkamp, 958 F.3d 145, 151 (2d Cir. 2020); App’x 76.
When imposing the supervised release condition, the District Court stated that (1) the
condition was “common” in similar cases, (2) it had “reviewed and considered all the pertinent
information, including, but not limited to, the presentence investigation report, the submissions by
counsel, the 2018 edition of the Sentencing Guidelines Manual, and the factors that are outlined in
18 U.S.C. 3553(a),” and (3) “the fact that he . . . possesses and transports and produces” child
pornography supported its conclusion that the condition was “necessary to promote [Deverso’s]
rehabilitation and to protect the public,” App’x 72–73. Even if the District Court should have
provided a more individualized assessment—a conclusion we need not reach—any such error was
harmless because the reasons for the condition are “self-evident in the record.” Betts, 886 F.3d at
202. For instance, the record shows that websites containing pornographic content helped to
facilitate Deverso’s sexual contact with minors, which leads us to conclude that any possible error
was harmless.
Second, Deverso claims that the condition is substantively unreasonable because it is not
“reasonably related” to the 18 U.S.C § 3553(a) sentencing factors and has resulted in an
2
unreasonable deprivation of liberty in violation of 18 U.S.C § 3583(c)(2). “To be permissible, . . . a
condition prohibiting access to adult pornography must be reasonably related to the enumerated
statutory factors and must impose no greater deprivation of liberty than reasonably necessary.”
United States v. Eaglin, 913 F.3d 88, 99 (2d Cir. 2019). Upon our review of this claim for “abuse of
discretion,” Peterson, 248 F.3d at 82, we conclude that the District Court “adequately . . . connect[ed]
the need for th[e] [sexually explicit material] condition to the defendant’s likelihood of recidivism or
to another sentencing factor.” Eaglin, 913 F.3d at 99. See United States v. Simmons, 343 F.3d 72, 82
(2d Cir. 2003) (affirming a similar condition where the district court “conclude[d] that there was a
connection between [the defendant’s] viewing and possessing sexually explicit material and his
criminal behavior”). Because the District Court did not abuse its discretion in concluding that the
condition is reasonably related to Deverso’s offense, the condition is neither substantively
unreasonable nor results in an unreasonable deprivation of liberty.
Last, Deverso asserts that “the challenged condition [runs] afoul of the First Amendment
because it is vague and overbroad.” Deverso’s Br. 19–20. We “review the imposition of conditions
of supervised release for abuse of discretion,” but review “any related legal rulings de novo.” Eaglin,
913 F.3d at 94. While the First Amendment protects non-obscene depictions of sexual conduct by
adults, Reno v. ACLU, 521 U.S. 844, 858–59 (1997), such material “may be regulated in the hands of
parolees to a much greater extent” than when possessed by “ordinary adults.” Eaglin, 913 F.3d at 99
(quoting Farrell v. Burke, 449 F.3d 470, 497 (2d Cir. 2006)). Because the definition of “sexually
explicit conduct” in 18 U.S.C. § 2256(2) referenced in the challenged condition, Joint App’x 74,
“avoids reference to subjective standards and is sufficiently specific as to give adequate notice as to
what conduct violates a prohibition on pornographic material,” Simmons, 343 F.3d at 82, we
conclude that the challenged condition is neither vague nor overbroad and does not violate the First
Amendment.
CONCLUSION
We have considered all of Deverso’s arguments and find them to be without merit. For the
foregoing reasons, we AFFIRM the November 5, 2021, order of the District Court modifying the
conditions of supervised release for Donald J. Deverso.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482304/ | 20-1527
Fang v. Garland
BIA
Poczter, IJ
A088 347 494
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of November, two thousand twenty-two.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 JIAN ZHOU FANG,
15 Petitioner,
16
17 v. 20-1527
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Robert Tsigler, Law Offices of
25 Robert Tsigler, PLLC, New York,
26 NY.
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; Cindy S.
3 Ferrier, Assistant Director;
4 Michelle Y.F. Sarko, Attorney,
5 Office of Immigration Litigation,
6 Civil Division, United States
7 Department of Justice, Washington,
8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Jian Zhou Fang, a native and citizen of the
14 People’s Republic of China, seeks review of an April 22, 2020,
15 decision of the BIA affirming a June 18, 2018, decision of an
16 Immigration Judge (“IJ”) denying his application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Jian Zhou Fang, No. A 088-
19 347-494 (B.I.A. Apr. 22, 2020), aff’g No. A 088-347-494 (Immig.
20 Ct. N.Y.C. June 18, 2018). We assume the parties’
21 familiarity with the underlying facts and procedural history.
22 Under the circumstances, we have reviewed both the IJ’s
23 and the BIA’s decisions. See Wangchuck v. Dep’t of Homeland
24 Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review adverse
25 credibility determinations under a substantial evidence
2
1 standard, see Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d
2 Cir. 2018), and treat the agency’s fact-finding as
3 “conclusive unless any reasonable adjudicator would be
4 compelled to conclude to the contrary,” 8 U.S.C.
5 § 1252(b)(4)(B). “Considering the totality of the
6 circumstances, and all relevant factors, a trier of fact may
7 base a credibility determination on . . . the consistency
8 between the applicant’s or witness’s written and oral
9 statements . . . , the internal consistency of each such
10 statement, [and] the consistency of such statements with
11 other evidence of record . . . without regard to whether an
12 inconsistency, inaccuracy, or falsehood goes to the heart of
13 the applicant’s claim, or any other relevant factor.”
14 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
15 credibility determination unless, from the totality of the
16 circumstances, it is plain that no reasonable fact-finder
17 could make such an adverse credibility ruling.” Xiu Xia Lin
18 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
19 Gao, 891 F.3d at 76. Here, substantial evidence supports the
20 agency’s determination that Fang was not credible as to his
21 claim that he and his family were persecuted for practicing
3
1 Christianity.
2 The agency reasonably relied on multiple inconsistencies
3 in Fang’s statements and between his statements and other
4 evidence. The record reveals inconsistent testimony
5 regarding the year Fang began practicing Christianity, the
6 number of times his father has been arrested, whether his
7 younger brother was arrested, whether his mother was still
8 required to report regularly to the police following her
9 arrest for attending an unregistered church, and whether the
10 police came looking for Fang at his mother’s house as recently
11 as a month prior to his merits hearing in 2018. The agency
12 was not required to accept Fang’s explanations for these
13 inconsistencies because they either did not resolve the
14 discrepancies or were based on unsupported allegations of
15 translation error. See Majidi v. Gonzales, 430 F.3d 77, 80
16 (2d Cir. 2005) (“A petitioner must do more than offer a
17 plausible explanation for his inconsistent statements to
18 secure relief; he must demonstrate that a reasonable fact-
19 finder would be compelled to credit his testimony.” (internal
20 quotation marks omitted)). The inconsistencies provide
21 substantial evidence for the adverse credibility
4
1 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gao v.
2 Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a single
3 inconsistency might preclude an alien from showing that an IJ
4 was compelled to find him credible. Multiple inconsistencies
5 would so preclude even more forcefully.”).
6 The adverse credibility determination is dispositive of
7 Fang’s claims for asylum, withholding of removal, and CAT
8 relief because all three claims were based on the same factual
9 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d
10 Cir. 2006). Accordingly, we do not reach the agency’s
11 alternative grounds for denying relief. See INS v.
12 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule, courts
13 and agencies are not required to make findings on issues . . .
14 unnecessary to the results they reach.”).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe,
20 Clerk of Court
5 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482305/ | 18-1172
Buestan Rojas v. Garland
BIA
A206 869 546
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 8th day of November, two thousand
4 twenty-two.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNY CHIN,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 GLADYS YOLANDA BUESTAN ROJAS,
14 Petitioner,
15
16 v. 18-1172
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
1 FOR PETITIONER: Glen L. Formica, Formica, Williams, P.C., New
2 Haven, CT.
3
4 FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney
5 General; Brianne Whelan Cohen, Senior
6 Litigation Counsel; Deitz P. Lefort, Trial
7 Attorney, Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, DC.
10
11 UPON DUE CONSIDERATION of this petition for review of a Board of
12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
13 DECREED that the petition for review is DENIED.
14 Petitioner Gladys Yolanda Buestan Rojas, a native and citizen of Ecuador,
15 seeks review of an April 18, 2018 decision of the BIA, denying her motion to
16 reconsider the denial of her petition for asylum, withholding of removal, and relief
17 under the Convention Against Torture. In re Gladys Yolanda Buestan Rojas,
18 No. A206 869 546 (B.I.A. Apr. 18, 2018). We assume the parties’ familiarity with
19 the underlying facts and procedural history.
20 We review the BIA’s denial of reconsideration for abuse of discretion. See
21 Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). A motion to reconsider
22 “shall specify the errors of law or fact in the previous order.” 8 U.S.C.
2
1 § 1229a(c)(6)(C); see also 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S. Dep’t of Justice,
2 265 F.3d 83, 90 (2d Cir. 2001).
3 As an initial matter, the BIA excused Buestan Rojas’s failure to exhaust her
4 challenge to the underlying adverse-credibility determination when it thoroughly
5 addressed that determination in both its dismissal of Buestan Rojas’s appeal from
6 the IJ and its denial of her motion to reconsider. See Xian Tuan Ye v. Dep’t of
7 Homeland Sec., 446 F.3d 289, 296–97 (2d Cir. 2006) (excusing a petitioner’s failure to
8 raise an issue before the BIA where the BIA considered the claim). We therefore
9 have jurisdiction to consider Buestan Rojas’ petition as to the agency’s adverse-
10 credibility finding. See id.
11 Nevertheless, the BIA did not abuse its discretion in declining to reverse its
12 prior decision, which was not based on an error of law or fact. See 8 U.S.C.
13 § 1229a(c)(6)(C). Specifically, the agency’s adverse-credibility determination was
14 supported by Buestan Rojas’s inconsistent statements regarding – among other
15 things – whether she had ever been in the United States before, whether she feared
16 harm or persecution if returned to Ecuador, whether she was apprehended and
17 removed to Mexico when she first entered the United States in 2001, and whether
18 she left Ecuador in 2014 without her husband’s knowledge or assistance.
3
1 Although Buestan Rojas was provided an opportunity to explain these
2 inconsistencies during her removal hearing, she failed to do so. These
3 inconsistencies therefore supported the agency’s adverse-credibility
4 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai Gao v. Barr, 968 F.3d 137, 145
5 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from
6 showing that an IJ was compelled to find him credible. Multiple inconsistencies
7 would so preclude even more forcefully.”). Thus, the BIA did not abuse its
8 discretion in denying Buestan Rojas’s motion to reconsider. See 8 U.S.C.
9 § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265 F.3d at 90.
10 For the foregoing reasons, the petition for review is DENIED. All pending
11 motions and applications are DENIED and stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
4 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482303/ | 20-3949-bk
In re Tronox, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 8th day of November, two thousand twenty-two.
PRESENT:
RICHARD C. WESLEY,
RICHARD J. SULLIVAN,
Circuit Judges,
BRIAN M. COGAN,
District Judge. *
_____________________________________
IN RE: TRONOX INCORPORATED,
Debtor.
_____________________________________
STANLEY WALESKI, ON HIS OWN BEHALF AND
ON BEHALF OF MORE THAN 4,300 SIMILARLY
SITUATED CLASS MEMBERS,
Plaintiff-Appellant,
v. No. 20-3949-bk
MONTGOMERY, MCCRACKEN, WALKER &
RHOADS, LLP, NATALIE D. RAMSEY,
* Judge Brian M. Cogan, of the United States District Court for the Eastern District of New York,
sitting by designation.
LEONARD A. BUSBY,
Defendants-Appellees.
_____________________________________
For Plaintiff-Appellant: RICHARD G. HADDAD, Otterbourg P.C.,
New York, NY.
For Defendants-Appellees: ROBERT P. JOHNSON, Thompson Hine
LLP, Cincinnati, OH (Riccardo DeBari,
Thompson Hine LLP, New York, NY, on
the brief).
Appeal from an order of the United States District Court for the Southern
District of New York (Alvin K. Hellerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Stanley Waleski appeals from the district court’s summary affirmance of
orders of the bankruptcy court (Wiles, Bankr. J.) that (1) denied Waleski’s motion
to remand to state court for lack of federal bankruptcy jurisdiction under 28 U.S.C.
§ 1334(b); and (2) dismissed, as untimely under Pennsylvania state law, his legal
malpractice claims against Montgomery, McCracken, Walker & Rhoads, LLP and
two of its lawyers, Natalie D. Ramsey and Leonard A. Busby
(collectively, “MMWR”), who had represented him as lead plaintiff for a putative
2
class (the “Avoca Plaintiffs”) in the underlying bankruptcy proceedings. We
assume the parties’ familiarity with the underlying facts, procedural history of the
case, and issues on appeal.
“We exercise plenary review over a district court’s affirmance of a
bankruptcy court’s decision, reviewing de novo the bankruptcy court’s
conclusions of law, and reviewing its findings of fact for clear error.” In re Lehman
Bros., Inc., 808 F.3d 942, 946 (2d Cir. 2015) (internal quotation marks omitted).
Thus, we review de novo the bankruptcy court’s determination that subject-matter
jurisdiction exists, In re Motors Liquidation Co., 829 F.3d 135, 152 (2d Cir. 2016),
while construing the removal statute strictly and resolving all doubts in favor of
remand, Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 220 (2d Cir. 2013). We also
review de novo the bankruptcy court’s interpretation and application of a statute
of limitations, and its ultimate dismissal of a claim as untimely, City of Pontiac Gen.
Emps' Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011), while reviewing for
clear error the factual findings underlying its tolling analysis, Phillips v. Generations
Fam. Health Ctr., 723 F.3d 144, 149 (2d Cir. 2013). “[I]n determining whether a suit
is timely brought,” we “refer to the statute of limitations of the forum state.”
Muto v. CBS Corp., 668 F.3d 53, 57 (2d Cir. 2012) (citation omitted).
3
The jurisdictional question in this case presents a matter of first impression
in our Circuit. We are asked to determine whether Waleski’s state-law legal
malpractice suit against his former bankruptcy attorneys – where the underlying
bankruptcy proceeding has already been terminated, the attorneys were not
bankruptcy-court-appointed, and Waleski seeks damages directly from the
attorneys rather than from the estate – falls within the federal bankruptcy courts’
“arising in” jurisdiction under 28 U.S.C. §§ 1334(b) and 157(a). Given that “the
meaning of the statutory language ‘arising in’” is less than “clear,” Baker v.
Simpson, 613 F.3d 346, 351 (2d Cir. 2010); accord, e.g., In re Wood, 825 F.2d 90, 97
(5th Cir. 1987) (observing same), and that the Supreme Court has provided scant
guidance in what is typically a highly fact-specific inquiry, this jurisdictional
question turns out to be a rather difficult one.
But under our caselaw, “where a question of statutory (non-Article III)
jurisdiction is complex and the claim fails on other more obvious grounds,” we
may “assume hypothetical jurisdiction in order to dismiss on those obvious
grounds.” Miller v. Metro. Life Ins. Co., 979 F.3d 118, 123 (2d Cir. 2020). Indeed,
“doing so is particularly appropriate where” – as here – “we are satisfied that we
have Article III jurisdiction,” “the [statutory] jurisdictional issue is both novel and
4
arguably complex,” and the lower court rested its dismissal on a threshold legal
determination that the claim at issue “is plainly time-barred.” Id. at 123–24
(internal quotation marks and alteration omitted).
We therefore turn to the merits of Waleski’s contention that the bankruptcy
court erred in dismissing his legal malpractice claims against MMWR as untimely
under Pennsylvania’s two-year statute of limitations for tort claims. See 42 Pa.
Cons. Stat. § 5524. Waleski does not dispute that Pennsylvania law supplies the
statute of limitations applicable to his claims. Nor does he dispute that he
commenced this action at least two years after his claims accrued. See id. § 5502(a)
(providing that under Pennsylvania law, limitations periods are computed from
the time the cause of action accrues). Rather, he argues that his claims were
subject to Pennsylvania’s four-year statute of limitations for contract claims, see id.
§ 5525, as opposed to the two-year statute of limitations for tort claims, see id.
§ 5524. We disagree.
Under Pennsylvania law, legal malpractice claims may be pleaded on a
theory of either contract or tort liability. See ATG Tr. Co. v. Schlichtmann, 314 F.
Supp. 3d 718, 722–23 (E.D. Pa. 2018). A plaintiff pursuing a legal malpractice
claim under a breach-of-contract theory must establish: “(1) the existence of a
5
contract, including its essential terms; (2) a breach of a duty imposed by the
contract; and (3) resultant damages.” ASTech Int'l, LLC v. Husick, 676 F. Supp. 2d
389, 400 (E.D. Pa. 2009) (quoting CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053,
1058 (Pa. Super. 1999)). In contrast, a plaintiff pursuing a legal malpractice claim
under a theory of tortious negligence must establish: (1) “[t]he employment of
the attorney or other basis for duty”; (2) “[t]he failure of the attorney to exercise
ordinary skill and knowledge”; and (3) “[t]hat such failure was the proximate
cause of damage to the plaintiff.” Bailey v. Tucker, 533 Pa. 237, 246 (1993).
Pennsylvania state courts employ the “gist-of-the-action” test to determine
whether a legal malpractice claim sounds in contract or tort. See Bruno v. Erie Ins.
Co., 630 Pa. 79, 99–115 (2014). Under this test, “the nature of the duty alleged to
have been breached, as established by the underlying averments supporting the
claim in a plaintiff’s complaint,” is the “determinative factor.” Id. at 111–12. “If
the facts of a particular claim establish that the duty breached is one created by the
parties by the terms of their contract – i.e., a specific promise to do something that
a party would not ordinarily have been obligated to do but for the existence of the
contract – then the claim is to be viewed as one for breach of contract.” Id. at 112.
“If, however, the facts establish that the claim involves the defendant’s violation
6
of a broader social duty” that “exists regardless of the contract, then it must be
regarded as a tort.” Id. But the mere fact that “a cause of action between two
parties to a contract is based on the actions of the defendant undertaken while
performing his contractual duties” does not mean that the action will be deemed “one
for breach of contract.” Id. at 103 (emphasis added). Where a claim alleges
negligence in the performance of a duty created by a contract – rather than a failure
to perform the contractual duty altogether – then the claim sounds in tort. See id.
at 114–15.
Various courts have applied the “gist-of-the-action” doctrine to legal
malpractice claims and found that they sound in tort, despite the existence of
contracts between the plaintiffs and defendants. See, e.g., N.Y. Cent. Mut. Ins. Co.
v. Edelstein, 637 F. App’x 70, 72–74 (3d Cir. 2016); Philidor Rx Servs. LLC v. Polsinelli
PC, 552 F. Supp. 3d 506, 515 (E.D. Pa. 2021). “Since Bruno, Pennsylvania courts
have routinely applied the gist[-]of[-]the[-]action doctrine to legal malpractice
actions and dismissed claims [nominally] brought under contract law that actually
are based on failure of the defendants to abide by the relevant professional
standard of care.” Juday v. Sadaka, No. 19-cv-1643, 2019 WL 4139089, at *5
(E.D. Pa. Aug. 30, 2019) (internal quotation marks omitted).
7
Here, Waleski’s legal malpractice claims clearly sound in tort under the
“gist-of-the-action” doctrine. The acts and omissions he alleges constitute
negligence in the performance of MMWR’s duties under the Contingent Fee
Agreement governing its representation of the Avoca Plaintiffs – not a failure to
perform those duties outright. Waleski’s claims are based upon the following
acts or omissions allegedly committed by MMWR: (1) withdrawing from
representation before the parties settled the fraudulent-transfer litigation that
ultimately determined the size of the Trust res; (2) not designing the Trust in a way
that would better protect the Avoca Plaintiffs’ interests; (3) filing Proofs of Claim
on behalf of the Avoca Plaintiffs in an “unknown” dollar amount; and
(4) representing Michael E. Carroll (one of the Avoca Plaintiffs) individually in his
capacity as a member of the Creditors’ Committee while simultaneously
representing the Avoca Plaintiffs as a putative class. But Waleski has failed to
identify any specific provision of the Contingent Fee Agreement that creates any
obligation MMWR purportedly breached by the acts of which he complains.
Indeed, the Contingent Fee Agreement mainly addresses how MMWR would be
paid.
8
The only part of the Contingent Fee Agreement in which MMWR adopted
any contract-specific responsibilities toward the Avoca Plaintiffs provided that
MMWR will, in a manner to be mutually agreed with PLG [the Avoca
Plaintiffs’ counsel in an earlier proceeding], represent the interests of
these same plaintiffs in the bankruptcy proceeding of Tronox . . . .
MMWR shall proceed in the Tronox Bankruptcy in such manner as
PLG and MMWR shall both agree. . . . MMWR shall also assist PLG
in the Avoca Litigation in such manner as PLG and MMWR shall both
agree.
J. App’x at 51. In his Amended Complaint, Waleski did not rely on any specific
language from the Contingent Fee Agreement. Instead, he emphasized that
through that agreement, “MMWR contractually agreed to represent the Avoca
Plaintiffs as creditors in the Tronox Bankruptcy case.” Id. at 336. Although
Waleski’s operative complaint referred to general “legal and ethical duties in the
Tronox Bankruptcy case” that MMWR owed “strictly to the Avoca Plaintiffs” and
mentioned that “MMWR was contractually obligated to file, advocate, protect[,]
and maximize” the Avoca Plaintiffs’ claims, he points to no section in the
Contingent Fee Agreement (or any other agreement) that imposes a specific duty
that MMWR breached. Id. at 337, 352.
In sum, since Waleski’s complaint alleged negligence in MMWR’s
performance under the contract – but not that MMWR failed to follow specific
9
instructions or breached a specific provision of the underlying contract – his claim
sounds in tort. Therefore, the bankruptcy court properly dismissed his complaint
as time-barred under Pennsylvania’s two-year statute of limitations for tort claims.
See 42 Pa. Cons. Stat. § 5524.
For the foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
10 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486830/ | OPINION AND ORDER
RICHMOND, Associate Justice:
Background
Tuanu'utele Sai (“Tuanu'utele”) initially offered for registration with the Territorial Registrar the vacant matai title Le'i of village of Ofu in the Manu'a Islands. Timely objections were filed by Appellant Sonny Le'i Thompson (“Sonny”), Appellee Tikeri Thompson (“Tikeri”), Leana Misiuaita (“Leana”), Vae'ena Sofeni (“Vae'ena”), Tagata A.T. Le'i (“Tagata”), and Porotesano T. Tuiolosega (“Porotesano”). In due course, pursuant to A.S.C.A. § 43.0302, the Secretary of Samoan Affairs issued a certificate of irreconcilable dispute. The controversy was then referred to the High Court for judicial resolution.
On June 6, 2003, following trial,1 the Land and Titles Division court awarded the Le'i title to Tikeri. Only Sonny moved for reconsideration or a new trial. The trial court denied the motion on July 18, 2003, and Sonny timely appealed. *57Sonny contends that that the trial court erred in awarding the Le'i title to Tikeri by failing to make: (1) appropriate conclusions of law with respect to hereditary right under A.S.C.A. § 1.0409(c)(1) by (a) not making factual findings to support use of the “nearest titleholder” standard and (b) not considering Sonny’s customary adoptive status by the previous titleholder; (2) appropriate findings of fact and conclusions of law with respect to the candidates’ support by the majority or plurality of the clans customary in the family under A.S.C.A. § 1.0409(c)(2); (3) appropriate conclusions of law with respect to objective standards by which forcefulness, character, personality, and knowledge of Samoan customs under A.S.C.A. § 1.0409(c)(3) could be compared between the candidates; (4) appropriate conclusions of law with respect to objective standards by which value to family, village, and country under A.S.C.A. § 1.0409(c)(4) could be compared between the candidates; and (5) appropriate conclusions of law regarding the relative weight assigned to each of the four criteria set out under A.S.C.A. § 1.0409(c) to ensure an objective measure of compliance with the priorities established by the statute.
Analysis
I. Standard of Review
“A trial court’s factual detenninations are reviewed for ‘clear error’ and questions of law or mixed questions of law and fact are reviewed de novo.” Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992) (emphasis omitted); In re Matai Title “Tauaisafune, ” 6 A.S.R.2d 59, 61 (App. Div. 1987). The test for clear error is “not whether facts in the record may support a decision for an appellant, but whether sufficient evidence supported the trial court’s decision.” Toleafoa v. American Samoa Gov’t, 26 A.S.R.2d 20, 21 (App. Div. 1994).
II. Appropriate Findings of Fact and Conclusions of Law
We will first address in general the claimed error of failing to make appropriate findings of fact and conclusions of law. A.S.C.A. § 1.0409(d) requires the trial court to “issue a written decision that must contain finding of facts and conclusions of law” on each of the four statutory criteria set out in A.S.C.A. § 1.0409(c). Sonny argues that the court’s findings and conclusions are deficient.
Sonny claims that the trial court is required to “separate the fact finding from the legal conclusions” and assess the “relative margins” by which a candidate prevails over other candidates on each statutory factor. (Appellant’s Br. at 9.) He maintains that the Appellate Division should develop a “rigorous approach” for matai title cases by “develop [ing] *58uniform and fair standards” for each criterion, particularly for the third and fourth factors. {Id. at 22.) Tikeri responds that Sonny’s approach requires the court to “undertake a novel, but ill-conceived, quantitative analysis of the evidence.” (Appellee’s Br. at 5.)
Sonny’s position is contrary to the plain language of A.S.C.A. § 1.0409. He recognizes that the Legislature has revised this statute from time to time to provide the court with guidance on deciding matai title cases. (Appellant’s Br. at 2-10.) Section 1.0409(c) currently reads:
(c) 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 descendents are equal in families where this has been customary; otherwise, the male descendent prevails over the female;
(2) the wish of the majority or plurality of those clans of 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.
Sonny’s argument that the court needs to formulate some sort of additional test or formula is not in accordance with the Legislature’s present statutory scheme. “When the Court attempts to resolve a dispute among family members about who should hold a matai title, it is doing its best to apply the criteria that the Fono believes the family would have applied if there were no external means of dispute resolution.” In re Matai Title “Sotoa,” 6 A.S.R.2d 91, 95 (App. Div. 1987). Indeed, if the Legislature thought that the court’s decisions in matai title cases left something to be desired, it could change the statute.
Sonny specifically seeks a “list of standards” for the third and fourth criteria, claiming that “no candidate can know what the court will decide to focus on until the decision is made.” (Appellant’s Br. at 16, 19.) Judicial imposition of additional standards for the third and fourth criteria would be contrary to the statute. It would also be impractical. Every candidate has individual characteristics, unlike any other candidate in all particulars, with unique significance for the matai title controversy at hand. However, candidates can still find some guidance from previous trial and appellate court decisions. See, e.g., In re Matai Title “Leaeno," 25 A.S.R.2d 4, 9 (Land & Titles Div. 1993) (“Leadership ability, honesty, education, public service, involvement in church and village affairs, and previous experience as a matai are some of the factors which aid in meeting this [third] criterion.”).
*59Additionally, Sonny argues that the trial court failed to assess the relative margins by which Tikeri prevailed over the other candidates. However, A.S.C.A. § 1.0409(c) only requires “priority” to be given to the four considerations in the order listed. In re Matai Title "Tuaolo,” 27 A.S.R.2d 97, 102 (Land & Titles Div. 1995); see also In re Matai Title “Tauala," 15 A.S.R.2d 65, 69 (Land & Titles Div. 1990). Moreover, “the comparative evaluation of the four statutory criteria is not, and cannot be, measured by mathematical exactness.” In re Matai Title "Tuaolo,” 28 A.S.R.2d 137, 143 (Land & Titles Div. 1995).
We will next address specific issues that Sonny raises with respect to each of the four statutory criteria.
III. Hereditary Right
The trial court succinctly applied the frequently used judicial standard adjudicating the candidates’ hereditary right to the title according to the percentage or fraction of blood connection to their closest ancestral titleholder. In re Matai Title "Tuaolo,” 27 A.S.R.2d at 99. Tikeri is the natural son of the last Le'i titleholder, while all of the other candidates are more remotely connected to a previous titleholder. Tikeri clearly prevailed under this approach.
Trial courts have in some recent matai title cases applied the standard for the hereditary right detennination of tracing the blood connection of each candidate back to the original titleholder, now commonly known as the Sotoa rule. In re Matai Title "Sotoa,” 2 A.S.R.2d 15 (Land & Titles Div. 1984). The Sotoa rule provides generational equality among current candidates for a title and fairer results in the assessment of the hereditary right criterion. This is particularly true for candidates who descend from a family line that has not included a titleholder for many generations. The Sotoa rule runs into difficulty, however, when, as frequently happens and occurs in the present case, the candidates do not agree on the first titleholder’s identity. Thus, in practical application, the Sotoa rule has been modified by tracing the candidates’ blood connection back to a known common titleholder or ancestral descendent of a fonner titleholder. See In re Matai Title "Atiumaletavai," 22 A.S.R.2d 94, 97 (Land & Titles Div. 1992). The approach actually used must, in any event, be consistent with a particular family’s traditions. Id.
If the Sotoa rule is appropriately applied in this case, it is apparent that each candidate would have a blood connection that is much closer, if not equal, to Tikeri’s connection. Traced to a common ancestral titleholder, Sonny’s blood connection, for example, would be either the same as Tikeri’s connection or only one generation further removed. Regardless of which candidate may still prevail under the Sotoa rule on the *60hereditary right criterion, closer characterization of blood ties may result in a different assessment of the candidates’ relative qualifications under the four statutory criteria and a different award of the title.
In this regard, we take special note that, in addition to Sonny’s blood connection to a titleholder, he was customarily adopted by the last titleholder, Tikeri’s father, and in this sense, Tikeri and Sonny were brothers. Sonny argues that since his blood connection was established, the trial court should have considered his adoptive status with the last titleholder in determining his hereditary right to the title, presumably enhancing his right to equivalent status with his adoptive brother Tikeri. Adoption, however, whether by Samoan customary means or by judicial process, does not confer any hereditary right to a matai title; “only blood relationships count.” In re Matai Title “Mulitauaopele,” 17 A.S.R.2d 75, 82 (Land & Titles Div. 1990). Nonetheless, Sonny’s customary adoption and sibling-like relationship with Tikeri are additional facts that may appropriately call for application of the Sotoa rule rather than the nearest titleholder rule.
The trial court did not make any factual findings with respect to the hereditary right rule that should be most appropriately applied in this case, particularly including but not limited to Sonny’s customary adoptive status with the last Le'i titleholder and, as a consequence, did not reach any legal conclusions in this regard. This lack of findings and conclusions was clear error.
IV. Wish of the Family’s Customary Clans
Sonny claims the trial court erred by failing to make findings on the composition of the family clans. The court found that “the Le'i family did not decide on any one candidate and, hence, no candidate can be said to prevail on this criterion.” In re Matai Title “Le'i,” 7 A.S.R.3d 244, 247 (Land & Titles Div. 2003). The court based its conclusion on the outcome and circumstances surrounding family meetings in the 1990s and one meeting in 2002. The trial court found that the family abdicated its duty to choose a successor to the title at the meetings in the 1990s and found the 2002 meeting to be mere political posturing. As a result, the court found,
[it] need not at this time decide on the issue of clan definition and the number of clans in the Le'i family. The only thing really clear on the evidence in this regard, apart from the very apparent fact that the research on family history was very much superficial and wanting, is that there was accord on the evidence suggesting that the Le'i family is compromised of more than one clan.
*61Id. at 247, n.3.
Recent precedent suggests that the trial court’s failure to make findings regarding tire composition of the family clans is error. In re Matai Title "Tagoilelagi," 3 A.S.R.3d 66 (App. Div. 1999). In Tagoilelagi, the Court reversed and remanded a matai title award because the trial court failed to “provide specific findings on the ‘number, identity and preference of the clans’ in the family.” Id. (quoting In re Matai Title "Faumuina,” 26 A.S.R.2d 1, 4 (App. Div. 1994)). Likewise, in Faumuina, the award of a matai title was reversed because the trial court also “did not make a finding on the number, identity and preference of the clans.” 26 A.S.R.2d at 4. The Faumuina court “acknowledge[d] the often-difficult task of determining clans and whom they support” but then found it was “precluded by law from allowing the decision below to stand, since the trial court failed to make the required findings.” Id Accordingly, we find that the trial court erred by failing to make the requisite findings under this criterion.
V. Forcefulness, Character, Personality and Knowledge of Samoan Custom
Sonny contends the trial court erred by failing to make appropriate conclusions of law with respect to objective standards for this criterion. (Appellant’s Br. at 16.) We already rejected this argument. See supra, at 51.
However, Sonny also appears to disagree with the trial court’s factual findings on the third criterion, claiming they were not supported by the record. The trial court found that the candidates were equally versed in Samoan customs. In re Matai Title “Le'i,” 7 A.S.R.3d at 248. In detennining forcefulness, the court discussed Sonny’s, Tikeri’s and Tuanu'u’s educational pursuits and ultimately found that Sonny and Tikeri prevailed equally over the other candidates. Id. The court then determined that Tikeri prevailed on the consideration of character and personality. The court based its conclusion on the in-court impressions of the candidates as well as their behavior throughout the matai title selection process. Id. at 249. Based on these findings, the court found that Tikeri prevailed over the other candidates on this criterion.
As the trial court noted in its order denying Sonny’s motion for a new trial, “[wjhether or not a dissatisfied litigant had himself presented substantial evidence in trial is not the test for clear error. Rather, the question is whether there was substantial evidence to support the trial court’s conclusions.” In re Matai Title “Le'i,” MT No. 03-98, Order denying Motions for New Trial & Stay at 3 (Land & Titles Div. July 18, 2003) (quoting Moea’i v. Alai’a, 12 A.S.R.2d 91, 93 (App. Div. 1989)). There was substantial evidence to support the trial court decision. *62Moreover, the trial court, in order to make findings on character and personality, relied, at least in part, on the observation and assessment of the witnesses, “and with such matters the appellate court must of necessity defer to the judgment of the trial court, who had the firsthand opportunity to consider the witnesses and then- proofs.” In re Matai Title “Tauaisafune,” 6 A.S.R.2d at 61; see also Nat’l Pac. Ins. Co. v. Oto, 3 A.S.R.2d 94, 94-95 (App. Div. 1986); In re Matai Title "Manga,” 4 A.S.R. 947, 952 (App. Div. 1967). The trial court’s findings on this criterion were not clearly erroneous.
However, in light of our discussion regarding the first and second criteria, the trial court may decide it needs to reevaluate its findings under this criterion.
VI. Value to Family, Village, and Country
Again, Sonny contends the trial court erred by failing to make appropriate conclusions of law with respect to objective standards for this criterion. (Appellant’s Br. at 19.) We have similarly rejected this argument. See supra, at 51.
Sonny further appears to disagree with the trial court’s findings on this criterion. He argues that the evidence supports a finding that he prevailed on this factor. The court found all candidates equal in their value to their village. In re Matai Title “Le'i,” 7 A.S.R.3d at 249. The court found that Sonny and Tikeri prevailed in the consideration of their value to the country because of their backgrounds and experiences. Id. In terms of the candidates’ value to family, the trial court found that Tikeri prevailed. The court noted his involvement in his father’s administration and his current involvement in the administration of rental income. Additionally, the court found Tikeri’s disposition to be the best suited to lead his family. Id. at 250. Based on these findings, the trial court determined that Tikeri prevailed on this criterion.
Tikeri and Sonny each presented evidence to show that they should prevail on this criterion. “[I]t [i]s for the trial court to resolve conflicts in the evidence, and to judge the credibility of the witnesses.” Reine v. Taotoai, 25 A.S.R.2d 136, 138 (App. Div. 1994). The trial court’s decision on the fourth factor is supported by the evidence and was not clearly erroneous.
However, again in light of our discussion regarding the first and second criteria, the trial court may decide it needs to reevaluate its findings under this criterion.
*63Order
This case is REMANDED to the trial court for proceedings consistent with this opinion.
It is so ordered.
By the time of trial, Leana and Tagata were no longer active candidates. Vae'ena participated in the trial but essentially only to establish his qualifications to hold the title and to emphasize his support for Sonny’s selection. Thus, Tuanu'utele, Tikeri, Sonny, and Porotesano were then competing for the title. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486831/ | *65ORDER OF REMAND
KRUSE, Chief Justice:
Appellant Fa'ai'u Fiu aka Hana (“Fiu”) was convicted by a jury of rape, kidnapping, and sexual abuse in the first degree. After the trial and sentencing, Fiu’s trial attorney, Asaua Fuimaono, filed a Motion for New Trial or Reconsideration. Counsel then filed a Motion to Substitute Attorneys, seeking to be relieved and to have the Public Defender appointed to represent Fiu. The trial court denied the Motion for New Trial, granted the Motion to Withdraw, and appointed the Public Defender to represent the defendant.
Subsequently, Fiu’s Public Defender attorney, Bentley C. Adams III, filed with the Appellate Division a Combined Notice of Appeal and Motion for Time to File Out of Time Appeal Based on Newly Discovered Evidence. American Samoa Gov’t v. Fa'ai'u Fiu, AP No. 07-01 (App. Div. April 30, 2002). In these pleadings, Fiu requested a hearing to inquire into information not introduced into evidence that may have influenced the verdict. Without supporting affidavits, the amended motion describes a conversation that counsel Fuimaono had with a juror, Ms. Puletasi:
Mr. Fuimaono asked Ms. Puletasi if she would tell him what influenced the jury to return its verdict of guilty in the case because in Mr. Fuimaono’s estimation the Government’s case was rather weak. Ms. Puletasi infonned Mr. Fuimaono that he felt sorry for Mr. Fuimaono because the jury was pretty much convinced the defendant was guilty due to their knowledge of the defendant and his reputation. She specifically stated the jurors knew the defendant had a reputation as a womanizer and that he had gotten two women pregnant out of wedlock.
(Mot. for New Trial at 2.) The Appellate Division heard the motion and remanded the matter to the trial court for consideration. {Id.)
Treating Fiu’s Combined Notice of Appeal and Motion for Time to File Out of Time Appeal Based on Newly Discovered Evidence as a second new trial motion, the trial court heard argument and denied the motion. The trial court concluded that Fiu was not diligent in attempting to discover the extraneous evidence of the jurors’ knowledge of his character and prior bad acts. This appeal ensued.1
*66The juror’s statement discussed in Fiu’s motion implicates juror misconduct for exposure to extraneous evidence. “A defendant is entitled to a new trial when the jury obtains or uses evidence that has not been introduced during trial if there is ‘a reasonable possibility that the extrinsic material could have affected the verdict.’” United States v. Keating, 147 F.3d 895, 900 (9th Cir. 1998) (quoting Dickson v. Sullivan, 549 F.2d 403, 405 (9th Cir. 1988)) (emphasis added). Exposure of the jury to facts not in evidence could deny a defendant “the rights of confrontation, cross-examination, and the assistance of counsel.” Marino v. Vasquez, 812 F.2d 499, 505 (9th Cir. 1987) (quoting Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir. 1980)). Regardless of whatever each juror knew about Fiu before voir dire, Fiu may be entitled to a new trial if one juror learned extraneous evidence that could have affected the verdict. Keating, 147 F.3d at 899-900.
ASG argues-Fiu waived his right to make a post-trial challenge of any juror’s exposure to extraneous information, because during voir dire the defendant had opportunity to discover and challenge juror knowledge of extraneous evidence and bias. The trial court did not clearly err in finding that Fiu failed to take advantage of the opportunity to inquire and challenge the preexisting knowledge of jurors. American Samoa Gov’t v. Fa'ai'u Fiu, CR No. 102-00 (Trial Div. April 30, 2002). As a result of Fiu’s lack of diligence, he waived his constitutional protections and cannot object on appeal to jurors with knowledge of extraneous evidence obtained prior to voir dire. See Keating, 147 F.3d at 899-900. Despite this initial waiver, however, Fiu did not waive the other constitutional protections that prohibit the exposure of unknowing jurors to extraneous evidence during trial. We cannot, therefore, dispose of the matter without further analysis. See id:, United States v. Saya, 101 F.Supp.2d 1304, 1315 (D. Haw. 1999).
A trial court decision whether to grant a new trial is generally reviewed for an abuse of discretion. United States v. Sarno, 73 F.3d 1470, 1507 (9th Cir. 1995). When a defendant makes a sufficient allegation of juror misconduct, the issue is whether “the state has met its burden of demonstrating that extrinsic evidence did not contribute to the verdict,” and it is an abuse of discretion to fail to hold an evidentiary hearing to fully investigate allegations of juror misconduct. Keating, 147 F.3d at 899 (citations omitted); United States v. McKinney, 429 F.2d 1019, 1025-1026 (5th Cir. 1970) (quoting Richardson v. United States, 360 F.2d 366, 369 (5th Cir. 1966)); United States v. Doe, 513 F.2d 709, 711-712 (1st Cir. 1975) (adopting McKinney). An evidentiary hearing must be held “when a party comes forward with ‘clear, strong, substantial and incontrovertible evidence . . . that a specific, nonspeculative *67impropriety has occurred.’” United States v. Ianniello, 866 F.2d 540, 543 (2nd Cir. 1989) (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983) (omission in original)). Although the trial court cannot and should not delve into the deliberations of the jury, the trial court, however, has an obligation to investigate jury exposure to external evidence to safeguard against jury consideration of inadmissible, irrelevant, or prejudicial evidence.
In our view, the trial court abused its discretion in failing to undertake an evidentiary inquiry into the question of extraneous evidence impacting upon the verdict. Fiu’s failure to produce affidavits in support of his motion is not fatal to his claim of juror misconduct. McKinney, 429 F.2d at 1030 (holding that affidavits were not procedurally required to trigger an evidentiary hearing into juror misconduct in a motion for new trial). Fiu’s Public Defender attorney Adams stated at hearing that the trial attorney “informed me that since the trial... it has come to his attention that one of the jurors - - through one of the jurors in the case, that during the trial, the jury was exposed to inadmissible and prejudicial material which is not part of the evidence in the case.” (Hr’g Tr. at 5, Oct. 29, 2001.) The juror’s statement implies that all of the jurors knew the information, which indicates a good possibility that at least one juror learned prejudicial extraneous evidence about Fiu during trial. The evidence against Fiu is not overwhelming, so exposure to extraneous evidence could reasonably have impacted on the verdict. Keating, 147 F.3d at 898. Viewed in this context, the allegation made in the motion for new trial warrants further evidentiary investigation.
The scope of such a hearing should be narrowly focused “to only what is absolutely necessary to detennine the facts with precision,” namely, to only post-voir dire jury exposure to extraneous evidence that could have affected the verdict. Ianniello, 866 F.2d at 544. Additionally, and in accordance with T.C.R.Ev. 606, the inquiry should refrain from examining jurors’ mental impressions. See id. The trial court has the discretion to control the mode and extent of questioning, and the participation of the parties. See id. Initially, at least the juror who spoke to counsel Fuimaono should be questioned. Then, based on initial evidence, the trial court has the discretion whether to examine any more juiy members or other witnesses. See id.
We accordingly REMAND for an evidentiary hearing and, if the evidence on juror misconduct so warrants, a new trial.
The defendant additionally appeals on the grounds that the trial court also erred in: (1) allowing the jury to hear testimony concerning an in-custody statement of the defendant; (2) failing to reverse the verdict because of ineffective assistance of counsel and/or insufficient evidence *66to establish guilt beyond a reasonable doubt. For reasons discussed below, we reserve jurisdiction on these questions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486833/ | OPINION
Southern Star International, Inc., dba Hong Kong Restaurant (hereinafter “SSI”) and Kenny and Helen Young (“Youngs”), appeal from the Trial Division’s judgment granting Appellee Ainoama Fata (“Fata”) $100,000 under a Progressive flre/material insurance policy on a building Fata owned. The Youngs leased Fata’s building and used it as a restaurant. Appellee Progressive Insurance’s (“Progressive”) policy covered the building and its contents, which were destroyed when a restaurant employee negligently caused a fire.
Appellants allege that they are entitled to the policy proceeds as well as additional damages resulting from Progressive’s alleged bad faith in paying on the policy. In total, Appellants seek $200,000 in damages. For the reasons stated below, we affirm in part and reverse in part.
*79Background
The facts are substantially undisputed. Fata owned a building in the village of Nu'uuli, on land under the pule of High Chief Falemalama Vaesa'u (“Falemalama”). Fata leased the building to the Youngs to use in the operation of the Hong Kong Restaurant. The Youngs also lived in and operated the Nu'uuli Store in a building owned or leased by them and located next to the restaurant. A third, smaller building was leased by the Youngs and used as a fast-food outlet. All three of the buildings in which the Youngs had insurable interest were covered by “Policy 720,” issued by Progressive, the named plaintiff. The first named defendant, SSI, is a Samoan corporation organized and controlled by the Youngs for the lawful purpose, as found by the Trial Division, of sponsoring aliens who could be employed as help in the Hong Kong Restaurant. The trial court found that SSI was the alter ego of the Youngs, and was so treated by the agents of Progressive, which insured the restaurant premises.
The only insurance contract directly at issue here is the portion of Policy 720 covering the restaurant building. Progressive offered, and the Youngs accepted, coverage amounting to $100,000 for the restaurant building, $50,000 for the restaurant building’s contents, and $150,000 for the adjacent building housing the Nu'uuli Store. These terms remained basically consistent through the various documents Progressive issued; however, there was no consistency in the named insureds listed on each of the documents. A written quote delivered to the Youngs by Progressive underwriter Tavita Taumua on May 18, 1999, addressed the Youngs. After the Youngs agreed to the quote, Taumua issued an insurance proposal (“Proposal”), detailing the coverage underwritten. SSI and the Youngs were listed as co-applicants on the Proposal and Falemalama, not Fata, was erroneously listed as the building’s owner. On June 2, 1999, Progressive issued a certificate of insurance (“Certificate”), which named SSI as the sole insured. The Certificate also referenced the Proposal as the controlling descriptive document. Three weeks later, Progressive issued a summary of coverage, which again named the SSI as the sole insured party.
On August 11, 1999, a fire, started in the restaurant, razed the restaurant building down to'its concrete foundation, slab, and part of a wall. The fire consumed the furnishings and equipment of the restaurant, for which loss Progressive paid SSI in response to a written claim. The fire also caused collateral damage to the Nu'uuli Store. Progressive agreed to pay a claim for that loss. But when the Youngs and the Progressive adjusters failed to agree on the amount of the loss of the restaurant building, trouble entered the previously amiable adjustment process. Fata, meanwhile, filed a claim to be recognized as the building owner and named as a loss payee.
*80The Youngs wanted the face amount of the $100,000 policy, which exceeded by more than $30,000 the amount that Progressive was then willing to pay. Eventually, after an abortive attempt to settle all remaining claims for $64,300, Progressive paid this sum into court and filed this interpleader action, naming all the contending parties and others that were later deleted from the case. Fata cross-claimed against SSI and the Youngs for indemnification consistent with the tenns of the building lease.
After a three-day trial, the trial court ordered Progressive to pay $100,000 to Fata, on the theory that SSI had no insurable interest in the restaurant building, and that Fata was entitled to full indemnification from the Youngs.1
Standard of Review
The appellate court reviews a trial court’s factual determinations for clear error, and questions of law or mixed questions of law and fact de novo. Roman Catholic Diocese of Samoa Pago Pago v. Avegalio, 20 A.S.R.2d 70, 73 (App. Div. 1992). “A finding is ‘clearly erroneous’ when the entire record produces the definite and firm conviction that the court below committed a mistake.” E.W. Truck & Equip. Co. v. Coulter, 20 A.S.R.2d 88, 92 (App. Div. 1992). “In de novo review, the appellate court must review the record in light of its own independent judgment without giving special weight to the prior decision.” Amerika Samoa Bank v. Pacific Reliant Indus., 20 A.S.R.2d 102, 107 (App. Div. 1992).
Discussion
I. SSI’s Insurable Interest
A.S.C.A. § 29.1522(a) states:
Every interest in property ... of such a nature that a contemplated peril might directly damage the insured, is an insurable interest. A mere contingent or expectant interest in anything, not founded upon an actual right to or in the thing, nor upon any valid contract for it, is not insurable.
Following the statute, the record compels the conclusion that SSI had an insurable interest in the restaurant building. According to Kenny *81Young’s uncontested testimony, SSI owned and operated the restaurant business. Although the trial court deemed it significant that the Youngs established SSI exclusively to “serve as an immigration conduit” for the restaurant, it matters not for what purpose SSI was fanned, so long as it owned the restaurant business. As the owner, it sustained a direct loss when the restaurant had to stop operating because of the fire. As indicated on the Proposal, SSI and the Youngs are the named insureds on Policy 720 and both SSI and the Youngs had insurable interests in the restaurant building.
II. Reformation of the Policy
An insurance policy is subject to the same rules of construction as any other contract. Plaza Dep‘t Store v. Duchnak, 26 A.S.R.2d 106, 108-09 (Trial Div. 1994). If an insurance contract is unambiguous, a court must “follow the prescriptions of the policy as written, and need look no further in resolving any disputes.” Asifoa v. Nat'l Pac. Ins. Co., 26 A.S.R.2d 24, 25-26 (Trial Div. 1994). If a policy is found to be ambiguous, however, a court should undertake farther inquiry to determine the intent of the parties. Id. at 26. An insurance contract may be reformed to reflect the actual intent of both parties, and it may be reformed after a loss has occurred. Plaza, 26 A.S.R.2d at 109. However, reformation is an “extraordinary remedy,” to be used only when there is mutual mistake or unilateral mistake coupled with actual or equitable fraud by the non-erring party. Mutual of Omaha Ins. Co. v. Russell, 402 F.2d 339, 344 (10th Cir. 1968).
In this case, the controlling descriptive document was the Proposal, which listed the Youngs and SSI as co-applicants and Falemalama as building owner. There is an ambiguity within the Certificate, which lists only SSI as a named insured. However, as the trial court pointed out, the Certificate cites the Proposal as “more particularly describ[ing]” the insurance coverage. Contrary to Progressive’s contention, the Proposal reflects the intent of the parties to name the Youngs and SSI as named insureds.
Additionally, the mutual mistake resulting in Falemalama’s name appearing on the Proposal compels us to afflnn the trial court’s reformation of the insurance agreement to conform to the fact that Fata owned the building. “A mutual mistake of fact occurs where the parties to an agreement have a common intention, but the written contract erroneously reflects that intention due to a mistake on the part of both parties in writing the agreement.” American Samoa Power Auth. v. Nat'l Pac. Ins. Co., 30 A.S.R.2d 145, 147 (Tr. Div. 1996) (quoting Newsom v. Starkey, 541 S.W.2d 468, 472 (Tex. 1976)). Here the parties clearly intended to include the name of the building owner, and erred in naming Falemalama instead of Fata.
*82However, the trial court erred in reforming the insurance policy to list Fata as a loss payee. Reformation must reflect the “actual intent” of the parties. Plaza, 26 A.S.R.2d at 109. Neither the Certificate nor the Proposal indicate that there was any discussion or agreement on listing a loss payee. Although Progressive contends that it would have listed Fata as the loss payee had it known that she was the building owner, a contract will not be reformed on infonnation that a party knew or should have known, absent an actual, mutual intent to agree on that infonnation. See Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 311 (6th Cir. 1997) (citing 3 Arthur L. Corbin, Corbin on Contracts § 614, at 723 (1950)) (“[T]he requirement of actual intent by both parties is black letter law in most jurisdictions.”). The trial court erred in this regard.
Policy 720 is deemed to be refonned to reflect that Fata is the building owner, but there was no mutual intent to list the building owner as a named insured or a loss payee. Fata recovers by reason of indemnity, not by reason of being a named insured. Fata had a cross-claim, and judicial economy is advanced by affirming the trial court’s equitable reformation to implement the indemnity rights created in Fata’s lease to the Youngs.
III. A.S.C.A. § 29.1577 Claim
The Appellants argue that the trial court erred in denying their claim for damages under A.S.C.A. § 29.1577, a statute penalizing insurers who fail to pay on a policy within the time specified for covering a loss.2 Although the Appellants argue correctly that A.S.C.A. § 29.1577 is a strict liability statute requiring no proof of bad faith, Paisano's Corp. v. Nat’l Pac. Ins., 30 A.S.R.2d 139, 141 (Trial Div. 1996), Progressive’s liability was not triggered in this case. The statute makes clear that an insurer’s liability is governed by the terms of the policy. See A.S.C.A. § 29.1577. The trial court noted, and the Appellants do not dispute, that the Youngs failed to submit a written demand as required under the terms of the policy.
IV. Tort Claim
The Appellants contend that Progressive breached its duty of good faith in adjusting their claims. Specifically, they argue that Progressive had a duty to infonn Appellants about a comprehensive general liability policy *83and about the extent of the damage done to a second building near the restaurant building.
It appears from the trial court’s opinion that the Appellants failed to raise these arguments below. Instead, the Appellants’ bad faith argument seems to have rested on allegations that Progressive improperly delayed in paying for the restaurant building loss and that it purposefully hired an assessor who would report an unreasonably low estimate of the loss to the restaurant building. Appellants may not raise new theories of liability for the first time on appeal. Ill. Graphics Co. v. Nickum, 159 Ill. 2d 469, 490 (1994) (There is a “general waiver rale that a party may not raise a theoiy in support of the claim for the first time on appeal”) (citation omitted). We affirm the trial court’s denial of Appellants’ tort claim.
V. Indemnification
Appellants assert that Fata breached her duty to mitigate damages by bringing a breach of contract claim against the Youngs instead of bringing a claim against Progressive. This assertion is without merit. Indeed, before Progressive filed its interpleader with the court, Fata submitted a claim to Progressive, only seeking indemnification from the Youngs after this action began.
VI. Amount of Award
Progressive objects to the trial court’s determination that the restaurant building was a total loss after the fire. There is no clear error in the trial court’s factual determination that the building was a total loss, and we affirm. See A.S.C.A. § 43.0801(b).
Conclusion
We disapprove of part of the trial court’s holdings. SSI had an insurable interest under Policy 720, and the trial court erred in refonning the policy to include Fata as a loss payee. However, these errors were harmless as they did not affect the ultimate order. We affirm the trial court’s rejection of the Appellants’ statutory and tort claims alleging bad faith practices by Progressive. We affirm the court’s holding that the Youngs must indemnify Fata for the loss of the building. We also affirm the order issuing the $64,300 deposited by Progressive to Fata and directing Progressive to pay Fata an additional $35,700.’
AFFIRMED.
It is so ordered.
Without consulting Fata, and allegedly at the direction of Falemalama, the Youngs have since had the remains of the restaurant building removed. The Youngs then built a larger structure on the same property, and entered into a twenty-year lease with Falemalama.
“In all cases where loss occurs and the insurer liable therefor fails to pay the same within the time specified in the policy, after demand made therefor, the insurer is liable to pay the holder of the policy, in addition to the amount of such loss, 12% damages upon the amount of the loss, together with all reasonable attorneys fees ....” A.S.C.A. § 29.1577. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486835/ | ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Defendants Progressive Insurance Company (Pago Pago) Limited (“Progressive”), John Tausaga (“Tausaga”), and Tusi Fa'atasiga (“Fa'atasiga”) (collectively “Defendants”) move, pursuant to T.C.R.C.P. 56(c), for summary judgment on the claims of Plaintiff Siliaga Su'a (“Siliaga”). Siliaga brings this action as guardian ad litem for her minor child, Ta'atu Su'a (“Ta'atu”). For the reasons stated below, we grant the motion.
Factual Background
In June 1999, Ta'atu, a minor, was struck and injured by a mini aiga bus in the Tafuna area. The bus was owned by Fa'atasiga, driven by Tausaga, and insured by Progressive.
On October 7, 1999, this Court appointed Siliaga as guardian ad litem for Ta'atu in order “to pursue his claim for injuries he received from an automobile accident.”1 Rather than file the complaint immediately, Siliaga delayed filing her complaint until March 27,2002.
Standard of Review
Summary judgment is appropriate when the pleadings and other *106supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The non-moving party must then affirmatively show there is a genuine issue for trial. Id. at 324. Under T.C.R.C.P. 56(e), the non-moving party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” In considering the motion, “all inferences are construed in a light most favorable to the non-moving party.” American Samoa Power Auth. v. Nat’l Pac. Ins. Co., 30 A.S.R.2d 145, 146-47 (Trial Div. 1996); see also Pal Air Int’l, Inc. v. Porter, 30 A.S.R.2d 104, 105 (Trial Div. 1996).
Discussion
Defendants argue that the statute of limitations expired on Siliaga’s claim in October 2000, one year after she was appointed guardian ad litem for Ta'atu.2 We agree. According to A.S.C.A. § 43.0126, “[m]inors ... shall have 1 year from after the termination of such disability within which to commence any action regardless of any otherwise applicable limitation period.” In Pasesa v. Laumatia, 28 A.S.R.2d 37 (Trial Div. 1995), we found that the appointment of a guardian ad litem terminates the minor’s disability for the purposes of the statute of limitations. Id. at 42. We reached this conclusion after carefully analyzing and distinguishing the statutes of several other jurisdictions. Id. at 39-42.
Thus, in this case, the one year statute of limitations began to run on October 7, 1999, when Siliaga was appointed guardian ad litem to *107protect Ta'atu’s interests relating to the accident. Siliaga’s March 27, 2002 filing of the complaint is undoubtedly outside the limitations period. Accordingly, Defendants’ motion for summary judgment should be granted.
Plaintiff does put forth two arguments in an attempt to excuse her dilatory filing. First, Plaintiff argues that she thought a personal injury action had been initiated when she was appointed guardian ad litem. She argues that she was unaware that it was necessaiy to file a separate complaint. (Pl.’s Opp’n at 2-3.) In support of this contention, her previous attorney, Salanoa Aumoeualogo (“Salanoa”), in his affidavit states,
[tjhat at the time I filed the petition for appointment of a guardian ad litem, I was under the belief that that was the beginning of the civil action in [sic] behalf of the minor child. I was not aware of any rule or law which allows for a separate case in [sic] behalf of a minor child. I truly thought that the filing for a guardian ad litem was indeed the beginning of legal action in [sic] behalf of a minor child.
(Salanoa Aff. at 5, Oct. 2,2003; see also Id. at 9 (“I am not aware of any law or rules that would allow for a separate filing of a petition to appoint a guardian ad litem from a petition to file [sic] action in [sic] behalf of an injured child.”)) Plaintiff argues that she filed her complaint only after settlement discussions with the Defendants failed, “thinking all along that this matter had bee [sic] previously filed with the court when a guardian ad litem was appointed.” (Pl.’s Opp’n at 3.)
Plaintiffs attorneys are responsible for familiarizing themselves with the local rules and procedures before practicing in this Court. It is inconceivable that Plaintiffs former attorney thought that Plaintiffs appointment as guardian ad litem initiated a personal injury suit against the Defendants. Likewise, it is incredible that Plaintiffs current attorney put this argument forth in the response to Defendants’ motion for summary judgment as a valid, supportable legal submission. The language of the order appointing Siliaga as guardian ad litem indicated that the appointment was made so Siliaga could “pursue [Ta'atu’s] claim for injuries he received from an automobile accident.” In addition, the petition for appointment did not list the parties or the claims or meet the basic requirements necessary to initiate a legal action under the Trial Court Rules of Civil Procedure.3 Plaintiffs attorney’s unjustifiable failure to follow these rules is no excuse for the tardy filing of Ta'atu’s *108claims.
Moreover, Plaintiffs excuse that her former attorney thought the appointment of the guardian actually initiated the filing of the personal injury action makes no sense in light of the fact that Plaintiff eventually did file a lawsuit against the Defendants. Why would Plaintiff file another lawsuit regarding the same claims if she legitimately thought the action was already pending in this Court? Plaintiff does not even attempt to explain this inconsistency. Plaintiffs first argument has no merit.
Plaintiffs second argument for why the statute of limitations should not bar Ta'atu’s claims is equally unpersuasive. Plaintiff argues that the Defendants should be equitably estopped from asserting the statute of limitations defense because they “misled plaintiffs [sic] into believing that settlement was a reality and that there would be no trial of this matter.” (Pl.’s Opp’n at 4.) Equitable estoppel can sometimes prevent the application of the statute of limitations. See, e.g., Archuleta v. City of Rawlins, 942 P.2d 404, 405 (Wyo. 1997).
Plaintiff cites Archuleta and Turner v. Turner, 582 P.2d 600 (Wyo. 1978), as support for this argument. Notably, in both of these cases, summary judgment was granted for the defendants because the courts found equitable estoppel did not apply to preclude the statute of limitations defense. Archuleta, 942 P.2d at 406; Turner, 582 P.2d at 603. In Turner, the Court noted, “the mere pendency of negotiations during the period of a statute of limitations, which are conducted in good faith with a view to ultimate compromise, is not of itself sufficient to establish an estoppel.” 582 P.2d at 603. Plaintiffs allegations that Defendants engaged in settlement negotiations does not indicate that Defendants acted in bad faith.4 Absent any evidence that Defendants acted in bad faith, Defendants are allowed to assert the statute of limitations defense.5
Unfortunately, the victim in this case is the minor Ta'atu. His rights were not adequately protected. Although Ta'atu can no longer pursue this action against these Defendants, perhaps he can find relief elsewhere.
*109Order
Defendants’ motion for summary judgment is granted.
It is so ordered.
Defendants filed but withdrew a previous motion for summary judgment in order to confirm that the Court order appointing Siliaga as guardian ad litem was designed to protect her son’s interests resulting from the June 1999 accident. The parties do not dispute that the Court’s appointment in October of 1999 was, in fact, to protect Ta'atu’s interests resulting from this accident. (See, e.g., Pl.’s Opp’n. at 2-4; Defs.’ Mem. in Supp. of Summ. J. at 3, Ex. A.)
Defendants failed to raise the statute of limitations as an affirmative defense in their answer. However, Plaintiff failed to argue that Defendants forfeited the defense by excluding it from their answer. Under these circumstances, we find it appropriate to allow Defendants’ statute of limitations defense. See, e.g., Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir. 1989) (finding the statute of limitations defense was not forfeited because it was raised in a motion for summary judgment and plaintiff was not prejudiced by delay); Emmons v. S. Pac. Transp. Co., 701 F.2d 1112, 1118 (5th Cir. 1983) (allowing statute of limitations to be raised at trial when it was not included in the pre-trial order, when the plaintiff failed to object to its introduction at trial). In any event, Defendants could seek leave to amend their answer to include the defense. We see no reason to delay the motion when Plaintiff has not suffered any prejudice nor argued that Defendants forfeited the defense.
The rules provide, among other things, that “[a] civil action is commenced by filing a complaint with the court.” T.C.R.C.P. 2.
Plaintiff argues that discovery took place before the filing of the complaint. Plaintiff has offered no evidence of fonnal discovery or deposition prior to the filing of the complaint. In any event, Defendants’ request for documents or other discovery does not excuse Plaintiff’s failure to file within the statute of limitations.
In fact, we encourage parties to settle their claims out of court. Punishing the Defendants for engaging in good-faith settlement negotiations is counterproductive. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486836/ | ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO DISMISS
Defendant Sila Poasa (“Sila”) moves, pursuant to T.C.R.C.P. 56, for partial summary judgment on the complaint of Plaintiffs Construction Services of Samoa, Inc. (“CSS”), Mora Mane (“Mora”) and Sallie Mane (“Sallie”) (collectively “Plaintiffs”). Defendant Tony’s Construction (“Tony’s”) moves to dismiss Plaintiffs’ complaint against it entirely.1 *111Plaintiffs did not file a response to Defendants’ motions. For the reasons stated below, we grant in part Sila’s motion for partial summary judgment and deny Tony’s motion to dismiss.
I. Tony’s Motion to Dismiss
Tony’s argues that it should be dismissed from the instant litigation because as the alter ego for Sila it can neither sue nor be sued. As an initial matter, Tony’s fails to assert under which rule of civil procedure it makes its motion. We can only assume that Tony’s is seeking to be dismissed under T.C.R.C.P. 12(b)(6) for failure to state a claim. However, Tony’s has filed an answer in this matter and therefore a motion to dismiss under T.C.R.C.P. 12(b)(6) is untimely. Instead, Tony’s motion is more properly considered under T.C.R.C.P. 12(c). In deciding a motion for judgment on the pleadings pursuant to T.C.R.C.P. 12(c), the same standard is used as that for determining a motion brought pursuant to T.C.R.C.P. 12(b)(6). GATX Leasing Corp. v. Nat’l Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir. 1995).
Plaintiffs alleged in their complaint that Tony’s is a sole proprietorship doing business in American Samoa. Tony’s admitted this allegation in its answer. Tony’s argues that because it is Sila’s alter ego it should be dismissed. Indeed, Sila, as the owner of Tony’s, a sole proprietorship, is liable for its debts. See Wing Hop Lee, Ltd. v. Soo, 30 A.S.R.2d 76, 78 (Trial Div. 1996). “[I]n the case of a sole proprietorship, the finn name and the sole proprietor’s name are but two names for one person.” Credit Assoc. of Maui, Ltd. v. Carlbom, 50 P.3d 431, 435 (Haw. Ct. App. 2002) (citations omitted). As such, “[wjhere a person engages in business . . . under such name, he may be sued under such name.” Id. (citations omitted). Accordingly, whether Plaintiffs sue Sila or Tony’s, Sila is responsible for any judgment obtained against either entity. Although Plaintiffs cannot receive double recovery by naming both entities, we see no reason to dismiss Tony’s.
II. Sila’s Motion for Partial Summary Judgment
Sila moves for partial summary judgment with respect to counts six, seven, and nine of Plaintiffs’ complaint. Plaintiffs failed to respond to Sila’s motion. “[Although a court is not pennitted to enter a ‘default’ summary judgment, if the moving party meets its initial summary judgment burden, it is quite likely that the court will enter a summary judgment in the absence of any opposition.” 11 James Wm. Moore et al., Moore’s Federal Practice § 56.10[3][b] (3d ed. 1999).
A motion for partial summary adjudication should be considered pursuant to T.C.R.C.P. 56(d). See, e.g., Wing Hop Lee, Ltd, 30 A.S.R.2d at 77. The standard for determining a Rule 56(d) motion is *112identical to the standard used for determining a motion brought under Rule 56(c). Aurelio v. R.I. Dep’t of Admin., 985 F. Supp. 48, 53 (D. R.I. 1997).
Summary judgment is appropriate when the pleadings and other supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” T.C.R.C.P. 56(c). The party seeking summary judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Accordingly, we look to whether Sila met his burden.
A. Count 6 - Conversion
Sila argues that he purchased an excavator from BOH after BOH repossessed the excavator following Plaintiffs’ default on a loan. Sila was a guarantor on the loan. Sila argues that he is not liable for conversion because he acquired the excavator through a lawful purchase. Sila makes his argument with no citation to any law or facts; however, he does refer this Court to “the pleadings and documents on file.” A review of the pleadings and documents demonstrates that there is a factual dispute as to whether Sila purchased the excavator from BOH or whether he redeemed it as the guarantor of the loan. This factual determination may affect Sila’s liability on this count. As such, we decline to grant Sila summary judgment on count six.
B. Count 7 - Tortious Interference
Sila also seeks summary judgment on count seven of Plaintiffs’ complaint, which alleges that Sila tortiously interfered with the security agreement between CSS and BOH “by taking possession of the repossessed excavator and attachments with knowledge that BOH was obligated to return the equipment to CSS under the Security Agreement upon his discharging the debt as guarantor.” (Compl. ¶ 77.) The complaint also alleges that Sila had knowledge that under the terms of the security agreement “three bids were to be obtained for the collateral if the collateral were to be put up for sale.” {Id. ¶ 75.)
There are four elements to a claim of tortious interference with contractual relations:
(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of the contract; (3) the defendant’s intentional procurement of a breach of the contract by the third party; and (4) damages caused by the breach.
*113Standard Dyeing & Finishing Co. v. Arma Textile Printers Corp., No. 85 Civ. 5399 (BN), 1991 WL 49782, *11 (S.D.N.Y. March 25, 1991); see also Restatement (Second) of Torts § 766 (1979).
Sila argues that under the security agreement the bank was under no obligation to refrain from selling the excavator to him. We agree. Nothing in the language of the security agreement prevents BOH from selling the excavator to Sila. Contrary to Plaintiffs’ allegation that the security agreement precludes sale to Sila, section J.4 of the agreement permits such a sale. (See Security Agreement/Chattel Mortgage ¶ J.4 (“After repossessing, [BOH] may obtain three bids for any Collateral... and sell such Collateral for cash or credit at the highest bid price . . .).) [BOH is] not restricted, however, from using other sale procedures or selling to persons other than those described above.”).
Additionally, if Sila is found to have redeemed the collateral as a guarantor, he still would not be liable on this count. Plaintiffs’ allegation that BOH had to return the excavator to CSS after Sila fulfilled its loan obligations as the guarantor is simply wrong. There is no language to this effect in the security agreement nor does the law support this allegation. (See Security Agreement/Chattel Mortgage passim.) See also, e.g„ Haw. Rev. Stat. Ann. §§ 490:9-618; 9-623 (West 2004). As such, we grant Sila’s motion for summary judgment on this claim.
C. Count 9 - Intentional Infliction of Emotional Distress
Sila seeks partial summary judgment with respect to part of Plaintiffs’ claim for the intentional infliction of emotional distress (“IIED”). Plaintiffs allege that Sila caused them “extreme emotional distress” by both his wrongful acquisition of the excavator and by his use of police officers to enter Plaintiffs’ property and harass them. Sila seeks summary judgment arguing that his acquisition of the excavator was not the sort of conduct necessary for a claim of IIED and that he did not intend to cause the Manes emotional distress by taking possession of the excavator.
We agree with Sila that the alleged conduct falls short of what is required for a claim of IIED. In an IIED case, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.” Restatement (second) of Torts § 46 (1965). Sila’s acquisition of the excavator after BOH’s repossession, whether by sale or by redemption, was not extreme or outrageous conduct. Moreover, Plaintiffs have offered no evidence (nor did we locate any in the record) that Sila intended to cause them emotional distress by acquiring the excavator. Accordingly, we grant Sila partial summary judgment on this claim.
*114Order
1. Defendant Tony’s Construction’s motion to dismiss is denied.
2. Defendant Sila Poasa’s motion for partial summaiy judgment is granted in part and denied in part. Sila Poasa’s motion for summary judgment on count six is denied. Sila Poasa is entitled to summary judgment on count seven of Plaintiffs’ complaint. Sila Poasa is also entitled to partial summary judgment on count nine of Plaintiffs’ complaint regarding his acquisition of the excavator.
It is so ordered.
We note that Defendant Bank of Hawaii (“BOH”) filed a separate motion for summary judgment. We address BOH’s motion by separate order. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486837/ | ORDER GRANTING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant Bank of Hawaii (“BOH”) moves, pursuant to T.C.R.C.P. 56, for summary judgment or, in the alternative, partial summaiy judgment on the complaint of Plaintiffs Construction Services of Samoa, Inc. (“CSS”), Mora Mane (“Moru”) and Sallie Mane (“Sallie”) (collectively “Plaintiffs”).1 For the reasons stated below, we grant in part BOH’s motion for partial summaiy judgment.
BOH moves for summaiy judgment or, in the alternative, partial summary judgment with respect to counts one through five and nine of Plaintiffs’ complaint. According to T.C.R.C.P. 56(c), summary judgment is appropriate when the pleadings and other supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The party seeking summaiy judgment bears the burden of showing there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must then affirmatively show there is a genuine issue for trial. Id. at 324. “[A]ll inferences are construed in a light most favorable to the non-moving party.” Am. Samoa Power Auth. v. Nat’l Pac. Ins. Co., 30 A.S.R.2d 145, 146-47 (Trial Div. 1996); see also Pal Air Int’l, Inc. v. Porter, 30 A.S.R.2d 104, 105 (Trial Div. 1996).
A motion for partial summary adjudication should be considered pursuant to T.C.R.C.P. 56(d). See, e.g., Wing Hop Lee, Ltd., v. Soo, 30 *116A.S.R.2d 76, 77 (Trial Div. 1996). The standard for determining a Rule 56(d) motion is identical to the standard used for determining a motion brought under Rule 56(c). Aurelio v. R.I. Dep’t of Admin., 985 F. Supp. 48, 53 (D. R.I. 1997). Using these standards, we turn to the merits of the instant motion.
Count One - Conversion
BOH argues that Sila, as loan guarantor, redeemed an excavator from BOH after BOH had repossessed the excavator following Plaintiffs’ default on a loan. Sila was a guarantor on the loan between BOH and CSS that pledged the excavator and its accessories as the collateral. BOH argues that it is not liable for conversion because it acquired and disposed of the excavator through lawful means. Plaintiffs argue (and a review of the pleadings and documents demonstrates) that there is a factual dispute as to whether Sila purchased the excavator from BOH in a private sale or whether he redeemed it as the guarantor of the loan. This factual determination may affect BOH’s liability on this count. As such, we decline to grant BOH summary judgment on count one.
Count Two - Breach of Duty to Return Collateral
BOH also seeks summary judgment on count two of Plaintiffs’ complaint, which alleges that BOH breached its “implied contractual duly” in the security agreement to return the collateral to CSS upon the discharge of the debt. We cannot find any sort of “implied” duty in the security agreement that obligates BOH to return the collateral to CSS when a loan guarantor discharges the debt and redeems the collateral.
Indeed, assuming Sila is found to have redeemed the collateral as a loan guarantor, Plaintiffs’ allegations, with no citation to authority, that BOH had to return the excavator to CSS after Sila fulfilled the loan obligations, are simply wrong. There is no language to this effect in the security agreement nor does the law support this argument. (See Security Agreement/Chattel Mortgage passim.) See also, e.g., Haw. Rev. Stat. Ann. §§ 490:9t618; 9-623 (West 2004).2 As such, we grant BOH’s motion for summary judgment on this claim.
*117Count Three - Breach of Notice
In count three of their complaint, Plaintiffs allege that BOH failed to give them proper notice before disposing of the excavator. • This count depends on whether the disposition of the excavator is characterized as a sale to Sila or as a redemption by him. If Sila redeemed the excavator in his capacity as guarantor, BOH did not fail to give notice. However, if BOH sold the excavator to Sila in a private sale after notifying Plaintiffs of a public sale, the notice issue would be a question of fact.
BOH argues that even if it did violate a notice requirement, Plaintiffs have not suffered any recoverable damages. We disagree. BOH is correct that if it did not give proper notice, it may not recover any deficiency from the Plaintiffs. However, Plaintiffs may have been entitled to any surplus from the sale. Haw. Rev. Stat. Ann. §§ 490:9-625(b), (d) cmt. 3 (“Assuming no double recovery, a debtor whose deficiency is eliminated under section 9-626 may pursue a claim for a surplus.”); id. 9-615 (f) (discussing how to calculate the surplus). As such, we deny summary judgment on this count.
Count Four - Breach of Duty to Account
BOH argues that that there “is no obligation on the part of BOH to account if it retains the collateral in full satisfaction of the indebtedness.” This may be true but is irrelevant in the instant action. BOH did not choose to retain the collateral; instead, it chose to dispose of it via private sale or redemption by a guarantor. In either of these circumstances, BOH likely had a duty to account. HAW. Rev. STAT. Ann. § 490:9-210.
BOH also argues that even if it did fail to account, Plaintiffs cannot recover the statutoiy $500.00 remedy because they have sustained no other damages.3 We believe whether Plaintiffs have sustained other damages is a question of fact. Accordingly, we deny summary judgment on this count.
*118Count Five - Conversion of SaIJie’s Funds
Plaintiffs allege that BOH converted Sallie’s funds when it used money from Sallie and Moru’s joint checking account towards the outstanding loan balance. BOH argues that it was exercising its well-established right to set off funds by applying money from the Manes’ joint account toward the loan balance.
We agree with BOH that “when a depositor is indebted to the bank, the bank is justified in using a self-help set-off against the depositor’s account in order to extinguish the debt.” American Samoa Gov’t Employees Fed. Credit Union v. Sele, 28 A.S.R.2d 21, 24 (Trial Div. 1995); see also Collums v. Union Planters Bank, N.A., 832 So.2d 572, 576 (Miss. Ct. App. 2002). Indeed, in the Continuing Guaranty, Moru agreed BOH could use the set-off process against his checking or savings accounts. (See Continuing Guaranty ¶ 15.) However, BOH offers no case law or facts to demonstrate that it was allowed to set off funds from Sallie and Moru’s joint account. BOH did not argue that Sallie had any sort of contractual agreement with BOH that would allow it to set off her funds in the joint account. Moreover, the authorities differ on whether a creditor can set off funds in a joint account. See, e.g., 10 Am. Jur. 2d Banks and Financial Institutions § 878 (1997) (“[A] bank has no right to set off against a deposit in the names of two persons . . . save to the extent to which its debtor is shown to be the actual owner of the moneys deposited.”); but see Masotti v. Bristol Savings Bank, 653 A.2d 836, 838 (Conn. Super. Ct. 1994), aff’d, 653 A.2d 179 (Conn. 1995) (“The coholders of a joint account are considered owners of the entire account and either may withdraw.”). Therefore, we deny BOH summary judgment on this count.
Count Nine - Intentional Infliction of Emotional Distress
BOH also seeks summary judgment with respect to Plaintiffs’ claim for the intentional infliction of emotional distress (“IIED”). Plaintiffs allege that BOH caused them “extreme emotional distress” by releasing the excavator to Sila. BOH seeks summary judgment arguing that the release of the excavator was not the sort of conduct necessary to support a claim of IIED and that it did not intend to cause the Manes emotional distress by releasing the excavator to Sila.
We agree with BOH that the alleged conduct falls short of what is required for a claim of IIED. In an IIED case, “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability.” Restatement (second) of Torts § 46 (1965). BOH’s disposition of the excavator after the repossession, whether by sale or by redemption, was not extreme or outrageous conduct. See, e.g., Hamilton v. Ford Motor Co., *119502 A.2d 1057, 1064 (Md. Ct. Spec. App. 1986) (commenting that in order to be extreme or outrageous the “conduct must completely violate human dignity”). Indeed, Plaintiffs have offered no evidence in response to BOH’s motion to demonstrate that BOH’s actions met the IIED standard. Moreover, Plaintiffs have offered no evidence to show that BOH intended to cause them emotional distress by the release of the excavator. See Bi-Rite Petroleum, Ltd. v. Coastal Ref. & Mktg., Inc., 282 F.3d 606, 609 (8th Cir. 2002) (affirming trial court’s grant of summary judgment on IIED claim when “[tjhere was no testimony that [Plaintiff] was targeted for outrageous conduct; that outrageous conduct-took place; or even that [Defendant] was the sole cause of her alleged distress”). Accordingly, we grant BOH summary judgment on this claim.
Order
Defendant BOH’s motion for summary judgment is granted in part. BOH is entitled to summary judgment on counts two, five and nine of Plaintiffs’ complaint. With respect to the remaining counts against BOH, summary judgment is denied.
It is so ordered.
We note that Defendant Sila Poasa (“Sila”) filed a separate motion for partial summaiy judgment We address Sila’s motion by separate order.
We note that American Samoa has not adopted the Uniform Commercial Code (“UCC”). See Theo H. Davies & Co. v. Pac. Dev. Co., 6 A.S.R.2d 5, 8 (Trial Div. 1987). However, Hawaii has adopted the UCC and the parties to the security agreement agree that the applicable law is the law of American Samoa “and in the absence of applicable law, Hawaii law.” (See Security Agreement/Chattel Mortgage ¶ P.)
In support of this argument BOH cites to Anderson on the Uniform Commercial Code. Unfortunately, we do not have this authority in our library nor do we have online access to if. If BOH wants to rely on authorities that are not easily accessible for the Court, we suggest attaching the relevant pages and title pages of such authorities to the memorandum of law. We also note that both parties cite to relevant sections of the Hawaii Revised Statutes. We are able to access these online; however, Plaintiffs have cited to the previous version of these laws causing us to spend time searching for the updated and renumbered provision and leaving Plaintiffs citing provisions that have been significantly altered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486838/ | ORDER DENYING MOTION TO SUPPRESS
Defendant Napoleon Tavale (“Tavale”) is charged with fabricating physical evidence in violation of A.S.C.A. § 46.4611(a)(2). Tavale moves, pursuant to T.C.R.Cr.P. 12(b)(3), to suppress statements he made to detectives on November 14, 2002. All counsel and Tavale were present at the hearing February 20, 2004. For the reasons stated below, we deny Tavale’s motion to suppress.
On November 14, 2002, around 6:00 a.m., Detective Liusila Brown and another detective arrived at Tavale’s home. Upon their arrival, Detective Brown spoke with Tavale and Tavale’s parents explaining that he was investigating the homicide of Ma'alona Felisi. Detective Brown requested Tavale accompany him to the police station in Fagatogo. Tavale accompanied the officers and rode in the backseat of the police car to the station. At the station, Tavale was escorted to the office of Captain Seau V. Laumoli. Without reading Tavale his Miranda rights, Captain Laumoli interviewed Tavale regarding the events surrounding the death of Ma'alona Felisi, which occurred the previous afternoon. At the same time, Lieutenant Ta'ase Sagapolutele was recording Tavale’s statements in Samoan. The interview lasted approximately 45 minutes. *121After the interview, Tavale agreed to provide a written statement in English. During this entire time, Tavale was never handcuffed, threatened, placed under arrest, or told that he could not leave. At the end of the interview, Tavale freely left the station.
Tavale was never arrested or charged with a crime in connection with the death of Ma'alona Felisi. Rather, Tavale subsequently gave a conflicting statement regarding the events of November 13,2002. As a result of this subsequent statement, the government brought the current charge against Tavale. Tavale now claims that his November 14, 2002 statements were made while in custody, during an interrogation, and without adequate advisement of his rights. Because he was not administered the Miranda rights, Tavale argues that the statements were illegally obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights of the United States Constitution, as well as Article I, Sections 2, 5 and 6 of the Revised Constitution of American Samoa and, therefore, must be suppressed. The government disagrees, arguing that there was no violation of Tavale’s rights because Tavale was not in custody when he made the statements and because he was interviewed as a witness and not a suspect.
As well established by Miranda v. Arizona, 384 U.S. 436 (1966), statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally-protected rights and are subject to the exclusionary rule. However, in order to trigger Miranda, an individual must be in custody and must be subject to interrogation. A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. See Am. Samoa Gov’t v. Fealofa'i, 24 A.S.R.2d 10, 11-12 (Trial Div. 1993).
Custodial interrogation occurs when “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. Courts look at the “totality of the circumstances” when making a determination as to whether a person is “in custody.” California v. Beheler, 463 U.S. 1121, 1125 (1983). However, “the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a fonnal arrest.” Id. (citations omitted). In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court found that a suspect who voluntarily went to a police station and freely left after a 30 minute interview was not “in custody” for Miranda purposes. The Court explained that “[.Miranda] warnings [are not] to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. at 495. Likewise, in Beheler, the Court found the defendant was not “in custody” when he voluntarily accompanied the police to the police station, was interviewed *122for about 30 minutes, and then allowed to leave. 463 U.S. at 1122-23. The Court noted that “Beheler was neither taken into custody nor deprived of his freedom of action. Indeed, Beheler’s freedom was not restricted in any way whatsoever.” Id. at 1123.
In the current case, based on the aforementioned facts adduced at the suppression hearing, we fmd that Tavale was not in custody at the time he made his statements to the officers.1 Accordingly, Tavale’s statements are admissible.
Order
The motion to suppress Defendant Tavale’s November 14, 2002 statements to police officers is denied. It is so ordered.
Because we fmd that Tavale was not in custody at the time he made the statements to police, we need not explore other reasons why Miranda warnings may not have been required in this case. However, we do note that Miranda warnings “[are] not intended to hamper the traditional function of police officers in investigating crime.” Miranda, 384 U.S. at 477-78. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486839/ | ORDER DENYING MOTION TO DEPOSE
On February 6, 2004, the American Samoa Government moved for an order allowing the deposition of Tagata Uli, a government witness, to be taken in Savai'i, Samoa pursuant to T.C.R.Cr.P. 15(a). All counsel and Defendant Marlon Uli (“Uli”) were present at the February 13, 2004 hearing on this matter. The motion was continued until Friday, February 20, 2004, at which time counsel for the government was to propose how the deposition would comply with T.C.R.Cr.P. 15(b) and was to present additional logistical information regarding the deposition to the Court, which would allow us to make an informed decision regarding whether an order allowing the deposition would be futile. All counsel and Defendant were present at the February 20, 2004 hearing. For the reasons stated below, we deny the government’s motion to depose *124Tagata Uli.
We note at the outset that “depositions are not favored in criminal cases.” See 2 Charles Alan Wright, Federal Practice and Procedure § 242 (West 2000). We also note that “because of the absence of procedural protections ... foreign depositions are suspect and, consequently, not favored.” U.S. v. Drogoul, 1 F.3d 1546, 1551 (11th Cir. 1993). Flowever, according to T.C.R.Cr.P. 15(a), a deposition may be allowed in a criminal case if the moving party demonstrates “exceptional circumstances” that justify its taking. T.C.R.Cr.P. 15(a); Drogoul, 1 F.3d at 1552.
[0]rdinarily, exceptional circumstances exist within the meaning of Rule 15(a) when the prospective deponent is unavailable for trial and the absence of his or her testimony would result in an injustice. The principal consideration guiding whether the absence of a particular witness’s testimony would produce injustice is the materiality of that testimony to the case.
Drogoul, 1 F.3d at 1552. The government has met these factors by sufficiently demonstrating that Tagata Uli’s testimony is material and that he will probably be unavailable at trial.
However, while we understand that at this time the government’s motion is concerned with preserving Tagata Uli’s testimony and not necessarily admitting it at trial, as we indicated in our February 13, 2004 Order continuing the motion, “[t]he court need not, at the cost of time and money, engage in an act of futility by authorizing depositions that clearly will be inadmissible at trial.” See Drogoul, 1 F.3d at 1555. Accordingly, we directed the government to provide us with more information about the logistics of the deposition and how it purports to comply with T.C.R.Cr.P. 15(b). Because the government has provided us with little or no information regarding how the deposition is to be conducted in Samoa, we are not inclined to order Tagata Uli’s deposition until we receive further information from the government.
T.C.R.Cr.P. 15(b) allows the criminal defendant to be present during the deposition, even when he is in custody. However, when the deposition is taken in a foreign nation and the defendant is not able to attend the deposition because he is in custody, other accommodations are made in an attempt to satisfy the requirements of the Confrontation Clause. See REV. CONST. OF Am. SAMOA ART. 1, § 6; 2 FEDERAL Practice and Procedure § 244; U.S. v. Korolkov, 870 F. Supp. 60, 65 (S.D.N.Y. 1994). In this regard, Uli requested that the deposition be videotaped. The government agreed to this request. Uli also requested access to his attorney via a telephone line during the deposition. The *125government was unwilling to cooperate with this request, claiming it was unnecessary. We fail to comprehend the government’s unwillingness to make accommodations for Uli that would provide some minimum safeguards of his constitutional rights. The government does not claim that the laws of Samoa preclude these safeguards. If the government is able to videotape the deposition, it also should be able to set up live monitoring and a separate phone line on which Uli can access his attorney during the deposition. See U.S. v. Gifford, 892 F.2d 263, 264-65 (3d Cir. 1989) (deposition did not violate defendant’s due process when it was videotaped, defendant was able to listen through a phone line, and defendant was able to confer with his attorney through another private phone line); Korolkov, 870 F. Supp. at 65 (allowing deposition in which government proposed to videotape deposition and allow defendant to monitor by telephone). It is our concern that unless the government is willing to make some allowances to protect Uli’s rights, ordering this deposition will be an exercise in futility.
Furthermore, the government has not provided us with any information about how depositions are conducted in Samoa. We need some assurance that the deposition would comply with the laws of Samoa and that the laws of Samoa providing for depositions are not repugnant to our own.
Order
The government’s motion to depose Tagata Uli is at this time denied. We are prepared to reconsider this order provided the government agrees to furnish Marlon Uli with access to his attorney via a private telephone line during the deposition and also agrees to allow Marlon Uli to monitor the deposition via telephone. In addition, we need some information from the government describing Samoa’s procedures for taking depositions, and that such procedures are not inconsistent with our notions of due process.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486840/ | *127ORDER DENYING MOTION TO SUPPRESS, DENYING MOTION TO INSPECT VIDEO-TAPE RECORDINGS, & GRANTING
MOTION TO EXTEND TIME FOR FILING PRE-TRIAL MOTIONS
Defendant Marlon Uli (“Uli”) is charged with murder in the first degree, in violation of A.S.C.A. § 46.3502(a)(1). Uli moves to suppress statements he made to officers on November 13, 2002. Uli also moves to suppress other statements he made to an officer at the Tafuna Correctional Facility (“TCF”) subsequent to his arrest. Additionally, Uli moves for the disclosure of aggravating factors, the inspection of videotaped recordings of witness interviews and the crime scene, and an extension of time in which to file pre-trial motions. All counsel and Uli were present at the March 29, 2004 hearing on this matter. For the reasons stated below, we deny Uli’s motion to suppress and to inspect videotaped recordings. However, we grant Uli’s motion to extend the time for the filing of pre-trial motions.
Discussion
I. Motion to Suppress
Uli moves to suppress statements he made to officers on three separate occasions: (1) the oral and written statements he made to officers on November 13, 2002 at the central police station (“CPS”) in Fagatogo (“CPS Statements”); and (2) the oral statements he made to an officer while incarcerated at TCF (“TCF Statements”) on two separate occasions.
Uli argues that the statements were illegally obtained in violation of his Fifth, Sixth, and Fourteenth Amendment rights of the United States Constitution, as well as Article I, Section 6 of the Revised Constitution of American Samoa and, therefore, must be suppressed. We will discuss the CPS and TCF Statements in turn.
A. CPS Statements
On November 13, 2002, sometime around 9:00 p.m., Uli and his father, Anaua Uli (“Anaua”), arrived at CPS. According to Uli and Anaua, they went to the station because officers had been by Anaua’s house earlier that evening looking for Uli and because they wanted to recover their vehicle, which was in police custody.
Upon their arrival at CPS, Uli and his father sat together downstairs at the station. Sometime thereafter, an officer asked Uli to accompany him to a separate room. Without reading Uli his Miranda rights, Sgt. Lui Fuifatu (“Sgt. Fuifatu”) interviewed Uli regarding the events surrounding the death of Ma'alona Felisi (“Ma'a”), which had occurred earlier that *128afternoon.1 Sgt. Fuifatu testified that he considered Uli to be a witness and that he explained this to Uli. According to Uli, the questioning lasted fifteen or twenty minutes. After the questioning, Sgt. Fuifatu asked Uli to give a written statement. Sgt. Fuifatu testified that Uli inquired whether he needed an attorney before making a written statement.2 Sgt. Fuifatu claims he again infonned Uli that they considered him a witness not a suspect at that time. Subsequently, Uli made a written statement.
The witnesses at the suppression hearing estimated the time Uli was at the station was somewhere around two hours. During this entire time, Uli was never handcuffed, threatened, placed under arrest, or told that he could not leave. Uli was allowed to smoke cigarettes in the room. After Sgt. Fuifatu requested Uli make a written statement, he left the room. A few hours later, Uli was arrested in connection with the death of Ma'a. At this time, Uli was given his warning of his rights, and he invoked them, refusing to malee a statement.
Uli claims that his CPS Statements were made while in custody, during an interrogation, and without adequate advisement of his rights. Uli argues that the statements were illegally obtained and, therefore, must be suppressed. The government disagrees, arguing that there was no violation of Uli’s rights because Uli was not in custody when he made the CPS Statements. We agree with the government.
As well established by Miranda v. Arizona, 384 U.S. 436 (1966), statements given by a person during custodial interrogation without a prior warning are in violation of constitutionally-protected rights and are subject to the exclusionary rule. However, in order to trigger Miranda, an individual must be in custody and must be subject to interrogation. A statement made by a person who was not in a custodial situation is not subject to suppression on Miranda grounds. See American Samoa Gov’t v. Fealofa'i, 24 A.S.R.2d 10, 11-12 (Trial Div. 1993).
Custodial interrogation occurs when “questioning [is] initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. Courts look at the “totality of the circumstances” when making a determination as to whether a person is “in custody.” California v. Beheler, 463 U.S. 1121, 1125 (1983). However, “the ultimate inquiry is simply whether there is a formal arrest *129or restraint on freedom of movement of the degree associated with a formal arrest.” Id. (citations omitted).
In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court found that a suspect who voluntarily went to a police station and freely left after a thirty-minute interview was not “in custody” for Miranda purposes. The Court explained that “[Miranda] warnings [are not] to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. at 495. Likewise, in Beheler, the Court found the defendant was not “in custody” when he voluntarily accompanied the police to the police station, was interviewed for about thirty minutes, and was then allowed to leave. 463 U.S. at 1122-23. The Court noted that “Beheler was neither taken into custody nor significantly deprived of his freedom of action. Indeed, Beheler’s freedom was not restricted in any way whatsoever.” Id. at 1123.
In the current case, based on the aforementioned facts adduced at the suppression hearing, we find that Uli was not in custody at the time he made his statements to the officers. See, e.g., Fealofai'i, 24 A.S.R.2d at 11-12; People v. Gillis, 632 N.Y.S.2d 671 (N.Y. App. Div. 1995) (finding defendant’s twelve-hour interrogation was non-custodial when the defendant “voluntarily came to the police station and agreed to go with the State Police to their barracks; he was not handcuffed or physically restrained and was repeatedly left unguarded. The atmosphere in the interview room was not coercive and the questioning was investigatory, not accusatory or continuous; defendant was fed and allowed to sleep alone in the unlocked interview room”). Accordingly, Uli’s CPS Statements are admissible.3
B. TCF Statements
On two separate occasions while incarcerated at TCF, Uli made statements to Filemoni Amituana'i (“Amituana'i”). Amituana'i was an officer at TCF4 who was assigned to transport prisoners from TCF to the hospital for medical appointments and to the court. He also had duties *130during food service. Amituana'i was never directed to interrogate or question Uli but, rather, testified that he frequently had casual conversations with Uli and other prisoners while employed at TCF. Amituana'i testified that TCF has rooms for interrogation, but that the two conversations at issue with Uli occurred outside of these rooms.
According to Amituana'i the first conversation at issue occurred while he was supervising food service in the maximum unit. Amituana'i asked Uli if the victim, Ma'a, in his case was the same Ma'a who Amituana'i knew. Uli affirmatively replied and then, without any further prompting by Amituana'i, made several inculpatory statements to Amituana'i.
The second conversation at issue occurred when Uli approached Amituana'i to inquire about his next court date. Amituana'i replied that he would let Uli know his next court date when he received the schedule. Then, Amituana'i proceeded to ask Uli how his case was going. Uli replied with several potentially inculpatory statements.
Uli argues that these TCF Statements should be suppressed. In response, the government argues that the TCF Statements were not given in violation of either the Fifth or Sixth Amendment. The government claims that Uli was not subject to interrogation and, therefore, his statements should not be suppressed under the Fifth Amendment. The government also argues that the statements should not be suppressed under the Sixth Amendment because Amituana'i did not “deliberately elicit” the statements from Uli. The government does not dispute that Uli’s Sixth Amendment right to counsel had attached at the time these statements were made to Amituana'i. We agree with the government.
As discussed above, in order to trigger the protections of Miranda, an individual must be in custody and must be subject to interrogation. See discussion supra at 88. The government does not dispute that Uli was in custody at the time he made the TCF Statements. However, there is disagreement among the courts about whether a defendant is automatically “in custody” simply because he is incarcerated. Indeed, the Fourth Circuit has held that “a prison inmate is not automatically always in ‘custody’ within the meaning of Miranda.” U.S. v. Cooper, 800 F.2d 412, 414 (4th Cir. 1986) (quoting U.S. v. Conley, 779 F.2d 970, 972 (4th Cir. 1985)). Rather, “custody” in the prison context, “necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement.” Id. (citations omitted); see also American Samoa Gov’t v. Galumalemaga, CR No. 98-00, Order denying Motions to Suppress at 4-6 (Trial Div. Feb. 14, 2001) (defendant was not in custody for Miranda purposes when he was subjected to on-the-scene questioning at TCF); U.S. v. Menzer, 29 F.3d 1223, 1231-32 (7th Cir. 1994). One commentator noted,
*131On a superficial review, all incarceration might seem to constitute custody since inmates cannot, of course, leave the facility in which they are incarcerated. But custody in layperson’s tenns is not necessarily custody for Miranda purposes. Miranda’s definition of custody reflects a concern more with the coercive forces that may affect interactions between a suspect and an interrogating official, and less with the fact that a person’s ability to select his activities and routine is greatly limited as an inmate. Thus, many courts have convincingly made a distinction between custody for Miranda purposes and general prison population confinement.
Laurie Magid, Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcerated Suspects, 58 OHIO St. L.J. 883, 933 (1997).
The two conversations at issue were between Uli and a junior corrections officer. One conversation occurred in the lunch room. Neither conversation was conducted in any sort of interrogation room. Uli was not restrained in any additional manner. Both conversations were brief. Uli’s answers to both questions from Amituana'i went well beyond the scope of the questions. Under these facts, we do not believe that Uli was “in custody” for Miranda purposes.
Although we could end our inquiry here, we also do not believe Uli was interrogated by Amituana'i. In Rhode Island v. Innis, 446 U.S. 297 (1980), the United States Supreme Court specifically addressed the meaning of “interrogation” in the Miranda context. The Court noted that,
the tenn “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.
Id. at 308 (footnotes omitted). Amituana'i testified that he did not intend to conduct an investigation. His purpose was to engage in casual conversation and to satisfy his own curiosity. Uli’s answers to both questions went well beyond the scope of Amituana'i’s innocuous inquiries.
Uli’s “gratuitous, expletive, and candid reply to the query cannot be characterized as one induced by any form of proscribed intimidation. At best the question and the answer were the products of [njormal, human, *132and spontaneous curiosity.” State v. Davis, 157 N.W.2d 907, 911 (Iowa 1968) (quoting State v. Persinger, 433 P.2d 867, 868 (Wash. 1967)). In this case, we do not believe the questions posed (or the manner in which they were posed) by Amituana'i created the sort of custodial interrogation contemplated by the Miranda court.5 See, e.g., People v. Taylor, 766 N.Y.S.2d 266, 268 (N.Y. App. NY 2003) (“Finding that [the detective’s] communications were not intended or anticipated to evoke inculpatory declarations, we reiterate the established principle that the police are not required to silence [a] chatterbox.”) (citations omitted, alteration in original); People v. Johnson, 30 P.3d 718, 724 (Colo. Ct. App. 2000) (“[Considering the totality of the circumstances, the challenged statements were not the product of an interrogation because they were not elicited by words or actions that the officer should have known were reasonably likely to elicit an incriminating response. Further, the encounter was brief and was entirely devoid of the inherently coercive interrogation practices that Miranda and its progeny traditionally have sought to address.”) (citations omitted). As such, we will not suppress the TCF Statements under the Fifth Amendment.
Since we find that the TCF Statements should not be suppressed under the Fifth Amendment, we now turn to the question of whether the statements should be suppressed under the Sixth Amendment. The United States Supreme Court recently said “that an accused is denied ‘the basic protections’ of the Sixth Amendment ‘when there [is] used against him at his trial evidence of his own incriminating words, which federal agents . . . deliberately elicited from him after he had been indicted and in the absence of his counsel.’” Fellers, 124 S.Ct. at 1022 (quoting Massiah v. United States, 377 U.S. 201, 206 (1964)) (alterations in original). Therefore, we must determine whether Amituana'i “deliberately elicited” the TCF Statements from Uli in violation of the Sixth Amendment.
In Bey v. Morton, 124 F.3d 524 (3rd Cir. 1997), the defendant moved to suppress under the Sixth Amendment incriminating statements he made to a corrections officer while incarcerated. Id. at 527. The corrections officer testified that he had several conversations with the defendant and that during some of these conversations the defendant relayed information about the crimes. Id. at 526. The trial judge found that the corrections officer “never set out to gain information from [the defendant] in the capacity of being a corrections officer; that they were talking, as he described it, man to man.” Id.
*133In distinguishing Bey from Massiah and its progeny, the Bey court noted that “[t]he critical distinction ... is that [the corrections officer], while a state actor, was not a state actor deliberately engaged in trying to secure information from the defendant for use in connection with the prosecution that was the subject matter of counsel’s representation.” Id. at 531. In making its determination the Bey court further noted,
[The corrections officer] was known by Bey to be an employee of the state, not a fellow inmate or confederate. While the circumstances were such that [the corrections officer] should have anticipated that Bey would converse freely with him, given [the corrections officer’s] status as a guard and the fact that he did little, if anything, to draw Bey out on the subject of his crimes, we question whether [the corrections officer] should have anticipated the confession which Bey volunteered. But even if we assume elicitation on [the corrections officer’s] part, the undisputed facts do not support the hypothesis that [the corrections officer] intended to elicit information for use against Bey. First, [the corrections officer] had no responsibility for eliciting or reporting infonnation for use in the prosecution of Bey’s case and was not working with anyone who had such responsibility. Second, and most importantly, [the corrections officer] did not behave like someone who intended to secure incriminating statements from Bey.
Id. We believe Amituana'i’s conversations with Uli are similar to those between the corrections officer and the defendant in Bey. Amituana'i testified that he was not directed to question Uli, that he frequently has conversations with inmates at TCF, and that he asked Uli the question about Ma'a to satisfy his own curiosity. Amituana'i testified that he did not write down Uli’s statements from the first conversation immediately, and that he did not tell detectives about this conversation until after Uli’s first case had been dismissed.6 Moreover, Uli made statements Amituana'i could not have anticipated Uli would make in response to the two questions he asked. Under these specific circumstances, Amituana'i was not “deliberately eliciting” incriminating information from Uli to later use against him. Thus, we decline to suppress Uli’s statements under the Sixth Amendment.
II. Motion to Disclose Aggravating Factors
Uli seeks an order requiring the government to disclose any aggravating factors it may use at his trial in the event the government seeks the death *134penalty. In response, the government stated at hearing that it does not intend to seek the death penalty. As such, Uli’s counsel agreed at the hearing that this motion is unnecessary.
III. Motion to Inspect Videotaped Recordings
Uli seeks to inspect videotaped recordings that are currently in the possession of the government. These recordings are of witness interviews as well as of the crime scene. The government counters that if it plans to enter the scene reconstruction video into evidence, it will give defense counsel a copy. The government also acknowledged its ongoing duty to turn over any Brady material to defense counsel. See Brady v. Maryland, 373 U.S. 83 (1963).
We are satisfied that the government is well aware of its duty to turn over Brady material to defense counsel. In addition, with respect to the videotape of the scene reconstruction, we assume, and expect, that the government will be true to its in-court representation and will give defense counsel a copy of the videotape if it intends to use it as evidence at trial.
With respect to the videotape of potential witness statements, we reiterate that we expect the government to comply with its obligations under Brady. However, absent Brady material, we will not order the pretrial production of this videotape. T.C.R.Cr.P. 16(a)(2) (“[T]his rule does not authorize the discovery ... of statements made by government witnesses or prospective government witnesses.”). We do note that the govermnent’s position at the hearing was unclear on whether or not the videotapes contain Brady material. Accordingly, we order the government to respond in writing to Uli’s request for Brady material from the videotapes. If, indeed, the government contends that the videotapes do not contain Brady material, Uli may renew his motion for an in camera review of the videotapes, and we will consider at that túne whether an in camera review is appropriate. See, e.g., State v. Craft, 776 N.E.2d 546, 549-50 (Ohio Ct. App. 2002); State v. Marco, 577 So.2d 328, 329-330 (La. Ct. App. 1991). In the meantime, we remind the parties that “[a]s a matter of policy, this court encourages opposing counsel to cooperate with one another, whenever possible, to facilitate fair and orderly criminal proceedings.” American Samoa Gov't v. Solaita, 27 A.S.R.2d 9, 15 (Trial Div. 1994).
IV. Motion to Extend Time
Uli requests an extension of time in order to file additional pre-trial motions. We grant this motion.
*135Order
The motion to suppress Uli’s CPS and TCF Statements is denied. Uli’s motion to inspect videotaped recordings is denied; however, the government should respond to Uli in writing and address whether the videotapes contain Brady material. Uli’s motion to extend time for the filing of pre-trial motions is granted.
It is so ordered.
At some point, another officer, Mike Fuiava, was present in the room.
Uli’s testimony differs from Fuifatu’s testimony about how and when he requested an attorney. Uli testified that he clearly requested an attorney prior to being questioned by the officers and again during the interview. We believe Fuifatu’s testimony of the events to be more credible.
To the extent Uli is arguing that his CPS Statements should be suppressed because they were given in violation of his Sixth Amendment right to counsel, he is incorrect. The Sixth Amendment right to an attorney attaches “at or after the initiation of adversary judicial criminal proceedings— whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Ill, 406 U.S. 682, 689 (1972); see also Fellers v. U.S., 124 S.Ct. 1019, 1022 (2004). Accordingly, at the time of the CPS Statements, Uli’s Sixth Amendment right to counsel had not attached.
Amituana'i has been reassigned and is no longer working at TCF.
Although we do not find that Amituana'i interrogated Uli as contemplated under Miranda and Innis, we do not encourage officers to engage in these sorts of conversations with the inmates at TCF.
See American Samoa Gov’t, v. Uli, CR No. 71-02 (Trial Div. 2003). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486841/ | ORDER ON MOTIONS FOR BILL OF PARTICULARS AND DISMISSAL
Defendant Don Fuimaono (“Fuimaono”) is charged with Felony Stealing in violation of A.S.C.A. § 46.4103 and with Deceptive Business Practices in violation of A.S.C.A. § 46.4120(a)(5). Fuimaono now moves for a bill of particulars and also moves to dismiss the charges against him. For the following reasons, Fuimaono’s motions are denied.
I. Bill of Particulars
On February 26, 2004, Fuimaono moved for a bill of particulars. Defendant did not cite to any legal authority in his motion. According to T.C.R.Cr.P. 7(f),
*137Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or -within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.
(emphasis supplied). As an initial matter, Fuimaono was arraigned on November 3, 2003. He did not move for a bill of particulars before or within ten days of his arraignment but, rather, waited until nearly four months after his arraignment to move for a bill of particulars. In his motion, he did not seek leave to file a motion for a bill of particulars or ask the court’s pennission to deviate from Rule 7(f)’s time requirement. We could refuse to entertain the motion on this basis. However, we will address the merits of his motion.1
Fuimaono specifically requests “the details and particulars of Counts One and Two, such as times, dates, places, actions, transactions, correspondence, statements, etc. with Defendant as alleged.” (Def.’s Mot. at 1.) His attorney states that the bill of particulars is “necessary to enable Defendant to adequately prepare for trial” and “to avoid surprise at trial, and to insure a trial on the merits.” {Id. at 2.)
We have said before,
[s]o long as the defendant has enough information to adequately prepare for his defense, to avoid surprise at trial and to protect against [sic] him against a second prosecution for an inadequately described offense, a bill of particulars is not required.
American Samoa Gov’t v. Meleisea, 24 A.S.R.2d 32, 34 (Trial Div. 1993) (citations omitted); see also American Samoa Gov’t v. Wilson, 24 A.S.R.2d 26, 29 (Trial Div. 1993) (same). Moreover, “[defendants are not entitled to know the specific dates, times, places, and persons present at particular events.” U.S. v. Dumeisi, No. 03 CR 664-1 (N.D. Ill. Nov. 20, 2003) (order denying motion for bill of particulars) (citations omitted, alteration in original); see also Meleisea, 24 A.S.R.2d at 34 (noting “[bjills of particulars are not to be used as a discovery tool by the defendant”) (citations omitted).
A number of exhibits were presented by the government at Fuimaono’s preliminary exam. We believe that the Information, along with the other *138information already made known to Fuimaono by the government, adequately informs Fuimaono of the charges against him. Accordingly, Fuimaono’s motion for a bill of particulars is denied.
II. Motion to Dismiss
Fuimaono brings his motion to dismiss claiming: (1) the complaint fails to state a claim; (2) this matter is a contractual dispute, not a criminal matter; (3) his actions do not fall within the statutes; and (4) he is being selectively prosecuted.
A. Failure to State a Claim
Fuimaono seeks dismissal of the Information because he claims it fails to state the ‘“essential facts’ constituting the offense charged.” (Def.’s Mot. to Dismiss at 1.)
That a criminal charge is couched in the language of the statute, is not, of itself, grounds for the dismissal of an information. It is settled law that an information using only statutory language is quite permissible as long as the statute sets forth fully, directly and expressly, without any uncertainty or ambiguity,... all the elements necessary to constitute the offence intended to be punished.
American Samoa Gov’t v. Afamasaga, 17 A.S.R.2d 145, 149-50 (Trial Div. 1990) (citations omitted, alteration in original). As presented in his motion, Fuimaono is only challenging the lack of “essential facts” and is complaining that the charges merely track the statutes. (Def.’s Mot. to Dismiss at 1.) The Information is sufficient in this regard. Thus, as presented, Fuimaono’s motion to dismiss the charges for a failure to include “essential facts” is denied.2
B. Contract v. Crime: Actions Within Statute
In support of his second and third reasons for the dismissal of the charges against him, Fuimaono essentially argues that the underlying *139facts do not demonstrate violations of the law. (Def.’s Mot. to Dismiss at 1-2.) The government responds by arguing that these factual issues should be resolved at trial. (Pl.’s Resp. at 2-3.) We agree with the government.
“Motions to dismiss, before trial, directed to the sufficiency of the evidence, are improper.” State v. Houser, 622 N.E.2d 987, 988 (Ind. Ct. App. 1994) (citations omitted). Indeed, “the purpose of a motion to dismiss is to test the sufficiency of the information or indictment. It is not a device for summary trial of the evidence, and facts not appearing on the face of the information cannot be considered.” State v. Davenport, 536 N.W.2d 686, 689 (N.D. 1995) (citations omitted). In determining a motion to dismiss under Rule 12, “the court must accept all factual allegations in the [Information] as true.” U.S. v. Bicoastal Corp., 819 F. Supp. 156, 158 (N.D.N.Y. 1993). In this case, the charges, as alleged in the Information, are sufficient to withstand Fuimaono’s motion to dismiss. See discussion supra. We find Fuimaono’s second and third arguments for the dismissal of the charges against him lack merit.
C. Selective Prosecution
Fuimaono contends that he is being selectively prosecuted by the government. In support of his contention, he suggests that “many employees of Plaintiff have admitted under oath to ‘taking’ School Lunch property for personal use” but have not been charged with stealing. (Def.’s Mot. to Dismiss at 3 (emphasis omitted).) He also claims that the government’s prosecution of him is motivated by a discriminatory purpose: “Plaintiff is swayed by its employees’ prejudices against Defendant and his way of doing business.” (Id. at 4.) The government responds that several of the individuals listed in Fuimaono’s motion “have been charged and others remain under investigation.” (Pl.’s Resp. at 4.) Additionally, the government claims “there is no evidence to show that there were any prejudices by the Plaintiff which altered its approach to this case.” Id.
In Wayte v. U.S., 470 U.S. 598 (1985), the United States Supreme Court noted,
In our criminal justice system, the Government retains broad discretion as to whom to prosecute. [S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file ..., generally rests entirely in his discretion. This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.
*140Id at 607 (citations omitted, alteration in original). However, the Court also noted that this discretion is not unlimited and “the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Id. at 608 (citations omitted). Thus, in order to establish a claim for selective prosecution, “a defendant must show that others similarly situated have not been prosecuted and that the prosecution is based on an impermissible motive.” U.S. v. Wayte, 710 F.2d 1385, 1387 (9th Cir 1983), aff'd, 470 U.S. 598 (1985) (emphasis added).
Fuimaono’s contention that the government’s prosecution of him is discriminatory against his way of doing business is simply not the sort of “impermissible motive” or “unjustifiable standard” that establishes a claim for selective prosecution. Indeed, Defendant’s arguments fall far short of establishing a claim of selective prosecution. This argument has no merit, and Fuimaono’s motion to dismiss for selective prosecution is denied.
Order
Fuimaono’s motion for a bill of particulars is denied. Fuimaono’s motion to dismiss is denied.
It is so ordered.
We also note that although the government responded to Fuimaono’s motion to dismiss, it failed to file a written response to this motion.
However, we note that Count I of the Information does not comply with the District Court’s November 1,2003 Order Binding Defendant to Answer in the High Court for felony stealing. Although not argued by defense counsel in Defendant’s Motion to Dismiss, Count I of the Information only charges Fuimaono with misdemeanor stealing and fails to charge any of the statutory elements under A.S.C.A. § 46.4103(b) that would elevate Count I to a felony. Unless an appropriate motion, addressing this apparent discrepancy, is filed within ten days of the entry of this order, this case may be transferred to the District Court. See A.S.C.A. § 46.0602. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482309/ | Case: 22-163 Document: 24 Page: 1 Filed: 11/08/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: APPLE INC.,
Petitioner
______________________
2022-163
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:21-
cv-00620-ADA, Judge Alan D. Albright.
______________________
ON PETITION AND MOTION
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
REYNA, Circuit Judge.
ORDER
Apple Inc. petitions this court for a writ of mandamus
directing the United States District Court for the Western
District of Texas to vacate its scheduling order, promptly
rule on Apple’s pending transfer motion, and stay all pro-
ceedings on the merits until transfer is resolved. Apple
also moves for this court to stay the district court proceed-
ings pending resolution of Apple’s petition. XR Communi-
cations, LLC opposes the petition and the motion.
In another Order issued today, we granted Apple’s pe-
tition to vacate a similar scheduling order on the ground
Case: 22-163 Document: 24 Page: 2 Filed: 11/08/2022
2 IN RE: APPLE INC.
that it was a clear abuse of discretion to force the parties to
expend additional resources litigating substantive matters,
until the completion of fact discovery, and re-briefing while
Apple’s motion lingered unnecessarily on the docket, par-
ticularly when there were readily available, less time-con-
suming, and more cost-effective means for the court to
resolve the motion. In re Apple Inc., 2022-162 (Fed. Cir.
Nov. 8, 2022). We deem it the proper course here to vacate
the district court’s scheduling order and for the district
court to reconsider its decision in light of our reasoning in
No. 2022-162.
Accordingly,
IT IS ORDERED THAT:
The petition and motion are granted to the extent that
the district court’s scheduling order is vacated, and the
case is remanded for further proceedings consistent with
this Order.
FOR THE COURT
November 8, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482306/ | USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13701
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN HARDY,
JEROME SIMMONS,
Defendants- Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:17-cr-60119-KAM-2
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 2 of 14
2 Opinion of the Court 21-13701
____________________
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
In these consolidated appeals, Adrian Hardy and Jerome
Simmons challenge the sentences they received upon resentencing
for crimes arising from armed robberies of four jewelry stores in
Florida and Georgia in March and April of 2017. After careful re-
view, we affirm.
After a jury trial, Hardy was convicted of one count of con-
spiracy to commit Hobbs Act robbery and one count of Hobbs Act
robbery, see 18 U.S.C. § 1951(a), two counts of brandishing a fire-
arm in furtherance of a crime of violence, see 18 U.S.C.
§ 924(c)(1)(A), and four counts of kidnapping, see 18 U.S.C.
§ 1201(a)(1). He was originally sentenced to concurrent terms of
312 months on the robbery and kidnapping counts, plus consecu-
tive terms of 84 months each for the brandishing counts, for a total
of 480 months of imprisonment. In Hardy’s first appeal, we va-
cated one of his § 924(c) convictions because it was based on kid-
napping, which does not qualify as a crime of violence under
§ 924(c), and we remanded to the district court for resentencing
without that conviction. United States v. Simmons, 847 F. App’x
589, 593 (11th Cir. 2021). On remand, the district court imposed a
total sentence of 432 months, reducing Hardy’s overall sentence to
account for his “successful[] appeal[] [of] his sentence,” though not
to the full extent Hardy requested.
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 3 of 14
21-13701 Opinion of the Court 3
For his part, the jury convicted Simmons of one count of
conspiracy to commit Hobbs Act robbery and two counts of Hobbs
Act robbery, see id. § 1951(a), as well as two counts of brandishing
a firearm in furtherance of a crime of violence, see id.
§ 924(c)(1)(A). He was originally sentenced to life imprisonment.
On appeal, we held that the district court erred in enhancing his
sentence under the career-offender guideline, U.S.S.G. § 4B1.1, and
the “three-strikes” law, 18 U.S.C. § 3559(c), and we vacated and re-
manded for resentencing. See Simmons, 847 F. App’x at 594–95.
On remand, the court recalculated the guideline range and applied
enhancements for use of a firearm, abduction, and carjacking,
among others. See U.S.S.G. §§ 2B3.1(b)(2)(B), (4)(A) & (5).
Hardy appeals his sentence on the ground that the district
court violated his due-process right to a resentencing free of vindic-
tiveness by not reducing his sentence by the full 84 months previ-
ously imposed for the vacated § 924(c) conviction. Simmons ap-
peals the district court’s application of the abduction, carjacking,
and firearm enhancements, arguing that the court improperly re-
lied on coconspirator conduct not relevant to his offenses and also
double counted certain conduct. 1
1 Both defendants also argue that Hobbs Act robbery does not qualify as a
crime of violence for purposes of 18 U.S.C. § 924(c). We rejected this same
argument in their first appeal, see Simmons, 847 F. App’x at 593, so that deci-
sion is law of the case here. See United States v. Anderson, 772 F.3d 662, 668
(11th Cir. 2014) (under the law-of-the-case doctrine, an issue decided at one
stage of a case is binding at later stages of the same case). Nor has any change
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 4 of 14
4 Opinion of the Court 21-13701
I.
We start with Hardy’s challenge to his sentence on the
ground that it was unconstitutionally vindictive. We review de
novo whether a sentence was unconstitutionally vindictive.2
United States v. Mathurin, 868 F.3d 921, 931 (11th Cir. 2017).
On resentencing, a district court is free to unbundle the en-
tire “sentencing package” and resentence a defendant anew as to
the surviving counts of conviction. United States v. Fowler, 749
F.3d 1010, 1015–16 (11th Cir. 2014). “The thinking is that when a
conviction on one or more of the component counts is vacated for
good, the district court should be free to reconstruct the sentencing
package (even if there is only one sentence left in the package) to
ensure that the overall sentence remains consistent with the guide-
lines, the § 3553(a) factors, and the court’s view concerning the
proper sentence in light of all the circumstances.” Id. This Court’s
vacatur of a sentence “wipes the slate clean” and generally requires
in the law has occurred since that appeal, so we remain bound by our prece-
dent, which holds that Hobbs Act robbery constitutes a crime of violence for
purposes of § 924(c). See United States v. Eason, 953 F.3d 1184, 1191 (11th Cir.
2020) (noting our precedent “that Hobbs Act robbery satisfies the elements
clause in 18 U.S.C. § 924(c)”).
2 The government says that we review for plain error, despite Hardy’s objec-
tion to the district court’s failure to “take off the full 84” at resentencing, be-
cause he did not articulate the objection in terms of due process or vindictive-
ness. We need not resolve this issue because we agree with the government
that his argument fails even under de novo review.
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 5 of 14
21-13701 Opinion of the Court 5
the district court to conduct “a resentencing as if no initial sentenc-
ing ever occurred.” United States v. Burke, 863 F.3d 1355, 1359
(11th Cir. 2017).
Nevertheless, a district court’s wide discretion at resentenc-
ing must not be exercised with the purpose of punishing a success-
ful appeal. Alabama v. Smith, 490 U.S. 794, 798 (1989). That is, due
process “requires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in the
sentence he receives after a new trial.” North Carolina v. Pearce,
395 U.S. 711, 725 (1969), holding modified by Smith, 490 U.S. at
798–99.
Under Pearce, a presumption of vindictiveness at resentenc-
ing arises if two conditions are present: (1) the sentencing judge
“imposes a more severe sentence”; and (2) no non-vindictive rea-
sons for doing so “affirmatively appear” in the record. Fowler, 749
F.3d at 1019 (quoting Pearce, 395 U.S. at 726). For the first inquiry,
we apply the “aggregate package approach,” comparing the de-
fendant’s new total aggregate sentence to his old one. Id. at 1023.
So long as the new total sentence is less than the old total sentence,
no presumption of vindictiveness arises. See id.
Where the presumption of vindictiveness does not apply,
the defendant must affirmatively prove actual vindictiveness. Ma-
thurin, 868 F.3d at 937; see Wasman v. United States, 468 U.S. 559,
569 (1984). We have held that a defendant failed to show actual
vindictiveness where he offered “no reason to doubt the judge’s
stated [non-vindictive] rationale” for imposing the sentence, and
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 6 of 14
6 Opinion of the Court 21-13701
there was “no evidence to suggest it was in any way vindictive.”
Mathurin, 868 F.3d at 937.
Here, Hardy has not shown that he was resentenced based
on an impermissible vindictive motive. He acknowledges that vin-
dictiveness cannot be presumed here because the district court re-
duced the length of his overall sentence—from 480 to 432 months.
See Fowler, 749 F.3d at 1023. And nothing in the record suggests
that the sentence was imposed for the purpose of punishing him
for his successful appeal.
On the contrary, the district court expressly recognized that
Hardy deserved a reduction in his overall sentence for his success-
ful appeal, and it reduced his total sentence by 48 months. Yet the
court explained that, in its view, a more “significant sentence” than
requested by Hardy was “warranted under the facts of the case”
and the § 3553(a) factors, which it discussed in detail. [Doc. 456 at
33–37] The court noted that, in originally sentencing Hardy, it had
lowered the sentence on the non-brandishing counts to account for
the “extra 84 months tagged on to his [g]uideline range.” [Id. at 37]
These comments show that the court viewed the original sentence
as a “package sentence,” which it was entitled to reconsider once
the § 924(c) conviction and 84-month consecutive sentence were
vacated. See Fowler, 749 F.3d at 1017–18, 1023. Hardy has offered
no reason to doubt the court’s stated non-vindictive rationale, nor
is there any evidence to suggest that the court’s decision was in any
way vindictive. See Mathurin, 868 F.3d at 937.
Accordingly, we affirm Hardy’s sentence.
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 7 of 14
21-13701 Opinion of the Court 7
II.
Simmons challenges the district court’s recalculation of his
guideline range at resentencing. Simmons contends that the court
erred in applying enhancements for abduction and carjacking based
solely on a coconspirator’s conduct after escaping from the imme-
diate area of the robbery and after Simmons was apprehended. He
also says that the court engaged in impermissible double counting
when it applied a firearm enhancement based on conduct which,
in his view, formed the basis for his § 924(c) convictions. We con-
sider each argument in turn.
A.
“Whether a co-conspirator’s act was reasonably foreseeable
to the defendant so that it qualifies as relevant conduct is a question
of fact reviewed for clear error.” United States v. Valarezo-Orobio,
635 F.3d 1261, 1264 (11th Cir. 2011). When applying clear-error
review, we will affirm the district court unless we are convinced
that it made a mistake. United States v. Gordillo, 920 F.3d 1292,
1297 (11th Cir. 2019). There is “no clear error in cases in which the
record supports the district court’s findings.” United States v. Pe-
trie, 302 F.3d 1280, 1290 (11th Cir. 2002).
For robbery offenses, a four-level increase to the defendant’s
offense level applies “[i]f any person was abducted to facilitate com-
mission of the offense or to facilitate escape.” U.S.S.G.
§ 2B3.1(b)(4)(A). A two-level increase applies if the offense in-
volved carjacking. Id. § 2B3.1(b)(5). The government has the
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 8 of 14
8 Opinion of the Court 21-13701
burden of introducing “sufficient and reliable evidence” to prove
the facts necessary to support a challenged sentencing enhance-
ment by a preponderance of the evidence. United States v. Grady,
18 F.4th 1275, 1291–92 (11th Cir. 2021), cert. denied, 142 S. Ct. 2871
(2022).
When calculating the guideline range, the district court may
rely on “all relevant conduct,” not just charged conduct. United
States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir. 2014) (quotation
marks omitted). In the case of jointly undertaken criminal activity,
relevant conduct includes “all acts and omissions of others that
were (i) within the scope of the jointly undertaken criminal activ-
ity, (ii) in furtherance of that criminal activity, and (iii) reasonably
foreseeable in connection with that criminal activity,” whether
those acts occurred in preparation for the offense, during its com-
mission, or to avoid detection or responsibility. U.S.S.G.
§ 1B1.3(a)(1)(B). All three prongs must be met to be included as
relevant conduct. Id. § 1B1.3, cmt. n.3(A). In applying this test, we
first determine the “scope of criminal activity the defendant agreed
to jointly undertake.” Grady, 18 F.4th at 1292 (quotation marks
omitted). Then, we must “consider all reasonably foreseeable acts
and omissions of others in the jointly undertaken criminal activity.”
Id. (quotation marks omitted).
1.
The record shows that, on April 13, 2017, Simmons, Hardy,
and a coconspirator entered the LSO Jewelers and Repair store
armed with firearms, locked the door, ordered employees to the
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 9 of 14
21-13701 Opinion of the Court 9
ground at gunpoint, and began ransacking the store. The gunmen
communicated by walkie-talkie with another coconspirator, Chris-
topher Brinson, who was waiting outside in a car ready to act as
the getaway driver. After about ten minutes, Brinson notified the
robbers that the police had arrived—an off-duty officer had noticed
the men enter the store and called the police. Upon seeing the po-
lice out front, the robbers dropped the merchandise and fled out
the back, going separate directions. Simmons was found hiding in
a nearby parking lot. Hardy made it farther, escaping the perimeter
established by law enforcement and forcibly entering a nearby res-
idence, where he held the four individuals inside hostage while he
planned his escape, all the while checking for police outside. He
then forced the victims to drive him from Port Saint Lucie to Fort
Lauderdale in their vehicle.
The district court ruled that Hardy’s conduct of abducting
the victims and commandeering their car during escape from the
robbery could be attributed to Simmons as the reasonably foresee-
able conduct of a coconspirator in furtherance of the robbery. In
the court’s view, the jointly undertaken criminal activity included
“escape with whatever means were reasonably available to them,”
and that it was reasonably foreseeable that a coconspirator escap-
ing from an armed robbery upon detection by police would “en-
gage in other criminal conduct in order to effectuate [his] escape.”
Accordingly, it applied the four-level abduction enhancement,
U.S.S.G. § 2B3.1(b)(4)(A), and the two-level carjacking enhance-
ment, id. § 2B3.1(b)(5).
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 10 of 14
10 Opinion of the Court 21-13701
2.
Here, the district court did not clearly err in attributing
Hardy’s abduction and carjacking conduct to Simmons as relevant
conduct for purposes of sentencing.
Our decision in United States v. Cover is instructive. In
Cover, as here, the defendant challenged the application of abduc-
tion and carjacking sentencing enhancements based on the conduct
of a conspirator during escape from an armed robbery. See 199
F.3d 1270, 1274–75 (11th Cir. 2000), superseded by regulation on
other grounds as noted in United States v. Diaz, 248 F.3d 1065, 1107
(11th Cir. 2001). Cover and two accomplices, armed with firearms,
took control of a bank by threats of violence, forcing fifteen victims
to lie on the floor. Id. at 1272. When police responded to a silent
alarm, Cover and one accomplice were apprehended attempting to
flee, while the other accomplice escaped by carjacking and kidnap-
ping a motorist at gunpoint outside the bank. Id. at 1273.
On appeal in Cover, we agreed with the district court that
the accomplice’s escape by means of carjacking and kidnapping
was reasonably foreseeable to Cover, given the surrounding cir-
cumstances, including the conspirators’ actions before the arrival
of police. Id. at 1274–75. We rejected the argument that the ab-
duction and carjacking were unforeseeable because it was not the
getaway the conspirators had planned: “The fact that the co-con-
spirators agreed to a plan that did not involve carjacking or abduc-
tion does not preclude the district court from finding that
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 11 of 14
21-13701 Opinion of the Court 11
carjacking and abduction were reasonably foreseeable if ‘the origi-
nal plan went awry’ and the police became involved.” Id. at 1275.
Here, the record supports the district court’s ruling that
Hardy’s abduction and carjacking were reasonably foreseeable ac-
tions within the scope and in furtherance of the jointly undertaken
activity. That agreed-upon activity included an armed robbery
during which employees of the jewelry store were ordered to the
ground at gunpoint. While the conspirators’ getaway plans go
awry when police arrive, Simmons concedes, relevant conduct in
an armed robbery can include an accomplice’s resort to violence to
escape upon detection. See id. at 1274–75. And, given the robbers’
conduct preceding detection, the possibility of violence during es-
cape was plainly within the scope of the jointly undertaken activity
in this case.
True, the abduction and carjacking conduct in this case was
slightly more removed from the robbery than in Cover, where that
conduct occurred just outside the bank being robbed. The critical
question, then, is when the escape phase of the robbery ended. We
have recognized that “escape immediately following the taking is a
necessary phase of most violent bank robberies.” United States v.
Willis, 559 F.2d 443, 444 (5th Cir. 1977). In other words, the rob-
bery is not over “until the immediate removal phase comes to a
halt.” Id. To be more specific, “the escape continues so long as
flight occurs from the possibility of hot pursuit.” United States v.
Martin, 749 F.2d 1514, 1518 (11th Cir. 1985).
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 12 of 14
12 Opinion of the Court 21-13701
We cannot say it was a mistake to conclude that the imme-
diate escape from the robbery was still in progress when the abduc-
tion and carjacking here occurred. See Gordillo, 920 F.3d at 1297.
Although a close call, the record supports the view that Hardy en-
gaged in his conduct during flight from the possibility of hot pur-
suit, such that Hardy’s conduct was, as in Cover, sufficiently con-
nected to be considered part of the armed robbery itself. See Mar-
tin, 749 F.2d at 1518. We therefore affirm the application of the
abduction and carjacking enhancements. See U.S.S.G.
§ 2B3.1(b)(4) & (5).
B.
We review de novo a claim of impermissible double count-
ing. United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir. 2006).
“Impermissible double counting occurs only when one part of the
Guidelines is applied to increase a defendant’s punishment on ac-
count of a kind of harm that has already been fully accounted for
by application of another part of the Guidelines.” Id. at 1226–27
(quotation marks omitted).
The robbery guideline requires a six-level enhancement “if
a firearm was otherwise used” during the crime. U.S.S.G.
§ 2B3.1(b)(2)(B). When a defendant is convicted of a § 924(c) vio-
lation as well as the predicate crime of violence, however, the de-
fendant’s possession of a weapon cannot be used to enhance the
offense level of the predicate offense, to prevent double counting
the same conduct. United States v. Le, 256 F.3d 1229, 1239 (11th
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 13 of 14
21-13701 Opinion of the Court 13
Cir. 2001); United States v. Diaz, 248 F.3d 1065, 1107 (11th Cir.
2001).
But that rule against double counting does not apply when
a defendant “received weapons enhancements only in connection
with the robberies for which he did not receive 18 U.S.C. § 924(c)
convictions.” United States v. Pringle, 350 F.3d 1172, 1180–81 (11th
Cir. 2003). In other words, the rule does not bar enhancing a con-
spiracy sentence for a coconspirator’s use of a firearm during rob-
beries that did not form the basis of a defendant’s § 924(c) convic-
tion. Id. at 1179.
Here, the district court did not err in applying the six-level
enhancement for use of a firearm to Simmons’s conspiracy count.
The court specifically applied the enhancements in connection
with the Lily’s Jewelers and Bishop’s Jewelers robberies, for which
Simmons did not receive § 924(c) convictions. Under Pringle,
therefore, the enhancements did not amount to double counting,
even though the conspiracy count covered all four robberies. See
id. And contrary to Simmons’s arguments, the use of a firearm
during the Lily’s and Bishop’s robberies did not need to be alleged
in the indictment or found by a jury for purposes of the advisory
guideline range. See United States v. Charles, 757 F.3d 1222, 1225–
26 (11th Cir. 2014) (under an advisory guidelines scheme, a “district
court may continue to make guidelines calculations based upon ju-
dicial fact findings and may enhance a sentence—so long as its find-
ings do not increase the statutory maximum or minimum author-
ized by facts determined in a guilty plea or jury verdict”).
USCA11 Case: 21-13701 Date Filed: 11/08/2022 Page: 14 of 14
14 Opinion of the Court 21-13701
For these reasons, we affirm Simmons’s sentence.
AFFIRMED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482294/ | IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-706
No. COA21-774
Filed 1 November 2022
Cabarrus County, No. 08-CVD-4467
KATHERINE GLEDHILL CASH (McGEE), Plaintiff,
v.
MATTHEW CASH, Defendant.
Appeal by defendant from order entered 21 April 2021 by Judge Juanita Boger-
Allen in District Court, Cabarrus County. Heard in the Court of Appeals 23 August
2022.
Plumides, Romano & Johnson, P.C., by Richard B. Johnson, for defendant-
appellant.
No brief for plaintiff-appellee.
STROUD, Chief Judge.
¶1 Father Matthew Cash appeals from an order modifying child support to
Mother Katherine Cash (now McGee). Because the trial court had competent
evidence to support the challenged Findings of Facts and because it did not abuse its
discretion in imputing income to Father based on a determination he acted in bad
faith, we affirm.
I. Background
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
¶2 Mother and Father married in 2007, and they had a child born in 2008. Also
in 2008, they separated and were later divorced. On 10 December 2008, Mother filed
a Complaint seeking, inter alia, child support. In September 2011, Mother and
Father entered a “Child Support Consent Order.”1 In the consent order, Father was
ordered to pay Mother $50 per month in child support plus an additional $50 per
month towards $5,292 in child support arrears, and they were each to pay one half of
the child’s medical expenses with Mother covering the first $250 each year. At some
later point, the parties voluntarily and informally agreed Father would increase his
child support payments to $350 per month. Father continued making those payments
through the time the trial court entered the order on appeal, the “Amended Order for
Modification of Permanent Child Support” (hereinafter “Child Support Modification
Order”),2 which ruled on Mother’s motion for “Modification of Child Support and
Attorney Fees”3 filed 27 August 2020. (Capitalization altered.)
¶3 In the Modification Motion filed in August 2020, Mother alleged “there has
1 This is the first child support order in our record. While the record does not definitively
explain the long gap between the separation and Complaint in 2008 and the order in 2011,
child custody was not settled until 12 February 2010, which could account for at least part of
the delay since Mother was granted primary legal and physical custody.
2 A few days after entering an “Order for Modification of Permanent Child Support,” the trial
court entered an “Amended Order for Modification of Permanent Child Support.”
(Capitalization altered.) Since Father appeals from the Amended Order, i.e., the “Child
Support Modification Order,” we focus on that order.
3 The attorney fees portion of the motion is not at issue in this appeal. In the Child Support
Modification Order, the trial court explained Mother “did not offer any evidence to support
an award of attorney’s fees” and thus denied her request.
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been a substantial and material change in the circumstances since the” September
2011 order based on three grounds: the existing order was “more than three (3) years
old and there has been at least a 15% change in the amount owed under the North
Carolina Child Support Guidelines”; Mother had two children since entry of the
previous order; and Father’s “income has increased significantly.”
¶4 Father filed a “Financial Affidavit” on 22 January 2021 in which he indicated
he was employed by Huntley Brothers Company and made approximately $99,000 in
adjusted gross income in 2019 and a current monthly gross income of approximately
$9,800. (Capitalization altered.) Father had been employed with Huntley Brothers
“for seven or eight years.” On 12 March 2021—five days before the scheduled hearing
on Mother’s motion to modify child support—Father filed an “Amended Financial
Affidavit” indicating he had been laid off from Huntley Brothers and as a result his
monthly gross income was reduced to $0. (Capitalization altered.)
¶5 On 17 March 2021, the trial court held a hearing on Mother’s Modification
Motion. At the outset of the hearing, Mother’s attorney raised before the trial court
that Mother had not received updated income verification and financial information
from Father. Mother’s attorney argued “[t]his was an ongoing discovery issue”
because “it was all part of the Request for the Production of Documents” and the trial
court could “take that in consideration when rendering [its] judgment.” Father’s
attorney responded they had “provide[d] updated statements prior to the last time”
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the motion was scheduled for a hearing, in late January 2021. The trial court thanked
the parties and then moved on to ask about pretrial motions.
¶6 For the remainder of the hearing, three witnesses testified—Father, Mother,
and David Huntley, one of the owners of Huntley Brothers. Father testified about:
his current child support obligation; his previous employment with Huntley Brothers
and when the previous child support order was entered including his income during
those times; a masonry business he started in August 2020 including his recent jobs
for the business as well as the deposits, debits, withdrawals, checks, and balance of
the associated business banking account and credit card; and his plan to focus on his
own masonry business instead of seeking new employment. The discussion of his
time with Huntley Brothers included some questions about income verification
documents Father provided during discovery, and Father testified he had not
provided a 2020 W-2 or a paystub since 2020. Similarly, during the discussion of
Father’s masonry business, Mother’s attorney asked Father about discovery and
verification documents related to the business’s income and expenses, and Father
testified he had “been asked to provide everything” and “didn’t – haven’t just not done
it, just been asked.” Father later clarified he had not provided any relevant business
documents past November 2020.
¶7 Mother testified about: the previous child support order and amount as well as
her motion for modification; her income including supporting documentation and
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account statements; her family unit including her husband and other children; and
the costs and expenses for the parties’ child. David Huntley testified about how
Huntley Brothers laid off Father. On cross-examination, Mr. Huntley testified the
company laid off Father rather than offer him a reduced salary with a different
position because Mr. Huntley “know[s]” Father and did not think he would accept it.
Finally, at the hearing, the parties argued during closing argument about whether
the trial court could impute income to Father for the child support calculation based
on a determination he was acting in bad faith.
¶8 Following the hearing, the trial court entered its initial “Order for Modification
of Permanent Child Support” on 16 April 2021. (Capitalization altered.) The trial
court entered the “Amended Order for Modification of Permanent Child Support” (i.e.,
the Child Support Modification Order) on 21 April 2021. Father appeals from the
Child Support Modification Order, so we focus on that Order’s contents.
¶9 First, the trial court made Findings about the procedural history of the case
and jurisdiction, including the previous child support order and Mother’s
Modification Motion. It then found “there had been a substantial change in
circumstances affecting the welfare of the minor child, which warrants a modification
of child support,” for the three reasons listed in Mother’s Modification Motion; in
addition, Mother’s income had “increased substantially.” Next, the trial court made
Findings on Mother’s and Father’s income. As part of these Findings, the trial court
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found Father had “intentionally failed to comply” with requirements to provide
income verifications for his employment with Huntley Brothers or his masonry
business. The trial court also found Mr. Huntley’s testimony about how Father was
laid off was not “credible, especially in light of Father expressing that he has no
intention of looking for employment, filing for unemployment or applying for /taking
another position . . . .” As a result, the trial court rejected Father’s contention his
income was $0. Based on those facts, the trial court also determined Father acted in
“bad faith” and “deliberate[ly]” tried to “suppress[]” his income “to avoid or minimize
his child support obligation,” so it imputed income to him. Finally, the trial court
made Findings incorporating the appropriate worksheet from the North Carolina
Child Support Guidelines and modifying Father’s child support retroactive to 1
September 2020 with appropriate arrears.
¶ 10 The trial court then made Conclusions of Law on its jurisdiction, Father’s bad
faith and the resulting imputation of income, and the reasonableness of the child
support obligation that would begin 1 September 2020. As a result, the trial court
ordered Father pay approximately $1140 in child support each month beginning 1
September 2020 and lasting until the child “turns 18-years-old or graduates high
school, whichever is later.” The trial court also awarded arrears of $5,510 and set out
a payment schedule for the arrears of $363 per month and ordered him to pay a
portion of the child’s medical, dental, and counseling bills.
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¶ 11 On 20 May 2021, Father filed a written notice of appeal from the Child Support
Modification Order.
II. Analysis
¶ 12 “[C]hild support modification is a two-step process.” Harnett County ex rel. De
la Rosa v. De la Rosa, 240 N.C. App. 15, 23, 770 S.E.2d 106, 112 (2015) (quotations
and citation omitted). First, the trial court must “determine a substantial change of
circumstances has taken place.” Id. (quotations and citation omitted). Second, if a
substantial change has occurred, the court “calculate[s] the applicable amount of
support.” Id. (quotations and citation omitted). On appeal, Father does not challenge
the trial court’s Finding and Conclusion “there has been a substantial change in
circumstances affecting the welfare of the minor child, which warrants a modification
of child support.” Therefore, we focus on the trial court’s calculation of child support.
¶ 13 As this Court has previously explained
[N]ormally, a party’s ability to pay child support is
determined by that party’s income at the time the award is
made. However, capacity to earn may be the basis for an
award where the party deliberately depressed his income
or deliberately acted in disregard of his obligation to
provide support. Before earning capacity may be used as
the basis of an award, there must be a showing that the
actions which reduced the party’s income were taken in bad
faith, to avoid family responsibilities.
Balawejder v. Balawejder, 216 N.C. App. 301, 312–13, 721 S.E.2d 679, 686 (2011)
(quoting Pataky v. Pataky, 160 N.C. App. 289, 306–07, 585 S.E.2d 404, 415–16 (2003),
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aff’d per curium, 359 N.C. 65, 602 S.E.2d 360 (2004) (quotations, citations, and
alterations in original block quotation omitted)); see also State ex rel. Williams v.
Williams, 179 N.C. App. 838, 840–41, 635 S.E.2d 495, 497 (2006) (“Capacity to earn,
however, may be the basis of an award [of child support] if it is based upon a proper
finding that the husband is deliberately depressing his income or indulging himself
in excessive spending because of a disregard of his marital obligation to provide
reasonable support for his wife and children.” (quoting Beall v. Beall, 290 N.C. 669,
673–74, 228 S.E.2d 407, 410 (1976)) (emphasis from original omitted)); North
Carolina Child Support Guidelines, AOC-A-162 (rev. 1 March, 2020) (hereinafter
“Child Support Guidelines”)4 (“If the court finds that the parent’s voluntary
unemployment or underemployment is the result of the parent’s bad faith or
deliberate suppression of income to avoid or minimize his or her child support
obligation, child support may be calculated based on the parent’s potential, rather
than actual, income.”). This Court also refers to the use of earning capacity to
determine a party’s child support obligation as “imputation of income.” See
Balawejder, 216 N.C. App. at 312, 721 S.E.2d at 686 (introducing the above block
quote as “the legal and factual bases for imputation of income for purposes of child
support”).
4 Available at: https://ncchildsupport.ncdhhs.gov/ecoa/cseGuideLineDetails.htm.
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¶ 14 Father’s appeal primarily focuses upon the trial court’s determination he was
acting in bad faith, and therefore the trial court could impute income to Father when
calculating child support. Within this broad argument, Father challenges several
Findings of Fact (10(c), 10(e), 11(f), 12, 13, and 14) supporting the trial court’s bad
faith determination as well as its ultimate decision to impute income to Father.
Father also argues one Finding (11(g) 5) unrelated to the bad faith determination “was
not supported by sufficient evidence.” We address the standard of review and then
review those arguments in turn.
A. Standard of Review
¶ 15 “The standard of review of a trial court’s determination of child support is
abuse of discretion.” State ex rel. Midgett v. Midgett, 199 N.C. App. 202, 205, 680
S.E.2d 876, 878 (2009) (citing Spicer v. Spicer, 168 N.C. App. 283, 287, 607 S.E.2d
678, 682 (2005)); see also Loosvelt v. Brown, 235 N.C. App. 88, 93, 760 S.E.2d 351,
354–55 (2014) (“Child support orders entered by a trial court are accorded substantial
deference by appellate courts and our review is limited to a determination of whether
there was a clear abuse of discretion.” (quoting Leary v. Leary, 152 N.C. App. 438,
5 The Finding Father labels and challenges as Finding 11(g) is actually the second Finding
labeled 11(f) in the Child Support Modification Order. Since Father also challenges the first
Finding labeled 11(f), we will continue to refer to the second Finding labeled 11(f) as Finding
11(g) to distinguish between the two. When we discuss the Findings below, we also quote
them from the record to ensure all interested parties and readers know which we are
discussing.
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441–42, 567 S.E.2d 834, 837 (2002) (alteration from original omitted))); Cauble v.
Cauble, 133 N.C. App. 390, 395, 515 S.E.2d 708, 712 (1999) (including same abuse of
discretion standard for the “amount of a trial court’s child support award”). Under
the abuse of discretion standard of review, “the trial court’s ruling will be upset only
upon a showing that it was so arbitrary that it could not have been the result of a
reasoned decision.” Loosvelt, 235 N.C. App. at 93, 760 S.E.2d at 354–55 (quoting
Leary, 152 N.C. App. at 441–42, 567 S.E.2d at 837).
¶ 16 Further, to ensure “the trial court correctly exercised its function to find the
facts and apply the law thereto,” we ensure “evidence . . . support[s] findings; findings
. . . support conclusions; [and] conclusions . . . support the judgment.” Midgett, 199
N.C. App. at 206, 680 S.E.2d at 878–79 (quoting Coble v. Coble, 300 N.C. 708, 714,
268 S.E.2d 185, 190 (1980)); see also Loosvelt, 235 N.C. App. at 98, 760 S.E.2d at 358
(“[W]e review the child support award to consider if the evidence supports the
findings of fact, the findings support the conclusions of law, and the conclusions
support the judgment.” (citing Atwell v. Atwell, 74 N.C. App. 231, 234, 328 S.E.2d 47,
49 (1985))). As pertinent to Father’s arguments on appeal, “this Court is bound by
the trial court’s findings where there is competent evidence to support them.” Cauble,
133 N.C. App. at 395–96, 515 S.E.2d at 712 (quotations, citations and alterations
omitted); see also Midgett, 199 N.C. App. at 206, 680 S.E.2d at 879 (“This Court’s
review of a trial court’s findings of fact is limited to whether there is competent
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evidence to support the findings of fact, despite the fact that different inferences may
be drawn from the evidence.” (quotations and citations omitted)). When an appellant
does not challenge the trial court’s findings of fact on appeal, they are binding. See
Loosvelt, 235 N.C. App. at 96, 760 S.E.2d at 356 (holding findings binding on appeal
after explaining they were not challenged).
B. Bad Faith and Imputation of Income
¶ 17 Turning to the merits of his appeal, Father primarily argues “the trial court
committed reversible error by finding [he] acted in bad-faith and then by imputing
income to [him].” (Capitalization altered.) The trial court determined Father acted
in “bad faith” and “deliberate[ly] suppress[ed]” his income “to avoid or minimize his
child support obligation” in two paragraphs included in both its Findings of Fact and
Conclusions of Law:
Father’s failure to provide the Court and the opposing
party with the most recent documentation of his income
from Huntley Brothers and his business and as a response
to discovery requests shows Father’s bad faith and a
deliberate suppression of income to avoid or minimize his
child support obligation. Further, Father’s intent to not file
for unemployment and not applying for/taking another
position at Huntley Brothers (of which he qualifies) or
another company while simultaneously alleging that he
has been laid off and has no current income shows Father’s
bad faith and a deliberate suppression of income to avoid
or minimize his child support obligation.
Father’s voluntary unemployment and/or
underemployment is the result of his bad faith or
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deliberate suppression of income to avoid or minimize his
child support obligation after March 12, 2021. A potential
income is imputed to Mr. Cash, such that he has the
capacity to earn at least $9,774.49 per month after March
12, 2021, as evidenced by his income with Huntley
Brothers.
¶ 18 Father challenges the trial court’s determination he acted in bad faith on both
the listed grounds, the failure to provide discovery and the circumstances
surrounding the end of his employment with Huntley Brothers. As part of his
challenge, Father also contends four Findings of Fact (10(e), 10(c), 11(f), and 12) that
underlie the bad faith determination are “not supported by the evidence.”6
(Capitalization altered.) We first address Father’s argument the Findings of Fact are
unsupported and then address his argument about the trial court’s overall bad faith
determination.
1. Challenges to Findings of Fact Related to Bad Faith
¶ 19 We first address Father’s challenge to Findings of Fact 10(e), 10(c), 11(f), and
12. Findings 10(e) and 12 both involve credibility determinations made by the trial
court. Finding 10(e) provides:
e. The court does not find the letter or Mr. Huntley’s
testimony to be credible, especially in light of Father
6 Father also challenges Findings 13 and 14, which are the two paragraphs included above
where the trial court explains why it determined Father acted in bad faith. Because those
Findings are actually Conclusions of Law, we will review them as such. See Walsh v. Jones,
263 N.C. App. 582, 589–90, 824 S.E.2d 129, 134 (2019) (“The labels ‘findings of fact’ and
‘conclusions of law’ employed by the trial court in a written order do not determine the nature
of our review.” (quotations, citation, and alterations omitted)).
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expressing that he has no intention of looking for
employment, filing for unemployment or applying for
/taking another position at Huntley Brothers (of which he
qualifies) or another company while simultaneously
arguing that the Court should find his income to be $0 for
the purpose of calculating child support. The court rejects
Father’s argument that his current income is $0.
Finding 12 states:
12. The North Carolina Guidelines require[] parties to
provide proof of current earnings, Father intentionally
failed to comply with this requirement.
Father’s challenge to both these Findings fail for the same reason: this Court does
not “determine de novo the weight and credibility to be given to evidence disclosed by
the record on appeal.” Craven County ex rel. Wooten v. Hageb, 277 N.C. App. 586,
2021-NCCOA-231, ¶ 14 (quoting Coble, 300 N.C. at 712–13, 268 S.E.2d at 189); see
also Loosvelt, 235 N.C. App. at 104–05, 760 S.E.2d at 361 (“[A]rguments about which
evidence should weigh more heavily are properly directed to the trial court, which
has the discretion to determine the credibility and the weight of the evidence.” (citing
Coble, 300 N.C. at 712–13, 268 S.E.2d at 189).
¶ 20 The other two challenged Findings, Findings 10(c) and 11(f), both concern
discovery and verification of Father’s income. Finding 10(c) provides:
c. Father was served with interrogatories and requests for
production of documents which included requests for
ongoing verification of his income; however, Father did not
provide a paystub from Huntley Brothers after the
December 31, 2020 paystub mentioned in the above
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paragraph nor did he present documentation of his income
from Huntley Brothers to the Court.
Finding 11(f) states:
f. Father was served with interrogatories and requests for
production of documents which included requests for
ongoing verification of his income. The last business
statement Father provided to the opposing side was for
November 2020. Approximately $15,000.00 was remaining
in Father’s business account at the close of November 2020.
Father offered no current documentation of his business
income and expenses at trial.
These Findings closely resemble each other with identical first sentences and then
similar remainders that focus on Father not providing the appropriate documents for
his income.
¶ 21 We can also address the challenges to these Findings similarly. For both
Finding 10(c) and 11(f), the first sentence is not (fully) supported by competent
evidence, but the remainder of the Findings is supported. The printed record on
appeal does not include any competent evidence concerning interrogatories and
requests for document production directed towards Father, only documentation for
such discovery items directed towards Mother, which was introduced into evidence at
the hearing.
¶ 22 Turning to the transcript, the clearest discussion of interrogatories or requests
for document production directed at Father came at the start of the hearing when the
trial court asked if the parties had exchanged documentation. Mother’s attorney said
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she had not received updated financial information from Father, which “was all part
of the Request for the Production of Documents” and an “ongoing discovery issue.” “It
is axiomatic that the arguments of counsel are not evidence.” Crews v. Paysour, 261
N.C. App. 557, 561, 821 S.E.2d 469, 472 (2018) (quotations, citation, and alteration
omitted); see also Blue v. Bhiro, 381 N.C. 1, 2022-NCSC-45, ¶ 12 (“[I]t is axiomatic
that the arguments of counsel are not evidence.” (quotations and citation omitted)).
¶ 23 The only other discussion of Father having an obligation to provide documents
came when they were discussing his business statements:
Q. All right. And do you recall having to produce
documents back last year sometime? I won’t ask you to tell
me the exact date.
A. Oh, yeah. Yeah, I think we’ve done it a couple times.
Q. Right. Where you came up with a bunch of documents?
A. Yes.
Q. Why did you not provide a December statement, Mr.
Cash?
A. I didn’t -- I didn’t really know that I didn’t do it. But I
can’t remember when -- when the last time we did the
discovery was.
Q. Okay. And you understand that you have an ongoing
obligation to provide updated statements, correct?
A. I mean, I -- if I’m asked, yeah. I didn’t -- like ---
Q. All right.
A. --- I’ve been asked to provide everything. I didn’t –
haven’t just not done it, just been asked.
While the discussion is not entirely clear, Father acknowledged he had “been asked
to provide everything,” referring back to the “ongoing obligation to provide updated
statements” but had “just not done it.” This testimony, then, supports that Father
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has an ongoing obligation to at least provide business statements, thereby at least
partially supporting the first sentence of Finding 11(f). Although Father
acknowledged he had been asked to provide financial information and he had failed
to provide all the information requested, he did not say whether this request came in
the form of interrogatories and a request for production or from the requirements of
the Child Support Guidelines and Local Rules. The record includes no evidence
Father was served with interrogatories and requests for production of documents, let
alone the specific questions seeking ongoing verification of his income, so the first
sentences of these Findings are not fully supported by competent evidence.
¶ 24 But Father was required to provide his income verification even if Mother had
not served interrogatories and requests for production for this information, thereby
blunting the impact of the lack of evidence that discovery requests required such
action. First, the Child Support Guidelines include the following requirements for
income verification:
Child support calculations under the guidelines are based
on the parents’ current incomes at the time the order is
entered. Income statements of the parents should be
verified through documentation of both current and past
income. Suitable documentation of current earnings (at
least one full month) includes pay stubs, employer
statements, or business receipts and expenses, if self-
employed. Documentation of current income must be
supplemented with copies of the most recent tax return to
provide verification of earnings over a longer period.
Sanctions may be imposed for failure to comply with this
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provision on the motion of a party or by the court on its own
motion.
Additionally, the Local Rules of Judicial District 19A on “Non-Jury Domestic
Relations” require parties to bring income verification documents to child support
hearings: “In all child support and post separation cases, both parties shall bring to
the hearing records of their earnings for the past two years including tax returns, pay
stubs, or other records.” Civil Rules of District Court of the 19A District Court
District, Rule 7.2 (last revised 3/04) (Capitalization altered.).7 Similarly, the
“Amended Financial Affidavit” Father filed 12 March 2021, a mere five days before
the hearing on the Modification Motion, directed Father to “attach to this affidavit
copies of the past two (2) months wage and earnings statements.” (Capitalization
altered.) Both of these provisions required Father to provide more updated
information than he did according to Findings 10(c) and 11(f)—pay stubs more recent
than 31 December 2020 and business statements more recent than November 2020.
¶ 25 The rest of these challenged Findings (10(c) and 11(f)) are supported by
competent evidence because Father did not provide additional documentation past
the dates listed in the Findings. Related to his income from the job with Huntley
Brothers, during questioning by Mother’s attorney, Father initially said he did not
7 These local rules are available at: https://www.nccourts.gov/assets/documents/local-rules-
forms/170.pdf.
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even have a pay stub as recent as December 2020 before later providing information
for his pay for the entire year of 2020, indicating they found the pay stub.8 Turning
to his business statements, Father testified he provided statements through
November 2020 but did “not presently” have any December 2020 or January or
February 2021 statements to “back up [his] testimony.” And he testified he had
approximately $15,000 in his business account as of the end of November, in line with
the last remaining part of Finding 11(f). Therefore, the remainder of the challenged
Findings on discovery issues are supported by competent evidence and are therefore
binding. Cauble, 133 N.C. App. at 395, 515 S.E.2d at 712.
¶ 26 Thus, even if the trial court incorrectly identified the specific mechanism by
which Father was required to provide these documents—discovery requests instead
of requirements of the Local Rules and Child Support Guidelines—its fundamental
point in Findings 10(c) and 11(f) was still correct. Father had an obligation to provide
additional documentation to support his income, but he failed to do so. Further, aside
from the first sentences, the trial court’s Findings that Father failed to provide
updated income verification documents for his job at Huntley Brothers and his own
business are supported by competent evidence.
8This testimony came when Father was reviewing Plaintiff’s Exhibit 19, which were his pay
stubs from Huntley Brothers. While this exhibit was admitted into evidence, it is not in the
record on appeal because it “can’t be located.” Therefore, we cannot additionally confirm,
beyond the testimony, the pay stubs Father provided by reviewing this exhibit.
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2. Bad Faith Determination
¶ 27 Turning to his challenge to the trial court’s bad faith determination overall,
Father first argues the trial court erred in determining he was acting in bad faith
based on the events surrounding the end of his employment with Huntley Brothers.
Father then asserts the trial court erred by concluding he “acted in bad faith by not
updating his discovery documents.” We review the trial court’s bad faith
determination for abuse of discretion; “the trial court’s ruling will be upset only upon
a showing that it was so arbitrary that it could not have been the result of a reasoned
decision.” Loosvelt, 235 N.C. App. at 93, 760 S.E.2d at 354–55.
¶ 28 As explained above, to impute income to a party, the trial court must determine
“the actions which reduced the party’s income were taken in bad faith, to avoid family
responsibilities.” Balawejder, 216 N.C. App. at 312, 721 S.E.2d at 686. When
considering whether to impute income to a party, the following factors support a
determination the party acted in bad faith:
(1) failing to exercise his reasonable capacity to earn, (2)
deliberately avoiding his family’s financial responsibilities,
(3) acting in deliberate disregard for his support
obligations, (4) refusing to seek or to accept gainful
employment, (5) willfully refusing to secure or take a job,
(6) deliberately not applying himself to his business, (7)
intentionally depressing his income to an artificial low, or
(8) intentionally leaving his employment to go into another
business.
Lueallen v. Lueallen, 249 N.C. App. 292, 312–13, 790 S.E.2d 690, 704 (2016) (quoting
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Mason v. Erwin, 157 N.C. App. 284, 288–89, 579 S.E.2d 120, 123 (2003)); see also Wolf
v. Wolf, 151 N.C. App. 523, 526–27, 566 S.E.2d 516, 518–19 (2002) (including same
list with citation to Bowes v. Bowes, 287 N.C. 163, 171–72, 214 S.E.2d 40, 45 (2002)).
¶ 29 The trial court’s bad faith reasoning based on the circumstances surrounding
Father leaving Huntley Brothers implicates factors (4) and (5) listed above. Father
refused to seek or accept gainful employment and willfully refused to find or take a
job based on the following unchallenged or supported Findings of Fact:
d. A letter from Chet Huntley, of Huntley Brothers was
received into evidence. In said letter, Mr. Huntley states
that Father was laid off as a Masonry Supervisor. Mr.
David Huntley testified on Father’s behalf and is a 25%
owner of Huntley Brothers and a good friend of Father.
David Huntley and Father socialized with each other at
least every other weekend. Mr. Huntley testified that
Father was laid off on March 12, 2021, which was less than
one (1) week prior to the hearing. Mr. Huntley admitted
that Father was the only employee laid off out of one
hundred and twenty (120) of Huntley Brothers employees.
During cross-examination, Mr. Huntley admitted that
Huntley Brothers was currently advertising for several
positions all of which Father was qualified. One of the
positions paid $50,000 per year. Mr. Huntley testified that
he did not offer Father a lower salary because he “knows”
Father and Father would not accept a lower salary. Mr.
Huntley testified that Father’s performance was not a
factor in the company’s decision to eliminate Father’s role.
Rather, Father’s position was eliminated due to the high
cost of Father’s supervisor salary and because Father was
the most recent supervisor hire.
e. The court does not find the letter or Mr. Huntley’s
testimony to be credible, especially in light of Father
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
expressing that he has no intention of looking for
employment, filing for unemployment or applying for
/taking another position at Huntley Brothers (of which he
qualifies) or another company while simultaneously
arguing that the Court should find his income to be $0 for
the purpose of calculating child support. The court rejects
Father’s argument that his current income is $0.
These Findings align with the trial court’s reasoning that Father’s “intent to not file
for unemployment and not applying for/taking another position at Huntley Brothers
(of which he qualifies) or another company while simultaneously alleging that he has
been laid off and has no current income shows Father’s bad faith.” The trial court
thus made a reasoned decision and therefore did not abuse its discretion. Loosvelt,
235 N.C. App. at 93, 760 S.E.2d at 354–55.
¶ 30 Father’s arguments on appeal otherwise are not persuasive. As to the trial
court’s determination that his claim to have zero income was not credible, Father
argues the trial court “could have disregarded his Amended Affidavit” and used his
business income rather than impute income to him since that was “why he was not
looking for a different employment.” First, this argument ignores the “substantial
deference” we give to trial courts in child support cases. Id., 235 N.C. App. at 93, 760
S.E.2d at 354. Assuming arguendo the trial court could have used Father’s business
income instead, we note Father failed to provide current documentation as to his
business income and expenses, as he was required to do by the Local Rules and Child
Support Guidelines. Child Support Guidelines; Civil Rules of District Court of the
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
19A District Court District, Rule 7.2. The trial court had the discretion to impute
income based upon the best information available regarding Father’s recent earnings
and employment information, and that information came from his employment with
Huntley Brothers. The trial court also noted it did not find Father’s claim of being
laid off immediately prior to the child support hearing credible and stated several
reasons for this credibility determination. Because the trial court made a reasoned
decision to impute income, we will not disturb this decision on appeal. On a more
fundamental level, Father cannot now claim the trial court should have ignored the
very Amended Affidavit he presented, and swore to the truth of via his verification,
on the eve of the hearing and instead ask the trial court to use his unsupported claims
as to his business income. Our courts have long held, “the law does not permit parties
to swap horses between courts in order to get a better mount.” Peters v. Pennington,
210 N.C. App. 1, 15, 707 S.E.2d 724, 734–35 (2011) (quoting Weil v. Herring, 207 N.C.
6, 10, 175 S.E. 836, 838 (1934)) (alterations from original omitted). We reject Father’s
new attempt on appeal to get a better mount by arguing the trial court should have
relied upon his business income.
¶ 31 Father also argues finding employment at the same level following an
“involuntar[y] la[y] off” was not required because “[t]he facts here are very similar to
the facts in” Sharpe v. Nobles, 127 N.C. App. 705, 493 S.E.2d 288 (1997). Father
misreads Sharpe. In Sharpe, the father was laid off from a position that paid $56,000
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
per year and then took positions that paid $46,000 and eventually $40,000 per year.
127 N.C. App. at 708–09, 493 S.E.2d at 290. While the trial court determined the
father acted in bad faith, this Court found merely “not look[ing] for work that would
pay him what he made before changing jobs” did not amount to bad faith. Id. Here,
by contrast, Father had not taken another job at all; the trial court found he “has no
intention of looking for employment . . . or applying for/ taking another position at
Huntley Brothers (of which he qualifies) or another company.” If Father had taken
the $50,000 per year position at Huntley Brothers, his situation might have
resembled that in Sharpe, but his own “good friend” testified Father “would not accept
a lower salary” in addition to Father’s own testimony on the matter. Therefore, the
trial court did not abuse its discretion in determining Father acted in bad faith and
could therefore have income imputed to him based on his failure to seek alternative
employment.
¶ 32 Turning to the trial court’s other ground for determining Father acted in bad
faith—his failure to provide relevant income verification documents—we need not
address this ground. See Lueallen, 249 N.C. App. at 313, 790 S.E.2d at 704
(emphasizing in response to party’s argument against one factor in the trial court’s
bad faith determination that “[t]he trial court identified other factors as well”). And
if we were to address this ground, the trial court still would not have abused its
discretion in determining Father acted in bad faith. The “dispositive issue” when
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
deciding whether to impute income “is whether a party is motivated by a desire to
avoid his reasonable support obligations.” Wolf, 151 N.C. App. at 527, 566 S.E.2d at
519. Failing to provide income verification as required provides some evidence a
party is intentionally seeking to avoid or minimize the child support obligation
because any hidden income will typically increase the amount of child support owed.
See Balawejder, 216 N.C. App. at 312, 721 S.E.2d at 686 (“Normally a party’s ability
to pay child support is determined by that party’s income at the time the award is
made.” (quotations, citations, and alterations omitted)); Child Support Guidelines
(“The Schedule of Basic Child Support Obligations is based upon net income
converted to gross annual income . . . .”).
¶ 33 This case is illustrative of exactly how that would happen. Here, Father filed
an Amended Financial Affidavit a week before trial indicating he had been laid off
and therefore his income was zero. But Father also had his own business that in the
past had provided additional income. By claiming in his Amended Affidavit his
income was zero and not providing documentation about his business, Father wanted
the trial court to accept his income was zero, which would lead to a lower child support
obligation than if he had some business income. This understanding implicit in the
trial court’s bad faith determination is not “so arbitrary that it could not have been
the result of a reasoned decision.” Loosvelt, 235 N.C. App. at 93, 760 S.E.2d at 355.
Therefore, the trial court did not abuse its discretion in determining Father acted in
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
bad faith based in part on Father’s failure to provide income verification, although as
we have already said the other ground for bad faith was sufficient on its own.
¶ 34 Father’s argument to the contrary is not persuasive. Father contends “[n]one
of the reasons cited in Wolf provide for a court to find a party acting in bad faith or
impute income based on a failure to provide discovery.” Father is correct none of the
eight reasons above, which originally came from Wolf, address discovery failures. See
Wolf, 151 N.C. App. at 526–27, 566 S.E.2d at 518–19 (listing eight factors recounted
above). But Wolf does not say those reasons are exclusive; it instead reiterates “[t]he
dispositive issue is whether a party is motivated by a desire to avoid his reasonable
support obligations.” Id., 151 N.C. App. at 527, 566 S.E.2d at 519. And Father cites
no other caselaw indicating Wolf’s factors are exclusive or replace that dispositive
issue.
¶ 35 Thus, we hold the trial court had competent evidence to support the challenged
Findings of Fact related to bad faith and did not abuse its discretion in determining
Father acted in bad faith such that it could impute income to him.
C. Challenge to Finding 11(g)
¶ 36 Father also argues Finding 11(g)—which focuses on health insurance for the
minor child and thus is not related to the bad faith issue—“was not supported by
sufficient evidence.” As with the Findings related to bad faith, we review this
challenge to determine “whether there is competent evidence to support the” Finding.
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
Midgett, 199 N.C. App. at 206, 680 S.E.2d at 879.
¶ 37 Finding 11(g) states:
[g.] Father has no other children for whom he pays support.
Father provided no evidence of his providing health
insurance on [the child]. Father testified that [the child]
will be covered through Father’s wife’s insurance but failed
to say how much the premiums would be or when coverage
would begin. Father failed to provide evidence of the cost of
health insurance premiums for the minor child through his
employment with Huntley Brothers.
Father does not argue with the first sentence about his lack of other children to
support, but he does challenge the remainder of the Finding on medical insurance for
his and Mother’s child. Therefore, we only focus on the challenge to the remainder of
the Finding.
¶ 38 The trial court had competent evidence for the remainder of Finding 11(g). The
sentence about Father providing no evidence of his providing health insurance for the
child is an introduction to the other sentences that explain what the trial court meant,
so if the other sentences are supported, the first sentence is supported. As the trial
court found, Father testified his wife’s insurance would cover the child since he was
laid off. Father did not testify about how much premiums would be or when that
coverage would begin as the previous testimony about his wife’s insurance covering
the child was his only testimony on the topic. Father argues his Amended Financial
Affidavit lists the monthly insurance premium and therefore he did provide evidence
CASH V. CASH
2022-NCCOA-706
Opinion of the Court
for how much the premium would be. But his Amended Financial Affidavit only lists
“Total Health Insurance Premium Costs.” It does not indicate how much of the
premium is his health insurance versus the health insurance premium for his child.
Finally, Father also did not testify about the cost of health insurance premiums for
the child while he was working at Huntley Brothers. While his original Financial
Affidavit prepared when he was still employed at Huntley Brothers lists his “Total
Health Insurance Premium Costs,” it also does not breakdown the costs specific to
the child versus him and anyone else covered under the insurance policy. Thus,
Finding 11(g) is fully supported by competent evidence.
III. Conclusion
¶ 39 After reviewing all of Father’s contentions on appeal, we affirm the trial court’s
order. As to its imputation of income to Father, the trial court had competent
evidence to support its Findings of Fact, and it did not abuse its discretion in
concluding Father acted in bad faith. As to the challenged Finding on health
insurance, the trial court also had competent evidence to support that Finding.
AFFIRMED.
Judges DIETZ and ZACHARY concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482313/ | 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
STATE OF ARIZONA, Appellee,
v.
CHRISTINA MARIE MCSHEA, Appellant.
No. 1 CA-CR 22-0065
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. CR 2020-130325-001
The Honorable Eartha K. Washington, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
STATE v. MCSHEA
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 L, Judge:
¶1 Christina McShea appeals her conviction and sentence for
taking the identity of another. For the following reasons, we affirm.
BACKGROUND
¶2 The facts relevant to the issue raised on appeal are not
disputed. After law enforcement officers investigated a report that McShea
obtained a gym membership with the victim’s business account but without
her permission, the State charged McShea with one count of taking the
identity of another.
¶3 Tried in absentia, a jury convicted McShea as charged. After
she was arrested pursuant to a bench warrant, the superior court suspended
her sentence and placed McShea on a two-year term of supervised
probation. McShea timely appealed.
DISCUSSION
¶4 As her sole issue on appeal, McShea contends the superior
court improperly conducted the trial in her absence. Specifically, she asserts
the “procedural unfolding of this case was problematic and confusing,” she
“never had actual notice of the trial date,” and the superior court “made no
meaningful inquiry” concerning her whereabouts before proceeding in
absentia.
¶5 The federal and state constitutions guarantee a defendant the
right to appear in all criminal proceedings, U.S. Const. amends. VI, XIV;
Ariz. Const. art. 2, § 24; see also Ariz. R. Crim. P. 19.2 (“A defendant in a
felony or misdemeanor trial has the right to be present at every stage of the
trial[.]”), but a defendant may waive her constitutional right to be present
at trial by voluntarily absenting herself from it, State v. Garcia-Contreras, 191
Ariz. 144, 147, ¶ 9 (1998). Because “the existence of a waiver of the right to
be present[] is basically a question of fact[,]” we generally review a superior
2
STATE v. MCSHEA
Decision of the Court
court’s decision to proceed to trial in absentia for a clear abuse of discretion.
State v. Bishop, 139 Ariz. 567, 569 (1984).
¶6 However, McShea forfeited the right to seek relief for all but
fundamental error by failing to object below. State v. Henderson, 210 Ariz.
561, 567, ¶ 19 (2005). Fundamental error goes to the foundation of the case,
deprives the defendant of a right essential to her defense, or is of such
magnitude that the defendant could not possibly have received a fair trial.
State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). Under fundamental error
review, the defendant bears the burden of demonstrating both error and
resulting prejudice. Henderson, 210 Ariz. at 567, ¶ 20.
¶7 A careful review of the record reveals that McShea’s absence
from the trial was not an isolated event but part of a broader pattern of
failing to appear for court proceedings. At the outset, McShea failed to
appear for her preliminary hearing, leading the superior court to issue a
warrant for her arrest. Subsequent to her arrest, the superior court repeatedly
and directly admonished McShea that she “ha[d] to stay in contact” with
defense counsel, “must appear” for court proceedings, the court would
issue a bench warrant for her arrest if she “fail[ed] to appear,” and
cautioned that trial would proceed in her absence. In fact, the superior court
reprimanded McShea that her failure to appear was “not a laughing” matter
and warned her to treat court attendance “with the seriousness to which it’s
designed.”
¶8 Because McShea’s court proceeding attendance was sporadic,
the superior court repeatedly required defense counsel to formally avow,
both orally and in writing, that McShea had been and would be advised of
all court dates. When McShea failed to appear at a hearing held
approximately three months before trial, defense counsel informed the
superior court that he had been unable to communicate with McShea since
the previous hearing, so the court issued a warrant for her arrest. Shortly
after the superior court issued the warrant, McShea contacted defense
counsel who then moved to quash it. As part of his motion to quash, defense
counsel stated that McShea had committed to both “appear as directed” and
“maintain contact with counsel.”
¶9 Despite these assurances, two weeks later, McShea failed to
appear at the next hearing. Again, defense counsel informed the court that
he had been unable to reach McShea, explaining he felt “very frustrated”
because he had told McShea “how important it [wa]s she maintain contact”
with him. The superior court issued another warrant for McShea’s arrest.
3
STATE v. MCSHEA
Decision of the Court
¶10 At the final trial management conference, defense counsel
told the court he had not “had any contact with [McShea] since [he] filed
the motion to quash.” Noting McShea’s “bench warrant status,” the
superior court instructed counsel to be prepared to “go forward with trial
in Ms. McShea’s absence” but granted counsel’s request for a trial
continuance. Two weeks before trial, defense counsel updated the court
that he had “not had any contact” with McShea and had “no way to try to
reach out to her.” The court confirmed that the trial would proceed as
scheduled with or without his client’s presence. On the first day of trial,
defense counsel told the superior court that he had “tried to contact”
McShea to no avail, unable to reach her “with the numbers [he] had.”
¶11 Under Arizona Rule of Criminal Procedure (Rule) 9.1, the
superior court may presume that a defendant’s absence from the trial “is
voluntary if the defendant had actual notice of the date and time of the
proceeding, notice of the right to be present, and notice that the proceeding
would go forward in the defendant’s absence.” Acknowledging that she
received notice of her right to be present and that court proceedings would
go forward in her absence, McShea nonetheless contends that Rule 9.1’s
inference does not apply here because she lacked personal notice of the
actual, continued trial date. Although McShea received notice of the
original trial date, she was not present when the trial date was reset and,
given her failure to appear for subsequent court proceedings and defense
counsel’s inability to contact her, nothing in the record reflects that she
received personal notice of the revised trial date.
¶12 But Rule 9.1 enunciates only “one combination of factors” that
“support an inference of voluntariness.” State v. Cook, 115 Ariz. 146, 149
(App. 1977), overruled in part on other grounds by State v. Fettis, 136 Ariz. 58,
59 (1983) (affirming “position that a defendant who voluntarily absents
himself from a trial may be tried, convicted and adjudged guilty in
absentia” but “retreat[ing] from . . . previous position [recognized in Cook]
of allowing [a] defendant to be sentenced in absentia”). Under certain
circumstances, “actual notice of the time of a proceeding” is not “a
prerequisite to inferring an accused’s absence is voluntary.” Cook, 115 Ariz.
at 149; see also State ex rel. Romley v. Superior Court, 183 Ariz. 139, 143 (App.
1995). For example, “an accused who does not know of and fails to appear
at a proceeding against h[er] may be found to have waived h[er] right to be
present there if the record indicates criminal proceedings commenced in
h[er] presence, that [s]he absconded knowing of h[er] right to attend future
proceedings, and that h[er] disappearance has made it [im]possible to
contact h[er] with reference to these proceedings.” Cook, 115 Ariz. at 149; see
also State v. Muniz-Caudillo, 185 Ariz. 261, 262 (App. 1996) (concluding
4
STATE v. MCSHEA
Decision of the Court
superior court properly found the defendant’s absence voluntary, even
though the defendant did not have personal notice of the trial date, because
he did not stay in contact with defense counsel or appear at subsequent
proceedings); Brewer v. Raines, 670 F.2d 117, 119 (9th Cir. 1982) (holding a
defendant’s notice of his “original trial date” combined with his “failure to
know of the continued dates of his trial” because he failed “to keep in
contact with the court and his attorney” demonstrated “a knowledgeable
waiver of [his] right to be present”).
¶13 In this case, the superior court admonished and ordered
McShea to maintain contact with defense counsel and attend court
proceedings, warning that her failure to appear would result in the court
issuing a warrant for her arrest and proceeding to trial in her absence. See
State v. Tudgay, 128 Ariz. 1, 3 (1981) (“Even if appellant never actually
received notice of the continued trial date, . . . ‘it was the appellant’s duty
. . . to maintain contact with the court and/or his attorney as to the trial date
and any changes in that date.’” (quoting State v. Rice, 116 Ariz. 182, 186
(App. 1977)); see also Cook, 115 Ariz. at 149 (“[A] defendant released on bail
or h[er] own recognizance has a concomitant obligation to be present so as
not to frustrate the progress of his prosecution.”); Bishop, 139 Ariz. at 571
(“An out-of-custody defendant has the responsibility to remain in contact
with his attorney and the court.”). Given defense counsel’s avowals to the
court that he impressed upon McShea the importance of her obligations and
the superior court’s repeated admonitions, the record supports an inference
that McShea knowingly waived her right to be present at trial. Had McShea
maintained contact with defense counsel as ordered, she would have
known the revised trial date. Equally important, it is uncontested that
McShea did not appear for the original trial date for which she had actual
notice. By failing to appear for the original trial date, McShea
“demonstrated that it did not matter” that her trial had been continued to a
date unknown; she would not have appeared regardless. State ex rel. Thomas
v. Blakey, 211 Ariz. 124, 127, ¶ 13 (App. 2005); State ex rel. Romley, 183 Ariz.
at 144 (“[I]t is possible for a defendant to voluntarily absent himself from
trial even without actual notice of the continued trial date, under
circumstances that indicate he would not appear even if he had known the
new trial date.”).
¶14 In sum, evidence that McShea failed to maintain contact with
defense counsel and did not appear at court on the day originally set for
trial provided a reasonable basis to find she voluntarily absented herself
and effectively waived her appearance at trial. See State v. Sanchez, 116 Ariz.
118, 120 (App. 1977) (“Where a defendant apparently has made no effort to
ascertain the continued date of the proceeding, . . . either he has waived
5
STATE v. MCSHEA
Decision of the Court
personal notice . . . or voluntariness may be inferred from his failure to
communicate with the court or his attorney.”). Simply put, a defendant may
not evade prosecution by avoiding contact with defense counsel and failing
to appear at court proceedings. Accordingly, the superior court did not err
by proceeding with trial in absentia.
CONCLUSION
¶15 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
6 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482310/ | Case: 22-162 Document: 19 Page: 1 Filed: 11/08/2022
United States Court of Appeals
for the Federal Circuit
______________________
In re: APPLE INC.,
Petitioner
______________________
2022-162
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:21-
cv-01101-ADA, Judge Alan D. Albright.
______________________
ON PETITION AND MOTION
______________________
MELANIE L. BOSTWICK, Orrick, Herrington &
Sutcliffe LLP, Washington, DC, for petitioner Apple Inc.
Also represented by LAUREN WEBER; MELANIE
HALLUMS, Wheeling, WV; ANDREW T. RADSCH,
ANDREW N. THOMASES, Ropes & Gray LLP, East Palo
Alto, CA
BRETT E. COOPER, BC Law Group, PC, New York,
NY, for respondent Aire Technology Ltd. Also repre-
sented by JONATHAN RANDY YIM.
Before DYK, REYNA, and TARANTO, Circuit Judges.
REYNA, Circuit Judge.
ORDER
Apple Inc. petitions this court for a writ of mandamus
directing the United States District Court for the Western
Case: 22-162 Document: 19 Page: 2 Filed: 11/08/2022
2 IN RE: APPLE INC.
District of Texas to vacate its scheduling order, promptly
rule on Apple’s pending transfer motion, and stay all pro-
ceedings on the merits until transfer is resolved. Apple
also moves for this court to stay the district court proceed-
ings pending resolution of Apple’s petition. Aire Technol-
ogy Limited opposes the petition and motion.
Aire sued Apple for patent infringement in the Western
District of Texas in October 2021. In April 2022, Apple
moved, pursuant to 28 U.S.C. § 1404(a), for transfer to the
United States District Court for the Northern District of
California. Apple submitted a declaration from Mark Rol-
lins, an Apple finance manager, “to establish certain facts,
such as the relevance, role, and locations of witnesses and
their teams, as well as the relevance and locations of vari-
ous categories of documents.” Pet. at 6.
Shortly before the close of venue discovery, Apple
sought leave to supplement its motion with additional dec-
larations from employees who Mr. Rollins had consulted in
preparing his declaration to bolster the credibility of his
statements. Apple offered to make the declarants available
for deposition and stated non-opposition to a “reasonable
continuance” of the transfer proceedings. Appx181. The
district court granted Apple’s motion, but sua sponte or-
dered the parties to complete fact discovery on the merits
(which it extended for an additional 30 weeks) and then go
through another six weeks of re-briefing of the motion be-
fore it would rule on Apple’s request to transfer under §
1404(a). Apple then filed this petition seeking review of
that order.
Although a district court has discretion in managing its
own docket, see Landis v. N. Am. Co., 299 U.S. 248, 254–55
(1936), an appellate court may grant mandamus to correct
a clearly arbitrary refusal to act on a longstanding pending
transfer motion. See, e.g., In re Horseshoe Ent., 337 F.3d
429, 433 (5th Cir. 2003) (“[I]n our view disposition of that
[transfer] motion should have taken a top priority in the
Case: 22-162 Document: 19 Page: 3 Filed: 11/08/2022
IN RE: APPLE INC. 3
handling of this case by the . . . District Court.”); In re
TracFone Wireless, Inc., 848 F. App’x 899, 900–01 (Fed. Cir.
2021) (citing Horseshoe Ent., 337 F.3d at 433); In re SK
hynix Inc., 835 F. App’x 600, 600–01 (Fed. Cir. 2021); In re
Google Inc., No. 2015-138, 2015 WL 5294800, at *1–2 (Fed.
Cir. July 16, 2015); see also In re EMC Corp., 501 F. App’x
973, 975–76 (Fed. Cir. 2013) (“Congress’ intent to prevent
the waste of time, energy and money and to protect liti-
gants, witnesses and the public against unnecessary incon-
venience and expense . . . may be thwarted where, as here,
defendants must partake in years of litigation prior to a
determination on a transfer motion.” (internal quotation
marks and citation omitted)).
Apple contends that the district court clearly abused its
discretion in ordering the parties to complete 30 more
weeks of fact discovery while pressing forward on the mer-
its and then spend another six weeks re-briefing the issue
before deciding Apple’s transfer request. Apple notes that
by the time the court plans on considering Apple’s motion,
it will have been a full year after Apple initially sought
transfer, and the parties will have completed fact discovery
(with the Western District of Texas resolving all discovery
disputes), served final infringement and invalidity conten-
tions (with leave of court required for any subsequent
amendment), 1 narrowed the number of asserted claims and
prior art references to the number permitted by this dis-
trict court, and exchanged preliminary trial exhibits and
witness lists. Pet. at 1–2. We agree with Apple that the
district court’s scheduling order goes too far.
Aire “consents to resolving Apple’s transfer motion at
any time, provided that no stay interfere with discovery,
Markman proceedings, or the preparation of this case for
1 Aire has already filed an opposed motion to amend
its infringement contentions to include an additional claim.
Case: 22-162 Document: 19 Page: 4 Filed: 11/08/2022
4 IN RE: APPLE INC.
trial.” ECF No. 9 at 2. 2 And precedent entitles parties to
have their venue motions prioritized. See In re Apple Inc.,
979 F.3d 1332, 1337 (Fed. Cir. 2020); see also Horseshoe
Ent., 337 F.3d at 433. Applying that principle, the Third
Circuit in McDonnell Douglas Corp. v. Polin, 429 F.2d 30,
30–31 (3d Cir. 1970), held that it is “not proper to postpone
consideration of the application for transfer under
§ 1404(a) until discovery on the merits is completed,” as the
district court has done in this case. Where, as here, the
parties agree that no additional discovery or briefing is nec-
essary and there are clearly less time-consuming and more
cost-effective means for the court to resolve the motion (in-
cluding considering whether the court should give less
weight to certain evidence), it is a clear abuse of discretion
to require the parties to expend additional party and court
resources litigating the substantive matters of the case
while Apple’s motion to transfer unnecessarily lingers on
the docket.
The district court took the view that by delaying the
decision until after full fact discovery and re-briefing, it
could reduce “speculation” and “allow the parties to provide
the Court with the best evidence for ruling on a motion to
transfer.” Appx1. Discovery on the transfer motion itself
is sufficient to allow decision of that motion. 3 Moreover, an
undue delay for a motion under § 1404(a), as other district
courts have found, may unnecessarily require the
2 A motion for reconsideration under these circum-
stances might have provided an adequate alternative
means to obtain the requested relief, but it appears futile
here in light of the district court’s holding in its order deny-
ing Apple’s motion for a stay pending this petition. ECF
No. 18 at 6.
3 In light of the parties’ concessions, further venue
discovery is unnecessary here.
Case: 22-162 Document: 19 Page: 5 Filed: 11/08/2022
IN RE: APPLE INC. 5
expenditure of judicial resources in both the transferor and
transferee courts. 4 As the Third Circuit in Polin explained,
“[j]udicial economy requires that another district court
should not burden itself with the merits of the action until
it is decided that a transfer should be effected and such
consideration additionally requires that the court which ul-
timately decides the merits of the action should also decide
the various questions which arise during the pendency of
the suit instead of considering it in two courts.” 429 F.2d
at 30.
For these reasons, we conclude that the district court
clearly abused its discretion in issuing its scheduling order.
We do not decide in this case (which does not present the
issue) whether and the extent to which merits discovery
may proceed pending discovery for a decision on a transfer
motion. We determine only that decision of a transfer
4 See, e.g., Zamora-Garcia v. Moore, No. M-05-331,
2006 WL 3341034, at *4 (S.D. Tex. Nov. 16, 2006) (noting
the potential “waste of judicial resources”); Moto Photo, Inc.
v. K.J. Broadhurst Enters., Inc., No. 3:01-cv-2282-L, 2003
WL 298799, at *5 (N.D. Tex. Feb. 10, 2003) (filing of motion
to transfer after parties had exchanged initial disclosures,
amended their pleadings, and conducted preliminary dis-
covery created possibility of undue delay if case were to be
transferred and could be denied on that basis alone); FTC
v. Multinet Mktg., LLC, 959 F. Supp. 394, 395–96 (N.D.
Tex. 1997) (denying motion to transfer filed seven months
after plaintiffs’ filing of action where “change of venue now
is likely to upset the discovery and trial schedule and waste
judicial resources”); Am. Airlines, Inc. v. Rogerson ATS,
952 F. Supp. 377, 384 (N.D. Tex. 1996) (denying motion
where transfer would disrupt scheduling order and create
“substantial possibility of delay . . . since this Court has had
the case for some time and is already familiar with many
of its details”).
Case: 22-162 Document: 19 Page: 6 Filed: 11/08/2022
6 IN RE: APPLE INC.
motion must proceed expeditiously as the first order of
business and that venue discovery must proceed immedi-
ately to enable such a prompt decision of the transfer mo-
tion.
Accordingly,
IT IS ORDERED THAT:
The petition and motion are granted to the extent that
the district court’s amended scheduling order is vacated,
and the district court is directed to postpone fact discovery
and other substantive proceedings until after consideration
of Apple’s motion for transfer.
FOR THE COURT
November 8, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482330/ | J-S31016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: R.M., FATHER :
:
:
:
: No. 1499 EDA 2022
Appeal from the Order Entered June 2, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000471-2020
IN THE INTEREST OF: A.M.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: R.M., FATHER :
:
:
:
: No. 1500 EDA 2022
Appeal from the Decree Entered June 3, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000213-2022
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 8, 2022
Appellant R.M. (Father)1 appeals from the decree and order granting the
petitions filed by the Philadelphia County Department of Human Services
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Child’s birth certificate states that her father is unknown. See N.T. Hr’g,
6/2/22, at 85. Father is Child’s putative father, and no other individuals have
come forward claiming to be Child’s father. Id.
J-S31016-22
(DHS) involuntarily terminating Father’s parental rights to his minor daughter,
A.M.G. (Child), and changing Child’s permanency goal to adoption.2 We
affirm.
Briefly, on April 14, 2020, DHS obtained an order of protective custody
(OPC) for Child after receiving a CPS (Child Protective Service) report that
alleged that Child had unexplained injuries and Mother provided inconsistent
explanations for those injuries. See OPC, 4/14/20, at 1-2. Child and her
sibling, A.T., were moved to the home of A.T.’s paternal grandmother (Foster
Mother) with a safety plan.3 See id. DHS investigated the report and
determined that the report was valid. N.T. Hr’g, 6/2/22, at 45.
DHS filed a dependency petition on April 20, 2020. At that time, Father’s
whereabouts were unknown. See Dependency Pet., 4/20/20, at 6
(unpaginated). On July 13, 2020, the trial court conducted a hearing and
adjudicated Child dependent. See Order of Adjudication, 7/13/20, at 1.
Father attended the adjudicatory hearing by video conference. Id.
The trial court held periodic permanency review hearings throughout the
pendency of this case. At the first hearing, Father was found to be in minimal
compliance. At each subsequent hearing, Father was found to be in no
compliance.
____________________________________________
2 That same day, the trial court terminated the parental rights of S.A.
(Mother). Mother did not file a separate appeal and is not a party to the
instant appeal.
3Mother gave birth to a third child, D.A., in April 2020. See OPC, 4/14/20,
at 1-2.
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On March 31, 2022, DHS filed a goal change petition and a petition
seeking the involuntary termination of Father’s parental rights. The trial court
held a combined termination and goal change hearing on June 2, 2022.4 DHS
presented the testimony of Community Umbrella Agency (CUA) caseworker
Todd Marquess. Father testified on his own behalf.
Mr. Marquess testified that DHS received a CPS report in April 2020, and
that CUA has provided services to the family since that time. N.T. Hr’g,
6/2/22, at 45. CUA established single case plan (SCP) objectives for Father
at the outset of the case. See id. at 46. Mr. Marquess had minimal contact
with Father throughout the pendency of the case. After CUA opened services
for the family, it took Father about a year to connect with caseworkers. Id.
at 47. At that time, Mr. Marquess advised Father regarding his SCP objectives,
which included maintaining contact with CUA, visiting with Child, and allowing
CUA to assess whether he had DNA testing or mental health needs. Id. at
47-48. Father denied any drug, alcohol, or mental health issues verbally to
caseworkers, but never submitted to any assessments or evaluations. Id. at
51-52.
Father texted Mr. Marquess pictures of paystubs in March 2022 but had
not recently provided proof of employment. Id. at 49. At the time of the
____________________________________________
4 John Capaldi, Esquire, served as Child’s guardian ad litem throughout the
proceedings. Attorney Capaldi argued that terminating Father’s parental
rights was in Child’s best interests. N.T. Hr’g, 6/2/22, at 119-20. Andre
Martino, Esquire, served as Child’s legal counsel during the termination
proceedings, and appeared at the hearing on her behalf. Id.; see also In re
Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020).
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hearing, Father lived with his mother in a structurally appropriate home. Id.
at 50. However, Father was unsure whether he could use that address as a
reunification home. Id. at 52-53.
Regarding his objective to maintain contact with CUA caseworkers,
Father did not reach out to caseworkers or to Foster Mother to inquire about
Child’s well-being. Id. at 50. Foster Mother offered Father times for visits or
birthday parties, but Father did not attend. Id. at 50-51. Father visited Child
“once or twice” at Foster Mother’s home, but Mr. Marquess was unsure of the
dates of the visits. Id. at 51. Regardless, Father’s visits were supposed to
be supervised at the agency. Id. at 81. Child has not asked to visit with
Father. Id.
Mr. Marquess stated, “[Father] hasn’t really showed motivation that he
wants to be a reunification resource. We aren’t sure of his mental health or if
he’s had . . . DNA concerns.” Id. at 46. Mr. Marquess rated Father’s
compliance with SCP objectives as “none.” Id. at 55. Father’s progress in
alleviating the concerns leading to Child’s placement were none. Id.
Mr. Marquess noted that Child was “tough” and “[had] a lot of issues.”5
Id. at 56. Child and Father do not share a parent-child bond due to Father’s
____________________________________________
5 Although exact details are not contained within the record, it appears that
at some point prior to the pendency of this case, it was alleged that Mother
attempted to kidnap Child on October 31, 2020. Id. at 64-66. The charges
were subsequently discharged. Id. at 65. Additionally, Child initially came
into foster care due to allegations that Mother had neglected and physically
abused her, and Child suffered trauma as a result of that abuse. Id. Father
was never accused of abusing Child at any time during the pendency of the
case.
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minimal contact with her over the years. Id. at 56-57. Father never sent
financial support, birthday cards, nor gifts for Child while she was in foster
care. Id. at 57. Father never inquired about the therapeutic services Child
received although he was aware of behavioral concerns, nor does it appear
from the record, that he understood the seriousness of these concerns. Id.
Further, Father never asked for input into Child’s services nor did he seek to
participate in her therapy or care. Id. at 58.
On this record it appears that Child is bonded with her Foster Mother
and calls her “Nana Mom.” Id. at 58-59. Foster Mother meets all of Child’s
needs and is very involved with Child’s services and therapy. Id. Child is in
a kinship home with her half-sibling A.T., who she loves and looks to as her
big brother. Id. at 59, 76. Further, Mr. Marquess testified that it would be
detrimental for her to be removed from Foster Mother’s home, and that it
would not cause Child irreparable harm if Father’s parental rights were
terminated. Id. at 60. Additionally, Foster Mother wishes to adopt Child. Id.
at 75.
Father testified that he recalled being court-ordered to complete his SCP
objectives. Id. at 87. Father stated that it “was hard” to complete his
objectives and communicate with Mr. Marquess. Id. at 87-88. He further
claimed that “someone” at CUA told him he was not allowed to see his
daughter and that “it was already over.” Id. Father also stated that he did
not complete objectives such as his parenting class because no one told him
what he needed to do. Id. at 95-96.
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Father claimed that he worked two jobs, as a home health aide and a
delivery person, and had “always” provided paystubs as proof of employment.
Id. at 88, 92. Father stated that his work hours limited his opportunities to
visit Child, and that he also worked overnights. Id. at 94. Father testified
that he did not call Foster Mother to ask about Child very often. Id. at 88-89.
Father admitted that he did not ask about nor request to participate in Child’s
therapy or services but was “willing to do it.” Id. at 90. Father admitted that
he never attempted to go to CUA in person. Id. at 91.
Father testified that he wants to see his daughter and has been working
towards obtaining an appropriate home for Child. Id. at 89-90. When asked
why it took two years to decide that he was ready to participate, Father stated
that he was working a lot, had to pay child support, and that he had “a lot
going on.” Id. at 90. When asked about basic information such as Child’s
birthday or favorite color, Father gave the wrong date for her birthday and
stated that he did not know her favorite color. Id. at 97. Father stated, “I
just know she [likes] to play with the Disney doll . . . I forgot which one.” Id.
At the conclusion of the testimony concerning Child, the trial court
recited the procedural history of Child’s case. Id. at 124-26. The court
observed that, throughout the pendency of the case, Father was not in
compliance with his reunification objectives. Id. at 124-25. Therefore, the
court concluded that DHS had proven that a goal change to adoption was in
Child’s best interests. Id. Ultimately, the trial court concluded that
termination of Father’s parental rights was in Child’s best interests under
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Section 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b). Id. at 129. That same
day, the trial court entered a decree terminating Father’s parental rights to
Child and an order changing Child’s permanency goal to adoption.
Father simultaneously filed timely notices of appeal and Pa.R.A.P.
1925(a)(2)(i) statements at each trial court docket number. In lieu of a Rule
1925(a) opinion, the trial court issued a notice of compliance with Rule
1925(a) in which it referred to sections from the notes of testimony where the
court stated its reasons for terminating Father’s parental rights on the record.6
Trial Ct. Rule 1925(a) Order, 7/8/22, at 1-2.
On appeal, Father raises the following issues for our review:
1. Did the [trial] court err by finding that evidence presented by
DHS was clear and convincing?
2. Did the [trial] court err in granting goal change from
reunification to adoption?
____________________________________________
6 We emphasize that our standards of review require deference to the trial
court’s findings of fact and credibility determinations and that, generally, this
requires the filing of an opinion pursuant to Pa.R.A.P. 1925(a). See In re
Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (noting that “there are
clear reasons for applying an abuse of discretion standard of review in
[dependency and termination of parental rights] cases” and acknowledging
that “unlike trial courts, appellate courts are not equipped to make the fact-
specific determinations on a cold record, where the trial judges are observing
the parties during the relevant hearing and often presiding over numerous
other hearings regarding the child and parents” (citations omitted)); see also
Interest of S.K.L.R., 256 A.3d 1108, 1124 (Pa. 2021) (emphasizing that
“[w]hen a trial court makes a ‘close call’ in a fact-intensive case . . . the
appellate court should not search the record for contrary conclusions or
substitute its judgment for that of the trial court”).
-7-
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3. Did the [trial] court abuse its discretion in finding that goal
change and termination of parental rights are best suited to the
protection and physical, mental, and moral welfare of the child?
4. Did the [trial] court err in terminating Father’s parental rights?
Father’s Brief at 7 (formatting altered).7
Termination of Parental Rights
We begin by stating our standard of review:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted and formatting
altered). “[T]he trial court is free to believe all, part, or none of the evidence
presented, and is likewise free to make all credibility determinations and
____________________________________________
7 Father’s brief cites very little case law and instead relies heavily upon law
review articles and the United Nations’ website, which are not precedential
authorities. See, e.g., Father’s Brief at 21-44. We caution Father that he
risks waiver, as this Court has held that “[w]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived.” In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (citations
omitted); see also Pa.R.A.P. 2119(a) (providing that the argument section of
appellate brief shall contain discussion of issues raised therein and citation to
pertinent legal authorities). However, because we may discern his arguments
on appeal, we decline to find waiver in this instance.
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resolve conflicts in the evidence.” In re Q.R.D., 214 A.3d 233, 239 (Pa.
Super. 2019) (citation omitted).
The burden is on the petitioner “to prove by clear and convincing
evidence that [the] asserted grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
defined as testimony that is so clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.” Id. (citation and quotation marks omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We note
that we need only agree with the trial court as to any one subsection of Section
2511(a), as well as Section 2511(b), to affirm an order terminating parental
rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).
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Section 2511(a)(1)
Father argues that the trial court erred in terminating his parental rights
because he has not refused to perform parental duties. Father’s Brief at 23.
Rather, Father contends that he wants his child and “was never requested to
do any specific tasks.” See id.
Section 2511(a)(1) provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(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:
(1) The parent by conduct continuing for a period of at least six
months immediately preceding the filing of the petition either
has evidenced a settled purpose of relinquishing parental claim
to a child or has refused or failed to perform parental duties.
23 Pa.C.S. § 2511(a)(1).
“A court may terminate parental rights under Section 2511(a)(1) where
the parent demonstrates a settled purpose to relinquish parental claim to a
child or fails to perform parental duties for at least the six months prior to the
filing of the termination petition.” In re Z.P., 994 A.2d 1108, 1117 (Pa.
Super. 2010) (citation omitted, emphasis in original). “Although it is the six
months immediately preceding the filing of the petition that is most critical to
the analysis, the trial court must consider the whole history of a given case
and not mechanically apply the six-month statutory provision.” In re B.,
N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citation omitted).
This Court has explained:
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There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A child
needs love, protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely passive
interest in the development of the child. Thus, this court has held
that the parental obligation is a positive duty which requires
affirmative performance.
This affirmative duty encompasses more than a financial
obligation; it requires continuing interest in the child and a
genuine effort to maintain communication and association with
the child.
Because a child needs more than a benefactor, parental duty
requires that a parent exert himself to take and maintain a place
of importance in the child’s life.
Parental duty requires that the parent act affirmatively with good
faith interest and effort, and not yield to every problem, in order
to maintain the parent-child relationship to the best of his or her
ability, even in difficult circumstances. A parent must utilize all
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship. Parental
rights are not preserved by waiting for a more suitable or
convenient time to perform one’s parental responsibilities while
others provide the child with his or her physical and emotional
needs.
Id. (citations omitted and formatting altered).
Where the petitioners have presented clear and convincing evidence
that a parent has demonstrated a settled purpose of relinquishing parental
rights or has refused or failed to perform parental duties, “the court must
engage in three lines of inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between parent and child; and
(3) consideration of the effect of termination of parental rights on the child
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pursuant to Section 2511(b).” Matter of Adoption of Charles E.D.M., II,
708 A.2d 88, 91 (Pa. 1998) (citation omitted).
Additionally, our Supreme Court has explained that
[t]o be legally significant, the [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
psychological health of the child, and must demonstrate a serious
intent on the part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness and capacity
to undertake the parental role. The parent wishing to reestablish
his parental responsibilities bears the burden of proof on this
question.
Z.P., 994 A.2d at 1119 (citations omitted).
Here, the trial court set forth the reasons for terminating Father’s
parental rights as follows:
After hearing lengthy testimony in this case, the [c]ourt is going
to grant the involuntary termination as to both parents and the
unknown father. By way of history, this child was adjudicated
[dependent] on July 13, 2020.
At that time, the [c]ourt found sufficient basis to remove the child
from the care of both parents at that time. In that order the
objectives for both parents were set forth and detailed directly in
the order where Father was present. On November 16, 2020, at
a permanency review, the [c]ourt again set out objectives for both
parents that were stated in that [c]ourt order.
On April 27, 2021, there was another hearing before this [c]ourt.
And at that permanency review, again objectives were laid out for
the parents by the hearing officer involved.
On September 13, 2021, the case came back for a permanency
review order at that time. Both parents were given ratings . . .
[a]nd Father was found to have no progress with regards to the
circumstances that resulted in the children being brought into
care. Also, again at that hearing, objectives were set forth for
both parents.
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Similarly, at the December 6, 2021 hearing, at that time . . . .
Father was found to have no progress . . . and there was no
compliance for Father at that time. And again, objectives were
set forth in that [c]ourt order. So the [c]ourt is convinced that
objectives have been laid out for parents during the life of this
case. In this situation the [c]ourt heard clear and convincing
evidence and found the testimony by the CUA case worker to be
credible.
In contradiction, [the court] did not find the parents’ testimony to
be credible. With regards to [Section] 2511[(a)(1)], it sets forth
that parent by conduct continuing for a period of at least six
months immediately preceding the filing of the petition either has
evidenced a settled purpose of relinquishing parental claim to a
child or has refused or failed to perform parental duties.
[The court] heard clear and convincing evidence to substantiate
this element has been satisfied as to both parents in this case.
They have not been in their child’s life for almost 25 months at
this point. They have not taken any of the necessary steps in
order to be considered for reunification with their child.
N.T. Hr’g, 6/2/22, at 121-25 (formatting altered).
Following our review, we conclude that the trial court’s findings are
supported by competent, clear, and convincing evidence in the record, and we
find no error in the court’s legal conclusions. See T.S.M., 71 A.3d at 267.
The record supports the trial court’s determination that although Father was
aware of his objectives for reunification throughout the pendency of this case,
he failed to complete them. Similarly, the record supports the trial court’s
finding that Father has not been in Child’s life in a parental capacity for almost
twenty-five months. Therefore, the trial court did not abuse its discretion by
terminating Father’s parental rights to Child pursuant to Section 2511(a)(1).
See Z.P., 994 A.2d at 1117. Accordingly, Father is not entitled to relief.
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Section 2511(b)
Father also challenges the trial court’s conclusion that termination was
appropriate under Section 2511(b). Father’s Brief at 26-27. Specifically, he
contends that “abolishing the child’s father would traumatize the child.” Id.
Father admits that Child has a good life with her caregiver and sibling, but
claims that “prior to termination there was a degree of relationship with
[Father] and the possibility of a growing relationship.” Id. at 27.
Section 2511(b) states in relevant part:
(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 . . . .
23 Pa.C.S. § 2511(b).
“[T]he focus in terminating parental rights is on the parent, under
Section 2511(a), whereas the focus in Section 2511(b) is on the child.” In re
C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc) (citation omitted).
This Court has explained:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 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.
In 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, comfort, security, and stability
the child might have with the foster parent. Additionally, . . . the
trial court should consider the importance of continuity of
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relationships and whether any existing parent-child bond can be
severed without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations
omitted and formatting altered). “Common sense dictates that courts
considering termination must also consider whether the children are in a pre-
adoptive home and whether they have a bond with their foster parents.”
T.S.M., 71 A.3d at 268 (citation omitted).
“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). The question is whether the bond between the parent and the child
“is the one worth saving or whether it could be sacrificed without irreparable
harm to” the child. Id. at 764. “Section 2511(b) does not require a formal
bonding evaluation” and caseworkers may offer their opinions and evaluations
of the bond. Z.P., 994 A.2d at 1121 (citation omitted).
In weighing the bond considerations pursuant to Section 2511(b),
“courts must keep the ticking clock of childhood ever in mind. Children 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.” T.S.M., 71 A.3d at 269. Finally, we
reiterate that the court may emphasize the safety needs of the child. See In
re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
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Here, with regard to Section 2511(b), the trial court stated:
[T]his [C]hild has not seen either parent for more than two years.
And there is no evidence of any bond or that this [C]hild would
suffer any irreparable harm as a result of having the parental
rights terminated . . . . This is not a reflection of the [c]ourt’s
opinion as to whether the parents have love for their [C]hild in
this case.
This is a situation where this [C]hild came into care more than two
years ago. And my responsibility is to do what’s in the best
interest of this [C]hild, and there is a loving home where this
[C]hild is currently placed with a sibling. And this [C]hild is
fortunate to have that option. And I am freeing this [C]hild for
adoption.
N.T. Hr’g, 6/2/22, at 128-29.
Following our review of the record, we discern no abuse of discretion by
the trial court. See T.S.M., 71 A.3d at 267. The record supports the trial
court’s conclusion that there was no bond between Father and Child, that
Foster Mother fulfills a parental role for Child, and that there would be no
irreparable harm to Child if Father’s parental rights were terminated. See
K.Z.S., 946 A.2d at 764. On the contrary, Child would suffer harm if she were
removed from the custody of Foster Mother. Although Father seeks additional
time to develop a bond with Child, the T.S.M. Court directed that in weighing
the bond considerations under Section 2511(b) “courts must keep the ticking
clock of childhood ever in mind.” T.S.M., 71 A.3d at 269. Accordingly, the
trial court did not abuse its discretion in concluding that the termination of
Father’s parental rights would best serve Child’s developmental, physical, and
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J-S31016-22
emotional needs and welfare. See C.L.G., 956 A.2d at 1009-10. Therefore,
Father is not entitled to relief on this claim.
Permanency Goal Change
In his final issue, Father contends that the trial court erred in changing
Child’s permanency goal from reunification to adoption. Father’s Brief at 27.
Father admits that Child was in a family setting with a loving caregiver but
argues he could have “enhance[d]” this family setting. Id. at 28-29. Father
further argues that he had never been accused of abuse, so once Child was
placed in caregiver’s home, the reason for placement had been alleviated. Id.
at 29. Instead of a goal change to adoption, Father contends that permanent
legal custody would have been an appropriate placement so that he could
“participate in the family to the extent of his ability in a positive and loving
way.” Id.
At the outset, we note that Father’s challenge to the goal change is moot
based on our decision to affirm the order terminating Father’s parental rights
under Section 2511(a)(1) and (b). See Interest of A.M., 256 A.3d 1263,
1272-73 (Pa. Super. 2021). In any event, for the reasons stated herein
concerning the Child’s best interests, we discern no abuse of discretion or
error of law in the trial court’s determination that a goal change to adoption
was in Child’s best interests.8 See 42 Pa.C.S. § 6351(f) (setting forth the
____________________________________________
8 The trial court noted that Father had made no progress on alleviating the
issues which had brought Child into care and stated:
(Footnote Continued Next Page)
- 17 -
J-S31016-22
factors for a goal change determination); In re R.M.G., 997 A.2d 339, 345,
347 (Pa. Super. 2010) (noting that “goal change decisions are subject to an
abuse of discretion standard of review” and that a child’s safety, permanency,
and well-being take precedence over all other considerations in a goal change
decision (citation omitted)).
Therefore, even if we were to consider Father’s challenge to the order
changing Child’s goal to adoption, we conclude that the trial court considered
all relevant factors, and this Court will not disturb the trial court’s
determination that Child’s need for permanency outweighed Father’s hopes to
reunify with Child in the future. See R.M.G., 997 A.2d at 347.
For these reasons, we affirm the trial court’s order changing Child’s
permanency goal to adoption and the decree terminating Father’s parental
rights.
Order and decree affirmed.
____________________________________________
This is a situation where this child came into care more than two
years ago. And my responsibility to do what’s in the best interest
of this child, and there is a loving home where this child is
currently placed with a sibling. And this child is fortunate to have
that option. And I am freeing this child for adoption.
N.T. Hr’g, 6/2/22, at 128-29.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
- 19 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482326/ | Case: 21-2241 Document: 43 Page: 1 Filed: 11/08/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SIG SAUER INC.,
Appellant
v.
NST GLOBAL, LLC, DBA SB TACTICAL,
Cross-Appellant
______________________
2021-2241, 2021-2242, 2021-2247, 2021-2248
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2020-
00423, IPR2020-00424.
______________________
JUDGMENT
______________________
ERIC G.J. KAVIAR, Burns & Levinson LLP, Boston, MA,
argued for appellant. Also represented by LAURA CARROLL,
JOSEPH M. MARAIA.
BRITTANY J. MAXEY-FISHER, Maxey-Fisher, PLLC, St.
Petersburg, FL, argued for cross-appellant. Also repre-
sented by STACEY TURMEL.
______________________
THIS CAUSE having been heard and considered, it is
Case: 21-2241 Document: 43 Page: 2 Filed: 11/08/2022
ORDERED and ADJUDGED:
PER CURIAM (REYNA, SCHALL, and CHEN, Circuit
Judges).
AFFIRMED. See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
November 8, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482327/ | Case: 22-164 Document: 16 Page: 1 Filed: 11/08/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: APPLE INC.,
Petitioner
______________________
2022-164
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:21-
cv-01071-ADA, Judge Alan D. Albright.
______________________
ON PETITION AND MOTION
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
REYNA, Circuit Judge.
ORDER
Apple Inc. petitions this court for a writ of mandamus
directing the United States District Court for the Western
District of Texas to vacate its scheduling order, promptly
rule on Apple’s pending transfer motion, and stay all pro-
ceedings on the merits until transfer is resolved. Apple
also moves for this court to stay the district court proceed-
ings pending resolution of Apple’s petition. Scramoge
Technology Ltd. opposes the petition and motion but “con-
sents to the determination of the transfer motion now, with
Case: 22-164 Document: 16 Page: 2 Filed: 11/08/2022
2 IN RE: APPLE INC.
appropriate sanctions applied to remedy Apple’s obstruc-
tionist venue discovery misbehavior.” ECF No. 9 at 9.
In another Order issued today, we granted Apple’s pe-
tition to vacate a similar scheduling order on the ground
that it was a clear abuse of discretion to force the parties to
expend additional resources litigating substantive matters,
until completion of fact discovery, and rebriefing while Ap-
ple’s motion lingered unnecessarily on the docket particu-
larly when there were readily available, less time-
consuming, and more cost-effective means for the court to
resolve the motion. In re Apple Inc., 2022-162 (Fed. Cir.
Nov. 8, 2022). We deem it the proper course here to vacate
the district court’s scheduling order and for the district
court to reconsider its decision in light of our reasoning in
No. 2022-162.
Accordingly,
IT IS ORDERED THAT:
The petition and motion are granted to the extent that
the district court’s scheduling order is vacated, and the
case is remanded for further proceedings consistent with
this Order.
FOR THE COURT
November 8, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482332/ | J-S32042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: R.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.B. :
:
:
:
:
: No. 484 MDA 2022
Appeal from the Order Entered March 3, 2022
In the Court of Common Pleas of Berks County Civil Division at No(s):
50-2022-MH
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 8, 2022
R.B. appeals from the order, entered in the Court of Common Pleas of
Berks County, affirming the certification for extended involuntary commitment
under section 7303 of the Mental Health Procedures Act (“MHPA”). 1 Upon
careful review, we affirm.
R.B. was admitted to Brooke Glen Behavioral Hospital (“Brooke Glen”)
on February 24, 2022, pursuant to Brooke Glen’s petition for involuntary
mental health treatment under 50 P.S. § 7302. On February 25, 2022, a
petition to extend R.B.’s court-ordered treatment by ten days was filed
pursuant to 50 P.S. § 7303 (“Section 303”). On March 2, 2022, a section 303
hearing was held telephonically2 before Mental Health Review Officer
____________________________________________
1 50 P.S. §§ 7101-7503.
2 An audio recording of the hearing has been made a part of the certified
record on appeal.
J-S32042-22
(“MHRO”) Terry Weller, Esquire, at which R.B. was represented by court-
appointed counsel, Andrew Scott, Esquire, of the Berks County Public
Defender’s Office.
At the hearing, R.B.’s treating psychiatrist, Daniela Krausz, M.D.,
testified that R.B. originally came to the emergency room because he was
experiencing chest pains and felt as though he was unable to function. She
testified that R.B. had been under a significant amount of stress since his
house burned down and he was struggling to deal with his insurance company
and contractors. At the time he was admitted to Brooke Glen, R.B. was not
eating or sleeping enough, and was suffering from paranoid beliefs about
being followed and investigated by his insurance company. Doctor Krausz
diagnosed R.B. with psychosis NOS (not otherwise specified). She attempted
to treat him with medication to help with his sleeping and his mood, but he
refused. She stated that R.B. participated in group and other activities, but
that staff was having difficulty engaging him. Doctor Krausz testified that R.B.
was not aggressive or assaultive in his behavior, except “a little . . . at the
beginning.” MRHO Hearing, 3/2/22, at 7:47. Doctor Krausz testified that, at
the time of the hearing, R.B. was sleeping a little better and eating “some,”
although he did not like the food available to him. She testified that R.B. still
believed that he was being followed, had poor insight and limited judgment,
and was a danger to himself due to his lack of self-care. Doctor Krausz opined
that medicine would benefit R.B. by making him less paranoid, helping him
sleep better, and decreasing his anxiety. Doctor Krausz ultimately opined that
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Brooke Glen was the least restrictive facility for R.B. and recommended further
treatment there of up to ten days.
R.B. testified that he had gone to the emergency room because he felt
overwhelmed by his current situation—his house burned down in 2019 and,
since then, he has been unsuccessfully trying to work with contractors,
adjustors, and his insurance company to rebuild. He believed that, by going
to the hospital, he could obtain a doctor’s note and get time off from work to
focus on dealing with his situation. He stated that he has been unable to sleep
due to everything that is going on, as well as the fact that he and his family
are being evicted from their apartment. He attributed his weight loss to a
recent bout of COVID-19, which caused him to be out of work for two weeks.
Following the conclusion of the testimony, the MHRO stated that, while
he was not “hearing a great deal,” id. at 16:59, R.B.’s stressors remained,
which concerned him. Accordingly, in the hope that Dr. Krausz could “get
something set up for [R.B.],” id. at 17:05, the MHRO issued a certification
finding that R.B. was severely mentally disabled and was in need of continued
inpatient treatment for a period not to exceed five days.
On March 3, 2022, R.B. filed a petition for review of certification for
extended involuntary commitment in the Court of Common Pleas pursuant to
section 7109 of the MHPA. R.B. requested that the audio recording of the
section 303 hearing be used in lieu of a formal de novo hearing. Upon review
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J-S32042-22
of the recording, the trial court affirmed the extended involuntary certification
on March 3, 2022.3
R.B. filed a timely notice of appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He
raises the following claim for our review:4
Whether [Brooke Glen] failed to present sufficient evidence to
support the involuntary commitment of R.B. where R.B.’s treating
psychiatrist could not articulate any clear or present danger [that]
R.B. posed to himself or others and could not say that R.B. posed
a substantial risk of serious bodily injury or death within thirty
days in a less restrictive environment.
Brief of Appellant, at 4.
The standard of review for an involuntary commitment order under the
MHPA is to “determine whether there is evidence in the record to justify the
court’s findings.” In re S.M., 176 A.3d 927, 935 (Pa. Super. 2017).
____________________________________________
3R.B. was ultimately discharged from treatment at Brooke Glen on March 4,
2022.
4 Although R.B.’s commitment order has expired, his appeal is not moot.
We recognize that an important liberty interest is at stake in all
involuntary commitments and by their nature, most commitment
orders expire prior to appellate review. Since a finding of
mootness would allow such claims to go unchallenged in most, if
not all, cases, we continue to hear these matters and, where the
facts allow, we have authority to vacate a commitment order and
direct that the record be expunged.
In re R.D., 739 A.2d 548, 553 (Pa. Super. 1999) (citations omitted); see
also In re J.M., 726 A.2d 1041, 1045 n.6 (Pa. 1999) (holding appeals from
expired involuntary commitment orders not moot as issues raised on appeal
capable of repetition and may evade review). Accordingly, the appeal is
properly before us.
-4-
J-S32042-22
“Although we must accept the trial court’s findings of fact that have support
in the record, we are not bound by its legal conclusions from those facts.” Id.
We have explained the involuntary commitment process under the
MHPA as follows.
The MHPA provides for involuntary emergency examination and
treatment of persons who are “severally mentally disabled and in
need of immediate treatment.” 50 P.S. § 7301(a). It then
authorizes increasingly long periods of commitment for such
persons, balanced by increasing due process protections in
recognition of the significant deprivations of liberty at stake. See
In re A.J.N., 144 A.3d 130, 137 (Pa. Super. 2016) (highlighting
MHPA’s purpose as “an enlightened legislative endeavor to strike
a balance between the state’s valid interest in imposing and
providing mental health treatment and the individual patient’s
rights”). Accordingly, “[i]n applying the [MHPA,] we must take a
balanced approach and remain mindful of the patient’s due
process and liberty interests, while at the same time permitting
the mental health system to provide proper treatment to those
involuntarily committed to its care.” In re S.L.W., 698 A.2d 90,
94 (Pa. Super. 1997).
In re S.M., 176 A.3d at 930–31.
Under subsection 301(a) of the MHPA:
Whenever a person is severely mentally disabled and in need of
immediate treatment, he may be made subject to involuntary
emergency examination and treatment. A person is severely
mentally disabled when, as a result of mental illness, his capacity
to exercise self-control, judgment and discretion in the conduct of
his affairs and social relations or to care for his own personal needs
is so lessened that he poses a clear and present danger of harm
to others or to himself, as defined in subsection (b)[.]
50 P.S. § 7301(a). Subsection 301(b)(2) defines “clear and present danger”
to oneself, in relevant part, as follows:
Clear and present danger to himself shall be shown by establishing
that within the past 30 days:
-5-
J-S32042-22
(i) the person has acted in such manner as to evidence that
he would be unable, without care, supervision[,] and the
continued assistance of others, to satisfy his need for
nourishment, personal or medical care, shelter, or self-
protection and safety, and that there is a reasonable
probability that death, serious bodily injury or serious
physical debilitation would ensue within 30 days unless
adequate treatment were afforded under this act[.]
Id. at § 7301(b)(2)(i). Section 302 provides for emergency examination and
treatment of persons, which
may be undertaken at a treatment facility upon the certification of
a physician stating the need for such examination; or upon a
warrant issued by the county administrator authorizing such
examination; or without a warrant upon application by a physician
or other authorized person who has personally observed conduct
showing the need for such examination.
Id. § 7302(a). Under subsection 302(b), a physician must examine the
person “within two hours of arrival in order to determine if the person is
severely mentally disabled within the meaning of [sub]section 301(b) and in
need of immediate treatment.” Id. at § 7302(b) (internal footnote omitted).
If the physician so finds, then “treatment shall be begun immediately.” Id.
If not, then “the person shall be discharged and returned to such place as he
may reasonably direct.” Id. Section 302 allows a person to be committed up
to 120 hours. Id. § 7302(d).
When a treatment “facility determines that the need for emergency
treatment is likely to extend beyond 120 hours,” or five days, section 303
provides that the facility may apply to extend the involuntary commitment for
up to 20 days. Id. at § 7303(a), (h). The facility files an application for
extended commitment with the court of common pleas, which then appoints
-6-
J-S32042-22
an attorney for the person unless it appears “that the person can afford, and
desires to have, private representation.” Id. at § 7303(b). “Within 24 hours
after the application is filed, an informal hearing shall be conducted by a judge
or [MHRO].” Id.
If the judge or MHRO certifies that an extended section 303 commitment
is appropriate, the committed person may petition the court of common pleas
for review of the certification. Id. at § 7303(g). The trial court must hold a
hearing “within 72 hours after the petition is filed unless a continuance is
requested by the person’s counsel.” Id. “The hearing shall include a review
of the certification and such evidence as the court may receive or require.”
Id. “If the court determines that further involuntary treatment is necessary
and that the procedures prescribed by the [MHPA] have been followed, it shall
deny the petition. Otherwise, the person shall be discharged.” Id.
The MHPA is to be strictly construed. Commonwealth v. Moyer, 595
A.2d 1177, 1179 (Pa. Super. 1991) (citation omitted).
Recognizing the substantial curtailment of liberty inherent to an
involuntary commitment, our Supreme Court has cautioned that
the courts must strictly interpret and adhere to the statutory
requirements for commitment. In interpreting section
301(b)(2)(i), this Court has held that a mere finding of senility is
insufficient to establish that a person is a “clear and present
danger” to himself. See In re Remley, [] 471 A.2d 514 ([Pa.
Super.] 1984). Without evidence that the individual would die or
suffer serious bodily injury or serious physical debilitation in the
immediate future unless he was committed, the statutory
requirement had not been met. Similarly, . . . it is not sufficient
to find only that the person is in need of mental health services.
The court must also establish that there is a reasonable probability
-7-
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of death, serious injury[,] or serious physical debilitation to order
commitment.
In re T.T., 875 A.2d 1123, 1126–27 (Pa. Super. 2005).
The issue in this case is whether there was sufficient evidence to warrant
R.B.’s continued involuntary treatment under section 303. “The burden is on
the petitioner to prove the requisite statutory grounds by clear and convincing
evidence.” In re S.M., 176 A.3d at 937 (citation and quotation marks
omitted). “Our Supreme Court has defined clear and convincing evidence as
testimony that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of the truth of
the precise facts in issue.” Id. (citations and internal quotation marks
omitted).
R.B. argues that Dr. Krausz could not testify that he posed a “clear and
present danger to himself,” Brief of Appellant, at 11, where she “could not say
one way or the other if the rate at which R.B. was eating and sleeping would
cause death or serious bodily injury within thirty days.” Id. at 16. He notes
that “Dr. Krausz did not testify that the amount R.B. was eating was not
enough to sustain life.” Id. at 17. R.B. argues that “Dr. Krausz’s assertion
that she did not have enough information to determine if [R.B.] would pose a
risk to himself or others is clearly deficient, as it does not even qualify as
speculation, let alone reasonable speculation.” Id. at 17. R.B. asserts that,
while he “could probably have benefitted from some sort of treatment and
assistance[,] . . . this is not the purpose of the MHPA,” which requires a finding
-8-
J-S32042-22
that he is a clear and present danger to himself before depriving him of his
liberty. Id. at 18.
In support of his claim, R.B. relies on this Court’s decision in In re S.M.,
supra. There, S.M., who suffered from schizoaffective bipolar disorder, was
committed primarily on the basis that she was not taking her medication in
therapeutic doses, as she believed that her illness “was better treated through
homeopathic remedies[.]” Id. at 938. Following her recommittal by an
MHRO, S.M. filed an appeal de novo to the court of common pleas. The
evidence showed that S.M. believed that “various hospital and state officials
were conspiring and colluding with her mother to keep her involuntarily
committed.” Id. Testimony also revealed that S.M. had gone several days
without eating, went several nights without sleep, and made racial slurs to
other residents. Id. at 939. Although her treating psychiatrist testified that
S.M.’s illness and unwillingness to properly take her medication affected her
judgment, he did not testify that S.M. posed a danger to herself or that there
was “a reasonable probability that death, serious bodily injury[,] or serious
physical debilitation would ensue within 30 days unless adequate treatment
were afforded.” Id. Instead, “the essence of his testimony was that S.M.
would be better off taking her medications in therapeutic doses, and that the
best way to ensure that she did so was through continued involuntary
commitment.” Id. The court of common pleas affirmed the MHRO’s
certification.
-9-
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This Court reversed the order of the trial court, finding that the evidence
did not show by clear and convincing evidence that S.M. posed a clear and
present danger to herself, and noting that “the serious deprivations of liberty
authorized by the MHPA demand that such deprivations be justified through
strict compliance with statutes substantive and procedural requirements.” Id.
R.B. argues that the evidence adduced at his MHRO hearing and
reviewed by the trial court on de novo appeal was similar to that presented to
the court in In re S.M. Specifically, like S.M., R.B. refused medication—
although unlike S.M., he had never before been on medication—and both
experienced disruptions in eating and sleeping habits. Likewise, both R.B. and
S.M. had paranoid beliefs. However, R.B. argues that “[p]aranoia alone is not
sufficient to involuntarily commit an individual under the MHPA without some
sort of evidence that the person might act in such a way . . . that would place
himself or others in danger, and that is not established here.” Brief of
Appellant, at 16. Moreover, Dr. Krausz acknowledged that R.B.’s sleep habits
had improved—without medication—during the short time he had been
hospitalized, and he argues that “his refusal to take medication[,] by itself[,]
is not enough to establish that he poses a clear and present danger to
himself.” Id. at 15.
After our review of the record in this matter, we are constrained to
conclude that the evidence was sufficient to support the trial court’s affirmance
of the MHRO’s order extending R.B.’s involuntary commitment by five days.
This case is, admittedly, a close call. The MHRO himself admitted that he had
- 10 -
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“not hear[d] a great deal,” but extended the commitment for 5 days in the
hopes that Dr. Krausz could “get him set up with something as an outpatient
or something with medication.” MRHO Hearing, 3/2/22, at 16:59, 17:05.
However, viewed in its totality, the evidence clearly and convincingly
demonstrates that there is a reasonable probability that R.B. would suffer
serious bodily injury or death within thirty days if untreated. We note that:
in establishing the “clear and convincing” standard of proof for
involuntary treatment:
Whether the individual is mentally ill and dangerous to
[either himself or] others . . . turns on the meaning of the
facts which must be interpreted by expert psychiatrists and
psychologists. . . .
The subtleties and nuances of psychiatric diagnosis render
certainties beyond reach in most situations. . . . Within the
medical discipline, the traditional standard . . . is a
“reasonable medical certainty[.]” [The] “beyond a
reasonable doubt” standard would forc[e] reject[ion] [of]
commitment for many patients desperately in need of
institutionalized psychiatric care.
Commonwealth v. Helms, 506 A.2d 1384, 1389 (Pa. Super. 1986), quoting
Addington v. Texas, 441 U.S. 418, 429–30 (1979) (citations omitted)
(emphasis added). The legislature did not require indisputable proof that an
individual’s behavior would be repeated, but rather proof of the “probability”
of such an event, which denotes “a chance stronger than possibility but falling
short of certainty.” Helms, 506 A.2d at 1389, quoting Webster’s New World
Dictionary, Coll. Ed. (1966). Thus, a petitioner must present evidence
demonstrating a substantial likelihood that the behavior will recur if the
- 11 -
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individual is not involuntarily committed. Id. We believe that standard has
been met here.
Although Dr. Krausz could not say with absolute certainty that death or
serious bodily injury would result within thirty days, the trial court deemed
her testimony sufficient to find that R.B. posed a clear and present danger to
himself in the absence of further treatment, as contemplated by the statute:
Dr. Krausz testified that [R.B.] presented to the emergency
department with “chest pains,” which she believed were caused
by “severe anxiety,” as well as “allegations of some paranoid
delusions” and that he was not sleeping or eating. Though Dr.
Krausz testified that [R.B.] was participating in his unit’s
treatment schedule, including group therapy, she raised concerns
regarding medication compliance upon release due to R.B.
refusing any medication during his treatment. Further, in
response to a question from the [MRHO], the doctor described []
R.B.’s insight and judgment as “poor,” stating that these factors
contributed to her concerns that he would pose a risk of harm or
danger to himself due to lack of self-care. [Doctor] Krausz
testified that Brooke Glen is the least restrictive facility for R.B.
“because he has failed to fully engage in treatment,” continues to
hold paranoid beliefs about being followed, and refused all
medication, which she believes is vital to helping [R.B.] feel “less
paranoid, sleep better[,] and reduce the anxiety he has.”
Together these factors led Dr. Krausz to believe that, to the best
of her knowledge, without continued inpatient care, R.B. would
pose a substantial risk of serious bodily injury to himself in a less
restrictive environment. She was unable to conclusively state
whether this injury would happen within the thirty days prescribed
by statute, but it was her belief that it would happen.
Trial Court Opinion, 4/26/22, at 2.
We find R.B.’s reliance on In re S.M. to be misplaced. While the facts
there are similar to those in the matter sub judice, the Court in In re S.M.
found the evidence supporting the commitment insufficient primarily because
- 12 -
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the doctor “did not testify that S.M. posed a danger to herself or that there
was ‘a reasonable probability that death, serious bodily injury or serious
physical debilitation would ensue within 30 days unless adequate treatment
were afforded.’” In re S.M., 176 A.3d at 939. Conversely, here, Dr. Krausz
testified that R.B.’s behavior would continue without further treatment and
that he was a danger to himself because of his lack of self-care.
In sum, the record supports the trial court’s factual findings, and we can
discern no error of law. In re S.M., supra. Doctor Krausz’s testimony
demonstrated that, without further treatment—including medication—R.B.
would continue to pose a clear and present danger to himself through his lack
of self-care, poor insight, and limited judgment, particularly where the
stressors that caused the behavior continue to exist. See MRHO Hearing,
3/2/22, at 5:59 (Dr. Krausz testifying “what happened before is going to
continue without addressing it—not sleeping, not eating”). Accordingly, we
affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
- 13 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482324/ | USCA11 Case: 21-11768 Date Filed: 11/08/2022 Page: 1 of 23
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11768
____________________
MICHELLE AREVALO,
Plaintiff-Appellant,
versus
MENTOR WORLDWIDE LLC, et al.,
Defendant,
COLOPLAST CORP,
Defendant-Appellee.
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2 Opinion of the Court 21-11768
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cv-03577-TKW-MJF
____________________
Before LUCK, BRASHER, and ED CARNES, Circuit Judges.
PER CURIAM:
In 2010 Michelle Arevalo was surgically implanted with two
of Coloplast Corp.’s pelvic mesh products: the Aris Transobturator
Sling System and the Exair Prolapse Repair System. She suffered
pain and complications after the surgeries and sued Coloplast un-
der theories of strict liability and negligence.
The district court granted Coloplast’s Daubert motion to ex-
clude as unreliable the specific causation opinion of Dr. Bruce
Rosenzweig, Arevalo’s retained specific causation expert. It later
struck her belated disclosure of Dr. John Miklos as a non-retained
specific causation expert. The court then granted Coloplast sum-
mary judgment because Arevalo did not have admissible expert tes-
timony on specific causation. This is Arevalo’s appeal.
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21-11768 Opinion of the Court 3
I. BACKGROUND
Arevalo’s pelvic area issues began in childhood when she
started having bladder and urinary tract infections (UTIs). 1 Later
she developed pelvic pain, heavy and painful periods, and pain dur-
ing intercourse. Her three pregnancies each resulted in vaginal de-
liveries, some with complications. During her first delivery in
1994, she suffered a torn sphincter and had an episiotomy. Her
second and third deliveries (1997 and 2001) were both precipi-
tous (unusually fast). In 1995 she had a loop electrosurgical exci-
sion procedure (LEEP) to remove abnormal tissue from her cervix,
and in 2002 she had her tubes tied.
In 2010 Arevalo sought treatment from gynecologist Dr.
Glenn Bankert for her heavy and painful periods, pain during inter-
course, and occasional urine leakage. Dr. Bankert diagnosed her
with menorrhagia (heavy or prolonged periods), dysmenorrhea
(painful periods), pelvic pain, and stress urinary incontinence. He
also gave her a pelvic exam and found that she had an enlarged
uterus, a second-degree uterine prolapse, and a first-degree cysto-
cele. 2 In September 2010 he performed a total vaginal hysterec-
tomy to remove Arevalo’s uterus and cervix. At the same time, he
1 At this stage “we are required to view the evidence and all factual inferences
therefrom in the light most favorable to [Arevalo], and resolve all reasonable
doubts about the facts in [her] favor.” Feliciano v. City of Miami Beach, 707
F.3d 1244, 1247 (11th Cir. 2013) (quotation marks omitted).
2 A uterine prolapse occurs when the uterus drops down into the vaginal canal.
A cystocele occurs when the bladder drops down into the vaginal canal.
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4 Opinion of the Court 21-11768
implanted her with Coloplast’s Aris mesh to treat her stress urinary
incontinence.
Less than two months later Dr. Bankert diagnosed Arevalo
with significant pelvic organ prolapse. Her first-degree cystocele
had progressed to second-degree, meaning that her bladder had
fallen about halfway down her vaginal canal. She also had a sec-
ond- to third-degree rectocele. 3 That December Dr. Bankert per-
formed a second pelvic reconstructive surgery, this time to repair
her prolapsing organs. To strengthen her front and back vaginal
walls, he implanted them with Coloplast’s Exair mesh. He thought
both surgeries were successful.
Three and a half years later, Arevalo saw gynecologist Dr.
Marjorie Kahn for help with persisting pelvic area issues. Arevalo
complained of incomplete bladder emptying, vaginal bulging, uri-
nary frequency, occasional urine leakage, UTIs, uncomfortable uri-
nation, fecal incontinence, and pain during intercourse. During Dr.
Kahn’s pelvic exam of Arevalo, she could feel the Exair mesh in
Arevalo’s front vaginal wall. When Dr. Kahn touched the mesh,
Arevalo felt tenderness. Dr. Kahn ultimately diagnosed Arevalo
with a litany of conditions, including organ prolapse, scar pain, and
mesh implant complications. For treatment she recommended
physical therapy and trigger point injections in the tender areas to
break up any scar tissue. Arevalo reported some improvement af-
ter the injections but still felt pain during intercourse. Believing it
3 A rectocele occurs when the rectum protrudes through the back vaginal wall.
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21-11768 Opinion of the Court 5
would help relieve the pain and tenderness, Dr. Kahn proposed re-
moving some of the mesh.
In February 2014 Dr. Kahn performed a graft removal sur-
gery during which she removed most of the Exair mesh from Are-
valo’s front vaginal wall. 4 She also repaired and strengthened Are-
valo’s front vaginal wall and repaired her sphincter. Dr. Kahn
noted that Arevalo’s vaginal tissue was more pliable after surgery,
which she hoped would lessen the pain. But Arevalo continues to
have pelvic pain, pain during intercourse, and stress urinary incon-
tinence.
II. PROCEDURAL HISTORY
In February 2013 Arevalo filed a short form complaint
against Coloplast and other entities in a multidistrict litigation pro-
ceeding in the Southern District of West Virginia. In re: Coloplast
Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-2387
(S.D. W. Va. 2012). Her short form complaint adopted sixteen
counts from the MDL master complaint, but she ultimately pur-
sued only the following claims: negligent design and failure to
warn, strict liability design defect, strict liability failure to warn, and
gross negligence. She also sought punitive damages.
In September 2019 Arevalo’s case was transferred to the
Northern District of Florida, and the transfer order stated that the
4 Dr.Kahn testified that she never felt or located the Exair mesh in Arevalo’s
back vaginal wall.
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6 Opinion of the Court 21-11768
case was ready to be set for trial. At the time of transfer, Coloplast
had two outstanding motions. One was a motion for partial sum-
mary judgment on Arevalo’s uncontested claims. 5 The other was
a Daubert motion to exclude or limit opinions offered by Dr. Bruce
Rosenzweig, one of Arevalo’s general causation experts and her
only retained specific causation expert. The parties had also filed
other Daubert motions in the MDL action that had been denied
without prejudice, giving them the option to refile those motions
in the transfer court. Upon transfer, the parties told the district
court that they intended to renew these motions, and Coloplast
asked for the chance to re-brief them under our circuit’s law. Are-
valo opposed any re-briefing.
The district court held a case management conference, con-
cluded that the case was not ready for trial, and allowed the parties
to re-brief their Daubert motions. Arevalo re-filed four Daubert
motions and Coloplast re-filed five. One of Coloplast’s re-briefed
motions sought to exclude or limit Dr. Rosenzweig’s opinions.
Coloplast argued that Dr. Rosenzweig’s specific causation opinion
was unreliable because his differential diagnosis methodology —
5 Coloplast moved for partial summary judgment on Arevalo’s claims for neg-
ligent manufacturing, strict liability manufacturing defect, strict liability defec-
tive product, breach of express warranty, breach of implied warranty, con-
structive fraud, “discovery rule, tolling, and fraudulent concealment,” negli-
gent infliction of emotional distress, violation of consumer protection laws,
and unjust enrichment. Arevalo conceded that Coloplast was entitled to sum-
mary judgment on these claims, and the district court granted Coloplast’s mo-
tion.
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21-11768 Opinion of the Court 7
the scientific process of identifying and ruling out other possible
causes of an injury — was deficient. The district court granted all
nine Daubert motions in part. Relevant to this appeal, it excluded
as unreliable Dr. Rosenzweig’s specific causation opinion.
Coloplast promptly moved for summary judgment on the
grounds that Arevalo lacked competent specific causation evi-
dence. Seeing the writing on the wall, Arevalo moved for recon-
sideration of parts of the district court’s order excluding Dr.
Rosenzweig’s opinions and for the first time asked for an eviden-
tiary hearing. The district court denied the motion.
Arevalo made one last attempt to salvage her case. On July
27, 2020, less than three weeks after the district court excluded Dr.
Rosenzweig’s specific causation opinion, she had her first and only
appointment with Dr. John Miklos (who had served as a retained
expert in other pelvic mesh cases). On January 26, 2021 — nearly
three months after Coloplast’s motion for summary judgment was
fully briefed and with trial less than two months away6 — Arevalo
filed a supplemental Rule 26 expert witness disclosure naming Dr.
Miklos as a non-retained expert witness and treating physician. She
attached a case report Dr. Miklos prepared in which he opined that
based on a “differential diagnosis” process, the mesh implants are
the sole cause of her pain. Coloplast moved to strike the disclosure
under Federal Rule of Civil Procedure 37(c) as untimely. The
6 In February 2021, the parties agreed to continue trial to November 2021 for
reasons related to the COVID-19 pandemic.
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8 Opinion of the Court 21-11768
district court agreed that the disclosure was untimely and excluded
Dr. Miklos’ testimony.
Having resolved the expert witness issues, the district court
turned to Coloplast’s motion for summary judgment. It granted
Coloplast summary judgment on all remaining claims, finding that
Arevalo lacked sufficient proof of specific causation without Dr.
Rosenzweig’s excluded testimony. Arevalo timely appealed the fi-
nal judgment, listing in her notice of appeal the Daubert order ex-
cluding Dr. Rosenzweig’s opinions, the order excluding Dr. Mi-
klos’ testimony, and the order granting summary judgment.
III. DISCUSSION
A. Dr. Rosenzweig
We begin with the question of whether the district court
properly excluded Dr. Rosenzweig’s specific causation opinion that
Coloplast’s mesh implants caused Arevalo’s pain. We review for
abuse of discretion a district court’s Daubert rulings. Chapman v.
Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1305 (11th Cir.
2014). A district court has abused its discretion if it “applied an in-
correct legal standard, followed improper procedures, or made
clearly erroneous findings of fact.” Crawford v. ITW Food Equip.
Grp., LLC, 977 F.3d 1331, 1338 (11th Cir. 2020). We must apply
this standard “stringently, even if a decision on expert testimony is
outcome determinative.” Chapman, 766 F.3d at 1305 (quotation
marks omitted).
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21-11768 Opinion of the Court 9
“[W]e engage in a rigorous three-part inquiry” to determine
the admissibility of expert testimony under Federal Rule of Evi-
dence 702: (1) the expert must be qualified, (2) his methodology
must be sufficiently reliable as determined by the sort of inquiry
mandated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), and (3) his testimony must assist the trier of fact.
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en
banc). This appeal concerns the second prong — the reliability of
Dr. Rosenzweig’s differential diagnosis methodology.
To evaluate the reliability of a scientific expert opinion, the
district court assesses “whether the reasoning or methodology un-
derlying the testimony is scientifically valid and whether that rea-
soning or methodology properly can be applied to the facts in is-
sue.” Id. at 1261–62 (alteration adopted and quotation marks omit-
ted). There can’t be too great an analytical gap between the data
and the expert’s opinion, and the expert cannot bridge this gap with
mere ipse dixit. Guinn v. AstraZeneca Pharms. LP, 602 F.3d 1245,
1255–56 (11th Cir. 2010). As the proponent of Dr. Rosenzweig’s
expert opinion, Arevalo has the burden of establishing its reliabil-
ity. Frazier, 387 F.3d at 1260.
Dr. Rosenzweig intended to offer the opinion that within a
reasonable degree of medical certainty, the Aris and Exair mesh im-
plants directly caused Arevalo’s pelvic pain, vaginal pain, pain dur-
ing intercourse, frequent UTIs, urinary and fecal incontinence, and
mesh removal procedure. In his case-specific expert report, Dr.
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10 Opinion of the Court 21-11768
Rosenzweig explained that he arrived at this specific causation
opinion by employing a differential diagnosis methodology.
The differential diagnosis methodology is “a medical process
of elimination whereby the possible causes of a condition are con-
sidered and ruled out one-by-one, leaving only one cause remain-
ing.” Chapman, 766 F.3d at 1308 (quotation marks omitted). It
requires three steps: “(1) the patient’s condition is diagnosed, (2) all
potential causes of the ailment are considered, and (3) differential
etiology is determined by systematically eliminating the possible
causes.” Id. To be reliable, a differential analysis “need not rule
out all possible alternative causes” but “must at least consider other
factors that could have been the sole cause of the plaintiff’s injury.”
Id. at 1308–09 (quotation marks omitted).
If properly followed, differential diagnosis can be a reliable
methodology under Daubert. Id. at 1309. But “an expert does not
establish the reliability of his techniques or the validity of his con-
clusions simply by claiming that he performed a differential diag-
nosis on a patient.” McClain v. Metabolife Int’l, Inc., 401 F.3d 1233,
1253 (11th Cir. 2005). “[A] differential diagnosis that fails to take
serious account of other potential causes may be so lacking that it
cannot provide a reliable basis for an opinion on causation.” Guinn,
602 F.3d at 1253 (quotation marks omitted).
Dr. Rosenzweig’s expert report stated that he had used a dif-
ferential diagnosis methodology, but it was short on details. The
entirety of his report about that methodology was this:
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21-11768 Opinion of the Court 11
Based upon my medical education, experience, my
review of the currently available medical literature,
and [Arevalo’s] medical records, I have formed opin-
ions regarding her current complications. In coming
to these conclusions, a broad differential diagnosis
was reviewed and considered her medical and surgi-
cal history, which includes: she was a G3 P3. Her
medical history includes: Kidney stones, Asthma, Bi-
polar disorder, Headaches, rectocele, cystocele, uter-
ine prolapse, Human papilloma virus and dysplasia of
uterine cervix. Her surgical history was remarkable
for T.L. and LEEP procedure. None of these condi-
tions lead to the current injuries she is suffering from.
I ruled out the hysterectomy as there are no findings
of tenderness at the vaginal cuff.
1. The District Court’s Daubert Order
Coloplast moved to exclude as unreliable Dr. Rosenzweig’s
specific causation opinion, arguing that he did not perform an ade-
quate differential diagnosis methodology because he failed to pro-
vide a medically sound basis for how he ruled out aspects of Are-
valo’s medical history as possible alternative causes. Coloplast at-
tached to its motion Dr. Rosenzweig’s case-specific expert report
and a few pages of his case-specific deposition transcript. Arevalo
responded that Dr. Rosenzweig reviewed her medical records and
properly ruled out other potential causes, but she did not attach
or even refer to any part of Dr. Rosenzweig’s deposition testimony.
Instead she relied exclusively on his expert report.
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The district court granted Coloplast’s motion, finding that
Dr. Rosenzweig did “not explain how he systematically and scien-
tifically ruled out the other potential causes” for Arevalo’s condi-
tion, “such as her rectocele, cystocele, or uterine prolapse.” With-
out more information about how he had ruled out potential alter-
native causes, the court could not ensure that he had made a relia-
ble differential diagnosis. In excluding Dr. Rosenzweig’s differen-
tial diagnosis methodology, the district court excluded his entire
specific causation opinion.
The district court did not abuse its discretion when it ex-
cluded Dr. Rosenzweig’s specific causation opinion. In his cursory
report, Dr. Rosenzweig offered no explanation — let alone any sci-
entific support — for ruling out the potential alternative causes that
he had identified (other than the hysterectomy). A reliable differ-
ential diagnosis requires the expert to offer some explanation for
how he ruled out an alternative cause. Hendrix ex rel. G.P. v.
Evenflo Co., 609 F.3d 1183, 1197 (11th Cir. 2010); see also Chap-
man, 766 F.3d at 1310 (“The expert must provide reasons for reject-
ing alternative hypotheses using scientific methods and procedures
and the elimination of those hypotheses must be founded on more
than subjective beliefs or unsupported speculation.”) (quotation
marks omitted). Dr. Rosenzweig’s assurances that he had done a
differential diagnosis are not enough to establish the reliability of
his methodology. McClain, 401 F.3d at 1253.
Arevalo argues that the district court should not have faulted
Dr. Rosenzweig for failing to explain why he ruled out Arevalo’s
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21-11768 Opinion of the Court 13
rectocele, cystocele, and uterine prolapse. According to Arevalo,
there was no need to rule out those potential causes because the
Exair mesh fixed her rectocele and cystocele, and it was impossible
for her to still have uterine prolapse because she no longer had a
uterus. Arevalo’s argument is wrong on the facts about the cysto-
cele; the record shows that during the mesh removal procedure,
Dr. Kahn found that Arevalo had another cystocele. And, in any
event, it is not Arevalo’s post hoc explanations that matter to the
reliability analysis. The district court’s criticism of Dr. Rosenzweig
for omitting an explanation for ruling out those three potential
causes is valid. 7 See, e.g., Hendrix, 609 F.3d at 1197; Chapman, 766
F.3d at 1310.
7 Citing the law of the case doctrine, Arevalo also suggests that the district
court reversed the MDL court’s transfer order when it allowed Coloplast to
challenge the differential diagnosis methodology in its re-briefed Daubert mo-
tion even though it had not done so in its MDL briefing. Arevalo’s law of the
case argument fails because the district court did not reverse the MDL transfer
order. Indeed, the MDL order itself acknowledged that the parties had filed
dispositive and Daubert motions that were to be resolved by the transferee
court.
“District courts have unquestionable authority to control their own dockets,”
which includes “broad discretion in deciding how best to manage the cases
before them.” Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir.
2014) (quotation marks omitted). The district court in this case ordered re-
briefing on the Daubert motion because it decided that was the best way to
make the correct ruling on that motion. The district court did not abuse its
discretion in doing so.
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14 Opinion of the Court 21-11768
2. The District Court’s Denial of Reconsideration
Arevalo next contends that the district court erred when it
refused to reconsider its order excluding Dr. Rosenzweig’s specific
causation opinion. We review a district court’s decision about
whether to reconsider its own interlocutory order only for abuse
of discretion. See Harper v. Lawrence County, 592 F.3d 1227,
1231–32 (11th Cir. 2010); Region 8 Forest Serv. Timber Purchasers
Council v. Alcock, 993 F.2d 800, 805–06 (11th Cir. 1993).
It wasn’t until Arevalo moved for reconsideration that she
gave the court the complete transcript of Dr. Rosenzweig’s deposi-
tion and pointed out the specific testimony relevant to his differen-
tial diagnosis. This oversight occurred even though, according to
Arevalo, Dr. Rosenzweig’s differential diagnosis methodology was
fleshed out in his deposition testimony.8 Citing the legal standard
for reconsideration of a final judgment, Arevalo argued that it
would be manifestly unjust for the district court to decline to re-
consider its Daubert order in light of the full deposition testimony.
The district court denied reconsideration. It agreed with
Arevalo that the only grounds for granting reconsideration are
newly discovered evidence or manifest errors of law or fact. See,
8 Arevalo never explained to the district court why she failed to provide or
reference the deposition testimony when she first opposed the Daubert mo-
tion to exclude Dr. Rosenzweig’s differential diagnosis methodology. The tes-
timony was available for nearly a year before she filed her response in opposi-
tion to Coloplast’s Daubert motion. She now concedes that attaching the
complete deposition transcript to her response “might’ve been best practice.”
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21-11768 Opinion of the Court 15
e.g., Samara v. Taylor, 38 F.4th 141, 149 (11th Cir. 2022) (reviewing
the denial of a motion for reconsideration under Federal Rule of
Civil Procedure 59(e)). For this reason, it explained, a party cannot
use a motion for reconsideration “to relitigate old matters, raise ar-
gument or present evidence that could have been raised prior to
the entry of judgment.” Id. (quotation marks omitted). It then
found that Arevalo had not met this high bar for reconsideration:
she either rehashed old arguments or presented evidence (the dep-
osition testimony) that was available while the Daubert motion
was pending.
Arevalo argues that the district court abused its discretion by
applying the standard for reconsideration of final judgments under
Rules 59(e) or 60(b). 9 She asserts the court should have used its
inherent power under Rule 54(b) to reconsider its own interlocu-
tory order. See Fed. R. Civ. P. 54(b) (“[A]ny order or other deci-
sion, however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties . . . may be
revised at any time before the entry of a [final] judgment.”); Toole
v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000)
(“Since an order granting a new trial is an interlocutory order, the
district court has plenary power over it and this power to
9 “A motion for reconsideration made after final judgment falls within the am-
bit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b)
(motion for relief from judgment or order).” Region 8 Forest Serv. Timber
Purchasers Council, 993 F.2d at 806 n.5.
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16 Opinion of the Court 21-11768
reconsider, revise, alter or amend the interlocutory order is not
subject to the limitations of Rule 59.”) (quotation marks omitted).
If the district court erred by applying the wrong standard,
the error was invited. 10 Arevalo urged the district court to apply
the legal standard for reconsideration under Rule 59(e). She can’t
now complain that the district court applied the standard she re-
quested. See EEOC v. Mike Smith Pontiac GMC, Inc., 896 F.2d
524, 528 (11th Cir. 1990) (declining to reverse the district court’s
decision where the appellant had invited error as to the application
of the wrong legal standard); FTC v. AbbVie Prods. LLC, 713 F.3d
54, 65–66 (11th Cir. 2013). 11
10Though Coloplast did not argue that Arevalo invited error, we apply the
doctrine anyway. See United States v. Brown, 934 F.3d 1278, 1301 (11th Cir.
2019).
11 Arevalo briefly asserts that even under Rule 59(e)’s reconsideration stand-
ard, the district court clearly erred because Dr. Rosenzweig’s full deposition
established that the court initially misunderstood Arevalo’s medical history,
including the significance of her rectocele, cystocele, and uterine prolapse. But
motions for reconsideration may not be used to present testimony that could
have been introduced earlier. See, e.g., Grange Mut. Cas. Co. v. Slaughter,
958 F.3d 1050, 1059–60 (11th Cir. 2020). Denial of a Rule 59(e) motion for
reconsideration “is especially soundly exercised” when, as here, “a party gives
no reason for not previously raising an issue.” Wilchombe v. TeeVee Toons,
Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quotation marks omitted). And as
discussed, the district court did not err, much less clearly err, by finding that
Dr. Rosenzweig’s expert report failed to explain how he ruled out Arevalo’s
rectocele, cystocele, or uterine prolapse. So under the standard the district
court applied, it did not abuse its discretion in denying reconsideration.
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21-11768 Opinion of the Court 17
B. Dr. Miklos
Arevalo next challenges the district court’s decision to strike
her belated disclosure of Dr. Miklos. Federal Rule of Civil Proce-
dure 26(a)(2)(D) requires a party to disclose the identities of her ex-
pert witnesses at the time and in the sequence the court orders.
Rule 26(e)(1)(A) requires a party to supplement these disclosures
“in a timely manner” if she later learns that in some material respect
they are incomplete or incorrect. If a party violates those disclosure
requirements, Rule 37 sanctions may be applied. See Fed. R. Civ.
P. 37(c)(1). One of those sanctions is that “the party is not allowed
to use that information or witness to supply evidence on a motion,
at a hearing, or at a trial,” unless the failure to disclose “was sub-
stantially justified or is harmless.” Id. The court may also impose
“other appropriate sanctions.” Fed. R. Civ. P. 37(c)(1)(C).
The district court found that Arevalo had violated Rule 26.
Her disclosure came more than three years after the court’s dead-
line for disclosing specific causation experts, and even if it could be
considered a supplemental disclosure under Rule 26(e) it was not
made “in a timely manner.” At Arevalo’s appointment with Dr.
Miklos in July 2020, the doctor told her that the mesh implants
were the cause of her pelvic pain. So Arevalo could have and
should have disclosed him as an expert witness in July 2020 instead
of six months later at the end of January 2021. The court found
that the late disclosure was neither substantially justified nor harm-
less, and it excluded Dr. Miklos’ testimony under Rule 37(c)(1).
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18 Opinion of the Court 21-11768
We review a district court’s Rule 37(c)(1) decision only for
abuse of discretion. Crawford, 977 F.3d at 1341. When deciding
whether the exclusion of a late-disclosed witness was an abuse of
discretion, we “consider the explanation for the failure to disclose
the witness, the importance of the testimony, and the prejudice to
the opposing party.” Fabrica Italiana Lavorazione Materie Or-
ganiche, S.A.S v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776,
780 (11th Cir. 1982).
Applying those factors, we conclude that the district court
did not abuse its discretion by excluding Dr. Miklos’ testimony.
The record supports the district court’s findings that Arevalo didn’t
have a good reason for the late disclosure and that the disclosure
prejudiced Coloplast. Arevalo explains that she didn’t disclose Dr.
Miklos sooner because he wasn’t sure whether she had all her mesh
removed, and he wanted to obtain her medical records before sug-
gesting treatment. But as the district court pointed out, Dr. Miklos
received Arevalo’s medical records within days after her appoint-
ment with him. He had all the information he needed to form his
opinion in July 2020. Though Dr. Miklos may have needed time to
review the records, Arevalo could have immediately given notice
that he would be providing an expert opinion (even if he could not
yet make his final treatment recommendation). At the least, she
was aware of his causation opinion as early as July 2020 and should
have asked at that point for the disclosure deadline to be reopened.
As for the prejudice to Coloplast, Arevalo waited until after
the close of discovery to disclose Dr. Miklos’ opinions, which
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21-11768 Opinion of the Court 19
deprived Coloplast of an opportunity to depose the doctor or pre-
pare rebuttal evidence. The district court considered reopening
discovery but decided not to do so because it would have increased
litigation costs and delayed any trial. Coloplast may have needed
additional discovery for rebuttal, it would have likely filed another
Daubert motion, and its summary judgment motion would have
needed to be re-briefed.
The district court recognized that Dr. Miklos’ testimony was
“clearly important” to Arevalo’s case. But we have held that the
first and third factors together can outweigh the second. Romero
v. Drummond Co., 552 F.3d 1303, 1321 (11th Cir. 2008); see also
Bearint ex rel. Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1353
(11th Cir. 2004) (“Regardless of the importance of [the] testimony,
the reasons for the delay in the . . . disclosure and the consequent
prejudice that [the] testimony would have caused [the nonmoving
party] require us to affirm the district court’s ruling.”).
Our review of a district court’s Rule 37 sanctions decision is
limited and deferential. “[W]e will not reverse the imposition of
sanctions under Rule 37 unless we are left with a definite and firm
conviction that the court below committed a clear error of judg-
ment in the conclusion it reached upon a weighing of relevant fac-
tors.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1313 (11th Cir. 2011) (quotation marks omitted); see also OFS
Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1360
(11th Cir. 2008) (“Our review of a district court’s decision to impose
sanctions under Rule 37 is sharply limited to a search for an abuse
USCA11 Case: 21-11768 Date Filed: 11/08/2022 Page: 20 of 23
20 Opinion of the Court 21-11768
of discretion and a determination that the findings of the trial court
are fully supported by the record”) (quotation marks omitted). We
conclude that the district court acted within its considerable discre-
tion when it struck Arevalo’s untimely disclosure of Dr. Miklos and
prohibited her from using his expert opinion testimony. See, e.g.,
Guevara v. NCL (Bah.) Ltd., 920 F.3d 710, 718–19 (11th Cir. 2019)
(concluding that the district court did not abuse its “broad discre-
tion” in striking a supplemental expert report where the plaintiff
unreasonably delayed in filing it until after the close of discovery
and after the defendant had filed its motion for summary judgment
and Daubert motions, and the plaintiff had done so without seeking
leave of court or moving to extend discovery). 12
12 Arevalo alternatively contends that the court abused its discretion by refus-
ing to impose a lesser sanction. She argues that because the grant of Colo-
plast’s motion to strike Dr. Miklos’ disclosure led to its summary judgment
victory, the exclusion of Dr. Miklos’ testimony ultimately “amounted to a dis-
missal.” According to Arevalo, to exclude the evidence entirely the district
court was required to find bad faith or willfulness.
We have not decided whether an untimely disclosure, even one that is not
substantially justified or harmless, always requires exclusion of the evidence.
Crawford, 977 F.3d at 1342 n.4. But we cannot say that the district court
abused its discretion by excluding Dr. Miklos’ testimony in its entirety. First,
“[o]ur caselaw is clear that only in a case where the court imposes the most
severe [Rule 37] sanction — default or dismissal — is a finding of willfulness
or bad faith failure to comply necessary.” BankAtlantic v. Blythe Eastman
Paine Webber, Inc., 12 F.3d 1045, 1049 (11th Cir. 1994). The court did not
impose either of those Rule 37 sanctions. Instead, it excluded the testimony
of the witness. Second, the court did consider other options short of preclud-
ing Arevalo from using Dr. Miklos’ testimony but found that exclusion of the
USCA11 Case: 21-11768 Date Filed: 11/08/2022 Page: 21 of 23
21-11768 Opinion of the Court 21
C. Summary Judgment
Finally, we consider Arevalo’s challenge to the grant of sum-
mary judgment in favor of Coloplast on her strict liability and neg-
ligence claims. Our review is de novo. See Chapman, 766 F.3d at
1312. Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
When a party fails to proffer sufficient evidence to establish an ele-
ment on which she will bear the burden of proof at trial, there is
no genuine dispute of material fact. Chapman, 766 F.3d at 1312.
To prove causation under Florida law, which applies to Are-
valo’s strict liability and negligence claims, the plaintiff must intro-
duce evidence that “it is more likely than not that the conduct of
the defendant was a substantial factor in bringing about the result.”
Guinn, 602 F.3d at 1256 (quoting Gooding v. Univ. Hosp. Bldg.,
Inc., 445 So. 2d 1015, 1018 (Fla. 1984)). To avoid summary judg-
ment in this products liability case, Arevalo must have “Daubert-
qualified, general and specific-causation-expert testimony that
would be admissible at trial.” Chapman, 766 F.3d at 1316. Dr.
Rosenzweig’s and Dr. Miklos’ specific causation opinions are inad-
missible. But Arevalo argues that Dr. Kahn’s opinions are enough
testimony was the appropriate remedy under the circumstances. It explained
that “[a]ny lesser sanction would frustrate the purpose and intent of Rule 26
and the discovery process and frustrate the orderly (and long-overdue) dispo-
sition of this case.” We are not persuaded that this was a clear error of judg-
ment. Josendis, 662 F.3d at 1313.
USCA11 Case: 21-11768 Date Filed: 11/08/2022 Page: 22 of 23
22 Opinion of the Court 21-11768
to create a factual dispute about specific causation sufficient to
withstand summary judgment. We disagree.
Dr. Kahn testified that when she gave Arevalo a physical
exam and touched Exair mesh in the front vaginal wall, Arevalo felt
tenderness and pain (distinct from the pain at the site of her hyster-
ectomy scar). Dr. Kahn described the band of mesh as tight and
unpliable and thought that removing it would relieve the pain and
tenderness. She testified that after removing “a good portion” of
the front mesh, she felt an “appreciable decrease in the band” —
meaning that it had “loosen[ed]” — which gave her hope that Are-
valo’s pain would improve. And during Arevalo’s final post-op
exam, Dr. Kahn’s notes don’t reflect that Arevalo complained of
any tenderness.
But when it came to offering a causation opinion, Dr. Kahn’s
testimony was speculative and equivocal. When asked whether
the “pain that [Arevalo] had been experiencing before [the mesh
removal] was caused or contributed to have been caused by the
mesh,” Dr. Kahn answered, “It’s possible, but she didn’t come
back, so I don’t know.” She opined that the pain and tenderness at
the site of the front mesh implant were “more likely than not . . .
related to the graft,” but she didn’t know whether the mesh re-
moval procedure was successful in relieving the tenderness that
Arevalo had reported. She explained that the “real test” of the re-
moval surgery’s success would be if Arevalo no longer had pain
during intercourse. And Arevalo testified that after the surgery she
has continued to have that pain. Dr. Kahn also ruled out the mesh
USCA11 Case: 21-11768 Date Filed: 11/08/2022 Page: 23 of 23
21-11768 Opinion of the Court 23
as a cause of Arevalo’s mixed urge and stress incontinence, urinary
urgency and frequency, fecal smearing, fecal incontinence, myal-
gia, and hysterectomy scar pain.
Dr. Kahn’s testimony is not enough to create a genuine issue
about whether the mesh implants were substantial factors in caus-
ing Arevalo’s injuries. 13 Because Arevalo lacks sufficient admissible
expert testimony on specific causation, Coloplast is entitled to sum-
mary judgment. See Rink v. Cheminova, Inc., 400 F.3d 1286, 1295–
96 (11th Cir. 2005) (affirming summary judgment based on exclu-
sion of expert testimony on causation).
IV. CONCLUSION
The district court did not abuse its discretion by excluding
Dr. Rosenzweig’s specific causation opinion and Dr. Miklos’ expert
testimony. Nor did it err in granting summary judgment in favor
of Coloplast.
The final judgment of the district court is AFFIRMED.
13 There are lingering questions about whether Dr. Kahn’s specific causation
opinion was properly disclosed under Rule 26(a)(2)(C) and whether it could
survive Daubert scrutiny. The district court left these questions unanswered.
Because we do not believe that Dr. Kahn’s testimony creates a factual dispute
about specific causation in any event, we need not remand for the district
court to consider these issues. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482328/ | J-S31010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.D.S.-J., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: Z.D.S.-J., MINOR :
:
:
:
: No. 416 EDA 2022
Appeal from the Order Entered January 25, 2022
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-JV-000392-2021
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 8, 2022
Z.D.S.-J. appeals from the dispositional order entered on January 25,
2022, after the juvenile court denied his motion to suppress physical evidence
and adjudicated him delinquent of carrying a firearm without a license and
possession of a firearm by a minor. We affirm.
The juvenile court summarized the factual history as follows:
On December 19, 2021, Officer [Justin] Winters was
dispatched to 815 Ferry St., Apt. B, Easton, Pennsylvania to
respond to an attempted break-in. Once on scene, Officer Winters
made contact with the caller, Catherine Vasquez, who stated that
multiple individuals had tried to break into her apartment and that
they were currently positioned in front of her rear apartment door.
Officer Winters entered the complex through the back door and
made contact with four males, including [Z.D.S.-J.], standing in
front of Apartment B’s rear door. The officer, while waiting for
backup, directed all four individuals to keep their hands out of
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S31010-22
their pockets. Officer Winters asked what they were doing there.
In response, the four individuals explained they had planned to
connect with a friend who lived in the complex, but were waiting
for a ride because that friend was not home.
After backup arrived, Officer Winters asked one of the
individuals to escort him to their friend’s apartment to confirm
whether the individuals were telling the truth. They made contact
with the friend’s mother who recognized the individual as a friend
of her son, but explained that her son was not home and that the
four individuals were not there that evening. On their way back
to the others, Officer Winters asked the individual who escorted
him whether he had anything on him, such as weapons or drugs.
He admitted to possessing a small amount of marijuana and
voluntarily handed it to Officer Winters. Both Officer Winters and
the individual made their way back to the first floor of the
apartment complex.
Subsequently, the officers began running background
checks on the four individuals. In the meantime, Officer Winters
spoke with the complainant and her daughter. They maintained
that the daughter was initially home alone when she heard
something banging or hitting the rear door. The daughter also
saw the door handle jiggling and heard multiple voices outside the
door. Ms. Vasquez returned home shortly thereafter and, upon
seeing the door handle jiggling, called 9-1-1.
The background checks revealed that one of the individuals
had an outstanding arrest warrant in Northampton County. That
individual was placed under arrest and a subsequent search of his
person revealed a prop gun.2 Officer Winters emphasized that he
had prior knowledge, from police intelligence, that all four
individuals, including [Z.D.S.-J.] were gang affiliated.
__
2 The prop gun found was an imitation Glock BB gun.
Afterwards, the officers resumed their investigation of the
attempted break-in. When asked, all three, including [Z.D.S.-J.],
denied any involvement in an alleged break-in or even touching
the door handle. Based upon the seriousness of the call he
responded to, the knowledge that all individuals were gang
affiliated, and the fact that a prop gun was found on one of
-2-
J-S31010-22
[Z.D.S.-J.’s] companions, Officer Winters conducted safety frisks
of [Z.D.S.-J.] and the other individuals. Officer Winters felt
something hard around the right ankle of [Z.D.S.-J.] that the
officer immediately recognized as a gun. When asked if it was
another prop gun, [Z.D.S.-J.] stated that it was a real gun and
officers confiscated a .22 caliber silver and brown Jennings Model
handgun.
Trial Court Opinion, 4/26/22, at 1-3.
Z.D.S.-J. was arrested and charged with carrying a firearm without a
license and possessing a firearm as a minor, since he was fifteen years old at
the time that the incident occurred. On January 4, 2022, Z.D.S.-J. filed a pre-
trial motion to suppress the firearm, contending that Officer Winters did not
have the necessary “reasonable suspicion” that Z.D.S.-J. was engaged in
criminal activity or that he was armed and dangerous, to allow him to stop
and frisk Z.D.S.-J. See “Defendant’s Motion to Suppress,” 1/4/22, at
unnumbered 2. The same day, the juvenile court held a suppression hearing
on Z.D.S.-J.’s motion. At the hearing, Officer Winters testified, explaining the
above-described circumstances surrounding his stop and frisk of Z.D.S.-J.
See Suppression Hearing, 1/4/22, at 4-25. At the conclusion of Officer’s
Winters testimony and after receiving arguments from both sides, the court
denied the motion, finding “that there was reasonable articulable suspicion
that criminal activity was afoot and that [Z.D.S.-J.] may be armed and
dangerous.” Id. at 31-32.
Z.D.S.-J. proceeded directly to an adjudication hearing at which Officer
Winters also testified. Id. at 32. Ultimately, the juvenile court adjudicated
Z.D.S.-J. delinquent for committing acts that would constitute the above-
-3-
J-S31010-22
referenced offenses if committed by an adult. Id. at 46. Appellant was
detained pending his disposition hearing. On January 25, 2022, the court held
the disposition hearing. At the conclusion, Z.D.S.-J. was committed to a
secure residential program for juvenile delinquents. This timely notice of
appeal followed. Z.D.S.-J. and the juvenile court both complied with the
mandates of Pa.R.A.P. 1925.
Z.D.S.-J. raises the following issue for our review:
Did the trial court err by denying [Z.D.S.-J.’s] pre-trial motion for
the suppression and exclusion of evidence, specifically a Jennings
Model J-22, .22 caliber silver handgun, because the search and
seizure violated the Fourth Amendment of the United States
Constitution and Article 1, Section 8 of the Pennsylvania
Constitution?
Z.D.S.-J.’s brief at 9. Although stated as a single question, Z.D.S.-J. actually
raises two different arguments challenging the legality of the stop and the
frisk, separately.
Preliminarily, we set forth our standard of review:
An appellate court’s standard of reviewing the denial of a
suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Thus, our review of questions of law is de novo. Our
scope of review is to consider only the evidence for the defense
as remains uncontradicted when read in the context of the
suppression record as a whole.
Commonwealth v. Shaffer, 209 A.3d 957, 968-69 (Pa. 2019) (citations
omitted). Where the issue on appeal relates solely to a suppression ruling,
we examine “only the suppression hearing record” and exclude from
-4-
J-S31010-22
consideration “evidence elicited at trial.” Commonwealth v. Yandamuri,
159 A.3d 503, 516 (Pa. 2017).
Both the United States and Pennsylvania Constitutions provide
coterminous protections against “unreasonable searches and seizures.” See
Interest of T.W., 261 A.3d 409, 418 (Pa. 2021). The law recognizes three
distinct levels of interaction between police officers and citizens: (1) a mere
encounter, (2) an investigative detention, and (3) a custodial detention. See
Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa.Super. 2017). It is
undisputed that the stop-and-frisk at issue in this case constituted an
investigative detention in the nature of a protective weapons search. Such a
search is governed by Terry v. Ohio, 392 U.S. 1 (1968) pursuant to both the
Fourth Amendment to the United States Constitution and Article I, Section 8
of the Pennsylvania Constitution. See Appellant’s brief at 18; see also
Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010) (recognizing that
Terry “sets forth the reasonableness standard for Article I, [Section] 8 of the
Pennsylvania Constitution.”); see also Commonwealth v. Grahame, 7 A.3d
810, 816 (Pa. 2010) (“Pennsylvania courts have always followed Terry
regardless of whether the appellant’s claim was predicated on the Fourth
Amendment or Article I, Section 8 of the Pennsylvania Constitution.”).
For a Terry frisk to be constitutionally sound, the following two
conditions must be met:
First, the investigatory stop must be lawful. That requirement is
met in an on-the[-]street encounter . . . where the police officer
-5-
J-S31010-22
reasonably suspects that the person apprehended is committing
or has committed a criminal offense. Second, to proceed from a
stop to a frisk, the police officer must reasonably suspect that the
person is armed and dangerous.
Interest of T.W., supra at 417 (quoting Arizona v. Johnson, 555 U.S. 323,
326-27 (2009). Reasonable suspicion in this context is defined as “a suspicion
that is less than a preponderance of the evidence but more than a hunch.”
Commonwealth v. Jackson, 907 A.2d 540, 543 (Pa.Super. 2006). In
determining whether police officers possess reasonable suspicion of criminal
activity, a suppression court must consider the totality of the circumstances
“through the eyes of a trained officer, not an ordinary citizen.” Id.
I. The Legality of the Terry Stop
First, Z.D.S.-J. asserts that the juvenile court erred in denying his
suppression motion because Officer Winters lacked reasonable suspicion that
Z.D.S.-J. was committing a crime, and thus, had no grounds to conduct a legal
stop. See Appellant’s brief at 20-22. Specifically, Z.D.S.-J. contends that the
officer needed to substantiate the caller’s claim that four males were trying to
break-in to her apartment before stopping Z.D.S.-J. See Z.D.S.-J.’s brief at
20-21.
In contrast, the suppression court opined that reasonable suspicion
supported Officer Winters investigative detention. See Juvenile Court
Opinion, 4/26/22, at 6. First, the court found that Officer Winters was legally
present, since he was responding to a 911 call reporting a possible burglary
involving four males. Id.; see also N.T. Suppression Motion Hearing, 1/4/22,
-6-
J-S31010-22
at 4-5, 22. The court then concluded that the officer had reasonable suspicion
that criminal activity was afoot when Officer Winters encountered Z.D.S.-J.
and his three cohorts standing in the exact position that the complainant
reported within minutes of receiving the 911 call. Id.; see also N.T.
Suppression Motion Hearing, 1/4/22, at 6, 23. We agree.
Our review of the certified record supports the suppression court’s
findings. In addition to the facts relayed by the suppression court, the
evidence of record also established that when responding to the 911 call,
Officer Winters saw no other individuals in the area and immediately
recognized the young men as gang members. See N.T. Suppression Motion
Hearing, 1/4/22, at 23. Accordingly, based on the totality of the
circumstances, the officer reasonably believed that criminal activity was afoot
and that a stop of Appellant was necessary to investigate the incident further.1
II. The Legality of the Terry Frisk
We next consider Z.D.S.-J.’s contention that Officer Winters lacked
reasonable suspicion to believe that he was armed and dangerous since he
offered an innocent explanation for his presence, was not observed with any
____________________________________________
1 Furthermore, this Court has held that the requirement to find that criminal
activity is afoot is unnecessary in cases involving the companions of arrestees.
See Commonwealth v. Jackson, 907 A.2d 540, 544 (Pa.Super. 2006).
Herein, one of Z.D.S.-J.’s cohorts possessed illegal narcotics and another was
arrested based on an active arrest warrant. Since the officer possessed the
necessary reasonable suspicion to stop his companions, it follows that the
officer also had reasonable suspicion to briefly detain Appellant.
-7-
J-S31010-22
weapons, and did not engage in any evasive behaviors indicating that he was
armed and dangerous. See Z.D.S.-J.’s brief at 24-29. In his view, no basis
independent of his companion’s possession of a prop gun existed to establish
that he was armed and dangerous. Id. Therefore, the frisk of Z.D.S.-J. was
invalid. Id. at 26-29.
Again, the juvenile court disagreed, finding that the officer’s timely
response to a potential break-in, prior knowledge of Z.D.S.-J.’s gang
affiliations, and the fact that one of Z.D.S.-J.’s companions possessed a prop
gun reasonably led Officer Winters to conclude that Z.D.S.-J. presented a
potential danger. See Juvenile Court Opinion, 4/26/22, at 7. Thus, the frisk
was justified. Id. We agree.
To conduct a valid pat-down, a “police officer must be able to articulate
specific facts from which he reasonably inferred that the individual was armed
and dangerous.” Commonwealth v. Gray, 896 A.2d 601, 606 (Pa.Super.
2006). Whether a prudent man in the circumstances would be warranted in
the belief that the suspect was armed or dangerous may arise in a variety of
circumstances:
Close spatial and temporal proximity to the scene of a crime can
heighten a police officer’s reasonable suspicion. A police officer
may reasonably believe himself or herself to be in danger when
the crime reported to have been committed is a violent crime,
when a perpetrator is reported to possess or have used a weapon,
or when the hour is late or the location is desolate. A frisk might
also be implemented to protect innocent bystanders within the
vicinity.
In re N.L., 739 A.2d 564, 568 (Pa.Super. 1999).
-8-
J-S31010-22
Furthermore, while our appellate courts have rejected a per se
“automatic companion rule,” the behavior of a suspect’s companions can be a
relevant factor in the totality of the circumstances analysis if evidence of a
common enterprise is advanced. See Commonwealth v. Jackson, 907 A.2d
540, 544 (Pa.Super. 2006) (rejecting the “automatic companion rule” and
noting that our courts require individualized suspicion that a suspect may be
armed and dangerous before proceeding to a valid frisk); see, e.g., Grahame
supra at 817 (finding the officer lacked reasonable suspicion to conduct a frisk
of a defendant based solely on her presence inside the house where another
individual conducted a drug deal, since she was not present for the transaction
and the Commonwealth presented no evidence of a shared common enterprise
between the two suspects.)
Herein, Officer Winters quickly responded to the report of an active
burglary attempt, a violent felony, where he observed Z.D.S.-J. and his three
compatriots in the exact location described. The group denied attempting to
enter the apartment and claimed they were visiting a friend upstairs.
However, after speaking with their friend’s mother, Officer Winters was only
able to confirm that the males were friends, not that they had been to the
apartment that day. Thus, the record does not support Z.D.S.-J.’s contention
that the innocent explanation for his presence was proven. To the contrary,
Officer Winters’ brief investigation led him to conclude that Z.D.S.-J. and his
companions were being evasive about the reason for their presence at the
-9-
J-S31010-22
caller’s door. Moreover, it is undisputed that Z.D.S.-J. had a close association
with the other males. Given Z.D.S.-J.’s close association, the fact that Officer
Winters discovered marijuana and an imitation Glock 9 mm BB gun on Z.D.S.-
J.’s cohorts before he frisked Z.D.S.-J. was properly considered by the juvenile
court as a relevant factor in its analysis. Id. Finally, Officer Winters testified
that he recognized Z.D.S.-J. as someone who was affiliated with a local gang
and the suppression court credited his testimony. Consequently, we discern
no error in the juvenile court’s finding that Officer Winters possessed
individualized reasonable suspicion that Z.D.S.-J. was armed and dangerous
and a frisk was needed to ensure officer safety. Thus, the juvenile court
correctly determined that the firearm was legally recovered, and we affirm the
juvenile court’s disposition.
Order affirmed.
P.J.E. Stevens joins this Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
- 10 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482325/ | USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14300
Non-Argument Calendar
____________________
MARY SAL RODRIGUEZ,
Plaintiff-Appellant,
versus
WALMART STORES EAST, L.P.,
d.b.a. Walmart Supercenter #2484,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00474-SPC-NPM
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 2 of 10
2 Opinion of the Court 21-14300
____________________
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Mary Sal Rodriguez appeals the district court’s entry of
summary judgment in favor of Walmart Stores East, L.P., on her
state-law negligence claim arising from her slip and fall in a
Walmart store. She argues that the district court abused its
discretion by excluding the testimony of one of her treating
physicians on the ground that she failed to timely disclose the
physician as an expert. After carefully reviewing the record and the
parties’ briefs, we affirm.
I.
Rodriguez filed a complaint in Hendry County, Florida,
alleging that she slipped and fell on a “dirty, wet, slippery
substance” in the produce section of a Walmart store. Rodriguez
claimed that Walmart was liable for the injuries she sustained in
her fall because it negligently failed to maintain its premises and
negligently failed to warn her of the substance on the floor.
Walmart removed the case to federal court. The district
court ordered the parties to conduct a Rule 26(f) discovery
conference and then file a Case Management Report and a Pretrial
and Discovery Plan. The parties filed a Case Management Report
setting proposed pretrial deadlines, including a deadline for the
“Disclosure of Expert Reports.” The parties also filed a Pretrial and
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 3 of 10
21-14300 Opinion of the Court 3
Discovery Plan, in which, under the heading “[e]xpert witness
reports and depositions,” they agreed that they would “fully
comply with Rule 26(a)(2) on or before the deadline for their expert
disclosures.”
The assigned magistrate judge conducted a preliminary
pretrial conference and issued a scheduling order. The scheduling
order set new pretrial deadlines, including a deadline of March 31,
2021, for the plaintiff’s “Disclosure of Expert Reports.”
After the deadlines for the disclosure of expert reports and
the close of discovery, Walmart moved for summary judgment. It
argued, among other things, that Rodriguez had failed to present
expert testimony in support of her claim that the alleged breach of
its duties had caused her injuries. It asserted that Rodriguez had
not disclosed any retained experts or provided a disclosure
indicating that any of her treating physicians would testify to
causation.
In response to Walmart’s motion for summary judgment,
Rodriguez produced an affidavit from one of her treating
physicians, Dr. Robert Getter. Dr. Getter testified that he had
examined Rodriguez in April 2018 and reviewed a February 2017
MRI of her spine. He opined that Rodriguez’s lumbar spine injuries
were “causally related” to her November 2016 slip and fall.
Rodriguez also attached to her response a letter from Dr. Getter
dated May 1, 2018, expressing the opinion that Rodriguez required
surgical treatment for her persistent back pain, which was due to
lumbar spine trauma sustained in the slip-and-fall accident.
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 4 of 10
4 Opinion of the Court 21-14300
Rodriguez argued that she was not required to disclose Dr. Getter
by the deadline for disclosing expert reports because he was not a
retained expert and was not required to produce a written report.
She also argued that she had adequately disclosed Dr. Getter as a
potential trial expert before the expert-report deadline by
identifying his practice group as a source of relevant information
and producing his treatment records and the May 2018 letter in
discovery.
The district court granted Walmart’s motion for summary
judgment. It determined that Rodriguez was required to disclose
Dr. Getter as a potential trial expert by the expert-report deadline,
or at the latest, by the close of discovery. It also determined that
Rodriguez’s identification of Dr. Getter’s practice and the
production of his medical records and opinion letter were
insufficient to meet the disclosure requirements for nonretained
experts under Rule 26(a)(2)(C). After excluding Dr. Getter’s
proposed testimony, the court concluded that Walmart was
entitled to summary judgment on Rodriguez’s negligence claim
because she lacked evidence to prove the element of causation.
Rodriguez filed a motion for reconsideration of the
summary judgment order. She argued that the exclusion of Dr.
Getter was an extreme sanction for failing to disclose him by the
deadline for expert reports. She explained that she had understood
the March 31, 2021 deadline to apply only to retained experts who,
in contrast to treating physicians like Dr. Getter, were required to
produce expert reports. Because Dr. Getter was not required to
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 5 of 10
21-14300 Opinion of the Court 5
produce an expert report, she believed that his disclosure was due
90 days before trial under Rule 26(a)(2)(D), and that the affidavit
she filed in response to Walmart’s summary judgment motion was
therefore timely. The district court denied Rodriguez’s motion for
reconsideration, and this appeal followed.
II.
We review the district court’s summary judgment ruling de
novo. Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1318
(11th Cir. 2011). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
We review the district court’s decision to exclude expert
testimony for abuse of discretion. Williamson Oil Co. v. Philip
Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Under this
standard, the district court enjoys “considerably more leeway than
if we were reviewing the decision de novo.” Young v. City of Palm
Bay, 358 F.3d 859, 863 (11th Cir. 2004) (citation omitted). The
court “has a range of options” available to it, and we will affirm its
decision unless we determine that it “has made a clear error of
judgment, or has applied the wrong legal standard.” Id.; Cook ex
rel. Est. of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1104
(11th Cir. 2005) (citation omitted).
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 6 of 10
6 Opinion of the Court 21-14300
III.
To succeed on her negligence claim under Florida law,
Rodriguez was required to prove four elements: (1) a duty
requiring Walmart to conform to a certain standard of conduct;
(2) a breach of that duty by Walmart; (3) a causal connection
between the breach and an injury to Rodriguez; and (4) loss or
damage to Rodriguez. See Clay Elec. Co–op., Inc. v. Johnson, 873
So. 2d 1182, 1185 (Fla. 2003). Expert testimony is required to prove
causation “where the issue is beyond the common knowledge of
laymen.” Benitez v. Joseph Trucking, Inc., 68 So. 3d 428, 431 (Fla.
Dist. Ct. App. 2011). Under Florida law, “[s]oft tissue injuries, such
as lower back difficulties, are not readily observable, and hence are
not susceptible to evaluation by lay persons.” Vero Beach Care
Center v. Ricks, 476 So. 2d 262, 264 n.1 (Fla. Dist. Ct. App. 1985).
Rodriguez does not contest the district court’s
determination that without Dr. Getter’s testimony, she lacked
evidence to establish the element of causation. Nor does she
challenge the court’s conclusion that if she lacked evidence of
causation, Walmart was entitled to summary judgment. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (summary
judgment is appropriate against a party who fails establish an
essential element of her claim). She argues that the district court
abused its discretion in excluding Dr. Getter’s testimony because
she was not required to disclose him by the expert-report deadline
in the court’s scheduling order. She also argues that even if she was
required to disclose Dr. Getter by the March 2021 deadline for
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 7 of 10
21-14300 Opinion of the Court 7
expert reports, her responses to discovery identifying his practice
group and producing his treatment record and causation letter
constituted an adequate and timely disclosure. We reject both
arguments.
Rule 26 of the Federal Rules of Civil Procedure requires each
party to disclose the identity of any expert witness it may use at
trial. Fed. R. Civ. P. 26(a)(2)(A). Retained experts or employees of
the party whose duties involve regularly giving expert testimony
must produce a detailed written report at the time of disclosure.
Fed. R. Civ. P. 26(a)(2)(B). For an expert who is not required to
produce a written report, the party’s disclosure must state “the
subject matter on which the witness is expected to present
evidence” and “a summary of the facts and opinions to which the
witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). These
expert disclosures are due “at the times and in the sequence that
the court orders.” Fed. R. Civ. P. 26(a)(2)(D). “Absent a stipulation
or a court order” setting a deadline, expert disclosures must be
made at least 90 days before trial or, for rebuttal experts, within 30
days after the opposing party’s disclosure. Fed. R. Civ. P.
26(a)(2)(D)(i)–(ii).
Here, Rodriguez was required to disclose Dr. Getter by the
March 2021 deadline for the disclosure of expert reports or, at the
very latest, before the June 2021 deadline for the completion of
discovery. It’s true that the court’s scheduling order sets a deadline
only for the disclosure of expert reports, and neither party disputes
the district court’s conclusion that Dr. Getter was a nonretained
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 8 of 10
8 Opinion of the Court 21-14300
expert who was not required to prepare a written report. But the
parties stipulated in their Pretrial and Discovery Plan that “[t]he
parties shall fully comply with Rule 26(a)(2) on or before the
deadline for their expert disclosures.” This means that by the
deadline for the disclosure of expert reports—the only expert
disclosure deadline in the scheduling order—Rodriguez was
required to disclose her nonretained experts in compliance with
Rule 26(a)(2)(C).
Even if the stipulation in the Pretrial and Discovery Plan
were somehow superseded by the court’s scheduling order as
Rodriguez contends, the scheduling order also set a deadline of
June 25, 2021 for the completion of all discovery by both parties.
Discovery includes expert discovery. As a general matter, a party
who intends to call an expert witness at trial must disclose the
expert during discovery so that the opposing party can serve
relevant document requests and take the expert’s deposition. See
St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235, 1243–
44 (11th Cir. 2021) (district court did not abuse its discretion by
excluding expert who was not made available for deposition by the
close of discovery); see also M.D. Fla. Civil Discovery Handbook
§ II(E)(1) (“hybrid” experts such as treating physicians are not
required to produce a written report but “must still be disclosed
and are subject to regular document and deposition discovery”).
Rodriguez’s supplemental Rule 26 disclosure—which identified
Dr. Getter as a “hybrid witness” but did not otherwise disclose his
expected testimony—was served on July 19, 2021, almost a month
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 9 of 10
21-14300 Opinion of the Court 9
after discovery closed. Even if this disclosure could satisfy Rule
26(a)(2)(C), it came too late.
Rodriguez next argues that she disclosed Dr. Getter as a trial
expert in response to Walmart’s discovery, long before the expert-
report deadline and the close of discovery. Specifically, she stated
in response to Walmart’s requests for production that she might
call any of her treating physicians at trial. She produced Dr.
Getter’s treatment record and the letter containing his causation
opinion along with her other medical records, and she identified
Dr. Getter’s practice group as one of her medical providers in her
initial disclosures.
The district court did not abuse its discretion by concluding
that these discovery responses failed to meet the disclosure
requirements of Rule 26. It is not enough to produce a stack of
documents from which the opposing party could, with some effort,
discern the identities and some of the opinions of numerous
treating physicians who might be called at trial. Rodriguez’s
responses did not even list Dr. Getter by name, much less identify
him as a witness she might call at trial and provide the subject
matter and summary of his expected testimony required by the
rule. See Fed. R. Civ. P. 26(a)(2)(C).
IV.
The district court’s decision to exclude Rodriguez’s
causation expert for failure to make a timely disclosure under Rule
26(a)(2)(C) was not a clear error in judgment, and Rodriguez does
USCA11 Case: 21-14300 Date Filed: 11/08/2022 Page: 10 of 10
10 Opinion of the Court 21-14300
not contend that the court applied the wrong legal standard. We
therefore affirm the court’s evidentiary ruling. See Cook, 402 F.3d
at 1104. And because Rodriguez could not succeed on her
negligence claim without her expert’s testimony, we also affirm the
district court’s entry of summary judgment in favor of Walmart.
See Celotex Corp., 477 U.S. at 322.
AFFIRMED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482337/ | J-S28005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK OKEY :
:
Appellant : No. 500 MDA 2022
Appeal from the PCRA Order Entered February 24, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0004710-2008
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: NOVEMBER 8, 2022
Appellant, Patrick Okey, appeals pro se from the order entered on
February 24, 2022 denying, as untimely, his sixth petition under the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. Following a trial on July 31, 2008, a jury convicted Appellant of one
count each of luring a child into a motor vehicle and stalking.1 On April 27,
2009, the trial court sentenced Appellant to one year less one day to two years
of imprisonment for luring and a concurrent term of three to 12 months’
incarceration for stalking. Appellant was also subject to the reporting
requirements of the then-enacted Megan’s Law. Appellant appealed,
challenging the sufficiency of the evidence to support his convictions, and this
____________________________________________
1 18 Pa.C.S.A. §§ 2910 and 2709.1(a)(2).
J-S28005-22
Court affirmed Appellant’s judgment of sentence in an unpublished
memorandum on May 6, 2010. See Commonwealth v. Okey, 4 A.3d 185
(Pa. Super. 2010) (unpublished memorandum). Appellant did not seek further
review. As such, Appellant’s judgment of sentence became final on June 7,
2010, at the expiration of the time to file a petition for allowance of appeal
with our Supreme Court. See Pa.R.A.P. 1113; see also 42 Pa.C.S.A.
§ 9545(b)(3) (“judgment [of sentence] becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review”).
Appellant was released from custody after his judgment of sentence
became final but failed to register with the Pennsylvania State Police in
accordance with his Megan’s Law reporting requirements. On January 27,
2011, Appellant was found guilty of failing to report and sentenced to two to
four years of imprisonment. In 2013 and 2014, Appellant unsuccessfully
litigated two PCRA petitions. In 2016, Appellant filed a third PCRA petition
which the PCRA court dismissed because Appellant was no longer serving a
sentence and, therefore, was not eligible for relief under the PCRA. See 42
Pa.C.S.A. § 9543(a)(1)(i). We affirmed that decision in an unpublished
judgment order. See Commonwealth v. Okey, 179 A.3d 547 (Pa. Super.
2017) (unpublished judgment order). Our Supreme Court denied further
review. See Commonwealth v. Okey, 184 A.3d 148 (Pa. 2018).
-2-
J-S28005-22
Appellant subsequently filed two additional PCRA petitions, one on May
11, 2018 and the other on March 27, 2020. In the ensuing appeals from each
dismissal order, we determined that Appellant was not eligible for relief under
the PCRA because he was no longer serving a sentence. See
Commonwealth v. Okey, 2019 WL 5431801 (Pa. Super. 2019) (unpublished
memorandum); see also Commonwealth v. Okey, 241 A.3d 476 (Pa.
Super. 2020) (unpublished memorandum). Most recently, Appellant filed the
PCRA petition currently at issue on March 22, 2022. In his March 22, 2022
petition, like all of his prior petitions, Appellant raised claims challenging his
original convictions and/or sentences for stalking and luring. Following a
hearing, the PCRA court dismissed the PCRA petition by order entered on
February 24, 2022. This timely appeal resulted.
Because Appellant has completed his sentence, he is no longer eligible
for collateral relief, and we shall affirm the dismissal of his most recent PCRA
petition. The PCRA “shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies[.]” 42 Pa.C.S.A.
§ 9542. We have previously determined:
[T]o be eligible for relief under the PCRA, the petitioner must be
“currently serving a sentence of imprisonment, probation or
parole for the crime.” 42 Pa.C.S.A. § 9543(a)(1)(i). As soon as
his sentence is completed, the petitioner becomes ineligible for
relief, regardless of whether he was serving his sentence when he
filed the petition. Commonwealth v. Ahlborn, 699 A.2d 718,
720 (Pa. 1997); Commonwealth v. Matin, 832 A.2d 1141, 1143
(Pa. Super.2003), appeal denied, 843 A.2d 1237 (Pa. 2004). In
addition, this [C]ourt determined in Commonwealth v. Fisher,
703 A.2d 714 (Pa. Super. 1997), that the PCRA precludes relief
-3-
J-S28005-22
for those petitioners whose sentences have expired, regardless of
the collateral consequences of their sentence. Id. at 716
(citations omitted).
Commonwealth v. Hart, 911 A.2d 939, 941–942 (Pa. Super. 2006).
This Court previously determined that Appellant is no longer serving a
sentence of imprisonment, probation, or parole for his 2009 luring and stalking
convictions. Appellant does not dispute this conclusion.2 We therefore
____________________________________________
2 It is unclear, from our review of the record, whether Appellant remains
subject to sex offender registration requirements. As discussed below,
however, Appellant’s registration status is irrelevant to the dismissal of the
instant claims. Appellant did not challenge his reporting obligations within his
PCRA petition, and he has not raised such a challenge within the context of
this appeal. Instead, on appeal, Appellant claims that the trial court violated
his right to a speedy trial under Pa.R.Crim.P. 600, that the Commonwealth
committed a discovery violation pursuant to Brady v. Maryland, 373 U.S. 83
(1963) in failing to disclose exculpatory evidence, and that there was
insufficient evidence to support his convictions. See Appellant’s Pro Se Brief
at 1-8. Because Appellant’s claims of trial court error are normally addressed
on direct appeal or under the auspices of the PCRA, it was his burden to
demonstrate eligibility for collateral relief under 42 Pa.C.S.A. § 9543(a)(1)(i).
Based upon our independent research, no Pennsylvania court has held that
supervision pursuant to a sex offender registration obligation constitutes a
criminal sentence for purposes of assessing eligibility for collateral relief under
the PCRA. In fact, although our Supreme Court deemed punitive the
registration requirements adopted in the Sexual Offenders Registration and
Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41, see
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court’s
more recent pronouncements suggest strongly that, within the context of
conventional PCRA claims, supervision under sexual offender registration
statutes does not constitute “service of a sentence” for purposes of
establishing eligibility for relief under the PCRA. See Commonwealth v.
Lacombe, 234 A.3d 602, 617–618 (Pa. 2020) (citing the requirement in 42
Pa.C.S.A. § 9543(a)(1) that a PCRA petitioner must be serving sentence and
concluding that the PCRA is not the exclusive procedural mechanism for
challenges to sex offender reporting requirements because some “registrants
may be ineligible because their sentence has expired while their registration
(Footnote Continued Next Page)
-4-
J-S28005-22
conclude that the PCRA court properly dismissed Appellant’s sixth PCRA
petition because he was ineligible for relief.3
____________________________________________
requirements continue”) (emphasis added). Lacombe makes reasonably
clear that sex offender supervision is separate and distinct from imprisonment,
probation, or parole for purposes of Section 9543(a)(1)(i). Hence, Appellant
has neither pled nor proven his eligibility for relief because he is currently
serving a sentence and the law confirms he is unable to demonstrate such a
status. See 42 Pa.C.S.A. § 9543(a)(1)(i); see also Commonwealth v. Hall,
80 A.3d 1204, 1211 (Pa. 2013)(“[W]hen ascertaining the meaning of a
statute, if the language is clear, we give the words their plain and ordinary
meaning.”). We thus perceive no error in the dismissal of Appellant’s claims.
3 The PCRA court dismissed the PCRA petition after determining that it lacked
jurisdiction to hear Appellant’s claims because his most recent PCRA petition,
filed almost 12 years after the judgment of sentence became final, was
patently untimely and not subject to an exception under the PCRA. See N.T.,
2/24/2022, at 3-4. “[A]ny [PCRA] petition[,] including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final, unless the petition alleges and the petitioner proves” one of
three exceptions to the one-year time bar. 42 Pa.C.S.A. § 9545(b). Appellant
does not address the timeliness of his petition, nor does he plead and prove
an exception under the PCRA. Moreover, as previously mentioned, although
our Supreme Court has concluded that criminal defendants may challenge sex
offender registration statutes outside the context of the PCRA, see Lacombe,
supra, Appellant has not forwarded such a claim in the context of this appeal.
Hence, the time constraints applicable under the PCRA bar adjudication of the
claims Appellant asserted in his latest petition.
Pennsylvania law is clear that a PCRA petitioner is no longer eligible for
collateral relief if he is no longer serving a sentence of imprisonment,
probation, or parole. It follows, in such circumstances, that assessment of
the timeliness of a petition or establishment of an exception to the PCRA’s
one-year time bar becomes legally irrelevant. See Hart, 911 A.2d at 942
(citation omitted). We have elected, therefore, to affirm the dismissal of
Appellant’s petition because he is no longer eligible for collateral relief. “[A]n
appellate court may affirm a PCRA court's order for any reason of record.”
Commonwealth v. Burton, 158 A.3d 618, 630 n. 15 (Pa. 2017).
-5-
J-S28005-22
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
-6- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486888/ | ORDER DENYING MOTION FOR FUNDS AND GRANTING MOTION TO SET BAIL
Defendant Napoleon Tavale (“Tavale”) is charged with murder in the first degree, in violation of A.S.C.A. § 46.3502(a)(1). Tavale moves, by separate motions, for an order granting funds to hire an investigator and for an order setting bail. For the reasons stated below, we deny Tavale’s motion for funding and grant his motion to set bail.
I. Motion for Funding
Tavale seeks funds for an investigator to conduct independent investigation of witnesses. Tavale notes and we have earlier stated that, “[o]ne basic tool of an adequate defense is funds to pay the necessary and essential expenses of interviewing the material witnesses.” American Samoa Gov’t v. Sanerivi, 1 A.S.R.3d 114 (Trial Div. 2003) (citations omitted) (emphasis added).
However, we also have stated that “funding for these expenditures is limited. This is especially problematic in American Samoa, where an overwhelming majority of defendants rely on public counsel.” Id. at *49115. Accordingly, we “require a defendant to show why the requested services are necessary to an adequate defense and what the defendant expect[s] to find by using the services.” Id. at 116 (citations omitted) (alteration in original); see also Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987) (“[A] defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.”) (footnote omitted).
We believe Tavale has not made the requisite showing. See, e.g., U.S. v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993) (affirming the trial court’s denial of defendant’s motion for an investigator when “[t]he motion filed by [defense] counsel did not show with any specificity that investigative services at the government’s expense were merited” and “no showing was made that defense counsel had ferreted out information through his own efforts which was likely to lead to the discovery of relevant evidence”). Tavale did not specify any leads he needed an independent investigator to pursue, nor did he name any potential witnesses that require him to have an independent investigator. Tavale’s request sounds to us like a request for a government funded fishing expedition. Because we find Tavale failed to make the requisite showing, we deny his request for funds.
II. Motion to Set Bail
After considering the parties’ arguments and the circumstances surrounding Tavale’s situation, we believe this is an exceptional case and that bail should be granted. In reaching this conclusion we took into account a number of factors, including Tavale’s young age and his alleged role in the commission of the offense. We also considered that Tavale will be living at home under the supervision of his parents. In light of all of the surrounding circumstances, we find sufficiently mitigating circumstances to allay concerns about flight risk and a continuing danger to society by setting suitable bail and conditions of release.
Order
1. The motion for funding is denied.
2. The motion to set bail is granted. Bail is set at $100,000. Defendant’s release on bail, however, shall be subject to the following conditions:
a. Defendant shall remain a law-abiding citizen at all times;
b. Defendant shall make all court appearances;
*50c. Defendant shall not leave nor attempt to leave the jurisdiction of this court, and he shall, before he is released, turn over his passport or other travel documents to the Attorney General;
d. Defendant shall only live at home with his parents and shall be indoors between the hours of 7:00 p.m. and 6:00 a.m., unless accompanied by one of his parents;
e. Defendant shall regularly keep his attorney appraised of his whereabouts.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486889/ | OPINION AND ORDER
In the spring of 2002, Plaintiff Olivia Reid (“Reid”) and Defendant Diversified Company (“Diversified”) entered into a construction contract (Ex. 1) for the purpose of building a house. Defendant Pale Seei is the sole proprietor of Diversified, while Defendant Christopher Seei (“Seei”) holds himself out as vice president of Diversified. Displeased with Diversified’s performance, Reid terminated the contract on June 10, 2003.
On July 1, 2003, Reid brought this complaint against defendants for breach of contract and conversion. Defendants answered and filed a counterclaim for conversion on July 28, 2003.
Background
Reid and Diversified signed the contract at issue on March 13, 2002. Therein, Diversified promised to provide labor for the construction of a residence in 36 weeks and that “all utilities used during construction will be our [Diversified’s] expense.” In return, Reid promised to pay Diversified $83,442.60. Because Diversified only had a duty under the contract to provide services, implicitly Reid was made responsible for purchasing and securing construction materials. Diversified only promised to “provide services of closely assisting you [Reid] with procurement of materials.” Reid and Diversified apparently contemplated design changes, agreeing that “any additional work desired and/or required will be discussed and agreed upon before proceeding.” *53They understood that delays might occur, agreeing that “time of completion will be 36 weeks; holidays and unexpected delays due to weather, emergencies, and shipping are not included.”
Reid and Diversified fleshed out their mutual obligations with an “Addendum to Builder’s Agreement March 13, 2002.” Paragraph IV of the addendum reads:
IV. The Builder warrants to the Owner that all work will be of good quality, free from improper workmanship and defective materials and in conformance with the drawings and specifications. The Builder agrees to correct all work performed by the Builder under this agreement which proves to be defective in material and workmanship within a period of one (1) year.
Diversified started construction on or about March 20, 2002. During construction, Diversified and Reid agreed to numerous changes to the house increasing the contract price to $104,732.87. (See Ex. 12.) Changes included extending the family room two feet, adding two feet to one end of the house, adding an attic, and installing a tile roof.
Construction proceeded without significant difficulties, until September 2002, when Reid perceived defects with Diversified’s work. She retained the services of Curtis Braniff (“Braniff’) to inspect Diversified’s work and assure quality. Following Braniff s advice, Reid insisted that Diversified install additional hurricane fasteners to secure the roof to the house, install purlin cleats to fasten down interior parts of the roof, install blocking to support ceiling dry wall, and reinforce ceiling joists to strengthen the ceiling. (See Ex. 5; Ex. 6.) Diversified completed the requested work. Reid also requested that Diversified install additional nail fasteners to secure roofing tile against hurricane winds. (See Ex. 6 (Reid inquiring into additional roof installation procedures).) The manufacturer suggested the use of additional nail fasteners.
During construction, Diversified removed Reid’s formwork from her jobsite after using the formwork to set concrete for the house. On October 4, 2002, Reid made note of the missing formwork and threatened to deduct from a future payment to Diversified. (Ex. 5.)
Diversified continued working on the project approximately six months past the initial estimated completion date. Diversified’s work was slowed by changes agreed to and corrections identified by Braniff. Reid continued to make payments to Diversified until June 6,2003. (Ex. 11.) *54On May 31, 2003, Reid threatened that she would terminate the contract unless Diversified performed to her satisfaction in the next week. (Ex. 8.) Reid terminated the contract on June 10, 2003. (Ex. 9.) Reid ordered Diversified to cease work and to vacate the premises without their tools. At the time, additional nails had not been installed to secure the roof tile against hurricane winds and the roof did not fully cover the house. Diversified requested an opportunity to finish the roof. Reid refused the request.
At termination, Diversified lacked the materials to complete the house. Diversified was waiting for roof tiles, molding, and glass windows. Reid returned most of Diversified’s tools approximately nine weeks after contract termination.
Reid then had other builders complete the house. Pemerika Gillet (“Gillet”), Reid’s husband, supervised the work, including completion of the roof.
Problems between the parties continued after contract termination. Reid discovered defects in the house. Plumbing and exterior plaster developed problems. When Hurricane Heta struck in January 2004, roof tiles blew off of the house and broke. Diversified retained funds that Reid gave it for the purchase of corian countertops that never arrived in American Samoa. In August of 2003, Diversified returned the funds after demand. Reid also had to pay an ASPA power bill for utilities used during construction.
Discussion
I. Termination because of Diversified’s Breach
Reid believes that she had proper justification for terminating the contract with Diversified. Finding each of her reasons inadequate, we conclude that she improperly terminated the contract.
Any non-performance of a contractual duty constitutes a breach of contract. Restatement (Second) of Contracts § 235 (1979). When another party materially breaches, the injured party may terminate the contract and sue for damages. S & R Corp. v. Jiffy Lube Int’l, Inc., 968 F.2d 371, 376 (3rd Cir. 1992). However, some contractual breaches are partial, in which case the injured party retains its duties to perform under the contract. Id.; Restatement (Second) of Contracts § 243 cmt. a; Richard A. Lord, Williston on Contracts § 39:30 (4th ed. 2000). An injured party cannot terminate after a partial breach, because the law seeks “to prevent or deter the break-down of contract relations.” Marvin A. Chirelstein, Concepts and Case Analysis in the Law of Contracts, 118 (2d ed. 1993). A breach is considered partial when the injured party *55accepts the benefits of the other party’s continued performance and continues to perform under the contract. S & R Corp., 968 F.2d at 376; Marley Cooling Tower Co, v. Caldwell Energy & Envtl., 280 F.Supp.2d 651, 657 (W.D. Ky. 2003); Restatement (Second) of Contracts § 243 cmt. a, § 246 cmt. a; Williston on Contracts § 39:30. When the injured party is not discharged from her contractual duties, the party must continue to perform, but can sue for damages flowing from the breach. S & R Corp., 968 F.2d at 376; Restatement of Contracts (Second) § 243 cmt. a. In addition, if a deficient performance is cured, the duties of an injured party are not discharged. Id. at § 242 cmt. a. The breaching party’s cure must not unreasonably delay performance. Id.
A. Breach bv Unjustified Delay in Performance
Reid argues that she had justification to terminate the contract because Diversified performed with unjustified delay. We disagree, concluding that under the terms of the contract completion of the house was not due if essential construction materials were unavailable. The language of the contract excused delay due to shipping of locally unavailable materials and Reid was responsible for delays caused by unavailable materials.
Under Reid’s interpretation of the contract, Diversified would be in breach of contract even if they had performed perfectly, but materials were unavailable. We find that the parties did not intend such an interpretation when they formed the contract.
Under the terms of the contract, we conclude that Reid could not expect the house to be completed unless all construction materials required for completion were available. The contract had no provisions for partial completion requirements, or making time of the essence. Reid agreed that delays “due to shipping” materials were not included in the thirty-six week completion time. Materials must be shipped if they are unavailable in the territory. Essentially, completion of the house was not due until the materials required for completion were available.
Moreover, Reid was responsible for any delays due to the availability of construction materials. “Delay in the performance of a contract will, as a rule be excused where it is caused by the act or default of the opposite party.” Carter v. Sherburne Corp., 315 A.2d 870, 874 (Vt. Sup. Ct. 1974). Reid had the duty to provide construction material because the contract only places responsibility on Diversified to provide labor for building the house and to assist procurement. Thus, it was also her responsibility to ensure that materials availability would not delay completion of the house. Furthermore, Reid was responsible for delays caused by material shortages resulting from her change requests.
*56Diversified did not breach the contract as a result of delay. Reid failed to provide adequate materials to make completion due. At termination, roof tiles, molding, and glass windows were unavailable. Diversified required the additional materials to complete the house, for the house was not complete with a gaping hole in the roof. Also, materials were unavailable because Reid had changed the plans. She requested a tile roof requiring tiles that needed to be specially ordered and shipped to American Samoa.
B. Breach bv Defective and Deficient Work
Reid argues that she had justification to terminate the contract because Diversified performed defective and deficient work. Reid did not terminate the contract upon discovery of defective workmanship. She continued to work with Diversified, and maintained the contractual relationship. She continued to pay Diversified after discovering most of the defective workmanship. (Ex. 11.) She received the benefit of Diversified’s continued performance until June 10, 2003, after discovering most of the defective workmanship. As a result, Diversified’s breach for quality of work is considered to be partial and Reid’s duties under the contract continued.
Moreover, any other defective work, not including work on the roof, found after Reid’s acceptance of Diversified’s work does not show that Diversified performed poor quality work sufficient to provide grounds for termination. First, Reid could not terminate on the basis of defective work that Diversified cured. As discussed, unavailable materials, not the time used for Diversified’s cure, caused the delay in the completion due date. Second, we find that overall the work was of good quality, especially after cure. Diversified performed over $90,000.00 worth of work and Reid only claims $678.00 for materials to correct deficiencies.
Any of Diversified’s uncured defective work does constitute breach for which Reid will be entitled to damages as specified by the contract. However, she could not terminate the contract after Diversified’s performance only constituted partial breach.
C. Breach bv Defective Roof Installation
Roofing tile failure does not demonstrate shoddy workmanship on the part of Diversified. Diversified accepted the nails to complete installation as suggested by the manufacturer. It was reasonable for Diversified to wait to put in the reinforcing nail fasteners for the roofing tile until they had to complete the rest of the roof when the remaining tile arrived. As Reid denied Diversified an opportunity to complete the roof as it requested, we cannot find Diversified responsible for deficiencies in installing the roof. Reid knew about the roof needing more nail fasteners *57before her replacement builders began work on the roof. (Ex. 6.) She assumed responsibility for the completion of the roof when she had her own work crew finish it.
D. Breach by Conversion of Funds and Formwork
Reid argues that she had justification to terminate the contract because Diversified stole her property and converted her money. We disagree.
The removal of the formwork from the construction site only constitutes partial breach. Reid made contract payments and accepted work under the contract after discovering that the formwork was missing. Reid acknowledged that the formwork was missing from around her house in October 4, 2002. (Ex. 5.) Reid made payments under the contract until June 6, 2003 and accepted Diversified’s work under the contract until June 10, 2003. (Ex. 11.) As a partial breach, the removal of the formwork fails to provide grounds for termination of the contract.
Diversified did not convert the funds advanced for the corian countertops. “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.” 18 Am. JUR. 2d Conversion § 1 (1985). A party can show that another unreasonably withheld possession by demonstrating a refusal to surrender the property after demand. Id. at § 47. Reid demanded repayment of the advance funds for corian countertops and received the money. Furthermore, Reid did not show Diversified’s intent to dispossess her of her funds. Diversified ordered the tile and materials never arrived.1 When terminating the contract Reid did not demand the funds, she demanded the corian countertop that had not yet arrived, so Diversified reasonably retained the money in order to pay for the tile upon delivery. (Ex. 9.)
We are concerned about the commingling of Reid’s and Diversified’s funds in Diversified’s bank account. Without further evidence of misuse of funds than presented at trial, however, we are satisfied that no conversion occurred when the money was paid after demand.
E. Breach bv Providing an Inadequate Work Crew
Reid argues that she had justification to terminate the contract because Diversified provided an inadequate work crew to complete her house. Reid and Diversified did not agree to a particular work crew size. *58Unless the size of the work crew indirectly broke some other contract provision, her arguments do not constitute grounds for termination of the contract. Furthermore, she continued to perform and received the benefits of Diversified’s work after knowing the size of the work force used. (Ex. 6 (Reid’s complaint about the size of the workforce).)
F. Breach by Bad Faith
The sum of Diversified’s partial breaches do not give Reid grounds for termination. We require good faith in a party’s performance under a contract. See Moegalupe v. Mulipola, 12 A.S.R.2d 105, 107 (Trial Div. 1989). Though Diversified may have made some poor construction decisions, we find that it did not act in bad faith. Also, Reid chose to maintain the contractual relationship despite many of Diversified’s breaches.
II. Damages
A. Diversified’s Damages
As we find that Reid did not have sufficient justification to terminate the contract, Reid breached the contract by terminating it. Reid’s failure to provide material delayed Diversified’s scheduled completion date and disrupted its work on other projects. Diversified is entitled to contractual damages according to its expectations under the contract. Flowever, Diversified failed to prove any expectancy damages, such as lost profits and costs. We accordingly award Diversified nominal damages of $1.00. See Lindgren v. Betham, 20 A.S.R.2d 98, 101 (App. Div. 1992).
Concerning Diversified’s conversion claim, Diversified also failed to prove damages. Reid kept Diversified from its tools and her replacement builders may have used them. Before trial, most of the tools had been returned. Diversified failed to prove damages from the dispossession and damages for replacement costs for unreturned or broken property. We award therefore Diversified nominal damages of $1.00 for conversion damages. See Letuli v. Le'i, 22 A.S.R.2d 77, 85 (Land & Titles Div. 1992). Moreover, Reid has not behaved outrageously or with evil motive, so Diversified is not entitled to any punitive damages. See id.
B. Reid’s Damages for Defective Workmanship
Reid argues that she is entitled to damages for the repair of deficient work: $678.00 for plaster and plumbing defects and part of $4,800.00 for Gillet’s services. She contends that she is entitled to damages because of an implied warranty under common law. Henggeler v. Jindra, 214 *59N.W.2d 925, 926 (Neb. Sup. Ct. 1974). We disagree; her contract in addendum paragraph IV had an express warranty. Under the terms of the contract, she could have made Diversified repair defective workmanship. Instead, Reid chose not to exercise the warranty clause and made the repairs herself. Upholding the warranty, we cannot award monetary damages; to do so would contravene the intent of the parties when making the contract.
C. Reid’s Damages for Defective Roof Installation
Reid is not entitled to any damages for roof tile installation. Any problems with roof tile installation are not attributable to Diversified’s work. Reid wrongfully terminated the contract, preventing Diversified from finishing the roof. Then, knowing that additional nails were needed to complete the roof, she used her own laborers to finish roofing.
D. Reid’s Damages for Completing the House
We find that Reid breached the contract when terminating it. She is not entitled to part of $4,800.00 for Gillet’s services or $4,474.13 for other completion costs.
E. Reid’s Damages for Conversion of Funds and Formwork
Reid receives no damages for conversion of funds advanced for the corian countertop. As discussed, Diversified did not convert the advanced funds.
Reid is entitled to nominal damages of $1.00 for the formwork cost because she failed to prove value of the formwork when conversion occurred, after it had been used. Reid claims a formwork cost of $2,787.88. (See Ex. 16 (purchase receipt).) This cost reflects the purchase cost, not the cost after use. (Id.) The cost of the formwork decreased significantly after use. Diversified’s behavior fails to entitle Reid to punitive damages. See Letuli, 22 A.S.R.2d at 85.
F. Reid’s Damages for Costs of Inspection Services
Reid argues that Diversified is responsible for the $2,160.00 cost of Braniff s inspection services. We disagree. She has no contractual basis for this claim.
G. Reid’s Damages for Paving the ASPA Bill
Diversified acknowledges its obligation to pay Reid $282.90 for the ASPA Bill of $282.90.
*60III. Liability of Seei
Seei is an agent of Diversified. As he signed the contract in his capacity as Diversified’s vice president, he is not liable to Reid for contractual damages, specifically, the cost of the ASPA power bill. Restatement (Second) of Agency §320 (1958). As he managed the construction site and effectively authorized the formwork to be taken from the site, he is liable to Reid for conversion damages, specifically, the formwork damages. Id. at § 349. Finally, Seei is not entitled to any of Diversified’s damages award.
Order
Diversified shall have judgment for damages in the amount of $1.00 for Reid’s breach of contract and of $ 1.00 for Reid’s conversion of its tools.
Reid shall have judgment for damages in the amount $1.00 for Defendants’ conversion of her formwork and damages of $282.90 for Diversified’s failure to pay the ASPA power bill.
It is so ordered.
Reid’s two requests for admissions (RFA) do not establish that the corian countertops were never ordered. (See RFA ¶ 32,36,38.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486890/ | ORDER GRANTING MOTION TO DISMISS IN PART AND DENYING MOTION TO DISMISS IN PART
Defendant Pago Dealer Rental Services (“PDRS”) moves to dismiss Plaintiffs Estate of Fa'atuputala Iona (“the Estate”) and unborn child from the instant action. Plaintiffs Fuatai Iona (“Iona”), the Estate, and unborn child brought the complaint as a result of a vehicle accident that allegedly occurred in early 2002. Fa'atuputala Iona and the three month old fetus she was carrying allegedly died as a result of the accident. Plaintiffs allege breach of warranty; loss of love, care and companionship; and third party liability. For the following reasons, PDRS’s motion to dismiss is granted in part and denied in part.
I. Unborn Child
In the complaint, unborn child is not seeking damages for itself. Indeed, the only allegations in the complaint regarding the loss of the child relate to Iona, and his loss of “a potential child, relationship as a fatherly figure, etc.” (Compl. ¶ 15.) Absent any allegations by unborn child for relief, unborn child is properly dismissed from this action.
In any event, according to the Restatement (Second) of Torts, “[i]f the child is not bom alive, no action for the prenatal injury can be maintained by the child itself, since, although it has had a legal existence, it never has attained the status of a person entitled to maintain an action.” § 869 cmt. e (1979) (emphasis supplied).1 Under the circumstances of *62this case, we believe it is appropriate to dismiss unborn child as a party plaintiff.2
II. Estate of Fa'atuputala
PDRS also seeks to dismiss the Estate, arguing that the Estate does not have the capacity to sue and that the administrator is the appropriate party plaintiff. In response, Plaintiffs suggest that reasonable time should be given in accordance with T.C.R.C.P. 17(a) for the appointment of an administrator and also argue that the Estate is a necessary party and should not be dismissed.
We agree with PDRS that the Estate is not an appropriate party plaintiff with capacity to sue. See, e.g., In re Michaelesco, 288 B.R. 646, 653-54 (D. Conn. 2003) (agreeing with the Bankruptcy Court’s decision that an Estate “lacks capacity to be sued” but reversing and remanding the Bankruptcy Court’s order of dismissal). In order to cure this defect, Plaintiffs are given 90 days to substitute the Estate’s administrator or other proper representative as the appropriate party plaintiff for the Estate. If no action is taken by that time, PDRS may renew its motion to dismiss the Estate.
Order
1. PDRS’s motion to dismiss unborn child as a party plaintiff is granted.
2. PDRS’s motion to dismiss the Estate is denied at this time. Plaintiffs have 90 days to cure the defect of not having the Estate’s proper representative as the appropriate party plaintiff.
It is so ordered.
Plaintiffs argue that there are federal and state laws that make criminal conduct against a fetus illegal. Plaintiffs want us to follow this “trend,” recognizing an unborn child’s rights by allowing the Iona’s unborn child to bring the instant action. Notably, the instant action is a tort case, not a *62criminal case, and the Plaintiffs have not provided any case law in which an unborn child was permitted to bring a tort action.
PDRS has only moved to dismiss unborn child from the action. Therefore, we refrain from expressing any opinion on whether Iona may maintain an action for the wrongful death of the fetus. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482349/ | 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
JAMIE CHUA,
Plaintiff/Appellee,
v.
JEFFREY JAMES ADAMSON,
Defendant/Appellant.
No. 1 CA-CV 22-0176
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. CV2021-019560
The Honorable Mary Collins Cronin, Judge Pro Tempore
AFFIRMED
APPEARANCES
Jamie Chua
Plaintiff/Appellee
Jeffrey James Adamson, Scottsdale
Defendant/Appellant
CHUA v. ADAMSON
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 Jeffrey James Adamson ("Adamson") appeals the
continuation of an Injunction Against Harassment ("IAH"). For the
following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Adamson and Jamie Chua ("Chua") are neighbors. The
parties had an amicable relationship and exchanged friendly text messages
and holiday treats until August 2021, when Adamson presented his plan to
enclose his front courtyard and raise the parties' shared wall. After
discussing the matter with her spouse, Chua text messaged Adamson that
she did not want the shared wall raised and thanked Adamson for asking.
Adamson later rejected a November 2021 compromise offered by the
parties' homeowners association.
¶3 On December 9, 2021, Chua petitioned for an IAH in
Scottsdale City Court. Chua alleged Adamson harassed her on eight
separate days between October 1, 2021, and December 7, 2021. On
December 10, Adamson received notice of the IAH petition. After a hearing
on December 15, 2021, the city court denied the petition and informed Chua
she had a right to appeal its order. Chua did not appeal but, two weeks
later, petitioned for an IAH in superior court. In the second petition, Chua
alleged the same eight incidents between October 1 and December 7, but
also alleged Adamson harassed her and her daughter on December 10. The
second petition named both Chua and her daughter as plaintiffs and the
superior court granted it ex parte.
¶4 In January 2021, Adamson requested a hearing. After the
hearing, the court found by a preponderance of the evidence that Adamson
"committed acts of harassment or may commit an act of harassment in the
future." The court further found good cause existed to continue the IAH
based on the parties' "deteriorated" relationship and Adamson's
inappropriate behavior. The court ordered the parties to refrain from "any
2
CHUA v. ADAMSON
Decision of the Court
contact or communication with each other by any means to include in
person, e-mail or through social media," except through attorneys, legal
process, and court proceedings.
¶5 Adamson timely appealed. We have jurisdiction under A.R.S.
§§ 12-120.21 and 12-2101(A)(5)(b).
DISCUSSION
¶6 We review a ruling on an IAH for an abuse of discretion,
LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 10 (App. 2002), and will affirm if
"substantial evidence" supports the ruling, Prudential Ins. Co. of Am. v.
Pochiro, 153 Ariz. 368, 370 (App. 1987). A court abuses its discretion "when
the record, viewed in the light most favorable to upholding the trial court's
decision, is devoid of competent evidence to support the decision." Mahar
v. Acuna, 230 Ariz. 530, 534, ¶ 14 (App. 2012) (cleaned up).
¶7 Adamson did not provide this Court with a transcript of the
January hearing, but filed two, five-minute digital recordings of the
hearing. We have reviewed the recordings and they appear to be only a
portion of the January hearing. The first is a recording of the hearing
between 11:36 a.m. and 11:41 a.m., which includes Adamson contesting
some of Chua's allegations of harassment. The second is a recording
between 12:11 p.m. and 12:16 p.m., which includes both parties asking the
court for video evidence from the other party and waiting for the court to
sign its orders. Separately, Chua filed six, short digital recordings of the
January hearing, which also appear to include only portions of the hearing.
"It is the appellant's burden to ensure that 'the record on appeal contains all
transcripts or other documents necessary for us to consider the issues
raised.'" Blair v. Burgener, 226 Ariz. 213, 217, ¶ 9 (App. 2010) (quoting Baker
v. Baker, 183 Ariz. 70, 73 (App. 1995)). "And, in the absence of a transcript,
we presume the evidence and arguments presented at the hearing support
the trial court's ruling." Id.; see also ARCAP 13(d) ("If a party refers to a
video or audio recording, the party's brief must provide specific, time-
coded references to the relevant portions of the recording."); cf. also Jordan
v. McClennen, 232 Ariz. 572, 575, ¶ 12 (App. 2013) (noting that an appellant
must cite to specific portions of a recording via "some reasonable and
understandable fashion").
¶8 Adamson argues the superior court erred because (1) the
second petition was barred by res judicata, (2) Chua failed to disclose video
evidence to Adamson before the January hearing, and (3) Chua failed to
3
CHUA v. ADAMSON
Decision of the Court
provide evidence of harassment to support an IAH and did not raise her
concerns of harassment with Adamson before seeking an IAH.
I. Res Judicata.
¶9 We reject Adamson's argument that the second petition was
barred by res judicata. Adamson claims the superior court erred in
affirming the second petition because it presented the same parties and
actions. Res judicata is a question of law that we review de novo. Pettit v.
Pettit, 218 Ariz. 529, 531, ¶ 4 (App. 2008). After a final judgment, res judicata
prevents a plaintiff from bringing "a second action based upon the same
transaction, if the evidence needed to sustain the second action would have
sustained the first action." Id. at 532, ¶ 8 (quoting Restatement (First) of
Judgments § 61 (1942)).
¶10 But Adamson is incorrect that the second petition presented
the same actions and parties. Chua first petitioned for an IAH on
December 9, 2021, and alleged Adamson harassed her on eight separate
occasions between October 1 and December 7. In her second petition, Chua
added an allegation that on December 10 Adamson repeatedly stared at
Chua and took a photo of her with his phone while she turned her back
toward him. Chua also listed her daughter as a protected person and
alleged that Adamson attempted to talk to Chua's daughter and watched
her as she walked past his house from the bus drop-off. These alleged
December 10 events occurred after Chua filed the first IAH petition in city
court and Chua did not provide evidence of the December 10 events during
the city court hearing.
¶11 "Harassment" under § 12-1809 means a "series of acts over any
period of time that is directed at a specific person and that would cause a
reasonable person to be seriously alarmed, annoyed or harassed and the
conduct in fact seriously alarms, annoys or harasses the person and serves
no legitimate purpose." A.R.S. § 12-1809(T)(1)(a). "A series of acts means
at least two events." Ariz. R. Protective Ord. P. 25(b). Alone, the events
alleged to have occurred on December 10—Adamson repeatedly stared at
Chua, took a photo of Chua, and attempted to talk to Chua's daughter in
the afternoon—could be sufficient to sustain an IAH petition under the
statute. See A.R.S. § 12-1809(T)(1)(a) (harassing conduct occurring over "any
period of time" (emphasis added)).
¶12 Moreover, the "number of times a plaintiff may request a
protective order is not limited." Ariz. R. Protective Ord. P. 10(a); see Ariz.
R. Protective Ord. P. 4(c) (providing an IAH is a protective order governed
4
CHUA v. ADAMSON
Decision of the Court
by the Arizona Rules of Protective Order Procedure). And a court "must
not consider the number of times a protective order has been dismissed."
See Ariz. R. Protective Ord. P. 19. ("Each time a plaintiff petitions for
protective relief, the judicial officer must make an independent
determination whether there is reasonable cause to issue a protective order
under the applicable statute."). The court did not abuse its discretion in
considering the evidence Chua presented in the second petition even if she
presented some of the same evidence during the city court hearing.
Consequently, the second petition was not barred by res judicata.
II. Undisclosed Video Evidence.
¶13 We also reject Adamson's argument that the court erred in
considering Chua's video evidence. Courts have "broad discretion" in
ruling on disclosure matters, and this Court "will not disturb that ruling
absent an abuse of discretion." Marquez v. Ortega, 231 Ariz. 437, 441, ¶ 14
(App. 2013).
¶14 Adamson claims Chua failed to properly disclose video
evidence under Arizona Rule of Civil Procedure 26.1. "Whether a
disclosure obligation exists in the first instance is a question of law that we
review de novo." Solimeno v. Yonan, 224 Ariz. 74, 77, ¶ 9 (App. 2010). But the
disclosure requirements in Rule 26.1 do not apply to a hearing on an IAH
"unless otherwise specifically ordered by the court." Ariz. R. Protective
Ord. P. 37; see Ariz. R. Protective Ord. P. 2 ("[T]he Arizona Rules of Civil
Procedure apply when not inconsistent with these rules."). Moreover, if a
court finds good cause, parties may still use untimely evidence. Ariz. R.
Civ. P. 37(c)(1).
¶15 Both parties disclosed video evidence to the court before the
January hearing, but neither party disclosed video evidence to the other
before the hearing. At the hearing, both parties informed the court that they
had not received the opposing party's video evidence. The court reminded
the parties that video evidence should have been exchanged before the
hearing and ordered both parties to submit video evidence to each other
after the hearing. Under these circumstances—an IAH hearing in which
both parties failed to timely disclose evidence—we cannot say the court
abused its discretion in allowing both parties to present their video
evidence. See Solimeno, 224 Ariz. at 77, ¶ 9 ("Trial judges are better able than
appellate courts to decide if a disclosure violation has occurred in the
context of a given case and the practical effect of any non-disclosure. Such
decisions will not be disturbed on appeal absent an abuse of discretion.").
5
CHUA v. ADAMSON
Decision of the Court
III. Evidence of Harassment.
¶16 Adamson argues the court abused its discretion by affirming
the second petition because Chua failed to "provide any evidence of
harassment" and to communicate with him about her harassment concerns
before seeking an IAH. We disagree.
¶17 A court abuses its discretion "when the record, viewed in the
light most favorable to upholding the trial court's decision, is devoid of
competent evidence to support the decision." Mahar, 230 Ariz. at 534, ¶ 14.
Here, Chua provided evidence of Adamson peering through his blinds and
car window to stare at Chua, Adamson staring at Chua from his front yard,
Adamson taking a photo of Chua with her back turned toward him, Chua's
spouse witnessing Adamson making an obscene gesture to Chua, and
Adamson attempting to speak to Chua's daughter. Based on the evidence
presented, the court found by a preponderance of the evidence that
Adamson committed acts of harassment. See Ariz. R. Protective Ord. P.
38(g)(3) (requiring a plaintiff to prove the case by a preponderance of the
evidence for a protective order to "remain in effect as originally issued").
¶18 The court noted that Adamson's actions were "inappropriate"
and "would be disturbing" to Chua. The court also emphasized that
Adamson's behavior served "no legitimate purpose." See A.R.S. § 12-
1809(T)(1)(a) (providing that harassment occurs when the defendant's
conduct "seriously alarms, annoys or harasses the [plaintiff] and serves no
legitimate purpose"). Finally, the court found good cause existed to
continue the IAH as the parties' relationship had "deteriorated" after the
wall dispute. See Ariz. R. Protective Ord. P. 38(g)(4) (requiring courts to
state the basis for continuing a protective order after the hearing). Further,
because of the lack of a transcript and the limited nature of the record
presented of the January hearing, we assume the evidence and arguments
presented at the hearing were sufficient to support the court's order. Blair,
226 Ariz. at 217, ¶ 9. Accordingly, we reject Adamson's argument that Chua
presented insufficient evidence to support the IAH.
¶19 Finally, we reject Adamson's argument that Chua was
required to address her concerns to him before seeking an IAH. Adamson
cites no authority and we find no basis in the law for requiring a plaintiff to
communicate their concerns of harassment to an alleged harasser before
seeking an IAH. Cf. A.R.S. § 12-1809(E) (providing grounds under which a
court may issue an IAH ex parte). We find no abuse of discretion.
CONCLUSION
6
CHUA v. ADAMSON
Decision of the Court
¶20 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
7 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482348/ | 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
STATE OF ARIZONA,
Appellee,
v.
BRANDI LEIGH FARNBERG,
Appellant.
No. 1 CA-CR 21-0393
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. CR2018-152372-001
The Honorable Dewain D. Fox, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
STATE v. FARNBERG
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Randall M. Howe joined.
M O R S E, Judge:
¶1 Brandi Leigh Farnberg appeals her conviction and sentence
for misconduct involving weapons. After searching the entire record,
Farnberg's defense counsel identified no arguable question of law that is
not frivolous. Therefore, in accordance with Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this
Court to search the record for fundamental error. Farnberg was given an
opportunity to file a supplemental brief in propria persona but has not done
so. Finding no reversible error, we affirm Farnberg's conviction and
sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On October 25, 2018, police were surveilling a house in
Phoenix, Arizona. An officer saw Farnberg walk out of the house and place
a suitcase and basket on the ground near a Cadillac. Farnberg then walked
back towards the house while Jesus Amaya, who recently drove the
Cadillac to the house, placed the suitcase and basket in the backseat area of
the car. Farnberg returned to the car and drove away with Amaya in the
front passenger seat. Officers followed and later stopped the car for a traffic
violation. When officers searched the car, they found a loaded handgun,
wrapped in a red dress, inside a backpack on the floorboard behind the
driver's seat. Underneath the dress and handgun, police also found a
prescription bottle with Farnberg's name on it.
¶3 The State charged Farnberg with misconduct involving
weapons under A.R.S. § 13-3102(A)(4) (knowingly possessing a deadly
weapon while being a prohibited possessor), a class 4 felony. She was tried
in the spring of 2021. At trial, several police officers, Amaya, and Farnberg
testified. The officers testified about surveilling the house, and stopping
1 "We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant."
State v. Valencia, 186 Ariz. 493, 495 (App. 1996).
2
STATE v. FARNBERG
Decision of the Court
and searching the Cadillac. One officer testified that, at the scene, Farnberg
denied owning the gun and backpack but admitted using the backpack to
store her belongings, putting her prescription in the backpack, and finding
the handgun on the back seat and placing it in the backpack.
¶4 Amaya testified that he had never seen Farnberg carry the
backpack, carry a gun, or wear the red dress. He testified that those items
were likely left by someone who rode in the back seat of the Cadillac the
night before. Farnberg testified that the backpack and items, other than the
prescription pills, were not hers and denied telling police that she stored
things or put the handgun in the backpack. She also testified that she never
touched the gun and that the prescription pills fell out of her purse while
she was looking for her identification after being pulled over.
¶5 The superior court explained to the jury that misconduct
involving weapons requires proof that the defendant knowingly possessed
a deadly weapon and was a prohibited possessor at the time of possession
of the weapon. See A.R.S. § 13-3102(A)(4). The parties stipulated that
Farnberg was a prohibited possessor. The jury convicted Farnberg of
misconduct involving weapons. The superior court later found, and
Farnberg admitted, that she had two prior historical felony convictions.
The superior court determined Farnberg was a category three repetitive
offender and sentenced her to a less-than-presumptive eight-year term of
imprisonment.
¶6 Farnberg timely appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶7 Our review of the record reveals no fundamental error. See
Leon, 104 Ariz. at 300. All of the proceedings were conducted in compliance
with the Arizona Rules of Criminal Procedure, and the record reveals that
counsel represented Farnberg at all stages of the proceedings. See Ariz. R.
Crim. P. 19.2. The State presented sufficient evidence from which the jury
could determine Farnberg's guilt beyond a reasonable doubt. See State v.
West, 226 Ariz. 559, 562, ¶ 16 (2011). The jury was comprised of eight
members. See A.R.S. § 21-102(B). The superior court properly instructed
the jury on the presumption of innocence, the burden of proof, and the
elements of the charged offense. The court received a presentence report.
Ariz. R. Crim. P. 26.4. The court afforded Farnberg an opportunity to speak
at sentencing, imposed a sentence within the statutory limits, and stated on
3
STATE v. FARNBERG
Decision of the Court
the record the evidence and factors it considered in imposing the sentence.
See A.R.S. §§ 13-701, -703; Ariz. R. Crim. P. 26.9, 26.10.
CONCLUSION
¶8 We affirm Farnberg's conviction and sentence.
¶9 Upon the filing of this decision, defense counsel shall inform
Farnberg of the status of the appeal and of her future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Farnberg shall
have 30 days from the date of this decision to proceed, if she desires, with
a pro per motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482356/ | Case: 22-50035 Document: 00516537981 Page: 1 Date Filed: 11/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 8, 2022
No. 22-50035 Lyle W. Cayce
Clerk
J. P. Bryan; Mary Jon Bryan; Gage Properties, Inc.;
Gage Hotel, L.P.,
Plaintiffs—Appellants,
versus
County Judge Eleazar R. Cano,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CV-25
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Appellants, owners of the Gage Hotel in Marathon, Texas, sued
County Judge Eleazar Cano in his official capacity for shutting down their
hotel for over a month during the Covid-19 pandemic. The district court
granted summary judgment in favor of Judge Cano. We affirm.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-50035 Document: 00516537981 Page: 2 Date Filed: 11/08/2022
No. 22-50035
I. BACKGROUND
Appellants own and operate the historic Gage Hotel in Brewster
County, Texas, home of Big Bend National Park. Eleazar Cano is the county
judge of Brewster County, and, as such, serves as the presiding officer of the
county’s governing body. See Tex. Loc. Gov’t Code § 81.001.
By March 2020, Covid-19 had spread to Texas. In response,
Governor Greg Abbott declared “a state of disaster for all counties” on
March 13. Four days later, Judge Cano declared a local state of disaster for
Brewster County, although no Covid-19 cases had been reported in the
county or in any adjacent county. Both Governor Abbott and Judge Cano
acted pursuant to their respective powers under the Texas Disaster Act of
1975. See Tex. Gov’t Code Ann. §§ 418.014, 418.108.
On March 20, 2020, Judge Cano amended his declaration to order all
hotels, motels, short-term rentals, RV parks, and campgrounds to vacate any
guest not using the room or site as a primary residence. He soon amended
his declaration again to allow active-duty military, law enforcement, national
guard, emergency service personnel, and healthcare professionals to use
county hotels, motels, and short-term rentals. Lodging businesses remained
closed to all “recreational travelers.” On March 25, Judge Cano declared
another local state of disaster and maintained the restrictions on hotels,
motels, and the like. On March 31, Governor Abbott issued an executive
order prohibiting, in relevant part, local officials from restricting essential
services as defined by the Department of Homeland Security. The order did
not mention hotels or similar businesses. By a series of supplemental orders
beginning April 1, Judge Cano extended the hotel restrictions through
April 30, 2020. Brewster County’s first confirmed Covid-19 case appeared
on April 25.
2
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No. 22-50035
On April 10, 2020, J.P. Bryan, an owner of the Gage Hotel, brought
suit under 42 U.S.C. § 1983 seeking declaratory relief against Judge Cano for
allegedly violating his constitutional rights. Bryan then amended his
complaint twice to add the remaining owners of the Gage Hotel as plaintiffs,
specify that Judge Cano was sued in his official capacity as county judge,
request money damages in addition to declaratory relief, and refine his
claims.
The district court granted summary judgment for Judge Cano on all
counts. The Gage Hotel owners appeal the judgment and the court’s
exclusion of their expert witness’s affidavit.
II. DISCUSSION
“This court reviews the district court’s grant of summary judgment
de novo, applying the same standards as the district court.” DePree v.
Saunders, 588 F.3d 282, 286 (5th Cir. 2009). A party is entitled to summary
judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 2552 (1986). We review the exclusion of expert testimony for abuse of
discretion. Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 400 (5th Cir. 2016).
Appellants raise six arguments on appeal. The first three relate to
Appellants’ equal protection, due process, and unreasonable seizure claims.
Appellants’ fourth argument is presented on appeal as an ultra vires claim,
that is, that Judge Cano’s orders exceeded his statutory authority, but below
it was framed as another due process violation. Appellants’ fifth argument
contests the district court’s judgment to the extent it dismissed any of their
claims on sovereign immunity grounds. We assume arguendo that
Judge Cano acted as county official and, as such, does not enjoy the state’s
immunity. See Danos v. Jones, 652 F.3d 577, 582 (5th Cir. 2011) (assuming
3
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No. 22-50035
that defendants were not immune from suit and proceeding to rule for the
defendants on the merits). Finally, appellants challenge the expert witness
affidavit’s exclusion.
A. Equal Protection & Due Process
Appellants contend that Judge Cano violated their rights to equal
protection and due process by arbitrarily and irrationally ordering the near
closure of all hotels in Brewster County. The district court held that
Appellants failed to refute Judge Cano’s proffered reasons for his orders,
supported by evidence, which bore a rational relationship to a legitimate
governmental purpose.
1. Equal Protection
To establish their equal protection claim, Appellants must first show
that “two or more classifications of similarly situated persons were treated
differently” under Judge Cano’s orders. Big Tyme Invs., L.L.C. v. Edwards,
985 F.3d 456, 468 (5th Cir. 2021) (internal quotation omitted). The district
court found that the orders arguably treated similar categories of guests,
businesses, and employment classifications differently. Appellants concede
that their equal protection challenge, implicating neither a suspect class nor
a fundamental right, is reviewed according to the rational basis test. 1 Under
this standard, a governmental classification “will be upheld ‘if there is a
1
When reviewing the constitutionality of Judge Cano’s orders, the district court
purported to apply the Jacobson test, which asks whether an emergency order “has no real
or substantial relation” to public health “or is, beyond all question, a plain, palpable
invasion of rights secured by the fundamental law.” Jacobson v. Massachusetts, 197 U.S. 11,
31, 25 S. Ct. 358, 363 (1905). But when doing its work, the court properly employed the
traditional rational basis standard of review. See Big Tyme Invs., L.L.C. v. Edwards, 985 F.3d
456, 467–68 (5th Cir. 2021) (introducing Jacobson and then analyzing the equal protection
claim under rational basis); see also id. at 471 (Willett, J., concurring) (The Jacobson test “is
just a roundabout way of conducting a conventional constitutional analysis.”).
4
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No. 22-50035
rational relationship between the disparity of treatment and some legitimate
governmental purpose.’” Greater Houston Small Taxicab Co. Owners Ass’n
v. City of Houston, 660 F.3d 235, 239 (5th Cir. 2011) (quoting Heller v. Doe,
509 U.S. 312, 320, 113 S. Ct. 2637, 2642 (1993)). But a “necessary corollary
to and implication of rationality as a test is that there will be situations where
proffered reasons are not rational.” Id. (internal quotation omitted). For
example, the government “may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction
arbitrary.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446,
105 S. Ct. 3249, 3258 (1985).
Appellants do not dispute that Judge Cano’s stated purpose for his
orders—the public health of Brewster County—is legitimate. Rather,
Appellants argue that closing hotels to recreational guests but permitting
other businesses to serve the same clientele was arbitrary and irrational.
Further, Appellants criticize as particularly arbitrary the distinction drawn
between J.P. Bryan and other property owners, whereby Bryan was
prohibited from using his secondary residence in the Gage Hotel, but others
could occupy secondary residences, so long as they were not in a hotel.2
One rationale for treating hotels differently from other businesses was
to limit the concentrated presence of visitors and tourists in the county.
Judge Cano and his advisers considered that an important means to the end
of public health for several reasons: March and April are popular months for
tourism in Brewster County; visitors were retreating to Texas’s rural areas
to escape big city quarantines; the county had limited means to test residents
or visitors for Covid-19; and the county’s regional medical center did not
2
When questioned about this restriction at oral argument, counsel for Judge Cano
asserted that the orders applied only to “guests.” Thus, they did not reach J.P. Bryan and
other non-guest owners. Judge Cano did not render this opinion earlier in the dispute.
5
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No. 22-50035
have the capacity to care for the anticipated numbers of critically ill patients.
Further, a rationale for restricting the class of guests permitted to stay at
hotels was to keep recreational guests away while giving emergency service
personnel a place to stay. And presumably, the exception for guests whose
hotel room was their primary residence existed to avoid evicting people from
their homes.
Limiting restrictions to hotels and similar businesses, where guests are
more likely to stay for a period of days, during the first weeks of a global
pandemic, is not so attenuated from the asserted goal of public health as to
render the classification irrational. See City of Cleburne, 473 U.S. at 446,
105 S. Ct. at 3258. To be sure, these restrictions were overinclusive in some
ways and underinclusive in others. Not every guest turned away from a hotel
was a tourist or big city refugee. Nor were visitors prohibited entirely from
staying in the county. And prohibiting owners from staying as guests in their
own hotel, if that is what happened, may have been a bit overinclusive. But
these imperfections do not render Judge Cano’s orders arbitrary and
irrational. See Vance v. Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 948 (1979)
(noting “perfection is by no means required” and that over and
underinclusive classifications are permissible).
The Appellants’ equal protection claim fails as a matter of law.
6
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No. 22-50035
2. Due Process
Appellants’ due process claim fares no better under rational basis
review.3 To show that they were arbitrarily deprived of their liberty interests
in operating their hotel at full capacity, Appellants must “negative every
conceivable basis which might support” Judge Cano’s orders. F.C.C. v.
Beach Comm’s, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 2102 (1993) (internal
quotation omitted).
As an initial matter, counts I and III of Appellants’ third amended
complaint allege that Judge Cano acted ultra vires and thus trampled on
Appellants’ due process rights. On appeal, Appellants insist that Judge
Cano’s orders were arbitrary, capricious, and unlawful because no disaster,
as defined by the Texas Disaster Act, existed at the time. In other words,
declaring a local state of disaster where none existed was “per se arbitrary
and irrational, and, as such, a violation of substantive due process.” Smith v.
City of Picayune, 795 F.2d 482, 488 (5th Cir. 1986). In the same vein, they
label Judge Cano’s April declarations as irrational on the ground that they
contradicted Governor Abbott’s March 31 executive order, which prohibited
local authorities from restricting access to essential services.
These arguments fail as a matter of law. Allegations that Judge Cano
violated state law are “alone insufficient to state a constitutional claim under
the Fourteenth Amendment.” FM Props. Operating Co. v. City of Austin,
93 F.3d 167, 174 (5th Cir. 1996). To hold otherwise would “improperly
bootstrap state law into the Constitution.” Stern v. Tarrant Cnty. Hosp. Dist.,
3
Appellants allege violations of their economic liberty interests, to which rational
basis review applies. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot.,
560 U.S. 702, 721, 130 S. Ct. 2592, 2606 (2010).
7
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No. 22-50035
778 F.2d 1052, 1056 (5th Cir. 1985) (en banc); see also Lindquist v. City of
Pasadena, 669 F.3d 225, 235 (5th Cir. 2012) (same).4
Appellants also attempt to demonstrate irrationality and arbitrariness
by submitting evidence that no cases of Covid-19 were reported in Brewster
County or in any adjacent county at the time of Judge Cano’s orders. They
posit that there can be no reason for imposing restrictions on local businesses
without scientific data proving that the virus was on the county’s doorstep.
Appellants contend further that permitting healthcare workers and active-
duty military members to stay at hotels but not recreational guests was
arbitrary.5
At its heart, Appellants’ argument is that Judge Cano’s declarations
“were based on fear, not facts.” True, Judge Cano’s declarations would not
survive rational basis review if propped up by fantastic or nonsensical
4
Contrast this case with Stem v. Gomez, 813 F.3d 205 (5th Cir. 2016), where this
court considered the appellant’s state law claim brought under the ultra vires exception to
sovereign immunity because it was a state law claim, not a due process claim. Here,
Appellants have not raised state law claims, as their counsel confirmed at oral argument.
The separate due process claim presented in Stem implicated state law only to the extent it
defined the appellant’s constitutionally protected property interest. Id. at 210–11.
5
Appellants cite in support two district court cases from other circuits: League of
Indep. Fitness Facilities & Trainers v. Whitmer, 468 F. Supp. 3d 940, 950–51 (W.D. Mich.
2020), and County of Butler v. Wolf, 486 F. Supp. 3d 883 (W.D. Pa. 2020). These cases
misplaced the burden of production. In the first, the governor’s classification of gyms as
dangerous failed rational basis review because she could not muster “a single supporting
fact, to uphold their continued closure.” League of Indep. Fitness Facilities & Trainers,
468 F. Supp. 3d at 950. In the second, the state’s closure of “non-life-sustaining”
businesses failed rational basis scrutiny because the state “pick[ed] winners” without any
“objective definitions and measurable criteria.” Cnty. of Butler, 486 F. Supp. 3d at 927.
During rational basis review, it is the plaintiff who has the “burden to negative every
conceivable basis which might support” “the rationality of the legislative classification.”
Beach Comm’s, Inc., 508 U.S. at 315, 113 S. Ct. at 2102 (internal quotations omitted)
(emphasizing that “we never require a legislature to articulate its reasons for enacting a
statute”). For that reason, if for no other, these cases serve as poor legal support.
8
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No. 22-50035
rationales or “betrayed by the undisputed facts.” St. Joseph Abbey v. Castille,
712 F.3d 215, 223 (5th Cir. 2013); see also Simi Inv. Co. v. Harris Cnty.,
236 F.3d 240, 253 (5th Cir. 2000) (“a nonexistent park used by County
officials to interfere with private property interests is clearly arbitrary”). But
Judge Cano’s declarations are “not subject to courtroom fact-finding and
may be based on rational speculation unsupported by evidence or empirical
data.” Beach Comm’s, Inc., 508 U.S. at 315, 133 S. Ct. at 2102. As discussed
above, restricting the operations of key players in the travel industry like
hotels in order to limit the presence of out-of-county visitors bore a rational
relationship to slowing the spread of Covid-19 at the pandemic’s outset.
Appellants have not negated this conceivable basis for the order.
B. Fourth & Fourteenth Amendment Seizure
The district court reasoned that Appellants failed “to present any
legal analysis or factual allegations in support” of their Fourth and
Fourteenth Amendment claims. Appellants respond that summary
judgment may not be granted by default based only on a deficient response,
and in any event, their response was not deficient.
Certain principles are settled. A “motion for summary judgment
cannot be granted simply because there is no opposition.” Hibernia Nat.
Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.
1985). But “a court may grant an unopposed summary judgment motion if
the undisputed facts show that the movant is entitled to judgment as a matter
of law.” Day v. Wells Fargo Bank Nat. Ass’n, 768 F.3d 435, 435 (5th Cir.
2014). Also, the party opposing summary judgment “cannot discharge its
burden by alleging legal conclusions.” 10A CHARLES ALAN WRIGHT &
ALAN R. MILLER, FED. PRAC. & PROC. § 2727.2 (4th ed. Apr. 2022
update). Indeed, “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
9
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No. 22-50035
support or defeat a motion for summary judgment.” Galindo v. Precision Am.
Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting WRIGHT & MILLER,
§ 2738).
In this case, the district court did not grant summary judgment by
default, because it reasonably concluded that the movant Cano carried his
burden while the nonmovants failed to demonstrate a material fact dispute.
Under the Fourth Amendment, “[a] seizure of property occurs when
there is some meaningful interference with an individual’s possessory
interests in that property.” Severance v. Patterson, 566 F.3d 490, 501 (5th Cir.
2009) (internal quotation omitted). And “by its express text, the amendment
prohibits only those searches and seizures that are unreasonable in the
particular circumstances in which they are performed.” United States v.
York, 895 F.2d 1026, 1028 (5th Cir. 1990).
Even assuming a seizure occurred, the same summary judgment
evidence submitted by Judge Cano to show that his restrictions on hotel use
bore a rational relationship to public health also shows that the restrictions
were reasonable given the circumstances. The only additional evidence
Appellants submit in opposition is the declaration of J.P. Bryan, which asserts
that Judge Cano’s “arbitrary orders” “constituted an unreasonable
interference with and deprivation of” his property. These conclusory
statements are insufficient to create a material fact dispute.
C. Expert Witness Exclusion
The district court held that Appellants’ expert Dr. Alozie opined
about a pure question of law: whether a statutory disaster existed in Brewster
County. Indeed, Federal Rule of Evidence 704 is not “intended to allow a
witness to give legal conclusions.” Owen v. Kerr-McGee Corp., 698 F.2d 236,
240 (5th Cir. 1983); see also Snap-Drape, Inc. v. C.I.R., 98 F.3d 194, 198 (5th
Cir. 1996); Alldread v. City of Grenada, 988 F.2d 1425, 1436–37 (5th Cir.
10
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No. 22-50035
1993). Although he has excellent professional credentials, Dr. Alozie stated
in his two-sentence opinion only that “a statutory disaster did not exist . . .
because there were no reported cases of COVID-19 in Brewster County [or
in any of the surrounding counties] and no imminent threat of a COVID-19
epidemic in Brewster County.” This certainly reads as a legal conclusion
concerning Texas law notwithstanding Appellants’ effort to characterize it
as a statement of fact. At the very least, the district court did not abuse its
discretion in holding as much.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
11 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482353/ | Case: 21-11059 Document: 00516537371 Page: 1 Date Filed: 11/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-11059 FILED
November 8, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Lamon Demetrus Wright,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-25-1
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Lamon Demetrus Wright appeals the revocation of his supervised
release. He argues that the district court erred by admitting his girlfriend’s
out-of-court statements alleging that he assaulted her. Wright also appeals
the 60-month sentence that the district court imposed upon revocation. He
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-11059 Document: 00516537371 Page: 2 Date Filed: 11/08/2022
No. 21-11059
argues that the sentence is plainly unreasonable because the district court
erroneously believed that a mistake in the original criminal judgment barred
it from imposing a lower sentence. We AFFIRM.
First at issue are Wright’s girlfriend’s out-of-court statements
alleging that he assaulted her. The district court admitted these statements
at the revocation hearing via a recording of the 9-1-1 call that Wright’s
girlfriend placed and via the responding officer’s body-camera footage.
Wright’s girlfriend did not testify at the revocation hearing, and Wright was
therefore unable to confront her.
A defendant “in supervised release revocation proceedings ha[s] a
qualified right to confront witnesses.” United States v. Jimison, 825 F.3d 260,
261 (5th Cir. 2016). However, as relevant here, we “look to whether the
Government has shown good cause to overcome the defendant’s right to
confront the hearsay declarant[] arrayed against him.” United States v.
Alvear, 959 F.3d 185, 189 (5th Cir. 2020) (internal quotation marks and
citations omitted). “Determining whether good cause exists requires
weigh[ing] the defendant’s interest in confrontation of a particular witness
against the Government’s proffered reasons for pretermitting the
confrontation.” Jimison, 825 F.3d at 263 (internal quotation marks and
citations omitted). Our review is de novo. Id. at 262.
Wright’s “interest in finding a means to undermine the putative
victim’s . . . statements is certainly a strong one,” especially insofar as her
statements “formed the core of the case offered in court to prove the Grade
A violation[]” of assaulting her. Alvear, 959 F.3d at 189 (internal quotation
marks and citations omitted). However, Wright’s failure to “propose an
alternative theory of events” tempers that interest. Id. On the other side of
the balance, we “look to the Government’s proffered reason for the hearsay
declarant’s absence from the hearing or reasons that could be inferred from
2
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No. 21-11059
the record.” Id. at 190. The Government argued that the witness was absent
because she refused to cooperate, and it can “be inferred from the record”
that the reason for her refusal was fear of Wright. Id. The balance here
therefore favors the Government. See, e.g., id.; United States v. Reza, 759 F.
App’x 269, 270–72 (5th Cir. 2019) (finding good cause under similar facts);
United States v. Elizondo, 502 F. App’x 369, 370–73 (5th Cir. 2012) (same).
Likewise, as in Alvear, Wright’s girlfriend’s out-of-court statements
have sufficient indicia of reliability. See 959 F.3d at 191. The physical
evidence of injury and the impression of fear that she conveyed when
speaking about the assault corroborate her statements to the dispatcher and
the responding officer. She also gave a sworn written statement that Wright
“chok[ed]” her “for maybe a minute.” And the record does not indicate any
ulterior motive she may have had to lie about what happened. In short, while
Wright had a strong interest in cross-examination, the Government showed
good cause for overcoming that interest, and the out-of-court statements the
Government relies on have sufficient indicia of reliability. See Alvear, 959
F.3d at 189–91.
Next (and last) at issue is Wright’s argument that the district court
erroneously believed that a mistake in the underlying criminal judgment
against Wright prevented it from exercising discretion to impose a revocation
sentence of fewer than 60 months.
We “review a sentence imposed after revocation of supervised release
under the plainly unreasonable standard of review,” first ensuring that “the
district court committed no significant procedural error, such as failing to
consider the [18 U.S.C. § 3553(a)] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence,
including failing to explain a deviation from the Guidelines range,” and,
second, considering “the substantive reasonableness of the sentence
3
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No. 21-11059
imposed under an abuse-of-discretion standard.” United States v. Winding,
817 F.3d 910, 913 (5th Cir. 2016) (internal quotation marks and citations
omitted). The district court in a revocation proceeding is effectively bound
by the underlying judgment, regardless of its validity, and a defendant thus
may not use a revocation appeal to challenge the underlying criminal
conviction and sentence. See United States v. Willis, 563 F.3d 168, 170 (5th
Cir. 2009). However, the district court has discretion to consider the error in
the original judgment when imposing the revocation sentence. See United
States v. Robinson, 741 F.3d 588, 599–600 (5th Cir. 2014); § 3553(a)(1).
Contrary to Wright’s interpretation of the district court’s statements,
the most plausible reading of the record is that the district court understood
that it could not grant Wright’s motion to dismiss and modify the original
judgment, but that it could consider the error in that judgment when imposing
a sentence. The district court chose not to consider the error, focusing
instead on Wright’s extensive criminal history and the nature of violations at
issue.
AFFIRMED.
4 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482360/ | [Cite as State v. Hardgrove, 2022-Ohio-3993.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2021CA00154
DUSTIN DALE HARDGROVE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal
Court, Case No. 2021CR03240
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 8, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTEN BATES-AYLWARD GEORGE URBAN
CANTON LAW DIRECTOR 116 Cleveland Avenue, NW
JASON P. REESE Suite 808
CANTON CITY PROSECUTOR Canton, Ohio 44702
CARRIE D’ANDREA
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW
Canton, Ohio 44702
Stark County, Case No. 2021CA00154 2
Wise, J.
{¶1} Appellant Dustin Hardgrove appeals his conviction on one count of
voyeurism, entered in the Canton Municipal Court following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} On July 14, 2021, Appellant Dustin Hardgrove was charged with one count
of Voyeurism, in violation of R.C. § 2907.08 (B), a second-degree misdemeanor.
{¶5} On November 15, 2021, the matter proceeded to jury trial. At trial, the jury
heard the following testimony:
{¶6} Appellant Dustin Hardgrove lived with his ex-girlfriend, S.P. in Canton for
several years, until about 2021. (T. at 133). He lived with her and her adult daughter M.P.,
who was twenty-two years old and had moved back into their residence in 2020. (T. at
128).
{¶7} On July 6, 2021, while cleaning Appellant’s work book bag, S.P. discovered
a cell phone that she had never seen before and turned it on because she suspected
Appellant of cheating. (T. at 131-33, 135-36). When she did, S.P. found two videos of her
daughter M.P. (T. at 136-37). The videos showed M.P. getting dressed and undressed
after showering, one of which occurred around 5:00 a.m. (T. at 142-43, 149-50, 282-84).
In one video, M.P.’s breasts were visible and in another, her buttocks were visible. The
family dog blocked view of her pelvic area. (T. at 139, 143, 148-49, 218). In one of the
videos, a man’s face is visible while he was setting up the camera strategically in the
Stark County, Case No. 2021CA00154 3
hallway near a closet Appellant used across from M.P.’s bedroom. (T. at 145, 154-55,
230). M.P. testified that she had no knowledge that she was being recorded, and she felt
like she could not “live in her own house without her privacy being invaded.” (T. at 195,
217). The video showed a man with glasses, facial hair (beard and mustache), ears
“stickin’ out”, a hat being worn backwards, the same shoes Appellant was known to wear,
his voice, and “scrawny” and “hairy” legs. (T. at 145, 162-63, 195, 217, 273).
{¶8} S.P. showed the video to her close friend, Jennifer. (T. at 217). Because
all of these attributes matched Appellant, S.P., M.P. and Jennifer all believed the man in
the video was Appellant. (T. at 162-163; 195, 217). S.P. testified that other men did not
come to the house, and she was familiar with Appellant and his voice, which could be
heard in the videos, because she was in a relationship and living with him. (T. at 140-41,
147-48, 162-63, 195, 273).
{¶9} S.P. also testified that in the past, Appellant had used his cell phone to send
pictures of his penis to other women. (T. at 156).
{¶10} S.P. called the police and then contacted Appellant about the videos and
he told her, “I don’t remember doing that. If I did it, I don’t remember.” (T. at 166).
{¶11} Upon arriving at the residence, Deputy House of the Stark County Sheriff’s
Office spoke with S.P. and M.P. and confirmed that M.P. did not give anyone permission
to videotape her. (T. at 228-229). Deputy House testified that in his experience as a police
officer, the purpose of videotaping a young woman naked is for personal pleasure. (T. at
234).
{¶12} Deputy House testified that he spoke with Appellant who told him that
“basically he was kinda saying he might of done it but he didn’t remember bec - or he
Stark County, Case No. 2021CA00154 4
couldn’t remember because he was drinking but he said he was kinda - - to me he was
kinda of confessing that he did but at the same time he was trying to say he didn’t.” (T. at
239). He stated that Appellant also asked him about the sort of charges he would face
and the duty to register for sex offenses. (T. at 239-40). Deputy House testified that he
felt that Appellant gave inconsistent statements in his interview from what he said initially
and then was “backtracking.” (T. at 240). Deputy House’s recorded interview with
Appellant was played for the jury. (T. at 225-240).
{¶13} Detective Brian Johnson also testified. He explained to the jury that based
on his training and experience investigating sex crimes, voyeurs typically record their
victims so that they have the recordings for future use, most likely to masturbate while
watching them. (T. at 261, 264). He stated that voyeurs typically record their victims, often
with hidden cell phones, or even cameras with vides built in and hidden behind picture
frames. (T. at 264). In cases such as this where a cell phone is set up facing a woman’s
bedroom, the voyeur is typically trying to capture the victim doing things in the privacy of
their own room and then masturbate to said images later. Id.
{¶14} Appellant testified in his own defense at trial and denied that he ever took
videos of M.P. without her knowledge. (T. at 271, 285). Appellant also stated that no other
males were in the home when he was there, and that he would know if another man was
in the house at 4:50 in the morning. (T. at 273, 282). Further, he identified his own voice
on the recordings. (T. at 273). Appellant confirmed that he told Deputy House that if he
did it that he wouldn’t remember it and wouldn’t do it in the right frame of mind; however,
he said that he was under “extreme duress during [his] interview.” (T. at 287).
Stark County, Case No. 2021CA00154 5
{¶15} Following deliberations, Appellant was convicted of one count of
Voyeurism.
{¶16} The trial court sentenced Appellant to one-hundred eighty (180) days in the
Stark County Jail with all but forty-five (45) days suspended. Appellant was also placed
on two years probation and ordered to complete a sex offender program. Appellant was
also ordered to register as a Tier 1 Sexual Offender for fifteen (15) years and have no
contact with the victim.
{¶17} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶18} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED.
{¶19} “II. THE APPELLANT'S CONVICTION WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”
I., II.
{¶20} In his first and second assignments of error, Appellant argues his conviction
is not supported by the manifest weight or sufficiency of the evidence. We disagree.
{¶21} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
Stark County, Case No. 2021CA00154 6
a new trial ordered.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶22} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt."
Id. at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979).
{¶23} Appellant herein was convicted of Voyeurism, in violation of R.C.
§2907.08(B), which provides:
No person, for the purpose of sexually arousing or gratifying the
person's self, shall commit trespass or otherwise surreptitiously invade the
privacy of another to videotape, film, photograph, or otherwise record the
other person in a state of nudity.
{¶24} Appellant argues that the state failed to prove that he was the one who used
the cell phone to videotape M.P. or that he had done so for the purpose of sexual arousal
or gratification.
{¶25} R.C. §2901.22(A) states:
A person acts purposely when it is the person's specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
Stark County, Case No. 2021CA00154 7
accomplish thereby, it is the offender's specific intention to engage in
conduct of that nature.
{¶26} “Surreptitious” is defined in Black's Law Dictionary as “(Of conduct)
unauthorized and clandestine; done by stealth and without legitimate authority.” Black's
Law Dictionary, surreptitious (11th Ed. 2019).
{¶27} Upon review, we find that the state introduced legally sufficient evidence to
support Appellant’s voyeurism conviction.
{¶28} The State presented evidence that the phone with video recordings on it
was found in Appellant’s book bag, and that the phone had been hidden in a hallway
closet only used by Appellant and pointed in the direction of M.P.’s bedroom. Testimony
was also presented that no other men were in the house during the time periods when
these videos were taken. The state also presented evidence via the testimony of M.P.,
S.P. and Jennifer that the man in the video recordings was Appellant based on his voice,
his legs, his ears, etc. Further, testimony by Dep. House described Appellant’s statements
as inconsistent and backtracking. (T. at 240).
{¶29} Additionally, Det. Johnson explained that in his experience, such recordings
are made and used for the purpose of sexual gratification. (T. at 264).
{¶30} The trier of fact may infer a person's intent from the surrounding facts and
circumstances. (State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293; State v.
Horrigan (Feb. 19, 1999), 2nd Dist. No. 17260).
{¶31} Courts have held that the sexual-arousal and/or gratification element may
be inferred where there is no innocent, i.e., nonsexual, explanation for the offender's
conduct. See, e.g., Huron v. Holsapple (Aug. 8, 1997), 6th Dist. No. E–96–063, 1997 WL
Stark County, Case No. 2021CA00154 8
457971, at *3 (offender was caught “looking at the victim through her window during a
time in the morning when the victim, a fourteen-year-old girl, was dressing for school”);
State v. Million (1989), 63 Ohio App.3d 349, 351, 578 N.E.2d 869 (evidence that the
offender used a hand-held mirror to look into an adjacent bathroom stall would support
an inference of a purpose of sexual arousal or gratification “since innocent explanations
for his behavior do not readily come to mind”).
{¶32} Courts have also found a purpose to sexually arouse or self-gratify in cases
where a voyeur kept autoerotic materials in his car while he peered through a home's
window, (State v. Haldeman (Nov. 22, 2000), 2nd Dist. No. 18199, 2000 WL 1726858),
where a voyeur repeatedly peered through a home's window while apparently
masturbating, (State v. Gonzales (Mar. 12, 1999), 6th Dist. No. WD–98–057, 1999 WL
128580) , and where a voyeur climbed a ladder to peer through a window and watch a
young girl as she dressed for school. (Huron v. Holsapple (Aug. 8, 1997), 6th Dist. No.
E–96–063, 1997 WL 457971).
{¶33} Here, as set forth above, the state presented evidence that Appellant
videotaped M.P without her knowledge or permission when she was dressing and/or
undressing. Appellant then kept the video recordings on a secret cell phone he kept
hidden in his work bag. Given Appellant's secretive tactics and the nature of the sexually
explicit material, the trier of fact could have reasonably inferred that Appellant's acts were
done for the purpose of sexual arousal or self-gratification.
{¶34} While Appellant argues that S.P. and M.P.’s testimony was “tainted with
anger and revenge for Appellant”, the weight to be given to the evidence and the credibility
of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552
Stark County, Case No. 2021CA00154 9
N.E.2d 180 (1990). The trier of fact "has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on the
written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We
note circumstantial evidence is that which can be "inferred from reasonably and justifiably
connected facts." State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph
five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and
persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44, 595
N.E.2d 915. It is to be given the same weight and deference as direct evidence. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶35} Accordingly, we conclude that the evidence, if believed, established that
Appellant surreptitiously invaded M.P.'s privacy by videotaping, filming, photographing,
otherwise recording, or spying or eavesdropping upon her in her own home with the use
of a cell phone for the purpose of sexually arousing or gratifying himself. We hold that the
evidence was sufficient to support Appellant's conviction for voyeurism under R.C.
§2907.08(B). Furthermore, we cannot say that the trier of fact clearly lost its way or that
it created a manifest miscarriage of justice. This is not the exceptional case where the
evidence weighs heavily against conviction
Stark County, Case No. 2021CA00154 10
{¶36} Appellant’s assignments of error are overruled.
{¶37} For the reasons stated in the foregoing opinion, the judgment of the Canton
Municipal Court, Stark County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/kw 1103 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482355/ | Case: 21-11079 Document: 00516537501 Page: 1 Date Filed: 11/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-11079 November 8, 2022
Summary Calendar
Lyle W. Cayce
Clerk
Jackie Gaff, also known as Jackie Goff,
Plaintiff—Appellant,
versus
MSNI Advantage, L.P.; Karissa Happe Jones, also known as
Krissie; Tyler Happe; Main Street Associates,
Incorporated; Main Street Asset Solutions,
Incorporated; PHH Mortgage Corporation; PHH
Corporation; Ocwen Loan Servicing, L.L.C.; Ocwen
Financial Corporation; Sebring Capital Partners, L.P.;
U.S. Bank National Association; Bank of America, N.A.;
JP Morgan Chase Bank, N.A.; Ally Financial,
Incorporated; Ronald Happe; U.S. Bank National
Association, as Trustee, successor in interest to Bank of America
National Association, as Trustee, successor by merger to LaSalle
Bank National Association, as Trustee for Residential
Asset Mortgage Products, Inc. Mortgage Asset-Backed
Pass Through Certificates, Series 2007-RP1,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-644
Case: 21-11079 Document: 00516537501 Page: 2 Date Filed: 11/08/2022
No. 21-11079
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Jackie Gaff filed a pro se civil action against numerous defendants in
Texas state court raising various claims concerning a foreclosure sale of real
property located in Fort Worth, Texas. MSNI Advantage, L.P. filed a notice
of removal based on diversity jurisdiction and federal question jurisdiction.
The district court denied Gaff’s motion to remand and ultimately granted the
defendants’ motions to dismiss her third amended complaint with prejudice
for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6).
On appeal, Gaff first argues that the removal of the case to federal
court was improper because diversity jurisdiction did not exist, all defendants
did not consent to removal, and the district court should have abstained from
exercising jurisdiction under Younger v. Harris, 401 U.S. 37 (1971). The
district court did not err in finding that diversity jurisdiction existed as Gaff
was a citizen of Louisiana and all defendants were either individuals
domiciled in California or business entities that were incorporated and had
their principal places of business outside of Louisiana. See 28 U.S.C.
§ 1441(b)(2); Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000);
see also Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 572 (5th Cir. 2004).
In addition, the district court had federal question jurisdiction because Gaff’s
amended state court complaint alleged claims based on federal law. See
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Contrary to Gaff’s
argument, the defendants had not been served with her amended complaint
at the time the notice of removal was filed and, therefore, consent of all
defendants was not required to remove the case to federal court. See Miranti
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
2
Case: 21-11079 Document: 00516537501 Page: 3 Date Filed: 11/08/2022
No. 21-11079
v. Lee, 3 F.3d 925, 929 (5th Cir. 1993). Further, the district court did not err
in refusing to abstain from exercising jurisdiction under Younger because
there was no ongoing state judicial proceeding. See Ankenbrandt v. Richards,
504 U.S. 689, 705 (1992).
In addition, Gaff argues that the district court should have remanded
the case to state court under the Rooker-Feldman 1 doctrine and that MSNI
Advantage did not transmit a complete and accurate record as required by 28
U.S.C. § 1446. Gaff raised these arguments in her motion to vacate, which
was filed more than 28 days after entry of judgment, and she did not file an
amended or new notice of appeal from the denial of this postjudgment
motion. We therefore do not have jurisdiction to review the denial of Gaff’s
motion to vacate and the arguments raised therein. See Fed. R. App. P.
4(a)(4)(B)(ii); Williams v. Chater, 87 F.3d 702, 705 (5th Cir. 1996).
To the extent Gaff challenges the district court’s jurisdiction based on
her contention that the defendants lacked standing because they falsified
documents and committed fraud on the court, this claim lacks merit as the
plaintiff is the party who must have standing to establish jurisdiction. See
Hollingsworth v. Perry, 570 U.S. 693, 704-05 (2013).
Gaff also contends that the district court erred in denying her motion
for entry of a default judgment. However, she was not entitled to a default
judgment as a matter of right, even if the defendants were technically in
default. See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). Moreover,
because the defendants had not been properly served with her amended
complaint at the time the notice of removal was filed and because the
defendants were not unresponsive, this case does not present the type of
1
See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fid. Tr. Co.,
263 U.S. 413 (1923).
3
Case: 21-11079 Document: 00516537501 Page: 4 Date Filed: 11/08/2022
No. 21-11079
extreme situation warranting the entry of a default judgment. See Sun Bank
of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989).
Accordingly, Gaff has not shown the district court abused its discretion in
denying her motion for default judgment. See Lewis, 236 F.3d at 767.
Also on appeal, Gaff contends that the district court erred in
dismissing her third amended complaint for failure to state a claim. The
district court dismissed Gaff’s complaint because the only well-pleaded
claims, which concerned fraudulent dealings around 2007 and an illegal
foreclosure in 2014, were not filed within the applicable limitations period
and therefore were not plausible. Although she mentioned a nonjudicial
foreclosure set for June 2, 2020 in her third amended complaint, the district
court did not err in finding that her complaint did not provide notice of a
claim concerning a June 2020 foreclosure. See Heinze v. Tesco Corp., 971 F.3d
475, 479 (5th Cir. 2020); see also Fed. R. Civ. P. 8(a). Gaff does not
identify any error in the district court’s determination that her claims
concerning fraudulent dealings in 2007 and the wrongful foreclosure in 2014
were time barred and, therefore, she has abandoned this issue on appeal by
failing to brief it adequately. See Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). The district court also did not err
in rejecting Gaff’s argument that the limitations period should be equitably
tolled, as she did not show that she was “actively misled by the defendant
about the cause of action or [was] prevented in some extraordinary way from
asserting [her] rights.” Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th
Cir. 2002). In addition, Gaff has not shown that the district court failed to
consider any specific exhibits, nor has she explained how the court’s alleged
failure to consider specific exhibits affected its decision.
Gaff also maintains that the defendants committed fraud on the court.
As to her stand-alone claims of fraud, the district court’s determination that
Gaff’s third amended complaint failed to state a claim was based solely on the
4
Case: 21-11079 Document: 00516537501 Page: 5 Date Filed: 11/08/2022
No. 21-11079
allegations made in that complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013). Therefore, any
documents submitted by the defendants did not have any bearing on the
district court’s determination that Gaff’s complaint failed to state claim a
upon which relief may be granted. See Iqbal, 556 U.S. at 678; Rogers, 709 F.3d
at 407. As to her contention that the defendants committed fraud on the
court, see Fed. R. Civ. P. 60(b)(3), (d)(3), Gaff raised this claim in her
motion to vacate. As explained above, this court’s jurisdiction does not
extend to a review of that ruling. See Fed. R. App. P. 4(a)(4)(B)(ii);
Williams, 87 F.3d at 705. Likewise, this court does not have jurisdiction to
review Gaff’s claim, presented in her motion to vacate, that the district court
judge was biased and should have recused himself. See Fed. R. App. P.
4(a)(4)(B)(ii); Williams, 87 F.3d at 705.
In addition, Gaff challenges the district court’s failure to order the
defendants to respond to her requests for admission. However, Gaff was not
entitled to discovery prior to the district court’s ruling on whether her claim
should be dismissed pursuant to Rule 12(b)(6). See Sw. Bell Tel., LP v. City
of Houston, 529 F.3d 257, 263 (5th Cir. 2008). Therefore, she has not shown
that the district court’s discovery ruling, or lack thereof, was arbitrary or
clearly unreasonable. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,
817 (5th Cir. 2004).
For the first time on appeal, Gaff argues that her constitutional rights
were violated by the wrongful seizure of her property, the nonjudicial
foreclosure without notice, and the district court’s order concerning her
requests for admission. This court will generally not consider a new claim
raised for the first time on appeal in a civil action. See Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). We therefore will not consider
these claims. See id.
5
Case: 21-11079 Document: 00516537501 Page: 6 Date Filed: 11/08/2022
No. 21-11079
For these reasons, the district court’s judgment is AFFIRMED.
Gaff’s motions for judicial notice are DENIED.
6 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482359/ | Filed 11/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B317129
(Super. Ct. No. 18F-08854)
Plaintiff and Respondent, (San Luis Obispo County)
v.
CHRIS LYNN BERDOLL,
Defendant and Appellant.
While this criminal case was on appeal, there was a change
in the law concerning a trial court’s sentencing discretion. We
decide not to remand this case to the trial court.
We rely on article VI, section 13 of the California
Constitution. 1 It sets a standard for appellate courts to follow
Article VI, section 13 of the California Constitution reads:
1
“No judgment shall be set aside, or new trial granted, in any
cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as to
any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.”
when reviewing decisions of lower courts. No alleged error here
has resulted in a miscarriage of justice.
This sensible rule prompts us to affirm the trial court’s
imposition of an indicated sentence. We reject a literal reading of
a statute when to do so has no effect and squanders judicial
resources. We also rely on what is inherent in our rendering
judgments, the use of judgment.
Chris Lynn Berdoll appeals from the judgment after
pleading no contest to 24 counts of using a minor to pose to create
media depicting sexual acts (Pen. Code,2 § 311.4, subd. (c); counts
1-24) and one count of possession of matter depicting a minor
engaged in sexual acts (§ 311.11, subd. (a); count 25). The trial
court sentenced him to four years four months in state prison.
Berdoll contends the judgment should be vacated and the matter
remanded for resentencing pursuant to Senate Bill No. 567
(2021-2022 Reg. Sess.). (Stats. 2021, ch. 731, § 1.3.) We conclude
that here, where Berdoll agreed to an indicated sentence after the
court considered the mitigating and aggravating factors in
arriving at its sentence, a remand is not required. We affirm.
FACTUAL AND PROCEDURAL HISTORY3
Berdoll taught fifth grade in Atascadero. In August 2018, a
student told police that she saw Berdoll hold his cell phone under
another student’s desk and take pictures or videos.
Police confiscated Berdoll’s cell phone. On it were multiple
pictures and videos of Berdoll’s students. Some of the pictures
had students’ faces superimposed onto the naked bodies of other
2 Statutory references are to the Penal Code.
3 Because Berdoll waived his preliminary hearing and did
not have a trial, we take the facts from pretrial hearings and
pleadings.
2
children. Others had images of Berdoll superimposed in a way
that made it appear that he was engaged in sexual acts with the
students.
Prosecutors charged Berdoll with 24 counts of using a
minor to pose to create media depicting sexual acts and one count
of possession of matter depicting a minor engaged in sexual acts.
At the plea hearing, and over the People’s objection, the trial
court said that it intended to sentence Berdoll to the upper term
of three years on count 1 and run all other sentences concurrently
if he pleaded guilty or no contest. It noted two aggravating
circumstances supporting its indicated sentence: the crimes
involved young, prepubescent girls, and Berdoll carried out his
crimes in a planned, sophisticated manner by “directing the
victims to move in a certain way in order to capture some of [his
photographs].” Berdoll pleaded no contest to all charges.
At sentencing, the trial court said that it was revising its
previously indicated sentence upward from three years to four
years four months. Although the court noted Berdoll was eligible
for probation, it concluded probation was inappropriate–and a
longer prison sentence was justified–because his crimes
represented a “massive violation of . . . trust” that persisted for
“such a long time.” And as detailed in the probation report–
which the court was required to consider (People v. Flowers
(2022) 81 Cal.App.5th 680, 683)–the crimes involved the
exploitation of young, vulnerable children who had a “reasonable
expectation of safety” in the classroom. They also “didn’t have a
choice in spending time and being left alone with [Berdoll].” In
revising its indicated sentence, the court also considered Berdoll’s
lack of criminal history, that his conduct did not involve physical
touching, and that he had begun therapy to begin to deal with his
sexual urges. Ultimately, the court concluded that a longer
3
prison sentence was appropriate because “here we have young
children and we have a teacher doing it.”
Berdoll declined to withdraw his plea, and the trial court
imposed the revised indicated sentence: the upper term of three
years on count 1, and consecutive eight-month terms on counts 9
and 25. The court imposed concurrent, upper-term sentences on
all remaining counts.
DISCUSSION
Berdoll notes that after he was sentenced, Senate Bill No.
567 became law. He claims because of the new law this case
must be remanded for resentencing.
“Senate Bill No. 567 (2021-2022 Reg. Sess.) amended
section 1170, subdivision (b), making the middle term of
imprisonment the presumptive sentence.” (People v. Flores
(2022) 75 Cal.App.5th 495, 500.) “A trial court may impose an
upper term sentence only where there are aggravating
circumstances in the crime and the defendant has either
stipulated to the facts underlying those circumstances or they
have been found true beyond a reasonable doubt.” (Ibid.) “These
amendments apply retroactively to [Berdoll] because his
conviction was not final when this legislation took effect.” (Ibid.)
Here the trial court found there were aggravating
circumstances that required the aggregate upper term sentence it
imposed. As the People note, “[T]here was undisputed evidence
that appellant was a grade-school teacher who abused his
position of trust by surreptitiously taking photographs and videos
of his students and manipulating those images in pornographic
ways. This behavior persisted over years and involved numerous
students.”
In Flores, the issue was whether Senate Bill No. 567
required a remand for resentencing where the trial court, before
4
its enactment, had imposed an upper term for a corporal injury
offense based on its findings of aggravating circumstances
following the defendant’s conviction after a jury trial. The
appellate court concluded Senate Bill No. 567 was retroactive,
but it rejected the claim that a remand for resentencing was
required because of the new changes enacted by Senate Bill No.
567. It said, “To the extent these aggravating circumstances
were not stipulated to or found true beyond a reasonable doubt,
any error in taking them into consideration is harmless.” (People
v. Flores, supra, 75 Cal.App.5th at p. 500.) “ ‘[I]f a reviewing
court concludes, beyond a reasonable doubt, that the jury,
applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury,’ the
error is harmless. (People v. Sandoval [2007] 41 Cal.4th [825,]
839; . . .)” (Ibid.)
The Flores court concluded, “On this record we are
satisfied, beyond a reasonable doubt, the jury would have found
true at least one aggravating circumstance.” (People v. Flores,
supra, 75 Cal.App.5th at p. 501.) “Thus, remand for resentencing
on this issue is unnecessary.” (Ibid.)
Here the contested issues were not tried by a jury and the
sentencing issues were determined by the trial judge.
Nevertheless, we conclude that any jury would have found at
least one of the aggravating factors here beyond a reasonable
doubt just as the trial court did. Berdoll pled no contest to the
charges. The trial court was the exclusive trier of fact. Moreover,
Berdoll stipulated to a factual basis for the plea “based on the
police reports.” Those reports contained the uncontradicted
foundation for the findings of aggravating sentencing factors.
The trial court, exercising its sentencing discretion, declared it
5
was imposing the aggregate sentence because the aggravating
factors outweighed the mitigating factors.
The aggravating sentencing factors and findings were
amply supported by this record and clearly articulated by the
trial court. There is no valid claim that these factors did not
involve patently reprehensible conduct to exploit young
vulnerable children under Berdoll’s control. Moreover, there is
no doubt from this record as to why the trial court selected the
sentence it imposed.
People v. Mitchell (2022) 83 Cal.App.5th 1051 also supplies
support for our position. Defendant entered into a stipulated
plea agreement to a series of charges including reckless driving
while evading a police officer. Mitchell points out that “[i]n the
case where there is a stipulated plea like here, there is no
occasion for the trial court to find any aggravating facts in order
to justify the imposition of an upper term at sentencing.” (Id. at
p. 1059.)
“Appellant agreed to a term of six years pursuant to a
stipulated plea and the trial court simply sentenced appellant
according to the terms of the plea agreement. In fact, it was
appellant who offered, as a factual basis for the plea, that she
‘drove recklessly while evading a police officer’ and the trial court
accordingly found that a factual basis existed for the plea. The
trial court therefore did not exercise any discretion under former
section 1170, subdivision (b) in selecting the lower, middle, or
upper term. Further, in entering into the plea, appellant
knowingly waived her rights to both a jury trial and court trial.
Therefore, the concern raised in Cunningham v. California [2007]
549 U.S. [270,] 293, that a defendant's Sixth Amendment rights
are violated when aggravating facts to support an upper term
sentence are not found by a jury beyond a reasonable doubt does
6
not exist here.” (People v. Mitchell, supra, 84 Cal.App.5th at
p. 1059.)
Although here Berdoll’s plea of guilty was not based on a
stipulated plea agreement, his plea of guilty to the judge’s
indicated sentence bears similarity. The trial court increased its
original indicated sentence because it found the aggravating
factors predominated over the mitigating factors.
Logic and common sense lead us to conclude beyond a
reasonable doubt that no jury and no trial court would impose a
more favorable sentence upon remand. To remand would achieve
the same sentencing result and would be a waste of judicial
resources.
The trial court considered the aggravating factors and
acknowledged the mitigating factors. It decided not to impose its
original indicated sentence and to increase the sentence. The
facts did not have to be “proven at trial” because Berdoll,
represented by counsel, agreed to plead guilty to a longer
sentence than originally indicated. The court decided the
aggravating factors outweigh the mitigating factors. It is not for
this court to order the trial court to once again weigh the factors
the trial court already considered. Section 1170, subdivision (b)
should result in a remand to the trial court when the facts
warrant it. They do not here.
Although we think the concurring opinion is unnecessary,
we agree with its reasoning.
7
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
I concur:
YEGAN, J.
8
BALTODANO, J., Concurring in the judgment:
I concur in the judgment.
Since Senate Bill No. 567 (2021-2022 Reg. Sess.) became
effective earlier this year, Penal Code1 section 1170, subdivision
(b)(2), has required that “circumstances in aggravation of the
crime” supporting a trial court’s imposition of an upper-term
prison sentence be stipulated to by a defendant or be proven
beyond a reasonable doubt. (Stats. 2021, ch. 731, § 1.3.) Unlike
prior versions of section 1170, upper-term sentences can now be
imposed only if the aggravating circumstances justifying them
are proven as required by subdivision (b)(2). (Id., subd. (b)(1).)
Where, as here, a trial court has imposed an upper term by
relying on aggravating circumstances that were not stipulated to
or proven beyond a reasonable doubt, the error is harmless if: (1)
the evidence supporting the relied-upon circumstances is so
“ ‘overwhelming and uncontested’ ” that there is no “ ‘ “evidence
that could rationally lead to a contrary finding,” ’ ” and, if the
reviewing court cannot reach that conclusion, (2) it is
nevertheless reasonably probable that the trial court would have
imposed the upper term without consideration of the unproven
circumstance(s). (People v. Lopez (2022) 78 Cal.App.5th 459, 466-
467 (Lopez).) Stated differently, resentencing is not required if
the record “ ‘ “clearly indicates” ’ ” that the court would impose
the upper term on remand. (Id. at p. 467, alterations omitted.)
There was such a clear indication here. The trial court
relied on three aggravating circumstances when selecting the
upper term on count 1: Berdoll abused a position of trust to
commit his crimes (Cal. Rules of Court, rule 4.421(a)(11)), he
1
Statutory references are to the Penal Code.
carried them out in a manner that indicated planning or
sophistication (id., rule 4.421(a)(8)), and his victims were
particularly vulnerable (id., rule 4.421(a)(3)). The facts
underlying these circumstances were neither stipulated to nor
proven beyond a reasonable doubt as required by section 1170,
subdivision (b)(2). But as he concedes in his briefs, it cannot be
seriously contested that Berdoll abused a position of trust:
Berdoll, a grade-school teacher, surreptitiously took photos and
videos of his students and manipulated the images in
pornographic ways. The trial court considered this the “most
important[]” aggravating circumstance when giving its three-year
indicated sentence. It again cited Berdoll’s “massive violation of
. . . trust” when revising that sentence upward to four years four
months. Given the overriding importance of this circumstance, it
is not reasonably probable that the court would have imposed a
more lenient term on count 1 even without consideration of the
sophistication of Berdoll’s crimes or his victims’ vulnerabilities.2
(Lopez, supra, 78 Cal.App.5th at p. 467.) Remand is unnecessary.
CERTIFIED FOR PUBLICATION.
BALTODANO, J.
2
Since the Attorney General has not argued that remand is
unnecessary because Berdoll stipulated to a factual basis for his
plea or entered an open plea in exchange for an indicated
sentence, I do not rely on these theories in concluding that the
Senate Bill No. 567 error here was harmless. I would wait for a
future case in which the Attorney General presents these
arguments to decide them.
2
Jesse J. Marino, Judge
Superior Court County of San Luis Obispo
______________________________
Mark R. Feeser for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482417/ | Filed 11/8/22 P. v. Alejandre CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, A164868
Plaintiff and Respondent,
v. (Contra Costa County Super. Ct.
ALBERTO JOSE ALEJANDRE, No. 51001346)
Defendant and Appellant.
Alberto Jose Alejandre appeals from the denial of his petition for
resentencing brought pursuant to former Penal Code section 1170.95.1 We
affirm.
BACKGROUND
In 2010, a jury convicted Alejandre of several felonies, including first
degree murder and conspiracy to commit murder; the jury also found true an
allegation that a codefendant discharged a firearm causing death. This court
affirmed. (People v. Alejandre (Sept. 5, 2013, A131367, A137456) [nonpub.
opn.] (prior opinion).)
Undesignated statutory references are to the Penal Code. Section
1
1170.95 has been renumbered section 1172.6. (Stats. 2022, ch. 58, § 10.)
1
Years later, Alejandre petitioned for resentencing under former section
1170.95, and the trial court appointed counsel for him. In opposition, the
prosecution summarized the procedural history as stated in the prior opinion
and urged the court to deny the petition without issuing an order to show
cause. Alejandre objected “to the court considering the recitation of facts in
the . . . opinion.” The court summarily denied the petition. It concluded
Alejandre was ineligible for relief as a matter of law “because he was not
convicted under a felony murder or natural and probable consequence[s]
theory, and his conviction of conspiracy to commit murder required the jury
to find he harbored express malice aforethought.” In reaching this
conclusion, the court considered the jury instructions and verdicts — as well
as the procedural history recited in the prior opinion — and it relied on
People v. Medrano (2021) 68 Cal.App.5th 177, which held relief under former
section 1170.95 “is unavailable to a petitioner concurrently convicted of first
degree murder and conspiracy to commit first degree murder where both
convictions involve the same victim” (Medrano, at p. 179) because “ ‘a
conviction of conspiracy to commit murder requires a finding of intent to
kill.’ ” (Id. at p. 184.)
Alejandre appealed. His appointed counsel filed a brief raising no
issues and requesting this court conduct an independent review of the record.
(People v. Wende (1979) 25 Cal.3d 436.) Counsel apprised Alejandre of his
right to file a supplemental brief, but he has not filed anything. The
Supreme Court is currently considering the procedures appointed counsel
and the Courts of Appeal must follow when counsel determines “an appeal
from an order denying postconviction relief lacks arguable merit.” (People v.
Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.], review granted Feb. 17,
2021, S266305.) Pending further guidance concerning the applicability of
2
Wende procedures in postconviction relief appeals, we exercise our discretion
to independently review the record for arguable issues. (Conservatorship of
Ben C. (2007) 40 Cal.4th 529, 544, fn. 7.) Having done so, we find none.
DISPOSITION
The order denying Alejandre’s petition for resentencing is affirmed.
3
_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Fujisaki, J.
A164868
4 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482413/ | Filed 11/8/22 P. v. Carter CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074159
v. (Super.Ct.No. FSB03821)
JERMAINE CORNELIUS CARTER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alan L.
1
Amann, Lynne G. McGinnis, and A. Natasha Cortina, Deputy Attorneys General, for
Plaintiff and Respondent.
I
INTRODUCTION
In 1995, among other crimes, a jury convicted defendant and appellant Jermaine
1
Cornelius Carter of first degree murder (Pen. Code, § 187) with true findings on the
special circumstance allegation that the murder occurred during a robbery (§ 190.2,
subd. (a)(17)) and the special circumstance of multiple murder (§ 190.2, subd. (a)(3)).
The jury also convicted defendant of second degree murder, during which he used a
handgun (§ 12022.5, subd. (a)). Defendant was sentenced to life without the possibility
of parole.
In 2019, defendant filed a petition to vacate his murder convictions under
section 1172.6 (formerly section 1170.95),2 which was enacted by the Legislature
through its passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015). The trial court denied the petition, finding Senate Bill No. 1437
unconstitutional and, alternatively, concluding defendant was ineligible for relief as a
matter of law based on the jury’s special circumstance finding (first degree murder) and
because defendant was the actual killer (second degree murder).
1
All future references are to the Penal Code unless otherwise stated.
2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as
section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to
section 1172.6 for ease of reference unless otherwise indicated.
2
Defendant appealed that ruling, arguing the trial court erred in finding Senate Bill
No. 1437 unconstitutional and by concluding the special circumstance finding as to his
first degree murder conviction made him ineligible for relief as a matter of law. Relying
on People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), he argued the jury’s 1995 special circumstance finding did not conclusively
bar him from obtaining relief because a robbery-murder special circumstance finding
made before Banks and Clark is not dispositive. In our original opinion, we concluded
that Senate Bill No. 1437 is constitutional but found defendant’s special circumstance
finding rendered him ineligible for relief as a matter of law. We therefore affirmed the
summary denial of defendant’s petition.
The California Supreme Court granted review of our opinion and deferred action
pending its decisions in People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), and it has now transferred the matter back to us
with directions to vacate our original opinion and reconsider defendant’s appeal in light
of those decisions. In Strong, our Supreme Court held that a pre-Banks/Clark felony-
murder special circumstance finding does not render a section 1172.6 petitioner ineligible
for relief as a matter of law. Having reconsidered defendant’s appeal in light of Strong
and Lewis, we reverse the trial court’s order and remand the matter for further
proceedings pursuant to section 1172.6.
3
II
FACTUAL AND PROCEDURAL BACKGROUND 3
On February 27, 1994, defendant, Walter Reginald Beasley, James Charles
Beasley (the Beasley brothers), and the first victim were arguing in an alley in Rialto.
Gunfire erupted between defendant and the victim, and the victim was killed. The three
left in one of the Beasley brothers’ cars.
They drove to Ivan Ray Warren’s house and then took off with him in his car.
They drove to a store where two of the four entered, held up the clerk at gunpoint, had
him open the cash drawer, then shot him in the head, killing him.
Next, they traveled to the parking lot of a department store, where they robbed a
man whose disabled car was parked there. They then drove to the parking lot of a nearby
restaurant, where a woman and man were held up at gunpoint.
On August 25, 1994, an information was filed charging defendant with seven
felony counts: one count of attempted murder (§§ 664/187, subd. (a); count 1) of
Ronnie F.; one count of murder (§ 187, subd. (a); count 2) of William R. with a firearm
enhancement (§ 12022.5, subd. (a)); one count of second degree robbery (§ 211; count 3)
with a firearm enhancement (§ 12022.5, subd. (a)); one count of murder (§ 187, subd. (a);
count 4) of Robert K. with special allegations that the crime occurred during the
3 The summary of the factual background is taken from this court’s nonpublished
opinions from defendant’s prior appeals in case Nos. E015694 and E071716. (People v.
Carter (Jan. 14, 1997, E015694) [nonpub. opn.] (Carter I); People v. Carter (July 30,
2019, E071716) [nonpub. opn.] (Carter II).)
4
commission of a robbery (§ 190.2, subd. (a)(17), and multiple murders (§ 190.2,
subd. (a)(3)); and three counts of second degree robbery (§ 211; counts 5, 6, & 7). 4
This matter went to trial by jury against both defendant and codefendant Warren.
Upon conclusion of the evidence, both defendants made motions under section 1118.1 for
dismissal of all charges against them. The trial court denied the motion in its entirety as
to codefendant Warren and granted defendant’s motion only as to count 1, attempted
murder. (See Carter II, E071716.)
Subsequently, the jury convicted defendant and codefendant Warren of four
counts of second degree robbery (§ 211), during one of which defendant used a handgun
(§ 12022.5, subd. (a)), and one count each of first degree murder (§ 187). As to both
defendants, the jury further found the special circumstance that the murder occurred
during a robbery (§ 190.2, subd. (a)(17)), and, as to defendant, the jury found the special
circumstance of multiple murder (§ 190.2, subd. (a)(3)). The jury also convicted
defendant of second degree murder, during which he used a handgun. Both defendants
received life terms without the possibility of parole, along with determinate terms.
(Carter II, supra, E071716.) In 1997, we affirmed the judgment in a nonpublished
opinion. (Ibid.)
4 The criminal complaint also named the Beasley brothers and Warren as
defendants. Both Beasley brothers entered a plea before trial and codefendant Warren
was tried with defendant.
5
On January 1, 2019, Senate Bill No. 1437 became effective, which amended the
felony-murder rule and the natural and probable consequences doctrine as it relates to
murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 also added
former section 1170.95 (now section 1172.6), which created a procedure for offenders
previously convicted of murder to seek retroactive relief if they could no longer be
convicted of murder under the new law. (Stats. 2018, ch. 1015, § 4.)
On July 3, 2019, defendant in propria persona filed a petition for resentencing
pursuant to section 1172.6, requesting that his murder convictions be vacated based on
changes to sections 188 and 189, as amended by Senate Bill No. 1437, and asking to be
resentenced.
The People moved to strike the petition based on the unconstitutionality of Senate
Bill No. 1437 and resulting statutes. The People thereafter filed an informal response to
the petition, along with a request for judicial notice of the underlying trial, arguing
defendant failed to state a prima facie case for relief.
On September 26, 2019, defendant’s appointed counsel filed an opposition to the
People’s motion to strike, arguing Senate Bill No. 1437 is constitutional. Defense
counsel also asserted that defendant had made a prima facie case for relief and that the
burden had shifted to the prosecution to establish he was not eligible for relief.
On October 9, 2019, the trial court issued a tentative decision finding Senate
Bill No. 1437 unconstitutional and, concluding alternatively, that defendant was
ineligible for relief. As to his second degree murder conviction (count 2), the court noted
6
that defendant was the actual killer. As to his first degree murder conviction (count 4),
the court explained the attendant special circumstance finding, namely murder committed
in the commission of a robbery, established that defendant either acted with the specific
intent to kill or was a major participant who acted with reckless indifference to human
life. The court continued further hearing to permit the parties to prepare additional
briefing to address the tentative decision.
The parties ultimately submitted, and the trial court, following its tentative
decision, denied defendant’s petition on November 4, 2019, in a written ruling.
III
DISCUSSION
Defendant contends the trial court erred in relying on the jury’s pre-Banks and
Clark true finding on the robbery-murder special circumstance to deny his petition, and
thereby violated his due process rights. The People concede that under Strong, the
court’s order denying defendant’s petition for resentencing at the prima facie stage should
be reversed and the matter remanded for further proceedings. Because his conviction
predates our Supreme Court’s decisions in Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522, which clarified the meaning of “major participant” and “reckless
indifference to human life,” we concur that the trial court erred in denying defendant’s
petition at the prima facie stage and remand for further proceedings under section 1172.6.
7
A. Legal Background
In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively,
which discuss when section 190.2 authorizes a special circumstance life without parole
sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra,
61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that
participation in an armed robbery, on its own, is insufficient to support a finding the
defendant acted with reckless indifference to human life. Instead, the factfinder must
consider “the defendant’s personal role in the crimes leading to the victim’s death and
weigh the defendant’s individual responsibility for the loss of life, not just his or her
vicarious responsibility for the underlying crime.” (Banks, at p. 801, italics omitted.)
“The defendant must be aware of and willingly involved in the violent manner in which
the particular offense is committed,” thereby “demonstrating reckless indifference to the
significant risk of death his or her actions create.” (Ibid., italics added.) Banks provided
a non-exhaustive list of factors to consider when determining whether the defendant was
a major participant in the underlying felony. (Banks, at p. 803.) And Clark offered a
similar list for determining whether the defendant acted with reckless indifference to
human life. (Clark, at pp. 619-623.)
As noted previously, effective January 1, 2019, the Legislature passed Senate Bill
No. 1437 “‘to amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a major
8
participant in the underlying felony who acted with reckless indifference to human life.’”
(People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile); see Stats. 2018, ch. 1015,
§ 1, subd. (f).) The Legislature accomplished this by amending sections 188 and 189.
Effective January 1, 2022, Senate Bill No. 775 expanded the scope of those changes to
encompass, among other things, murder convictions “under the natural and probable
consequences doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime.” (§ 1172.6, subd. (a), as amended by
Stats. 2021, ch. 551, § 2.)
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e), now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs
is liable for murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
9
life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e); Stats. 2018,
ch. 1015, § 3.)
Senate Bill No. 1437 also created a procedure for offenders previously convicted
of felony murder or murder under the natural and probable consequences doctrine to seek
retroactive relief if they could no longer be convicted of murder under the new law.
(Gentile, supra, 10 Cal.5th at p. 843; see Lewis, supra, 11 Cal.5th at p. 959.) Under
section 1172.6, such offenders may petition to have their convictions vacated and are
entitled to relief if (1) the complaint or information filed against them allowed the
prosecution to proceed under a felony murder or natural and probable consequences
theory; (2) they were “convicted of murder, attempted murder, or manslaughter following
a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been
convicted of murder or attempted murder”; and (3) they “could not presently be
convicted of murder or attempted murder because of changes to Section 188 or 189.”
(§ 1172.6, subd. (a).) If a petition makes a prima facie showing the offender is entitled to
relief, the trial court must issue an order to show cause and hold “a hearing to determine
whether to vacate the murder, attempted murder, or manslaughter conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not previously been sentenced.” (§ 1172.6, subds. (c), (d)(1).) At
that hearing, the People bear the burden “to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3); see Lewis, at p. 960.)
10
The prima facie inquiry under section 1172.6, subdivision (c), is “limited.”
(Lewis, supra, 11 Cal.5th at p. 971.) The court “‘“takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the petitioner would be
entitled to relief if his or her factual allegations were proved.”’” (Ibid.) Although the
court may rely on the record of conviction (including a prior appellate court opinion) in
determining whether defendant has made a prima facie showing, the court “should not
engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’”
(Id. at p. 972; see id. at p. 971.)
In Senate Bill No. 775, the Legislature amended the language of section 1172.6,
expanding the scope of the petitioning process and clarifying some of the procedural
requirements. (Stats. 2021, ch. 551, § 2.) Section 1172.6 now provides that, upon
receiving a petition, if the petitioner has requested counsel, the court must appoint
counsel to represent the petitioner. (§ 1172.6, subd. (b)(3).)
B. Standard of Review
In this case, the trial court denied defendant’s petition at the prima facie stage
under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the
record of conviction demonstrates that the petitioner is ineligible for relief as a matter of
law. (Lewis, supra, 11 Cal.5th at p. 960.) This is a purely legal conclusion, which we
review de novo. (See id. at p. 961.) The interpretation and application of a statute to
factual findings is a question of law subject to de novo review as well. (Ibid.; People v.
Johnson (2016) 1 Cal.App.5th 953, 960.)
11
C. Analysis
Our Supreme Court recently made clear that when, as here, a defendant’s case
“was tried before both Banks and Clark, the special circumstance findings do not
preclude him from making out a prima facie case for resentencing under section 1172.6.”
(Strong, supra, 13 Cal.5th at p. 721.) “This is true even if the trial evidence would have
been sufficient to support the findings under Banks and Clark.” (Id. at p. 710.) The
Strong court noted that the Banks and Clark cases “both substantially clarified the law
governing findings under . . . section 190.2, subdivision (d).” (Id. at p. 706.) The court
explained that a pre-Banks and Clark special circumstance finding does not negate the
showing that the petitioner could not presently be convicted of murder or attempted
murder because of changes to section 188 or 189 “because the finding alone does not
establish that the petitioner is in a class of defendants who would still be viewed as liable
for murder under the current understanding of the major participant and reckless
indifference requirements.” (Strong, at pp. 717-718.)
Noting the differences between pre- and post-Banks and Clark special
circumstance requirements, the Supreme Court observed the changes may “have altered
what evidence defense counsel would have sought to introduce[,] . . . might have
fundamentally altered trial strategies,” and may have affected what jury instructions were
requested or given. (Strong, supra, 13 Cal.5th at p. 719.) “An after-the-fact court review
of a pre-Banks and Clark record does not account for all these differences. . . . And
as the Legislature has made explicit in a recent amendment to the predecessor to
12
section 1172.6, a court determination that substantial evidence supports a homicide
conviction is not a basis for denying resentencing after an evidentiary hearing. [Citation.]
Nor, then, is it a basis for denying a petitioner the opportunity to have an evidentiary
hearing in the first place.” (Id. at p. 720.) Thus, neither “the jury’s pre-Banks and Clark
findings nor a court’s later sufficiency of the evidence review amounts to the
determination section 1172.6 requires, and neither set of findings supplies a basis to
reject an otherwise adequate prima facie showing and deny issuance of an order to show
cause.” (Id. at p. 720.)
Here, the jury made its special circumstances finding in 1995, about 20 years
before Banks and Clark. And the trial court found defendant ineligible for relief as to his
first degree murder conviction based on the attendant special circumstance finding,
namely that the murder was committed in the commission of the robbery. Pursuant to
Strong, that finding does not preclude defendant from stating a prima facie case for relief.
(Strong, supra, 13 Cal.5th at p. 721.) Furthermore, a defendant’s prima facie case is not
barred even if the trial evidence was sufficient to support the special circumstance finding
after Banks and Clark. (Strong, at p. 710; Lewis, supra, 11 Cal.5th at p. 972 [in
reviewing the record at the prima facie stage, “a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion’”].)
Defendant’s resentencing petition was facially sufficient and alleged the essential
facts necessary for relief under section 1172.6. Nothing in the record demonstrates
13
defendant is ineligible for relief as a matter of law, so we must remand the matter for
further proceedings under section 1172.6.
IV
DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is reversed.
The matter is remanded for further proceedings pursuant to section 1172.6.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
14 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482418/ | Filed 11/8/22 Patton v. County of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEPHANIE PATTON et al.,
Plaintiffs and Appellants, E074929
v. (Super.Ct.No. RIC1701787)
COUNTY OF RIVERSIDE et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.
Affirmed.
Traylor Law Office and Michael S. Traylor for Plaintiffs and Appellants.
Thompson & Colegate and Susan Knock Beck for Defendants and Respondents.
1
Stephanie Patton and Kendrick Knighten appeal from a judgment dismissing their
professional negligence and wrongful death claims against Riverside County and two of
its employees. Plaintiffs argue the trial judge erred by dismissing their claims against
defendants for failure to satisfy the claim presentation requirements in Government
1
Claims Act (Gov. Code, § 810 et seq.) (the Act). We conclude the pleadings and
evidence properly introduced on demurrer show that plaintiffs failed to comply with the
Act’s prerequisite to filing a lawsuit against a public entity for damages. We therefore
affirm.
I
FACTS
On January 30, 2017, plaintiffs brought an action for professional negligence and
wrongful death against Riverside County (as the owner and operator of Riverside
University Health System and Riverside County Regional Medical Center) and Bipin
2
Patel, M.D., a physician who works for the county. Plaintiffs alleged that two months
after their 15-year-old daughter was a patient in a county hospital and prescribed
Lexapro, she took her own life as a result of the side effects of the drug. Plaintiffs alleged
defendants negligently contributed to their daughter’s death by prescribing a drug with a
high risk of suicidal ideations in teenagers without first determining whether the drug and
1 Unlabeled statutory citations refer to the Government Code.
2
Later in the litigation, plaintiffs added a county pharmacist as defendant, Mark
Tang, Pharm. D. Plaintiffs also sued various private individuals and entities, but we do
not discuss them here because they are not parties to this appeal.
2
dose was appropriate and without providing any warnings about the drug’s lethal side
effects. The truth of these troubling allegations is not at issue in this appeal, however.
And so we focus our summary on on facts relating to the threshold issue of claim
presentation.
Early in discovery, defendants served plaintiffs with requests to admit, among
other things, that: (1) Riverside University Health System “is a government entity,” (2)
plaintiffs “did not comply with the presentation requirements of the [Government]
Claims Act,” (3) plaintiffs “did not present a Government Tort Claim to the required
local public entity prior to the filing of [the complaint] in this action,” and (4) plaintiffs
“do not have a Government Tort Claim Number as assigned by the Clerk of the Board of
Supervisors for the County of Riverside.” Plaintiffs did not respond to these requests, and
on March 22, 2018, the trial court entered orders deeming them admitted.
On May 18, 2018, defendants moved for summary judgment, arguing plaintiffs
had failed to comply with the Act’s requirement of presenting a public entity defendant
with a claim for damages within six months of the claim’s accrual. They attached the
declaration of Cecilia Gil, who was then the assistant to the clerk of the county Board of
Supervisors. Gil said she maintained the database of all the tort claims submitted to the
county Board of Supervisors under the Act and the county had not received a tort claim
from plaintiffs.
Plaintiffs filed an opposition arguing they had substantially complied with the Act.
They attached the declaration of one of plaintiffs’ counsel’s employees, who said that on
3
August 23, 2016, she prepared and sent “letters” to the following six recipients: Riverside
University Health System; Jeri Lou Vaughan at Riverside University Health System
Foundation; Dr. Patel; Erin Phillips at RUHS Foundation; the Riverside County Regional
Medical Center Department of Psychiatry; and the Riverside County Regional Medical
Center Pharmacy Department. The employee attached several copies of certified mail
receipts but did not attach any copies of the letters.
On August 6, 2018, the court continued the hearing on the summary judgment
motion to allow plaintiffs to file an amended complaint. However, before the court issued
that ruling, defendants’ counsel reminded the court of the March 22 orders deeming their
requests for admissions admitted.
About a week later, on August 14, 2018, plaintiffs filed a motion for relief from
the March 22 orders, and defendants filed an opposition. When plaintiffs’ counsel failed
to appear at the hearing on his own motion, the court denied the motion without
prejudice. As far as we can tell from the record and briefing on appeal, plaintiffs never
refiled the motion.
Defendants filed demurrers to plaintiffs’ amended complaint, arguing once again
that their claims were barred for failure to satisfy the Act’s claim presentation
requirements. In support, defendants attached—and asked the court to take judicial notice
of—the declaration of the current board assistant, Karen Barton, who said the clerk of the
board did not receive any tort claims from plaintiffs until July and September of 2018—
more than a year and a half after they filed the lawsuit. Barton attached copies of these
4
claims to her declaration. Plaintiffs did not appear at the hearing. The court granted
defendants’ request for judicial notice and sustained the demurrers with leave to amend to
“give [plaintiffs] another chance to add some additional facts and see what they have to
say.”
On August 30, 2019, plaintiffs filed the complaint at issue, the fourth amended.
That pleading contains a 10-page section on claim presentation in which plaintiffs said,
on August 22, 2016, they sent a “notice” by certified mail “to Riverside County” and the
notice was “received by the clerk” and transmitted to the Board of Supervisors. Plaintiffs
also said that, in response to defendants’ “untrue assertions that the . . . notices were not
received (and out of an abundance of caution),” they also sent notices in July and
November 2018.
Defendants once again filed demurrers raising the claim presentation issue. In
support, they resubmitted—and asked the court to take judicial notice of—Barton’s
declaration saying the only tort claims the county had received from plaintiffs were the
ones from July and November 2018. At a hearing on November 27, 2019, the court
granted defendants’ request for judicial notice, concluded plaintiffs failed to allege
compliance with the Act’s claim presentation requirements, and sustained the demurrers
without leave to amend.
After the court entered judgment on December 17, 2019, plaintiffs filed a motion
for relief from the order sustaining the county’s demurrer under Code of Civil Procedure
sections 473 and 657. In support, their counsel submitted a declaration saying he had
5
made an inadvertent mistake when drafting the complaint and should have alleged the
notice had been sent to the clerk, not to the county.
At a hearing on February 27, 2020, the court denied plaintiffs’ motion, explaining
that any further amendment would be futile because its decision to sustain the demurrers
was based upon facts subject to judicial notice and facts deemed admitted on March 22,
2018.
II
ANALYSIS
A. The Court Properly Sustained the Demurrers
Plaintiffs argue the judge erred by concluding they hadn’t satisfied the Act’s claim
presentation requirements and sustaining defendants demurrers on that ground. We
disagree.
We independently review a ruling sustaining a demurrer without leave to amend,
meaning “we exercise our independent judgment about whether the complaint alleges
facts sufficient to state a cause of action under any possible legal theory.” (Moe v.
Anderson (2012) 207 Cal.App.4th 826, 830.) We treat facts as alleged in the complaint as
true unless they are contradicted by matters subject to judicial notice. (State Dept. of State
Hospitals. v. Superior Court) (2015) 61 Cal.4th 339, 346 (Novoa); Tucker v. Pacific Bell
Mobile Services (2012) 208 Cal.App.4th 201, 210.)
Subject to exceptions not relevant here, section 905 requires the presentation of
“all claims for money or damages against local public entities.” Commonly referred to as
6
the claim presentation requirement, the Act states that “no suit for money or damages
may be brought against a public entity on a cause of action for which a claim is required
to be presented . . . until a written claim therefor has been presented to the public entity
and has been acted upon . . . or has been deemed to have been rejected.” (§ 945.4.)
As relevant here, a claim for personal injury must be presented within six months
after accrual (§ 911.2) by either mailing or delivering the claim to the public entity’s
“clerk, secretary or auditor” (§ 915, subd. (a)). Claims that are not mailed or delivered in
this manner will nevertheless be deemed presented if, “within the time prescribed for
presentation,” it is “actually received by the clerk, secretary, auditor, or board of the local
public entity.” (§ 915, subd. (e)(1).)
As our Supreme Court has explained, the claim presentation requirement “‘is more
than a procedural requirement, it is a condition precedent to plaintiff’s maintaining an
action against defendant, in short, an integral part of plaintiff’s cause of action.’” (State of
California v. Superior Court (2004) 32 Cal.4th 1234, 1240, italics added.) Because the
failure to timely present the claim “bars the action,” the failure to allege facts
demonstrating or excusing compliance with the requirement “subjects a complaint to
general demurrer for failure to state a cause of action.” (Id. at p. 1241.)
Applying these principles here, we see three independent bases to support the trial
court’s conclusion that plaintiffs’ claims against defendants are barred. First—and
contrary to their assertion in the trial court and again on appeal—the complaint does not
sufficiently allege compliance with the claim presentation requirements. This is because
7
the complaint failed to allege plaintiffs sent a claim in the manner the Act requires—that
is, by delivering it to the county’s clerk, secretary, or auditor. Nor does the complaint
allege facts to support actual receipt in accordance with section 915, subdivision (e)(1).
As we’ve seen, that provision requires actual receipt by the clerk, secretary, auditor, or
board within the time prescribed for presentation, and here, the complaint simply alleged
the clerk received plaintiffs’ notice without specifying when.
For the same reason, plaintiffs are mistaken to rely on Dr. Patel’s deposition
testimony that he had previously seen their claim letter as evidence of actual receipt
under section 915, subdivision (e)(1). Putting aside that deposition testimony is not
admissible at the pleading stage (Novoa, supra, 61 Cal.4th at p. 346), Dr. Patel’s full
testimony on the topic was that he recalled risk management showing him the claim letter
at some point before his deposition but, crucially, couldn’t remember when that had
happened. Without an allegation (or evidence subject to judicial notice) demonstrating
the letter had actually been received within six months of claim accrual, the actual receipt
exception does not apply.
A second ground for sustaining the demurrers is the March 22, 2018 order
deeming defendants’ requests for admissions regarding claim presentation admitted.
Those admissions establish that plaintiffs failed to present the county with a timely claim.
At oral argument, Patton’s counsel argued that the admissions pertain to his client’s
conduct only. He argued the admissions establish that Patton herself didn’t present a
timely claim but do not establish that he, her attorney, also failed to present a timely
8
claim. This argument is unpersuasive for several reasons, including that defendants’
request for admissions define “Plaintiff” and “You” to include Patton and anyone “acting
or purporting to act on behalf of”’ her, which certainly includes her legal counsel.
And finally, evidence properly before the trial court demonstrated that, even if
plaintiffs had drafted their complaint differently to sufficiently plead compliance, the
allegations would be demonstrably false. The county’s records demonstrate that plaintiffs
didn’t present their claim to the county until well over a year after they filed suit against
defendants, in July 2018. And, contrary to plaintiffs’ contention, courts may consider
such evidence at the pleading stage. “When a plaintiff alleges compliance with the claims
presentation requirement, but the public records do not reflect compliance,” the public
entity can “request the court to take judicial notice under Evidence Code section 452,
subdivision (c) that the entity’s records do not show compliance.” (Gong v. City of
Rosemead (2014) 226 Cal.App.4th 363, 376; citing, Fowler v. Howell (1996) 42
Cal.App.4th 1746, 1752, italics added.) Thus, even if plaintiffs had sufficiently alleged
compliance, the county’s records would override those allegations.
B. The Motion for Relief from the Judgment
Plaintiffs argue the court erroneously denied their motion for relief from the
judgment, whereas defendants argue we lack jurisdiction to entertain this challenge
because plaintiffs failed to specify the court’s order in their notice of appeal.
Defendants are correct that plaintiffs were required to specify the order denying
their motion for relief in their notice of appeal. “[W]here several judgments and/or orders
9
occurring close in time are separately appealable . . . each appealable judgment and order
must be expressly specified—in either a single notice of appeal or multiple notices of
appeal—in order to be reviewable on appeal.” (Sole Energy Co. v. Petrominerals Corp.
(2005) 128 Cal.App.4th 212, 239 [cleaned up].) However, because we must liberally
construe notices of appeal, whether an appellant has specified a separately appealable
order, practically speaking, comes down to whether they made their intentions
“reasonably clear” such that the respondent is not prejudiced. (D'Avola v. Anderson
(1996) 47 Cal.App.4th 358, 361.) We conclude plaintiffs have satisfied that standard.
Though they didn’t specify the order by name (as defendants point out), they did specify
the order by date, when they stated they were appealing a judgment or orders entered on
January 3, 2020 and February 27, 2020. Because these are the dates of the judgment and
the order denying plaintiffs’ motion for relief, respectively, we conclude plaintiffs made
it reasonably clear they intended to appeal the latter.
On the merits, however, we agree with defendants that plaintiffs failed to
demonstrate they are entitled to relief from the judgment. Plaintiffs’ motion sought relief
under Code of Civil Procedure sections 473 and 657, both of which require the movant to
demonstrate the judgment against them was the result of their own excusable mistake.
Under the first provision, the movant must show the judgment was the result of “mistake,
inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) Under
the second provision, the movant must show the judgment was the result of “[a]ccident or
10
surprise, which ordinary prudence could not have guarded against.” (Code Civ. Proc.,
§ 657, subd. 3.)
Plaintiffs cannot meet either standard. Their motion was based on their counsel’s
declaration saying he made a mistake in not drafting the complaint differently. If given
another chance, he said, he would draft it to make clear that he sent the notice “to the
clerk of the Board of Supervisors,” rather than to the county. But allowing such an
amendment wouldn’t change the outcome of the case, because the county’s records
would also contradict the new allegations. In other words, plaintiffs are not entitled to
relief under either provision because the judgment against them wasn’t the result of
counsel’s mistake (in drafting); it was the result of evidence demonstrating their claims
are barred. In light of that evidence, any attempts to amend the complaint would be futile.
III
DISPOSITION
We affirm the judgment. In the interests of justice, the parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
11 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482424/ | Filed 11/8/22 In re E.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re E.M., A Person Coming Under
the Juvenile Court Law.
D080609
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ13014B)
Plaintiff and Respondent,
v.
T.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Marissa A. Bejarano, Judge. Affirmed in part, conditionally reversed in part
and remanded with directions.
Jack A. Love, under appointment by the Court of Appeal, for Defendant
and Appellant.
Claudia Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, Eliza Molk, Senior Deputy County Counsel, for Plaintiff and
Respondent.
T.M. (Mother) appeals from the juvenile court’s orders denying her
Welfare and Institutions Code1 section 388 petition and terminating parental
rights to son E.M. (§ 366.26.) She contends the juvenile court abused its
discretion by denying her section 388 petition because she had shown a
sufficient change of circumstance and the request was in E.M.’s best interest.
She also asserts the juvenile court erred in finding that the parental-benefit
exception to adoption did not apply because she maintained consistent
visitation and had a positive relationship with E.M. that benefited him.
(§ 366.26, subd. (c)(1)(B)(i).) We reject these contentions.
We requested supplemental briefing from the parties whether the
San Diego County Health and Human Services Agency (the Agency) complied
with its initial inquiry duties under the federal Indian Child Welfare Act
(ICWA, 25 U.S.C. § 1901 et seq.) and section 224.2. (Gov. Code, § 68081.)
We have received and considered the parties’ submissions. The Agency
concedes it did not comply with its initial inquiry duty under ICWA but
contends that the error is harmless. Applying the standard of prejudice set
forth in In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), we
conclude that the record reveals the existence of readily obtainable
information from extended family members likely to bear meaningfully on
whether E.M. is an Indian child. Accordingly, we find the error prejudicial,
conditionally reverse the orders terminating parental rights, and remand the
matter for further proceedings.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Family History
Mother has been engaged in prostitution since age 17, with E.M.’s
father, E.M., Sr. (Father), acting as her pimp. She began using marijuana at
age 18 or 19 and used the substance on-and-off for many years. At age 19,
Mother was placed on a section 5150 hold due to a bipolar episode. Mother
started daily methamphetamine use in her early 20’s. At age 20, Mother
gave birth to her oldest child, daughter J.J. In 2013, when J.J. was
approximately three months old, Mother came to the Agency’s attention
based on allegations J.J. had been exposed to domestic violence. In 2014, the
Agency filed a dependency petition on J.J.’s behalf but the juvenile court
dismissed the petition after it placed J.J. with her father, K.J. In 2015, the
Agency filed another dependency petition on J.J.’s behalf. In 2016, the
maternal grandparents adopted J.J. after the juvenile court terminated
Mother’s parental rights “due to little evidence of behavioral changes and
lack of participation in services.” The same year, Mother was arrested for
burglary and prostitution. She also ended her daily methamphetamine use.
At some point, Mother and Father married. Mother gave birth to E.M.
in 2017 and separated from Father in 2018 but the couple remains married.
In early June 2019, Mother again came to the Agency’s attention after her
then-boyfriend, J.D., strangled her in E.M.’s presence. The social worker
noted that Mother is homeless, suffers from untreated bipolar disorder, and
self-medicates with marijuana and cocaine. Mother admitted to ongoing
prostitution. The Agency “safety planned” E.M. in the maternal
grandparents’ home.
3
Petition and Reunification Period
In late July 2019, the Agency filed a petition and protective
custody warrant on E.M.’s behalf. The juvenile court issued the warrant and
authorized E.M.’s out-of-home detention that same day. The petition alleged
Mother and her boyfriend engaged in a violent confrontation that included
the boyfriend twisting Mother’s arm, choking her, pushing her onto the bed
and trying to take her phone. E.M. tried to push the boyfriend off Mother.
Mother admitted prior methamphetamine use, current cocaine use, a bipolar
disorder diagnosis, and admitted she was noncompliant with prescribed
medication. At the detention hearing a few days later, the juvenile court
appointed counsel for E.M. and both parents, found that ICWA did not apply,
and detained E.M. with the maternal grandparents, who had previously
adopted J.J.
In July 2019, Dependency Drug Court (DDC) accepted Mother and
ordered her to remain clean and sober at all times. On August 9, 2019,
Mother tested positive for cocaine and alcohol. On August 19, 2019, Mother
tested positive for cocaine. In early September, Mother missed two DDC
hearings. On October 16, 2019, the social worker texted Mother and asked
her to drug test; however, Mother did not respond. At the contested
jurisdictional and dispositional hearing in October 2019, the juvenile court
removed E.M. from Mother and bypassed her reunification services under
section 361.5, subdivisions (b)(10) and (11). It found placement with Father
detrimental to E.M., ordered reunification services for Father, allowed the
parents supervised visitation, and gave the social worker the discretion to
allow unsupervised visitation.
E.M. underwent an autism evaluation and was found to be “ ‘at risk of
Autism.’ ” In May 2020, E.M. returned to preschool after the COVID-19
4
closures under an individualized education program (IEP) with a qualifying
disability of autism spectrum disorder. E.M. displays some behavioral and
aggression issues at school and is addressing these challenges with an
applied behavioral analysis (ABA) therapist.
At a combined contested six- and 12-month review hearing in early
January 2021, the juvenile court continued Father’s reunification services
to the 18-month date, continued its order that the parents’ visits be
supervised, and appointed the maternal grandparents as the holders of
E.M.’s developmental and educational rights. At the contested 18-month
review hearing in early September 2021, the juvenile court terminated
Father’s reunification services, continued the parents’ supervised visitation,
and set a section 366.26 hearing on E.M.’s behalf.
Post-Reunification Period
On January 19, 2021, Mother began to participate in a drug treatment
program. On June 23, 2021, Mother failed to drug test at her drug treatment
facility. On August 4, 2021, she relapsed on cocaine after eight months of
sobriety. Later that month, Mother self-reported attending a weekly
domestic violence group. She had housing and completed a parenting course.
In her January 2022 section 366.26 report, the social worker stated
that E.M. received occupational and speech therapy three hours a day, five
days a week to address his diagnoses of speech/developmental delay and
semantic pragmatic disorder, and concerns regarding his physical
development such as walking on the balls of his feet and potty-training. E.M.
also received two-hour ABA therapy sessions three times a week. Mother
continued supervised visitation for two hours twice a week. E.M. appeared
happy to see Mother at visits and sometimes seemed sad when visits
5
concluded but was easily redirected with toys or assurance he would speak to
the Mother telephonically.
In late March 2022, Mother filed a 388 petition requesting that E.M. be
returned to her care with transitional services or family maintenance
services. The juvenile court found that Mother had made a prima facie
showing on her section 388 petition and set an evidentiary hearing. The
court also granted Mother’s request for structured unsupervised visits. The
four hour visits occurred in a public setting twice per week. The caregivers
later indicated that since being granted unsupervised visits with Mother,
E.M.’s inappropriate behaviors “escalated.”
On June 2, 2022, the juvenile court held a combined contested hearing
under sections 388 and 366.26. The court accepted the Agency’s reports and
attachments into evidence. At Mother’s request, the juvenile court attached
documents dated May 3, 2022, from Mother’s respective domestic violence
and drug treatment programs to her petition. The court heard testimony
from Mother and the Agency social worker who has been assigned the matter
since December 2021. The court then heard oral argument from all counsel
on Mother’s section 388 petition. The juvenile court concluded that Mother
had not met her burden of proof because circumstances were changing but
not yet changed, and it was not in E.M. best interests to be returned to
Mother.
Due to time constraints, the court ended the hearing and reconvened
later that month to hear argument on the contested section 366.26. After
hearing argument, the juvenile court found E.M. to be specifically and
generally adoptable. It concluded that the parental-benefit exception did not
apply, terminated Mother and Father’s parental rights, selected adoption as
6
E.M.’s permanent plan, and designated the maternal grandparents as E.M.’s
prospective adoptive parents. Mother timely appealed.
DISCUSSION
I. NO ERROR IN DENIAL OF MODIFICATION PETITION
A. General Legal Principles
“Section 388 provides an ‘ “escape mechanism” ’ for parents facing
termination of their parental rights by allowing the juvenile court to consider
a legitimate change in the parent’s circumstances after reunification services
have been terminated. [Citation.] This procedural mechanism, viewed in the
context of the dependency scheme as a whole, provides the parent due process
while accommodating the child’s right to stability and permanency.
[Citation.] After reunification services have been terminated, it is presumed
that continued out-of-home care is in the child’s best interests. [Citation.]
Section 388 allows a parent to rebut that presumption by demonstrating
changed circumstances that would warrant modification of a prior court
order.” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
The petitioner has the burden of showing by a preponderance of the
evidence a substantial chance in circumstance and that the proposed
modification would be in the child’s best interests. (In re J.M. (2020) 50
Cal.App.5th 833, 845.) “[A] section 388 petition seeking reinstatement of
reunification services or return of the child will necessarily involve a parent
who has made mistakes sufficient to support termination of services at some
point in the past. The question must be whether the changes the parent
made since then are substantial enough to overshadow that prior
determination, such that reunification is now in the child’s best interests.”
(Id. at p. 848.) “A parent establishes a substantial change of circumstances
for purposes of section 388 by showing that, during the period between
7
termination of reunification services and the permanency planning hearing,
he or she has resolved the previously unresolved issues supporting juvenile
court jurisdiction.” (Id. at p. 846.)
A modification petition is addressed to the juvenile court’s sound
discretion and its decision will not be disturbed on appeal in the absence of a
clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318
(Stephanie M.).) A proper exercise of discretion is “ ‘not a capricious or
arbitrary discretion, but an impartial discretion, guided and controlled in its
exercise by fixed legal principles . . . to be exercised in conformity with the
spirit of the law[,] and in a manner to subserve and not to impede or defeat
the ends of substantial justice.’ ” (In re Robert L. (1993) 21 Cal.App.4th 1057,
1066.) Exercises of discretion must be “ ‘grounded in reasoned judgment and
guided by legal principles and policies appropriate to the particular matter at
issue.’ ” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.)
B. Analysis
The juvenile court commended Mother for her work in “getting [her]self
into a substance abuse program, completing that program, being in aftercare,
participating in the domestic violence program” and continuing with therapy
but noted “that simply changing circumstance—circumstances that are in the
process of changing and that are not simply changed is not enough to
overcome the burden in this case.” Regarding Mother’s substance abuse, the
court commented on her lengthy use period, that she has not yet reached a
year of sobriety and wanted to see her sober for a longer time. It expressed
concern that Mother had not yet completed her domestic violence program
and the lack of evidence regarding Mother’s insight into this issue, ability to
protect the children and understand the affects that domestic violence has on
a child. Finally, it found Mother’s mental health concerns and current
8
housing to be a changing circumstances. The court also found Mother did not
produce sufficient evidence establishing it was in E.M.’s best interests to
change his placement.
Mother asserts that the plain language of section 388 requires she
show a “change of circumstance” and she need not show that her
circumstances have completely changed to meet the first prong of section 388.
To modify or set aside a prior order in a dependency proceeding, the change of
circumstance must be material (In re N.F. (2021) 68 Cal.App.5th 112, 120),
and it must “relate to the purpose of the order and be such that the
modification of the prior order is appropriate.” (In re S.R. (2009) 173
Cal.App.4th 864, 870.) Mother is correct that numerous cases draw a
distinction between circumstances that are “changing” but not yet “changed.”
(See e.g., Stephanie M., supra, 7 Cal.4th at p. 317 [“At a hearing on a motion
for change of placement, the burden of proof is on the moving party to show
by a preponderance of the evidence that there is new evidence or that there
are changed circumstances that make a change of placement in the best
interest of the child. (§ 388; . . . .”)]; In re Ernesto R. (2014) 230 Cal.App.4th
219, 223 [“Appellant’s recent sobriety reflects ‘changing,’ not changed,
circumstances.”].) The references to “changed” and merely “changing”
circumstances are another way of distinguishing a “change in circumstance”
that is not sufficiently material to warrant modifying a prior order when
considering all the circumstances of the case. (In re N.F., at p. 121, fn. 3.)
Here, Mother does not identify how the juvenile court erred in finding
she did not show a material change of circumstance considering all the
circumstances of the case. She merely restates the evidence she presented in
support of her section 388 petition and argues that the evidence shows she
“presented new evidence or a change of circumstance.” Mother failed to meet
9
her burden on appeal to show the juvenile court erred. (In re J.F. (2019) 39
Cal.App.5th 70, 79 [“The juvenile court’s orders are ‘presumed to be correct,
and it is appellant’s burden to affirmatively show error.’ ”].)
E.M. came to the Agency’s attention due to Mother’s substance abuse,
mental health issues, domestic violence, and a prior termination of parental
rights due to domestic violence and substance abuse. As we shall explain, the
juvenile court did not exceed the bounds of reason in concluding the record
did not establish a sufficient change of circumstance to justify modification of
its previous order.
The juvenile court acknowledged that Mother completed a drug
treatment program but concluded the change to be insufficient given the
length of her substance abuse history (nearly half her life) and relatively
short period of sobriety (less than a year). Substance abuse is one of the most
serious problems a parent can face and “[t]he provision of a home
environment free from the negative effects of substance abuse is a necessary
condition for the safety, protection and physical and emotional well-being of
the child.” (§ 300.2.) Moreover, “[i]n the context of a substance abuse
problem that has repeatedly resisted treatment in the past, a showing of
materially changed circumstances requires more than a relatively brief
period of sobriety or participation in yet another program.” (In re N.F.,
supra, 68 Cal.App.5th at p. 121.)
Here, Mother maintained her sobriety for six months while in a drug
treatment program and then failed to drug test at her drug treatment
facility. We found no explanation for why Mother failed to drug test and the
missed test is “ ‘properly considered the equivalent of a positive test
result[.]’ ” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384.) Then, less
than two months after failing to test, Mother relapsed on cocaine due to
10
stress caused by the social worker’s questions and concerns that she still
engaged in prostitution. Even more concerning is the fact Mother had
previously been able to maintain sobriety for three or four years before
relapsing. Thus, while Mother’s apparent sobriety is commendable, we
cannot conclude that the juvenile court erred by finding the change
insufficient to show she can remain sober outside a drug treatment program
while caring for a special needs child full time.
E.M.’s dependency petition noted Mother’s bipolar disorder diagnosis
and her noncompliance with taking prescribed medication. Mother failed to
address this issue in her opening brief and forfeited any claim of error. (See
generally Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785
[failure to support a point with reasoned argument and citations to authority
forfeits issue].) Even if not forfeited, the record does not show a material
change of circumstance.
At age seven, Mother received a bipolar disorder diagnosis. While in
school, Mother had an IEP for bipolar disorder, anxiety, and depression. At
age 19, Mother was placed on a section 5150 hold due to a bipolar episode. In
August 2019, Mother informed the social worker that she had been on
medication all her life and her “psychiatrist prescribed her with the
medications and she has been consistently taking them for a month.” At the
contested hearing, however, Mother stated that her psychiatrist prescribed
her an anxiety medication but she “hardly ever take[s] it,” uses it only when
necessary and her “mental health illness [was] under control.” Given
Mother’s nearly lifelong battle with bipolar disorder and the lack of evidence
corroborating Mother’s claim that her mental health illness was under
control, the juvenile court did not act unreasonably when finding that Mother
had not demonstrated a material change in circumstance.
11
Finally, the juvenile court expressed concern that Mother’s domestic
violence issues remained a changing circumstance, noting that Mother still
had a fourth of her 52 sessions to complete and it had no information
regarding Mother’s insight into this issue or how domestic violence impacts a
child. The record shows that in 2013, the Agency became involved with
Mother due to domestic violence between her and J.J.’s father. Early in these
dependency proceedings, Mother admitted that her relationship with Father
included domestic violence. She claimed “it was not bad in the beginning as
he was only controlling” but Father started hitting her when she was
pregnant with E.M. and after she gave birth to E.M. Mother never reported
these domestic violence incidents. The maternal grandmother confirmed that
Mother had a history of domestic violence with Father. Yet, at the contested
hearing, Mother denied a domestic violence relationship with Father based
on her apparent conclusion that the domestic violence incidents between her
and Father did not count because they were unreported.
The juvenile court could reasonably conclude from Mother’s testimony
that she failed to understand that unreported domestic violence is still
domestic violence. This, combined with the lack of evidence showing Mother
understood the serious effect domestic violence had on children, supported
the juvenile court’s implied conclusion that Mother had not demonstrated a
material change in circumstance. (In re Benjamin D. (1991) 227 Cal.App.3d
1464, 1470, fn. 5 [“[C]ommon sense and expert opinion indicate [domestic
violence] is detrimental to children.”].)
Based on Mother’s failure to meet her burden of demonstrating the first
prong of the test under section 388, we need not address the second prong
addressing whether the proposed modification placing E.M. with Mother
12
would promote his best interests. (Stephanie M., supra, 7 Cal.4th at p. 317.)2
We conclude the juvenile court did not abuse its discretion in denying
Mother’s modification petition.
II. SUBSTANTIAL EVIDENCE SUPPORTS THE FINDING THAT THE
BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION DID NOT
APPLY
A. General Legal Principles
The permanency planning hearing aims “to end the uncertainty of
foster care and allow the dependent child to form a long-lasting emotional
attachment to a permanent caretaker.” (In re Emily L. (1989) 212 Cal.App.3d
734, 742.) The Legislature prefers adoption where possible. (In re L.Y.L.
(2002) 101 Cal.App.4th 942, 947.) Once the juvenile court finds a child is
adoptable, the parent bears the burden of proving one of the exceptions to
terminating parental rights exists. (In re Lorenzo C. (1997) 54 Cal.App.4th
1330, 1343.) “Because a section 366.26 hearing occurs only after the court
has repeatedly found the parent unable to meet the child’s needs, it is only in
an extraordinary case that preservation of the parent’s rights will prevail
over the Legislature’s preference for adoptive placement.” (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350, disapproved on another ground by Caden
C., supra, 11 Cal.5th at p. 636, fn. 5.)
One of the exceptions to the preference for adoption is the beneficial
parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) For this
exception to apply, the parent must show by a preponderance of the evidence:
(1) regular visitation and contact with the child; (2) the child has a
substantial, positive, emotional attachment to the parent; and (3)
2 Even if we were to discuss this element, we would find that placing
E.M. with Mother would not be in his best interests largely for the same
reasons discussed below. (See, post, pt. II.B.)
13
terminating that attachment would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive home. (In re
Caden C. (2021) 11 Cal.5th 614, 636 (Caden C.).) The existence of this
relationship is determined by taking into consideration “the age of the child,
the portion of the child’s life spent in the parent’s custody, the ‘positive’ or
‘negative’ effect of interaction between parent and child, and the child’s
particular needs.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn
H.).) When the benefits of a stable, adoptive, permanent home outweigh the
harm the child would experience from the loss of a continued parent-child
relationship, the court should order adoption. (Caden C., at p. 634.)
We review the juvenile court’s findings as to whether the parent has
maintained regular visitation and contact with the child, as well as the
existence of a beneficial parental relationship, for substantial evidence.
(Caden C., supra, 11 Cal.5th at pp. 639–640.) As a reviewing court we do “
‘not reweigh the evidence, evaluate the credibility of witnesses, or resolve
evidentiary conflicts’ ” and will uphold the juvenile court’s determinations
even where substantial evidence to the contrary also exists. (Id. at p. 640.)
With regard to the court’s conclusion that a parent did not meet his or
her burden of proof regarding any factual findings, we look to “whether the
evidence compels a finding in favor of the parent on this issue as a matter of
law.” (In re Breanna S. (2017) 8 Cal.App.5th 636, 647, disapproved on other
ground by Caden C., supra, 11 Cal.5th at p. 637, fn. 6.) The question is
“whether the . . . evidence was (1) ‘uncontradicted and unimpeached’ and (2)
‘of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.’ ” (In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) “[T]he ultimate
14
decision—whether termination of parental rights would be detrimental to the
child due to the child’s relationship with his parent—is discretionary and
properly reviewed for abuse of discretion.” (Caden C., at p. 640.) A court
abuses its discretion “ ‘ “ ‘by making an arbitrary, capricious, or patently
absurd decision.’ ” ’ ” (Id. at p. 641.)
B. Analysis
The juvenile court found E.M. to be generally and specifically
adoptable. It agreed with the parties that Mother had regular visitation and
contact with E.M. On whether E.M. had a substantial, positive emotional
attachment to Mother, it focused on E.M. who has lived most of his life
outside her presence. E.M did not ask for Mother outside of visits, did not
display emotional distress following visits, and is easily redirected if he
displays sadness after visits. The court noted that after it granted Mother
structured unsupervised visits in the community, E.M.’s behavior regressed
both at home and at his daycare. It agreed with the social worker’s
assessment that terminating Mother’s parental rights would not be
detrimental to E.M. and found the permanency and stability of adoption
outweighed any harm E.M. would suffer from the termination of parental
rights.
We agree that the evidence shows Mother regularly and consistently
visited E.M. to the extent allowed by the court’s orders. Turning to the
second element, whether E.M. would benefit from continuing his relationship
with Mother, we focus on the child. (Caden C., supra, 11 Cal.5th at p. 632.)
At this step of the analysis the juvenile court must “consider the evidence
showing whether the parent’s actions or inactions ‘continued or developed a
significant, positive, emotional attachment from child to parent.’ ” (In re B.D.
(2021) 66 Cal.App.5th 1218, 1230.) We consider several factors in examining
15
whether a relationship is important and beneficial, including the age of the
child, the amount of time the child spent in the parent’s custody, the
interaction between parent and child, and the child’s needs. (Caden C., at
p. 632)
E.M. was almost two years old when the Agency removed him from
Mother’s care and placed him with his maternal grandparents (the
caregivers). At the time of the contested hearing, E.M. had been out of
Mother’s care for nearly three years and has thus spent most of his young life
outside Mother’s care. When E.M. left Mother’s care he was too young to
have developed a strong emotional attachment to her or understand the
concept of a biological Mother. (In re Angel B. (2002) 97 Cal.App.4th 454,
459, 466.) The record shows that E.M. loves Mother and enjoyed his
supervised visits with her. The social worker noted, however, that E.M.
associates “toys and treats” with his visits. Additionally, E.M. generally
leaves visits without distress and does not ask for Mother between visits.
When E.M. displays sadness at the end of a visit he is easily redirected.
When Mother’s visitation changed to longer unsupervised visits in the
community, Mother took E.M. to restaurants, the beach, parks, the movies,
and amusement parks. During this time, E.M.’s behaviors regressed. His
caregivers informed the social worker that E.M. had “long tantrums that last
20-30 minutes throughout the day” and that E.M. “kicks, pinches, hits and
pushes both his caregivers when he does not get something he wants.” E.M.’s
daycare noticed the same pattern. The daycare asked for E.M. to be taken
home “due to several incidences in which he dropped his pants and attempted
to show other children his penis” and on another occasion for hitting one of
his teachers. The social worker commented that the “progress [E.M.] initially
16
had a few months ago, has now declined back to his original emotional
baseline and initial reasons why ABA services were implemented.”3
The social worker noted that “[a]n important aspect of the parent child
relationship is determined by a child’s behavior after seeing their parents. In
[E.M.’s] case, the increase in behavioral concerns occurred when the level of
supervision changed from supervised to unsupervised, wherein [Mother]
assumed greater parental responsibility during visits. It is evident that the
lack in parental structure and ability to meet [E.M.’s] cues leads to a decline
in behavior. For example, when considering [E.M.’s] specific needs, and his
Autism diagnosis, structured visits are necessary for a special needs child.
[E.M.] needs to know what is expected from him, where he is going, and to
earn items which ultimately reinforce positive behaviors.” Ultimately, this
regression in E.M’s behavior led the social worker to question the quality of
the relationship between E.M. and Mother.
The social worker opined that a substantial positive emotional
attachment did not exist between E.M. and Mother based on his reactions to
Mother during visits. She explained that sometimes E.M. needed
encouragement to visit Mother but other times, when he is excited based on
where Mother would be taking him (such as to an amusement park or the
movies), E.M. would be excited for the visit. The social worker also noted
that after visits E.M. needed to be reminded to give Mother a hug or a
goodbye kiss, and between visits E.M. did not ask about Mother.
3 Mother notes that the juvenile court did not address whether E.M’s
negative behavior after unsupervised visits might be due to missing her and
wanting to be with her. While Mother is correct that the juvenile court did
not directly address this possibility, it impliedly found this was not the case
because E.M.’s behavior regressed both at home and at his daycare.
17
Our review of the record shows substantial evidence upon which the
juvenile court could reasonably rely to conclude that Mother’s relationship
with E.M., while positive and loving, did not show the existence of a
significant emotional attachment between E.M. and Mother.
Assuming for the sake of argument that Mother established a beneficial
relationship, we cannot find the court abused its discretion in ultimately
concluding that the benefits E.M. would realize from adoption outweighed
any harm or detriment he might suffer from the terminating Mother’s
parental rights.
Mother did not present any evidence that E.M. would be greatly
harmed by severance of the parental relationship, or that the security and
stability of a new home would not outweigh the loss of this relationship.
(Caden C., supra, 11 Cal.5th at p. 633.) Instead, the social worker, who had a
master’s degree in social work and training in assessing a child’s permanent
plan, opined that terminating Mother’s parental rights would not be
detrimental to E.M. The social worker testified that the benefits of adoption
included “consistency, stability, nurturing, unconditional positive love
and . . . having a safe place where he knows what to expect, continuing his
individual services, which is important due to his diagnoses.” She opined
that E.M. would be sad if he lost his twice weekly visits with Mother but that
this sadness could be overcome with therapeutic services, and the support of
his caregivers, and that E.M. would not suffer detriment if the court
terminated parental rights. “The court was entitled to find the social
worker's opinion credible and give great weight to her assessment. We
cannot reweigh the evidence or substitute our judgment for that of the
[juvenile] court.” (In re Cole C. (2009) 174 Cal.App.4th 900, 918.)
18
“ ‘Adoption is the Legislature’s first choice because it gives the child the
best chance at [a full] emotional commitment from a responsible caretaker.’ ”
(In re Celine R. (2003) 31 Cal.4th 45, 53.) On this record, the juvenile court
did not exceed the limits of legal discretion in determining that providing
E.M. this commitment outweighed the benefit he would gain through
maintaining his pleasant, positive relationship with Mother. (Caden C.,
supra, 11 Cal.5th at p. 641.) Accordingly, we find no evidence of exceptional
circumstances requiring application of the parental-benefit exception to the
termination of Mother’s parental rights.
III. A REMAND IS REQUIRED FOR ICWA COMPLIANCE
A. Additional Background
At the start of this dependency proceeding the social worker asked the
parents whether they or any extended family member had any American Indian
heritage, had received any benefits or services from a tribe, spoken any Indian
language, or lived on a reservation. The parents responded “ ‘no’ ” to each
question. Mother filed an ICWA-020 form noting that, to her knowledge, she
had no Indian ancestry. Father filed a paternity questionnaire and offer of proof
and checked the box “no” to a question asking if he had any American Indian
heritage. At the July 2019 detention hearing, the juvenile court found ICWA did
not apply based on the parents’ denials. Although the juvenile court did not
address ICWA at the contested section 366.26 hearing, the court minutes for
this hearing indicate the court found, without prejudice, that ICWA did not
apply.
B. Analysis
ICWA provides: “In any involuntary proceeding in a State court, where
the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or termination of parental rights to,
19
an Indian child shall notify the parent or Indian custodian and the Indian child’s
tribe” of the pending proceedings and their right to intervene. (25 U.S.C.
§ 1912(a); In re Isaiah W. (2016) 1 Cal.5th 1, 8.) California law also requires
such notice. (§ 224.3, subd. (a) [“If the court [or] a social worker . . . knows or
has reason to know . . . that an Indian child is involved, notice pursuant to
[ICWA] shall be provided for hearings that may culminate in an order for foster
care placement, termination of parental rights, preadoptive placement, or
adoptive placement[.]”].)
Effective January 1, 2019, section 224.2 was enacted and section 224.3
amended, to set forth California’s current ICWA inquiry and notice
requirements for juvenile dependency cases. (Stats. 2018, ch. 833, §§ 5, 7.) In
dependency proceedings, the juvenile court and Agency have an “affirmative and
continuing duty to inquire” whether a child “is or may be an Indian child.”
(§ 224.2, subd. (a).) “This continuing duty can be divided into three phases: the
initial duty to inquire, the duty of further inquiry, and the duty to provide
formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The Agency’s initial inquiry duty includes “asking the child, parents, legal
guardian, Indian custodian, extended family members, others who have an
interest in the child, and the party reporting child abuse or neglect, whether the
child is, or may be, an Indian child and where the child, the parents, or Indian
custodian is domiciled.” (§ 224.2, subd. (b).)4
We review a juvenile court’s findings that the Agency has made reasonable
inquiries regarding a child’s possible Indian ancestry under ICWA and that the
4 ICWA defines “ ‘extended family member’ ” by “the law or custom of the
Indian child’s tribe” or, absent such law or custom, as “a person who has
reached the age of eighteen and who is the Indian child’s grandparent, aunt
or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew,
20
Agency has complied with ICWA’s notice requirements, or that no such notice is
required, for substantial evidence. (In re Charlotte V. (2016) 6 Cal.App.5th 51,
57.) Here, the Agency concedes substantial evidence does not support the
juvenile court’s finding that the Agency complied with its ICWA inquiry
obligations under section 224.2. The Agency’s concession is proper.5
The Agency conducted a deficient initial ICWA inquiry because it failed to
ask the maternal grandparents about the possibility of Indian ancestry,
although the Agency had extensive contact with them as E.M.’s caregivers. The
Agency also had addresses and telephone numbers for the paternal
grandparents and a maternal aunt but nothing in the record suggests that the
social worker never inquired of them whether they had any Indian ancestry.
The Agency also sent letters to six relatives who, may or may not, qualify as
extended family members under ICWA, notifying them of E.M.’s involvement in
the dependency court process. A copy of this mailing is not in the record and it
is unknown whether the mailing inquired about Indian Ancestry.
The parties dispute whether the conceded error was harmless. Until such
time that the California Supreme Court directs otherwise, this division has
adopted the approach articulated in Benjamin M., supra, 70 Cal.App.5th 735.
first or second cousin, or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c)
[“ ‘extended family member’ . . . defined as provided in [§] 1903” of ICWA].)
5 As a preliminary matter, the parents’ denial of Native American
heritage at the beginning of the proceeding does not relieve the Agency of its
“broad duty” to inquire of readily ascertainable extended family members
whether E.M. is an Indian child. (In re Y.W. (2021) 70 Cal.App.5th 542, 554.)
A contrary rule would “ignore[ ] the reality that parents may not know their
possible relationship with or connection to an Indian tribe.” (Ibid.; In re
Ricky R. (2022) 82 Cal.App.5th 671, 680 [applying Benjamin M. standard and
finding reversible initial inquiry error where agency “asked the parents about
Indian ancestry” but “failed to ask extended family members about it”].)
21
(In re Y.M. (2022) 82 Cal.App.5th 901, 916.) A reversal is appropriate where
“the record demonstrates that the agency has not only failed in its duty of initial
inquiry, but where the record indicates that there was readily obtainable
information that was likely to bear meaningfully upon whether the child is an
Indian child.” (Benjamin M., at p. 744.)
We disagree with the Agency’s contention that the facts here are similar to
those in In re Y.M., supra, 82 Cal.App.5th 901. In In re Y.M., the mother and
father denied Native American ancestry but father lived with the paternal
grandmother and uncle, the paternal grandfather visited the child, requested
placement of the child and was participating in the resource family approval
process. (Id. at p. 917.) Under these facts, another panel of this court held that
the Agency’s failure to comply with its section 224.2, subdivision (b) duty of
initial inquiry by not asking the paternal grandparents about possible Indian
ancestry was harmless because Father lived with the paternal grandmother,
they shared a good relationship, and he could have easily asked her about
possible “Indian ancestry that may have afforded him additional rights or
protection under ICWA.” (Ibid.) Additionally, the paternal grandfather had
sought placement of the child and “presumably would have had a strong
incentive to raise any Indian ancestry in support of that goal, but he did not do
so.” (Id. at pp. 917–918.) Under these facts, we held that father failed to carry
his burden to show that if the Agency had asked the paternal grandparents
about any Indian ancestry, that they would have provided information that was
likely to bear meaningfully on the question of whether there was reason to
believe child was, or may be, an Indian child. (Ibid.)
Here, unlike In re Y.M., supra, 82 Cal.App.5th 901, there are two sets of
grandparents. The paternal grandparents lived in Texas and, although Father
claimed they were part of his “strong support system,” there is no information in
22
the record showing that the Agency ever spoke to the paternal grandparents to
confirm this assertion. Father and the paternal grandmother had a single video
call with E.M. in August 2019. Father represented in September 2019 that
although he lived with the paternal grandmother, he was moving out and she
did not want a home assessment to be done. In November 2020, Father told a
social worker he lived with the paternal grandmother. When the social worker
asked to use her telephone number to contact him, he claimed “it would be on for
the week.” Father received 18 months of reunification services and the court
terminated his services in September 2021. As of January 2022, the Agency had
lost contact with Father and the caregivers stated “that the last they heard from
the paternal relatives was when the paternal grandmother sent Christmas
gifts.” There is no information in the record regarding Father’s relationship
with the paternal grandfather or whether the paternal grandfather ever
contacted E.M.6
Unlike the facts in In re Y.M., supra, 82 Cal.App.5th 901, Father did not
seek placement of E.M. and there are no facts from which we can presume that
Father had a strong incentive to question the paternal grandparents regarding
any Indian ancestry. On this record, there are no unique circumstances from
which we can presume that the paternal grandparents would not have had
information likely to bear meaningfully on E.M.’s possible Native American
ancestry. Based on this deficiency, substantial evidence does not support the
6 The court minutes for the continued section 366.26 hearing in March
2022 reflect that the paternal grandparents appeared telephonically. This
appears to be a mistake. In the reporter’s transcript for this hearing the
court officer announced the individuals present as including “paternal
grandparents, Sharon and Chris, are on the phone. . . .” The court officer
misspoke because Sharon and Chris are the first names of the maternal
grandparents.
23
juvenile court’s finding that ICWA did not apply. Accordingly, we conditionally
reverse the orders terminating parental rights and remand for the limited
purpose of ICWA compliance.7
As an aside, the Agency notes that it filed a request for judicial notice
in the juvenile court regarding the findings and orders in half-sibling J.J.’s
case where the court found ICWA did not apply. J.J.’s case took place
between 2015 and 2017, with parental rights terminated in 2016. Thus, the
ICWA finding for J.J. occurred before the Legislature amended ICWA in 2019
to enact section 224.2 which requires inquiry of extended family members.
The version of section 224.3 at that time did not require a due diligence
finding or contain a “duty to inquire” by “asking . . . extended family
members.” (§ 224.2, subd. (b), compare former § 224.3.) Accordingly, it is
unknown whether the Agency's ICWA inquiry in J.J.’s dependency
proceeding comported with the standards required by the current ICWA
statutes.
We find the Agency’s error to be prejudicial, conditionally reverse the
orders terminating parental rights, and remand the matter for further
proceedings. Given the importance of expediency and need for finality, we
encourage the parties to stipulate to immediate issuance of the remittitur in
this case. (Cal. Rules of Court, rule 8.272(c)(1).)
7 Based on the Agency’s failure of initial inquiry regarding the paternal
grandparents, it is unnecessary for us to analyze the Agency’s inquiry
shortcomings regarding the maternal grandparents. Nonetheless, because
the Agency has frequent contact with the maternal grandparents as E.M.’s
caregivers, on remand the Agency must satisfy its statutory duty of initial
inquiry for them and any other readily available extended maternal relatives.
24
DISPOSITION
The order denying Mother’s section 388 petition is affirmed. The orders
terminating parental rights are conditionally reversed and the matter is
remanded to the juvenile court with directions that, within 30 days of the
remittitur, the Agency must file a report demonstrating its compliance with the
initial inquiry provisions of section 224.2, subdivision (b), and, if required,
conduct further inquiry under section 224.2, subdivision (e). Within 45 days of
the remittitur, the juvenile court must conduct a hearing to determine whether
the Agency’s investigation satisfied its affirmative duty to investigate. The
juvenile court has the discretion to adjust these time periods on a showing of
good cause.
If neither the Agency nor the juvenile court has reason to believe or to
know that E.M. is an Indian child, the orders terminating parental rights shall
be reinstated by the juvenile court. Alternatively, if after completing the inquiry
the Agency or the juvenile court has reason to believe that E.M. is an Indian
child, the court shall proceed accordingly.
HUFFMAN, Acting P. J.
WE CONCUR:
DO, J.
BUCHANAN, J.
25 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482429/ | Filed 11/8/22 Chai v. National Enterprise Systems CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
DAVID CHAI, H049322
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 20CV361490)
v.
NATIONAL ENTERPRISE SYSTEMS,
INC.,
Defendant and Appellant.
Respondent David Chai filed a class action complaint against appellant National
Enterprise Systems, Inc. (NES) seeking statutory damages under Civil Code section 1788
et seq., the California Rosenthal Fair Debt Collection Practices Act. The trial court
denied NES’s motion to compel arbitration, finding that NES failed to demonstrate the
existence of a binding arbitration agreement between the parties. Finding no error, we
affirm the trial court’s order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Chai filed a complaint against NES in 2020, claiming that, on an unknown date, he
was “alleged to have incurred a financial obligation in the form of a consumer credit
account owed to Citibank, N.A. [Citibank].” He admitted that he was unable to pay the
debt and defaulted. Chai contended that Citibank sold the debt to USI Solutions, Inc.
(USI), for “collection purposes.” USI thereafter “hired, contracted, or otherwise
engaged” NES to collect the debt on USI’s behalf. Chai asserted in the complaint that
NES engaged in a routine practice of sending initial communications that failed to
provide notice as required by Civil Code section 1788.14, subdivision (d)(2), which
governs attempts to collect “time-barred” debts—those that are “past the date of
obsolescence set forth in Section 605(a) of the federal Fair Credit Reporting Act (15
U.S.C. Sec. 1691c). . . .” (Civ. Code, § 1788.14, subd. (d)(2).)
After filing a response to the complaint, in which it alleged that Chai’s claims
might be subject to an arbitration provision contained within the agreement between Chai
and Citibank, NES filed a motion to compel arbitration. In support of the motion, NES
offered two purported “cardholder agreements” produced by Citibank in response to a
subpoena, issued in a separate action, seeking “credit card agreements, contracts, and any
other document that outlines the terms and conditions [of the account belonging to
Chai]. . . .” NES provided a declaration from the custodian of records indicating that the
records provided were true copies of the records requested in the subpoena, prepared at or
near the relevant time in the ordinary course of business. NES also provided a letter from
the custodian, not signed under penalty of perjury, indicating that she was enclosing the
available card agreement copies for Chai’s credit card account. The two documents
provided by the custodian are entitled “Card Agreement,” one with a copyright date of
2005, and the other with a copyright date of 2011. Both include arbitration provisions.
Neither card agreement references Chai by name or account number, and neither includes
Chai’s signature.
NES submitted the card agreements to the trial court as part of a declaration from
its then-attorney, along with a copy of the complaint, NES’s answer, and two case
management orders. Counsel did not include any additional documents received from
Citibank. Nor did counsel provide any substantive declaration regarding Chai’s
agreement(s) with Citibank.
Chai opposed the motion to compel arbitration, arguing that NES failed to link
Chai to the “generic documents” offered with the motion. Chai denied having seen the
2
two card agreements before; he claimed he had not received the documents and had not
agreed to be bound by their terms. In reply, NES argued that the card agreements had
been properly authenticated.
After considering the parties’ written submissions, and hearing oral argument, the
trial court determined that the card agreements proffered by NES were not admissible. 1
Even if the court could properly rely on the documents, the trial court found there was no
evidence the agreements were ever sent to Chai, nor did NES “explain how [Chai] could
have consented to any agreement with which he had never been provided.” Having failed
to show evidence of mutual assent, the trial court determined NES could not show that
the card agreements were enforceable binding arbitration agreements, and thus it denied
the motion to compel arbitration.2 NES timely appealed from the order. (Code Civ.
Proc., § 1294, subd. (a); Cal. Rules of Court, rule 8.104(a)(1)(B).)
II. DISCUSSION
While there is a strong public policy favoring contractual arbitration, that policy
only extends to parties who have agreed to arbitrate. (Gamboa v. Northeast Community
Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa); Esparza v. Sand & Sea, Inc. (2016) 2
Cal.App.5th 781, 787 (Esparza).) Thus, when hearing a motion to compel arbitration, the
trial court must first determine whether an agreement to arbitrate exists. (See Code Civ.
Proc., § 1281.2; Ahern v. Asset Management Consultants, Inc. (2022) 74 Cal.App.5th
675, 687; Gamboa, at p. 164.)
The party seeking to compel arbitration bears the burden to prove the existence of
the agreement by a preponderance of the evidence pursuant to California law. (Gamboa,
supra, 72 Cal.App.5th at p. 165.) The moving party must first produce prima facie
1 NES did not designate the record of the oral proceedings as part of the record on
appeal.
In the same order, the trial court addressed Chai’s motion to compel discovery
2
responses and related sanctions. That portion of the order is not at issue in this appeal.
3
evidence of the written arbitration agreement, either by attaching to the motion a copy of
the agreement purporting to bear the opposing party’s signature, or by setting forth the
agreement’s provisions in the motion. (Ibid.) If the opposing party disputes the
agreement, as is the case here, the burden shifts to the opposing party to challenge the
authenticity of the agreement, which the party can do by “testify[ing] under oath or
declar[ing] under penalty of perjury that the party never saw or does not remember seeing
the agreement, or that the party never signed or does not remember signing the
agreement. [Citations.]” (Ibid.) If the opposing party meets that burden, the moving
party must then establish “with admissible evidence” that a valid arbitration agreement
exists between the parties, by a preponderance of the evidence. (Id. at pp. 165-166.)
“ ‘We review an order denying a [motion or] petition to compel arbitration for
abuse of discretion unless a pure question of law is presented. In that case, the order is
reviewed de novo.’ [Citation.]” (Gamboa, supra, 72 Cal.App.5th at p. 166.) We review
any findings of fact for substantial evidence. (Ibid.) “Where the decision ‘is based on the
court’s finding that [the party seeking arbitration] failed to carry its burden of proof, the
question for the reviewing court is whether that finding is erroneous as a matter of law.’
[Citation.]” (Ibid.) We view “ ‘all factual matters most favorably to the prevailing party
and in support of the judgment. [Citation.] “ ‘All conflicts, therefore, must be resolved
in favor of the respondent.’ ” ’ [fn. omitted] [Citation.]” (Id. at pp. 166-167.) If the order
is correct on any theory, we will affirm regardless of the trial court’s reasoning. (Young
v. California Fish and Game Commission (2018) 24 Cal.App.5th 1178, 1192-1193.)
“ ‘ “In California, ‘[g]eneral principles of contract law determine whether the
parties have entered a binding agreement to arbitrate.’ [Citations.]” [Citation.] “An
essential element of any contract is the consent of the parties, or mutual assent.”
[Citation.] [Citation.] Further, the consent of the parties to a contract must be
communicated by each party to the other. (Civ. Code, § 1565, subd. 3.) “Mutual assent
is determined under an objective standard applied to the outward manifestations or
4
expressions of the parties, i.e., the reasonable meaning of their words and acts, and not
their unexpressed intentions or understandings.” [Citation.]’ [Citation.]” (Esparza,
supra, 2 Cal.App.5th at pp. 787-788.)
Applying these principles, we conclude that NES failed to meet its burden to prove
the existence of an arbitration agreement between Citibank and Chai. 3 While the trial
court found the card agreements offered by NES in support of the motion to be
inadmissible, we need not determine whether it erred in doing so. Even if we assume
without deciding that the agreements were admissible, NES did not provide sufficient
evidence to demonstrate that Chai received the agreements or accepted their terms.
Neither of the agreements are signed by Chai, or contain any reference to Chai, either by
name or by account number. While the custodian of records for Citibank declared that
the agreements were linked to Chai’s credit card account, the custodian did not declare
how or if the agreements were provided to Chai for his review and acceptance. NES did
not provide any evidence that the card agreements were given to Chai, or that Chai
assented to the terms of the agreements.
Although NES cites Gamboa in support of its contention that it met its burden on
the motion to compel arbitration, the appellate court’s opinion reveals the opposite. In
Gamboa, the court determined that the moving party met the first step of its burden by
providing a copy of a signed arbitration agreement with its motion. (Gamboa, supra, 72
Cal.App.5th at p. 167.) Here, NES met the first step of its burden by setting forth the
provisions of the alleged arbitration agreement in its motion. (See Condee v. Longwood
Management Corp. (2001) 88 Cal.App.4th 215, 219 [as a preliminary matter the moving
party need only allege the existence of an agreement and support the allegation by
providing a recitation of its terms].) Both here and in Gamboa, the party opposing
3Because we find NES did not prove the existence of an agreement between
Citibank and Chai, we need not determine whether Citibank or its successor, USI,
assigned the right to compel arbitration to NES.
5
arbitration met the burden under the second step by filing an opposing declaration. In
Gamboa, when presented with an agreement she allegedly signed, the opposing party
declared that she did not recall the arbitration agreement and would not have signed it if
she had been aware of it. (Gamboa, at p. 167.) Here Chai declared under penalty of
perjury that he had not seen or received the card agreements prior to receiving them as
part of NES’s motion to compel arbitration. He denied agreeing to settle disputes
regarding the Citibank account in arbitration. This sufficiently met the second step of the
burden shifting process, thus shifting the burden back to NES to establish the existence of
a valid arbitration agreement between the parties.
As was true in Gamboa, here, NES did not meet that burden. In Gamboa, the trial
court properly excluded the declaration offered by the moving party as lacking
foundational facts, as the declarant did not show that she had personal knowledge of the
asserted facts, and the purported arbitration agreement was not authenticated . (Gamboa,
supra, 72 Cal.App.5th at pp. 168-169.) However, the appellate court found that even if
the court had admitted the declaration and agreement, those documents did not compel a
different result, as the documents did not explain how the declarant knew that the
opposing party had either seen or signed the arbitration agreement. (Id. at p. 170.)
Similarly, the evidence offered by NES in support of the motion to compel
arbitration did not demonstrate that Chai had seen or accepted the subject card
agreements. NES contends that Chai’s admission in his complaint that he had a credit
account with Citibank, coupled with the declaration and letter from the Citibank
custodian of records that the card agreements she produced were from Chai’s credit
account, show that Chai received and accepted the card agreements. But NES misses an
important link in the chain necessary to form an enforceable contract. There is no
evidence in the record that Citibank provided the card agreements to Chai at any point.
Thus, if the court were to accept the premise that Citibank intended the card agreements
offered with the motion to compel to govern Chai’s account, there is no evidence that
6
Citibank communicated that intent to Chai, or that Chai subsequently communicated his
intent to be bound by the agreements in using the credit account. While NES cites
caselaw allowing the court to infer an agreement to repay the debt from Chai’s use of the
card (see In re Anastas (1996) 94 F.3d 1280, 1285), it does not cite legal authority that
allows us to infer consent to the arbitration provisions of the card agreements absent
evidence Citibank provided the agreements to Chai. This is not a situation where the
evidence shows the cardholder received but failed to read the written agreement. Were
that the case, Chai would still be bound by the terms. (See 24 Hour Fitness, Inc. v.
Superior Court (1998) 66 Cal.App.4th 1199, 1215.) Rather, NES has failed entirely to
demonstrate that Citibank provided Chai with the card agreements containing the
arbitration provisions. Absent such evidence, the trial court properly determined that
NES failed to meet its burden to prove the existence of the agreement by a preponderance
of the evidence.
III. DISPOSITION
The June 24, 2021 order denying NES’s motion to compel arbitration is affirmed.
Costs on appeal are awarded to Chai. (Cal. Rules of Court, rule 8.278(a).)
7
_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Grover, J.
______________________________________
Lie, J.
Chai v. National Enterprise Systems, Inc.
H049322 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482427/ | Filed 11/8/22 Hernandez v. Luna CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
ROSIE HERNANDEZ,
Plaintiff and Respondent, E077393
v. (Super.Ct.No. RIC1717405)
DOMINIC LUNA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Randall D. White, Judge.
(Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.). Affirmed.
Law Offices of Raul B. Garcia, and Raul B. Garcia for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Dominic Luna appeals from the trial court’s order awarding attorney fees to
plaintiff, Rosie Hernandez. We affirm.
BACKGROUND
In September 2017, Hernandez brought this action against Luna to partition real
property that they co-owned as joint tenants. In December 2018, the parties stipulated to
sell the subject property. After a bench trial in May 2019, the court entered a judgment
dividing the proceeds of the sale equally between the parties. The court rejected Luna’s
argument that he was entitled to a greater share of the sale proceeds.
Hernandez moved for attorney fees, and the court granted the motion in part. The
court awarded her reasonable attorney fees incurred from the commencement of the
action to December 2018, when Luna stipulated to sell the property. The court ordered
Hernandez to submit an accounting of her fees for that period, and it scheduled another
hearing on the matter in several months. Hernandez’s accounting showed that she
incurred $32,975 in attorney fees during the relevant period.
Before the next hearing, Luna filed a notice of appeal from the judgment. The
trial court determined that the pending appeal stayed the proceedings, so it did not rule on
the specific amount of attorney fees to which Hernandez was entitled. It took the hearing
off calendar.
In February 2021, we affirmed the judgment. On remand, Hernandez again
moved for attorney fees. She based her motion on the partition statutes authorizing the
recovery of attorney fees in partition actions, as well as Code of Civil Procedure sections
2
1032 and 1033.5. (Unlabeled statutory citations refer to the Code of Civil Procedure.)
She sought $32,975 in fees for September 2017 to December 2018, plus $21,373.50 in
fees after December 2018 through trial, $42,250 in fees for the appeal, and $1,690 for the
attorney fees motion.
The court granted Hernandez’s motion and awarded her most but not all of the
attorney fees that she sought. Specifically, it awarded her all of her fees from September
2017 to December 2018, all of her fees on appeal, and all of her fees for the motion. But
for the period after December 2018 through trial, the court awarded her only 50 percent
of her attorney fees. The court determined that those fees should be apportioned
according to the parties’ interests in the property, which were 50 percent each.
DISCUSSION
Section 874.040 controls the award of costs in a partition action. Under that
section, “the court shall apportion the costs of partition among the parties in proportion to
their interests” in the subject property “or make such other apportionment as may be
equitable.” (§ 874.040.) Under section 874.010, costs of partition include “[r]easonable
attorney’s fees incurred or paid by a party for the common benefit.” (§ 874.010,
subd. (a).)
“[T]he ‘common benefit’ in a partition action is the proper distribution of the
‘“respective shares and interests in [the] property by the ultimate judgment of the court.”’
[Citation.] This sometimes will require that ‘“controversies”’ be ‘“litigated”’ to correctly
determine those shares and interests [citation], but this ultimately can be for the common
3
benefit as well.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967 (Orien).) Section
874.040 gives the trial court the equitable power “to adjust the allocation of costs if, for
example, fees are incurred for purposes that unduly exacerbate the dispute . . . .” (Orien,
supra, at p. 968.)
We review the trial court’s attorney fee order for abuse of discretion. (Orien,
supra, 16 Cal.App.5th at p. 966.) “[T]he ruling must stand unless . . . the trial court
exceeded the bounds of reason, resulting in a miscarriage of justice.” (Lin v. Jeng (2012)
203 Cal.App.4th 1008, 1025.) The appellant bears the burden of showing that the court’s
fee award constituted an abuse of discretion. (Gonzalez v. Santa Clara County Dept. of
Social Services (2017) 9 Cal.App.5th 162, 169.)
Luna has not carried his burden here. First, he contends that Hernandez’s
argument for recovery of fees was “misplaced.” (Boldface omitted.) He claims that she
argued that she was entitled to attorney fees as the prevailing party under section 1032,
subdivision (b). Luna contends that section 874.040 governed the issue, regardless of
whether Hernandez was the prevailing party. It is true that Hernandez relied on section
1032, but she also relied extensively on section 874.040 and argued that it was equitable
to make Luna responsible for all of her fees under that section. Moreover, the court cited
section 874.040 in the attorney fee order, and it expressly concluded that its fee award
represented an “equitable apportionment.” Thus, even if Hernandez erroneously relied in
part on section 1032, the record shows that the court correctly relied on section 874.040.
4
Second, Luna argues that the court did not explain the equitable principles on
which it relied to award Hernandez her attorney fees. On that basis, he argues that we
“can” remand the matter—not that we should or must remand it—for him to offer
evidence showing that he paid most of the mortgage, utilities, taxes, and other expenses
for the subject property. But he provides no authority demonstrating that the court
prejudicially erred by failing to explain its decision in detail. Moreover, he does not
explain why the evidence that he proposes to offer would show that the court
prejudicially erred. And he fails to address Hernandez’s arguments that it was equitable
to make him liable for her fees. The record does not even include the briefing related to
Hernandez’s first motion for attorney fees, in which she persuaded the court that he
should be liable for her fees from September 2017 to December 2018. Luna must
provide reasoned argument supported by citations to authority (Cahill v. San Diego Gas
& Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill)) and “an adequate record to
assess error” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295). His unsupported
arguments and the incomplete record are insufficient to show that the court prejudicially
abused its discretion.
Third, Luna contends that the court should have ordered each party to bear their
own fees or, alternatively, limited its fee award to the period from September 2017 to
December 2018. Both contentions are bare statements unsupported by any reasoned
argument or authority, so they fail for the reasons already discussed. (Cahill, supra, 194
5
Cal.App.4th at p. 956 [“‘The absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived’”].)
Finally, Luna argues that the court erred by awarding fees for the appeal, because
Hernandez relied on distinguishable case law (Neal v. Superior Court (2001) 90
Cal.App.4th 22 )), and she purportedly provided no other authority for awarding appellate
fees. Even if Neal is distinguishable, Luna is incorrect—Hernandez cited other
authorities for awarding appellate fees. (Lunada Biomedical v. Nunez (2014) 230
Cal.App.4th 459, 489; Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211
Cal.App.4th 230, 250.) Those cases and others stand for the well-established principle
that “statutes authorizing attorney fee awards in lower tribunals include attorney fees
incurred on appeal[] . . . .” (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927;
Conservatorship of McQueen (2014) 59 Cal.4th 602, 605 [“Where a statute provides for
attorney fees, they are generally available both at trial and on appeal”].) Sections
874.010 and 874.040 fall under that general principle—they authorize an award of
attorney fees in partition actions, and they do not expressly preclude an award of
appellate fees. Luna therefore fails to show that the court erred by awarding appellate
fees.
For all of these reasons, Luna has not carried his burden of showing that the
court’s attorney fee order constituted an abuse of discretion.
6
DISPOSITION
The attorney fee order is affirmed. Hernandez shall recover her costs of appeal, if
any. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
MILLER
Acting P. J.
CODRINGTON
J.
7 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482428/ | Filed 11/8/22 Greenberg v. Daunch 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
(Nevada)
----
SHAWN LAKSMI GREENBERG, C090051
Plaintiff and Respondent, (Super. Ct. No. FL15011924)
v.
DAVID DAUNCH,
Defendant and Appellant;
SIERRA NEVADA REGIONAL DEPARTMENT
OF CHILD SUPPORT SERVICES,
Intervener and Respondent.
Appellant David Daunch appeals in propria persona from the trial court’s April
2019 child support order and May 2019 order denying relief from said order. Daunch
claims the trial court erred by, inter alia: (a) disregarding relevant statutes when
calculating the amount of child support, (b) denying Daunch’s motion for relief from the
child support order, (c) failing to provide Daunch “neutral . . . guidance,” and (d)
1
“prohibiting [Daunch] from completely answering” questions the trial court posed to him
at the hearing on the motion for relief. We affirm, concluding the first claim is forfeited
on appeal because Daunch has not demonstrated he raised it properly in the trial court,
and the remaining claims lack merit.
FACTS AND PROCEDURAL HISTORY
In January 2019, Sierra Nevada Regional Department of Child Support Services
(DCSS) filed in the trial court a motion, on Daunch’s behalf, to modify a prior order that
required Daunch to pay $430 monthly to Shawn Greenberg in support for their minor
child.
DCSS explained that Daunch “request[ed] modification due to changes in
employment and ability to work for health reasons.” In an income and expense
declaration filed in January 2019 under penalty of perjury, Daunch represented: (a) he
had been unemployed “since [his] accident” a year earlier, (b) “public assistance,” in the
amount of $175 per month, was the only source of his monthly income in the last year,
and (c) he had been using credit cards and loans to pay his expenses.
A hearing began on March 14, 2019.
The trial court and the parties addressed some procedural matters at the beginning
of the hearing. “First off,” the trial court said, “Mr. Daunch, you had filed a Request for
Order . . . to compel Ms. Greenberg’s deposition and Request for Production of
Documents. . . . Did it resolve?” “It’s not resolved,” Daunch replied, “but . . . the
documents . . . I have in essence support some of my conclusions and the time, effort and
hassle is not worth it.” “All right,” the trial court responded, “[t]hen that Request for
Order is dropped.”
The next procedural matter was Daunch’s motion to quash a subpoena served on a
cabinetry business that Daunch occasionally did work for. The trial court addressed
Daunch: “[Y]ou have filed on March 12th, a Motion to Quash the . . . subpoena . . . is
that correct?” “Yes, Your Honor,” Daunch answered.
2
The trial court observed there was no order shortening time for Daunch’s motion
to quash, and asked Daunch why he filed the motion “on such shortened time” (two days
before the hearing). Daunch admitted there was no order shortening time, and provided
an explanation why that was the case. The trial court then denied Daunch’s motion to
quash, explaining: “[Y]ou did not receive an order shortening time, so your motion itself
is untimely. In addition, the date for production of the information has already passed
and so the time in which to oppose it has also passed.”
Those preliminary matters having been resolved, the contested evidentiary portion
of the hearing commenced. According to the trial court, “[t]he primary issue . . . was
[Daunch’s] income during . . . calendar year 2018 and ongoing.”
DCSS called as a witness the office manager for a custom cabinetry business,
Cabinet Company, Incorporated (CCI), who testified that at different times between 2017
and 2018 Daunch worked either as an employee of or as a subcontractor for the business.
The office manager also testified that while working as a subcontractor for the business,
Daunch presented the business with copies of new W-9 forms, one in the name of
Engram, Inc., Wood Skill and Company, and asked the office manager to use the new W-
9 on his 1099 records that were being submitted for 2018. This meant that the income
that Daunch received as a subcontractor for CCI was being reported under a corporation
called Engram, Inc. The office manager also testified that “the day prior to” the
evidentiary hearing, Daunch told her “that although she was subpoenaed to appear at
trial, she did not need to attend.”
After DCSS and Greenberg presented their evidence the trial court observed it was
4:30 pm, and it did “not want [Daunch] to have to rush through [his] response” to DCSS
and Greenberg. “I believe . . . this is . . . going to go to another day,” the trial court said
to Daunch. “So that your testimony is not divided in half . . . the [c]ourt would like to set
the second day and set the testimony to begin then.” The trial court continued the
evidentiary hearing to April 4, 2019.
3
The trial court and the parties then discussed some logistical matters, including
Daunch’s exhibits that were “not in proper filing format,” according to the trial court.
The trial court explained to Daunch: “You can’t have it both on the left and the
right of a single folder. They need to be individual and numbered or at least in
categories. My clerk will return your folder to you and you can put them in the proper
filing format for April.” Later, the trial court explained Daunch could prepare his
exhibits “similar to how Ms. Greenberg did her[ ] [exhibits]. She put the exhibit list on
the front and made it all one document in the proper order . . . .” The trial court ordered
Daunch to provide copies of the “properly formatted exhibit list” to DCSS and Greenberg
by March 28.
Daunch failed to appear on April 4, 2019, and failed to inform the trial court that
he would not be present. The trial court took the matter under submission on the
evidence presented.
In a written ruling issued on April 5, 2019, the trial court ordered Daunch to pay
$458 in monthly child support. The trial court found DCSS’s witness “exceptional,” and
explained that her testimony, along with supporting business records, “directly
contradict[ed] . . . Daunch’s statements under penalty of perjury that he last worked on
[January 27, 2018].” The trial court also explained that Daunch’s monthly “earned wages
. . . self-employment income . . . and the public benefits” each were factors in the trial
court’s new child support order.
Also in that ruling, the trial court declared its intention to “refer th[e] matter to the
District Attorney’s Office to determine if they wish[ed] to prosecute [Daunch] for witness
tampering and/or perjury.”
Following the issuance of the trial court’s written ruling, Daunch filed a request to
continue the April 4 hearing. His request indicated that he had missed the April 4 hearing
date because he had been hospitalized. The trial court denied this request on April 15.
4
Daunch filed a pleading labeled “Motion to Reconsider Default Ruling on
Submitted Matter of 4/15/19 for Responent’s [sic] Request to Modify Child Support Filed
12/18/18,” wherein he invoked Code of Civil Procedure sections 1008, subdivision (a)1
(motion to reconsider based upon new or different facts, circumstances, or law) and 473,
subdivision (b) (relief from an order due to mistake, inadvertence, surprise, or excusable
neglect), and asked the trial court to “order the [e]evidentiary [h]earing to continue as
originally planned.” In his memorandum of points and authorities, Daunch argued “a
medical emergency occurred” while he was “en route” to the second day of the
evidentiary hearing, and he had tried to inform the trial court of the emergency. Daunch
submitted a 14-page declaration in support. The trial court set the matter for hearing on
May 23, 2019.
The trial court denied relief at the May 2019 hearing, indicating it denied relief
under section 1008, subdivision (a), because Daunch’s motion introduced “new facts”
about a procedural issue (his failure to appear), whereas the principle of “new facts or
new law not available at the time of the hearing” contemplated in section 1008 is
concerned with the merits of the matter; and denied relief under section 473, subdivision
(b), because there was “no mistake, no inadvertence, and no excusable neglect,” as
Daunch’s “statements [we]re disingenuous . . . and [the trial court was] very concerned
that [Daunch was] gaming the system.”
Daunch appealed.2
1 Further undesignated statutory references are to the Code of Civil Procedure.
2 This appeal was filed on July 24, 2019. Subsequently, Daunch requested and was
granted 13 extensions of time to file his opening brief. The case was fully briefed on
July 14, 2022, and was assigned to this panel on July 25, 2022. One note about the notice
of appeal: Daunch designated the order issued at the May 23, 2019 hearing as the order
he was appealing from. In his opening brief he indicates he is appealing from the
5
DISCUSSION
Daunch is proceeding in propria persona. His pleadings and papers should thus be
liberally construed in order to assure he receives a hearing on the merits. (See People v.
Reyes (1969) 273 Cal.App.2d 769, 770; People v. Mitchell (1962) 209 Cal.App.2d 312,
315.) But a party proceeding in propria persona is entitled “to no greater privilege or
advantage than that given to one represented by counsel.” (Deauville v. Hall (1961)
188 Cal.App.2d 535, 547.) “[I]in electing to represent himself ‘he assumes for all
purposes connected with his case, and must be prepared to be treated as having, the
qualifications and responsibilities concomitant with the role he has undertaken; he is not
entitled either to privileges and indulgences not accorded attorneys or to privileges and
indulgences not accorded defendants who are represented by counsel.’ ” (Ibid.) Thus,
although the court will liberally construe an appellant’s pleadings and papers, it cannot
excuse a failure of pleading or argument.3
A. Calculation of Child Support
Daunch argues the trial court “disregarded statute when calculating support.”
Specifically, Daunch contends the trial court improperly considered “public food
assistance” he was receiving “in direct contradiction of” Family Code section 4058,
subdivision (c),4 and improperly calculated his “gross receipts” from his business
“without . . . considering . . . expenditures required for . . . operation of the business.”
Daunch did not raise these contentions either at the evidentiary hearing or in his
memorandum of points and authorities in support of his motion to reconsider. Daunch’s
May 23, 2019 order and the order issued on April 5, 2019. We will address both of these
orders in this appeal.
3 Respondents did not file briefs.
4 Family Code section 4058, subdivision (c) excludes “income derived from any public
assistance program, eligibility for which is based on a determination of need” from the
“annual gross income” of a parent when a trial court considers child support calculations.
6
declaration in support of his motion to reconsider alludes to these contentions. But
fairness dictates all arguments must be presented in the memorandum of points and
authorities. A memorandum of points and authorities “must contain a statement of facts,
a concise statement of the law, evidence and arguments relied on, and a discussion of the
statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of
Court, rule 3.1113(b).) A trial court may decline to consider an argument that does not
comply with rule 3.1113. (Quantum Cooking Concepts, Inc. v. LV Associates, Inc.
(2011) 197 Cal.App.4th 927, 932-933; Black v. Financial Freedom Senior Funding Corp.
(2001) 92 Cal.App.4th 917, 925, fn. 9.) Here, the trial court had discretion to ignore
arguments that Daunch did not properly present in his memorandum of points and
authorities in support of his motion to reconsider. “ ‘For better or worse, California child
support law now resembles determinate sentencing in the criminal law: The actual
calculation required of the trial judge has been made so complicated [citation] that, to
conserve judicial resources, any errors must be brought to the trial court’s attention at the
trial level while the [theoretical] error can still be expeditiously corrected. [Citation.]’ ”
(In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 37.)
Because Daunch has not demonstrated he properly raised these contentions to the
trial court, they are forfeited on appeal.
B. Failure to Provide Daunch Guidance
Daunch argues the trial court “abused its discretion in disregarding it’s [sic] role
and responsibility to . . . afford the litigant accurate neutral non-prejudicial guidance that
would lead to a fair trial.” In support, Daunch invokes a canon of judicial ethics
concerning a party’s “ ‘full right to be heard’ ” and cites out-of-state cases directing
courts to be “lenient” and “solicitous” of self-represented litigants.
Nothing in the record suggests the trial court failed to afford Daunch a fair hearing
on the merits of either the motion to modify child support or the motion for relief from
the trial court’s April 2019 ruling. Rather, the record reflects the trial court considered all
7
evidence properly before it when it ordered Daunch to pay $458 in monthly child
support, and denied the motion for relief from that ruling after determining Daunch was
“disingenuous” about his failure to appear.
Daunch argues the trial court erred by “prohibit[ing] him from completely
answering the questions” posed to him at the hearing on the motion for relief from the
April 2019 ruling. But our reading of the transcript of that hearing reflects nothing of the
sort. The trial court gave Daunch ample opportunity to make arguments germane to the
pending motion when it was his turn to speak.
On one occasion during the hearing, when counsel for DCSS was speaking, the
trial court twice told Daunch it was not his turn to speak. At another juncture, after
Daunch articulated his “objections to [counsel for DCSS’s] characterization” (in what
appears as a five-paragraph monologue in the reporter’s transcript), the trial court
interjected: “Let me stop you. Again, you are going to the merits of the motion to
modify and what your income was. We are focusing on whether or not your grounds for
the motion of . . . excusable neglect are sufficient to set aside my ruling and to allow a
reopening of the evidence.” On this record we do not agree that the trial court did not
afford Daunch full and fair opportunity to make his arguments.
C. Motion to Reconsider
Daunch contends the trial court abused its discretion by denying his motion for
relief from the April 2019 ruling because he had “ ‘new facts’ . . . the [c]ourt had not yet
heard,” and demonstrated he was unable to attend the second day of the evidentiary
hearing due to “excusable neglect.” We disagree.
The trial court properly denied relief under section 1008, subdivision (a), as
Daunch’s “new facts” concerned a procedural matter (Daunch’s failure to appear) not the
underlying merits of the child support order. (Cf. Gilberd v. AC Transit (1995)
32 Cal.App.4th 1494, 1500 [rejecting an “interpretation of section 1008 that a ‘new’ or
8
‘different’ fact or circumstance wholly collateral to the merits of the” underlying matter
“is sufficient to warrant reconsideration”].)
The trial court did not abuse its discretion in denying relief under section 473,
subdivision (b), after finding Daunch “disingenuous” regarding his failure to appear. (Cf.
Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354-1355
[“ ‘Excusable neglect’ ” for purposes of § 473, subd. (b) is error “ ‘ “ ‘a reasonably
prudent person under the same or similar circumstances might have made’ ” ’ ” (italics
omitted)].)
D. Miscellaneous Arguments
Daunch’s remaining arguments of trial court error that arguably are properly
presented (regarding a motion to compel, a subpoena duces tecum, and “instructions” the
trial court provided to him concerning exhibits for the evidentiary hearing) all lack merit.
The trial court did not “neglect[ ] to address” Daunch’s motion to compel
Greenberg to provide documents. When the trial court asked Daunch about that motion
at the beginning of the March 14 hearing, Daunch said “the time, effort and hassle [wa]s
not worth it.” “All right,” the trial court responded, “[t]hen that Request for Order is
dropped.”
The trial court did not abuse its discretion by denying Daunch’s motion to quash
the subpoena of documents possessed by the nonparty cabinetry business. The trial court
explained it denied that motion, in part, because “the date for production of the
information ha[d] already passed and so the time in which to oppose it . . . passed.” That
was a straightforward application of the language of section 1985.3, subdivision (g),
which contemplates a motion to quash a subpoena duces tecum “prior to the date for
production.” (See § 1985.3, subd. (g).)
Daunch suggests exhibits he brought to the March 14 hearing are not part of the
trial court record because the trial court “gave incomplete instructions” to him regarding
9
the proper format for those exhibits. Not so. The trial court’s instructions were clear.
The exhibits are not in the record because Daunch did not appear (with the
properly formatted exhibits) on the second day of the hearing.
DISPOSITION
The judgment (order) is affirmed.
/s/
EARL, J.
We concur:
/s/
HULL, Acting P. J.
/s/
KRAUSE, J.
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482420/ | Filed 11/8/22 Los Angeles Federal Credit Union v. Ahmad CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LOS ANGELES FEDERAL B317230
CREDIT UNION,
Los Angeles County
Plaintiff and Appellant,
Super. Ct. No. 18TRCV00201
v.
TANVIR M. AHMAD et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deirdre Hill, Judge. Affirmed.
Anaya Law Group, Alana B. Anaya and Joseph P. Graziano
for Plaintiff and Appellant.
Yates Litigation and John R. Yates for Defendants and
Respondents.
_______________________
The trial court found brothers Tanvir and Wasim Ahmad
(the Ahmads) not liable for a judgment entered against their
deceased father, Chaudhry Muhammad. In a previous action,
Los Angeles Federal Credit Union (LAFCU) had obtained a
judgment in its favor against Muhammad for debts he owed on
loan and credit card agreements with LAFCU. Muhammad died
before paying the judgment. LACFU then tried to enforce the
judgment against the brothers by alleging they had fraudulently
conspired with Muhammad to transfer his assets to themselves.
LAFCU contends the trial court erred in requiring it to
show malice and direct intent to defraud in order to collect from
the Ahmads on their father’s judgment. It also argues the
evidence is insufficient to support the finding that the Ahmads
had no actual intent to hinder, delay or defraud LAFCU. We
affirm the judgment.
BACKGROUND
In late 2016, Muhammad, who was in his late 80’s, became
seriously ill with an infection and was hospitalized for two to
three weeks, 10 days of which were in an intensive care unit.
Soon after his recovery, in March 2017, after stating that his
health was not good, Muhammad gave the Ahmads $229,000
from a revocable trust for their use and the use of their children.
This left no money in the trust account. Muhammad also
transferred three pieces of real property which he owned into an
irrevocable trust, with the Ahmads as co-trustees. The Ahmads
were not present when Muhammad met with the lawyer to create
2
the irrevocable trust and they had no input into its terms.1 After
these transfers were complete, Muhammad was left with a
monthly income of $5,780 from Social Security and his City of Los
Angeles pension. Muhammad had lived on this income for at
least 10 years. The transfers of the real estate to the trust
increased the amount of disposable income available to
Muhammad, as the yearly costs of the two rental properties
exceeded their rental income.
Around 2016, Muhammad hired Tina Hao to be his
caregiver. He initially paid her $2,000 a month. At some point,
he married her. Between January 2016 and Muhammad’s death
in February 2020, Hao obtained $138,000 from Muhammad,
about $42,000 more than she would have received at her initial
rate of pay of $2,000 per month. Forty-four thousand dollars of
the total was received in the last year of Muhammad’s life. Some
of this money was transferred by check, some by cash back from
credit card transactions. Some of the checks did not appear to be
in Muhammad ‘s handwriting.
In June 2016, Muhammad obtained a personal loan from
LAFCU with an initial balance of $4,800 on which he made
payments. He also had a credit card through LAFCU which had
a small credit balance on it. In April 2017, he took a cash
advance of $7,000 on the credit card. By March 2018,
1 The value of these three properties is not clear from the
record on appeal. Two were rental properties and the expenses of
the properties exceeded the rental income. Two of the three
properties had mortgages. One of the mortgaged properties was
sold after Muhammad’s death for less than $400,000, but there is
no information about the amount of the mortgage.
3
Muhammad had taken out about $15,000 more in cash advances,
and incurred charges of about $10,000, for a total debt of about
$32,000.
In March 2018, Muhammad stopped making payments to
LAFCU on his personal loan. In August 2018, he stopped making
payments on his LAFCU credit card account. He continued
paying on an auto loan and other credit cards until his death in
February 2020.
LAFCU sued Muhammad on his overdue credit card
account and in March 2019 obtained a default judgment in the
amount of $37,258.05. LAFCU subsequently brought this action
to enforce the judgment against the Ahmads pursuant to the
Uniform Voidable Transfers Act, specifically Civil Code section
3439.04.2 The matter was tried by the court, which found in
favor of the Ahmads.
DISCUSSION
Section 3439.04, subdivision (a), provides: “A transfer made
or obligation incurred by a debtor is voidable as to a creditor,
whether the creditor’s claim arose before or after the transfer was
made or the obligation was incurred, if the debtor made the
transfer or incurred the obligation as follows: [¶] (1) With actual
intent to hinder, delay, or defraud any creditor of the debtor.”
Subdivision (b) provides a list of factors which may be considered
in determining actual intent under subdivision (a)(1).
2 Further undesignated statutory references are to the Civil
Code.
4
Under section 3439.04, subdivision (a)(1), appellant was
required to prove: 1) it had a right to payment from Muhammad;
2) Muhammad transferred property to his sons; 3) Muhammad
transferred the property with the intent to hinder, delay, or
defraud appellant; 4) appellant was harmed; and 5) Muhammad’s
conduct was a substantial factor in causing appellant’s harm.
(CACI No. 4200.) To prove intent to hinder, delay, or defraud
creditors, it is not necessary to show that Muhammad had a
desire to harm appellant. Appellant need only show that
Muhammad intended to remove or conceal assets to make it more
difficult for appellant to collect payment. (Ibid.)
At the conclusion of the bench trial, after considering
several factors, including those listed in section 3439.04,
subdivision (b), the court found there was “insufficient finding of
actual intent to hinder, delay or defraud creditors. The judgment
is for the defense.”
A. The Trial Court Correctly Found LAFCU Was Required to
Show Muhammad Had an Actual Intent to Defraud It.
LAFCU contends the trial court erred in finding that
LAFCU had to show Muhammad acted maliciously and had a
“direct” intent to defraud a creditor. LAFCU sometimes uses
“direct intent” to mean malicious intent and at other times uses it
in the phrase “direct intent to defraud.” The trial court did not
use the terms malice or maliciously and did not state that
LAFCU had failed to prove “direct” intent (or to provide direct
evidence of intent). Thus, it is far from clear what LAFCU means
by “maliciously” and “direct” intent when applied to the trial
court’s actual findings. Because the trial court did not consider
the concept of “malice” in making its findings, we find a further
discussion of malice irrelevant.
5
We discern LAFCU contends the phrase “actual intent to
. . . defraud” in section 3439.04, subdivision (a)(1), means only a
sole intent to transfer assets, as long as that transfer results,
whether intentionally or not, in a creditor being unable to reach
those assets. LAFCU relies on Economy Refining & Service Co. v.
Royal Nat. Bank of New York (1971) 20 Cal.App.3d 434 (Economy
Refining) to support its interpretation of the term “actual intent
to defraud.” We are not persuaded. Indeed, we find Economy
Refining supports the analysis of the trial court.
As the appellate court in Economy Refining cautioned
before discussing the issue of intent, “The kind of case which is
before us presents an unusual, if not unique, aspect of intent.”
(Economy Refining, supra, 20 Cal.App.3d at p. 441.)
Significantly, the transferor in Economy Refining admitted he
made the transfer to avoid the debt. As the court put it, “the
requisite intent to defraud is demonstrated by admission in the
testimony of Mr. Marcus.” (Id. at p. 439.) “Mr. Marcus testified
that his decision was difficult and he knew that he was hurting
Royal National Bank by his action.” (Id. at p. 441.)
In finding this admission showed the requisite intent, the
court of appeal explained: “Under the circumstances of this case,
as related above, we conclude that actual intent to defraud
consisted of the intent to do just what was done, that is, to
remove the assets and to make impossible the collection of
appellant's judgment . . . . The fact, therefore, that the trial judge
evidently believed that Mr. Marcus was not actuated by an evil
motive is not sufficient to remove the fact that what he intended
to do was objectively wrong and fraudulent.” (Economy Refining,
supra, 20 Cal.App.3d at p. 442, italics and underscoring added.)
We understand the court of appeal’s statement to indicate that
6
two intents are required: 1) an intent to transfer the assets; and
2) an intent “to make impossible the collection of appellant’s
judgment.” This second intent is actual intent to hinder, delay or
defraud the creditor.
Our conclusion that there must be an intent to transfer and
an intent to hinder, delay, or defraud the creditor (as opposed to a
consequential and unintended disadvantage to the creditor) is
reinforced by the court of appeal’s discussion of Marcus’s
“defense,” which was that he transferred the assets to satisfy
other creditors. The court of appeal acknowledged that a creditor
preference could be a proper use of transferred assets, that is,
some transfers are permissible even when they make one
creditor’s collection impossible. The court pointed out that
Marcus did not in fact satisfy any other creditors with the
transferred assets. Instead, he simply protected his own personal
creditor claims by transferring reachable assets to another
corporation. The court looked not merely at what Marcus did
(transfer the assets), but also his reasons for doing it. “Malice”,
which the court defined as to act with “evil motive” or “the desire
of causing harm” was not a part of the equation in proving
“actual intent to defraud.” (Economy Refining, supra,
20 Cal.App.3d at pp. 441–442.)
We note it is far from clear that the court of appeal in
Economy Refining was relying on any provision of the former
Uniform Fraudulent Conveyance Act (now Uniform Voidable
Transfer Act) (Act). The court of appeal did not cite to that Act
and appeared to rely on the common law rule that “[t]ransfers of
all of the assets of a person or corporation in straitened
circumstances, without fair consideration, to a corporation having
substantially the same ownership, by which the just claims of
7
creditors are defeated, are of such fraudulent nature that the new
corporation may be held to the debt of the old.” (Economy
Refining, supra, 20 Cal.App.3d at p. 439.)3
B. There Is Substantial Evidence to Support the Judgment in
Favor of the Ahmads.
LAFCU contends that the judgment in favor of the Ahmads
was not supported by substantial evidence.
In assessing a claim of insufficiency of the evidence, we
“must view the whole record in a light most favorable to the
judgment, resolving all evidentiary conflicts and drawing all
reasonable inferences in favor of the decision of the trial court.
[Citation.] We may not substitute our view of the correct findings
for those of the trial court; rather we must accept any reasonable
interpretation of the evidence which supports the trial court’s
decision.” (Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 833
(Filip).) The evidence must be “reasonable in nature, credible,
and of solid value.” (Ibid.) We do not, however, reweigh the
evidence. (Flores v. Liu (2021) 60 Cal.App.5th 278, 296 (Flores).)
3 The only reference to that Act was to section 3439.03,
which defines “value” and is not relevant here. (Economy
Refining, supra, 20 Cal.App.3d at p. 441.) The trial court used
the phrase “actual intent to hinder, delay or defraud the
creditors,” (similar to language found in current section 3439.04)
and the court of appeal discussed the trial court’s findings on
actual intent, but it also used language consistent with current
section 3439.05), which do not require an actual intent to
defraud.
8
Specifically, with regard to actions brought pursuant to
section 3439.04, “[t]here is no minimum number of factors that
must be present before the scales tip in favor of finding of actual
intent to defraud. This list of factors is meant to provide
guidance to the trial court, not compel a finding one way or the
other.” (Filip, supra, 129 Cal.App.4th at p. 834.) The trial court
is not limited to the specific factors listed in section 3439.04
subdivision (b). (See Lyons v. Security Pacific Nat. Bank (1995)
40 Cal.App.4th 1001, 1021, fn. 3.)
“Where, as here, it is the plaintiff asserting on appeal that
a defense verdict is not supported by the evidence, it is the
plaintiff’s burden to show on appeal that there is no substantial
evidence to support that defense verdict, and not merely that
substantial evidence would have supported a verdict in her
favor.” (Flores, supra, 60 Cal.App.5th at p. 297.)
Here, the trial court made several factual findings which
support a defense verdict. The court found: 1) At the time of the
transfers Muhammad had only a modest debt in the form of a
personal loan on which he had been making regular payments;
2) Muhammad continued to make payments to LAFCU for at
least a year after the transfer of his assets; 3) There was an
innocent explanation for transfers: Muhammad believed his
health was bad and he wanted to give the money to his sons
while he still alive; 4) The Ahmads had no knowledge of
Muhammad’s financial situation and did not influence the
creation of the irrevocable trust; 5) Muhammad had income
sufficient to pay his living expenses and make payments on his
debts as he had been living on his pension and social security for
quite some time; 6) The transfer of the real property increased
rather than diminished Muhammad’s cash flow; 7) Muhammad’s
9
cash flow was diminished by unauthorized transactions by his
wife.
There is substantial evidence for the first two findings in
the testimony of LAFCU’s own witnesses and for the next four
findings in the form of testimony by the Ahmads. As for the
seventh finding, concerning the caregiver/wife, the court relied in
part on financial documents and in part on the Ahmads’
testimony about those documents. The court clearly found the
Ahmads credible, and we may not substitute our assessment of
credibility for that of the trial court. Further, LAFCU did not
offer any evidence contradicting the Ahmads’ testimony.
These findings support a conclusion that Muhammad
transferred his assets either due to his failing health and a desire
to give his money to his children while he was still alive or to
protect the assets from his caregiver/wife. The trial court was
permitted to infer from its factual findings that Muhammad was
not motivated by any effort to hinder creditors. Substantial
evidence supports the verdict in favor of respondents.
C. There Is No Evidence the Trial Court Misunderstood the
Concept of Insolvency.
Finally, LAFCU contends the trial court misunderstood the
concept of insolvency, and this misunderstanding was
prejudicial.4 LAFCU points to the trial court’s statement that the
“contention that [Muhammad] had nothing is not accurate. He
had a pension and . . . social security coming in. He was making
4 Subdivision (b)(9) of section 3439.04 lists a debtor’s
insolvency as a factor which may be considered in determining
intent.
10
payments on certain bills, certain bills he was not, over periods of
time.”
In context, this statement is a response to LAFCU’s closing
argument. In closing argument, LAFCU contended that after the
transfers Muhammad became insolvent and had “no money left”
and that was why he took cash advances, and “when he died he
only had a little over $800 to his name.”
The Ahmads responded by acknowledging that after the
transfers Muhammad was technically insolvent because his
pension and social security were not collectible by creditors, but
they argued this factor was not significant as a practical matter
because Muhammad had a substantial income and voluntarily
used that income to make payments to his creditors.
The trial court’s statement after closing argument is most
reasonably understood as a response to LAFCU’s argument that
Muhammad had “no money” after the transfer and thus needed
to take the cash advances. This was quite literally untrue, as the
trial court was pointing out. It does not show that the trial court
failed to understand the concept of insolvency. Nor did it show
that the trial court did not agree that Muhammad was
technically insolvent, a situation which the Ahmads expressly
conceded.
11
DISPOSITION
The judgment is affirmed. Respondents are awarded costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
HARUTUNIAN, J.
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
12 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482405/ | Filed 11/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DEDICATION AND B318078
EVERLASTING LOVE TO
ANIMALS, INC., Los Angeles County
Super. Ct. No. 21STLC05477
Plaintiff and Appellant,
v.
CITY OF EL MONTE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Transferred to the
Appellate Division of the Superior Court.
Roxborough, Pomerance, Nye & Adreani, Drew E.
Pomerance and Vincent S. Gannuscio for Plaintiff and Appellant.
Olivarez Madruga Law Organization, Terence J. Gallagher
and Leslie Anne Burnet for Defendant and Respondent.
________________________
INTRODUCTION
Plaintiff and appellant Dedication and Everlasting Love to
Animals, Inc. (DELTA) owns a vacant lot in defendant and
respondent City of El Monte (City or El Monte). After receiving
several citations for violating the municipal code, DELTA sought
administrative review. The citations were upheld, and DELTA
appealed to the superior court, which summarily affirmed the
administrative opinion. DELTA then attempted to appeal to the
appellate division of the superior court, but when its filing was
rejected, it appealed to this court instead.1 We conclude this
matter is a limited civil case—and this court lacks jurisdiction
over limited civil cases. We therefore transfer the matter to the
appellate division of the Los Angeles Superior Court.
BACKGROUND
1. Citations and Administrative Hearing
On April 24, 2021, an El Monte neighborhood services
officer issued a notice of violation of the El Monte Municipal Code
based on accumulated trash and debris (El Monte Mun. Code,
§ 8.44.030, subd. (m)), overgrown weeds (id., subd. (k)(3)), a
dilapidated “fence, gate, or block wall” (id., subd. (h)), and graffiti
(id., subd. (g)) at 3007 Durfee Avenue, which is a vacant lot.
DELTA was given until May 8, 2021 to correct the violations.
1 DELTA attached a copy of the notice of rejection to its
opening brief as Appendix B. We deem this a request for judicial
notice and, having received no objection to our consideration of
that document, we grant the request. (Evid. Code, §§ 452,
subd. (d), 459, subd. (a).)
2
On May 8, 2021, the officer re-inspected the property and,
finding the violations uncorrected, issued administrative citation
No. CE-17195-1. The initial amount owed was $422. DELTA
was notified that the property would be inspected again the
following week. The property was inspected again on May 22,
May 29, and June 18, 2021, and additional citations were issued,
increasing the total amount due to $7,288.
On May 26, 2021, DELTA filed an application for an
administrative hearing for the original citation. DELTA argued
that the conditions on its property stemmed from the City’s
failure “to control [an] intractable homeless problem causing
trespassing onto the property. The City has been asked to
alleviate said problems but has not done so. Efforts by owner to
clean and repair property have been rendered ineffective due to
repeated intrusions.”
The hearing was held on June 29, 2021. The hearing
officer upheld the citations but reduced the total fine by $1,000.
The hearing officer notified DELTA that its decision could be
appealed to the superior court in accordance with Government
Code2 section 53069.4, subdivision (b), and El Monte Municipal
Code section 1.18.90, subdivision (c).
2. Appeal to the Superior Court
On July 26, 2021, DELTA filed a notice of appeal to the
superior court. (§ 53069.4, subd. (b).) The case was designated
as a limited civil case.
2 All undesignated statutory references are to the
Government Code.
3
After a hearing on the matter was repeatedly set and
rescheduled, on September 24, 2021, the court issued a minute
order summarily affirming the administrative ruling.
On October 8, 2021, DELTA filed a petition for rehearing,
but it does not appear that the court ruled on the petition.
DELTA then attempted to file a notice of appeal to the
appellate division of the superior court on October 22, 2021.
But the appellate division rejected the filing, explaining: “The
appellate division does not have jurisdiction over appeals
regarding administrative hearings. Please see local Rule, 2.7.”
Finally, DELTA filed a notice of appeal in this court.3
DISCUSSION
DELTA contends the administrative findings are not
supported by substantial evidence, and the trial court violated its
due process rights by affirming the administrative opinion
without providing notice or an opportunity to be heard. We do
not reach those issues, however, because we conclude this is a
limited civil case over which we lack jurisdiction.
1. The Administrative Process for Municipal Code
Violations
“Section 53069.4 authorizes local governments to enact an
administrative process to enforce violations of any ordinance
through the imposition and collection of administrative fines or
penalties. [Citation.] The law was intended ‘to provide a faster
3 Because we conclude DELTA’s notice of appeal to the
appellate division of the superior court was improperly rejected,
we do not address El Monte’s argument that the notice of appeal
to this court was untimely.
4
and more cost-effective enforcement mechanism than a criminal
prosecution for the violation of a local ordinance.’ ” (County of
Humboldt v. Appellate Division of Superior Court (2020) 46
Cal.App.5th 298, 305.) The statute provides: “The legislative
body of a local agency . . . may by ordinance make any violation of
any ordinance enacted by the local agency subject to an
administrative fine or penalty. The local agency shall set forth by
ordinance the administrative procedures that shall govern the
imposition, enforcement, collection, and administrative review by
the local agency of those administrative fines or penalties.”
(§ 53069.4, subd. (a)(1).)
The statute also creates an avenue to appeal
administrative decisions. “Section 53069.4, subdivision (b)(1)
creates an exception to the general rule that a petition for
administrative mandamus, pursuant to Code of Civil Procedure
section 1094.5, is ‘the exclusive remedy for judicial review of the
quasi[-]adjudicatory administrative action of local level agencies.’
[Citation.]” (Wang v. City of Sacramento Police Dept. (2021) 68
Cal.App.5th 372, 378 (Wang).) In particular, it provides:
“Notwithstanding Section 1094.5 or 1094.6 of the Code of
Civil Procedure, within 20 days after service of the final
administrative order or decision of the local agency is made
pursuant to an ordinance enacted in accordance with this section
regarding the imposition, enforcement, or collection of the
administrative fines or penalties, a person contesting that final
administrative order or decision may seek review by filing an
appeal to be heard by the superior court, where the same shall be
heard de novo, except that the contents of the local agency’s file
in the case shall be received in evidence. A proceeding under this
5
subdivision is a limited civil case.” (§ 53069.4, subd. (b)(1), italics
added.)
Taken together, these provisions allow local governments to
issue citations for code violations as long as they provide
administrative procedures for cited individuals to challenge the
citations. The cited individual may then appeal the
administrative decision to the superior court where, if the
amount in controversy is $25,000 or less, it will be treated as a
limited civil case. (Wang, supra, 68 Cal.App.5th at pp. 378–381.)
El Monte adopted this procedure in sections 1.18.080 and
1.18.090 of its municipal code: section 1.18.080 lays out the
administrative appeal process, and section 1.18.090 establishes a
mechanism to appeal administrative decisions. Section 1.18.090
provides in part: “Decisions of the Hearing Officer are, in
accordance with Government Code Section 53069.4(b), appealable
to the superior court within twenty (20) days after the date of
their service. Each decision shall contain a statement advising
the appellant(s) of this appeal right and the procedures and court
filing fee for its exercise.” (El Monte Mun. Code, § 1.18.090,
subd. (c), enacted by Ord. No. 2865, § 2, 9-15-2015 and Ord.
No. 2938, § 7, 11-20-2018.)
Here, DELTA timely appealed the hearing officer’s decision
to the superior court, where the matter was designated a limited
civil case.
2. Jurisdictional Classification
“The classification of civil cases as limited or unlimited has
its roots in the historic division between municipal and superior
courts. [Citation.] Historically, lower civil courts were divided
into municipal courts, which had subject matter jurisdiction over
cases where the amount in controversy was $25,000 or less, and
6
superior courts, which had subject matter jurisdiction over cases
involving more than $25,000. [Citation.] ‘A case filed in the
superior court whose amount in controversy did not meet the
jurisdictional minimum was subject to “transfer” of jurisdiction
under [Code of Civil Procedure] section 396 from superior court to
the municipal court.’ [Citation.]
“In 1998, an amendment to the California Constitution
‘unif[ied]’ the two separate systems ‘into a single superior court
system having original jurisdiction over all matters formerly
designated as superior court and municipal court actions.’
[Citation.] ‘After unification, the municipal courts ceased to
exist. [Citation.] Now civil cases formerly within the jurisdiction
of municipal courts are classified as “limited” civil cases, while
matters formerly within the jurisdiction of the superior court[ ]
are classified as “unlimited” civil action[s]. ([Code Civ. Proc.,]
§§ 85, 88.)’ [Citation.] The classification of a civil case as limited
or unlimited no longer affects the subject matter jurisdiction of
the superior court. [Citation.]” (Stratton v. Beck (2017)
9 Cal.App.5th 483, 491–492.)
To qualify as a limited civil case, the matter must meet
several conditions: First, the amount in controversy must be
$25,000 or less. (Code Civ. Proc., § 85, subd. (a) [“ ‘amount in
controversy’ means the amount of the demand, or the recovery
sought, or the value of the property, or the amount of the lien,
that is in controversy in the action, exclusive of attorneys’ fees,
interest, and costs”]; see also id., § 86.) Second, the plaintiff must
seek relief of a type that can be granted in limited civil cases.
(Id., § 85, subd. (b).) And third, “[t]he relief sought . . . [must be]
exclusively of a type described in one or more statutes that
7
classify an action or special proceeding as a limited civil case,”
including section 52069.4. (Code Civ. Proc., § 85, subd. (c)(14).)
A limited civil case must also be explicitly classified as
such. (Code Civ. Proc., § 422.30, subd. (b) [“In a limited civil case,
the caption shall state that the case is a limited civil case, and
the clerk shall classify the case accordingly.”]; Cal. Rules of
Court,4 rule 2.111(10) [“In the caption of every pleading and every
other paper filed in a limited civil case, the words ‘Limited Civil
Case’ ” shall appear on the first page].) Thus, “[w]hether an
action qualifies as a limited or unlimited civil action is
determined initially from the prayer or demand for relief in the
plaintiff’s complaint. Once classified as limited or unlimited, that
classification normally continues throughout the litigation.”
(Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 274
(Ytuarte).)
The classification of a case as limited triggers various
procedural provisions designed to streamline litigation and make
the cases more economical. (See Code Civ. Proc., §§ 91–99.) In
addition to the $25,000 upper limit on monetary recovery, limited
civil cases are subject to restrictions on the types of injunctive
and declaratory relief available, as well as the breadth of
discovery. (Ytuarte, supra, 129 Cal.App.4th at p. 275; see Code
Civ. Proc., §§ 86, 91–94.)
And, as relevant here, appeals in limited civil cases are
heard by the appellate division of the superior court rather than
the court of appeal and are subject to shorter filing deadlines
than appeals in unlimited civil cases. (Cal. Const., art. VI, §§ 4,
4 All undesignated rule references are to the California Rules
of Court.
8
11, subd. (b); Code Civ. Proc., §§ 904.1, 904.2; rules 8.104(a)(1),
8.822(a).) A notice of appeal in a limited civil case must be filed
on or before the earliest of: (1) 30 days after the clerk mails notice
of entry of judgment or a file-stamped copy of the judgment to the
appealing party; (2) 30 days after the appealing party serves or is
served with a notice of entry of judgment or a file-stamped copy of
the judgment; or (3) 90 days after entry of judgment.
(Rule 8.222(a).) In an unlimited case, these periods are 60 days,
60 days, and 180 days, respectively. (Rule 8.104(a).)
The case before us was an appeal from an administrative
hearing under section 52069.4; it had an amount in controversy
of less than $25,000; and it was designated a limited civil matter
from the outset. Accordingly, it is a limited civil case.
DELTA timely appealed that decision to the correct court.
The superior court’s notice of decision was issued on
September 24, 2021, and served the same day. DELTA
attempted to file a notice of appeal to the appellate division of the
superior court on October 22, 2021, before the 30-day deadline.
But the appellate division rejected the filing, explaining: “The
appellate division does not have jurisdiction over appeals
regarding administrative hearings. Please see local Rule, 2.7.”5
This was error.
In California, the right to appeal is statutory. (Superior
Wheeler Cake Corp. v. Superior Court (1928) 203 Cal. 384, 385;
accord, Powers v. City of Richmond (1995) 10 Cal.4th 85, 108.)
5 Local rule 2.7 provides that the appellate division of the
Los Angeles County Superior Court has jurisdiction over any
“Appeal from judgment or order in misdemeanor, infraction, and
limited civil case (except small claims case), from anywhere in
the county.”
9
The appellate division of the superior court has jurisdiction over
appeals in limited civil cases. (Code Civ. Proc., §§ 904.2
[“An appeal of a ruling by a superior court judge or other judicial
officer in a limited civil case is to the appellate division of the
superior court.”], 77, subd. (e).) This is a limited civil case.
As such, the appellate division has jurisdiction over this matter.
We do not. (Id., § 904.1, subd. (a) [“An appeal, other than in a
limited civil case, is to the court of appeal”].)6
3. This appeal is transferred to the appellate division.
Section 68915 provides: “No appeal taken to the Supreme
Court or to a court of appeal shall be dismissed for the reason
only that the same was not taken to the proper court, but the
cause shall be transferred to the proper court upon such terms as
to costs or otherwise as may be just, and shall be proceeded with
therein, as if regularly appealed thereto.” (§ 68915.) “While this
section does not specifically state a Court of Appeal may transfer
an appeal to the appellate division of the superior court, . . . our
inherent authority coupled with this statutory directive
empowers us to order transfer.” (People v. Nickerson (2005)
128 Cal.App.4th 33, 40.) Therefore, we transfer this appeal to the
appellate division of the Los Angeles Superior Court. (See, e.g.,
Martin v. Riverside County Dept. of Code Enforcement (2008)
166 Cal.App.4th 1406, 1408 [because the Court of Appeal “did not
have jurisdiction to hear the appeal of a limited civil case,” the
6 Even if the local rules did purport to exclude limited
administrative appeals from the appellate division’s
jurisdiction—which the local rules in Los Angeles do not—such a
provision would fall to basic principles of supremacy.
10
court “transferred the case to the appellate division of the
superior court”].)
DISPOSITION
The matter is transferred to the appellate division of the
Los Angeles County Superior Court. (§ 68915.) Each party shall
bear its own costs on appeal.
CERTIFIED FOR PUBLICATION
HARUTUNIAN, J.*
We Concur:
STRATTON, P. J.
GRIMES, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
11 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482423/ | Filed 11/8/22 In re E.W. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.W., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078652
Plaintiff and Respondent, (Super.Ct.No. J290018)
v. OPINION
A.H.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Richard D. Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for
Plaintiff and Respondent.
1
In this appeal from an order bypassing reunification services, defendant and
appellant A.H. (father) contends only that plaintiff and respondent San Bernardino
County Children and Family Services (the department) failed to comply with its duty of
further inquiry imposed by state statutory provisions implementing the Indian Child
Welfare Act of 1978 (25 U.S.C. §§ 1901 et seq.) (ICWA).
The department concedes that it did not comply with its duty of further inquiry and
that a limited remand is proper. We agree the department has yet to completely fulfill its
duty of further inquiry, but such a violation is not grounds for reversing the bypass order
or remanding the matter in this ongoing case. (See In re S.H. (2022) 82 Cal.App.5th 166
(S.H.).) Accordingly, we affirm.1
BACKGROUND
On August 2, 2021, the department filed a dependency petition on behalf of
father’s then three-year-old daughter E.W., pursuant to Welfare and Institutions Code2
section 300, subdivisions (b), (g), and (j). Mother informed the department that ICWA
may apply to E.W. through the Chickasaw tribe. Mother later denied she had any Indian
ancestry as far as she knew, as did a paternal aunt.
In late August, father told the department E.W. had Choctaw Indian ancestry. The
paternal grandmother said the paternal great-grandmother was Choctaw and buried on a
1 “In addition, because ICWA uses the term ‘Indian,’ we do the same for
consistency, even though we recognize that other terms, such as ‘Native American’ or
‘indigenous,’ are preferred by many.” (In re Benjamin M. (2021) 70 Cal.App.5th 735,
739, fn. 1.)
2 Undesignated statutory references are to the Welfare and Institutions Code.
2
reservation. She told the department to contact another paternal aunt, who might have
more information, but she did not have the paternal aunt’s phone number.
Later that month the court questioned father about his Indian heritage. Father said
he believed he had Chickasaw and Cheyenne heritage, and that E.W.’s paternal great-
grandmother was a registered member of a tribe. He also said the paternal aunt would
have more information, but when asked for her number provided paternal grandmother’s
instead. Father again claimed Chickasaw and Cheyenne ancestry on a form filed at the
end of the month.
Paternal grandmother informed the department that the paternal great-grandmother
was buried in the Riverside National Cemetery in an area designated for Choctaw
Indians. However, when the department called the cemetery, it said it had no area
designated for Choctaw Indians. The paternal grandmother was still unable to get in
contact with, or provide contact information for, the paternal aunt she and father
identified as potentially having additional information.
In December 2021, the department contacted the Choctaw Nation of Oklahoma.
The Choctaw Nation informed the department that neither father nor the paternal great-
grandmother were enrolled in the tribe, and that father would have to be enrolled for
E.W. to be a member.
In February 2022 the court sustained the petition and ordered family
reunification services for mother. It denied services for father pursuant to section 361.5,
3
subdivision (b)(10), because father previously failed to reunify with E.W.’s siblings. It
also found E.W. may come under ICWA.
Father appealed the order bypassing reunification services.
ANALYSIS
Father argues the department and the juvenile court did not comply with their duty
of further inquiry under ICWA. The department concedes it did not, and requests we
remand to allow them to do so. We agree that it has yet to fulfill that duty, but as we
explain, no reversal or remand is warranted under these circumstances.
Under California law, the juvenile court and county child welfare department have
“an affirmative and continuing duty to inquire” whether a child subject to a section 300
petition may be an Indian child. (§ 224.2, subd. (a); see In re D.F. (2020) 55 Cal.App.5th
558, 566.) “This continuing duty can be divided into three phases: the initial duty to
inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.” (In re
D.F., at p. 566.)
When the initial inquiry gives the juvenile court or social worker “reason to
believe that an Indian child is involved,” the court and social worker must conduct further
inquiry to “determine whether there is reason to know a child is an Indian child.”
(§ 224.2, subd. (e) & (e)(2).) There is reason to believe a child is an Indian child if the
court or the social worker “has information suggesting that either the parent of the child
or the child is a member or may be eligible for membership in an Indian tribe.” (§ 224.2,
subd. (e)(1).) Further inquiry includes, among other things, interviewing the parents and
4
extended family members, contacting the Bureau of Indian Affairs (BIA) and State
Department of Social Services, and contacting the tribe or tribes concerned. (§§ 224.2,
subd. (e)(2)(A)-(C).) The department “does not discharge their duty of further inquiry
until they make a ‘meaningful effort’ to locate and interview extended family members
and to contact BIA and the tribes. [Citation.] ‘[J]ust as proper notice to Indian tribes is
central to effectuating ICWA's purpose, an adequate investigation of a family member’s
belief a child may have Indian ancestry is essential to ensuring a tribe entitled to ICWA
notice will receive it.’ ” (In re K.T. (2022) 76 Cal.App.5th 732, 744 (K.T.).)
The department agrees with father that there is reason to believe E.W. is a member
of an Indian tribe. It also concedes it failed to meet its duty of further inquiry because it
had not contacted the Chickasaw or Cheyenne tribes, the Bureau of Indian Affairs, or any
extended paternal family members besides paternal grandmother and a paternal aunt.
The parties agree that this court should remand to allow the department to meet its duty
of further inquiry.
We applaud the department’s candor in conceding it has not discharged its duty
here. However, the procedural posture of the current appeal makes its requested remedy
inappropriate. Although there is a “split of authority as to whether a violation of the
ICWA constitutes jurisdictional error,” such that any violation requires reversal (In re
Brooke C. (2005) 127 Cal.App.4th 377, 384 (Brooke C.)), this court has previously
approved the approach articulated in Brooke C. (In re Jonathon S. (2005) 129
Cal.App.4th 334, 340.) Under that approach, in a dependency case, “the only order
5
which would be subject to reversal for failure to give notice would be an order
terminating parental rights.” (Brooke C., at p. 385.)3 Accordingly, reversing father’s
bypass order is not a proper remedy for the department’s conceded ICWA violations.
Nor is remand necessary. E.W.’s dependency matter will not end with this appeal.
The trial court has found that E.W. may be an Indian child, and therefore presumably
expects the department to continue its inquiry. The department remains able—and will
be expected—to fully comply with its duties under ICWA as the case progresses. Given
this, remand is unnecessary. (See S.H., supra, 82 Cal.App.5th at p. 176.)
Appellant’s counsel focuses on the need for a “solution” to the problem with
continual ICWA violations. We agree the matter is concerning, and that the Court of
Appeal should act to ensure agencies comply with their duty of inquiry in the first place.
(See K.T., supra, 76 Cal.App.5th at pp. 744-745 [“Over the past three years there have
been a significant number of cases from this county in which the failure to adequately
investigate ICWA’s application . . . . This is concerning, especially considering our
court’s admonishment from nearly a decade ago that we were ‘well past the stage of
“growing weary of appeals in which the only error is the [agency’s] failure to comply
with [ ] ICWA.” ’ ”].) With this case ongoing, however, we need not remand here.
3 Although Brooke C. involved ICWA’s notice provisions, we see no reason why
its rationale should not extend to the duty of further inquiry.
6
DISPOSITION
We affirm the order bypassing family reunification services.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
7 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486971/ | OPINION AND ORDER
Introduction
Pitoitua Maeli, an inmate at the Territorial Correctional Facility, is charged with first degree murder and first degree assault after taking one inmate's life and another's hand during an altercation at the Tafuna Correctional Facility. Waiving jury trial, the defendant opted for a bench trial which was held September 13-15,2005.
Independent third-party testimonial accounts of eye-witnesses, together with the substantiating findings of a medical expert, showed beyond a reasonable doubt that late in the afternoon of January 23, 2004, Maeli killed Senetala Lavasi'i after striking the latter about his body with a bush-knife. The critical blow, according pathologist, Dr. Amor Gonsalves, of the LBJ Tropical Medical Center, was a "chopped or hacked wound" to the right side of the decedent's head, the right parietooccipital area, that exposed "macerated" brain tissue. Dr. Gonsalves confirmed that this sort of wound was consistent with being struck forcefully by an object such as bush-knife. We accept and adopt Dr. *264Gonsalves' findings as to the ultimate cause of death.
We are further satisfied that on the same date and around the same time and place, Maeli also swung the same bush-knife at Lomiga Tautalaaso with such force as to completely sever all of Tautalaaso's left hand, but his thumb.
Discussion
I. Count I — Murder
Maeli concedes criminal homicide, but argues that: 1) the deliberation element required for first degree murder is lacking, and 2) that he is at best only guilty of manslaughter pursuant to A.S.C.A. § 46.3504. This enactment states that:
(a) Criminal homicide constitutes manslaughter when:
(1) it is committed recklessly; or
(2) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse; the reasonableness of the explanation or excuse is determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be [; or]
(3) at the time of the killing, he believes the circumstances to be that, if they existed, would justify the killing under 46.3301 et seq., but his belief is unreasonable.
A.S.C.A. § 46.3504 (emphasis added).
Other states and territories have manslaughter statutes containing almost identical language to A.S.C.A. § 46.350461 and their interpretations are instructive as to when, and under what circumstances the mitigation of extreme mental or emotional disturbance should apply. For example, Guam's manslaughter statute provides that a criminal homicide is manslaughter when a killing that would otherwise be considered murder "is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse." 9 G.C.A. § 16.50.62
*265Guam, however, has held that the mitigation is not available in situations where the homicide evidenced premeditation or deliberation. People of Territory of Guam v. Quichocho, 973 F.2d 723 (9th Cir. 1992). In Quichocho, the defendant appealed after being convicted of aggravated murder, arguing that the trial court erred in failing to properly instruct the jury on the above manslaughter defense/mitigation. Id. at 724. On appeal, the Ninth Circuit affirmed, holding that jurors had no reason to consider the issue. Id.
The Ninth Circuit's holding turned on two key issues. First, that Quichocho was convicted of aggravated murder (in Guam, aggravated murder is a homicide committed intentionally with premeditation).63 Second, the panel conducted a thorough review of Model Penal Code § 210.3, which explained that "extreme mental and emotional disturbance" is a modified version of the traditional notion of "passion and provocation." As such, the statute takes into account the actor's subjective state of mind. Id., citing Model Penal Code § 210.3, Commentary at 62-64 (Proposed Official Draft 1963). Like common law "passion and provocation," the Ninth Circuit held that the Model Penal Code notion of "extreme mental and emotional disturbance" was entirely at odds with premeditation and deliberation. Id. "Extreme mental or emotional disturbance," the court held, presupposes a degree of emotional agitation that is inconsistent with premeditation, calculation, or the exercise of self-control. Id.
In other words, a finding of deliberation is mutually exclusive to the mitigation claim. You are either deliberate, or you are agitated and/or emotionally disturbed to the point of losing self-control, but you cannot be both at the same time.
Because the Quichocho jury found the premeditation and deliberation elements of aggravated murder had been satisfied, it could not have found that the defendant acted under an extreme mental or emotional disturbance. Because the jury had no reason to consider the question, the court's omission in instructing the jury on the issue was moot. Id. at 726.
Similarly, in Hawaii, premeditation or deliberation necessarily cancels out the extreme emotional distress/disturbance mitigation. Hawaii's murder to manslaughter mitigation statute is identical to A.S.C.A. § 46.3504. It provides that murder can be reduced to manslaughter if:
the defendant was, at the time he caused the death of the other person, under the influence of extreme mental or emotional *266disturbance for which there is a reasonable explanation. The reasonableness of the explanation shall be determined from the viewpoint of a person in the defendant's situation under the circumstances as he believed them to be.
HRS § 707-702(2) (Supp.1991).
According to the Hawaii courts, the statute's roots are lodged in the common law where a person who "kill[ed] another without malice aforethought, under the sudden impulse of passion, excited by provocation or other adequate cause, by the party killed, of a nature tending to disturb the judgment and mental faculties, and weaken the possession of self-control of the killing party, [was] not guilty of murder, but manslaughter." State v. Russo, 734 P.2d 156 (Haw. 1987). Like Guam, Hawaii's manslaughter statute was taken almost verbatim from Model Penal Code § 210.3.
Interpreting this statute, Hawaii courts held that "extreme emotional disturbance is the emotional state of an individual who ... has an extreme emotional reaction to [extremely unusual and overwhelming stress], as a result of which there is a loss of self-control and reason is overborne by intense feelings." State v. Matias, 840 P.2d 374(Haw. 1992) (internal quotations omitted). In other words, the actor must demonstrate a lack of self-control and must evidence being overborne by intense emotions.
Hawaii's case law leaves no doubt that the question of a killer's self-control, or lack of it, at the time of the killing is a significant, even determining, factor in deciding whether the killer was under the influence of an extreme emotional disturbance such that his conduct would fall under HRS § 707-702(2). In State v. Pinero, 778 P.2d 704 (Haw. 1989), the court commented on HRS § 707-702(2) and indicated that the loss of self-control on the part of the killer was at the core of the court's definition. They stated the offense "has been characterized as 'voluntary manslaughter [because it] involves the intentional [or knowing] killing of another while under the influence of a reasonably induced [extreme mental or] emotional disturbance ... causing a temporary loss of normal self-control." 778 P.2d at 714 (emphasis added) (alteration in original) (citation omitted).
Thus, in Hawaii, like in Guam, evidence of deliberation, premeditation, or self-control, renders the manslaughter mitigation claim unavailable.
We find the experience of these jurisdictions to be persuasive and accordingly hold, as has Hawaii and Guam, that where the evidence supports a finding of deliberation or the exercise of self-control, then A.S.C.A. § 46.3504 does not apply.
In American Samoa, deliberation means that the defendant acts *267"with either the intention or the knowledge that he will kill another human being ... when the intention or knowledge precedes the killing by an appreciable length of time to permit reflection." A.S.C.A. § 46.3502(b).
Here, the evidence was abundantly clear that Maeli had the intention and knowledge that he will kill the decedent. At the root of the tragedy was a rivalry between Maeli and the decedent for the affections of another female inmate, Salina Ropati, whom Maeli regarded, and does so to this day, as his wife. According to Ropati, she and Maeli had, prior to the incident in question, twice consummated their defacto relationship as husband and wife by having sex.64 At sometime thereabouts, however, the decedent also tried to court Ropati by propositioning her at every available opportunity, exhorting Ropati to drop Maeli and to have him as her paramour. According to Ropati, she consistently rebuffed the decedent's overtures by declaring to him her love for Maeli. Subsequently, Maeli got to learn of the decedent's covetous attempts, and as Maeli candidly admitted on the stand, jealousy got the better of him. Maeli gave as his reason for the attack on the decedent, was his wounded or hurt feelings.
Evincing intent and knowledge on the part of the defendant are the following: after finding out about the decedent's advances toward his girlfriend, Maeli announced that he was going to kill the decedent and himself later that day, after he, the defendant, returned from his hospital appointment, as established by the credible testimony of Lomiga Tautalaaso. The latter considered this uttered threat serious enough to report it to Officer Sianava Nu'usila, who confirmed receiving such a report from Tautalaaso. After the cooling off period involving the defendant's hospital visit, Officer Nu'usila summoned both the decedent and Maeli, who reassured both Officer Nu'usila and the decedent that there was nothing further between the two of them. Another cooling off opportunity arose, during which the defendant managed to secure a long and heavy bush-knife (in a prison setting) which he strategically concealed in his clothing, not only from the decedent, but apparently from a number of other witnesses who saw the decedent walk with Maeli toward the main office, passing in front the women's cell block where Ropati was housed. Intent and knowledge was also clearly evinced by Maeli's own actions, immediately prior to the assault, when he ostentatiously lifted his hand and pointed his index finger to the women's cell block, as he and the decedent approached in front of the same, and then pointing again directly at the decedents head, as testified to and demonstrated by Lomiga Tautalaaso, immediately before the defendant struck the first blow directly at the decedent's head.
*268And intent to kill, as well as knowledge, was clearly subsequently corroborated by the viciousness and force of the first blow of the bush-knife to Senetala Lavasi'i's head. The defendant's design at that time was unequivocally clear, a fatal blow at close range, in circumstances where the decedent did not even have the chance to see what was coming; the decedent was effectively ambushed. The continued viciousness of the attack with the bush-knife on the fallen and prostrate form of the decedent — as credibly testified to by inmates Tautalaaso, Heki Toefo'i, and Ropati, as well as by Officers Sianava Nu'usila, Junior Utuga, and Alfred Te’o — is also clearly corroborative of a preconceived intent to kill on the defendant's part. Finally, the defendant's equally forceful and vicious attacks on Officer Nu'usila and then on Lomiga Tautalaaso, after their apparent attempts to intervene, also corroborates the defendant's intention to kill the decedent (Maeli was not thwarted in his purpose and plan to kill Senetala Lavasi'i).
The events of January 23, 2004 — threatening to kill the victim followed by separate cooling-off periods, securing the knife, seeking out the victim again and eventually ambushing him — clearly evidenced deliberation and self-control. These were not the actions of a person who was temporarily overcome by intense emotions causing a temporary loss of self-control. Thus, the manslaughter mitigation provided by A.S.C.A. § 46.3504(a)(2) is inapplicable in this case.
We conclude Murder in the First Degree, and find the defendant Pitoitua Maeli guilty thereof as charged.
II. Count II — Assault
With Count II, Maeli similarly concedes guilt to the lesser offense of Assault in the Second Degree, under A.S.C.A. § 46.3521. See Defendant's Trial Brief at p.9. As with Count I, Maeli also seeks to invoke similar "extreme emotional disturbance" mitigation proviso contained in § 46.3521(l-3)(a)(A), and/or "justification" under subparagraph (B) of the same enactment.65 Under either scenario, the *269defendant has the burden of injecting the issue. A.S.C.A. § 46.3521(b).
The whole basis of Maeli's claim to mitigation under the extreme emotional disturbance and justification headings was his testimony to the effect that as he was falling down at one point during the altercation, with rocks flying all around from other inmates on the playing field, he caught a glimpse of an advancing Tautalaaso about to throw a rock at him; and that as he fell, he managed to "stab" at Tautalaaso with the bush knife.
We did not find Maeli to be credible and accordingly found his claim entirely unbelievable. To the contrary, we are convinced that Tautalaaso was attacked not in self defense, as claimed, but because he was getting in Maeli's way with the decedent, just as Officer Nu'usila was also attacked beforehand by Maeli in a similar fashion when the latter attempted to intervene. But for his quick evasive action, coupled with Tautalaaso's fortuitous arrival on the scene as well as the distraction caused by other inmates on the playing field hurling rocks at the defendant, Officer Nu'usila managed to escape unharmed. Tautalaaso, however, was not so fortunate when he lost the hand that he had held up to protect his head.
Moreover, the condition of Tautalaaso's right-hand shortly after the time of incident, as depicted by the photographic exhibits, and its condition as subsequently shown to us at trial, starkly contradicts a mere stabbing claim with the bush knife. His hand was cleanly severed because of the ferocity of Maeli's cutting stroke with the bush-knife. The exact same ferocity visited the decedent and Officer Nu'usila. We find nothing defensive at all with the defendant's attack on Tautalaaso.
Accordingly, we find the defendant guilty as charged of the offense of Assault in the First Degree (with a deadly weapon or dangerous instrument). Judgment will enter accordingly. It is so ordered.
These statutes virtually repeat verbatim the language of section 210.3 of the Model Penal Code.
9 GCA § 16.50(a) provides that criminal homicide constitutes manslaughter when:
(1) it is committed recklessly; or
(2) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance *265for which there is reasonable explanation or excuse.
See, 9 G.C.A. § 16.30
How prison circumstances allowed conjugal access was not revealed on the evidence.
A.S.C.A. § 46.3521 — Assault in the 2nd degree.
(a) A person commits the crime of assault in the 2nd degree if:
(3) he attempts to kill or cause serious physical injury or causes serious physical injury under circumstances that would constitute assault in the 1st degree under 46.3520, but:
(A) acts under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse; the reasonableness of the explanation or excuse is determined from the viewpoint of an ordinary person in the actor’s situation under the circumstances as the actor believes them to be; or
(B) at the time of the act, he believes the circumstances to be that, if they existed, would justify killing or inflicting serious *269physical injury under the provisions of 46.3301 et seq.. but his belief is unreasonable. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486972/ | ORDER IMPOSING DISCOVERY SANCTIONS
Introduction
This order pertains to Plaintiff Progressive Insurance Company (Pago Pago) Limited’s (“Progressive”) filed motions on July 12, 2005, asking the Court to: (1) compel the response by Defendant American Samoa Government (“ASG”), overdue by 46 days as of July 12, 2005, to Progressive’s sixth set of interrogatories served on April 27, 2005; (2) require ASG to substantiate the reason for the failure of Captain Clifford O’Brien (“O’Brien”) of ASG’s Department of Public Safety Fire Bureau to attend his deposition on July 9, 2005, as required by the Court’s order of June 10, 2005; and (3) to impose sanctions for O’Brien’s failure to attend his deposition on July 9. On July 19, 2005, we conducted a hearing on the motions. Counsel for Progressive and ASG participated in the hearing.1
Discussion
I. Legal Standard
T.C.R.C.P. 37(d)(1) and (d)(2) permit sanctions for failure to attend one’s deposition after proper notice, and for failure to serve answers to interrogatories, unless the court finds the opposition to be justified or that other circumstances make an award of expenses unjust. Evaluation of the circumstances rendering an award of expenses just or unjust is committed to the sound discretion of the court. See In re Multi-Piece Rim Products Liability Litigation, 653 F.2d 671, 680 (D.C. Cir. 1981).
*272In exercising discretion to award sanctions under Rule 37, a court may consider: (1) the willfulness and bad faith of the non-compliant party, or the reasons for non-compliance; (2) the history, if any, of noncompliance; (3) the efficacy of lesser sanctions; (4) the prejudice to the moving party; (5) whether the non-compliant party had been warned of the possibility of sanctions, and (6) the court’s need to deter discovery abuse and efficiently control its docket. See In re Sumitomo Copper Litigation, 204 F.R.D. 58, 60 (S.D.N.Y. 2001). Courts should also keep in mind that sanctions under Rule 37 are meant not only to penalize improper conduct, but also to deter those who might be tempted to engage in such conduct in absence of such deterrent. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976).
II. Interrogatories
On July 19, 2005, just before the motion hearing, ASG finally filed answers to Progressive’s sixth set of interrogatories. However, ASG cannot avoid sanctions by filing a response that should have been made earlier. Although we may consider delinquent responses in determining what sanction, if any, to impose, Rule 37 does not become inapplicable because ASG’s response was filed before the hearing on motion. See Antico v. Honda of Camden, 85 F.R.D. 34, 36 (E.D. Penn. 1979). Thus, despite filing its response before the hearing, we find ASG’s response to discovery interrogatories to be extremely tardy, as it has been in responding to earlier sets of interrogatories.2
In our May 19 order, we held that ASG’s delay in responding to Progressive’s interrogatories did not require sanctions, as the delays were not tactical or made in bad faith. We recognized, as we do now, that during the early days of ASG’s current administration, ASG’s Office of the Attorney General suffered staffing shortages, which placed difficult and stressful conditions on the few attorneys available to prioritize and properly handle the ongoing civil and criminal caseload. Indeed, the attorney staff has only recently increased to a level reasonably permitting a more effective allocation of active cases. Accordingly, we found that staffing shortages in the ASG’s office limited ASG’s ability to provide more timely responses. Thus, while the May 19 order compelled ASG to respond to earlier sets of interrogatories, it did so without any immediate sanctions.
However, we feel that ASG’s most recent failure to respond to interrogatories is sufficiently abusive to warrant sanctions. Even though ASG’s counsel now undertaking this case is an experienced civil trial attorney who has shown that he is taking steps necessary to properly *273represent ASG, ASG had clearly been warned about the consequences of future discovery abuse.3 Moreover, given the history of ASG’s noncompliance, combined with the conduct now complained of, ASG’s failure to comply with discovery rules now takes on a “willful” or “bad faith” character. Lastly, it is apparent that lesser sanctions have been ineffective in deterring ASG’s discovery abuse.
Thus, while we may have found prior misconduct excusable, we feel that without sanctions discovery in this case will continue to be ineffectual. At some point, the ongoing prejudice done to Progressive— including considerable delay, the expense and time involved with filing multiple motions to compel, and having to proceed with incomplete information-warrants punishment. See Bratka v. Anheuser-Busch Co., 164 F.R.D. 448, 463 (S.D. Ohio 1995) (parties cannot be permitted to jeopardize integrity of discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents). By imposing sanctions, we hope to deter future discovery abuses and eliminate from the calendar future motions to compel discovery.
Having found sanctions against ASG appropriate, and in accordance with Rule 37(d)(2), ASG is required to pay $500.00 to Progressive towards its expenses in connection with enforcing ASG to respond to Progressive’s sixth set of interrogatories. We believe such an amount constitutes “reasonable expenses” within the meaning of the Rule.
III. Deposition of O’Brien
O’Brien’s actions that give rise to the present motion are not an isolated event. To date, O’Brien has failed to attend two noticed depositions and one deposition ordered by the Court. Initially, on December 2, Progressive noticed his deposition for January 8, 2005. Eleven days prior to the deposition, on December 28, 2004, ASG notified Progressive that O’Brien would be off-island attending to his sick granddaughter. Subsequently, on January 24, Progressive noticed his deposition for February 12. Five days prior to the deposition, on February 8, ASG advised that O’Brien was off-island, but was unsure of his whereabouts.
*274On March 30, ASG notified Progressive that O’Brien was back on-island. Immediately after the May 17 hearing, counsel for all parties participated in a telephonic conference to discuss new deposition dates. Counsel for all parties agreed, inter alia, that O’Brien would be deposed on July 9. Progressive sent a stipulation and order memorializing agreements made in the telephonic conference. All parties except ASG returned their signatures to the stipulation. On May 25, Progressive filed a motion to compel O’Brien’s deposition and impose sanctions for O’Brien’s repeated no-shows. The Court granted Progressive’s motion to compel O’Brien to attend his July 9 deposition in our June 10 order. Yet, again, O’Brien failed to attend the deposition. On this occasion, ASG reported that O’Brien had missed his deposition in order to attend a family funeral.
In total, Progressive has tried unsuccessfully for 7 months to depose O’Brien. O’Brien’s continual failure to appear at his deposition evidences the absence of good faith on the part of O’Brien and ASG. It also demonstrates a lack of respect for the seriousness of its duties under the T.C.R.C.P. and the importance of full and fair discovery under the Rules. O’Brien’s and ASG’s failure to cooperate with discoveiy has not only caused substantial delay, expense and inconvenience, but has also threatened the reliability of the fact-finding process. Without compliance with discovery rules, we cannot ensure that cases are decided on their merits after consideration of all relevant evidence bearing on the party's claims.
If this were the first time O’Brien had failed to attend his deposition, and he had good reason not to be there, we might be more lenient. But this is not the case. Regardless of the state of affairs surrounding his latest absence (July 9), when coupled with his previous lack of attendance, O’Brien’s current disobedience warrants sanctions. Only under extraordinary circumstances can a party ignore two noticed depositions, then fail to comply with a third court-ordered deposition, and expect not to be sanctioned.
Because ASG has not produced evidence illustrating such extraordinary circumstances, we find sanctions against ASG appropriate, and in accordance with Rule 37(d)(1), ASG is required pay $500.00 to Progressive towards its expenses in connection with ASG’s failure to produce O’Brien at the July 9 deposition. Again, we believe such an amount constitutes “reasonable expenses” within the meaning of the Rule.
Lastly, we address Progressive’s request that ASG substantiate O’Brien’s failure to attend the July 9 deposition. Because ASG adequately addressed this issue at the July 19 hearing, we find it unnecessary for *275ASG to give any further explanation.
Order
For the reasons mentioned above, we grant Progressive’s motion for sanctions against ASG for its failure to respond to interrogatories. We also grant Progressive’s motion for sanctions against ASG for its failure to produce O’Brien for the July 9, 2005 court-ordered deposition. Accordingly, ASG is required to pay Progressive reasonable expenses in the amount totaling $1,000.00 for ASG’s discovery failures. However, we deny Progressive’s motion to require ASG to further substantiate O’Brien’s absence from his July 9 deposition.
In order to facilitate and discourage further delay in deposing O’Brien, we invite Progressive to once again move for an order compelling his deposition at a scheduled date, time and place.
It is so ordered.
On September 2, 2005, the parties stipulated to dismissal with prejudice Defendants American Samoa Power Authority of the American Samoa Government and National Pacific Insurance Limited. Thus, ASG remains the sole defendant in this case.
See the Court’s Order of May 19,2005, supra, at pp. 165-6.
See the Court’s of May 19, 2005 Order, supra, at 166 (“ASG should now be aware of the Court’s concern, and will presumably take affirmative steps to prevent any recurrence of delays in order to avoid the future risk of sanctions”). Thus, ASG well knew that its failure to properly discharge its duties with respect for discovery could result in sanctions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482354/ | Case: 22-10515 Document: 00516537499 Page: 1 Date Filed: 11/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10515
Summary Calendar FILED
November 8, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Tania Delarosa,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-195-1
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
The Federal Public Defender appointed to represent Tania Delarosa
has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). Delarosa has not filed a response. We have reviewed
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-10515 Document: 00516537499 Page: 2 Date Filed: 11/08/2022
No. 22-10515
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous
issue for appellate review. Accordingly, counsel’s motion for leave to
withdraw is GRANTED, counsel is excused from further responsibilities
herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
2 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482364/ | USCA11 Case: 22-10932 Date Filed: 11/08/2022 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10932
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIUS SOWAH OKANG,
a.k.a. Michael J. Casey,
a.k.a. Richard Resser,
a.k.a. Thomas Vaden,
a.k.a. Michael Lawson,
a.k.a. Matthew Reddington,
a.k.a. Michael Little,
USCA11 Case: 22-10932 Date Filed: 11/08/2022 Page: 2 of 3
2 Opinion of the Court 22-10932
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cr-00114-WMR-CCB-1
____________________
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Darius Sowah Okang appeals his 94-month sentence for one
count of money laundering conspiracy and one count of aggra-
vated identity theft. On appeal, he argues that his total sentence is
substantively unreasonable because it did not take into account his
minimal role in the offense conduct and his lack of a criminal rec-
ord. The government, in turn, moves to dismiss his appeal pursu-
ant to a sentence appeal waiver.
The record shows that, during the plea hearing, the district
court explained to Okang that he could appeal only under the fol-
lowing three exceptions: (1) if he received an above-guidelines sen-
tence; (2) if the government appealed; or (3) if he believed that his
counsel had provided constitutionally ineffective assistance. The
district court asked Okang if he understood that, other than those
exceptions, he was giving up his right to appeal. Okang confirmed
that he understood the waiver. Okang’s attorney also confirmed
USCA11 Case: 22-10932 Date Filed: 11/08/2022 Page: 3 of 3
22-10932 Opinion of the Court 3
that he had discussed the appeal waiver with Okang and that
Okang was making an informed and voluntary decision to plead
guilty and sign the plea agreement.
Okang pled guilty and testified that he was doing so freely
and voluntarily. The district court found that he was fully compe-
tent, understood the consequences of his plea, and was pleading
guilty knowingly and voluntarily. The district court then accepted
the plea.
Because Okang knowingly and voluntarily entered his ap-
peal waiver after confirming that he had read and understood the
plea agreement, and his arguments on appeal do not fall into one
of the three listed exceptions contained in the plea agreement, the
Government’s motion to dismiss this appeal pursuant to the appeal
waiver in Appellant’s plea agreement is GRANTED, and the appeal
is DISMISSED. See United States v. Bushert, 997 F.2d 1343, 1350–
51 (11th Cir. 1993) (a sentence appeal waiver will be enforced if it
was made knowingly and voluntarily); United States v. Bascomb,
451 F.3d 1292, 1297 (11th Cir. 2006) (“[An] appeal waiver cannot be
vitiated or altered by comments the court makes during sentenc-
ing.”); United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th
Cir. 2005) (the waiver of the right to appeal includes waiver of the
right to appeal difficult or debatable legal issues or even blatant er-
ror). | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482365/ | Filed 11/8/22 P. v. Rodriguez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B315335
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA092986
v.
DAVID ERNESTO RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David Walgren, Judge. Affirmed.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
INTRODUCTION
When defendant David Rodriguez believed his wife was
cheating on him with a neighbor, he partially decapitated her
with a machete. Then, he broke down the neighbor’s door and
tried to kill him too. He was stopped when the neighbor’s family
intervened, but he injured the neighbor’s wife and son in the
process. On appeal, defendant contends that we should remand
for resentencing of one of the assault counts under Senate Bill
No. 567 (2021–2022 Reg. Sess.), which limits the court’s use of
aggravating factors to impose an upper-term sentence. We
conclude, based on the undisputed evidence at trial, that the jury
would unquestionably have found that the victim was unusually
vulnerable when she was attacked because she was asleep in her
home when the attack began. We therefore affirm.
PROCEDURAL BACKGROUND
By information dated April 26, 2021, defendant was
charged with one count of murder (Pen. Code,1 § 187, subd. (a);
count 1); one count of premeditated attempted murder (§ 664/187,
subd. (a); count 2); two counts of assault with a deadly weapon
(a machete) (§ 245, subd. (a)(1); counts 3–4); two counts of
mayhem (§ 203; counts 5–6); and one count of first degree
burglary (§ 459; count 7).2 As to counts 1, 2, 5, and 6, the
information alleged that defendant had personally used a
1 All undesignated statutory references are to the Penal
Code.
2 On July 19, 2021, the information was amended by
interlineation to correct the name of the victim in counts 4 and 6.
2
machete in the commission of the offense (§ 12022, subd. (b)(1)).
As to counts 2, 3 and 4, the information alleged defendant
personally inflicted great bodily injury during the commission of
the offense (§ 12022.7, subd. (a)). As to count 7, the information
alleged that a person other than an accomplice was present
during the commission of the offense (§ 667.5, subd. (c)).
Defendant pled not guilty and denied the allegations.
After several continuances due to the Covid-19 pandemic
and a jury trial at which he did not testify, the jury found
defendant guilty of counts 1–5 and 7 and found the related
allegations true. The jury found defendant not guilty of mayhem
under count 6.
The court sentenced defendant to an aggregate term of 46
years to life. For the indeterminate part of the sentence, the
court sentenced defendant to 37 years to life. The court imposed
26 years to life for count 1—25 years to life for premeditated
murder (§ 187, subd. (a)), plus one year for the weapon
enhancement (§ 12022, subd. (b)(1)). The court imposed 11 years
to life for count 2—a life term for attempted murder (§ 664/187,
subd. (a)), plus three years for the great bodily injury
enhancement (§ 12022.7, subd. (a)) and one year for the weapon
enhancement (§ 12022, subd. (b)(1))—to run consecutively to
count 1 and to each other.
The court imposed a consecutive nine-year term for the
determinate sentence. The court selected count 3 as the base
term and imposed seven years—the upper term of four years for
the assault (§ 245, subd. (a)(1)) plus three years for the great
bodily injury enhancement (§ 12022.7, subd. (a)). The court
imposed two years for count 4—one-third the mid-term of three
years for the assault plus one-third of the three-year term for the
3
great bodily injury enhancement—to run consecutively. Finally,
the court stayed counts 5 and 7 under section 654.
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
Defendant and Karla Rodriguez were married for 16 years
and had three children. They lived in an apartment in Los
Angeles. Rosa and Javier Orellana lived in the same apartment
complex; they also have three children. Javier and defendant
had known each other since they lived in El Salvador.
Defendant suspected Karla of having affairs with other
men, including with Javier. He told police that he had put up
with Karla’s behavior for years. He believed Karla brought other
men to the apartment for sex, and his youngest son was fathered
by someone else. Police found no evidence to support defendant’s
accusations of infidelity. To the contrary, the investigation
revealed “that Karla was a dedicated mother and wife to
[defendant], that she never strayed or had any type of affair with
anyone.”
Nevertheless, starting in December 2018, defendant began
accusing Javier of trying to take Karla away from him. Javier
had not been seeing Karla; he wouldn’t even talk to her. But
defendant repeated the accusation a half-dozen separate times.
On one occasion, when defendant and Javier were driving
separate cars, defendant honked at Javier and told him to pull
over. Defendant accused Javier of having Karla with him and
demanded to search the car. After a thorough search—including
under the floor mats—defendant calmed down. Another time,
defendant called Javier and demanded to search his apartment
for Karla. Again, he searched everywhere.
4
Defendant told police he had repeatedly confronted Karla
and asked her to tell him the truth about Javier and the other
men she had been seeing, but she always denied his accusations.
He had never caught her in the act, so he hid recorders and
phones around the apartment to monitor her activities. All day
long, Karla would say, “Come on over. Come on over. He’s gone
now.” She and the other men mocked him. But when defendant
presented her with the recordings, Karla got angry and said he
was crazy. Defendant said she refused to admit what she was
doing.
According to defendant, on June 21, 2019, he had been
listening to the recordings of Karla speaking to the other men.
So he went to his car and took a machete out of the trunk.3 Then,
he returned to the apartment and told Karla that if she didn’t
admit the affair, he would kill Javier. But Karla continued to
deny it. According to defendant, she got angry, lunged at
defendant, and tried to grab him by the throat.
At 1:22 a.m., Karla called 911. The 911 call was played for
the jury and admitted into evidence. She said, “my husband is
threatening me here. He’s—he’s saying that I have men and he
wants to kill me . . . .” Karla could be heard screaming
hysterically for help before the call went silent. Video footage
from the apartment building showed Karla fleeing the apartment
and running down the stairs to the courtyard. Defendant
pursued her, holding the machete. When Karla reached the
bottom of the stairs, she tripped and fell; defendant caught up
and struck her with the machete multiple times, nearly severing
3 The jury was shown surveillance footage of defendant
retrieving the machete.
5
her head. The parties stipulated that Karla died from multiple
sharp-force injuries to the neck.
After attacking Karla, defendant went upstairs and kicked
down Javier’s locked front door. Rosa and Javier were asleep on
a pull-out sofa in the living room; their three children slept in the
bedroom. Defendant later admitted that he went to the
apartment to kill Javier. He rushed through the door and
immediately attacked Javier with the machete, slashing Javier
nine times across the face and body.
Rosa tried to defend Javier by grabbing defendant’s hands,
at which point he hit her with the machete as well. The cut to
Rosa’s head required 11 stitches and left a scar. At that point,
the children emerged from the bedroom. Defendant was still on
top of Javier, slashing at him with the machete, when the oldest
son, Erick, intervened. Erick first tried to wrench the machete
out of defendant’s hands. When he was unsuccessful, Erick
threw himself against defendant, knocking him off the bed, then
grabbed defendant by the ankles and dragged him out of the
apartment. Erick called 911 at 1:31 a.m., and the family waited
for the police to arrive.
Javier was in agony. The skin on the right side of his face
was hanging off. His arm was hanging, and his back was sliced
up. He was bleeding profusely. Erick suffered permanent
damage to four of his fingers, which required surgery.
Meanwhile, after Erick dragged him from the apartment,
defendant went back to the courtyard and sat on a bench. He
could see Karla lying on the ground and thought she might still
be alive, but he did not try to help her.
The police arrived at the apartment building at 1:28 a.m.
Two minutes later, at 1:30 a.m., they met defendant at the
6
building’s locked front gate. Defendant let them in. He was
covered in blood. When officers asked defendant what had
happened, he replied, “I killed them.” Defendant was placed
under arrest.
Officers discovered Karla, dead, in the courtyard.
Defendant then directed the officers to Javier, whom they located
at 1:37 a.m. An 18-inch machete was recovered from the scene.
Defendant was advised of his constitutional rights and gave
a lengthy statement to the police.4 The recording was admitted
into evidence and played for the jury.
When Javier woke up in the hospital, he could not
remember anything about the attack. He could not feel his left
hand or his face; he has since regained only partial feeling.
Javier also lost his right eye—the socket is now filled with a
plastic replacement—and suffered multiple scars to the arms and
torso. Javier spent two weeks in the hospital. He continues to
have difficulty breathing.
DISCUSSION
Defendant contends this case must be remanded for
resentencing because a recent change in the law has rendered
unlawful his upper-term sentence for count 3, the assault on
Rosa. The People properly concede the retroactivity of the
amended statute but argue that resentencing is not required
because there is undisputed evidence of the aggravating factors
upon which the court relied. We agree with the People.
4 Defendant did not challenge the admissibility of this
statement either below or on appeal.
7
1. Senate Bill No. 567 applies retroactively to defendant.
In Cunningham v. California (2007) 549 U.S. 270
(Cunningham), the United States Supreme Court held that
California’s procedure for selecting upper-term sentences under
the Determinate Sentencing Law, former section 1170,
subdivision (b), violated criminal defendants’ Sixth and
Fourteenth Amendment rights to a jury trial because it gave “to
the trial judge, not to the jury, authority to find the facts that
expose a defendant to an elevated ‘upper term’ sentence.”
(Cunningham, supra, at p. 274.) The court explained that “the
Federal Constitution’s jury-trial guarantee proscribes a
sentencing scheme that allows a judge to impose a sentence
above the statutory maximum based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.”
(Id. at pp. 274–275.)
In response to Cunningham, the Legislature amended the
Determinate Sentencing Law to eliminate the requirement of
judicial fact-finding to impose a lower or upper term and to grant
judges the discretion to select any term within the statutory
range. (Stats. 2007, ch. 3, § 2.) Thus, when defendant was
sentenced in this case, the trial court had broad discretion to
decide which of the three terms specified for count 3 would best
serve the interests of justice. (See § 1170, subd. (b), as amended
by Stats. 2020, ch. 29, § 14; Cal. Rules of Court, rule 4.420(e).)
In making its selection, the court could consider the
circumstances in aggravation or mitigation (as defined by
rules 4.421 & 4.423) “and any other factor reasonably related to
the sentencing decision.” (Rule 4.420(d).)
Effective January 1, 2022, however, the Legislature
amended the Determinate Sentencing Law again—this time to
8
make the middle term of imprisonment the presumptive
sentence. (See § 1170, subd. (b)(2), as amended by Senate Bill
No. 567 (2021–2022 Reg. Sess.), Stats. 2021, ch. 731, § 1.3.)
Under the amended statute, the trial court may impose an upper-
term sentence only where there are aggravating circumstances in
the crime, and the defendant has either stipulated to the facts
underlying those circumstances or the trier of fact has found
them true beyond a reasonable doubt. (§ 1170, subds. (b)(1)–(2),
as amended by Stats. 2021, ch. 731, § 1.3.)5
We “assume, absent evidence to the contrary, that the
Legislature intended an ‘amended statute to apply to all
defendants whose judgments are not yet final on the statute’s
operative date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337,
341.) “For the purpose of determining the retroactive application
of an amendment to a criminal statute, the finality of a judgment
is extended until the time has passed for petitioning for a writ of
5 As amended, section 1170 provides that a trial court “may
impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial. Except where evidence supporting an aggravating
circumstance is admissible to prove or defend against the charged
offense or enhancement at trial, or it is otherwise authorized by
law, upon request of a defendant, trial on the circumstances in
aggravation alleged in the indictment or information shall be
bifurcated from the trial of charges and enhancements. The jury
shall not be informed of the bifurcated allegations until there has
been a conviction of a felony offense.” (§ 1170, subd. (b)(2), added
by Stats. 2021, ch. 731, § 1.3.)
9
certiorari in the United States Supreme Court.” (Id. at pp. 341–
342, citing People v. Vieira (2005) 35 Cal.4th 264, 305–306.)
The parties agree that the amendments to the Determinate
Sentencing Law apply retroactively to defendant because his
conviction was not final when the legislation took effect. (People
v. Flores (2022) 75 Cal.App.5th 495, 500.) The People argue,
however, that remand is unnecessary because the error was
harmless.
2. Remand is not required.
Error in relying on facts not found by the jury to impose an
aggravated term is subject to review under the harmless error
standard of Chapman v. California (1967) 386 U.S. 18, as applied
in Neder v. United States (1999) 527 U.S. 1 and Washington v.
Recuenco (2006) 548 U.S. 212. (People v. Sandoval (2007) 41
Cal.4th 825, 838.) Sandoval, addressing Cunningham error,
instructed us to “determine whether, if the question of the
existence of an aggravating circumstance or circumstances had
been submitted to the jury, the jury’s verdict would have
authorized the upper term sentence.” (Sandoval, at p. 838.)6
6 There is a split of authority concerning whether we must
also determine whether the trial court would have exercised its
discretion to impose the upper term if it had been aware of the
statutory presumption in favor of the middle term. (Compare
People v. Lopez (2022) 78 Cal.App.5th 459, 463, 466–467, fns. 10
& 11 [so holding] with People v. Flores, supra, 75 Cal.App.5th at
pp. 500–501 [where a defendant is entitled to retroactive
application of Senate Bill No. 567, an upper term sentence may
be affirmed as long as it can be determined, beyond a reasonable
doubt, that the jury would have found at least one aggravating
circumstance true beyond a reasonable doubt.].) We need not,
10
“[I]f a reviewing court concludes, beyond a reasonable doubt, that
the jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury,
the Sixth Amendment error properly may be found harmless.”
(Id. at p. 839; see also People v. Osband (1996) 13 Cal.4th 622,
728 [a single aggravating factor is sufficient to support an upper
term].)7
Here, the court explained the reasons for its sentencing
decisions as follows:
“As far as factors in aggravation and mitigation that the
court considered, pursuant to California Rules of Court 4.421(a),
again, agreeing with the People, the crime involved great violence
and great bodily harm. The defendant was armed with or used a
deadly weapon, in this case, a machete. The victims were all
particularly vulnerable.
and do not, take a position on this question because our
conclusion would be the same under either approach.
7 There is also a split of authority concerning whether we
must “conclude beyond a reasonable doubt that a jury would have
found true beyond a reasonable doubt every factor on which the
court relied, because the amended statute requires that every
factor on which a court intends to rely in imposing an upper term,
with the exception of factors related to a defendant’s prior
conviction(s), have been admitted by the defendant or proven to a
jury [Citation].” (People v. Lopez, supra, 78 Cal.App.5th at p. 466
& fn. 10.) Because, as discussed below, only one aggravating
factor applies to the assault on Rosa, we need not, and do not,
resolve that question.
11
“I would also add that I think the manner in which the
crime was carried out did indicate planning and sophistication.
And that is premised on the fact that the video revealed not only
was the defendant armed with a machete, but he evidently went
to retrieve it from his vehicle at least an hour prior to committing
the murder.
“Factors relating [to] the defendant. I would note that this
was a conceptually brutal and heinous, violent murder and
attempt murder and assaults. As far as mitigation, the probation
report notes no factors in mitigation. I disagree. And I would
agree with the People, and the People concede one factor in
mitigation is his lack of criminal record, at least as far as we are
aware of here in the United States.”
Defendant notes that the court did not specify which
aggravating factors applied to which count and argues that most
of the enumerated factors, if applied to count 3, would violate the
dual-use prohibition, under which a “fact that is an element of
the crime upon which punishment is imposed may not be used to
impose a greater term.” (Cal. Rules of Court, rule 4.420(h); see
People v. Scott (1994) 9 Cal.4th 331, 350 [court may not “use a
fact constituting an element of the offense either to aggravate or
to enhance a sentence.”]; People v. Clark (1992) 12 Cal.App.4th
663, 666 [a sentencing factor “is an element of the offense if the
crime as defined by statute cannot be accomplished without
performance of the acts which constitute such factor.”].)
To be sure, assault with a deadly weapon (§ 245,
subd. (a)(1)) cannot be accomplished without using a deadly
weapon. As such, the court could not use that factor—“defendant
was armed with or used a deadly weapon, in this case, a
machete”—to impose the upper term in count 3. Likewise, the
12
court concluded that “the crime involved great violence and great
bodily harm”—but that fact was the basis for the great-bodily-
injury enhancement (§ 12022.7, subd. (a)) to count 3, and as such,
could not be used as the basis to impose the upper term. And
although the court held that “the manner in which the crime was
carried out did indicate planning and sophistication,” there is no
evidence in the record to support the conclusion that defendant
set out to attack Rosa. Instead, the evidence established that her
assault occurred only because she was trying to stop defendant
from killing her husband.
Nevertheless, as the People note, there is one enumerated
factor that properly applies to count 3: “The victims were all
particularly vulnerable.” “ ‘As used in the context of
rule 4.421(a)(3), a “particularly vulnerable” victim is one who is
vulnerable “in a special or unusual degree, to an extent greater
than in other cases. Vulnerability means defenseless,
unguarded, unprotected, accessible, assailable, one who is
susceptible to the defendant’s criminal act. . . .” [Citation.]’
[Citation.]” (People v. Esquibel (2008) 166 Cal.App.4th 539, 558.)
In assessing vulnerability under rule 4.421, we consider the “total
milieu in which the commission of the crime occurred,” including
both the personal characteristics of the victim and the setting of
the crime. (People v. Price (1984) 151 Cal.App.3d 803, 814.)
In this case, defendant did not dispute the facts of the
charged crimes below and does not do so on appeal. Nor does he
dispute the general proposition that people are particularly
vulnerable when they are asleep. (People v. Loudermilk (1987)
195 Cal.App.3d 996, 1007; see also People v. Hall (1988) 199
Cal.App.3d 914, 922 [victims were particularly vulnerable
because they were attacked in their own home].) He contends,
13
however, that “it is not clear beyond a reasonable doubt that a
jury or court would find Rosa, who was awake and fighting, as
vulnerable in a ‘special or to a[n] unusual degree, to an extent
greater than in other cases.’ [Citation.]” We disagree.
On the night of the attack, Rosa and Javier went to sleep
on a pull-out sofa in the living room. Rosa slept on the left,
hemmed in by the couch on one side and Javier on the other.
She awoke at approximately 1:30 a.m., when defendant barged
into the apartment with a machete. Defendant rushed through
the door, swinging the machete, and attacked Javier within
“a matter of seconds.” Both Rosa and Javier were still in bed
when defendant attacked, and Rosa was still in bed when she
grabbed defendant in an effort to defend her husband. At that
point, defendant hit Rosa with the machete as well. The entire
attack—from the time defendant broke in until the time Erick
dragged him from the apartment by the ankles—lasted 20–25
seconds. Taken together, the undisputed evidence established
that Rosa was assaulted in her bed, less than a minute after
being awakened by the beginning of defendant’s assault. She had
virtually no time to obtain anything to shield herself from the
attack, or to escape the vulnerable position in which she found
herself on the bed.
Rosa’s testimony about the brevity of the attack is
consistent with the timing of the surrounding events. Karla
called 911 at 1:22 a.m. The first police officers arrived at
1:28 a.m. They met defendant at the building’s front gate at 1:30
a.m. During that eight minutes, defendant chased Karla down
the stairs, nearly decapitated her with a machete, headed back
upstairs, broke down the door to Javier and Rosa’s apartment,
attacked Javier and Rosa, was tackled and dragged from the
14
apartment by Erick, and returned to the courtyard to sit on a
bench and wait for the police to arrive.
We conclude beyond a reasonable doubt, that the jury,
applying the beyond a reasonable doubt standard in this case,
unquestionably would have found that Rosa was particularly
vulnerable had that aggravating circumstance been submitted for
it to decide. (People v. Sandoval, supra, 41 Cal.4th at p. 839.)
DISPOSITION
The judgment is affirmed.
HARUTUNIAN, J.*
We Concur:
STRATTON, P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
15 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482366/ | [Cite as State v. Allen, 2022-Ohio-3996.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 22AP-258
v. : (C.P.C. No. 21CR-3189)
Jeffrey R. Allen, Jr., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 8, 2022
On brief: G. Gary Tyack, Prosecuting Attorney, and
Taylor M. Mick, for appellee. Argued: Taylor M. Mick.
On brief: Blaise G. Baker, for appellant.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Jeffrey R. Allen, Jr., appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas following
his guilty plea to one count of attempted possession of a fentanyl-related compound. For
the following reasons, we affirm.
{¶ 2} On August 6, 2021, appellant was indicted on one count of possession of a
fentanyl-related compound in violation of R.C. 2925.11, a fifth-degree felony. On
February 16, 2022, appellant entered a guilty plea to the stipulated lesser-included offense
of attempted possession of a fentanyl-related compound in violation of R.C. 2923.02 as it
relates to R.C. 2925.11, a first-degree misdemeanor. Appellant also pleaded guilty to crimes
indicted in two other Franklin County common pleas court cases. Following a presentence
No. 22AP-258 2
investigation ("PSI"), the trial court held a sentencing hearing on March 22, 2022. The trial
court sentenced appellant to a jail term of 49 days with 49 days jail-time credit and ordered
that the sentence be served concurrent with the aggregate 9-year prison sentence imposed
in the other two cases. The trial court memorialized appellant's conviction and sentence in
a judgment entry issued April 14, 2022.
{¶ 3} Appellant timely appeals, setting forth one assignment of error for our
consideration:
Defendant-Appellant was deprived of effective assistance of
counsel.
{¶ 4} Under his assignment of error, appellant contends that he was deprived of
effective assistance of counsel. Appellant argues that his counsel told him that if he plead
guilty to the charges in the instant case and the other two cases, he would receive
community control. Appellant argues that he relied on counsel's assertion in entering his
guilty pleas.
{¶ 5} To establish a claim of ineffective assistance of counsel, appellant must
demonstrate that his trial counsel's performance was deficient and that the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
failure to make either showing defeats a claim of ineffective assistance of trial counsel. Id.
at 697; State v. Martinez, 10th Dist. No. 13AP-704, 2014-Ohio-2425, ¶ 19.
{¶ 6} A guilty plea waives the right to assert ineffective assistance of counsel unless
counsel's errors affect the knowing and voluntary nature of the plea. State v. McMichael,
10th Dist. No. 11AP-1042, 2012-Ohio-3166, ¶ 14; State v. Shoulders, 3d Dist. No. 5-13-12,
2014-Ohio-435, ¶ 35 (when a defendant enters a guilty plea, a claim of ineffective assistance
of counsel may be grounds for vacating his plea only to the extent that counsel's
ineffectiveness makes the plea less than knowing and voluntary); State v. Mays, 8th Dist.
No. 89362, 174 Ohio App.3d 681, 2008-Ohio-128, ¶ 9 (when a defendant claims ineffective
assistance of counsel after entering a guilty plea, she must also show that the ineffective
assistance precluded her from entering the plea knowingly and voluntarily).
{¶ 7} The record in this case does not support appellant's assertion that he was
deprived of effective assistance of counsel. Appellant's signed guilty plea form indicates
that before entering his plea, he had been advised by counsel of his constitutional and
No. 22AP-258 3
statutory rights as well as the facts and law of his case. The form further indicates that he
understood that his guilty plea constituted both an admission of guilt and a waiver of
certain constitutional, statutory, and procedural rights. In addition, the form indicates that
the charge to which he was pleading guilty carried a maximum penalty of 180 days in jail
and/or a $1,000 fine. Moreover, the guilty plea form indicates that he had not been
threatened, promised leniency or otherwise coerced or induced into pleading guilty, that
the plea represented the free and voluntary exercise of his own will and best judgment, and
that he was satisfied with the advice provided by his counsel.
{¶ 8} Consistent with the statements provided in the plea form, appellant
acknowledged at the plea hearing that he signed the plea form after his counsel explained
it to him. He further acknowledged the trial court's assertions that the maximum jail
sentence for the first-degree misdemeanor offense to which he was pleading guilty was 180
days, that it was possible he could receive community control, but that the trial court had
made no promises regarding the sentence to be imposed. Appellant also indicated that he
understood that in entering the guilty plea, he was waiving the constitutional rights as
explained by the trial court and that he was entering the plea knowingly, voluntarily, and
intelligently.
{¶ 9} At the sentencing hearing, the prosecution argued that the statements
appellant made during his interview with the PSI report writer proved that he was not
amenable to community control and that he should be sentenced to a term of incarceration.
In response, defense counsel argued that appellant, a veteran of the armed forces, had
expressed remorse for his actions and wished to undergo treatment for his drug problem
through the Veteran's Administration ("VA"). In his address to the court, appellant
apologized for his actions and indicated he wished to avoid incarceration and get treatment
for his drug problem through the VA.
{¶ 10} Following this discussion, the trial court sentenced appellant to 49 days in
jail, awarded 49 days jail-time credit, and ordered that the sentence be served concurrent
with the aggregate 9-year prison term the court imposed in the other two cases. Thereafter,
appellant stated that "[defense counsel] told me that if I plead these out, I was getting
probation and that's why I plead out these charges." (Mar. 22, 2022 Sentencing Hearing
Tr. at 24.) Defense counsel responded, "[f]or the record, I did not - -." Id.
No. 22AP-258 4
{¶ 11} As the record demonstrates, there is no evidence, aside from appellant's self-
serving statement at the conclusion of the sentencing hearing, that he was coerced into
pleading guilty by his counsel's alleged promise that he would be sentenced to community
control instead of jail time. Indeed, the signed guilty plea form states that he was not
coerced into pleading guilty, the trial court advised him at the plea hearing that although
community control was a possibility, the trial court was making no promises about the
sentence to be imposed, and defense counsel expressly refuted appellant's assertion on the
record. Further, even had counsel inaccurately predicted that appellant would be placed
on community control, appellant still cannot meet his burden of establishing deficient
performance. " ' "[A]n attorney's 'mere inaccurate prediction of a sentence' does not
demonstrate the deficiency component of an ineffective assistance of counsel claim." ' "
McMichael, 10th Dist. No. 11AP-1042, 2012-Ohio-3166, ¶ 31, quoting State v. Glass, 10th
Dist. No. 04AP-967, 2006-Ohio-229, ¶ 34, quoting United States v. Martinez, 169 F.3d
1049, 1053 (7th Cir.1999), and citing Wiant v. United States, S.D.Ohio No. 2:04-CV-256,
2005 U.S. Dist. LEXIS 48849 (July 11, 2005) ("where an adequate guilty plea hearing has
been conducted, an erroneous prediction or assurance by defense counsel regarding the
likely sentence does not constitute grounds for invalidating a guilty plea on grounds of
ineffective assistance of counsel"). Id. at *50.
{¶ 12} Moreover, even assuming that appellant could somehow demonstrate that
his counsel's advice regarding the sentence constituted deficient performance, appellant
cannot show prejudice. To establish prejudice, appellant must demonstrate "that there is
a reasonable probability that, but for counsel's errors, he would not have pleaded guilty"
and would have insisted on going to trial. State v. Xie, 62 Ohio St.3d 521, 524 (1992),
quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). Although appellant's assertion that he
"plead out" to the charge because counsel told him he would get community control
arguably might demonstrate a showing that but for counsel's erroneous advice he would
not have pleaded guilty and would have insisted on going to trial, we note that appellant
was originally charged with a fifth-degree felony, pursuant to which he faced a prison
sentence of six to twelve months. R.C. 2929.14(A)(5). As a result of his plea bargain, he
was convicted of a first-degree misdemeanor, under which he faced up to six months of jail
time. R.C. 2929.24(A)(1). In addition, under the plea bargain, appellant essentially
No. 22AP-258 5
received a sentence of time served for the first-degree misdemeanor. Appellant does not
assert his innocence to the charge, nor does he provide any defense he could have raised at
trial. In light of his plea bargain and absent a claim of innocence and/or a valid defense to
the charge, we are not persuaded that it would have been a rational decision to reject the
plea bargain and proceed to trial. See Columbus v. Akbar, 10th Dist. No. 15AP-776, 2016-
Ohio-2855, ¶ 12, fn. 2.
{¶ 13} Because appellant has failed to establish either prong of his ineffective
assistance of counsel claim, we overrule his assignment of error.
{¶ 14} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER, P.J., and McGRATH, J., concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482367/ | [Cite as Schwind v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-3995.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jared Schwind, :
Plaintiff-Appellant, :
No. 22AP-230
v. : (Ct. of Cl. No. 2020-00314JD)
Ohio Department of Rehabilitation : (ACCELERATED CALENDAR)
and Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on November 8, 2022
On brief: Jared Schwind, pro se.
On brief: Dave Yost, Attorney General, and Jeanna
Jacobus, for appellee.
APPEAL from the Court of Claims of Ohio
KLATT, J.
{¶ 1} Plaintiff-appellant, Jared Schwind, pro se, appeals from a judgment of the
Court of Claims of Ohio granting summary judgment to defendant-appellee, Ohio
Department of Rehabilitation and Correction ("ODRC"). Because appellant did not present
any evidence qualifying as expert medical testimony to establish the standard of care,
breach, and proximate cause for his medical malpractice claim, we affirm.
{¶ 2} On June 17, 2020, appellant, an inmate at the Madison Correctional
Institution ("MCI"), filed, pro se, an amended complaint for medical malpractice against
ODRC. In the amended complaint, appellant asserted that 17 years prior to his
incarceration, he suffered an injury which causes his shoulder to periodically dislocate.
No. 22AP-230 2
During that 17-year period, appellant received chiropractic treatment which involved
putting his shoulder back into place whenever it dislocated. Appellant also asserted that he
suffers from a herniated disc. Appellant alleged that the medical treatment he has received
at MCI for his conditions consists of "pills that simply do not work" and "talking to him."
(June 17, 2020 Am. Compl. at ¶ 8, ¶ 14.) Appellant indicated that his pain is so significant
that he often sleeps in a chair. Appellant alleged that MCI's failure to (1) timely X-ray his
shoulder, (2) provide chiropractic services, and (3) treat the herniated disc constitutes
medical malpractice.
{¶ 3} On October 12, 2020, the trial court ordered appellant to furnish ODRC with
the names of any expert witnesses and a copy of their reports on or before April 9, 2021.
Appellant did not comply with that order. He subsequently obtained counsel, who filed a
motion to continue the trial scheduled for November 2021 and extend discovery deadlines.
On July 23, 2021, the trial court granted appellant's motion, continued the trial to April
2022, and ordered the parties to submit a discovery plan including new deadlines for expert
witness disclosure and a discovery deadline. Pursuant to that order, the parties filed a
discovery plan setting appellant's new expert disclosure deadline as October 1, 2021, and
setting the discovery deadline as December 3, 2021. Appellant did not meet the October 1,
2021 expert disclosure deadline.
{¶ 4} On October 6, 2021, the trial court granted appellant's counsel's motion to
withdraw; thereafter, appellant proceeded pro se. On December 6, 2021, ODRC filed a
motion for summary judgment arguing that appellant could not prove his claim of medical
malpractice because he failed to produce expert testimony addressing the issues of the
applicable standard of care in the medical community, ODRC's breach of that standard of
care, and proximate cause. ODRC attached to its motion the affidavit of ODRC counsel
attesting that appellant had not provided the name of a physician or other expert witness
to testify on his behalf that ODRC was negligent in providing medical care to him. Counsel
further attested that appellant was served with requests for admissions on October 4, 2021,
which asked appellant to admit or deny that (1) he did not have a doctor or any other expert
who would testify at trial that anyone at ODRC was negligent in providing medical care and,
(2) he did not send a copy of a report from any expert witness to ODRC on or before the
October 1, 2021 deadline. Counsel further attested that in his response to the requests for
No. 22AP-230 3
admissions, appellant denied that he did not have a physician or other expert who would
testify at trial but admitted that he had not sent ODRC counsel the report of that expert
witness. Based on the requests for admissions and appellant's failure to produce an expert
report addressing the standard of care, breach of the standard of care, and proximate cause,
ODRC argued that appellant could not prevail on his medical malpractice claim and that it
was entitled to summary judgment as a matter of law.
{¶ 5} On December 10, 2021, appellant filed a motion for an extension of time to
file an expert witness report and subpoena documents. In his motion, appellant averred
that his expert (who appellant did not expressly identify in the motion) had been prevented
from obtaining the necessary documents to generate an expert report. Appellant further
related that his former counsel had failed to oversee the production of an expert report.
{¶ 6} On January 10, 2022, appellant filed a motion pursuant to Civ.R. 35
requesting that he be examined by his chiropractor, Dr. Stephen Aurand. Appellant
attached to the motion an unauthenticated letter from Dr. Aurand dated January 8, 2022.
In that letter, Dr. Aurand stated that appellant was a long-time patient and had been treated
for complaints similar to what appellant reported he was currently experiencing. He further
averred that absent a physical examination of appellant, he could not provide a treatment
recommendation for him. Dr. Aurand indicated that he would be willing to examine and
treat appellant at the prison at no cost. He further noted that transportation to his office
for a thorough examination and X-rays would allow him to better diagnose appellant's
condition.
{¶ 7} In a separate filing on January 10, 2022, appellant, apparently in conjunction
with his December 10, 2021 motion for an extension of time to subpoena documents, filed
a subpoena duces tecum ordering ODRC to produce X-rays and photographs of appellant
taken by MCI from March 1, 2020 to September 30, 2021, and to mail those documents to
Dr. Aurand's office. The record contains no evidence that appellant caused the subpoena
to be served on ODRC.
{¶ 8} On January 10, 2022, the trial court granted appellant's December 10, 2021
motion for an extension. The trial court permitted appellant until February 7, 2022 to
obtain an expert report and provide a copy of that report to counsel for ODRC and ordered
that appellant respond to ODRC's motion for summary judgment by that date.
No. 22AP-230 4
{¶ 9} On January 12, 2022, appellant filed a response to ODRC's motion for
summary judgment. Appellant referenced his January 10, 2022 motion for a physical
examination by Dr. Aurand, describing the motion as an "affidavit in support of this reply
* * * which indicates the factual disputes that the plaintiff believes exists, that [h]e can
sustain his burden of proving his medical malpractice claim and does have an expert
witness." (Jan. 12, 2022 Reply to Def.'s Mot. for Summ. Jgmt.)
{¶ 10} On February 7, 2022, appellant submitted a second response to ODRC's
motion for summary judgment. Appellant again maintained that he could sustain his
burden of proving medical malpractice through expert testimony. Appellant attached to
his response several unauthenticated documents, including electronic communications
between him and his former counsel, electronic communications between him and a person
identified as Joseph Clark, and informal prison grievances. Appellant also attached a form
captioned "Expert Witness Form." The form, which appears to have been completed by
Dr. Aurand on February 4, 2022, includes his name and address and lists under "Expert
Witness Qualifications" that he has been a chiropractor for 21 years and last treated
appellant in July 2017. The form also provides the following "Expert Witness Statement":
"Jared deal[s] w/thoracic spine issues that will influence the ribs, and triggers episodes of
a costochondritis. Once flared it is a very difficult issue to resolve. In the past he did well
under my treatment, and the issues seem to mostly resolve. It is hard to gauge his current
issues as he has not been seen in nearly 5 years." (Feb. 7, 2022 Reply to Def.'s Mot. for
Summ. Jgmt.)
{¶ 11} On March 9, 2022, the trial court entered summary judgment for ODRC. The
court determined that there was no genuine issue of material fact and that ODRC was
entitled to judgment as a matter of law because appellant could not prevail on his claim of
medical malpractice after failing to obtain an expert and provide an expert report regarding
the standard of care, breach of that standard of care, and proximate cause.
{¶ 12} Appellant appeals, assigning the following error:
The Court of Claims erred as a matter of law in granting
appellee's 56(C) motion for summary judgment by holding
that appellant failed to provide any evidence and failed to
obtain an expert and provide expert report before being able
to bring a medical malpractice claim against Ohio Department
of Rehabilitation and Correction.
No. 22AP-230 5
{¶ 13} In his single assignment of error, appellant argues that the trial court erred
as a matter of law in granting summary judgment to ODRC. More specifically, appellant
contends the trial court erred by finding that he failed to obtain an expert and provide an
expert report to support his medical malpractice claim. We disagree.
{¶ 14} Appellate review of summary judgment is de novo. Hudson v. Petrosurance,
Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29. This means that an appellate court conducts
an independent review, without deference to the trial court's determination. Zurz v. 770
W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.).
{¶ 15} Civ.R. 56(C) provides in part:
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated in
this rule. A summary judgment shall not be rendered unless it
appears from the evidence or stipulation, and only from the
evidence or stipulation, that reasonable minds can come to
but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made,
that party being entitled to have the evidence or stipulation
construed most strongly in the party’s favor.
{¶ 16} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). The moving party, however, cannot discharge its initial burden
under this rule with a conclusory assertion that the nonmoving party has no evidence to
prove its case; the moving party must specifically point to evidence of a type listed in Civ.R.
56(C), affirmatively demonstrating that the nonmoving party has no evidence to support
the nonmoving party's claims. Id. Once the moving party discharges its initial burden,
summary judgment is appropriate if the nonmoving party does not respond, by affidavit or
as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists
for trial. Id.; Civ.R. 56(E).
No. 22AP-230 6
{¶ 17} " '[A]n inmate is under no different burden than any other plaintiff in a
medical malpractice claim.' " Gibson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-
379, 2019-Ohio-4955, ¶ 10, quoting Nicely v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
09AP-197, 2009-Ohio-4386, ¶ 9. In order to prevail on a claim of medical malpractice, a
plaintiff must prove: (1) the standard of care recognized by the medical community; (2) the
defendant's breach of that standard of care; and (3) a direct causal connection between the
breach and the injury sustained. Bruni v. Tatsumi, 46 Ohio St.2d 127 (1976). The
appropriate standard of care must be proven by expert testimony. Id. at 130. That expert
testimony must explain what a medical professional of ordinary skill, care, and diligence in
the same medical specialty would do in similar circumstances. Id. The failure to provide
expert testimony establishing the recognized standards of care in the medical specialty
community is fatal to the presentation of a prima facie case of medical malpractice. Gibson
at ¶ 10, citing Grieser v. Janis, 10th Dist. No. 17AP-3, 2017-Ohio-8896, ¶ 20. By local rule
of the Court of Claims, a party is prohibited from calling an expert witness to testify unless
a written report has been procured from that witness. Sanchez v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 18AP-765, 2019-Ohio-2534, ¶ 27, citing L.C.C.R. (8)(E).
{¶ 18} Although appellant's arguments are difficult to decipher, he appears to
contend that he obtained an expert, Dr. Aurand, who provided the requisite expert medical
report vis-à-vis his January 8, 2022 letter and the February 4, 2022 expert witness form.
We first note that neither of these documents constitute proper Civ.R. 56(C) material, as
neither is in affidavit form. "An affidavit is a written declaration under oath." R.C. 2319.02;
Moss v. Bush, 104 Ohio St.3d 1443, 2004-Ohio-7119. Dr. Aurand did not swear to the
contents of the letter or the expert witness form under oath; he merely signed the
documents.
{¶ 19} Even if the documents could be construed as proper Civ.R. 56(C) evidence,
in neither document does Dr. Aurand express any opinion regarding the standard of
medical care recognized by the medical community in treating a shoulder dislocation and
herniated disc, ODRC's breach of that standard of care, and a direct causal connection
between ODRC's breach and appellant's injuries. In the January 8, 2022 letter, Dr. Aurand
simply avers that he had treated appellant for conditions similar to those about which
appellant now complains but could not provide a treatment plan for appellant without
No. 22AP-230 7
conducting a thorough physical examination. Dr. Aurand does not indicate that the
physical examination of appellant is for the purpose of providing an expert opinion about
the applicable standard of care, ODRC's breach of that standard of care, or proximate cause.
In the expert witness form, Dr. Aurand merely discusses past chiropractic treatment he
provided appellant and notes the difficulty in diagnosing appellant's current condition.
{¶ 20} We note that appellant attaches to his brief a March 12, 2021 letter from
Dr. Aurand (Ex. B). This letter was not attached to any document filed by appellant in the
trial court; as such, it may not be considered on appeal. "[A]n appellate court is bound to
the record before it and may not consider facts extraneous to that record. Fitzgerald v.
Ohio Bur. of Workers' Comp., 10th Dist. No. 03AP-1197, 2004-Ohio-3725, ¶ 11, citing
Paulin v. Midland Mut. Life Ins. Co., 37 Ohio St.2d 109, 112 (1974). Moreover, the letter
does not include any statement by Dr. Aurand regarding the applicable standard of care,
ODRC's breach of that standard of care, or proximate cause; rather, Dr. Aurand simply
offers to help appellant with treatment.
{¶ 21} In a related argument, appellant appears to contend that Dr. Aurand was
unable to provide an expert report because ODRC prevented him from viewing or otherwise
accessing appellant's medical records. Appellant characterizes ODRC's action as a violation
of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963). Appellant states,
"under Brady, the state violates a defendant's right to due process if it withholds evidence
that is favorable to the defence [sic] and material to the defendant's guilt or punishment."
(Appellant's Brief at 2.) Brady addresses due process principles in the context of the
withholding of exculpatory evidence in a criminal prosecution. Appellant cites no case law
applying Brady in the framework of a civil case. As appellant's case does not involve a
criminal prosecution, his citation to Brady is unavailing.
{¶ 22} Moreover, "R.C. 5120.21(C)(2) places limitations on an inmate's access to
medical records." Nicely, 10th Dist. No. 09AP-187, 2009-Ohio-4386, ¶ 8. In Goings v.
Dept. of Rehab. & Corr., 10th Dist. No. 90AP-1041 (May 28, 1991), this court averred, "R.C.
5120.21(C)(2) states that the inmate's medical records shall be available for review on two
conditions. One is that the inmate make a signed written request for the records, and the
other is that his request be accompanied by a written request of an attorney or physician
designated by the inmate." Id. at * 7. Even construing appellant's January 10, 2022
No. 22AP-230 8
subpoena duces tecum filing as a signed written request for his medical records, such
request was not accompanied by a written request of an attorney or physician designated
by appellant. Appellant thus failed to meet the requirements of R.C. 5120.21(C)(2) to obtain
a copy of his medical records.
{¶ 23} In addition, "Civ.R. 56(F) provides the sole remedy for a party who must
respond to a motion for summary judgment before it has completed adequate discovery."
Hernandez v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-37, 2017-Ohio-8646, ¶ 17,
citing Mootispaw v. Mohr, 10th Dist. No. 15AP-885, 2016-Ohio-1246, ¶ 10. "Pursuant to
Civ.R. 56(F), a party may request that the trial court defer ruling on the motion for summary
judgment pending the completion of discovery." Id., citing Mootispaw at ¶ 10. "When a
party fails to move for a Civ.R. 56(F) continuance, a trial court may grant summary
judgment to the moving party even if discovery remains incomplete." Id. "Moreover, the
party that fails to move for a Civ.R. 56(F) continuance does not preserve his right to
challenge the adequacy of discovery on appeal." Id. Here, appellant did not move for a
continuance under Civ.R.(F) to complete discovery.
{¶ 24} In this case, ODRC supported its motion for summary judgment with
appropriate Civ.R. 56(C) evidence (ODRC counsel's attestations that appellant had not
provided the name of an expert witness who would testify on his behalf and the
authenticated attachments regarding appellant's admission that he had not sent counsel a
written report by an expert witness). Appellant failed to provide any appropriate Civ.R.
56(C) evidence to controvert ODRC's evidence and demonstrate a genuine issue of material
fact. Accordingly, there is no dispute that appellant failed to provide ODRC's counsel with
the name of an expert witness who would testify that ODRC breached the standard of care
and that such breach proximately caused appellant's injuries. Further, appellant did not
provide an expert report to ODRC's counsel by the deadlines imposed by the trial court.
{¶ 25} To prevail on his medical malpractice claim, appellant was required to
present proof, via expert testimony, on the standard of care recognized by the medical
community regarding treatment of a shoulder dislocation and herniated disc, ODRC's
breach of that standard of care, and a direct causal connection between ODRC's breach and
appellant's injuries. Appellant failed to do so. Thus, ODRC was entitled to judgment as a
matter of law, and the trial court did not err in so concluding.
No. 22AP-230 9
{¶ 26} For the foregoing reasons, appellant's assignment of error is overruled.
{¶ 27} As a final matter, we deny appellant's "Motion for Relief from Judgment"
filed in this court on August 10, 2022. Motions for relief from judgment are governed by
Civ.R. 60(B). In Martin v. Roeder, 75 Ohio St.3d 603 (1996), the Supreme Court of Ohio
held that that a motion pursuant to Civ.R. 60(B) is inapplicable to review a court's judgment
on appeal. Id. at 604.
{¶ 28} Having overruled appellant's sole assignment of error, we hereby affirm the
judgment of the Court of Claims of Ohio.
Motion for relief from judgment denied;
judgment affirmed.
DORRIAN and JAMISON, JJ., concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482368/ | [Cite as Parsons v. Bishop, 2022-Ohio-3997.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
John Parsons, :
Plaintiff-Appellant, :
No. 22AP-266
v. : (C.P.C. No. 19CV-9329)
Alan M. Bishop, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on November 8, 2022
On brief: The Keating Firm, LTD, Bradley D. Keating, and
Ian J. Stegmaier, for appellant.
On brief: Joel S. McPherson, for appellee.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, John Parsons, appeals from a decision and entry granting
summary judgment in favor of defendant-appellee, Alan M. Bishop. For the following
reasons, we affirm.
{¶ 2} On November 20, 2019, appellant filed a complaint alleging that on
November 7, 2017, he sustained bodily injuries as the result of a motor vehicle collision
caused by appellee's negligence. Appellant further alleged that appellee's absence from the
state of Ohio tolled the statute of limitations for at least 13 days, making his complaint
timely under R.C. 2305.15(A). Appellee subsequently filed an answer denying all material
allegations and asserting, among other affirmative defenses, that appellant's complaint was
barred by the applicable statute of limitations.
No. 22AP-266 2
{¶ 3} Appellee filed a motion to dismiss on March 9, 2020, asserting that
appellant's complaint was not filed within the two-year limitations period of
R.C. 2305.10(A). Appellant attached to his motion his affidavit attesting that between
November 7, 2017 and November 7, 2019, he was outside the state of Ohio less than 13 days.
On April 17, 2020, appellant filed a memorandum contra, arguing that the two-year statute
of limitations was tolled pursuant to R.C. 2305.15(A) as a result of the time appellee spent
outside Ohio. Appellant requested that the trial court refrain from ruling on the motion to
dismiss until he had the opportunity to conduct necessary discovery to support his tolling
argument. Specifically, appellant asserted that because the fact of appellee's absence from
the state was exclusively within appellee's knowledge, he could not properly impeach or
contradict appellee's affidavit without deposing him. Appellant averred that he "expects
that the need for critical discovery requests will arise only after acquiring the facts from
[appellee] at his deposition pursuant to [Civ.R.] 56(F)." Appellant further averred that he
"had not been afforded the opportunity to take such depositions to date." (Apr. 17, 2020
Memo in Opp. to Def.'s Mot. Dismiss at 1, 3.)
{¶ 4} On November 6, 2020, the parties filed a joint motion to continue the
November 17, 2020 final pre-trial conference and December 14, 2020 trial dates "to allow
for depositions to respond to the pending Motion to Dismiss." (Nov. 6, 2020 Agreed Mot.
to Continue Settlement Pretrial and Trial Date at 1.) On November 16, 2020, the trial court
granted the motion and amended the case schedule to reflect April 20, 2021 and May 3,
2021 as the new dates for final pre-trial conference and trial, respectively.
{¶ 5} On February 18, 2021, appellee filed a reply to appellant's April 17, 2020
memorandum contra, averring that appellant deposed appellee on December 4, 2020 and
that appellee testified that he was not out of the state of Ohio for 13 days in the two years
following the automobile accident.1 Appellee further asserted that because appellant had
failed to provide any evidence demonstrating that the applicable two-year statute of
limitations was tolled pursuant to R.C. 2305.15, the trial court should dismiss appellant's
complaint with prejudice.
1 In their briefing, both parties aver that appellee was deposed on December 4, 2020 and that he testified
that he was not out of the state of Ohio for more 13 days in the 2-year period following the accident.
However, the trial court record contains neither a Civ.R. 30(A) notice of deposition nor a transcript of the
December 4, 2020 deposition.
No. 22AP-266 3
{¶ 6} In accordance with the amended case schedule, appellant and appellee filed
their final pre-trial statements on April 6 and 7, 2021, respectively. In his statement,
appellee noted that his motion to dismiss remained pending and that appellant had yet to
provide any evidence that the statute of limitations was tolled. On April 29, 2021, the trial
court sua sponte amended the case schedule, setting the final pre-trial conference for
November 18, 2021 and trial for December 6, 2021.
{¶ 7} On June 29, 2021, the trial court sua sponte issued an order converting
appellee's motion to dismiss into a motion for summary judgment. In so doing, the court
construed appellee's motion to dismiss as one under Civ.R. 12(B)(6), noted that Civ.R.
12(B)(6) precludes consideration of any evidentiary materials outside of the complaint, and
that appellee had presented evidence (his affidavit) outside the complaint to support his
motion to dismiss. The trial court granted appellee 28 days to submit any supplemental
briefing and Civ.R. 56 evidence in support of summary judgment. The court granted
appellant an additional 28 days to file his memorandum in opposition.
{¶ 8} Thereafter, on July 14, 2021, appellee filed a notice stating that he did not
intend to submit any supplemental material beyond the affidavit he submitted in support
of his motion to dismiss. Appellant did not file any supplemental briefing or evidence in
response to the trial court's conversion order or appellee's July 14, 2021 filing.
{¶ 9} On October 25, 2021, the parties filed a joint motion to continue the
December 6, 2021 trial date. Noting the pending motion for summary judgment, the
parties averred that a ruling on the motion may render trial of the matter unnecessary, or,
alternatively, the unsuccessful party would need time to determine how to proceed, which
could affect the trial date. On November 16, 2021, the trial court granted the motion and
amended the case schedule to reflect May 5, 2022 and May 16, 2022 as the new dates for
final pre-trial conference and trial, respectively.
{¶ 10} On March 31, 2022, the trial court issued a "Decision and Entry Granting
Defendant's Motion to Dismiss, Filed March 9, 2020." The first sentence of the decision
states that "[t]his matter is before the Court upon Defendant's Motion to Dismiss Plaintiff's
Complaint which the Court converted into a Motion for Summary Judgment." (Mar. 31,
2022 Decision & Entry at 1.) Citing the Civ.R. 56 summary judgment standard, the
No. 22AP-266 4
applicable statute of limitations, R.C. 2305.10(A), and the tolling statute, R.C. 2305.15(A),
the trial court concluded:
Here, Plaintiff's Complaint alleges that the accident occurred
on November 7, 2017. Plaintiff filed this case on
November 20, 2019, more than two years after the date of the
accident. There is no evidence before the Court that the
tolling provisions of R.C. 2305.15 apply such that this matter
can be considered timely filed. Accordingly, the Court finds
that this case is barred by the statute of limitations, and
Defendant's Motion is hereby GRANTED.
(Decision & Entry at 3.)
{¶ 11} Appellant timely appealed the trial court's judgment.
{¶ 12} As an initial matter, we note that appellant has failed to set forth an
assignment of error. Pursuant to App.R. 12(A)(1)(b), appellate courts must "[d]etermine
the appeal on its merits on the assignments of error set forth in the briefs under App.R. 16."
Thus, generally, appellate courts will rule only on assignments of error, not mere
arguments. Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No. 11AP-64, 2011-Ohio-5616,
¶ 15, citing Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70. Although
appellant's failure to set forth an assignment of error would justify striking the brief and,
unless leave was granted to correct the deficiency, dismissing the appeal, we instead elect
to dispose of the appeal on the merits of what we conclude to be the implied assignment of
error manifested in the argument set forth in the brief, i.e., that the trial court erred in
granting summary judgment to appellee because appellant "has not been given sufficient
time to discover necessary facts to rebut the motion for summary judgment." (Appellant's
Brief at 2.) More specifically, appellant contends that "[t]here has not been sufficient time
to discover facts necessary to rebut the claim that Appellee Bishop had not left the state of
Ohio for more than thirteen days. To date, the only evidence entered is the deposition of
Appellee Bishop. In this deposition, he stated he did not leave Ohio for more than thirteen
days, however, the Appellant has not been given an opportunity to substantiate or refute
that claim."2 Id. at 3.
2 Again, we note that the trial court record contains neither a Civ.R. 30(A) notice of deposition nor a
transcript of the December 4, 2020 deposition.
No. 22AP-266 5
{¶ 13} Here, after properly converting appellee's motion to dismiss to one for
summary judgment, the trial court concluded that appellee's claim was barred by the
statute of limitations and that appellant failed to provide any evidence that the tolling
provisions of R.C. 2305.15 applied such that appellant's complaint could be considered
timely filed. On this basis, the trial court granted summary judgment for appellee.
{¶ 14} This court reviews the trial court's granting of summary judgment de novo.
Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994), citing Brown v.
Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). When an appellate
court reviews a trial court's disposition of a summary judgment motion, it applies the same
standard as the trial court and conducts an independent review, without deference to the
trial court's determination. Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103 (10th
Dist.1992); Brown at 711. We must affirm the trial court's judgment if any grounds the
movant raised in the trial court support it. Coventry Twp. v. Ecker, 101 Ohio App.3d 38,
41-42 (9th Dist.1995).
{¶ 15} Pursuant to Civ.R. 56(C), summary judgment "shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, written admission, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Accordingly, summary judgment is appropriate
only under the following circumstances: (1) no genuine issue of material fact remains to be
litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing
the evidence most strongly in favor of the nonmoving party, reasonable minds can come to
but one conclusion, that conclusion being adverse to the non-moving party. Harless v.
Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
{¶ 16} "[T]he moving party bears the initial responsibility of informing the trial
court of the basis for the motion, and identifying those portions of the record before the
trial court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). "The
requirement that a party seeking summary judgment disclose the basis for the motion and
support the motion with evidence is well founded in Ohio." Mitseff v. Wheeler, 38 Ohio
St.3d 112, 115 (1988). Thus, the moving party may not fulfill its initial burden simply by
No. 22AP-266 6
making a conclusory assertion that the nonmoving party has no evidence to prove its case.
Dresher at 293. Rather, the moving party must support its motion by pointing to some
evidence of the type set forth in Civ.R. 56(C), which affirmatively demonstrates that the
nonmoving party has no evidence to support its claims. Id. If the moving party fails to
meet its initial burden, summary judgment is inappropriate; however, if the moving party
satisfies its initial burden, then the nonmoving party has a reciprocal burden outlined in
Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if
the nonmovant does not so respond, summary judgment, if appropriate, shall be entered
against the nonmoving party. Id.
{¶ 17} Appellant alleged in his complaint that the automobile accident causing his
bodily injuries occurred on November 7, 2017. Appellant does not dispute that the statute
of limitations for an action for bodily injury is two years. R.C. 2305.10. Thus, appellant
normally would have had to assert his claim, at the latest, by November 7, 2019. Appellant
did not file his complaint until November 20, 2019, 13 days beyond the two-year statute of
limitations. Nevertheless, appellant claims that appellee's absence from the state of Ohio
tolled the statute of limitations for at least 13 days, making his complaint timely under R.C.
2305.15. R.C. 2305.15(A) provides in part:
When a cause of action accrues against a person, if the person
is out of the state * * * the period of limitation for the
commencement of the action as provided in sections 2305.04
to 2305.14 * * * of the Revised Code does not begin to run until
the person comes into the state * * *.
{¶ 18} A determination of the applicability of R.C. 2305.15(A) requires facts
concerning the circumstances of appellee's presence and absence from Ohio. Kelley v.
Stauffer, 10th Dist. No. 10AP-235, 2010-Ohio-4522, ¶ 13, citing Grover v. Bartsch, 170
Ohio App.3d 188, 2006-Ohio-6115, ¶ 23. Here, appellant's complaint alleged facts that
would support the application of R.C. 2305.15(A). However, appellee presented affidavit
testimony refuting those allegations in support of his motion for summary judgment. As
appellee satisfied its initial burden under Civ.R. 56(C), appellant had a reciprocal burden
to set forth specific facts demonstrating a genuine issue for trial. Appellant never provided
any evidence to support his tolling claim.
No. 22AP-266 7
{¶ 19} To the extent appellant relies on Civ.R. 56(F) to support his contention that
he was denied the opportunity to conduct discovery to dispute appellee's claim that he was
not outside the state for more than 13 days, we note that Civ.R. 56(F) provides that
"[s]hould it appear from the affidavits of a party opposing the motion for summary
judgment that the party cannot for sufficient reasons stated present by affidavit facts
essential to justify the party's opposition, the court may refuse the application for judgment
or may order a continuance to permit affidavits to be obtained or discovery to be had or
may make such other order as is just." "Civ.R. 56(F) allows a party the opportunity to
request additional time to obtain through discovery the facts necessary to adequately
oppose a motion for summary judgment." Fifth Third Mtge. Co. v. Salahuddin, 10th Dist.
No. 13AP-945, 2014-Ohio-3304, ¶ 18, citing Carolina Tobacco Co. v. Petro, 10th Dist. No.
04AP-1125, 2006-Ohio-1205. " 'If, however, a party fails to avail itself of the provision of
Civ.R. 56(F), summary judgment appropriately is granted to the moving party.' " Id.,
quoting Steele v. Mara Ents., Inc., 10th Dist. No. 09AP-102, 2009-Ohio-5716, ¶ 30, citing
Benjamin v. Deffet Rentals, Inc., 66 Ohio St.2d 86, 92 (1981). "A party who fails to seek
relief under Civ.R. 56(F) in the trial court does not preserve his rights under the rules on
appeal." Id., citing Jackson v. Walker, 9th Dist. No. 22996, 2006-Ohio-4351, ¶ 17, citing
R&R Plastics, Inc. v. F.E. Myers Co., 92 Ohio App.3d 789 (6th Dist.1993).
{¶ 20} Appellee filed his motion to dismiss on March 9, 2020 supported by his
affidavit refuting the tolling claim appellant asserted in his complaint. In his April 17, 2020
response, appellant, alluding to Civ.R. 56(F), requested that the trial court refrain from
ruling on the motion until he could conduct necessary discovery, i.e, depose appellee, to
refute appellee's affidavit testimony. Seven months later, on November 16, 2021, the trial
court granted the parties' joint November 6, 2021 motion requesting a continuance to allow
for depositions to occur. Three months later, on February 18, 2021, appellee asserted in a
filing that appellant had deposed him on December 4, 2020, and that his testimony echoed
that provided in the affidavit he filed with his motion to dismiss.3 Four months later, on
June 29, 2021, the trial court converted appellee's motion to dismiss to one for summary
judgment, granted appellee 28 days to file supplemental briefing and Civ.R. 56 evidence,
3 We again note that the trial court record contains neither a Civ.R. 30(A) notice of deposition nor a
transcript of the December 4, 2020 deposition.
No. 22AP-266 8
and granted appellant 28 days to respond to any supplemental briefing and evidence
provided by appellee. Within the 28-day period prescribed by the trial court, appellee on
July 14, 2021 provided notice that he would not file any supplemental evidence beyond his
previously filed affidavit. Appellant filed nothing in response. Three months after
appellee's filing, the parties on October 25, 2021 filed a joint motion to continue the trial
set for December 6, 2021. Although the motion mentions the pending summary judgment
motion, it does not expressly discuss discovery issues or Civ.R. 56(F). The trial court
granted the motion on November 16, 2021. The trial court record reveals no further filings
by either party prior to the trial court's March 31, 2022 judgment granting summary
judgment to appellee.
{¶ 21} A review of the record reveals that appellant never filed a formal Civ.R. 56(F)
motion seeking additional time to conduct the discovery he now contends he needed to
respond to the summary judgment motion. Instead, appellant filed a motion to continue
the trial date. Even construed as a Civ.R. 56(F) motion, said rule required appellant to
submit an affidavit stating the reasons justifying an extension. Salahuddin, 10th Dist. No.
13AP-945, 2014-Ohio-3304, ¶ 20, citing Cook v. Toledo Hosp., 169 Ohio App.3d 180, 2006-
Ohio-5278 (6th Dist.), and Castrataro v. Urban, M.D., 10th Dist. No. 03AP-128, 2003-
Ohio-4705. In the motion to continue the trial date, appellant alluded to the pending
motion for summary judgment, but did not specifically request additional time to conduct
discovery. Moreover, even had appellant done so, he did not file an affidavit. Under Civ.R.
56(F), the motion to continue failed on that basis alone. Id., citing O'Brien v. Sutherland
Bldg. Prods., 10th Dist. No. 93AP-948 (Mar. 24, 1994), citing Grange Mut. Cas. Co. v. State
Auto Mut. Ins. Co., 13 Ohio App.3d 217 (1st Dist.1983).
{¶ 22} It appears from the record that appellant had ample time to conduct
discovery. Appellant was aware of appellee's affidavit testimony rebutting his tolling claim
as early as March 9, 2020. After the trial court granted appellant additional time to conduct
discovery, he allegedly deposed appellee on December 4, 2020. When the trial converted
appellee's motion to dismiss to one for summary judgment, it afforded both parties
additional time to file evidence in support of their positions. Appellant filed nothing to
rebut appellee's evidence. The trial court did not grant summary judgment for appellee
until March 31, 2022, more than two years after appellee first provided evidence
No. 22AP-266 9
challenging appellant's tolling claim. Because appellant had the opportunity to conduct
discovery and did not avail himself of the procedures in Civ.R. 56(F), we find no merit to
his argument that he was not afforded the opportunity to conduct discovery. Accordingly,
we overrule appellant's implied assignment of error.
{¶ 23} Having overruled appellant's sole assignment of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and JAMISON, JJ., concur. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482376/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
JAMES E. ROSE JR., PETITONER : No. 408 MAL 2022
:
:
v. : Petition for Allowance of Appeal
: from the Order of the Superior Court
:
STEVIE HARRIS, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 8th day of November, 2022, the Petition for Allowance of Appeal
and the Petition for Leave to Proceed In Forma Pauperis are DENIED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482372/ | USCA4 Appeal: 21-6507 Doc: 54 Filed: 11/07/2022 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6507
DAVID A. RICHARDSON,
Plaintiff – Appellant,
v.
HAROLD W. CLARKE, Virginia Department of Corrections; EDDIE L.
PEARSON, Lead Warden-Greenville Correctional Center; TAMMY WILLIAMS,
Warden, DRCC Correctional Center; VIRGINIA DEPARTMENT OF
CORRECTIONS,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:18-cv-00023-HEH-EWH)
Argued: September 13, 2022 Decided: November 7, 2022
Before DIAZ, THACKER and QUATTLEBAUM, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Quattlebaum
wrote the opinion, in which Judge Diaz and Judge Thacker join.
ARGUED: Oren Missim Nimni, RIGHTS BEHIND BARS, Washington, D.C., for
Appellant. Kevin Michael Gallagher, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Samuel Weiss, Washington,
D.C., Kelly Jo Popkin, RIGHTS BEHIND BARS, Brooklyn, New York, for Appellant.
Mark R. Herring, Attorney General, K. Scott Miles, Deputy Attorney General, Laura
USCA4 Appeal: 21-6507 Doc: 54 Filed: 11/07/2022 Pg: 2 of 20
Maughan, Assistant Attorney General, Michelle S. Kallen, Acting Solicitor General,
Brittany M. Jones, Deputy Solicitor General, Laura H. Cahill, Assistant Attorney General,
Rohiniyurie Tashima, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellees.
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QUATTLEBAUM, Circuit Judge:
David Richardson, a deaf and blind inmate, claims he was denied the same access
and enjoyment available to inmates without disabilities in violation of the Americans with
Disabilities Act (“ADA”). And he contends the prison’s head covering policies
substantially burdened his Islamic faith as prohibited by the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). We agree with the district court’s order
granting summary judgment to the prison on Richardson’s ADA claim. But we vacate the
court’s order rejecting the RLUIPA claim and remand for proceedings consistent with this
opinion.
I.
Richardson is an inmate at the Deerfield Correctional Center of the Virginia
Department of Corrections (“VDOC”). He alleges that he is legally deaf and blind. J.A.
209. He sued the VDOC and several prison officials claiming that the VDOC did not
“provide equal enjoyment of the goods, services, facilities, advantages, privileges, and
accommodations available to those without disabilities” in violation of Title II of the
ADA. 1 J.A. 20; 23–33.
1
For the same reasons, Richardson alleged the VDOC violated Section 504 of the
Rehabilitation Act (“§ 504”). J.A. 23-33. The ADA and § 504 “differ only with respect to
the third element, causation.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,
461 (4th Cir. 2012). Section 504 requires that the plaintiff be denied benefits or
discriminated against “solely by reason” of his disability. Wicomico Nursing Home v.
Padilla, 910 F.3d 739, 750 (4th Cir. 2018) (quoting Baird ex rel. Baird v. Rose, 192 F.3d
462, 468–69 (4th Cir. 1999)). Because § 504 imposes “a stricter causation requirement than
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Richardson also alleges that he adheres to the Nation of Islam faith. J.A. 14. He
insists that his faith requires him to wear a head covering at all times. J.A. 22, 45. His suit
also alleges that the VDOC’s policy on head coverings substantially burdens his religious
beliefs in violation of the RLUIPA. J.A. 22, 45. 2
The district court granted the VDOC’s motion for summary judgment on the ADA
and RLUIPA claims. 3 J.A. 251. As to the ADA claims, it concluded that Richardson failed
to produce evidence creating a genuine dispute of material fact that he was denied
participation in any activity or program due to his alleged disabilities and that, even
assuming he was, the VDOC reasonably accommodated Richardson’s disabilities. J.A.
the ADA,” where claims under both statutes are at issue, we analyze only the ADA claim
because “[i]f that claims fails, the Rehabilitation Act claim must fail as well.” Id. (quoting
Thomas v. Salvation Army S. Territory, 841 F.3d 632, 641 (4th Cir. 2016)).
2
In his complaint, Richardson alleged violations of (1) the ADA, (2) § 504, (3)
RLUIPA, (4) the Eighth and Fourteenth Amendments, (5) the First Amendment as to the
free exercise of religion, (6) the First Amendment as to free speech, (7) the Fifth and
Fourteenth Amendments as to access to courts and (8) various state laws. J.A. 23–60. He
sued not only the VDOC but also its Director Harold Clarke and Wardens Eddie Pearson
and Tammy Williams. But in response to the defendants’ motion, the district court
dismissed all claims except for the ADA and § 504 injunction claims against the VDOC, a
state law disability claim against the VDOC and the RLUIPA and First Amendment free
exercise claims against the VDOC and Williams (collectively, the VDOC) related to
restricting his ability to wear a religious head covering. The district court reasoned that the
doctrine of sovereign immunity barred the ADA damages claim and that, under Rule
12(b)(6) of the Federal Rules of Civil Procedure, the other claims it dismissed failed to
state facts to plausibly support a cause of action.
The district court also granted summary judgment as to Richardson’s First
3
Amendment free exercise claim.
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242. As to Richardson’s RLUIPA claim, the district court held that Richardson presented
no evidence of a substantial burden on the exercise of his religious beliefs. J.A. 248–49.
Richardson appealed and we have jurisdiction under 28 U.S.C. § 1291. 4 As to the
ADA and § 504 claims, Richardson argues that the district court failed to credit evidence
set forth in his responses to the VDOC’s motion for summary judgment. Op. Br. 32.
According to Richardson, based on such evidence, “a reasonable trier of fact could find
that Defendants denied Richardson the ability to participate in his court proceedings to the
same extent non-disabled individuals are able to participate.” Op. Br. 37. As to the
RLUIPA claim, Richardson argues he showed the prison’s head covering policy
substantially burdened his religious beliefs. In fact, he insists the burden is obvious. Op.
Br. 12.
We affirm the district court’s dismissal of the ADA. As the district court noted, the
VDOC not only reasonably accommodated Richardson’s disabilities; it went to
extraordinary lengths to do so. J.A. 242. Richardson fails to establish a genuine dispute of
material fact on these issues. But as to the RLUIPA claim, the VDOC did not move for
summary judgment on whether the VDOC’s policy substantially burdened his religious
beliefs. Without any indication that the district court gave Richardson notice of its
protentional ruling on this issue and an opportunity to respond, we question whether Rule
56(f) of the Federal Rules of Civil Procedure permits dismissing the RLUIPA claim on
The only issues Richardson appeals are the order dismissing his ADA damages
4
claim based on sovereign immunity and the order granting summary judgment on the ADA,
§ 504 and the RLUIPA claims.
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substantial burden. Regardless of Rule 56(f), however, the record establishes that the
VDOC’s policy substantially burdened Richardson’s sincerely held religious beliefs.
Therefore, we vacate the order granting summary judgment on the RLUIPA claim. And
we remand the case to the district court for further proceedings on that claim. As part of
those further proceedings, we instruct the district court to consider an issue the VDOC
raised at oral argument but only cursorily in its briefing to us—whether the “safe harbor”
provision of the RLUIPA precludes Richardson’s claim for injunctive relief.
II.
We begin with our standard of review. “We review de novo a district court’s
decision to grant summary judgment, applying the same legal standards as the district court
and viewing all facts and reasonable inferences in the light most favorable to the
nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349 (4th Cir. 2020) (citing
News & Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010)). The VDOC, as the party seeking summary judgment, bore the initial burden
of showing that there was no genuine dispute of material fact and that it was entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A fact is
‘material’ if proof of its existence or non-existence would affect disposition of the case
under applicable law. An issue of material fact is ‘genuine’ if the evidence offered is such
that a reasonable jury might return a verdict for the non-movant.” Wai Man Tom v. Hosp.
Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020) (citation omitted).
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Once the movant has made this threshold demonstration, the nonmoving party must
show specific, material facts that give rise to a genuine dispute to survive the motion for
summary judgment. Celotex Corp., 477 U.S. at 323–24. Under this standard, “the mere
existence of a scintilla of evidence” in favor of the nonmovant’s position cannot withstand
the summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
“Likewise, conclusory allegations or denials, without more, are insufficient to preclude
granting the summary judgment motion.” Wai Man Tom, 980 F.3d at 1037 (citing Strickler
v. Waters, 989 F.2d 1375,1383 (4th Cir. 1993)).
III.
Guided by this standard, we start with Richardson’s ADA arguments on appeal.
First, we will review the ADA’s framework. Then, we turn to the evidence presented by
the VDOC before analyzing whether the evidence offered by Richardson in response
created a genuine dispute of material fact.
A.
The ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. To make out a violation of the ADA, a plaintiff must show that:
(1) he has a disability; (2) he is otherwise qualified to receive the benefits of a public
service, program or activity and (3) he was denied those benefits, or otherwise
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discriminated against, based on his disability. Constantine v. Rectors & Visitors of George
Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).
The ADA permits plaintiffs to pursue three distinct grounds for relief: (1) intentional
discrimination or disparate treatment; (2) disparate impact and (3) failure to make
reasonable accommodations. Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 n. 5
(4th Cir. 2016) (citing A Helping Hand, LLC v. Baltimore Cty., Md., 515 F.3d 356, 362
(4th Cir. 2008)). Richardson’s ADA claim is based the third ground—that the VDOC failed
to make reasonable accommodations.
“Not all public services, programs, or activities can be made meaningfully
accessible to all citizens, or at least they cannot be made so without a prohibitive cost or
unreasonable effort on the part of the public entity.” Lamone, 813 F.3d at 507. Accordingly,
“to prevail on [an] ADA claim, plaintiffs must propose a reasonable modification to the
challenged public program that will allow them the meaningful access they seek.” Id. “A
modification is reasonable if it is ‘reasonable on its face’ or used ‘ordinarily or in the run
of cases’ and will not cause ‘undue hardship.’” Id. (quoting Halpern, 669 F.3d at 464).
B.
In support of its motion for summary judgment on Richardson’s ADA claims, the
VDOC submitted multiple affidavits from the warden and operations manager at the
Deerfield facility. Those affidavits detail the accommodations provided to Richardson for
his disabilities.
Deerfield scheduled times for inmates with language challenges to meet in person
with American Sign Language (“ASL”) interpreters for about five hours each week. J.A.
8
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190–91. As Richardson notes, the COVID-19 pandemic forced the correction facility to
suspend its in-person ASL visits. J.A. 140, 152. But when that occurred, it arranged for
video-based interpreter services to aid Richardson with his medical appointments. J.A. 140.
When Richardson claimed that this accommodation would not work for him, the prison
staff tried to communicate with him using a computer set in a blue/green screen contrast
that Richardson had previously requested. J.A. 14;140–41.
In addition, Deerfield “purchased a [$1,600] magnifying device to assist Richardson
[in viewing] documents posted in his housing area.” J.A. 143. Deerfield created flash cards
in the blue/green screen contrast that Richardson said he prefers to facilitate
communication with prison staff. J.A. 141. His housing area has a regular phone, a
Telecommunication Device for the Deaf machine, a video phone and a computer kiosk.
J.A. 143. Richardson has a JPay device, which is like an iPad, that he uses to send and
receive secured messages. J.A. 143–44. Deerfield provided a UbiDuo device with two
connected tablets, one of which is used by staff and one of which can be used by an inmate,
to enhance communication with inmates who are hard of hearing. J.A. 146. And Deerfield
offered a SARA device that can read printed text out loud for someone who cannot read
for themselves, either due to literacy issues or a disability. Id.
Deerfield provided additional accommodations for Richardson to review and
compose legal materials. After Richardson “complained that he could not use the
typewriters to compose his legal documents, he was permitted to use the law library
computers for this purpose. This is an exception to the VDOC’s policy, which generally
does not permit inmates to use computers for this purpose.” J.A. 145. In addition, the staff
9
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adjusted the computer settings and the legal software program to a certain visual contrast
to aid Richardson in reading.
Further, with its affidavits, the VDOC submitted several electronic messages sent
by Richardson using his JPAY device that describe his activities at Deerfield and a video
of Richardson using a computer and communicating with another inmate in his housing
area without help from an ASL interpreter. In those messages, Richardson admits that he
is able to (1) visit the law library, including times that other inmates could not; (2) read
material on a tablet; (3) listen to music; (4) watch movies; (5) draft and read emails and (6)
otherwise participate in normal prison life. J.A. 193–207.
C.
In response to the VDOC’s motion for summary judgment, Richardson submitted
two documents. J.A. 152–70; 209–13.
In his first submission, Richardson does not address the substantive arguments made
by the VDOC or the evidence the VDOC argues establishes that it provided reasonable
accommodations. Instead, he argues that policies enacted by the VDOC in response to the
COVID-19 pandemic were unreasonable. J.A. 152–54.
In his second submission, Richardson states that he was previously provided a
prison caregiver who helped read legal filings to him, but that since August 2020, that
service has not been allowed. J.A. 210. He also insists he needs more than five hours per
week with ASL interpreters so that he can keep up in the current litigation. J.A. 210–11.
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Besides these complaints, Richardson does not directly address any of the VDOC’s filings
other than to say that they are “fraught with inaccuracies.” Id.
D.
So did Richardson create a genuine issue of material fact as to his ADA claim? He
did not.
Richardson argues that the district court ignored the evidence he submitted in his
filings. But the district court did not ignore the evidence. It simply disagreed with
Richardson’s position that his filings created a genuine dispute of material fact. And for
three reasons, we agree.
First, Richardson’s conclusory assertion that the VDOC’s affidavits are “fraught
with inaccuracies” does not defeat a motion for summary judgment. To repeat, “conclusory
allegations or denials, without more, are insufficient to preclude granting the summary
judgment motion.” Wai Man Tom, 980 F.3d at 1037.
Second, Richardson’s criticisms of the VDOC’s suspension of in-person ASL visits
at Deerfield during COVID, Deerfield’s failure to provide him with more than five hours
of such ASL interpreter services once the COVID restrictions ended and Deerfield’s refusal
to allow his caregiver to read legal documents to him fare no better. J.A. 209–211. The
ADA only requires “a reasonable modification to the challenged public program that will
allow [an inmate] the meaningful access they seek.” Lamone, 813 F.3d at 507. Richardson
offers no evidence to create a genuine issue of material fact on this issue of the
reasonableness of the accommodations provided by Deerfield. He offered only criticisms
and requests for more accommodations. That is not enough. And no reasonable factfinder
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could determine that Richardson’s desire for more accommodations meant that the
extensive ones the VDOC provided at Deerfield were unreasonable.
Accentuating this point, context, as it often does, matters. Here, our context is a
prison. We view the reasonableness of accommodations through the lens of operating a
prison. Torcasio v. Murray, 57 F.3d 1340, 1355 (4th Cir. 1995); see also Havens v.
Colorado Dep’t of Corrs., 897 F.3d 1250, 1269 (10th Cir. 2018) (“[M]eaningful access
and the question of whether accommodations are reasonable must be assessed through the
prism of the prison setting.”) (citations omitted). And that vantage point requires some
deference to those who run prisons. See Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64,
78 (2d Cir. 2016) (“[P]risons are unique environments where ‘deference to the expert
views’ of prison administrators is the norm.”) (quoting Pierce v. Cty. of Orange, 526 F.3d
1190, 1217 (9th Cir. 2008)). The ADA just does not require prisons to “to employ any and
all means to make services available to persons with disabilities.” Miller v. Hinton, 288
Fed. App’x 901, 902 (4th Cir. 2008). In sum, Richardson has not offered evidence to create
a genuine issue of material fact as to the reasonableness of the accommodations provided
by the VDOC.
Third, Richardson’s claims cannot be squared with the record here. His complaint
spans 50 pages and totals 148 numbered paragraphs. It and his other filings show that the
accommodations the VDOC did provide permitted Richardson to read, research and
compose detailed legal filings. Likewise, the messages and video recordings the VDOC
submitted illustrate Richardson’s ability to use the equipment provided by the VDOC in a
way that allows him to participate in normal prison life. “When opposing parties tell two
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different stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). We are,
of course, required to consider the evidence in the light most favorable to Richardson. But
even doing that, no reasonable factfinder could conclude on this record that the
accommodations provided to Richardson did not afford him “meaningful access” to all
programs at Deerfield. Lamone, 813 F.3d at 507. 5
IV.
We now turn to Richardson’s RLUIPA claim.
A.
The RLUIPA provides, in part, that:
No government shall impose a substantial burden on the religious exercise
of a person residing in or confined to an institution . . . unless the government
demonstrates that imposition of the burden on the person - -
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling government
interest.
5
Richardson also appeals the district court’s order dismissing his claim for damages
under the ADA at the motion to dismiss stage on sovereign immunity grounds because he
failed to plead a companion constitutional claim along with his ADA claim. Op. Br. 19–
20. We acknowledge that the district court failed to apply the framework set forth in United
States v. Georgia, 546 U.S. 151 (2006), to determine whether the ADA validly abrogates
state sovereign immunity in the prison context for conduct that does not independently
violate the Constitution. But because we agree that Richardson’s ADA claim for injunctive
relief fails on the merits, his claim for damages fails as well. Thus, we find it unnecessary
to address this issue. See Constantine, 411 F.3d at 482 (4th Cir. 2005) (finding that the
court need not address Eleventh Amendment immunity before addressing other dispositive
matters).
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42 U.S.C. § 2000cc–1(a). A plaintiff seeking relief under the RLUIPA bears the initial
burden of proving that the challenged policy “implicates his religious exercise.” Holt v.
Hobbs, 574 U.S. 352, 360 (2015).
If a plaintiff meets this initial burden, RLUIPA claims proceed in two stages. “At
the first stage, . . . the plaintiff must show that the prison’s policies imposed a substantial
burden on his exercise of sincerely held religious beliefs.” Wright v. Lassiter, 921 F.3d
413, 418 (4th Cir. 2019) (citing Carter v. Fleming, 879 F.3d 132, 139–40 (4th Cir. 2018)).
In order to show that his religious beliefs have been substantially burdened, a plaintiff must
show that a government entity has substantially pressured him to modify his behavior and
violate his beliefs. Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006).
If the plaintiff can make that showing, the court proceeds to the second stage to
determine whether the prison’s policies are justified despite the imposed burden. Under the
RLUIPA, the government has the burden to show that its policy satisfies strict scrutiny:
that is, the policies must represent the least restrictive means of furthering a compelling
governmental interest. 42 U.S.C. § 2000cc–1(a); Holt, 574 U.S. at 357–58.
B.
When this lawsuit was filed, the VDOC’s procedures granted the warden at each
prison facility discretion to determine the times, locations and circumstances in which
personal clothing, including religious head coverings, could be worn. J.A. 135.
At Deerfield, based on the warden’s decision, inmates could wear religious head
coverings in the same manner as nonreligious head coverings. Id. Head coverings needed
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to be removed in certain areas of the prison, such as the dining hall, visiting room and
administrative buildings. Id.
After Richardson sued, the VDOC changed its head covering policy. J.A. 138. The
new policy permits inmates to wear religious head coverings anywhere inside a VDOC
facility as well as when participating in outside work assignments. J.A. 138. Inmates are
now only required to remove head coverings for search purposes when requested by
security personnel. J.A. 138.
Despite this policy change, Richardson seeks prospective relief to prevent the
VDOC from returning to its prior policy. On appeal, Richardson argues that the district
court erred in determining that he failed to show that the prior policy imposed a substantial
burden. He argues that the substantial burden is obvious. Op. Br. 12. In his view, he alleged
that his religion requires him to wear a head covering at all times, and facially, the policy
prevented him from doing so. Id.
C.
The parties agree that Richardson has satisfied his burden of proving that the head
covering policy implicates his sincerely held religious beliefs. J.A. 114. They disagree,
however, about whether Richardson satisfied his burden of showing that the prior policy
imposed a substantial burden. 6
6
In a prior case, the VDOC conceded that its headwear policy imposed a substantial
burden. Goins v. Fleming, 2017 WL 4019446, at *4 (W.D. Va. Sep. 12, 2017). Likewise,
the VDOC does not argue here that the prior policy does not impose a substantial burden.
Resp. Br. 45–46. The VDOC merely asserts that Richardson failed to meet his burden of
proof on the issue. Id.
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To begin with, in moving for summary judgment, the VDOC did not argue that
Richardson failed to establish a substantial burden on his religious beliefs. Instead, it
argued that Richardson’s RLUIPA claim was moot as a result of the policy change
permitting inmates to wear religious head coverings in all areas of the prison. J.A. 115–17.
And it asserted that even if Richardson’s claim was not moot, the Prison Litigation Reform
Act (“PLRA”) prevented the district court from issuing an injunction. 7 J.A. 117.
The district court determined that, despite the policy change, Richardson’s claim
was not moot because the VDOC failed to prove that it would not return to its prior policy
restricting the wearing of head coverings in certain areas. 8 J.A. 243. But even though the
VDOC had not raised the issue, the district court then held that Richardson failed to show
that the prior policy imposed a substantial burden. J.A. 245–249. And because it held that
Richardson’s RLUIPA claim failed at the first step, it did not conduct an analysis as to
7
The PLRA provides, in relevant part:
Prospective relief in any civil action with respect to prison conditions shall
extend no further than necessary to correct the violation of the Federal right
of a particular plaintiff or plaintiffs. The court shall not grant or approve any
prospective relief unless the court finds that such relief is narrowly drawn,
extends no further than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the violation of the
Federal right. The court shall give substantial weight to any adverse impact
on public safety or the operation of a criminal justice system caused by the
relief.
18 U.S.C. § 3626(a)(1).
8
The district court appeared to agree with the VDOC concerning the PLRA. In a
footnote, the district court stated that even if the prior policy imposed a substantial burden,
the PLRA “likely” prevented it from awarding injunctive relief. J.A. 243 n.8.
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whether the policy represents the least restrictive means of furthering a compelling
governmental interest. 9
To begin with, we question the district court’s decision to grant summary judgment
to the VDOC on an issue it failed to raise. In the summary judgment context, Rule 56(f)
describes how a court may rule on an issue not raised by the moving party. Under the rule,
a district court, “after giving notice and a reasonable time to respond,” is permitted to “grant
[summary judgment] on grounds not raised by a party; or consider summary judgment on
its own after identifying for the parties material facts that may not be genuinely in dispute.”
Fed. R. Civ. P. 56(f); see also Jehovah v. Clarke, 798 F.3d 169, 177 (4th Cir. 2015) (holding
that the district court erred in failing to give notice and an opportunity to respond before
addressing the substantial burden prong when the parties did not address it in their
summary judgment briefing).
We see nothing in the record indicating that Richardson was afforded notice and an
opportunity to respond on the issue of substantial burden of his religious exercise before
the district court ruled against him. This, along with the fact that the VDOC did not address
whether its policy imposed a substantial burden on Richardson’s sincerely held religious
beliefs in its memorandum in support of summary judgment, may explain why Richardson
9
Richardson challenges the district court’s discussion about whether the policy is
rationally related to a legitimate penological interest. In so doing, he argues the district
court applied the wrong level of scrutiny. Op. Br. 17. But a review of the order shows that
the district court’s rational relation discussion pertained only to Richardson’s First
Amendment free exercise claim. Since Richardson did not appeal the district court’s order
on that claim, we need not address this issue.
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did not do more to address that issue in his response to the VDOC’s motion for summary
judgment. See Carter v. Fleming, 879 F.3d 132, 140 (4th Cir. 2018) (finding that an inmate
had “no notice that he needed to develop evidence” showing that a prison policy imposed
a substantial burden where defendants failed to argue the issue on summary judgment). 10
But regardless of notice, the record establishes that the prior VDOC policy imposed
a substantial burden. Along with the allegations in Richardson’s complaint, the affidavit of
Tammy Williams, the Warden at Richardson’s facility, stated that she “understand[s] that
Inmate Richardson claims that it is [his] sincere religious belief that he wear his kufi, a
religious head covering, in all areas of Deerfield.” J.A. 130 (emphasis added). Put another
way, the VDOC concedes that Richardson holds a sincerely held belief that his religion
requires that he wear a head covering at all times and in all places.
Thus, the prior policy required Richardson to either violate his religious beliefs—
by refraining from wearing a head covering at all times—or risk discipline at Deerfield for
violating the policy. In other words, Deerfield’s head covering policy placed Richardson
between the proverbial rock and a hard place. 11 Doing so substantially burdens his religious
beliefs under the RLUIPA. Lovelace, 472 F.3d at 187 (a substantial burden on religious
Since Richardson did not argue on appeal that the district court’s order failed to
10
comply with Rule 56(f), he provides no explanation on this point.
11
There is some dispute over the origins of this phrase. Some claim it arose in the
twentieth century to reflect choices miners in the Southwestern United States faced. Others
attribute the phrase to Homer’s Odyssey. There, Odysseus had to choose to pass through
either the dangerous whirlpool Charybdis or the cliff occupied by man-eating monster
Scylla. Regardless of the phrase’s origin, it reflects the predicament of choosing between
the lesser of two evils that Richardson claims he faced here.
18
USCA4 Appeal: 21-6507 Doc: 54 Filed: 11/07/2022 Pg: 19 of 20
exercise is one in which “a state or local government, through act or omission, put[s]
substantial pressure on an adherent to modify his behavior and violate his beliefs . . .”); see
also Incumaa v. Stirling, 791 F.3d 517, 525 (4th Cir. 2015) (explaining that a prison policy
imposes a substantial burden if it “places the person between a rock and a hard place”);
Couch v. Jabe, 679 F.3d 197, 200–01 (2012) (“[R]emoving privileges in [an] effort to
compel compliance, despite not physically forcing [an] inmate to cut his hair, qualifies as
[a] substantial burden.”) (citing Warsoldier v. Woodford, 418 F.3d 989, 995–96 (9th Cir.
2005)). 12
We find that Richardson met his burden of showing that the prior policy imposed a
substantial burden. Thus, we vacate that portion of the district court’s order and remand for
further proceedings.
D.
At oral argument, the VDOC argued that the RLUIPA “safe harbor” provision
precludes Richardson’s claim for injunctive relief as a result of its policy change permitting
inmates to wear religious head coverings in all areas of the prison facility. That provision
provides:
A government may avoid the preemptive force of any provision of this
chapter by changing the policy or practice that results in a substantial burden
on religious exercise, by retaining the policy or practice and exempting the
12
We agree with the district court that, although suspended, the prior policy is not
moot because the VDOC “failed to meet their heavy burden of establishing that it is
absolutely clear that the [prior head covering policy] will not be reinstated.” Wall v. Wade,
741 F.3d 492, 497 (4th Cir. 2014) (citation omitted). And to the extent the district court
held that the PLRA precludes forward-looking relief, our decision in Porter v. Clarke, 923
F.3d 348, 366 (4th Cir. 2019), holds otherwise.
19
USCA4 Appeal: 21-6507 Doc: 54 Filed: 11/07/2022 Pg: 20 of 20
substantially burdened religious exercise, by providing exemptions from the
policy or practice for applications that substantially burden religious
exercise, or by any other means that eliminates the substantial burden.
42 U.S.C. § 2000cc-3(e).
Importantly, this issue was not raised before the district court. Generally, parties
may not raise new arguments on appeal that were not first presented to the district court
below, absent exceptional circumstances. See, e.g., In re Under Seal, 749 F.3d 276, 285
(4th Cir. 2014). Further, while this issue was mentioned in the VDOC’s brief to us, its only
treatment was in a footnote that simply cites the text of the statute with no substantive
discussion about its application to the facts here. See Resp. Br. 49 n. 22. Accordingly,
without expressing a view one way or the other, we find that the pertinence of the RLUIPA
“safe harbor” provision is best left to be considered by the district court on remand.
V.
For all these reasons, we affirm the district court’s grant of summary judgment in
part, vacate in part and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART
AND REMANDED
20 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482374/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
L. DENISE WOODSON,
Plaintiff,
v. Case No. 1:20-cv-02668-TNM
RONALD E. SMITH, JR., et al.,
Defendants.
MEMORANDUM OPINION
Denise Woodson, proceeding pro se, sues the nonprofit organization that formerly
employed her for discrimination under the Americans with Disabilities Act (ADA) and the D.C.
Human Rights Act (DCHRA). The organization now moves for summary judgment. It argues
that Woodson has failed to create a genuine issue of material fact over the cause of her
termination. The Court agrees because the organization offers a legitimate, nondiscriminatory
reason for firing Woodson that she has not rebutted with evidence of pretext. The Court will
therefore grant the organization’s motion for summary judgment. 1
I.
Woodson worked for Edgewood Brookland Family Support Collaborative
(“Edgewood”), an organization dedicated to stronger families, workforce development, housing
stabilization, and school-based programs. See Compl. ¶¶ 1, 5, ECF No. 1. Edgewood hired
1
As in her Complaint, Woodson again purports to sue other employees of the organization. See
generally Opp’n, ECF No. 27. But as the Court already explained, Woodson never served these
Defendants and therefore cannot sue them. See Woodson v. Smith, No. 20-cv-2668, 2021 WL
4169357, at *1 n.1 (D.D.C. Sept. 14, 2021).
1
Woodson as a Youth Coordinator in 2014 and promoted her to Community School Coordinator
three years later. See id. Woodson alleges that she has long suffered from endometriosis, a
painful condition “affecting several major life activities.” Id. ¶ 6. But Woodson claims that she
“perform[ed] exceptionally” despite her condition, “never received a dissatisfactory performance
evaluation,” and “never was demoted or suspended” before her termination in 2019. Id. ¶ 8; see
also Opp’n ¶ 3, ECF No. 27.
Woodson and Edgewood disagree as to why she was fired. According to Woodson,
Edgewood terminated her because of her endometriosis. See Compl. ¶¶ 27–29; see also Opp’n ¶
2. Woodson asserts that she “always remained professional” at work and was “well respected by
the leaders of the schools with whom she worked.” Opp’n ¶¶ 3, 6.
Edgewood disagrees. It contends that it fired Woodson because she “engag[ed] in a
public verbal altercation and shov[ed] a colleague” in front of the organization’s new chief
executive officer. Def.’s Mot. for Summ. J. (Def.’s MSJ) at 1, ECF No. 25; Def.’s Stmt. of
Material Facts Without Genuine Issue (SMF) ¶¶ 18–23, ECF No. 25. 2 Edgewood also submits
that Woodson “has a history of engaging in verbal altercations with co-workers.” SMF ¶ 24; see
also Def.’s MSJ, Ex. E (DuPree Decl.), ECF No. 25-6 (declaration from her former supervisor);
Ex. J, ECF No. 25-11 (email complaint from her co-worker).
2
In this district, a party opposing a motion for summary judgment must comply with Local Rule
7.1(h), which requires her to file “a separate concise statement of genuine issues setting forth all
material facts” that she disputes. LCvR 7.1(h); see also SEC v. Banner Fund Int’l, 211 F.3d 602,
616 (D.C. Cir. 2000). Woodson did not file any such document, so the Court considers
Edgewood’s statement of undisputed facts admitted. See Jackson v. Finnegan, Henderson,
Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (explaining that “strict
compliance” with this rule is justified).
2
The backstory is as follows. In November 2019, Edgewood hired Lisette Bishins as its
new CEO. SMF ¶ 12. Two days later, Bishins introduced herself during a meeting with
Edgewood’s staff and Board of Directors. See id. ¶¶ 14–15. During the meeting, Bishins
“provided a preliminary overview of her expectations which stressed a no tolerance policy for
unprofessional behavior.” Id. ¶ 16. And Edgewood’s Finance Manager Rickell Smith
introduced herself and the finance department. Id. ¶ 17.
After Smith finished speaking, Edgewood says that Woodson “made unprofessional and
rude comments about [] Smith and the services she provided.” Id. ¶ 18. Smith approached
Woodson to “question [her] about her comment to resolve her issue” after the meeting, but
Woodson “began yelling” at Smith. Id. ¶¶ 19–20. This occurred in front of Bishins, Woodson’s
supervisor Kristine DuPree, members of the Board of Directors, and Chief Program Officer
Ronald E. Smith, Jr. See id. ¶¶ 3, 7; see also Def.’s MSJ, Ex. G (Smith Decl.) ¶ 7, ECF No. 25-
8; DuPree Decl. ¶ 10.
But that was not all. After the meeting, Woodson “pushed another co-worker, Ashanti
Brown . . . and engaged in a verbal altercation with him.” SMF ¶ 23. Brown submitted a written
complaint documenting the incident. See id.; see also Def.’s MSJ, Ex. I, ECF No. 25-9. Then,
Woodson entered DuPree’s office, where she “remained agitated and spoke [loudly] despite
requests . . . to calm down.” Id. ¶ 21. Rather than allowing her supervisor to informally mediate
the disagreement, Woodson asked to leave work for the day. Id. ¶ 22; see also DuPree Decl. ¶
17.
Woodson describes these events differently. She states that Smith “instigated” the
incident by “accost[ing]” Woodson after the meeting. Opp’n ¶ 7. Woodson contends that she
“did not yell and only responded professionally” to Smith. Id. Woodson also states that the
3
alleged incident where she pushed Brown “is false” and that Brown was in an improper
relationship with another employee at the time. Id. ¶ 8.
Bishins suspended Woodson on the day of the alleged incident and scheduled a meeting
with her five days later. See SMF ¶¶ 25–26. At that meeting, Bishins fired Woodson. See id. ¶¶
27–28. Edgewood submits that Bishins was an external hire with no “background information
regarding any employee’s personnel or medical” situation. Id. ¶¶ 13, 30. And Edgewood
contends that Bishins did not review any “medical-related files prior to the decision to terminate”
Woodson, id. ¶ 29, or even know that Woodson had a disability, see id. ¶¶ 31–32; see also Def.’s
Reply in Support of Mot. for Summ. J., Ex. M ¶ 19, ECF No. 28-1 (declaration from
Edgewood’s HR consultant). “Bishins was the ultimate decision-maker in terminating
[Woodson].” SMF ¶ 33; see also Smith Decl. ¶ 14.
Edgewood advised Woodson in a letter that it terminated her employment “based on the
most recent incident involving boisterous, disruptive, disrespectful and improper conduct
because this is a direct violation of the organization’s Standards of Conduct policy.” Opp’n, Ex.
J. (Termination Letter) at 89, ECF No. 27-1. Edgewood’s Employee Handbook prohibits
‘“fighting or threatening violence in the workplace,’ ‘boisterous or disruptive activity in the
workplace,’ ‘insubordination or other disrespectful conduct,’ and ‘unsatisfactory performance or
conduct.’” SMF ¶ 4; see also Def.’s MSJ, Ex. C at 75–76, ECF No. 25-4 (Handbook). The
Handbook also provides that employees are expected to follow rules of conduct to “protect the
interests and safety of all staff and the organization.” SMF ¶ 3; Handbook at 75. And the
Handbook explains that Edgewood “may terminate [the employment] relationship at any time,
with or without cause, and with or without advance notice.” Handbook at 76.
4
Woodson, however, accuses Edgewood of not following its own progressive discipline
policies before terminating her. See Opp’n ¶¶ 4–5. True, the Handbook includes such policies.
See Handbook at 76 (setting out progressive disciplinary steps, including a verbal warning, a
written warning, and a suspension prior to termination). But the Handbook also “recognizes that
there are certain types of employee problems . . . serious enough to justify either a suspension,
or, in extreme situations, termination of employment, without going through the usual
progressive discipline steps.” Handbook at 76; see also SMF ¶ 5.
Woodson originally sued Edgewood under the ADA and DCHRA alleging retaliation and
disability discrimination after it fired her. See generally Compl. The Court granted Edgewood’s
motion to dismiss Woodson’s ADA retaliation claim but allowed her ADA and DCHRA
disability discrimination claims to proceed. See Woodson v. Smith, No. 20-cv-2668, 2021 WL
4169357 (D.D.C. Sept. 14, 2021). In doing so, the Court noted that Woodson struggled to meet
her burden because she never alleges that Bishins, who allegedly decided to fire her, knew about
her disability. See id. at *4.
Edgewood’s motion for summary judgment on Woodson’s ADA and DCHRA disability
discrimination claims is now ripe.
II.
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact
is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute
about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a
5
verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008)
(quoting Anderson, 477 U.S. at 248).
The Court views the facts in the light most favorable to the non-moving party. See Scott
v. Harris, 550 U.S. 372, 378 (2007). But her opposition must consist of more than mere
unsupported allegations or denials. See Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986).
The non-moving party must provide evidence that would permit a reasonable factfinder
to find in her favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). Such
evidence may include affidavits, declarations, or other similar materials setting forth specific
facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c); see also Celotex
Corp., 477 U.S. at 323–24. A “mere . . . scintilla of evidence” in support of the non-movant’s
position cannot defeat a motion for summary judgment. Anderson, 477 U.S. at 252.
Because Woodson is pro se, the Court “liberally construe[s]” her filings and holds them
“to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007). But Woodson must still comply with the Federal and Local Rules. See
Hedrick v. FBI, 216 F. Supp. 3d 84, 93 (D.D.C. 2016). Woodson must show that a genuine issue
of material fact exists as to whether Edgewood discriminated against her because of her
disability. See Fed. R. Civ. P. 56(a).
III.
The ADA and DCHRA prohibit employers from “discriminating against an individual
with a disability who, with reasonable accommodation, can perform the essential functions of the
job.” McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 5 (D.C. Cir. 2010)
(cleaned up). Under the ADA, an employer “shall [not] discriminate against a qualified
6
individual on the basis of disability in regard to . . . discharge[.]” 42 U.S.C. § 12112(a).
Similarly, under the DCHRA, “[i]t shall be an unlawful discriminatory practice” for an employer
“to discharge[] any individual[] or otherwise to discriminate against any individual, with respect
to . . . compensation, terms, conditions, or privileges of employment” either “wholly or partially
for a discriminatory reason based upon . . . disability.” D.C. Code § 2-1402.11(a). This Court
applies the same analysis to claims under the ADA and the DCHRA. See Giles v. Transit Emps.
Fed. Credit Union, 794 F.3d 1, 5 (D.C. Cir. 2015).
When, as here, a plaintiff relies on indirect evidence of discrimination, the burden-
shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973),
applies. See Giles, 794 F.3d at 5. Under the framework, Woodson must first show a prima facie
case of discrimination based on disability. See Brady v. Off. of the Sergeant at Arms, 520 F.3d
490, 493 (D.C. Cir. 2008) (Kavanaugh, J.). The prima facie case includes showing that
Woodson has a disability under the ADA; that she was qualified for her position with or without
a reasonable accommodation; and that she suffered an adverse employment action because of her
disability. See, e.g., Swanks v. WMATA, 179 F.3d 929, 934 (D.C. Cir. 1999).
But the Circuit has since simplified the inquiry. Today, “judicial inquiry into the prima
facie case is usually misplaced [because] [i]n the years since McDonnell Douglas, the Supreme
Court’s decisions have clarified that the question whether the employee made out a prima facie
case is almost always irrelevant.” Brady, 520 F.3d at 493. This is so because at the summary
judgment stage, “once the employer asserts a legitimate non-discriminatory reason, the question
whether the employee actually made out the prima facie case is no longer relevant.” Id. (cleaned
up).
7
When deciding whether Edgewood has asserted a legitimate, nondiscriminatory reason
for firing Woodson, the Court considers four factors: (1) whether Woodson produces evidence
that would be admissible at trial; (2) whether the factfinder, if it believed Edgewood’s evidence,
is “reasonably . . . able to find that [its] action was motivated by a nondiscriminatory reason”; (3)
whether Edgewood’s proffered reason is “facially credible in light of the proffered evidence”;
and (4) whether Edgewood provides a “clear and reasonably specific explanation” for its action.
Figueroa v. Pompeo, 923 F.3d 1078, 1088–89 (D.C. Cir. 2019) (cleaned up). “[T]he issue is not
the correctness or desirability of the reasons offered but whether the employer honestly believes
in the reasons it offers.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)
(cleaned up).
If Edgewood proffers a legitimate, nondiscriminatory reason for firing Woodson, the
burden shifts back to her. The Court then focuses on whether Woodson has produced enough
evidence for a reasonable jury to find that Edgewood’s explanation was not the actual basis for
its action and that discrimination was the real reason. See Brady, 520 F.3d at 493. In other
words, the focus is on Woodson’s ability to prove pretext. See Oviedo v. WMATA, 948 F.3d 386,
395 (D.C. Cir. 2020). A plaintiff’s disagreement with, or disbelief of, the employer’s
explanation cannot, without more, “satisfy the burden of showing that a reasonable jury could
find that the employer’s asserted reason was not the actual reason and that the employer
intentionally discriminated against the plaintiff on a prohibited basis.” Burton v. District of
Columbia, 153 F. Supp. 3d 13, 58 (D.D.C. 2015).
A.
Edgewood has offered a legitimate, nondiscriminatory reason for firing Woodson. So
Woodson’s prima facie case “drops out of the picture” because this Court “has before it all the
8
evidence it needs to decide whether the defendant intentionally discriminated against
[Woodson].” Brady, 520 F.3d at 493–94. Edgewood argues that it fired Woodson because of
“two separate incidents of embarrassingly unprofessional conduct” in the presence of “the newly
appointed CEO and Board of Directors immediately following a meeting where professionalism
was discussed.” SMF ¶ 27; Def.’s MSJ at 6–9.
Edgewood claims that Woodson both argued with Smith and pushed and argued with
Brown. See Def.’s MSJ at 8–9. Woodson’s “disruptive and disrespectful conduct (by yelling at
her co-workers) and fighting (two fights – one verbal and the other verbal and physical),”
occurring “within minutes of each other and in front of the CEO . . . violated the [S]tandards of
[C]onduct” set forth in the Employee Handbook. Id. at 9; see also id., Ex. I; see also Smith
Decl. ¶¶ 7–8. These incidents, along with Woodson’s “history of verbal altercations” with co-
workers, led Edgewood to suspend and ultimately terminate her employment. See SMF ¶ 27;
Def.’s MSJ at 6–9. Edgewood thus successfully points to admissible evidence of a
nondiscriminatory and facially credible reason for firing Woodson. See Figueroa, 923 F.3d at
1088–89. And Edgewood provides a “clear and reasonably specific explanation” for its action.
Id.
B.
The burden now shifts back to Woodson. She must produce enough evidence for a
reasonable jury to find that Edgewood’s proffered explanation was not the actual reason for her
termination, and that discrimination was. The Court understands Woodson to make four
arguments, none of which shows pretext.
First, Woodson equates her request for intermittent leave under the FMLA to a request
for a reasonable accommodation under the ADA. She notes that her termination followed soon
9
after her FMLA request, see Opp’n ¶ 17, and that Edgewood’s “failure to accommodate [her]
FMLA request for [her] endometriosis condition” is discriminatory, id. ¶ 2. But the evidence
belies this assertion. The record reveals that Edgewood granted Woodson’s request for
intermittent leave under FMLA. See SMF ¶ 10. And Edgewood also submits that Woodson “did
not request a reasonable accommodation [under the ADA] for her endometriosis or any other
disability.” Id. ¶ 9. Woodson provides no evidence to the contrary.
More, Edgewood could not plausibly grant Woodson an “accommodation” under the
FMLA. See Waggel v. Geo. Wash. Univ., 957 F.3d 1364, 1373 (D.C. Cir. 2020) (cleaned up)
(noting that the “scope of entitlements under the ADA includes a range of reasonable
accommodations while the FMLA authorizes only leave”). While an employee’s “request can
trigger both the FMLA and the ADA through language that independently satisfies the
requirements of both statutes,” id. at 1373 n.2, Woodson fails to establish that her request for
intermittent FMLA leave also should have been construed as a request for a reasonable
accommodation for a disability. That Woodson justified occasional absences from work because
of a medical condition is not a request that her former employer grant accommodations so that
she could perform the functions of her job.
Second, Woodson characterizes her behavior as “always . . . professional,” Opp’n ¶ 1,
while downplaying her own culpability. She accuses Smith of being the aggressor, see id. ¶ 7,
and denies that the fight with Brown ever occurred, see id. ¶ 8. And she tries to dismiss
Edgewood’s claim that she has had a “history of engaging in verbal altercations with co-
workers,” SMF ¶ 24, as “unfounded, untrue and retaliatory in nature,” Opp’n ¶ 10. But
Woodson failed to dispute Edgewood’s Statement of Material Facts Without Genuine Issue as to
these claims, and she offers no evidence supporting her assertions.
10
To be sure, Woodson submits documentation that Edgewood raised her pay, see id., Ex.
A, ECF No. 27-1, and that her annual performance appraisals were historically above average,
see id., Ex. B, ECF No. 27-1. But these general indicia of her workplace conduct do not show
that she never fought with Brown or that Smith was the aggressor. Indeed, Woodson’s
documentation predates the incidents that Edgewood claims led to her termination. The
affidavits Woodson submits from a former Edgewood employee do not support her claims either.
See id., Exs. D, F, G, ECF No. 27-1. In short, Woodson’s evidence for her claims about
professionalism boils down to her own self-perception. But Woodson’s attempt to “demonstrate
that the employer is making up or lying about the underlying facts that informed the predicate for
the employment decision” crumbles against the weight of Edgewood’s evidence. Brady, 520
F.3d at 495.
Third, Woodson faults Edgewood for not following its progressive discipline policies.
See Opp’n ¶ 5. She also argues that Edgewood neither rated her job performance unsatisfactory
nor disciplined her for unprofessional behavior before her termination. See id.; see also id., Ex.
B. But job performance was not the reason Edgewood fired Woodson, and the lack of prior
discipline would not preclude discipline for her conduct in front of the CEO, Board Members,
and her co-workers. By its terms, the Employee Handbook permits termination of employment
without first going through the three-step progressive discipline process if the employee conduct
is sufficiently egregious. See Handbook at 77. Edgewood considered Woodson’s “boisterous,
disruptive, disrespectful and improper” conduct, Termination Letter at 89, to be sufficiently
serious. Woodson’s dissatisfaction or disagreement with the decision is irrelevant. See Burton,
153 F. Supp. 3d at 58.
11
Fourth, Woodson asserts that Bishins “had significant background concerning
[Woodson’s] medical history or ADA/FMLA requests prior to [her] termination.” Opp’n ¶ 15;
see also id. ¶¶ 16–17. But the exhibits Woodson cites to do not prove this claim. See id., Ex. H
(email about a new HR consultant); Ex. I (email from Bishins after the meeting telling Woodson
to take a few days off before meeting to discuss the incidents); Ex. J (Woodson’s termination
letter). Nor do any of Woodson’s other exhibits—including a few affidavits—that she submits.
Though one affiant states that Woodson’s HR manager divulged Woodson’s medical condition
to another employee, it says nothing about the HR manager telling Bishins. See Ex. F. Woodson
has therefore offered no declaration, affidavit, or exhibit showing that Bishins knew of her
disability or her prior accommodation requests. Unsupported assertions of fact at the summary
judgment stage—even levied by pro se plaintiffs—cannot defeat “supported assertions” by
defendants. Oviedo, 948 F.3d at 397 (holding that summary judgment for defendant was proper
where a pro se plaintiff levied an allegation in his opposition but did not provide a declaration or
affidavit proving it).
Ultimately, Woodson offers no evidence to rebut Edgewood’s statements that Bishins did
not know about her disability, see SMF ¶ 31; Ex. G, and that Bishins alone made the termination
decision, see SMF ¶ 33; Ex. G. An employer cannot discriminate because of a disability if it
knows nothing about it. See Conn v. Am. Nat’l Red Cross, 149 F. Supp. 3d 136, 149 (D.D.C.
2016).
Woodson disagrees with Edgewood’s decision to fire her. But her disagreement “does
not amount to pretext without showing that false reasons were deployed as a smokescreen to
provide cover for unlawful discrimination.” SaintPreux v. Mayorkas, No. 1:19-cv-01364, 2021
WL 3912180, at *4 (D.D.C. Sept. 1, 2021) (citation omitted), aff’d, No. 21-5221, 2022 WL
12
1177328 (D.C. Cir. Apr. 14, 2022). To be sure, Woodson disputes a few facts, see Opp’n ¶ 8,
but because none are evidence of pretext, she cannot overcome Edgewood’s motion for summary
judgment. Thus, the Court will grant Edgewood’s motion for summary judgment on Woodson’s
ADA and DCHRA claims.
* * *
Woodson also argues that she has not had the opportunity for “significant discovery.”
Opp’n ¶ 13; see also id. at 6. But the parties had nearly seven months to conduct discovery. The
Court first entered a scheduling order providing for six months of discovery. See Minute Entry
(October 26, 2021). It then provided Woodson two more weeks to respond to Edgewood’s
discovery requests. See Minute Entry (May 6, 2022). Woodson therefore had ample time to
conduct discovery.
IV.
For these reasons, the Court finds that there are no material facts in dispute and that
Woodson fails to show that her disability was the actual reason for her termination. The Court
will therefore grant Edgewood’s motion for summary judgment. A separate Order will issue.
2022.11.08
Dated: November 8, 2022 14:48:35 -05'00'
_____________________________
TREVOR N. McFADDEN, U.S.D.J.
13 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482375/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TONY WALKER,
Plaintiff,
Civil Action No. 22-0119 (BAH)
v.
Chief Judge Beryl A. Howell
FRANK KENDALL III,
Secretary of the Air Force,
Defendant.
MEMORANDUM OPINION
Plaintiff Tony Walker has sued his former employer, the Secretary of the U.S.
Department of the Air Force (“Air Force”), in his official capacity, alleging racial discrimination
and retaliation for plaintiff’s Equal Employment Opportunity (“EEO”)-protected activity, under
Title VII of the Civil Rights Act of 1964 (“Title VII”). 42 U.S.C. § 2000e et seq.; see Compl.
¶¶ 4, 36, 45, ECF No. 1. Pending before the Court is defendant’s Motion to Dismiss (“Def.’s
Mot.”), ECF No. 9, on the grounds that plaintiff failed to exhaust his administrative remedies and
has stated no plausible claim on which relief may be granted. For the reasons set forth below,
defendant’s motion to dismiss is granted for failure to state a claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, an African American man, worked for the Air Force as a computer engineer at a
GS-13 level in the Defense Cyber Crime Center from 2001 to 2016, when he was removed from
his position. Compl. ¶¶ 15–16; id., Ex. 1, U.S. Equal Employment Opportunity Commission
Decision (“EEOC Dec.”) at 5, ECF No. 1-1. 1 Plaintiff alleges that between 2010 and 2014 he
1
“In deciding a motion to dismiss, a court may . . . consider documents attached to or incorporated
in the complaint.” He Depu v. Yahoo! Inc., 950 F.3d 897, 901 (D.C. Cir. 2020) (internal quotation omitted); see also
1
“expressed interest in being promoted to a GS-14” position, including by requesting, on March 8,
2010, “a promotion from a GS-13 to a GS-14” in in a written communication to the Executive
Director of the Defense Cyber Crime Center. Id. ¶¶ 18–19. In response, plaintiff’s supervisors
and the Human Resources department informed him that no positions were available at that time,
explained the process for promotion to a GS-14 position, and outlined steps for plaintiff to take
to be considered for such a position. Id. ¶¶ 20–23. Plaintiff does not allege that he took these
steps or further pursued a promotion. Indeed, he did not apply for any GS-14 positions
throughout his tenure with the Air Force. EEOC Dec. at 6.
Nonetheless, he asserts that he “was discouraged [from] formally submit[ting] an
application for promotion” in these interactions with his supervisors, and that “[s]imilarly
situated co-workers” of different races were “not treated in the manner in which Plaintiff was.”
Compl. ¶ 37. Specifically, in 2017, plaintiff allegedly learned that “less qualified Caucasian
coworkers” had been promoted to GS-14 positions between 2010 and 2014 “using a direct hire
process with no vacancy announcements in violation of Office of Personnel Management (OPM)
rules for granting direct hiring authority.” Id. ¶ 32. Plaintiff contends that the agency’s decision
to promote these individuals rather than him to GS-14 positions occurred because of
discrimination based on his race and retaliation based on his previous EEO-protected activities.
Id. ¶¶ 36, 45. 2
Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (“A district court may consider a
document that a complaint specifically references without converting the motion into one for summary judgment.”).
Plaintiff’s complaint attaches as an exhibit the Equal Employment Opportunity Commission Office of Federal
Operations decision in the administrative proceedings that plaintiff pursued before filing the instant suit, and that
decision is therefore appropriately considered here. Cf. Menoken v. Dhillon, 975 F.3d 1, 8 (D.C. Cir. 2020) (finding
district court “erred by relying on two documents outside the complaint as dispositive evidence of the nature of
[plaintiff’s] accommodation request” after noting the “absence of allegations in the complaint about the precise
accommodation [plaintiff] requested”).
2
Plaintiff identifies other EEO-protected activities in which he engaged during his employment with the Air
Force as the following: (1) plaintiff’s initiation of a failure to promote action in 2006; and (2) plaintiff’s filing of two
administrative complaints in 2013 against the agency. Compl. ¶ 44. While plaintiff briefly mentions the conduct
2
Plaintiff filed, on February 27, 2017, a formal administrative complaint with the U.S.
Equal Employment Opportunity Commission (“EEOC”), asserting eight claims against the Air
Force for racial discrimination and retaliation, including, as relevant here, as to his non-
promotions to GS-14 between 2010 and 2014, while allegedly less qualified Caucasian co-
workers were promoted instead. See EEOC Dec. at 1–2. Following an investigation into the
claims, an administrative judge entered judgment in favor of the Air Force, finding no
discrimination. Id. at 2. Plaintiff appealed to the EEOC Office of Federal Operations (“EEOC-
OFO”), Compl. ¶ 9, which, in October 2021, affirmed the decision finding no discrimination,
EEOC Dec. at 6, 8. EEOC-OFO found adequate support for the administrative judge’s
determination that Air Force “management officials articulated legitimate, non-discriminatory
reasons” for plaintiff’s non-promotions and that plaintiff had “simply provided no evidence to
support his claim that his race or retaliatory animus played any role whatsoever.” EEOC Dec. at
6.
Within three months after issuance of the EEOC Decision, plaintiff initiated the instant
suit, on January 18, 2022, focusing on the Air Force’s alleged refusal to promote him to GS-14
between 2010 and 2014, Compl. at 1, in two claims alleging that the non-promotions were
motivated by plaintiff’s race, amounting to discrimination under Title VII, and retaliation for his
previous participation in EEO-protected activity, in violation of Title VII, id. ¶¶ 34–50.
Defendant timely moved, on June 17, 2022, for dismissal of the complaint, under Federal
Rule of Civil Procedure 12(b)(6), see Def.’s Mot., but plaintiff failed to file a timely response,
prompting an Order to Show Cause why defendant’s motion should not be granted as conceded
underlying those administrative actions in the instant complaint, see id. ¶¶ 25–31; see also Pl.’s Opp’n Def.’s Mot.
Dismiss (“Pl.’s Opp’n”) at 6, ECF No. 12, he acknowledges that those alleged discriminatory acts do not support his
Title VII claims in the instant suit due to untimeliness, Compl. at 1. Accordingly, only plaintiff’s alleged non-
promotions from 2010 to 2014, which form the factual basis for the instant suit, are discussed.
3
on July 8, 2022, see Minute Order (7/8/2022). Plaintiff responded and, after seeking a further
extension, eventually filed an opposition on August 12, 2022. See Pl.’s Resp. Order to Show
Cause, ECF No. 10; Pl.’s Mot. for Ext. of Time, ECF No. 11; Pl.’s Opp’n Def.’s Mot. Dismiss
(“Pl.’s Opp’n”), ECF No. 12. Shortly thereafter, plaintiff’s counsel moved to withdraw, which
motion was granted, see Minute Order (9/23/2022), and plaintiff is now proceeding pro se.
Plaintiff thereafter filed a motion for summary judgment, see Pl.’s Mot. Summ. J., ECF
No. 18, for which briefing was stayed, at defendant’s request, see Def.’s Mot. to Stay, ECF No.
19, pending adjudication of the previously filed motion to dismiss, see Minute Order
(10/20/2022), since resolution of the latter could moot the former. Briefing on the pending
motion to dismiss was completed on September 8, 2022. See Def.’s Reply Supp. Mot. Dismiss
(“Def.’s Reply”), ECF No. 14. This motion is now ripe for resolution.
II. STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “[a]
plaintiff need not make ‘detailed factual allegations,’” but the “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” VoteVets
Action Fund v. United States Dep’t of Veterans Affairs, 992 F.3d 1097, 1104 (D.C. Cir. 2021)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A facially plausible claim pleads facts
that are not “‘merely consistent with’ a defendant’s liability” but that “allow[] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)); see also Rudder v.
Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Consequently, “a complaint survives a motion to
dismiss even ‘[i]f there are two alternative explanations, one advanced by [the] defendant and the
other advanced by the plaintiff, both of which are plausible.’” VoteVets Action Fund, 992 F.3d at
4
1104 (quoting Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015))
(alteration in the original).
In deciding a motion under Rule 12(b)(6), the court must consider the whole complaint,
accepting all factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at
555; see also Atchley, v. AstraZeneca UK Ltd., 22 F.4th 204, 210 (D.C. Cir. 2022). Courts do
not, however, “assume the truth of legal conclusions, nor do [they] ‘accept inferences that are
unsupported by the facts set out in the complaint.’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015) (alteration in original) (citation omitted) (quoting Islamic Am. Relief Agency v. Gonzales,
477 F.3d 728, 732 (D.C. Cir. 2007)).
III. DISCUSSION
Defendant contends that dismissal of the complaint is warranted because plaintiff failed
timely to exhaust his administrative remedies and, in any event, does not state viable claims of
discrimination and retaliation. While defendant is correct that plaintiff failed to exhaust his
administrative remedies, which would ordinarily warrant dismissal of his claims, defendant
waived this defense by failing to bring up timeliness in the administrative proceedings.
Regardless, plaintiff fails to plead allegations sufficient to render his discrimination and
retaliation claims plausible, requiring dismissal of his complaint.
A. Exhaustion of Administrative Remedies
Defendant argues that, because plaintiff did not initiate his administrative proceedings
until several years after the non-promotions at issue—long after his deadline to do so under
EEOC regulations—he failed properly to exhaust his administrative remedies and thus cannot
pursue the same claims in federal court. See Def.’s Mem. Supp. Mot. Dismiss (“Def.’s Mem.”)
5
at 10, ECF 9-1. 3 Plaintiff counters that, although the non-promotions occurred between 2010
and 2014, the 45-day period he had to initiate proceedings was tolled until 2017, when he learned
that “less qualified Caucasian coworkers were promoted to GS-14” during those years. Compl.
¶ 32; see Pl.’s Opp’n at 5–6.
1. Exhaustion Requirement Generally
“Before a federal employee can file suit against a federal agency for violation of Title
VII, the employee must run a gauntlet of agency procedures and deadlines to administratively
exhaust his . . . claims.” Crawford v. Duke, 867 F.3d 103, 105 (D.C. Cir. 2017); see also 42
U.S.C. § 2000e-16(c). The exhaustion requirement “serves the important purposes of giving the
charged party notice of the claim and narrowing the issues for prompt adjudication and
decision,” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (cleaned up), and it
“ensure[s] that the federal courts are burdened only when reasonably necessary,” Brown v.
Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). The EEOC has issued detailed procedures to govern the
administrative resolution of employment discrimination claims against federal agencies under
Title VII. See 42 U.S.C. § 2000e-16(b); 29 C.F.R. § 1614.105. As relevant here, these
procedures require that employees “who believe they have been discriminated against . . . must
consult a[n] [EEO] Counselor prior to filing a complaint in order to try to informally resolve the
matter.” 29 C.F.R. § 1614.105(a). This initial contact with an EEO Counselor must take place
“within 45 days of the date of the matter alleged to be discriminatory.” Id. § 1614.105(a)(1).
Exhaustion inquiries focus on each discrete discriminatory act that is alleged by an
employee. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110–11 (2002). “[D]iscrete
3
“Title VII’s exhaustion requirements are not jurisdictional,” Artis v. Bernanke, 630 F.3d 1031, 1034 n.4
(D.C. Cir. 2011), and, “[a]ccordingly, a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can
be granted is the appropriate vehicle to challenge an alleged failure to exhaust administrative remedies under Title
VII,” Mahoney v. Donovan, 824 F. Supp. 2d 49, 58 (D.D.C. 2011) (internal quotations and citations omitted).
6
discriminatory acts are not actionable if time barred, even when they are related to acts alleged in
timely filed [administrative] charges.” Id. at 113. Thus, a Title VII complainant “must timely
exhaust administrative remedies for each discrete act alleged[,]’ even if the acts are related.”
Mount v. Johnson, 36 F. Supp. 3d 74, 84 (D.D.C. 2014) (Jackson, K.B., J.) (quoting Laughlin v.
Holder, 923 F. Supp. 2d 204, 209 (D.D.C. 2013)) (emphasis in original).
2. Plaintiff Failed Timely to Exhaust His Claims
Plaintiff alleges that the Air Force failed to promote him to a GS-14 position between
2010 and 2014, despite his expressed interest and qualification for such a promotion, for racially
discriminatory and retaliatory reasons. Compl. at 1. Thus, in this case, the “discrete
discriminatory acts,” Morgan, 536 U.S. at 110, occurred between 2010 and 2014, when the Air
Force, instead of promoting plaintiff, promoted several “less qualified Caucasian co-workers” to
GS-14 positions via direct hiring processes. Compl. at 1. When plaintiff deduced that his
promotions were refused for racially discriminatory and retaliatory reasons is irrelevant, for
“[n]otice or knowledge of discriminatory motivation is not a prerequisite for a cause of action to
accrue. . . . On the contrary, it is knowledge of the adverse employment decision itself that
triggers the running of the statute of limitations.” Fortune v. Holder, 767 F. Supp. 2d 116, 122
(D.D.C. 2011) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 558 (10th Cir. 1994)); Moini v.
LeBlanc, 456 F. Supp. 3d 34, 45 (D.D.C. 2020) (explaining same and collecting cases). Thus,
plaintiff’s claims accrued from the dates the Air Force refused to promote plaintiff to GS-14
following his requests between 2010 and 2014, at the same time his less qualified coworkers
were allegedly receiving the promotions.
Plaintiff, however, did not file his administrative complaint until 2017, three-to-seven
years after the non-promotions challenged. See EEOC Dec. at 1. Defendant therefore argues
7
that plaintiff did not timely initiate those proceedings by contacting an EEO Counselor within 45
days of the alleged non-promotions, and thus failed properly to exhaust his administrative
remedies. See Def.’s Mem. at 9. Plaintiff does not dispute the multi-year delay, but nonetheless
contends that “[t]his is . . . not a case where the Plaintiff should be held to the 45 day filing
requirement.” Pl.’s Opp’n at 11. Such exceptions do exist, as courts will toll the applicable
filing period when the plaintiff “did not know and reasonably should not have [] known that the
discriminatory matter or personnel action occurred.” Stewart v. Ashcroft, 352 F.3d 422, 425
(D.C. Cir. 2003) (quoting 29 C.F.R. § 1614.105(a)(2)) (alteration in original)). In plaintiff’s
view, this is one such case because he neither knew nor had reason to know that he had been
denied promotions until 2017, when he learned that “less qualified Caucasian coworkers” had
been promoted over him to GS-14 positions. Compl. ¶ 32; Pl.’s Opp’n at 5–6.
Plaintiff offers nowhere in his pleadings any explanation as to why he did not learn until
2017 about the non-promotions that had occurred between 2010 and 2014. To have allegedly
less qualified coworkers promoted around him to GS-14 positions without him noticing over a
four-year period somewhat strains credulity. To trigger any tolling, plaintiff must provide more
than a bare assertion of his lack of knowledge to establish that he “did not know and reasonably
should not have [] known,” 29 C.F.R. § 1614.105(a)(2) (emphasis added), until 2017 that
between 2010 and 2014 he was denied promotions while his allegedly less qualified Caucasian
coworkers were granted promotions. As the D.C. Circuit has explained, “to toll the 45-day
limitation period . . . plaintiff has a responsibility, when possible, to further investigate a
personnel action in order to determine whether the action was discriminatory.” Miller v.
Hersman, 594 F.3d 8, 12 (D.C. Cir. 2010). For instance, tolling has been deemed appropriate
where a plaintiff alleged sufficient facts to establish that “[p]laintiff had no way of knowing”
8
defendant’s discriminatory interview policy “even existed” or the date competing selectees were
hired over her because such information was not made public, “especially so” when “plaintiff
was out of office for an extended period of time.” Silver v. Leavitt, No. 05-cv-968 (JDB), 2006
WL 626928, at *8 (D.D.C. Mar. 13, 2006). Such additional factual allegations are entirely
absent here.
Furthermore, even the Silver decision noted that “[t]o be sure, there is a threshold of time
beyond which it may be viewed as unreasonable for a plaintiff not to have inquired as to the
status of a pending employment application” and thus become aware of her non-selection, but
concluded that the period of four months for plaintiff to realize she had not been selected in that
case was not yet past that threshold. Id. Here, plaintiff’s delay of three-to-seven years in
discovering that his requests between 2010 and 2014 for promotion to GS-14 had been denied is
not similarly reasonable, especially when he alleges no facts indicating that the information
would not have been readily discoverable.
Indeed, the complaint sets forth sufficient allegations showing that plaintiff was in fact on
notice that the Air Force was not promoting him at the time that he made the requests, between
2010 and 2014. For example, he alleges that he was told at one unspecified point that “if he
wanted a promotion, he would have to agree to a ‘desk audit’ to determine if his work duties”
merited one, and that he was “discouraged [from] formally submit[ting] an application for
promotion” after he “expressed interest in a promotion for which he was qualified.” Compl.
¶¶ 23, 37. If true, both allegations should have put plaintiff on notice that his desired promotions
were not being granted at the time those decisions were made. At the very least, these
allegations indicate that plaintiff suspected he was not being seriously considered for promotion
to GS-14, and such suspicions have in other cases been enough to trigger the administrative
9
filing period. See, e.g., McCants v. Glickman, 180 F. Supp. 2d 35, 41–42 (D.D.C. 2001) (finding
that discrimination claim of plaintiff who “suspected discrimination during [his] interview”
accrued on the date of the interview, although plaintiff waited until more evidence came to light
before initiating his administrative proceedings). In short, defendant is correct that plaintiff
either knew or reasonably should have known about the non-promotions at issue far earlier than
2017, and thus that plaintiff failed to make timely contact with an EEO Counselor within 45 days
of the discriminatory actions giving rise to the instant claims.
Plaintiff’s failure to exhaust his administrative remedies in a timely fashion, however,
does not resolve this asserted basis for dismissal. “Although agencies do not waive a defense of
untimely exhaustion merely by accepting an investigating a discrimination complaint, . . . if they
not only accept and investigate a complaint, but also decide it on the merits—all without
mentioning timeliness—their failure to raise the issue in the administrative process may lead to
waiver of the defense when the complainant files suit.” Bowden v. United States, 106 F.3d 433,
438 (D.C. Cir. 1997). The EEOC decision attached to the complaint confirms that plaintiff’s
claims regarding lack of promotion to GS-14 were both investigated and decided on the merits.
EEOC Dec. at 6. Notably, that treatment stands in contrast to that of another of plaintiff’s
administrative claims, for which the EEOC “f[ound] no reason to disturb the Agency’s dismissal
of this claim as untimely raised.” Id. at 2 n.2. Thus, the first time defendant has raised an
exhaustion defense to plaintiff’s non-promotion is in the instant suit, rather than in the course of
the underlying administrative proceedings—exactly the situation the D.C. Circuit has suggested
may lead to a waiver of that defense. Bowden, 106 F.3d at 438.
At the same time, the Bowden Court acknowledged that it “d[id] not intend to create a
sweeping principle concerning waiver of administrative time limits under Title VII.” Id. at 439.
10
Indeed, the facts underlying the finding of waiver in Bowden are readily distinguishable since the
D.C. Circuit found the agency had itself egregiously prolonged the resolution of plaintiff’s
claims and raised the exhaustion argument only belatedly at an advanced stage of the federal
litigation. See id. Nonetheless, the Court’s primary rationale applies in full force here: Where
the agency “responded to the merits of [the employee’s administrative] complaint without ever
questioning its timeliness, . . . the agency now has no legitimate reason to complain about a
judicial decision on the merits,” for if “it been concerned that information needed to resolve [the
employee’s] complaint was stale or that deciding his case would upset settled expectations—
traditional objectives of statutes of limitations—it could easily have raised the [time] limitation
during the administrative process.” Id. at 438–39. As such, consistent with the other courts that
have applied Bowden under similar circumstances, see Nurriddin v. Bolden, 674 F. Supp. 2d 64,
86–88 (D.D.C. 2009) (collecting cases), plaintiff’s claims will not be dismissed for lack of
exhaustion, given that these same claims were considered on the merits in the underlying
administrative proceedings without any untimeliness concern raised.
B. Plaintiff Fails to State Plausible Claims to Relief Under Title VII
The factual allegations contained in the complaint, accepted as true, fall short of plausibly
establishing plaintiff’s entitlement to relief on his Title VII discrimination and retaliation claims,
warranting dismissal of this complaint under Rule 12(b)(6) for failure to state a claim. Each
claim is addressed separately below.
1. Count I: Title VII Discrimination Based on Race
Defendant argues that plaintiff’s allegations do not amount to a prima facie claim of Title
VII racial discrimination for the simple reason that plaintiff never alleges that he applied for a
promotion to GS-14, which is generally a required element in failure-to-promote claims as
11
asserted here. Def.’s Mem. at 11–12. Plaintiff does not dispute the absence of such an allegation
but contends that an alternate test for the sufficiency of his claim should be devised and applied
in this case. Pl.’s Opp’n at 7–8. The Court declines plaintiff’s invitation to diverge from the
well-settled requirements for a prima facie claim of Title VII discrimination for failure-to-
promote.
“Title VII prohibits the federal government from discriminating in employment on
grounds of race or sex, and from retaliating against employees for engaging in activity protected
by Title VII.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008) (internal citations
omitted). Under Title VII, “the two essential elements of a discrimination claim are that (i) the
plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race, color,
religion, sex, [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.
2008); see also Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008);
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Adverse employment
actions include the failure to promote, as plaintiff alleges he suffered in this case. See Baird v.
Gotbaum, 662 F.3d 1246, 1248 (D.C. Cir. 2011) (listing examples of adverse employment
actions).
Where, as here, a plaintiff alleges no direct evidence of discrimination, the burden-
shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973), guides the analysis of the circumstantial factual allegations asserted by the plaintiff. To
establish a prima facie case of discrimination under this framework “[i]n a . . . refusal-to-
promote discrimination case,” the plaintiff bears the initial burden of showing that “(i) the
employee ‘belongs to a racial minority’ or other protected class; (ii) the employee ‘applied and
was qualified for a job for which the employer was seeking applicants’; (iii) despite the
12
employee’s qualifications, the employee ‘was rejected’; and (iv) after the rejection, ‘the position
remained open and the employer continued to seek applicants from persons of complainant’s
qualifications.’” Brady, 520 F.3d at 493 n.1 (quoting McDonnell Douglas, 411 U.S. at 802).
Plaintiff falls short of meeting this burden because, as is clear from the face of the
complaint and from the attached EEOC-OFO administrative decision, during the period at issue,
plaintiff never applied for any GS-14 positions nor undertook the process he was told was
necessary for such a promotion. To be precise, plaintiff’s allegation is only that he “expressed
interest” in applying and at one point wrote to the Director of the Air Force Defense Cyber
Crime Center requesting a promotion in general terms. Compl. ¶¶ 18–19. He goes on to allege
that his supervisors and the Human Resources Department responded with information about
how plaintiff could apply to be promoted to a GS-14 position. Id. at ¶¶ 20–23. Strikingly
absent, however, is any allegation that plaintiff ever attempted to act on that information, see
generally Compl., and, indeed, the administrative investigation into plaintiff’s claims revealed
“no evidence that [plaintiff] applied for any GS-14 positions during the relevant period,” EEOC
Dec. at 6.
Likely keenly aware of this critical shortcoming in his claims, plaintiff urges that the
aforementioned four-prong test for a prima facia case of discriminatory refusal-to-promote be
jettisoned, because “this case is not a typical scenario of an employer using a competitive posting
to fill a promotion position,” in light of his allegation that others were hired to GS-14 positions
“using a direct hire process with no vacancy announcements.” Pl.’s Opp’n at 7; Compl. ¶ 32. In
support of his position, he relies on Elam v. Board of Trustees of the University of the District of
Columbia, 530 F. Supp. 2d 4 (D.D.C. 2007) and Stella v. Mineta, 284 F.3d 135 (D.C. Cir. 2002).
Pl.’s Opp’n at 7. In both cases, the four-part analytical framework was flexibly applied in a
13
manner to fulfill the “important function of the prima facie case [] to weed out the most common
lawful reasons for the defendant’s action, such as the plaintiff’s lack of qualifications or the
elimination of the position altogether.” Stella, 284 F.3d at 145.
Those cases are inapposite. Unlike plaintiff, the complainants in Stella and Elam had
filed applications for the positions for which they were not hired. See 530 F. Supp. 2d at 7–8;
284 F.3d at 140. Those cases concerned only the fourth requirement for a prima facie failure-to-
promote claim and held that a plaintiff need not allege “that she was replaced by a person outside
her protected class.” Stella, 284 F.3d at 146; see also George v. Leavitt, 407 F.3d 405, 412–13
(D.C. Cir. 2005) (“In Stella, we made it clear that ‘a plaintiff in a discrimination case need not
demonstrate that she was replaced by a person outside her protected class in order to carry her
burden of establishing a prima facie case under McDonnell Douglas . . . .’”); Mastro v. Potomac
Elec. Power Co., 447 F.3d 843, 851 (D.C. Cir. 2006) (explaining that “we have expressly
rejected as immaterial a requirement that the plaintiff be replaced by an individual outside her
protected class” in assessing a plaintiff’s prima facie case). This case does not present that
situation since plaintiff does allege that the promotion he requested, though did not formally
apply for, was filled by Caucasian coworkers outside his protected class. Compl. ¶ 32. The
Stella line of cases does not relieve a plaintiff asserting a failure-to-promote discrimination claim
from alleging that he actually sought a promotion to establish a prima facie case.
Furthermore, even under a flexible application of elements of a prima facie case of
discriminatory non-promotion, plaintiff’s allegations fall short. Given the specific requirements
for government hiring and promotion on the GS-scale, asking strictly whether plaintiff applied
for any particular vacancy for which the government was seeking applicants, as in the usual
formulation of the McDonnell Douglas factors in the non-promotion context, may well be the
14
wrong inquiry. See Brady, 520 F.3d at 493 n.1. Promotions with a step-up on the GS-scale may
not always work that way; employees may, as in this case, seek an increase in grade level from a
job they already hold, and that may entail complying with internal requirements to be considered
for a promotion rather than applying for a vacant position in a competitive process.
Yet, the appropriate course when confronting scenarios in which the traditional factors
are an imperfect fit is not to jettison elements of the prima facie case entirely, as plaintiff urges.
See Pl.’s Opp’n at 7–8 (arguing that the required element of making an application should be
waived completely). Rather, Stella and its progeny instruct that the elements should be adapted
when required under the circumstances properly to eliminate common, lawful reasons for a
defendant’s action and to give rise to a plausible inference of discrimination. See, e.g., Gentry v.
McDonough, 588 F. Supp. 3d 91, 96 (D.D.C. 2022) (discussing occasions on deviations from the
usual four-part framework have applied, because strict adherence would have failed to capture an
otherwise-viable creation of an inference of discriminatory action). Here, plaintiff’s allegations
make clear that even if vacancies for GS-14 positions to which plaintiff could have applied were
not posted, he was advised of certain requirements to fulfill for eligibility for a GS grade
increase. See Compl. ¶¶ 21, 23 (alleging that his supervisor “sent Plaintiff emails explaining
how one can be promoted to a GS-14” and that “Human Resources sent an email to [Plaintiff]
stating that if he wanted a promotion, he would have to agree to a ‘desk audit’ to determine if his
work duties merit a promotion”).
Thus, an obvious lawful reason for plaintiff’s non-promotions between 2010 and 2014
remains readily available under plaintiff’s allegations: that plaintiff himself chose not to follow
his supervisors’ guidance that would have allowed him to be considered for GS-14 positions,
while the allegedly “less qualified Caucasian coworkers” did comply with the applicable
15
requirements and were duly considered. Departing from the traditional framework here by
relieving plaintiff of his responsibility to show he took the necessary steps to “apply” for a
promotion (whether that means submitting a formal application for a vacant position or taking
the necessary steps to be considered for an increase in grade within his current job) would fail to
“weed out” such a reason and would not establish a prima facie case of discrimination, Stella,
284 F.3d at 145, and as such is not warranted under these circumstances.
The allegations in plaintiff’s complaint fall short of making out a prima facie case of
discriminatory non-promotion. Defendant’s motion to dismiss plaintiff’s racial discrimination
claim is therefore granted.
2. Count II: Retaliation in Violation of Title VII
Defendant argues that plaintiff’s allegations do not amount to a prima facie claim of
retaliation under Title VII because he fails to allege a sufficient causal connection between the
alleged non-promotions and his EEO-protected activity. Def.’s Mem. at 12–15. Once again,
plaintiff does not dispute the lack of such causal allegations, and instead argues for a relaxed
pleading standard, under which he may simply assert the existence of causation without
supporting factual allegations to meet his burden. Pl.’s Opp’n at 9–10. Plaintiff is mistaken as to
the applicable pleading standard, and the lack of any factual allegations that would support a
plausible inference of causation prevents his complaint from stating a claim for retaliation.
Title VII forbids an employer from retaliating against an employee because the employee
engaged in protected activity by opposing unlawful employment practices or by bringing
discrimination charges under Title VII. See 42 U.S.C. § 2000e-3(a). “Claims of retaliation under
Title VII are governed by the same McDonnell-Douglas burden-shifting analysis applicable to
discrimination claims[,]” Iyoha v. Architect of the Capitol, 927 F.3d 561, 574 (D.C. Cir. 2019),
16
and, thus, “[a]t the first step of McDonnell Douglas, an employee must show a prima facie case
of discrimination,” Mawakana v. Bd. of Trustees of Univ. of Dist. of Columbia, 926 F.3d 859,
866 (D.C. Cir. 2019). To establish a prima facie unlawful retaliation claim, the plaintiff must
show: (1) that he made a charge or opposed a practice made unlawful by Title VII; (2) that the
employer took a materially adverse action against him; and (3) that the employer took the action
because of the plaintiff's protected conduct. Allen v. Johnson, 795 F.3d 34, 38–39 (D.C. Cir.
2015). The required causal relationship between a materially adverse action and protected
activity may be inferred through temporal proximity between the protected act and the adverse
employment action or through disparate treatment of similarly situated employees. See Walker
v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015); Taylor v. Solis, 571 F.3d 1313, 1322–23
(D.C. Cir. 2009). If the causation element is predicated on temporal proximity alone, however,
that proximity must be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (internal quotation omitted); see also Iyoha, 927 F.3d at 574 (D.C. Cir. 2019) (noting that
“[a] plaintiff can establish the ‘causation’ element of the prima facie case by showing a tight
temporal proximity between protected activity and an adverse employment action,” but “‘only
where the two events are very close in time’ does temporal proximity support an inference of
causation.” (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007))).
The complaint presents no allegations of direct evidence indicating retaliatory intent as
the reason for plaintiff’s non-promotions and therefore relies on circumstantial evidence to
establish a prima facie case. See generally Compl. In opposing dismissal, plaintiff invokes the
outdated Conley pleading standard, arguing that because his complaint includes an allegation
regarding causation, he has met his burden to make out a prima facie case of retaliation. See
Pl.’s Opp’n 9–10; Compl. ¶ 45 (alleging that “[t]he aforementioned non-promotions between
17
2010–2014 against the Plaintiff were because of the Plaintiff’s EEO protected activity”). Such
conclusory assertions of causation are simply not sufficient. See Twombly, 550 U.S. at 557, 562–
63; see also Iqbal, 556 U.S. at 678 (“[A] complaint [does not] suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” (quoting Twombly, 550 U.S. at 557));
Jones v. Horne, 634 F.3d 588, 596 n.4 (D.C. Cir. 2011) (finding plaintiff’s “reliance
on Conley . . . and its somewhat more lenient standard governing motions under Rule 12(b)(6), is
misplaced” since “[t]he Supreme Court abrogated the Conley formulation in” Twombly).
The complaint lacks any sufficient factual allegation to support causation. Plaintiff
alleges only that, first, the retaliation was over plaintiff’s administrative action in 2006 for failure
to promote and his two subsequent administrative actions in 2013, and, second, the non-
promotions at issue took place between 2010 and 2014. See Compl. ¶¶ 44, 45. Determining the
precise temporal proximity between these two sets of events is challenging, if not impossible,
given the lack of specific dates. Yet, obviously, the 2006 protected activity occurred at least four
years prior to any of the alleged adverse actions—hardly the “very close” temporal proximity
required to imply a causal relationship. See Clark Cnty. Sch. Dist., 532 U.S. at 273.
Additionally, since an employer could not possibly retaliate for an action that has yet to occur,
any retaliation for plaintiff’s 2013 complaints could only have occurred through the remainder of
that year through 2014, yet plaintiff’s narration of the events surrounding his non-promotions
make absolutely no reference to any specific promotion he was denied between 2013 and 2017.
See Compl. ¶¶ 18–32. Finally, plaintiff offers no indication that the unnamed individuals who
took the alleged retaliatory actions had any knowledge that plaintiff had engaged in protected
activities, further undercutting any plausible inference of causation. See generally Compl.
18
Plaintiff’s Complaint does not adequately state a claim for retaliation, as no plausible
inference can be drawn of a causal relationship between his identified protected activity and the
non-promotions. His retaliation claim must therefore be dismissed.
IV. CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss is GRANTED, and plaintiff’s
motion for summary judgment is DENIED as moot. An order consistent with this Memorandum
Opinion will be entered contemporaneously.
Date: November 8, 2022
__________________________
BERYL A. HOWELL
Chief Judge
19 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482370/ | USCA4 Appeal: 21-4627 Doc: 26 Filed: 11/07/2022 Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE LUMARRIS BAXTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:20-cr-00308-FDW-DSC-1)
Submitted: October 28, 2022 Decided: November 7, 2022
Before NIEMEYER and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Joseph L. Ledford, JOSEPH L. LEDFORD, ATTORNEY AT LAW,
Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Amy E.
Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-4627 Doc: 26 Filed: 11/07/2022 Pg: 2 of 4
PER CURIAM:
Willie Lumarris Baxter pleaded guilty, pursuant to a written plea agreement, to
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1).
At sentencing, Baxter objected to his classification as an armed career offender under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The district court overruled
Baxter’s objection and sentenced him to the statutory minimum ACCA sentence of 180
months’ imprisonment. On appeal, Baxter challenges the district court’s determination
that his conviction in 2010 for five counts of possession with intent to distribute cocaine
base counted as separate ACCA predicates because the offenses were committed on
separate occasions from one another. We affirm.
We review de novo the district court’s determination that a defendant committed
ACCA predicate offenses on different occasions, but “review for clear error the district
court’s factual findings made incident to this ultimate ruling.” United States v. Linney, 819
F.3d 747, 751 (4th Cir. 2016). The Government bears the burden to establish by a
preponderance of the evidence that prior offenses were committed on separate occasions.
Id. We may find clear error only if “on the entire evidence, [we are] left with the definite
and firm conviction that a mistake has been committed.” United States v. Span, 789 F.3d
320, 325 (4th Cir. 2015) (internal quotation marks omitted). Such error occurs when the
court’s “factual determinations are not supported by substantial evidence” or “are against
the clear weight of the evidence considered as a whole.” Id. (internal quotation marks
omitted).
2
USCA4 Appeal: 21-4627 Doc: 26 Filed: 11/07/2022 Pg: 3 of 4
A defendant convicted of violating § 922(g)(1) is subject to an enhanced, 15-year
mandatory minimum sentence if he has three prior convictions for serious drug offenses
that were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
For ACCA purposes, “offenses occur on occasions different from one another when each
offense arose out of a separate and distinct criminal episode.” United States v. Tucker, 603
F.3d 260, 263 (4th Cir. 2010) (internal quotation marks omitted). “That is, each predicate
offense must have a beginning and an end, such that they each constitute an occurrence
unto themselves.” Linney, 819 F.3d at 751 (internal quotation marks omitted). Simply put,
offenses occur on different occasions when they involve a separate “event, occurrence,
happening, or episode.” Wooden v. United States, 142 S. Ct. 1063, 1069 (2022).
To determine whether offenses occurred on different occasions, we consider (1)
whether the offenses were “committed close in time, in an uninterrupted course of
conduct,” or whether they were “separated by substantial gaps in time or significant
intervening events”; (2) whether the offenses occurred in physical proximity to one
another; and (3) “the character and relationship of the offenses”—whether “they share a
common scheme or purpose” or are otherwise intertwined or similar. Id. at 1071; see also
United States v. Carr, 592 F.3d 636, 644 (4th Cir. 2010) (enumerating similar factors);
United States v. Letterlough, 63 F.3d 332, 335-37 (4th Cir. 1995). “In many cases, a single
factor—especially of time or place—can decisively differentiate occasions.” Wooden, 142
S. Ct. at 1071. Courts “have nearly always treated offenses as occurring on separate
occasions if a person committed them a day or more apart, or at a significant distance.” Id.
(internal quotation marks omitted).
3
USCA4 Appeal: 21-4627 Doc: 26 Filed: 11/07/2022 Pg: 4 of 4
We conclude that the district court did not err in finding that each of Baxter’s 2010
counts of possession with intent to distribute cocaine base constituted a separate predicate
offense. In this case, the fact that Baxter’s drug sales were separated by substantial, weeks-
long gaps in time is outcome determinative. Baxter had ample opportunity to consciously
and knowingly decide that he wanted to engage in another sale of cocaine base on each
occasion. Simply put, each sale matches the ordinary definition of an individual
“occasion.” See id. at 1069.
Accordingly, we affirm Baxter’s criminal judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
4 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482408/ | Filed 11/8/22 P. v. Mondragon CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B316806
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. PA095095)
v.
MAURILO MONDRAGON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, David Walgren, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In August 2020, defendant Maurilo Mondragon was charged by
felony complaint with two counts of willful infliction of corporal injury
on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a); counts 1-2),1
and one count of forcible oral copulation (§ 287, subd. (c)(2)(A); count 3).
At his preliminary hearing on December 3, 2020, defendant pled no
contest to one count of willful infliction of corporal injury on a spouse or
cohabitant.2 He was sentenced to four years in state prison, execution
of which was suspended. The court placed defendant on formal
probation for four years subject to various terms and conditions,
including a requirement that he complete a 52-week domestic violence
counseling program.
At a court appearance on March 25, 2021, defendant admitted he
had violated the terms of his probation by failing to consistently report
to probation, and failing to enroll in a domestic violence counseling
program. The court accepted the admission, found defendant in
violation of probation, and revoked and reinstated probation. In April
2021, the probation department reported that defendant had enrolled in
a domestic violence counseling program.
Defendant’s probation was again revoked on July 27, 2021, for
failure to report to probation and personally appear in court. The court
issued a bench warrant, and on November 2, 2021, defendant was
remanded. At a probation violation hearing the same day, the court
1 Subsequent references to statutes are to the Penal Code.
2 Defendant pled no contest on count 2, and gave a Harvey waiver (People
v. Harvey (1979) 25 Cal.3d 754) on the remaining counts.
2
took judicial notice of the filed probation reports. After defendant
provided a statement to the court under oath, the court revoked
defendant’s probation and sentenced him to the previously suspended
term of four years imprisonment.
Defendant filed a notice of appeal from the judgment. His
appointed counsel filed a brief under People v. Wende (1979) 25 Cal.3d
436, requesting that we conduct an independent examination of the
record. We notified defendant that he had 30 days to file a
supplemental brief raising any contentions or arguments he wished this
court to consider. To date, we have received no response.
We have examined the entire record and are satisfied that no
arguable issues exist, and that defendant has, by virtue of counsel’s
compliance with the Wende procedure and our review of the record,
received adequate and effective appellate review of the judgment.
(Smith v. Robbins (2000) 528 U.S. 259, 278.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J. COLLINS, J.
3 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486974/ | *296OPINION AND ORDER
Introduction
On February 17, 2005, Petitioner Evergreen Corporation (“Evergreen”) brought this action against the Tax Office of the American Samoa Government (“ASG”) contesting ASG’s determination that Evergreen owed an additional $28,191.45 in taxes plus interest.
Evergreen is a retail store owned by Michael Lai and located in Nu'uuli. For tax year 2000, the time period at issue, Evergreen filed a tax return showing gross sales of $804,755.00. After conducting an audit, ASG found that Evergreen’s bank deposits totaled $897,912.00, an amount exceeding Evergreen’s reported sales (income) by $93,157.00. Based on this information, ASG adjusted Evergreen’s gross sales to $897,912.00, and mailed a notice of deficiency to Evergreen on November 19, 2004. The notice claimed that Evergreen understated its year 2000 taxable income by $93,157.00, and assessed a tax deficiency by Evergreen of $28,191.45 plus interest.
However, Evergreen contends its deposits exceed sales because of its practice of cashing personal and payroll checks for its customers. Thus, because the $93,157.00 in cashed checks does not constitute sales, Evergreen argues that it should not be considered income to Evergreen. At issue then is whether the $93,157.00 constitutes actual sales, as ASG argues, or whether it consists of cashed payroll checks and large personal checks from Evergreen’s customers, as Evergreen contends. Having conducted a trial on the merits, we find in favor of ASG.
Discussion
To be sure, a taxpayer has a right to contest the government’s determination of a tax deficiency before paying such deficiency. Klauk v. American Samoa Gov’t, 13 A.S.R.2d 52 (Trial Div. 1989). As an initial matter, however, we must determine which party bears the burden of proof in this case. In light of the available evidence, this issue is critical in reaching the ultimate decision in this case.
As American Samoa has incorporated the United States’ rules and regulations regarding income taxation through A.S.C.A. § 11.0403(a), we turn to federal case law for guidance on this issue.1 See Kaluk, at 54 *297(holding that “the Fono ... incorporated by reference the United States Internal Revenue Code” for income taxation in American Samoa”). The Supreme Court has held that the government’s assessment of a taxpayer’s income is presumed correct, and the party challenging its assessment bears the burden of proving the government incorrect. Welch v. Helvering, 290 U.S. 111, 115 (1933). Applying this principle to the case before us, Evergreen bears the burden of showing that the income tax deficiency is incorrect; to wit, that ASG should have categorized the $93,157.00 as non-sales related bank deposits as opposed to actual
ASG categorized the $93,157.00 as income using the bank deposit method. See Dileo v. Comm'r, 96 T.C. 858, 868 (1991), aff’d, 959 F.2d 16 (2d Cir. 1992) (in employing the bank deposit method, the government assumes that all money deposited in a taxpayer’s bank account constitutes taxable income). This method for computing income has long been sanctioned by the courts. Estate of Mason v. Comm'r, 64 T.C. 651, 656 (1975), aff'd, 566 F.2d 2 (6th Cir. 1977). Indeed, when a taxpayer fails to maintain adequate records as to the source and amount of his income, bank deposits are commonly used as evidence of income. See id. at 656-57 (explaining that bank deposits are prima facie evidence of income). Because Evergreen failed to produce sufficient records of its year 2000 sales or income to ASG, ASG’s use of the bank deposit method in calculating Evergreen’s income is warranted and valid.
Thus, it is not enough for Evergreen to attack ASG’s calculation of its income. To meet its burden, Evergreen must present evidence that the $93,157.00 in bank deposits is not income. As stated above, Evergreen argues that its bank deposits exceeded its sales (income) because in addition to depositing income from sales into its bank account, it also cashes payroll checks and large personal checks from its customers. Evergreen asserts that small portions of these checks are used to purchase items from its store and the remainder is given to the customer as cash. Therefore, according to Evergreen, the checks deposited exceed the actual amount of merchandise sold. Evergreen contends that ASG failed to account for this discrepancy between sales and bank deposits.
*298However, Evergreen provides insufficient documentation to support its claim. Evergreen presents no records establishing gross sales, and presents no evidence establishing how much cash the business received and how much cash was deposited. All it provides the Court with is bank deposit slips. Having only the bank deposit slips to go off of, it is impossible to determine the extent to which the checks deposited exceed the actual amount of merchandise sold. Even if we assume that Evergreen gave cash back to its customers upon receipt of payroll or personal checks, without more information we have no basis for finding that the checks deposited did not equal total sales.
While we are sympathetic to Evergreen’s claim that most of its records were destroyed in a fire, this does not excuse them from their obligation to keep books and records sufficient to establish the amount of their gross income. See IRC § 6001; Dileo, 96 T.C. at 867 (“[e]very person liable for any tax must maintain books and records sufficient to establish the amount of his or her gross income.”). Nor does it excuse Evergreen from their burden of establishing that ASG’s tax deficiency assessment was incorrect.
Thus, based on the evidence presented at trial, we find that Evergreen failed to carry their burden. We hold that Evergreen understated their income by $93,157.00, and that gross sales for the tax year 2000 should be increased by said amount. Consequently, as figured by ASG, Evergreen is liable for a tax deficiency of $28,191.45 plus interest.
Order
In order to cure its tax deficiency, we require Evergreen to pay ASG the amount of $28,191.45 plus interest. It is so ordered.
The following Internal Revenue Code (“IRC”) Sections are applicable to this case: (i) IRC § 61(a), which defines gross income as “all income from whatever source derived including gross income from business operations”; (ii) IRC § 6001, which states that “every person liable for *297any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe; and (iii) IRC § 446(b), which provides that “if no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computations of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486975/ | ORDER DENYING MOTION TO SUPPRESS
Introduction
On May 14, 2005, at approximately 11:00 p.m., Kapeneta Lefeiloa'i (“Defendant”) allegedly assaulted Fei'i Ne'emia outside the SM Mart in Tafima. Although Ne'emia appeared to have sustained only minor facial lacerations and a broken nose in the altercation, he died less than two hours later.
*300After the assault, Defendant fled the scene. Approximately five hours later, the police apprehended Defendant at his home, charged him with disturbing the peace, and at around 4:45 a.m., transported him to the Tafuna Substation for questioning. At approximately 5:00 a.m., Defendant signed a written document acknowledging and waiving his Miranda rights. Fifteen minutes later, Defendant signed a written confession, admitting that he had been involved in a verbal confrontation with Mr. Ne'emia. Defendant further admitted that he initiated a physical altercation, punching Ne'emia several times in the face and throwing an empty propane tank at Ne'emia’s chest before fleeing the scene. Based on these admissions, the American Samoa Government charged Defendant with second degree murder.
On August 22, 2005, Defendant brought the present motion seeking to suppress his Miranda waiver and subsequent admissions, arguing that both were products of intoxication and not of his free will. On September 27, 2005, the Court heard the motion. Having considered the evidence and applicable legal standards, we hold that Defendant’s waiver and subsequent written statement were knowingly and voluntarily made. Accordingly, Defendant’s motion to suppress is denied.
Discussion
Defendant’s current motion asks us to use his alleged intoxication as grounds to suppress the written waiver of his Miranda rights and his subsequent admissions. As such, his motion raises two separate inquiries: 1) whether the Miranda waiver was voluntary given the defendant’s alleged intoxication; and 2) whether the subsequent statement was voluntary given the defendant’s alleged intoxication. Both issues are addressed in turn.
I. Was the Miranda Waiver Voluntary?
To be valid, a Miranda waiver must be both: 1) voluntary and 2) knowing and intelligent. Colorado v. Spring, 479 U.S. 564, 573 (1987). A waiver is voluntary if it is “the product of a rational intellect and a free will,” whether or not it is alcohol-induced. Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989) (citations and quotations omitted), cert. denied, 496 U.S. 938 (1990). In other words, absent evidence that the defendant’s “will was overcome and his capacity for self-determination critically impaired because of [alcohol], his waiver of his Fifth Amendment privilege [is] voluntary under . . . Miranda.” Spring, 479 U.S. at 574 (internal quotations omitted). In addition, a waiver is considered “knowing and intelligent” if it is “made with a full awareness both of the nature of the right being abandoned and the consequences of *301the decision to abandon it.” Collazo v. Estelle, 940 F.2d 411, 415 (9th Cir. 1991).
Generally, evidence that the defendant was even marginally coherent at the time of the waiver will satisfy the above tests. For example, in Lambert, a defendant’s waiver was found to be voluntarily and intelligently made when, despite a .25 blood alcohol level, testimony established that the defendant: 1) understood and cooperated with instructions, 2) had no difficulty communicating with police, and 3) showed no overt outward signs of intoxication, such as slurred speech or impaired motor functions. Lambert v. Maass, 1994 WL 595175 (9th Cir. 1994). Similarly, in United States v. Brown, 535 F.2d 424, 427 (8th Cir. 1976), a Miranda waiver was found to be voluntarily made where, although the defendant was intoxicated, evidence indicated he was able to: 1) find his driver’s license, 2) concoct a lie about who owned the vehicle he was driving, and 3) negotiate a flight of stairs without stumbling. Id.
Based on the above authority, we hold that Defendant’s waiver was a free and intelligent choice, substantially untainted by his intoxication. Like the defendants in both Lambert and Brown, the evidence here indicates that Defendant here understood and cooperated with instructions, and had no apparent difficulty communicating with the police. Similarly, Defendant’s admissions, written in his own hand just minutes after waiving his Miranda rights, is not only perfectly legible, but is also logically coherent. These facts indicate that while Defendant may have been intoxicated at the time he waived his Miranda rights, his capacity for “self determination [was not] critically impaired because of [the alcohol].” Spring, 479 U.S. at 574. Accordingly, we hold that Defendant’s Miranda waiver was both voluntary and knowingly made.
II. Validity of Defendant’s Admissions
Admissions are not considered involuntary (and therefore inadmissible) simply because the defendant was intoxicated. See e.g. Brown, 535 F.2d at 427. Rather, the defendant’s intoxication generally goes to the weight and credibility of the admissions. Townsend v. Sain, 372 U.S. 293 (1963). As with whether Defendant’s alleged intoxication compromised his Miranda waiver, the test for admissions or confessions is whether an individual's will was overborne by the intoxication such that his statements were not “the product of a rational intellect and free will.” Id. at 307.
Applying this test, courts have upheld confessions where, although intoxicated, the defendant was able to talk coherently and made legible, intelligible written statements. Boggs v. Bair, 892 F.2d 1193, 1199-1200 *302(4th Cir. 1989). Similarly, an intoxicated defendant’s confession was deemed voluntary even where at the time of making the statements: 1) the defendant’s blood alcohol level was .26; 2) he was in the hospital with a large laceration to his forehead; and 3) his treating doctor told officers that the defendant “was [not] altogether” and was “groggy [and] almost lethargic.” Palmer v. State, 401 So.2d 266, 267 (Ala. App. 1981), cert. denied, Palmer v. Alabama, 455 U.S. 922 (1982). These facts aside, the court held there was nothing to indicate that the level of intoxication overbore the defendant’s freewill. Id.
As Boggs and Palmer illustrate, confessions and admissions are generally admissible as long as the defendant was not so intoxicated that the statement is rendered completely unreliable. Here, there is ample evidence that despite his alleged intoxication, Defendant’s statement is reliable. First and foremost, the statement is written in his own hand, and is unmistakably legible and coherently written. This fact alone creates a strong inference that the statement was voluntary. Boggs, 892 F.2d at 1199-1200. Moreover, the evidence indicates that although Defendant smelled of alcohol, he was lucid and cooperative with the police. These facts more than establish that the statement was voluntary and that Defendant’s freewill was not “overbore” by the alcohol. Palmer, 401 So.2d at 267.
Order
Because Defendant’s Miranda waiver and subsequent statement were voluntarily and knowingly made, they are valid and admissible. Accordingly, Defendant’s motion to suppress is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482377/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN THE INTEREST OF: Y.A.-C., A MINOR : No. 241 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: Y.E.C.-A.., A : No. 242 EAL 2022
MINOR :
:
: Petition for Allowance of Appeal
PETITION OF: M.C.-L., MOTHER : from the Order of the Superior Court
IN THE INTEREST OF: I.C.-A.., A MINOR : No. 243 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: I.E.C.A., A MINOR : No. 244 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 8th day of November, 2022, the Petition for Allowance of Appeal
is DENIED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482378/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN THE INTEREST OF: Y.A.-C., A MINOR : No. 241 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: Y.E.C.-A.., A : No. 242 EAL 2022
MINOR :
:
: Petition for Allowance of Appeal
PETITION OF: M.C.-L., MOTHER : from the Order of the Superior Court
IN THE INTEREST OF: I.C.-A.., A MINOR : No. 243 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: I.E.C.A., A MINOR : No. 244 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 8th day of November, 2022, the Petition for Allowance of Appeal
is DENIED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482380/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN THE INTEREST OF: Y.A.-C., A MINOR : No. 241 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: Y.E.C.-A.., A : No. 242 EAL 2022
MINOR :
:
: Petition for Allowance of Appeal
PETITION OF: M.C.-L., MOTHER : from the Order of the Superior Court
IN THE INTEREST OF: I.C.-A.., A MINOR : No. 243 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: I.E.C.A., A MINOR : No. 244 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 8th day of November, 2022, the Petition for Allowance of Appeal
is DENIED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482411/ | Filed 11/8/22 P. v. Lavera CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B316816
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A950222
v.
TODD LAVERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1989, a jury convicted defendant and appellant Todd
Lavera of two counts of first degree murder under a felony
murder theory of liability. In 2019, he filed a petition for recall
and resentencing under former Penal Code section 1170.95.1 The
trial court denied the petition, concluding that although Lavera
was convicted under a felony murder theory, a review of the facts
contained in the record of conviction showed, as a matter of law,
he was not entitled to relief because he was a major participant
in the underlying robberies who acted with reckless indifference
to human life. The court made this factual determination without
first issuing an order to show cause or holding an evidentiary
hearing. Lavera appealed, and in case number B305936, we
remanded the matter to the trial court with directions to issue an
order to show cause and hold a section 1172.6, subdivision (d)
evidentiary hearing to determine whether Lavera was entitled to
relief. On remand, following an evidentiary hearing, the trial
court denied the petition, concluding Lavera should be punished
for both murders on two independent grounds: (1) as a major
participant in the robberies who acted with reckless indifference
to human life; and (2) as a direct aider and abettor who acted
with the intent to kill. Lavera now raises several arguments why
the trial court’s order denying relief was erroneous. We affirm.
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6, with no change in text. (Stats.
2022, ch. 58, § 10.) For purposes of clarity, we refer to the statute
as section 1172.6.
2
PROCEDURAL BACKGROUND2
“In 1989, a jury convicted Lavera of the first-degree
murders of David Thompson (count one) and Leopoldo Salgado
(count four) based on a felony-murder theory of liability. (§ 187,
subd. (a).) The jury also convicted Lavera of two counts of second
degree robbery (§ 211; counts two and three), and two counts of
attempted robbery (§§ 664/211; counts five and seven).3 The jury
found true the robbery murder special circumstance allegation
attached to count one, and found not true the robbery murder
special circumstance allegation attached to count four. The jury
also found a principal was armed with a firearm in the
commission of both those offenses (§ 12022, subd. (a)), in addition
to finding true other allegations attached to the non-murder
counts.
“Because the crimes in this case occurred in April of 1987,
the jury’s robbery special circumstance finding on count one
required a finding that Lavera harbored an intent to kill. (See
People v. Bolden (2002) 29 Cal.4th 515, 560 [for crimes committed
between the California Supreme Court’s decision in Carlos v.
Superior Court (1983) 35 Cal.3d 131 and its October 13, 1987
decision in People v. Anderson (1987) 43 Cal.3d 1104, felony-
murder special circumstance allegations required a finding of
intent to kill regardless of whether the defendant was the actual
killer or an accomplice].) However, that finding was later stricken
when the prosecution conceded a failure of proof as to Lavera’s
2 We granted Lavera’s request for judicial notice of our
opinion resolving his original section 1172.6 appeal in case
number B305936. The following quoted text is taken from the
procedural background of that opinion.
3 The trial court struck count six.
3
specific intent to kill and a motion to strike the robbery special
circumstance was granted by the trial court.
“The trial court sentenced Lavera to a term of eight years
and four months plus 50 years to life, which included consecutive
terms of 25 years to life for each murder conviction. On direct
appeal, this court affirmed the judgment while remanding the
case for a modification to Lavera’s sentence that is not relevant to
this appeal.
“In 2019, Lavera filed a petition for resentencing under
[former] section 1170.95. The trial court ordered the prosecution
to file a response, appointed counsel for Lavera, and set a briefing
schedule permitting Lavera’s attorney to file a reply within 30
days of the prosecution filing a response.”
After considering briefing from both parties, “[t]he trial
court denied Lavera’s petition. In its memorandum of decision,
the court concluded Lavera was, as a matter of law, not entitled
to relief because, based on its review of the record of conviction,
the facts showed Lavera was a major participant who acted with
reckless indifference to human life.
“On March 6, 2020, after the court issued its memorandum
of decision, defense counsel filed a reply to the prosecution’s
response arguing Lavera was entitled to relief. On March 18,
2020, the trial court noted it had reviewed Lavera’s reply, but did
not change its ruling denying relief.”
Lavera timely appealed, and in case number B305936, we
remanded the matter to the trial court with directions to issue an
order to show cause and hold a section 1172.6, subdivision (d)
evidentiary hearing to determine whether Lavera was entitled to
relief.
4
On June 3, 2021, the trial court issued an order to show
cause. The prosecution filed a response, and defense counsel filed
a reply. The prosecution filed a second response. At the
evidentiary hearing held in October 2021, neither party
presented additional evidence. The prosecution noted that it had
submitted as exhibits the reporter’s and clerk’s transcripts from
Lavera’s original trial, and the court stated it would consider
those exhibits in making its ruling.4 The court permitted the
parties to file supplemental briefs, defense counsel filed a
supplemental brief, and the prosecution filed a response. On
November 12, 2021, the trial court filed a Memorandum of
Decision denying Lavera relief.
Lavera timely appealed.
DISCUSSION
I. Governing Law
The Legislature enacted Senate Bill 1437 (SB 1437) “to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f);
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).)
SB 1437 also added section 1170.95 to the Penal Code
which, as mentioned above, was later renumbered to section
4 We granted the Attorney General’s request for judicial
notice of the reporter’s and clerk’s transcripts of Lavera’s original
trial.
5
1170.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts. (§ 1172.6,
subd. (a).) A petition for relief under section 1172.6 must include
a declaration by the petitioner that he or she is eligible for relief
based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a
request for appointment of counsel, should the petitioner seek
appointment. (§ 1172.6, subd. (b)(1).)
Subdivision (c) of section 1172.6 provides: “Within 60 days
after service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response.
The petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. These deadlines shall be
extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.”
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
6
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ ([§ 1172.6], subd. (d)(1).)” (Lewis,
supra, 11 Cal.5th at p. 960.) At the hearing, the parties may rely
on the record of conviction or present “new or additional
evidence” to support their positions, and “the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
II. Analysis
As mentioned above, the trial court denied relief upon
making the factual determination that Lavera should be
punished for both murders on two independent grounds: (1) as a
major participant in the robberies who acted with reckless
indifference to human life; and (2) as a direct aider and abettor
who acted with the intent to kill. Lavera first argues the trial
court was barred under principles of issue preclusion from
denying relief based on a factual finding that he aided and
abetted the murders with the intent to kill. We need not address
this contention. Even assuming the trial court was barred from
denying Lavera relief on the basis that he aided and abetted with
the intent to kill, the court denied relief on a separate proper
basis – its factual determination that Lavera was a major
participant in the robberies who acted with reckless indifference
to human life. (See § 189, subds. (a) & (e)(3).) Notably, Lavera
does not argue this factual determination was unsupported by
substantial evidence. And, as the Attorney General points out,
the record contains substantial evidence from which a reasonable
trier of fact could conclude Lavera was a major participant who
7
acted with reckless indifference to human life.5 Any purported
error by the trial court in finding Lavera ineligible for relief as an
aider and abettor who acted with the intent to kill was therefore
harmless.
Lavera next argues reversal is required because the trial
court, in making its factual findings, erroneously applied a
standard of proof akin to substantial evidence review. In support
of this contention, Lavera asserts the trial court’s written ruling
contained several statements (including “could” or “would”
language, or references to “sufficient evidence”) implicating a
sufficiency of the evidence standard. We reject his contention. At
the hearing, the trial court stated: “[T]he People’s burden is
beyond a reasonable doubt to prove ineligibility for relief at the
hearing.” In its written ruling, the court stated: “[P]ursuant to
People v. Rodriguez (2020) 58 Cal.App.5th 227 [(Rodriguez)], it
was the People’s burden of proof at the hearing to show [Lavera]
5 In support of its conclusion that Lavera was a major
participant who acted with reckless indifference life, the trial
court explained: “When analyzing [Lavera’s] role in these
crimes . . . , it is indisputable that he falls at the higher end . . . of
the spectrum closer to an actual killer. He helped plan the
robberies, he obtained ammunition for the murder weapon, he
was armed in [one of the two incidents] and was present at both
crime scenes and actively participated in both incidents, he was
aware the other participants were armed and that a co-defendant
had killed before. He did nothing to stop the killing of either
victim. After the killings [Lavera] fled [in a car] with . . . the co-
defendants as passengers, to a location where it was abandoned,
wiped the car for fingerprints and disposed of Mr. Thompson’s
wallet. He shared in the proceeds of the Thompson incident.”
8
was ineligible for relief beyond a reasonable doubt.” 6 Applying
this correct standard, the court ultimately concluded: “There is no
doubt in this court’s mind that the petitioner was a major
participant in these robberies and murders and that he acted
with complete indifference to those innocent human beings . . . .”
The record also shows that the trial court weighed the evidence
as an independent finder of fact. For example, the court assessed
Lavera’s testimony that he used a toy gun during the robbery and
murder of Thompson, and ultimately concluded Lavera’s
testimony was “self-serving” and thus not credible. For these
reasons, we reject Lavera’s contention that the court erroneously
applied a standard akin to substantial evidence review. It is clear
from the record that the trial court acted as an independent
factfinder and applied the correct standard.
Lavera next argues reversal is required because the trial
court denied the petition based on an erroneous conclusion that
the jury found he personally used a gun in the robbery and
murder of Thompson. We are not persuaded. It is true that the
trial court appeared to be operating under a misapprehension
that the jury found Lavera was armed, when in fact the jury
found that a principal was armed. However, it is clear that the
trial court, independent of its perception of what the jury found,
6 Although the Supreme Court has since ordered Rodriguez
vacated and depublished due to the enactment of Senate Bill
No. 775, it nonetheless remains the case that Rodriguez’s
holding, which the trial court in this case relied upon, was legally
correct – namely that the proper standard of proof at a section
1172.6, subdivision (d) hearing is not substantial evidence, but
rather whether the prosecution has proven ineligibility for relief
beyond a reasonable doubt. (Rodriguez, supra, 58 Cal.App.5th at
pp. 243-244.)
9
made its own separate factual determination that Lavera was not
credible when he offered “self-serving” testimony that the gun
was a toy. The trial court thus correctly acted as an independent
finder of fact in concluding Lavera was armed with a real gun,
and properly used this factual finding to support its conclusion
that Lavera acted as a major participant with reckless
indifference to human life. Accordingly, the purported error was
harmless under both People v. Watson (1956) 46 Cal.2d 818, 836
(Watson) and Chapman v. California (1967) 386 U.S. 18, 24 [87
S.Ct. 824, 17 L.Ed.2d 705] (Chapman).
Lavera next contends the trial court erred by relying on
inadmissible evidence in denying the petition. In raising this
argument, Lavera points to the trial court’s ruling that it was
appropriate to consider hearsay evidence from co-defendant
Carter, as recounted by an investigating officer at Lavera’s
preliminary hearing, stating Lavera provided ammunition for the
murder weapon prior to the commission of the robberies/murders.
Even assuming the trial court had erred in ruling this evidence
admissible, the purported error was harmless under both Watson
and Chapman. The court clearly stated although it was
considering that evidence, its “decision would not change if th[e]
evidence were not available to it as part of the record.”
Lavera lastly argues the denial of his petition should be
reversed due to the cumulative effect of all the purported errors.
We reject this contention. As discussed above, with respect to
each argument Lavera has raised on appeal, he has failed to
demonstrate prejudicial error. Moreover, the trial court, applying
the correct standard of proof as an independent finder of fact,
denied Lavera relief on the legally correct ground that the
prosecution had proven beyond a reasonable doubt Lavera was a
10
major participant in the robberies who acted with reckless
indifference to human life. Because the court decided the case on
this correct ground, its order must be affirmed. (See People v.
Smithey (1999) 20 Cal.4th 936, 972 [“‘“‘[A] ruling or decision,
itself correct in law, will not be disturbed on appeal merely
because given for a wrong reason. If right upon any theory of the
law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its
conclusion.’ [Citation.]” [Citation.]’”].)
DISPOSITION
The order denying Lavera’s section 1172.6 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
11 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482416/ | Filed 11/8/22 P. v. Brightmon CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074478
v. (Super.Ct.No. CR66248)
TODD DeWAYNE BRIGHTMON, OPINION ON TRANSFER
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
General, Meredith S. White, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys
General, for Plaintiff and Respondent.
1
Defendant and appellant, Todd DeWayne Brightmon, filed a petition for
resentencing pursuant to Penal Code former section 1170.95,1 which the court dismissed.
On appeal, defendant contended the court erred in summarily dismissing his petition. By
opinion filed July 19, 2021, we affirmed the court’s dismissal of defendant’s petition.
On October 19, 2022, the California Supreme Court transferred the matter back to
us with directions to vacate our decision and reconsider the cause in light of People v.
Strong (2022) 13 Cal.5th 698 (Strong). On October 21, 2022, we ordered our decision
vacated and set a briefing schedule.
Defendant argues that pursuant to Strong, he can challenge the jury’s true finding
on the felony-murder special-circumstance allegations because they were rendered prior
to the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark). Defendant maintains he made the requisite prima facie
showing, and the matter should be remanded for an order to show cause hearing. The
People concede that the matter should be remanded for further proceedings. We reverse
and remand the matter for reconsideration.
1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.)
amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
All further statutory references are to the Penal Code unless otherwise indicated.
2
I. PROCEDURAL BACKGROUND 2
A jury found defendant guilty of first degree murder (§ 187, subd. (a), count 1)
and found true multiple felony-murder special-circumstance allegations (§ 190.2,
subd. (a)(17)). (Brightmon, supra, E027391.) The jury additionally found true
allegations that a principal was armed with a firearm in the commission of the murder.
(§ 12022, subd. (a)(1).) Allegations that defendant had suffered four prior prison terms
(§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subds. (c) & (e), 1170.12,
subd. (c)) were also found true. The court sentenced defendant to life imprisonment
without the possibility of parole, plus five years. Defendant appealed the judgment,
which this court affirmed by opinion filed September 20, 2001.3 (Brightmon, supra,
E027391.)
On September 4, 2019, defendant filed a petition for resentencing pursuant to
former section 1170.95. The People filed a response in which they argued, in part, that
the petition should be denied because the jury had found true “special circumstance
findings that [required] [it] find [defendant] intended to kill or was a major participant
[acting] with reckless indifference” to human life. Defense counsel filed a reply
2 On our own motion, we take judicial notice of the record in defendant’s appeal
from the original judgment (People v. Brightmon (Sept. 20, 2001, E027391) [nonpub.
opn.] (Brightmon)), on which the People below relied, and both parties on appeal rely on
for their recitation of the facts. (See Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of
Court, rule 8.1115(b)(1).) Nonetheless, we find the facts unnecessary to our resolution of
the issues on appeal.
3 This court modified the judgment only insofar as striking a parole revocation
fine. (Brightmon, supra, E027391.)
3
contending defendant had “made a prima facie showing that he[] is entitled to relief. It is
necessary to conduct further investigation to determine what role, if any, petitioner
played in the offense and for the court to examine if [defendant] could be convicted under
the law as amended . . . .”
At the hearing on the petition on December 13, 2019, the People moved to dismiss
the petition because “there was a felony murder special circumstance found true.” The
People also noted, in reliance on Brightmon, that defendant “testified for a codefendant
and admitted that he shot the victim. So he’s the actual killer based on his own
testimony.” The court asked defense counsel if she took issue with the People’s
representation that defendant had testified that he was the actual shooter. Defense counsel
responded that she did not. The court dismissed the petition over defense counsel’s
objection.4
II. DISCUSSION
Defendant argues the court erred in dismissing his petition, and the matter should
be remanded for an evidentiary hearing. The People concede the matter should be
remanded for further proceedings. We remand the matter for a new prima facie hearing.
4 The reporter’s transcript reflects that the trial court dismissed the petition;
however, the minute order indicates it denied the petition. We shall direct the court to
correct its minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order
“‘does not control if different from the trial court’s oral judgment and may not add to or
modify the judgment it purports to digest or summarize.’”].) The reviewing court has the
authority to correct clerical errors in the minute order. (People v. Contreras (2009)
177 Cal.App.4th 1296, 1300, fn. 3.)
4
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the
felony-murder rule to effectuate the Legislature’s declared intent ‘to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill
1437 also created a special procedural mechanism for those convicted under the former
law to seek retroactive relief under the law as amended. [Citations.] Under newly
enacted section 1172.6, the process begins with the filing of a petition containing a
declaration that all requirements for eligibility are met [citations], including that ‘[t]he
petitioner could not presently be convicted of murder or attempted murder because of
changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437 [citation].” (Id. at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary declaration and
other required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.) “As a general matter, a
trial court should afford both parties the opportunity to brief the question of a petitioner’s
eligibility for relief and may extend the briefing deadlines ‘for good cause’ as necessary
to ensure that such an opportunity is meaningful.” (Lewis, supra, 11 Cal.5th at p. 966,
fn. 4.)
5
“While the trial court may look at the record of conviction after the appointment of
counsel to determine whether a petitioner has made a prima facie case for . . . relief, the
prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas
corpus proceedings, ‘“the court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to show
cause.”’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’” (Lewis, supra,
11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’” (Id. at p. 972.) “[T]he ‘prima facie
bar was intentionally and correctly set very low.’” (Ibid.)
Where a defendant’s “case was tried before both Banks and Clark, . . . special
circumstance findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s]
in concluding otherwise.” (Ibid.)
If, instead, a defendant has made a prima facie showing of entitlement to relief,
“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.)
Once the court determines that a defendant has made a prima facie showing, “the court
must [then] hold an evidentiary hearing at which the prosecution bears the burden of
proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that
6
there is substantial evidence to support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and enhancements attached to the
conviction, shall be vacated and the petitioner shall be resentenced on the remaining
charges.’” (Id. at p. 709.) “Senate Bill 1437 relief is unavailable if the defendant was
either the actual killer, acted with the intent to kill, or ‘was a major participant in the
underlying felony and acted with reckless indifference to human life . . . .’” (Id. at
p. 710.)
“[E]ffective January 1, 2022, the Legislature limited use of prior appellate
opinions, allowing trial judges to ‘consider the procedural history of the case recited.’
[Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should
not rely on the factual summaries contained in prior appellate decisions when a [former]
section 1170.95 petition reaches the stage of a full-fledged evidentiary hearing.” (People
v. Clements (2022) 75 Cal.App.5th 276, 292; accord People v. Flores (2022)
76 Cal.App.5th 974, 988 [“[T]he factual summary in an appellate opinion is not evidence
that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for
resentencing.”].)
Here, the court dismissed the petition based on a determination that defendant was
the actual killer. However, although defendant testified he had possession of the gun
when it “went off,” killing the victim, he was not convicted as the actual killer; instead, a
jury found defendant’s codefendant guilty as the actual killer of the victim, for which the
7
court sentenced him to death. (Brightmon, supra, E027391; see People v. Johnson
(2015) 61 Cal.4th 734, 740.) Therefore, the court erred in denying defendant’s petition
on that basis.
Moreover, the jury rendered the special murder circumstance findings before both
Banks and Clark were decided. With respect to those findings, “no judge or jury has ever
found the currently required degree of culpability . . . .” (Strong, supra, 13 Cal.5th at
p. 718, italics added.) Thus, contrary to our original determination, the felony-murder
special-circumstance findings did not, alone, render defendant per se ineligible for relief.
Therefore, the matter must be remanded for a new prima facie hearing.
III. DISPOSITION
The order dismissing defendant’s petition is reversed. The matter is remanded
with directions to hold a new prima facie hearing. We express no opinion on whether
defendant is entitled to relief following the hearing. The superior court is directed to
modify its December 13, 2019, minute order to reflect that it dismissed, rather than
denied, defendant’s petition for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
8 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482381/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN THE INTEREST OF: Y.A.-C., A MINOR : No. 241 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: Y.E.C.-A.., A : No. 242 EAL 2022
MINOR :
:
: Petition for Allowance of Appeal
PETITION OF: M.C.-L., MOTHER : from the Order of the Superior Court
IN THE INTEREST OF: I.C.-A.., A MINOR : No. 243 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
IN THE INTEREST OF: I.E.C.A., A MINOR : No. 244 EAL 2022
:
:
PETITION OF: M.C.-L., MOTHER : Petition for Allowance of Appeal
: from the Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 8th day of November, 2022, the Petition for Allowance of Appeal
is DENIED. | 01-04-2023 | 11-08-2022 |
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