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https://www.courtlistener.com/api/rest/v3/opinions/8482385/ | IN THE SUPREME COURT OF PENNSYLVANIA
IN RE: : NO. 919
:
DESIGNATION OF CHAIR AND VICE- : SUPREME COURT RULES DOCKET
CHAIR OF THE ORPHANS’ COURT :
PROCEDURAL RULES COMMITTEE :
ORDER
PER CURIAM
AND NOW, this 8th day of November, 2022, Julian E. Gray, Esquire, is hereby
designated as Chair, and Kendra D. McGuire, Esquire, is designated as Vice-Chair, of
the Orphans’ Court Procedural Rules Committee, commencing January 1, 2023. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350137/ | Filed 12/23/22 P. v. Youmans CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094440
Plaintiff and Respondent, (Super. Ct. No. 00F03501)
v.
ANTONIO PEREZ YOUMANS,
Defendant and Appellant.
Pursuant to Welfare and Institutions Code1 section 6604, the trial court found
defendant Antonio Perez Youmans to be a sexually violent predator and committed him
to the custody of the State Department of State Hospitals for appropriate treatment. On
appeal, defendant argues the trial court failed to sufficiently consider how his plan for
voluntary treatment could reduce his likelihood of reoffending once released from
custody. Finding no error, we affirm.
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
In August 2000, defendant pled guilty to three counts of using force or duress to
commit a lewd or lascivious act on a child under the age of 14 years and one count of
committing a lewd or lascivious act on a child under the age of 14 years. The trial court
sentenced defendant to a stipulated term of 20 years in prison.
In January 2018, the prosecution filed a petition pursuant to section 6601 to have
defendant committed to the State Department of State Hospitals as a sexually violent
predator for appropriate treatment and confinement. At the trial on this petition, the
prosecution presented testimony from two psychologists. Defendant presented testimony
from his own psychologist and from a friend who had agreed to help defendant
reintegrate into society upon his release.
All three psychologists diagnosed defendant with pedophilic disorder. The
prosecution’s psychologists both expressed the opinion that defendant fit the statutory
requirements for commitment as a sexually violent predator because his mental disorder
“makes [him] a danger to the health and safety of others in that it is likely that he . . . will
engage in sexually violent predatory criminal behavior.” (§ 6600, subd. (a)(1).)
Defendant’s psychologist disputed these opinions.
All three psychologists scored defendant as a three on the Static-99R test, which
corresponds with an average risk of sexual offending. The prosecution’s experts
considered defendant to be a “high-risk/high-needs” offender because he had
significantly more external and idiosyncratic risk factors not covered by the Static-99R
test than the typical sex offender. These risk factors included the high number of victims
of defendant’s sex offenses; the young age of some of the victims; emotional congruence
with children; lack of emotionally intimate relationships with adults; self-regulation
problems; resistance to rules and supervision; health issues; childhood behavior
problems, including a juvenile sex offense; continued dysfunctional coping; and adverse
childhood experiences, including suffering childhood sexual abuse.
2
Both of the prosecution’s experts also considered whether any protective factors
would decrease defendant’s risk of reoffending upon release. They concluded defendant
had not completed a sex offender treatment program, had not successfully spent time out
of custody since the offense, was not sufficiently old or infirm to further decrease his
risk, and did not have a viable plan for voluntary treatment outside of custody. Based on
the combination of the Static-99R score, the external and idiosyncratic risk factors, and
the lack of protective factors, the prosecution’s psychologists expressed the opinion that
defendant was likely to reoffend by engaging in sexually violent predatory criminal
behavior if released from custody, with one estimating defendant had a 25 percent chance
of reoffending in his lifetime.
Defendant’s psychologist disagreed with these assessments. Instead, he conveyed
his opinions that defendant should not be considered a “high-risk/high-needs” offender
and defendant’s release plan would have a protective effect, so defendant was not likely
to reoffend by engaging in sexually violent predatory criminal behavior if released from
custody.
The trial court found beyond a reasonable doubt that defendant was a sexually
violent predator as defined in section 6600, subdivision (a) and granted the petition to
commit defendant to the State Department of State Hospitals for appropriate treatment.
DISCUSSION
Defendant argues the trial court failed to give “the consideration the law required”
to his plan for voluntary treatment in the community in finding defendant’s mental
disorder “makes him a danger to the health and safety of others in that it is likely he will
engage in sexually violent predatory criminal behavior.” (See § 6600, subd. (a)(1).)
Defendant fails to identify a standard of review applicable to this alleged error. His
argument lacks merit under any standard.
Section 6600, subdivision (a)(1) defines a sexually violent predator as “a person
who has been convicted of a sexually violent offense against one or more victims and
3
who has a diagnosed mental disorder that makes the person a danger to the health and
safety of others in that it is likely that he or she will engage in sexually violent criminal
behavior.” (See People v. Superior Court (Smith) (2018) 6 Cal.5th 457, 462.) The
parties agree defendant meets the first two elements of this definition and only dispute the
third.
Whether a person is likely to reoffend and therefore poses a danger to the health
and safety of others is a question of fact to which we apply the substantial evidence
standard of review. (In re White (2020) 9 Cal.5th 455, 465.) “ ‘Thus, this court must
review the entire record in the light most favorable to the judgment to determine whether
substantial evidence supports the determination below. [Citation.] To be substantial, the
evidence must be “ ‘of ponderable legal significance . . . reasonable in nature, credible
and of solid value.’ ” ’ ” (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088.)
Defendant downplays the testimony of the prosecution’s experts, but one
prosecution expert, Dr. Sean Sterling, testified defendant’s plan to voluntarily obtain
treatment was “not a viable plan.” The other prosecution expert, Dr. Christopher
Simonet, testified defendant would most likely stop voluntary treatment if asked by
treatment providers to do something emotionally difficult. Dr. Simonet further specified
defendant lacked the skills, support, and relationships he would need to avoid reoffending
outside of custody. This is substantial evidence to support the trial court’s finding that
defendant is likely to reoffend outside of custody despite his plan to voluntarily obtain
treatment.
To the extent defendant argues the trial court insufficiently considered his plan for
voluntary treatment, thereby abusing or failing to exercise its discretion, we reject this
argument. As the trier of fact, the trial court could properly reject opinion testimony
about the effect of voluntary treatment on defendant’s likelihood of reoffending, so long
as it did not do so arbitrarily or without any rational reason. (See People v. Sanchez
(2016) 63 Cal.4th 665, 675; Beck Development Co. v. Southern Pacific Transportation
4
Co. (1996) 44 Cal.App.4th 1160, 1206, fn. 27.) Defendant does not argue or point to any
evidence that the trial court arbitrarily or irrationally rejected evidence.
Contrary to defendant’s assertion, the court’s order contains an entire section titled
“Youmans lacks adequate release plans,” that addresses defendant’s plan for voluntary
treatment, citing the testimony of the prosecution’s experts. The trial court also directly
questioned defendant’s expert about whether voluntary treatment would reduce
defendant’s likelihood of reoffending and what would happen if defendant ceased
voluntary treatment. Similarly, the trial court confirmed defendant would be released
without any treatment conditions if the court denied the petition.
“On appeal, we assume a judgment is correct and the defendant bears the burden
of demonstrating otherwise.” (People v. Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11.)
Defendant has failed to demonstrate any error in the judgment.
DISPOSITION
The judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Earl, J.
5 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350184/ | People v Jones (2022 NY Slip Op 07324)
People v Jones
2022 NY Slip Op 07324
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
759 KA 20-00956
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vRUBIN JONES, III, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
RUBIN JONES, III, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered June 12, 2020. The judgment convicted defendant upon his plea of guilty of criminal sexual act in the second degree (two counts) and endangering the welfare of an incompetent or physically disabled person in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal sexual act in the second degree (Penal Law § 130.45 [2]) and one count of endangering the welfare of an incompetent or physically disabled person in the first degree (§ 260.25). As an initial matter, defendant correctly contends in his main brief and the People correctly concede that defendant's waiver of the right to appeal is invalid because County Court "mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal, and there was no clarification that appellate review remained available for certain issues" (People v Hussein, 192 AD3d 1705, 1706 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]). We further agree with defendant that the waiver of the right to appeal is invalid because the court " 'conflated the appeal waiver with the rights automatically waived by the guilty plea' " (People v Smith, 156 AD3d 1336, 1336 [4th Dept 2017], lv denied 31 NY3d 987 [2018]). Consequently, "the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Cooper, 136 AD3d 1397, 1398 [4th Dept 2016], lv denied 27 NY3d 1067 [2016] [internal quotation marks omitted]; see People v Wright, 193 AD3d 1348, 1349 [4th Dept 2021], lv denied 37 NY3d 969 [2021]).
Defendant contends in his main brief that the court should have afforded him the opportunity to withdraw his guilty plea because his statement of innocence at sentencing cast doubts on whether the plea was knowingly, intelligently, and voluntarily entered. Defendant failed to preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v Scales, 118 AD3d 1500, 1500 [4th Dept 2014], lv denied 23 NY3d 1067 [2014]; see generally People v Morrow, 167 AD3d 1516, 1517 [4th Dept 2018], lv denied 33 NY3d 951 [2019]; People v Wilkes, 160 AD3d 1491, 1491 [4th Dept 2018], lv denied 31 NY3d 1154 [2018]). Contrary to defendant's contention, this case does not fall within the narrow exception to the preservation rule set forth in People v Lopez (71 NY2d 662, 666 [1988]). We further conclude that defendant failed to preserve for our review his contention in his pro se supplemental brief that he was coerced into taking the plea by statements made by the court (see generally People v Kelly, 145 AD3d 1431, 1431 [4th Dept 2016], lv denied 29 NY3d 949 [2017]; People v Lando, 61 AD3d 1389, 1389 [4th Dept 2009], lv [*2]denied 13 NY3d 746 [2009]).
We reject defendant's contention in his main brief that the sentence is unduly harsh and severe.
Defendant's challenge in his pro se supplemental brief to the legal sufficiency of the evidence before the grand jury does not survive his guilty plea (see People v Hansen, 95 NY2d 227, 232 [2000]; People v Scarbrough, 162 AD3d 1575, 1575 [4th Dept 2018], lv denied 34 NY3d 1081 [2019], reconsideration denied 35 NY3d 974 [2020]; People v Oswold, 151 AD3d 1756, 1756-1757 [4th Dept 2017], lv denied 29 NY3d 1131 [2017]). Review of defendant's contention in his pro se supplemental brief that the indictment contained duplicitous counts was forfeited by his plea of guilty (see People v Bracewell, 26 AD3d 812, 812 [4th Dept 2006], lv denied 7 NY3d 752 [2006]; see generally People v Beattie, 80 NY2d 840, 842 [1992]).
Finally, we note that the certificate of conviction erroneously states that defendant was convicted of endangering the welfare of an incompetent or physically disabled person in the first degree under Penal Law § 265.25, and it must be amended to correctly reflect that defendant was convicted of that offense under Penal Law § 260.25 (see generally People v Thurston, 208 AD3d 1629, 1630 [4th Dept 2022]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482382/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: TRUST UNDER WILL F/B/O : No. 154 WAL 2022
CHARLES T. CAMPBELL, II :
:
: Petition for Allowance of Appeal
PETITION OF: CHARLENE M. CAMPBELL : from the Order of the Superior Court
AND THOMAS D. CAMPBELL :
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/9350132/ | Case: 22-40385 Document: 00516588620 Page: 1 Date Filed: 12/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-40385 December 23, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alfredo Juarez-Perez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:21-CR-534-1
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
The Federal Public Defender appointed to represent Alfredo Juarez-
Perez 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). Juarez-Perez has not filed a response. We have
reviewed counsel’s brief and the relevant portions of the record reflected
*
This opinion is not designated for publication. See 5th Circuit Rule 47.5.
Case: 22-40385 Document: 00516588620 Page: 2 Date Filed: 12/23/2022
No. 22-40385
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 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350168/ | People v Wagoner (2022 NY Slip Op 07418)
People v Wagoner
2022 NY Slip Op 07418
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ. (Filed Dec. 23, 2022.)
MOTION NO. (1180/20) KA 16-02366.
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vTINA L. WAGONER, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for writ of error coram nobis denied. | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482383/ | IN THE SUPREME COURT OF PENNSYLVANIA
IN RE: : NO. 579
:
REAPPOINTMENTS TO INTERBRANCH : JUDICIAL ADMINISTRATION DOCKET
COMMISSION FOR GENDER, RACIAL, :
AND ETHNIC FAIRNESS :
ORDER
PER CURIAM
AND NOW, this 8th day of November, 2022, Jessie L. Smith, Esquire, Dauphin
County, and Catherine L. Volponi, Esquire, Allegheny County, are hereby reappointed as
members of the Interbranch Commission for Gender, Racial, and Ethnic Fairness for a
term of two years, commencing December 31, 2022. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482373/ | USCA4 Appeal: 21-1869 Doc: 16 Filed: 11/07/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1869
BRO T. HESED-EL,
Plaintiff - Appellant,
v.
COUNTY OF BUNCOMBE, in its official capacity,
Defendant - Appellee,
and
JOHN DOE, in his individual capacity; ROBIN BRYSON, Licensed Clinical Social
Worker, in her official capacity; MISSION HOSPITALS, INCORPORATED, in its
official capacity,
Defendants.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:19-cv-00285-MR-WCM)
Submitted: September 21, 2022 Decided: November 7, 2022
Before HARRIS and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
USCA4 Appeal: 21-1869 Doc: 16 Filed: 11/07/2022 Pg: 2 of 3
Bro T. Hesed-El, Appellant Pro Se. Curtis William Euler, BUNCOMBE COUNTY
ATTORNEY’S OFFICE, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
USCA4 Appeal: 21-1869 Doc: 16 Filed: 11/07/2022 Pg: 3 of 3
PER CURIAM:
Bro T. Hesed-El appeals the district court’s orders accepting the recommendation
of the magistrate judge and denying relief on Hesed-El’s 42 U.S.C. § 1983 complaint and
denying reconsideration. We have reviewed the record and find no reversible error.
Accordingly, we deny Hesed-El’s motions for appointment of counsel and to strike
Appellee’s informal response brief, and we affirm the district court’s order. 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
3 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482391/ | Cite as: 598 U. S. ____ (2022) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
THOMAS H. BUFFINGTON v. DENIS R. MCDONOUGH,
SECRETARY OF VETERAN AFFAIRS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 21–972. Decided November 7, 2022
The petition for a writ of certiorari is denied.
JUSTICE GORSUCH, dissenting from the denial of certio-
rari.
Thomas Buffington served this Nation well but the De-
partment of Veterans Affairs (VA) failed him. Relying on
its own internal regulations, the agency denied Mr. Buff-
ington disability benefits that Congress promised him by
statute. Nor is Mr. Buffington’s case an isolated one. The
VA’s misguided rules harm a wide swath of disabled veter-
ans. Making matters worse, the lower courts in this case
turned aside Mr. Buffington’s petition asking them to set
aside the agency’s regulations and apply Congress’s statu-
tory instructions as written. Instead, the courts invoked
“Chevron deference,” bypassed any independent review of
the relevant statutes, and allowed the agency to continue to
employ its rules to the detriment of veterans. Respectfully,
those who have served in the Nation’s Armed Forces de-
serve better from our agencies and courts alike.
*
During his eight years in the Air Force in the 1990s, Mr.
Buffington suffered a facial scar, a back injury, and tinni-
tus. After his discharge in 2000, he joined the Air National
Guard. At about the same time and in recognition of inju-
ries he suffered while on active duty, the VA assessed Mr.
Buffington 10 percent disabled and awarded him benefits.
The VA did this pursuant to a congressional promise that
“the United States will pay” compensation “[f]or disability
2 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
resulting from personal injury suffered or disease con-
tracted in line of duty.” 38 U. S. C. §1131.
Mr. Buffington’s time away from active duty proved short
lived. In 2003, the federal government called his Guard
unit into service. As a result, Mr. Buffington served again
on active duty, including from July 2003 to June 2004, and
from November 2004 to July 2005. During Mr. Buffington’s
time on active duty, the VA suspended his disability bene-
fits. In doing so, everyone agrees that the agency acted
properly under a statute that empowers it to withhold ben-
efits “for any period for which [a service member] receives
active service pay.” §5304(c).
The trouble began after Mr. Buffington left active duty in
2005 and the VA failed to resume his disability benefits.
When Mr. Buffington realized what had happened and in-
quired about the problem in January 2009, the agency
acknowledged its legal duty to pay and agreed to resume
future benefits. But the agency also informed Mr. Buffing-
ton that it refused to pay benefits retroactively beyond Feb-
ruary 2008. All of which meant that Mr. Buffington missed
out on about three years of disability payments, from 2005
to 2008.
Why did the VA refuse to pay these benefits? According
to current agency rules, a veteran must ask for his disabil-
ity payments to resume after a second (or subsequent) stint
on active duty. If a veteran fails to ask for his benefits
again, the agency will not provide them. Nor will the
agency pay benefits retroactively beyond “1 year prior to the
date” of a veteran’s reinstatement request. 38 CFR
§3.654(b)(2) (2021).
In the Court of Appeals for Veterans Claims, Mr. Buffing-
ton challenged the agency’s rules as inconsistent with Con-
gress’s statutory commands. After all, the law says that the
VA may suspend disability payments only for periods when
a veteran “receives active service pay.” 38 U. S. C. §5304(c).
The court, however, found it unnecessary to decide for itself
Cite as: 598 U. S. ____ (2022) 3
G ORSUCH,, J.,
GORSUCH J, dissenting
dissenting
whether Mr. Buffington’s reading of the law was the best
one. Instead, the court concluded that “Congress did not
speak to the precise question at issue: Whether the Secre-
tary may predicate the effective date for the recommence-
ment of benefits on the date of the veteran’s claim.” Buff-
ington v. Wilkie, 31 Vet. App. 293, 301 (Ct. App. Vet. Cl.
2019). Given that asserted ambiguity, the court invoked
Chevron U. S. A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837 (1984), and deferred to the agency’s
rules. More of the same awaited Mr. Buffington in his ap-
peal to the Federal Circuit. See 7 F. 4th 1361 (2021).
Still, not everyone saw the case the same way. In the
Federal Circuit, Judge O’Malley dissented, arguing that
Mr. Buffington should have prevailed based on bedrock
principles of statutory interpretation. The law Congress
adopted promised Mr. Buffington benefits from the moment
he left active duty in 2005; the VA had no business requir-
ing him to petition for them a second time; and the agency
had no business withholding three years’ worth of overdue
payments. See id., at 1367–1368. In the Court of Appeals
for Veterans Claims, Judge Greenberg contended that the
majority’s invocation of Chevron was “nothing more than a
rubber stamping of the Government’s attempt to misuse its
authority granted” by Congress. 31 Vet. App., at 308.
Courts, he said, must “stop this business of making up ex-
cuses for judges to abdicate their job of interpreting the
law.” Id., at 307 (internal quotation marks omitted).
I very much doubt that the courts below did right by Mr.
Buffington. As Judges O’Malley and Greenberg high-
lighted, Congress has instructed the VA to make disability
payments to injured veterans like Mr. Buffington. In
§5304(c), Congress suspended that obligation only for peri-
ods when a veteran “receives active service pay.” Nothing
in the statute requires a veteran to ask the agency to re-
sume benefits it is already legally obligated to pay. Nor
4 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
does anything in the statute allow the VA to withhold over-
due benefits. It seems that even the VA once acknowledged
all this. Before adopting its current rules, the agency’s pre-
vious rule imposed no time bar and indicated that payments
“may be resumed the day following release from active duty
if otherwise in order.” 26 Fed. Reg. 1599 (1961) (emphasis
added) (establishing 38 CFR §3.654(b)).
Even more troubling than the answer the lower courts
reached in this case, however, is how they got there. Nei-
ther the Court of Appeals for Veterans Claims nor the Fed-
eral Circuit offered a definitive and independent interpre-
tation of the law Congress wrote. Instead, both courts
simply deferred to the agency’s (current) regulations as
“reasonable” ones and said this Court’s decision in Chevron
required them to do so. That kind of judicial abdication dis-
serves both our veterans and the law.
*
From the beginning of the Republic, the American people
have rightly expected our courts to resolve disputes about
their rights and duties under law without fear or favor to
any party—the Executive Branch included. See A. Bamzai,
The Origins of Judicial Deference to Executive Interpreta-
tion, 126 Yale L. J. 908, 987 (2017). In this country, it was
“well established” early on that courts are not “bound by . . .
administrative construction[s]” of the law and those con-
structions may “be taken into account only to the extent
that [they are] supported by valid reasons.” Burnet v. Chi-
cago Portrait Co., 285 U. S. 1, 16 (1932).
To be sure, as the administrative state spread its wings
in the 1940s this Court toyed with the possibility of “de-
part[ing] from [this] longstanding tradition of independent,
non-deferential judicial determination of questions of law,”
at least when it came to “so-called mixed questions of law
and fact.” E. Bernick, Envisioning Administrative Proce-
dure Act Originalism, 70 Admin. L. Rev. 807, 814 (2018);
Cite as: 598 U. S. ____ (2022) 5
G ORSUCH,, J.,
GORSUCH J, dissenting
dissenting
see, e.g., Gray v. Powell, 314 U. S. 402, 411–412 (1941);
NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131
(1944). But it didn’t take long for a chorus of prominent
voices to denounce that prospect. For example, Roscoe
Pound, a former Dean of Harvard Law School, led a com-
mittee of the American Bar Association (ABA) that pro-
tested against the “recen[t]” trend of “giving the interpreta-
tion of [statutes] to the executive, or to administrative
officials”—a trend that Pound worried would lead to “ad-
ministrative absolutism.” The Place of the Judiciary in a
Democratic Polity, 27 A. B. A. J. 133, 136–137 (1941)
(Pound); see also Gray, 314 U. S., at 418–421 (Roberts, J.,
dissenting) (warning this Court against “abdicat[ing] its
function as a court of review” and “complete[ly] revers[ing]
. . . the normal and usual method of construing a statute”).
In 1946, Congress put any question in this area to rest
when it adopted the Administrative Procedure Act (APA).
Despite sharp divisions along partisan lines, Congress
passed the APA unanimously thanks to a “hard-fought com-
promise” based in part on proposals from Pound and the
ABA. G. Shepherd, Fierce Compromise: The Administra-
tive Procedure Act Emerges From New Deal Politics, 90
Nw. U. L. Rev. 1557, 1560, 1646–1647, 1649–1652 (1996).
On the one hand, the APA allowed agencies to issue binding
regulations and required courts to defer to agency factfind-
ings. See 5 U. S. C. §§553, 556–557, 706(2)(E). On the
other hand, the APA provided that courts “shall decide all
relevant questions of law, interpret constitutional and stat-
utory provisions, and determine the meaning or applicabil-
ity of the terms of agency action.” §706 (emphasis added);
see also §§706(2)(A)–(C) (instructing courts to “hold unlaw-
ful and set aside” agency actions “not in accordance with
law”).
In short, the APA appeared “unequivocally to instruct
courts to apply independent judgment on all questions of
law.” T. Merrill, The Chevron Doctrine: Its Rise and Fall,
6 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
and the Future of the Administrative State 47 (2022) (Mer-
rill 2022). As a leading contemporary scholar of adminis-
trative law put it, the statute imposed a “clear mandate” for
courts to decide questions of law “for [themselves] in the ex-
ercise of [their] own independent judgment.” J. Dickinson,
Administrative Procedure Act: Scope and Grounds of
Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947).
“More explicit words to impose this mandate could hardly
be found.” Ibid.
After the APA’s passage, courts more or less followed this
mandate faithfully for decades. As Justice Robert H. Jack-
son—himself an ardent New Dealer before joining the
bench—explained, courts would respectfully consider Exec-
utive Branch interpretations of the law, but the weight
courts afforded them “depend[ed] upon the[ir] thorough-
ness . . . , [their] consistency with earlier and later pro-
nouncements, and all those factors which g[i]ve [them]
power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134,
140 (1944); accord, United States v. American Trucking
Assns., Inc., 310 U. S. 534, 544 (1940) (“The interpretation
of the meaning of statutes, as applied to justiciable contro-
versies, is exclusively a judicial function”). In fact, many
prominent judicial opinions in the decades following the
adoption of the APA never even mentioned Executive
Branch interpretation of disputed statutory terms. See J.
Beermann, End the Failed Chevron Experiment Now: How
Chevron Has Failed and Why It Can and Should Be Over-
ruled, 42 Conn. L. Rev. 779, 792 (2010).
As some tell it, Chevron effected a revolution in 1984. As
the story goes, the decision overthrew all that came before
and enshrined a new rule requiring courts to defer to Exec-
utive Branch interpretations of the law. No longer did ex-
ecutive officials have to be right about the law’s meaning to
prevail in court—all they had to do was point to some rele-
vant statutory ambiguity or silence and avoid being egre-
giously wrong. The lower courts in this case adopted just
Cite as: 598 U. S. ____ (2022) 7
G ORSUCH,, J.,
GORSUCH J, dissenting
dissenting
this line of reasoning when they turned aside Mr. Buffing-
ton’s appeal.
That view of Chevron, however, reads too much into too
little. Doubtless, Chevron contained language that later
courts would read as representing a “significant depar-
tur[e]from prior law.” T. Merrill, The Story of Chevron: The
Making of an Accidental Landmark, 66 Admin. L. Rev. 253,
255 (2014) (Merrill 2014). Most notably, Chevron included
a passage musing that, “if [a] statute is silent or ambiguous
with respect to [a] specific issue, the question for the court
is whether the agency’s answer is based on a permissible
construction of the statute.” 467 U. S., at 843. But Chevron
also proceeded to restate the traditional rule: “If a court, em-
ploying traditional tools of statutory construction, ascer-
tains that Congress had an intention on the precise ques-
tion at issue, that intention is the law and must be given
effect.” Ibid., and n. 9.
Tellingly, too, Chevron did not express disagreement with
(let alone purport to overrule) precedents reciting the tradi-
tional rule that judges must exercise independent judgment
about the law’s meaning. Nor did the decision argue that
the APA either tolerates or commands deference to Execu-
tive Branch views of the law. To the contrary, Chevron pro-
fessed merely to apply “well-settled principles.” Id., at 845.
Many of the cases Chevron cited to support its judgment
stood only for the traditional proposition that courts afford
respectful consideration, not deference, to executive inter-
pretations of the law. See, e.g., Burnet, 285 U. S., at 16
(“The Court is not bound by an administrative construction,
and if that construction is not uniform and consistent, it
will be taken into account only to the extent that it is sup-
ported by valid reasons”); United States v. Moore, 95 U. S.
760, 762–763 (1878) (an executive interpretation that had
“always heretofore obtained” was “entitled to the most re-
spectful consideration”). And the decision’s sole citation to
legal scholarship, 467 U. S., at 843, was to Roscoe Pound,
8 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
who long championed de novo judicial review. Pound 136–
137.
If Chevron amounted to a revolution, it seems almost eve-
ryone missed it. The decision, issued by a bare quorum of
the Court, sparked not a single word in concurrence or dis-
sent. Chevron’s author, Justice Stevens, later character-
ized the decision as a “simpl[e] . . . restatement of existing
law, nothing more or less.” Merrill 2014, at 275, and n. 77.
And in the “19 argued cases” in the following term “that
presented some kind of question about whether the Court
should defer to an agency interpretation of statutory law,”
this Court cited Chevron just once. Merrill 2014, at 276. By
many estimations, Chevron seemed “destined to obscurity.”
Merrill 2014, at 276.
In truth, it took years for Chevron to morph into some-
thing truly revolutionary. Three years after Chevron, Jus-
tice Scalia wrote a concurrence that seized on its passing
musings about deference and argued for a new rule requir-
ing courts to defer to “reasonable” Executive Branch inter-
pretations of the law whenever a “ ‘statute is silent or am-
biguous.’ ” NLRB v. Food & Commercial Workers, 484 U. S.
112, 133–134 (1987). Two years later, Justice Scalia con-
tinued his campaign in an academic article. See Judicial
Deference to Administrative Interpretations of Law, 1989
Duke L. J. 511 (1989). Eventually, these efforts began to
bear fruit as a majority of the Court came to embrace Jus-
tice Scalia’s view. See Merrill 2022, at 93–94.
*
Over time, however, experience has exposed grave prob-
lems with this expansive reconstruction of Chevron. So
much so that even the initial champion of the project came
to express a change of heart. Not only does reading Chevron
so broadly badly stretch the terms of the original decision.
Not only does it call on courts to depart from the terms of
Cite as: 598 U. S. ____ (2022) 9
G ORSUCH,, J.,
GORSUCH J, dissenting
dissenting
the APA and our longstanding and never-overruled prece-
dent. It also turns out to pose a serious threat to some of
our most fundamental commitments as judges and courts.
In this country, we like to boast that persons who come to
court are entitled to have independent judges, not politi-
cally motivated actors, resolve their rights and duties under
law. Here, we promise, individuals may appeal to neutral
magistrates to resolve their disputes about “what the law
is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Every-
one, we say, is entitled to a judicial decision “without re-
spect to persons,” 28 U. S. C. §453, and a “fair trial in a fair
tribunal,” In re Murchison, 349 U. S. 133, 136 (1955).
Under a broad reading of Chevron, however, courts often
fail to deliver on all these promises. Rather than provide
individuals with the best understanding of their rights and
duties under law a neutral magistrate can muster, we out-
source our interpretive responsibilities. Rather than say
what the law is, we tell those who come before us to go ask
a bureaucrat. In the process, we introduce into judicial pro-
ceedings a “systematic bias toward one of the parties.” P.
Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187,
1212 (2016). Nor do we exhibit bias in favor of just any
party. We place a finger on the scales of justice in favor of
the most powerful of litigants, the federal government, and
against everyone else. In these ways, a maximalist account
of Chevron risks turning Marbury on its head.
Overreading Chevron introduces still other incongruities
into our law. Often we insist that it is a basic requirement
of due process that “ ‘no man can be a judge in his own
case.’ ” Williams v. Pennsylvania, 579 U. S. 1, 8–9 (2016).
As far back as Calder v. Bull, 3 Dall. 386 (1798), this Court
recognized that it would be “against all reason” to “entrust
a Legislature” with the power to “mak[e] a man a Judge in
his own cause,” and therefore “it cannot be presumed that
[the people] have done it,” id., at 388 (opinion of Chase, J.)
10 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
(emphasis deleted). Yet a broad reading of Chevron re-
quires us to presume exactly that. So long as Executive
Branch officials can identify a statutory ambiguity or si-
lence, we must assume that the law permits them to judge
the scope of their own powers and duties—at least so long
as their decisions can be said to be “reasonable.” See K.
Saunders, Agency Interpretations and Judicial Review: A
Search for Limitations on the Controlling Effect Given
Agency Constructions, 30 Ariz. L. Rev. 769, 788–789 (1988).
Then there are the ancient doctrines of lenity and contra
proferentem. From the founding, courts in this country
have construed ambiguities in penal laws against the gov-
ernment and with lenity toward affected persons—here, we
promise, our courts favor individual liberty, not prosecu-
tors, prison time, and penal fines. See Wooden v. United
States, 595 U. S. ___, ___ (2022) (GORSUCH, J., concurring
in judgment) (slip op., at 6). Traditionally, too, our courts
have long and often understood that, “as between the gov-
ernment and the individual[,] the benefit of the doubt”
about the meaning of an ambiguous law must be “given to
the individual, not to authority; for the state makes the
laws.” Lane v. State, 120 Neb. 302, 232 N. W. 96, 98 (1930);
see, e.g., Caldwell v. State, 115 Ohio St. 458, 460–461, 154
N. E. 792, 793 (1926). A rule requiring judicial deference to
executive interpretations of statutory laws—especially
laws that carry both civil and criminal penalties for their
violation (as so many do)—cannot be easily reconciled with
either of these historic commitments.
A broad reconstruction of Chevron defies still other
norms. When reading statutes, we insist that courts pay
careful attention to text, context, and traditional tools of in-
terpretation. We demand interpretations that comport
with how a reasonable reader would have understood the
law at the time of its adoption. See, e.g., New Prime Inc. v.
Oliveira, 586 U. S. ___, ___ (2019). A rule requiring us to
Cite as: 598 U. S. ____ (2022) 11
G ORSUCH,, J.,
GORSUCH J, dissenting
dissenting
suppose that statutory silences and ambiguities are both al-
ways intentional and always created by Congress to favor
the government over its citizens fits with none of this. A
rule like that is neither a traditional nor a reasonable way
to read laws. It is a fiction through and through—and “one
that requires a pretty hefty suspension of disbelief at that.”
Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142, 1153 (CA10
2016) (Gorsuch, J., concurring).
Nor has the maximalist reading of Chevron even proven
workable in practice. To this day, the federal government,
Chevron’s biggest beneficiary, has yet to offer a coherent ex-
planation for when a statute is sufficiently ambiguous to
trigger deference. See, e.g., Tr. of Oral Arg. in American
Hospital Assn. v. Becerra, O. T. 2021, No. 20–1114, pp. 71–
72 (Assistant to the Solicitor General: “I don’t think I can
give you an answer to th[e] question” of “[h]ow much ambi-
guity is enough”). Thanks to all this ambiguity about am-
biguity, courts have pursued “wildly different” approaches.
B. Kavanaugh, Fixing Statutory Interpretation, 129 Harv.
L. Rev. 2118, 2152 (2016) (Kavanaugh). Along the way, too,
Chevron has become pitted with exceptions and caveats—
including for cases of “vast economic and political signifi-
cance,” Utility Air Regulatory Group v. EPA, 573 U. S. 302,
324 (2014) (internal quotation marks omitted), and those in
which Congress has not delegated authority to an agency
“to make rules with force of law,” United States v. Mead
Corp., 533 U. S. 218, 237 (2001). Far from proving a clear
and stable rule, the maximalist account of Chevron has left
behind only a wake of uncertainty.
Overreading Chevron has profound consequences for how
our government operates as well. It encourages executive
officials to write ever more ambitious rules on the strength
of ever thinner statutory terms, all in the hope that some
later court will find their work to be at least marginally rea-
sonable. When one administration departs and the next ar-
rives, a broad reading of Chevron frees new officials to undo
12 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
the ambitious work of their predecessors and proceed in the
opposite direction with equal zeal. In the process, we en-
courage executive agents not to aspire to fidelity to the stat-
utes Congress has adopted, but to do what they might while
they can. See R. Pierce, The Combination of Chevron and
Political Polarity Has Awful Effects, 70 Duke L. J. Online
91, 92 (2021).
Consider the regulations before us. Some time ago, the
VA promulgated a rule consistent with Congress’s instruc-
tions, one providing that a veteran’s disability benefits
“may be resumed the day following [his] release from active
duty.” 26 Fed. Reg. 1599 (establishing 38 CFR §3.654(b)).
In the years that followed, Congress did not amend its laws
in any relevant way. Yet agency officials proceeded to re-
vise their rules anyway to place new burdens on veterans
and make their own jobs easier. Expansive views of Chev-
ron encourage and reward just these sorts of self-serving
gambits.
Overreading Chevron holds still other consequences for
the rule of law. When the law’s meaning is never liquidated
by a final independent judicial decision, when executive
agents can at any time replace one reasonable interpreta-
tion with another, individuals can never be sure of their le-
gal rights and duties. Instead, they are left to guess what
some executive official might “reasonably” decree the law to
be today, tomorrow, next year, or after the next election.
“[E]very relevant actor may agree” that the agency’s latest
pronouncement does not represent best interpretation of
the law, yet all the same each new iteration “carries the
force of law.” Kavanaugh 2151. Fair notice gives way to
vast uncertainty.
Nor does everyone suffer equally. Sophisticated entities
may be able to find their way. They or their lawyers can
follow the latest editions of the Code of Federal Regula-
tions—the compilation of Executive Branch rules that now
Cite as: 598 U. S. ____ (2022) 13
G ORSUCH,, J.,
GORSUCH J, dissenting
dissenting
clocks in at over 180,000 pages and sees thousands of fur-
ther pages added each year. The powerful and wealthy can
plan for and predict future regulatory changes. More than
that, they can lobby agencies for new rules that match their
preferences. Sometimes they can even capture the very
agencies charged with regulating them. But what about or-
dinary Americans?
Today, administrative law doesn’t confine itself to the
regulation of large and sophisticated entities. Our admin-
istrative state “touches almost every aspect of daily life.”
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 561 U. S. 477, 499 (2010). And often it is ordinary
individuals who are unexpectedly caught in the whipsaw of
all the rule changes a broad reading of Chevron invites. Mr.
Buffington’s case illustrates the impact on disabled veter-
ans. Those who left active service before the VA changed
its rule received all their promised benefits; those who
served later do not. Not because of any change in law, only
a change in an agency’s view. So many other individuals
who interact with the federal government have found them-
selves facing similar fates—including retirees who depend
on federal social security benefits, immigrants hoping to
win lawful admission to this country, and those who seek
federal health care benefits promised by law. See, e.g.,
Lambert v. Saul, 980 F. 3d 1266, 1275–1276 (CA9 2020);
Valent v. Commissioner of Social Security, 918 F. 3d 516,
525 (CA6 2019) (Kethledge, J., dissenting); Gonzalez v.
United States Atty. Gen., 820 F. 3d 399, 404–406 (CA11
2016) (per curiam); Padilla-Caldera v. Holder, 637 F. 3d
1140 (CA10 2011).
*
With the passage of time, the problems with reading too
much into Chevron have become widely appreciated. Even
Justice Scalia reconsidered his earlier support for broad ju-
dicial deference to executive interpretations of the law. See
14 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
Decker v. Northwest Environmental Defense Center, 568
U. S. 597, 617–618, 621 (2013) (opinion concurring in part
and dissenting in part) (calling on the Court to overrule the
related Auer deference doctrine, which Justice Scalia had
also pioneered); Perez v. Mortgage Bankers Assn., 575 U. S.
92, 109–110 (2015) (opinion concurring in judgment). Many
other Members of this Court have expressly questioned
Chevron maximalism. See, e.g., Pereira v. Sessions, 585
U. S. ___, ___ (2018) (Kennedy, J., concurring); Michigan v.
EPA, 576 U. S. 743, 760–764 (2015) (THOMAS, J., concur-
ring); Arlington v. FCC, 569 U. S. 290, 312–328 (2013)
(ROBERTS, C. J., dissenting); Gutierrez-Brizuela, 834 F. 3d,
at 1153 (Gorsuch, J., concurring); Kavanaugh 2150–2156.
The federal government itself now often waives or forfeits
arguments for Chevron deference before this Court—and it
does so even in cases that might have once seemed obvious
candidates for the doctrine’s application. See, e.g., Hol-
lyFrontier Cheyenne Refining, LLC v. Renewable Fuels
Assn., 594 U. S.___, ___ (2021) (slip op., at 11) (because the
government did not seek Chevron deference we “decline[d]
to consider” it). As a result of these developments, this
Court has not invoked the broad reading of Chevron in
many years.
Lower federal courts have also largely disavowed the pro-
ject. One recent survey revealed that a substantial major-
ity of federal appellate judges disapprove of the broad read-
ing of Chevron and avoid applying it when they can. See A.
Gluck & R. Posner, Statutory Interpretation on the Bench:
A Survey of Forty-Two Judges on the Federal Courts of Ap-
peals, 131 Harv. L. Rev. 1298, 1312–1313 (2018). An ex-
traordinary number of federal judges have written about
the problems associated with reading Chevron broadly too.
See, e.g., Egan v. Delaware River Port Auth., 851 F. 3d 263,
278 (CA3 2017) (Jordan, J., concurring); Voigt v. Coyote
Creek Mining Co., 980 F. 3d 1191, 1203–1204 (CA8 2020)
(Stras, J., dissenting); Valent, 918 F. 3d, at 524 (Kethledge,
Cite as: 598 U. S. ____ (2022) 15
G ORSUCH,, J.,
GORSUCH J, dissenting
dissenting
J., dissenting); United States v. Havis, 907 F. 3d 439, 448–
450 (CA6 2019) (Thapar, J., concurring), rev’d en banc, 927
F. 3d 382 (per curiam); Carter v. Welles-Bowen Realty, Inc.,
736 F. 3d 722, 729–736 (CA6 2013) (Sutton, J., concurring).
Other notable voices have also spoken. Several state
courts have refused to import a broad understanding of
Chevron in their own administrative law jurisprudence.
See, e.g., Tetra Tech EC, Inc. v. Wisconsin Dept. of Revenue,
2018 WI 75, ¶67, 382 Wis. 2d 496, 554–555, 914 N. W. 2d
21, 50; Ellis-Hall Consultants v. Pub. Serv. Comm’n, 2016
UT 34, ¶32, 379 P. 3d 1270, 1275; see generally L. Phillips,
Chevron in the States? Not So Much, 89 Miss. L. J. 313, 364
(2020) (observing that most States have declined to follow
Chevron). Fifteen States have filed an amici brief in this
case asking us to follow their lead. Brief for Indiana et al.
as Amici Curiae on Pet. for Cert. 1. And courts in other
countries that often consult American administrative law
practices have declined to adopt the doctrine. See, e.g., K.
Barnett & L. Vinson, Chevron Abroad, 96 Notre Dame
L. Rev. 621, 651 (2020) (under British law, an “error of law”
is generally “subject to judicial review de novo”); M. Ber-
natt, Transatlantic Perspective on Judicial Deference in
Administrative Law, 22 Colum. J. European L. 275, 313
(2016) (“[I]t is clear, that there is no counterpart to the
Chevron doctrine on the EU level”); E. Jordão & S. Rose-
Ackerman, Judicial Review of Executive Policymaking in
Advanced Democracies: Beyond Rights Review, 66 Admin.
L. Rev. 1, 8 (2014).
Unsurprisingly given all this, the aggressive reading of
Chevron has more or less fallen into desuetude—the gov-
ernment rarely invokes it, and courts even more rarely rely
upon it. The Federal Circuit’s decision at issue here is thus
something of an outlier. And maybe that is a reason to deny
review of this case. Maybe Chevron maximalism has died
of its own weight and is already effectively buried. But even
if all that’s true, it offers little comfort for Mr. Buffington
16 BUFFINGTON v. MCDONOUGH
GORSUCH, J., dissenting
and the future veterans who will be forced to live with the
VA’s rule and the Federal Circuit’s precedent. The same
goes for other Americans who still find themselves caught
in Chevron’s maw from time to time. No measure of silence
(on this Court’s part) and no number of separate writings
(on my part and so many others) will protect them. At this
late hour, the whole project deserves a tombstone no one
can miss. We should acknowledge forthrightly that Chev-
ron did not undo, and could not have undone, the judicial
duty to provide an independent judgment of the law’s mean-
ing in the cases that come before the Nation’s courts. Some-
day soon I hope we might. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482389/ | Cite as: 598 U. S. ____ (2022) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
CAROL V. CLENDENING, AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF GARY J. CLENDENING v.
UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21–1410. Decided November 7, 2022
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, dissenting from denial of certiorari.
While stationed at Camp Lejeune, Gary Clendening
allegedly was exposed to toxins and contaminated water.
He later died of leukemia. Gary’s widow, petitioner Carol
Clendening, then filed this tort suit against the United
States. For most plaintiffs like Carol, the Federal Tort
Claims Act (FTCA) waives the United States’ sovereign im-
munity and allows for recovery. Nevertheless, the District
Court determined that Carol’s suit was barred by Feres v.
United States, 340 U. S. 135 (1950), which held that mili-
tary personnel cannot sue the United States for any injury
“incident to military service,” id., at 144, even if the FTCA
would otherwise allow the suit. Affirming, the Court of Ap-
peals noted that “criticism of the Feres doctrine abounds,”
but it “ ‘le[ft] to [this] Court the prerogative of overruling its
own decisions.’ ” 19 F. 4th 421, 431 (CA4 2021).
We should accept the invitation. As I have explained sev-
eral times, Feres should be overruled. The FTCA “ ‘renders
the United States liable to all persons, including service-
men, injured by the negligence of Government employees.’ ”
Lanus v. United States, 570 U. S. 932 (2013) (opinion dis-
senting from denial of certiorari) (quoting United States v.
Johnson, 481 U. S. 681, 693 (1987) (Scalia, J., dissenting)).
The Act expressly excepts only a specific class of military-
related claims: those “arising out of . . . combatant activities
2 CLENDENING v. UNITED STATES
THOMAS, J., dissenting
. . . during time of war.” 28 U. S. C. §2680(j). Nothing in
the Act bars suits by servicemen based on their military
status alone. Doe v. United States, 593 U. S. ___, ___–___
(2021) (THOMAS, J., dissenting from denial of certiorari)
(slip op., at 1–2). Yet, in Feres, this Court invented an atex-
tual, policy-based carveout that prevents servicemen from
taking advantage of the FTCA’s sweeping waiver of sover-
eign immunity. Feres “ ‘heartily deserves the widespread,
almost universal criticism it has received.’ ” Lanus, 570
U. S., at 933 (opinion of THOMAS, J.) (quoting Johnson, 481
U. S., at 700 (Scalia, J., dissenting)); see also J. Turley, Pax
Militaris: The Feres Doctrine and the Retention of Sover-
eign Immunity in the Military System of Governance, 71
Geo. Wash. L. Rev. 1, 68 (2003) (“At a minimum, Feres rep-
resented a total departure from principles of judicial re-
straint and deference to the political branches”). I write yet
again to highlight the consequences of this Court’s refusal
to reconsider Feres.
The lower courts’ attempts to apply Feres’ “incident to
military service” standard are marked by incoherence. One
might be surprised to learn, for example, that a service-
man’s exposure to excessive carbon monoxide at Fort Ben-
ning is not incident to service, Elliott v. United States, 13
F. 3d 1555, 1556–1557 (CA11 1994),1 but exposure to con-
taminated drinking water at Camp Lejeune is, Gros v.
United States, 232 Fed. App. 417, 418–419 (CA5 2007)
(per curiam).2 Or that the dissemination of personal mate-
rials stored on a military base by fellow servicemen is not
——————
1 In Elliott, rehearing en banc was granted and the panel opinion va-
cated, 28 F. 3d 1076; the en banc court then affirmed the result by an
equally divided vote, 37 F. 3d 617.
2 The Camp Lejeune Justice Act of 2022, Pub. L. 117–168, §804, 136
Stat. 1802–1804, does not alter the availability of recovery under the
FTCA. Rather, the Act provides an alternative remedy to the FTCA that
presupposes multiple routes to recovery. See §804(e)(1), id., at 1803. It
is also much narrower in scope than the FTCA.
Cite as: 598 U. S. ____ (2022) 3
THOMAS, J., dissenting
incident to service, Lutz v. Secretary of the Air Force, 944
F. 2d 1477, 1478–1479 (CA9 1991), but a West Point cadet’s
rape by a fellow cadet is, Doe v. Hagenbeck, 870 F. 3d 36,
44–49 (CA2 2017).
Far from limiting Feres, this Court “ ‘has embarked on a
course dedicated to broadening the Feres doctrine to encom-
pass, at a minimum, all injuries suffered by military per-
sonnel that are even remotely related to the individual’s
status as a member of the military.’ ” 19 F. 4th, at 428. This
expansion has led to further distortion and incoherence in
our jurisprudence. Take, for example, Air & Liquid Sys-
tems Corp. v. DeVries, 586 U. S. ___ (2019). There, manu-
facturers provided the Navy with asbestos-free equip-
ment—to which the Navy subsequently added asbestos,
allegedly causing cancer in servicemen-decedents. See
Daniel v. United States, 587 U. S. ___, ___–___ (2019)
(THOMAS, J., dissenting from denial of certiorari) (slip op.,
at 1–2). Yet the Navy’s immunity under Feres led us to
“twis[t] traditional tort principles” to allow for recovery
against the manufacturers. Id., at ___ (slip op., at 2). The
force of Feres thereby distorts even longstanding principles
of tort law. E.g., Sebright v. General Elec. Co., 525 F. Supp.
3d 217, 241 (Mass. 2021) (significantly limiting a
sophisticated-purchaser defense because, under Feres, the
serviceman-plaintiff “might not have recourse against any-
one other than equipment manufacturers”).
Further, Feres’ professed concern with military discipline
is anomalous, if not downright hypocritical, against the
backdrop of military law more generally. We preclude run-
of-the-mill tort claims that are “remotely related” to mili-
tary status because of their potential to undermine military
discipline.3 But we have “never held . . . that military per-
——————
3 “[W]e have repeatedly cited the later-conceived-of ‘military discipline’
rationale as the ‘best’ explanation for” Feres. United States v. Johnson,
4 CLENDENING v. UNITED STATES
THOMAS, J., dissenting
sonnel are barred from all redress in civilian courts for con-
stitutional wrongs suffered in the course of military ser-
vice.” Chappell v. Wallace, 462 U. S. 296, 304 (1983). To
the contrary, servicemen “routinely sue their government
and bring military decision-making and decision-makers
into court” seeking injunctive relief. Turley, 71 Geo. Wash.
L. Rev., at 21. For example, we recently left in place an
injunction that dictated personnel decisions to the Navy.
Austin v. U. S. Navy Seals 1–26, 595 U. S. ____ (2022) (par-
tially staying injunction that prevents Navy from taking
any adverse personnel actions against Navy SEAL plain-
tiffs, but only “insofar as it precludes the Navy from . . .
making deployment, assignment, and other operational de-
cisions”). Apparently, the Court cares about the chain of
command when considering money-damages suits against
the Government, but our concerns evaporate when service-
men seek injunctions against their superior officers’ person-
nel decisions.
That is completely backwards. “Injunctions and regula-
tions tell people what they must do and what they must not
do, and it is these types of intrusions that would entangle
courts in military affairs.” Taber v. Maine, 67 F. 3d 1029,
1048 (CA2 1995). By contrast, “[t]ort judgments do neither
of these things.” Ibid.; see also Johnson, 481 U. S., at 700
(Scalia, J., dissenting) (“[P]erhaps Congress assumed that,
since liability under the FTCA is imposed upon the Govern-
ment, and not upon individual employees, military deci-
sionmaking was unlikely to be affected greatly”). If military
discipline is not sufficiently harmed by judicial decisions
countermanding military personnel choices, it is difficult to
see how Feres’ concern with preserving the chain of com-
mand has any validity.4
——————
481 U. S. 681, 698 (1987) (Scalia, J., dissenting).
4 The courts below held that one of Clendening’s claims survived Feres
but was barred under the FTCA’s textual discretionary-function excep-
tion. See 19 F. 4th 421, 432–436 (CA4 2021); 28 U. S. C. §2680(a). The
Cite as: 598 U. S. ____ (2022) 5
THOMAS, J., dissenting
It would be one thing if Congress itself were responsible
for this incoherence. But Congress set out a comprehensive
scheme waiving sovereign immunity that we have disre-
garded in the military context for nearly 75 years. Because
we caused this chaos, it is our job to fix it.
——————
FTCA’s specific exceptions could mitigate the discipline concerns driving
the maintenance of Feres’ atextual “incident to military service” excep-
tion. See Johnson, 481 U. S., at 699–700 (Scalia, J., dissenting) (“[P]er-
haps Congress assumed that the FTCA’s explicit exclusions would bar
those suits most threatening to military discipline, such as claims based
upon combat command decisions, 28 U. S. C. §2680(j); claims based upon
performance of ‘discretionary’ functions, §2680(a); claims arising in for-
eign countries, §2680(k); intentional torts, §2680(h); and claims based
upon the execution of a statute or regulation, §2680(a)”). | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482393/ | In the United States Court of Federal Claims
No. 19-1752
(Filed: November 8, 2022)
*************************************
THE CENTECH GROUP, INC., *
*
Plaintiff, *
*
Lack of Subject-Matter Jurisdiction; RCFC
v. *
12(b)(1); Contract Disputes Act; Damages.
*
THE UNITED STATES, *
*
Defendant. *
*************************************
Kenneth A. Martin, McLean, VA, counsel for Plaintiff; James Fontana and James D’Agostino,
Tysons, VA, of counsel.
Amanda L. Tantum, U.S. Department of Justice, Civil Division, Washington, DC, counsel for
Defendant; with whom was Michael Farr, United States Air Force.
OPINION AND ORDER
DIETZ, Judge.
THE CENTECH GROUP, INC. (“CENTECH”), a government contractor specializing in
the provision of information technology services, brings this suit against the United States
seeking payment for breach of contract under the Contract Disputes Act, 41 U.S.C. § 7104(b)(1)
(“CDA”). CENTECH, suing on behalf of a subcontractor, claims the government cancelled the
installation of a communication infrastructure and refused to accept delivery of certain materials
after CENTECH and its subcontractor purchased those materials. The government moves for
partial dismissal of CENTECH’s complaint pursuant to Rule 12(b)(1) of the Rules of the United
States Court of Federal Claims (“RCFC”). The government contends that the Court lacks
jurisdiction over two of CENTECH’s damage claims because CENTECH failed to present them
to the contracting officer (“CO”) for review prior to seeking relief in this Court. Because the
Court finds that CENTECH failed to adequately present the relevant damage claims to the CO as
required for this Court to exercise jurisdiction under the CDA, the government’s motion is
GRANTED.
I. BACKGROUND
CENTECH entered into a contract with the United States Air Force (“USAF”) to design,
acquire, and install a communication infrastructure as part of the renovation of a building on
Vandenburg Air Force Base. Am. Compl. [ECF 8] ¶ 4. The contract required the USAF to
reimburse CENTECH for materials procured for the project. Id. ¶ 5. CENTECH subcontracted a
portion of the work, including the purchase of certain materials, to Iron Bow Technologies, LLC
(“Iron Bow”). Id. ¶ 8. After the USAF approved the Bill of Materials (“BOM”) for purchase,
Iron Bow issued a purchase order for the materials to its supplier, Communications Supply
Corporation (“CSC”). Id. ¶¶ 10-12, 15. However, before CENTECH completed the delivery of
the materials, the USAF cancelled the order, alleging that the materials did not meet the
government’s requirements and stating that it would not reimburse CENTECH for materials not
yet delivered. Id. ¶¶ 24-25, 28. As a result, the USAF did not reimburse CENTECH for the
materials, CENTECH did not pay Iron Bow, and Iron Bow did not pay CSC. Id. ¶¶ 32-33.
On October 12, 2018, CSC sued Iron Bow for non-payment of the materials. 1 [ECF 8] ¶
33. While the CSC-Iron Bow litigation was pending, on August 22, 2019, CENTECH submitted
a claim to the CO seeking payment for the materials Iron Bow ordered. Id.¶ 34. On November 6,
2019, the CO issued her final decision denying plaintiff’s claim. Id. ¶ 35.
Less than one week later, CENTECH filed the instant action against the USAF on behalf
of Iron Bow, alleging breach of contract and seeking damages arising from the USAF’s
cancellation of the materials order. Compl. [ECF 1] ¶¶ 25-32. On March 11, 2020, CENTECH
amended its complaint, adding claims for constructive termination for convenience and
cancellation. [ECF 8] ¶¶ 54-65. In an unpublished opinion issued June 26, 2020, this Court
granted the government’s motion to dismiss CENTECH’s claims for constructive termination for
convenience and cancellation on the grounds that CENTECH failed to initially present these
claims to the CO. See Op. & Order [ECF 22]. The only claim pending before this Court is
CENTECH’s first count for breach of contract.
CSC and Iron Bow settled their case on May 27, 2021, with Iron Bow agreeing to pay
CSC $1,900,000. See App. to Def’s Mot. to Dismiss [ECF 62-1] at 132-33. 2 On March 3, 2022,
in response to a letter from the government seeking clarification of the damages sought,
CENTECH advised that it was now seeking only $1,900,000 for the costs of the materials. See
id. at 135-36. However, in addition to the material costs, CENTECH advised that it was also
seeking storage, transportation, and insurance costs and attorneys’ fees incurred during
negotiations that took place prior to the filing of its claim in this Court. Id. at 136. On March 22,
2022, the government filed the instant motion to dismiss CENTECH’s additional claims for
damages, arguing that this Court lacks jurisdiction over these claims under the CDA. Def.’s
Partial Mot. to Dismiss [ECF 62]. The government’s motion is fully briefed, and the Court has
determined that oral argument is not needed.
II. JURISDICTION
The United States Court of Federal Claims is a court of limited jurisdiction. Brown v.
United States, 105 F.3d 621, 623 (Fed. Cir. 1997). The Court’s jurisdiction is defined by the
Tucker Act, which waives the sovereign immunity of the United States for “any claim against the
United States founded either upon the Constitution, or any Act of Congress or any regulation of
1
See Commc’ns Supply Corp. v. Iron Bow Techs., LLC, Civil Action No. 2:18-cv-10374-CB (W.D. Pa.).
2
All page numbers in the parties’ briefings refer to the page number generated by the CM/ECF system.
-2-
an executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The
Tucker Act “does not create a substantive cause of action; in order to come within the
jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source
of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005). The Tucker Act does, however, expressly grant this Court
jurisdiction over claims arising under the CDA. 28 U.SC. § 1491(a)(2) (“The Court of Federal
Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with,
a contractor arising under [the CDA.]”). As an express waiver of the government’s immunity, the
CDA “must be strictly construed in favor of the sovereign.” Orff v. United States, 545 U.S. 596,
601-02 (2005).
To assert a claim against the United States under the CDA, a contractor must satisfy
certain requirements. First, the contractor must submit its claim in writing to the CO for review.
41 U.S.C. § 7103(a)(1-2). Second, the contractor must submit its claim within six years after the
claim accrues. Id. § 7103(a)(4)(A). A “claim” is defined as “a written demand or written
assertion by one of the contracting parties seeking, as a matter of right, the payment of money in
a sum certain, the adjustment or interpretation of contract terms, or other relief arising from or
relating to this contract.” Federal Acquisition Regulations (“FAR”) 52.233-1(c). Finally, for
claims greater than $100,000, the contractor must certify that:
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the
contractor’s knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment
for which the contractor believes the Federal Government is liable;
and
(D) the certifier is authorized to certify the claim on behalf of the
contractor.
Id. § 7103(b)(1)(A-D). A contractor may seek review of the CO’s final decision in this Court by
filing a complaint within one year from the date it received the decision. 41 U.S.C. § 7104(b)(3).
This Court reviews such claims de novo. Id. § 7104(b)(4).
III. STANDARD OF REVIEW
Motions to dismiss for lack of subject matter jurisdiction are governed by RCFC
12(b)(1). When considering such a motion, “this Court must assume that all undisputed facts
alleged in the complaint are true and must draw all reasonable inferences in the non-movant’s
favor.” Cal. Dep’t of Water Res. v. United States, 128 Fed. Cl. 603, 609 (2016) (citing Erickson
v. Pardus, 551 U.S. 89, 94 (2007)). When the government moves to dismiss the complaint under
Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction by a
-3-
preponderance of the evidence. Tolliver Grp., Inc. v. United States, 20 F.4th 771, 775 (Fed. Cir.
2021). Further, the “court accepts only uncontroverted factual allegations as true for purposes of
the motion.” United States Enrichment Corp. v. United States, 121 Fed. Cl. 532, 534 (2015)
(quoting Banks v. United States, 741 F.3d 1268, 1277 (Fed. Cir. 2014)). “[D]isputed facts outside
the pleadings are subject to the fact finding of the court.” Engage Learning, Inc. v. Salazar, 660
F.3d 1346, 1355 (Fed. Cir. 2011). “Whether the court possesses jurisdiction to decide the merits
of a case is a threshold matter.” Sandstone Assocs., Inc. v. United States, 146 Fed. Cl. 109, 112
(2019) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998). Thus, if the
Court determines that it lacks subject matter jurisdiction, it must dismiss the case. RCFC
12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
IV. DISCUSSION
The government argues that the Court lacks jurisdiction to consider CENTECH’s claims
for storage, transportation, and insurance costs and for attorneys’ fees incurred during pre-claim
negotiations because neither claim meets the jurisdictional prerequisites under the CDA. The
Court addresses each of CENTECH’s claims below.
A. CENTECH’s Claim for Storage, Transportation, and Insurance Costs
The government challenges the Court’s jurisdiction to consider CENTECH’s request for
damages to cover the storage, transportation, and insurance costs incurred by Iron Bow after it
took possession of the materials from CSC. [ECF 62] at 8. According to the government, in the
August 22, 2019, claim that CENTECH submitted to the CO, CENTECH made no mention of
these costs. Id. at 21-22. Rather, the government contends that CENTECH merely sought
“damages for the purported costs of the Phase I BOM materials (such as cabling and connectors)
ordered by Iron Bow.” Id. at 21. In support of its argument, the government states that the
operative facts related to CENTECH’s claim for the costs of the Phase I BOM materials include
references to Iron Bow’s ordering the materials and to subsequent actions the parties took during
2017 and 2018, whereas the operative facts related to CENTECH’s instant request for storage,
transportation, and insurance costs focus on events that occurred after May 27, 2021—the date
Iron Bow and CSC settled their claims. Id. at 22.
CENTECH disputes the government’s characterization of the allegations in its amended
complaint. Pl.’s Opp’n to Def.’s Partial Mot. to Dismiss [ECF 66] at 5. In CENTECH’s view, an
action brought pursuant to the CDA need only be “based” on the claim presented to the CO and
the language of the complaint need not mirror that of the claim. Id. at 7. According to
CENTECH, the government was aware that CSC’s costs would be increasing daily until CSC’s
claims against Iron Bow were resolved. Id. at 8. Thus, CENTECH avers that the additional costs
detailed in the amended complaint are based on the same set of operative facts as the claims
submitted to the CO and, therefore, do not constitute a new claim. Id. Further, CENTECH argues
that it expressly reserved the right to seek payment of additional expenses as they were incurred
in the claim it submitted to the CO. Id. at 7.
-4-
In K-Con Building Systems, Incorporated v. United States, 778 F.3d 1000 (Fed. Cir.
2015), the United States Court of Appeals for the Federal Circuit set forth a general standard for
assessing what constitutes a separate claim under the CDA for jurisdictional purposes:
“[J]urisdiction exists over those claims which satisfy the requirements of an adequate statement
of the amount sought and an adequate statement of the basis for the request.” Id. at 1005. The
court explained the rationale behind the requirements as follows:
Our longstanding demand that a claim adequately specify both the
amount sought and the basis for the request implies that, at least for
present purposes, we should treat requests as involving separate
claims if they either request different remedies (whether monetary
or non-monetary) or assert grounds that are materially different
from each other factually or legally. This approach, which has been
applied in a practical way, serves the objective of giving the
contracting officer an ample pre-suit opportunity to rule on a
request, knowing at least the relief sought and what substantive
issues are raised by the request.
Id. at 1005-06 (citations omitted) (emphasis in original).
The Federal Circuit has indicated that “merely adding factual details or legal
argumentation does not create a different claim, but presenting a materially different factual or
legal theory . . . does create a different claim.” K-Con Bldg. Sys., Inc., 778 F.3d at 1006. When
different factual grounds are asserted, “[t]he test does not focus on whether two claims have
some overlapping facts.” Monterey Consultants, Inc. v. United States, 159 Fed. Cl. 641, 650
(2022). “Rather, materially different claims necessitate a focus on a different or unrelated set of
operative facts.” Id.; accord Affiliated Constr. Grp., Inc. v. United States, 115 Fed. Cl. 607, 612
(2014) (“To determine whether a contractor’s claim in court constitutes a ‘new claim,’ the court
must assess ‘whether the new issue is based on the same set of operative facts’ as the claim
submitted to the contracting officer.”) (quoting Foley Co. v. United States, 26 Cl. Ct. 936, 940
(1992), aff’d, 11 F.3d 1032 (Fed. Cir. 1993)).
Here, the Court concludes that CENTECH’s request for storage, transportation, and
insurance costs is a new claim because it is based on different factual grounds and seeks different
categories of relief. In its claim submitted to the CO, CENTECH sought reimbursement of a total
of $2,009,105.44 for three line items. CENTECH sought $1,933,533.11 for “Total Subcontractor
Costs,” which covered the cost of the materials. 3 In addition to this amount, CENTECH sought
$61,293.00 for “Sub/Material Handling,” and $14,189.33 for “General & Admin.” Id.
CENTECH did not specify what specific costs were included in these two categories. See id. In
3
In its claim submitted to the CO, CENTECH stated that the “[c]laim involves the Government’s failure to pay
several invoices provided as an attachment to the May 21 letter and as Exhibit 1 to the December 18 letter.” [ECF
62-1] at 3. The first invoice, dated May 21, 2018, is on CENTECH letterhead addressed to the CO and lists 61 items
totaling $1,933,533.11. Id. at 16-17. This amount is characterized on the invoice as “Total Subcontractor Costs.” Id.
at 17. The second invoice, dated April 18, 2018, is on Iron Bow letterhead addressed to CENTECH, and it also lists
61 items totaling $1,933,533.11. Id. at 18-19.
-5-
its original complaint, CENTECH sought $2,009,105.44 for breach of contract in Count I.
Compl. [ECF 1] ¶ 32. In its amended complaint, CENTECH lowered the amount claimed in
Count I to $1,933,533.11. [ECF 8] ¶¶ 52, 54-65.
Following the filing of its amended complaint, CENTECH filed its initial disclosures
under RCFC 26(a)(1). [ECF 62-1] at 101-08. CENTECH maintained that damages still totaled
$1,933,533.11 and covered “unreimbursed costs for the Phase I BOM.” Id. at 107. On January
19, 2022, the government sent CENTECH a letter requesting clarification of the amount sought,
noting that Iron Bow and CSC had settled their claim for a lower amount ($1,900,000) and that
the total cost of materials Iron Bow ordered from CSC was even lower ($1,880,236.03). Id. at
134-35. In its March 3, 2022, response, CENTECH explained that the reason it initially sought
$1,933,533.11 was because Iron Bow billed CENTECH that amount. Id. at 137-38. However,
CENTECH further stated that because Iron Bow settled with CSC for $1,900,000, it was now
only seeking the lesser amount. Id. at 138. CENTECH then stated the following:
In addition to the actual costs of the materials incurred, the
Government has failed to provide any direction on CENTECH’s
disposition of the materials actually purchased. To that end, as we
have reviewed potential buyers for the materials, storage fees
continue to be incurred on a monthly basis. Those fees, including
transportation and insurance, are in now in excess of $97,750, and
continue to accrue at a rate of $36,000 per year absent Government
direction. These fees include transportation to a warehouse, storage,
and bailee’s insurance incurred to date; additional costs may be
incurred for storage and disposition of the materials.
Id. at 137-38.
The problem for CENTECH is that its claim for storage, transportation, and insurance
costs is based on a different set of operative facts. CENTECH’s claim before the CO was based
on CENTECH’s contract with the USAF, CENTECH’s purchase of materials, the USAF’s
determination that the materials failed to meet contract requirements, the USAF’s cancellation of
the materials order, and the USAF’s failure to reimburse CENTECH for the cost of the materials.
CENTECH’s claim for storage, transportation, and insurance costs is based on Iron Bow’s
purchase of materials from CSC, Iron Bow’s and CSC’s settlement agreement, and Iron Bow’s
taking possession of the materials from CSC. While CENTECH’s claim before the CO for
reimbursement of the costs of the materials and its instant claim for storage, transportation, and
insurance costs may have some overlapping facts, this does not render them the same under the
CDA. The critical issue is that the Court must focus on different operative facts to resolve
CENTECH’s claim for storage, transportation, and insurance costs. See Monterey Consultants,
Inc., 159 Fed. Cl. at 650. Because the CO was not given adequate notice of CENTECH’s claim
for storage, transportation, and insurance costs and therefore did not have an opportunity to rule
on it, the Court does not have jurisdiction to consider it. See Cerberonics, Inc. v. United States,
13 Cl. Ct. 415, 418 (1987) (“The critical test appears to be whether the scheme of adjudication
prescribed by the CDA is undermined by the contractor’s claim on appeal—that is, by
-6-
circumventing the statutory role of the contracting officer to receive and pass judgment on the
contractor’s entire claim.”).
Further, the Court is not persuaded by CENTECH’s assertion that its current claim
merely seeks an enlargement of the damages previously sought. In Kunz Construction Company
v. United States, 12 Cl. Ct. 74 (1987), the United States Claims Court held that the court has
jurisdiction over an enlarged claim: “(1) if the increase in the amount of the claim is based on the
same set of operative facts previously presented to the contracting officer; and (2) the court finds
that the contractor neither knew nor reasonably should have known, at the time when the claim
was presented to the contracting officer, of the factors justifying an increase in the amount of the
claim.” Id. at 79. In Kunz, a construction company that had contracted with the United States to
build a cancer treatment center initially brought a claim before the CO seeking compensation for
additional electrical work it claimed the government required. Id. at 76. In its complaint before
the Claims Court, the contractor added a claim for increased overhead, “which the plaintiff
allegedly sustained as a result of the extra electrical work required by the Government.” Id. at 79.
The Claims Court concluded that while the claim for increased overhead was based on the same
set of operative facts previously presented to the CO, the court lacked jurisdiction over the claim
because plaintiff, an experienced contractor, should have known at the time it submitted its claim
to the CO that it would be performing additional electrical work, which in turn would increase its
overhead expenses. Id.
A similar claim for enlarged damages was at issue in Modeer v. United States, 68 Fed. Cl.
131 (2005), aff’d, 183 F. App’x 975 (Fed. Cir. 2006). In Modeer, plaintiffs leased a building to
the United States. Modeer, 68 Fed. Cl. at 134. Although both parties agreed that they had created
a holdover tenancy, they did not agree on the start and end dates of that tenancy. Id. As a result,
plaintiffs sent the CO a letter complaining that the government was a holdover tenant, and that
rent was accruing at a specified pro rata yearly rate. Id. Next, plaintiffs filed suit in this Court,
again requesting a specified amount of back rent and seeking utility costs for the same holdover
period. Id. First, the court noted that, despite plaintiffs not seeking an exact amount of back rent,
the CO could calculate the appropriate amount: “The sum certain requirement is met if the
contracting officer can determine the amount claimed by a simple mathematical calculation.” Id.
at 137; see also LDG Timber Enters., Inc. v. United States, 8 Cl. Ct. 445, 455 (1985) (holding the
court lacked jurisdiction over the contractor’s claim for “costs resulting from logging of
mismarked timber” because it was “not reduced to a specific amount”). Next, the Court
concluded that it had jurisdiction over plaintiffs’ claim for increased rent because plaintiffs had
previously presented it to the CO. Id. The court explained:
It is certainly true that a contractor may not present a new claim to
this court that was not first presented to the contracting officer for a
final decision. But if the dollar value of a claim increases based on
new information available only after the claim was submitted to the
contracting officer, it is the same claim, not a new claim, as long as
it arises from the same operative facts as the original claim and
claims the same categories of relief.
-7-
Id. at 137 (citations omitted). Ultimately, the Modeer court held that it had jurisdiction over the
plaintiffs’ claim for holdover rent because it arose from the same set of operative facts, claimed
the same category of relief as the initial request for holdover rent submitted to the CO, and
because the plaintiffs could not have known the exact length of the government’s holdover
tenancy when they presented their claim to the CO. Modeer, 68 Fed. Cl. at 137. Regarding the
plaintiffs’ claim for utility costs, however, the court found that the plaintiffs neither mentioned
utility costs in their letter to the CO, nor did they specify a sum certain. Id. at 139.
CENTECH’s current claim for storage, transportation, and insurance costs does not
qualify as an enlarged claim. Although CENTECH’s current claim derives generally from the
government’s alleged breach of the contract, it is based on different operative facts, as explained
above. Additionally, CENTECH now seeks reimbursement for categories of relief that were
never mentioned in the claim submitted to the CO. In fact, the only reference CENTECH made
to storage costs appears in the letter it submitted to the CO, wherein it states: “As this matter has
progressed, we understand that CSC’s costs in storing the equipment increase on a daily basis,
and CSC has reserved all of its rights against Iron Bow.” See [ECF 62-1] at 7. This statement
does not reference any costs incurred either by Iron Bow or CENTECH, does not reference
transportation or insurance costs, and does not specify a sum certain. This statement does not
even seek reimbursement. Nevertheless, this statement does demonstrate that at the time it
submitted its claim to the CO, CENTECH was fully aware that CSC was incurring storage fees
because of the USAF’s refusal to accept delivery of the materials and that such storage fees
would increase over time. Thus, it is reasonable to conclude that CENTECH knew that the
government’s refusal to accept delivery of the materials would, at a minimum, result in
CENTECH or its subcontractors incurring additional storage costs. Despite this apparent
knowledge, CENTECH failed to submit storage costs as part of its claim to the CO. CENTECH
also failed to submit transportation and insurance costs. Because these costs are based on
different operative facts and fall into different categories of relief, CENTECH’s current claim
cannot be viewed as an enlarged claim.
The Court is also not persuaded by CENTECH’s argument that it reserved the right to
seek reimbursement for later-incurred expenses, such as storage, transportation, and insurance
costs. While CENTECH “reserve[d] the right to increase the total amount requested as further
expenses in connection with this Claim are incurred” 4 in the claim it submitted to the CO, this
statement would, if interpreted as CENTECH suggests, eviscerate the CDA’s requirement that
contractors initially seek review of their claims before the CO prior to filing suit in this Court.
See Cont. Cleaning Maint., Inc. v. United States, 811 F.2d 586, 592 (Fed. Cir. 1987) (“All that is
required is that the contractor submit in writing to the contracting officer a clear and unequivocal
statement that gives the contracting officer adequate notice of the basis and amount of the
claim.”). Simply stated, CENTECH did not put the CO on adequate notice that it was seeking
reimbursement for storage, transportation, and insurance costs. Therefore, under the CDA, the
Court lacks jurisdiction over CENTECH’s request for these costs. 5
4
[ECF 62-1] at 8 n.9.
5
The government also contends that, even though CENTECH’s claim for storage, transportation, and insurance
costs does not presently exceed $100,000, plaintiff should be required to satisfy the CDA’s jurisdictional
-8-
B. CENTECH’s Claim for Attorney’s Fees
The government argues that the Court also lacks jurisdiction to consider CENTECH’s
request for attorney’s fees incurred in connection with negotiations prior to filing its CDA claim.
The government explains that, whereas CENTECH originally alleged that it was owed attorney’s
fees in relation to the government’s breach of contract claim, [ECF 62] at 17, CENTECH now
seeks “contract administration costs related to negotiation,” id. at 18 (quotation marks omitted).
The government argues that the request for attorney’s fees in CENTECH’s original claim and the
one raised for the first time in its amended complaint are “materially different legally.” Id. at 19.
According to the government, “to establish the breach of contract claim raised in its August 22,
2019 claim, CENTECH has to show (1) a valid contract between the parties; (2) an obligation or
duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by the breach.”
Id. (quotation marks omitted). By comparison, the government continues, “CENTECH’s new
claim for contract administration costs requires a showing (1) that CENTECH incurred legal
fees; (2) that the costs were reasonable; and (3) that the costs were allowable.” Id. (citing FAR
31.205-33). Aside from being based on different legal grounds, the government also avers that
the Court lacks jurisdiction over CENTECH’s new claim for attorney’s fees because CENTECH
failed to specify a sum certain in its August 22, 2019, claim. Def.’s Reply in Support of its Mot.
to Dismiss [ECF 70] at 11.
CENTECH counters that this Court has jurisdiction over its claim for additional
attorney’s fees because, like its claim for additional costs, it was originally submitted to the CO.
[ECF 66] at 5. Further, CENTECH argues that simply because the CO did not expressly
reference its request for attorney’s fees in her final decision does not mean the request was not
made. Id. at 5-6. Any other reading of its claim before the CO, CENTECH maintains, would be
“overly narrow.” Id. at 7.
In Tolliver Group, Inc. v. United States, 20 F.4th 771 (Fed. Cir. 2021), the Federal Circuit
was tasked with discerning whether the relief sought by the plaintiff in the claim it submitted to
the CO was the same as the relief sought in its complaint. In Tolliver, a third-party relator
brought a qui tam action against the plaintiff, a contractor, alleging that it falsely certified
compliance with the original contract. Id. at 773. The plaintiff prevailed in the qui tam action and
thereafter submitted a claim to the CO under the CDA for “an equitable adjustment and payment
. . . in the amount of $195,889.78 for allowable legal fees.” Id. at 774. Citing FAR § 31.205-47,
the plaintiff argued that, because it successfully defended a False Claims Act suit, it was entitled
to recover costs, including attorney’s fees. Id. The CO denied the plaintiff’s claim, and so the
plaintiff sued the government in this Court. Id. Following multiple amendments to the complaint
and extensive motions practice, this Court entered judgment for the plaintiff, finding that the
government had breached an implied warranty of performance. 6 Id.
certification requirement because there is a likelihood that these costs will exceed the $100,000 threshold. [ECF 62]
at 22-23. However, because the Court has determined that it lacks jurisdiction over CENTECH’s claim for these
costs, it need not address this argument.
6
Thereafter, this Court denied the government’s motion for reconsideration. Tolliver, 20 F.4th at 775.
-9-
The government appealed and the Federal Circuit held as follows:
Here, the claim that Tolliver presented to the contracting officer
was, on its face, based on allowability under FAR § 31.205-47, not
based on a breach of the implied warranty of performance.
Tolliver’s initial statement requesting “an equitable adjustment and
payment . . . for allowable legal fees,” was at so high a level of
generality that, without further specification, it could cover
materially distinct claims, and it did not give adequate notice of any
specific claim. And when Tolliver’s letter to the contracting officer
provided the narrowing specificity, the elaboration gave adequate
notice only that a FAR claim was at issue, not that the elements of a
breach of the implied warranty of performance were at issue.
Id. at 776 (citations omitted). The Federal Circuit then explained why it concluded that the legal
theories underpinning the different claims were “not materially the same”:
The claim presented to the contracting officer sought recovery of the
expended legal fees as “allowable” costs under § 31.205-47. That
required showing (1) that Tolliver had incurred legal fees defending
a proceeding listed in § 31.205-47(b) (here, a qui tam False Claims
Act lawsuit); (2) that the costs were not rendered unallowable under
§ 31.205-47(b) because of the result of the proceeding; and (3) that
Tolliver was seeking an appropriate percentage of its expended legal
fees, limited by regulation to 80%. FAR § 31.205-47(e). By contrast,
the general elements of the legal theory for the claim on which the
Claims Court entered its judgment were (1) that the contract bound
Tolliver to comply with a government-provided “design
specification” that, if followed, would produce a “defective or
unsafe” result; (2) that Tolliver had complied with the specification
or that compliance was commercially impossible; and (3) that
Tolliver incurred costs proximately caused by the defect in the
specification.
Id. at 777 (citations and quotation marks omitted).
In the case at bar, as in Tolliver, the Court concludes that not only is the remedy sought
now different than the one originally sought, but the legal and factual bases for the claims are
different as well. In the claim it submitted to the CO, under the caption “Relief Requested,”
CENTECH sought “[a] determination that CENTECH/Iron Bow is entitled to reasonable
attorneys’ fees and related expenses in connection with this Claim.” [ECF 62-1] at 9. CENTECH
did not explain what amounts were included in its request for “expenses in connection” with its
claim, nor did it specify a dollar amount. Thus, in its original claim, CENTECH sought an
unspecified amount of attorney’s fees and an additional unspecified amount of expenses in
connection with its claim that the government breached its contract with CENTECH.
-10-
In its amended complaint, CENTECH references attorney’s fees twice. First, under Count
I, its breach of contract claim, CENTECH states the following:
As a result of these breaches, Iron Bow has incurred damages in the
amount of $1,933,533.11—to include Iron Bow’s costs for the CSC
Purchase Order (less the cost for the Phase I Paid Materials) and Iron
Bow’s lost profits on Phase I Materials—plus CDA interest, costs
and expenses, to include legal fees, in connection with the
preparation and filing of the Claim and this action, less applicable
credits that may apply or otherwise be determined.
Am. Compl. and Req. for Declaratory J. [ECF 8] ¶ 52. Next, under the caption “Relief
Requested,” CENTECH “demands judgement against the Defendant . . . (4) For Contracts [sic]
Disputes Act interest, and costs and legal fees incurred herein.” Id. at 11. Further, on March 3,
2022, CENTECH stated that it was seeking “a reasonable amount of attorneys’ fees in the sum of
approximately $8,000, subject to any upward revisions pending final review of invoices and
charges.” [ECF 62-1] at 138. CENTECH also stated the following:
As you are aware, attorneys’ fees are recoverable to the extent
incurred in support of negotiation rather than a litigation posture.
See LCC-MZT Team IV v. United States, 155 Fed. Cl. 387, 504
(2021) (“If a contractor incurred the cost for the genuine purpose of
materially furthering the negotiation process, such cost should
normally be a contract administration cost allowable under FAR
31.205-33, even if negotiation eventually fails and a CDA claim is
later submitted. On the other hand, if a contractor’s underlying
purpose for incurring a cost is to promote the prosecution of a CDA
claim against the Government, then such cost is unallowable under
FAR 31.205-33.” (internal citations and quotations omitted)). Thus,
CENTECH seeks to recover its attorneys’ fees incurred prior to the
filing of the claim.
Id.
Although it is not entirely clear, it appears that CENTECH now seeks to recover, in
addition to the attorney’s fees related to its breach of contract claim, attorney’s fees incurred
during negotiations held prior to the filing of its claim with the CO—fees CENTECH asserts are
allowable as contract administration costs under the FAR. The critical issue is that CENTECH’s
request for attorney’s fees based on its breach of contract claim is based on a materially different
legal theory than its request for attorney’s fees under the FAR. To prevail on the former,
CENTECH must prove that (1) CENTECH and the government entered into a valid contract; (2)
under the contract, the government had a duty to reimburse CENTECH for materials purchased
in connection thereto; (3) the government breached the contract when it refused to permit the
delivery of the materials (despite having previously approved their purchase, delivery, and
-11-
installation) and when it refused to reimburse CENTECH for the materials; (4) CENTECH
incurred damages as a result of the government’s breach; and (5) CENTECH is entitled to
attorney’s fees. See [ECF 8] ¶¶ 39-53. On the other hand, to prevail on the latter, CENTECH
must prove that (1) CENTECH incurred attorney’s fees; and (2) its attorney’s fees qualify as
reimbursable costs under FAR 31.205-33, which provides for the reimbursement of “professional
and consultant service costs.” Because the latter basis for seeking attorney’s fees was not
expressly brought before the CO, the Court lacks jurisdiction to consider it. See Kenney
Orthopedic, LLC v. United States, 83 Fed. Cl. 35, 43 (2008) (holding that the court lacked
jurisdiction over plaintiff’s claim for breach of contract damages, to include attorney’s fees,
because plaintiff failed to submit a claim to the CO for the same). At bottom, CENTECH’s initial
claim failed to put the CO on adequate notice that it was seeking reimbursement of attorney’s
fees incurred during negotiations as an allowable cost under FAR 31.205-33.
V. CONCLUSION
For the reasons set forth above, “Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint, in Part, Pursuant to RCFC 12(b)(1)” [ECF 62] is GRANTED. CENTECH’s claims
for storage, transportation, and insurance costs and for attorneys’ fees incurred during pre-
complaint negotiations are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
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https://www.courtlistener.com/api/rest/v3/opinions/8482390/ | Cite as: 598 U. S. ____ (2022) 1
JACKSON, J., dissenting
SUPREME COURT OF THE UNITED STATES
DAVEL CHINN v. TIM SHOOP, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 22–5058. Decided November 7, 2022
The petition for a writ of certiorari is denied.
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins,
dissenting from the denial of certiorari.
This is a capital case involving a violation of Brady v.
Maryland, 373 U. S. 83 (1963). There is no dispute that,
during the capital trial of petitioner Davel Chinn, the State
suppressed exculpatory evidence indicating that the State’s
key witness, Marvin Washington, had an intellectual disa-
bility that may have affected Washington’s ability to re-
member, perceive fact from fiction, and testify accurately.
When affirming on direct appeal, the Ohio Supreme Court
said “[i]f the jury accepted Washington’s testimony, the jury
was certain to convict [Chinn], but if the jury did not believe
Washington, it was certain to acquit [Chinn] of all charges.”
State v. Chinn, 85 Ohio St. 3d 548, 561, 709 N. E. 2d 1166,
1178 (1999). Similarly, the Ohio Court of Appeals said that
Washington was the “key” and “main” witness against
Chinn. State v. Chinn, 2001–Ohio–1550, 2001 WL 788402,
*2, *8 (July 13, 2001). Yet, when confronted during state
postconviction proceedings with the State’s suppression of
evidence that would have substantially impeached this key
witness, the Ohio courts suddenly concluded that evidence
was not “material” enough to have affected the trial.
I write to emphasize the relatively low burden that is
“materiality” for purposes of Brady and Strickland v. Wash-
ington, 466 U. S. 668 (1984). To prove prejudice under both
Brady and Strickland, a defendant must show “a reasona-
ble probability” of a different outcome. United States v.
2 CHINN v. SHOOP
JACKSON, J., dissenting
Dominguez Benitez, 542 U. S. 74, 82 (2004); United States
v. Bagley, 473 U. S. 667, 682 (1985) (opinion of Blackmun,
J.). We have repeatedly said that the “reasonable probabil-
ity” standard is not the same as the “more likely than not”
or “preponderance of the evidence” standard; it is a qualita-
tively lesser standard. Kyles v. Whitley, 514 U. S. 419, 434
(1995) (collecting cases); see also Dominguez Benitez, 542
U. S., at 83, n. 9; Strickler v. Greene, 527 U. S. 263, 298
(1999) (Souter, J., concurring in part and dissenting in
part). In fact, it is “contrary to” our precedent to equate the
“ ‘reasonable probability’ ” materiality standard with the
more-likely-than-not standard. Williams v. Taylor, 529
U. S. 362, 405–406 (2000).
The Sixth Circuit did not appropriately apply the materi-
ality standard. Although the Sixth Circuit purported to rec-
ognize that the two standards were different, it simultane-
ously claimed that “ ‘reasonable probability’ for Brady’s
purposes is effectively the same as a more-probable-than-not
standard.” Chinn v. Warden, 24 F. 4th 1096, 1103 (2022)
(emphasis added). It further said that “[t]he Brady ques-
tion now” before the court was “whether it is more probable
than not that the withheld evidence would have created a
different result.” Ibid. That reasoning violated the spirit,
if not the letter, of our many cases holding that the two
standards are not the same and that “reasonable probabil-
ity” is a lower standard. Indeed, it is unclear why Strick-
land would have spent the time it did considering but re-
jecting the “more likely than not” standard in favor of the
“reasonable probability” standard for prejudice, 466 U. S.,
at 693–694, if courts could treat them as “effectively the
same,” 24 F. 4th, at 1103.
Because Chinn’s life is on the line, and given the substan-
tial likelihood that the suppressed records would have
changed the outcome at trial based on the Ohio courts’ own
representations, see Harrington v. Richter, 562 U. S. 86,
112 (2011), I would summarily reverse to ensure that the
Sixth Circuit conducts its materiality analysis under the
proper standard. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482395/ | 11/08/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 27, 2022
THOMAS N. ALLEN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamblen County
No. 21CR570 Alex E. Pearson, Judge
___________________________________
No. E2022-00373-CCA-R3-PC
___________________________________
The pro se Petitioner, Thomas N. Allen, appeals from the summary dismissal of his petition
filed pursuant to the Post-Conviction DNA Analysis Act of 2001 (“the Act”), wherein he
sought DNA testing of evidence related to his first degree murder conviction. After
reviewing the record and the parties’ briefs, we affirm the judgment of the post-conviction
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.
Thomas N. Allen, Tiptonville, Tennessee, Pro Se.
Jonathan Skrmetti, Attorney General and Reporter; James E. Gaylord, Senior Assistant
Attorney General; Dan E. Armstrong, District Attorney General, for the appellee, State of
Tennessee.
OPINION
In March 2006, a Hamblen County Criminal Court jury convicted the Petitioner of
first degree premeditated murder. See State v. George Arthur Lee Smith, No. E2006-
00984-CCA-R3-CD, 2007 WL 4117603, at *1 (Tenn. Crim. App. Nov. 19, 2007), perm.
app. denied (Tenn. Feb. 25, 2008). At the Petitioner’s joint trial, the evidence established
that Defendant George Smith shot and killed the victim, Donald Wilder, Jr., with the
assistance of his girlfriend, Defendant Shannon Jarnigan. Id. at *1-3, *6-7, *9-11, *12-13.
Evidence further established that the Petitioner ordered that the victim’s murder be
committed, provided a weapon and drugs to assist in the killing, and provided money and
drugs in exchange for the killing. Id. at *8-13. Several witnesses testified that the
Petitioner wanted the victim, a confidential informant, killed for “snitching” on him. Id. at
*7-8, *11. Defendant Smith admitted to police that he killed the victim and that he accepted
a gun from the Petitioner in order to commit this killing. Id. at *4-5. He also disclosed
that he used drugs with the victim at a motel, walked outside with the victim, and, as they
were standing back to back while urinating, he turned and shot the victim in the back of
the head. Id. A forensic anthropologist found a skull, hand bones, a rib, and some vertebrae
at the crime scene and concluded that animals had likely scattered the remains. Id. at *14.
Brent Murphy, a crime scene investigator with the Morristown Police Department,
recovered a pair of bloody blue jeans from the scene and retrieved a bone from one of the
pant legs. Id. The Tennessee Bureau of Investigation (TBI) determined that the bone
needed mitochondrial DNA testing. Id. at *15. ReliaGene Technologies, who obtained a
DNA profile from both this bone and the blood sample from the victim’s sister, concluded
that the bone produced a mitochondrial DNA profile consistent with the victim’s sister’s
profile, thereby linking the bone to the victim. Id. Following his conviction for first degree
premeditated murder, the Petitioner appealed, and this court affirmed the Petitioner’s
conviction. Id. at *15-33.
Thereafter, the Petitioner filed a timely petition for post-conviction relief and writ
of error coram nobis, which was denied. See Thomas Nathaniel Allen v. State, No. E2010-
01971-CCA-R3-PC, 2012 WL 826522, at *1 (Tenn. Crim. App. Mar. 13, 2012), perm. app.
denied (Tenn. Oct. 1, 2012). On appeal, the Petitioner argued that he was entitled to post-
conviction relief based on ineffective assistance of trial counsel and prosecutorial
misconduct and that he was entitled to coram nobis relief because a witness’s recantation
amounted to newly discovered evidence. Id. at *4-10. This court affirmed the judgments
of the post-conviction court. Id. at *10.
Still later, the Petitioner filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his 2006 state court conviction for first degree premeditated
murder on multiple grounds, including insufficiency of the evidence. See Thomas
Nathaniel Allen v. Mike Parris, No. 2:15-CV-23-JRG-MCLC, 2018 WL 1595784, at *1
(E.D. Tenn. Mar. 30, 2018). The district court denied the petition and dismissed the action
with prejudice. Id. at *16.
On November 15, 2021, the Petitioner filed a “Petition to Request Forensic DNA
Analysis of Evidence Pursuant to Tenn. Code Ann. § 40-30-301 et seq.,” wherein he sought
testing of the “skull, loose teeth, and hair” of “alleged remains . . . of the victim.” In this
petition, the Petitioner claimed the results of this requested DNA testing “may show that
the newly tested evidence does not have the same resulting data” as the mitochondrial DNA
testing of the bone used by the State at trial to identify the victim. The Petitioner asked the
court to appoint counsel to assist him in explaining the need for the DNA analysis of the
aforementioned evidence, to provide him with laboratory reports prepared in the previous
mitochondrial DNA analysis of the bone, as well as the underlying data and laboratory
-2-
notes thereof, and to conduct an evidentiary hearing on these issues. The record shows that
the State never filed a response to this petition.
On November 16, 2021, the post-conviction court entered an order stating that the
matter was set for a hearing “on February 1, 2022[,] for the Court to determine whether to
appoint counsel relative to the [Petitioner’s] Petition to test DNA evidence and to set this
matter for a hearing.”
On February 18, 2022, the post-conviction court entered an order summarily
dismissing this petition. The court stated that it had considered the petition as well as this
court’s opinions from the Petitioner’s direct appeal and the appeal from the denial of the
Petitioner’s petition for post-conviction relief and writ of error coram nobis before making
the following findings and conclusions:
[T]he record is clear that additional DNA testing would not rise to the
standard requisite to order additional testing. DNA is not the lynchpin of this
case and in fact really played a small part in the State’s proof. First and
foremost, DNA testing has already been performed in this case and helped
establish a connection between the bone[] recovered to the deceased victim.
The Court finds additional DNA testing would not exonerate the [Petitioner],
or lead the State to decide not to prosecute the [Petitioner] given the wealth
of additional evidence introduced in the State’s case in chief at trial. The
Court finds that ordering additional DNA testing would serve no legitimate
purpose in this case and would only serve to waste state resources given that
no reasonable probability exists that such testing would result in an acquittal
or decision not to prosecute by the State. Viewed in the best light, the
defendant is simply requesting the additional DNA testing not to establish
his innocence or to seriously discredit the State’s case but simply in hopes of
establishing the State has recovered the wrong body. The Court declines to
engage in such an expedition when the results would not meet the threshold
requirement of the first factor of the DNA post-conviction statute.
The court also found that “given the facts of this case, the [Petitioner] is not making the
request to demonstrate innocence but to attempt to thwart the administration of justice.” It
held that given all the evidence before it, there was “insufficient proof to grant [the
Petitioner] any form of relief or DNA testing[.]”
Thereafter, the Petitioner filed a notice of appeal of the aforementioned order. This
notice of appeal was stamped filed by the appellate court on March 24, 2022, which is
outside the thirty-day time period for filing an appeal. See Tenn. R. App. P. 4(a) (stating
that the notice of appeal “shall be filed with the clerk of the appellate court within 30 days
-3-
after the date of entry of the judgment appealed from”). However, the record also contains
documentation showing that the Petitioner delivered his notice of appeal to the prison on
March 17, 2022, which is within the time set for filing. Under the “mailbox rule,” a paper
filed by an incarcerated pro se litigant is deemed timely filed “if the paper was delivered
to the appropriate individual at the correctional facility within the time set for filing.” See
Tenn. R. Crim. P. 49(d)(1). Accordingly, we will consider the Petitioner’s notice of appeal
timely filed.
ANALYSIS
The Petitioner argues that the post-conviction court erred in denying his petition for
DNA analysis. The State responds that the post-conviction court properly denied the
petition because no reasonable probability exists that the Petitioner would not have been
prosecuted or convicted if further analysis of different remains yielded exculpatory results.
The State also asserts that the Petitioner’s various procedural complaints are waived or
meritless. We agree with the State.
The Post-Conviction DNA Analysis Act of 2001 provides that a petitioner convicted
of specific offenses, including first degree murder,
may at any time, file a petition requesting the forensic DNA analysis of any
evidence that is in the possession or control of the prosecution, law
enforcement, laboratory, or court, and that is related to the investigation or
prosecution that resulted in the judgment of conviction and that may contain
biological evidence.
Tenn. Code Ann. § 40-30-303. “[T]here is no statutory time limit on requests for testing
and ‘the right to DNA analysis under the Act may not be waived by implication.’” Powers
v. State, 343 S.W.3d 36, 48 (Tenn. 2011) (quoting Griffin v. State, 182 S.W.3d 795, 799
(Tenn. 2006)); see Tenn. Code Ann. § 40-30-303 (providing that a petitioner “may at any
time” file a petition for DNA analysis) (emphasis added).
A post-conviction court is given considerable discretion in determining whether to
grant the petitioner relief under the Act. Jesse Haddox v. State, No. M2003-00514-CCA-
R3-PC, 2004 WL 2544668, at *2 (Tenn. Crim. App. Nov. 10, 2004) (citing Jack Jay Shuttle
v. State, No. E2003-00131-CCA-R3-PC, 2004 WL 199826, at *4 (Tenn. Crim. App. Feb.
3, 2004)). Consequently, this court will not reverse a post-conviction court’s judgment
unless it is not supported by substantial evidence. Id. (citing State v. Hollingsworth, 647
S.W.2d 937, 938 (Tenn. 1983); Willie Todd Ensley v. State, No. M2002-01609-CCA-R3-
PC, 2003 WL 1868647, at *4 (Tenn. Crim. App. Apr. 11, 2003)).
-4-
Tennessee Code Annotated section 40-30-304 is mandatory, providing that once the
State has been notified and given the opportunity to respond, the court shall order DNA
analysis pursuant to the Act if it finds that:
(1) A reasonable probability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been obtained through
DNA analysis;
(2) The evidence is still in existence and in such a condition that DNA
analysis may be conducted;
(3) The evidence was never previously subjected to DNA analysis or was not
subjected to the analysis that is now requested which could resolve an issue
not resolved by previous analysis; and
(4) The application for analysis is made for the purpose of demonstrating
innocence and not to unreasonably delay the execution of sentence or
administration of justice.
Tenn. Code Ann. § 40-30-304. The Act also has a discretionary section, which states that
after the State has been notified and given the opportunity to respond, the post-conviction
court may order DNA analysis if it finds that “[a] reasonable probability exists that analysis
of the evidence will produce DNA results that would have rendered the petitioner’s verdict
or sentence more favorable if the results had been available at the proceeding leading to
the judgment of conviction,” and the petitioner has satisfied the other three requirements.
Id. § 40-30-305. Under either the mandatory or discretionary sections, all four
requirements must be met before DNA analysis will be ordered by the court. Powers, 343
S.W.3d at 48.
Because the post-conviction court’s summary dismissal of the petition was based
on Code section 40-30-304, we must determine whether the criteria of this mandatory
section were established by the Petitioner. While all four criteria must be satisfied before
DNA testing is required under Code section 40-30-304, the most important criterion in this
case is the first, namely whether “[a] reasonable probability exists that the petitioner would
not have been prosecuted or convicted if exculpatory results had been obtained through
DNA analysis[.]” Tenn. Code Ann. § 40-30-304(1). A reasonable probability is “‘a
probability sufficient to undermine confidence in the outcome.’” Powers, 343 S.W.3d at
54 (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)). Consequently, before
a mandatory order of testing is given, the petitioner must establish “‘a probability sufficient
to undermine confidence’ in the decision to prosecute or in the conviction had the State or
the jury known of exculpatory DNA testing results.” Id. at 55.
-5-
When considering whether Code section 40-30-304(1) has been established, we
must “begin with the proposition that DNA analysis will prove to be exculpatory.” Id.
(footnote omitted) (citing Pervis Payne v. State, W2007-01096-CCA-R3-PD, 2007 WL
4258178, at *10 (Tenn. Crim. App. Dec. 5, 2007); Jack Jay Shuttle, 2004 WL 199826, at
*5). “While courts must also consider the evidence that was presented against the
petitioner at trial, the evidence must be viewed in light of the effect that exculpatory DNA
evidence would have had on the fact-finder or the State.” Id. (citing Jesse Haddox, 2004
WL 2544668, at *5).
This court has recognized that the facts of the offense are “paramount” to this court’s
review of an issue under the DNA Analysis Act. Harold James Greenleaf, Jr. v. State, No.
M2009-01975-CCA-R3-CD, 2010 WL 2244099, at *3 (Tenn. Crim. App. Nov. 15, 2010).
However, “the post-conviction court is not required by the Act to hold an evidentiary
hearing in order to decide whether testing should be granted . . . .” Powers, 343 S.W.3d at
56. When considering the effect that exculpatory DNA evidence would have had on the
fact-finder or the State, the post-conviction court must consider all available evidence,
including the proof presented at trial and any stipulations of fact made by either party. Id.
at 55-56; Jack Jay Shuttle, 2004 WL 199826, at *4; Mark A. Mitchell v. State, No. M2002-
01500-CCA-R3-PC, 2003 WL 1868649, at *4 (Tenn. Crim. App. Apr. 11, 2003). “The
recitation of the facts contained in prior appellate opinions may be helpful in determining
what facts and evidence were presented at trial.” Powers, 343 S.W.3d at 56. However,
“[t]he ‘reasonable probability’ inquiry under section 40-30-304(1) of the Act requires
courts to look at the effect the exculpatory DNA evidence would have had on the evidence
at the time of trial or at the time the decision to prosecute was made, not on the evidence
as construed by an appellate court in the light most favorable to the State.” Id. at 57
(footnote omitted).
The Petitioner asserts the post-conviction court erred in denying his petition under
Code section 40-30-304(1) because there were chain of custody issues with the prior DNA
analysis linking the bone to the victim. He claims that if the “bones, teeth, and hair”
collected from the site had been tested as he requested in his petition, then the “identity of
the victim would have been seriously undermined.” Initially, we note that the Petitioner
has waived this issue by never referencing a chain of custody issue in his petition and by
never raising this issue on direct appeal or in his post-conviction appeal. See Tenn. R. App.
P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”). Waiver notwithstanding, the challenges
the Petitioner raises have nothing to do with the chain of custody of the bone previously
tested for DNA. First, the Petitioner asserts that at trial two witnesses mistakenly identified
a particular exhibit as the tested bone when the exhibit was actually a photograph of a bullet
-6-
fragment. However, the challenged testimony given by those witnesses does not affect the
chain of custody regarding the tested bone. Second, the Petitioner claims that the tested
bone “was not examined by the Forensic Anthropologist when she examined the others
because she did not receive it until several months later from Brent Murphy of the MPD.”
Even if this claim were true, it would not affect the chain of custody of the tested bone or
the reliability of this tangible evidence. Third, the Petitioner contends that “[Brent]
Murphy left the scene of the discovered remains with a pair of blue jeans in which he later
stumbled upon the [bone]—after washing bloodstains out of it that could have been very
useful for testing.” Again, the discovery of the bone in an item of clothing taken from the
scene by an investigating officer does not raise chain of custody issues. Finally, the
Petitioner asserts that if the grand jury had known that “positive identifications are not
possible” using mitochondrial DNA testing, then it would not have believed TBI agent
Chad Smith’s testimony that mitochondrial DNA testing linked the bone to the victim, and
the grand jury would not have indicted the Petitioner. This claim, which concerns the
credibility of Agent Smith’s testimony before the grand jury, also does not relate to any
chain of custody issues.
Here, the identity of the victim was not in question at trial because Defendant Smith
admitted to killing the victim, and overwhelming evidence established that the Petitioner
ordered Smith to commit this killing. At trial, DNA evidence linked a bone from the crime
scene to the victim. See George Arthur Lee Smith, 2007 WL 4117603, at *15. Even if the
Petitioner’s requested DNA results were not consistent with the DNA profile of the
victim’s sister, this evidence would not be exculpatory because it simply shows that the
remains of more than one person were found at the site. Despite the Petitioner’s claims,
additional DNA testing of different human remains would not undermine the DNA results
already obtained in this case. Accordingly, no reasonable probability exists that the
Petitioner would not have been prosecuted or convicted if this evidence had been obtained
through DNA analysis. Therefore, we conclude that the post-conviction court properly
exercised its discretion in summarily dismissing the petition in this case.
The Petitioner also claims that the post-conviction court failed to make findings
under Code sections 40-30-304(2) and (3) and erred in finding that he was attempting to
“thwart the administration of justice” under Code section 40-30-304(4) when he was
simply trying to prove that he was wrongfully indicted. See Tenn. Code Ann. §§ 40-30-
304(2), (3), (4). However, a post-conviction court is not required to make findings under
all subsections of Code section 40-30-304 because a petitioner’s failure “to establish any
single requirement may result in a dismissal of the petition.” Morris Rucker v. State, No.
M2018-00987-CCA-R3-PC, 2019 WL 325046, at *4 (Tenn. Crim. App. Jan. 23, 2019)
(citing Charles E. Jones v. State, No. W2014-02306-CCA-R3-PC, 2015 WL 3882813, at
*3 (Tenn. Crim. App. June 24, 2015)). We have already concluded that no reasonable
probability exists that the Petitioner would not have been prosecuted or convicted if the
-7-
requested evidence had been obtained through DNA analysis. Because the Petitioner failed
to establish Code section 40-30-304(1), the post-conviction court was not required to
determine whether Code sections 40-30-304(2), (3), and (4) had been established.
Moreover, in light of the Petitioner’s failure to establish Code section 40-30-304(1), we
need not assess the post-conviction court’s finding under Code section 40-30-304(4).
Additionally, the Petitioner raises several procedural claims that do not entitle him
to relief. He claims that the trial court erred in failing to appoint him counsel, to conduct
a hearing, to await a response by the State before ruling, and to rule on his request for all
laboratory reports, underlying data, and laboratory notes related to the prior DNA analysis
conducted in his case. He also asserts that at least some of these failings amounted to a
violation of his due process rights. Initially, we recognize that the Act does not entitle the
Petitioner to any of these procedural mechanisms. First, the Act does not compel a post-
conviction court to conduct a hearing on requests for DNA analysis. See Powers, 343
S.W.3d at 56; Morris Rucker, 2019 WL 325046, at *4; Tenn. Code Ann. § 40-30-309
(requiring the preservation of evidence when a petition for DNA analysis “is not summarily
dismissed”). In addition, while a response by the State can be “helpful,” see Willie Tom
Ensley, 2003 WL 1868647, at *4, the Act requires only that the State be given “an
opportunity to respond,” not that the State must respond, see Tenn. Code Ann. § 40-30-
304. Next, the appointment of counsel and the production of laboratory reports, underlying
data, and laboratory notes associated with prior DNA analysis is discretionary under the
Act. See Id. §§ 40-30-307 (providing that the court “may” appoint counsel for an indigent
petitioner), -308 (stating that if evidence has previously been subjected to DNA analysis,
the court “may” order the production of laboratory reports, as well as underlying data and
laboratory notes associated with the DNA analysis). Moreover, it is well established that
the Act’s procedures do not violate due process. See Estate of Alley v. State, 648 S.W.3d
201, 228 (Tenn. Crim. App. 2021) (recognizing that the state-imposed requirements for
obtaining DNA analysis under the Act do not create any unconstitutional deprivation of
due process rights).
Finally, the Petitioner contends that the post-conviction judge should have recused
based on a conflict of interest. He claims that the post-conviction judge was an assistant
district attorney when the Petitioner’s case was “still active.” The record in this case
contains no motion for recusal, and the record includes no evidence allowing this court to
address a conflict of interest. Therefore, this last claim is waived.
CONCLUSION
After reviewing the record and the parties’ briefs, we affirm the post-conviction
court’s summary dismissal of the petition requesting DNA analysis of evidence.
-8-
_________________________________
CAMILLE R. MCMULLEN, JUDGE
-9- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482387/ | USCA11 Case: 21-10444 Date Filed: 11/08/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10444
Non-Argument Calendar
____________________
VICTOR GAVILLAN MARTINEZ,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:17-cv-00210-MW-MJF
____________________
USCA11 Case: 21-10444 Date Filed: 11/08/2022 Page: 2 of 6
2 Opinion of the Court 21-10444
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Victor Gavillan-Martinez appeals pro se from the district
court’s order granting summary judgment in favor of the Secretary
for the Department of Corrections, Mark Inch, and dismissing his
42 U.S.C. § 1983 civil rights complaint with prejudice. Gavil-
lan-Martinez argues that the district court erroneously found that
his equal protection rights were not violated by Secretary Inch not
permitting Gavillan-Martinez to receive his legal materials in com-
pact disc (“CD”) format. He also argues that the district court er-
roneously found there was no factual dispute regarding the secu-
rity measures used by the prison for CDs, that the Legal Paper Rule
had not impeded his access to the courts, and that the Legal Paper
Rule prohibiting prisoners from receiving legal files in CD format
was constitutional. Gavillan-Martinez also argues that the district
court abused its discretion when it found that the argument that
CDs pose a security risk was not frivolous and denied the motion
for sanctions. For the following reasons, we affirm.
I.
We review a district court’s ruling on summary judgment
de novo and apply the same legal standard as the district court.
Brannon v. Finkelstein, 754 F.3d 1269, 1274 (11th Cir. 2014). Sum-
mary judgment is appropriate when there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a
USCA11 Case: 21-10444 Date Filed: 11/08/2022 Page: 3 of 6
21-10444 Opinion of the Court 3
matter of law. Fed. R. Civ. P. 56(a). We draw all factual inferences
in a light most favorable to the non-movant. Brannon, 754 F.3d at
1274. A factual dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The
mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.” Id. at 252. And “[a]n
issue of fact is ‘material’ if, under the applicable substantive law, it
might affect the outcome of the case.” Hickson Corp. v. N.
Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Allen
v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997)). “A non-con-
clusory affidavit which complies with Rule 56 can create a genuine
dispute concerning an issue of material fact, even if it is self-serving
and/or uncorroborated.” United States v. Stein, 881 F.3d 853,
858-59 (11th Cir. 2018) (en banc).
“Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally con-
strued.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). Issues raised for the first time on appeal are deemed
waived and we do not review them. Id.
When a prisoner alleges a violation of his equal protection
rights, he “must demonstrate that (1) ‘he is similarly situated with
other prisoners who received’ more favorable treatment; and (2)
his discriminatory treatment was based on some constitutionally
protected interest such as race.” Jones v. Ray, 279 F.3d 944, 946–47
USCA11 Case: 21-10444 Date Filed: 11/08/2022 Page: 4 of 6
4 Opinion of the Court 21-10444
(11th Cir. 2001) (quoting Damiano v. Fla. Parole & Prob. Comm’n,
785 F.2d 929, 932–33 (11th Cir. 1986)).
To succeed on a claim of lack of access to the courts, an in-
mate must first establish the threshold requirements of (1) standing
(actual injury) for (2) a colorable underlying claim. See Lewis v.
Casey, 518 U.S. 343, 349 (1996); Barbour v. Haley, 471 F.3d 1222,
1225–26 (11th Cir. 2006); Bass v. Singletary, 143 F.3d 1442, 1445
(11th Cir. 1998). “The injury which the inmate must demonstrate
is an injury to the right asserted, i.e.[,] the right of access.” Bass, 143
F.3d at 1445. An inmate can show actual injury by showing that
prison officials’ actions frustrated or impeded the inmate’s efforts
to pursue a nonfrivolous legal claim. Id. at 1445–46 (upholding
summary judgment against inmates who failed to establish that ac-
tual injury resulted from prison officials’ confiscation of legal ma-
terial passed between inmates without authorization).
Once the threshold requirements are met, the Supreme
Court has applied the reasonableness standard of review set forth
by Turner v. Safley, 482 U.S. 78 (1987), to prison regulations that
restrict inmates’ access to the courts. See Johnson v. California, 543
U.S. 499, 510 (2005). “[W]hen a prison regulation or practice im-
pinges on an inmate’s constitutional rights, the regulation or policy
is valid if it is reasonably related to legitimate penological inter-
ests.” Turner, 482 U.S. at 89 (emphasis added). However, “courts
. . . owe ‘substantial deference to the professional judgment of
prison administrators.’” Beard v. Banks, 548 U.S. 521, 528 (2006)
(quoting Overton v. Bazzetta, 539 U.S. 126, 132 (2003)). If there is
USCA11 Case: 21-10444 Date Filed: 11/08/2022 Page: 5 of 6
21-10444 Opinion of the Court 5
a rational connection to a legitimate penological interest, the
prison policy will be upheld. Rodriguez v. Burnside, 38 F.4th 1324,
1331 (11th Cir. 2022). In order to help determine whether the rela-
tionship exists, we consider whether there are alternative ways for
the prisoner to exercise their right, whether accommodation of the
prisoner’s request will have a large effect on the prison, and
whether the policy is an “exaggerated response.” Turner, 482 U.S.
at 89–91; Rodriguez, 38 F.4th at 1330. In order to show a valid in-
terest, a prison need not present evidence of an actual security
breach or specific evidence of a causal link between a prison policy
and incidents of violence, as prison officials must be free to antici-
pate and prevent security problems. Prison Legal News v. Sec’y,
Fla. Dep’t of Corr., 890 F.3d 954, 968 (11th Cir. 2018).
Here, Gavillan-Martinez has not shown that his equal pro-
tection rights were violated because he was not treated less favor-
ably than other inmates within the prison and could still access his
legal materials. Nor are there any genuine issues of material fact
related to what security measures the prison had in place for CDs.
Secretary Inch included statements from the Chief of Security out-
lining the risks CDs pose and measures taken to mitigate those
risks. Gavillan-Martinez presented no evidence to counter those
statements. Further, the district court properly found that Gavil-
lan-Martinez was not denied access to the courts because he man-
aged to file his 28 U.S.C. § 2254 petition and could not specifically
state how the CD would have aided his claims in that petition. Fi-
nally, the Legal Paper Rule is constitutional because it furthers the
USCA11 Case: 21-10444 Date Filed: 11/08/2022 Page: 6 of 6
6 Opinion of the Court 21-10444
prison’s legitimate interest of security and alternatives to the rule
are too costly. We thus conclude that the district court properly
granted summary judgment for Secretary Inch, and we affirm.
II.
We review a district court’s ruling of sanctions under Fed-
eral Rule of Civil Procedure 11 for an abuse of discretion. Massen-
gale v. Ray, 267 F.3d 1298, 1301 (11th Cir. 2001). Federal Rule 11
sanctions exist to limit frivolous and costly maneuvers. Id. at 1302.
In considering a motion for sanctions under Rule 11, we conduct a
two-step inquiry, asking: “(1) whether the party’s claims are objec-
tively frivolous, and (2) whether the person who signed the plead-
ings should have known that they were frivolous.” Peer v. Lewis,
606 F.3d 1306, 1311 (11th Cir. 2010) (quoting Byrne v. Nezhat, 261
F.3d 1075, 1105 (11th Cir. 2001)). A claim is frivolous when there
is no “reasonable factual basis” for the claim. Gulisano v. Burling-
ton, Inc., 34 F.4th 935, 942 (11th Cir. 2022).
Here, the district court properly found that the argument
that CDs pose a security risk within the prison was not frivolous
because it was supported by statements from the Chief of Security
for the Department of Corrections and was not rejected by the dis-
trict court in orders prior to the motion for summary judgment.
Thus, we conclude that the district court properly denied the mo-
tion for sanctions.
AFFIRMED. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482398/ | Filed 11/8/22 Timmons v. City of Aliso Viejo CA4/3
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
FOURTH APPELLATE DISTRICT
DIVISION THREE
AMANDA TIMMONS,
Plaintiff and Appellant, G060627
v. (Super. Ct. No. 30-2019-01059119)
CITY OF ALISO VIEJO, OPI NION
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County, Charles
Margines, Judge. Reversed.
Raymond Ghermezian, for Plaintiff and Appellant.
Kutak Rock, Edwin J. Richards, Kevin J. Grochow, for Defendant and
Respondent.
* * *
A public entity may be liable for a dangerous condition of public property
1
that creates a substantial (nontrivial) risk of injury. (Gov. Code, § 835 et seq.) “In
determining whether a given walkway defect is trivial as a matter of law, the court should
not rely solely upon the size of the defect . . . .” (Huckey v. City of Temecula (2019) 37
Cal.App.5th 1092, 1105 (Huckey).) “The court should consider other circumstances
which might have rendered the defect a dangerous condition . . . .” (Ibid.)
Amanda Timmons tripped and fell as she walked from a city street onto a
sidewalk. A concrete gutter was over one inch lower than the asphalt street; the asphalt
was broken and jagged.
Timmons sued the City of Aliso Viejo (the City) alleging a dangerous
condition of public property and vicarious liability. (§§ 835, 815.2.) The City filed a
motion for summary judgment arguing there was not a dangerous condition as a matter of
law, and it did not have sufficient notice. The trial court granted the motion.
On appeal, we think reasonable jurors might disagree as to whether the
condition was dangerous and whether the City had notice. That is, we find triable issues
of material fact. Thus, we reverse the trial court’s order granting the City’s motion.
I
FACTS AND PROCEDURAL BACKGROUND
In May 2018, Timmons was walking on a street during her lunch break. As
she attempted to step from the street onto the sidewalk, Timmons tripped where the gutter
meets the street and fell into the curb. The concrete gutter was about one to two inches
lower than the asphalt street, which was jagged and broken.
Timmons filed a complaint against the City alleging: 1) a dangerous
condition of public property; and 2) vicarious liability for wrongful acts or omissions by
1
Further undesignated statutory references are to the Government Code.
2
public entity employees. (§§ 835 et seq., 815.2.)
The City filed a motion for summary judgment with transcripts, discovery
responses, photographs, declarations, and a statement of material facts. Timmons filed an
opposition with transcripts, photographs, an expert declaration, evidentiary objections, a
response to the City’s statement of facts, and her own statement of facts. The City filed a
reply with evidentiary objections, and responses to Timmons’ statement of facts (the
pleadings will be reviewed in the discussion section of this opinion).
After a hearing, the trial court issued an order ruling on the evidentiary
objections and granting the motion. The court found the City “has established the lack of
notice of the condition of the area where [Timmons] was injured. Thus, even if the
height differential, asphalt rubble, and the other factors relied on by [Timmons] combined
to create a dangerous condition, if [the City] lacked notice thereof, the existence of the
dangerous condition fails to provide grounds for liability.”
II
DISCUSSION
In the motion for summary judgment, the City argued there was not a
dangerous condition as a matter of law, and there was no evidence it had sufficient notice
of the condition of the street where the slip and fall accident occurred. We disagree.
Summary judgment “provide[s] courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 844.) The moving party has the initial burden to make a prima facie showing that no
triable issue of material fact exists. If met, the party opposing the motion has the burden
of showing the existence of disputed facts. (Id. at p. 843.)
We review the trial court’s decision de novo. (Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 65, 67-68.) “In determining if the papers show that there is
3
no triable issue as to any material fact, the court shall consider all of the evidence set
forth in the papers, . . . and all inferences reasonably deducible from the evidence, . . .
summary judgment shall not be granted by the court based on inferences reasonably
deducible from the evidence if contradicted by other inferences or evidence that raise a
triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)
In this discussion we will: A) review relevant legal principles,
B) summarize the moving papers, and C) analyze the law as applied to the facts.
A. Relevant Legal Principles (Dangerous Condition and Notice)
“Except as provided by statute, a public entity is liable for injury caused by
a dangerous condition of its property if the plaintiff establishes that the property was in a
dangerous condition at the time of the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition created a reasonably foreseeable
risk of the kind of injury which was incurred, and either: [¶] (a) A negligent or wrongful
act or omission of an employee of the public entity within the scope of his employment
created the dangerous condition; or [¶] (b) The public entity had actual or constructive
notice of the dangerous condition . . . a sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.” (§ 835, subd. (a) & (b).)
A “‘dangerous condition’” is defined as “a condition of property that
creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury
when such property or adjacent property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.” (§ 830, subd. (a).)
“A dangerous condition exists when public property ‘is physically
damaged, deteriorated, or defective in such a way as to foreseeably endanger those using
the property itself,’ or possesses physical characteristics in its design, location, features
or relationship to its surroundings that endanger users.” (Cerna v. City of Oakland
(2008) 161 Cal.App.4th 1340, 1347-1348 (Cerna), italics added.) “The existence of a
4
dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law
if reasonable minds can come to only one conclusion.’” (Id. at p. 1347.)
“A condition is not a dangerous condition within the meaning of this
chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff,
determines as a matter of law that the risk created by the condition was of such a minor,
trivial or insignificant nature in view of the surrounding circumstances that no reasonable
person would conclude that the condition created a substantial risk of injury when such
property or adjacent property was used with due care in a manner in which it was
reasonably foreseeable that it would be used.” (§ 830.2, italics added.)
“This principle, referred to as the ‘trivial defect doctrine’ . . . is not an
affirmative defense, but ‘an aspect of duty that a plaintiff must plead and prove.’
[Citations.] That is so because a property owner’s duty of care ‘does not require the
repair of minor or trivial defects.’” (Nunez v. City of Redondo Beach (2022) 81
Cal.App.5th 749, 757 [“‘persons who maintain walkways, whether public or private, are
not required to maintain them in an absolutely perfect condition’”].)
“In determining whether a given walkway defect is trivial as a matter of
law, the court should not rely solely upon the size of the defect—in this case, on the
depth or height of the walkway depression or elevation—although the defect’s size ‘may
be one of the most relevant factors’ to the court’s decision. [Citation.] The court should
consider other circumstances which might have rendered the defect a dangerous
condition at the time of the accident. [Citation.] [¶] These other circumstances or
factors include whether there were any broken pieces or jagged edges in the area of the
defect . . . . [Citation.] In sum, ‘[a] court should decide whether a defect may be
dangerous only after considering all of the circumstances surrounding the accident that
might make the defect more dangerous than its size alone would suggest.’” (Huckey v.
City of Temecula (2019) 37 Cal.App.5th 1092, 1105, second italics added.)
“A public entity had actual notice of a dangerous condition . . . if it had
5
actual knowledge of the existence of the condition and knew or should have known of its
dangerous character.” (§ 835.2, subd. (a).) “A public entity had constructive notice . . .
only if the plaintiff establishes that the condition had existed for such a period of time and
was of such an obvious nature that the public entity, in the exercise of due care, should
have discovered the condition and its dangerous character.” (§ 835.2, subd. (b).)
B. The Moving Papers
We will now summarize the admitted evidence from: 1) the City’s motion
2
for summary judgment, 2) Timmons’ response, and 3) the City’s reply.
1. The City’s Motion for Summary Judgment
The City argued in the motion for summary judgment there was not a
dangerous condition as a matter of law, and the City did not have sufficient notice.
In support, the City filed a separate statement that included the following
undisputed facts: Timmons alleges she fell because of a defective area in the street;
Timmons walked across the street and alleges she was about to step onto a curb when she
stepped on a large dip where the asphalt road meets the concrete gutter; this occurred at
about 12:45 p.m., when the weather was sunny and dry; there is no crosswalk where
Timmons crossed the street; there was no pedestrian or vehicle traffic that would have
blocked Timmons’ view of the subject area; Timmons had walked in the area before; a
witness had previously noticed the condition of the street, but did not consider it to be
dangerous; the subject location was constructed in 1987; between the construction date
and the date of the incident (2018) there were no reported falls; no lawsuit had ever been
2
We are not summarizing or considering in our analysis any evidence excluded by the
trial court in its evidentiary rulings. Given our disposition on the merits (reversing the
trial court’s granting of the City’s MSJ), it is not necessary for us to consider Timmons’
further challenges on appeal to the trial court’s evidentiary rulings.
6
filed against the City alleging a dangerous condition related to the height differential
specifically, or the condition of the street generally; and the City’s staff averred there had
been routine maintenance and inspections of the area since at least May 2014, but the
City had never identified the street’s condition as dangerous.
2. Timmons’ Response to the Motion for Summary Judgment
Timmons argued in her response there were triable issues of material fact
regarding whether the condition was dangerous.
In support, Timmons’ filed a separate statement that included the following
undisputed facts: Timmons was 53 years old on the day of the incident; Timmons was
walking back to work at the time of the incident; Timmons was wearing sunglasses and
Skechers shoes; Timmons was alone; Timmons was crossing the street and was not on
her phone or reading anything; Timmons stepped into the area where the asphalt connects
with the gutter; Timmons’ left ankle twisted and she went down forward on her knees
which contacted with the curb; and a witness had noticed a dip in the asphalt.
Timmons disputed the following facts in the City’s separate statement:
Timmons did not use an available ramp (Timmons maintained it was foreseeable that
pedestrians will take a shorter path across the street); the subject condition is the height
differential between the asphalt street and the concrete gutter, which is between 1.25
inches and 1.5 inches (Timmons and a witness estimated the height differential to be
from one to two inches; and Timmons also maintained the subject condition included 30
to 50 pieces of broken asphalt at the location where she fell).
In her deposition testimony, Timmons testified on the day she fell, “I
noticed there’s cracks in the asphalt. There’s—there’s cracks in the gutter. There’s . . .
little pieces of crumbled black asphalt in that vicinity. That’s what I noticed.” Timmons
was asked, “And when you say the little crumbles, there were actually crumbles that were
broken away from the asphalt?” Timmons responded, “That’s what it looked like.”
7
Timmons estimated there were from 30 to 50 small pieces of broken asphalt.
Timmons was asked, “where were those broken pieces of asphalt in relation
to where you fell?” She responded, “Around that whole area.” When asked, “were there
any of those broken-off pieces of asphalt under where you believed your foot stepped
when you twisted your ankle?” Timmons responded, “I think there could have been. I’m
not for sure.” Timmons was asked, “Were there any of those broken pieces of asphalt in
the gutter right where your knees ended up on the curb?” She responded, “Possibly,
yeah.” When asked, “Do you remember though?” Timmons said, “Yeah, it’s - - I can
only say that I did see them. I can’t really give you really much, you know, specifics on
all of that at the time.”
Timmons included with the response the declaration of Eris J. Barillas, a
forensic analyst. In the admitted portion of Barillas’ declaration, she stated, “Industry
standards recognize the inherent unsafe nature of unlevel walking surfaces. ASTM
[(American Society for Testing and Materials)] F1637-13, a nationally recognized safety
standard for the design, construction, and maintenance of reasonably foreseeable
pedestrian walkways, states ‘Changes in levels greater than ½ in. shall be transitioned by
means of a ramp or stairway that complies with applicable building codes, regulations,
standards, or ordinances, or all of these.’”
Barillas averred, “Low lying height differentials often go unnoticed by
pedestrians and are likely to pose a significant fall hazard. The physical act of walking is
largely an automatic human process wherein it does not require conscious thinking at the
forefront of the mind to ambulate. . . . Rather, pedestrians will typically scan the ground
area in front of them as they continue to walk forward and observe the other areas of their
surrounding environment. As such, the presence of unexpected hazards, such as vertical
height differentials, single steps, depressions, holes, etc., are often unperceived , and go
unnoticed by pedestrians operating in a reasonably safe manner. . . .”
Quoting from a portion of an engineering book (also admitted into
8
evidence), Barillas stated, “‘People do not always monitor the detailed condition of the
floor or surface they are walking on. The normal line of sight is about 15° below
horizontal relative to the eyes. Most of the time people do not walk around looking down
at their feet. As a result, even small changes in surface elevation are not always seen.
People have a natural expectation when walking along typical pedestrian walkway areas,
such as sidewalks, parking lots, etc., that the walking surfaces will be ‘stable, planar,
flush, and even to the extent possible . . . .’”
The admitted engineering treatise stated, “Most everyone has caught the toe
of their shoe on a protruding or irregular surface of a floor, carpet, or sidewalk. In
tripping, the motion of the foot is interrupted during a step. If the interruption of motion
is sufficient, a fall will result.” The treatise continued: “Not all tripping incidents result
in falls, and not all falls lead to serious injury. Surrounding conditions contribute to the
severity of tripping incidents.” (Italics added.)
3. The City’s Reply to Timmons’ Response
The City argued in the reply brief that Timmons did not establish
aggravating factors in order to establish a dangerous condition of public property.
The City disputed the following facts in Timmons’ statement: Timmons
had not previously walked the route she walked (the City maintained she testified she had
walked in the area at least twice); Timmons fell because of a large dip in the asphalt (the
City maintained the photographs did not reflect a large dip); there were 30 to 50 pieces of
broken asphalt on the ground where Timmons fell (the City maintained that photographs
taken three weeks later did not reveal any debris at the location and the percipient witness
did not see any debris); Timmons estimated the dip to be two inches (the City maintained
the height differential was 1.25 to 1.5 inches); and the percipient witness estimated a two-
inch dip between the asphalt and the gutter (the City maintained the witness estimated the
height differential to be “probably about an inch or two”).
9
C. Application and Analysis
The elements to establish a dangerous condition of public property are: the
property was in a dangerous condition at the time of the injury; the dangerous condition
created a reasonably foreseeable risk of the kind of injury alleged; the dangerous
condition proximately caused the injury; and either a public employee created the
dangerous condition, or the public entity had notice of the dangerous condition for a long
enough time to have taken corrective measures. (See § 835.)
In the summary judgment motion, the City’s burden was to make a prima
facie showing that no triable issues of material fact exist, and it was “entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Reviewing the
moving papers de novo, we consider the evidence and “all inferences reasonably
deducible from the evidence.” (Code Civ. Proc., § 437c, subd. (c).)
Here, we need analyze only whether: 1) there was a dangerous condition of
public property at the time of the injury as a matter of law, and 2) whether there was
evidence the City had sufficient notice in order to take corrective measures. (See
Canales v. Wells Fargo Bank, N.A. (2018) 23 Cal.App.5th 1262, 1268 [“a summary
3
judgment motion is directed to the issues framed by the pleadings”].)
1. Dangerous Condition of Public Property
The City included photographs within the motion for summary judgment,
which were taken some time after the injury. The City contended the photographs
demonstrate a height differential of between 1.25 to 1.5 inches between the concrete
gutter and the asphalt street. The City argued this height differential constitutes a trivial
3
On appeal, the City argues: “The trial court decided this case solely on the issue of
notice, so whether the alleged condition was dangerous is moot.” (Boldfacing and
capitalization omitted.) The City is mistaken. “The trial court’s stated reasons for
granting summary judgment are not binding because we review its ruling not its
rationale.” (Canales v. Wells Fargo Bank, N.A., supra, 23 Cal.App.5th at p. 1268.)
10
(not dangerous) condition as a matter of law. (See, e.g., Nunez v. City of Redondo Beach
(2022) 81 Cal.App.5th 749, 753-754 [height differential of “just under three-quarters of
an inch” between adjoining sidewalk slabs was a trivial defect as a matter of law].)
However, whether a defect is trivial as a matter of law cannot be decided
based solely on only one factor such as the size of the defect. (See Caloroso v. Hathaway
(2004) 122 Cal.App.4th 922, 927, fn. omitted [“The decision whether the defect is
dangerous as a matter of law does not rest solely on the size of the crack in the walkway,
since a tape measure alone cannot be used to determine whether the defect was trivial”].)
Indeed, Timmons disputed that the height differential was between 1.25 and
1.5 inches at the time of the injury. In deposition testimony, Timmons and the percipient
witness both estimated the height differential to be up to two inches. In the trial court,
the City argued Timmons had not measured the area; however, in a motion for summary
judgment, we must resolve all evidentiary conflicts against the City. (See McCabe v.
American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119 [in a motion for
summary judgment, courts may not make credibility determinations or weigh the
evidence, and all evidentiary conflicts are to be resolved against the moving party].)
Additionally, based on the photographs, the asphalt street appears to be
broken and jagged around the alleged defect (the uneven area where the street meets the
concrete gutter). Timmons also testified there were from 30 to 50 pieces of broken
asphalt rubble in the area at the time of her injury. (See Huckey, supra, 37 Cal.App.5th
at p. 1105 [“The court should consider other circumstances which might have rendered
the defect a dangerous condition at the time of the accident. [¶] These other
circumstances or factors include whether there were any broken pieces or jagged edges in
the area of the defect”]; see also Cerna, supra, 161 Cal.App.4th at pp. 1347-1348 [“A
dangerous condition exists when public property ‘is physically damaged, deteriorated, or
11
4
defective in such a way as to foreseeably endanger those using the property itself’”].)
The precise size of the height differential between the asphalt street and the
concrete gutter, and the purported presence of pieces of broken asphalt in the area at the
time of the accident are disputed material facts. Moreover, we find reasonable jurors
might disagree as to whether the City’s street posed a substantial risk of an injury to a
person exercising due care. (See Cerna, supra, 161 Cal.App.4th at p. 1347 [“The
existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a
matter of law if reasonable minds can come to only one conclusion’”].)
In the trial court, relying primarily on case law regarding uneven concrete
sidewalk slabs, the City argued the alleged dangerous condition in this case was trivial as
a matter of law. We find these published opinions to be distinguishable.
For instance, in Huckey, plaintiff alleged he tripped and fell because “[a]
concrete panel was ‘lifted’ in the sidewalk.” (Huckey, supra, 37 Cal.App.5th at p. 1196.)
The plaintiff sued defendant city alleging a dangerous condition of public property and
negligence. (Id. at p. 1098.) The Court of Appeal affirmed the granting of a summary
judgment motion. (Id. at p. 1101.) The court held a three quarters of an inch height
differential between two sidewalk slabs was not a tripping hazard where there was no
evidence of any broken pieces or jagged edges in the area where the plaintiff had fallen.
(Id. at p. 1108.) Further, “the height differential would have been in plain sight.” (Id. at
pp. 1109-1110.) The court reasoned: “To be sure, the height differential posed some risk
4
In the trial court, the City argued Timmons “specifically testified that the asphalt pieces
did not cause her to fall.” This is a mischaracterization of her testimony. When asked,
“were there any of those broken-off pieces of asphalt under where you believed your foot
stepped when you twisted your ankle?” Timmons responded, “I think there could have
been. I’m not for sure.” In any event, this argument was irrelevant as it goes the separate
element of causation. (See Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768
[“The status of a condition as ‘dangerous’ for purposes of the statutory definition does
not depend on whether the plaintiff or other persons were actually exercising due care but
on whether the condition of the property posed a substantial risk of injury to persons who
were exercising due care”].)
12
of injury. Construed in the light most favorable to plaintiff, the record supports a
reasonable inference that height differentials higher than one-half inch pose a trip
hazard to pedestrians. But to constitute a dangerous condition, the height differential,
and the area surrounding it, must have posed ‘a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury’ when “used with due care in a manner in
which it is reasonably foreseeable that it will be used.’” (Id. at pp. 1110-1111, second
italics added, fn. omitted.)
The height differential in Huckey was less than one inch; in this case, the
height differential was between one and two inches. The height differential in Huckey
involved the difference in height between two adjoining concrete sidewalk slabs; in this
case, the height differential involved the difference in height between an asphalt street
and an adjoining concrete gutter. The surrounding area in Huckey had no jagged edges or
broken pieces; in this case, the surrounding area had jagged edges and broken pieces. In
Huckey, the height differential was found to be in plain sight; in this this case, the height
differential was also arguably in plain sight. But unlike Huckey, there were other
circumstances present (the jagged and broken asphalt). Further, unlike Huckey, the
evidence in this case included expert testimony that: “Low lying height differentials
often go unnoticed by pedestrians and are likely to pose a significant fall hazard.” Also
in this case, Timmons apparently tripped and fell as she walked from a higher level street
to a lower level gutter, rather than the situation in Huckey where the plaintiff apparently
tripped and fell while walking from a lower level concrete slab to a higher level concrete
slab, with no other unusual circumstances present.
Given the expert evidence about a pedestrian’s ordinary line of sight, and
the aggravating factors of the broken asphalt and jagged edges, we find reasonable minds
may disagree as to whether a misalignment of one to two inches between a concrete
gutter and an asphalt street is reasonably within the “plain sight” of a pedestrian who
encounters the lower level concrete gutter while walking from a higher level asphalt
13
street in order to reach a sidewalk. (See Wills v. J.J. Newberry Co. (1941) 43 Cal.App.2d
595, 601-602 [whether a “dangerous condition was in plain sight” sufficient for a plaintiff
to have seen it and avoided it is a question “of fact for the jury”].)
Based on all of the evidence, the surrounding circumstances, and the
differences between this case and Huckey (and other similar cases involving uneven
sidewalk slabs), we cannot say that the City established a trivial or nondangerous
condition as a matter of law. (Compare Rodriguez v. City of Los Angeles (1963) 215
Cal.App.2d 463, 468 [where one sidewalk slab was approximately one inch higher than
another, the appellate court held “the defect was not a minor defect as a matter of law
and, therefore, the question as to whether it was a dangerous or defective condition . . .
was properly submitted to the jury for determination”].)
In short, we find a triable issue of material fact as to whether the condition
of the City’s street was dangerous.
2. Actual or Constructive Notice
We now turn to the second element at issue in this case: whether there was
evidence in the record that the City had actual or constructive notice sufficient to “protect
against the dangerous condition.” (§ 835, subd. (b).) “‘Protect against’ includes
repairing, remedying or correcting a dangerous condition, providing safeguards against a
dangerous condition, or warning of a dangerous condition.” (§ 830, subd. (b).)
“The law is settled that a municipality in the absence of actual knowledge
or actual notice of a dangerous condition existing in its street, is presumed to have
constructive notice thereof where such condition has existed for an unreasonable length
of time, and that it is a question of fact . . . to determine whether the dangerous condition
in the public street has existed for a sufficient length of time to constitute constructive
notice, and also whether a reasonable time to remedy the condition has existed.”
(Rowland v. City of Pomona (1947) 82 Cal.App.2d 622, 625-626, italics added.)
14
In a trial regarding an alleged dangerous condition of public property, the
jury is instructed as to the element of notice: “[Name of plaintiff] must prove that [name
of defendant] had notice of the dangerous condition before the incident occurred. To
prove that there was notice, [name of plaintiff] must prove: [¶] [That [name of
defendant] knew of the condition and knew or should have known that it was dangerous.
A public entity knows of a dangerous condition if an employee knows of the condition
and reasonably should have informed the entity about it.] [¶] [or] [¶] [That the
condition had existed for enough time before the incident and was so obvious that the
[name of defendant] reasonably should have discovered the condition and known that it
was dangerous.]” (CACI No. 1103, italics added.)
Here, the evidence reasonably shows the City knew about the condition of
its street (it had routinely inspected the area for at least four years prior to the accident),
but the City did not regard the condition to be dangerous. Indeed, the City stated the
“height differential was never identified as a potential trip hazard or flagged for repair.”
Although there were no prior injuries reported to the City, based on all the admitted
evidence (the photographs, the City’s employees’ declarations, and the expert opinion),
we believe reasonable jurors could find the City had actual notice of the dangerous
condition. That is, a jury could find that the City “knew of the condition” of its street,
and further that the City “knew or should have known that it was dangerous.” (See CACI
No. 1103; see also 19 McQuillin, Municipal Corporations (3d ed.1999 rev.) § 54:176, p.
336 [“The effect of actual knowledge of an unlawful obstruction in a street, which might
occasion injury to persons lawfully in the street, is not lessened because the municipality
may not have known that the obstruction was in fact dangerous”].)
Because the statutory element of notice is written in the disjunctive (actual
or constructive notice), and we have determined that a jury could find the City had actual
notice of the condition of its street, it is not necessary for us to consider the issue of
constructive notice. (§ 835.2, subds. (a) & (b).) But in any event, the photographs appear
15
to show the height differential and the surrounding conditions did not recently or
suddenly appear; rather, the arguably dangerous condition appears to have been present
over some substantial period of time. Consequently, we think jurors could also
reasonable deduce “the condition had existed for such a period of time and was of such
an obvious nature that the public entity [the City], in the exercise of due care, should have
discovered the condition and its dangerous character.” (See § 835.2, subd. (b).)
Relying on Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508
(Martinez), the City argues notice of a dangerous condition can be adjudicated by a court
as a matter of law. While that legal proposition may be true under some circumstances,
the circumstances in Martinez are not applicable here.
In Martinez, plaintiff was walking in an alley and tripped and fell because
of a “divot” that was about 1.75 inches deep and had been there for about two years.
(Martinez, supra, 71 Cal.App.5th at p. 515.) The defendant city “had not inspected the
alley behind this block” for at least seven years. (Id. at p. 515.) The trial court granted
the city’s motion for summary judgment, in part, because the city argued it had no notice.
(Id. at pp. 516-517.) At issue on appeal was whether defendant should have been on
notice: “Such an imperfection may likely have created a triable issue of fact as to
whether it was obvious enough to be discovered had it been located on a sidewalk. But
does the same analysis apply to an alley? We conclude that the answer is ‘no.’”
(Id. at pp. 513-514.) The Court of Appeal held: “Because alleys, unlike sidewalks, are
designed and primarily used for purposes other than walking, and because the cost to
municipalities of inspecting alleys with the same vigilance as inspecting sidewalks would
be astronomical . . . , we hold that what is an obvious defect in the condition of an alley is
not the same as for a sidewalk. Because reasonable minds can reach only one
conclusion—namely, that the less-than-two-inch deep divot in the asphalt abutting a
drainage vein in the alley is not an obvious defect—we affirm the trial court’s grant of
summary judgment in this case.” (Id. at pp. 513-514, second italics added.)
16
Here, the facts are readily distinguishable. The alleged defect is located
where a street meets a gutter, rather in an alley (or on a sidewalk). Further, we have
concluded there was evidence the City had actual notice, and reasonable minds may
differ as to whether the defect was dangerous. Thus, Martinez does not alter our analysis.
In sum, we hold that whether there was a dangerous condition cannot be
determined as a matter of law, and whether the City had sufficient notice of the
dangerous condition is a disputed issue of material fact. Therefore, we reverse the ruling
5
of the trial court, which granted the City’s motion for summary judgment.
III
DISPOSITION
The trial court’s order granting the City’s summary judgment motion is
reversed in its entirety. The City is ordered to pay Timmons’ costs on appeal.
MOORE, ACTING P. J.
I CONCUR:
SANCHEZ, J.
5
The parties appear to agree that a reversal as to the first cause of action (a dangerous
condition of public property) also necessitates a reversal as to the second cause of action
(vicarious liability for public entity employees), because both causes of action are based
on the same incident and therefore involve the same underlying factual issues.
17
GOETHALS, J., dissenting:
6
I dissent. Government Code section 835 provides that “Except as provided
by statute, a public entity is liable for injury caused by a dangerous condition of its
property if the plaintiff establishes that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the dangerous condition,
that the dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an
employee of the public entity within the scope of his employment created the dangerous
condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous
condition . . . a sufficient time prior to the injury to have taken measures to protest against
the dangerous condition.” (§ 835, subd. (a) & (b).)
In reversing the trial court’s grant of the City of Aliso Viejo’s (the City)
motion for summary judgment, my colleagues conclude “reasonable jurors could find the
City had actual notice of the dangerous condition” at the accident scene before plaintiff
Amanda Timmons fell. I respectfully disagree.
It appears the following facts are uncontested: (1) Timmons had walked in
the area where she fell on prior occasions; (2) the weather on the day of the accident was
sunny and dry; (3) the City had received no reports of anyone falling at that location
before the date of Timmons’s accident; (4) there had been no prior claims made or
lawsuits filed related to any prior accident at that location; and (5) there had been no prior
reports regarding the existence of any sort of dangerous condition of public property at
that location. Moreover, the City offered evidence that, through a private contractor, it
had performed regular inspections of its streets and sidewalks for some years prior to the
accident. Although the record regarding the nature and extent of those inspections could
6
All statutory references are to this code.
1
have been more robust, it seems they generated no reports of any dangerous condition at
the accident scene.
Based on this record, the trial court granted the City’s motion for summary
judgment after it determined Timmons had failed to satisfy the Government Code’s
notice requirement. After analyzing the issue de novo, as we must, I reach the same
conclusion.
“A public entity had actual notice of a dangerous condition . . . if it had
actual knowledge of the existence of the condition and knew or should have known of its
dangerous character.” (§ 835.2, subd. (a).) Even if Timmons raised a triable issue of
material fact as to the presence of a dangerous condition at the scene of her accident, I
believe she failed as a matter of law to raise such an issue with respect to notice. I would
therefore affirm the trial court’s ruling.
GOETHALS, J.
2 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482402/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Case No. 1:19-cr-00219 (TNM)
DELONTE TAYLOR,
Defendant.
MEMORANDUM ORDER
Delonte Taylor is serving a 63-month sentence for unlawful possession of a firearm and
ammunition by a person convicted of a crime punishable by more than a year of imprisonment.
He resides at USP Canaan in Waymart, Pennsylvania. Taylor, proceeding pro se, seeks
compassionate release. He claims that his health conditions put him at a greater risk of serious
illness if he contracts COVID-19. The Government opposes Taylor’s release. Upon
consideration of the parties’ briefs, the relevant law, and the entire record of this case, the Court
denies Taylor’s motion for the reasons below.
I.
Police found Taylor with a loaded 9-millimeter semiautomatic handgun and
corresponding ammunition after he had been previously convicted of a felony. See Presentence
Investigation Report (“PSR”) at 3, ECF No. 19. And the police found Taylor with this loaded
weapon a mere six months after he had been released from prison for assault with a dangerous
weapon. See Gov’t Mem. in Aid of Sentencing at 6–7, ECF No. 21. Taylor pled guilty to one
count of Unlawful Possession of a Firearm and Ammunition by a Person Convicted of a Crime
Punishable by Imprisonment for a Term Exceeding One Year, in violation of 18 USC
§ 922(g)(1). See Plea Agreement at 1, ECF No. 15.
1
The Court sentenced Taylor to 63 months incarceration and three years of supervised
release. See J. in a Criminal Case at 2, ECF No. 25. He is incarcerated at USP Caanan and has
served a little over three years of his sentence, about 60% of his full term. See Gov’t Opp’n to
Def.’s Mot. for Compassionate Release (Gov’t Opp’n) at 3–4, ECF No. 29.
Taylor filed a pro se motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i). See Def.’s Mot. for Compassionate Release (Def.’s Mot.), ECF 28. Taylor
argues that his hypertension, Post-traumatic Stress Disorder (PTSD), and other mental health
conditions justify early release. Id. at 2. He argues that these health conditions pose
“extraordinary” and “compelling” reasons for compassionate release because they make him
more susceptible to COVID-19. See id. at 4–6. Taylor asks this Court to reduce his sentence to
time served and represents that he can live with his sister in Maryland and work for his in-laws if
released. Id. at 6.
Taylor submitted two administrative requests for compassionate release to his Warden.
See Gov’t Opp’n, Exs. D & F, ECF No. 29. The Warden denied these requests. See id., Exs. E
& G. Though Taylor listed his hypertension in his requests for release, he did not mention his
PTSD or other mental health challenges. See id., Exs. D & F.
II.
A defendant seeking compassionate release “has the burden of establishing that he is
eligible for a sentence reduction under § 3582(c)(1)(A)(i).” United States v. Holroyd, 464 F.
Supp. 3d 14, 17 (D.D.C. 2020). Sentence reduction is appropriate only if the defendant has first
exhausted available administrative remedies. 18 U.S.C. § 3582(c)(1)(A). If he has exhausted all
administrative remedies, a court may reduce a term of imprisonment if it finds that extraordinary
2
and compelling circumstances are present. See United States v. Dempsey, 567 F. Supp. 3d 284,
287 (D.D.C. 2021).
Historically, courts could grant a compassionate release motion only if they found that
“extraordinary and compelling reasons warrant the reduction” and that “the defendant is not a
danger to the safety of any other persons of the community.” Id. at 287 (quoting U.S.S.G.
§ 1B1.13(1)(A), (2)). The D.C. Circuit modified the standard that applied to defendant-filed
compassionate release motions in United States v. Long, 997 F.3d 342 (D.C. Cir. 2021). It
agreed with a majority of other circuits that “U.S.S.G. § 1B1.13 is not ‘applicable’ to defendant-
filed motions for compassionate release under the First Step Act.” Id. at 355 (collecting cases);
see also id. (“In short, if a compassionate release motion is not brought by the Director of the
Bureau of Prisons, U.S.S.G. § 1B1.13, by its own terms, is not applicable.”). In other words, no
longer is the “dangerousness factor a rigid precondition to release.” Id. at 357.
But “courts still must consider and weigh the factors laid out in Section 3553(a), which
include the need ‘to protect the public from further crimes of the defendant’ and to ensure
‘adequate deterrence to criminal conduct.’” Id. at 356 (quoting 18 U.S.C. § 3553(a)(2)(B) &
(C)). “So even without the policy statement, courts will still consider the anticipated effect of
compassionate release on crime and public safety for defendant-filed motions as part of their
weighing of relevant considerations.” Id. at 356–57.
The D.C. Circuit recently supplemented this reasoning in United States v. Jenkins, 50
F.4th 1185 (D.C. Cir. 2022). The Circuit held that district courts, in considering motions for
compassionate release, “may nonetheless rely on section 1B1.13 and its commentary as
persuasive authority” even though “section 1B1.13 does not govern motions for compassionate
release filed by the inmate himself.” Id. at 1192.
3
After Long, the Court considers the 18 U.S.C. § 3553(a) factors to determine whether
“extraordinary and compelling reasons warrant” a reduction of Taylor’s sentence. 18 U.S.C. §
3582(c)(1)(A)(i). And after Jenkins, it may also consider section 1B1.13 and its commentary as
“persuasive authority,” but it need not do so. See Jenkins, 50 F.4th at 1195–96.
The Court is also mindful of Taylor’s pro se status in its review of his pleadings. Cf.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). But Taylor must still show that “extraordinary and
compelling reasons” warrant a sentence reduction. 18 U.S.C. § 3582(c)(1)(A)(i).
III.
Taylor argues that the COVID-19 pandemic presents an extraordinary and compelling
reason for release given his medical conditions, and that he would not be a danger to the
community upon release.
A.
The Government raises a threshold challenge to Taylor’s motion: he failed to fully
exhaust his administrative remedies. See Gov’t Opp’n at 15. The Government argues that
Taylor alleged different factual bases in his requests for compassionate release to the Warden
and his motion for compassionate release before the Court. See id. at 15–16.
Recall that Taylor submitted two administrative requests for compassionate release to the
Warden, pointing to hypertension as the primary reason for release in both. See id., Exs. D & F.
In his first request, Taylor stated: “This request is based on my medical condition and ailments
related to COVID-19 which I believe warrant a compassionate release. I am suffering from high
blood pressure/severe hypertension.” See id., Ex. D. In his second request, Taylor wrote: “My
medical condition is the extraordinary and compelling reason for my sentence reduction . . . I
have a good institutional record, good programming, I have a home plan, employment, and am
4
not a threat to the community.” See id., Ex. F. In his motion for compassionate release,
however, Taylor points to (1) hypertension, (2) PTSD, and (3) other mental illness as his
“extraordinary and compelling” reasons for release. Id. at 5–6.
Taylor cannot seek compassionate release in this Court for his PTSD and mental health
challenges without first raising those issues with his Warden. See 18 U.S.C. § 3582(c); see also
United States v. Douglas, No. 10-cr-171-4, 2020 WL 5816244, at *2 (D.D.C. Sept. 30, 2020)
(cleaned up) (explaining that an inmate must “present the same factual basis for the
compassionate-release request to the warden” as in his motion). Taylor discusses his PTSD and
mental health conditions for the first time in his motion for compassionate release. Thus, while
he has exhausted the administrative remedies available for his hypertension claim, see Gov’t
Opp’n at 17 (conceding this point), he fails to meet his burden under 18 U.S.C. § 3582(c)(1)(A)
as to his PTSD and mental health claims. Taylor has impermissibly set forth “one reason to BOP
and another to the Court.” United States v. Morales, No. 06-cr-248-4, 2021 WL 4622461, at *2
(D.D.C. Oct. 7, 2021). So this Court could deny his motion at least in part for failure to exhaust
alone.
B.
Nonetheless, the Court considers the merits of Taylor’s claim. Taylor asserts that he is
more susceptible to COVID-19 because he has hypertension and alleges that he suffers from
PTSD and other mental health challenges.
The Government does not dispute that Taylor suffers from hypertension, see Gov’t Opp’n
at 19–20, and his BOP records confirm it, see id., Ex. A (Sealed), ECF No. 31. But the
Government argues that because the “BOP has made extensive changes to its operations” in
response to COVID-19, Taylor’s condition does not rise to the level of extraordinary and
5
compelling circumstances warranting early release. See Gov’t Opp’n at 11, 20. More, Taylor is
fully vaccinated after receiving two doses of the Pfizer-BioNTech vaccine in early 2021 and a
booster dose about a year later. See id., Ex. A (Sealed).
As the D.C. Circuit recently explained, “a pandemic affecting not only the entire prison
population, but the entire world, does not constitute an extraordinary and compelling reason”
sufficient to grant compassionate release. United States v. Jackson, 26 F.4th 994, 1002 (D.C.
Cir. 2022). The Court finds that neither the coronavirus itself nor Taylor’s health conditions
warrant a sentence reduction for two reasons.
First, hypertension is a common ailment and Taylor takes medication to manage it.
While the Centers for Disease Control and Prevention (CDC) recognizes that individuals with
hypertension might get severely ill from COVID-19, hypertension is extremely common. 1
About half of the nation’s adult population suffers from it. 2 Taylor is thus one among many who
may be more susceptible to COVID-19. And Taylor receives prescription treatment for
hypertension. See Gov’t Opp’n at 20 (citing Exs. A & B (Sealed)). This treatment has managed
his condition—Taylor’s recent blood pressure readings are close to the normal range. See Gov’t
Opp’n at 20 (citing Ex. B (Sealed)).
To be sure, some courts have granted compassionate release based on a defendant’s
hypertension. But in these cases, defendants suffered from more extreme symptoms than Taylor
and prison officials were not managing their conditions. For example, in United States v.
1
See People with Certain Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Nov. 7, 2022);
Facts about Hypertension, CDC, https://www.cdc.gov/bloodpressure/facts.htm (last visited Nov.
7, 2022).
2
See id.
6
Douglas, the defendant “regularly registered blood pressure levels well in excess of the threshold
for Stage 2 hypertension,” reported symptoms such as “headaches, dizziness, and tightness in his
chest,” and had multiple blood pressure readings that qualified as “hypertensive crisis.” No. 10-
cr-171-4, 2021 WL 214563, at *5 (D.D.C. Jan. 21, 2021). Taylor does not show any similarly
extreme symptoms, nor do his blood pressure readings reach the level of the defendant’s in
Douglas. See also id. at *6 (collecting cases denying relief to “individuals with controlled or
benign hypertension”). Taylor’s hypertension alone is not enough to grant release, particularly
when prescribed medication has returned his blood pressure to normal levels. See Gov’t Opp’n,
Ex. B (Sealed).
Second, Taylor is fully vaccinated, which decreases his vulnerability to a severe reaction
to COVID-19. See id., Ex. A (Sealed). As the Government explains, the COVID-19 vaccine is
effective in preventing serious illness, even given virus variants. See id. at 4–10. 3 Taylor’s
vaccination status lessens his risk of serious illness from COVID-19. It therefore cuts against his
argument that his hypertension is an extraordinary and compelling circumstances meriting early
release.
Taylor also argues that prison officials are not adequately treating his PTSD and other,
unnamed, mental health conditions. See Def.’s Mot. at 5–6. More, he claims that the prison is
not providing the “help and treatment he is entitled” in terms of “educational skills.” Id. As the
Government notes, the proper way for Taylor to raise such claims is in a civil suit over the
conditions of his confinement, not in his criminal case. See, e.g., Chandler v. BOP, 229 F. Supp.
3
See also Benefits of Getting A COVID-19 Vaccine, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits.html (last visited Nov. 7,
2022) (“COVID-19 vaccines available in the United States are safe and are effective at
protecting people from getting seriously ill, being hospitalized, and even dying.”).
7
3d 40, 43 (D.D.C. 2017) (civil suit brought by prisoner for failure to provide mental health
treatment). The First Step Act did not alter that normal recourse.
Even if Taylor seeks to argue that his PTSD and unnamed other mental health conditions
make him more susceptible to COVID-19 and support early release, that argument fails too.
True, the CDC has explained that mental health conditions “can make you more likely to get
very sick from COVID-19,” including “mood disorders, . . . depression, and schizophrenia
spectrum disorders.” 4 But Taylor’s medical records reveal that he does not have any diagnosed
medical conditions. See Gov’t Mem. at 20 (citing Ex. B (Sealed)). Taylor therefore fails to
show a qualifying medical risk factor that would support heightened susceptibility to COVID-19.
C.
“Even if [Taylor] had presented ‘extraordinary and compelling reasons’ for release, the
Court may reduce his term of imprisonment only if the balance of the § 3553(a) factors favor his
release.” Dempsey, 567 F. Supp. 3d at 290; see also 18 U.S.C. § 3582(c)(1)(A) (“[T]he court . . .
may reduce the term of imprisonment . . . after considering the factors set forth in section
3553(a) to the extent that they are applicable[.]”). The balance of the factors does not favor
Taylor’s release.
Taylor argues that the § 3553(a) factors weigh in his favor. Among those factors are “the
nature and circumstances of the offense and the history and characteristics of the defendant,” as
well as the need for the sentence to “reflect the seriousness of the offense” and “to protect the
public from further crimes.” 18 U.S.C. § 3553(a)(1)–(2).
4
See People with Certain Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Nov. 7, 2022).
8
The nature and circumstances of the offense are such that Taylor should not be granted
release because his offense involved a dangerous firearm. Firearms offenses are serious crimes.
Taylor possessed a loaded 9-millimeter semiautomatic pistol and an extended magazine around
other people—including children. See PSR at 4; see also Gov’t Opp’n at 24. More, Taylor was
potentially under the influence of alcohol while possessing this firearm. PSR at 4. And Taylor
possessed this firearm after pleading guilty to a violent felony conviction. Id. at 11–12. Because
Taylor’s actions were inherently dangerous, the nature and circumstances of his offense weigh
against release.
Taylor’s history and characteristics do not help him either. The Court must view his
motion against the backdrop of his criminal history. Taylor had eight adult convictions when he
committed the offense for which he is incarcerated. See Gov’t Mem at 4–6; Gov’t Opp’n at 24.
Of these convictions, Taylor’s conviction for assault with a dangerous weapon is most
concerning. See Gov’t Mem. at 6. In that case, Taylor struck the victim in the face and head
with a gun several times. See PSR at 11–12. Taylor’s prior convictions reinforce the Court’s
concern about his dangerousness. Cf. Holroyd, 464 F. Supp. 3d at 19 (“If a defendant still poses
a danger to the community or if the balance of factors under § 3553(a) favor continued
imprisonment, these are independent reasons to deny a motion for compassionate release.”).
Furthermore, those engaged in firearm-related crimes are historically inclined to
recidivate. See also U.S. Sent’g Comm’n, Recidivism Among Federal Firearms Offenders at 4
(June 2019) (“Firearms offenders generally recidivated at a higher rate, recidivated more quickly
following release into the community, and continued to recidivate later in life than non-firearms
offenders.”). Taylor’s history and characteristics thus weigh against release given his extensive
background of criminal convictions and high probability of recidivism.
9
Though Taylor argues that his “disciplinary record [in jail] is minimal” and that he “has
only obtained one disciplinary incident,” Def.’s Mot. at 6, the Court is unconvinced. 5 Records
reveal that the jail disciplined Taylor for possessing a hazardous tool—a 4.5-inch metal shank.
See Gov’t Opp’n at 25 (citing Ex. I (Sealed)). The disciplinary record explains that there are “no
known legitimate purposes for inmates to possess items of this nature” and that “similar pieces of
metal [have] been used to manufacture weapons or other instruments of bodily harm.” Id. The
Court believes that Taylor has downplayed the seriousness of this incident and finds that it cuts
against his argument for early release.
To be sure, Taylor asserts that he anticipates having a place to live and employment upon
release. See Def.’s Mot. at 6. The Government argues that despite this information, Taylor has
failed to include a concrete and detailed release plan. See Gov’t Opp’n at 27. While the Court
commends Taylor for noting that he has potential residence and employment with family, the
Court does not find that this information tips the balance of the § 3553 (a) factors in his favor.
In short, the Court agrees with the Government that “reducing defendant’s already lenient
sentence to time-served would not reflect the seriousness of his offense or deter him from
engaging in further criminal conduct.” Gov’t Opp’n at 26–27. Even if he had presented
extraordinary and compelling reasons for release—which he has not—the § 3553(a) factors
would require denial of Taylor’s release request.
5
Taylor asserts this argument as an “extraordinary and compelling reason” for release rather
than a consideration under the § 3553(a) factors. See Def.’s Mot. at 6. But the Court thinks it is
most properly analyzed under the § 3553(a) factors.
10
IV.
For these reasons, it is hereby
ORDERED that Defendant’s Motion for Compassionate Release is DENIED.
2022.11.08
17:11:21 -05'00'
Dated: November 8, 2022 _____________________________
TREVOR N. McFADDEN, U.S.D.J.
11 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482407/ | Filed 11/8/22 P. v. Nevarez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B318952
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA041127)
v.
DAVID DANIEL NEVAREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Juan Carlos Dominguez, Judge. Dismissed.
Richard B. Lennon, 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, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
BACKGROUND
In 1999, defendant and appellant David Daniel Nevarez
was convicted by a jury of two counts of robbery (Pen. Code,
§ 211)1 and petty theft with a prior theft conviction (§ 666), and
one count of burglary (§ 459). The trial court found that
defendant had previously suffered two prior “strike” convictions
and one prior prison term. (§§ 667, 667.5, subd. (b), & 1170.12.)
Defendant appealed, and we affirmed the convictions but
remanded the matter for resentencing. (People v. Nevarez
(Oct. 24, 2000, B132831) [nonpub. opn.], at pp. 2, 13.)
On remand, the trial court reimposed the two 25 years to
life sentences running consecutively and imposed two years as
enhancements for the prior prison term. Defendant again
appealed, and we modified the judgment by striking an
unauthorized term of defendant’s punishment. (People v. Nevarez
(May 13, 2003, B155431) [nonpub. opn.], at p 3.)
In 2021, the Legislature passed, and the Governor signed,
Senate Bill No. 483 (2021-2022 Reg. Sess.) (Sen. Bill 483).
Sen. Bill 483 added section 1171.1, which renders “legally
invalid” “[a]ny sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of Section 667.5,
except for any enhancement imposed for a prior conviction for a
sexually violent offense[.]” (§ 1171.1, subd. (a).) Pursuant to
section 1171.1, defendant filed a motion to strike the one-year
enhancement attributable to his prior prison term. The trial
court denied his motion, and defendant appeals.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
DISCUSSION
I. We lack jurisdiction to correct the unauthorized sentence
In accordance with our recent decision in People v. King
(2022) 77 Cal.App.5th 629 (King), we dismiss defendant’s appeal
for lack of jurisdiction.
In King, the defendant “was charged with multiple sex
offenses, all committed against a single victim on one day in
1985.” (King, supra, 77 Cal.App.5th at p. 633.) In 1986, he was
convicted and sentenced to a determinate term of 105 years in
state prison. (Ibid.) In 2021, he filed a motion to vacate an
unauthorized sentence. (Ibid.) We held that although defendant
“correctly contend[ed] that the sentence . . . was unauthorized,
. . . the trial court had no jurisdiction to entertain [his] motion to
vacate his sentence, and therefore this court [had] no appellate
jurisdiction to entertain the appeal.” (Ibid.)
In so ruling, we noted “[t]he general rule . . . that ‘once a
judgment is rendered and execution of the sentence has begun,
the trial court does not have jurisdiction to vacate or modify the
sentence.’ [Citations.] And, ‘[i]f the trial court does not have
jurisdiction to rule on a motion to vacate or modify a sentence, an
order denying such a motion is nonappealable, and any appeal
from such an order must be dismissed.’ [Citations.]” (King,
supra, 77 Cal.App.5th at p. 634.)
Here, because defendant began serving his modified
sentence in 2003, the trial court did not have jurisdiction to rule
on defendant’s motion; even though defendant’s sentence is no
longer authorized, neither do we.
II. We decline to treat this appeal as a petition for habeas corpus
In King, we noted that “a trial court may of course rule on a
defendant’s challenge to an unlawful sentence in a properly filed
3
petition for a writ of habeas corpus.” (King, supra, 77
Cal.App.5th at p. 637.) Applying this principle, defendant asks
that we treat his appeal as such a petition. We decline to do so as
defendant has an adequate remedy at law.2 (In re Cook (2019) 7
Cal.5th 439, 452 [because the defendant had “a plain, speedy, and
adequate remedy at law,” “resort[ing] to habeas corpus [was]
unnecessary”]; Michelle K. v. Superior Court (2013) 221
Cal.App.4th 409, 433 [“habeas corpus is appropriate only when
there are no other available and adequate remedies; it may not be
used to avoid otherwise available and adequate remedies”].)
Section 1171.1, subdivision (b), provides, in relevant part:
“The Secretary of the Department of Corrections and
Rehabilitation and the county correctional administrator of each
county shall identify those persons in their custody currently
serving a term for a judgment that includes an enhancement
described in subdivision (a) and shall provide the name of each
person, along with the person’s date of birth and the relevant
case number or docket number, to the sentencing court that
imposed the enhancement.” (§ 1171.1, subd. (b).) Subdivision (c)
continues: “Upon receiving the information described in
subdivision (b), the court shall review the judgment and verify
that the current judgment includes a sentencing enhancement
described in subdivision (a). If the court determines that the
current judgment includes an enhancement described in
subdivision (a), the court shall recall the sentence and resentence
the defendant.” (§ 1171.1, subd. (c).) As is relevant here,
subdivision (c)(2) mandates that the trial court review and
2 We reach this decision regardless of whether the procedure
set forth in section 1171.1 is exclusive.
4
resentence defendant by December 31, 2023. (§ 1171.1, subd.
(c)(2).)
Under the express terms of the statute, defendant will be
resentenced by December 31, 2023, well before he begins to serve
any time on account of the now invalid enhancement.3 It follows
that we need not treat his appeal as a petition for habeas corpus.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
3 Thus, there is no harm in defendant either waiting for the
California Department of Corrections and Rehabilitation to act as
anticipated by section 1171.1 or filing a new petition for habeas
corpus.
5 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482400/ | Filed 11/8/22 P. v. Peters CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079686
Plaintiff and Respondent,
v. (Super. Ct. No. SCD187000)
THERON LEE PETERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Reversed and remanded with directions.
Lizabeth Weis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, A. Natasha Cortina and Alan L.
Amann, Deputy Attorneys General, for Plaintiff and Respondent.
After pleading guilty in 2007 to two counts of first degree murder as
well as other crimes and being sentenced to two consecutive life terms for the
murders, Theron Lee Peters in 2019 petitioned for resentencing under then
Penal Code1 section 1170.95 (now section 1172.62) based on changes made to
the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.). The
trial court summarily denied the petition, finding Peters’s admissions in his
plea agreement showed he was a major participant who had acted with
reckless indifference to human life in committing the murders.
While Peters’s appeal was pending, the California Supreme Court
decided People v. Strong (2022) 13 Cal.5th 698 (Strong) and the parties
submitted supplemental briefing. Based on Strong, the People now concede
the court’s order should be reversed and the matter remanded for further
proceedings consistent with that case. As we explain, we agree with the
People’s concession, reverse the order and remand with directions set forth
below.
BACKGROUND
In 2007, Peters pleaded guilty to two counts of first degree murder and
other crimes.3 In connection with the murder counts, he admitted special
1 Undesignated statutory references are to the Penal Code.
2 While this appeal was pending, the Legislature amended and
renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) We
refer to section 1172.6 in this opinion, even though 1170.95 was the operative
designation at the time of the underlying proceedings.
3 In addition to the two first degree murder counts (§ 187, subd. (a);
counts 2 and 4), Peters pleaded guilty to two counts of robbery (§ 211; counts
11 and 12); two counts of attempted robbery (§§ 211, 664; counts 5 and 7);
conspiracy to take a vehicle by force (§ 182, subd. (a)(1); count 1); conspiracy
to rob a liquor store (§ 182, subd. (a)(1); count 3); attempted carjacking
(§§ 215, subd. (a), 664; count 6); kidnapping during a carjacking (§ 209.5,
subd. (a); count 8); kidnapping for robbery (§ 209, subd. (b)(1); count 9); and
carjacking (§ 215, subd. (a); count 10).
2
circumstance allegations that the murders had been committed in the
perpetration of the underlying felonies of robbery or attempted robbery
(§ 190.2, subd. (a)(17)). Peters admitted as to all counts that he was
vicariously liable for another principal’s use of a firearm within the meaning
of section 12022, subdivision (a)(1). Peters’s plea contains detailed factual
bases for all counts. As to the count 2 murder, Peters admitted that he and
Tecumseh Colbert agreed to rob Robert McCamey, and “[d]uring the
commission of the robbery of McCamey, Peters was a major participant and
acted with reckless indifference to human life when he participated in the
crime, and who aided and abetted Colbert. Colbert killed . . . McCamey by
shooting him with a handgun . . . .” (Some capitalization and bold omitted.)
As to the count 4 murder, Peters admitted that “[d]uring the commission of
the attempted robbery of [store clerk, Richard] Hammes, [he] was a major
participant and acted with reckless indifference to human life when he
participated in the crime, and who aided and abetted Colbert. Colbert killed
. . . Hammes by shooting him with a handgun . . . .”
The court sentenced Peters to two consecutive life-without-parole terms
on the murder counts, a consecutive term of life with the possibility of parole
on the count 8 kidnapping, and seven years on the enhancements.
After Peters’s guilty plea, the California Supreme Court decided People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), in which the court set out guidance on factors that must be
considered by a jury in felony-murder special circumstance sentencing
enhancements. Banks substantially clarified the law as to whether a
defendant was a major participant in the underlying felony. (Strong, supra,
13 Cal.5th at p. 721; see Banks, at pp. 797-804.) Thereafter, in Clark, the
court substantially clarified the relevant considerations for determining
3
whether a defendant acted with reckless indifference to human life. (Strong,
supra, 13 Cal.5th at p. 721; see Clark, at pp. 611-623.)
DISCUSSION
Senate Bill No. 1437, effective January 1, 2019, “amend[ed] 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); see also
Strong, supra, 13 Cal.5th at pp. 707-708.)4
Senate Bill No. 1437 also created a procedural mechanism in section
1172.6 for those convicted under the former law to petition the trial court for
retroactive relief under the amended law. (§ 1172.6, subd. (a); Strong, supra,
13 Cal.5th at p. 708.) “[T]he 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
4 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 life, as
described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
4
murder or attempted murder because of changes to . . . [s]ection 188 or 189
made effective January 1, 2019 . . . .” (Ibid., 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.” (Ibid.)
In People v. Lewis (2021) 11 Cal.5th 952, the California Supreme Court
explained the trial court’s role in assessing a section 1172.6 petition: “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. . . . ‘ “[T]he 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.’ ” (Id. at p. 971.) Importantly, “[i]n 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.)
If 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, it “must [then] hold an evidentiary hearing at which the prosecution
bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is
5
guilty of murder or attempted murder’ under state law as amended by Senate
Bill [No.] 1437. [Citation.] ‘A finding that 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 [No.]
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.)
In Strong, supra, 13 Cal.5th 698, the California Supreme Court held
that given the clarifications in the law, jury special circumstance findings
issued before Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522
“do not preclude [a defendant] from making out a prima facie case for
resentencing under section 1172.6.” (Strong, at p. 721.) The court explained:
“Banks and Clark represent the sort of significant change that has
traditionally been thought to warrant reexamination of an earlier-litigated
issue. Our earlier discussion of habeas corpus petitioners who have obtained
relief from their felony-murder special circumstances in the wake of Banks
and Clark [citation] does much to explain why: There are many petitioners
with pre-Banks and Clark felony-murder special-circumstance findings who
nevertheless could not be convicted of murder today. . . . A pre-Banks and
Clark special circumstance finding does not negate [a defendant’s prima facie
showing under section 1172.6, subdivision (a)(3) that they could not presently
be convicted of murder or attempted murder because of changes to section
188 or 189 effective January 1, 2019] because the finding alone does not
6
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.)
Nor does a court’s later sufficiency of the evidence review amount to the
determination section 1172.6 requires. (Id. at p. 720.) Accordingly, such
findings do not warrant summary denial of a section 1172.6 petition, rather,
the matter must proceed to an evidentiary hearing. (See ibid.)
Here, Peters’s guilty plea admission to being a major participant who
acted with reckless indifference to human life occurred before the high court
decided Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. As
the People properly concede, neither his admissions, nor the trial court’s
cursory finding in denying Peters’s petition for resentencing, provide a basis
to reject an otherwise prima facie showing. (Strong, supra, 13 Cal.5th at p.
720.) We therefore vacate the court’s order and remand the matter for
further proceedings consistent with Strong. We express no opinion on
whether Peters is entitled to relief.
7
DISPOSITION
The order is reversed and the matter remanded with directions to issue
an order to show cause under section 1172.6, subdivision (c) and to hold a
hearing under subdivision (d) of that section.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
8 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486976/ | ORDER DENYING APPLICATION TO STAY EXTRADITION
*304Introduction
Pia Tavares (“Petitioner”) filed this petition for habeas corpus to test the legality of her arrest and to move the court for her release from custody. The facts, as stated below, come almost exclusively from Petitioner’s moving papers.
Petitioner and her husband were married and lived in Hawaii with their two minor children. Sometime in 2002, the couple filed for divorce and a “Stipulated Order for Pre-Decree Relief’ was entered by a Hawaiian court on December 13, 2002.1 The order, apparently granting Petitioner custody of the two children, also included a clause that the children could not be removed from the island of Oahu.2
Sometime in either 2004 or early 2005, Petitioner and the minor children left Hawaii for American Samoa. In Februaiy 2005, her husband asked the Hawaii courts to issue an order to show cause regarding Petitioner’s violation of the 2002 pre-decree order. Because Petitioner was not present at the hearing and apparently was not served, the Hawaii court continued the hearing until March.
Petitioner did not appear at the March hearing either.3 On March 9,2005 the Hawaii court granted the husband’s motion and issued an extradition order. The Hawaii grand jury later issued an indictment for custodial interference, alleging that Petitioner “knowingly and intentionally” took the children from Hawaii without having the legal right to do so.
On October 25,2005, acting Governor Aitofele T. Sunia issued a warrant for Petitioner’s arrest. Petitioner was taken into custody on October 27, 2005, and filed this habeas petition and motion for expedited hearing.
Discussion
Extradition from American Samoa is governed entirely by statute. A.S.C.A. § 46.0902 et seq. Our statutes place a duty upon the Governor to surrender persons who committed an intentional act in the territory that resulted in a crime in the state demanding the extradition.4 If the *305Governor then issues a warrant, and the warrant complies with due process, then the accused may be arrested pending extradition. While the accused is allowed to file a habeas petition and may demand an expedited hearing under A.S.C.A. § 46.0912(b),5 the High Court’s review is limited to assessing the legality of the warrant and the arrest. We are not *306permitted, under A.S.C.A, § 46.0921, to inquire into the accused’s guilt or innocence in the underlying action.6 If the warrant “substantially recite[s] the facts” of the underlying charge, and if the warrant and subsequent arrest otherwise comported with due process, then the accused may be extradited. A.S.C.A. § 46.0909.
Petitioner states that prior to leaving Hawaii she told her husband that she was going back to American Samoa, and that she was taking the children with her. She contends that her husband gave her permission. Now, as part a pattern of emotional and physical abuse, Petitioner contends he initiated the Hawaii action more or less out of spite. She further contends that since she did not have notice of the order to show cause summons, she did not “intentionally” commit a crime in Hawaii.
Whether she had her husband’s blessing to leave, and whether or not she had notice of the summons, however, are irrelevant. The December 2002 pre-decree order granted Petitioner custody of the children, but prohibited her from taking them off the island of Hawaii. By doing so, Petitioner acted “intentionally” and in violation of the existing court order governing custody. This intentional act resulted in a crime being committed in Hawaii: to wit: two counts of custodial interference. Her husband’s alleged permission does not necessarily excuse the Petitioner’s violation of the 2002 court order, nor was it, as Petitioner suggests, a valid oral modification of that order.
It may well be that Petitioner has compelling reasons for violating the December 2002 order, but that issue is for the Hawaii courts to decide. Regardless, under our extradition statutes, we are not permitted to assess Petitioner’s guilt or innocence of the underlying charge. We may only inquire as to whether Petitioner intentionally left Hawaii with the children, and whether the warrant and subsequent arrest comported with due process.7 In light of this clear standard, and having answered the above questions affirmatively, we deny Petitioner’s request to stay the extradition.
*307Additionally, Petitioner makes two alternative requests. First, she asks the court to invoke emergency jurisdiction under the Parental Kidnapping Protection Act (28 U.S.C.A. § 1738A(c)(2)(C)) and grant sole custody to her so that she may grant power of attorney over the children to her parents here in American Samoa. This issue is not properly before us; we granted this expedited hearing to assess the legality of Petitioner’s extradition, and only the validity of her extradition. Accordingly, we decline Petitioner’s request.
Second, Petitioner requests that she be released on her own recognizance pending extradition. This request is also declined. Our statutes empower the executive to authorize arrest and custody prior to extradition.8 It is so ordered.
At oral argument it was revealed that the divorce was never finalized, and Petitioner and her husband are apparently still legally married.
Petitioner did not attach a copy of this document to the present motion.
Petitioner contends she was never served with a notice to appear for either the February or March hearings.
A.S.C.A. § 46.0905 governs the surrender of persons charged with a crime and provides that:
The Governor of this territory may also surrender on demand *305of the executive authority of any other state, any person in this territory charged in such other state in the manner provided in 46.0909 with committing an act in this territory or in a third state intentionally resulting in a crime in the state whose executive authority is making the demand: and the provisions of this chapter not otherwise inconsistent shall apply to such notwithstanding that the accused was not in that state at the time of the commission of the crime and has not fled therefrom.
Section 46.0909 sets out the procedure the Governor must follow if he decides to issue a warrant based pursuant to a state executive’s extradition request. It provides:
If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest which shall be sealed with the territorial seal and be directed to the Attorney General, Public Safety Commissioner, sheriff or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issue.
46.0912 governs the rights of the accused person. It provides that:
(a) No person arrested upon such warrant may be delivered over to the agent whom the executive authority demanding him has appointed to receive him unless he has been informed of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand legal counsel.
(b) If the prisoner, his friends or counsel state that he or they desire to test the legality of the arrest, the prisoner shall be taken forthwith before the High Court of American Samoa in this territory, who shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the Attorney General of American Samoa and to the agent of the demanding state.
(c) An officer who delivers for extradition a person in his custody under the Governor’s warrant, in disobedience to this section, shall be guilty of a misdemeanor, and shall be fined not more than $1,000, or imprisoned not more than 6 months, or both.
A.S.C.A. s 46.0921 provides that:
The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor, or in any proceeding, after the demand for extradition accompanied by a charge of crime in legal form as provided in this chapter has been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.
Petitioner does not challenge sufficiency of the warrant, nor the validity of her arrest as not being made in accordance with due process.
Cf. A.S.C.A. § 46.0917. The question of bail or the appropriateness of bail was not raised here. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486977/ | ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT
Introduction
On February 16, 1992, Maosi Fualu'au (“Maosi”), a prisoner then serving a 7 year rape sentence at the Tafuna Correctional Facility (“TFC”), essentially walked out of the prison gates, crossed the street, broke into a house, and beat and raped plaintiff Virginia Gibbons (“Gibbons”). In April 1999, after the liability phase of a bifurcated trial, the Court found the defendant American Samoa Government (“ASG”) liable for negligently maintaining the prison, thus facilitating Maosi's escape. During the subsequent damages phase, we apportioned Gibbons' overall damages, attributing 1/3 to the ASG's negligence and 2/3 to Maosi's intentional acts.
In September 2001, ASG moved for reconsideration, or in the alternative, a new trial. That motion was denied. In December of that year, Gibbons appealed the damages award and the Appellate Court affirmed in October 2002.1 ASG has yet to satisfy any of the judgment.
Now, over thirteen years since the rape and three years since the Appellate Division decided Gibbon's appeal, ASG now moves for relief from judgment arguing that the Trial Court lacked subject matter jurisdiction over the action.2
*309ASG's argument has a few layers, but essentially breaks down as follows: with the enactment of the Government Tort Liability Act, A.S.C.A §§43.1202 et. seq., (“GTLA” or “Act”) in 1967, ASG waived sovereign immunity for claims arising out of its employee's negligence, but did not, however, waive immunity for claims arising out of intentional torts (e.g., assault or battery). Here, ASG argues that Gibbons's damages arise solely from Maosi's assault, an intentional act. Because the injuries stem from an assault, ASG contends that this Court lacked subject matter jurisdiction to entertain the case. As such, ASG argues the 1999 judgment is void and must be set aside under Rule 60(b)(4).3
The scope of the GTLA's intentional tort exception, appears to be an issue of first impression. The Act was modeled almost entirely on the Federal Tort Claims Act (“FTCA”) (28 U.S.C. §§1346(b) and 2671 et seq.) Moreover, the two sections in play here — A.S.C.A. § 43.1209's general immunity waiver and grant of jurisdiction, and A.S.C.A. §43.1203(b)(5)'s intentional tort exception — were copied almost verbatim from the FTCA. Bryant v. Southwest Marine of Samoa, Inc., 22 A.S.R.2d. 88 (1992). Accordingly, we look to federal courts interpreting these parallel statutory provisions for guidance.
Discussion
The GTLA gives the High Court exclusive jurisdiction over civil claims against ASG for money damages caused by the “negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.” A.S.C.A. §43.1209(a);4 Tauiliili v. *310American Samoa Gov’t, 13 A.S.R.2d 61 (1989). However, among other enumerated exceptions, the Act also provides that the Court lacks jurisdiction over any claims against ASG “arising out of assault, battery” or other intentional torts. A.S.C.A. § 43.1203(b) (5).5 Generally speaking, these sections, when read together, say that ASG waives immunity for an employee's negligent acts, but retains immunity for intentional acts.
ASG urges that we focus on the words “negligent” and “intentional,” and argues that jurisdiction is lacking because the GTLA expressly says that ASG did not waive immunity for claims “arising out of’ assaults. Taking the argument to its logical end, ASG contends that the judgment against them is void because all of Gibbons' damages “arose out” of Maosi's intentional acts. In short, ASG does not contest that its employees were in fact negligent in maintaining the TCF and in facilitating Maosi's escape; instead they argue that under the statute's express terms, they are absolved from that negligence because Maosi committed an intentional tort rather than a negligent tort after his escape.
We disagree. In reading these two sections together, we conclude that the proper focus here is not, as ASG maintains, on the words “negligent” or “intentional.” Rather, focus is to be placed on the word “employee.”
*311The U.S. Supreme Court confronted a similar issue Sheridan v. United States, 487 U.S. 392 (1988). There, Carr, an intoxicated off-duty serviceman (a government employee) fired several shots from a rifle into the plaintiffs' car, injuring one of the occupants. Id. at 394-95. The assault occurred on a public street near the Bethesda Naval Hospital where Carr worked. Id. Prior to the assaults, three naval corpsmen (also government employees) happened upon Carr laying facedown in a drunken stupor and attempted to take him to the emergency room. Id. at 395. However, when Carr became belligerent and brandished his rifle, the corpsmen fled. Id. The corpsmen took no other action; specifically, they did not alert hospital authorities that an armed, intoxicated person was on the premises. Id.
The plaintiffs sued the Government under the FTCA, alleging that their injuries resulted not from Carr's assault, but from the corpsmen's negligence in letting Carr leave the hospital with the rifle.6 Id. The district court concluded that as a general rule, the Government was not liable for its employee's intentional torts. Id. While it was “sympathetic” to the plaintiffs' arguments, the court concluded that the plaintiffs' damages ultimately “arose out of’ Carr's intentional acts. Thus, finding the FTCA's intentional tort exception applicable,7 the district court dismissed the action for want of subject matter jurisdiction. The Fourth Circuit affirmed. Id.
The Supreme Court granted certiorari and reversed. Id. at 403. While the Court initially observed that the FTCA's intentional tort exception is “unquestionably broad enough to bar all claims based entirely on an assault and battery,” they nevertheless held that in “some situations^] the fact that an injury was directly caused by an assault or battery will not preclude liability against the [federal government for negligently allowing the *312assault to occur.” Id. at 398-99 (emphasis added).
The Court's analysis was simple and elegant. Adopting then Judge Harlan's reasoning in Panella v. United States, 216 F.2d. 622 (2d Cir. 1954), the Court held that the intentional tort exception must be read against the rest of the FTCA. Id. at 400. The Court explained that the FTCA contemplates personal injury actions “caused by the wrongful act or omission of any employee of the Government while acting within the scope of his . . . employment.” Id. (emphasis in original). Two phrases in the FTCA were critical to the Court's analysis: “employee of the government,” and “acting within scope of his ... employment.” Id. The Court concluded that since the FTCA only waives immunity for negligent acts committed by employees during the course of their employment, the intentional tort exception only applies to intentional torts committed by employees during the course of their employment. Id. (holding that “the exception only applies in cases arising out of assaults by federal employees” committed in the course of their employment.) Thus, even though the federal government employed Carr, he was not acting in the course of that employment at the time of the assault. Therefore, neither the Act (waiving immunity for its employees negligent acts), nor the exception (retaining immunity for employees intentional acts), applied to Carr's conduct. Id. at 401.
Having concluded that the intentional tort exception had no bearing on the suit, the Court went on to address whether the Corpsmen's negligence, in allowing a foreseeable assault to occur, could provide basis for a suit against the United States Government under the FTCA. The Court concluded it could. Id. at 401-02. First, the Court held that naval regulations prohibited possessing firearms on the base and further required that personnel report the presence of firearms. Id. at 401. The reporting requirement created a duty on behalf of the corpsmen to alert others about Carr. Second, the Court held that in voluntarily attempting to help visibly drunk and obviously armed Carr, the corpsmen assumed a duty to carry out their “good Samaritan” task carefully. Id. Failing to report Carr to the proper authorities was a breach of both of these duties. Id. This breach exposed the Government to liability under the Act; thus subject matter jurisdiction was proper. Id. at 403.
Accordingly, whether Carr's conduct was ultimately characterized as negligent or intentional was irrelevant to the calculus. On this point, the Court reasoned that “if the Government has a duty to prevent a foreseeably dangerous individual from wandering about unattended, it would be odd to assume that Congress intended a breach of the duty to give rise to liability when the [individual] was merely negligent, but not when he or she was malicious.” Id. at 403.
*313We find Sheridan's reasoning compelling. Since Maosi was not an ASG employee, §43.1203(b)(5)'s intentional tort exception is inapplicable to Maosi's actions. Thus whether he acted intentionally or negligently at the time of the assault is totally irrelevant. Here, like in Sheridan, the government's liability is predicated on the negligence of its employees prior to a third parly's intentional act. To hold, as ASG urges here, that Maosi's intentional acts somehow absolves it of its antecedent negligence is specious in light of the GTLA's purpose. Moreover, such an argument, if accepted, would also completely gut the accepted tort principle that the same injury can arise from more than one wrongful act. See e.g., Restatement (Second) Of Torts § 448 (1965) (stating that a third party's intentional or criminal act is not a superseding cause of an actor's prior negligence if, at the time of the negligence, that actor should have realized the third party would take advantage of the negligence and avail himself of the opportunity to commit a crime.)
Having concluded that the intentional tort exception has no bearing on the case before us, we turn to the broader question of whether the Court properly had subject matter jurisdiction based on ASG's negligence. If ASG employees had a duty to prevent prison escapes, and if those employees negligently carried out that duty, then suit under the GTLA is proper and this Court has subject matter jurisdiction regardless of whether Gibbons' damages were ultimately caused by an intentional act.
Without getting into a lengthy rehash of the Trial Court's findings, it is clear here that ASG employees had a legal duty to “protect fellow inmates and members of the general public from those it has taken within its custody.” Rakhsahn v. Tuilefano, 18 A.S.R.2d 46, 48 (Trial Div. 1991). Assumed in this general statement is the duty to prevent escapes, thus mitigating the opportunity for criminals to perpetuate further crimes against the public.
Having established a duty, the Trial Court's findings of fact more than support the conclusion that ASG employees breached that duty. Evidence presented below indicates that prison officials failed to cover huge holes in the prison's walls, left perimeter gates unsecured, allowed prisoners access to alcohol while incarcerated, and generally failed to provide reasonable security measures. Indeed, at trial the prison's own warden referred to the facility's overall security program as “a joke.” Gibbons v. American Samoa Gov't., 3 A.S.R.3d 135, 140 (Trial Div. 1999). Clearly, ASG's failure to properly secure the prison was a breach of their duty to protect the public from dangerous criminals.
*314Order
Like the corpsmen's negligence in Sheridan, the negligence of ASG employees precipitated and facilitated Maosi's assault on Gibbons. This antecedent negligence opens the door to suit under the GTLA, regardless of whether damages were ultimately caused by a negligent or intentional act. Further, because Maosi was not a government employee at the time of the assault, the intentional tort exception is irrelevant and inapplicable in this case.
Because liability turned on ASG's negligent conduct, the Trial Court properly had subject matter jurisdiction pursuant to A.S.C.A. § 43.1209. Therefore, ASG's motion to set aside the judgment is denied.
It is so ordered.
RIDER
The court is very concerned with ASG's failure to timely address satisfaction of the outstanding judgment awarded Gibbons in this matter. As we noted above, it has been thirteen years since the events leading up to plaintiffs injury and damages, and three years since the Appellate Division affirmed Gibbon's judgment award, secured after seven arduous years of litigation. ASG's continuing omission to pay the judgment is inexplicable. It is also a sad commentary on the rule of law in this territory of the United States, since this is not an isolated instance. See e.g. Utu v. American Samoa Gov’t, CA No. 83-90 (Trial Div. 1992) (Gov't's Memorandum of Law in Support of Motion For Reconsideration at page 2). This dilatory reaction to unequivocal statutory directives, regarding satisfaction of judgments against the government, is as far as we can tell peculiar to the American Samoa Government. Such official apathy only adds to the sort of perception that has, in recent times, attracted increasing off-island federal attention to the territory. Ignoring a final judgment against ASG does not malee it go away, while interest thereon continues to accrue unabated.
Gibbons v. American Samoa Gov't., 6 A.S.R.3d 50 (App. Div. 2002.)
It should be noted here that throughout the many years this case has been litigated — through seven years of discovery, a bifurcated trial, a motion for reconsideration and an appeal — ASG never once raised the current argument. However, since subject matter jurisdiction is always ripe (see Collins v. Foreman, 729 F.2d 108, 111 (2nd Cir. 1984) (lack of subject matter jurisdiction could render a judgment void, thus the issue is subject to *309collateral attack under Fed. R. Civ. Proc. 60(b)(4)), we consider ASG's motion.
T.C.R.C.P. 60(b)(4) allows the trial court to grant relief from void judgments. Defendant argues, and the Court agrees, that if subject matter jurisdiction was lacking, then the 2001 judgment would be void, and the Court would be compelled to set it aside pursuant to Rule 60(b)(4). See e.g., Collins v. Foreman, 729 F.2d 108 (2nd Cir. 1984). However, as discussed below, since the Court properly had subject matter jurisdiction, the judgment stands.
In its entirety, § 43.1209 reads:
Jurisdiction over actions.
(a) The Trial Division of the High Court shall have exclusive jurisdiction of civil actions on claims against the government accruing on or after the effective date of this chapter, for money damages, for damage to or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his *310office or employment, under circumstances where the government, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Section 43.1203 governs both the scope of the ASG's liability and the exceptions to liability. It provides:
(a) The government is liable, except as otherwise provided in this chapter, in the same manner and to the same extent as a private individual under like circumstances, but is not liable for interest prior to judgment or for punitive damages, except that in a case wherein death is caused and the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the government is liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively for whose benefit the action was brought.
(b) The provisions of this chapter do not apply to:
(5) any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.
Like A.S.C.A. § 43.1209's general immunity waiver and grant of jurisdiction, 28 U.S.C. § 1346(b)(1) provides that U.S. district courts:
shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 2680(h), the FTCA’s intentional tort exception, provides that 28 U.S.C. § 1346(b)(1) shall not apply to:
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights____ | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486978/ | OPINION AND ORDER
Introduction
On March 16, 2001, plaintiff Construction Services In Samoa ("CSS") entered into a construction contract with defendant American Samoa Government, Department of Port Administration ("ASG"). In short, the contract required CSS to complete the third and final phase ("Phase III") of a dock rehabilitation project ("the project") in the Pago Pago Harbor.1 Although Phase III involved erecting a small guardhouse, a fence, and some drainage causeways, the vast majority of work (roughly 70-80%) involved pouring and finishing a concrete dock in the Pago Pago port.
The contract provided that all work would be "substantially completed" 335 calendar days from the date ASG issued CSS a Notice to Proceed. The contract also stated that the "[cjontractor shall be considered in default. . . and default shall be considered as cause for termination" if, among other things, CSS: 1) "failed to perform the work ... in accordance with the terms of the contract" or 2), "failed "to carry on the work in an acceptable manner."
The Notice to Proceed, which started the clock running on CSS's time to complete the contract, was issued on May 7, 2001. Shortly thereafter, CSS began to fall seriously behind schedule. According to weekly site meeting minutes, on July 21, 2001, some 77 days into the contract, CSS *317had completed exactly 5% of the total work required by the contract. By August 23, 2001, one-third of the time allotted to finish the project had elapsed; CSS had completed only 6% of the total work. On January 31, 2002, ASG issued a notice stating its intent to terminate the contract for failure to perform the work. At that time CSS had completed just 8% percent of the total contract work, while approximately 77% of the allocated time to complete Phase III had elapsed.
There is no hiding the fact that as of the termination date, CSS was seriously, if not fatally, behind schedule.2 The alleged reasons for the delay, however, form the backbone of this dispute. CSS argues that defects in the project plans caused unneeded delay, and further that Defendant exhibited a lack of good faith in carrying out the agreement.
Briefly on the design flaw issue, CSS claims that the project plans were defective; namely, that the concrete-which amounted to approximately 75% of the total work — would crack after it was poured under the current design.3 CSS argues that because the concrete associated with Phase II showed considerable cracking, and because the concrete specifications for Phases II and III were the same, then the Phase HI concrete would likely crack if they poured the concrete according to the existing plans.4 They argue, without any citation to legal authority, that because Defendant issued them defective plans, Defendant breached the implied warranty of adequacy of plans and specifications, thus entitling CSS to contract damages.
After discovering the alleged design flaw, CSS sent a series of Request for Information ("RFI") letters to GMP & Associates, Inc. ("GMP"), an engineering group who ASG authorized to act in its shoes as project manager. The first RFI on the design defect issue, drafted and sent in late September 2001, asked GMP or the project designer to clarify the alleged concrete defect issue before CSS continued work. Given that CSS was already seriously behind schedule, GMP responded by telling CSS to continue the work despite the alleged design flaw. Although the contract terms expressly provide that the contractor is not liable for *318design defects, CSS requested indemnification for any defects in the concrete resulting from the allegedly defective design.5 On October 31, 2001, GMP acquiesced and indemnified CSS for any concrete cracking or concrete failure associated with the Phase III project. After issuing the indemnification, GMP told CSS to get to work. Instead, CSS requested indemnity directly from ASG, arguing that GMP lacked the authority to authorize indemnity on its own.6
Throughout this dialogue, CSS made no significant progress on the dock project. Accordingly, on December 10, 2001, GMP sent a letter to CSS expressing its intent to terminate the contract based on CSS's failure to perform the work in a timely or otherwise acceptable manner. CSS responded five days later arguing that much of the delay was rooted in GMP's refusal to clarify the design defect issue. The parties' positions remained virtually unchanged over the next two months, and on February 5,2002, ASG formally terminated the contract.
With respect to the good faith issue, CSS maintains that ASG and its representatives dragged their feet in approving materials and responding to CSS's RFI's. CSS argues that the contract required ASG to approve materials before CSS could order them from suppliers. CSS contends that since ASG did not approve materials — particularly the concrete — in a timely manner, then CSS could not order the materials.7 Because CSS did not have materials, they could not perform any work on the project.
For its part, ASG contests each of the reasons and submits that CSS's failure to timely perform the contract had nothing to do with ASG's actions or inaction. First, regarding the design defect issue, ASG maintains that under both accepted law and the contract's own terms, CSS would not have been liable for construction defects caused by a defective design. Because neither the contract nor case law requires CSS to indemnify ASG for design defects, CSS's concerns over its own *319liability were unfounded. Thus, CSS should have continued working, especially after GMP clarified the issue. Moreover, ASG maintains that even if CSS was originally liable under the contract (which it clearly was not under the contract's express terms) for design defects, GMP relieved them of liability by indemnifying CSS in October 2001. Regardless, ASG maintains that CSS cannot unilaterally cease work on the project and still recover the contract price.
With respect to the good faith issue, ASG argues that any alleged failure to approve material submittals or respond to RFI's is simply untrue and does not excuse CSS's inability to perform. Regarding the RFIs, ASG maintains that it responded quickly, first telling CSS not to worry about the design issue and then indemnifying CSS from liability. Thus, ASG contends it timely addressed CSS's concerns. As to the material submittals, ASG points out that while concrete comprised 74% of the total contract work, CSS did not even make a concrete submittal until late October 2001, or more than five months after ASG issued the Notice to Proceed. Accordingly, ASG argues, whatever delay CSS faced in obtaining the concrete and beginning the concrete work was not caused by ASG's failure to approve the submittals.8 In sum, ASG maintains that it timely responded to CSS's material submittals and RFI's, and therefore did not breach its duty to act in good faith.
Discussion
CSS raised two issues at trial: first, whether ASG breached "the implied warranty of adequacy of plans and specifications," and second, whether *320ASG breached its duty to deal with CSS in good faith. If ASG breached neither duty, then CSS's claims fail.
I. The Implied Warranty Claim
American Samoa applies the common law to contract disputes unless it conflicts with local statutes or customs. A.S.C.A. § 1.0201. The generally accepted view at common law is that where a transaction's primary objective is to obtain services, the doctrines of implied warranty and strict liability do not apply. See e.g., Allied Properties v. John A. Blume & Assoc. (1972) 25 Cal.App.3d 848, 855. Thus, as a general rule in most jurisdictions, those who provide services to guide others in their economic, financial, and personal affairs are not liable in the absence of negligence or intentional misconduct. Id. To use California as an example, the rule has been consistently followed with respect to most professional services. See e.g., Roberts v. Karr (1960) 178 Cal.App.2d 535 (surveyor); Gautier v. General Telephone Co. (1965) 234 Cal.App.2d 302, (communications services); Bonadiman-McCain, Inc. v. Snow (1960) 183 Cal.App.2d 58 (engineer); Lindner v. Barlow, Davis & Wood (1963) 210 Cal.App.2d 660 (accountant); Pancoast v. Russell, 307 P.2d 719 (Cal. 1957) (architect).
While the general rule is that implied warranties do not arise in service contracts, there is some (albeit very limited) support for CSS's bare contention that in construction contracts the owner impliedly warrants the sufficiency of plans he tenders to the contractor. APAC Carolina, Inc. v. Town of Allendale, 41 F.3d 157, 163 (4th Cir. 1994); Montrose Contracting Co. v. Westchester County, 80 F.2d 841 (2nd Cir. 1941); Souza & McCue Constr. Co. v. Superior Court, 370 P.2d 338 (Cal. 1962).
In APAC, Welco, the primaiy subcontractor on a sewage treatment plant project, sued APAC (the general contractor) for breach of an oral agreement. APAC Carolina, Inc., 41 F.3d at 159. Welco alleged that midway into the project APAC agreed to compensate Welco for additional work it needed to perform because of numerous inaccuracies and defects in the project plans and specifications.9 Id. at 161. There, it was clear to both the APAC and Welco that the plans were defective, and as a result, Welco would need to perform extra work not contemplated in the original bid to complete its portion of the contract. Id. Welco was ready and willing to do the extra work, provided APAC agreed to pay for it. Id. When APAC agreed, Welco performed.
*321When the project was finished, APAC reneged on its promise to pay for the extra work and Welco brought suit. Id. at 162. Welco alleged that under South Carolina law, a general contractor impliedly warrants that plans and specifications it furnishes to subcontractors are sufficient for their intended purpose; that purpose being a reliable basis on which a subcontractor can prepare his bid. Id. at 163. Because the plans were defective and required Welco to perform extra work, APAC, by virtue of this implied warranty, was required to pay for the extra work. Id. At the ensuing bench trial, the district court awarded Welco damages, and the Fourth Circuit affirmed. Id. at 164.
Similarly, in Souza, the California Supreme Court held that a contractor who uses defective plans as the basis for an otherwisé low bid may recover in a contract action for extra work or expenses necessitated by the defective plans. 370 P.2d 338, 339-40. The court held that the rule is based mainly on the theory that furnishing misleading plans constitutes a breach of an implied warranty that the plans were correct. Id.
APAC and Souza demonstrate that the implied warranty of fitness of plans is simply irrelevant to the facts of this case. The rationale for the rule is to compensate the contractor for any extra work he was forced to do as a result of the defective plans. See Allied Properties, 25 Cal.App.3d at 857 (holding that "the rationale is that any additional costs caused by an error in the plans and specifications can be more equitably borne by the owner who receives the benefits than by the contractor.") This rationale cannot be readily transferred to a contractor who in fact incurs no additional costs because he in fact does no additional work.
Given the rationale for the implied warranty, we hold that necessary prerequisites to suit under this theory are: 1) completing the job as originally intended; and 2) performing extra work not originally contemplated at contract formation as a result of defective plans. The remedy for breach of the warranty to provide accurate plans is extra compensation for this extra work. Breach of the implied warranty does not, however, permit the contractor to stop working and then sue for the contract price.
When seen through this lens, one thing differentiates the plaintiffs above from CSS here. They worked. In fact, they performed extra work, and for this additional work they were permitted to bring suit for extra compensation not included or contemplated in the original contract. This scenario is not present here. When CSS brought the alleged defect to GMP's attention, GMP, acting in ASG's shoes, told CSS not to worry and to continue working. CSS did not. When CSS asked for indemnity for any defect arising out of the plans, GMP acquiesced. CSS still did not work. In fact, even though they were indemnified from any liability, by *322February, more than three-quarters of the way through the contract period, CSS had completed only 8% of the total work due under the contact.10
Unlike ABAC and Souza, where the contractors completed work on the original contract and were entitled to sue for additional work caused by defective plans, CSS did not come close to completing the work due on the original contract, let alone perform additional work in order to complete the contract. Because completing the project as expected and performing extra work are prerequisites to suit under the implied warranty, CSS's claim fails.
II. The Good Faith Claim
It is axiomatic that in every contract there is an implied duty on behalf of the parties to deal with each other in good faith. Maua v. Mulipola, 12 A.S.R.2d 106, 107 (Trial Div. 1989). In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the *323agreement. See e.g., De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 849 A.2d 382, 388 (Conn. 2004). To constitute a breach of the implied covenant of good faith and fair dealing, the defendant's acts must impede the plaintiffs right to receive benefits that he or she reasonably expected to receive under the contract. Id.
"Good faith" is frequently defined in the negative, such as the absence of bad faith. Northern Crossarm Co., Inc. v. Chemical Specialties, Inc., 318 F.Supp.2d 752, 763 (W.D. Wis. 2004). Bad faith is not simply bad judgment or negligence, but rather implies conscious wrongdoing with a dishonest purpose, or affirmatively operating with "furtive design or ill will." Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 778 A.2d 237, 247 (Conn. 2001). Generally, to prove a claim for bad faith the plaintiff must show either that the defendant engaged in conduct designed to intentionally mislead or to deceive, or that he neglected to fulfill a duty or contractual obligation and this neglect cannot be characterized as an "honest mistake." Id.
Here, CSS alleges that ASG acted in bad faith because it did not timely address CSS's RFIs, specifically, the RFIs concerning the alleged design defect. To recap this timeline: CSS first brought up the concrete issue on September 19, 2001, more than 4 months after the notice to proceed was issued. GMP responded on October 1, 2001, telling CSS to proceed anyway, albeit at their own risk. On October 31, 2001, in response to CSS's requests, GMP indemnified CSS from any liability arising from the Phase III concrete design. Despite being indemnified from liability, CSS did not pour a single drop of concrete from the date GMP indemnified it until the date of termination, more than three months later.
CSS also maintains that ASG's failure to timely approve material submittals, particularly submittals associated with the concrete, also constitutes a breach of the duty of good faith. However, CSS submits no evidence that ASG failed to timely respond to submittals. Furthermore, evidence adduced at trial indicates the CSS itself dallied in submitting concrete samples for over five months while it attempted to secure financing for its own concrete crusher and generator.
In light of the facts and the above discussed legal standard, we believe the question is whether ASG acted with a dishonest purpose designed to impede CSS's right to receive the fruits of the contract? See De La Concha, 849 A.2d at 388; Elm Street Builders, 778 A.2d at 247. From the evidence before the Court, we can only answer no.
On these facts, it is clear that at each stage, ASG and GMP did not act with ill will or attempt to frustrate CSS's contract rights. Rather, from clarification of the defect issue to indemnification from liability, ASG did *324everything it could to encourage CSS to work, not discourage it. Furthermore, as noted above, it was CSS's actions, and not ASG's, that caused delay in ordering the concrete. Whatever role CSS believes ASG may have played in the delay, CSS offered no evidence indicating that ASG ever acted consciously with the purpose of depriving CSS of the benefits of their bargain. Regardless, on the evidence before us, AGS's actions in this case cannot be considered violative of their duty to act in good faith, and therefore cannot form the basis of CSS's suit.
Order
CSS has failed to prove up its claims of breach of implied warranty and duty to act in good faith on the part of ASG. Accordingly, the complaint is dismissed and CSS shall take nothing thereby. It is so ordered.
The Port Administration bid all three phases of the project separately. Phases I and II were completed before Phase III was put out for bid. CSS was not involved in the completion of Phases I and II.
At trial, CSS's own project engineer testified that given how far behind schedule CSS was at the time of termination, it would have been impossible to complete the project in the contractually allotted time.
ASG did not draft the plans. Lyons & Associates, a Hawaii-based design firm designed all three phases of the dock rehabilitation project. Lyons was not a party to this case.
CSS acknowledged at trial that the concrete cracking in Phase II could have been caused by the phase II contractor. In fact, a subsequent investigation could not rule out that contractor error, rather than defective design, caused Phase II's cracked concrete.
Section 40-02(C) of the contract clearly provides that "the Contractor will not be penalized ... because of errors or omissions in the plans or in these specifications."
For reasons not made clear at trial, CSS believed that GMP's offer of indemnify had no force or effect. This proposition, however, is not supported by the contract's express terms, which authorizes GMP to act directly on ASG's behalf. Accordingly, GMP's offer of immunity had the same effect as if offered by ASG itself, a contract particular which should have been known to CSS.
CSS's president, Morn K. Mane, testified to this effect repeatedly during trial. However, CSS can point to no evidence that tends to show that CSS asked for approval of the concrete samples prior to October 18, 2001, or that ASG dallied in giving approval prior to that date.
Exactly why CSS waited so long to submit concrete samples for approval was never adequately, or clearly, explained at trial. Moru Mane, CSS's president, initially testified that CSS was behind schedule solely because ASG's representatives failed to approve the concrete submittals. On cross-examination, when evidence came to light that CSS did not even submit concrete samples for approval until late October 2001, Moru changed his story. In a nutshell, Moru testified that CSS needed to obtain the concrete samples from their competitors who were disgruntled because they themselves had bid on the phase IE contract and lost to CSS. In essence then, Moru changed his testimony to allege that his competitors engaged in anti-competition practices that prevented CSS from making timely submittals. This testimony, however, sharply conflicts with other evidence that CSS attempted to purchase its own concrete crusher and generator as early as August 2001 for the purpose of producing its own concrete. Furthermore, evidence indicates that CSS only abandoned those plans in October 2001, five months into the contract period, when it was unable to obtain financing for purchasing the crusher/generator.
Like the instant case, APAC had, prior to the project, provided project plans to Welco so that Welco could prepare its bid. Id.
CSS relies exclusively on United States v. Spearin, 248 U.S. 132 (1918), for the proposition that a contractor can recover on the contact after being given defective plans. CSS's summary of Spearin's holding, however, is erroneous, and a close reading of Spearin reveals it is inapposite to the instant case. There, a contractor for the Navy stopped working on a project when part of a sewer system it erected pursuant to specifications issued by the Navy failed. Id. at 134. Spearin promptly notified the Navy of the failure and stated it would cease working on the rest of the project unless the Navy assumed responsibility for the sewer damage since the damage arose out of defective plans the Navy gave Spearin. Id. at 135. The Navy, who refused to assume responsibility for past damage or indemnify Spearin for future damage, simply ordered Spearin to continue work at its own risk. Id.
On these facts, the Supreme Court held that the Navy prematurely terminated the contract when it refused to assume responsibility for past and future damage resulting from the defective plans. Id. at 137. Because the Navy breached the contract, Spearin was entitled to the benefit of his bargain, i.e., lost profits. Id. at 138.
The facts of the instant case differ materially from Spearin. The most obtrusive of which is that ASG readily agreed to indemnify CSS for any damages resulting from the allegedly defective plans. Moreover, the contract's express terms here provided that the contractor would not be responsible for design defects. Unlike the Navy in Spearin, ASG accepted responsibility for future damage and therefore cannot be said to have prematurely terminated the contract. Thus, because ASG did not breach, CSS is not entitled to the benefit of its bargain. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486979/ | ORDER DENYING MOTION TO DISMISS
Introduction
As the parties are well aware, Defendant Dianne Majhor (“Majhor”) faces two counts of tampering with physical evidence in connection to her alleged role in the murder of Wyatt Bowles, Jr. (CR No. 15-03), in addition to the controlled substance offense charged in this prosecution. Her husband, Richard Majhor, is currently awaiting trial on first degree murder charges in the Bowles case (CR. No. 10-03).
On March 27, 2003, in the course of the Bowles murder investigation, officers from the Department of Public Safety found one gram of Methamphetamine during a search of the Majhor’s home. On May 29, *3262003, five days after Majhor posted bail on the tampering charges and was released,1 Plaintiff American Samoa Government (“ASG”) charged Majhor with one count of possession of methamphetamine with intent to distribute (CR No. 20-03).2 Subsequent to being charged with this controlled substance offense, Majhor has remained confined in the Tafuna Correctional Facility.
On August 11, 2003, during the initial pretrial conference on the possession charge, Majhor moved for a speedy trial and also requested a trial by jury. On September 2, 2003, given the amount of publicity the murder charges generated, ASG requested that the possession trial follow the murder and tampering trials by two weeks. Accordingly, ASG proposed a trial date sometime in mid-March 2004. At this hearing, Majhor again requested a speedy trial.
On September 29, 2003, the Court granted ASG’s request. We noted that the homicide trial was currently set to begin on February 24, 2004, and set the trials on the tampering and possession charges to follow the homicide trial by two weeks.
The early 2004 trial dates came and went. On January 14, 2004, citing the need for more time to prepare to defend the capital charges he faced, Richard Majhor waived his speedy trial rights and moved to continue the murder trial. Diane Majhor, however, objected to continuing the tampering and possession trial dates. The Court subsequently granted Richard Majhor’s motion and continued the murder trial to July 13, 2004. The drug and tampering trial dates were also moved to July 27, 2004 and August 3,2004, respectively.
*327On July 6, 2004, as the new trial date approached, Richard Major again moved to continue the murder trial. Again, Majhor asserted her right to a speedy trial, requesting that the drug and tampering trials go forth as soon as possible. After a hearing on the issue, all three trials were rescheduled and set begin in early January 2005.
The January 2005 trial dates were eventually vacated and the Court continued the murder trial to July 5, 2005. On written motion, ASG moved to continue the tampering and drug cases until after the murder trial. Regarding the tampering charge, ASG argued that the facts underlying that action arose out of the alleged murder, and accordingly, should wait until after that trial took place. Similarly, ASG argued that many of the same witnesses, and much of the same evidence and testimony, would be used in both the murder trial and the collateral trials. Therefore, ASG argued it made sense to try those crimes contemporaneously. The Court granted ASG’s continuance motion, this time moving the tampering trial to August 9, 2005 and the drug trial to August 16,2005.
After the murder trial was again continued to February 7, 2006, ASG moved to continue the tampering and drug cases accordingly. On July 18, 2005, we granted ASG’s request. Trial in the drug case is currently set for March 7,2006 at 9:00 a.m.
Majhor now moves to dismiss the drug possession charge based the alleged denial of her right to a speedy trial.
Discussion
A criminally accused’s right to a speedy trial is guaranteed by Article I, Section 6 of the Revised Constitution of American Samoa, and by the Sixth Amendment to the United States Constitution.3 The constitutional *328protections exist to help minimize the deprivation of liberty that results from lengthy pretrial incarcerations and unresolved criminal proceedings. See United States v. MacDonald, 456 U.S. 1, 7 (1982).
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court established a four-factor test to determine whether a defendant’s constitutional right to a speedy trial is violated. Those factors balance: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant. Id. at 530-32.
I. Length of Delay
The length of the delay is a threshold consideration and the accused bears the burden proving the delay is “presumptively prejudicial” before courts will engage in a full Barker analysis. United States v. Gregory, 322 F.3d 1157, 1161 (9th Cir. 2003). “[Djepending on the nature of the charges, the lower courts have generally found post-accusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992); see also United States v. Valentine, 783 F.2d 1413, 1417 (9th Cir. 1986) (finding delays of six months to be “borderline” prejudicial, particularly when the nature of the charges accused faces are not complex).4
Here, there is no doubt that Majhor meets this threshold burden, thus triggering our consideration of the remaining Barker factors. Majhor has been incarcerated since her arrest on May 29, 2003, and trial is currently scheduled for March 7, 2006. Thus, some 34 months will pass from incarceration to trial. Furthermore, given that the charge is for possession of one gram of methamphetamine — a relatively routine offense that requires little, if any, investigation or trial preparation — this almost three-year delay is prejudicial and weighs in Majhor’s favor.
*329II. Reason for the Delay
Having concluded that the length of delay weighs in Majhor’s favor, we now turn to the reasons behind the delay. As with the delay analysis — where the duration should be analyzed in relation to the complexity of the underlying offense — here too, “different weights should be assigned to different reasons.” Barker, 407 U.S. at 531. Thus, “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government [while] more neutral reason[s] such as negligence or overcrowded courts should be weighted less heavily.” Id.
Here, the main reason for the delay in trying the drug case in a timely manner is its connection to the murder case. The murder, tampering and possession charges all arise out of the same set of facts and percipient testimony. Physical evidence and resources used in the murder trial would also be used in the other trials. It therefore makes sense to try them all contemporaneously. Furthermore, as we have stated before, “[t]he paramount public interest is best served by first having fair and impartial trials of the homicide prosecutions, untainted by the evidence introduced during the trials of the collateral” matters. American Samoa Gov't v. Majhor, 1 A.S.R.3d 147, 149 (Trial Div. 2003). Thus, we are concerned with the very real specter that media publicity surrounding the collateral trials, should they occur first, could seriously impact the fairness of the murder trial.
Based on the above, we hold that more than mere prosecutorial neglect is at play here. We continue to give great deference to ASG’s desire to prosecute crimes in the manner it deems appropriate. Although that deference must always tempered by the Constitution, legitimate prosecutorial delay designed to further the people’s interest will always be respected. While three years is clearly a significant and lengthy delay, the special circumstances of this case warrant such delay; thus, this factor weighs in ASG’s favor.
III. Majhor’s Assertion of Her Right to Speedy Trial
Prompt assertion of the right to a speedy trial weighs, at least slightly, in the accused’s favor. See Gregory, 322 F.3d at 1162 n.4 (9th Cir. 2002).
Here, there can be no argument that Majhor promptly, and continuously, asserted her speedy trial rights. On August 11, 2003, Majhor first request a speedy trial and indeed, at almost every stage of this litigation, she has continued to assert her rights to a speedy trial.
*330Thus, this factor weighs in Majhor’s favor.
4. Prejudice
The remaining Barker factor is prejudice. We have already concluded that Majhor is entitled to a presumption of prejudice based on the excessive length of her pretrial incarceration. This presumptive prejudice, however, is not conclusive and is simply “part of the mix of relevant facts.” Doggett, 505 U.S. at 656. In assessing prejudice, courts have held that when the government is merely negligent, and that the delay did not greatly exceed the minimum time required to trigger the full BarJcer inquiry, “we must consider the amount of delay in relation to particularized prejudice.” United States v. Beamon, 992 F.2d at 1009, 1014 (9th Cir. 1993).
Here, Majhor is charged with possession of methamphetamine. At first glance, this is not ordinarily the sort of charge that engenders a 34 month trial delay. However, as discussed above, the circumstances of this case are anything but ordinary.
While there is no doubt that this nearly three year delay prejudices Majhor, the reasons for the delay persuasively counter that prejudice. Thus, Majhor is not entitled to relief.
Order
In our July 18, 2005 order granting ASG’s motion to continue the drug and tampering trials, we noted that “at some point the prejudice to the defendants resulting from mere time delay . . . may outweigh otherwise legitimate purpose in conducting these trials after the homicide trial.” American Samoa Gov’t v. Majhor, CR 15-03, Order Denying Motion to Dismiss and Granting Motion to Continue at 5 (Trial Div. July 18, 2005). However, we have not yet reached that point.
To be sure, society has a particular interest in bringing swift prosecutions, and society's representatives are charged with protecting that interest. Barker, 407 U.S. at 526. However, because the possession charge is so related to the tampering and homicide charges, contemporaneous trials of all three are required. Thus, the delay in prosecuting the possession charge is justified.
Accordingly, Majhor’s motion to dismiss CR No. 20-03 on speedy trial grounds is denied.
It is so ordered.
Regarding bail, the District Court initially set bail in the tampering case at $35,000. Majhor posted that amount on May 24, 2003 and was briefly released. On June 5, 2003, after her arrest on the drug charges, the District Court set bail on that offense at $60,000 and bound Majhor to answer in the High Court. During her June 6, 2003 arraignment in this Court, we increased bail to $250,000 in order to: 1) assure her presence in court over what was now two separate prosecutions, and 2) because serious questions arose regarding the value of the property used as bail collateral in the tampering cases. On October 25,2004, Majhor’s motion for bail reduction was denied for the reasons listed above. Unable to post the $250,000 bond, Majhor remains incarcerated awaiting trial on both the tampering and drug charges.
Richard Majhor was also charged with possession with intent to distribute (CR 21-03).
Article I, Section 6 of the Revised Constitution of American Samoa provides, in pertinent part, that:
In all criminal prosecutions, the accused shall have the right to a speedy and public trial, to be informed of the nature and the cause of the accusation and to have a copy thereof; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Rev. Const. Am. Samoa art. I § 6.
The Sixth Amendment to the U.S. Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which *328district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.
U.S. CONST, amend. VI.
Regarding measuring the length of delay, courts have consistently held that the length of delay is generally measured from the time the indictment is issued until the time of trial. United States v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486980/ | *334ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION TO SUPPRESS
Factual Background
On June 2, 2005, acting on information from a confidential informant, Lieutenant Paulo Leuma (“Lt. Leuma”) prepared an affidavit and application for a warrant to search the residence of Pepe Lam Yuen (“Pepe”).1 The affidavit notes that the confidential informant (the “Cl”) witnessed Pepe and his wife, Kolopa Lam Yuen (“Kolopa”)2 (collectively “Defendants”) selling marijuana from their home and trading marijuana for valuable items between January 2005 and May 2005. The affidavit states that as recent as the last week of May 2005, the Cl observed Pepe trading marijuana for concrete blocks to be used in building part of his house still under construction. Moreover, the affidavit notes that Pepe has two prior convictions for possession of marijuana, one in 1985 (CRNo. 34-85) and the other in 1989 (CRNo. 34-89).3
District Court Judge John L. Ward reviewed the application and a search warrant was issued. The search warrant listed marijuana, methamphetamine, and related paraphernalia as items to be seized, and permitted a search of “the house of Pepe Lam Yuen in the Village of Pava'ia'i/Aoloau, American Samoa, its curtilage and adjacent banana plantation.” It described the house as a “single-stoiy structure, part of which is still under construction,” to be found on the Toluao family land “on the mountain from where cinders are hauled.”
The ensuing search took place the following afternoon on June 3, 2005, and approximately twelve police officers were present. One group of officers, lead by Lt. Leuma, approached the Lam Yuen property from the Tafeta side of the mountain, and headed directly to Pepe's residence.4
*335Upon seeing Pepe and Kolopa outside the house, Lt. Leuma announced the officers' presence and their possession of a search warrant.5 As the officers approached the house, Pepe disappeared into his home.
Immediately thereafter, officers entered the Lam Yuen residence through an open front door, finding Pepe locked inside his bedroom. The police knocked on the bedroom door and announced their presence and intent to search the house multiple times. After receiving no response, the police kicked the door open, finding Pepe on his bed. A struggle ensued, forcing the officers to restrain Pepe with handcuffs. During this time, Officer Va'a Sunia (“Officer Sunia”) asked Pepe if any controlled substances were in the house. Pepe responded “I got things.” After removing Pepe from the house, the police conducted a search of the Lam Yuen residence.
Ultimately, the search produced a significant amount of marijuana, a .22 caliber pistol, several types of ammunition, money, drug paraphernalia, and fire works (“cherry bombs”). The police also discovered a women's wallet, identified by Kolopa to be her’s, which contained a small plastic bag of marijuana.6 All of these items were seized from the bedroom of the Lam Yuen residence. The police also noticed pallets of cement blocks across from the Lam Yuen home, and a concrete base for a second house in the immediate vicinity. Subsequent to the search, the police arrested both Pepe and Kolopa.7
After their arrest, on June 6, 2005, American Samoa Government (“ASG”) charged Defendants with unlawful possession of controlled substances (marijuana), possession of an unlicensed firearm, and unlawful possession of ammunition. On June 24, 2005, Judge Elvis R.P. Patea held a preliminary hearing and found probable cause to believe that *336Defendants committed the above crimes.
Defendants now seek to suppress all physical evidence seized from Pepe's residence, as well as any statements Defendants made that ASG intends to use against them. Defendants claim that the search and seizure violated Article I Section 5 of the Revised Constitution of American Samoa, and the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution. Having conducted a hearing on the matter, we deny Defendants' motion to suppress physical evidence, grant in part and deny in part Pepe's motion to suppress his statements, and decline to address Kolopa's motion to suppress her statements.
Discussion
Regarding the June 3 search and seizure, Defendants argue the following: (1) the warrant failed to comply with the particularity requirement of the Fourth Amendment and the Leon good-faith exception to the warrant requirement is inapplicable to this case; thus, the police lacked probable cause to search the structure that Pepe was found in; (2) the police failed to adhere to the “knock and announce” rule; (3) the police lacked probable cause to search Kolopa's wallet; and (4) Kolopa's arrest was unconstitutional. Additionally, Defendants contend that (5) all statements obtained from Defendants were taken in violation of Miranda v. Arizona and therefore must be suppressed. We address each of these claims in turn.
I. Particularity of the Warrant
Defendants argue that the warrant failed to comply with the Fourth Amendment's particularity requirement because the warrant's description of Pepe's house as a “single-story structure, part of which is still under construction” inaccurately depicts the home searched, as no part of Pepe's home was under construction. They contend that the executing officer was not able to easily locate and identify the specified premises because the house described in the warrant did not exist. Thus, according to Defendants, there was a high probability that the police would search any structure where Pepe could be found, regardless of whether such structure was described in the warrant. Indeed, Defendants assert that the police searched several residences before finding Pepe's home, clearly indicating confusion over what house was to be searched. Defendants further argue that the officers are not entitled to the good-faith exception under United States v. Leon, 468 U.S. 897 (1984), because the warrant is so facially deficient as to make the officers' reliance upon it not objectively reasonable.
*337Resolving this claim turns on the following questions: (i) whether the warrant itself described the place to be searched with sufficient particularity; and (ii) if the warrant lacked particularity, does the good faith exception of Leon apply to this case.
A. Legal Standard
In order to be valid, a search warrant must describe with particularity the place to be searched. Rev. Const. Am. Samoa, art. I, § 5; U.S. Const, amend. IV. A warrant's description satisfies the particularity requirement when “the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503 (1925); Maryland v. Garrison, 480 U.S. 79, 84 (1987) (re-stating the standard as “whether the [description], . ,enable[s] the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.”). The purpose of this rule is to prevent blanket, open-ended searches. Garrison, 480 U.S. at 84.
In Garrison, a search warrant was issued for “the premises known as 2036 Park Avenue third floor apartment.” Id. at 80. However, when the officers arrived, they found two separate dwellings on the third floor of 2036 Park Avenue. Id. Although the officer's search warrant was for a McWebb's apartment, it was not until after the officers finished searching Garrison's apartment and found contraband that they realized they had been searching the wrong apartment without warrant or authorization. Id. Nevertheless, the Court reasoned that a search warrant's validity “depends upon whether the officers” failure to realize the overbreadth of the warrant was objectively understandable and reasonable.” Id. at 88. The Court found that the officers' actions were understandable and reasonable “because the facts available to the officers at the time the warrant was issued suggested no distinction between McWeb's apartment and the third floor residence.” Id. See also United States v. Maneti, 781 F.Supp. 169, 179 (W.D.N.Y. 1991) (search warrant inaccurately identifying place of search will, nevertheless, be upheld against particularity challenge if warrant describes structure as it was known or should have been known to officer after reasonable inquiry under the circumstances).
In light of Garrison and Steele, as well as other federal court decisions regarding the requisite description for a valid search warrant, the standard seems rather low. That is, the description will be adequate as long as an officer is able to identify and find the location with a reasonable effort. See e.g., United States v. Hassell, 427 F.2d 348, 349 (6th Cir. 1970); United States v. Judd, 889 F.2d 1410, 1413 (5th Cir. *3381989); United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989). Such a determination naturally includes looking at the circumstances surrounding the search, such as an officer's knowledge of the defendant and the place to be searched, whether a defendant(s) was in control of all the premises searched, and whether the place intended to be searched was actually searched. See United States v. Burke, 784 F.2d 1090, 1093 (11th Cir. 1986) (search upheld where affiant was on the scene and pointed out house to be searched when an error was discovered in the address); United States v. Alexander, 761 F.2d 1294, 1300-01 (9th Cir. 1985) (warrant valid when it authorized search of street address with several buildings where defendants are in control of the whole premises); United States v. Gitcho, 601 F.2d 369, 372 (8th Cir. 1979) (search valid in part because premises searched were those intended to be searched); see also Gahagan, 865 F.2d at 1498-99 (number of other residents in the area affects possibility of a mistaken search of another premises).
B. Analysis
Against the backdrop of the cited case law, we find that the warrant's description of Pepe's home is sufficient to validate the warrant. While we agree with Defendants that the warrant's description of the place to be searched is not completely accurate, this error is not fatal.8 Indeed, the additional circumstances surrounding the search, including the nature of the property, the relevant information known by the executing officers in this case, and the risk of mistakenly searching other premises, clearly support a finding that the description was valid.
First, we note that the American Samoa landscape and the remote location of many homes, combined with the lack of street names and addresses, malees property description less precise than the sort of particularity achievable on the U.S. mainland. Such is the case here. The Lam Yuens lived up in the mountains in the hinterlands of Pava'ia'i adjacent to Aoloau, in an area hidden from the main road. Additionally, the Lam Yuen's buildings are comprised of multiple plantation/shack-type structures which do not readily lend themselves to the precise sort of description that residential buildings of a more permanent nature are capable of. Thus, the fact that the Cl mistakenly described Pepe's house is unremarkable. Considering that a separate house, adjacent to the Lam Yuen residence, is currently under construction, and that the Cl also witnessed Pepe trading marijuana for building supplies, it is understandable that the Cl associated the ongoing construction with *339Pepe's residence. Moreover, having visited the Lam Yuen property multiple times and having seen Pepe and Kolopa sell drugs out of their home, we have no doubt that the Cl's description referred to the house actually searched.
Second, we find that the officers believed the search warrant accurately described the Lam Yuen's home, and that they in fact intended to search only that structure. There is no dispute that probable cause existed to search the Lam Yuen residence. Further, there is no dispute that the Lt. Leuma and other officers knew that the warrant was for the Lam Yuen residence. Indeed, both Lt. Leuma and Officer Sunia were familiar with Pepe; they had been involved in previous cases against him and were aware of his previous drug and assault convictions. In fact, the affidavit listed two of these convictions. Consequently, we find that Lt. Leuma's belief that the warrant accurately described Pepe's home was objectively reasonable. Based on his testimony, we are satisfied that the warrant described the structure as it was known or should have been known to Lt. Leuma after reasonable inquiry under the circumstances. Likewise, we believe the officers planned to search only Pepe's home and had no intention of searching additional property.
Third, we find little risk of officers mistakenly searching other premises. As previously stated, given Lt. Leuma's and Officer Sunia's knowledge of Pepe and his history of illegal activities, we believe they sought only to search his home. Indeed, Lt. Leuma stated that he and his men went directly to the Lam Yuen residence, indicating that the description in the warrant was ample to allow the officers to identify and ascertain Pepe's home. Further reducing the risk of an unauthorized search of another house is the fact that there were no other residents in the area except for Pepe's daughter, White Lam Yuen, whose home is located nearby. White Lam Yuen claims that a second set of officers, not including Lt. Leuma and Officer Sunia, entered into her house looking for Pepe. Lt. Leuma, however, testified that he did not believe that White Lam Yuen's home was searched. Based upon the testimony of these two witnesses, we are not persuaded that officers actually searched her home, or that these officers mistook her home for the Lam Yuen residence.9
*340Regardless, this is not a case where police officers conducted a blanket search of a street or neighborhood, searching the homes of various individuals or families in the hope of coming across the correct structure. The officers approached the Lam Yuen property seeking to find and search Pepe's home, a task which they succeeded in doing. The fact that the inaccurate description of Pepe's house created a slight risk of a mistaken search does not operate to invalidate the search.
Lastly, we note that Defendants' reliance on United States v. Collins, 830 F.2d 145 (9th Cir. 1987), and United States v. Ellis, 971 F.2d 701 (11th Cir. 1992), cases where evidence was suppressed because the warrant did not describe with particularity the place to be searched, is misplaced. First, Defendants contend that these cases impose a strict interpretative standard for a warrant's description of the place to be searched, as well as requiring that officers must search the place described and not some other place. This is simply wrong. Rather, Collins and Ellis involved extreme police error in describing the place to be searched, deficiencies that made the potential for a general search significantly greater. Second, Defendants argue that these cases are very similar to the one at hand when in fact they are inapposite. The circumstances in Collins and Ellis can be distinguished quite easily from those surrounding the search of the Lam Yuen residence.
Regarding the search warrant in Collins, the police got the street address wrong twice, got the side of the street wrong once, and they lacked a physical description that would allow them to find the correct house. 830 F.2d at 145-46. The Ninth Circuit, in suppressing the evidence seized from the search, pointed out that the officers were reckless, lacked common prudence, did not carry out their duty to get the right particulars, and in fact misled the judge issuing the warrant. Id. at 146.
None of these factors are present here. Lt. Leuma, using the best information available to him at the time, described in the affidavit where he believed Pepe to reside. He in no way misled Judge Ward and in fact, provided a physical description that led to the correct area. Although he erroneously depicted Pepe's home as being under construction— construction that was in fact taking place on a lot adjacent to the Lam Yuen residence — this one error in no way rises to the level of wrongdoing found in Collins.
In Ellis, the police realized they were searching the wrong mobile home, and after receiving information from its occupant, attempted to search a different mobile home not on the warrant. 971 F.2d at 702-03. Because the warrant neither gave a physical description of the place to be searched nor stated the name of the suspected criminal whose mobile home was to be searched, the court suppressed the evidence obtained in *341this second search. Id. at 703-04. The Ellis court noted that because the officers lacked knowledge that could help narrow the search, and because the only information found in the warrant was erroneous, they could not find that the warrant met the requisite standard for particularity. Id. at 704.
Here, there was no possibility of a blanket, open-ended search. The property where Pepe's home is located contains only structures belonging to Defendants and their daughter, White. Additionally, Lt. Leuma and Officer Sunia used their personal knowledge of Pepe — and that Pepe was the target of the search — to narrow the search and cure any deficiency in the warrant.
C. Conclusion
As stated above, to comply with the Fourth Amendment's particularity requirement, it is enough that an officer is able to identify and find the location described in the search warrant with a reasonable effort. We find that the warrant sufficiently described Pepe's home so that the executing officers could reasonably ascertain the home to be searched. Accordingly, we deny Defendants' motion to suppress based on a failure to meet the particularity requirement.
Having determined that the warrant described the Lam Yuen residence (Pepe's home) with sufficient particularity, we find it unnecessary to determine whether Leon's good faith exception is applicable.
II. Failure to Adhere to “Knock and Announce” Rule
The knock and announcement requirement is an element of the Fourth Amendment reasonableness inquiry involving searches of property. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). It requires that law enforcement officers identify themselves and give notice of their authority and the purpose of their search before entering a dwelling. See id. at 931-34; 18 U.S.C. § 3109 (2005) (federal knock and announce statute permitting an officer to break into a house only after giving notice of his authority and purpose). This rule is designed to fulfill three purposes: (1) protect the safety of occupants of a dwelling and the police by reducing violence; (2) prevent the destruction of property; and (3) protect the privacy of occupants. Bonner v. Anderson, 81 F.3d 472, 475 (4th Cir. 1996).
Here, Defendants contend that police officers stormed the Lam Yuen residence without warning or announcement. Yet Defendants provide no evidence or testimony in support of this allegation. Rather, Lt. Leuma testified that upon approaching the Lam Yuen residence and seeing Pepe *342and Kolopa outside the house, the officers announced their presence and that they possessed a search warrant. Seeing the officers, Pepe immediately ran into the house and locked himself inside a back room. The police then entered the dwelling through an open front door in pursuit. In view of Lt. Leuma's announcement, Pepe's flight into the house, the readily disposable nature of the contraband named in the warrant, and the fact that the door was wide open, it was more than reasonable for the police to pursue Pepe through the open front door. Clearly, Pepe's and Kolopa's visual awareness of the police officers' presence, in conjunction with Lt. Leuma's announcement, obviated any need to knock. Thus, with respect to the police officers' entry through the open front door, we find the knock and announce rule satisfied, and the purposes behind the requirement fulfilled.
Furthermore, we also find the officers' actions inside the Lam Yuen residence to be reasonable. Upon entering the Lam Yuen residence and finding Pepe locked in a back room, the police repeatedly knocked on the door and announced their purpose. Only after receiving no response did they kick down the door and enter Pepe's bedroom. Additionally, because the police were familiar with Pepe's involvement with marijuana and his prior conviction of assault with a rifle, the officers had every reason to believe that Pepe was attempting to hide or destroy evidence, or preparing himself for armed resistance.
Accordingly, we deny Defendants' motion to suppress based on a failure to knock and announce.
in. Probable Cause to Search Kolopa's Wallet
A. Staleness of Probable Cause
Probable cause to search cannot be based on stale information that no longer implies that the item sought will be found in the place to be searched. United States v. Shomo, 786 F.2d 981, 984 (10th Cir. 1986); United States v. Haimowitz, 706 F.2d 1549, 1554-55 (11th Cir. 1983). The information's staleness depends not only upon the number of days between the facts relied upon the issuance of the warrant, but also upon the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. See American Samoa Gov't. v. Leoso, 25 A.S.R.2d 103, 105 (Trial Div. 1993) (citing Shomo, 786 F.2d at 984).
Kolopa argues that the information provided in the affidavit regarding her alleged criminal activity was “stale” at the time Judge Ward issued the warrant. She contends that because the affidavit is vague as to when Kolopa was seen handling, selling or trading marijuana — sometime *343between January 2005 and May 2005 — the time lapse between the confidential informant's observations and the issuance of the warrant could be as long as 5 months, making the information stale. As a result, she argues that the search warrant was invalid towards her belongings. In other words, because the search of the woman's wallet — later determined to belong to Kolopa — was beyond the scope of the search warrant, the police lacked probable cause to search it.
We disagree with this conclusion. First, the search warrant was issued for “the house of Pepe Lam Yuen,” not the house of Kolopa Lam Yuen, meaning that the warrant was directed solely at Pepe. Second, probable cause for issuing the warrant was based solely on Pepe's handling, selling, and trading of marijuana. The mention of Kolopa selling drugs in the affidavit merely reinforced the notion that illegal drug activity was taking place at Pepe's home. Therefore, because the warrant did not apply to Kolopa, any information regarding her activity cannot be stale. Thus, at least on this basis, probable cause is not lacking to search the woman's wallet.
B. No Probable Cause Incident to Search of Lam Yuen Residence
Searches are limited to areas where the objects of the search are reasonably likely to be found. See United States v. Ross, 456 U.S. 798, 824 (1982) (the scope of a search “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”); see also Garrison, 480 U.S. at 81. Determining Fourth Amendment reasonableness and probable cause is a factual inquiry, where we look to see whether the officer's response was understandable and reasonable according to the particular situation at hand. See Wong Sun v. United States, 371 U.S. 471, 479 (1963) (the quantum of information necessary to constitute probable cause must be measured by the facts and circumstances of the particular case).
In this case, Kolopa argues that there was no probable cause to search the woman's wallet given the scope of the search warrant (i.e., search of Pepe's home). She contends that because of its small size, that it clearly did not belong to Pepe, and that it was not discovered in the bedroom where Pepe was found, the police lacked probable cause to search the wallet.
We disagree. Marijuana, the principal object of the search, can be found in various places. This includes a woman's wallet, where a small bag of marijuana or several “joints” could easily be stored. Accordingly, the police acted reasonably in searching the wallet, as they clearly had grounds for believing that marijuana might be found inside. It is of little consequence that the wallet appeared to belong to a woman, or that it was *344discovered outside of the bedroom where the police found Pepe. The search warrant covered the entire Lam Yuen residence, including all items that might contain marijuana, and all areas of the house where marijuana might be stored. Thus, we find that probable cause existed to search the woman's wallet.
IV. Constitutionality of Kolopa's Arrest
Additionally, Kolopa argues that her arrest was constitutionally impermissible, as the police had no way of knowing that the marijuana found in the wallet actually belonged to her. Kolopa asserts that the police had no reason to believe that she was in control of the marijuana or other contraband seized during the search. We disagree with this assertion as well. The police, upon finding various forms of identification belonging to Kolopa in the woman's wallet, had good reason to believe that the marijuana found inside the wallet was her’s. Moreover, given that she lived in the same house as Pepe, shared the same bedroom, and had access to the box containing the contraband, the police also had probable cause to arrest her on these grounds.
The possibility that the marijuana or contraband might belong to someone else (i.e., Pepe) does not nullify the officers' probable cause determination. We remind Kolopa that probable cause to arrest is not the equivalent of a conviction. See Brinegar v. United States, 338 U.S. 160, 175 (1949) (while “more than bare suspicion” is necessary, there need not be “evidence which would justify condemnation or conviction.”); see also Maryland v. Pringle, 540 U.S. 366, 371 (2003). Indeed, standards such as “proof beyond a reasonable doubt or by a preponderance of the evidence” have no place in probable cause determinations. Illinois v. Gates, 462 U.S. 213, 235 (1983). Consequently, the only issue for the Court to decide is whether or not the officers had probable cause to arrest Kolopa, not whether the marijuana and contraband was actually her’s. We find that probable cause did exist, and thus the arrest is valid.
V. Suppression of Defendants' Statements
A. Statements as Fruits of an Illegal Search Warrant
Defendants argue that any statements made contemporaneous with the search are fruits of an illegal search warrant and therefore must be suppressed. Because we find the search warrant valid, we deny Defendants' request to suppress their statements on this ground.
*345B. Statements Made Absent Miranda Warnings
Incriminating statements made during a custodial interrogation absent Miranda warnings are not admissible. See American Samoa Gov't. v. Malota, 5 A.S.R.2d 101 (Trial Div. 1987) (oral confession not admissible when given during custodial interrogation before police administered Miranda warnings). Custodial interrogation, however, is a precondition to the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 478 (1962); American Samoa Gov't. v. Fealofa'i, 24 A.S.R.2d. 10 (Trial Div. 1993) (a statement made by a person not in a custodial situation is not subject to ■ suppression on Miranda grounds). Accordingly, this excludes from Miranda's scope “general on-the-scene questioning” and “volunteered statements of any kind.” Id.
Unfortunately, the task of defining “custody” is a slippery one. Generally speaking, courts look to whether, in light of all the circumstances, a reasonable person in the suspect's position would feel “deprived of his freedom of action in a significant way” while being interrogated. United States v. Luther, 521 F.2d 408, 410 (9th Cir. 1975); see also Stansbury v. California, 511 U.S. 318, 323 (1994) (reiterating that the test for determining whether a person being questioned by police is in a custodial setting is an objective one). If a person is indeed in custody, even unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must be excluded from evidence under Miranda. Oregon v. Elstad, 470 U.S. 298, 307 (1985).
However, an individual questioned in his home is generally deemed not in a custodial setting. See generally Beckwith v. United States, 425 U.S. 341 (1976); see also Gov't. of Virgin Islands v. Berne, 412 F.2d 1055, 1059-60 (3d Cir. 1969). This limitation is subject to exception where the manner of approach employed by police officers, or the tone of police questioning while at an individual's home, indicates the individual has little or no freedom of action, even in his own home. United States v. Hall, 421 F.2d 540, 545 (2d Cir. 1969); see also Orozco v. Texas, 394 U.S. 324, 325 (1969). Where pressure is exerted in some way to detain the individual, as when officers surround the individual's home with no intention of letting the individual escape, greet the individual at the door with a drawn gun, place the individual in handcuffs, and/or make physical contact with the individual, a custodial setting may be established. See People v. Hentz, 394 N.E.2d 586, 589 (Ill. 1979) (custodial setting found where officers had no intention of letting suspect go and at least one of the officers had a gun drawn); State v. Intogna, 419 P.2d 59, 65 (Ariz. 1967) (suspect found to be in custody where officer had a gun drawn); United States v. Averell, 296 F.Supp. 1004, 1019-20 (E.D.N.Y. 1969) (suspect placed in handcuffs found to be in custody); State v. Saunders, 435 P.2d 567-68 (Ariz. 1967) (custodial *346setting found where police officer placed hand on defendant's arm and began leading him out of house to police car); see also American Samoa Gov't. v. Taylor, 19 A.S.R.2d 105, 106 (Trial Div. 1991) (suspect not in custody where he was not arrested, handcuffed, physically restrained or told directly or indirectly he was not free to go). Here, Defendants argue that they were forcibly detained at some time prior to or during the execution of the search warrant, and thus they were not in custody. They contend that while they were being detained by several police officers, they were asked questions designed to elicit incriminating responses. In response, both Pepe and Kolopa made incriminating statements. They assert that because they were not given Miranda warnings prior to the questioning, and because their statements were in response to specific questions, the statements must be suppressed.
Regarding Pepe, he moves to suppress two inculpatory statements. The first of the two statements occurred before the search took place, and consisted of a one-sentence response Pepe made when Officer Sunia asked him “Do you have any controlled substances here?” Pepe angrily responded “I got things.” This exchange took place while Pepe was physically resisting the police officers' attempt to escort him outside, was belligerent in nature, and was made by Pepe of his own free will. Although no Miranda warnings had been given before Officer Sunia asked him “Do you have any controlled substances here?,” we still find the statement admissible as evidence. We believe, in light of all the circumstances, that Pepe was not in custody at the time he made this statement. The statement, because it was belligerent in nature and offered in such an excited state, bears more resemblance to a spontaneous statement uttered outside of a custodial setting. Moreover, Officer Sunia posed the question before the search took place and thus before any contraband was found, indicating that it was more of a general on-the-scene question than an actual interrogation. Accordingly, Pepe's pre-search statement should not be suppressed.
Second, upon completion of the search, and in response to Officer Sunia telling Pepe what contraband the officers had found in his home, Pepe remarked “That's my stuff’ in Samoan. At the time the statement was made, Pepe was handcuffed and surrounded by police officers. Pepe was clearly in custody, as it is clear that the police had no intention of letting Pepe escape. Thus, Officer Sunia should have given the Miranda warnings to Pepe before attempting to elicit an incriminating statement. Because Officer Sunia failed to do so, we must suppress Pepe's post-search statement.
With respect to Kolopa, there is not enough information in the record to address the exclusion of alleged inculpatory statements she may have made. In fact, no evidence at all as to the character or content of such *347statements was provided on the record. While they may exist, and while they may have been made absent verbal warning of her Miranda rights, we refuse to engage in hypothetical discussions of whether there were statements and whether they should be suppressed.
Order
We find that the officers' entiy into Pepe's home was permissible, Kolopa's arrest was constitutional, and the search of Pepe's house constituted a valid execution of a valid search warrant. Consequently, we deny Defendants' motion to suppress the physical evidence seized from Pepe's home.
Furthermore, we deny Pepe's motion to suppress the pre-search statement, but grant his motion to suppress the post-search statement, as it was made in a custodial setting absent Miranda warnings. Regarding any incriminating statements Kolopa may have made, we decline to speculate.
It is so ordered.
Throughout this order, we also refer to Pepe's house as “the Lam Yuen residence.” We use these terms interchangeably.
The affidavit specifically refers to a Papauta Lam Yuen. At the hearing, Lieutenant Paulo testified that he knew Papauta to be a nickname of Kolopa Lam Yuen. Thus, both names refer to the same person.
Additionally, Pepe has also been convicted of Assault 3rd (a shooting incident involving a firearm) in CR No. 18-81; resisting arrest and eluding police officers in CR No. 51-87; and of contempt by the Land and Titles Division in Lualemaga v. Asifoa, LT No. 29-86 (Consolidated).
White Lam Yuen, Defendants' daughter, testified that another group of officers entered both of her houses without her permission and without producing any documentation. Her home is a short distance from the Lam Yuen residence and consists of two structures-a living house and a dining *335house. Lieutenant Paulo testified that another group of officers did indeed come from the opposite side of the mountain, but he believed they were given consent to enter the houses. He also stated that he did not believe that either of the houses were searched.
Additionally, upon arriving at the Lam Yuen residence, police officers observed a man in an ASPA truck who was attempting to drive away from the area. After finding marijuana in his possession, the police arrested him. However, ASG chose, at this time, not to file charges against him.
The wallet also contained various forms of identification belonging to Kolopa.
Before arresting Pepe, Officer Sunia informed Pepe of the items (marijuana, firearms, money, ammunition) found in the bedroom, to which he responded “that's my stuff’ in Samoan. It was at that time that Officer Sunia advised Pepe of his rights and arrested him.
Defendants themselves point out that “search warrants must be tested in a common sense and realistic, rather than a hypertechnical, manner.” United States v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985). Yet, inconsistently, Defendants propose a very technical interpretation of the standard.
We again point out that without specific addresses, identifying a home in American Samoa, especially one found in village backlands away from main road up in the mountains, is not an exact science. Thus, it is perfectly reasonable for the police to approach the Lam Yuen property from two different entry points. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486981/ | ORDER GRANTING JOINT MOTION FOR RECONSIDERATION
Background
On April 7, 2005, Plaintiff American Samoa Government (“ASG”) charged Defendant Sitivi Satini (“Sitivi”) with the first degree murder of Niko Seiuli.1 Subsequent to being charged, Sitivi’s family performed an ifoga on his behalf. On May 23, ASG and Sitivi filed a plea agreement with the Court, whereby Sitivi would plead guilty to a reduced charge of second degree murder. The plea agreement also noted that at the sentencing hearing ASG and Sitivi would request that, pursuant to A.S.C.A. § 46.1910(b), the Court reduce the crime from a class A felony to a class B felony in light of the ifoga. On May 25, in accordance with the plea agreement, Sitivi pled guilty to second degree murder.
In the July 8th sentencing hearing, this Court convicted Sitivi of second degree murder. However, we denied the parties’ request to reduce the crime from a class A to a class B felony, and instead imposed a 30-year prison sentence, with possible parole after 10 years. Both parties now move together for reconsideration of the sentencing order, asking for a rehearing on Sitivi’s sentence and repeating their request that the Court lessen the crime from a class A felony to a class B felony.
Discussion
*349ASG and Sitivi contend that the prosecution’s actions at the sentencing hearing were incongruent with the plea agreement, and thus a rehearing on the sentencing is warranted. As stated above, the plea agreement provided that both parties would ask the Court to reduce the level of the crime pursuant to A.S.C.A. § 46.1910(b). This section permits the Court to reduce the extent or duration of a sentence by one classification if an ifoga ceremony is performed. Both parties assert that the prosecution failed to argue this point, and instead urged the Court to sentence Sitivi to the maximum allowed under the law.
Although both parties agree that the prosecution’s remarks were unintentional, Sitivi contends that requesting the maximum penalty constituted a breach of the plea agreement. Therefore, Sitivi argues that he is entitled to relief. We agree. In Santabello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court stated that “[w]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Here, Sitivi’s plea was induced by the prosecution’s promise to request a lesser penalty. Thus, when the prosecution failed to fulfill this promise, they breached the agreement. It matters not whether the breach was intentional or inadvertent. Either way, Sitivi is entitled to relief.
This case presents the question, left unanswered by the Supreme Court in Santabello, of the appropriate remedy when the prosecution breaches a plea agreement. See id. at 263 (“The ultimate relief to which petitioner is entitled we leave to the discretion of the [trial] court, which is in a better position to decide [the remedy].”). Both parties argue that reconsidering our sentence, including a rehearing on the matter, is the appropriate remedy. In the alternative, if the Court decides not to reconsider his sentence, Sitivi asks that we grant leave to consider requests for additional relief such as withdrawing the guilty plea or sentencing by a different panel of judges.
After careful consideration of the parties’ arguments, we hold that the most appropriate remedy is to require the prosecution to specifically perform its end of the plea agreement.2 Having chosen specific performance as a remedy, we also hold that it is best achieved through sentencing by a different panel of judges. See Santabello, 404 U.S. at 263 (if specific performance of the plea agreement is required, petitioner should be resentenced by a different judge). Thus, in a strict sense, we grant the joint motion for reconsideration, even though the relief fashioned is slightly different than that requested. While the original *350panel of sentencing judges will not be ‘reconsidering Sitivi’s sentence,’ both parties will be given an opportunity to reargue their case before a new panel of judges. In this way, Sitivi will be given the full benefit of his bargain under the plea agreement.3
Order
Using the discretion given this Court, we grant the joint motion for reconsideration and order a new hearing on Sitivi’s sentence. The sentencing hearing will be heard by a different panel of judges. When the rehearing is scheduled, the Clerk of the Court will notify the parties of the specified date.
It is so ordered.
ASG also charged Co-defendant Thomas Meredith with the first-degree murder of Niko Seiuli (CRNo. 29-05). His case is proceeding to trial.
We find no basis for allowing Sitivi to withdraw his plea.
We note that any sentencing recommendation made or not made by ASG would not have influenced our sentencing decision. Thus, reconsidering our decision and rehearing the matter would waste the court’s time and deprive Sitivi of any real “relief.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482409/ | Filed 11/8/22 P. v. Lyons CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315379
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA092829)
v.
ANDRE LYONS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Hayden A. Zacky, Judge. Affirmed.
Richard B. Lennon and Anna Rea, 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, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In an information filed by the Los Angeles County District
Attorney’s Office, defendant and appellant Andre Lyons was
charged with fleeing a pursuing peace officer while driving
recklessly (Veh. Code, § 2800.2) and hit and run driving resulting
in injury to another person (Veh. Code, § 20001, subd. (b)(1)). A
jury convicted him of both counts, and he was sentenced to two
years eight months in state prison. Defendant appeals arguing
that the trial court erred in denying his request for an instruction
that voluntary intoxication can prevent a defendant from forming
the specific intent to evade the police.
We affirm. Because there was no evidence that defendant
was intoxicated, much less that any intoxication affected his
ability to form the requisite specific intent, we conclude that the
trial court did not err.
FACTUAL BACKGROUND
On May 6, 2019, after receiving a report of a crime,
Los Angeles Police Department (LAPD) Officer Brent Lamoureux
noticed defendant’s car at a stop sign. Officer Lamoureux
activated his overhead lights and stopped the car because it
matched the location and description in the report. Officer
Lamoureux walked up to the driver’s side window and spoke to
the driver (defendant). Defendant’s face looked like he had been
in a fight. He had redness around his eyes and scratches, and he
was not speaking coherently. Officer Lamoureux ordered
defendant to stop and get out of his car. Defendant did not
comply. He spoke with Officer Lamoureux for about 45 seconds.
During this time, another patrol car approached without blocking
defendant’s car.
When ordered to get out of his car, defendant said that he
was injured and innocent. Defendant asked the two officers if
2
they were “LAPD officer[s].” Defendant was told “[y]es.”
Defendant asked the officers numerous questions about why he
was stopped, whether he was free to go, and whether he was
being arrested. In response, the officers repeatedly told him he
was being detained and that he was not free to go. At one point,
defendant said “[d]on’t shoot me.” The officers told him that he
was not going to be shot and that the officers wanted to hear his
side of the story. Just as another patrol car tried to impede
defendant’s escape route, he quickly drove away while saying, “I
don’t have a story; am I being detained? Shoot me.” Based on his
observations, Officer Lamoureuz believed that it was “possible”
that defendant was under the influence of drugs or alcohol.
Officers chased after defendant’s car with lights and sirens
activated. During the chase, after running several red lights and
stop signs, defendant collided with another car. The other car
flipped over a few times and the driver sustained injuries.
Defendant was stopped after he turned onto a cul-de-sac and a
patrol car performed a “pit maneuver” that caused defendant to
lose control of his car. Defendant was taken into custody.
DISCUSSION
I. Relevant proceedings
During trial, defendant requested an instruction regarding
voluntary intoxication (CALCRIM No. 3426) because it was
unclear what had caused him to appear injured or intoxicated.
Citing People v. Williams (1997) 16 Cal.4th 635 (Williams) and
People v. Roldan (2005) 35 Cal.4th 646, disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, the
prosecutor argued there was insufficient evidence that defendant
was intoxicated or that any intoxication altered his ability to
form specific intent. Defense counsel conceded that there was no
3
evidence regarding when or what intoxicants defendant
consumed, but argued that his appearance and demeanor were
evidence of intoxication. The prosecutor countered that even
assuming some intoxication, it did not alter his ability to form the
specific intent to evade the police. The prosecutor pointed out
that defendant was able to speak with the officers before
negotiating a five-minute high-speed chase going around civilian
vehicles and avoiding police vehicles.
The trial court ruled there was insufficient evidence to
warrant the requested instructions and denied defendant’s
request for a voluntary intoxication instruction.
II. Relevant law
Evading an officer with willful disregard requires proof of
specific intent to evade a pursuing officer. (Veh. Code, § 2800.1,
subd. (a) [“Any person who, while operating a motor vehicle and
with the intent to evade, willfully flees or otherwise attempts to
elude a pursuing peace officer’s motor vehicle, is guilty . . . ”].)
Where a specific intent crime is charged, evidence of voluntary
intoxication may be admissible for evaluating whether the
defendant actually formed the requisite specific intent. (People v.
Horton (1995) 11 Cal.4th 1068, 1118–1119 (Horton); Pen. Code,
§ 29.4, sub. (b).) However, an instruction on voluntary
intoxication should not be given unless supported by substantial
evidence that the defendant was intoxicated to the extent it
actually affected his ability to form the requisite specific intent.
(Williams, supra, 16 Cal.4th at p. 677, citing Horton, supra,
11 Cal.4th at p. 1119; People v. Roldan, supra, 35 Cal.4th at
p. 715.)
“In determining whether the evidence is sufficient to
warrant a jury instruction, the trial court does not determine the
4
credibility of the defense evidence, but only whether ‘there was
evidence which, if believed by the jury, was sufficient to raise a
reasonable doubt.’” (People v. Salas (2006) 37 Cal.4th 967, 982.)
The California Supreme Court has identified four
“interrelated ways” to determine if a defendant is intoxicated:
(1) eyewitness testimony about a defendant’s behavior; (2) expert
testimony on the predictable pharmacological effects of the
ingested substance; (3) evidence of the defendant’s consumption
of inordinate quantities of the intoxicating substance; and (4) the
common knowledge of jurors of the effect of the intoxicants.
(People v. Kaurish (1990) 52 Cal.3d 648, 696.)
As the parties agree, we review claims of instructional
error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
III. Analysis
Applying these legal principles, we conclude that the trial
court did not err. At trial, an LAPD officer testified that
defendant looked like he had been in a fight, that he had some
trouble saying certain words, that his demeanor was “bizarre,”
and that it was “possible” that defendant was intoxicated.
However, there was no evidence that defendant had actually
consumed any alcohol or other intoxicating substances, nor was
there evidence about when, what, or how much he consumed.
There was no expert testimony about the predictable
pharmacological effects of any intoxicants. And, defendant failed
to present any eyewitnesses to his actions before the police stop.
Thus, there was no substantial evidence that defendant was in
fact voluntarily intoxicated. It follows that the trial court
properly denied his request for a voluntary intoxication
instruction.
5
Even if the officer’s testimony amounted to substantial
evidence that defendant was voluntarily intoxicated, the trial
court properly refused the requested instruction because there
was no substantial evidence that the intoxication actually
affected defendant’s ability to form the specific intent to evade
the police. Rather, the evidence showed that defendant was well-
aware that he was evading police officers. After all, he had just
identified them as LAPD officers at the traffic stop. He
repeatedly asked if he was under arrest, further showing that he
knew he was speaking to police officers. And, he sped away only
after it was apparent that the police were attempting to impede
his ability to drive away so that he could be arrested.
Moreover, multiple police cars with activated lights and
sirens pursued defendant. He persisted in trying to flee the
police even after he collided with another motorist. In fact,
defendant did not cease fleeing until he was physically stopped.
Under these circumstances, the trial court properly refused the
request for a voluntary intoxication instruction. (Williams,
supra, 16 Cal.4th at pp. 677–678 [“[a]ssuming this scant evidence
of defendant’s voluntary intoxication would qualify as
‘substantial,’ there was no evidence at all that voluntary
intoxication had any effect on defendant’s ability to formulate
intent”].)
In light of this conclusion, we reject defendant’s contention,
raised for the first time on appeal, that the denial of the
voluntary intoxication instruction deprived him of his
constitutional right to present a defense.
IV. Harmless error
Even if the trial court had erred in failing to instruct on
voluntary intoxication, which it did not, any such error was
6
harmless. Contrary to defendant’s erroneous assertion,1 the
failure to instruct on intoxication is “subject to the usual
standard for state law error: ‘the court must reverse only if it
also finds a reasonable probability the error affected the verdict
adversely to defendant.’ [Citation.]” (People v. Mendoza (1998)
18 Cal.4th 1114, 1134–1135; see also People v. Pearson (2012)
53 Cal.4th 306, 325 & fn. 9 [failing to give voluntary intoxication
instruction did not deprive the defendant of federal constitutional
rights].) As discussed above, there was little, if any, evidence
defendant was in fact intoxicated, and no evidence that any
alleged intoxication affected his ability to form the intent to
evade the police. To the contrary, the evidence showed that
defendant was aware that he was being detained by law
enforcement and specifically intended to evade the police and
avoid arrest. For these reasons, it is not reasonably probable
that, had the instruction been given, the jury would have found
that involuntary intoxication negated his intent to evade the
police. (People v. Covarrubias (2016) 1 Cal.5th 838, 898–899;
People v. Jandres (2014) 226 Cal.App.4th 340, 359.)
1 Even under the more stringent standard set forth in
Chapman v. California (1967) 386 U.S. 18, 23–24, defendant has
failed to demonstrate prejudice.
7
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
8 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482431/ | STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
STATE OF LOUISIANA NO. 2022 KW 0985
VERSUS
TODD TRIPP NOVEMBER 8, 2022
In Re: Todd Tripp, applying for supervisory writs, 23rd
Judicial District Court, Parish of Ascension, No.
43259.
BEFORE : WELCH, PENZATO, AND LANIER, JJ.
WRIT GRANTED. The district court’s ruling denying relator’s
motion to quash La. R.S. 14:91.5 as unconstitutional is vacated.
The matter is remanded to the district court to notify the
Attorney General of relator’s constitutional challenge and to
afford the Attorney General a meaningful opportunity to be heard
and participate in the proceedings. See State v. Broussard,
2018-0616 (La. App. ist Cir. 12/21/18), 268 So.3d 307.
JEW
AHP
WIL
COURT OF APPEAL, FIRST CIRCUIT
acl)
DEPUTY CLERK OF COURT
FOR THE COURT | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482415/ | Filed 11/8/22 P. v. Camarillo CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A163883
v.
JESUS CAMARILLO, (Solano County
Super. Ct. No. FCR331711)
Defendant and Appellant.
MEMORANDUM OPINION1
After a jury found Jesus Camarillo guilty of second degree murder
(Pen. Code, §§ 187, subd. (a), 189, subd. (b); count 1)2 and attempted murder
(§§ 187, subd. (a), 664; count 2) with true findings on firearm enhancements
to both counts (§ 12022.53, subds. (c), (d)), the Solano Superior Court
sentenced him to 47 years to life in prison. (People v. Camarillo (Jan. 20,
2021, A155577 [nonpub. opn.] pp. 1, 6–7.)3 This division affirmed his
Cal. Stds. Jud. Admin., § 8.1; Ct. App., First Dist., Local Rules of Ct.,
1
rule 19.
2 Undesignated statutory references are to the Penal Code.
We grant Camarillo’s unopposed request for judicial notice of this
3
court’s records of his prior appeal (Evid. Code, §§ 459, subd. (a), 452,
subd. (d)), including this division’s prior opinion, which we cite only for
background (Cal. Rules of Court, rule 8.1115(a), (b); The Utility Reform
Network v. Public Utilities Com. (2014) 223 Cal.App.4th 945, 951, fn. 3). We
1
convictions but remanded his case for resentencing under People v. Morrison
(2019) 34 Cal.App.5th 217 “to consider whether to strike the section
12022.53, subdivision (d) enhancement and impose a lesser enhancement in
connection with [his] second degree murder conviction.” (People v. Camarillo,
at pp. 27, 28.) The court did just that when it resentenced him to 42 years to
life, striking the section 12022.53, subdivision (d) enhancement to count 1
and imposing the subdivision (c) and subdivision (b) enhancements, staying
the latter under section 654. Camarillo now appeals the resentencing order
but for a different reason, arguing subsequent amendments to section 1170
require resentencing on count 2. The People agree he is at least entitled to a
new sentencing hearing on count 2, and so do we, though we reject his related
section 654 argument as to the stayed enhancement to count 1. We
independently review these statutes’ interpretation and application.
(People v. Childs (2013) 220 Cal.App.4th 1079, 1101.)
In 2021 the Legislature amended the determinate sentencing law to
mandate the lower term of imprisonment if any of three circumstances “was a
contributing factor in the commission of the offense,” including if the offender
“was a youth as defined under subdivision (b) of Section 1016.7 at the
time . . . .” (§ 1170, subd. (b)(6), (b)(6)(B), amended by Stats. 2021, ch. 731,
§ 1.3, No. 5E Deering’s Adv. Legis. Service, p. 609, eff. Jan. 1, 2022.)4 “A
‘youth’ [is] any person under 26 years of age on the date the offense was
committed.” (§ 1016.7, subd. (b), added by Stats. 2021, ch. 695, § 4, No. 5E
deny the remainder of his request as unnecessary (People v. Sands (2021) 70
Cal.App.5th 193, 201, fn. 3).
4 The amended law nevertheless exempts the court from imposing the
lower term if it would be “contrary to the interests of justice,” weighing the
aggravating and mitigating circumstances affecting sentencing. (§ 1170,
subd. (b)(6).)
2
Deering’s Adv. Legis. Service, p. 299, eff. Jan. 1, 2022.) Camarillo was 16 at
the time. (People v. Camarillo, supra, A155577, at p. 2.) We agree with the
parties that these amendments apply retroactively to him and that he is
entitled to a hearing on whether to resentence him to the lower term on
count 2. (People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
Camarillo also argues he is entitled to resentencing on the firearm
enhancements to count 1 under the 2021 amendment to section 654. (Stats.
2021, ch. 441, § 1, No. 5C Deering’s Adv. Legis. Service, p. 23, eff. Jan. 1,
2022.) The People correctly respond, “The sentence on a lesser enhancement
that was alleged and found true is stayed not by section 654 but by section
12022.53 itself.” “[T]he sentence enhancement provisions of Penal Code
section 12022.53 are not limited by the multiple punishment prohibition of
Penal Code section 654,” and “in enacting section 12022.53, the Legislature
made clear that it intended to create a sentencing scheme unfettered by
section 654.” (People v. Palacios (2007) 41 Cal.4th 720, 723, 727–728.)
Section 12022.53, subdivisions (b)–(d) mandate that their enhancements be
applied “[n]otwithstanding any other law . . . .” “The only limitation to this
rule is found in subdivision (f) . . . .” (People v. Palacios, at pp. 725–726 &
fn. 4, 731–733.)5 “Here, the broad and unambiguous scope of
‘[n]otwithstanding any other . . . law’ overrides the application, if any, of
section 654 to the imposition of punishment prescribed in section 12022.53,
subdivisions (b), (c) and (d).” (People v. Palacios, at p. 729; see People v.
Hutchins (2001) 90 Cal.App.4th 1308, 1314 [“where imposition of a firearms
5 “Only one additional term of imprisonment under this section shall be
imposed per person for each crime. If more than one enhancement per person
is found true under this section, the court shall impose upon that person the
enhancement that provides the longest term of imprisonment. . . .”
(§ 12022.53, subd. (f).)
3
use enhancement is made mandatory notwithstanding other sentencing laws
and statutes, it is error to apply section 654 to stay imposition of such an
enhancement” (italics omitted)]; Isaak v. Superior Court (2022)
73 Cal.App.5th 792, 798–799 [the phrase notwithstanding any other provision
of law is “ ‘a “ ‘term of art’ ” ’ ” with “ ‘special interpretative importance’ ”].)
“[A]fter a trial court imposes punishment for the section 12022.53
firearm enhancement with the longest term of imprisonment, the remaining
section 12022.53 firearm enhancements . . . found true for the same crime
must be imposed and then stayed” under section 12022.53, not section 654.
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.)6 To stay the section
12022.53, subdivision (b) enhancement under section 654 was error, though
harmless, applying section 12022.53, subdivision (f). The court can correct
the error on remand under the full resentencing rule, which “allows a court to
revisit all prior sentencing decisions when resentencing a defendant.”
(People v. Valenzuela (2019) 7 Cal.5th 415, 424–425; People v. Buycks (2018) 5
Cal.5th 857, 893–895.)
DISPOSITION
We reverse the Solano Superior Court’s order of September 14, 2021,
and remand for resentencing on Camarillo’s attempted murder conviction
under amended Penal Code section 1170, subdivision (b), and to stay the
Penal Code section 12022.53, subdivision (b) enhancement to Camarillo’s
second degree murder conviction under section 12022.53, subdivision (f).
6 “Often the sentencing statutes themselves will supply the answer
whether multiple enhancements can be imposed. . . . When this is the
situation, recourse to section 654 will be unnecessary because a specific
statute prevails over a more general one relating to the same subject. . . .
[¶] Only if the specific statutes do not provide the answer should the court
turn to section 654.” (People v. Ahmed (2011) 53 Cal.4th 156, 163.)
4
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Wiseman, J.*
A163883/People v. Jesus Camarillo
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
5 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482404/ | Filed 11/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
RAJA DEVELOPMENT CO., INC.,
et al.,
Plaintiffs and Appellants, A162256
v. (Napa County
NAPA SANITARY DISTRICT, Super. Ct. No. 19CV000682)
Defendant and Respondent;
COUNTY OF NAPA,
Real Party in Interest.
Plaintiffs Raja Development Co., Inc., Cashel, Inc., and Carter Randall
Callahan (plaintiffs) are condominium owners who allege, in their third
amended complaint, that a sewer service charge collected by defendant Napa
Sanitation District (the District) consists of two distinct components—a
“capacity fee” and a “use fee”—and that the latter is an unlawful tax. The
trial court sustained the District’s demurrer without leave to amend,
agreeing with the District that the action is untimely. For the purposes of
this appeal, the parties agree that, at least in principle, different statutes of
limitations govern challenges to the capacity-fee and use-fee components of
the sewer service charge, and that a challenge to the capacity fee is now time-
barred. Although the operative complaint expressly does not attack the
capacity fee, the District argues that the ordinances authorizing the sewer
service charge are inseverable, so the court would have to invalidate the
1
entire charge if plaintiffs prevail. If the only available remedy would
invalidate the capacity fee along with the use fee, the District reasons, the
lawsuit is untimely even though plaintiffs’ claim challenges only the latter.
We are not persuaded. As discussed below, to identify the applicable
statute of limitations, we must look to the gravamen of plaintiffs’ claim. The
purpose of the severability doctrine is simply to determine the scope of the
remedy after a legal infirmity in the ordinance has been established; a
finding of inseverability would not alter the nature of plaintiffs’ claim or the
rights upon which they sue. Thus, even if the District were correct that
severability principles would require the invalidation of the entire sewer
service charge—an issue we do not decide—we conclude that the District,
rather than plaintiffs, would bear the consequence of its decision to draft the
ordinances that way. Accordingly, we reverse and remand to the trial court
for further proceedings.
BACKGROUND
The District operates a wastewater utility through which it provides
wastewater collection and treatment services to its residents.1 Plaintiffs own
condominium units located within the District’s jurisdiction.
As alleged in plaintiffs’ original complaint, the District has imposed an
annual sewer service charge of “1.0 Equivalent Dwelling Unit” (EDU) on
townhomes and condominiums since at least 1975, despite failing to
demonstrate a “direct and reasonable correlation” between the charge and
the actual costs of providing services to townhomes and condominiums.
According to the complaint, failing to demonstrate such a correlation converts
the charge into an illegally collected special tax in violation of Proposition 13,
1 The operative complaint names the District as the defendant but
identifies Napa County as the real party in interest.
2
62, and 218.2 The complaint further alleged that the service charge is an
illegal tax because it was not approved by two-thirds of voters, as required by
the California Constitution. Plaintiffs sought a refund of the service charges
paid and injunctive and declaratory relief to preclude future collection of the
charges.
After the trial court sustained the District’s demurrers to the first two
iterations of the complaint with leave to amend, plaintiffs filed a second
amended complaint, again asserting that the sewer service charge constitutes
an illegal tax. The District demurred, arguing in part that plaintiffs’
declaratory and injunctive relief claim was subject to the 120-day limitations
period under Government Code section 660223 because the second amended
complaint alleged that a portion of the service charge is for costs related to
“capital improvements.” Section 66022 provides that “[a]ny judicial action or
proceeding to attack, review, set aside, void, or annul an ordinance” adopting
or modifying a capacity charge subject to section 66013 “shall be commenced
within 120 days of the effective date of the ordinance . . . .” (Gov. Code,
§ 66022, subd. (a).) Because section 66013 defines a “capacity charge” as “a
charge for public facilities in existence at the time a charge is imposed or
charges for new public facilities to be acquired or constructed in the future
that are of proportional benefit to the person or property being charged,” the
District argued that the reference to capital improvements brought the
charge within this definition. In response, plaintiffs contended that they
were not challenging the capacity-fee portion of the sewer service charge, and
argued that their claim against the use-fee portion should not be subject to
2 Later iterations of the complaint allege that the charge also violates
Proposition 26 as an illegal tax.
3 All further references are to the Government Code, unless otherwise
indicated.
3
the shorter statute of limitations applicable to challenges to capacity fees
simply because the District chose to collect capacity fees and use fees
simultaneously in a single hybrid fee.
Observing that the prayer for relief in the second amended complaint
sought the invalidation of the entire sewer service charge, the trial court
found that the 120-day statute of limitations set forth in section 66022 barred
plaintiffs’ claim for declaratory and injunctive relief because more than 120
days had passed since 2010, the year the second amended complaint alleged
the District last set the sewer service charge at 1.0 EDU. For that reason, it
sustained the District’s demurrer to that claim but granted plaintiffs leave to
amend.
Plaintiffs then filed a third amended complaint (TAC) asserting a
single cause of action for declaratory and injunctive relief. It alleges that the
sewer service charges are collected “to pay for the cost of providing
wastewater collection, treatment and disposal services, but are mixed with
elements relating to capital improvements.” The sewer service charge thus
has “two identifiable and ascertainable components—a use fee (for general
operations, general revenue purposes and other non-capacity related
purposes . . . .) and a capacity fee (for maintenance and improvement of
capital facilities, among other things . . .).” According to the TAC, the two
fees are imposed through a single collected service charge, but plaintiffs
challenge only the use-fee portion of it. The TAC alleges that the use fee is
an invalid tax because it exceeds the reasonable cost of providing the service
for which it is charged, the District has not justified the fee with a nexus
study, and the fee has not been approved by two-thirds of voters. Plaintiffs
seek a declaration that the use-fee portion of the service charge imposed by
the District is unconstitutional or otherwise illegal, and an injunction
4
enjoining the District from further imposing or collecting the use-fee portion
of the service charge.
The District again demurred. Requesting judicial notice of the original
pair of ordinances authorizing the service charge, adopted in 1977 by the
District’s board of directors, the District argued that an invalid part of an
ordinance can be severed from the remainder only if it is “grammatically,
functionally and volitionally separable[,]” and that the use-fee component of
the service charge did not meet those requirements. Therefore, according to
the District, plaintiffs’ claim necessarily challenged the capacity fee, bringing
it within the 120-day statute of limitations in section 66022.
The trial court sustained the District’s demurrer to the TAC without
leave to amend. It first inferred from the allegations in the TAC that the text
of the current ordinance did not differ in any meaningful way from that in the
earlier ordinances, and it concluded that the earlier ordinances were
therefore relevant to the demurrer. It also agreed with the District that the
use-fee and capacity-fee components of the sewer service charge were
inseverable, and therefore that plaintiffs’ attack on the use-fee portion of the
ordinance would necessarily invalidate the entire sewer service charge,
including the capacity fee. As a result, the court concluded that the 120-day
limitations period in section 66022 applied to bar plaintiffs’ attack on part of
the service charge.
Plaintiffs appealed from the resulting judgment.
DISCUSSION
“This appeal follows the sustaining of a demurrer. The application of
the statute of limitations on undisputed facts is a purely legal question
[citation]; accordingly, we review the lower courts’ rulings de novo. We must
take the allegations of the operative complaint as true and consider whether
5
the facts alleged establish [plaintiff’s] claim is barred as a matter of law.”
(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)
“ ‘ “ ‘A demurrer based on a statute of limitations will not lie where the action
may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be
raised by demurrer, the defect must clearly and affirmatively appear on the
face of the complaint; it is not enough that the complaint shows that the
action may be barred.’ ” ’ ” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.)
“To determine the statute of limitations which applies to a cause of
action it is necessary to identify the nature of the cause of action, i.e., the
‘gravamen’ of the cause of action.” (Hensler v. City of Glendale (1994)
8 Cal.4th 1, 22 (Hensler).) “ ‘[T]he nature of the right sued upon and not the
form of action nor the relief demanded determines the applicability of the
statute of limitations under our code.’ ” (Id. at p. 23.) “What is significant for
statute of limitations purposes is the primary interest invaded by defendant’s
wrongful conduct.” (Barton v. New United Motor Manufacturing, Inc. (1996)
43 Cal.App.4th 1200, 1207.)
Relying on Howard Jarvis Taxpayers Assn. v. City of La Habra (2001)
25 Cal.4th 809 (Howard Jarvis), plaintiffs contend that, because their claim
is based on alleged violations of Propositions 13, 26, 62, and 218, it is subject
to the three-year statute of limitations in Code of Civil Procedure section 338,
subdivision (a), for liability created by statute, and that it runs anew each
month when the District collects the allegedly illegal tax. In Howard Jarvis,
taxpayers brought an action against the city for declaratory relief from a
utility users tax imposed without the voter approval mandated by
Proposition 62. (Id. at pp. 812–814.) The court concluded that the
continuous accrual doctrine applied to the plaintiffs’ claim because
Proposition 62 precludes not only the enactment of a tax ordinance without
6
voter approval, but also continued imposition or collection of such a tax. (Id.
at pp. 818–821, 824.) Accordingly, the court held that where the statute of
limitations in Code of Civil Procedure section 338, subdivision (a) applies,
“and no other statute or constitutional rule provides differently, the validity
of a tax measure may be challenged within the statutory period after any
collection of the tax, regardless of whether more than three years have passed
since the tax measure was adopted.” (Id. at p. 825.)
The District does not argue against a conclusion that plaintiffs’ claim
would be subject to the three-year statute of limitations in Code of Civil
Procedure section 338, subdivision (a) and timely under Howard Jarvis if the
ordinances were severable.4 As alleged in the TAC, the District’s collection of
a use fee that exceeds the reasonable costs of providing its services violates
plaintiffs’ primary rights under the relevant tax propositions because it was
not approved by the voters. (Cal. Const., art. XIII C, § 1, subd. (e)(1) [a
charge imposed for services provided to the payor is a tax if it exceeds the
4 In KCSFV I, LLC v. Florin County Water Dist. (2021) 64 Cal.App.5th
1015, the defendant argued that any rate increase that includes a charge for
capital improvements is a capacity charge under section 66013, but the court
declined to decide that issue because it found that the defendant had failed to
prove that the rate increase did include funding for capital projects. (Id. at
p. 1032.) In that case, however, the plaintiffs were challenging the entire
rate increase. (Id. at pp. 1025–1026.) We note here that the District has not
offered any argument, other than the claimed inseverability of the
authorizing ordinances, for treating plaintiffs’ claim in the TAC as an attack
on the entire sewer service charge, nor has it offered any other basis for
treating the claim as one subject to section 66022. (Cf. Webb v. City of
Riverside (2018) 23 Cal.App.5th 244, 256–257 [amendments to petition were
a “sham” to plead around the statute of limitations].) We also point out that,
because the parties have all treated the capacity-fee portion of the sewer
service charge as a “capacity charge” under section 66013, we have had no
occasion to resolve a dispute about that issue and nothing in this opinion
should be construed as necessarily endorsing the parties’ position.
7
reasonable costs of providing the service]; Cal. Const., art. XIII A, § 4 [special
taxes must be approved by two-thirds of the qualified electors]; see also
Howard Jarvis, supra, 25 Cal.4th at p. 819 [finding that plaintiffs were
“seeking redress for two types of injury: the violation of their right to vote on
new taxes, and the City’s continued collection of the tax without legal
authority,” italics omitted].) The question, then, is whether the putative
inseverability of the ordinances authorizing the sewer service charge alters
the gravamen of plaintiffs’ claim or the “nature of the right sued upon”
(Hensler, supra, 8 Cal.4th at p. 23) such as to transform the claim into one
subject to the 120-day statute of limitations in section 66022. We think the
answer is no. Regardless of whether the ordinances authorizing the charge
are severable, the TAC does not allege any wrongful conduct by the District
with respect to the capacity fee, the invasion of any right or interest plaintiffs
possess related to the capacity fee, or any legal injury from the capacity fee.
It does not concern the capacity fee at all, and there is no contention that the
use fee plaintiffs do challenge is covered by section 66013. (Cf. Utility Cost
Management v. Indian Wells Valley Water Dist. (2001) 26 Cal.4th 1185, 1192–
1193 [section 66022 applied where plaintiff sought to recoup fees that were
“described in and subject to” section 66013].)
The severability or inseverability of an ordinance simply determines
the scope of the remedy after a legal infirmity has been established. For
example, in County Sanitation Dist. No. 2 v. County of Kern (2005)
127 Cal.App.4th 1544, the plaintiff alleged that the county’s “biosolids impact
fee” violated the prohibition in Vehicle Code section 9400.8 against local fees
for the privilege of using roads. (Id. at pp. 1557–1558.) After examining how
the fee was calculated and how the funds it generated could be applied, the
court determined that it was, at least in part, a fee imposed on road use and
8
therefore in violation of the statute. (Id. at pp. 1622–1623.) Only then did
the court consider “what relief is appropriate when an ordinance imposes a
fee for more than one purpose and one of the purposes conflicts with a statute
and other purposes do not.” (Id. at p. 1623.) The court first rejected the
possibility that the existence of some potentially valid uses of the funds
would warrant upholding the entire fee, because “such a remedy would allow
public agencies to adopt fees with illegal purposes and save those fees from
invalidation by appending one valid purpose for which the fees could be
used.” (Ibid.) Conversely, the court concluded that it would be “unduly
harsh” to invalidate the entire fee when part of the funds would be used for
valid purposes and the formula by which it was calculated did not itself run
afoul of a statutory prohibition. (Ibid.) Finally, the court noted that the
ordinance contained a severability clause and that the rate used to determine
the fee and funds it generated were inherently divisible; it therefore
invalidated the fee only “to the extent it was or will be used for purposes that
violated Vehicle Code section 9400.8.” (Id. at p. 1624.)5 This discussion of
remedy, however, has no bearing on the nature or gravamen of the plaintiff’s
claim, which would have been the same even if the court had found that the
proper remedy was to strike the biosolids impact fee in its entirety.
The test for severability effectively allows a legislative body to decide,
at the time of drafting, whether the remainder of its law will survive a later
judicial determination that some aspect of it is invalid. By including a
severability clause, for example, the legislative body will receive “a
5 Although plaintiffs do not cite County Sanitation Dist. No. 2 v. County
of Kern, supra, 127 Cal.App.4th 1544, they argue that the District is legally
required to separate the use-fee and capacity-fee components of the sewer
service charge, that the District uses the two fees for different purposes, and
that the court could fashion relief that impacts only the use fee.
9
presumption in favor of severance.” (California Redevelopment Assn. v.
Matosantos (2011) 53 Cal.4th 231, 270.) The additional criteria that courts
examine—whether the invalid provision is “grammatically, functionally, and
volitionally separable” (ibid.)—are likewise matters within the legislative
body’s power to address during the drafting and legislative process. Indeed,
volitional separability refers to whether, “knowing that only part of its
enactment would be valid, [the legislature] would have preferred that part to
nothing, or would instead have declined to enact the valid without the
invalid.” (Id. at p. 273.) Of course, a legislative body will not always prefer
severability. But because the doctrine is rooted in legislative choice, when a
legislature drafts a law in such a way that a court will conclude it is
inseverable, it has at least assumed the risk that all of its law will fall if a
court determines that any part of it is invalid. (See In re Blaney (1947)
30 Cal.2d 643, 655 [“if the statute is not severable, then the void part taints
the remainder and the whole becomes a nullity”].) We see no reason why
that risk does not include the potential loss of a shorter statute of limitations
that would apply to some aspect of the law if it had been drafted in such a
way that it could be severed from the remainder, at least in the absence of
some other basis for allowing the shorter statute of limitations to control.6
6 We are not unmindful of the policy underlying the short statute of
limitations in section 66022—“so that local agencies can make spending
decisions confident in the knowledge that they are spending funds that are,
in fact, available.” (Util. Cost Management v. E. Bay Mun. Util. Dist. (2000)
79 Cal.App.4th 1242, 1252.) But it remains within the power of local
agencies to secure that benefit by drafting legislation in such a way that
funding for capital projects is not imperiled by an unrelated challenge to
some other aspect of the law. And again, because the District’s argument is
limited to the severability doctrine, we do not consider here any other
potential grounds for applying section 66022 to plaintiffs’ claim.
10
Moreover, courts have held that the nature of the relief the plaintiff
seeks does not determine the gravamen of the claim. (Hensler, supra,
8 Cal.4th at p. 23; Leeper v. Beltrami (1959) 53 Cal.2d 195, 214; Golden Gate
Hill Development Co., Inc. v. County of Alameda (2015) 242 Cal.App.4th 760,
768 [relief sought by plaintiff—a refund of taxes paid rather than
invalidation of the tax measure—did not change gravamen of claim, which
was based on alleged illegality of taxes enacted by county].) We think the
same is true when, as here, the defendant argues that the application of a
severability analysis would require the court to award relief broader than the
plaintiff seeks. (Cf. People ex rel. Department of Conservation v. Triplett
(1996) 48 Cal.App.4th 233, 249 [gravamen of the action was to compel
Assessor to assess resort parcel in manner required by the Williamson Act,
even if it might force the abandonment of the cancellation petition].) That
result is a function of the legislative body’s drafting decision, not a function of
the plaintiff’s claim.
Our research has revealed, and the parties have identified, no cases in
which severability was used to determine the applicable statute of
limitations, and we have identified only a few federal cases in which
severability was even examined prior to any consideration of the merits of the
claim of invalidity. In those cases, the court conducted a threshold
examination of severability in order to determine whether the plaintiffs
possessed standing under Article III of the U.S. Constitution—specifically, to
determine whether a remedy was available that would redress the claimed
injury. (See, e.g., INS v. Chadha (1983) 462 U.S. 919, 931–935 (Chadha);
Gentry v. United States (Ct. Cl. 1976) 546 F.2d 343, 347; Doe v. Wilson
(N.D.Cal., Dec. 15, 1997, No. C 97-2427 SI) 1997 U.S.Dist. Lexis 21137, at
pp. *18–*21; but see, e.g., Mejia v. Time Warner Cable, Inc. (S.D.N.Y., Aug. 1,
11
2017, No. 15-CV-6445 (JPO)) 2017 U.S.Dist. Lexis 120445, at p. *38
[“Severability is a question of remedy, to be addressed once a constitutional
violation has been identified. It is not a threshold issue implicating a party’s
standing to challenge constitutionality in the first instance”].)7 In essence
these cases involved challenges to a statutory restriction on a benefit
conferred by the statute itself; if the statute was inseverable, then the
successful challenge would eliminate the benefit along with the restriction,
leaving the plaintiffs no better off.8 But severability was examined first in
those cases because it was essential to determining whether the court
possessed jurisdiction. (See Gentry v. United States, supra, 546 F.2d at p. 347
[“Because of the nature of this court’s jurisdiction, we must depart from the
7 We may cite unpublished federal cases without violating the
California Rules of Court. (Farm Raised Salmon Cases (2008) 42 Cal.4th
1077, 1096, fn. 18; Nungaray v. Litton Loan Servicing, LP (2011)
200 Cal.App.4th 1499, 1501, fn. 2.)
8 Chadha involved a challenge to the constitutionality of a provision
that allowed one house of Congress to invalidate a decision by the United
States Attorney General to allow a particular deportable alien to remain in
the country. (Chadha, supra, 462 U.S. at p. 923.) The Attorney General had
recommended that Chadha’s deportation be suspended, but the House of
Representatives vetoed the recommendation. (Id. at pp. 924–927.) The
Senate and House of Representatives, which were permitted to participate as
amici because the Immigration and Naturalization Service supported
Chadha’s position in the litigation, argued that Chadha lacked standing
because a determination that the one-House veto provision was
unconstitutional would require the invalidation of the entire statute,
including the provision that authorized the Attorney General to allow
Chadha to remain in the United States—meaning Chadha would receive no
relief from deportation if he prevailed in his constitutional challenge. (Id. at
p. 931.) The court stated that it found it “appropriate” to address questions of
severability first, while acknowledging that doing so was a departure from its
usual practice, and it ultimately concluded that the one-House veto was
severable. (Id. at pp. 931, fn. 7, 935.)
12
usual practice of inquiring first into constitutionality and then into
severability, and instead consider the latter first”]; cf. Petrella v. Brownback
(10th Cir. 2012) 697 F.3d 1285, 1296 [district court erred by considering
severability at early stage of litigation when not necessary to establish
standing].) No such issue is presented here, and there is no need to examine
the severability of the authorizing ordinances to determine the gravamen of
plaintiffs’ claim or the rights upon which they sue. The severability doctrine
is a shield by which a legislative body can preserve the parts of its law that
are not implicated by a valid legal claim, not a sword to wield against that
claim in the first place.
We emphasize that we do not decide severability here. Since it was
premature for the trial court to adjudicate that issue, we leave open the
possibility that it could later determine that it is possible to fashion relief
impacting only the use-fee component of the sewer service charge. We
conclude only that the District has not established that plaintiffs’ challenge
to the use fee must be dismissed as untimely based on the claimed
inseverability of the ordinances authorizing the charge.
DISPOSITION
The judgment of dismissal is reversed. On remand, the trial court shall
vacate its order sustaining the District’s demurrer without leave to amend
and enter a new order overruling the demurrer. Plaintiffs are awarded costs
on appeal.
GOLDMAN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
13
Trial Court: Napa County Superior Court
Trial Judge: Victoria Wood
Counsel for Plaintiffs and LAW OFFICES OF GEOFFREY WILLIS
Appellants: Geoffrey Willis
Counsel for Defendants and MEYERS NAVE
Respondents and Real Party in John Bakker
Interest: Jenny L. Riggs
Kenneth W. Pritikin
14 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482430/ | STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
WASTE MANAGEMENT OF NO. 2022 CW 0601
LOUISIANA LLC D/B/A WOODSIDE PAGE 1 OF 2
LANDFILL, WASTE MANAGEMENT
NATIONAL SERVICES, INC.
VERSUS
STAFFORD LOGISTICS, INC.
D/B/A CUSTOM ECOLOGY, INC.,
STARR INDEMNITY & LIABILITY
COMPANY, CRUM & FORSTER
SPECIALTY INSURANCE COMPANY,
AXIS SURPLUS INSURANCE NOVEMBER 8, 2022
COMPANY, AND SCOTTSDALE
INSURANCE COMPANY
In Re: Axis Surplus Insurance Company and Starr Indemnity &
Liability Company, applying for supervisory writs,
19th Judicial District Court, Parish of East Baton
Rouge, No. 686651.
BEFORE : McDONALD, THERIOT, AND CHUTZ, JJ.
WRIT GRANTED. The district court’s April 20, 2022
judgment, which denied the motions for summary judgment
filed by defendants, Starr Indemnity & Liability Company
and Axis Surplus Insurance Company, is reversed. The
commercial auto liability insurance policy issued by
defendant, Starr Indemnity & Liability Company, states that
it will “pay all sums an ‘insured’ legally must pay as
damages because of ‘bodily injury’ or ‘property damage’ to
which this insurance applies, caused by an ‘accident’ and
resulting from the ownership, maintenance or use of a
covered ‘auto.’” The excess commercial auto liability
insurance policy issued by defendant, Axis Surplus
Insurance Company, states that it is “excess insurance and,
except as otherwise stated in this policy, follows the
terms, conditions, exclusions, and endorsements of the
‘first underlying insurance,’ and it will “pay those sums
in excess of the ‘underlying insurance’ that you become
legally obligated to pay as damages because of injury or
damage to which this insurance applies, provided that the
‘underlying insurance’ also applies.”
“Summary judgment declaring a lack of coverage under
an insurance policy may not be rendered unless there is no
reasonable interpretation under which coverage could be
afforded when applied to the undisputed material facts
shown by the evidence supporting the motion.” Guste v.
Lirette, 2017-1248 (La. App. lst Cir. 6/4/18), 251 So.3d
1126, 1129. The tort victim in this matter was injured
while unloading waste from the trailer he hauled to the
facility owned by the tortfeasor, Waste Management of
Louisiana LLC d/b/a Woodside Landfill, Waste Management
National Services, Inc., while the truck he used to haul
the waste was parked. This court has held that in order to
determine whether the claim arises out of the use of an
automobile, it must examine the acts of the tortfeasor and
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
NO. 2022 CW 0601
PAGE 2 OF 2
not the accident victim. Fleniken v. Entergy Corp., 99-
3023, 99-3024 (La. App. lst Cir. 2/16/01), 790 So.2d 64,
70, writs denied, 2001-1269 2001-1295 (La. 6/15/01), 793
So.2d 1250, 1252. We find the complained of conduct by the
alleged tortfeasor, Waste Management of Louisiana LLC d/b/a
Woodside Landfill, Waste Management National Services,
Inc., does not constitute use of an automobile. Thus, we
find that Starr Indemnity & Liability Company and Axis
Surplus Insurance Company met their burden of proving that
the policies at issue do not provide coverage because the
tortfeasor’s activity did not involve the use of an
automobile. See Terminix Services, Inc. v. State Farm Mut.
Auto. Ins. Co., 2001-720 (La. App. 5th Cir. 11/27/01), 803
So.2d 198. Therefore, we find that there is no coverage or
duty to defend under the policies issued by Starr Indemnity
& Liability Company and Axis Surplus Insurance Company.
Accordingly, the motion for summary judgment is granted,
and all claims against Starr Indemnity & Liability Company
and Axis Surplus Insurance Company are dismissed with
prejudice.
JMM
MRT
WRC
COURT OF APPEAL, FIRST CIRCUIT
ACal
DEPUTY CLERK OF COURT
FOR THE COURT | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482422/ | Filed 11/8/22 In re M.G. 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 M.G., et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E079180
Plaintiff and Respondent, (Super.Ct.Nos. J279786/87)
v. OPINION
M.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Conditionally reversed.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel for
Plaintiff and Respondent.
1
The only issues in this appeal from the termination of parental rights are whether
there was an adequate inquiry into the children’s ancestry under the Indian Child Welfare
Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and whether any error was prejudicial.
We find prejudicial error under the standard articulated in In re Benjamin M. (2021) 70
1
Cal.App.5th 735 (Benjamin M.) and therefore conditionally reverse the judgment.
BACKGROUND
Defendant and appellant M.G. is the mother of the two children in this dependency
matter, one born in February 2006, the other in July 2013, both of whom share mother’s
initials. Plaintiff and respondent San Bernardino County Children and Family Services
(CFS) filed section 300 petitions regarding the children in February 2019. The children’s
father initially participated in the dependency proceedings, but he died in May 2019.
In advance of the February 2019 detention hearing, both mother and father
responded “No” on a CFS form inquiring if they “have/may have Native American
Ancestry.” At the disposition hearing in February 2019, both mother and father
confirmed they had “no known Indian ancestry.” On CFS forms, the children’s maternal
grandmother and maternal aunt also denied any Indian ancestry. Both the maternal
grandmother and maternal aunt attended the detention hearing, and both confirmed their
earlier responses.
1
Undesignated statutory references are to the Welfare and Institutions Code. 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.
2
For more than a year, from April 2020 to August 2021, the children were placed
with a paternal aunt and uncle who lived in Oklahoma. CFS reported to the juvenile
court that the paternal aunt had “denied Native American ancestry and did not provide
any other relatives that may have Native American ancestry or information regarding
possible Native American ancestry in the family.” The record does not demonstrate,
however, that CFS asked other paternal relatives who were part of the children’s “safety
network” about possible Indian ancestry. Such relatives include “the paternal
grandmother, the paternal great-grandmother, cousins, [and] other aunts and uncles.”
In June 2022, after reunification efforts were unsuccessful, the juvenile court
terminated mother’s parental rights to the children and selected adoption as their
permanent plan.
DISCUSSION
Mother contends on appeal that CFS did not fulfill its duty of initial inquiry under
ICWA because it failed to ask certain paternal relatives about possible Indian ancestry.
CFS denies error and, in the alternative, contends that any arguable error is not
prejudicial. Applying Benjamin M., we find prejudicial error and therefore conditionally
reverse the judgment.
“When ICWA applies, the Indian tribe has a right to intervene in or exercise
jurisdiction over the proceeding. [Citation.] If the tribe does not assume jurisdiction, the
state court must nevertheless follow various heightened procedural and substantive
requirements, such as stricter removal standards and mandatory placement preferences
3
that promote keeping Indian children with family members or members of their tribe.”
(In re K.T. (2022) 76 Cal.App.5th 732, 741.) “Violations of ICWA ‘“render[] the
dependency proceedings, including an adoption following termination of parental rights,
vulnerable to collateral attack if the dependent child is, in fact, an Indian child.”’”
(Benjamin M., supra, 70 Cal.App.5th at p. 741.)
ICWA’s concern is with Indian children, and “[b]ecause it typically is not self-
evident whether a child is an Indian child, both federal and state laws mandate certain
inquiries to be made in each case. These requirements are sometimes collectively
referred to as the duty of initial inquiry.” (Benjamin M., supra, 70 Cal.App.5th at p. 741.)
“The duty of initial inquiry arises, in part, from federal regulations under ICWA
stating that ‘[s]tate courts must ask each participant in an . . . involuntary child -custody
proceeding whether the participant knows or has reason to know that the child is an
Indian child’ and that [s]tate courts must instruct the parties to inform the court if they
subsequently receive information that provides reason to know the child is an Indian
child.’ [Citation.] Thus, the federal regulation places a duty on only ‘courts’ to inquire or
instruct ‘participants’ and ‘parties’ to a case.” (Benjamin M., supra, 70 Cal.App.5th at p.
741.)
“State law, however, more broadly imposes on social services agencies and
juvenile courts (but not parents) an ‘affirmative and continuing duty to inquire’ whether a
child in the dependency proceeding ‘is or may be an Indian child.’ [Citation.] When the
agency takes the child into temporary custody, its duty to inquire ‘includes, but is not
4
limited to, 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.’ [Citation.] State law also
expressly requires the juvenile court to ask participants who appear before the court about
the child’s potential Indian status.” (Benjamin M., supra, 70 Cal.App.5th at pp. 741-
742.)
“If the initial inquiry gives the juvenile court or the agency ‘reason to believe’ that
an Indian child is involved, then the juvenile court and the agency have a duty to conduct
‘further inquiry’ [citation], and if the court or the agency has ‘reason to know’ an Indian
child is involved, ICWA notices must be sent to the relevant tribes.” (Benjamin M.,
supra, 70 Cal.App.5th at p. 742.)
Here, neither the duty of further inquiry nor ICWA’s notice provisions are at issue
because no one has contended there is reason to believe the children are Indian children.
Rather, mother focuses on CFS’s alleged failure during its initial inquiry to gather
information that could have triggered additional duties.
The paternal aunt in Oklahoma with whom the children were placed for a time was
asked about possible Indian ancestry. As mother emphasizes, however, although CFS
had some contact with the children’s paternal grandmother on other issues, there is no
indication in the record that she was asked about potential Indian ancestry. We also note
that it does not appear the paternal uncle (paternal aunt’s husband) was asked about
possible Indian ancestry. As well, the social worker identified several other relatives,
5
including “a paternal great-grandmother, cousins, [and] other aunts and uncles” as part of
the children’s “safety network.” There is also no evidence that CFS asked these
individuals about potential Indian ancestry. CFS therefore did not satisfy its duty of
initial inquiry, which includes the duty to ask extended family members whether the child
is, or may be, an Indian child. (Benjamin M., supra, 70 Cal.App.5th at p. 741; § 224.2,
subd. (b).)
CFS cites In re Ezequiel G. (2022) 81 Cal.App.5th 984 for the proposition that
“complying with the literal language of the statute—that is, making an initial and further
ICWA inquiry of every member of a child’s extended family, including first and second
cousins, plus every other person who has an interest in the child —is absurd at best and
impossible at worst.” (Id. at p. 1006.) CFS suggests that we should “reject a strict
reading of section 224.2” and find the inquiry that it conducted close enough to count as
no error, even though only some, but not all, of the children’s extended family members
were asked about possible Indian ancestry. For the reasons discussed in the dissent in In
re Ezequiel G., among others, we are not persuaded. (See In re Ezequiel G., supra, 81
Cal.App.5th at p. 1020 (J. Lavin, dissenting) [finding majority’s analysis “misguided”
and stating “There is nothing absurd or unworkable about applying the statute to the facts
of this case”].)
In Benjamin M., this court concluded that prejudice exists when “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
6
meaningfully upon whether the child is an Indian child.” (Benjamin M., supra, 70
Cal.App.5th at p. 744.) Other cases both before and after Benjamin M. have sometimes
taken other approaches, and the issue is now pending before our Supreme Court. (See In
re Dezi C. (2022) 79 Cal.App.5th 769, 777-778, review granted Sept. 21, 2022, S275578
[“California courts have staked out three different rules for assessing whether a defective
initial inquiry is harmless . . . we propose a fourth rule for assessing harmlessness”].) We
apply the Benjamin M. standard here.
It appears from the record that there were several paternal relatives—the paternal
grandmother, in particular, as well as the paternal uncle with whom the children lived for
more than a year—with whom CFS was in direct contact, but who were never asked
about any potential Indian ancestry. We also infer that CFS likely had contact
information for the “paternal great-grandmother, cousins, [and] other aunts and uncles”
whom it identified as part of the children’s “safety network,” or at least had leads on
where to obtain such contact information. While we cannot know how these extended
family members would answer an ICWA inquiry, their answers would likely bear
meaningfully on the determination of whether the children are Indian children. CFS’s
error of failing to ask them was therefore prejudicial.
CFS attempts to distinguish Benjamin M. on its facts, noting that the father in that
case “never made an appearance in juvenile court and was never asked about any Indian
heritage, and CFS never inquired of his extended family members despite having their
information.” Here, in contrast, father did appear and stated that there was no Indian
7
ancestry, and CFS did inquire of some, albeit not all, of the children’s extended family
members. It is not apparent, however, why that factual distinction should make a
difference. Father may or may not have been fully aware of his own ancestry, and the
same is true of his sister, the paternal aunt. Other extended family members may or may
not have had different information, but that cannot be known until CFS asks them.
DISPOSITION
The orders terminating parental rights to the children are conditionally reversed.
The matter is remanded to the juvenile court with directions to comply with the inquiry
provisions of ICWA and of Welfare and Institutions Code sections 224.2 and 224.3 (and,
if applicable, the notice provisions as well), consistent with this opinion. If, after
completing the initial inquiry, neither CFS nor the court has reason to believe or to know
that the children are Indian children, the orders terminating parental rights as to them
shall be reinstated. If CFS or the court has reason to believe that the children are Indian
children, the court shall proceed accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
8
9 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482396/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2587
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER L. RAMIREZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:21-cr-00064 — William C. Griesbach, Judge.
____________________
ARGUED SEPTEMBER 23, 2022 — DECIDED NOVEMBER 8, 2022
____________________
Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.
RIPPLE, Circuit Judge. Christopher L. Ramirez pleaded
guilty to possessing with intent to distribute fifty grams or
more of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). The district court sentenced him as a
career offender under Sentencing Guideline § 4B1.1 because
he had prior felony convictions in Wisconsin for possessing
with intent to deliver tetrahydrocannabinol and for manufac-
turing or delivering cocaine. The court sentenced him to 120
2 No. 21-2587
months’ imprisonment to be followed by eight years of super-
vised release.
Mr. Ramirez now appeals his sentence. He first asks us to
reconsider our holding in United States v. Ruth, 966 F.3d 642,
651–54 (7th Cir. 2020). We held there that an offense need not
involve a substance controlled by the Controlled Substances
Act (“CSA”), 28 U.S.C. § 801 et seq., to qualify as a predicate
“controlled substance offense” for purposes of the career of-
fender enhancement under U.S.S.G. § 4B1.1(a). He further
contends that the district court failed to consider adequately
and meaningfully his primary mitigating sentencing argu-
ment.
We now affirm the judgment of the district court.
Mr. Ramirez has not met his burden of demonstrating that
Ruth should be overruled. We also are convinced that the dis-
trict court comprehensively evaluated the record before it and
appropriately sentenced Mr. Ramirez.
I
BACKGROUND
In February 2021, confidential informants participated in
two controlled purchases from Mr. Ramirez. The purchases
tested positive for the presence of methamphetamine and fen-
tanyl. On February 17, 2021, law enforcement officers exe-
cuted a traffic stop on a vehicle operated by Mr. Ramirez. In-
side the vehicle, the officers discovered a bag containing
184.79 grams of a substance that tested positive for metham-
phetamine and fentanyl. Investigators had observed
Mr. Ramirez carrying the bag and placing it into the vehicle
prior to the traffic stop.
No. 21-2587 3
Officers also executed a search warrant at the residence
where a confidential informant had purchased methamphet-
amine from Mr. Ramirez. They found four firearms in a bed-
room in which the owner of the residence, Mr. Ramirez’s ex-
girlfriend, said Mr. Ramirez resided. Another witness placed
the firearms in Mr. Ramirez’s possession. The witness ex-
plained that he had cleaned four firearms for Mr. Ramirez that
matched the ones found during the search and that he had
seen Mr. Ramirez place the firearms in the bedroom when
they were returned to him on February 17, 2021. At that time,
Mr. Ramirez had multiple prior felony convictions.
On March 16, 2021, a grand jury returned a four-count in-
dictment charging Mr. Ramirez with possessing with intent
to distribute fifty grams or more of methamphetamine, in vi-
olation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count One); be-
ing a felon in possession of firearms, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Count Two); and distributing
methamphetamine and fentanyl, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C) (Counts Three and Four).
Mr. Ramirez entered into a plea agreement; according to its
terms, he pleaded guilty to Count One of the indictment, and
the Government agreed to move to dismiss Counts Two,
Three, and Four at sentencing.
Prior to sentencing, the U.S. Probation Office filed a
Presentence Investigation Report (“PSR”), which detailed
1
Mr. Ramirez’s “astounding origin and upbringing.”
Mr. Ramirez did not have a relationship with either of his par-
ents and was raised by his grandmother, who was involved
actively in the drug trade and significantly lacked as a
1 R.13 ¶ 59.
4 No. 21-2587
positive parental figure. He explained that life in his grand-
mother’s custody was “hectic,” “impoverished,” and “in
2
nearly constant survival mode.” He had “a first row seat to
the world of drug dealing,” “was not made to attend school,”
experienced violence from his cousin and uncle, and became
3
involved with a street gang at age ten.
The PSR described Mr. Ramirez’s history of depression,
dating back to his experiences during childhood. It also re-
lated a long history of self-medication through drugs and al-
cohol. He began drinking alcohol and smoking marijuana at
around age ten and began using harder drugs, including co-
caine, acid, phencyclidine, and methamphetamine, by age
thirteen. According to the PSR, mental health professionals
had seen Mr. Ramirez briefly during previous prison stays for
situational depression and anxiety, but he now was speaking
to jail staff about his history of depression and, for the first
time, had been prescribed medications.
The PSR calculated a base offense level of 26 and added 2
levels for the possession of a dangerous weapon during the
commission of the offense to reach an adjusted offense level
of 28. The PSR then found that Mr. Ramirez met the criteria
for a career offender enhancement under U.S.S.G. § 4B1.1(a)
because (1) he was over eighteen years old at the time of the
instant offense, (2) the instant offense qualified as a controlled
substance offense under U.S.S.G. § 4B1.2(b), and
(3) Mr. Ramirez had prior felony convictions for drug-related
offenses under Wisconsin state law. The offense level was
2 Id. ¶¶ 60, 62.
3 Id. ¶¶ 60, 63–64.
No. 21-2587 5
therefore increased to 34. After subtracting three levels for ac-
ceptance of responsibility, the PSR calculated a final total of-
fense level of 31.
Taking into account Mr. Ramirez’s previous criminal con-
victions, the PSR calculated a subtotal criminal history score
of 11 and then increased the score two points because
Mr. Ramirez had committed the instant offense while under
the supervision of the Wisconsin Department of Corrections
for previous convictions. Based on Mr. Ramirez’s 13 criminal
history points and his qualification as a career offender, the
PSR determined that his criminal history category was VI.
The PSR explained that the maximum term of imprison-
ment on Count One, a Class B Felony, was forty years with a
minimum mandatory term of five years. It also explained that,
based upon a total offense level of 31 and a criminal history
category of VI, the guideline imprisonment range was 188 to
235 months. Absent the career offender enhancement, the to-
tal offense level would have been 25, the criminal history cat-
egory would have been VI, and the corresponding guideline
range would have been 110 to 137 months’ imprisonment.
At the sentencing hearing on August 16, 2021, the district
court determined that, as set forth in the PSR, the total offense
level was 31, the criminal history category was VI, and the re-
4
sulting guideline range was between 188 and 235 months. At
4 The court overruled an objection from defense counsel regarding the
two-point enhancement for firearms, concluding that the enhancement
applied because § 2D1.1(b)(1) does not “require that the defendant actu-
ally use the gun or firearms during the commission of the instant offense”
and that, in any event, it made “no difference to the guideline calculation
6 No. 21-2587
the hearing, Mr. Ramirez asked the district court to take
5
“mercy” on him because of his upbringing. He stated that he
would “try to better” himself and “try to be more of a produc-
6
tive member of society.” He told the court that he had earned
his high school equivalency diploma, sought mental health
treatment, and been put on medication, which he had “never
7
been open to doing in the past.” He urged that he was “trying
8
to take steps now” and “wanting to change.”
In determining Mr. Ramirez’s sentence, the court first con-
sidered the “nature and circumstances of this offense,” noting
that it was a “very serious offense” because “[m]ethampheta-
mine laced with fentanyl is a very dangerous drug” that
“spread[s] poison around a community” and the amounts
9
were “significant.” The court then explained that the “pres-
ence of firearms,” specifically “semi-automatic handguns
which are extremely dangerous,” was “[a]nother aggravating
10
factor.” The court also noted that Mr. Ramirez’s prior his-
tory of conviction for being a felon in possession of a firearm
was significant. The court then noted that Mr. Ramirez was “a
because Mr. Ramirez [was] a career offender under the applicable guide-
lines.” Sent. Tr. at 5:17–6:3.
5 Id. at 10:23–25.
6 Id. at 11:3–4.
7 Id. at 11:19–21.
8 Id. at 11:22–23.
9 Id. at 13:11–14:15.
10 Id. at 14:16–24.
No. 21-2587 7
criminal history category VI by virtue of the career offender
11
provision.” The court further noted that, even without the
category VI designation, Mr. Ramirez’s criminal history was
“quite extensive” and seemed “uninterrupted from the time
12
he was 16.” Indeed, noted the court, he had “almost no em-
13
ployment history.”
In its consideration of the ultimate aims of Mr. Ramirez’s
sentencing, the court considered his childhood and upbring-
ing as a potential mitigating factor. Although the court noted
that it often looked for “corroboration” of a defendant’s ac-
count, it took Mr. Ramirez’s description of his “horrendous
14
childhood” at face value. The court stated:
If I were dealing with a young man, maybe
18, 19, 20 years old, I think the childhood—the
unfortunate childhood the defendant had
would carry more weight. But I’m not dealing
with a young man, I’m dealing with a person
who is 39 years of age. He’s had multiple terms
of probation with treatment ordered.
And the presentence report indicates he’s
been assessed for alcohol/drug treatment. He’s
up to his … third or fourth [conviction for
11 Id. at 15:7–8.
12 Id. at 15:8–10.
13 Id. at 15:11–12.
14 Id. at 15:13–18.
8 No. 21-2587
operating a vehicle while intoxicated] or some-
thing like that.
And he certainly has a lot of other probation
offenses including some violent ones against
women in particular that are of concern where
he simply didn’t take advantage of treatment
opportunities that were there. And even his
most recent prison stays involved treatment
that he went through but says it was of little
value.
I think treatment is, of course, very im-
portant, but treatment doesn’t really work until
someone is able, willing, and serious about
stopping their use of drugs, and it appears the
defendant has not had that attitude.
I’m impressed by the defendant’s allocution.
It sounds sincere, but the actions here speak
very loud. And the history here is one of re-
peated violations of the law and in frankly
frightening ways.
The defendant says he wants the Court to
give him a chance, but, you know, as I look at
this record it consists of probation with rela-
tively small jail terms which all look to me like
they’re treatment dispositions intending to have
a rehabilitative effect on the defendant. And for
most of his life that’s what he’s received. He’s
only received a couple of prison terms, and he
left the most recent one and almost immediately
No. 21-2587 9
returns to the same type of behavior except per-
haps on a higher level than before.
Confronted with a defendant with this type
of a childhood and this type of a history, one’s
left with either one of two options: Either the de-
fendant is incapable of changing and he is a
product of his environment; or the defendant
really has chosen to do—to live a life of crime.
And neither one is very—is very encouraging.
Both represent—or both lead to the conclusion
that the defendant is a significant danger to the
public and frankly his record reflects that.
I have no doubt that Mr. Ramirez is much
more than a product of his environment. I’m
confident that if he wanted to change, if he de-
cided to change, if he made the resolve to
change, he would be capable of changing.
But at this point in his life with this kind of a
record at age 39, I think he’s going to have to
show by his behavior that he’s serious about
this rather than the Court assume that there’s
going to be a change and give him a sentence
that assumes that change when it hasn’t been
forthcoming in the last some, what, 20 years.
So taking all these matters into considera-
tion, I’m satisfied that certainly a sentence less
than the guideline makes sense, but I’m not go-
ing to go down to certainly five years or even
eight. I’m satisfied that a sentence of 120
months, that’s 10 years, is a reasonable sentence,
10 No. 21-2587
fair and just, considering those factors, the need,
first of all, for just punishment. …
[A] significant sentence is necessary not only
to reflect the seriousness of the offense, but also
protect the public from further crimes of the de-
fendant.
And lastly, of course, the need for deterrence
here is strong. …
I’m satisfied that whatever rehabilitation is
15
likely to occur is most likely to occur in prison.
The court imposed a sentence of 120 months’ imprison-
ment to be served concurrently with any other sentence
Mr. Ramirez was serving, ordered eight years of supervised
release, and ordered a special assessment of $100 but no fine.
The other counts against Mr. Ramirez were dismissed.
Mr. Ramirez timely appealed.
II
A.
Mr. Ramirez first asks that we reevaluate our decision in
United States v. Ruth, 966 F.3d 642 (7th Cir. 2020). Although he
certainly would prefer that our court reverse course now, he
states that he makes this argument, “[a]t a minimum, … to
16
sufficiently preserve it for further review.”
15 Id. at 16:2–19:7.
16 Appellant’s Br. 11 n.2. Our panel could change course only with the
acquiescence of a majority of the judges in regular active service. See 7th
Cir. R. 40(e).
No. 21-2587 11
In Ruth, we held that a defendant’s prior cocaine convic-
tion under Illinois law, whose definition of “cocaine” was
broader than the federal definition of that substance, was nev-
ertheless a “controlled substance offense” under the career-
offender guideline. Id. at 651–54. We explained that “con-
trolled substance offense” is defined broadly in the career-of-
fender guideline and that “the definition is most plainly read
to ‘include state-law offenses related to controlled or counter-
feit substances punishable by imprisonment for a term ex-
ceeding one year.’” Id. at 654 (quoting United States v. Hudson,
618 F.3d 700, 703 (7th Cir. 2010)). We further explained that
“[a] controlled substance is generally understood to be ‘any
of a category of behavior-altering or addictive drugs, as her-
oin or cocaine, whose possession and use are restricted by
law.’” Id. (quoting Controlled substance, The Random House
Dictionary of the English Language (2d ed. 1987)).
In reaching this conclusion, we reasoned that it was “sig-
nificant” that “the career-offender guideline, and its defini-
tion of controlled substance offense, does not incorporate,
cross-reference, or in any way refer to the Controlled Sub-
stances Act,” although the “Sentencing Commission clearly
knows how to cross-reference federal statutory definitions
when it wants to” do so. Id. at 651. Furthermore, although the
first version of the Guidelines defined “controlled substance
offense” in cross-reference to the Controlled Substances Act,
the Sentencing Commission shortly thereafter “amended the
definition to what is substantially, and substantively, its cur-
rent form, without any cross-references.” Id. at 652. We saw
no compelling reason to import, on our own, the federal stat-
utory definition of controlled substance. See id.
12 No. 21-2587
We also acknowledged in Ruth that the courts of appeals
were divided on this issue, and that the weight of authority
favored the defendant’s view because the Second, Fifth,
Eighth, and Ninth Circuits had concluded that “controlled
substance” in U.S.S.G. § 4B1.2(b) referred to the federal statu-
17
tory definition. See id. at 653. We noted, however, that the
other side of the split consisted of the Sixth and Eleventh Cir-
cuits, although only in unpublished opinions. See id. Finally,
we noted that we were “not joining a side” in Ruth because
we had “already staked out” a position in United States v. Hud-
18
son, 618 F.3d 700 (7th Cir. 2010). Id. at 654.
17 We explained that the Second Circuit, applying the “Jerome presump-
tion” and the Supreme Court’s categorical-approach cases, had concluded
that federal law was “‘the interpretive anchor to resolve the ambiguity’
over the definition of ‘controlled substance offense.’” Ruth, 966 F.3d at 653
(quoting United States v. Townsend, 897 F.3d 66, 71 (2d Cir. 2018)). See also
infra note 26. The Fifth, Eighth, and Ninth Circuits had “applied the same
basic reasoning,” but had “considered a different provision of the Guide-
lines and a different term.” Id. (citing United States v. Gomez-Alvarez, 781
F.3d 787, 793 (5th Cir. 2015); United States v. Leal-Vega, 680 F.3d 1160, 1166
(9th Cir. 2012); United States v. Sanchez-Garcia, 642 F.3d 658, 661 (8th Cir.
2011)).
18 In Hudson, we addressed whether, “under the Sentencing Guidelines,
… crimes involving phony versions of illegal drugs [are] properly charac-
terized as ‘controlled-substance offenses.’” Hudson, 618 F.3d at 701. The
defendant had been “convicted of an Indiana offense related to a sub-
stance masquerading as a controlled substance, not under Indiana’s law
addressing counterfeit substances.” Id. at 703. We concluded that “‘look-
alike’ offenses constitute controlled-substance offenses for sentencing pur-
poses.” Id. at 701. We reasoned that “counterfeit substance,” which the
federal guideline does not define, should be given its “natural meaning”
rather than limiting it “to a particular state’s concept of what is meant by
that term.” Id. at 703–05. Therefore, “[v]iewed broadly, what [the
No. 21-2587 13
We recently declined to overrule Ruth in both United States
v. Wallace, 991 F.3d 810 (7th Cir. 2021), and United States v.
19
McLain, 849 F. App’x 590 (7th Cir. 2021).
Although we have said that “[p]recedents are not sacro-
sanct,” Buchmeier v. United States, 581 F.3d 561, 565 (7th Cir.
2009) (en banc), there can be no doubt that the doctrines of
stare decisis and precedent remain, as Justice Cardozo put it,
20
“the everyday working rule of our law.” There must be a
serious justification for our overruling a settled precedent. To
ensure that we adhere to this standard, we have articulated
three guideposts to alert us to situations that might justify
overruling circuit law: (1) “when the circuit is an outlier and
can save work for Congress and the Supreme Court by elimi-
nating a conflict,” (2) when the overruling “might supply a
new line of argument that would lead other circuits to change
their positions in turn,” and (3) “when prevailing doctrine
defendant] sold could be seen as a ‘counterfeit’ version of an illegal drug.”
Id. at 703.
19 See also, e.g., United States v. Dill, No. 21-2672, 2022 WL 2188533, at *2
(7th Cir. June 17, 2022); United States v. Sisk, No. 20-2493, 2021 WL 4314062,
at *1 (7th Cir. June 23, 2021); United States v. Carter, No. 20-2520, 2021 WL
3674654, at *1 (7th Cir. May 6, 2021); United States v. Atwood, No. 20-2794,
2021 WL 6337482, at *1 (7th Cir. Apr. 30, 2021); United States v. Gordon, No.
20-3096, 2021 WL 3674652, at *1 (7th Cir. Apr. 16, 2021). Ruth continues to
be cited as the accepted law of this circuit. See, e.g., United States v. Harris,
No. 21-1405, 2022 WL 7880843, at *7 (7th Cir. Oct. 14, 2022); United States
v. Moore, 50 F.4th 597, 601 (7th Cir. 2022). The parties refer to the precedent
that Mr. Ramirez seeks to overturn as either Ruth or Ruth and Wallace. For
simplicity, we refer to the relevant precedent only by the initial case, Ruth.
20 Benjamin N. Cardozo, The Nature of the Judicial Process 20 (1921).
14 No. 21-2587
works a substantial injury.” Id. at 566; United States v. Thomas,
27 F.4th 556, 559 (7th Cir. 2022).
The ongoing dialogue among the courts of appeals, as var-
ious courts join one side or the other of an existing split in
authority, places special responsibilities upon the participat-
ing courts. The doctrines of stare decisis and precedent re-
main the working rule of the law. But we also must remember
that “[t]here is no element of sovereignty in a federal judicial
21
circuit” and that we have a continuing responsibility to con-
sider thoughtfully and respectfully the subsequent decisions
of our sister circuits and state supreme courts when those de-
cisions present new arguments that we did not consider when
the issue was before us. Even then, as we noted in Buchmeier,
there may well be, in some instances, institutional concerns
that counsel against our reconsidering our view. See Buch-
meier, 581 F.3d at 566. But we must never forget that the “per-
colation” of an issue among the lower courts often produces
new perspectives or significant refinement of what has been
22
said before. In that situation, our role in the constant dia-
23
logue among the Nation’s appellate courts and our respon-
sibility to the litigants before us requires us to have the
21 Walter V. Schaefer, Reducing Circuit Conflicts, 69 A.B.A. J. 452, 454
(1983).
22 See Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1782
(2019) (per curiam); id. at 1784 (Thomas, J., concurring); California v. Car-
ney, 471 U.S. 386, 398 n.8, 400 n.11 (1985) (Stevens, J., dissenting). See gen-
erally Michael Coenen & Seth Davis, Percolation’s Value, 73 Stan. L. Rev. 363
(2021).
23 This dialogue often involves state supreme courts as well. See Sup. Ct.
R. 10(b).
No. 21-2587 15
judicial humility to reconsider our previous course. “Wisdom
too often never comes, and so one ought not to reject it merely
because it comes late.” Henslee v. Union Planters Nat’l Bank &
Tr. Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).
Here, Mr. Ramirez asks that we overturn Ruth and its
progeny. As we already have noted, those cases concerned the
“career offender” provision of the United States Sentencing
24
Guidelines. Under § 4B1.1(a) of the United States Sentencing
Guidelines, a defendant is a “career offender” if:
(1) the defendant was at least eighteen years old
at the time the defendant committed the instant
offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of vi-
olence or a controlled substance offense; and
(3) the defendant has at least two prior felony
convictions of either a crime of violence or a
controlled substance offense.
The Guidelines define a “controlled substance offense” as
an offense under federal or state law, punisha-
ble by imprisonment for a term exceeding one
year, that prohibits the manufacture, import, ex-
port, distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the
possession of a controlled substance (or a
24 In Ruth, we also held that the defendant’s prior Illinois cocaine convic-
tion was not a qualifying “felony drug offense” under 21 U.S.C.
§ 841(b)(1)(C) that would enhance his sentence and that the district court’s
erroneous conclusion to the contrary affected the defendant’s substantial
rights because the 21 U.S.C. § 851 enhancement increased his Guidelines
range. See Ruth, 966 F.3d at 645–50.
16 No. 21-2587
counterfeit substance) with intent to manufac-
ture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b).
Mr. Ramirez submits that two reasons articulated in Buch-
meier counsel overturning Ruth—namely, (1) that the Seventh
Circuit is an outlier and can save work for Congress and the
Supreme Court by eliminating a conflict and (2) that the Sev-
enth Circuit’s prevailing doctrine works a substantial injury.
In response, the Government maintains that none of the Buch-
meier reasons supports our changing course.
A well-recognized circuit split exists on this issue. Justice
Sotomayor’s statement accompanying a denial of certiorari in
Guerrant v. United States, 142 S. Ct. 640 (2022), which Justice
Barrett joined, described the circuit split as follows:
The Second and Ninth Circuits have turned
to federal law to define the term: In those Cir-
cuits, a defendant has committed a controlled
substance offense only if the offense involved a
substance listed in the Controlled Substances
Act (CSA), 21 U.S.C. § 801 et seq. See United
States v. Bautista, 989 F.3d 698, 702–704 (CA9
2021); United States v. Townsend, 897 F.3d 66, 68,
71 (CA2 2018). The First and Fifth Circuits have
not directly resolved the question, but have in-
dicated agreement with this approach. See
United States v. Crocco, 15 F.4th 20, 23–25 (CA1
2021) (describing reference to federal law as
“appealing” and reference to state law as
“fraught with peril”); United States v. Gomez-Al-
varez, 781 F.3d 787, 792–794 (CA5 2015) (relying
No. 21-2587 17
on the CSA to interpret the term “controlled
substance” in USSG § 2L1.2). In contrast, the
Fourth[,] … Seventh, Eighth, and Tenth Cir-
cuits[] define[] what qualifies as a “controlled
substance” based on the relevant state law. See
United States v. Jones, 15 F.4th 1288, 1291–1296
(CA10 2021); United States v. Henderson, 11 F.4th
713, 718–719 (CA8 2021); United States v. Ward,
972 F.3d 364, 371–374 (CA4 2020); United States
v. Ruth, 966 F.3d 642, 651–654 (CA7 2020). De-
fendants in those Circuits therefore qualify as
career offenders for federal sentencing purposes
even if their only prior offenses involved sub-
stances not prohibited under federal law. As a
result, they are subject to far higher terms of im-
prisonment for the same offenses as compared
to defendants similarly situated in the Second or
Ninth Circuits. … The Sixth and Eleventh Cir-
cuits have issued internally inconsistent deci-
sions on the question. See United States v. Solo-
mon, 763 Fed. Appx. 442, 447 (CA6 2019) (noting
inconsistency in past opinions); United States v.
Stevens, 654 Fed. Appx. 984, 987 (CA11 2016)
(federal law); United States v. Peraza, 754 Fed.
Appx. 908, 909–910 (CA11 2018) (state law).
25
Guerrant, 142 S. Ct. at 640.
25 In their Guerrant statement, Justices Sotomayor and Barrett stated that
“[i]t is the responsibility of the Sentencing Commission to address this di-
vision to ensure fair and uniform application of the Guidelines.” Guerrant,
142 S. Ct. at 640–41. The Sentencing Commission has stated that one of its
priorities for the amendment cycle ending May 1, 2023, is to resolve the
18 No. 21-2587
Our position plainly does not make us an outlier. Since our
decision in Ruth, the Fourth, Eighth, and Tenth Circuits have
taken the same view. See United States v. Jones, 15 F.4th 1288,
1291–96 (10th Cir. 2021); United States v. Henderson, 11 F.4th
713, 717–19 (8th Cir. 2021); United States v. Ward, 972 F.3d 364,
370–74 (4th Cir. 2020). These courts have agreed with us that
the plain language of U.S.S.G. § 4B1.2(b) refers to state as well
as federal law and that the lack of cross-references to the Con-
trolled Substances Act, when the Sentencing Commission
clearly knew how to cross-reference federal definitions else-
where in the Guidelines, counsels against importing that stat-
ute’s definition of “controlled substance.” See Jones, 15 F.4th
at 1292–93; Henderson, 11 F.4th at 718–19; Ward, 972 F.3d at
369–73. The Fourth Circuit set out a particularly thorough tex-
tual analysis. See Ward, 972 F.3d at 370–71.
Notably, in deciding the issue, the Fourth, Eighth, and
Tenth Circuits have articulated additional points, not specifi-
cally addressed in Ruth, that further support our position.
They have demonstrated, for instance, that the presumption
26
from Jerome v. United States, 318 U.S. 101, 104 (1943), does not
circuit split concerning whether an offense must involve a substance con-
trolled by the Controlled Substances Act to qualify as a “controlled sub-
stance offense” under § 4B1.2(b). See Federal Register Notice of Final 2022–
2023 Priorities, U.S. Sent’g Comm’n, https://www.ussc.gov/policymak-
ing/federal-register-notices/federal-register-notice-final-2022-2023-priori-
ties; Proposed Priorities for Amendment Cycle, 87 Fed. Reg. 60,438 (Oct.
5, 2022).
26 Under the Jerome presumption, courts “generally assume, in the ab-
sence of a plain indication to the contrary, that Congress when it enacts a
statute is not making the application of the federal act dependent on state
law.” Jerome, 318 U.S. at 104.
No. 21-2587 19
require defining “controlled substance” by reference to the
27
Controlled Substances Act. These courts have explained that
the Jerome presumption is overcome by the plain language,
disjunctive reference in § 4B1.2(b) to “federal or state law,” see
Jones, 15 F.4th at 1292; Ward, 972 F.3d at 374, and by Con-
gress’s intent as evidenced in 28 U.S.C. § 994(i)(1), which di-
rects the Sentencing Commission to fashion guidelines that
enhance the sentence of a defendant who has “a history of two
or more prior Federal, State, or local felony convictions,” see
Henderson, 11 F.4th at 719; see also Jones, 15 F.4th at 1296. These
courts also have expressed some reservation as to whether the
Jerome presumption applies at all to the interpretation of the
Sentencing Guidelines. See Henderson, 11 F.4th at 719; Ward,
28
972 F.3d at 374.
The Tenth Circuit also has addressed arguments that we
have not yet considered about the relevant enabling statute
and national uniformity. The Tenth Circuit rejected an argu-
ment that the relevant enabling statute, 28 U.S.C. § 994(h), i
limits the term “controlled substance” in § 4B1.2(b) to sub-
stances listed in the Controlled Substances Act. It explained
27 We acknowledged in Ruth that the Second Circuit had relied on the
Jerome presumption to reach its conclusion that the definition of “con-
trolled substance” should come from federal law, but we did not directly
address the Jerome presumption in reaching our own conclusion. See Ruth,
966 F.3d at 653 (citing Townsend, 897 F.3d at 71).
28 The Eighth Circuit noted that “the Supreme Court has rarely cited Je-
rome and never to [its] knowledge in a Guidelines case.” Henderson,
11 F.4th at 719. The Fourth Circuit concluded that, “[a]ssuming the Jerome
presumption should be applied to Guidelines promulgated by the Sen-
tencing Commission, [the court was] confident that it [was] overcome
here.” Ward, 972 F.3d at 374.
20 No. 21-2587
that “the statutory language requires the Commission to pro-
vide a career-offender enhancement for violations involving
drugs prohibited by the CSA, but it does not strip the Com-
mission of its authority to include drug offenses that are not
violations of the CSA as predicate crimes for a career-offender
enhancement.” Jones, 15 F.4th at 1294. Responding to argu-
ments concerning national uniformity, the Tenth Circuit con-
cluded that “disregarding any conviction under a state’s cate-
gorically broader, indivisible drug-offense statute in deter-
mining whether to enhance a defendant’s sentence arguably
undermines national uniformity in sentencing more than con-
sidering all state-law convictions under indivisible or divisi-
ble statutes, though some convictions might involve non-
CSA-listed substances.” Id. at 1296. In short, since our decision
in Ruth, our position has gained, not weakened, as the dia-
logue among the circuits has continued.
Mr. Ramirez still attempts, however, to portray us as an
outlier because, although we recognize the split, we have not
addressed explicitly the competing side’s arguments. He
chides us for claiming that we were not “joining a side” of an
29
existing split, but rather were applying related case law. He
also notes that the existence of “dissent within courts that
agree with the reasoning in Ruth” shows that those circuits
30
“are far from being firmly entrenched there.”
These arguments are unpersuasive. Our statement in Ruth
that we were not “joining a side” merely indicated that our
reasoning already had been explained in Hudson, 618 F.3d at
29 Reply Br. 2.
30 Id. at 4–7.
No. 21-2587 21
703–05. Our decision not to respond directly to the reasoning
of courts on the other side of the split in Ruth has no bearing
on whether our position is that of an outlier. Moreover, even
if Ruth had been an outlier in the circuit split when it was first
decided, Mr. Ramirez acknowledges that Justice Sotomayor’s
formulation of the split, in which this court is plainly not an
outlier, is currently the best identification of the circuit split
on this issue.
Mr. Ramirez also submits that, under Buchmeier, reconsid-
eration of Ruth is justified because this court’s position
“causes substantial, disparate injury to people tried in federal
31
courts within this Circuit.” The injury that Mr. Ramirez al-
leges seems best characterized as the unfairness that, as noted
by Justices Sotomayor and Barrett, defendants in this circuit
and the other circuits that take the same position “are subject
to far higher terms of imprisonment for the same offenses as
compared to defendants similarly situated in” circuits on the
other side of the split. Guerrant, 142 S. Ct. at 640. Although this
situation is undoubtedly one in need of reconciliation by the
Supreme Court or the Sentencing Commission, it is not the
sort of “substantial injury” that we envisioned would justify
the reconsideration of precedent. See Buchmeier, 581 F.3d at
566. As the Government suggests, until the conflicting views
of the circuits are reconciled, “it could just as easily be argued
that undercounting career offenders works a substantial injury
by failing to protect the public from recidivist drug crimi-
32
nals.”
31 Appellant’s Br. 14.
32 Appellee’s Br. 15 n.5.
22 No. 21-2587
Mr. Ramirez raises two other points that he believes re-
quire reconsideration of our position in Ruth. He submits that
the Jerome presumption provides that “federal, not state, legal
33
standards apply to federal sentencing provisions.” How-
ever, it is clear that we were aware of the Jerome presumption
when we decided Ruth. See Ruth, 966 F.3d at 653. Mr. Ramirez
also submits that “interpreting the definition of ‘controlled
substance’ in the Guidelines in accordance with federal law
promotes uniformity in federal sentencing law and with re-
34
spect to Guidelines ranges.” However, we were aware of the
circuit split at the time we decided Ruth.
For the foregoing reasons, we conclude that Mr. Ramirez
has not demonstrated that Ruth should be overruled.
B.
Mr. Ramirez also submits that the district court did not
consider adequately and meaningfully his primary mitigating
sentencing argument.
We have considered previously claims that a district judge
did not address adequately a defendant’s principal mitigation
argument. We have said that we simply “cannot have much
confidence in the judge’s considered attention to the [rele-
vant] factors” when the judge “passe[s] over in silence the
principal argument made by the defendant even though the
argument was not so weak as not to merit discussion.” United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The dis-
trict court, therefore, “must give meaningful consideration to
33 Appellant’s Br. 13.
34 Id.
No. 21-2587 23
the characteristics of the defendant that might bear on the ap-
propriate length of a sentence and explain how those charac-
teristics influenced the sentence the court chose.” United States
v. Patrick, 707 F.3d 815, 818 (7th Cir. 2013) (citing Rita v. United
States, 551 U.S. 338, 357 (2007); United States v. Miranda, 505
F.3d 785, 792 (7th Cir. 2007); Cunningham, 429 F.3d at 678). The
district court satisfies this standard when it “makes an ade-
quate, thoughtful analysis of the sentencing factors vis-à-vis
the facts of the case, and … makes it clear, on the record, that
in reaching the final sentence, [it] has considered the applicable
sentencing factors, and the arguments made by the parties.”
United States v. Collins, 640 F.3d 265, 271 (7th Cir. 2011).
On several occasions, we have concluded that a district
court, in the course of making a sentencing decision, failed to
consider a mitigating argument in a meaningful way. In
United States v. Cunningham, for example, we vacated and re-
manded for resentencing because the district court gave an
inadequate explanation for the sentence. See Cunningham, 429
F.3d at 680. We specifically noted that two related problems
undermined our confidence in the sentence. First, the district
court had stated that the defendant decided not to cooperate
against a co-defendant but made no inquiry into the cause
and significance of the defendant’s decision not to cooperate.
See id. at 677. Second, the district court did not mention the
defendant’s “psychiatric problems and substance abuse,
which [the defendant]’s lawyer wove into a pattern sugges-
tive of entrapment … as a mitigating factor not reflected in the
guidelines and also as a basis for [his] being given a sentence
different from a straight prison sentence.” Id. at 678.
In United States v. Miranda, 505 F.3d 785, 786 (7th Cir. 2007),
we similarly vacated and remanded for resentencing. The
24 No. 21-2587
defendant there had argued that his severe mental illness, and
in particular his diagnosis of schizoaffective disorder, re-
duced the need for deterrence, made incapacitation by im-
prisonment less appropriate, and rendered him less deserv-
ing of punishment. See id. at 792. We concluded that
“[a]lthough the district court mentioned [the defendant]’s
mental illness, the court did not specifically address [his]
principal, non-frivolous arguments based on these section
3553(a) factors.” Id. We therefore lacked confidence that the
district court “gave these arguments adequate considera-
tion.” Id. at 792–93.
We also remanded for resentencing in United States v. Pat-
rick, 707 F.3d at 820, in which the district court’s very brief
mention of the defendant’s mitigating argument based on co-
operation “shed[] little if any light on the judge’s thinking”
and also did not allow this court “to discern whether the [dis-
trict] court appreciated the severity of the sentence it im-
posed, and in particular its equivalence to the life sentence
that it had purportedly rejected.”
Mr. Ramirez first submits that, like the district court in the
above cases, the district court “failed to adequately consider”
his “extensive history of trauma, in breadth, variety, and du-
ration, [which] was surely a compelling, multi-layered miti-
35
gating argument for a lower sentence.” As Mr. Ramirez
views the matter, the district court erred in “merely
touch[ing] upon” his “long-standing struggles with substance
abuse” and in not discussing the physical abuse he suffered
or his “mental health struggles that appear to be at the core of
35 Id. at 30.
No. 21-2587 25
36
his reoccurring, relapsing drug and alcohol use.”
Mr. Ramirez sees his situation as analogous to the one in Mi-
randa and submits that, “given the extent of information about
the nature of his near-unspeakable upbringing,” and its im-
pact on his mental health, controlled substance use, and other
areas of his life, the district court had “to do more to assure
that it adequately considered a significant argument in miti-
37
gation.”
We cannot accept this argument. As we noted earlier, un-
like the situation in Miranda, the district court did address, ex-
plicitly and extensively, Mr. Ramirez’s principal mitigating
argument about his upbringing, including in reference to the
38
factors and goals of sentencing.
Mr. Ramirez also submits that the district court rejected
his primary mitigating argument because it had incorrect and
incomplete information about him. Specifically, Mr. Ramirez
argues that the district court had no clear basis for concluding
that Mr. Ramirez was effectively “too old” to justify a focus
on his childhood and that he had failed to take advantage of
39
prior opportunities to mend his ways. He invites our atten-
tion to the district court’s statement that he previously had
received only “relatively small jail terms which all look[ed] …
like … treatment dispositions intending to have a
36 Id. at 32.
37 Id. at 33–34.
38 See supra pp. 7–10.
39 Appellant’s Br. 30.
26 No. 21-2587
rehabilitative effect,” and argues that he had not, in fact, failed
to complete any effective rehabilitative treatment offered to
40
him.
Read in context, however, the district court’s statement
simply makes the point that over the course of his long crim-
inal history, Mr. Ramirez had received probationary sen-
tences and not many long prison sentences. Despite this leni-
ency, he had not changed the course of his life. The district
court deemed this factor to be relevant to an estimation of
Mr. Ramirez’s ability and willingness to change his ways.
We have reviewed the sentencing proceeding and the in-
formation available in the record concerning Mr. Ramirez’s
sentence. The district court was on solid ground in determin-
ing that Mr. Ramirez was not a good candidate for leniency
and posed a significant danger to the community.
CONCLUSION
The judgment of the district court is affirmed.
AFFIRMED
iSection 994(h) of Title 28 of the United States Code requires that the
Guidelines
specify a sentence to a term of imprisonment at or near
the maximum term authorized for categories of defend-
ants in which the defendant is eighteen years old or older
and—
(1) has been convicted of a felony that is—
(A) a crime of violence; or
40 Id. at 30–31.
No. 21-2587 27
(B) an offense described in section 401 of the Controlled
Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and
1009 of the Controlled Substances Import and Export Act
(21 U.S.C. 952(a), 955, and 959), and chapter 705 of title 46;
and
(2) has previously been convicted of two or more prior
felonies, each of which is—
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled
Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and
1009 of the Controlled Substances Import and Export Act
(21 U.S.C. 952(a), 955, and 959), and chapter 705 of title 46. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482437/ | AFFIRMED and Opinion Filed November 7, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00146-CV
SUZANNE HITSELBERGER, Appellant
V.
LOUIS BAKOS, Appellee
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-19-18280
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Goldstein
Opinion by Justice Goldstein
Suzanne Hitselberger appeals from the trial court’s final decree of divorce. In
three issues, Hitselberger argues the trial court abused its discretion by denying her
motion for continuance, characterizing the marital residence as community property,
and failing to award her spousal maintenance. We affirm the trial court’s judgment.
BACKGROUND
Hitselberger and Louis Bakos were married in September 2002 and stopped
living together in September 2019. In September 2019, Bakos1 filed his original
petition for divorce. In November 2019, Hitselberger filed a counterpetition for
divorce. Prior to commencement of the bench trial on August 26, 2020, the trial
court heard argument concerning Hitselberger’s motion for a continuance.
Hitselberger’s counsel informed the court that Hitselberger was admitted to the
hospital the day before trial for “mental health issues” and sought a continuance on
that basis. Bakos’ counsel responded that previously, in November 2019,
Hitselberger had voluntarily checked herself into a mental facility “on the eve of a
contested – what she would suspected to be a final hearing.” Bakos’ counsel argued
that Bakos was “entitled to be free” of Hitselberger because he was paying $2400
per month in temporary spousal maintenance that was “entered against him many,
many, many months ago” and also paying the debt service on Hitselberger’s credit
cards. Bakos counsel stated he understood if the trial court was inclined to grant the
motion for continuance “given the exact circumstances,” but he asserted Bakos
needed “relief today on this $2400.00 a month” in temporary spousal maintenance
that “would have ended today.” Bakos’ counsel reminded the court that
1
This Court received a suggestion of death that Bakos passed away in January 2022. This appeal is
proceeding forward with the appearance of the Temporary Administrator appointed for the Estate of Louis
Michael Bakos.
–2–
Hitselberger’s counsel’s motion to withdraw remained pending, and Bakos had paid
$7000 directly to Hitselberger’s counsel for the “huge amount of time” spent in trial
preparation. Bakos’ counsel stated that, if Hitselberger’s counsel withdrew, it would
“restart this process” with a new attorney who would require new fees. The trial
court expressed concern that, if the case was reset, it would “probably be January
before I get back to it.” The trial court then denied the motion for continuance.
At the trial that followed, Bakos testified that, prior to the marriage, Bakos
purchased a residence in Dallas but added Hitselberger to the deed during the
marriage. However, the deed was not admitted into evidence. Sworn inventory and
appraisement documents filed by Bakos and Hitselberger both listed the marital
residence as community property.
Regarding Hitselberger’s employment history, Bakos testified Hitselberger
worked as a real estate agent since 2016. Even though Hitselberger had been on SSI
disability insurance since 2001 or 2002, Bakos testified, she continued to work at
various jobs: “a job at Centex for awhile working in the office”; work at
“LaunchAbility as a trainer”; running a swim school for “a couple of summers”; and
work as an interior decorator, substitute teacher, and real estate agent.
Psychiatrist Robert Freele testified Hitselberger had been one of his patients
for about ten years and experienced major depressive disorder, posttraumatic stress
disorder, alcohol dependence, and cannabis abuse. Freele described passive suicidal
thoughts as “where you wish you were dead” and testified Hitselberger reported
–3–
suicidal thoughts “since I met her off and on” and the suicidal thoughts were usually
passive. When asked about Hitselberger’s ability to work, Freele testified he had
“not determined that she’s disabled from working” but “just stated that she does not
work.” Freele recalled that Hitselberger had been working on getting a real estate
license, but he did not remember if she “finally got it or was working or not.” When
asked if it was his opinion that Hitselberger was permanently disabled and unable to
work, Freele testified he had “no idea” and had “not evaluated [Hitselberger] for
that.”
On October 1, 2020, the trial court entered a memorandum ruling that, among
other things, granted the divorce, denied spousal support, and made the following
disposition of marital property:
The Court finds that wife and husband each have grounds for an
unequal division of the marital property; however, the Court will offset
their claims for unequal division and grant essentially an equal division.
The Court awards the husband the marital property as his sole and
separate property. The marital assets shall be awarded as outlined in
the following spreadsheet and is conditioned upon the payment of the
attorney fees herein.2 Community personal property is awarded to the
party in possession or their control.
The spreadsheet attached to the memorandum ruling, after making various awards
to Bakos including attributing $85,059 for the marital residence3 and a lesser
percentage of the 401k in the amount of $39,514 and awards to Hitselberger
2
Bakos ordered to pay $14,000 in attorneys’ fees from the home equity loan (HELOC) by a date certain.
3
The value was determined by establishing the fair market value, less the mortgage and the HELOC.
–4–
including $87,786.00 from the 401(k) and an automobile valued at $20,300, minus
credit card and other debt, reflected that the total value of the assets/debt was
$53,090 and awarded an equal share of $26,545 to each. On December 2, 2020, the
court entered its Final Decree of Divorce and Hitselberger’s motion for new trial
was denied by operation of law.4 This appeal followed.
DENIAL OF CONTINUANCE
In her first issue, Hitselberger complains the trial court abused its discretion
by denying her motion for continuance. Specifically, Hitselberger argues her
absence from trial denied her the ability to participate in her trial and aid her counsel
and her testimony was material “as only she can corroborate that she suffered years
of domestic violence and abuse throughout the marriage by husband.”
We review the denial of a motion for continuance for an abuse of discretion.
Wal–Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Dallas
2009, pet. denied). The denial will be reversed only if the trial court's action was
arbitrary, unreasonable, or without reference to any guiding rules and principles.
Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.—Dallas 2008, no
pet.). A party moving for continuance must show sufficient cause supported by
affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. Failure
to comply with this requirement creates a rebuttable presumption that the trial court
4
Despite requests for findings of fact and conclusions of law, none were entered by trial court.
–5–
did not abuse its discretion in denying a motion for continuance. Moffitt v. DSC Fin.
Corp., 797 S.W.2d 661, 663 (Tex. App.—Dallas 1990, writ denied). Whether a
continuance should be granted is to be judged in light of facts before the trial judge
at the time the motion is presented. Aguilar v. LVDVD, L.C., No. 08-01-00438-CV,
2002 WL 1732520, at *3 (Tex. App.—El Paso July 25, 2002, pet. denied) (not
designated for publication) (citing Gulf Ins. Co. v. Dunlop Tire and Rubber Corp.,
584 S.W.2d 886, 889 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e.)).
In family law cases, the abuse-of-discretion standard of review overlaps with
the traditional sufficiency standards of review; as a result, insufficiency of the
evidence is not an independent ground of reversible error, but instead constitutes a
factor relevant to our assessment of whether the trial court abused its discretion. In
re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.). To determine
whether the trial court abused its discretion, we consider whether the trial court (i)
had sufficient evidence upon which to exercise its discretion and (ii) erred in its
exercise of that discretion. Id. We conduct the applicable sufficiency review with
regard to the first question. Id. We then proceed to determine whether, based on the
elicited evidence, the trial court’s decision “was neither arbitrary nor unreasonable.”
Moroch, v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). A
trial court does not abuse its discretion if it bases its decision on conflicting evidence
as long as there is some evidence of a substantive and probative character to support
–6–
the decision. In re S.N.Z., 421 S.W.3d 899, 911 (Tex. App.—Dallas 2014, pet.
denied); Moroch, 174 S.W.3d at 857.
Mere absence of a party does not automatically entitle him to a continuance.
Humphrey v. Ahlschlager, 778 S.W.2d 480, 483 (Tex. App.—Dallas 1989, no writ).
When a motion for continuance is based upon the absence of a party, there must be
a showing of diligence in attempting to obtain the required testimony. Id. The due
diligence requirement in procuring a witness’ testimony has been considered by a
number of courts when a motion for continuance has been based upon the illness of
a witness. Id. Further, there is a necessity to show by affidavit the materiality of the
testimony to be offered by the absent witness. Id.
Here, Hitselberger filed her motion for continuance on the day before the case
was set for trial. The motion stated that Hitselberger’s counsel was notified that
Hitselberger was checked into the hospital “due to suicidal ideation and other mental
health issues that threatened her life and safety.” The motion requested “at least a
90-day continuance” due to Hitselberger’s admission to the hospital. The motion
for continuance contained the attorney’s verification that the “statements contained
in the motion [were] within [her] personal knowledge and [were] true and correct.”
However, the motion was not supported by an affidavit demonstrating
sufficient cause for the continuance. See TEX. R. CIV. P. 251. The motion neither
reflected whether there was any effort during the pendency of the case to procure
her testimony nor did Hitselberger otherwise attempt, either in her motion or at the
–7–
hearing on the motion, to establish the substance of the testimony she was prevented
from presenting or the materiality of such testimony to the relevant issues. See
Humphrey, 778 S.W.2d at 483. Under these circumstances, we conclude the trial
court did not abuse its discretion in denying Hitselberger’s motion for continuance.
See Garner, 244 S.W.3d at 858. We overrule Hitselberger’s first issue.
MARITAL RESIDENCE AS COMMUNITY PROPERTY
In her second issue, Hitselberger argues the trial court abused its discretion by
determining the marital residence was community property and awarding the marital
residence to Bakos. Hitselberger complains that Bakos purchased the marital
residence before the marriage, and the deed to Bakos and Hitselberger during the
marriage vested in each of them a one-half separate property interest in the marital
residence. With each spouse owning one-half of the marital residence, Hitselberger
argues, “the only option the trial court had was to order the sale of the marital
residence with the proceeds being split equally.
When reviewing an alleged property characterization error, we must
determine whether the trial court’s finding is supported by clear and convincing
evidence and whether the characterization error, if established, was an abuse of
discretion. Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007,
pet. denied). We must indulge every reasonable presumption in favor of the trial
court’s proper exercise of its discretion in dividing marital property. Sink v. Sink,
364 S.W.3d 340, 343 (Tex. App.—Dallas 2012, no pet.). We will reverse the ruling
–8–
of the trial court only if the record demonstrates that the trial court clearly abused its
discretion, and the error materially affected the just and right division of the
community estate. Id.
When the burden of proof at trial is by clear and convincing evidence, we
apply a higher standard of legal and factual sufficiency review. Id. at 344. Clear
and convincing evidence is defined as that “measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007; Sink,
364 S.W.3d at 344. In reviewing the evidence for legal sufficiency, we look at all
the evidence in the light most favorable to the judgment to determine if the trier of
fact could reasonably have formed a firm belief or conviction that its finding was
true. See Moroch, 174 S.W.3d at 858. We must assume that the fact finder resolved
disputed facts in favor of its finding if a reasonable fact finder could do so. Id. In
reviewing the evidence for factual sufficiency, we must give due consideration to
evidence that the fact finder could reasonably have found to be clear and convincing
and then determine whether, based on the record, a fact finder could reasonably form
a firm conviction or belief that the allegations in the petition were proven. Sink, 364
S.W.3d at 344.
Bakos testified that he purchased the marital residence before the marriage
and deeded the residence to himself and Hitselberger during the marriage. Although
neither Bakos nor Hitselberger introduced copies of the purchase documents or the
–9–
purported deed, the purchase and deed transactions are not disputed and each filed a
sworn inventory and appraisement listing the marital residence as community
property. While Hitselberger complains that she was entitled to her half of the
marital residence, 5 she does not dispute the ultimate equitable division of all assets
and debt allocation as part of the court’s efforts to enter an “essentially equal
[property] division,” awarding a total of $26,545 each to Bakos and Hitselberger.
Under these circumstances, we conclude the trial court did not abuse its discretion
in characterizing the marital residence as community property. See Sink, 364 S.W.3d
at 344; Magness, 241 S.W.3d at 912. We overrule Hitselberger’s second issue.
SPOUSAL MAINTENANCE
In her third issue, Hitselberger complains the trial court abused its discretion
in failing to award her spousal maintenance. Hitselberger asserts the evidence
showed that she is “unable to work as a result of her medical diagnoses.”
We review the trial court’s decision whether to award spousal maintenance
under an abuse of discretion standard. Tellez v. Tellez, 345 S.W.3d 689, 691 (Tex.
App.—Dallas 2011, no pet.). The purpose of spousal maintenance is to provide
temporary and rehabilitative support for a spouse whose ability to support herself
has eroded over time while engaged in homemaking activities and whose capital
5
We note there is no challenge as to the amounts allocated for the fair market value or the amounts
assigned for the mortgage and HELOC debt deductions, which debts were assigned to Bakos in the final
decree.
–10–
assets are insufficient to provide support. See Deltuva v. Deltuva, 113 S.W.3d 882,
888 (Tex. App.—Dallas 2003, no pet.). A trial court may exercise its discretion and
award spousal maintenance if the party seeking maintenance meets specific
eligibility requirements. See TEX. FAM. CODE ANN. § 8.051(2); Pickens v. Pickens,
62 S.W.3d 212, 214–15 (Tex. App.—Dallas 2001, pet. denied). When a divorce is
sought in a marriage lasting ten years or more, a spouse is eligible to seek spousal
maintenance if the spouse lacks sufficient property to meet minimum reasonable
needs and cannot support himself due to an incapacitating physical or mental
disability. See TEX. FAM. CODE ANN. § 8.051; Pickens, 62 S.W.3d at 215. Deciding
what the minimum reasonable needs are for a particular individual is a fact-specific
determination that should be made by the trial court on a case-by-case basis. In re
Hale, 975 S.W.2d 694, 698 (Tex. App.—Texarkana 1998, no pet.).
Intertwined with her argument that she should have received spousal
maintenance, Hitselberger asserts that the trial court, by awarding the marital
residence to Bakos, “further reduced [her] ability to financially support herself
following the divorce. Again, Hitselberger ignores the fact that the trial court entered
an “essentially equal [property] division” despite its characterization of the marital
residence as community property. Further, the record shows that, while Hitselberger
has been receiving disability payments since 2001 or 2002, she had also been
employed in various jobs and worked as a real estate agent since 2016.
Hitselberger’s own expert, Freele, testified he had “not determined that she’s
–11–
disabled from working” but “just stated that she does not work.” Freele did not
remember whether Hitselberger obtained her real estate license. Finally, when asked
if it was his opinion that Hitselberger was permanently disabled and unable to work,
Freele testified he had “no idea” and had “not evaluated [Hitselberger] for that.”
Under these circumstances, we conclude the trial court did not err in making the fact-
specific determination that Hitselberger did not establish that she cannot support
herself due to an incapacitating physical or mental disability. See TEX. FAM. CODE
ANN. § 8.051; Pickens, 62 S.W.3d at 215; In re Hale, 975 S.W.2d at 698.
Accordingly, we determine the trial court did not abuse its discretion in refusing to
award spousal maintenance. See Tellez, 345 S.W.3d at 691. We overrule
Hitselberger’s third issue.
We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
210146F.P05
–12–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SUZANNE HITSELBERGER, On Appeal from the 256th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DF-19-18280.
No. 05-21-00146-CV V. Opinion delivered by Justice
Goldstein. Justices Schenck and
LOUIS BAKOS, Appellee Reichek participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee LOUIS BAKOS recover his costs of this
appeal from appellant SUZANNE HITSELBERGER.
Judgment entered November 7, 2022
–13– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482438/ | Affirmed in part; Reversed in part and Remanded and Opinion Filed
November 7, 2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00058-CV
FRISCO MEDICAL CENTER, L.L.P. AND TEXAS REGIONAL MEDICAL
CENTER, L.L.C., Appellants
V.
PAULA CHESTNUT AND WENDY BOLEN, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Appellees
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-07283
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
Frisco Medical Center, L.L.P. and Texas Regional Medical Center, L.L.C. (the
Hospitals) appeal the trial court’s order granting appellees Paula Chestnut and
Wendy Bolen’s motion for class certification in a lawsuit regarding emergency
medical care fees. The Hospitals contend the trial court erred because (1) Texas Rule
of Civil Procedure 42’s class certification requirements were not met; (2) the class
definition is improper; and (3) the order’s trial plan is insufficient. We reverse the
trial court’s order in part, affirm the order in part, and remand this case to the trial
court for further proceedings.
Background
Appellees filed this class action lawsuit against the Hospitals in May 2019,
complaining of the Hospitals’ “unfair, false, misleading and deceptive practice of
charging emergency care patients, seen at one of Defendants’ hospital emergency
room facilities, an ‘Evaluation and Management Services Fee’ (hereinafter ‘E&M
Fee’) without providing notification of Defendants’ intention to charge such a Fee
for the patient’s emergency room visit.” In their live petition, appellees contended
(1) “none of Defendants’ Contracts described, mentioned, or informed emergency
care patients of the hospital’s intention to charge an E&M Fee for being seen and
treated in the hospital’s emergency room facilities”; (2) “neither the E&M Fee nor
the intention to add an E&M Fee to the Total Charges billed to the patient’s account
is or was disclosed on any signage posted in or around the emergency room facilities,
or disclosed verbally during the patient’s registration process”; (3) “[d]espite the
lack of disclosure, at all relevant times Defendants had a practice of charging
emergency department patients a hidden and undisclosed E&M Fee set at one of five
levels generally related to the seriousness and complexity of the patient’s condition,
with such level being determined after treatment had been furnished, based on a
secret formula or algorithm known only to Defendants”; (4) “a reasonable consumer
would deem advance knowledge that he or she would be charged a substantial E&M
–2–
Fee to be an important factor in determining whether or not to remain for treatment
at Defendants’ facilities or seek less costly treatment elsewhere”; and
(5) “emergency care patients have an absolute right to be informed about a
substantial E&M Fee prior to receiving treatment that will trigger such charge.”
The petition also stated:
This complaint applies to patients who received treatment and
services at one of Defendants’ hospital emergency care facilities on or
after July 10, 2015, who were assessed an Evaluation and Management
Services Fee for their emergency room visit designated with a CPT
Code of 99281, 99282, 99283, 99284, or 99285, and who made
payments for their visit and/or have a remaining account balance which
has not been formally discharged or waived. By this complaint,
Plaintiffs seek declaratory relief, injunctive relief, and restitution, on
the basis that these E&M Fees were never properly disclosed in advance
of treatment or agreed to. The relief requested is based on the fact that
Defendants’ billing practices with respect to the undisclosed E&M Fees
were and continue to be unfair, unreasonable, unconscionable and/or
violative of the Texas Deceptive Trade Practices–Consumer Protection
Act, Tex. Bus. & Com. Code § 17.41 et seq. (“DTPA”), as well as
Texas’ common law.
The petition asserted two causes of action: “declaratory judgment” and “request for
relief under DTPA.”
In their declaratory judgment cause of action, appellees stated:
Plaintiffs and the members of the Class . . . contend that under
Defendants’ Contracts they should not have been required to pay for
undisclosed E&M Fees. . . . To resolve the ongoing disputes over the
propriety of Defendants’ E&M Fees being charged under the
circumstances described herein, Plaintiffs and the members of the Class
are entitled to a determination as to whether patients had a “right to
know” and/or Defendants had a “duty to disclose” their E&M Fees in
advance of such E&M Fees being incurred, and are further entitled to a
declaration and appropriate injunctive relief with regard to a patient’s
–3–
legal rights and duties and the construction of Defendants’ form
Contracts. Specifically, Plaintiffs and the members of the Class are
entitled to a declaration that Defendants’ practice of charging a
substantial undisclosed E&M Fee in addition to the charges for the
specific services and treatments provided was not authorized by
Defendants’ form Contracts, was violative of Texas common law, and
was violative of the DTPA.
That cause of action also asserted (1) plaintiffs and class members are entitled to
“equitable relief, including restitution,” and (2) the portions of the amounts plaintiffs
and class members have paid that are attributable to the E&M Fees, and the
cancellation of those portions of outstanding account balances that are attributable
to the E&M Fees, “can be readily determined from Defendants’ existing records
without the need for individual trials or hearings.” The petition asked the trial court
to “issue a declaratory judgment declaring one or more of the following”:
(a) that Defendants’ billing practices with respect to E&M Fees as they
relate to Plaintiffs and the Class are unconscionable under Texas
common law;
(b) that Defendants’ billing practices with respect to E&M Fees as they
relate to Plaintiffs and the Class are an unconscionable action or course
of action as defined by Tex. Bus. & Com. Code §17.45(5), a provision
of the DTPA;
(c) that the form Contracts used in Defendants’ emergency room
facilities during the class period do not describe, mention, or authorize
the undisclosed E&M Fees complained of herein;
(d) that Plaintiffs and members of the Class are not liable to Defendants
for the E&M charges and are entitled to a refund of those portions of
patient payments attributable to the E&M Fees; and
(e) that Defendants’ billing practices as they relate to Plaintiffs and the
Class are deceptive trade practices as defined in the DTPA and, more
particularly, by Tex. Bus. & Com. Code §§ 17.46 and 17.50.
–4–
In their DTPA cause of action, appellees asserted the Hospitals “have
committed one or more ‘false, misleading, or deceptive acts or practices’ and/or
unconscionable trade practices” that “constitute one or more violations of . . . the
DTPA: Tex. Bus. & Com. Code § 17.46(b), subparts (12) and (24), and Tex. Bus. &
Com. Code § 17.50(a), subparts (1) and (3).” Appellees sought an order enjoining
the Hospitals from:
(a) seeking collection of the undisclosed E&M Fees from Plaintiffs and
the members of the Class who have existing outstanding account
balances;
(b) representing that the Contracts authorize Defendants to charge
undisclosed E&M Fees when they do not; and
(c) continuing to charge E&M Fees without informing emergency room
patients of such charges in advance of their being incurred.
Appellees’ DTPA cause of action also stated they “further seek restitution of
payments made by class members attributable to the E&M Fees charged for their
emergency room visit.”
The Hospitals filed a general denial answer and asserted numerous
“affirmative and other defenses,” including that “Defendants have no duty to make
any disclosure of the [E&M Fee] that was not made” and that “Plaintiffs’ claims and
the claims of the putative class members are preempted and/or barred, in whole or
in part,” by “the applicable statute of limitations,” “an express contract that obligates
them to pay all hospital fees,” their own knowledge regarding “the alleged omissions
–5–
upon which their claims are based,” and “the Emergency Medical Treatment and
Active Labor Act, 42 U.S.C. § 1395dd” (EMTALA).
Appellees filed a September 3, 2020 motion for class certification which they
amended on February 22, 2021. The amended class certification motion stated “[t]he
acts and omissions complained of are Defendants’ uniform practice of failing to
notify or warn prospective ER patients of their intention to assess a separate Facility
Fee, failing to obtain an agreement to pay a separate Facility Fee and charging an
undisclosed Facility Fee to class members,” which “constitute unfair, false,
deceptive and/or misleading practices under Texas’ common and statutory law.”
Appellees contended the following “questions of law and fact” “are common to the
class and predominate over any questions affecting only individual members”:
(1) whether Defendants had a duty to notify class members that they
would be assessed a separate ER Facility Fee for their visit in advance
of such Fee being incurred;
(2) whether Defendants provided reasonable notice to class members
of their intention to assess a separate ER Facility Fee for their visit;
(3) whether Defendants’ Condition of Admission form (used in
Defendants’ Frisco facility) and Consent of Treatment and Condition of
Service (used in Defendants’ Sunnyvale facility) contained an
agreement to pay a separate Facility Fee for an ER visit;
(4) whether the Emergency Medical Treatment and Labor Act, 42
U.S.C. § 1395dd (“EMTALA”), prohibits Defendants from disclosing
ER Facility Fees to emergency room patients in advance of providing a
medical screening examination triggering such Fee; and
(5) whether Defendants charged class members a separate Facility Fee.
–6–
Appellees’ motion stated this lawsuit “is properly maintained as a [Texas Rule
of Civil Procedure] 42(b)(3) class action in that (1) the action meets all of the
requirements of Rule 42(a), (2) the questions of law or fact common to the members
of the class predominate over any questions affecting only individual members, and
(3) a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.” Appellees asserted that “the exact percentage of a
patient’s total charges for his ER visit that is attributable to a separate ER Facility
Fee is . . . shown by the data maintained and already produced by Defendants,” and
thus “the precise amount of any restitution due class members, or any reduction in
outstanding balances as a result of eliminating the billed ER Facility Fees, can be
calculated to the penny using information Defendants have produced.” Additionally,
appellees contended that “the ‘duty to disclose’ issue, the question as to whether the
Consent Agreement contains an agreement for class members to pay a separate
Facility Fee for their ER visit, and the interpretation of EMTALA are all
appropriately determined as ‘class issues’ pursuant to Rule 42(d)(1).”
The Hospitals filed an April 19, 2021 “opposition” to the amended class
certification motion in which they asserted, among other things, (1) plaintiffs lack
standing as to any prospective relief; (2) the proposed class definition “includes
future patients that are not clearly ascertainable, and is impermissibly overbroad in
including past patients that made no payment and/or have no remaining account
balance attributable to the complained of fee”; (3) “Texas law is clear that the claims
–7–
Plaintiffs press in this case—predicated on alleged violations of the DTPA and
allegedly unconscionable conduct—cannot be pursued on a classwide basis as a
matter of law”; (4) the issue of “whether Defendants have a ‘duty to disclose’” the
existence and amount of their E&M Fees “cannot be resolved on a classwide basis
and will not advance the actual claims in this lawsuit in any material way”; and
(5) “Defendants’ electronic records do not show whether any portion of a patient’s
payment and/or account balance is attributable to the E&M Services Fee or the
specific amounts attributable to the E&M Services Fee.”
Appellees filed a May 17, 2021 reply brief in support of class certification,
stating this action presents “two specific theories of liability.” The first theory is
“that Defendants charged an undisclosed, surprise [E&M] Fee to their emergency
room patients despite the fact that there was no contractual agreement or obligation
contained in Defendants’ form contracts into which members of the plaintiff class
entered to pay an E&M Fee in connection with the patients’ emergency room visits.”
Appellees contended “[t]he determination as to whether or not the form contracts at
issue herein contained an agreement or obligation to pay an E&M Fee should be
made only once and on behalf of all emergency room patients,” as “there are only
two such contracts at issue; every class member entered into one of them; and the
language they contain bearing on this point is identical.” According to appellees,
because “[t]he only individual issues that must be determined are the damages for
individual patients and Plaintiffs offer a simple, direct and one hundred percent
–8–
accurate methodology for determining individual damages to class members,”
“[c]ertification under this theory of liability is completely appropriate under Tex. R.
Civ. P. 42(b)(3).” Specifically, appellees argued:
[T]he individual charges or amounts for each charge that make up the
total charge billed to a patient are not separately listed in the patient’s
billing statement. Accordingly, the only reasonable way to attribute the
patient’s payment of billed charges is on a pro-rata basis for all of the
individual charges. Thus, if the patient’s E&M Charge shown in
Defendants’ electronic database was twenty percent of the Total Billed
charges shown in Defendants’ electronic database for a specific
emergency room visit, then twenty percent of the patient’s payment
should logically be attributed to the E&M Charge.
Appellees stated that their second theory of liability is that the Hospitals
violated “a duty to disclose their intention to charge E&M Fees to prospective
emergency room patients prior to providing the services and treatment that trigger
these fees.” Appellees asserted that “certification as to the ‘duty to disclose’ theory
may be more appropriately certified for declaratory and injunctive relief under Rule
42(b)(2),” but “at bare minimum certification as to this duty to disclose issue would
be appropriate as an ‘issue class’ certified under Tex. R. Civ. P. 42(d)(1).”
The Hospitals filed a June 25, 2021 objection to appellees’ seeking Rule
42(b)(2) certification “for the first time in their Reply.” The Hospitals also filed
supplemental declarations of Frisco Medical Center’s senior revenue director
Donald Jensen and Texas Regional Medical Center’s business office manager
Ashley Phillips, disputing appellees’ assertion that the amount of each patient’s
–9–
purported damages can be accurately calculated from the Hospitals’ electronic
billing records produced to appellees during discovery.
Following a July 16, 2021 hearing, the trial court signed a December 31, 2021
“Order Certifying Class Action with Trial Plan” that defined the class as described
in appellees’ petition. The order granted appellees’ motion for class certification
“pursuant to Rule 42 of the Texas Rules of Civil Procedure with respect to Plaintiffs’
declaratory judgment claim and Plaintiffs’ DTPA claims based on sections
17.46(b)(12), 17.46(24), 17.50(a)(1), and 17.50(3),” and contained “findings and
conclusions” regarding the claims and issues and how Rule 42’s requirements were
met.1 The order also contained a “trial plan” that stated:
1
The trial court found that “the following issues are subject to being decided in a final trial in this
cause”:
1. To establish a claim for declaratory relief, Plaintiffs must establish one or more of the
following:
i) that Defendants have a duty to disclose Facility Fees to emergency room patients in
advance of providing emergency room services and/or treatment;
ii) that the Facility Fee covers, in whole or in part, the overhead, administrative, and
operational expenses incurred in operating an emergency room facility;
iii) that the form contracts used in Defendants’ emergency room facilities during the class
period do not describe, mention, or authorize the undisclosed ER Facility Fees;
iv) that Defendants’ billing practices concerning the Facility Fees are deceptive trade
practices as defined in the DTPA and, more particularly, by Tex. Bus. Com. Code §§ 17.46
and 17.50;
v) that Defendants’ billing practices with respect to Facility Fees are unconscionable under
Texas common law;
vi) that Defendants’ billing practices with respect to Facility Fees are an unconscionable
action or course of action as defined by Tex. Bus. Com. Code § 17.45(5); and/or
vii) that members of the Class are not liable to Defendants for the Facility Fees and are
entitled to a refund of those portions of patient payments attributable to the ER Fees during
the class period.
2. To establish a claim under the DTPA, Plaintiffs must establish that Plaintiffs are
consumers; that Defendants can be sued under the DTPA; and one or more of the following:
–10–
1. The law of the State of Texas will apply.
2. Class claims will be tried before a jury the same as an individual suit
pursuing these claims with the exception that the Court will be required
to establish the notice, proofs of claim, and other class procedures under
Rule 42.
3. Plaintiffs only seek declaratory relief, injunctive relief, restitution of
payments, and attorneys’ fees, expert fees, and court costs. Plaintiffs
seek no exemplary damages.
4. The Court will establish a procedure for reviewing proof of claim
forms if required. At present, the only issues covered by the proof of
claim forms include the identity of Class members, membership in the
Class, and the amount of money paid by Class members for Facility
Fees during the class period.
The Hospitals timely filed this interlocutory appeal. See TEX. CIV. PRAC. &
REM. CODE § 51.014(a)(3).
Standard of review and applicable law
We review a class certification order for abuse of discretion. Bowden v.
Phillips Petroleum Co., 247 S.W.3d 690, 696 (Tex. 2008) (citing Compaq Comput.
i) that Defendants represented that an agreement confers or involves rights, remedies, or
obligations which it does not have or involve, or which are prohibited by law;
ii) that Defendants failed to disclose information concerning goods or services which was
known at the time of the transaction if such failure to disclose such information was
intended to induce the consumer into a transaction into which the consumer would not have
entered had the information been disclosed;
iii) that Defendants used or employed a false, misleading, or deceptive act or practice that
is enumerated in section 17.46 of the DTPA and relied on by the consumer to the
consumer’s detriment; and/or
iv) that Defendants engaged in an unconscionable action or course of action, that is, an act
or practice which, to a consumer’s detriment, takes advantage of the lack of knowledge,
ability, experience, or capacity of the consumer to a grossly unfair degree.
3. Defendants have asserted affirmative defenses based on EMTALA, standing, the statute
of limitations, the voluntary payment rule, estoppel, waiver, among others. The Court
FINDS that these defenses may be tried using class-wide evidence and that individual
issues, if any, are manageable.
–11–
Corp. v. Lapray, 135 S.W.3d 657, 671 (Tex. 2004)); see also Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (trial court abuses its discretion if it acts arbitrarily,
unreasonably, or without reference to any guiding principles). “We do not, however,
indulge every presumption in the trial court’s favor, as compliance with class action
requirements must be demonstrated rather than presumed.” Bowden, 247 S.W.3d at
696 (citing Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691 (Tex. 2002)).
Though a trial court generally has broad discretion to determine whether to certify a
class action, it must apply a rigorous analysis to determine whether all certification
requirements have been satisfied. Id.
Parties seeking class certification must satisfy all four requirements of Texas
Rule of Civil Procedure 42(a)2 and at least one requirement of Rule 42(b)3. Sw. Ref.
2
Texas Rule of Civil Procedure 42(a) states:
One or more members of a class may sue or be sued as representative parties on behalf of
all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there
are questions of law, or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests of the class.
3
Texas Rule of Civil Procedure 42(b) provides:
An action may be maintained as a class action if the prerequisites of subdivision (a) are
satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the
class would create a risk of
(A) inconsistent or varying adjudications with respect to individual
members of the class which would establish incompatible standards of
conduct for the party opposing the class, or
....
(2) the party opposing the class has acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole; or
–12–
Co. v. Bernal, 22 S.W.3d 425, 433 (Tex. 2000). Under Rule 42(d), “When
appropriate (1) an action may be brought or maintained as a class action with respect
to particular issues, or (2) a class may be divided into subclasses and each subclass
treated as a class, and the provisions of this rule shall then be construed and applied
accordingly.” Though class certification does not require adjudication of the merits
of the plaintiffs’ claims, a proper analysis of the Rule 42 factors requires the court to
go beyond the pleadings in order to understand “the claims, defenses, relevant facts,
and applicable substantive law in order to make a meaningful determination of the
certification issues.” Union Pac. Res. Grp., Inc. v. Hankins, 111 S.W.3d 69, 72 (Tex.
2003) (quoting Bernal, 22 S.W.3d at 435).
An order certifying a class action must define the class and the class claims,
issues, or defenses. TEX. R. CIV. P. 42(c)(1)(B). The order may be altered or amended
before final judgment, and the court may order the naming of additional parties in
order to insure the adequacy of representation. Id. 42(c)(1)(C).
(3) the questions of law or fact common to the members of the class predominate
over any questions affecting only individual members, and a class action is
superior to other available methods for the fair and efficient adjudication of the
controversy. The matters pertinent to these issues include:
(A) the interest of members of the class in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the difficulties likely to be encountered in the management of a class
action.
–13–
An order granting or denying certification under Rule 42(b)(3) must state,
among other things, “why the issues common to the members of the class do or do
not predominate over individual issues” and, “if a class is certified, how the class
claims and any issues affecting only individual members, raised by the claims or
defenses asserted in the pleadings, will be tried in a manageable, time efficient
manner.” Id. 42(c)(1)(D)(vi), (viii); see also Bernal, 22 S.W.3d at 435 (rejecting
“approach of certify now and worry later” and stating trial court’s certification order
“must indicate how the claims will likely be tried so that conformance with Rule 42
may be meaningfully evaluated”).
Analysis
The Hospitals assert a single “primary issue”—that the trial court erred by
certifying the class—and ten “sub-issues”:
1. Did the trial court err in finding that the predominance requirement
for Rule 42(b)(3) certification was met?
2. Did the trial court err in finding that the superiority requirement for
Rule 42(b)(3) certification was met?
3. Did the trial court err in finding that the Rule 42(a)(2) commonality
requirement was met?
4. Did the trial court err in finding that the Rule 42(a)(3) typicality
requirement was met?
5. Did the trial court err in finding that the Rule 42(a)(4) adequacy
requirement was met?
6. Did the trial court err in finding that the requirements for Rule
42(d)(1) certification were met?
7. Did the trial court err in denying the Hospitals due process and
finding that the requirements for Rule 42(b)(2) certification were
met?
–14–
8. Did the trial court err in denying the Hospitals due process and
finding that the requirements for Rule 42(b)(1) certification were
met?
9. Did the trial court err in defining the putative class?
10. Did the trial court err in meeting the trial plan requirement for
certification?
As a threshold matter, we note that appellees concede in their appellate brief
that their “unconscionability claims under DTPA § 17.45(5) and § 17.50(a)(3)” and
their DTPA § 17.46(b)(24) claims are “not amenable to a determination on a class
basis due to the individual issues involved.” Additionally, appellees state (1) they
“agree that certification under Rule 42(b)(1) is not necessary here, and its mention
in the Order granting certification can be remedied upon remand,” and (2) they
agreed in the trial court “not to include future claims arising after class certification,
and this is implicit in the class definition order.”
We agree with appellees that class certification was improper as to their DTPA
unconscionability and section 17.46(b)(24) claims and as to prospective relief
regarding claims arising after class certification. See Stromboe, 102 S.W.3d at 693–
94; Heckman v. Williamson Cnty., 369 S.W.3d 137, 150–53 (Tex. 2012); Lon Smith
& Assocs., Inc. v. Key, 527 S.W.3d 604, 624 (Tex. App.—Fort Worth 2017, pet.
denied). We also conclude that because the record does not show Rule 42(b)(1)
certification was asserted below or is applicable here, certification under that
provision was an abuse of discretion. See Stromboe, 102 S.W.3d at 691. Thus, we do
not address the portions of the Hospitals’ issues regarding those matters.
–15–
As described above, the Hospitals first assert the trial court erred by finding
the predominance requirement was met.4 See TEX. R. CIV. P. 42(b)(3) (requiring that
“the questions of law or fact common to the members of the class predominate over
any questions affecting only individual members”). The test for predominance is not
whether common issues outnumber uncommon issues, but whether common or
individual issues will be the object of most of the efforts of the litigants and the court.
Bernal, 22 S.W.3d at 434. If, after common issues are resolved, presenting and
resolving individual issues are likely to be overwhelming or unmanageable tasks for
a single jury, then common issues do not predominate. Id.; see also TEX. R. CIV. P.
42(b)(3)(D) (matters pertinent to 42(b)(3) certification include “the difficulties likely
to be encountered in the management of a class action”).
4
The trial court’s certification order included the following findings of fact and conclusions of law
regarding 42(b)(3) certification:
That questions of law or fact common to the members of the Class predominate over any
questions affecting only individual members and that class action is superior to other
available methods for the fair and efficient adjudication of the controversy. . . .
The issues that will be the object of most of the efforts of the litigants and the Court will
be: whether Defendants have a duty of disclosure of the ER Facility Fee, whether
Defendants actually disclose the ER Facility Fee in their form Contracts, ER signage, or
registration process, whether the ER Fee covers, in whole or in part, the overhead,
administrative, and operational expenses incurred in operating an emergency room facility,
whether failure to disclose the fee violates Texas law, and whether federal law prohibits
Defendants from disclosing the Fee. . . . There are no known individual issues of law or
fact that affect only individual members besides whether individuals are entitled to
membership in the Class, the amounts charged to patients for the Facility Fees that remain
outstanding, and the amounts patients paid to Defendants for the Facility Fees, but these
individuals and these amounts are readily ascertainable from Defendants’ internal records.
–16–
The Hospitals contend, among other things, that “individual damages issues”
regarding appellees’ requested restitution preclude certification as to both of their
causes of action. According to the Hospitals,
Whether a class member has financial responsibility for the E&M
Services Fee, and if so, the amounts of any payment and/or account
balance attributable to the E&M Services Fee cannot be determined
from the Hospitals’ electronic records . . . . Individualized review of
each class member’s billing and payment records, including records
from third-party insurers is required. Plaintiffs acknowledge these
individualized damages issues, and propose a demonstrably inaccurate,
arbitrary, and speculative “methodology” for addressing them. The
Order, with its abbreviated trial plan, provides no guidance on how
damages will be calculated . . . . These damages questions alone would
be impossible for one jury to answer.
In support of that argument, the Hospitals cite the electronic records they produced
during discovery and the declarations of Mr. Jensen and Ms. Phillips.
Appellees contend, as they did in the trial court, that:
There is no charge-by-charge breakdown in what the hospital bills a
patient, and no charge-by-charge breakdown in the payments a patient
makes. It is unnecessary and irrelevant to argue that these lump sums
need to be subjected to an unworkable, complex line-by-line analysis
when a simple proportionate formula, as indicated above, is all that is
needed to be fair and equitable. For example, if a patient’s Total
Charges were $10,000.00, and the E&M Fee were $2,000.00, or twenty
percent of the total, and the patient was ultimately required to pay
$5,000.00 after adjustments and insurer payments, then twenty percent
of the $5,000.00 would be attributable to the E&M Fee.
The declarations of Mr. Jensen and Ms. Phillips (1) state that the vast majority
of the Hospitals’ patients are insured and (2) provide detailed analyses regarding
three of plaintiffs’ actual emergency care visits based on the Hospitals’ electronic
–17–
records and itemized statements from the patients’ insurance companies provided by
the patients during discovery. Though the Hospitals’ electronic record spreadsheets
show the total amount each patient was charged by the hospital for their visit, the
patient’s E&M Fee amount, the total amount paid to the hospital by the patient’s
insurer, the amount the hospital then billed the patient, and any payments made by
the patient to the hospital, the declarations and itemized insurance statements
demonstrate that insurance companies commonly reduce the E&M Fee or disallow
it altogether based on network contracts or the terms of an individual’s plan. As a
result, appellees’ “proportionate formula” produced inaccurate amounts in all three
illustrative cases: (1) $310.37 under appellees’ method versus $99.97 based on the
patient’s insurance statement; (2) $186.82 under appellees’ method versus $87.86
based on the patient’s insurance statement; and (3) $176.75 under appellees’ method
versus $252.67 based on the patient’s insurance statement. Thus, the record shows
appellees’ proposed method for calculating restitution amounts is substantially
inaccurate and unreliable.
Because the detailed insurance information needed for an accurate calculation
of each patient’s final E&M Fee amount is not part of the Hospitals’ electronic
records, calculating those amounts accurately would require obtaining and analyzing
insurance information outside of those records. Nothing in the record addresses or
demonstrates how this could be done manageably, nor does the order’s trial plan
provide any guidance. On this record, we conclude the trial court abused its
–18–
discretion by finding that class certification of appellees’ declaratory judgment and
DTPA claims was proper under Rule 42(b)(3).5 See Bernal, 22 S.W.3d at 435. In
light of that conclusion, we do not address the Hospitals’ second sub-issue, which
challenges Rule 42(b)(3) superiority. See Hankins, 111 S.W.3d at 75;
Intercontinental Hotels Corp. v. Girards, 217 S.W.3d 736, 739 (Tex. App.—Dallas
2007, no pet.).
Next, we consider together the Hospitals’ sixth and seventh sub-issues, which
contend the trial court’s certification of several “discrete issues” under Rule 42(d)(1)
and Rule 42(b)(2) was improper. In the order, the trial court made the following
findings and conclusions as to Rule 42(d)(1):
That this action may be further brought as a class action with respect to
particular issues under Tex. R. Civ. P. 42(d)(1). Thus, it is appropriate
to certify the Class with respect to the following discrete issues:
(1) whether Defendants have a duty to inform ER patients of
Defendants’ separate Facility Fee prior to such charge being incurred;
(2) whether Defendants disclose their separate Facility Fee in a
reasonable manner prior to such charge being incurred; (3) whether the
5
After conceding in their appellate brief that their DTPA unconscionability claims are inappropriate for
class certification, appellees assert on appeal for the first time that their allegation that the Hospitals’
“billing practices” were unconscionable under Texas common law should be construed to assert “that the
provision of the patients’ contracts purportedly allowing for an undisclosed E&M Services Fee to be added
to their bills would achieve an unconscionable result and should therefore not be enforced.” In other words,
appellees seek to have their common law complaint of unconscionable “billing practices” construed to
include a complaint that the contracts’ provisions were unconscionable. Cf. L.O.D.C. Grp., Ltd. v.
Accelerate360, LLC, No. 4:21-CV-00568, 2022 WL 3330567 at *4 (E.D. Tex. Aug. 11, 2022) (observing
that Texas does not appear to recognize independent cause of action for unconscionability outside of
contract-enforcement and DTPA contexts).
In their appellate reply brief, the Hospitals contend appellees’ “claim that the contracts are
unconscionable” is “an entirely new claim and issue that should not be considered on appeal.” The record
does not show appellees asserted in the trial court that the patients’ contracts were unconscionable.
Moreover, even if appellees’ declaratory judgment claim is construed to encompass that contention, our
conclusion that Rule 42(b)(3) certification was improper as to both of appellees’ claims due to individual
issues regarding restitution would not be affected and would preclude Rule 42(b)(3) certification as to that
contention.
–19–
language in Defendants’ form contract with patients provides a promise
or agreement by patients to pay a separate Facility Fee for their ER
visits; and (4) whether EMTALA prohibits Defendants from disclosing
their intention to charge a separate ER Facility Fee to emergency room
patients prior to the Fee being incurred.
As to Rule 42(b)(2), the trial court found and concluded:
That Defendants have acted or refused to act on grounds generally
applicable to the Class, thereby making appropriate final injunctive
relief or corresponding declaratory relief with respect to the Class as
whole. A declaratory judgment claim seeking uniform contract
interpretation and the finding of a duty to disclose ER Facility Fees in
advance of their being charged to ER patients is well suited for class
certification.
The Hospitals argue that issue certification under Rule 42(d) “does not
bypass” Rule 42’s other requirements and thus any issues certified under Rule 42(d)
must meet the requirements of Rule 42(a) and at least one subdivision of Rule 42(b).
The Hospitals contend the four Rule 42(d)(1) “discrete issues” cannot satisfy those
requirements because (1) those issues “fail the predominance and commonality tests
and do not address the liability elements or individualized predicate fact issues raised
by Plaintiffs’ claims,” and (2) “answers to these questions would also not resolve the
individualized damages issues.” Additionally, the Hospitals contend that to the
extent the trial court found Rule 42(b)(2)’s requirements were met as to those
“discrete issues,” the trial court “erred in refusing to allow the Hospitals the
opportunity to be heard on Plaintiffs’ untimely Rule 42(b)(2) arguments,” which
–20–
were asserted “for the first time” in their May 17, 2021 reply brief.6 The Hospitals
argue (1) “[d]espite assurances from the trial court that if the objection was overruled
the Hospitals would be provided notice and a hearing, that was not provided,” and
(2) the Hospitals “were denied due process requiring reversal of the 42(b)(2)
certification.”
The record shows that at the end of the July 16, 2021 class certification
hearing, the following exchange occurred:
THE COURT: . . . So anything else counsel? And I do understand I have
the two objections. So [counsel for defendants], if you’ll make sure I
have an order on those.
[COUNSEL FOR DEFENDANTS]: Your Honor, I guess what I’m
concerned about is, I have not really had an opportunity to respond to
the Rule 42(b)(2) argument that was raised for the first time on reply
and, therefore, my concern is if my objection is overruled, I will be
denied a response.
THE COURT: And if it is overruled, I’ll let you know, and we can
always have another hearing if we need to, okay? Will that work?
[COUNSEL FOR DEFENDANTS]: Thank you, Your Honor.
On December 17, 2021, appellees filed a “Proposed Order Certifying Class
Action with Trial Plan.” The Hospitals filed a December 22, 2021 letter stating they
“wish to notify the Court of their intention to file objections to Plaintiffs’ Proposed
Order” by January 14, 2022. The trial court signed the certification order on
6
The record shows that in response to appellees’ original motion for class certification, the Hospitals
filed an October 28, 2020 “opposition” addressing Rule 42(b)(2)’s requirements and applicability. In their
appellate brief, the Hospitals state that their April 19, 2021 opposition “incorporated by reference their
opposition to Plaintiffs’ original motion which sought certification of a materially different class under
Rules 42(b)(2) and 42(d)(1).”
–21–
December 31, 2021, five and one-half months after the hearing. The record does not
show the Hospitals presented any additional response arguments during that time or
after, nor did the Hospitals assert the need for another hearing. On this record, we
cannot conclude the Hospitals were denied due process regarding their objections.
See Campbell v. Hiesermann, No. 02-21-00221-CV, 2022 WL 3456735, at *6 (Tex.
App.—Fort Worth Aug. 18, 2022, no pet.) (mem. op.) (citing cases supporting
proposition that no due process violation occurs where party had opportunity to act).
That said, “Rule 42(d) cannot be used to manufacture compliance with
certification prerequisites.” Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430,
455 (Tex. 2007). We concluded above that Rule 42(b)(3) certification was improper
regarding both of appellees’ claims. To the extent appellees sought Rule 42(b)(3)
certification regarding “particular issues” from those claims under Rule 42(d), the
record does not show any basis for that request other than to avoid Rule 42(b)(3)’s
requirements as to the other, problematic portions of the claims. Appellees do not
explain, and the record does not show, how Rule 42(b)(3) certification regarding
“particular issues” was “appropriate” in this case. See id.; TEX. R. CIV. P. 42(d). Thus,
the trial court abused its discretion to the extent it determined Rule 42(b)(3) class
certification was proper as to any of the Rule 42(d)(1) “discrete issues” described in
the order.
As to Rule 42(b)(2) certification, the trial court’s order concluded that “[a]
declaratory judgment claim seeking uniform contract interpretation and the finding
–22–
of a duty to disclose ER Facility Fees in advance of their being charged to ER
patients is well suited for class certification.” Those two matters encompass three of
the four “discrete issues” the trial court concluded were appropriate for Rule 42(d)(1)
certification: (1) “whether Defendants have a duty to inform ER patients of
Defendants’ separate Facility Fee prior to such charge being incurred”; (2) “whether
the language in Defendants’ form contract with patients provides a promise or
agreement by patients to pay a separate Facility Fee for their ER visits”; and
(3) “whether EMTALA prohibits Defendants from disclosing their intention to
charge a separate ER Facility Fee to emergency room patients prior to the Fee being
incurred.”7 Thus, we now address the Hospitals’ remaining sub-issues as they pertain
to Rule 42(b)(2) class certification regarding those three “discrete issues.”
Rule 42(b) first requires that “the prerequisites of subdivision (a) are
satisfied.” In their third and fourth sub-issues, the Hospitals contend Rule 42(a)’s
commonality and typicality requirements were not met. See TEX. R. CIV. P. 42(a)(2)–
(3). Appellees respond, (1) “[w]hat Appellees contend is that standardized
disclosures as to Hospitals’ intention to add such Fees to the accounts of all
emergency patients, whether in signage, in contracts, or in registration procedures
and paperwork, are appropriate and necessary”; (2) “this is a merits issue that should
7
Because the remaining Rule 42(d)(1) “discrete issue”—“whether Defendants disclose their separate
Facility Fee in a reasonable manner prior to such charge being accrued”—is not within the two matters
described in the order’s Rule 42(b)(2) certification provision and, as described above, was not “appropriate”
for Rule 42(b)(3) certification as a particular issue, we conclude class certification as to that particular issue
was an abuse of discretion. See TEX. R. CIV. P. 42(b), (d).
–23–
be decided the same for all”; (3) “the fact that some patients may have some
awareness or information as to Appellants’ E&M Fee” does not “impinge on the
question of whether the Hospital had a general duty to disclose this fee to all its
emergency patients”; and (4) “EMTALA either prohibits such disclosure or it does
not.” We agree with appellees that the record supports a determination that the three
“discrete issues” in question all describe matters pertaining to all plaintiffs and for
which individual awareness regarding E&M Fees is not controlling. Thus, the trial
court did not abuse its discretion by determining that commonality and typicality
were met as to those three “discrete issues.” See Bailey v. Kemper Cas. Ins. Co., 83
S.W.3d 840, 853 (Tex. App.—Texarkana 2002, pet. dism’d w.o.j.) (“Commonality
does not require that all questions of law and fact must be identical, but only that an
issue of law or fact exists that inheres in the complaints of all class members.”);
Riemer v. State, 452 S.W.3d 491, 502 (Tex. App.—Amarillo 2014, pet. denied)
(explaining that presence of arguable defense unique to certain plaintiff negates
typicality only when it is predictable that such defense will become major focus of
litigation such that representation of rest of class will suffer).
In their fifth sub-issue, the Hospitals assert the trial court erred by finding Rule
42(a)(4)’s adequacy requirement was met as to Ms. Bolen. The Hospitals assert Ms.
Bolen “was unable to recall any of the operative facts underlying her claim and
demonstrated that she failed to remain abreast of the litigation.” On this record, we
cannot agree the trial court abused its discretion regarding adequacy. See Stromboe,
–24–
102 S.W.3d at 691 (“A trial court has discretion to rule on class certification issues,
and some of its determinations—like those based on its assessment of the credibility
of witnesses, for example—must be given the benefit of the doubt.”); see also TEX.
R. CIV. P. 42(c)(1)(C) (before final judgment, trial court may order naming of
additional parties to insure adequacy of representation).
Next, the Hospitals focus on Rule 42(b)(2)’s provision that declaratory or
injunctive relief must be “appropriate . . . with respect to the class as a whole.” TEX.
R. CIV. P. 42(b)(2). The key to the Rule 42(b)(2) class is “the indivisible nature of
the injunctive or declaratory remedy warranted—the notion that the conduct is such
that it can be enjoined or declared unlawful only as to all of the class members or as
to none of them.” Lon Smith & Assocs., 527 S.W.3d at 639 (citing Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338, 360 (2011)). “That is, a rule 42(b)(2) class must be
sufficiently cohesive to warrant adjudication by representation.” Id. (citing Compaq,
135 S.W.3d at 667).
The Hospitals contend “any declaratory or injunctive relief could not provide
relief to each class member because the requisite cohesiveness of the class is
lacking.” According to the Hospitals, (1) a single declaratory judgment that the
Hospitals have a duty to disclose the E&M Fee would not provide relief to each class
member because some patients had prior knowledge of the E&M Fee and thus
disclosure to them “is of no consequence”; (2) “the class members signed different
versions of contracts”; and (3) some class members’ insurers denied the E&M Fee
–25–
and “[t]hese class members lack standing.” Additionally, the Hospitals assert “[t]he
standard under EMTALA is that the Hospitals must not ‘unduly discourage’ a patient
from remaining for further evaluation” and “[w]hat unduly discourages one patient
might not unduly discourage another, making this issue one that cannot be decided
on a class-wide basis.”
The record does not show that more than a few different contract versions are
involved here. See TEX. R. CIV. P. 42(d)(2) (allowing for subclasses). Also, as to
standing, an insurer’s denial of an E&M Fee does not negate the fact that the patient
was charged the fee. The Hospitals’ arguments disregard the limited scope of the
three “discrete issues” in question, which specifically describe relief pertaining to
all class members. On this record, we conclude the trial court did not abuse its
discretion by determining Rule 42(b)(2)’s cohesiveness requirement was satisfied as
to those three “discrete issues.”8
In their ninth issue, the Hospitals assert the trial court erred “in defining the
putative class.” The Hospitals contend the order’s definition improperly includes
(1) patients whose claims are barred by the DTPA’s two-year statute of limitations;
(2) “unknowable individuals who may in the future receive treatment at the
Hospitals’ EDs”; and (3) patients who “made payments and/or have a remaining
8
To the extent the trial court’s order can be construed to also certify a Rule 42(b)(2) class action as to
appellees’ entire claims, the above-described calculation of restitution amounts precludes such certification
due to lack of cohesiveness. See Compaq, 135 S.W.3d at 671 (“In many cases, this [cohesiveness] analysis
will be identical to the ‘predominance and superiority’ directive undertaken by trial courts certifying (b)(3)
classes.”).
–26–
account balance for their visit,” rather than just patients who “made payments and/or
have a remaining account balance for an E&M Services Fee.” To the extent those
complaints involve appellees’ DTPA claim or restitution damages, the complaints
are not pertinent to the three “discrete issues” in question. Additionally, we agree
with appellees’ above-described position that an end date is “implicit” in the order
signed, which can be clarified on remand.
The Hospitals’ tenth issue asserts the trial court erred “in meeting the trial plan
requirement for certification.” “A trial court’s certification order must indicate how
the claims will likely be tried so that conformance with Rule 42 may be meaningfully
evaluated.” Bernal, 22 S.W.3d at 435. The Hospitals’ trial plan complaints and cited
authority pertain primarily to deficiencies regarding Rule 42(b)(3) individual issues,
which were addressed above and are not implicated as to the three “discrete issues”
in question. To the extent the Hospitals complain the order fails to sufficiently
address conformance with Rule 42’s other requirements, we disagree. Though the
order’s “trial plan” section is minimal at best, the remaining sections of the eight-
page order specifically address satisfaction of Rule 42’s requirements. Thus, the trial
court did not abuse its discretion regarding the trial plan. See id.
We affirm the order’s Rule 42(d)(1) certification of a Rule 42(b)(2) class
action as to the three “discrete issues” of (1) “whether Defendants have a duty to
inform ER patients of Defendants’ separate Facility Fee prior to such charge being
incurred”; (2) “whether the language in Defendants’ form contract with patients
–27–
provides a promise or agreement by patients to pay a separate Facility Fee for their
ER visits”; and (3) “whether EMTALA prohibits Defendants from disclosing their
intention to charge a separate ER Facility Fee to emergency room patients prior to
the Fee being incurred.” We reverse the trial court’s order as to class certification
regarding all other claims and issues. We remand this case to the trial court for further
proceedings.
/Cory L. Carlyle/
220058f.p05 CORY L. CARLYLE
JUSTICE
–28–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FRISCO MEDICAL CENTER, On Appeal from the 191st Judicial
L.L.P., AND TEXAS REGIONAL District Court, Dallas County, Texas
MEDICAL CENTER, L.L.C., Trial Court Cause No. DC-19-07283.
Appellants Opinion delivered by Justice Carlyle.
Justices Molberg and Partida-Kipness
No. 05-22-00058-CV V. participating.
PAULA CHESTNUT AND
WENDY BOLEN, ON BEHALF OF
THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED,
Appellees
In accordance with this Court’s opinion of this date, the trial court’s “Order
Certifying Class Action With Trial Plan” is AFFIRMED in part and REVERSED
in part. We AFFIRM the order’s Rule 42(d)(1) certification of a Rule 42(b)(2) class
action as to the three discrete issues of (1) “whether Defendants have a duty to inform
ER patients of Defendants’ separate Facility Fee prior to such charge being
incurred”; (2) “whether the language in Defendants’ form contract with patients
provides a promise or agreement by patients to pay a separate Facility Fee for their
ER visits”; and (3) “whether EMTALA prohibits Defendants from disclosing their
intention to charge a separate ER Facility Fee to emergency room patients prior to
the Fee being incurred.” We REVERSE the trial court’s order as to class
certification regarding all other claims and issues. We REMAND this cause to the
trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 7th day of November, 2022.
–29– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482435/ | DENY and Opinion and Order Filed November 7, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01064-CV
IN RE LEO BIENATI, THERESA PHAM, CARLOS LACAYO, AND
ANDRES RUZO, Relators
No. 05-22-00324-CV
LEO BIENATI, THERESA PHAM, CARLOS LACAYO, AND ANDRES
RUZO, Appellants
V.
HOLY KOMBUCHA, INC. AND CLOISTER HOLDINGS, LLC, Appellees
Original Proceeding and Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-17448
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Partida-Kipness and Smith
Opinion by Justice Smith
Before the Court is relators’ October 10, 2022 “Rule 29.3 Motion or,
Alternatively, Petition for Writ of Mandamus” in which relators seek an order from
this Court (1) compelling the trial court to rule on relators’ emergency supplemental
motion to dissolve the amended temporary injunction, and (2) setting a bond in the
amount of $2,259,775 pursuant to rule 29.3 of the Texas Rules of Appellate
Procedure. On October 11, 2022, relators notified the Court the trial court had ruled
on their emergency supplemental motion, so that portion of their request for relief
was moot. However, relators clarified they continue to seek a $2,259,775 bond
pursuant to rule 29.3.
Because the trial court has ruled on relators’ emergency supplemental motion,
we conclude relators’ request for mandamus relief regarding the trial court’s failure
to rule is moot. See In re Martinez, No. 04-14-00293-CR, 2014 WL 2548571, at *1
(Tex. App.—San Antonio June 4, 2014, orig. proceeding) (per curiam) (mem. op.)
(holding that “failure to rule” issue becomes moot once the trial court has acted).
Accordingly, we dismiss relators’ petition for writ of mandamus.
With respect to relators’ request for this Court to set a bond pursuant to rule
29.3, after reviewing the record provided in support of relators’ request, we conclude
relators have failed to show the trial court abused its discretion by denying their
request to increase the bond. See Bone v. Moss, No. 05-21-00436-CV, 2022 WL
484312, at *6 (Tex. App—Dallas Feb. 17, 2022, no pet.) (mem. op.) (citing IAC,
Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 203 (Tex. App.—Fort Worth
2005, no pet.), in which it was held that the trial court did not abuse its discretion in
setting temporary injunction bond at $350,000 when appellant presented no evidence
its damages would exceed that amount); Connell Chevrolet, Inc. v. Carter, No. 01-
94-00595-CV, 1994 WL 525902, at *6 (Tex. App.—Houston [1st Dist.] Sept. 29,
1994, no writ) (not designated for publication) (concluding trial court did not abuse
–2–
its discretion in setting temporary injunction bond at $1000 when appellant asserted
amount was “patently an abuse of discretion” but failed to introduce any evidence
to show possible damages from injunction); see also Taylor v. Parker, No. 01-87-
00393, 1988 WL 10770, at *4 (Tex. App.—Houston [1st Dist.] Feb. 11, 1988, no
writ) (not designated for publication) (stating, in appeal from interlocutory order
appointing receiver, “appellant bore the burden of showing that the circumstances
dictated a more substantial bond”). We therefore deny relators’ motion to increase
the bond.
/Craig Smith/
CRAIG SMITH
JUSTICE
221064F.P05
–3– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482436/ | Affirmed and Opinion Filed November 7, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00961-CV
WAYNE M. ENGLISH, Appellant
V.
PARCEL EXPRESS, INC., Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-20-00291-D
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Goldstein
Opinion by Justice Partida-Kipness
Appellant Wayne M. English appeals a sanctions order awarding $4,500 in
attorney’s fees to appellee Parcel Express, Inc. Finding no abuse of discretion, we
affirm.
BACKGROUND
On November 30, 2018, English mailed a package from Parcel Express in
Mesquite, Texas. The package contained reply briefs for filing in the Third Circuit
Court of Appeals in Philadelphia, Pennsylvania. English purchased United States
Postal Service (USPS) Priority Mail service for the package. According to English,
he contacted the Third Circuit on December 5, 2018, and discovered the court had
not received the package. English maintains he then checked the tracking
information on-line and found the package “had not moved since he handed it to
Parcel.” He contends a Parcel Express employee told him the next day that the
package had been given to the postal service and denied the package was still at
Parcel Express. On December 7, 2018, English mailed a motion for extension of
time to file the reply briefs and new copies of the reply brief to the Third Circuit
directly from the Mesquite Post Office. The package mailed from Parcel Express
arrived at its destination on December 10, 2018.
On December 14, 2018, English sued Parcel Express in Justice Court. He
alleged Parcel Express “never turned over” the package to the USPS for shipment
and, as a result, the package was not delivered to the Third Circuit. According to
English, Parcel Express’s failure to transfer the package required him to prepare and
ship new copies of his reply brief to the Third Circuit at greater cost to him. He
sought judgment for the additional expenses and punitive damages. He attached the
following to his petition: (1) a copy of the Parcel Express sales receipt showing the
Priority Mail tracking number, (2) a copy of a USPS tracking report purportedly
obtained from a USPS employee regarding the package, (3) an undated copy of an
on-line tracking report for the package, and (4) a screenshot purportedly of English’s
cell phone showing a phone call to an 800 number on December 6.
Parcel Express answered the lawsuit on April 9, 2019. Before trial, counsel
for Parcel Express, John Bowdich, corresponded with English via e-mail about
–2–
English’s allegations. In a September 26, 2019 e-mail, Bowdich told English that
Parcel Express contends the lawsuit had no merit because the package was delivered,
and English did not purchase shipping with a guaranteed delivery date. Bowdich
asked English to dismiss the lawsuit and warned that Parcel Express would seek its
attorney’s fees for defending the suit if English refused to dismiss. Bowdich attached
documents to support Parcel Express’s position. Those documents included a
printout from the company’s Endicia tracking program showing delivery of a
package with the same tracking number as the Priority Mail package to Philadelphia
on December 10, 2018, USPS definitions of Priority Mail ship times, and the Third
Circuit’s on-line docket sheet showing receipt of English’s reply brief on December
10, 2018, with a notation the reply brief had a certificate of service of November 28,
2018. Bowdich and English communicated via e-mail over the course of several
days. English accused Bowdich of misinterpreting the facts and insisted Parcel
Express did not give the package to USPS and the package was not delivered. Parcel
Express asked English twice more to voluntarily dismiss the case and included an
agreed order of dismissal with prejudice for his signature. Parcel Express also
provided English with a link to track the package through the Endicia software used
by Parcel Express.
After English refused to dismiss the case, Parcel Express filed its motion for
sanctions on October 3, 2019. In the motion, Parcel Express argued English should
take nothing by his claims and be sanctioned because he continued to pursue the
–3–
litigation and assert the package was not delivered despite receiving “conclusive
proof” from Parcel Express that the package was delivered to the Third Circuit. In
support of the sanctions motion, Parcel Express submitted the sales receipt for
English’s package, which included its Priority Mail tracking number, a printout from
the company’s Endicia tracking program showing delivery of a package with the
same tracking number as the Priority Mail package to Philadelphia on December 10,
2018, and the Third Circuit’s on-line docket sheet showing receipt of English’s reply
brief on December 10, 2018. The docket sheet noted the reply brief had a certificate
of service of November 28, 2018. A separate docket entry showed receipt of
English’s motion for extension of time to file the reply brief with a certificate of
service date of December 6, 2018. In response to the sanctions motion, English
reiterated the allegations in his petition, attached the same exhibits included with his
petition, and added a copy of the receipt and shipping label for the second package
mailed to the Third Circuit on December 7, 2018.1
The case proceeded to trial on November 5, 2019.2 The Justice Court signed
a final judgment the same day, rendered a take-nothing judgment against English,
granted Parcel Express’s motion for sanctions, and awarded Parcel Express
1
The Justice Court record includes two copies of English’s response to the motion for sanctions. One
copy is signed and file-stamped, the other is unsigned and not file-stamped. Five exhibits are attached to
the signed and file-stamped copy of the response, while fourteen exhibits are attached to the unsigned copy.
It is unclear why an unsigned and non-file-stamped copy was included in the record. Any references to the
response are limited to the signed and file-stamped copy and its five exhibits.
2
The transcript is not part of the appellate record.
–4–
attorney’s fees of $2,500. The judgment included findings that English presented its
petition for an improper purpose, including to harass or increase the cost of litigation,
and the petition contained factual contentions without evidentiary support. English
filed a motion for new trial in which he denied alleging Parcel Express never
delivered the package to the postal service. He maintained, instead, that Parcel
Express held the package until December 8, 2018, and misrepresented to him that
the package was not in the store. To support those allegations, English included a
tracking report purportedly obtained from the IT department of Stamps.com. Parcel
Express filed a response in which it argued English’s new evidence supported Parcel
Express’s position by showing USPS received the package on November 30, 2018,
and USPS delivered the package on December 10, 2018. Parcel Express relied on
the affidavit of Richard Swanner, its owner, to support the arguments in opposition
to the motion for new trial. The Justice Court denied the motion for new trial on
December 16, 2019. English appealed to the County Court at Law on January 3,
2020 (the Appeal).
In the Appeal, the parties were ordered to mediation, and English moved for
return of an appeal bond overpayment. On July 14, 2020, Parcel Express filed an
original counterclaim, a motion for sanctions, and a traditional and no evidence
motion for summary judgment. Parcel Express submitted the following evidence in
support of each of those filings: (1) the sales receipt for USPS Priority Mail of
English’s package dated November 30, 2018, (2) Endicia Tracking information
–5–
showing delivery of the package to its destination on December 10, 2018, (3) the
declaration of Richard Swanner with Endicia’s Full Tracking spreadsheet for
English’s package and Code explanations attached, (4) the Third Circuit’s on-line
docket sheet showing delivery of English’s package on December 10, 2018, and (5)
the USPS Disclaimer for Priority Mail showing Priority Mail does not provide a
guaranteed delivery date. English filed responses to Parcel Express’s filings and
included the same evidence relied on in the Justice Court as support.
Trial was held in the County Court at Law on August 5, 2020. That court
signed a final judgment on August 7, 2020, rendered a take-nothing judgment against
English, and dismissed English’s claims with prejudice. English filed a request for
findings of fact and conclusions of law and a “motion for new trial or to modify,
correct, or to reform judgment.” The court held a hearing on Parcel Express’s motion
for sanctions on September 8, 2020, and granted the motion. The court made several
written findings in the order granting the motion for sanctions:
English had evidence, or should have known after reasonable
inquiry, that his package was delivered to its destination prior to
trial in the Justice Court;
Before filing his motion for new trial in the Justice Court and the
Appeal, English (1) had conclusive evidence that his package
was delivered to its destination, and (2) had no evidence that
Parcel Express failed to provide his package to USPS on a timely
basis;
English misrepresented to Parcel Express that his package was
not delivered to its destination after he knew, or should have
known after reasonable inquiry, that the package was delivered
to its destination;
–6–
English filed his motion for new trial in the Justice Court, the
Appeal, and all filings in the Appeal when he knew, or after
reasonable inquiry should have known, the filings were
groundless and did not have any factual support;
English “presented and continued” his motion for new trial in the
Justice Court, the Appeal, and all filings in the Appeal for an
improper purpose, including to harass Parcel Express and
needlessly increase the cost of litigation, in violation of section
10.001(1) of the Texas Civil Practice and Remedies Code; and
English violated section 10.001(3) of the Texas Civil Practice
and Remedies Code by filing his motion for new trial in the
Justice Court, the Appeal, and all filings in the Appeal when he
knew, or after reasonable inquiry should have known, the filings
contained factual contentions that did not have any competent
evidentiary support.
The court awarded Parcel Express attorney’s fees of $4,500 and found those fees
reasonable and necessary based on the services provided and due to English’s
Chapter 10 violations. The County Court at Law denied English’s amended motion
for new trial on October 14, 2020, and this appeal followed.
ANALYSIS
English brings four issues on appeal. The overarching legal challenge asserted
by English, however, is whether the trial court abused its discretion by awarding
Parcel Express attorney’s fees as sanctions. He asserts the trial court abused its
discretion by awarding sanctions because (1) Parcel Express’s evidence failed to
meet the standards required by Chapter 10 of the Texas Civil Practice and Remedies
Code, (2) English’s complaint was not filed for an improper purpose, and (3)
English’s complaint had evidentiary support.
–7–
We review a sanctions order for an abuse of discretion. Nath v. Tex. Children’s
Hosp., 446 S.W.3d 355, 361 (Tex. 2014); Low v. Henry, 221 S.W.3d 609, 614 (Tex.
2007); Aubrey v. Aubrey, 523 S.W.3d 299, 315 (Tex. App.—Dallas 2017, no pet.).
An assessment of sanctions will only be reversed if the trial court acted without
reference to any guiding rules and principles, such that its ruling was arbitrary or
unreasonable. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009). To
determine if the sanctions were appropriate or just, we must ensure that there is a
direct nexus between the improper conduct and the sanction imposed. Shultz v.
Shultz, No. 05-20-00819-CV, 2022 WL 336564, at *6 (Tex. App.—Dallas Feb. 4,
2022, pet. filed) (mem. op.) (citing Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882
(Tex. 2003), and Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 282 (Tex. App.—
Dallas 2012, no pet.)). When reviewing an order for sanctions, we examine the entire
record to determine whether the trial court’s sanctions were proper. Daniels v.
Indem. Ins. Co. of N. Am., 345 S.W.3d 736, 741 (Tex. App.—Dallas 2011, no pet.);
Am. Flood Research, Inc., v. Jones, 192 S.W.3d 581, 583 (Tex. 2006). We review
the evidence in the light most favorable to the trial court’s ruling and draw all
reasonable inferences from the evidence to sustain the order. Daniels, 345 S.W.3d
at 741.
Here, the County Court at Law awarded Parcel Express attorney’s fees based
on English’s violations of sections 10.001(1) and 10.001(3) of the Texas Civil
Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE §§ 10.001(1),
–8–
10.001(3). Those sections provide that the signing of a pleading or motion
constitutes a certificate by the signer that to the best of his knowledge, information,
and belief after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper
purpose, including to harass or to cause unnecessary delay or needless
increase in the cost of litigation; [and]
***
(3) each allegation or other factual contention in the pleading or motion
has evidentiary support or, for a specifically identified allegation or
factual contention, is likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery;
***
TEX. CIV. PRAC. & REM. CODE §§ 10.001(1),(3). If a court determines a pleading was
signed in violation of Section 10.001, sanctions may be imposed on the signer, a
party represented by the signer, or both. Id. § 10.004(a). Sanctions ordered under
Chapter 10 “must be limited to what is sufficient to deter repetition of the conduct
or comparable conduct by others similarly situated.” Id. § 10.004(b). A sanction may
include any of the following: (1) a directive to the violator to perform, or refrain
from performing, an act; (2) an order to pay a penalty into court; and (3) an order to
pay to the other party the amount of the reasonable expenses incurred by the other
party because of the filing of the pleading or motion, including reasonable attorney’s
fees. Id. § 10.004(c). A court shall describe in an order imposing a sanction under
Chapter 10 the conduct the court has determined violated section 10.001 and explain
the basis for the sanction imposed. Id. § 10.005.
–9–
The basis of English’s claims in the Justice Court was his contention Parcel
Express failed to deliver the package to USPS and, as a result, the package did not
reach its destination. The record shows English refused to dismiss those claims after
receiving proof from Parcel Express that the package was delivered, and that Priority
Mail service did not provide a guaranteed delivery date. As a result, the case
proceeded to trial and resulted in a take-nothing judgment against English and a fees
award to Parcel Express as sanctions.
Instead of ending the dispute in the Justice Court, English filed a motion for
new trial with “new” evidence he insisted established Parcel Express’s failure to
timely deliver the package to USPS. The “new” evidence was a spreadsheet showing
detailed tracking information from Endicia concerning the package. Parcel Express
responded with affidavit testimony from its owner, Richard Swanner. In the
affidavit, Swanner explained the Endicia tracking information provided by English
conclusively proved Parcel Express gave USPS the package on November 30, 2018.
Specifically, Swanner testified the tracking information confirmed USPS “picked up
the package” from Parcel Express and “loaded it on the truck” on November 30,
2018. The printout further confirmed the package was lost in the USPS system for
seven days after leaving Parcel Express. The tracking information also showed
delivery of the package to its destination on December 10, 2018.
Despite Swanner’s testimony, English did not withdraw his motion for new
trial. Instead, he appealed the Justice Court’s final judgment and denial of the motion
–10–
for new trial. In the Appeal, he continued to insist Parcel Express did not transfer the
package to USPS in a timely manner. The Appeal proceeded through trial and again
ended with a take-nothing judgment rendered against English, a motion for new trial
filed by English, and a motion for sanctions filed by Parcel Express. At the hearing
on the motion for sanctions, English continued to insist Parcel Express was
misrepresenting that facts. English maintained Parcel Express did not transfer the
package to USPS on November 30, 2018.
Based on the record before it, the County Court at Law could have determined
English violated sections 10.001(1) and 10.001(3) by continuing to pursue the
lawsuit after Parcel Express provided him conclusive proof the package was
delivered. Moreover, Swanner’s testimony provided definitive proof to defeat
English’s revamped argument that Parcel Express did not timely deliver the package
to USPS. Yet, despite that evidence, English decided to appeal the Justice Court
judgment and pursue his claims through trial and post-trial proceedings in the
County Court at Law. English had multiple opportunities to accept the deficiencies
in his evidence and arguments. Instead, he chose at each juncture to continue the
litigation. Under this record, we conclude the trial court did not abuse its discretion
by finding English’s filings after trial in the Justice Court and his filings in the
Appeal were filed for an improper purpose and included frivolous arguments without
factual support. Further, after reviewing the entire record, including the timing and
substance of the various pleadings and the attorney’s fees testimony at the sanctions
–11–
hearing, we conclude the trial court did not abuse its discretion in awarding Parcel
Express $4,500 in sanctions. See Law Offices of Windle Turley, P.C. v. French, 164
S.W.3d 487, 491–92 (Tex. App.—Dallas 2005, no pet.).
CONCLUSION
The record supports the trial court’s decision to award sanctions to Parcel
Express. Further, the sanctions awarded are appropriate under section 10.004(c).
We, therefore, conclude the trial court did not abuse its discretion in granting Parcel
Express’s motion for sanctions. Accordingly, we overrule English’s appellate issues
and affirm the judgment and the trial court’s sanctions order.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200961F.P05
–12–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WAYNE M. ENGLISH, Appellant On Appeal from the County Court at
Law No. 4, Dallas County, Texas
No. 05-20-00961-CV V. Trial Court Cause No. CC-20-00291-
D.
PARCEL EXPRESS, INC., Appellee Opinion delivered by Justice Partida-
Kipness. Justices Reichek and
Goldstein participating.
In accordance with this Court’s opinion of this date, the trial court’s August
7, 2020 Final Judgment and September 8, 2020 Order Granting Defendant’s
Motion for Sanctions are AFFIRMED.
It is ORDERED that appellee PARCEL EXPRESS, INC. recover its costs
of this appeal from appellant WAYNE M. ENGLISH.
Judgment entered this 7th day of November 2022.
–13– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486982/ | *354ORDER DENYING PETITION FOR INCLUSION IN DISTRIBUTION OF AND RECOVERY OF UNPAID PRIOR RENTAL COMPENSATION
On February 23, 2004, Claimants Aoelua Valovalo (“Aoelua”) and Aoelua Communal Family (“Aoelua family”) filed a petition for their inclusion in the list of National Park rental compensation payees for the Village of Afono and for recovery of unpaid rental compensation from February 1, 1994, the beginning of the term of the Lease Agreement (“Lease Agreement”), entered on October 9, 1993, between the lessor American Samoa Government (“ASG”), by the Governor of American Samoa (“Governor”), representing the owners of the land in the National Park of American Samoa (“National Park”) and lessee United States of America, represented by the National Park Service for the United States Secretary of the Interior. Respondent Village Council of Afono (“Afono Council”) answered the petition by denying that Aoelua and the Aoelua family are entitled to share in the rental compensation paid for National Park land in Afono. An evidentiary hearing was held on April 14, 2004. Aoelua appeared for himself and on the Aoelua family’s behalf. The Afono Council appeared by council members Tela Malaga (“Tela”) and Sua Matautia. Both counsel were also present.
Background
This Court tailored National Park proceedings in order to facilitate the Court’s obligation under the federal law creating the park, 16 U.S.C. §§ 410qq-410qq-4, to annually approve the payees receiving rental compensation for lands within the Park. The Court issued special Supplemental Rules for Determination of Rental Compensation under the National Park Lease Agreement (“RCR”) for this purpose.
The National Park uniquely exists among United States national parks as a federal leasehold, rather than ownership of the land within the Park. The National Park presently encompasses areas within the villages of Pago Pago, Fagasa, Vatia, and Afono on the Island of Tutuila, the counties of Faleasao and Fitiuta on the Island of Ta'u, and along a reef and beach on the Island of Ofu. The National Park Service, in order to identify boundaries between the villages on Tutuila and Ta'u, but without binding legal effect, used the boundaries drawn by the U.S. Navy under the Navy administration, during the initial era of the Territory of American Samoa. The Park lands within the villages on Tutuila and counties on Ta'u are largely mountainous terrain and, except for some agricultural use and roads, undeveloped. For the most part, the boundaries of parcels within the Park lands have not been surveyed and therefore actual ownership of parcels has not been registered. Moreover, ASG and the Governor relied upon landowner agreements that stipulated *355to participation in the High Court process and authorized the Governor to negotiate the Lease Agreement terms, but did not identify owners with specific parcels of land. Thus, basing rental compensation payments on ownership of defined parcels before implementing the Park program would have been, and still is, a monumental and impractical task. A workable alternative payment system was necessarily put in place and is still the functionally-valid approach.
The federal enabling law, at 16 U.S.C. § 4lOqq-1(d)(2), implicitly envisions both public and private lands within the National Park. Accordingly, for the villages on Tutuila and counties on Ta'u, the Court looks to the village and county councils to certify, presented through a designated representative for communication purposes, the rental compensation payees. RCR Rule D. Each council certifies the sa'o or other family representative as the payee for communal lands, RCR Rule D(2)(b), and the owner or other representative as the payee for individually owned lands. RCR Rule D(2)(c) . For National Park purposes only, public “village land” is defined as land not commonly recognized within the village as either communal or individually owned land, RCR Rule D(2)(d), and is identified when a council certifies payments in equal or proportionate amounts to the sa'o or other representatives of families participating in village or county affairs in accordance with village or county traditions.
The Court approves payment of the rental compensation to the payees in the village or county, based on the funds allocated to the village or county, after resolving any discrepancies in the certified information. RCR Rule E. However, the Court’s resolution process is non-adversarial, without res judicata, collateral estoppel, or similar legal effect. Boundary or ownership disputes must still be adjudicated in regular proceedings before the Court’s Land and Titles Division. RCR G(l). Annual recertification is required, affording each council opportunity to change the identified payees and their share of the rental compensation. RCRF.
Discussion
The National Park lands in the Village of Afono are located almost entirely at the top or on the north side slopes of the mountainous spine along the central portion of the Island of Tutuila. We begin by finding that under the evidence, the Aoelua family does not own land in Afono within the National Park. Thus, ownership of National Park land is ruled out as a basis for Aoelua, on the Aoelua family’s behalf, sharing in the distribution of the rental compensation provided for Afono payees.
*356The Village Council of Afono has consistently certified five recipients of the National Park lease rental compensation, in equal amounts, from lease year 1 beginning on February 1,1994, through every following lease year, including the current lease year (year 11) ending on January 31, 2006. Because of this certification structure, we have always recognized and construed the Afono Council’s certifications as treating the Afono Park lands as village lands solely for purposes of the National Park rental compensation payments. Each of the five payees is the sa'o of an Afono family who acknowledges and functions under Afono’s traditional chiefly structure, and is accordingly an accepted and participating member of the Village Council. The Afono Council’s selected distribution system is proper under the Court’s established guidelines for payment of the National Park rental compensation. The Council has also consistently excluded the Aoelua titleholder from its certified list of payees, and the Aoelua family consequentially.
The Council’s exclusion of the Aoelua titleholder involves an internal Afono issue over the traditional hierarchical structure and social order of the village. Regardless of when this controversy first developed, it is clearly manifested in the complete record of Aoelua Family v. Tela, LT No. 31-80, a land title registration case. That action pitted an elderly stepfather, Aoelua Solimio, against his considerably younger stepson, Tela Panini. Tela Panini objected to Aoelua Solimio’s offer to register certain land in the Afono village center as the Aoelua family’s communal land. Aoelua Solimio, holding the Aoelua title, claimed that the Aoelua title is separate from the Tela title and that he had the pule over the land then at issue as the Aoelua family’ s communal land. Tela Panini, holding the Tela title, maintained that the Aoelua title is a high talking chief within the Tela family and serves the Tela high chief title, and as such that the Tela title had the pule over the land at issue as the Tela family’s communal land. The court decided that the Aoelua titleholder’s proposed title registration was proper on the ground that the Aoelua and Tela titles were separate and the Aoelua family had lived on the land for many years, farmed it and buried many family members on it. Id., slip. op. (Land & Titles Div. Nov. 24, 1982), aff'd, Tela v. Aoelua Family, AP No. 40-82, slip op. (App. Div. May 21, 1984).
In this action, Aoelua and the Aoelua family argue that since the Aoelua title is separate from the Tela title under Aoelua Family, he as the present Aoelua titleholder is entitled to receive an equal share in the National Park rental compensation for Afono with the Tela titleholder and other Afono payees. We disagree. The Aoelua and Tela titles are judicially recognized as separate titles, and the Aoelua titleholder has the pule over the specific family communal land at issue in Aoelua Family. However, it does not follow as a matter of course that the Aoelua title is not a talking chief title serving the Tela high chief title. Under the evidence, *357we find that the Aoelua title is customarily and clearly under the Tela title in Afono’s customary social order. A lesser title may be separate from a higher title, and on that basis have the pule over communal land pertaining to the family of the lesser title, but that lesser title may still be subservient to, rather than independent from, the higher title under the traditional hierarchy of the village concerned. The Aoelua Family court did not address whether the Aoelua title is independent from the Tela title when village matters involving traditional matai relationships are undertaken. We find that in Afono’s hierarchical structure, the Aoelua talking chief title serves and is not independent from the Tela high chief title.
The Aoelua titleholders have, for the most part, disdainfully disregarded the traditional connection in Afono’s history between the Aoelua and Tela titles ever since Aoelua Family was decided. The present Aoelua has approached the Afono Village Council to make amends in a traditionally acceptable manner. However, Tela and the other members of the Council have rejected Aoelua’s overtures, unless and until he is prepared to acknowledge that the Aoelua title is under and serves the Tela title. Aoelua has refused to make this concession.
The ultimate resolution of the relationship between Aoelua and Tela in customary Afono affairs is a matter requiring internal village decision-making. Meanwhile, however, we will not disrupt or otherwise interfere with the village’s social order by recognizing and adding Aoelua as a payee of National Park rental Compensation.
Order
The Aoelua titleholder is not presently entitled to receive on behalf of the Aoelua family a share of the rental compensation provided for the National Park leased lands in the Village of Afono. Therefore, Aoelua’s claim for payment of the rental compensation, prospectively and retroactively, is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486983/ | *359ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RECONSIDERATION
Introduction
On October 26, 2004, we denied Plaintiffs’ application for a preliminary injunction. Because it appeared that the denial effectively resolved all issues raised by the complaint, we also scheduled a hearing to consider dismissal of the entire action. Plaintiffs then moved for reconsideration of the preliminary injunction denial and moved for leave to file an amended complaint. We heard the dismissal issue and Plaintiffs motions on November 22, 2004. On December 8, 2004, we denied plaintiffs’ two motions and dismissed the entire action. On December 16, 2004, Plaintiffs next moved to reconsider our decision of December 8, 2004. This motion is appropriate only for purposes of reconsidering the denial of leave to file an amended complaint and dismissal of the entire action. We will not again review the issues reconsidered and denied by the December 8 decision.
In light of Plaintiffs’ submissions and statements at the January 18, 2005 hearing on the second reconsideration motion, as they relate to Plaintiffs’ tort claim for damages, we now grant Plaintiffs leave to file their amended complaint and restore that cause of action against Defendants.
Discussion
We have already concluded that Plaintiffs cannot state a cause of action for alleged “harms” caused to condemned land that they no longer own, and Plaintiffs have not presented compelling arguments requiring us to alter or elaborate upon these conclusions. However, to the extent that Plaintiffs’ claims of alleged injury to “Fano family land” refers to presently owned family land, that is, land not the subject of condemnation, we are persuaded differently.
In their proposed amended complaint, Plaintiffs note that under their “third cause of action for damages” they may now pursue a cause of action against ASG within the scope of the Government Tort Liability Act (GTLA). Under the GTLA, a plaintiff, as a prerequisite to filing a claim against the government in court, must submit the claim to the Attorney General for review. A.S.C.A. § 43.1205(a). Only after the Attorney General denies the claim in writing, or fails to address the claim within a three month period, may a plaintiff then file that claim with the court. Id. Plaintiffs maintain that they filed their administrative claim on July 21, 2004. Plaintiffs further note that the Attorney General orally denied the claim prior to the three month period, and by October 21, 2004, Plaintiffs did not receive a written denial. We agree that Plaintiffs *360have properly satisfied the GTLA exhaustion requirement.
In their proposed amended complaint, as in their original complaint, we now recognize that Plaintiffs effectively allege that during Defendants’ current development on the condemned land, Defendants have caused damage to the adjacent Fano family land as a result of altering the course of a stream. Plaintiffs have now made clear in their brief and at hearing that the meaning of “Fano family land” in their complaint does not simply reference the condemned land asserted to belong to the Fano family that we have previously addressed, but additionally includes land that today remains in the Fano family’s possession. As such, Plaintiffs may file their amended complaint, adding allegations of the mandatory administrative claim process, solely to pursue their damage claim for the alleged injuries to the Fano family land outside of the condemned land now owned by ASG. All other claims related to the condemned land will not be revisited.
Order
1. We will not further reconsider the issues included in our denial of Plaintiffs’ first motion for reconsideration.
2. Plaintiffs are allowed to file their amended complaint to pursue their tort claim for damages as this claim relates to presently owned Fano family land outside the condemned land. For this purpose, the dismissal of the action is set aside only as it pertains to the tort claim.
3. Plaintiffs’ motion for reconsideration of the dismissal of the action is denied with respect to all other causes of action.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486984/ | ORDER ON PRELIMINARY INJUNCTION APPLICATIONS
Introduction
In LT No. 40-04, Plaintiff Kishon Pritchard Lua (“Kishon”) and Defendant Puletu D. Koko (“Puletu”) filed cross-applications for preliminary injunctions pertaining to Kishon’s house under construction on land named “Fuamete” in Leone, American Samoa. Kishon claims that the construction site is on individually owned land of her late father Fuiavailiili William Pritchard (“Fuiavailiili”). Puletu claims the land to be the Puletu family’s communal land. While this case is pending, Kishon seeks to complete construction of the house and Puletu seeks to stop construction.
The applications were heard on January 19-21, 2005. Both Kishon and Puletu were present with their respective counsel. Plaintiff Douglas Crane Kneubuhl, in LT No. 23-03, appeared by his counsel. Defendant Iuli Alex Godinet, in LT No. 26-03, was present only as a witness without his counsel. Because they relate to Fuamete, LT No. 23-03 and LT No. 26-03 were consolidated on October 9, 2003. LT No. 40-04 was consolidated with the two earlier cases at the beginning of the *363preliminary injunction applications.1
Discussion
I. Preliminary Injunction Prerequisites
Preliminary injunctions are issued while an action is pending upon a sufficient showing that (1) the applicant has a substantial likelihood of prevailing at trial on the merits and a permanent injunction will be issued against the opposing party, and (2) the applicant will suffer great or irreparable harm before a full and final trial can be held on whether a permanent injunction should issue. A.S.C.A. § 43.1201Q.
A. Likelihood of Prevailing
The three consolidated actions, along with the action of probable prospective consolidation, involve this and several other issues of land ownership within Fuamete. It appears that the entire area at issue was at one time the Puletu family’s communal land. However, more than 100 years ago, in the 1890s, a substantial portion within the disputed land was converted into freehold land by a court grant. The freehold area was transferred to Alfred Pritchard, Fuiavailiili’s and Kishon’s direct line ancestor, in the early 1900s. Puletu acknowledges that Alfred Pritchard’s heirs own the freehold land. There still remains, however, a problem with locating the freehold land on the ground within Fuamete with reasonable certainty in order to judicially resolve the issues in this action.
During his lifetime, and beginning many years ago, perhaps as early as 1929, Fuiavailiili developed areas within Fuamete both within and outside the freehold land. He actually registered 12.51 acres as his individually owned land. It is not yet clear whether this acreage is entirely outside of the freehold land. Moreover, Puletu is challenging with some basis the validity of the registration. We will need to sort out other land registrations within or adjacent to Fuamete as well.
It is apparent, at least at this point, that Kishon’s house under construction is entirely or almost entirely on unregistered land. Fuiavailiili did, however, conduct substantial leveling of steep slopes in the area of the house construction site. On the other hand, Puletu *364presented substantial evidence that members of the Puletu family or others with the Puletu titleholders’ permission also cultivated this same area.
At this stage of this action, there are significant factual and legal issues remaining that need further in-depth development and analysis before this action can be fully resolved on the merits. As such, both Kishon and Puletu have each shown a likelihood of success at trial. This is a sufficient basis for holding that an applicant has established this preliminary injunction criterion. See Samoa Air v. Bendall, 28 A.S.R.2d 101, 103-04 (Land & Titles Div. 1995).
B. Preiudgment Irreparable Harm
Commonly, the equities between the parties’ interests must be considered to evaluate this criterion. See, e.g., Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644, 670 (2003). The balance in this case favors Kishon. The construction of her house has progressed well along towards completion. The two stories already erected need to have the roof installed to protect the completed work. She has substantial materials on site subject to risk of deterioration.
Puletu has agricultural planting in the area, but the present cultivation was hastily done after Kishon started construction of the house. He argues, somewhat vaguely, that the construction alters the significant historical value of the area. Perhaps, but the slope leveling, along with the public water tank installed above the site, changed the area in this respect years ago. If Puletu prevails at trial, he can be adequately compensated by money damages for any loss of the recent planting. Moreover, the area can be readily restored to pretrial conditions by removal of the house, or the Puletu family may acquire the house. Kishon is willing to complete construction at the risk of ultimately losing her investment or at least a substantial portion of it if Puletu prevails.
All circumstances considered, Kishon will immediately suffer great or irreparable harm if she is prevented from completing her house. Her harm is significantly greater in comparison with the harm Puletu may suffer before trial.
II. Certificate of Irreconcilable Dispute
Although the Secretary of Samoa Affairs has issued the certificate of irreconcilable dispute, which is a jurisdictional requirement under A.S.C.A. § 43.0302, for the disputes pertaining to LT No. 23-03 and LT No. 26-03, the Secretary has not yet mediated and issued a certificate for the controversy in LT No. 40-04. Except for issuing appropriate interim *365orders under A.S.C.A. § 43.0304, we must suspend further proceedings in LT No. 40-04 pending until the jurisdictional certificate is filed in this action.
III. Preliminary Injunction Procedure
We remind counsel that under T.C.R.C.P. 65(a)(2), the evidence received at the hearing on the present applications for preliminary injunctions is admissible at the trial on the merits, is part of the record, and need not be repeated at the trial. The evidence received during the January 19-21, 2005 hearing was substantial and bears on issues in the three cases other than the requested immediate preliminary injunctions in LTNo. 40-04.
Order
1. Kishon’s application for a preliminary injunction allowing completion of her house under construction is granted. Puletu’s application for preliminary injunction to prevent completion of the construction is denied.
2. While this action is pending or until further order of the Court, Puletu and his officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from preventing Kishon from completing her house now under construction on the land Fuamete in Leone, American Samoa, and from entering upon, clearing or performing any work on the land adjacent to or near the construction site and access road to the site. Kishon may remove Puletu’s recent plantings as is necessary to reopen the access road and facilitate construction of her house.
3. Except for appropriate interim orders, further proceedings in LT No. 40-04 are suspended pending completion of dispute mediation by the Secretary of Samoan Affairs and filing of the jurisdictional certificate of irreconcilable dispute issued by the Secretary.
It is so ordered.
During the hearing on the preliminary injunction applications, reference was made to a fourth action, LT No. 26-04, concerning Fuamete, and the prospect of consolidating this action with the three consolidated actions. A preliminary injunction hearing in LT No. 26-04 is scheduled in February, 2005, at which this further consolidation question can be resolved. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486985/ | *368OPINION AND ORDER
Introduction
On March 4, 2002, claimants Lele (“Lele”) and Teófilo Mageo (collectively the “Mageos”) offered a certain registration agreement (the “Separation Agreement”) for recording with the Territorial Registrar. The Separation Agreement relates to an 80’ x 80’ area of Tufaga communal land which the Mageos claim had been assigned to them by Sapati M. Tufaga (“Tufaga”), the sa 'o (senior matai) of the Tufaga family of Aua.
After the Territorial Registrar publicly gave notice of the Mageo’s offer to record the Separation Agreement, and immediately after the Mageos had openly commenced cutting down certain coconut trees on site in anticipation of building, objector Vatau Tufaga Galea'i Neria (“Neria”) filed an objection with Territorial Register, on behalf of her daughter Sandra Neria (“Sandra”), claiming that the Mageos had encroached upon Sandra’s assigned portion of land. Before filing her objection, however, Neria first contacted Tufaga, who was off-island at the time, by telephone. As a result of this telephonic conference, Tufaga sent word to the Mageos to halt their activity on the disputed site pending his return to Samoa within the next few months. Tufaga’s instructions went unheeded and the Mageos nonetheless continued to build their home.
The Territorial Registrar eventually referred the resultant dispute over the Separation Agreement to the Land and Titles Division, following the parties unsuccessful attempts at mediation before the Secretary of Samoan Affairs (“SSA”) pursuant to A.S.C.A. § 43.0302. The Clerk of Courts, upon receipt of the referral, captioned the matter as a dispute arising between the building owners (the Mageos) and the land owner (Tufaga for his family) of the one part, against the third-party objector (Neria) on the other. However, as the facts have unraveled before us, this dispute is actually one between the building owner on the one side, with the land owner and third-party objector on the other. In point of fact, the land owner seeks the expulsion of the home owners from family land.
After hearing the evidence presented by the parties at trial, the court ordered final arguments in writing and viewed the disputed area. Following the filing of written arguments, the Court, invoking the procedural flexibility afforded under A.S.C.A. § 3.0242 “to act in each case in such manner as the Land and Titles Division considers to be most consistent with natural justice and convenience”, called sua sponte for additional evidence and briefing on a jurisdictional issue which the Mageos had only just raised, for the first time in these proceedings, at *369final argument.
Findings
As we alluded to above, the subject of the dispute is a portion of Tufaga family land which is known as “Lealatele” but which the Mageos singularly refer to as “Lalolama.” The disputed area is a small but highly elevated tract located off the Aua-Vatia cross-island road part way up the steep mountainside toward the Mount Alava ridge. The site first came into being during the last major work to the cross-island road, after it was cleared and leveled by the road contractor who used the area as a place to store heavy machinery and equipment. The site commands splendid vistas of the Pago Pago Bay area and is, therefore, quite naturally a very desirable location for a home. Indeed, Lele had her eye on the piece for many years, and pressed Tufaga at every opportunity to let her build a home on the site. In fact, and unbeknownst to Tufaga, Lele had as early as August 1995 unilaterally commissioned a survey of the land demarcating an 80 foot by 80 foot plot plan for a home site positioned more or less in the middle of the disputed area. Lele had undertaken this survey covertly with the very evident purpose of being one step ahead of the rest of the Tufaga family, not only in the hope of securing Tufaga’s approval ex parte but in contemplation of the Development Bank of American Samoa’s application requirements for home loans appertaining to communal land. Tufaga, however, repeatedly put off giving Lele a reply one way or the other since he had plans about a site for himself.
Tufaga is absent from the Territory for extended periods of time, maintaining a second home on the mainland because of his need for ready access to certain medical facilities not otherwise available to him on-island. He is physically afflicted with compromised eyesight and ambulation, having earlier suffered severe injuries in an industrial accident while working with the federal government. The accident has left him with a debilitating condition now exacerbated with the onset of diabetic complications. Nevertheless, as sa'o of the Tufaga family, he frequently visits the Territory from time to time attending to family matters and to his duties as sa'o. Whenever Tufaga visits the Territory, Lele, who is a registered nurse, would always attend to his medical needs, his home medications, diabetic injections, and the regular monitoring of his general condition. Lele, who familiarly calls Tufaga “uncle”, would exploit these opportunities to implore Tufaga to designate the disputed site for her use.
On one of his visits to the Territory, Tufaga finally assembled his extended family on a Saturday, March 2, 2002, at the disputed site, to publicly announce his decision regarding use of the disputed land area. His decision and action was prompted by Sandra’s emergent need to *370relocate her home, following Tufaga’s commitment to the Mormon church in Aua of another area of Tufaga family land that included Sandra’s then-assigned residential site. Consequently, the sa'o had resolved to relinquish his own plans for the disputed area in favor of not only Sandra but Lele as well, given the latter’s longstanding importuning efforts for the site.
With the family assembled, including its lesser matai, Tufaga partitioned the disputed area into two parts designating the harbor-side portion of the clearing for Lele’s use while pointing out the inland portion for Sandra’s. Tufaga also designated a bisecting area in between the divided portions for use as common access to and from the main highway. To clearly demonstrate the subdivision, Tufaga used, and pointed out, certain tall standing coconut trees in the front and rear of the disputed area as boundary reference points. He then instructed Lele and Sandra to prepare the necessary paperwork, including plot plans, for formal confirmation of their respective assignments. At the same time, Tufaga had planned to, and did, return to the mainland the following Monday, March 4,2002.
In anticipation of the sa'o’s impending departure, Lele hurriedly presented Tufaga documentation for his signature that very Monday morning, March 4, 2002. However, contrary to the sa'o’s instructions, Lele’s documentation — a standard form separation agreement used by the Territorial Registrar’s Office together with a standard form lease agreement employed by the Development Bank — incorporated her 1995 clandestine plot plan.1 Although this 1995 plot plan referenced a mere 80’ by 80’ square foot area of land,2 it sufficiently overlaps onto Sandra’s assigned portion to effectively thwart any optimum opportunity for Sandra to situate her home on her assigned piece. The reason being is that Lele’s 1995 plot plan strategically positions her proposed home right in the middle of the disputed area where Tufaga had provided for the common access way'.
*371Lele personally picked up Tufaga on that Monday morning and drove him to the Territorial Registrar’s office where it was explained to Tufaga that he had to sign as the family matai certain documents characterized to him as “permission” to allow the Mageos to build their home. It is unclear to us where Tufaga actually executed Lele’s documents. What is very clear on the evidence, however, is that Tufaga, who has failing eye sight and is quite unable to read, executed the documentation placed before him unaware that the papers were not in accordance with his instructions as publicly delivered before the assembled family two days beforehand. As it turned out, Tufaga had not only signed the Separation Agreement, but a lease (the “Lease”) of the area surveyed in 1995.
Lele maintains that both the Separation Agreement and the Lease were signed by Tufaga at the Registrar’s Office, after things were explained to him by the Registrar. However, there are two things about the signing exercise that does not sit well with us, causing us to doubt Lele’s testimony. The first is that the Separation Agreement, a standard form from the Territorial Registrar’s Office containing a jurat providing for the Registrar’s signature, was never acknowledged before the Territorial Registrar. Since a notarized signature gives rise to a strong presumption of validity of the signatory’s assent, see Mailo v. Soane, 4 A.S.R.2d 140, 141 (Land & Titles Div. 1987), that presumption is conspicuously absent here. Secondly, while Lele told us on the one hand that the Lease was signed at the Territorial Registrar’s office in Fagatogo, she also confessed to driving Tufaga to the home of an acquaintance of her’s in Pago Pago to have the Lease subsequently notarized. Again, we find this action puzzling in view of the fact that the Registrar is authorized to notarize legal instruments. To the contrary, Tufaga testified, and we have reason to believe him given his ambulatory difficulties, that he was kept waiting in the car while Lele obtained her friend’s signature on the lease.
Under the circumstances, we find the inference compelling: Lele, in keeping with her furtive purpose throughout, had avoided notarization of the instruments at the Territorial Registrar to ensure that the details of the documentation were kept hidden from Tufaga. We are satisfied that Tufaga had no idea what it was he was signing, when Lele presented him both the Separation Agreement and the Lease for signing. We further find that Tufaga had no reason whatsoever to suspect that Lele would not comply with his very clear instructions delivered before the assembled family. As it was, Lele took advantage of a trusting and sick old man who had developed a certain degree of dependency upon her in her role as both a medical professional and as an outwardly filial and doting niece.
*372The Lease, unlike the Separation Agreement, somehow made it through the gubernatorial approval process without the Tufaga family any the wiser. Unlike the Separation Agreement matter, no one from the Tufaga family filed any objection to the Lease with the Territorial Registrar’s Office. The reason for this inaction, we believe, was that both the sa'o and family were kept lulled by the pending dispute over the Separation Agreement. They thus had no cause to be especially vigilant for another related land issue with the Mageos.
In fact, the family had no actual notice of the Lease until the matter came to court and, consequently, Tufaga argues bias on the Territorial Registrar’s part. Unfortunately their perception is not without some grounds. First, we are troubled with the Territorial Registrar’s role in the resulting confusion. Among other things, the Territorial Registrar is the Secretary for the Land Commission, the body statutorily charged with reviewing communal land transactions and making recommendations for appropriate gubernatorial action. See A.S.C.A. § 37.0202-03. Although aware of the Tufaga family’s ongoing dispute with the Mageos on the Separation Agreement, the Territorial Registrar, a nonlawyer, testified that she had nonetheless decided to withhold that information from both the Land Commission and the Governor on the reasoning that “the lease was a completely different matter.” We find this premise somewhat astounding in light of the glaring fact that the Mageos’ underlying plot plan for both the Lease and Separation Agreement was one and the same. Moreover, we regard it rather presumptuous for the Territorial Registrar to be making legal decisions on behalf of not only the Land Commission but the Governor, as that is properly the Attorney General’s bailiwick. Had the Attorney General been consulted, we perhaps would not be faced with the anomalous situation before us today of a presumptively valid lease, with gubernatorial approval, between parties who are also properly before the Land and Titles Division on a disputed separation agreement concerning the exact same piece of land.
Second, we note from the Territorial Registrar’s records that the lease document may not have been publicly posted within the village, as is the Registrar’s practice in matters involving communal land. Apparently realizing two years after the Lease date that there was no village pulenu 'u affidavit on file, certifying public posting of the lease within the village confines, see A.S.C.A. § 37.0103(a), the Territorial Registrar’s Office perfunctorily produced one on May 17, 2004. This affidavit purported to certify posting by the village pulenu'u two years beforehand, between March 18-May 17, 2002. Of note, however, is the fact that the affidavit was not signed by the pulenu u of Aua Village but by Eastern District Governor Faumuina. We greatly doubt the testimonial value of this affidavit given the two-year gap and given our difficulty in accepting that Faumuina, a matai of paramount stature, *373would actually involve himself with the menial task of affixing public notices for the Territorial Registrar on utility power poles in and about the Eastern District.
Be that as it may, the Mageos, armed with their executed Lease and Separation Agreement, began building their home in accordance with their 1995 plot plan, while completely ignoring the sa'o’s March 2, 2002-assignment directive. True to plan and nefarious design, the Mageos situated their home right in the middle of the disputed area to the obvious exclusion of Sandra, or anybody else, from any reasonable chance to share the site for residential purposes.
The Mageos defied all of the sa'o’s efforts to maintain the status quo pending his resolution of the dispute. In March 2002, Tufaga sent word, via Neria, to the Mageos to cease their building, to no avail. Subsequently he dispatched Niumatalolo, a lesser matai of the Tufaga family, on two separate occasions, in April and June 2002, to caution the Mageos to stop their construction until his return to the Territory. These entreaties were also ignored. Finally, in September 2002, Tufaga actually returned to American Samoa and personally visited the site. After viewing the site and after determining that the Mageos had not only encroached upon Sandra’s assignment but upon the common access-way that he had provided for, Tufaga then had the respective assignments staked out with red flag markers. He subsequently summoned both Sandra and Lele and, in the presence of another lesser matai of the family, Lemafa, directed Lele to relocate her building to the area he had initially designated. The Mageos again ignored the sa'o and his red flag markers and built their home to conclusion, as they saw fit.
From a Samoan perspective, the Mageos openly challenged the matai’s pule (titular authority).3 As a consequence, the sa'o fervently seeks the Mageos eviction from family property.
*374Discussion
I. Jurisdiction
As above noted, the Mageos first raised a jurisdictional objection post-trial, in their written final arguments. They contend, without supporting authority, that the Land and Titles Division lacked jurisdiction over the leasehold issue because Sandra had not raised the Lease before the SSA under A.S.C.A. §43.0202.
We summarily dismiss the argument as nothing but a dilatory and desperate attempt by the Mageos to further stall these proceedings. This is blatantly evident with their abject failure to raise this sort of argument prior to the tedium and expense of trial.
Section 43.0302(a) provides in relevant part:
Before any action relating to controversies over communal land . . . may be commenced in the Land and Titles Division, each party shall file with his complaint a certificate signed and attested by the Secretary of Samoan Affairs ... in which the Secretary . . . affirms and states: (1) that on at least 2 occasions, the parties have appeared personally before him and 2 persons designated by him, without an attorney or counsel, and that an attempt was made to resolve the controversy; . . . (4)... the reason why the controversy could not be resolved.
All that the enactment requires is that parties to a dispute concerning communal land first submit themselves to settlement conferences before the Office of Samoan Affairs. Once the parties have complied and the SSA certifies an irreconcilable dispute, the matter is ripe for judicial resolution.
In the matter before us, our record reveals that the SSA did file such a certificate with this court on June 26, 2002. Whether or not the Lease was raised before the SSA (it was not, as neither the sao, Neria, nor Sandra had actual knowledge of a lease) is entirely of no consequence as there is absolutely nothing in § 43.0302 that requires parties to a land dispute to present arguments or submissions of a legal nature before the SSA. The enactment simply does not contemplate a procedure whereby legal niceties are debated before the SSA. Furthermore, the SSA has no authority to adjudicate legal rights or the strengths of a party’s legal position (otherwise, the Mageos would have had every reason to raise the Lease themselves).
*375Here, the basis of the land dispute between the sao of the Tufaga family and the Mageos is all about the exercise of pule. The matai’s primary concern is allowing Lele’s defiance — her refusal to accept the matai’s authority to administer family land according to the customs of the Samoan people4 — to take root and become a precedent within the family. Tufaga testified to his being worried about others following Lele’s example, and making a mockery of the matai’s pule over family lands.
That, in a nutshell, was the only cognizable dispute before the SSA, not the validity of Lele’s land documents. Since the dispute between Tufaga and Mageo did not resolve extra-judicially before the SSA, a § 43.0302 certificate was appropriately issued. We therefore assert jurisdiction. See A.S.C.A. § 3.0208(b).
II. Fraud
For reasons discussed below, we hold that the Mageo’s Lease and Separation Agreement, upon which they base their claim to entitlement to the disputed area, are both void and unenforceable. We conclude that these instruments were secured from Tufaga by fraud and the Mageos will accordingly take nothing thereby.
Fraud is “[a]n intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.” BLACK’S Law Dictionary 594 (5th ed. 1979). A contract is deemed fraudulent where a party: (1) conceals or falsely represents a material fact; (2) has knowledge of the concealment or falsity; (3) has intent to induce the other party into executing the agreement; (4) the other party actually acts in reliance upon the false representation or concealment; and (5) the other party is damaged. Mailo v. Aumavae, 30 A.S.R.2d 175, 177 (Lands & Titles Div. 1996).
When a fraudulent representation or concealment relates to an essential term of the agreement, the fraud is said to be in the “execution” of the document. Id., Sandvik AB v. Advent Intern. Corp., 220 F.3d 99, 109 (3d Cir. 2000) (stating that fraud in the execution is present when a party enters into a contract “with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms”), Restatement (Second) of Contracts § 163 (1979). Under such *376circumstances, a party is led to believe that “he is assenting to a contract entirely different from the proposed contract.” Iron Workers’ Local No. 25 Pension Fund v. Nyeholt Steel, Inc., 976 F.Supp. 683, 689 (E.D.Mich. 1997). An agreement obtained through fraud in the execution lacks mutual assent and is void. Mailo, 30 A.S.R.2d at 177; Sheffield v. Andrews, 679 So.2d 1052, 1053-54 (Ala. 1996) (fraud in the execution present where contract with altered terms presented to elderly women with failing eyesight); Restatement (Second) of Contracts § 163 (1979); see also Langley v. FDIC, 484 U.S. 86, 93 (1987).
In the present controversy, Lele committed fraud when she presented the Separation Agreement and Lease to Tufaga that differed in content from Tufaga’s earlier oral instructions knowing that because of his failing eyesight he could not read them. Additionally, she knew full well that she held certain sway over the sa'o, having carefully cultivated with him over the years a certain relationship of trust and dependence. Lele’s conduct satisfies the five-part test for fraud:
(1) Lele concealed a material fact because she did not alert Tufaga that the documents effectively gave her alone an interest in the disputed site, rather than a shared interest with Sandra, as Tufaga had instructed several days earlier;
(2) Lele had knowledge of the concealment because she was present when Tufaga ordered the land split into two, yet she nonetheless generated documents for his signature that stated otherwise, knowing that because of Tufaga’s failing eyesight, he would be unable to read them;
(3) Lele had intent to induce Tufaga into executing the agreement because she was the one who procured the documents, personally delivered them to Tufaga and asked for his signature;
(4) Tufaga acted in reliance on the concealment because Lele’s writings clearly contradicted Tufaga’s orally expressed intent, as communicated to the entire family several days earlier. Thus, had Lele not concealed the true content of the documents, Tufaga would not have put his signature on them; and
(5) the concealment caused Tufaga damage because land under his control was registered in a manner contrary to his intent.
Moreover, Lele’s conduct may be regarded as fraud in the execution, automatically voiding the documents. When a party to a contract misleads another party as to an essential term of that contract, the former party commits fraud in the execution. Zurcher v. Herveat, 605 N.W.2d 329, 337 (Mich. Ct. App. 1999). Here, Lele misled Tufaga into believing that the documents he was signing accurately reflected *377Tufaga’s intended division of the Lealatele. However, the documents did not reflect Tufaga’s intentions. Instead, Lele simply incorporated her own plot plan in the Separation Agreement and the Lease. Because Tufaga was unaware that an essential term of the documents he was signing differed from his original intent, he lacked the mutual assent necessary to make those agreements binding. And, therefore, because Tufaga did not assent to the Separation Agreement and the Lease, those documents are void and unenforceable.
III. Eviction
In Coffin v. Mageo, 4 A.S.R. 14, 17 (Land & Titles Div. 1970), this court noted: “The matai of the family has the right to evict any person from communal lands if. . . the matai performs his obligation to protect family members against the wrongdoings by other members of the family.” Thus in Gi v. Leia, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1989), this court upheld the sa'o’s expulsion of family members who ignored and disobeyed his legitimate directives, in the exercise of his pule, while attempting to resolve a land dispute between rival family groups.
We conclude on the facts that Tufaga, as sa'o, was justified in evicting the Mageos from Tufaga family lands. The matai’s pule over family land goes to the very integrity of the Tufaga family as a Samoan institution.5 The Mageos utter disregard for that pule was flagrant and extremely offensive. First, their commissioning a survey of Tufaga family land back in 1995, without Tufaga’s knowledge or permission, was unlawful and in violation of A.S.C.A. § 37.01029(d).6 Second, and in light of the notoriety of the land assignments at issue, the Mageos refusal to obey the sa'o’s subsequent directives to suspend their construction was nothing less than an outright attempt to belittle the sa'o before the family and undermine his pule. Tufaga’s directives were, under the circumstances, an eminently reasonable exercise of pule', he was, after all, simply trying to intervene as the sa'o of a Samoan family in a land dispute between people living within the Tufaga family. By failing to heed the matai’s demands, the Mageos effectively encroached *378upon Sandra’s assigned portion of family land, lending credence to Tufaga’s concerns about family members getting similar self-help ideas to family lands.7 We agree with Tufaga that such defiance, if left unchecked, could well prove to be a disastrous family precedent. The petition for eviction will, therefore, be granted.
TV. Unjust Enrichment
The question which next ensues is whether the Mageos are entitled to equitable compensation for the improvements they have made to Lealatele. “Such relief... is available ... to an occupant who has made improvements in ‘good faith.’ Fonoti v. Fagaima, 5 A.S.R.2d 158 (Land 6 Titles Div. 1987); Roberts v. Sesepasara, 8 A.S.R.2d 124 (Land & Titled Div. 1988), and whose possession must have been under some color or claim of title.” Faleatua v. Tauiliili, 19 A.S.R.2d 122, 125 (Land & Titles Div. 1991). The corresponding duty to compensate is derived from the “unjust enrichment of the land owner . . .” Roberts v. Sesepasara, supra, at 131.
Here, the Mageos were not “good faith” improvers. They built their home over the repeated objections of the matai, and “knowledge of an adverse claim ordinarily prevents a possessor from being in good faith for the purpose of receiving compensation for improvements upon eviction.” Tulisua v. Olo, 8 A.S.R.2d 169, 172 (App. Div. 1988); Faleatua v. Tauiliili, 19 A.S.R.2d. 122, 125 (Land & Titles Div. 1991) (“Ordinarily, an improver’s knowledge of an adverse claim vitiates a claim to ‘good faith’ for purposes of receiving compensation.”) Unyielding in their disregard of the matai’s instructions, the Mageos stubbornly pressed on to complete building their home. Under the circumstances, “[they] did so at [their] peril,” Tulisua, 8 A.S.R.2d at 172, and, therefore, they are not entitled to equitable relief.
They may, however, remove their house or abandon it in favor of the Tufaga family. That is not to say that the parties cannot negotiate a sale agreement of the house since its removal would most certainly be wasteful. On the other hand, if the parties cannot arrive at such an agreement, then the Mageos shall remove their property from the disputed area within 60 days of date hereof or otherwise their *379improvements will inure to land.
Order
1. The Separation Agreement is void and unenforceable and is therefore not a registrable instrument.
2. The Lease is void and unenforceable and its registration with the Territorial Registrar is hereby set aside.
3. The Mageos shall vacate the disputed land area as hereinbefore stated within 60 days of date hereof.
It is so ordered.
Given the seemingly dizzying speed at which Lele had produced her paperwork (literally overnight into a Sunday), the unmistakable inference is that Lele had long ago prepared these documents in contemplation of an earlier assignment.
In her haste, Lele obviously overlooked the fact that her documentation purported to grant her a much- smaller area of land than that which the sa'o had publicly assigned to her. Moreover, the area designated by her 1995 plot plan is landlocked and without access to the main road. Thus on her version of the facts, Lele has effectively positioned herself between the proverbial rock and hard place.
Generally, pule is the authority vested in the matai to protect and conserve the family’s assets, and includes the power to divide and allocate land to individual members for their use. Lulu v. Taesaliali'i, 11 A.S.R.2d 80, 87-88 (Land and Titles Div. 1989). Of course, pule must be exercised fairly and justly for the benefit of the family. Tiumalu v. Scanlan, 4 A.S.R. 194, 198 (Land & Titles Div. 1961).
See Leapaga v. Masalosalo 4 A.S.R. 868, 871 (App. Div. 1962); Lutu v. Fuimaono, 4 A.S.R. 450, 454 (Trial Div. 1964) (“In accordance with Samoan custom ... the matai has ... has jurisdiction over the land of his family.”); Lolo v. Heirs of Sekio, 4 A.S.R. 477, 481 (Trial Div. 1964); Tiumalu v. Scanlan, 4 A.S.R. 194, 198 (Trial Div. 1961).
“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.” Pen v. Lavata'i, 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)).
This enactment provides that “[o]nly the senior matai of a Samoan family has the authority to request a survey of communal property of that family.”
As a blood member of the Tufaga family, Sandra’s entitlement or proprietary interest in the land, as assigned by the matai, is not only constitutionally protected, Pen v. Lavata'i, 25 A.S.R.2d 164, 168 (Land & Titles Div. 1994), but may only be revoked for cause bv the matai. Taesali v. Samuela, 3 A.S.R. 359, 361 (Trial Div. 1958). The Mageos’ land-grab was tantamount to an attempted revocation of Sandra’s constitutionally protected interest by a non-matai. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486987/ | MAMEA, J.,
dissenting:
I respectfully dissent with the holding of the majority and would grant the Maugaotega family’s prayer for injunctive relief. In denying the Maugaotega family claim of ownership to the disputed land, the majority concluded that the location of the land in Amaluia is determinative of the issue of title. The court based its reasoning on the principle that absent persuasive evidence, a title connected with land and the affairs of a particular village cannot be given authority over land and the affairs of another village. In light of the facts before the Court, I believe that the Maugaotega family has offered persuasive evidence that the disputed land is their communal property.
It is of course true that within the context of Samoan law and custom, the location of disputed land in another village is not alone determinative of ■ ownership, and that individuals or families can own land in other villages. For example, under the Samoan tradition of ifoga, or atonement, this Court has noted that communal land of the family of a wrongdoer may be given as an expression of sorrow or apology and become the communal property of the victim’s family. Leota v. Faumuina, 4 A.S.R.2d 11, 12 (App. Div. 1987). Such a transfer allows a village to exercise control over land in another village.
*384Additionally, and pertinent to the matter before us, this Court has observed that an American Samoan may acquire land in another village as either his individual property or as communally owned land on behalf of his family. Seva'aetasi v. Fanene, 9 A.S.R.2d 118, 121 (Lands and Titles Div. 1988). In Seva'aetasi the Court conceded that “[bjefore the coming of the United States government the structure of Samoan society was such that families of one village did not acquire land in other villages by original occupation . . . [but that] there are reported instances of acquisition of such land by gift.” Id. The Court observed, however, that after the arrival of the United States government, anyone with at least fifty percent Samoan blood could acquire land for himself or his family in any village, not just the village in which his family or matai title resides, by gift, purchase, or original cultivation. Id. Recognizing, then, as does the majority, that the presumption that land within a particular village belongs to that village may be rebutted by a “persuasively genuine evidentiary explanation,” the issue of ownership turns on the specific facts presented by the parties, and not merely on a general evaluation of the location of the land.
I find that Plaintiffs have offered persuasive evidence demonstrating that the Maugaotega family properly acquired the land in Amaluia through original cultivation. While I recognize that long occupancy of land by one family is not necessarily inconsistent with ownership by another family, so to do I take note that a pattern of settlement provides evidence of land ownership. Leota, 4 A.S.R.2d at 12; Tuiasosopo v. Afoa, 16 A.S.R.2d 90, 94 (Lands & Titles Div. 1990). In the current case, Plaintiffs have shown that the Maugaotega family has resided on and improved upon the land for the past 100 years or more. The land has been used as a Maugaotega family source for planting and harvesting crops since at least 1906. Kalala Leano, a Maugaotega family member, has been on the land since approximately 1949. Alaimanu Kiliona Leano was born on the land, built a home on it nearly 30 years ago, and continues to reside on it. Penehuro Leano built a house on the land in 2003 and continues to reside upon it. That the land has been continuously used by the Maugaotega family for both residential and agricultural purposes creates a pattern of settlement indicating Maugaotega family ownership.
It is true, as the majority observes, that the parties presented contradictory testimony as to whether the Maugaotega family owned the land, or whether they were merely allowed on it with Agasiva permission. Yet, in addition to the potentially “self serving” testimony of both parties, I observe, as does the majority, that the Chief Justice’s September 30, 1907 letter, contained in the file of Maugaotega v. Toilolo, Case No. 8-1906, informed the Agasiva titleholder that the Maugaotega family owned what appears to be the same land, or a *385significant part of it, in question today. While I agree that the letter has no binding effect on the present action, its contents tend to support the version of facts set forth by the Maugaotega family. In turn, by lending greater credibility to Plaintiffs evidence, the letter, coupled with witness testimony, provide a persuasively genuine evidentiary basis establishing Maugaotega family ownership of land in the village of Amaluia justifying injunctive relief. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486988/ | ORDER CONFIRMING CONSOLIDATION, ISSUING PRELIMINARY INJUNCTION, AND REFERING ACTION FOR DISPUTE RESOLUTION PROCEEDINGS
*386The hearing leading to this order was held on February 18 and 22, 2005. Originally, the hearing was for Defendants’ application for a preliminary injunction. Shortly before the hearing began on February 18, Plaintiffs filed their application for a preliminary injunction. Having reviewed Plaintiffs’ application over the intervening weekend, we joined the hearings on both applications during the continued proceedings on February 22.
As the first order of business on February 18, and with counsel’s concurrence, we consolidated this action with the previously consolidated actions, LT Nos. 23-03, 26-03, and 40-04. All four actions pertain to issues of ownership of a large land area in Leone, known by all parties by the name “Fuamete.” During the hearing on the parties’ applications for preliminary injunctions in LT No. 40-04 on January 19-21, 2005, we received considerable evidence that was relevant to the present applications and, for purposes of the present applications, have considered that evidence as well as the evidence received on February 18 and 22.
The parties’ respective objectives raised by the applications heard in January 2005 were to permit or prevent, while LT Nos. 23-03, 26-03, and 40-04 are pending, completion of the house Kishon Pritchard, a Defendant in this action, has under construction on “Fuamete.” On January 31, 2005, we issued a preliminary injunction permitting Kishon to complete construction of her house at this time and enjoined Puletu D. Koko (“Puletu”), one of the two Plaintiffs in this action, from further actions obstructing the construction.
The parties’ ultimate objectives raised by the present applications are to permit or prevent, while all four actions are pending, further agricultural and other activities within the contested title area.
The contested area for purposes of the present preliminary injunction applications is appropriately defined as the line of the fence erected by Kishon’s father, Fuiavailiili William Pritchard (“Fuiavailiili”) many years ago along the eastern, southern, and western sides of the Pritchard’s cattle farm and the northern boundaiy of Fuiavailiili’s registered but contested 12.51 acres, as his individually owned land, generally along or above the ridgeline in this area.
Talamatavao Mom Mane Tuiagamoa (“Talamatavao), the other Plaintiff in this action, and a Puletu family member, with his more immediate family members and workers, commenced new agricultural plantings in December 2004 generally within the flat northeastern sector, within the old cattle farm fence line. Though Talamatavao claims that he and his family have cultivated this area for many years, and it is apparent that any such activity has been dormant for a substantial period of time. Talamatavao’s present clearing and cultivation activity has clearly disrupted normal living conditions of the family residing in the central portion of the defined area. The activity has also intruded closely to a Pritchard family grave site. Several dogs owned by this family have recently died near their house. *387Dogs owned by the Pritchards have also been found dead within the defined area. The circumstances suggest poisoning.
Likewise, in December 2004, Puletu clearly interfered with Kishon’s house construction, using new plantings to make access to the construction site difficult. He has also renewed harvesting the fruits of existing plantings along the ridgeline to the north above the government water tank and Kishon’s house construction site. He maintains that this is traditional Puletu family activity in this area. However, his family’s agricultural pursuits there have been sporadic at most for a substantial time period.
Our January 31 finding on the likelihood of success at trial stands. Significant factual and legal issues need further in-depth development and analysis before this and the other consolidated actions before these actions can be fully resolved on the merits. Both sides in this action have sufficiently established this preliminary injunction criterion.
We again balance the equities between the parties and their respective interests on the irreparable or great harm criterion. Plaintiffs have shown a basis, at least historically, for their claims of agricultural use of portions of the defined area. However, they are now using self-help remedies to support their claims. This approach is particularly inappropriate during pending litigation. If Plaintiffs are stopped from further activity within the defined area, they may lose the food value of some growing crops. However, they still have other land available to provide for their family’s subsistence needs. On the other hand, Defendants are being subjected to great immediate harm by Plaintiffs’ continuing confrontational intrusions into the defined area. On balance, Defendants are suffering the greater harm. Plaintiffs should be prevented from engaging in further activity within the defined area, until this and the other cases are decided.
By Plaintiffs’ present preliminary injunction application, Puletu asks us to revisit our January 31 order permitting Kishon to complete construction of her house. We find no reason to do so, and the January 31 preliminary injunction remains in effect.
Order
1. This action is consolidated with LT Nos. 23-03, 26-03, and 40-04.
2. Defendants’ application for a preliminary injunction in this action is granted. Plaintiffs’ application for a preliminary injunction is denied.
3. While this action is pending or until further order of the Court, Plaintiffs and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them are enjoined from entering, clearing, or performing any agricultural, building, or other activity within the defined area.
*3884. Except for appropriate interim orders, further proceedings are suspended, and this action is also referred for inclusion in the ongoing dispute resolution proceedings before the Secretary of Samoan Affairs, until the Secretary issues jurisdictional certificate of irreconcilable dispute.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486990/ | OPINION AND ORDER
Plaintiffs filed this action to evict Defendants from and to permanently enjoin their use of the building (“the premises”) located across from the American Samoa Community College and adjacent to the main public highway on the Fanene family’s communal land in Malaeimi, American Samoa. Ownership of the premises as between Plaintiffs and Defendant Lottie Tafeaga Savea (“Savea”) is disputed. Savea leases the premises to Defendant Julie Ming (“Ming”), who operates her business known as Fast Food there.
On February 18, 2005, the Court heard Plaintiffs’ application for a preliminary injunction to stop the alleged trespass and use pendente lite. However, the parties resolved the immediate issue by stipulating that the rent would be paid into the Court Registry pending further order of the Court. Trial was conducted on June 22, 2005.
We note two additional introductory matters. First, the Secretary of Samoan Affairs’ certificate of irreconcilable dispute, issued on January 31, 2005, was filed on February 2,2005. Although this action essentially concerns ownership of a building, involvement of underlying communal land still requires the jurisdictional secretarial certificate. A.S.C.A. 8 43.0302.
Second, the Fanene family’s sa'o title is presently vacant. The Territorial Registrar has set aside the registration of the holder of the family’s only other registered matai title, but that title vacation issue is pending before the High Court for ultimate resolution. MT No. 3-05. However, given the sa'o vacancy and lack of two other adult male registered motáis in the family, Plaintiffs as adult family members are authorized to bring this action for injunctive relief under A.S.C.A. 8 43.1309(b).
Discussion
A former Fanene family sa'o customarily assigned the use and occupancy to Plaintiffs and Lottie’s family many years ago. Plaintiffs are sisters. They had four brothers, all deceased, including Lottie’s father, Dr. Ifo Tafao (“Ifo”). Ifo built a home on the assigned land, where Lottie now resides, behind the premises. Plaintiff Naoafioga Malama *398Ueligatone also has a home on the land further behind the premises.
In 1984, the 10 siblings, Plaintiffs and their four brothers, agreed to invest $500.00 each to start a family business on the assigned land. They built and furnished the premises for this purposes, using the investment funds as well as financial and labor contributions of the brothers then living in American Samoa and gifted appliances from siblings living outside of the territory. The premises were completed and opened for retail business operations named the Malaeimi Mini Mart, as the 10 siblings family business in January 1985. Approximately two years later, the 10 siblings decided to lease the premises to other business operations rather than directly conduct business there. Ifo, as the 10 siblings’ on-site representative, essentially managed the premises from January 1985 until he passed away in April 2004. The premises was closed to business operations in August 2004, but in January 2005, Lottie leased the premises to Ming.
Ifo was reminded from time to time by one or more of the Plaintiffs that the 10 siblings or the survivors of them owned the premises. The last occasion was in 2003 when Ifo visited Plaintiff Latavale Tafao Tupuola (“Latavale”) in California. After Ifo’s death, Plaintiffs, the six sisters and then the only surviving siblings, conveyed to Lottie their intention to take over the management of the premises. Latavale claims that Lottie agreed to Plaintiffs’ plan during a telephone conversion on June 9, 2004, which Latavale confirmed in a letter dated June 10, 2004, to Lottie. Lottie, however, denies any such agreement and claims that Ifo owned, and she, as his successor, now owns the premises. She bases this claim principally on Ifo’s hands-on connection with the early business conducted on, and later leases of, the premises and her father’s ownership statements. She claims, for example, that Ifo told her in substance that he took over sole ownership of the premises in 1987 as settlement of disagreements among the 10 siblings and refunded their cash investments and contributed appliances.
The premises was not separated as personal property, pursuant to A.S.C.A. §§ 37.1501-. 1506, from the Fanene family’s underlying communal land. As an improvement to land, the premises is a permanent and integral part of the communal land and is therefore real property. Ifo’s statements to Lottie are unpersuasive, hearsay evidence. By contrast, we believe the overriding, convincing evidence to be the siblings’ conduct over the years vis-á-vis the premises. Through their original agreement to construct the premises, and subsequent actions, the ten original siblings, and now Plaintiffs as the six surviving sisters, have always had the collective right to occupy, use, and control the premises. This right was and remains a settled matter within the discretion of Plaintiffs’ family. Plaintiffs’ family will continue to have the right to *399maintain or modify their internal agreemeftt pertaining to the premises so long as the communal land assignment to Plaintiffs’ family does not terminate. See Lutu v. Taesaliali'i, 11 A.S.R.2d 80, 89 (Land & Titles Div. 1989); Gi v. Temu, 11 A.S.R.2d 137, 142 (Land & Titles Div. 1889).
It follows that Lottie did not have any authority by herself to lease the premises to Ming, and that the lease is therefore void ab initio. Ming, however, continues to occupy and operate her Fast Food business on the premises, and by the Court’s order entered on Februaiy 25, 2005, she has deposited the monthly rent due after that date into the Court Registry. At this juncture, Plaintiffs may either ask the Court for an order evicting Ming or choose to renew the lease, under its present or renegotiated terms, and collect the rent. Under either option, the rental funds in the Registiy will be disbursed to Plaintiffs. Plaintiffs are also entitled to recover from Lottie the amount of any rent paid to her by Ming.
Order
1. Plaintiffs have the right to occupy, use and control the premises, unless and until Plaintiffs’ family internally enters a new agreement for this purpose, so long as the assignment of the underlying Fanene family communal land assignment to Plaintiffs’ family remains in effect.
2. The lease to Ming is void ab initio. Plaintiffs may either request the Court to order Ming’s eviction from the premises, if necessary, or reach an agreement with Ming to continue her lease of the premises. The Clerk of the Court shall disburse the rental funds paid by Ming into the Court Registry on or after February 25, 2005, to Plaintiffs. Lottie shall pay Plaintiffs the amount of any rent paid by Ming to Lottie.
3. Until further order of the Court, Lottie and Ming, jointly and severally, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with her are permanently enjoined from occupying, using and controlling the premises. This injunction against Ming shall immediately terminate in the event Plaintiffs and Ming renew Ming’s lease of the premises.
It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487018/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 17, 2022
Plaintiff-Appellee,
v No. 359167
Eaton Circuit Court
MAHER MOHAMMAD GHUNAIM, LC No. 21-020223-FC
Defendant-Appellant.
Before: K. F. KELLY, P.J., and LETICA and RICK, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the circuit court’s order denying his motion to
suppress statements he made to police while in the hospital. Finding no errors warranting reversal,
we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant, Maher Mohammad Ghunaim, is a Jordanian citizen whose primary language is
Arabic, with English as a second language. On October 15, 2020, defendant’s brother took him to
McLaren Hospital in Lansing, Michigan, after an alleged suicide attempt. Defendant was
subsequently transferred to Samaritan Center in Detroit two days later, and then to Ascension St.
John Hospital in Detroit on October 21, 2020, after he complained of chest pains.
On October 22, 2020, defendant was interviewed by Eaton County Sheriff’s Department
Detective Heather Stefan and Child Protective Services worker LeeAnn Kinsey inside his hospital
room at Ascension St. John Hospital. Det. Stefan was investigating an August 18, 2020 complaint
of sexual abuse from defendant’s stepdaughter, who identified defendant as the perpetrator. The
interview between Det. Stefan and defendant was video recorded.
1
People v Ghunaim, unpublished order of the Court of Appeals, entered May 9, 2022 (Docket No.
359167).
-1-
During the majority of the interview, Det. Stefan sat next to defendant, who was in his
hospital bed. Although defendant had an intravenous tube in his arm, he was upright and alert.
During the interview, defendant made numerous incriminating statements to Det. Stefan admitting
his involvement in the sexual abuse. The video recording also depicts instances in which Det.
Stefan closed the door to defendant’s hospital room, asked an individual who was in the room
when she and Kinsey arrived if the individual needed to stay, and asked another individual who
later came into defendant’s hospital room if that individual could return later.
Defendant was subsequently charged with one count of first-degree criminal sexual
conduct, MCL 750.520b(1)(a), (2)(b) (sexual penetration by defendant over 17 against victim
under 13), and one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a), (2)(b)
(sexual contact by defendant over 17 against victim under 13). On the basis of defendant’s motion,
the district court suppressed the statements made during the hospital interview but bound defendant
over to circuit court for trial. In the circuit court, defendant renewed his motion to suppress, which
the court denied, concluding that defendant was not in custody during the interview and that his
statements were made voluntarily. This appeal followed.
II. STANDARDS OF REVIEW
“Whether a person is in custody for purposes of the Miranda warnings requirement is a
mixed question of law and fact that must be answered independently after a review of the record
de novo.” People v Cortez, 299 Mich App 679, 691; 832 NW2d 1 (2013). And “[w]hen reviewing
a trial court’s determination of the voluntariness of inculpatory statements, this Court must
examine the entire record and make an independent determination, but will not disturb the trial
court’s factual findings absent clear error.” People v Shipley, 256 Mich App 367, 372-373; 662
NW2d 856 (2003). “A finding is clearly erroneous if, after reviewing the entire record, an
appellate court is left with a definite and firm conviction that a mistake has been made.” People v
Barritt, 325 Mich App 556, 561; 926 NW2d 811 (2018) (quotation marks and citation omitted).
Lastly, “[w]e review de novo a trial court’s ultimate decision on a motion to suppress.” People v
Mazzie, 326 Mich App 279, 289; 926 NW2d 359 (2018) (quotation marks and citation omitted).
III. ANALYSIS
On appeal, defendant argues the circuit court erred when it determined that he was not in
custody at the time of the questioning and when it found his statements were voluntary. We will
address each in turn.
A. CUSTODIAL INTERROGATION
First, defendant argues that the circuit court erred when it denied his motion to suppress
because he was not advised of his Miranda2 rights before he made the incriminating statements to
Det. Stefan. Defendant claims the statements were made in the context of a custodial interrogation,
thus triggering the Miranda requirement. We disagree.
2
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
-2-
The United States and Michigan Constitutions protect a criminal defendant from the right
against self-incrimination. US Const, Am V; Const 1963, art 1, § 17. Under Miranda v Arizona,
384 US 436, 444-445; 86 S Ct 1602; 16 L Ed2d 694 (1966), “the police must warn a defendant of
his or her constitutional rights if the defendant is taken into custody for interrogation.” Barritt,
325 Mich App at 562.
Interrogation “refers to express questioning or its functional equivalent.” People v
Anderson, 209 Mich App 527, 532; 531 NW2d 780 (1995). “In other words, interrogation refers
to express questioning and to any words or actions on the part of the police that the police should
know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 532-533.
Although the circuit court did not explicitly address the issue, there is little doubt that the
questioning that took place was an “interrogation” for purposes of the Miranda requirement. Det.
Stefan explicitly asked defendant to tell her what happened with the victim as it related to the
sexual assault. Thus, the core issue on appeal with respect to Miranda is whether defendant was
in custody at the time he was interrogated.
“Custody must be determined on the basis of how a reasonable person in the suspect’s
situation would perceive his or her circumstances and whether the reasonable person would believe
that he or she was free to leave.” People v Roberts, 292 Mich App 492, 504; 808 NW2d 290
(2011). As relevant here, if the individual cannot leave for reasons unrelated to police conduct,
“the appropriate inquiry is whether a reasonable person would feel free to decline the officers’
requests or otherwise terminate the encounter.” Florida v Bostick, 501 US 429, 436; 111 S Ct
2382; 115 L Ed2d 389 (1991). Relevant factors in this analysis include: “(1) the location of the
questioning, (2) the duration of the questioning, (3) statements made during the interview, (4) the
presence or absence of physical restraints during the questioning, and (5) the release of the
interviewee at the end of the questioning.” Barritt, 325 Mich App at 562-563 (citations omitted).
“Whether an individual is effectively ‘in custody’ is based on the totality of the circumstances.”
Roberts, 292 Mich App at 505.
That defendant was interviewed in his hospital room weighs against finding that he was in
custody, because a hospital room does not present the same coercive atmosphere as a police station
or other environment where control by the police is evident. See People v Kulpinski, 243 Mich
App 8, 25; 620 NW2d 537 (2000) (“[T]he fact that the defendant was in the hospital does not
automatically imply that the environment was coercive.”). The interview with Det. Stefan lasted
approximately 40 minutes, which is not oppressive or otherwise indicative of a custodial
atmosphere. See United States v Eymann, 962 F3d 273, 285 (Ca 7, 2020) (stating that the
defendants were not in custody, in part, because the “duration of the questioning was . . . brief.”).3
In addition, there was no evidence that Det. Stefan used defendant’s condition or hospitalization
as a tool to obtain his statements. See Wolfrath v Lavellee, 576 F2d 965, 973 (CA 2, 1978)
(“[B]ecause there was no element of improper police tactics, because the evidence was
uncontradicted that Wolfrath’s condition, though perhaps weakened by his ordeal, was nonetheless
strong and that he was alert and responsive, we hold that Wolfrath failed to substantiate his claim
3
While opinions from lower federal courts are not binding, we may consider them for their
persuasive authority. People v Fomby, 300 Mich App 46, 50 n 1; 831 NW2d 887 (2013).
-3-
that the admission into evidence of his St. Vincent’s [Hospital] confession denied him due process
of law.”).
It is true that defendant’s freedom of movement was limited by the medical treatment he
was receiving, particularly the intravenous fluids. However, defendant was not formally restrained
by law enforcement. See Stansbury v California, 511 US 318, 322; 114 S Ct 1526; 128 L Ed 2d
293 (1994) (stating that a person is in custody when formally arrested or had his or her freedom
of movement restrained to the degree associated with a formal arrest). And while the door to the
hallway was closed, it was not locked. Indeed, an individual entered the room during the interview,
demonstrating that defendant was not restrained to the confines of the hospital room. Moreover,
closing the door could be viewed as a considerate gesture given the nature of the subject matter
discussed. And the fact that Det. Stefan was armed during the interview does not change our
conclusion. At no point during the interview did Det. Stefan touch her service weapon, which was
holstered on her right side and slightly behind her, obscured from defendant’s view, who was in
front of her and to her left.
Defendant claims that as a Jordanian, he had little experience with law enforcement in the
United States, which put him in a disadvantaged position during the encounter. However, we fail
to see how this fact has any relevance to whether defendant was in custody when he was
questioned. The appropriate question is whether “a reasonable person would feel free to decline
the officers’ requests or otherwise terminate the encounter.” Bostick, 501 US at 436. Det. Stefan
asked defendant if he was willing to speak with her, implying that defendant could refuse. Under
these circumstances, a reasonable person would have felt free to decline Det. Stefan’s request to
talk.
Under the totality of the circumstances, we conclude the circuit court did not err when it
determined that defendant was not in custody during the interview.4 We therefore address
defendant’s second argument—that his statement to Det. Stefan was not voluntarily made.
B. VOLUNTARINESS OF STATEMENT
“[T]he use of an involuntary statement in a criminal trial, either for impeachment purposes
or in the prosecution’s case in chief, violates due process.” People v Cipriano, 431 Mich 315, 331;
429 NW2d 781 (1988).5 “Whether a statement was voluntary is determined by examining the
conduct of the police.” Shipley, 256 Mich App at 373. In Cipriano, the Michigan Supreme Court
articulated certain factors to enable courts to assess the voluntariness of a defendant’s statement to
police:
4
Because we conclude that defendant was not in custody when he was questioned by Det. Stefan,
we need not address defendant’s arguments whether the “public safety” and “routine booking
question” exceptions to the Miranda requirement apply.
5
Both the United States Constitution and the Michigan Constitution guarantee that criminal
defendant receive due process of law. US Const, Am XIV; Const 1963, art 1, § 16.
-4-
In determining whether a statement is voluntary, the trial court should
consider, among other things, the following factors: the age of the accused; his lack
of education or his intelligence level; the extent of his previous experience with the
police; the repeated and prolonged nature of the questioning; the length of the
detention of the accused before he gave the statement in question; the lack of any
advice to the accused of his constitutional rights; whether there was an unnecessary
delay in bringing him before a magistrate before he gave the confession; whether
the accused was injured, intoxicated or drugged, or in ill health when he gave the
statement; whether the accused was deprived of food, sleep, or medical attention;
whether the accused was physically abused; and whether the suspect was threatened
with abuse.
The absence or presence of any one of these factors is not necessarily
conclusive on the issue of voluntariness. The ultimate test of admissibility is
whether the totality of the circumstances surrounding the making of the confession
indicates that it was freely and voluntarily made. [Cipriano, 431 Mich at 334
(citations omitted).]
For a confession to be considered involuntary, “there must be a substantial element of
coercive police conduct” because “coercive police activity is a necessary predicate to the finding
that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth
Amendment.” People v Wells, 238 Mich App 383, 388; 605 NW2d 374 (1999) (quotation marks
and citations omitted). Unless the conduct of the police is causally related to the confession, “there
is simply no basis for concluding that any state actor has deprived a criminal defendant of due
process of law.” Colorado v Connelly, 479 US 157, 164; 107 S Ct 515; 93 L Ed 2d 473 (1986).
Defendant has failed to show the necessary predicate that defendant’s statements were the
product of police coercion. Although it is not entirely clear from defendant’s arguments to the
Court, defendant appears to assert that Det. Stefan employed coercive tactics by not informing
defendant that she was going to interview him and that she had a preformed opinion before the
interview that defendant was guilty of the suspected crimes. We fail, however, to understand how
these facts constitute police coercion. Law enforcement routinely questions suspects without
warning, quite obviously when they have cause to believe the suspect has committed a crime. We
have never held, and we reject the notion, that these facts constitute police coercion. Defendant
also raises the issue of the fact that the interview took place in defendant’s hospital room. Again,
we fail to see how this constitutes coercion. It was defendant’s choice to be in the hospital, not
Det. Stefan’s.
There is no evidence that defendant had been deprived of food, sleep, or medical attention.
Indeed, he was under the care and supervision of the medical staff at Ascension St. John Hospital
at the time. There is also no indication that defendant was in any physical pain or that his physical
condition was grave. Defendant, who was not restrained at any point before or during the
questioning, was upright in his hospital bed and appeared alert during the length of the interview.
Moreover, the length of the interview was not itself coercive. The 40-minute questioning was
brief, and there is no indication that defendant was physically drained by the interview.
-5-
With respect to defendant’s age and mental acuity, the video recording does not
demonstrate that defendant was in way compromised or confused. While most of defendant’s
statements about the sexual assault were short and lacking in detail, this does not suggest that
defendant is uneducated or unintelligent. Rather, defendant’s answers were most likely the product
of his reluctance to talk about the details of what he did. And while defendant’s first language is
not English, he spoke fluently and clearly.
It is alleged that at some point before being admitted to Ascension St. John Hospital,
defendant attempted suicide. However, there is no clear indication in the recording that any
thoughts of suicide impacted defendant’s ability to make a “free and unconstrained choice” to
describe what he did to the victim. See Connelly, 479 US at 165 (stating that a court considering
the voluntariness of a confession are not required to “divine a defendant’s motivation for speaking
or acting as he did even though there be no claim that governmental conduct coerced his decision”).
True, defendant was quite emotional during the interview. Yet, there is no evidence that any
suicidal thoughts by themselves, or in combination with other factors, overcame defendant’s
ability to decide for himself whether he would admit to what he had done. Nor is there any
indication that Det. Stefan used defendant’s suicidal ideation as a tool to draw from him a
confession.
In sum, the totality of the circumstances surrounding defendant’s confession supports the
conclusion that it was freely and voluntarily made. Thus, the circuit court did not err when it
denied defendant’s motion to suppress.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Anica Letica
-6- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487121/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 08:06 AM CST
- 549 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
In re Estate of Walter R. Koetter, deceased.
Richard A. Koetter, individually and as the nominated
Personal Representative of the Estate of Walter R.
Koetter, deceased, appellant and cross-appellee,
v. Debra J. Meyers, appellee and cross-appellant,
and Diana K. Wilkinson et al., appellees.
___ N.W.2d ___
Filed October 7, 2022. No. S-21-623.
1. Directed Verdict: Evidence: Appeal and Error. A directed verdict is
proper only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
2. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
3. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
4. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence.
5. Verdicts: Appeal and Error. When reviewing a jury verdict, an appel-
late court considers the evidence and resolves evidentiary conflicts in
favor of the successful party.
6. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is competent
- 550 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
evidence presented to the jury upon which it could find for the success-
ful party.
7. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
8. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
9. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques-
tion of law, upon which an appellate court reaches a conclusion indepen-
dent of the trial court.
10. Wills: Undue Influence. Undue influence sufficient to defeat a will
is manipulation that destroys the testator’s free agency and substitutes
another’s purpose for the testator’s.
11. Wills: Undue Influence: Proof. To show undue influence, a will
contestant must prove the following elements by a preponderance of
the evidence: (1) The testator was subject to, or susceptible to, undue
influence; (2) there was an opportunity to exercise such influence; (3)
there was a disposition to exercise such influence; and (4) the result was
clearly the effect of such influence.
12. Undue Influence: Proof. Because undue influence is often difficult to
prove with direct evidence, it may be reasonably inferred from the facts
and circumstances surrounding the actor: his or her life, character, and
mental condition.
13. Undue Influence. Mere suspicion, surmise, or conjecture does not war-
rant a finding of undue influence; instead, there must be a solid founda-
tion of established facts on which to rest the inference of its existence.
14. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputation, and fair-
ness of the judicial process. Generally, an appellate court will find plain
error only when a miscarriage of justice would otherwise occur.
15. Motions for New Trial: Appeal and Error. A motion for new trial is to
be granted only when error prejudicial to the rights of the unsuccessful
party has occurred.
16. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
- 551 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
Appeal from the District Court for Red Willow County:
David W. Urbom, Judge. Affirmed in part, and in part vacated
and dismissed.
Michael L. Johnson and Jared J. Krejci, of Smith, Johnson,
Allen, Connick & Hansen, for appellant.
Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
In this appeal from a will contest proceeding in district court,
the proponent of the will contests the jury’s finding that the
will was the product of undue influence and therefore invalid.
He also claims a new trial is warranted because a purported
text message not received in evidence was read on the record
and referenced during closing arguments. We find no merit to
these arguments. But on cross-appeal, in which the opponent of
the will challenges an award of attorney fees and expenses that
the district court purported to award pursuant to Neb. Rev. Stat.
§§ 30-2481 and 30-2482 (Reissue 2016), we conclude that the
district court lacked jurisdiction over that matter. Accordingly,
we vacate the portion of the order that purported to award
attorney fees and expenses and dismiss the cross-appeal.
I. BACKGROUND
1. Probate Proceedings and Will Contest
Initiated in County Court
Walter R. Koetter died in 2017 at the age of 88. Thereafter,
one of his sons, Richard A. Koetter (Dickie), filed a petition in
county court for formal probate of a will executed by Walter
in 2014 (2014 will). Dickie was the nominated personal rep-
resentative of the 2014 will. Debra J. Meyers, one of Walter’s
daughters, objected to the probate of the 2014 will, alleging, in
- 552 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
part, that it was the result of undue influence. The will contest
was transferred to district court pursuant to Neb. Rev. Stat.
§ 30-2429.01 (Cum. Supp. 2020). The only issue at the ensuing
jury trial was whether the 2014 will was invalid as a result of
undue influence.
2. Will Contest Proceedings
in District Court
There was evidence at trial that supported both parties’
positions as to undue influence; but considering the governing
standards of review, we recount the evidence relevant to undue
influence in the light most favorable to Debra.
(a) Koetter Family and Farm and
Ranch Operation Overview
The jury heard evidence that Walter, a farmer and rancher in
McCook, Nebraska, had five surviving children at the time of
his death in 2017: Debra, Dickie, Diana K. Wilkinson (Diana),
Donna S. Friehe (Donna), and Douglas S. Koetter. Another son,
Darin Koetter, died in 2003. Walter’s wife, Marilyn Koetter,
also died several years before Walter, in 2011.
Unlike most of Walter and Marilyn’s other children, Dickie
was uninvolved with the family and with the farm for decades.
During that time, he had a series of jobs outside McCook. In
2006, Dickie moved back to the area from Lincoln, Nebraska.
Walter asked Dickie to return, in part to help with the farm
and ranch operation. At first, Dickie lived in town, owned
no real estate, and was not involved in Walter’s operation. In
approximately 2008, Dickie moved from town to live rent free
on an acreage owned by Walter, near the home where Walter
lived. Around that time, Dickie began working in Walter’s
operation, along with Douglas, who had been working there
for about 40 years. Douglas left the operation after less than 2
years of Dickie’s return to the area. Douglas testified that the
operation could not comfortably provide for everyone involved
and that Walter expressed he did not need Douglas on the
farm anymore.
- 553 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
In 2012, Walter transferred a cattle herd to Dickie as com-
pensation, and in 2013 and 2014, Walter paid Dickie wages on
a somewhat irregular basis.
(b) Walter’s Wills and Land Transfers
Walter executed several wills between 2003 and 2012. In
general, those wills divided the estate equally among his six
children, with the children of Walter’s deceased son, Darin,
receiving his share.
When Walter was 84 years old, he executed the 2014 will on
April 25 of that year. The 2014 will devised Walter’s property
as follows: (1) household goods, valued at $5,000, equally to
the five living children; (2) farm machinery and farm equip-
ment, valued at $179,444.71, to Dickie; (3) money in check-
ing or savings accounts, valued at $168,267.66, 70 percent to
Dickie and 30 percent to Douglas; (4) life insurance payable to
the estate, valued at $84,323.50, to the three daughters; and (5)
the remainder of the estate, valued at $5,580.96, 70 percent to
Dickie and 30 percent to Douglas.
On the same day that the 2014 will was executed, Walter
executed deeds conveying interests in real property to Dickie
and Douglas, while reserving a life estate in his own name.
Dickie’s interest was valued at $1,195,750, and Douglas’ inter-
est was valued at $502,053. Debra testified that she was a
party to a pending action to set aside the deeds executed April
25, 2014.
(c) Testimony of Walter’s Attorneys
Jon Schroeder had handled Walter’s estate planning since
2003 and prepared Walter’s 2012 will. He testified that he met
with Walter 10 to 20 times between April 2011 and October
2012 to close Marilyn’s estate and revise Walter’s estate plan.
Schroeder denied discussing transferring a significant por-
tion of Walter’s assets to Dickie, but on Walter’s request, he
discussed other options for compensating Dickie, who began
attending Walter’s meetings with Schroeder in 2011. This was
the first time any of Walter’s children had attended his estate
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planning meetings with Schroeder. Schroeder perceived Dickie
to be “tense” and “aggressive” regarding his compensation
beginning in September 2012, asking “‘How do I get compen-
sated for what I’m doing for dad[?]’” In a meeting sometime
after October 30, Dickie asked several times, “‘What is in
it for me? How am I going to be compensated?’” Schroeder
asked Dickie to leave the room so that he could speak to Walter
alone. Schroeder testified that Dickie did not seem happy with
the request, but left. After he did, Schroeder told Walter, “‘I am
not feeling comfortable with this conversation with Dickie,’”
and Walter replied, “‘I’m not either.’” After that meeting,
Schroeder never saw or spoke to Walter again.
In executing the 2014 will and deeds, Walter was repre-
sented by attorney Justin Hermann. Hermann first met with
Walter to discuss changes to Walter’s estate plan when Walter
came to his office alone in September 2013, having been trans-
ported there by someone else. Hermann testified that prior to
the estate planning work, he had Walter provide him with two
letters from physicians, both finding that Walter had sufficient
testamentary capacity.
Hermann testified that he met with Walter on April 16, 2014,
in his office. At that time, Walter signed updated powers of
attorney and a living will. The will and deeds were prepared,
but because some additional changes were needed, they sched-
uled a followup appointment for their execution. Hermann
testified that he learned from Dickie on April 21 that Walter
had been hospitalized due to chest pains. He was discharged,
but was not allowed to travel, so Hermann arranged to execute
the documents in McCook, where Walter lived, rather than at
Hermann’s office in Kearney, Nebraska. On the day Walter
executed the 2014 will, Walter signed an acknowledgment
that Dickie and Dickie’s wife drove him to the office and
participated in a meeting earlier in the day to discuss a farm
lease involving Dickie that was part of the estate plan, but that
they were not present when Walter and Hermann reviewed the
terms of the will. Hermann testified that he had not observed
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Walter outside his office and did not see everything happening
in Walter’s life.
Hermann testified that he had represented Dickie in another
matter the month before he met with Walter. Hermann testified
he also met with Dickie and his wife to discuss the farm lease,
but he never met with Dickie about the 2014 will. However,
his billing statements reflect that in 2013 and 2014 he had sev-
eral 5-to-10-minute telephone conversations with Dickie’s wife
regarding Walter’s “estate planning.”
(d) Testimony by Physicians
The two physicians who examined Walter in 2013 testified.
Both opined that Walter was able to make decisions for himself
at that time. One of those physicians admitted that he would
not be aware if Walter was being subjected to undue influence
by a family member.
(e) Testimony by Walter’s Family and Neighbors
Debra testified that after Marilyn moved to a nursing home
in 2009, other family members were “taking care” of Walter,
who at that time continued to work in the field. She testified, “I
would do, you know, whatever he needed to do. I was helping
him.” This included taking “sandwiches out to him,” buying
his groceries, taking him to medical appointments, and coordi-
nating his Veterans Affairs benefits.
Members of Walter’s family testified that before Marilyn’s
death in April 2011, Walter frequently gathered with his chil-
dren and grandchildren multiple times a week for meals, farm-
work, and celebrations, but Dickie rarely participated in any
family gatherings, despite being invited. After Marilyn’s death,
the family as a whole no longer celebrated special events with
Walter; he celebrated only with Dickie. Debra recalled that
after Marilyn’s death, she tried to take Thanksgiving dinner
to Walter, but he declined, saying that “Dick[ie] wouldn’t like
it.” Debra testified that from September 2012 until October
2013, whenever she was at Walter’s house, Dickie and his wife
were present.
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Several family members testified that when they visited
Walter alone, he seemed to be checking to see if Dickie was
approaching, and Diana described Walter’s behavior on these
occasions as “agitated” and “fidgety.” Another relative testified
that if Dickie did arrive, Walter became less talkative. Some
viewed Dickie as curtailing Walter’s contact with the rest of
the family.
After 2011, Dickie and his wife, whom Dickie married in
2013, took over buying Walter’s groceries and taking him to
medical appointments. Dickie did not communicate informa-
tion about Walter’s medical condition to the rest of the fam-
ily as Debra had. Dickie also became a signatory on Walter’s
checking account and Walter’s power of attorney, whereas
Debra previously had been Walter’s power of attorney. Dickie
testified that he would prepare Walter’s lunch daily and help
Walter with bills by addressing and stamping envelopes.
Several family members testified that they did not believe
Walter had the ability to make his own decisions after October
2012 and that they believed Dickie was influencing Walter
and overpowering his decisions. Two relatives familiar with
the operation testified that after Dickie came back to town,
Walter, who previously had an opinion on everything and made
decisions on his own, could not make a decision without con-
sulting with Dickie. One of the relatives recounted that once
when he was outdoors, a “couple hundred yards away” from
Dickie and Walter, he heard Dickie “screaming” at Walter.
On another occasion, the same relative saw Walter outside in
102-degree heat, “covered in sweat,” and advised Walter to go
inside to avoid heatstroke. Walter replied, “‘Well, I was told
to stay . . . here. [Dickie’s] going to yell at me,’” but Walter
was subsequently convinced to return to the house. According
to Douglas, Walter had phased out of the operation as he aged,
and “eventually . . . you could say he was out.” When Dickie
and his wife were out of town in 2013, a neighbor helped
Walter with farm chores at Dickie’s residence.
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Several of Walter’s children said that Walter had changed
after Dickie came back, in that he had lost the “spark in his
eye” and his typical “easygoing,” “calm,” “happy,” and “sharp”
demeanor; watched television rather than being active on the
farm; and no longer expressed an interest in family members
other than Dickie and Dickie’s wife. In describing Walter after
Dickie joined the operation, they used descriptions such as
“shaky,” “deathly afraid” of Dickie, “uncomfortable” around
the rest of the family, “a whipped puppy,” “beaten down,”
“stressed,” “closed up,” “timid,” “nervous,” “cowered,” “just
giving up,” “going downhill,” and “getting more intimidated
all the time.”
Jeremy Meyers, one of Walter’s grandsons, testified that
Walter was “getting manipulated” and that Dickie was “start-
ing to put some pressure” on Walter in late 2012 or early 2013.
Jeremy recalled that in July 2013, Walter wrongly accused
him of wanting to take over the operation and Walter said he
had heard it from Dickie. Jeremy testified that in September
2013, he received a text message from Walter’s phone that
was intended, at least in part, for Dickie’s wife. Shortly after,
Jeremy received a call from Walter, who addressed him as
“‘Jeremy’” rather than “‘Jerm’” as he always had. During
the call, Jeremy heard two voices, and in his opinion, Dickie
was coaching Walter to instruct Jeremy to delete the text mes-
sage. Jeremy detected shakiness in Walter’s voice and was
concerned that Walter was under “severe duress.” Later, at
about 7 p.m., Jeremy went to check on Walter, who he found
sitting in the dark, “shaking uncontrollably” and “virtually
sobbing.” Jeremy asked Walter, “‘Did he do something to
you?’” but Walter “wouldn’t tell” Jeremy. Jeremy testified that
he was concerned enough about the incident to report it to law
enforcement.
Walter communicated to several family members and a
neighbor that he intended to change his previous estate plan
to leave the majority of his assets to Dickie and Douglas.
Family members were also aware that Walter had sought out
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a new attorney. Diana recognized that Walter wanted to leave
a legacy in regard to his farm but believed Dickie was mak-
ing the decisions. Debra testified that in October 2013, Dickie
informed her, in Walter’s presence, that Darin’s children were
“being taken completely out of the will.” Debra testified that
she believed they should be included and argued with Dickie
about the matter, and Dickie’s wife also stated her opinion, but
Walter did not say a word. Another daughter, Donna, testified
that Walter told her about his new estate plans in 2016. To
Donna, Walter seemed “anxious” and aware that the informa-
tion would hurt her. When Donna told Walter that she respected
his decision but did not agree, Walter responded, “‘Dick[ie]
says this is how it should be.’”
Dickie denied ever telling Walter how to make his will or
to transfer land, but he testified that he told Walter that if he
divided his estate equally among his children, it would likely
be sold to someone outside the family after his death because
the children could not “get along.”
(f) Undue Influence Expert; Testimony
and Argument Concerning
Text Message
Dr. Lindsey Wylie, an expert called by Dickie, was the first
witness to testify on the second day of the 4-day trial. She
testified to her opinions that Walter’s level of cognition was
high on the date he executed the 2014 will and that he was not
susceptible to undue influence. She based her opinion on depo-
sitions and exhibits supplied to her by Dickie’s counsel.
On cross-examination, Debra’s counsel elicited Wylie’s tes-
timony that if the information supplied to her was faulty or
incomplete, her opinion would be faulty or incomplete. Wylie
confirmed that one of the depositions supplied by Dickie’s
counsel was that of Dickie’s wife. The following colloquy then
took place:
Q. So if [Dickie’s wife] has said—made opposite
statements or contradictory statements, would that be
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something you’d . . . want to take into account when
you’re relying on her deposition?
A. Contradictory statements at what point?
Q. Subsequent to her deposition.
A. I mean, . . . I guess, it would be something I would
. . . want to have known about then when I rendered
my report.
Q. But you were not aware of that?
A. I don’t know what the contradictory statements are,
so I can’t speak to it.
Q. Well, if [Dickie’s wife] indicated in a text to family,
“Dick[ie] was behind all the will changing, and grandpa
had—and had grandpa and I scared to death if it wasn’t
done, he would do something”, would that be a statement
you would be considering—want [to] consider when . . .
rendering an opinion?
A. Yep.
[Dickie’s counsel]: Your Honor, I would object. That
matter’s not in evidence. I would move to strike.
[Debra’s counsel]: Your Honor, she asked what it said.
THE COURT: Yeah, the objection’s overruled. I think
she can answer whether or not that would be something
she would have considered.
BY [Debra’s counsel]:
Q. Would something—that statement want [sic] you to
further vet [Dickie’s wife]?
A. Of course, I would want to have all the information
at the time I rendered my report.
Later during the trial, Dickie’s counsel requested a copy of the
text message. Debra’s counsel acknowledged that it would not
have been provided in response to discovery, but said Debra
planned to use it “when [Dickie’s wife] shows up.” The district
court overruled the “objection,” but noted that Dickie’s counsel
would not be prohibited from making a similar request later.
Dickie’s wife did not testify at trial, and Dickie’s counsel did
not renew his request for a copy of the text message.
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The text message came up again in closing arguments.
Debra’s counsel stated that Wylie’s opinion was based on
depositions supplied by opposing counsel, “not the full infor-
mation.” He next mentioned the text message, and Dickie’s
counsel objected:
[Debra’s counsel]: . . . I think she clarified that, saying
it’s only as good as what she’s been given. And when I
asked her about [Dickie’s wife], and I question, what if
[Dickie’s wife] had sent a text message? She says, what’s
the text message say?
[Dickie’s counsel]: Objection, Your Honor.
THE COURT: Objection is sustained. The text message
isn’t in evidence.
[Debra’s counsel]: The question and answer.
THE COURT: Yes, but not anything about the text
message.
[Debra’s counsel]: No, I quoted the text message.
THE COURT: Okay. You’re fine.
[Dickie’s counsel]: I thought that question was stricken.
[Debra’s counsel]: No, it’s still in the evidence.
THE COURT: Yeah, it’s in. Yeah, the objection is
sustained.
Just as long as you don’t bring up anything about any
text message.
[Debra’s counsel]: Okay.
THE COURT: As far as the content of the text
message.
[Debra’s counsel]: But it’s already in evidence. When
I asked the question, I specifically read it. There was no
objection, and it was answered.
[Dickie’s counsel]: There was an objection.
Your Honor, can we approach?
[Debra’s counsel]: Okay. Your Honor, that’s fine.
THE COURT: You’re okay? All right.
[Debra’s counsel]: All right. Okay. So she said if
she didn’t have all the facts with [Dickie’s wife], she
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basically said, “Yeah, I’d have to reconsider that”, is what
her testimony was.
So, basically, she acknowledged she doesn’t have all
the facts and yet —
[Dickie’s counsel]: Objection, Your Honor. Can we
approach?
(An off-record sidebar was held.)
THE COURT: Go ahead, [Debra’s counsel].
[Debra’s counsel]: Dr. Wylie indicated several of the
witnesses weren’t fully vetted for her, and that she also
indicated that her ability to give an opinion relied solely
on what was supplied to her, solely supplied on one
side . . . .
So when you look at — the expert witness instruction
indicates — you take an expert — she’s no different than
you when coming to this final conclusion, so don’t let
her opinion — or first — apparently, first expert opinion,
which is not fully vetted, sway you in any way. The cred-
ibility you give her is entirely up to you.
The jury was instructed that statements, arguments, and
objections by attorneys were not evidence for its consideration,
nor were questions and answers for which objections had
been sustained.
(g) Jury Verdict and Subsequent
Motions and Orders
The jury returned a verdict finding that the 2014 will was
not valid. The district court accepted the verdict.
Dickie then filed a motion to alter or amend, which asked
the district court to rule on a motion for attorney fees and
expenses pursuant to § 30-2481 that he had earlier filed in the
district court. On the same day, Dickie filed a motion for judg-
ment notwithstanding the verdict. In the alternative, Dickie
moved for a new trial.
In the same order, the district court overruled the motions
for judgment notwithstanding the verdict and for a new trial,
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and sustained the motion to alter or amend regarding attorney
fees and expenses in the amount of $196,914.47. In ruling on
attorney fees and expenses, the district court cited §§ 30-2481
and 30-2482.
Dickie filed an appeal, and Debra cross-appealed.
II. ASSIGNMENTS OF ERROR
On appeal, Dickie assigns several grounds for reversal that,
consolidated and restated, fall into two general categories.
The first category relates to his position that Debra did not
meet her burden of proving the 2014 will was invalid: He
claims that the evidence was insufficient to sustain the jury’s
verdict and that the district court erred in denying his motions
for directed verdict, judgment notwithstanding the verdict,
and new trial. The second category concerns the text mes-
sage. Dickie asserts (1) that the district court erred in allow-
ing Debra’s counsel to ask his expert about the purported text
message, denying his motion to strike his expert’s response,
and not granting his motion for a new trial based on that
exchange, and (2) that misconduct by Debra’s attorney during
closing arguments misled the jury regarding the text message
to such a degree that it resulted in an unjust verdict and con-
stituted plain error.
On cross-appeal, Debra assigns that the district court erred
in awarding attorney fees and expenses to Dickie and in fixing
the amount of those fees.
III. STANDARD OF REVIEW
[1] A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. In reviewing that determination, an appellate court gives
the nonmoving party the benefit of every controverted fact and
all reasonable inferences from the evidence. Arens v. NEBCO,
Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
[2-4] Review of a ruling on a motion for judgment not-
withstanding the verdict is de novo on the record. Valley Boys
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v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856
(2020). To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
and may do so only when the facts are such that reasonable
minds can draw but one conclusion. Id. On a motion for judg-
ment notwithstanding the verdict, the moving party is deemed
to have admitted as true all the relevant evidence admitted that
is favorable to the party against whom the motion is directed,
and, further, the party against whom the motion is directed is
entitled to the benefit of all proper inferences deducible from
the relevant evidence. Id.
[5,6] When reviewing a jury verdict, an appellate court
considers the evidence and resolves evidentiary conflicts in
favor of the successful party. Pantano v. American Blue
Ribbon Holdings, 303 Neb. 156, 927 N.W.2d 357 (2019). A
jury verdict may not be set aside unless clearly wrong, and
it is sufficient if there is competent evidence presented to
the jury upon which it could find for the successful party. Id.
See, also, In re Estate of Disney, 250 Neb. 703, 550 N.W.2d
919 (1996).
An appellate court reviews the denial of a motion for new
trial for an abuse of discretion. See Schmid v. Simmons, 311
Neb. 48, 970 N.W.2d 735 (2022).
[7,8] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules;
judicial discretion is involved only when the rules make discre-
tion a factor in determining admissibility. Brown v. Morello,
308 Neb. 968, 957 N.W.2d 884 (2021). In a civil case, the
admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the complain-
ing party. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d
37 (2015).
[9] The question of jurisdiction is a question of law, upon
which an appellate court reaches a conclusion independent
of the trial court. State ex rel. Peterson v. Creative Comm.
Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019).
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IV. ANALYSIS
1. Undue Influence
We begin with the issue at the heart of these proceedings,
undue influence. At trial, Dickie made several attempts to
preempt or overturn the jury’s verdict that found the 2014 will
invalid. He made unsuccessful motions for a directed verdict at
the close of Debra’s case and at the close of all the evidence,
for judgment notwithstanding the verdict, and, in the alterna-
tive, for new trial, all on the grounds that the evidence did not
prove undue influence. On appeal, he challenges the district
court’s rulings on those motions and further assigns that the
evidence was insufficient to sustain the jury’s verdict. We note
at the outset that Dickie cannot now challenge the ruling on the
motion for directed verdict he made at the close of Debra’s evi-
dence because he proceeded to present his own evidence after
that motion was overruled. See Anderson v. Babbe, 304 Neb.
186, 933 N.W.2d 813 (2019). As for the remaining motions, we
address Dickie’s arguments in a general manner by considering
whether there was competent evidence that allowed the jury
to reasonably find that Walter executed the 2014 will as the
result of undue influence. Although some evidence supported
Dickie’s position, other evidence supported Debra’s position,
and under the applicable standards of review, we conclude
that the evidence was sufficient to sustain the jury’s verdict in
Debra’s favor.
[10,11] Undue influence sufficient to defeat a will is manip-
ulation that destroys the testator’s free agency and substitutes
another’s purpose for the testator’s. In re Estate of Clinger,
supra. To show undue influence, a will contestant must prove
the following elements by a preponderance of the evidence: (1)
The testator was subject to, or susceptible to, undue influence;
(2) there was an opportunity to exercise such influence; (3)
there was a disposition to exercise such influence; and (4) the
result was clearly the effect of such influence. See In re Estate
of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019). See, also,
Spinar v. Wall, 191 Neb. 395, 215 N.W.2d 98 (1974).
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[12,13] Because undue influence is often difficult to prove
with direct evidence, it may be reasonably inferred from the
facts and circumstances surrounding the actor: his or her life,
character, and mental condition. In re Estate of Barger, supra.
Mere suspicion, surmise, or conjecture does not warrant a find-
ing of undue influence; instead, there must be a solid founda-
tion of established facts on which to rest the inference of its
existence. Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d
569 (2017).
Dickie mainly challenges the jury’s verdict by arguing that
because the evidence did not show that Walter suffered from a
mental or physical impairment, it did not establish that he was
susceptible to undue influence. Dickie appears to take the posi-
tion that mental or physical impairment is a required element
of undue influence. Although we have said that suspicious
circumstances tending to show undue influence are indicated
when there is “an elderly testator in a weakened physical or
mental condition,” In re Estate of Barger, 303 Neb. at 835,
931 N.W.2d at 674, we have not held that mental or physical
impairment is essential to a finding of undue influence. And
although there was no evidence that Walter had a specifi-
cally diagnosed mental or physical impairment at the time he
executed the 2014 will, there was evidence that Walter, who
was 84 years old when he executed the 2014 will, exhibited
signs of decline. Whereas Walter previously had been “easy-
going,” “calm,” “happy,” and “sharp,” and had a “spark in
his eye,” there was testimony that after Dickie’s return, he
became “shaky,” “stressed,” “closed up,” “timid,” and “ner-
vous”; “cowered” like a “whipped puppy”; and seemed to be
“just giving up” and “going downhill.”
In addition, there are other factors that can demonstrate
susceptibility to undue influence. In assessing susceptibility,
“[t]he question is . . . whether [the testator’s] natural defenses
are lowered leaving [him or] her unable to resist the sugges-
tions of a stronger, more determined individual.” In re Estate
of Glass, 85 Wis. 2d 126, 140, 270 N.W.2d 386, 393 (1978).
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Factors showing susceptibility recognized by this court have
included a testator’s age, health, and dependence on the person
accused of undue influence for transportation, groceries, and
business affairs. See, In re Estate of Wagner, 246 Neb. 625,
522 N.W.2d 159 (1994); In re Estate of Bainbridge, 151 Neb.
142, 36 N.W.2d 625 (1949); In re Estate of Bowman, 143 Neb.
440, 9 N.W.2d 801 (1943).
Other jurisdictions have likewise cited similar factors,
including dependence and a tendency to be passive and easily
swayed. See, Moriarty v. Moriarty, 150 N.E.3d 616 (Ind. App.
2020) (basing finding of susceptibility on recent death of loved
one, anxiety and depression, medical conditions, isolation from
family and friends, and dependency on others); Matter of
Estate of Smith, 164 Idaho 457, 476, 432 P.3d 6, 25 (2018),
quoting King v. MacDonald, 90 Idaho 272, 410 P.2d 969
(1965) (finding testator susceptible to accused influencer’s spe-
cific influence and stating that “determining whether a testator
was susceptible to undue influence ‘requires a consideration of
many circumstances, including his state of affections or dislike
for particular persons, benefited or not benefited by the will; of
his inclinations to obey or to resist these persons; and, in gen-
eral, of his mental and emotional condition with reference to
its being affected by any of the persons concerned’”); Erickson
v. Olsen, 844 N.W.2d 585, 594 (N.D. 2014) (affirming dis-
trict court’s finding of undue influence where, in contrast to
case in which decedent was “‘his own boss’” and found not
susceptible, testator was “passive and easily influenced” and
dependent on care of others); Hernon v. Hernon, 74 Mass. App.
492, 498-99, 908 N.E.2d 777, 783 (2009) (testator’s suscepti-
bility to undue influence by brother shown by evidence that
although the two had strained and distant relationship, testator
had no choice but to have brother move into his home to care
for him; that he was dependent on brother who drove him to
appointments, including one to attorney’s office to execute
will 2 months before he died; and that brother stated “‘[testa-
tor] will do exactly what I want when it come[s] to his will or
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I’m out of here’”); In re Estate of Glass, supra (susceptibility
factors include testator’s age, personality, physical and mental
health, and ability to handle business affairs); In re Feitag’s
Estate, 9 Wis. 2d 315, 321-22, 101 N.W.2d 108, 111 (1960)
(testator’s susceptibility shown by “testimony that she was
easily led or swayed by people about her,” including incident
in which she “talked about selling a washing machine, but she
didn’t know whether she would because she didn’t think the
appellant would like it”). See, also, In re Estate of Milas, No.
98-2511, 1999 WL 627680 at *3 (Wis. App. Aug. 19, 1999)
(unpublished opinion listed in table at 230 Wis. 2d 186, 603
N.W.2d 748 (Wis. App. 1999)) (identifying fact that “testator
was unusually receptive to the suggestions of another to whom
he consistently deferred on matters of personal importance” as
evidence of susceptibility to undue influence).
In our view, there was other evidence in this case that, in
addition to Walter’s decline, supported a finding that Walter
was susceptible to undue influence. Evidence at trial supported
the inference that Walter was susceptible to undue influence
because Walter depended on Dickie to manage matters rang-
ing from groceries to the farming operation. Evidence showed
that after Marilyn entered the nursing home in 2009, Walter
depended on his family’s assistance with groceries, food, and
medical appointments. After Marilyn died in 2011, Walter
came to rely on Dickie or Dickie’s wife to buy his groceries,
prepare food for him, and take him to medical appointments
and meetings with his attorneys. According to evidence, in
the years before the 2014 will and afterward, it was only
Walter and Dickie involved in Walter’s operation. Douglas
testified that Walter’s involvement in the operation dimin-
ished as he aged, until he “was out.” There was testimony that
rather than being active on the farm, Walter stayed inside and
watched television.
There was also evidence from which the jury could infer
that Walter had become passive and easily led, making him
susceptible to undue influence. The jury heard evidence that
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Walter altered his longtime estate plans despite expressing
discomfort with Dickie’s involvement. From 2003 to 2014,
Walter had consistently maintained an estate plan that generally
divided his assets equally among his children. In September
2011, Dickie began attending meetings between Walter and
Schroeder, who had prepared Walter’s previous wills. The
jury heard Schroeder’s testimony that in October 2012, he
was “‘not feeling comfortable’” with Dickie’s “aggressive”
and repetitive questions about his own compensation during
a consultation with Walter, so much so, that Schroeder asked
Dickie to leave the room. Schroeder recounted that when he
expressed his discomfort to Walter, Walter agreed that he too
was uncomfortable. That was the last time Schroeder saw
Walter. Soon afterward, Walter began consulting about his
estate plan in Kearney with Hermann, who had represented
Dickie in another matter just the previous month. Hermann
eventually prepared the 2014 will that substantially changed
Walter’s prior estate planning.
Other evidence also allowed the jury to make inferences
regarding Walter’s passivity and tendency to yield. The jury
heard testimony that before Dickie’s return, Walter made his
own decisions, but witnesses testified that afterward, Walter
could not make a decision without Dickie, who had been
heard “screaming” at Walter. Jeremy testified about a time in
September 2013 when Dickie seemed to be coaching Walter
to ask Jeremy to delete a text message involving Dickie’s
wife that was mistakenly sent from Walter’s phone. Based
on Walter’s voice, Jeremy testified that he thought Walter
was under “severe duress.” Witnesses recalled specific state-
ments Walter made that showed Dickie’s influence over how
Walter celebrated Thanksgiving, whether he stayed outdoors
in extreme heat, how he communicated with the rest of the
family, how he ran his operation, and, most significantly, how
he devised his estate. Donna testified that when she expressed
disagreement with Walter’s plans to leave most of his assets to
Dickie and Douglas, Walter responded, “‘Dick[ie] says this is
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how it should be.’” And there was evidence that it was Dickie
who informed Debra of certain provisions of the 2014 will
and, in tandem with his wife, argued with Debra when she
objected, while Walter sat silent. Dickie admitted that he told
Walter that if he divided his estate equally among his children
as he had long planned, it would likely be sold to someone
outside the family after his death because the children could
not get along.
We are also unpersuaded by Dickie’s allegation that proof of
undue influence failed because the 2014 will was not executed
in secret. We have observed that undue influence can be dif-
ficult to prove because it is “usually surrounded by all possible
secrecy” and “[is] not exert[ed] in a crowd.” In re Estate of
Hedke, 278 Neb. 727, 743, 775 N.W.2d 13, 28 (2009). But
we have not required secrecy to prove undue influence, and
we made the foregoing observations to explain why undue
influence often rests on inferences drawn from circumstantial
evidence. See id. “Such evidence shows a course of conduct
over a period of time intended to influence the mind of the tes-
tator.” In re Estate of Villwok, 226 Neb. 693, 698, 413 N.W.2d
921, 925 (1987). Here, the jury could have inferred that
Walter’s informing his family about the content of the 2014
will weighed against a finding of undue influence, but it would
not have been unreasonable for the jury to make the opposite
inference that these communications were a product of undue
influence that Dickie had already exerted largely in secret. The
fact that Walter did not conceal the provisions of the 2014 will
from his children does not render the jury’s undue influence
finding unreasonable.
2. Text Message
Dickie next presents two assignments of error related to
Debra’s counsel’s reference during the cross-examination of
Wylie to a purported text message sent by Dickie’s wife.
He first argues that the district court erred by allowing the
question and not immediately striking Wylie’s answer from
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the record. Additionally, he argues that the district court’s
response to counsel’s reference to the text message in closing
arguments was plain error. We disagree with both of Dickie’s
arguments.
Beginning with Dickie’s contentions regarding the initial
cross-examination, Dickie asserts that the question Debra’s
counsel asked about the purported text message was improper,
because the text message was not in evidence. According
to Dickie, the only reason Debra’s counsel could have had
for asking the question was to get information damaging to
Dickie’s case that was not admitted into evidence before the
jury. For these reasons, Dickie argues that the district court
abused its discretion by not sustaining his objection and grant-
ing his motion to strike Wylie’s answer.
There is no dispute that at the time the question at issue was
asked, no evidence had been admitted of Dickie’s wife’s send-
ing a text message like the one described by Debra’s counsel.
Likewise, there is no dispute that no such evidence was ever
admitted. Based on our record, then, we must treat the ques-
tion as a hypothetical question that assumed facts that were not
yet, and never were, admitted into evidence. Even framed this
way, however, we conclude that the district court could, within
the bounds of its discretion, permit the question and overrule
Dickie’s motion to strike.
There may be circumstances in which a party wishes to
cross-examine an expert witness by asking a hypothetical ques-
tion that refers to certain facts not yet in evidence. Although
this court does not appear to have specifically addressed the
matter, a number of courts and commentators have recognized
that, in such a situation, a trial court has discretion to permit
the question even though the supporting evidence has not been
admitted. As the Illinois Supreme Court has explained, a trial
court can permit a party to ask a question that assumes facts
not yet in evidence in cross-examination, because the cross-
examining party may not have yet had the opportunity to
present the evidence referred to in the question. See Coriell v.
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Industrial Com., 83 Ill. 2d 105, 413 N.E.2d 1279, 46 Ill. Dec.
166 (1980). If such a question is permitted and the evidence
never materializes, that court explained, there is a safeguard—a
subsequent motion to strike by the opposing party. See id.
The Hawaii Supreme Court reached the same basic conclu-
sion in Barretto v. Akau, 51 Haw. 383, 463 P.2d 917 (1969),
as to hypothetical questions that were based on facts not yet
in evidence and aimed at demonstrating an alternative theory
or contesting a substantive element of the case. That court
also held that a trial court could permit such questions if the
cross-examiner anticipated in good faith that the facts would
be established later in the trial. It also explained that if the
cross-examining party failed to eventually introduce evidence
of the facts assumed, the opponent’s remedy was a motion to
strike at the close of all evidence. See, also, United States v.
Benford, 479 Fed. Appx. 186 (11th Cir. 2011) (finding no error
in case in which trial court permitted line of questioning which
assumed facts not yet in evidence on assumption that question-
ing party would later introduce evidence supporting assump-
tions and opposing party did not request curative instruction
when such evidence was not later admitted); 1 McCormick on
Evidence § 14 at 134 (Robert P. Mosteller ed., 8th ed. 2020)
(explaining that in most jurisdictions, “there is no invariable
requirement that the supporting evidence be admitted before
the interrogating counsel poses the hypothetical question to
the expert”).
The foregoing authorities persuade us that a trial court does
not necessarily abuse its discretion if it permits a party to ask
an expert a question that assumes facts not yet in evidence
during cross-examination. Having reached this conclusion, we
can conclude rather easily that the district court did not abuse
its discretion by allowing the question and overruling Dickie’s
motion to strike here.
Wylie was the first witness to testify on the second day of
a 4-day trial. She generally testified that based on her review
of deposition testimony and other information provided to her,
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she did not believe Walter was susceptible to undue influence.
Among the materials she considered in forming that opinion
was the deposition testimony of Dickie’s wife. The question
at issue made reference to a purported text message sent by
Dickie’s wife that presumably contradicted that deposition
testimony. And although Debra’s counsel did not mention that
Debra intended to offer evidence of the text message at the
time the question was asked and corresponding objection was
made, later that same day, he did represent to the district court
that the text message would be “use[d]” when Dickie’s wife
was called to testify. Under these circumstances, it was not
clearly untenable for the district court to permit Debra’s coun-
sel to ask Wylie if a text message like the one described would
affect her conclusions. See Barnett v. Happy Cab Co., 311 Neb.
464, 973 N.W.2d 183 (2022) (judicial abuse of discretion exists
when reasons or rulings of trial judge are clearly untenable,
unfairly depriving litigant of substantial right and denying just
results in matters submitted for disposition).
We recognize that Dickie’s wife ultimately did not testify
and that evidence of the text message was not received into
evidence. This may have entitled Dickie to a ruling striking
Wylie’s answer at the close of all evidence, but he did not
request such a ruling.
[14] This leaves Dickie’s contention regarding the closing
argument made by Debra’s counsel. Dickie frames his argu-
ment in plain error terms. We have said that an appellate court
may find plain error on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Senteney, 307 Neb.
702, 950 N.W.2d 585 (2020). Generally, we will find plain
error only when a miscarriage of justice would otherwise
occur. Id.
We presume Dickie presents a plain error argument because
he cannot contend that the district court erred in ruling on the
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objection he actually asserted during closing argument. When
Debra’s counsel first made reference to a text message, Dickie’s
counsel objected, but the district court sustained the objection
and directed Debra’s counsel not to refer to the text message.
Unable to establish that the district court erred in response
to his objection, Dickie apparently argues that the district
court had an obligation to take additional action in response to
Debra’s closing argument on its own initiative. Here, Dickie
takes issue with statements by Debra’s counsel that the text
message and Wylie’s answer were in evidence and with what
he contends was an argument by Debra’s counsel that Wylie
admitted she would reconsider her opinions in light of the
text message.
To the extent Dickie is arguing that the district court was
obligated to interrupt Debra’s closing argument sua sponte to
address the statements to which he now objects, we disagree.
When considering arguments that a trial court erred by “allow-
ing” testimony to which there was no objection, we have dis-
cussed the fact that even when a question or answer is arguably
improper, sua sponte action by the trial court may interfere
with a party’s trial tactics by bringing unwanted attention to the
testimony. See Senteney, supra. In our view, similar consider-
ations apply in the closing argument context.
[15] Neither can we agree with Dickie that the district court
was obligated to grant his motion for new trial based on the
closing argument of Debra’s counsel. A motion for new trial
is to be granted only when error prejudicial to the rights of
the unsuccessful party has occurred. Hemsley v. Langdon, 299
Neb. 464, 909 N.W.2d 59 (2018). Further, we review the dis-
trict court’s denial of the motion for new trial for an abuse of
discretion. See id. We discern no such abuse. The district court
sustained Dickie’s objection and precluded Debra’s counsel
from referring to the text message in oral argument. Although
Debra’s counsel stated that the text message was in evidence,
we understand that statement to have been made as an argu-
ment to the district court responsive to Dickie’s objection,
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not an argument to the jury. In any event, the jury had been
instructed that statements, arguments, and objections by attor-
neys were not evidence. And we do not understand Debra’s
counsel to have clearly argued that Wylie admitted she would
have to reconsider her opinions in light of the text message.
3. Attorney Fees and Expenses
In her cross-appeal, Debra argues that the district court erred
when it ordered that Dickie was entitled to attorney fees and
expenses incurred in defending the will contest proceeding.
Before reaching this issue, however, it is our duty to determine
whether we have jurisdiction to decide it. See Green v. Seiffert,
304 Neb. 212, 933 N.W.2d 590 (2019).
When a lower court lacks subject matter jurisdiction to
decide an issue, an appellate court also lacks the power to
resolve the issue. See In re Estate of Evertson, 295 Neb. 301,
889 N.W.2d 73 (2016). This case presents a question as to
whether the district court had subject matter jurisdiction to
order that Dickie was entitled to attorney fees and expenses
pursuant to § 30-2481. Although not initially raised by the
parties, we directed the parties to file supplemental briefs on
the issue. In their respective supplemental briefs, Debra argues
that the district court lacked jurisdiction and that any award
of attorney fees pursuant to § 30-2481 must be ordered by the
county court, while Dickie maintains that the district court had
jurisdiction to make its attorney fees order.
We begin our analysis by reviewing various statutory provi-
sions that we believe are helpful in framing the question. First,
under Neb. Rev. Stat. § 24-517(1) (Reissue 2016), county
courts have exclusive jurisdiction over all matters relating to
decedents’ estates, including the probate of wills and construc-
tion thereof. See In re Estate of Forgey, 298 Neb. 865, 906
N.W.2d 618 (2018). Notwithstanding this grant of authority to
county courts, § 30-2429.01 authorizes parties to transfer pro-
ceedings regarding the validity of a will to the district court.
Section 30-2429.01 provides, in relevant part:
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(3) Upon the filing of the certification as provided in
subsection (2) of this section in the district court, such
court shall have jurisdiction over the proceeding on the
contest. Within thirty days of the filing of such certifica-
tion, any party may file additional objections.
(4) The district court may order such additional plead-
ings as necessary and shall thereafter determine whether
the decedent left a valid will. Trial shall be to a jury
unless a jury is waived by all parties who have filed
pleadings in the matter.
(5) The final decision and judgment in the matter
transferred shall be certified to the county court, and pro-
ceedings shall be had thereon necessary to carry the final
decision and judgment into execution.
Dickie sought an award of attorney fees in the district court
pursuant to § 30-2481, which provides: “If any personal rep-
resentative or person nominated as personal representative
defends or prosecutes any proceeding in good faith, whether
successful or not he is entitled to receive from the estate his
necessary expenses and disbursements including reasonable
attorneys’ fees incurred.”
We believe the following section, § 30-2482, is also rel-
evant. Subsection (1) of § 30-2482 provides:
After notice to all interested persons or on petition of an
interested person or on appropriate motion if administra-
tion is supervised, the propriety of employment of any
person by a personal representative including any attor-
ney, [or] the reasonableness of the compensation of any
person so employed, . . . may be reviewed by the court.
Subsection (2) of § 30-2482 lists a number of factors that
may be considered in determining the reasonableness of a fee.
In our view, the question of whether the district court had
jurisdiction to order that Dickie receive an award of attor-
ney fees and expenses pursuant to § 30-2481 depends on the
scope of authority granted to the district court by statute. We
find the scope of the district court’s statutory authority to be
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crucial, because the district court’s general jurisdiction does
not extend to probate matters, and thus, any district court
authority over such matters is derived from and limited by
legislative grant. See In re Estate of Sehi, 17 Neb. App. 697,
772 N.W.2d 103 (2009).
On the subject of statutory authority, § 30-2429.01(4) plainly
authorizes the district court to determine whether the decedent
left a valid will. In one of our recent opinions, we cited that
subsection for the proposition that a district court’s authority
over a will contest is “limited to determin[ing] whether the
decedent left a valid will.” See Bohling v. Bohling, 309 Neb.
625, 634, 962 N.W.2d 224, 231 (2021). Debra relies on that
language to argue that the district court lacked authority to
also order that Dickie be reimbursed for his attorney fees and
expenses pursuant to § 30-2481. We believe that this issue is
slightly more complicated and that we cannot resolve it merely
by citing this language in Bohling, supra.
While § 30-2429.01(4) does direct that the district court is
to determine whether the challenged will was valid, subsection
(3) provides that when a will contest is duly transferred to the
district court, the district court obtains “jurisdiction over the
proceeding on the contest.” We understand this language to
give the district court jurisdiction over the will contest pro-
ceeding and thus the authority to resolve issues that bear on
whether the decedent left a valid will. We recognized as much
in Bohling, supra, stating that the district court in a will con-
test may decide issues of will construction to the extent they
bear on the will’s validity. Because the district court is given
jurisdiction over the will contest proceeding, we also under-
stand the district court to have the authority to issue orders
instrumental to a determination of whether the challenged will
is valid on matters such as the admissibility of evidence or the
conduct of discovery.
We disagree with Dickie, however, that a determination
of whether a personal representative or nominated personal
representative should be reimbursed by the estate for attorney
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fees incurred in a will contest pursuant to § 30-2481 is right-
fully encompassed within the will contest proceeding. Instead,
we are persuaded that such a determination is part of the rest
of the probate proceeding and committed to the jurisdiction of
the county court. This conclusion is informed by §§ 30-2481
and 30-2482. As described above, § 30-2481 provides that
a personal representative or nominated personal representa-
tive is, under certain conditions, entitled to be reimbursed by
the estate for expenses incurred in estate litigation, including
reasonable attorney fees. And, as described above, § 30-2482
directs that a personal representative’s employment of persons,
including attorneys, and the reasonableness of compensation
paid to such persons are subject to court review.
[16] We find that the foregoing statutes pertain to the same
subject matter and are thus subject to our principle of statu-
tory interpretation governing statutes in pari materia. As we
often say, components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to deter-
mine the intent of the Legislature, so that different provisions
are consistent, harmonious, and sensible. In re William R.
Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807
(2021). Applying this principle here, we find that § 30-2482
sets forth the procedure by which a court is authorized to
determine whether and to what extent a personal representa-
tive or nominated personal representative is entitled to be
reimbursed from the estate for expenses in estate litigation
pursuant to § 30-2481. Importantly, § 30-2482 provides that
such review is to be completed by “the court.” This is sig-
nificant because, under the Nebraska Probate Code, with an
exception not applicable here, “the court” is defined to refer
to the county court unless “the context otherwise requires.”
See Neb. Rev. Stat. § 30-2209 (Reissue 2016). We do not
believe that the context of § 30-2482 requires that “the court”
mean anything other than the county court, as provided in
§ 30-2209.
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We find confirmation of our conclusion that § 30-2482
provides the procedure by which a court can review claims
for reimbursement pursuant to § 30-2481 in an opinion of
the North Dakota Supreme Court. See Matter of Estate of
O’Connell, 476 N.W.2d 8 (N.D. 1991). That court interpreted
North Dakota statutes based on the same Uniform Probate
Code provisions upon which §§ 30-2481 and 30-2482 are
based. It found that claims for reimbursement for estate litiga-
tion sought under § 30-2481’s North Dakota counterpart were
subject to court review pursuant to § 30-2482’s North Dakota
counterpart. See Matter of Estate of O’Connell, supra.
We are not swayed from our conclusion that a determina-
tion under § 30-2481 is committed to the jurisdiction of the
county court by Dickie’s reliance on In re Estate of Miller, 231
Neb. 723, 437 N.W.2d 793 (1989), disapproved, In re Estate
of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022). In that
case, this court held that a county court lacked authority to
tax costs and fees for the allegedly vexatious pursuit of a will
contest. In doing so, however, we noted that there was no pro-
vision in the Nebraska Probate Code relating to the assessment
of costs and attorney fees in a will contest action which had
been transferred to a district court and that there was a statute
authorizing the district court to order a party who pursued pro-
ceedings vexatiously or for delay to pay costs to the adverse
party. See In re Estate of Miller, supra citing Neb. Rev. Stat.
§ 24-541.10(2) (Reissue 1985).
In this case, unlike In re Estate of Miller, supra, Dickie is
not asking that an opposing party be ordered to pay his costs
on the grounds that the opposing party engaged in vexatious
litigation. As we have discussed, he has asked that he be reim-
bursed by the estate pursuant to § 30-2481. And that is not the
only difference between this case and In re Estate of Miller,
supra. While our opinion in In re Estate of Miller noted the
absence of a provision in the Nebraska Probate Code address-
ing the type of fees sought and a specific statute authorizing
the district court to order such fees, as we have discussed, the
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Nebraska Probate Code has committed the determination of
whether a party is entitled to reimbursement under § 30-2481
to the county court.
Although we find that a party’s entitlement to reimburse-
ment under § 30-2481 is committed to the county court, we
recognize that during a will contest proceeding in district court,
the district court may have the occasion to, directly or indi-
rectly, weigh in on whether a nominated personal representa-
tive’s defense of the will contest was undertaken in good faith.
Nothing in this opinion should be read to preclude the county
court from considering any such statements along with the rest
of the district court record in assessing whether the proceeding
was defended in good faith.
For these reasons, we find that the district court lacked juris-
diction to find that Dickie was entitled to attorney fees pursu-
ant to § 30-2481. When we determine that we lack jurisdiction
over the decision of a lower court because the lower court
lacked jurisdiction, we have the power to vacate the void order
of the lower court and, if necessary, to remand the cause with
appropriate directions. See Davis v. Moats, 308 Neb. 757, 956
N.W.2d 682 (2021). We therefore vacate the portion of the dis-
trict court’s order finding that Dickie was entitled to attorney
fees and expenses pursuant to § 30-2481.
V. CONCLUSION
Because the district court lacked jurisdiction to enter its
order awarding attorney fees pursuant to § 30-2481, we vacate
that order and dismiss the cross-appeal. As to the issues raised
on appeal, we affirm.
Affirmed in part, and in part
vacated and dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482440/ | AFFIRMED and Opinion Filed November 7, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00594-CR
AUSTON BRYCE ARMSTRONG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 19-11216-86-F
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Goldstein
Opinion by Justice Reichek
Following a jury trial, Auston Bryce Armstrong appeals his conviction for
criminally negligent homicide. In one issue, he challenges the legal sufficiency of
the evidence to support the conviction. For reasons that follow, we affirm.
BACKGROUND
Appellant was charged with manslaughter in the death of Brittani Davis, his
brother’s fiancée. The indictment alleged appellant recklessly caused Davis’s death
by pushing her, causing her to fall and hit her head on the ground and pavement.
Evidence showed that on December 24, 2019, appellant’s parents, Kimberly and
Troy Armstrong, hosted Christmas Eve dinner at their house. Their two sons,
appellant and Tyler Armstrong, were present, along with appellant’s girlfriend and
Davis. With the exception of appellant’s girlfriend, everyone drank more alcohol
than they should have that night. Eventually a fight broke out between appellant and
his father. Appellant became enraged. He hit his father in the face, causing injuries
that required surgery, and damaged his parents’ home.
Sometime after the fight, appellant came out of the house and started running
down the driveway. Tyler assumed their father was at the end of the driveway, and
appellant was running to start fighting with him again. Appellant testified he was
trying to catch his girlfriend who was in her car. Davis was in the driveway at the
time and stepped in front of appellant in an apparent effort to stop him. Tyler
testified that Davis “put her hands up and was like wait, wait, wait.” Appellant
shoved her out of his way, causing her to fall and hit her head on the concrete
driveway. Davis died as a result of blunt force injuries to her head and neck.
The jury found appellant guilty of the lesser included offense of criminally
negligent homicide. The trial court assessed punishment at two years in state jail.
This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his sole issue, appellant challenges the legal sufficiency of the evidence. A
person commits the offense of criminally negligent homicide if he causes the death
of an individual by criminal negligence. TEX. PENAL CODE ANN. § 19.05(a). To
make a legally sufficient showing of criminally negligent homicide, the State must
–2–
prove that (1) the defendant’s conduct caused the death of an individual; (2) the
defendant ought to have been aware there was a substantial and unjustifiable risk of
death from his conduct; and (3) the defendant’s failure to perceive the risk
constituted a gross deviation from the standard of care an ordinary person would
have exercised under like circumstances. Queeman v. State, 520 S.W.3d 616, 622
(Tex. Crim. App. 2017); Montgomery v. State, 369 S.W.3d 188, 192–93 (Tex. Crim.
App. 2012); see TEX. PENAL CODE ANN. § 6.03(d). The circumstances are viewed
from the standpoint of the actor at the time that the allegedly negligent act occurred.
Montgomery, 369 S.W.3d at 193. Unlike manslaughter, the key to criminal
negligence is not the actor’s being aware of a substantial risk and disregarding it, but
rather it is the actor’s failure to perceive the risk at all. Id.; Mendieta v. State, 706
S.W.2d 651, 652 (Tex. Crim. App. 1986).
Criminal negligence is not simply the criminalization of ordinary civil
negligence. Thedford v. State, No. 05-18-00884-CR, 2020 WL 5087779, at *6 (Tex.
App.—Dallas Aug. 28, 2020, pet. ref’d) (mem. op.). The carelessness required for
criminal negligence is significantly higher than that for civil negligence; the
seriousness of the negligence would be known by any reasonable person sharing the
community’s sense of right and wrong. Queeman, 520 S.W.3d at 623. The risk must
be substantial and unjustifiable, and the failure to perceive it must be a gross
deviation from reasonable care as judged by general societal standards by ordinary
people. Id. Whether a defendant’s conduct involves an extreme degree of risk must
–3–
be determined by conduct itself, not by the resultant harm. Id.; Thedford, 2020 WL
5087779, at *6.
In assessing the sufficiency of the evidence to support a criminal conviction,
we consider all the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and reasonable inferences therefrom, a rational
factfinder could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Alfaro-Jimenez v. State, 577
S.W.3d 240, 243, 243–44 (Tex. Crim. App. 2019). This standard requires that we
defer “to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018).
Circumstantial evidence is as probative as direct evidence in establishing a
defendant’s guilt. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018).
Proof of mental state will almost always depend upon circumstantial evidence.
Duntsch v. State, 568 S.W.3d 193, 216 (Tex. App.—Dallas 2018, pet. ref’d).
Appellant contends the State failed to present any evidence that he should
have been aware that his conduct created a substantial and unjustifiable risk of death.
In the argument section of his brief, appellant states that Davis stepped in front of
him and he “made contact” with her. He argues he could not have known Davis
was going to step in front of him and thus could not have known that his running
down the driveway created a substantial and unjustifiable risk of death.
–4–
Appellant minimizes the evidence that he shoved Davis. There was not
merely a collision between appellant and Davis as she stepped in front of him;
appellant’s mother and brother testified they saw appellant shove Davis with a great
deal of force. Kimberly Armstrong described the shove as a “two-handed shove to
where [Davis’s] hair flew up and everything and she went straight down.” Tyler
testified that appellant intentionally shoved Davis off to the side. Appellant pushed
her hard enough that her hair “was up in the wind.” As Tyler described it, Davis
“didn’t just fall right there”; the contact “pushed her away.” Appellant himself
testified that he pushed Davis when she stepped in front of him. He indicated for
the jury what he did with his hands.
Appellant, while running, forcefully shoved Davis on a concrete driveway.
Under the circumstances, the jury could have reasonably concluded appellant ought
to have been aware there was a substantial and unjustifiable risk of death from that
conduct and that his failure to perceive the risk constituted a gross deviation from
the standard of care an ordinary person would have exercised. The evidence is
legally sufficient to support a criminally negligent homicide conviction. We overrule
appellant’s issue.
–5–
We affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish.
TEX. R. APP. P. 47.2(b).
210594F.U05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AUSTON BRYCE ARMSTRONG, On Appeal from the 86th Judicial
Appellant District Court, Kaufman County,
Texas
No. 05-21-00594-CR V. Trial Court Cause No. 19-11216-86-
F.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Reichek. Justices Schenck and
Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered November 7, 2022
–7– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482448/ | DISMISSED and Opinion Filed November 4, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01115-CR
LAVACE DURELL MORGAN AKA LAVANCE DURELL JENKINS,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 21838
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Molberg
On October 18, 2022, Lavace Durell Morgan aka Lavance Durell Jenkins filed
a pro se “Motion for Appointment of Counsel on Nunc Pro Tunc and Notice to
Appeal Nunc Pro Tunc.” The notice of appeal portion of the document states the trial
court “has entered a Judgment to the Nunc Pro Tunc and defendant seeks to appeal
the decision.”
On October 24, 2022, the Court entered an order observing that the trial
court’s online docket sheet shows appellant filed a motion for nunc pro tunc relief
on July 28, 2022, but it does not show any ruling on the motion. The Court ordered
the H u n t County D i s t r i c t Clerk to review its records to determine if the trial
court had entered a judgment or written order ruling on appellant’s motion and then
file either a verification that the trial court has not entered a judgment or written
order or else a clerk’s record containing the documents relevant to review appellant’s
appeal.
On October 26, 2022, the district clerk filed a clerk’s record containing the
Court’s October 24, 2022 order, an order transferring the case from the 354th
Judicial District Court to the 196th Judicial District Court, a copy of the motion for
judgment nunc pro tunc, and appellant’s notice of appeal.
The order of transfer is signed by Keli M. Aiken, the presiding judge of the
354th Judicial District Court. The order of transfer is also signed as accepted by J.
Andrew Bench, the presiding judge of the 196th Judicial District Court, although it
contains a clerical error describing him as being presiding judge of the 354th Judicial
District Court. On the copy of appellant’s motion in the clerk’s record, we observe
that at the top of the first page of the motion for nunc pro tunc judgment, there is a
handwritten statement reading “No Action Taken–-JAB” followed by a handwritten
date for August 2022.
This Court has no jurisdiction to entertain an appeal unless the trial court has
entered a judgment or appealable order. See TEX. R. APP. P. 26.2(a)(1); State v.
Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012); Henderson v. State,
153 S.W.3d 735, 735–36 (Tex. App.—Dallas 2005, no pet.). The entry of a nunc pro
–2–
tunc judgment is an appealable order. Blanton v. State, 369 S.W.3d 894, 904 (Tex.
Crim. App. 2012). In contrast, the trial court’s denial of relief or refusal to rule on a
motion for judgment nunc pro tunc does not create an appealable order that may
serve as a basis for appellate jurisdiction. See Desilets v. State, 495 S.W.3d 553, 554
(Tex. App.—Beaumont 2016, no pet.) (dismissing appeals from order denying
request for judgments nunc pro tunc); Sanchez v. State, 112 S.W.3d 311 (Tex.
App.—Corpus Christi-Edinburg 2003, no pet.) (per curiam) (same); see also Lopez
v. State, No. 05-19-00096-CR, 2019 WL 1486919, at *1 (Tex. App.—Dallas Apr. 4,
2019, no pet.) (mem. op., not designated for publication) (dismissing appeal where
record showed trial court had not ruled on motion seeking nunc pro tunc relief).
Because the record in this case shows the trial court chose to take no action
on appellant’s motion and did not sign an appealable order, we have no jurisdiction
to entertain appellant’s appeal. See Henderson, 153 S.W.3d at 735–36; Desilets, 495
S.W.3d at 554; see also Lopez, 2019 WL 1486919, at *1.
We dismiss the appeal for want of jurisdiction.
/Ken Molberg//
KEN MOLBERG
221115f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
–3–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAVACE DURELL MORGAN On Appeal from the 354th Judicial
AKA LAVANCE DURELL District Court, Hunt County, Texas
JENKINS, Appellant Trial Court Cause No. 21838.
Opinion delivered by Justice
No. 05-22-01115-CR V. Molberg. Justices Partida-Kipness
and Carlyle participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the appeal is DISMISSED.
Judgment entered this 4th day of November, 2022.
–4– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482443/ | Denied and Opinion Filed November 4, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01062-CV
IN RE MELISSA LARSEN, Relator
Original Proceeding from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-04344
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Partida-Kipness and Smith
Opinion by Justice Partida-Kipness
In this original proceeding, relator challenges the trial court’s order denying
relator’s motion to release an abstract of judgment. Relator seeks a writ of mandamus
ordering the trial court to vacate that order and either (1) render a judgment that
“partially removes the Abstract of Judgment recorded by AC Square only as to the
Property” or (2) “enter an order designating the Property as Relator Melissa Larsen’s
homestead.”
To be entitled to mandamus relief, a relator must show both that the trial court
has clearly abused its discretion and that relator has no adequate appellate remedy.
In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
Based on the record before us, we conclude relator has not shown she is entitled to
the relief requested. See TEX. R. APP. P. 52.8(a); Walker v. Packer, 827 S.W.2d 833,
839-40 (Tex. 1992) (orig. proceeding). Accordingly, we deny relator’s petition for
writ of mandamus.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
221062F.P05
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482446/ | Affirmed in part and Reversed in part and Opinion Filed November 4, 2022
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00693-CV
SHEILA MICHAL, INDIVIDUALLY AND AS A REPRESENTATIVE OF
THE ESTATE OF ROBERT MICHAL, Appellant
V.
NEXION HEALTH AT GARLAND, INC. D/B/A PLEASANT VALLEY
HEALTHCARE AND REHABILITATION CENTER AND NEXION
HEALTH OF TEXAS, INC., Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-05250
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
In this medical negligence case, Sheila Michal, individually and on behalf of
the estate of her deceased husband, Robert Michal, appeals the trial court’s order
granting no-evidence summary judgment in favor of appellees Nexion Health at
Garland, Inc. d/b/a Pleasant Valley Healthcare and Rehabilitation Center (Pleasant
Valley) and Nexion Health at Garland, Inc. (collectively, Nexion). We reverse in part
and remand in this memorandum opinion. See TEX. R. APP. P. 47.4.
Background
Ms. Michal filed this lawsuit against Nexion on April 3, 2020. Her petition
stated that in 2018 Mr. Michal suffered from “comorbidities” and was a Pleasant
Valley resident. In her medical negligence claim, she alleged Nexion “knew of the
increased risk of . . . infections created by [Mr. Michal’s] conditions” and owed him
“a duty of care to exercise that degree of care required by [his] known physical
conditions,” but breached that duty by “acts and omissions of negligence” that
ultimately led to his death.1
Following Nexion’s general denial answer, the trial court approved an August
26, 2020 “Discovery and Docket Control Plan” under which trial was set for July
12, 2021, and Ms. Michal’s expert witness designation deadline was November 9,
2020. On January 6, 2021, Ms. Michal designated Gregg Davis, M.D., as an expert
witness. Nexion filed a February 9, 2021 motion to strike Dr. Davis’s designation as
untimely.
While the motion to strike the designation was pending, Nexion filed a March
10, 2021 no-evidence motion for summary judgment. Nexion asserted it was entitled
to summary judgment because Ms. Michal’s untimely expert witness designation
“must be stricken and excluded pursuant to Tex. R. Civ. P. 193.6,” leaving her
1
Ms. Michal also asserted claims for corporate and gross negligence. Though the trial court granted
summary judgment in Nexion’s favor as to all of Ms. Michal’s claims, she states in her appellate briefing
that she “is not seeking to reverse the court’s decision regarding her corporate negligence and gross
negligence claims.”
–2–
without the expert testimony required to establish the medical negligence elements
of standard of care, breach of the standard, and causation.
On March 23, 2021, the trial court signed two orders that each denied, in
slightly different wording, Nexion’s motion to strike Dr. Davis’s designation. One
was titled “Order Denying Defendants’ Motion to Strike Expert Witness” and the
other was titled “Order on Defendants’ Motion to Strike Expert Witness Gregg Davis
M.D.”
Ms. Michal filed an April 21, 2021 response to Nexion’s summary judgment
motion with attached exhibits that included (1) an unsworn declaration of Dr. Davis2;
2
Dr. Davis’s declaration stated, among other things:
12. In this case, I have reviewed the following records: Death Certificate of Robert Michal,
Medical City Dallas’ medical records dated 12/07/2017–12/29/2017 and 6/18/2018,
6/26/2018, Pleasant Valley Healthcare and Rehabilitation nursing facility’s medical records
dated 7/26/2017–6/18/2018, and Kindred Hospital Dallas Central’s medical records dated
12/05/2017–12/07/2017.
13. The opinions expressed here are based on my review of the pertinent records, my
education, training, and knowledge of the accepted medical and nursing standards of care
for the diagnoses, care, and treatment of the illnesses, injuries, and conditions involved in
this claim.
14. The underlying acts as outlined in Mr. Michal’s medical records are as follows: Mr.
Michal was admitted to Pleasant Valley Healthcare and Rehabilitation on 12/29/2017 after
hospitalization at Kindred Hospital Dallas Central for rehabilitation following a diagnosis
of acute lymphocytic leukemia status post-chemotherapy, sepsis, respiratory failure,
polyneuropathy, and gastric feeding tube placement. The gastrotomy tube was removed at
the end of February 2018. A pureed diet with honey thickened liquids was initially tolerated
without symptoms of aspiration. Mr. Michal developed a fever of 101.1 with a chest X-ray
on 5/30/2018, revealing a “left basilar airspace dz/atelectasis.” The next nursing note was
created on 6/9/2018 and indicated he was afebrile.
15. Nursing notes contained within Mr. Michal’s medical record dated 6/10/2018 and
6/14/2018 are concerned with oral fluid intake, voiding, and recording typical vital signs.
On 6/15/2018, a chest x-ray was obtained with findings of right lung infiltrate likely due
to pneumonia. On 6/15/2018 at 17:18, a nurse practitioner began a seven-day course of
–3–
treatment with oral Levaquin, an antibiotic. Vital signs at that time were normal. The
nursing staff next evaluated Mr. Michal on 6/16/2018 at 14:39, recording “no sign of
discomfort” without performing vital signs. At 21:11, a nursing evaluation found him to be
afebrile, alert, with normal respirations. The next morning, 6/17/2018, at 06:29, the nursing
staff administered a dose of Levaquin and recorded a normal temperature. At 13:58, the
team assisted Mr. Michal with his meal and recorded he ate 25% of the meal. No vital signs
were obtained. That evening at 21:28, vital signs indicate he was afebrile and had consumed
75% of his evening meal. On the morning of 6/18/2018 at 06:38, he was “afebrile,” but no
vital signs were recorded. At 10:57, the nursing note indicates he had not eaten breakfast
but did not exhibit any signs of discomfort. No vital signs were obtained. The next nursing
note occurred at 16:01 and indicated he was being transferred to the Medical City of Dallas
due to critical lab values. Vital signs at that time indicated his pulse was elevated (101),
and he had developed a temperature of 99.6. He was described as alert without pain or
shortness of breath.
16. Upon arrival at Medical City Dallas’s emergency department, Mr. Michal’s records
reveal that he was found to have a temperature of 101.3. His examination revealed bilateral
rales upon auscultation of his chest, and he was diagnosed with septic shock, anemia, lactic
acidemia, leukopenia, and pneumonia. A history indicated Mr. Michal had become
anorexic two weeks before transfer and had an episode of coughing while eating.
Additional history was obtained by otolaryngology, indicating Mr. Michal had had
difficulty swallowing for the last two months and had bouts of food “getting stuck in the
back of his throat.” Mr. Michal failed to respond to aggressive medical therapy. On
6/26/2018, oncology indicated Mr. Michal was not a candidate for further treatment and
his prognosis was “grim”. Hospice was consulted, and Mr. Michal died on 6/26/2018 from
sepsis and aspiration pneumonia.
....
19. . . . The [Pleasant Valley] nursing staff knew or should have known that patients with
advanced leukemia are immunosuppressed by their illness and may fail to manifest a
consistent fever despite the presence of sepsis. . . . Nursing staff failed to monitor vital
signs on 6/17/2018 and 6/18/2018 and failed to monitor the development of sepsis. This is
a deviation in the standard of care. They failed to monitor Mr. Michal’s clinical course
adequately, the nursing staff allowed the progression of sepsis, delayed the diagnosis of
sepsis, and prevented his transfer to a higher level of care.
....
22. It is my opinion that the events and failures by Pleasant Valley Healthcare and
Rehabilitation nursing facility proximately caused or contributed to a delay in the diagnosis
of Mr. Michal’s sepsis resulting in a delay of therapy which may have prolonged his life.
Nursing staff of Pleasant Valley failed to maintain head of bed elevated. They failed to keep
the head of Mr. Michal’s bed elevated at 45-90 degrees during feeding and for at least 30-
45 minutes after feeding. . . . In the present case, there is no evidence to show Mr. Michal
was maintained upright. Failures to maintain optimal positioning . . . led to gastric contents
entering the airways. . . . Particles of food allowed for the accumulation of bacteria, which
colonized the respiratory system including the lungs, causing pneumonia from food
aspirated into lungs. . . . When Mr. Michal aspirated food into his lungs, he developed
pneumonia, and bacteria spread into his bloodstream, causing sepsis. Due to his
immunosuppression, his body failed to mount an aggressive response to the infection. As
a part of this failure, he did not develop a sustained elevation in his temperature. The failure
of the nursing staff to frequently monitor his vital signs prevented the early detection of
developing sepsis. Failing to detect the onset of sepsis, precluded early treatment, and led
to premature death.
–4–
(2) Mr. Michal’s 2017–2018 Pleasant Valley medical records; (3) Mr. Michal’s 2017
medical records from another Dallas-area facility, Kindred Hospital; and (4) an
unsworn declaration of Ms. Michal’s counsel describing both sets of medical records
as “produced to [Ms. Michal’s counsel] in discovery by Defendants” and “kept
by [Ms. Michal’s counsel] in the regular course of business.”
On April 26, 2021, Nexion filed a summary judgment reply and objections to
Ms. Michal’s summary judgment evidence. Nexion (1) contended the Pleasant
Valley and Kindred Hospital records were hearsay and “not supported by a
(compliant) business records affidavit” and (2) objected to portions of the
declaration of Ms. Michal’s counsel on the grounds that counsel’s statements did not
satisfy the business-records hearsay exception requirements. Also, Nexion
(1) asserted Texas Rule of Civil Procedure 166a(f) required that “sworn or certified
copies of all papers referred to” in the declaration must be “attached thereto or served
therewith” and (2) contended Ms. Michal entirely omitted the death certificate and
Medical City records that served as bases for Dr. Davis’s opinion. Nexion argued
that the “absence of the referenced papers” rendered the entire declaration “per se
conclusory.” Additionally, Nexion contended Dr. Davis’s designation “remains
untimely” because, despite “ample time to cure” after the trial court denied Nexion’s
motion to strike, Ms. Michal had not “sought leave to late-designate an expert” or
“obtained an amendment of the expert witness deadline.”
–5–
At the start of the April 29, 2021 summary judgment hearing 3, Ms. Michal
filed a “Motion for Leave to Late-File Summary Judgment Evidence,” seeking to
file Mr. Michal’s death certificate and the Medical City records described in Dr.
Davis’s declaration. The motion contended “good cause” for leave existed because
that evidence “was inadvertently left out” of the summary judgment response. The
motion (1) cited the portion of Rule 166a(f) allowing for supplementation of
summary judgment affidavits; (2) requested that the death certificate and Medical
City records be “attached”; and (3) stated that due to the Medical City records “being
too large to submit via e-File,” those records “will be mailed to the court for filing.”4
The motion also requested that the trial court “take judicial notice pursuant to Texas
Rule of Evidence 201 of the Death Certificate of Robert Michal,” a “public and
readily available document.”
The motion’s attachments included a facsimile of Mr. Michal’s certified death
certificate, titled “State of Texas Certification of Vital Record.” The death certificate
stated it was issued by the Texas Department of State Health Services Vital Statistics
Unit and was “a true and correct reproduction of the original record as recorded in
this office,” issued “under authority of Section 191.051, Health and Safety Code.” It
described Mr. Michal’s cause of death as “sepsis” due to “aspiration pneumonia.”
3
Though the appellate record does not include a reporter’s record of the summary judgment hearing,
the record shows the hearing was at 10:30 a.m. and Ms. Michal’s motion for leave to late-file summary
judgment evidence was filed at 10:32 a.m.
4
Though the appellate record does not include the Medical City records, that omission is immaterial
because we do not rely on the contents of those records in this opinion.
–6–
On the same date as the hearing, the trial court signed an order vacating one
of the two above-described March 23, 2021 orders denying Nexion’s motion to
strike Dr. Davis’s designation as an expert witness.
Nexion filed a May 3, 2021 response to Ms. Michal’s motion for leave to late-
file evidence, contending the evidence she sought to file “is not competent.” Nexion
stated it presumed the Medical City records Ms. Michal sought to file were those
produced to Nexion during discovery, which were “unauthenticated” and “hearsay,
unsupported by business record or other affidavit.” Nexion also contended the death
certificate was hearsay, unauthenticated, and “not certified.”
The trial court signed a May 14, 2021 order granting Nexion’s no-evidence
motion for summary judgment and dismissing Ms. Michal’s claims with prejudice.
The order also denied Ms. Michal’s motion for leave to late-file summary judgment
evidence and sustained Nexion’s objections to the evidence attached to Ms. Michal’s
summary judgment response and the evidence she sought to file late.
Ms. Michal filed a June 14, 2021 motion for new trial restating her above-
described arguments. She also filed a July 20, 2021 “Trial Brief” in support of her
new-trial motion, which Nexion objected to as an “untimely amended motion for
new trial.” After a hearing, the trial court denied Ms. Michal’s motion for new trial.
Standard of review and applicable law
We review a trial court’s summary judgment de novo. E.g., Travelers Ins. Co.
v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A trial court must grant a no-evidence
–7–
motion for summary judgment unless the nonmovant produces evidence raising a
genuine issue of material fact on the challenged elements. TEX. R. CIV. P. 166a(i);
see City of Keller v. Wilson, 168 S.W.3d 802, 810–11 (Tex. 2005); Forbes Inc. v.
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).
In our summary judgment review, we examine the record in the light most
favorable to the nonmovant. Forbes, 124 S.W.3d at 172. A no-evidence challenge
will be sustained when (a) there is a complete absence of evidence of a vital fact,
(b) the court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is
no more than a mere scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
2013); see also Forbes, 124 S.W.3d at 172 (“More than a scintilla of evidence exists
if it would allow reasonable and fair-minded people to differ in their conclusions.”).
When the trial court’s order does not specify the grounds for granting summary
judgment, we affirm if any theory presented to the trial court and preserved for our
review is meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
216 (Tex. 2003).
Affidavits supporting and opposing summary judgment “shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters
stated therein.” TEX. R. CIV. P. 166a(f); see also TEX. CIV. PRAC. & REM. CODE
–8–
§ 132.001(a) (allowing for use of unsworn declaration in lieu of affidavit required
by statute or rule). “Sworn or certified copies of all papers or parts thereof referred
to in an affidavit shall be attached thereto or served therewith.” TEX. R. CIV. P.
166a(f). “[A]n affidavit is substantively defective when the absence of the referenced
papers from the summary judgment evidence makes the affidavit conclusory.”
Brown v. Brown, 145 S.W.3d 745, 752 (Tex. App.—Dallas 2004, pet. denied); see
also id. at 751 (“A conclusory statement is one that does not provide the underlying
facts to support the conclusion.”). Though a trial court need not allow
supplementation to cure a substantive defect in a summary judgment affidavit, upon
objection to a defect in the form of the affidavit the opposing party must have an
opportunity to amend. Hewitt v. Biscaro, 353 S.W.3d 304, 307–08 (Tex. App.—
Dallas 2011, no pet.).
Evidentiary rulings and denials of motions for leave to late-file summary
judgment evidence are reviewed under an abuse of discretion standard. E.g., Nat’l
Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527–28 (Tex. 2000); Carpenter v.
Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002); see also U-Haul
Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012) (trial court abuses its
discretion when it acts without regard for guiding rules or principles). We may
reverse a trial court’s judgment based on an error in the admission or exclusion of
evidence only if we conclude the error was reasonably calculated to cause and
–9–
probably did cause rendition of an improper judgment. See TEX. R. APP. P. 44.1(a);
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).
To prevail on a medical negligence claim, a plaintiff must show (1) a duty
requiring the defendant to act according to a certain standard of care, (2) a breach of
the applicable standard of care, (3) injury or harm to the plaintiff, and (4) a causal
connection between the breach of the applicable standard of care and the injury or
harm. Taylor v. Baylor Scott & White Med. Ctr.-Frisco, No. 05-20-00352-CV, 2022
WL 405896, at *3 (Tex. App.—Dallas Feb. 10, 2022, no pet.) (mem. op.). Expert
testimony is ordinarily required to establish medical negligence. Chester v. El-
Ashram, 228 S.W.3d 909, 911 (Tex. App.—Dallas 2007, no pet.).
Analysis
In a single issue, Ms. Michal asserts the trial court “erred in granting
[Nexion’s] no-evidence motion for summary judgment based on its exclusion of the
unsworn declaration of Gregg Davis, M.D.” Ms. Michal argues (1) Dr. Davis was
properly designated as an expert at the time of the summary judgment hearing;
(2) the trial court abused its discretion by denying her motion for leave to late-file
summary judgment evidence; and (3) her summary judgment evidence established
the elements of medical negligence to defeat a no-evidence motion for summary
judgment.
We begin with the timeliness of Ms. Michal’s expert designation. Under Texas
Rule of Civil Procedure 193.6, an affidavit by a witness not timely identified is
–10–
generally inadmissible “unless the court finds that: (1) there was good cause for the
failure . . . or (2) the failure . . . will not unfairly surprise or unfairly prejudice the
other parties.” TEX. R. CIV. P. 193.6(a). “A finding of good cause or the lack of unfair
surprise or unfair prejudice must be supported by the record.” Id. 193.6(b). “Courts
of appeals considering whether a trial court granted leave commonly—and
correctly—examine the record for ‘an affirmative indication that the trial court
permitted the late filing.’” B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256,
259 (Tex. 2020).
Nexion asserts that though its motion to strike Dr. Davis’s designation as
untimely “was at first denied and the filing deemed timely,” the trial court “withdrew
that order after the summary judgment hearing and before its order granting the no-
evidence summary judgment motion.” Nexion argues it objected to Dr. Davis’s
declaration as untimely, among other grounds, and the trial court granted Nexion’s
objections without specifying the reason. Additionally, Nexion asserts Ms. Michal
“did not request a continuance of the summary judgment hearing or trial setting, did
not seek leave to late-designate an expert witness, and did not seek leave to amend
their expert witness deadline or the scheduling order.” Nexion contends untimely
designation “is one of the bases on which the trial court may have granted [Nexion’s]
objections to Dr. Davis’ declaration” and thus constitutes an “independent basis”
supporting the summary judgment.
–11–
Ms. Michal responds in her appellate reply brief that though the trial court sua
sponte vacated one of the two March 23, 2021 orders denying Nexion’s motion to
strike Dr. Davis’s designation, the court “left the other order in place” and Nexion
“has not sought to cross-appeal it.” Ms. Michal argues that “no reasoning exists for
this Court to infer that the lower court’s order [sustaining Nexion’s April 26, 2021
objections] was based on reasoning that would create a direct conflict with a prior
order” and “[i]t makes no sense that Ms. Michal would have to file a separate Motion
for Leave to Late Designate Dr. Davis following an order denying [Nexion’s]
Motion to Strike, when the Court was already required to determine those same
issues within the Motion to Strike itself.” Ms. Michal also asserts the remaining
March 23, 2021 order denying Nexion’s motion to strike “implicitly” deemed there
was good cause or no unfair prejudice regarding the expert designation.
As described above, Ms. Michal designated Dr. Davis as an expert on January
6, 2022, which Nexion contended did not comply with the discovery plan’s
November 9, 2020 deadline. The record shows Ms. Michal also filed January 15,
2021 and April 21, 2021 motions to compel discovery, asserting Nexion had “stalled
this litigation by refusing to provide documents that would reasonably allow this
case to proceed in a meaningful fashion” and describing particular examples.
Both of the March 23, 2021 orders denying Nexion’s motion to strike bore the
trial judge’s handwritten signature. One order stated, “The Court hereby deems
Plaintiffs’ Designation of Expert Witness Gregg Davis M.D. timely, and deems no
–12–
prejudice to Defendants has occurred by serving the expert designation on January
6, 2021.” The other order stated, “Upon consideration of [Nexion’s motion to strike
Dr. Davis] review of the evidence on file, any responses thereto, and arguments of
counsel, the Court is of the opinion that the Motion should be DENIED.” On April
29, 2021, the trial court vacated the first order described above without further
explanation. On May 14, 2021, the trial court signed an order sustaining Nexion’s
April 26, 2021 objections to Ms. Michal’s summary judgment evidence without
stating a basis.
Nothing in the record demonstrates or suggests that the trial court’s vacating
of only one of the two orders was inadvertent or that the trial court did not intend the
remaining order to be valid. Additionally, the allegations in Ms. Michal’s motions to
compel discovery support implicit findings of good cause or lack of unfair surprise
or prejudice. See Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380, 384
(Tex. App.—Dallas 2003, pet. denied) (concluding finding of good cause or no
unfair surprise was implicit in trial court’s permitting witness to testify); Capital
Metro. Transp. Auth. v. Cent. of Tenn. Ry. & Navigation Co., Inc., 114 S.W.3d 573,
583 (Tex. App.—Austin 2003, pet. denied) (same).
We conclude the record shows “an affirmative indication” that the trial court
permitted the January 6, 2021 designation of Dr. Davis as an expert witness. See
Steak N Shake, 598 S.W.3d at 259. We cannot agree with Nexion that the record
demonstrates otherwise or that further action by Ms. Michal was required to effect
–13–
the designation. On this record, we reject Nexion’s contention that the trial court’s
summary judgment can properly be affirmed based on untimeliness of Ms. Michal’s
expert witness designation. See id.; see also Torres v. Unauthorized Practice of Law
Comm. for Supreme Court of Tex., No. 05-21-00651-CV, 2022 WL 4115487, at *3
(Tex. App.—Dallas Sept. 9, 2022, no pet.) (mem. op.) (rejecting appellant’s
unsupported contention regarding basis for trial court’s summary judgment).
Next, we address Ms. Michal’s assertion that the trial court abused its
discretion by denying her motion for leave to late-file summary judgment evidence.5
“Summary judgment evidence may be filed late, but only with leave of court.”
Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). A motion for leave
to file late summary judgment evidence should be granted when the nonmovant
establishes good cause by showing (1) the failure to timely file was not intentional
or the result of conscious indifference, but the result of accident or mistake, and
(2) allowing the late filing will occasion no undue delay or otherwise injure the party
seeking summary judgment. Carpenter, 98 S.W.3d at 684; see also K.W. Ministries,
Inc. v. Auction Credit Enter., LLC, No. 05-14-01392-CV, 2016 WL 1085227, at *2
5
Nexion asserts Ms. Michal “failed to properly preserve this error because a formal request for a
continuance was necessary.” In support of that argument, Nexion cites cases involving parties requesting
additional opportunity for discovery or seeking to make unspecified changes to improper opinions in an
affidavit. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Jordan v. Tindel, No. 05-
96-00427-CV, 1998 WL 12669, at *9 (Tex. App.—Dallas Jan. 15, 1998, no pet.) (not designated for
publication). Because the motion here sought only consideration of already-obtained evidence described in
the declaration, those cases are inapposite. Nexion cites no authority, and we have found none, requiring a
request for a continuance to preserve error in this circumstance.
–14–
(Tex. App.—Dallas Mar. 21, 2016, no pet.) (mem. op.) (party seeking to file late
summary judgment evidence has burden to establish Carpenter requirements).
Ms. Michal argues in her appellate brief that she satisfied both requirements
because (1) “it was reasonable for [her] to believe that the inclusion of these
documents was neither required nor necessary” and (2) allowing the evidence would
have “created no undue delay and would not have injured Pleasant Valley in any
way.” Her first argument does not comport with her assertion in the trial court that
the evidence in question was “inadvertently left out of” the summary judgment
response. Nor does the record show she addressed lack of undue delay or injury in
the trial court. Thus, the trial court did not abuse its discretion to the extent it
determined she did not satisfy those requirements.
But in addition to requesting leave to late-file the evidence as attachments,
Ms. Michal’s motion included a request that the trial court take judicial notice of Mr.
Michal’s death certificate. Ms. Michal contends the trial court abused its discretion
by “ignoring the plain text of multiple statutes and rules” and “sustaining [Nexion’s]
objection to the death certificate.” According to Ms. Michal, the trial court “should
have permitted supplementation of the summary judgment record with the death
certificate.” We agree.
At any stage of a proceeding, a court “may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” TEX. R. EVID.
–15–
201(b), (d). The court “must take judicial notice if a party requests it and the court
is supplied with the necessary information.” Id. 201(c). The Texas Vital Statistics
Act provides that “the state registrar shall supply to a properly qualified applicant,
on request, a certified copy of a record . . . of a birth, death, or fetal death registered
under this title.” TEX. HEALTH & SAFETY CODE § 191.051. A copy of a death record
registered under that title that is certified by the state registrar “is prima facie
evidence of the facts stated in the record.” Id. § 191.052. “A record of a birth, death,
or marriage, if reported to a public office in accordance with a legal duty” is not
excluded by the rule against hearsay. TEX. R. EVID. 803(9); see also Tex. Workers’
Comp. Comm’n v. Wausau Underwriters Ins., 127 S.W.3d 50, 61 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied) (stating that Rule 803(9) “provides an
alternative avenue of admissibility for death certificates, in addition to section
191.052 of the Texas Health and Safety Code”).
Nexion contends Ms. Michal failed to preserve error on “any issue related to
Mr. Michal’s alleged death certificate” because (1) “her arguments on appeal fail to
match those she made in the trial court”; (2) she relies on “statutory and evidentiary
rule references” made for the first time in her “untimely amended Motion for New
Trial”; (3) she “never sought general admission into evidence of the death certificate,
only that it be attached to Dr. Davis’s declaration”; and (4) “there is no express or
implied ruling on the judicial notice request.” Alternatively, Nexion argues the trial
court “did not abuse its discretion in excluding Mr. Michal’s death certificate”
–16–
because “[t]here is no information about where this document came from” and
though it “appears” to be a facsimile of an original document, it is “poor-quality”
and “is only produced in greyscale” without the blue security border its provisions
describe. According to Nexion, “These unanswered questions would rightly give any
judge pause about taking judicial notice.” Additionally, Nexion contends any error
in excluding the death certificate was harmless because the trial court “properly
granted no-evidence summary judgment on other grounds—that there was no
competent expert testimony to raise a fact issue.”
As to error preservation, the portion of Ms. Michal’s appellate complaint that
we address here cites the same bases she relied on prior to her motion for new trial,
including the “Rules of Evidence” and Texas Health and Safety Code section
191.051. See TEX. R. APP. P. 38.1(f) (“The statement of an issue or point will be
treated as covering every subsidiary question that is fairly included.”). Also, the
record shows the relief sought in Ms. Michal’s motion for leave to late-file summary
judgment evidence was not limited to attaching evidence to Dr. Davis’s declaration,
but also included a separate request for judicial notice of the death certificate.
Further, because the trial court’s May 14, 2021 order stated it denied Ms. Michal’s
“Motion for Leave to Late-File Summary Judgment Evidence,” which included both
requests, we cannot agree with Nexion that there was “no express or implied ruling
on the judicial notice request.”
–17–
If a party requests it and the court is supplied with the necessary information,
the court “must take judicial notice” of a fact for which judicial notice is proper, i.e.,
“that is not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” TEX. R.
EVID. 201(b)–(c). Here, Nexion objected to the death certificate on the grounds that
it was hearsay, unauthenticated, and “not certified.” Despite the document’s alleged
“poor quality” and the fact that it is a grayscale copy, all pertinent entries and
informational portions are easily readable. To the extent Ms. Michal was required to
show application of a hearsay exception, (1) her motion asserted the death certificate
was a “public and readily available document” and (2) the death certificate shows
on its face that it is a record of vital statistics and therefore subject to Rule 803(9)’s
hearsay exception. See TEX. R. EVID. 803(9). Moreover, the document clearly states
it is a “certification” and “a true and correct reproduction of the original record”
issued pursuant to section 195.051. See TEX. HEALTH & SAFETY CODE §§ 195.051–
.052. On this record, we conclude the trial court abused its discretion by not granting
Ms. Michal’s request for judicial notice as to Mr. Michal’s death certificate. See id.;
TEX. R. EVID. 201(b)–(c); cf. United States v. Brocato, 4 F.4th 296, 304 (5th Cir.
2021) (noting that death certificate is “a document subject to judicial notice”).
In light of that conclusion, we now address together (1) Nexion’s assertion
that any error regarding refusal to take judicial notice of the death certificate was
harmless and (2) Ms. Michal’s assertion that her summary judgment evidence
–18–
established the elements of medical negligence to defeat a no-evidence motion for
summary judgment.
According to Nexion, without the Medical City records, “Dr. Davis’
conclusions about Mr. Michal’s death and its causes are conclusory and
inadmissible” because those omitted records “describe the cause and nature of the
alleged injury and death.” Nexion asserts “the failure to include those foundational
records rendered the declaration conclusory,” a “substantive defect” that Ms. Michal
was not entitled to cure.6
The record shows Dr. Davis’s declaration described breach of the applicable
standards of care based on the Pleasant Valley medical records. Additionally,
paragraphs 16, 19, and 22 of his declaration describe a causal connection between
the alleged breach and Mr. Michal’s injury or harm. Though those three paragraphs
rely in part on the contents of the Medical City records, the critical causational
underpinning of those paragraphs is that Mr. Michal died of “sepsis” as a result of
Nexion’s breach of applicable standards of care. The cause of death is stated in Mr.
6
Nexion’s appellate argument also includes an assertion that the trial court “properly excluded” the
Pleasant Valley records that Nexion produced to Ms. Michal during discovery because those records were
hearsay and not properly authenticated. Inadmissibility on those grounds is immaterial because those
records were attached to Dr. Davis’s declaration. See TEX. R. EVID. 703 (“An expert may base an opinion
on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If
experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion
on the subject, they need not be admissible for the opinion to be submitted.”); see also Seim v. Allstate Tex.
Lloyds, 551 S.W.3d 161, 163 (Tex. 2018) (“The same evidentiary standards that apply in trials also control
the admissibility of evidence in summary-judgment proceedings.”). Additionally, the record does not show
an opportunity to cure those purported defects of form, which the rules of civil procedure require. See, e.g.,
TEX. R. CIV. P. 166a(f); 193.7. Thus, the trial court abused its discretion to the extent it excluded the Pleasant
Valley records.
–19–
Michal’s death certificate. Though the Medical City records apparently contain
unique details pertinent to the aspiration pneumonia diagnosis, the Pleasant Valley
records and the death certificate, without more, provide a basis for Dr. Davis’s
conclusions regarding inadequate care and causation.7 Thus, at the very least, the
declaration is not conclusory. See Acrey v. Kilgore & Kilgore, PLLC, No. 05-15-
01229-CV, 2017 WL 1173830 at *3 (Tex. App.—Dallas Mar. 30, 2017, no pet.)
(mem. op.) (explaining that failure to attach records referenced in affidavit renders
affidavit conclusory where those records “are what provides the affidavit with a
factual basis”); see also Huntress v. Hickory Trail Hosp., L.P., No. 05-19-00892-CV,
2020 WL 2781795, at *7 (Tex. App.—Dallas May 29, 2020, pet. denied) (mem. op.)
(concluding affidavit in medical negligence case was not conclusory where relied-
on medical records that should have been attached were otherwise part of summary
judgment record); Lopez v. Carrillo, 940 S.W.2d 232, 235 (Tex. App.—San Antonio
1997, writ denied) (noting that hearsay statements in otherwise competent affidavit
did not render affidavit conclusory). Accordingly, Ms. Michal’s failure to attach
every record Dr. Davis referred to was not a defect of substance, but instead a defect
7
Though Ms. Michal contends on appeal that the Pleasant Valley records, alone, provided an adequate
basis for causation, we disagree. Those records do not show Mr. Michal’s cause of death or address his
treatment and diagnoses after he left Pleasant Valley on June 18, 2018. Thus, those records provide no basis
for a causal link between Nexion’s alleged breach of the applicable standards of care and Mr. Michal’s June
2018 hospital treatment and death.
–20–
of form, which required an opportunity to cure.8 See Hewitt, 353 S.W.3d at 307–08;
Brown, 145 S.W.3d at 753; see also EOG Res., Inc. v. Wall, 160 S.W.3d 130, 134
(Tex. App.—Tyler 2005, no pet.) (concluding trial court erred by not allowing
appellant to supplement evidence to cure formal defects in earlier-submitted
affidavits, where appellant moved for leave before summary judgment was entered).
Additionally, for the same reasons described above, the record shows that the
death certificate and Dr. Davis’s declaration, with any formal defects cured, would
provide more than a scintilla of evidence of the applicable standards of care, breach
of those standards, and a causal connection between the breach and Mr. Michal’s
injury or harm, precluding no-evidence summary judgment. Thus, the trial court’s
error probably caused the rendition of an improper judgment. See TEX. R. APP. P.
44.1(a) (error is reversible if it “probably caused the rendition of an improper
judgment”).
We conclude the trial court reversibly erred by improperly (1) declining to
take judicial notice of Mr. Michal’s death certificate and (2) denying Ms. Michal the
opportunity to cure formal defects regarding the records referenced in Dr. Davis’s
declaration.
8
Nexion contends Ms. Michal “failed to preserve error on the trial court’s exclusion of the declaration”
because she “neither requested the opportunity to cure this defect nor moved for a continuance,” but instead
“merely sought to add evidence to her reply” and “did not offer an amended affidavit or declaration that
properly attached the records relied on.” Ms. Michal’s motion to late-file summary judgment evidence cited
the portion of Rule 166a(f) regarding supplementation of affidavits and asked that the evidence in question
be “attached.” We conclude Ms. Michal preserved error regarding exclusion of the declaration for failure
to attach the required documents. See TEX. R. APP. P. 33.1(a).
–21–
We reverse the trial court’s judgment as to Ms. Michal’s medical negligence
claim, otherwise affirm the judgment, and remand this case to the trial court for
further proceedings consistent with this opinion.
/Cory L. Carlyle//
210693f.p05 CORY L. CARLYLE
JUSTICE
–22–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHEILA MICHAL, On Appeal from the 160th Judicial
INDIVIDUALLY AND AS A District Court, Dallas County, Texas
REPRESENTATIVE OF THE Trial Court Cause No. DC-20-05250.
ESTATE OF ROBERT MICHAL, Opinion delivered by Justice Carlyle.
Appellant Justices Molberg and Partida-Kipness
participating.
No. 05-21-00693-CV V.
NEXION HEALTH AT GARLAND,
INC. D/B/A PLEASANT VALLEY
HEALTHCARE AND
REHABILITATION CENTER AND
NEXION HEALTH OF TEXAS,
INC., Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We AFFIRM the trial
court’s judgment as to appellant’s corporate and gross negligence claims,
REVERSE the judgment as to appellant’s medical negligence claim, and
REMAND this case to the trial court for further proceedings consistent with this
opinion.
It is ORDERED that appellant SHEILA MICHAL, INDIVIDUALLY AND
AS A REPRESENTATIVE OF THE ESTATE OF ROBERT MICHAL recover her
costs of this appeal from appellees NEXION HEALTH AT GARLAND, INC.
D/B/A PLEASANT VALLEY HEALTHCARE AND REHABILITATION
CENTER AND NEXION HEALTH OF TEXAS, INC.
Judgment entered this 4th day of November, 2022.
–23– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482447/ | Affirmed as Modified and Opinion Filed November 4, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00319-CR
MARCELINO LOPEZ-MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-83185-2020
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Partida-Kipness
Appellant Marcelino Lopez-Martinez appeals his conviction for continuous
sexual assault of a child. In three appellate issues, Lopez-Martinez contends (1) the
judgment is incorrect by stating he waived his right to appeal; (2) the trial court erred
by allowing the State to ask leading questions to the complaining witness; and (3)
the evidence was insufficient to prove the acts were committed thirty days or more
apart. We affirm as modified.
PROCEDURAL HISTORY
Lopez-Martinez was indicted for continuous sexual assault of a child based
on allegations that he abused his former girlfriend’s daughter, G.Z.1 See TEX. PENAL
CODE § 21.02. The indictment alleged that on or about October 15, 2016 through
March 1, 2018, Lopez-Martinez, during a period of thirty days or more, committed
two or more sexual acts, namely aggravated sexual assault and/or indecency with a
child by sexual contact, against G.Z., a child under the age of fourteen. Lopez-
Martinez pleaded not guilty and proceeded to trial. A jury found Lopez-Martinez
guilty of the charged offense and sentenced him to forty years' imprisonment. This
appeal followed.
BACKGROUND
G.Z.’s mother, M.Z., was first made aware of the abuse following a family
party in March 2017, where G.Z. was seen inappropriately touching her cousin.
Following that incident, G.Z. admitted to her mother that Lopez-Martinez had
assaulted her. At trial, M.Z. testified she had dated Lopez-Martinez, but they ended
their relationship prior to G.Z.’s outcry. M.Z. stated she noticed G.Z.’s personality
changed midway through the relationship, but was unaware as to why. Although
G.Z. told M.Z. about the abuse in 2017, M.Z. waited to file a police report until
December 2018. M.Z. stated she waited to make a police report because G.Z. did not
1
To protect the identity of the minor complainant and any child witnesses, we use initials or pronouns
to identify G.Z. See TEX. R. APP. P. 9.8(b)(2).
–2–
want her to go to the police, M.Z. wanted G.Z. to have the dates “straight,” and G.Z.
was not in a “good emotional state” at the time she made her outcry. M.Z. also
explained she wanted to wait until her divorce from G.Z.’s father was final so he
could not try to gain custody of G.Z. After her divorce was finalized in August 2018,
M.Z. reported the abuse to the police in December 2018.
Eligio Molina, the forensic supervisor for the Collin County Children’s
Advocacy Center (CAC), testified both as an expert witness and as the outcry
witness2 regarding his interview with G.Z. Molina testified he conducted a
“minimally informed interview” of G.Z. in January 2019, when she was ten years
old. Molina explained a “minimally informed interview” meant he would know the
type of allegation made by the child but no additional facts prior to the start of the
interview. He described G.Z. as crying and emotional before she entered the
interview room and throughout the interview. Molina also explained G.Z.’s
demeanor would change depending on the topic of conversation: she was happy
when describing things she enjoyed and would start crying when talking about the
abuse. He was concerned by how traumatized G.Z. seemed and did not see signs of
coaching regarding the abuse.
G.Z. relayed three instances of abuse during the interview with Molina. She
talked about one instance where Lopez-Martinez and M.Z. were in the kitchen and
2
An outcry witness may testify regarding hearsay statements from a child complainant regarding sexual
abuse when properly designated by the trial court. See TEX. CODE CRIM. PROC. art. 38.072.
–3–
Lopez-Martinez came to her bedroom. G.Z. said Lopez-Martinez touched her
“toward the middle of her tissue, which was what she called her female sexual
organ.” She explained Lopez-Martinez used his fingers and “he went underneath her
underwear and touched her on the skin with his fingers,” moving in a circular
motion. G.Z. tried to move his arm away from her, and Lopez-Martinez asked her in
Spanish, “What are you doing?” She told him to “get off” of her and he stopped
because M.Z. called for him from the kitchen. Molina said G.Z. thought she was
eight or nine years old when this happened and it was in the fall.
Molina testified to another incident G.Z. recalled where she was home alone
and Lopez-Martinez was there to paint a bathroom. M.Z. had left to pick up food
and G.Z. was watching television in her room. Lopez-Martinez came into her room
and pulled down her pants and underwear to her mid-thigh. He began touching her
“tissue” with his fingers and then began licking her “tissue” with his tongue. G.Z.
told Molina she was “grossed out.” Lopez-Martinez stopped because he heard G.Z.’s
brother return from school and open the front door. She recalled that time Lopez-
Martinez told her not to tell M.Z., and she was “too scared to tell anyone” because
“she thought they would make fun of her.”
Molina testified G.Z. described a third incident that she thought happened
when she was eight years old and in the fall. G.Z. remembered being on the sofa,
reading a book, when Lopez-Martinez came and touched her on her “tissue” with
his fingers. She got up and went to the bathroom to get him to stop.
–4–
G.Z. testified at trial to the same three incidents Molina described. She agreed
M.Z. did not go to the police right away because G.Z. did not want her to. She stated
she did not tell her father because she had seen her parents fight before and felt “none
of this would have happened” to her had her father not left them.
ANALYSIS
Lopez-Martinez brings three issues on appeal. First, he complains the
judgment incorrectly states he waived his right to appeal. Next, he asserts the
evidence was insufficient to show the incidents of abuse occurred more than thirty
days apart. Finally, he argues the trial court erred by allowing the State to ask leading
questions of G.Z. We will address his substantive complaints first.
I. Sufficiency of the Evidence
Lopez-Martinez asserts the evidence does not support the finding that the
incidents in question happened more than thirty days apart, as required by the
continuous sexual assault statute. We review a sufficiency challenge by considering
all of the evidence in the light most favorable to the verdict and determine, whether,
based on the evidence and reasonable inferences therefrom, a rational jury could
have found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 318—19 (1979); Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010). As the reviewing court, we defer to the jury in undertaking
their responsibility to “‘fairly resolve conflicts in testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.’” Williams v.
–5–
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007)). The Court balances this deference to the jury
with our duty to ensure the evidence “actually supports a conclusion that the
defendant committed the crime that was charged.” Williams, 235 S.W.3d at 750. We
resolve evidentiary inconsistencies in favor of the verdict. Curry v. State, 30 S.W.3d
394, 406 (Tex. Crim. App. 2000).
A person seventeen years or older commits the offense of continuous sexual
assault of a child if, “during a period that is 30 or more days in duration, the person
commits two or more acts of sexual abuse” against a child younger than fourteen
years of age. TEX. PENAL CODE § 21.02(b)(1). Lopez-Martinez does not dispute the
evidence is legally sufficient to show both he and G.Z. were the required ages during
the time period in question or that he committed “two or more acts of sexual abuse”
against G.Z. Id. § 21.02(b)(1). He argues the evidence is legally insufficient to prove
that he committed two or more acts of sexual abuse “during a period that is 30 days
or more in duration.” Id. We disagree.
G.Z. and Molina testified regarding three incidents of abuse and G.Z. stated
all three incidents occurred when she was eight and nine years old. G.Z. recalled one
incident occurred in November when she was eight years old, another occurred “in
the fall,” and the third incident occurred in “the spring.” A reasonable juror could
have inferred that the incidents occurred over a span of more than thirty days by
G.Z.’s statements that one incident happened in the fall and one happened in the
–6–
spring. See Williams, 235 S.W.3d at 750. Moreover, the State “need not prove the
exact dates of abuse, only that there were two or more acts of sexual abuse that
occurred during a period that was thirty or more days in duration.” Buxton v. State,
526 S.W.3d 666, 676 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). “[M]embers
of the jury are not required to agree unanimously on which specific acts of sexual
abuse were committed by the defendant or the exact date when those acts were
committed.” TEX. PENAL CODE § 21.02(d). Although G.Z. was not specific as to her
age at the time of each incident, it is the “province of the jury to resolve conflicts in
the evidence, and the jury may reject any part or all of a witness’s testimony in order
to reconcile conflicts.” Pelcastre v. State, No. 14-21-00449-CR, –––S.W.3d–––, ––
–, 2022 WL 10208147, at *2 (Tex. App.—Houston [14th Dist.] Oct. 18, 2022, no
pet. h.). Here, the jurors were informed of G.Z.’s date of birth and could have
estimated when the abuse occurred from her date of birth and testimony that all three
incidents occurred when she was eight and nine years old. Under this record, we
conclude the evidence was sufficient to support the findings that Lopez-Martinez
committed two or more acts of abuse over thirty days apart. We overrule this issue.
II. Witness Testimony
Lopez-Martinez next complains the trial court erred by allowing the State to
elicit testimony from G.Z. through the use of leading questions. The State maintains
the questions were not improper, similar evidence came in through Molina, and
Lopez-Martinez did not preserve error on his second set of challenged testimony.
–7–
The Rules of Evidence generally prohibit leading questions on direct
examination except where such questions may be necessary to develop the witness’s
testimony. TEX. R. EVID. 611(c). Leading questions are questions that suggest the
desired answer, instruct the witness how to answer, or put words into the witness’s
mouth to be echoed back to the prosecutor. Wheeler v. State, 433 S.W.3d 650, 655
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Newsome v. State, 829 S.W.2d
260, 269 (Tex. App.—Dallas 1992, no pet.). The mere fact a question may be
answered with a “yes” or “no” does not cause it to be a leading question. Newsome,
829 S.W.2d at 269; Rodriguez v. State, No. 05-18-01448-CR, 2020 WL 881008, at
*4 (Tex. App.—Dallas Feb. 24, 2020, no pet.) (mem. op., not designated for
publication). It is only when the question suggests which answer is desired that it
becomes a leading question. Newsome, 829 S.W.2d at 269. However, with a child
witness, a trial court is given some leeway, and the rule against leading questions is
somewhat relaxed. Keller v. State, 604 S.W.3d 214, 225 (Tex. App.—Dallas 2020,
pet ref’d).
We review a trial court’s decision to allow a prosecutor to lead a State’s
witness for an abuse of discretion. Hernandez v. State, 643 S.W.2d 397, 400 (Tex.
Crim. App. 1982); Rodriguez, 2020 WL 881008, at *5. Abuse of discretion cannot
usually be shown unless a defendant can demonstrate he was unduly prejudiced by
virtue of such question. Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000).
Lopez-Martinez challenges the following extended exchange:
–8–
State: Okay. Tell me about another time that you remember,
and—sorry, let me ask you this: Was there ever a time that
it happened where [Lopez-Martinez] touched you with
something other than his fingers?
Defense: Your Honor, I’m going to object to that leading
question as well. It’s been asked and answered, no,
and I don’t know, and now it’s leading.
State: It was not asked and answered.
Court: Overruled.
State: All right. [G.Z.], did he ever touch you with something
different other than his fingers?
G.Z. No.
State: Did he ever use another part of his body to touch your
body?
G.Z. No.
....
State: Okay. Was there ever a time that he used his tongue on
your private part?
Defense: Your Honor, objection as to absolutely leading.
Court: Sustained.
Defense: And ask that that be struck from the record.
Court: The jury will disregard the last question.
State: Was there ever a time that he used something other than
his hands on your body?
Defense: Your Honor, objection—
–9–
G.Z. Yes.
Defense: ––as to leading, again.
Court: Overruled.
State: You said, “yes”?
G.Z. Yes.
Lopez-Martinez argues the previous exchange as a whole constitutes a leading
question. We disagree and conclude that, to the extent some of the questions posed
by the State were leading, they were necessary to develop the testimony of a scared,
child witness. See Keller, 604 S.W.3d at 225. It was apparent throughout the
testimony of G.Z. that, although she was emotional at times during her testimony,3
she was able to articulate what had occurred in the three incidents she described and
the State’s questions did not create her version of events.
Lopez-Martinez also complains the State continued to ask leading questions
when trying to clarify a time frame:
State: Okay. And so did all these times—or, sorry, did these
times that he touched you, was that all in one month, or
over several months?
Defense: And, Your Honor, objection as to asked and
answered. This question—this witness has already
answered inside of a month, and then she mentioned
seasons.
State: She’s a child. We’re trying to clarify, Judge.
3
G.Z. agreed during her testimony that she was having a “hard time answering” and required the State
to give her tissues at one point, indicating she became emotional.
–10–
Court: Well, since she has—since those responses seem to
be in conflict, I’ll allow the question so we can get
some clarification.
State: Okay. So when he would touch you with his fingers, was
that all in one month, or was it during several different
months.
G.Z. Several months.
State: Several months?
G.Z. Yeah.
State: Okay. And how do you remember that? How—you said
that you were mostly eight; is that right?
G.Z. Yes.
State: Did it also happen when you were nine?
G.Z. Yes.
Lopez-Martinez did not object to those additional clarifying questions asked
by the State and, therefore, failed to preserve error concerning that exchange. TEX.
R. APP. P. 33.1. Regardless, although the State asked questions that could be
considered leading or bordering on leading, they were asked to help streamline the
examination of a child witness testifying about traumatic events that had occurred
years prior. See Keller v. State, 604 S.W.3d at 225; Padilla v. State, 278 S.W.3d 98,
106 (Tex. App.—Texarkana 2009, pet ref’d) (no abuse of discretion to allow State
to ask young victim of sexual abuse leading questions where she had to be reminded
more than once to speak louder, appeared reluctant to testify, had trouble
–11–
remembering events that occurred over a year before trial, and was emotional). We
conclude the trial court properly permitted the questions Lopez-Martinez complains
of on appeal because they helped clarify G.Z.’s previous responses.
Moreover, even if the trial court should have sustained objections to the
State’s questions, Lopez-Martinez is not entitled to reversal because similar
testimony was admitted through Molina. His testimony concerning his interview
with G.Z. included the same details provided by G.Z. at trial. Therefore, the evidence
was before the jury before G.Z. testified and Lopez-Martinez cannot establish he
was unduly prejudiced.
Under these circumstances, we cannot say the trial court abused its discretion
or acted outside a zone of reasonable disagreement in allowing somewhat leading
questions during the examination of G.Z. See Keller, 604 S.W.3d at 225. We
overrule this issue.
III. Modification of the judgment
In his first issue, Lopez-Martinez contends that the judgment in this case is
incorrect where it contained the following finding under the “special findings”
section: APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED. The
State agrees with Lopez-Martinez that the judgment is incorrect.
When the trial court pronounced Lopez-Martinez’s sentence, it stated: “I also
need to advise you that you have the right to appeal the decision of the jury—the
verdict of the jury, and if you cannot afford an attorney, an attorney will be appointed
–12–
for you.” The trial court’s certification of defendant’s right to appeal states “I certify
that this criminal case is not a plea-bargain case, and the defendant has the right of
appeal.”
We have the power to modify a judgment to speak the truth when we have the
necessary information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d
26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref’d) (en banc). When there is a conflict between the oral
pronouncement of a sentence and the written judgment, the oral pronouncement
controls. Shuler v. State, 650 S.W.3d 683, 686 (Tex. App.—Dallas 2022, no pet.)
(citing Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)). When the oral
pronouncement and the written judgment conflict, the remedy is to reform the
judgment. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003).
Under this record, we conclude the trial court did not find Lopez-Martinez had
waived his right to appeal.
We sustain this issue and modify the judgment to remove “Appeal Waived.
No Permission to Appeal Granted” from the special findings section of the judgment.
CONCLUSION
Under this record, we conclude the evidence was sufficient to support a
finding that Lopez-Martinez committed two or more acts of abuse during a period
of more than thirty days as required by the statute, and the trial court did not abuse
its discretion when allowing leading questions. Accordingly, we sustain Lopez-
–13–
Martinez’s first issue, overrule his second and third issues, and affirm the judgment
as modified.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b).
210319F.U05
–14–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARCELINO LOPEZ-MARTINEZ, On Appeal from the 199th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 199-83185-
No. 05-21-00319-CR V. 2020.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness. Justices Pedersen, III and
Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
“Appeal Waived. No Permission to Appeal Granted” is removed from the special
findings section of the trial court’s judgment.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 4th day of November, 2022.
–15– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482445/ | DISMISSED and Opinion Filed November 4, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01138-CV
TRISTAN MICHAEL SIMON, Appellant
V.
JENNIFER NICOLE SIMON, Appellee
On Appeal from the 330th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-21-10641
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Pedersen
Opinion by Chief Justice Burns
Appellant filed a notice of appeal to challenge a default judgment for divorce.
Before the Court is appellant’s motion to dismiss the appeal because the trial court
has granted his motion for new trial. We grant the motion and dismiss the appeal.
See TEX. R. APP. P. 42.1(a)(1).
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
221138F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TRISTAN MICHAEL SIMON, On Appeal from the 330th District
Appellant Court, Dallas County, Texas
Trial Court Cause No. DF-21-10641.
No. 05-22-01138-CV V. Opinion delivered by Chief Justice
Burns. Justices Molberg and
JENNIFER NICOLE SIMON, Pedersen participating.
Appellee
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
It is ORDERED that appellee Jennifer Nicole Simon recover her costs of
this appeal from appellants Tristan Michael Simon.
Judgment entered November 4, 2022.
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350136/ | Filed 12/23/22 Save 30th Street Parking v. City of San Diego 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
SAVE 30TH STREET PARKING, D079752
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00042552-CU-TT-CTL)
CITY OF SAN DIEGO et al.,
Defendants and Respondents;
ORTIZ CORPORATION,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Affirmed.
Craig A. Sherman, for Plaintiff and Appellant.
Mara W. Elliott, City Attorney, M. Travis Phelps, Assistant City
Attorney, and Benjamin P. Syz, Deputy City Attorney, for Defendants and
Respondents.
No appearance for Real Party in Interest and Respondent.
This litigation involves a challenge to an approval by the City of San
Diego (the City) of a public works project to install protected bicycle lanes on
30th Street as it runs through the North Park neighborhood. Specifically,
appellant Save 30th Street Parking (Save 30th Street) appeals from the trial
court’s denial of its petition for writ of mandate, which alleged that the City
did not comply with the California Environmental Quality Act (CEQA; Pub.
Resources Code, § 21000 et seq.) before approving the project and that the
project is inconsistent with the City’s planning documents in violation of the
Planning and Zoning Law (Gov. Code, § 65000 et seq.).
We conclude that the City did not violate CEQA in approving the
project, and that the project is consistent with the relevant planning
documents. Accordingly, we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in late 2018, in connection with a public works project to
replace a water pipeline, which would involve street resurfacing, the City
identified a potential opportunity to implement bicycle lanes along 30th
Street in the North Park neighborhood. 30th Street has one lane of traffic in
each direction and, at the time, was marked with “sharrows,” indicating that
motorists must share the road with bicyclists. The City’s engineers prepared
a study setting forth multiple options for implementing bicycle lanes on 30th
Street, each of which would require the loss of at least some of the parking
spaces along 30th Street. On May 16, 2019, the City’s mayor issued a
memorandum which endorsed “Option A” proposed by the City’s engineers,
involving the installation of a “Class IV” protected bikeway and the loss of
2
420 parking spaces (the Bikeway Project).1 The mayor also directed staff to
evaluate additional blocks of 30th Street to the north for inclusion in the
Bikeway Project.
Save 30th Street filed a petition for writ of mandate on August 13,
2019, against the City and its mayor, in his official capacity.2 The first cause
of action alleged the City had committed itself to the Bikeway Project without
first complying with CEQA. The second cause of action alleged the Bikeway
Project was inconsistent with the North Park Community Plan, the City’s
Bicycle Master Plan, and the mobility element of the City’s General Plan.
1 Bikeways are classified by the California Department of Transportation
based on their characteristics. A Class IV bikeway is dedicated for the
exclusive use of bicycles and includes a separation between the bikeway and
vehicular traffic. A Class III bikeway uses signage to provide for shared use
with motor vehicle traffic within the same travel lane, often referred to as
“sharrows.” Prior to the implementation of the Bikeway Project, 30th Street
through North Park was a Class III bikeway, as it was marked with
“sharrows.” Class II bikeways are one-way facilities on either side of a
roadway designated for exclusive or preferential bicycle travel with striping
and signage, but without the separation from vehicular traffic provided by
Class IV bikeways. Class I bikeways are off-street paved paths for the
exclusive use by bicyclists, pedestrians, and those using non-motorized modes
of travel.
2 At the time the petition was filed, the City’s mayor was Kevin
Faulconer. During the course of this litigation, Todd Gloria became the City’s
mayor. The operative version of Save 30th Street’s petition states,
“Respondent Todd Gloria is the current mayor of the City . . . and is sued
herein in his official capacity, as a continuation of the action of previous
Mayor Kevin Faulconer . . . .” Save 30th Street does not purport, in its
appellate briefing, to be pursuing an appeal regarding its claims against the
City’s mayor specifically. Further, the respondent’s brief in this appeal was
filed solely by the City (not separately including its mayor). Therefore, we
limit our analysis to whether Save 30th Street’s appeal has merit as against
the City.
3
On December 4, 2019, a plan called “Option A+” for the development of
a protected bike lane on 30th Street was presented to the City’s Mobility
Board. The revised plan extended the bicycle lane to the north as suggested
by the mayor. According to the City, it also restored some of the parking
spaces that “Option A” would have removed.3
On January 30, 2020, a memorandum by Program Manager Heidi
Vonblum in the City’s Planning Department, which was addressed to
Program Manager Everett Hauser in the City’s Transportation & Storm
Water Department, discussed the issue of whether the City was in
compliance with CEQA regarding the proposed Bikeway Project (the CEQA
memo). The CEQA memo was not a model of thoroughness or clarity with
respect to its analysis or conclusions. However, the CEQA memo generally
set forth two grounds for concluding that the City was not required to conduct
any CEQA analysis for the Bikeway Project. First, the CEQA memo
concluded that the Bikeway Project was not subject to CEQA because it was
an activity that “will not result in a direct or reasonably foreseeable indirect
physical change in the environment.” (See CEQA Guidelines, §§ 15060, subd.
(c)(2), 15378, subd. (a).)4 Second, the CEQA memo stated that the Bikeway
Project “would also implement the goals and policies of the City’s Bicycle
Master Plan and North Park Community Plan.” More specifically, it
3 The parties have not identified any portion of the administrative record
that sets forth the exact number of parking spaces that were removed from
30th Street under “Option A+.”
4 The regulations implementing CEQA are codified at California Code of
Regulations, title 14, section 15000 et seq., and are commonly referred to as
the “CEQA Guidelines.” All further references to the “CEQA Guidelines” are
to California Code of Regulations, title 14, section 15000 et seq.
4
observed that those “goals and policies were analyzed in the Final Program
Environmental Impact Report . . . for the Bicycle Master Plan . . . and the
Final [Program Environmental Impact Report] for the North Park and
Golden Hill Community Plan Updates.” The CEQA memo concluded that
“because the [Bikeway] Project is consistent with these plans, it is also
consistent with the abovementioned environmental documents.” Although
the CEQA memo did not include any specific discussion about the content
and coverage of the program environmental impact reports (program EIRs)
for the Bicycle Master Plan and the North Park and Golden Hill Community
Plan Updates to show that the Bikeway Project was within the scope of those
program EIRs, we understand the CEQA memo to have taken the position
that no further CEQA analysis was required for the Bikeway Project because
it fell within the scope of the CEQA analysis conducted in the two program
EIRs.
On May 26, 2020, Save 30th Street filed a motion seeking a preliminary
injunction to stop the City from moving forward with the Bikeway Project.
The trial court denied the motion for a preliminary injunction on August 10,
2020.
With leave of the trial court, Save 30th Street filed a supplemental
petition on August 21, 2020, which included updated factual allegations.
On November 17, 2020, the City Council approved a construction
change order to fund the water pipeline replacement project, which included
funds for the implementation of the Bikeway Project.
In December 2020, Save 30th Street again sought preliminary
injunctive relief to stop the implementation of the Bikeway Project, which the
trial court denied.
5
Save 30th Street filed the operative First Amended Petition for Writ of
Mandate on April 26, 2021. The first amended petition updated the factual
allegations and added as a real party in interest, Ortiz Corporation, which
was the construction company implementing the Bikeway Project.5
On August 19, 2021, after considering the parties’ briefing and hearing
argument, the trial court issued an order determining that Save 30th Street’s
petition lacked merit. The trial court concluded that the City was not
required to perform a CEQA analysis because the Bikeway Project was
within the scope of the program EIRs for the City’s Bicycle Master Plan and
the North Park and Golden Hill Community Plan Updates. It further
concluded that the Bikeway Project was consistent with the applicable
planning documents.
Save 30th Street appeals from the subsequently entered judgment.6
5 Real party in interest Ortiz Corporation has not appeared in this
appeal.
6 As the parties acknowledge, the Bikeway Project was installed during
the summer of 2021 and is in active use. Although the City suggested in a
single sentence in its August 24, 2022 supplemental letter brief that this
appeal may be moot because the Bikeway Project has already been
implemented, the City has not moved to dismiss this appeal on the ground of
mootness. (Cf. Wilson & Wilson v. City Council of Redwood City (2011)
191 Cal.App.4th 1559, 1576 [a project’s completion “moots an action seeking
to require preparation of an [environmental impact report] for a particular
project”]; Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th
1538, 1547, 1548 [noting that “[g]eneral principles for determining whether
an appeal is moot have been applied to CEQA cases” but pointing out that
“[s]everal courts have considered a CEQA challenge on the merits after
determining that effective relief may be granted despite partial or complete
construction of the challenged project”].) Because we conclude, in any event,
that the appeal lacks merit, and because the City has not asked us to dismiss
6
II.
DISCUSSION
A. Save 30th Street’s Contention That the City Failed to Comply With
CEQA in Approving the Bikeway Project
We first address Save 30th Street’s contention that the City failed to
comply with CEQA in approving the Bikeway Project.
1. Applicable Legal Principles
“ ‘In CEQA, the Legislature sought to protect the environment by the
establishment of administrative procedures drafted to “[e]nsure that the long-
term protection of the environment shall be the guiding criterion in public
decisions.” ’ [Citation.] At the ‘heart of CEQA’ (CEQA Guidelines, § 15003,
subd. (a)) is the requirement that public agencies prepare an [environmental
impact report (EIR)] for any ‘project’ that ‘may have a significant effect on the
environment.’ ([Pub. Resources Code,] § 21151, subd. (a); see id., §§ 21080,
subd. (a), 21100, subd. (a).) The purpose of the EIR is ‘to provide public
agencies and the public in general with detailed information about the effect
which a proposed project is likely to have on the environment; to list ways in
which the significant effects of such a project might be minimized; and to
indicate alternatives to such a project.’ (Pub. Resources Code, § 21061.) The
EIR thus works to ‘inform the public and its responsible officials of the
environmental consequences of their decisions before they are made,’ thereby
protecting ‘ “not only the environment but also informed self-government.” ’ ”
(Friends of College of San Mateo Gardens v. San Mateo County Community
College Dist. (2016) 1 Cal.5th 937, 944-945.)
the appeal, we need not, and do not, consider whether implementation of the
Bikeway Project has rendered this litigation moot.
7
A public agency’s “implementation of CEQA proceeds by way of a
multistep decision tree, which has been characterized as having three tiers.
[Citation.] First, the agency must determine whether the proposed activity is
subject to CEQA at all. Second, assuming CEQA is found to apply, the
agency must decide whether the activity qualifies for one of the many
exemptions that excuse otherwise covered activities from CEQA’s
environmental review. Finally, assuming no applicable exemption, the
agency must undertake environmental review of the activity, the third tier.”
(Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019)
7 Cal.5th 1171, 1185 (UMMP).)
With respect to the first tier, “a proposed activity is a CEQA project if,
by its general nature, the activity is capable of causing a direct or reasonably
foreseeable indirect physical change in the environment. This determination
is made without considering whether, under the specific circumstances in
which the proposed activity will be carried out, these potential effects will
actually occur. Consistent with this standard, a ‘reasonably foreseeable’
indirect physical change is one that the activity is capable, at least in theory,
of causing. [Citation.] Conversely, an indirect effect is not reasonably
foreseeable if there is no causal connection between the proposed activity and
the suggested environmental change or if the postulated causal mechanism
connecting the activity and the effect is so attenuated as to be ‘speculative.’ ”
(UMMP, supra, 7 Cal.5th at p. 1197.)7
7 As we have explained, one of the conclusions reached by the City in the
CEQA memo was that the Bikeway Project was not an activity capable of
causing a direct or reasonably foreseeable indirect physical change in the
environment and thus was not a project subject to CEQA. Although the City
advanced that theory in the trial court, in ruling on Save 30th Street’s
petition, the trial court rejected it. As the trial court explained, the loss of
8
With respect to the second tier, “[i]f the lead agency concludes it is
faced with a project, it must then decide ‘whether the project is exempt from
the CEQA review process under either a statutory exemption [citation] or a
categorical exemption set forth in the CEQA Guidelines.’ . . . If the lead
agency concludes a project is exempt from review, it must issue a notice of
exemption citing the evidence on which it relied in reaching that
conclusion. . . . The agency may thereafter proceed without further
consideration of CEQA.” (UMMP, supra, 7 Cal.5th at p. 1186.)8
parking on 30th Street due to the Bikeway Project could possibly cause a
physical change to the environment by virtue of potential changes in traffic.
(See Taxpayers for Accountable School Bond Spending v. San Diego Unified
School Dist. (2013) 215 Cal.App.4th 1013, 1051 [“as a general rule, we believe
CEQA considers a project’s impact on parking of vehicles to be a physical
impact that could constitute a significant effect on the environment”].) On
appeal, the City no longer advances the argument that the Bikeway Project
was not a project within the meaning of CEQA. In light of the City’s position
in this appeal, we proceed with our analysis by assuming, without deciding,
that the Bikeway Project is a CEQA project under the first tier of the CEQA
inquiry.
8 The CEQA memo did not identify any statutory or categorical
exemptions to CEQA that might apply to the Bikeway Project. However, the
administrative record contains a draft document, prepared by City staff,
suggesting that the City was at one point considering the applicability of the
categorical exemptions for “[t]he creation of bicycle lanes on existing rights-
of-way” (CEQA Guidelines, § 15304, subd. (h)) and alterations to existing
streets “such as the addition of bicycle facilities, including but not limited to
bicycle parking, bicycle-share facilities and bicycle lanes.” (Id., § 15301, subd.
(c); but see id., § 15300.2 [setting forth exceptions to the categorical
exemptions, including that “[a] categorical exemption shall not be used for an
activity where there is a reasonable possibility that the activity will have a
significant effect on the environment due to unusual circumstances”].) The
applicability of those exemptions has not been litigated in this proceeding.
We note, however, that in the supplemental briefing we requested regarding
the appropriate remedy in the event Save 30th Street prevailed on appeal,
9
On the third tier of the CEQA decision tree, “[e]nvironmental review is
required under CEQA only if a public agency concludes that a proposed
activity is a project and does not qualify for an exemption. In that case, the
agency must first undertake an initial study to determine whether the project
‘may have a significant effect on the environment.’ [Citations.] If the initial
study finds no substantial evidence that the project may have a significant
environmental effect, the lead agency must prepare a negative declaration,
and environmental review ends. [Citations.] If the initial study identifies
potentially significant environmental effects but (1) those effects can be fully
mitigated by changes in the project and (2) the project applicant agrees to
incorporate those changes, the agency must prepare a mitigated negative
declaration. This too ends CEQA review. [Citations.] Finally, if the initial
study finds substantial evidence that the project may have a significant
environmental impact and a mitigated negative declaration is inappropriate,
the lead agency must prepare and certify an EIR before approving or
proceeding with the project.” (UMMP, supra, 7 Cal.5th at pp. 1186-1187.)
As centrally relevant here, a variation on this decision tree exists when
an agency has previously prepared a program EIR and the current project is
within the scope of that program EIR. “A program EIR is an EIR which may
be prepared on a series of actions that can be characterized as one large
project and are related either: [¶] (1) Geographically, [¶] (2) As logical parts
in the chain of contemplated actions, [¶] (3) In connection with issuance of
rules, regulations, plans, or other general criteria to govern the conduct of a
continuing program, or [¶] (4) As individual activities carried out under the
the City stated that if it was ordered to perform further CEQA analysis, it
could conclude that those categorical exemptions apply to the Bikeway
Project. We express no view on the issue.
10
same authorizing statutory or regulatory authority and having generally
similar environmental effects which can be mitigated in similar ways.”
(CEQA Guidelines, § 15168, subd. (a).) “ ‘[A] program EIR may serve as the
EIR for a subsequently proposed project to the extent it contemplates and
adequately analyzes the potential environmental impacts of the project . . . .’ ”
(Center for Biological Diversity v. Department of Fish & Wildlife (2015)
234 Cal.App.4th 214, 239 (Center for Biological Diversity).)
“ ‘ “If a program EIR is sufficiently comprehensive, the lead agency may
dispense with further environmental review for later activities within the
program that are adequately covered in the program EIR.” ’ ” (Citizens for a
Sustainable Treasure Island v. City and County of San Francisco (2014)
227 Cal.App.4th 1036, 1051.) “If the site-specific activity will not create
effects or require mitigation measures that were not discussed in the
program EIR, the public agency is not required to prepare any other site-
specific environmental document.” (Center for Biological Diversity, supra,
234 Cal.App.4th at p. 238.) In such a case, the question is whether the
evidence supports a determination that the project “was either the same as or
within the scope of the project, program, or plan described in the program
EIR.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1320-
1321.)
The rules applicable to whether additional environmental review is
required in the context of a program EIR are set forth in section 15168,
subdivision (c) of the CEQA Guidelines.
“(1) If a later activity would have effects that were not examined
in the program EIR, a new initial study would need to be
prepared leading to either an EIR or a negative declaration. . . .
“(2) If the agency finds that . . . no subsequent EIR would be
required, the agency can approve the activity as being within the
11
scope of the project covered by the program EIR, and no new
environmental document would be required. Whether a later
activity is within the scope of a program EIR is a factual question
that the lead agency determines based on substantial evidence in
the record. Factors that an agency may consider in making that
determination include, but are not limited to, consistency of the
later activity with the type of allowable land use, overall planned
density and building intensity, geographic area analyzed for
environmental impacts, and covered infrastructure, as described
in the program EIR.
“(3) An agency shall incorporate feasible mitigation measures and
alternatives developed in the program EIR into later activities in
the program.
“(4) Where the later activities involve site specific operations, the
agency should use a written checklist or similar device to
document the evaluation of the site and the activity to determine
whether the environmental effects of the operation were within
the scope of the program EIR.
“(5) A program EIR will be most helpful in dealing with later
activities if it provides a description of planned activities that
would implement the program and deals with the effects of the
program as specifically and comprehensively as possible. With a
good and detailed project description and analysis of the
program, many later activities could be found to be within the
scope of the project described in the program EIR, and no further
environmental documents would be required.” (CEQA
Guidelines, § 15168, subd. (c).)
The City’s sole contention on appeal regarding its compliance with
CEQA is that no environmental review was required because the Bikeway
Project was within the scope of previous program EIRs.
2. Standard of Review
“In general, judicial review of agency actions for CEQA compliance
extends to ‘whether there was a prejudicial abuse of discretion.’ [Citations.]
‘Abuse of discretion is established if the agency has not proceeded in a
12
manner required by law or if the determination or decision is not supported
by substantial evidence.’ ([Pub. Resources Code,] § 21168.5.) . . . [¶] In a
CEQA case, the appellate court’s review ‘is the same as the trial court’s: [It]
reviews the agency’s action, not the trial court’s decision; in that sense
appellate judicial review under CEQA is de novo.’ [Citation.] The reviewing
court independently determines whether the record ‘demonstrates any legal
error’ by the agency and deferentially considers whether the record ‘contains
substantial evidence to support [the agency’s] factual determinations.’ ”
(Protecting Our Water and Environmental Resources v. County of Stanislaus
(2020) 10 Cal.5th 479, 495.)
Case law is clear that courts must apply a substantial evidence
standard of review to an agency’s conclusion that a project falls within the
scope of a previous program EIR. “ ‘Once an agency has prepared an EIR, its
decision not to prepare a supplemental or subsequent EIR for a later project
is reviewed under the deferential substantial evidence standard. [Citations.]
“This rule applies to determinations regarding whether a new EIR is required
following a program-EIR level of review.” [Citations.]’ ” (Latinos Unidos de
Napa v. City of Napa (2013) 221 Cal.App.4th 192, 204, quoting Citizens for
Responsible Equitable Environmental Development v. City of San Diego
Redevelopment Agency (2005) 134 Cal.App.4th 598, 610 (CREED).)
“Substantial evidence is the proper standard where . . . an agency determines
that a project consistent with a prior program EIR presents no significant,
unstudied adverse effect.” (Mission Bay Alliance v. Office of Community
Investment & Infrastructure (2016) 6 Cal.App.5th 160, 174.)
3. The Bikeway Project Was Within the Scope of a Previous
Program EIR
The City argues that the Bikeway Project was within the scope of
previous program EIRs: the 2013 program EIR for the San Diego Bicycle
13
Master Plan, and the 2016 program EIR for the North Park Community
Plan. We begin our analysis by turning to the two planning documents for
which the two program EIRs were created.
The North Park Community Plan (NPCP) was adopted by the City in
October 2016. “A component of San Diego’s General Plan, the [NPCP] is a
guide for how the community will grow and develop over 20 to 30 years.” The
NPCP contains an extensive discussion of transportation, including the goal
of promoting bicycle use and the creation of a bicycle network, as part of
“Complete Streets concepts that balance all modes of transportation.” “The
Community Plan envisions repurposing streets to incorporate multiple modes
of travel and parking. By creating an efficient and attractive multi-modal
network, people can bicycle, walk, and use transit, which ideally can
contribute to less automobile congestion and a more healthy community.”
One specific policy identified was to “[r]epurpose right[s]-of-way to provide
and support a continuous network of safe, convenient, and attractive bicycle
facilities, where feasible.” The NPCP states that “[t]he development of a
well-connected bicycle network with protected bicycle lanes where feasible
will help to meet the community’s mobility vision.” It recognizes that “[t]he
construction of additional bicycle facilities that are separated from vehicular
traffic could encourage more people to choose bicycles for their preferred
mode of travel,” but that “[s]eparated facilities require more street space to be
implemented.” 30th Street was specifically identified as one of the streets on
which regional bicycle facilities would be implemented. A map in the NPCP
shows 30th Street through North Park as a proposed Class III bikeway (i.e.,
marked with “sharrows”), but the map indicates that the recommended
classifications are subject to revision at implementation.
14
The San Diego Bicycle Master Plan (BMP) was adopted by the City in
2013. It “serves as a policy document to guide the development and
maintenance of San Diego’s bicycle network, including all roadways that
bicyclists have the legal right to use, support facilities, and non-
infrastructure programs over the next 20 years.” It “provides direction for
expanding the existing bikeway network, connecting gaps, addressing
constrained areas, improving intersections, providing for greater local and
regional connectivity, and encouraging more residents to bicycle more often.”
The BMP includes a series of maps that show proposed bikeways throughout
the City. 30th Street through North Park is shown as a proposed Class II
bikeway (i.e., separate bike lanes) or Class III bikeway (i.e., marked with
“sharrows”), with one segment shown as only a Class III bikeway. However,
the BMP also indicates that the “[p]roposed classifications are expected to be
used as a guide and may change at implementation.”
The City prepared program EIRs for both the NPCP and the BMP. The
issue before us on this appeal is whether the Bikeway Project is within the
scope of either of those program EIRs. We therefore focus on each of the
program EIRs, in turn, to determine whether the Bikeway Project was within
their scope.
a. The Program EIR for the North Park Community Plan
The 2016 program EIR for the NPCP was set forth in a program EIR
that also addressed the Golden Hill Community Plan, titled “Final Program
Environmental Impact Report for the North Park and Golden Hill
Community Plan Updates” (the NPCP Program EIR).
The NPCP Program EIR describes the provisions of the NPCP that deal
with bicycle transportation. Among other things, it states, “In order to
reduce reliance on fossil fuels and encourage alternative modes of
15
transportation, the proposed [community plan updates] aim to provide a safe
and convenient bicycle network that connects community destinations and
links to surrounding communities and the regional bicycle network. In
support of this goal, the North Park Mobility Element includes Bicycle
Policies ME-1.14 through ME-1.18. . . . Specifically, implementation of North
Park Mobility Element Policy ME-1.14 would support and implement bicycle
priority streets and facilities that connect North Park to neighboring
communities with emphasis on constructing bikeways in the bicycle network,
and implementing and building upon the San Diego Bicycle Master Plan. In
addition, North Park Mobility Element Policy ME-1.16 calls for increasing
bicycle comfort and accessibility for all levels of bicycle rides with
improvements such as signage, marking, and wayfinding for bicycles,
directing them to points of interest within North Park and adjacent
communities, actuated by signal timing for bicycles, priority parking for
bicycles, wider bike lanes, and—where feasible—separated bicycle facilities.”
The NPCP Program EIR acknowledges that 30th Street has been identified
in the BMP as either a Class II or Class III bikeway, and it contains a map
showing 30th Street as having a proposed Class III bikeway, with the caveat
that the bikeway classifications may be changed during implementation.
Although the NPCP Program EIR describes the proposed bicycle
facilities that are part of the NPCP, we have not located any discussion in the
NPCP Program EIR that provides a specific analysis of the potential
environmental impacts of implementing bicycle facilities in North Park. Nor
has the City identified any such discussion. The City asserts in its
respondent’s brief that “the [NPCP] Program EIR analyzed the effect of
16
installing on-street, separated bikeways along 30th Street.” However, it
provides no record citation to support that statement.9
In determining whether a subsequent project is within the scope of a
previous program EIR, the inquiry is whether the program EIR
“ ‘contemplates and adequately analyzes the potential environmental impacts
of the [subsequent] project’ ” and whether the subsequent project will “create
effects or require mitigation measures that were not discussed in the
program EIR.” (Center for Biological Diversity, supra, 234 Cal.App.4th at
pp. 238, 239.) Put simply, the question is whether “a project’s potential
environmental impacts were adequately analyzed in a prior program EIR.”
(CREED, supra, 134 Cal.App.4th at p. 611, italics added.) Here, because the
NPCP Program EIR contains no discussion of the potential environmental
impacts of implementing bicycle facilities in North Park, there is no
substantial evidence to support a finding that the Bikeway Project was
within the scope of the NPCP Program EIR.
b. The Program EIR for the San Diego Bicycle Master Plan
The “Bicycle Master Plan Update Final Program Environmental
Impact Report” was issued in June 2013 (the BMP Program EIR).10 Unlike
9 With respect to the need to mitigate any potential impact of the bicycle
facilities discussed in the NPCP, the NPCP Program EIR concluded that the
NPCP was “consistent with adopted policies, plans, or programs supporting
alternative transportation,” and that “implementation of the proposed
[NPCP] and associated discretionary actions would not . . . conflict with
adopted policies, plans, or programs supporting bicycle facilities.” (Italics
added.) It therefore concluded that “no mitigation [was] required” to avoid a
conflict with existing policies or plans. However, that analysis regarding the
consistency of the bicycle facilities with other policies and plans did not
address the potential environmental impacts of installing bicycle facilities.
17
the NPCP Program EIR, the BMP Program EIR contains extensive
discussion of the potential environmental impacts of installing bicycle
facilities in the City. Moreover, the BMP Program EIR repeatedly states its
expectation that, because of its scope and the detail of its analysis, no further
environmental review would be needed for the implementation of many of the
specific future bikeways in the City.
Instead of separately detailing the potential environmental impacts of
each specific proposed bikeway in the City, the BMP Program EIR conducted
much of its analysis by dividing the types of proposed bikeways into three
categories. As it explained, “Because details of individual bicycle-related
projects (including defined areas of disturbance) are not known at this time,
the level of analysis in this section is programmatic, evaluating the types of
impacts to be anticipated for three general categories of future projects: On-
street Bikeways With Widening; On-street Bikeways Without Widening; and
Off-street Bikeways.” The category of On-street Bikeways Without Widening
had special significance, as the BMP Program EIR stated that it was
“anticipated that many bikeways implemented under the BMP Update
categorized as On-street Bikeways Without Widening would be covered by
this Program EIR and would not require additional CEQA review[,] since
they would only require signage or pavement markings and would not
necessitate other roadway modifications.”
Here, the Bikeway Project falls into the category of On-street Bikeways
Without Widening as defined in the BMP Program EIR. Specifically, the
implementation of the Bikeway Project involved the modification of the
10 Because the BMP was an update to an earlier bicycle master plan
issued in 2002, the BMP Program EIR refers throughout to the BMP as the
“BMP Update.”
18
pavement markings on 30th Street and the installation of bollards to
separate the bicycle lanes from motorized traffic, but it did not involve the
widening of the 30th Street right-of-way.11
The BMP Program EIR provides a detailed and extensive discussion of
the potential environmental impacts of the implementation of On-street
Bikeways Without Widening. Specifically, it meaningfully details the
potential environmental impacts in several relevant categories of
environmental resources: Biological Resources, Historical Resources,
Transportation/Circulation, Visual Quality/Neighborhood Character,
Paleontological Resources, and Geologic Conditions.
In this litigation, Save 30th Street’s focus is on the potential
environmental impacts of the Bikeway Project due to the loss of parking
spaces on 30th Street. The BMP Program EIR directly addressed the
potential environmental impact due to the loss of parking spaces resulting
from implementation of bicycle lanes. In particular, the
“Transportation/Circulation” section of the analysis contains the following
discussion:
“The proposed bikeway network would not generate additional
motor vehicle trips or result in new land uses, and therefore
would not increase the demand for motor vehicle parking.
“For some on-street bikeway projects, however, elimination of
some on-street parking (including curb space currently dedicated
to yellow commercial vehicle freight loading zones or active
11 Save 30th Street states in its opening appellate brief that the City
admitted that a Class IV bikeway “ ‘does not fit on the existing curb-to-
curb.’ ” However, the citation it provides is a graphic showing only that a
Class IV bikeway would not fit on 30th Street if all of the parking was
maintained. Save 30th Street has cited nothing in the record to suggest that
the 30th Street right-of-way was widened as a result of the Bikeway Project.
19
passenger loading/unloading zones) could be required to
accommodate proposed bikeways. Parking removal associated
with bikeway project implementation may potentially result in
secondary effects (noise, air quality, traffic congestion, etc.)
related to cars circling and looking for a parking space in areas of
limited parking supply; this is typically a temporary condition,
however, often offset by a reduction in motor vehicle trips due to
others who are aware of constrained parking conditions in a
given area and by increased use of bicycles instead of motor
vehicles. Furthermore, the absence of a ready supply of parking
spaces, combined with available alternatives to private motorized
vehicle travel (such as bicycles, transit service, taxis, or walking),
may induce drivers to shift to other modes of travel, or change
their overall travel habits. Long-term operation of bikeway
projects implemented under the proposed BMP Update would be
expected to have a beneficial effect on parking in many cases,
since the program is designed to encourage drivers to leave their
vehicles at home and ride bicycles instead, resulting in a
reduction in parking demand. [¶] . . . [¶]
“Actions that may be considered to reduce the effects of the loss of
on-street parking may include provision of replacement parking,
for example, by creating diagonal parking on side streets where
the street width would allow.”
Based on the portions of the BMP Program EIR we have identified
above, that document qualifies as “a sufficiently comprehensive and specific
program EIR” (Center for Biological Diversity, supra, 234 Cal.App.4th at
p. 239) for us to conclude, based on substantial evidence, that the Bikeway
Project’s “potential environmental impacts were adequately analyzed in a
prior program EIR” (CREED, supra, 134 Cal.App.4th at p. 611). Not only
does the BMP Program EIR extensively discuss the potential environmental
impacts of On-street Bikeways Without Widening over multiple categories of
environmental resources, it also contains a specific discussion of the potential
impact caused by the loss of parking spaces due to the installation of a bicycle
20
lane, which is precisely the impact with which Save 30th Street is
concerned.12
Accordingly, the City properly determined that it was not required to
conduct any further environmental analysis before implementing the
Bikeway Project. (CEQA Guidelines, § 15168, subd. (c)(2) [“If the agency
finds that . . . no subsequent EIR would be required, the agency can approve
the activity as being within the scope of the project covered by the program
EIR, and no new environmental document would be required.”].)13
B. The City Reasonably Concluded That the Bikeway Project Was
Consistent With the NPCP
12 At oral argument, counsel for Save 30th Street claimed that the BMP
Program EIR was a “broad programmatic EIR” that could not avoid the need
for site-specific review of the environmental impacts of adding a Class IV
bikeway on 30th Street. But as we have already explained, site-specific
review for a later project is not required unless it creates effects or requires
mitigation measures that were not previously considered. (Center for
Biological Diversity, supra, 234 Cal.App.4th at pp. 238-239; see generally,
CEQA Guidelines, § 15168, subd. (c)(5).) No such showing has been made
here by Save 30th Street.
13 Because we conclude that the City was not required to conduct any
environmental review with respect to the Bikeway Project, beyond that
already contained in the BMP Program EIR, we find no merit to Save 30th
Street’s contention that the City improperly committed itself to the Bikeway
Project before it conducted any required environmental review. (See Save
Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 138 [“before conducting
CEQA review, agencies must not ‘take any action’ that significantly furthers
a project ‘in a manner that forecloses alternatives or mitigation measures
that would ordinarily be part of CEQA review of that public project.’ ”].)
21
We next consider Save 30th Street’s contention that the City’s approval
of the Bikeway Project violated the Planning and Zoning Law (Gov. Code,
§ 65000 et seq.) because it was inconsistent with the NPCP.14
As applicable here, the Planning and Zoning Law provides that “[n]o
local public works project may be approved . . . within an area covered by a
specific plan unless it is consistent with the adopted specific plan.” (Gov.
Code, § 65455;15 see also Friends of “B” Street v. City of Hayward (1980)
106 Cal.App.3d 988, 998 [“a city’s public works projects . . . must be
consistent with its general plan”]; Friends of H Street v. City of Sacramento
(1993) 20 Cal.App.4th 152, 169 [“cities are required to conform proposed
public works projects to the general plan”].) The CEQA memo specifically
determined that the Bikeway Project was consistent with both the NPCP and
the BMP.
We conduct an independent review of the trial court’s findings on the
issue of consistency. (Naraghi Lakes Neighborhood Preservation Assn. v. City
of Modesto (2016) 1 Cal.App.5th 9, 19 (Naraghi Lakes).) Our review “ ‘is
highly deferential to the local agency, “recognizing that ‘the body which
adopted the general plan policies in its legislative capacity has unique
competence to interpret those policies when applying them in its adjudicatory
14 In the trial court, Save 30th Street also argued that the Bikeway
Project was separately inconsistent with the BMP. However, on appeal, Save
30th Street states that because, in its view, the “BMP defers to the NPCP,” it
views the “principal question” before us to be “whether the [Bikeway] Project
is inconsistent with the NPCP.” We accordingly focus our consistency
analysis on the NPCP.
15 After adoption of a general plan, a city may adopt a specific plan for the
systematic implementation of the general plan for all or part of the city.
(Gov. Code, § 65450.) Both the NPCP and the BMP implement the City’s
general plan.
22
capacity. [Citations.] Because policies in a general plan reflect a range of
competing interests, the governmental agency must be allowed to weigh and
balance the plan’s policies when applying them, and it has broad discretion to
construe its policies in light of the plan’s purposes. [Citations.] A reviewing
court’s role “is simply to decide whether the [governing body] officials
considered the applicable policies and the extent to which the proposed
project conforms with those policies.” [Citation.]’ [Citation.]” ’ . . . ‘It is,
emphatically, not the role of the courts to micromanage these development
decisions.’ ” (Golden Door Properties, LLC v. County of San Diego (2020)
50 Cal.App.5th 467, 499 (Golden Door).) “Reviewing courts must defer to a
procedurally proper consistency finding unless no reasonable person could
have reached the same conclusion.” (Orange Citizens for Parks & Recreation
v. Superior Court (2016) 2 Cal.5th 141, 155.) Moreover, “general and specific
plans attempt to balance a range of competing interests. It follows that it is
nearly, if not absolutely, impossible for a project to be in perfect conformity
with each and every policy set forth in the applicable plan. An agency,
therefore, has the discretion to approve a plan even though the plan is not
consistent with all of a specific plan’s policies. It is enough that the proposed
project will be compatible with the objectives, policies, general land uses and
programs specified in the applicable plan.” (Sierra Club v. County of Napa
(2004) 121 Cal.App.4th 1490, 1510-1511.)
Save 30th Street contends that the Bikeway Project is not consistent
with the NPCP on several grounds. The arguments fall into two main
categories, which we consider in turn.
1. Bikeway Classifications and Road Designations
23
We first consider Save 30th Street’s contention that the Bikeway
Project is inconsistent with the NPCP because it conflicts with certain
bikeway classifications and road designations identified in the NPCP.
With respect to bikeway classifications, Save 30th Street contends that
because the Bikeway Project was designed as a Class IV bikeway it is
inconsistent with the NPCP. Specifically, Save 30th Street points out that a
map in the NPCP shows a Class III bikeway on 30th Street (i.e., a bikeway
marked with “sharrows”). Save 30th Street’s inconsistency argument fails for
two reasons.
First, the map in the NPCP expressly indicates that the bikeway
designations are subject to change at implementation. Accordingly, the
Bikeway Project was not in conflict with the Class III designation, as it was
merely tentative.
Second, a review for consistency with a planning document does not
focus on detail, but on general policies. “ ‘[S]tate law does not require precise
conformity of a proposed project with the land use designation for a site, or an
exact match between the project and the applicable general plan. [Citations.]
Instead, a finding of consistency requires only that the proposed project be
“compatible with the objectives, policies, general land uses, and programs
specified in” the applicable plan. [Citation.] The courts have interpreted this
provision as requiring that a project be “ ‘in agreement or harmony with’ ” the
terms of the applicable plan, not in rigid conformity with every detail
thereof.’ ” (Naraghi Lakes, supra, 1 Cal.App.5th at pp. 17-18, second italics
added.) “[T]he essential question is ‘whether the project is compatible with,
and does not frustrate, the general plan’s goals and policies.’ ” (Id. at p. 18,
italics added.) Here, even though the Bikeway Project implements a different
classification of bike lane from that tentatively indicated on the map in the
24
NPCP, that variation concerns a detail, not a goal, objective or policy.
Moreover, the City could reasonably conclude that the installation of a Class
IV bikeway on 30th Street was consistent with many of the express policies in
the NPCP, including, specifically, the policy of implementing a regional
bicycle network to include 30th Street, and the policy of implementing
separated bicycle lanes where feasible.16
Regarding road designations, Save 30th Street also contends the
Bikeway Project conflicts with a map in the NPCP which identifies 30th
Street as a “2 Lane Collector (continuous left-turn lane).” According to Save
30th Street, the Bikeway Project resulted “in the elimination of the majority
of the existing center lane on 30th Street north of Upas Street.” The City
disputes this characterization, contending that the engineering plans show
“the center left-turn lane is maintained on 30th Street at major intersections
where vehicles are actually turning off of 30th Street and generally only
removed mid-block where there is no opportunity to make a left turn.”
16 Among the relevant policies in the NPCP’s Mobility Element are as
follows: “ME-1.15 Coordinate with SANDAG on the planning and
implementation of regional bicycle facilities along Meade Avenue, Howard
Avenue, Robinson Avenue, Landis Street, Georgia Street, Park Boulevard,
30th Street, and Utah Avenue. [¶] ME-1.16 Increase bicycle comfort and
accessibility for all levels of bicycle riders with improvements such as
signage, marking, and wayfinding for bicycles, directing them to points of
interest within North Park and adjacent communities, actuated signal timing
for bicycles, priority parking for bicycles, wider bike lanes and, where
feasible, separated bicycle facilities. [¶] ME-1.17 Repurpose right-of-way to
provide and support a continuous network of safe, convenient, and attractive
bicycle facilities, where feasible.” Finally, the NPCP’s Sustainability &
Conservation Element contains the following policy: “SE-2.6 Continue to
implement General Plan policies related to climate change and support
implementation of the CAP through a wide range of actions including: [¶] a.
Providing additional bicycle and pedestrian improvements in coordination
with street resurfacing as feasible.”
25
We need not resolve this factual dispute to reject Save 30th Street’s
inconsistency argument. Like the identification of a Class III bikeway on
30th Street, the identification of 30th Street as a two-lane road with a center
left-turn lane is a detail described in the NPCP, not a goal, objective, or
policy. Therefore, Save 30th Street does not establish an inconsistency with
the NPCP by pointing to this detail, rather than to a goal, objective, or policy.
(Naraghi Lakes, supra, 1 Cal.App.5th at p. 18 [a project need not be “ ‘in rigid
conformity with every detail’ ” of a general plan, and the “essential question
is ‘whether the project is compatible with, and does not frustrate, the general
plan’s goals and policies’ ”].) Moreover, to the extent that the center left-turn
lane was eliminated on 30th Street as part of the Bikeway Project, the City
could reasonably conclude that result was consistent with several of the
policies in the NPCP’s Mobility Element, which favor reconfiguring roads to
accommodate bicycles: “ME-3.1 Implement road diets (reduction in number
of traffic lanes) or lane diets (narrowing traffic lanes) where appropriate to
accommodate transit and bicycles within the existing street right-of-way. [¶]
ME-3.2 Provide a Complete Streets network that accommodates multiple
modes of transportation throughout the community to accommodate all users
of the roadway. [¶] . . . [¶] ME-3.6 Repurpose right-of-way to provide high-
quality bicycle, pedestrian, and transit facilities while maintaining vehicular
access.”
2. Policies Supporting Access to Businesses and Preserving Parking
Save 30th Street’s second group of arguments focus on the
inconsistency of the Bikeway Project with certain policies set forth in the
NPCP that favor the promotion of access to businesses and the preservation
of parking.
26
Specifically, the NPCP’s Mobility Element sets forth the following
policies relevant to Save 30th Street’s argument: “ME-5.2 Provide on-street
parking on all streets to support adjacent uses and enhance pedestrian safety
and activity where feasible. [¶] ME-5.3 Include primarily parallel on-street
parking on high-volume arterial and collector streets and angled parking on
lower-speed and lower-volume streets. [¶] . . . [¶] ME-5.15 Preserve on-street
parking in commercial areas to serve short-term shoppers.” With respect to
the policies favoring access to businesses along 30th Street in general, the
NPCP’s Land Use Element supports the promotion of “North Park’s
Community Villages as attractive destinations for living, working, shopping,
and entertainment,” with one portion of 30th Street identified as part of a
“Community Village.”
Although Save 30th Street focuses on the policies that favor parking
and commercial access to argue that the Bikeway Project is inconsistent with
the NPCP, numerous other policies in the NPCP prioritize the promotion of
bicycle transportation as part of a balanced transportation system. Among
other things, the NPCP states that it “envisions repurposing streets to
incorporate multiple modes of travel and parking. By creating an efficient
and attractive multi-modal network, people can bicycle, walk, and use
transit, which ideally can contribute to less automobile congestion and a
more healthy community.” The NPCP’s Mobility Element identifies the
policy of “[r]epurpos[ing] right[s]-of-way to provide and support a continuous
network of safe, convenient, and attractive bicycle facilities, where feasible.”
The NPCP’s Economic Prosperity Element identifies the policy of
“[i]mprov[ing] pedestrian, bicycle and transit infrastructure in North Park’s
commercial districts and areas to position North Park as one of the most
sustainable communities nationally.”
27
As we have explained, “ ‘ “ ‘[b]ecause policies in a general plan reflect a
range of competing interests, the governmental agency must be allowed to
weigh and balance the plan’s policies when applying them, and it has broad
discretion to construe its policies in light of the plan’s purposes.’ ” ’ ” (Golden
Door, supra, 50 Cal.App.5th at p. 499.) Here, the City reasonably balanced
the competing policies to conclude that the Bikeway Project was consistent
with the NPCP. In approving the Bikeway Project, the City did not
completely disregard the policy in favor of preserving on-street parking for
commercial and adjacent uses. As we have noted, “Option A+” was designed
to preserve some of the parking that would have been lost in “Option A.”
Moreover, the CEQA memo noted that despite the elimination of parking due
to the Bikeway Project, parking would still be available to service much of the
commercial district because of a preexisting parking garage and because the
City had recently undertaken to create additional angled or perpendicular
parking on adjacent streets.17 In that context, the record supports a finding
that the City reasonably used its discretion to balance the competing policies
in the NPCP, including the policies in favor of preserving parking, when it
approved the Bikeway Project. Save 30th Street’s inconsistency claim is
accordingly without merit.
DISPOSITION
The judgment is affirmed.
17 The creation of angled or perpendicular parking on adjacent streets
was consistent with a policy in the NPCP’s Mobility Element, which states,
“ME-5.1 Encourage and support additional diagonal parking on various side-
streets adjacent to the Core area and mixed-use corridors, and within multi-
family neighborhoods to increase parking supply where feasible.”
28
IRION, Acting P. J.
WE CONCUR:
DATO, J.
BUCHANAN, J.
29 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350206/ | Mosley v Parnell (2022 NY Slip Op 07342)
Mosley v Parnell
2022 NY Slip Op 07342
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
790 CA 21-00388
[*1]THEODORE MOSLEY, ANNE MOSLEY, PATRICIA DUKE, JENNIFER DUKE, ALBERT LUCARELLI, ELIZABETH LUCARELLI, MARK COHEN, JOAN WLAD, DOMINICK FEOCCO, SANDRA FEOCCO, MARVIN DRUGER, STEPHEN ARGENTIERI, MICHELLE ARGENTIERI, CHRISTINE LITTY, JOHN WATERS, JANET WATERS, ANN HICKS, DAVID RIGAN, MARK FANNING, VICTORIA FANNING, JOHN PEASE AND KIRSTEN PEASE, PLAINTIFFS-APPELLANTS,
vMARIANNE PARNELL, DEFENDANT-RESPONDENT. ET AL., DEFENDANTS.
MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BOND, SCHOENECK & KING, PLLC, SYRACUSE (RICHARD L. WEBER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered March 10, 2021. The order denied plaintiffs' motion for summary judgment and ordered that the parties could not park vehicles on the right-of-way that is the subject of the action.
It is hereby ORDERED that said appeal from the order insofar as it relates to the second ordering paragraph is unanimously dismissed and the order is modified on the law by granting that part of the motion for summary judgment on the first cause of action insofar as it seeks a declaration of plaintiffs' rights under the easement and judgment is granted in favor of plaintiffs as follows:
It is ADJUDGED and DECLARED that plaintiffs have the right to construct, maintain, and use a seasonal dock within the right-of-way,
and as modified the order is affirmed without costs.
Memorandum: Plaintiffs are property owners who have use of an easement over the property of Marianne Parnell (defendant), which is a lakefront lot on the shore of Owasco Lake. The easement, a 20-foot-wide right-of-way across the northern edge of defendant's property, affords access to the lake. Following a disagreement with defendant over the scope of plaintiffs' use of the right-of-way, specifically whether the right-of-way encompasses the right to erect, maintain, and use a seasonal dock within the right-of-way, plaintiffs commenced this action asserting three causes of action seeking declaratory and other relief. Plaintiffs now appeal from an order that, inter alia, denied their motion for summary judgment on the second amended complaint.
Preliminarily, we note that plaintiffs' appeal from that part of the order that sua sponte prohibited the parties from parking vehicles or placing obstructions in, on, or at the right-of-way must be dismissed because that part of the order "did not decide a motion made on notice [and, a]s such, . . . is not appealable as of right" (U.S. Bank Trust, N.A. v Hussain, 207 AD3d 778, 779 [2d Dept 2022] [internal quotation marks omitted]; see CPLR 5701 [a] [2]). Plaintiffs did not seek leave to appeal, and we decline to treat the notice of appeal as an application for leave to appeal (see CPLR 5701 [c]; Deutsche Bank Natl. Trust Co. v Miller, 172 AD3d 1890, 1890 [4th [*2]Dept 2019]).
We agree with plaintiffs that Supreme Court erred in denying their motion with respect to the first cause of action insofar as it seeks a declaration that their deeds confer upon them the right to erect, maintain, and use a dock within the right-of-way, and we therefore modify the order accordingly. Plaintiffs met their initial burden on the motion by submitting, among other things, the relevant deeds, which established that there were no restrictions on the easement and that the purpose of the right-of-way was to provide ingress to and egress from the lake (see Matter of Shanor Elec. Supply, Inc. v FAC Cont., LLC, 73 AD3d 1445, 1446-1447 [4th Dept 2010]). Given the purpose of the easement and the absence of restrictions, "any reasonable lawful use [by plaintiffs] within the contemplation of the grant is permissible" (id. at 1447 [internal quotation marks omitted]), and the installation, maintenance, and use of a dock at the end of a right-of-way providing access to a lake is a "reasonable use incidental to the purpose of the easement" (Holst v Liberatore, 115 AD3d 1216, 1217 [4th Dept 2014] [internal quotation marks omitted]; see Elm Lansing Realty Corp. v Knapp, 192 AD3d 1348, 1352 [3d Dept 2021]; Hush v Taylor, 84 AD3d 1532, 1534-1535 [3d Dept 2011]). Defendant failed to raise a triable issue of fact in opposition.
In light of our determination, plaintiffs' contention that the court erred in denying the motion with respect to the second cause of action, asserting that plaintiffs acquired a prescriptive easement for the installation, maintenance, and use of the seasonal dock, is academic. Finally, we reject plaintiffs' contention that the court erred in denying the motion with respect to the third cause of action, seeking a declaration that defendant has placed obstacles in the right-of-way, interfering with plaintiffs' use. Plaintiffs failed to meet their initial burden on the motion of demonstrating that defendant actually obstructed plaintiffs' use of the right-of-way (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350189/ | People v Gozdziak (2022 NY Slip Op 07377)
People v Gozdziak
2022 NY Slip Op 07377
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
890 KA 22-00667
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vDWAINE GOZDZIAK, DEFENDANT-APPELLANT.
PAUL G. DELL, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Suzanne Maxwell Barnes, J.), rendered July 22, 2021. The judgment convicted defendant, upon a plea of guilty, of attempted rape in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing in accordance with the following memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [4]), defendant contends that County Court erred in sentencing him as a second child sexual assault felony offender (see Penal Law
§ 70.07). Preliminarily, inasmuch as the error alleged by defendant " 'affects the legality of his sentence, the issue is reviewable irrespective of the validity of the waiver of his right to appeal' " (People v Cruz-Ocasio, 208 AD3d 1059, 1060 [4th Dept 2022]; see People v Grubert, 160 AD3d 981, 982 [2d Dept 2018], lv denied 32 NY3d 902 [2018]; see generally People v Seaberg, 74 NY2d 1, 9 [1989]). On the merits, we agree with defendant.
"A person who stands convicted of a felony offense for a sexual assault against a child, having been subjected to a predicate felony conviction for a sexual assault against a child, must be sentenced" as a second child sexual assault felony offender in accordance with the applicable statutory provision setting an enhanced sentencing range (Penal Law § 70.07 [1]; see People v Wragg, 26 NY3d 403, 413-414 [2015]). The statute provides, with an exception not relevant here, that "[a] 'sexual assault against a child' means a felony offense . . . (a) the essential elements of which include the commission or attempted commission of sexual conduct, as defined in [Penal Law
§ 130.00 (10)], [and] (b) committed or attempted to be committed against a child less than [15] years old" (§ 70.07 [2]). Importantly, "[f]or purposes of determining whether a person has been subjected to a predicate felony conviction under this section, the criteria set forth in [Penal Law § 70.06 (1) (b)] shall apply," except that the look-back period is longer under the second child sexual assault felony offender statute (§ 70.07 [3]). Consequently, as relevant here, a defendant has a qualifying predicate felony conviction for purposes of the second child sexual assault felony offender statute if three conditions are met: (1) the prior conviction was a felony in New York or an out-of-state offense "for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in [New York] irrespective of whether such sentence was imposed" (§ 70.06 [1] [b] [i]; see § 70.07 [2], [3]); (2) the prior felony or felony-equivalent offense had essential elements that included the commission or attempted commission of sexual conduct as defined in Penal Law § 130.00 (10) (see § 70.07 [2] [a]); and (3) the prior felony or felony-equivalent offense was committed or attempted against a child less than 15 years old (see § 70.07 [2] [b]).
With respect to the first condition, "[a]n out-of-state felony conviction qualifies as a predicate felony under New York's sentencing statutes only if it is for a crime 'whose elements [*2]are equivalent to those of a New York felony' " (People v Yusuf, 19 NY3d 314, 321 [2012], quoting People v Gonzalez, 61 NY2d 586, 589 [1984]). "To determine whether a foreign crime is equivalent to a New York felony[,] the court must examine the elements of the foreign statute and compare them to an analogous Penal Law felony, for '[i]t is the statute upon which the indictment was drawn that necessarily defines and measures the crime' " (Gonzalez, 61 NY2d at 589). In other words, the court must " 'appl[y] a strict equivalency standard that examines the elements of the foreign conviction to determine whether the crime corresponds to a New York felony, usually without reference to the facts giving rise to that conviction' " (People v Helms, 30 NY3d 259, 263 [2017]). Thus, "[a]s a general rule, [the court's] inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes" (People v Muniz, 74 NY2d 464, 467-468 [1989]; see Yusuf, 19 NY3d at 321; People v Olah, 300 NY 96, 98 [1949]). "In this regard, courts generally should consider only the statutes defining the relevant crimes, and may not consider the allegations contained in the accusatory instrument underlying the foreign conviction" (People v Jurgins, 26 NY3d 607, 613 [2015]; see Muniz, 74 NY2d at 467-468). "When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York, the foreign statute may not serve as a predicate" (Yusuf, 19 NY3d at 321). Nonetheless, under an exception to the general rule, a court may "go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the [foreign] statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors" (Gonzalez, 61 NY2d at 590; see Yusuf, 19 NY3d at 321; Muniz, 74 NY2d at 468). The People bear the "burden of establishing that [the] defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York" (People v Yancy, 86 NY2d 239, 247 [1995]; see Jurgins, 26 NY3d at 613).
Here, it is uncontroverted that defendant stands convicted of a felony offense for sexual assault against a child (see Penal Law
§ 70.07 [1], [2]) because the class C felony of attempted rape in the first degree (§§ 110.00, 130.35 [4]; see § 110.05 [4]) includes as an essential element the attempted commission of sexual conduct in the form of sexual intercourse (see § 130.00 [10]; § 70.07 [2] [a]) and he attempted to commit such conduct against a child less than 15 years old (see § 70.07 [2] [b]). It is also uncontroverted that defendant committed the subject prior out-of-state offense of lewd or lascivious battery in violation of Florida Statutes former § 800.04 (4) (a) against a child less than 15 years old (see Penal Law § 70.07 [2] [b]) when he was 18 years old or older (see § 70.07 [3]). The only contested issue below and on appeal is whether the prior out-of-state conviction meets that part of the definition of "a predicate felony conviction for a sexual assault against a child" (§ 70.07 [1]) requiring that the conviction be for "a felony offense . . . the essential elements of which include the commission or attempted commission of sexual conduct" as defined in Penal Law § 130.00 (10)
(§ 70.07 [2] [a]).
We conclude that "the People failed to satisfy their burden of establishing that defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York" (Yancy, 86 NY2d at 247). Florida Statutes former § 800.04 (4) (a) provides that a person who "[e]ngages in sexual activity with a person 12 years of age or older but less than 16 years of age" commits lewd or lascivious battery. The term "sexual activity" is defined as "the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object," except for "an act done for a bona fide medical purpose" (Fla Stat former § 800.04 [1] [a]). The People failed below, and have now failed on appeal, to identify any "analogous Penal Law felony" (Gonzalez, 61 NY2d at 589) that corresponds with Florida Statutes former § 800.04 (4) (a) " 'without reference to the facts giving rise to that conviction' " (Helms, 30 NY3d at 263). The People's failure in that regard stems from the fact that the closest New York analog to lewd or lascivious battery (Fla Stat former § 800.04 [4] [a]) appears to be the crime of sexual misconduct, which is a misdemeanor (Penal Law § 130.20). In New York, "[a] person is guilty of sexual misconduct when," as relevant here, that person "engages in sexual intercourse" or "engages in oral sexual conduct or anal sexual conduct" with another person "without such person's consent" (§ 130.20 [1], [2]), and lack of consent may arise from incapacity to consent due to such other person being less than 17 years old (see § 130.05 [2] [b]; [3] [a]; see generally William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Penal Law § 130.00). " 'Sexual intercourse' has its ordinary [*3]meaning and occurs upon any penetration, however slight"; " '[o]ral sexual conduct' means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina"; and " '[a]nal sexual conduct' means conduct between persons consisting of contact between the penis and anus" (§ 130.00 [1], [2]). Thus, a comparison between the Florida Statutes and the New York Penal Law provisions reveals that "it is possible to violate the foreign statute without engaging in conduct that is a felony in New York" (Yusuf, 19 NY3d at 321). For example, a male who engaged in vaginal penetration of a 15-year-old female with his penis would be guilty of lewd or lascivious battery in Florida (see Fla Stat former § 800.04 [1] [a]; [4] [a]), but a male who engaged in the same conduct—i.e., sexual intercourse with a 15-year-old female—could be guilty of sexual misconduct, a misdemeanor, in New York (see Penal Law §§ 130.00 [1]; 130.05 [2] [b]; [3] [a]; 130.20 [1]).
To the extent that the court and the People could be said to have concluded that, under the general strict equivalency standard without reference to the underlying facts, the class D felony of rape in the second degree (Penal Law § 130.30) is the analogous New York felony to the crime of lewd or lascivious battery in Florida (Fla Stat former § 800.04 [4] [a]), a review of the statutes belies that conclusion (see generally Gonzalez, 61 NY2d at 589). As conceivably relevant here, "[a] person is guilty of rape in the second degree when . . . being [18] years old or more, he or she engages in sexual intercourse with another person less than [15] years old" (Penal Law § 130.30 [1]). It is evident from a review of the relevant statutory elements that the felony of rape in the second degree in New York is far narrower than the crime of lewd or lascivious battery in Florida (Fla Stat former § 800.04 [4] [a]). Indeed, a conviction under Penal Law
§ 130.30 (1) requires proof that the defendant was 18 years old or more (the Florida statute does not set a minimum age of the offender), that the victim was less than 15 years old (the victim could be as old as 16 years old under the Florida statute), and that the defendant engaged in sexual intercourse with the victim (the Florida statute encompasses more conduct). Consequently, "a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York" as defined by Penal Law § 130.30 (1) (Yusuf, 19 NY3d at 321).
Significantly, the only way in which the court and the People arrive at the conclusion that defendant's conviction of lewd or lascivious battery in Florida (Fla Stat former § 800.04 [4] [a]) constitutes the equivalent of the class D felony of rape in the second degree in New York (Penal Law § 130.30 [1]) is by resorting to the allegations contained in the accusatory instrument and the facts underlying the Florida conviction. Stated differently, although not revealed by the lewd or lascivious battery statute itself (Fla Stat former § 800.04 [4] [a]), the court and the People rely on the facts and accusatory instrument of the underlying Florida conviction in order to match the elements of rape in the second degree (Penal Law
§ 130.30 [1]) by establishing that defendant was 19 years old when he engaged in sexual intercourse with a 13-year-old female in Florida.
We agree with defendant that consideration of the facts and circumstances of the underlying Florida conviction is impermissible in this case (see Jurgins, 26 NY3d at 614-615; Yusuf, 19 NY3d at 321-322; Muniz, 74 NY2d at 470-471). "[U]nder a narrow exception to the [general] rule, the underlying allegations must be considered when 'the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors [or no crime] if committed in New York' " (Jurgins, 26 NY3d at 613, quoting Muniz, 74 NY2d at 468). "In those circumstances, the allegations will be considered in an effort to 'isolate and identify' the crime of which the defendant was accused, by establishing 'which of those discrete, mutually exclusive acts formed the basis of the charged crime' " (id., quoting Muniz, 74 NY2d at 468-469).
The exception does not apply here. "[T]his is not a case where . . . 'a sentencing court [may] go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction' " on the basis that " 'the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors [or no crime]' " (Yusuf, 19 NY3d at 321, quoting Gonzalez, 61 NY2d at 590; see Jurgins, 26 NY3d at 614-615). Instead, the acts criminalized by Florida pursuant to the lewd or lascivious battery statute under which defendant was convicted (Fla Stat former § 800.04 [4] [a]) would constitute the misdemeanor of sexual misconduct if committed in New York (Penal Law [*4]§ 130.20). In support of its assertion that the exception applies, the People have failed to identify any of the several acts rendered criminal in the Florida statute that would, if committed in New York, constitute felonies in some cases. Rather, the details that the People seek to add in order to equate defendant's prior conviction with rape in the second degree (§ 130.30 [1])—i.e., the age of defendant, the precise age of the victim being less than 15 years old, and the exact sexual conduct engaged in—constitute mere surplusage under the Florida statute (see People v Walls, 277 AD2d 959, 959-960 [4th Dept 2000], lv denied 96 NY2d 808 [2001]; see generally Muniz, 74 NY2d at 468). In other words, the People have failed to offer any valid reason for applying the exception and, instead, are simply attempting to impermissibly extend or enlarge the Florida crime by allegations in the accusatory instrument and the underlying facts (see Gonzalez, 61 NY2d at 589).
In sum, we conclude that "[b]ecause the [Florida] statute, itself, indicates that a person can be convicted of the [Florida] crime without committing an act that would qualify as a felony in New York (i.e., by [instead committing the misdemeanor of sexual misconduct]), defendant's [Florida] conviction for [lewd or lascivious battery] was not a proper basis for a predicate felony offender adjudication" (Jurgins, 26 NY3d at 615). The court thus erred in sentencing defendant as a second child sexual assault felony offender because the People failed to meet their burden of establishing the first condition required to conclude that defendant had been "subjected to a predicate felony conviction for sexual assault against a child" (Penal Law § 70.07 [1]), i.e., that defendant's prior conviction constituted a predicate "felony offense" pursuant to the criteria set forth in Penal Law § 70.06 (1) (b) (§ 70.07 [2] [emphasis added]; see § 70.07 [3]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see generally People v Ramos, 19 NY3d 417, 421 [2012]). In light of our determination, we do not consider defendant's remaining contention.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350169/ | People v Vazquez (2022 NY Slip Op 07372)
People v Vazquez
2022 NY Slip Op 07372
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.
872 KA 17-01972
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vJOSE M. VAZQUEZ, ALSO KNOWN AS JOSE M. VASQUEZ, DEFENDANT-APPELLANT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.), rendered June 29, 2017. The judgment convicted defendant upon a jury verdict of manslaughter in the second degree, aggravated unlicensed operation of a motor vehicle in the second degree and aggravated unlicensed operation of a motor vehicle in the third degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, manslaughter in the second degree (Penal Law § 125.15 [1]), defendant contends that the verdict on the manslaughter count is against the weight of the evidence because the People failed to prove beyond a reasonable doubt that he recklessly caused the victim's death. We reject defendant's contention and affirm.
The evidence at trial established that, shortly after midnight on the date in question, defendant and the codefendant were driving separate motor vehicles at high speeds on a street, in a residential area in Rochester, known for drag racing. Witnesses testified that they saw the vehicles going "neck and neck" down the street and dodging in and out of traffic and that the vehicles were traveling at speeds estimated at between 60 and 100 miles per hour. One witness observed the vehicles racing at high speeds northbound and southbound on the street. The victim, who was attempting to cross the street, was struck by the codefendant's vehicle while she was in or near the center of the four-lane street, and she suffered immediately fatal injuries. According to an eyewitness, the victim's body went "flying in the air like a football, higher than the light poles." An accident reconstructionist determined that the victim landed 60 yards from the point of impact. One witness testified that the two vehicles were "almost side by side" when the victim was struck, and there were no skid marks on the street or any indication that either defendant or the codefendant braked before the collision.
A person commits manslaughter in the second degree under Penal Law § 125.15 (1) when he or she "recklessly causes the death of another person." "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]). In the context of motor vehicle accidents involving speeding, "the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires some additional affirmative act aside from driving faster than the posted speed limit" (People v Asaro, 21 NY3d 677, 684 [2013] [internal quotation marks omitted]).
Here, defendant contends that the evidence fails to establish any "inculpatory driving behavior other than excessive speed," and that the People therefore failed to prove beyond a reasonable doubt that he acted recklessly. We reject that contention. There was ample evidence from which the jury could conclude that defendant was drag racing with the codefendant, who was his friend, at the time of the accident (see generally People v Hart, 8 AD3d 402, 404-405 [2d Dept 2004], lv denied 3 NY3d 740 [2004]) and that the drag racing took place at night in a residential area on a busy thoroughfare. We therefore conclude that the jury was justified in concluding beyond a reasonable doubt that defendant had the requisite mens rea of recklessness.
With respect to causation, defendant's contention is premised largely upon statements to the police from a witness who said that the victim had "darted" and "leapt" into the street moments before the accident. Defendant also notes that the victim's autopsy revealed heroin, cocaine, and fentanyl in her blood. According to defendant, neither he nor the codefendant should have reasonably foreseen that the victim would dart or leap into the street and, as a result, their conduct was not a sufficiently direct cause of the victim's death. We reject that contention. The evidence at trial included testimony that the victim took three or four strides into the street before being struck. Moreover, there is no dispute that the victim was struck at or near the center of a four-lane street and there was evidence at trial that the center of the street is approximately 20 feet from the curb. The victim was not struck immediately upon entering the street. We conclude that, regardless of the victim's pace, there was ample evidence at trial from which the jury could conclude that defendant and the codefendant could have avoided the accident had they not been driving so fast. Although the conduct of defendant and the codefendant was not the sole cause of the accident, it was "a sufficiently direct cause of the death of [the victim] so as to warrant the imposition of criminal sanctions" (People v Kibbe, 35 NY2d 407, 413 [1974], rearg denied 37 NY2d 741 [1975]; cf. People v Erb, 70 AD3d 1380, 1381 [4th Dept 2010], lv denied 14 NY3d 840 [2010]).
In sum, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that, although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350208/ | Michael P. v Dombroski (2022 NY Slip Op 07318)
Michael P. v Dombroski
2022 NY Slip Op 07318
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
707 CA 21-01725
[*1]MICHAEL P., INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF T.P., INFANT, PLAINTIFF-APPELLANT,
vJONAH DOMBROSKI AND STANLEY DOMBROSKI, DEFENDANTS-RESPONDENTS.
STANLEY LAW OFFICES, SYRACUSE (JAMIE M. RICHARDS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
Appeal from an order of the Supreme Court, Onondaga County (Robert E. Antonacci, II, J.), entered November 22, 2021. The order granted the motion of defendants to dismiss the complaint and awarded attorney's fees and costs to defendants.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the complaint is reinstated, and the award of attorney's fees and costs to defendants is vacated.
Memorandum: Plaintiff commenced this personal injury action seeking damages for dog bite injuries allegedly sustained by T.P. (child), his child with nonparty Lillian M. Emlaw. At the time of the alleged dog bite, plaintiff and Emlaw shared joint legal custody of the child, but plaintiff had physical custody while Emlaw had regularly scheduled parenting time, including on alternate weekends. Emlaw resided with defendant Jonah Dombroski (Jonah), who rented the residential property from his father, defendant Stanley Dombroski (Stanley). The child was allegedly attacked and bitten by a dog while visiting the residential property during Emlaw's weekend parenting time.
Plaintiff sought to recover under theories of strict liability and negligence on the ground that the child, while lawfully present on residential property owned by Stanley, suffered injuries when he was attacked and bitten by a dog with known vicious propensities that was owned or harbored by Jonah. Defendants moved to dismiss the complaint for failure to state a cause of action and sought an award of attorney's fees and costs on the ground that the action was frivolous; defendants' affidavits submitted in support of the motion, however, stated that they were seeking summary judgment. Plaintiff now appeals from an order that granted defendants' motion by, among other things, dismissing the complaint with prejudice, adjudging that the action was frivolous, and awarding defendants costs and reasonable attorney's fees. We reverse.
We note at the outset that, although the relief sought in defendants' notice of motion differed from that sought in their supporting affidavits (see Anderson v Kernan, 133 AD3d 1234, 1234 [4th Dept 2015]), Supreme Court, in its decision, effectively treated the motion as one for summary judgment by focusing on the proof submitted in support of and in opposition to the motion (see CPLR 3211 [c]; Kempf v Magida, 37 AD3d 763, 765 [2d Dept 2007]), and plaintiff does not contend on appeal that the court erred in doing so (see M & R Ginsburg, LLC v Segel, Goldman, Mazzotta & Siegel, P.C., 121 AD3d 1354, 1354 n [3d Dept 2014]; cf. Smithers v County of Oneida, 138 AD3d 1504, 1504 [4th Dept 2016]).
With respect to the applicable law, "an owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal's vicious propensities" (Hewitt v Palmer Veterinary Clinic, PC, 35 NY3d 541, 547 [2020]; see Petrone v [*2]Fernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444, 446 [2004]). "Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities" (Collier, 1 NY3d at 448). "Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]" (Matthew H. v County of Nassau, 131 AD3d 135, 144 [2d Dept 2015]; see Quilty v Battie, 135 NY 201, 204 [1892]; Cruz v Stachowski, 142 AD3d 1326, 1328 [4th Dept 2016]; see also 1B NY PJI 2:220 at 588 [2022]).
Furthermore, "[a] landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable [under a negligence standard] to a person who while thereafter on the premises is bitten by the dog" (Strunk v Zoltanski, 62 NY2d 572, 573-574 [1984]; see Hewitt, 35 NY3d at 548; id. at 552 [Wilson, J., concurring]; Strunk, 62 NY2d at 575-576). When, "during the term of the leasehold[,] a landlord becomes aware of the fact that [the] tenant is harboring an animal with vicious propensities, [the landlord] owes a duty to protect third persons from injury . . . if [the landlord] 'had control of the premises or other capability to remove or confine the animal' " (Cronin v Chrosniak, 145 AD2d 905, 906 [4th Dept 1988], quoting Strunk, 62 NY2d at 575; see Rodgers v Horizons at Monticello, LLP, 130 AD3d 1285, 1286 [3d Dept 2015]; Southern v Valentine, 263 AD2d 954, 954 [4th Dept 1999]).
Here, we conclude that defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law. With respect to Jonah's potential liability, defendants' own submissions raise a triable issue of fact regarding the ownership of the dog (see Bailey v Veitch, 28 AD3d 1079, 1081 [4th Dept 2006]) inasmuch as Jonah's denial of ownership in his affidavit simply conflicts with the evidence stated by plaintiff in his verified complaint—which is considered an affidavit—that Jonah owned the dog (see CPLR 105 [u]; Sanchez v National R.R. Passenger Corp., 21 NY3d 890, 891-892 [2013]). To the extent that the court determined that plaintiff could not maintain the action against Jonah to recover for the child's injuries because the dog belonged to a family member, the court misinterpreted the facts and misapplied the law. As stated, there is a question of fact whether Jonah, who is unrelated to the child, owned the dog (see Bailey, 28 AD3d at 1081) and, even if the dog was owned by Emlaw as alleged in Jonah's affidavit, " '[s]trict liability can . . . be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]' " (Cruz, 142 AD3d at 1328; see Dufour v Brown, 66 AD3d 1217, 1217-1218 [3d Dept 2009]). In that regard, defendants' own submissions raise an issue of fact whether Jonah harbored the dog inasmuch as Jonah averred that the dog had resided with him and his family over a period of years (see Cruz, 142 AD3d at 1328).
Defendants also failed to establish as a matter of law that they neither knew nor should have known that the dog had any vicious propensities (see Young v Grizanti, 164 AD3d 1661, 1662 [4th Dept 2018]), which is necessary to negate a component of both strict liability on the part of an owner or harborer and negligence on the part of a landlord (see Hewitt, 35 NY3d at 548). We agree with plaintiff that the conclusory, "self-serving affidavits of [Jonah] and [Stanley] about their lack of knowledge of [the dog's alleged vicious propensities] are insufficient to establish as a matter of law" that they were unaware of any such propensities (Freeland v Erie County, 204 AD3d 1465, 1467 [4th Dept 2022]). "Such self-serving affidavits raise 'question[s] of credibility for the finder of fact, not the court, to resolve' " (id.). Moreover, "where[, as here], knowledge is a key fact at issue, and peculiarly within the possession of the movant[s] . . . , summary judgment will ordinarily be denied" (Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 262 [2d Dept 1984]; see Kindzierski v Foster, 217 AD2d 998, 1000 [4th Dept 1995]). Inasmuch as defendants' submissions show that the dog resided with Jonah and in a residence owned by Stanley for a period of over three years, knowledge of any vicious propensities or prior dangerous behavior on the part of the dog would be peculiarly within the possession of defendants.
Further with regard to Stanley's potential liability, the court erred in determining that defendants established as a matter of law that Stanley lacked the requisite control over the dog. Stanley admitted in his affidavit that, although he did not live at the residence, he owned the property and acted as a landlord by renting the property to Jonah, and his affidavit makes clear [*3]that he was aware that the dog was present on the premises. Despite those facts, Stanley never suggested that he lacked control of the premises and, beyond a single conclusory declaration that he "was never in control of the dog," Stanley did not even attempt to show how he lacked the ability to have the dog removed or confined if he so chose. We thus conclude that Stanley failed to eliminate a material issue of fact whether he "had control of the premises or other capability to remove or confine the animal" (Strunk, 62 NY2d at 575; see Baisi v Gonzalez, 97 NY2d 694, 695 [2002]).
Inasmuch as defendants failed to make the required prima facie showing of entitlement to judgment as a matter of law, the court should have denied their motion regardless of the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Christopher P. v Kathleen M.B., 174 AD3d 1460, 1462 [4th Dept 2019]). Nonetheless, even assuming, arguendo, that defendants met their initial burden on the motion, we agree with plaintiff that defendants' motion is premature because discovery, including depositions concerning ownership of the dog and whether the dog previously exhibited any vicious propensities of which defendants were aware, has not been completed (see Syracuse Univ. v Games 2002, LLC, 71 AD3d 1531, 1531-1532 [4th Dept 2010]). Indeed, plaintiff's opposition papers show that defendants failed to respond to plaintiff's discovery demands, including for depositions, and that showing remains unrebutted by defendants, who did not file a reply below or a respondents' brief on appeal. Thus, as plaintiff has asserted both in opposition to the motion and on appeal, he is entitled to discovery and the motion should have been denied on that basis as well (see CPLR 3212 [f]).
We also agree with plaintiff that the court erred in awarding defendants attorney's fees and costs pursuant to CPLR 8303-a (see Penn Iron & Metal Co. v Gross, 192 AD2d 1059, 1060 [4th Dept 1993]). The statute provides in pertinent part that, in an action for personal injury, the court shall award costs and reasonable attorney's fees not exceeding $10,000 if an action commenced or continued by a plaintiff is found to be frivolous by the court (see CPLR 8303-a [a]). As relevant to the basis for the court's determination here, in order for the action to be frivolous under the statute, the court was required to find that the action was commenced or continued "in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law" (CPLR 8303-a [c] [ii]).
Here, none of the reasons given by the court support its conclusion that plaintiff's action is frivolous. The court first reasoned that plaintiff's "failure to appropriately respond" to defendants' motion with his own affidavit or the affidavit of a fact witness established that plaintiff's attorney "failed to undertake even a cursory investigation into the basis for . . . [p]laintiff's claim, and when faced with assertions that directly controverted the . . . claim, was unable to produce any response in opposition." We conclude that the court, based on a flawed understanding of how plaintiff should have responded to the motion, reached an unwarranted conclusion regarding whether plaintiff had a reasonable basis in fact for the action. Contrary to the court's determination, the record establishes that plaintiff's attorney sought to further investigate and develop the claim and that plaintiff responded appropriately to defendants' motion inasmuch as plaintiff's attorney explained in detail, with substantiation from evidentiary submissions, that defendants' counsel had refused to respond to the discovery demands, including for depositions, that plaintiff needed to oppose the motion. For that reason, and because defendants' failure to meet their initial burden meant that the motion should have been denied regardless of the sufficiency of plaintiff's opposing papers (see Winegrad, 64 NY2d at 853; Christopher P., 174 AD3d at 1462), the court had no legitimate basis on which to conclude that the nature of plaintiff's opposing papers reflected that plaintiff had commenced or continued the action in bad faith without any reasonable basis in fact (cf. CPLR 8303-a [c] [ii]).
The court also reasoned that plaintiff acted in bad faith because he "appear[ed] to have unilaterally initiated this action without the consent or cooperation" of Emlaw, even though they shared joint custody. The court's speculation that plaintiff did not consult Emlaw lacks an evidentiary basis in the record. Further, the court did not explain how commencing an action on behalf of the child to recover for the allegedly severe injuries he sustained from the dog attack was a violation of plaintiff's custodial obligations and, even if it was a violation, it does not follow therefrom that the personal injury action against defendants has no reasonable basis in law or fact.
The court further reasoned that plaintiff acted in bad faith because Emlaw "was not made a defendant" even though the evidence showed that the child, the dog, Emlaw, and Jonah "all resided together at the time" of the subject incident. Contrary to the court's factual determination, the evidence—i.e., the custody documents solicited by the court—does not establish that the child resided at the residential property with Emlaw, Jonah, and the dog; rather, Emlaw had only visitation, not physical custody, and the child was present for a weekend visit. Moreover, the fact that Emlaw was not made a defendant is immaterial. As plaintiff points out, there is no requirement that Emlaw be named as a defendant and, in fact, the record discloses that part of plaintiff's theory of liability is that Jonah, not Emlaw, is the owner or harborer of the dog and that Jonah is therefore liable as the owner or for harboring the dog at the residential property that he rents from Stanley.
In sum, a review of the record reveals that, contrary to the court's determination, "the action against [defendants] was not begun in bad faith nor was it frivolous" (Penn Iron & Metal Co., 192 AD2d at 1060).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350192/ | People v Dean (2022 NY Slip Op 07352)
People v Dean
2022 NY Slip Op 07352
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND WINSLOW, JJ.
816 KA 18-02381
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vSTEPHEN R. DEAN, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered July 6, 2018. The judgment convicted defendant upon a jury verdict of driving while intoxicated, a class E felony (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of two counts of driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [c] [i] [A]), defendant contends that the verdict is against the weight of the evidence. More specifically, although defendant concedes that he was intoxicated at the time of his arrest, he contends that the People failed to prove the element of operation of a motor vehicle beyond a reasonable doubt. We reject defendant's contention.
The arresting officer testified at trial that, upon stopping a vehicle for a traffic infraction, he observed defendant hurriedly exit the vehicle from the driver's seat and walk around to the front passenger door. According to the officer, a woman was in the front passenger seat. The officer further testified that defendant, before submitting to field sobriety tests, said that the woman in the vehicle had initially been driving and that he "just started driving a little bit ago." Defendant later said to the officer, "I know I f***ed up. It's my fault." Although defendant and the woman testified that defendant was in the passenger seat when the vehicle was stopped and that defendant was not driving that evening, the conflicting testimony merely raised issues of credibility for the jury to resolve (see generally People v McKay, 197 AD3d 992, 993 [4th Dept 2021], lv denied 37 NY3d 1060 [2021]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that, although an acquittal would not have been unreasonable, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350170/ | People v Tubbins (2022 NY Slip Op 07317)
People v Tubbins
2022 NY Slip Op 07317
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
701 KA 19-01440
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vCHARLES TUBBINS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered May 24, 2019. The judgment convicted defendant, upon a plea of guilty, of criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the fifth degree.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, those parts of the omnibus motion seeking to suppress physical evidence and statements are granted, the indictment is dismissed, and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminal possession of a controlled substance in the fifth degree (§ 220.06 [5]), defendant contends that Supreme Court erred in refusing to suppress, as the products of an unlawful search and seizure, physical evidence and his statements to the police. We agree.
According to the evidence adduced at the suppression hearing, two police officers on routine patrol at night observed three individuals with open bottles and containers of alcohol seated at a picnic table in a grassy area outside of a vacant house known as a location for criminal activity, and saw a fourth individual smoking marihuana in the driveway. After an initial inquiry about what the individuals were doing, the officers approached the picnic table, where defendant was sitting with a cup, at which point defendant jumped up and attempted to run off. One of the officers grabbed and tackled defendant in front of the vacant house, and defendant was handcuffed. According to the officers, defendant was placed under arrest for violation of the local open container ordinance and for obstructing governmental administration. The police recovered a gun from defendant during a pat-down search at the scene and a bag of cocaine from defendant's person during a search after defendant was transported to central booking.
Following the suppression hearing and submission of a post-hearing memorandum of law by the People, the court issued a written decision in which it determined, as its conclusion of law, that "[t]he police had probable cause to issue defendant a citation [for] violation of a city ordinance and [t]respass" and, "[w]hen defendant ran prior to receiving the citation, the police had probable cause to stop and arrest defendant for [o]bstructing [g]overnmental [a]dministration." The court concluded that the searches of defendant at the scene uncovering the weapon and at central booking resulting in the discovery of cocaine were lawful incident to that arrest. The court therefore refused to suppress the physical evidence seized and defendant's statements to the police.
Initially, there is no dispute that, based on their observations of defendant and two other individuals sitting at a picnic table with open bottles and containers of alcohol outside of a vacant [*2]house known as a location for criminal activity and of a fourth individual smoking marihuana in the driveway, the officers had at least "an objective credible reason not necessarily indicative of criminality" justifying their approach of the group to request information by asking the "basic, nonthreatening question[]" about what the members of the group were doing (People v Hollman, 79 NY2d 181, 185 [1992]; see id. at 190; see generally People v Mack, 49 AD3d 1291, 1292 [4th Dept 2008], lv denied 10 NY3d 866 [2008]). The central question on appeal is therefore whether the officers had probable cause to arrest defendant for obstructing governmental administration on the ground that defendant interfered with the officers' ability to issue citations for a trespass violation (see Penal Law § 140.05) and a violation of the open container ordinance (see Buffalo City Code ch 69) when, immediately following the officers' approach and inquiry, defendant jumped up from the picnic table and began to run away. We agree with defendant, and the People do not dispute, that the officers did not have probable cause to arrest him for obstructing governmental administration.
As relevant here, "[a] person is guilty of obstructing governmental administration when he [or she] intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act" (Penal Law § 195.05). "The plain meaning of the statute and the accompanying commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function" (People v Brooks, 171 AD3d 778, 780 [2d Dept 2019] [internal quotation marks omitted]; see § 15.05 [1]). In addition, where, as here, the operative obstruction is interference, such interference "ha[s] to be, in part at least, physical in nature" (People v Case, 42 NY2d 98, 102 [1977]; see People v Dumay, 23 NY3d 518, 524 [2014]; Matter of Davan L., 91 NY2d 88, 91 [1997]).
Here, according to the court's decision, the officers had probable cause to believe that defendant intentionally attempted to prevent them from performing the official function of issuing citations for trespass and violation of the open container ordinance. As defendant contends, however, although the officers testified that they were planning to issue citations for violation of the open container ordinance as they approached the picnic table, there is no evidence that, when defendant jumped up from the table and attempted to run away, the officers were in the process of issuing the citations (cf. People v Hagood, 93 AD3d 533, 534 [1st Dept 2012], lv denied 19 NY3d 973 [2012]) or that they had given any directive for defendant to remain in place while they issued such citations (cf. Davan L., 91 NY2d at 91; People v Graham, 54 AD3d 1056, 1058 [2d Dept 2008]; People v Romeo, 9 AD3d 744, 745 [3d Dept 2004]). The officers thus had no reasonable basis to believe that defendant had the requisite intent—i.e., the conscious objective—to prevent them from issuing citations (see Penal Law §§ 15.05 [1]; 195.05). Consequently, as defendant contends and the People correctly concede, we conclude that the officers lacked probable cause to arrest defendant for obstructing governmental administration. The court therefore erred in determining that the searches of defendant at the scene uncovering the weapon and at central booking resulting in the discovery of cocaine constituted proper searches incident to a lawful arrest for obstructing governmental administration.
The People nonetheless contend, as they asserted in their post-hearing memorandum of law, that the officers had probable cause to arrest defendant for trespass and violation of the open container ordinance, and that the searches of defendant were incident to a lawful arrest on that basis. We agree with defendant for the reasons that follow that we have no authority to affirm on the ground proposed by the People (see People v Smith, 202 AD3d 1492, 1494 [4th Dept 2022]).
Under CPL 470.15 (1), "[u]pon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant." That provision is "a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court" (People v LaFontaine, 92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]; see People v Nicholson, 26 NY3d 813, 825 [2016]; People v Concepcion, 17 NY3d 192, 195 [2011]). "[W]here the trial court's decision is fully articulated[,] the Appellate Division's review is limited to those grounds" (Nicholson, 26 NY3d at 826). The Appellate Division engages in "the type of appellate overreaching prohibited by CPL 470.15 (1)" [*3]when it "renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant's favor" (id.; see LaFontaine, 92 NY2d at 472).
Here, the court determined that the officers' arrest of defendant, and thus the subsequent searches and seizures incident to that arrest, were lawful solely on the ground that the officers had probable cause to arrest defendant for obstructing governmental administration. Despite being presented with the People's argument, the court declined to uphold the searches and seizures as incident to a lawful arrest for trespass or violation of the ordinance. Thus, the court's determination that the officers had probable cause to arrest defendant for obstructing governmental administration, and that the searches and seizures were incident to a lawful arrest for that offense, "was the only issue decided adversely to defendant at the trial court" (LaFontaine, 92 NY2d at 474). That determination "alone constituted the ratio decidendi for upholding the legality of the [searches and seizures] and denying the suppression of evidence" (id.). Our "review, therefore, is confined to that issue alone" (id.; see People v Richards, 151 AD3d 1717, 1719 [4th Dept 2017]; see also Smith, 202 AD3d at 1494).
Based on the foregoing, inasmuch as the officers lacked probable cause to arrest defendant for obstructing governmental administration, we conclude that the court erred in refusing to suppress the physical evidence and defendant's statements to the police as the fruits of an unlawful arrest (see generally People v Ortiz, 31 AD3d 1112, 1113-1114 [4th Dept 2006], lv denied 7 NY3d 869 [2006]) and that defendant's guilty plea must be vacated (see Richards, 151 AD3d at 1720; People v Savage, 137 AD3d 1637, 1639-1640 [4th Dept 2016]). Moreover, because such a determination results in suppression of all evidence supporting the crimes charged, the indictment must be dismissed (see Richards, 151 AD3d at 1720; Savage, 137 AD3d at 1640).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350342/ | NUMBER 13-22-00322-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERT NICHOLAS SIMMONS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
ORDER TO FORWARD COPY OF EXHIBITS
Before Chief Justice Contreras and Justices Longoria and Silva
Order Per Curiam
This matter is before the Court on appellant’s motion for State’s exhibits number 3
and 19 and motion for extension of time to file brief. Appellant Robert Nicholas Simmons
appealed a judgment in trial court cause number 17FC-3271H. The trial court admitted
exhibits, which included State’s DVD exhibits 3 and 19. These exhibits contain audio or
video files which are not viewable by appellant’s counsel through the Court’s record service
portal. The Court is of the opinion that the appellant is entitled to view these exhibits.
Accordingly, appellant’s motion for State’s exhibits number 3 and 19 is granted. The clerk of the
trial court and the court reporter together are hereby ordered to forward a copy of State’s
exhibits 3 and 19 to appellant’s counsel within ten days from the date of this order.
Additionally, appellant’s motion for extension of time to file brief is hereby granted,
and the brief is now due forty days after the date this order issued.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
22nd day of December, 2022.
2 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350344/ | THE THIRTEENTH COURT OF APPEALS
13-21-00388-CR
JOSHUA BEAUREGARD
v.
THE STATE OF TEXAS
On Appeal from the
36th District Court of San Patricio County, Texas
Trial Court Cause No. S-19-3034CR
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
December 22, 2022 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350346/ | THE THIRTEENTH COURT OF APPEALS
13-22-00141-CR
JOHN ELDRIDGE MURPHY
v.
THE STATE OF TEXAS
On Appeal from the
12th District Court of Walker County, Texas
Trial Court Cause No. 28982
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
December 22, 2022 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350333/ | NO. 12-22-00279-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
MCBRIDE OPERATING, LLC, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
McBride Operating, LLC filed this original proceeding to challenge Respondent’s denial
of its Rule 91a motion to dismiss.1 We conditionally grant the writ.
BACKGROUND
In September 2021, Real Parties in Interest Terry Allen, Jan Allen, and Cypress Creek
Farms, LLC (collectively RPIs) sued McBride, Ronald Samford, Sammy Samford, and Vicky
Rankin, alleging that the Samfords and Rankin sold property to McBride when they had
promised to sell the property to the RPIs. 2 They further alleged that McBride filed an application
to operate a commercial waste disposal facility and associated pits with the Texas Railroad
Commission (the Commission or RRC), which administratively denied the application. They
asserted causes of action for breach of contract, fraud, promissory estoppel, and partial/specific
performance against Rankin and the Samfords, and sought a temporary restraining order,
temporary injunction, and permanent injunction against McBride. On October 8, 2021,
Respondent signed a temporary injunction, which enjoined McBride from:
A. Performing any operations in furtherance of the requested permit filed with the Railroad
Commission of Texas by the McBride Defendant and enjoining the McBride Defendant, along
1
Respondent is the Honorable James A. Payne, Jr., Judge of the 273rd District Court in Shelby County,
Texas.
2
The Samfords and Rankin are not parties to this original proceeding.
with any of their officers, agents, servants, employees, and attorneys, and upon those persons in
active concert or participation with them who receive actual notice of the order by personal service
or otherwise on the property identified as the 92.9085 acre tract of land sold from the Samford
Defendants to the McBride Defendant including any operations that would be allowed if the
permit filed with the Texas Railroad Commission is issued.
B. Actively changing the original contours of the land on the property identified as the 92.9085
acre tract of land in order to prepare the location for any planned oil and gas disposal activities
until further order of the Court.
C. From removing any top soil from the original contours of the land on the property identified as
the 92.9085 acre tract of land in order to prepare the location for any planned oil and gas disposal
activities until further order of the Court.
D. From transferring, selling or converting the property identified as the 92.9085 acre tract to any
third party by the McBride Defendant.
On June 17, 2022, the RPIs filed a first amended petition, in which they sought a
temporary and permanent injunction and asserted a violation of the Texas Natural Resources
Code against McBride. The amended petition no longer alleged causes of action against the
Samfords or Rankin. McBride filed its Rule 91a motion to dismiss and to dissolve the temporary
injunction on July 19. After a hearing, Respondent denied the motion on August 18.
Respondent’s order does not identify the reason or reasons for denying the motion. McBride
filed this original proceeding on October 19. 3
On November 28, Respondent signed an amended temporary injunction, which is
virtually identical to the original. 4 The amended injunction omits “D” from the list of items from
which McBride is enjoined and extends the injunction’s effective date until the matter is heard at
trial set for June 12, 2023.
PREREQUISITES TO MANDAMUS
Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619,
623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no
adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator
3
McBride also has an appeal pending before this Court in cause number 12-22-00248-CV, which
challenges the August 18 denial of its Rule 91a motion to dismiss and motion to dissolve the temporary injunction.
4
See McDowell v. McDowell, No. 02-16-00038-CV, 2016 WL 4141029, at *1 (Tex. App.—Fort Worth
Aug. 4, 2016, no pet.) (mem. op.) (“An amended or modified temporary injunction supersedes and implicitly vacates
a prior temporary injunction.”).
2
has the burden of establishing both prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex.
App.—Tyler 2014, orig. proceeding.). “Mandamus relief is appropriate when the trial court
abuses its discretion in denying a Rule 91a motion to dismiss.” In re Farmers Tex. Cty. Mut.
Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding).
ABUSE OF DISCRETION
McBride contends that Respondent abused his discretion when denying its Rule 91a
motion to dismiss because (1) Respondent lacks subject matter jurisdiction, as the only alleged
claim is not ripe as a matter of law and there is no legal injury; (2) the natural resources code
claim fails because McBride violated no statutes or rules; and (3) dismissal of the RPIs’ only
claim also necessitates dismissal of the injunctive relief claims.
Applicable Law
With certain exceptions inapplicable to this case, a “party may move to dismiss a cause of
action on the grounds that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of
action has no basis in law if the allegations, taken as true, together with inferences reasonably
drawn from them, do not entitle the claimant to the relief sought.” Id. “A cause of action has no
basis in fact if no reasonable person could believe the facts pleaded.” Id. A Rule 91a motion
must be based solely on the pleading of the cause of action, together with any pleading exhibits
permitted by Rule 59. 5 TEX. R. CIV. P. 91a.6.
“We review the merits of a Rule 91a ruling de novo; whether a defendant is entitled to
dismissal under the facts alleged is a legal question.” Farmers, 621 S.W.3d at 266. “We
construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept as
true the factual allegations in the pleadings to determine if the cause of action has a basis in law
or fact.” Malik v. Geico Advantage Ins. Co., Inc., No. 01-19-00489-CV, 2021 WL 1414275, at
*4 (Tex. App.—Houston [1st Dist.] Apr. 15, 2021, pet. denied) (mem. op.). We apply the fair-
notice pleading standard to determine whether a petition’s allegations are sufficient to allege a
5
See TEX. R. CIV. P. 59 (“Notes, accounts, bonds, mortgages, records, and all other written instruments,
constituting, in whole or in part, the claim sued on, or the matter set up in defense, may be made a part of the
pleadings by copies thereof, or the originals, being attached or filed and referred to as such, or by copying the same
in the body of the pleading in aid and explanation of the allegations in the petition or answer made in reference to
said instruments and shall be deemed a part thereof for all purposes. Such pleadings shall not be deemed defective
because of the lack of any allegations which can be supplied from said exhibit. No other instrument of writing shall
be made an exhibit in the pleading.).”
3
cause of action. Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet.
denied).
Compliance with Rule 91a.3(a)
The RPIs contend that McBride filed an untimely motion to dismiss. Under Rule 91a, a
motion to dismiss must be “filed within 60 days after the first pleading containing the challenged
cause of action is served on the movant[.]” TEX. R. CIV. P. 91a.3(a). “[A]lthough the procedural
deadlines in Rule 91a.3 are phrased in terms of ‘must,’ these provisions are directory and not
mandatory.” Malik, 2021 WL 1414275, at *4; see Walker v. Owens, 492 S.W.3d 787, 790–91
(Tex. App.—Houston [1st Dist.] 2016, no pet.); see also Koenig, 497 S.W.3d at 599. Thus, “any
noncompliance with the timing of the motion will not result in reversal if such error is harmless.”
Malik, 2021 WL 1414275, at *4.
McBride’s motion was not untimely. The RPIs filed their original petition on September
2, 2021, alleging breach of contract, fraud, promissory estoppel, and partial/specific performance
against Rankin and the Samfords and seeking injunctive relief against McBride. They filed their
amended petition on June 17, 2022, in which McBride was the only defendant. The amended
petition again sought injunctive relief but added a new claim under the Natural Resources Code,
including a request for injunctive relief and damages under the Code. See TEX. NAT. RES. CODE
ANN. § 85.321 (West 2011) (suit for damages); see also Exxon Corp. v. Emerald Oil & Gas Co.,
L.C., 331 S.W.3d 419, 422 (Tex. 2010) (Section 85.321 creates a private cause of action for
statutory violations). Thus, the amended petition was the first pleading containing this statutory
cause of action. The certificate of service reflects that all counsel of record were served on June
17.
McBride filed its motion to dismiss on July 19, within sixty days after the amended
petition was served on McBride’s counsel. See TEX. R. CIV. P. 91a.3(a). The motion expressly
references the amended petition, stating in pertinent part that “…Plaintiffs filed their First
Amended Original Petition, wherein Plaintiffs dismissed all of the claims, causes of actions
against the SAMFORDS, withdrawing their allegation of an oral contract and right to the
property in question. Plaintiffs remaining ‘causes of action’ are for a temporary and permanent
injunction for some future event that may or may not happen.” Even the RPIs’ response to the
motion acknowledges that McBride challenged the causes of action asserted in the amended
4
petition, stating “Defendant chose the wrong procedural vehicle to challenge the allegations in
Plaintiff’s Amended Petition.”
We do note that McBride’s motion does not specifically mention the natural resources
code. The RPIs identified this omission in their response to McBride’s motion and at the
hearing, but the parties addressed the substance of the issue at the hearing. 6 “A motion to
dismiss must state that it is made pursuant to this rule, must identify each cause of action to
which it is addressed, and must state specifically the reasons the cause of action has no basis in
law, no basis in fact, or both.” TEX. R. CIV. P. 91a.2 (emphasis added). Magic words are not
required; “[a]t issue is whether the grounds for dismissal are clear from the motion.” Cooper v.
Trent, 551 S.W.3d 325, 331 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). In Cooper, a
fair reading of the motion to dismiss established that movant challenged all of the plaintiff’s
causes of action, as the motion stated, “Pursuant to Texas Rule of Civil Procedure 91a, Michael
Trent moves to dismiss all of Cooper’s claims against him[.]” Id. at 331. The movant was “not
required to list separately each cause of action in the Rule 91a motion because he challenged
their collective viability[.]” Id. Although McBride’s motion does not expressly mention the
natural resources code, the motion did seek dismissal of the entire case and challenged the RPIs’
“remaining ‘causes of action.’” Thus, the motion challenges the collective viability of the RPIs’
claims for injunctive relief and damages under the natural resources code and was timely filed.
Ripeness
We first address McBride’s contention that the lawsuit must be dismissed for want of
subject matter jurisdiction because the RPIs’ only claim is not ripe as a matter of law and the
RPIs suffered no legal injury. According to McBride, the RPIs’ claim depends on the resolution
of hypothetical facts and events that have yet to occur. Specifically, McBride identifies the
following “hypothetical” events that may or may not come to fruition: (1) the “Commission may
or may not issue the permit that would allow McBride to commence construction on the
facility;” and (2) McBride has not commenced constructing the facility, or begun operating it.
McBride further asserts that the RPIs have suffered no legal injury, in that McBride “has done
nothing to injure [the RPIs’] land; it does not even have regulatory approval that would allow it
to begin construction.” McBride maintains that a claim is not ripe if based on assumptions about
actions that a governmental entity, such as the Commission, may or may not take. They further
6
The RPIs do not raise a complaint under Rule 91a.2 in their response to the petition for writ of mandamus.
5
assert that the RPIs essentially invite a prediction regarding what a permit may look like and
speculation that McBride will violate that permit or other environmental regulations if allowed to
construct and operate the facility. McBride maintains that, at this juncture, it cannot be
determined whether the Commission will issue a permit, what activity the permit will authorize,
and whether the permit will be upheld or modified.
The RPIs’ Amended Petition
In the factual background section of their amended petition, the RPIs stated that they own
several acres of land and McBride is the adjoining landowner. According to the RPIs, McBride
filed with the Commission an application for a permit to operate a commercial waste disposal
facility and associated pits on McBride’s land. The RPIs maintained that they use their land for a
commercial cattle operation and have water wells and ponds on their land, all of which would be
negatively impacted by a dumpsite. The RPIs alleged that (1) “Defendant’s desire to use the
McBride tract for an environmental dumpsite is reckless and dangerous to Plaintiffs and the
surrounding community, and court protection is required to prevent irreparable harm to land,
cattle and fresh water sources;” and (2) “Defendant by filing this permit expresses an intent to
use its land in such a way that will cause environmental harm to Plaintiffs’ land as well as to
other surrounding landowners, including harm to the fresh water strata used by numerous people
in the community.” The petition states, “Because the likelihood of long term harm to Plaintiffs’
land is irreparable, Plaintiffs seek the court’s protection in preventing this environmental damage
prior to the actual damage occurring.” According to the petition, the RPIs will be substantially
and irreparably harmed due to McBride’s requested use of its land, particularly given the request
to dispose of oil and gas waste. The petition alleges:
The contents of the materials being disposed will cause significant damage to the groundwater,
private water wells, and local water supply company that furnishes the water supply for the
community of Paxton. McBride has a long history of RRC violations and unless prevented by the
court, Defendant will create environmental damage to the McBride tract and Plaintiff’s tract.
The RPIs’ petition acknowledges that the Commission denied McBride’s permit on December
20, 2019, but that McBride appealed and the Commission has yet to rule on the appeal.
In the cause of action section of their petition, the RPIs allege the following pertinent to
their request for a temporary and permanent injunction:
6
This application for Temporary and Permanent Injunction against McBride Operating LLC seeks
to prevent any damage to the McBride tract, and also the surrounding lands that will be harmed,
including the Plaintiffs’ tract. If Defendant is allowed to operate this dumpsite, Plaintiffs anticipate
a substantial amount of dust, debris, and other contaminates blowing onto their lands, crops and
grasses which are used in livestock production and cattle operation for meat.
…
Plaintiffs seek to enjoin McBride from starting construction of the facility, defined in McBride’s
permit filed on November 7, 2019 and any such amendments to said permit filed with RRC. If the
permit is granted by the RRC, the commencement of construction and operations of the facility by
McBride will result in irreparable injury and harm.
They sought to enjoin McBride from:
Performing any operations in furtherance of the requested permit filed with the RRC by McBride,
and enjoining McBride along with any of their officers, agents, servants, employees, and
attorneys, and those persons in active concert or participation with them who receive actual notice
of the order by personal service or otherwise, on the property identified as the 92.9085 acre
McBride tract, including but not limited to construction and operation of an environmental
dumpsite and including any operations that would be allowed if the permit filed with the RRC is
issued.
Actively changing the original contours of the land on the McBride tract in order to prepare the
location for any planned oil and gas disposal activities until further order of the Court.
Removing any top soil from the original contours of the land on the McBride tract in order to
prepare the location for any planned environmental dumpsite and/or oil and gas disposal activities
until further order of the Court.
Transferring, selling or converting the property identified as the 92.9085 acre McBride tract to any
third party.
The RPIs further assert a violation of the Natural Resources Code. This portion of their
petition states, in pertinent part, as follows:
Plaintiffs seek equitable and statutory relief regarding anticipated violations by Defendant
of the Tex. Natural Resources Code § 85.001 (Vernon Supp 2019), et seq., and Texas Statewide
Rule 8, i. e. 16 Tex. Admin. Code § 3.8 (2018).
...
Clearly Defendants’ planned operation of an environmental dumpsite falls within the
statutorily prohibited activities which will cause pollution on Plaintiffs’ land. Plaintiffs, pursuant
to §85.321 of the Texas Natural Resources Code, seeks the court’s protection from Defendant’s
planned unlawful activities and asks the court to issue a temporary and permanent injunction from
the following acts, omissions and events on the McBride tract:
1) creating and operating an environmental dumpsite on the McBride tract as described in
McBride’s Application to the RRC;
2) Bringing oil and gas and hydrocarbon waste into the McBride tract;
3) Storing oil and gas waste on the McBride tract;
4) Violating Statewide Rule 8 by causing “pollution” as defined in Statewide Rule
8(a)(28);
7
5) Violating Texas Natural Resources Code §85.046(a) by permitting surface and
subsurface waste as defined therein.
…
In addition to seeking an injunction, Plaintiffs seek recovery of damages that will occur
should Defendant be allowed to create and operate an environmental dumpsite on land adjacent to
Plaintiffs’ cattle operations. Pursuant to §85.321 of the Texas Natural Resources Code, property
owners are able to seek recovery of damages for violations of the Texas Natural Resources Code.
As such, Plaintiffs seek recovery of any and all damages caused by Defendants’ proposed
operations in creating and operating an environmental dumpsite.
Plaintiffs’ damages are the difference between the value of Plaintiffs’ land and cattle
operations prior to Defendant’s activities in operating an environmental dumpsite and the value of
Plaintiffs’ land and cattle operations subsequent to Defendant’s activities. Plaintiffs seek any and
all recoverable damages caused to their property by Defendant’s activities on the McBride tract.
The RPIs attached exhibits to their petition, including deeds, the administrative denial of
McBride’s permit, Terry Allen’s affidavit, and photographs. The Commission’s denial contains
various statements in support of its decision, including that the (1) “location of the proposed
facility is in an area unsuitable for the processing and permanent interment of oil and gas waste,”
(2) facility’s design and layout is not “protective of surface water features or groundwater in the
area,” (3) “surface relief includes slopes in excess of 5%, which may contribute to potential
pollution of surface or subsurface waters through the off-site migration of waste into sensitive
areas in the event of a waste containment failure,” (4) “proposed liner systems are not protective
of groundwater due to the presence of shallow groundwater and the permeability characteristics
of the subsurface soils,” and (5) “facility does not provide for mechanical, chemical or thermal
separation of the incoming wastes, and there are waste streams that cannot be stored or processed
on-site by the design submitted in the application.” The denial further states:
Evaluating factors such as the topographical relief, the regional drainage patterns, the proximity to
water features and wetlands, the shallow groundwater, and the soil composition, indicates the
proposed facility location is not a viable option for the processing and permanent interment of oil
and gas waste. Technical Permitting has determined that permit issuance may cause or allow
pollution to surface or subsurface waters of the state.
The denial allowed for McBride to pursue a hearing but set forth a detailed list of items to
administratively complete the application. Those items include amending or submitting facility
designs, various diagrams, plan views, buffer zones, incoming waste streams, soil boring logs,
groundwater monitoring plans, design of truck wash bays, et cetera. Terry Allen’s lengthy
affidavit details his concerns and the impact on his property, bodies of water, and his cattle
operation should the facility be approved.
8
Analysis
Ripeness, a threshold issue that implicates subject matter jurisdiction, requires a plaintiff
to have a concrete injury before bringing a claim. Eagle Oil & Gas Co. v. TRO-X, LP, 619
S.W.3d 699, 706 (Tex. 2021). “Under the ripeness doctrine, we consider whether, at the time a
lawsuit is filed, the facts are sufficiently developed so that an injury has occurred or is likely to
occur, rather than being contingent or remote.” Id. (quoting Waco Indep. Sch. Dist. v. Gibson,
22 S.W.3d 849, 851–52 (Tex. 2000)). Thus, ripeness focuses on whether the case involves
uncertain or contingent future events that may not occur as anticipated or that may never occur.
Gibson, 22 S.W.3d at 852. By focusing on whether the plaintiff has a concrete injury, the
ripeness doctrine allows courts to avoid premature adjudication, and serves the constitutional
interests in prohibiting advisory opinions. Id. A case is not ripe when determining whether the
plaintiff has a concrete injury depends on contingent or hypothetical facts, or upon events that
have not yet come to pass. Id.
The RPIs rely on Ring Energy v. Trey Resources, Inc., 546 S.W3d 199 (Tex. App.—El
Paso 2017, no pet.) to support their position that the case is ripe. In that case, Trey obtained
permits from the Commission to develop an injection well and before it began its injection
program, Ring sued for injunctive relief on grounds that the water injection would cause
irreparable waste damage. Ring Energy, 546 S.W3d at 202. The issue before the El Paso Court
was “whether a trial court outside of Travis County has the jurisdiction to enjoin a party with a
valid permit from developing and using an injection well based on the claim that the injection
well will cause imminent and irreparable injury to the complaining party.” Id. The Court
answered this question in the affirmative. Id. In doing so, the Court characterized the parties’
arguments as follows:
Trey acknowledges that once its injection operations commence, and if it indeed damages Ring,
that a claim for damages in the courts might be cognizable under Section 85.321. Trey also
acknowledges that some form of equitable relief might also be available before the injection well
is put to use, but only in an action filed in Travis County challenging the order authorizing the
permit. But it contends that the Andrews County district court lacks subject matter jurisdiction to
prohibit the injection operation, and thus effectively invalidate the Commission's permits. Ring
counters that the plain language of Section 85.321 grants the courts of this state jurisdiction to hear
not only suits for damages, but also claims for equitable relief, which includes claims for
injunctive relief.
…
9
The parties do not argue that Section 85.321 does not include injunctive relief. Their arguments
focus on when and where it might be available.
Id. at 207-08. The Court held that:
…Section 85.321 creates a cause of action for damages and injunctive relief, and Section
85.322 allows such suit against any party who violates a law, rule, or order of the
Commission. Section 85.322 contains no venue provision, indicating to us that a Section
85.322 suit is governed by the venue restrictions applicable to any suit. The general venue
provisions permit a suit to be filed where all or a substantial part of the events giving rise to the
claim occurred, which would often be outside of Travis County.
Id. at 211. The Court later concluded that “the Legislature intended to allow pre-injury injunctive
relief in the county where the injury is threatened.” 7 Id. at 215.
Although Ring appears to acknowledge that a party can file for pre-injury injunctive
relief, a significant difference between Ring and the present case is that Trey had already
received its permit, while McBride has not. City of Anson v. Harper, 216 S.W.3d 384 (Tex.
App.—Eastland 2006, no pet.) is instructive. There, several plaintiffs sued the City of Anson
seeking damages and equitable relief because the City planned to build a municipal solid waste
landfill on land where the plaintiffs owned minerals. Harper, 216 S.W.3d at 387-88. The City
filed a plea to the jurisdiction, which the trial court denied. Id. On appeal, the City argued that
the plaintiffs’ claim for inverse condemnation was not yet ripe because their application for a
landfill permit was still pending before the Texas Commission on Environmental Quality. Id. at
389-90. The Eastland Court recognized Fifth Circuit cases in which neighboring landowners
sought to enjoin further development of proposed landfills, but because permit applications were
still pending before state agencies, the construction and operation of a landfill was a mere
possibility and the plaintiffs had not yet suffered actual damages; thus, the controversies over the
proposed landfills were not ripe. Id. at 390. (citing Monk v. Huston, 340 F.3d 279, 282 (5th Cir.
2003); Smith v. City of Brenham, Tex., 865 F.2d 662 (5th Cir.1989)). With respect to the City
of Anson, the Eastland Court sustained the ripeness issue in part, explaining as follows:
7
Nor do we find the RPIs’ other cases instructive. See Gregg v. Delhi-Taylor Oil Corp., 344 S.W.2d 411,
412 (Tex. 1961) (Gregg was drilling or had drilled a well and planned to increase productivity by fracturing the gas
producing formation; courts have power to grant injunctive relief to preserve status quo upon allegations and proof
that neighbor is about to fracture oil or gas producing horizon beyond property lines for purpose of increasing
productivity of neighbor’s well); see also Hastings Oil Co. v. Texas Co., 234 S.W.2d 389, 398 (Tex. 1950) (well
had not been completed, but probable cause existed to show that it would be completed, thus, petitioners were
committing a continuing trespass on the respondents’ land; injunctive relief was not beyond trial court’s discretion).
10
…The City has filed a permit application with the TCEQ. This application may or may
not be granted. Unless and until the City receives a permit, it cannot construct or operate a landfill.
…
This case is, however, distinguishable from Monk and Brenham because actual
construction had taken place on the property. The City had done some preliminary roadwork and
had cleared the property’s entrance. Davis testified that this work had destroyed some of their
geodes. The trial court entered findings of fact and conclusions of law following the jurisdictional
hearing. Those findings are unchallenged by the City. The trial court found that the City’s dirt
work had damaged a portion of the copper deposit and had restricted plaintiffs’ right to use the
surface. What might happen if the City’s permit application is approved does not present a ripe
controversy, and the trial court does not have jurisdiction to hear a claim based upon future events.
But, the trial court does have potential jurisdiction—subject to the City’s governmental immunity
defense—to resolve any claim based strictly upon events which have already taken place.
Id. at 390-91. After conducting an immunity analysis, the Eastland Court concluded that the trial
court had jurisdiction over the plaintiffs’ inverse condemnation claim to the extent the claim was
based upon actions that caused actual interference with plaintiffs’ property rights and over
plaintiffs’ Private Real Property Rights Preservation Act claim. Id. at 396. But the trial court
did not have jurisdiction over the inverse condemnation claim to the extent based upon future
actions or actions which had not yet caused actual interference. Id.
Here, McBride filed a permit and that permit was denied. McBride pursued an appeal,
which remains pending to this Court’s knowledge. But it is undisputed that McBride has yet to
receive a permit. A fair reading of the RPIs’ amended petition demonstrates that they seek
injunctive relief and damages to protect their property from harm that may result if McBride
succeeds in obtaining a permit to operate a commercial waste disposal facility. For instance,
their petition refers to McBride’s planned operation of the dumpsite and damages caused by
McBride’s proposed operations, states that irreparable injury and harm will occur if the permit is
granted, seeks to prevent environmental damage “prior to the actual damage occurring,” seeks
recovery of damages should McBride be allowed to create and operate the dumpsite, and seeks
equitable and statutory relief regarding anticipated violations of the Natural Resources Code and
Statewide Rule 8. 8 At this juncture, McBride’s appeal may or may not be successful and the
RPIs may or may not be harmed. As in Harper, unless and until McBride receives a permit, it
cannot construct or operate the proposed dumpsite. Thus, until a permit is issued, the dispute
8
Statewide Rule 8 addresses water protection. See 16 TEX. ADMIN. CODE § 3.8 (2018).
11
remains abstract and hypothetical, rendering it unripe for judicial review. See Monk, 340 F.3d at
283.
But the RPIs assert that their claim is not dependent on hypothetical facts or future events
because it is not solely based on whether the permit is approved. They explain that McBride has
“shown preliminary work on its land can and will proceed,” which does not fall within the
Commission’s jurisdiction and is not covered by the permit; thus, they are not “protected from
[McBride’s] preparatory activities” while the Commission considers the permit. They argue:
By conducting preliminary work such as placing pits, dams, paved roads, etc. on Defendant’s
tract, it will create runoff onto Cypress Creek located on Defendant’s land but which also services
Plaintiffs’ land…. there are enormous risks and dangers that Defendant’s massive preparations
will negatively impact the freshwater streams which Plaintiffs utilize for their commercial cattle
operation.… Such damages to this freshwater stream are irreparable.… An injunction is just the
type of remedy used for prevention of this kind of irreparable harm. Because Plaintiffs require
protection from Defendant’s preparatory activities while Defendant’s permit application is being
considered, their injury is imminent and not protected by the pending permit.
According to the RPIs, dissolution of the injunction would allow McBride to begin preparatory
activities that would irreparably harm the RPIs’ land and freshwater supply.
However, our review is limited to the pleading of the cause of action and permissible
pleading exhibits. See TEX. R. CIV. P. 91a.6; see also Zawislak v. Moskow, No. 03-18-00280-
CV, 2019 WL 2202209, at *4 (Tex. App.—Austin May 22, 2019, no pet.) (declining to consider
discovery exhibits and other documents in Rule 91a review but looking to live pleading and
pleading exhibits). Even construing the RPIs’ amended petition and exhibits in their favor, they
do not allege preparatory activity as a basis for their claims. Rather, the RPIs’ claims are clearly
based on the harm they will suffer should the permit be issued, and McBride constructs and
operates the dumpsite facility. From the amended petition, one could not even reasonably
conclude that an injury is likely to occur, given that the challenged activities are contingent on
the Commission’s grant of a permit, which it has already once administratively denied. See
Eagle Oil, 619 S.W.3d at 706.
As pleaded, the RPIs’ lawsuit against McBride involves uncertain or contingent future
events that may not occur as anticipated or that may never occur. See Gibson, 22 S.W.3d at 852.
Accordingly, we conclude that the RPIs’ claims are not ripe for judicial review and,
consequently, they are not entitled to the relief sought. See Harper, 216 S.W.3d at 390, 396; see
12
also Monk, 340 F.3d at 283; TEX. R. CIV. P. 91a.1 (cause of action has no basis in law if
allegations, taken as true, together with inferences reasonably drawn therefrom, do not entitle
claimant to relief sought); see also Gibson, 22 S.W.3d at 851 (ripeness focuses on when an
action may be brought and emphasizes the need for a concrete injury to present a justiciable
claim). As a result, Respondent lacks jurisdiction over the RPIs’ claims based upon future
actions or actions which have not yet caused actual interference. Respondent thereby abused his
discretion by denying McBride’s Rule 91a motion to dismiss and motion to dissolve the
temporary injunction. Because we so conclude, we need not address McBride’s remaining
contentions. See TEX. R. APP. P. 47.1.
DISPOSITION
Having determined that Respondent abused his discretion by denying McBride’s Rule
91a motion to dismiss, we conditionally grant McBride’s petition for writ of mandamus. We
direct Respondent to vacate his August 18, 2022 order denying the motion to dismiss, and in its
stead, to issue an order granting the motion to dismiss, dissolving the amended temporary
injunction, and dismissing the case. We trust Respondent will promptly comply with this opinion
and order. The writ will issue only if the trial court fails to do so within ten days of the date of
the opinion and order. The trial court shall furnish this Court, within the time of compliance
with this Court’s opinion and order, a certified copy of the order evidencing such compliance.
GREG NEELEY
Justice
Opinion delivered December 7, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
13
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 7, 2022
NO. 12-22-00279-CV
MCBRIDE OPERATING, LLC,
Relator
V.
HON. JAMES A. PAYNE, JR.,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
McBride Operating, LLC; who is the relator in appellate cause number 12-22-00279-CV and the
defendant in trial court cause number 21CV35791, pending on the docket of the 273rd Judicial
District Court of Shelby County, Texas. Said petition for writ of mandamus having been filed
herein on October 19, 2022, and the same having been duly considered, because it is the opinion
of this Court that the petition for writ of mandamus be, and the same is, conditionally granted.
And because it is further the opinion of this Court that the trial judge will act
promptly and vacate his order denying the Rule 91a motion to dismiss and, in its stead, issue an
order granting the motion, dissolving the amended temporary injunction, and dismissing the
14
case; the writ will not issue unless the HONORABLE JAMES A. PAYNE, JR. fails to comply
with this Court’s order within ten (10) days from the date of this order.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
15 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482449/ | DISMISSED and Opinion Filed November 4, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00924-CR
EX PARTE JACOB LANE THOMAS
On Appeal from the County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. W-006-80401-2022-HC-1
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Nowell, and Smith
Opinion by Justice Nowell
Jacob Lane Thomas has filed a motion to dismiss his appeal challenging the
trial court’s order denying his pretrial application for writ of habeas corpus seeking
release on bail. The motion to dismiss is signed by counsel and appellant. See TEX.
R. APP. P. 42.2(a). We GRANT the motion and DISMISS the appeal. See id. 43.2(f).
/Erin A. Nowell//
ERIN A. NOWELL
2200924f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EX PARTE JACOB LANE On Appeal from the County Court at
THOMAS Law No. 6, Collin County, Texas
Trial Court Cause No. W-006-80401-
No. 05-22-00924-CR 2022-HC-1.
Opinion delivered by Justice Nowell.
Chief Justice Burns and Justice Smith
participating.
Based on the Court’s opinion of this date, the appeal is DISMISSED.
Judgment entered this 4th day of November, 2022.
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482450/ | Affirmed and Opinion Filed November 4, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01037-CR
CARLOS BERNARD LANE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F18-76576-Y
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Pedersen, III
A jury found appellant Carlos Bernard Lane guilty of aggravated sexual
assault of a child, and the trial court assessed his punishment at six years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice plus a $1500 fine. In this Court, appellant challenges the sufficiency of the
evidence to support the jury’s verdict and the jurisdiction of the trial court to hear
his case; he also complains of errors in the court’s charge to the jury. We affirm.
Background
A.S. is the complaining witness in this case. Her mother (“Mother”) testified
at trial as A.S.’s outcry witness. Mother explained that appellant is her father and
that he had been absent from her life for a number of years when she was young.
Mother and appellant reconnected when both were living in Dallas; A.S. was seven
or eight years old at that time. Appellant would often watch A.S. for Mother while
Mother worked.
Mother testified that A.S. wanted to stay over at appellant’s home one night
in October 2018. That was the first time A.S. had spent the night unsupervised with
her grandfather. After appellant dropped A.S. off the next day, she told Mother that
“Papa touched me.” A.S. then described a series of events involving appellant. He
told her she smelled musty, and then he rubbed deodorant under her arms and on her
breasts. He later told her to take a shower, and while she was in the shower, he asked
her if she knew what her virginity was; while she was in the shower, he rubbed her
stomach, her legs, and in between her legs. After the shower, appellant gave A.S. a
big shirt and boxers to wear, and he washed her clothes. Although he knew A.S. was
afraid of the dark, he turned off all the lights and television; she was afraid, so she
went into appellant’s room and initially sat in a chair there. After appellant insisted,
A.S. got in his bed. He removed her underwear and his underwear, touched her on
her stomach and her neck, kissed her, and licked her breasts and between her legs.
Mother called the police, and she and A.S. went to Children’s Hospital, where A.S.
–2–
underwent a physical examination. Then they went to the Dallas Children’s
Advocacy Center, where A.S. was forensically interviewed.
A.S. testified that she was nine years old at the time of the events at issue. She
stated that she and Mother both wanted her to stay at appellant’s that night. She liked
her grandfather and had not had any problem with him. She described watching
television in the living room when they arrived at his apartment and getting appellant
a beer at his request. A.S. testified that she took a bath that evening, and while she
was in the bathtub appellant came into the room and put his hand on her vagina. This
scared her, and she told appellant, “My momma said don’t touch me there.”
Afterwards, she went with appellant to his room because all the lights were off, and
she was afraid of the dark. She played a piano there and watched cartoons on the
television while lying on a chest at the foot of the bed. After some time appellant
told her to get on the bed, and she did. Then appellant started to touch her on her
arms and her stomach. He lifted up her shirt and took off the boxers she had put on
after her bath. Then he touched her legs, “put his mouth in [her] private area,” and
was licking her inside her vagina. She testified it felt “[w]eird and nasty,” and she
was scared. She smelled alcohol on appellant’s breath. Appellant tried to make A.S.
put her hand on his penis; while appellant held her hand she touched his penis, and
it was hard. She didn’t say anything to appellant while this was happening because
she was scared. He told her not to tell Mother what happened. He washed the clothes
that she had worn to his apartment, and she wore them back home the next day.
–3–
On cross examination, A.S. admitted she had looked through appellant’s
drawers trying to find a cell phone; she said that appellant was “strict” and “mean in
his way.” The testimony on this subject is less than clear, but A.S. did not say that
she was punished for her conduct.
The defense was permitted to ask A.S. about an incident that she described to
the district attorney—for the first time—when preparing for trial: she told the
prosecutor that, when she was seven, a cousin had put his penis on her basketball
shorts and wanted her to touch it. During her initial forensic interview in 2018, A.S.
was asked whether anything like what had happened with appellant had happened to
her before; she said no. A.S. initially agreed with defense counsel that the act she
described involving her cousin was “very similar to the allegations that [she was]
making against Papa.” But on redirect, she testified specifically that no one had ever
licked her vagina before, and that had been her understanding of the question she
was asked in 2018.
Suzanne Dakil, M.D., the medical director of the Referral and Evaluation of
At-Risk Children Clinic at Children’s Medical Center, testified as an expert on child
abuse. She described the examination A.S. underwent at Children’s Hospital, and
she explained that the results were normal. Specifically, she testified that no DNA
evidence was discovered during that exam.
Dallas Police Department Detective Cory Foreman also testified at trial.
Foreman watched A.S.’s forensic interview, and he interviewed appellant after
–4–
appellant was arrested. In that interview, appellant repeatedly denied that he had
done anything to A.S., but he told the detective he had consumed a fifteen-pack of
beer and some tequila that night. Foreman testified that, based on his many years of
experience, he believed A.S. and not appellant.
The jury found appellant guilty, and the trial court assessed his punishment at
six years’ confinement plus a $1500 fine. This appeal followed.
Sufficiency of the Evidence
In his first issue, appellant argues that the evidence is insufficient to prove that
appellant committed the offense of sexual assault of a child. Appellant’s indictment
charged that he did “intentionally and knowingly cause the sexual organ of A.S., a
child, to contact and penetrate the mouth of defendant, and at the time of the offense,
the child was younger than fourteen years of age.” See TEX. PENAL CODE ANN.
§ 22.021(a)(2)(B). Appellant argues that the only evidence probative of that indicted
offense is A.S.’s testimony, and he contends that this evidence is “so weak that it
creates only a suspicion of wrongdoing.”
We review appellant’s challenge by examining the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The jury is the sole judge of the credibility and
weight to attach to witness testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012). Furthermore, the testimony of a child victim is sufficient by itself
–5–
to support a conviction for sexual assault of a child. TEX. CODE CRIM. PROC. ANN.
art. 38.07(a).
A.S. testified that appellant penetrated her vagina with his tongue. Appellant’s
defense was that no offense had occurred. The jury heard him deny the offense in a
recording of Detective Foreman’s interrogation, and defense counsel argued in
closing that the evidence—or lack thereof—supported his denial. Thus, the
fundamental issue for the jury was credibility. A.S.’s testimony was consistent with
her outcry to Mother immediately after the event. Foreman, who observed A.S.’s
forensic interview the day of her outcry, testified that she did not look coached or
appear to have made up her story; instead, she gave “sensory details and effects” as
she described what had happened. Considering the evidence in the light most
favorable to the verdict, we conclude that a rational juror could have believed A.S.
and found beyond a reasonable doubt that appellant committed the offense. See
Turner v. State, 626 S.W.3d 88, 96 (Tex. App.—Dallas 2021, no pet.).
We overrule appellant’s first issue.
Jury Charge Errors
In his second and third issues, appellant contends that the trial court submitted
erroneous definitions or instructions to the jury in its charge. Appellate resolution of
a jury-charge issue involves two steps. First, we determine whether error exists.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error does exist, we
determine whether the error caused sufficient harm to warrant reversal. Ngo v. State,
–6–
175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). When—as in this case—the errors
were not objected to, we will reverse only if the error created egregious harm such
that the defendant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985) (op. on reh’g). “Errors which result in egregious
harm are those that affect the very basis of the case, deprive the defendant of a
valuable right, vitally affect the defensive theory, or make a case for conviction
clearly and significantly more persuasive.” Taylor v. State, 332 S.W.3d 483, 490
(Tex. Crim. App. 2011).
Limiting Mental States to Relevant Conduct Elements
The indictment charged appellant with conduct that was performed
“intentionally and knowingly.” In his second issue, appellant complains that the trial
court’s charge incorrectly applied these mental states to all three possible conduct
elements—the nature of the conduct, the result of the conduct, and the circumstances
surrounding the conduct—in the definition section. Appellant argues that the
charge’s definitions of these mental states should have been limited to the nature of
appellant’s conduct, because aggravated sexual assault of a child is a nature-of-
conduct offense. See Gonzales v. State, 304 S.W.3d 838, 849 (Tex. Crim. App.
2010). Appellant did not object to the definitions at trial, so the error, if any, can
only support reversal if it caused appellant egregious harm. See Almanza, 686
S.W.2d at 171.
–7–
The language in a jury charge concerning the culpable mental state must be
tailored to the conduct elements of the offense. Price v. State, 457 S.W.3d 437, 441
(Tex. Crim. App. 2015). The State argues that appellant has not explained how
giving the full definitions in statutory form is error. But even if we assume that the
trial court’s giving the full statutory definitions of the relevant culpable states was
error in this case, we must determine whether appellant was deprived of a fair and
impartial trial by the failure to limit the conduct element. See Almanza, 686 S.W.2d
at 171. To that end, we review the entire jury charge, the state of the evidence, the
argument of counsel, and any other relevant information revealed by the record of
the trial as a whole. Taylor, 332 S.W.3d at 489.
For our purposes, the most important portion of the jury charge is the
application paragraph, which explains to the jury in concrete terms how to apply the
law to the facts of the case. Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex. Crim.
App. 2013). “We look at the wording of the application paragraph to determine
whether the jury was correctly instructed in accordance with the indictment and also
what the jury likely relied upon in arriving at its verdict, which can help resolve a
harm analysis.” Id. (footnote omitted). In appellant’s case, then, to assess harm
resulting from the inclusion of improper conduct elements in the definitions of
culpable mental states, we look first to determine whether the culpable mental states
were limited by the application paragraph. See Patrick v. State, 906 S.W.2d 481, 492
(Tex. Crim. App. 1995).
–8–
The application paragraph in this case stated:
Now, bearing in mind the foregoing instructions and definitions, if you
find from the evidence beyond a reasonable doubt that on or about the
27th day of October, 2018, in the county of Dallas and the state of
Texas, the defendant, Carlos Lane, intentionally or knowingly caused
the sexual organ of A. S., a child, to contact and penetrate the mouth of
the defendant, and that at the time of the offense, A. S. was younger
than 14 years of age, then you will find the defendant guilty of the
offense of Aggravated Sexual Assault of a Child, as charged in the
indictment, and you shall not consider whether the defendant is guilty
of any lesser offenses that are included in the indictment.
(Emphasis added.) The application paragraph correctly limited the charged mental
states to appellant’s conduct, i.e., to having “intentionally or knowingly caused the
sexual organ of A.S., a child, to contact and penetrate the mouth of [appellant].”
Because the trial court’s application of the facts to the law pointed the jury to the
appropriate portion of the definitions, we perceive no harm resulting from its failure
to limit the definitions of culpable mental states to the conduct element of the
charged offense. See id. at 493.
That conclusion is supported by the remaining Almanza factors. A.S. testified
to the conduct at issue here, i.e., penetration of her sexual organ; in Detective
Foreman’s interrogation, appellant repeatedly denied that conduct. And trial
counsel’s argument focused entirely on whether that conduct had ever occurred: he
challenged the credibility of A.S.’s testimony, of Mother’s testimony concerning
A.S.’s outcry, and of the investigative system that allowed a “single statement” to
–9–
bring appellant to arrest and trial.1 Indeed, our review of the record identified no
issue involving appellant’s mental state—only a credibility dispute as to whether the
charged conduct occurred.
Under the circumstances of this case, we conclude appellant was not harmed
egregiously by the trial court’s failure to limit the definition of mental states to the
conduct element at issue in this case. We overrule appellant’s second issue.
Definition of Reasonable Doubt
In his third issue, appellant argues that the trial court “committed structural
error by giving a definition of reasonable doubt in the jury charge.” In addressing
the burden of proof required for conviction, the trial court instructed the jury that the
State must prove the defendant guilty of every element of the offense charged
beyond a reasonable doubt. The instruction then stated: “The State is not required
to prove that a person is guilty beyond all doubt; the State must simply exclude all
reasonable doubt about the person’s guilt.” Appellant argues that this sentence
improperly defines “reasonable doubt” in violation of Paulson v. State, 28 S.W.3d
570 (Tex. Crim. App. 2000). We have previously—and repeatedly—considered the
substance of this instruction and held that it does not violate Paulson because it does
not define reasonable doubt. See O’Canas v. State, 140 S.W.3d 695, 701–02 (Tex.
1
Appellant’s counsel argued:
I’m asking you to find him not guilty because Carlos Lane did not do what the State alleged.
One statement is not enough. It’s not beyond a reasonable doubt, and it’s not proof that
Carlos Lane did anything to [A.S.].
–10–
App.—Dallas 2003, pet. ref’d); see also Jackson v. State, No. 05-19-01043-CR,
2021 WL 791095, at *4–5 (Tex. App.—Dallas Mar. 2, 2021, pet. ref’d) (mem. op.,
not designated for publication) (collecting cases). The court’s instruction “simply
states the legally correct proposition that the prosecution’s burden is to establish
proof beyond a reasonable doubt and not all possible doubt . . . [and] does not
attempt to aid jurors in determining whether their doubts are reasonable.” O’Canas,
140 S.W.3d at 702 (emphasis original).
The trial court did not err in instructing the jury as it did here. We overrule
appellant’s third issue.
Transfer of the Case
In his fourth issue, appellant asserts that the trial court lacked jurisdiction to
hear his case because the case was not transferred to its docket. Specifically,
appellant contends that because the indictment was presented by the grand jury of
the 194th District Court, jurisdiction vested in that court, and the record does not
contain an order transferring the case to Criminal District Court No. 7. Thus, he
contends, the trial court never acquired jurisdiction to hear appellant’s case.
Appellant’s counsel concedes that legal authority is contrary to this argument,
which he has raised in this Court many times. “When a defendant fails to file a plea
to the jurisdiction, he waives any right to complain that a transfer order does not
appear in the record.” Keller v. State, 604 S.W.3d 214, 231 (Tex. App.—Dallas
2020, pet. ref’d). Appellant did not file a plea to the jurisdiction in this case. He has
–11–
waived this complaint. Moreover, we have repeatedly rejected the substance of
appellant’s argument, even if it had been preserved. See, e.g., Bourque v. State, 156
S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet. ref’d) (cases returned by a grand
jury are not necessarily assigned to the court that impaneled the grand jury).
We overrule appellant’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
/Bill Pedersen, III//
BILL PEDERSEN, III
211037f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47
–12–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CARLOS BERNARD LANE, On Appeal from the Criminal District
Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F18-76576-Y.
No. 05-21-01037-CR V. Opinion delivered by Justice
Pedersen, III. Justices Myers and
THE STATE OF TEXAS, Appellee Garcia participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 4th day of November, 2022.
–13– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482456/ | DISMISS and Opinion Filed November 1, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00756-CV
MATTHEW TANNER, Appellant
V.
CROSSROADS ROW GROUP AND JOSE ESTEFES, Appellees
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-01527-2022
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Goldstein
Opinion by Chief Justice Burns
The filing fee and docketing statement in this case are overdue. By postcards
dated August 3, 2022 and September 29, 2022, we notified appellant the $205 filing
fee was due.1 We directed appellant to remit the filing fee within ten days and
expressly cautioned appellant that failure to do so would result in dismissal of the
appeal. Also by postcard dated August 3, 2022, we informed appellant the docketing
statement in this case was due. We cautioned appellant that failure to file the
docketing statement within ten days might result in the dismissal of this appeal
1
The appeal information sheet indicates appellant is not entitled to proceed without payment of costs.
without further notice. To date, appellant has not paid the filing fee, filed the
docketing statement, or otherwise corresponded with the Court regarding the status
of this appeal.
Accordingly, we dismiss this appeal. See TEX. R. APP. P. 37.3(b); 42.3(b), (c).
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
220756F.P05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MATTHEW TANNER, Appellant On Appeal from the 401st Judicial
District Court, Collin County, Texas
No. 05-22-00756-CV V. Trial Court Cause No. 401-01527-
2022.
CROSSROADS ROW GROUP Opinion delivered by Chief Justice
AND JOSE ESTEFES, Appellees Burns. Justices Molberg and
Goldstein participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
Judgment entered November 1, 2022
–3– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482457/ | Dismiss and Opinion Filed November 1, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00497-CV
GUS PARKER AND FORT PARKER ENTERPRISES, LLC BOTH D/B/A
MASTER CLEANERS, Appellants
V.
STELLAR RESTORATION SERVICES, LLC, Appellee
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-05775-2018
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Molberg
Appellants’ brief in this case is overdue. We extended the time to file
appellants’ brief until October 1, 2022. After appellants failed to timely file their
brief, we directed appellants by postcard dated October 5, 2022 to file their brief
within ten days and cautioned appellants that failure to do so would result in the
dismissal of this appeal without further notice. See TEX. R. APP. P. 38.8(a)(1). To
date, appellants have not filed their brief or otherwise corresponded with the Court
regarding the status of this appeal.
Accordingly, we dismiss this appeal. See TEX. R. APP. P. 38.8 (a)(1); 42.3(b),
(c).
220497f.p05 /Ken Molberg/
KEN MOLBERG
JUSTICE
–2–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GUS PARKER AND FORT On Appeal from the 417th Judicial
PARKER ENTERPRISES, LLC District Court, Collin County, Texas
BOTH D/B/A MASTER Trial Court Cause No. 417-05775-
CLEANERS, Appellants 2018.
Opinion delivered by Justice
No. 05-22-00497-CV V. Molberg. Justices Partida-Kipness
and Carlyle participating.
STELLAR RESTORATION
SERVICES, LLC, Appellees
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
Judgment entered this 1st day of November, 2022.
–3– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482452/ | REVERSE and REMAND and Opinion Filed November 3, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00871-CV
CAROL M. KAM, Appellant
V.
CARL DAVID ADAMS, Appellee
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-05795
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Goldstein
Opinion by Justice Reichek
Carol M. Kam, representing herself pro se, appeals the trial court’s summary
judgment granting a declaratory judgment in favor of Carl David Adams. Because
we conclude Adams failed to show his entitlement to summary judgment as a matter
of law, we reverse the trial court’s judgment and remand the cause for further
proceedings.
Background
At the center of this action is an “Attorney’s Retainer Agreement” pursuant to
which Adams was to represent Kam in two pending civil cases. Adams moved for
a traditional summary judgment seeking a declaration that the retainer agreement
was valid and enforceable. As supporting evidence, Adams submitted his affidavit,
a copy of the retainer agreement, and copies of emails he exchanged with Kam’s
older brother, Thomas.
In his affidavit, Adams testified he was contacted by Kam and Thomas about
representing Kam in two suits in which she had been representing herself pro se with
Thomas’s assistance. In their discussions, Thomas made it clear to Adams that he
was acting as Kam’s agent, legal consultant, and financial advisor and, as such, he
was negotiating for Adams’s services on Kam’s behalf. Thomas insisted it was
“absolutely necessary” for him to continue to provide consultation and advice to
Kam on matters pertaining to the litigation.
Based on his negotiations with Thomas, Adams drafted a proposed retainer
agreement that defined the term “Client” to include both Thomas and Kam. The
agreement further stated that Thomas was authorized to act on Kam’s behalf “to the
full extent necessary and convenient to facilitate the rendering of legal services by
[Adams].” Paragraph two of the agreement required Thomas and Kam to pay an
initial $10,000 “non-refundable legal fee” and to maintain an “ever-green retainer”
of not less than $5,000. Adams stated he forwarded the proposed agreement to Kam
and Thomas on February 5, 2021.
Adams met with Kam in his office on February 8. Thomas was not present at
this meeting. Kam signed the retainer agreement and gave Adams a check for
–2–
$10,000. Kam subsequently claimed that Adams orally agreed to hold the check
until Thomas signed the agreement. Adams stated Kam never requested he hold the
check and he did not agree to do so.
On February 10, Adams emailed the retainer agreement to Thomas stating,
Attached (in PDF format) is the modified Attorney’s Retainer
Agreement containing your suggested changes with regard to the
amount of the Non-Refundable Legal Fee called for in ¶ 2, as well as
the signatures of Carol Kam and myself, and dated February 8, 2021.
Please sign the Agreement at the place provided for your signature on
Page 5 and return a fully executed copy of the Agreement to my office
ASAP.
Thomas replied thirty minutes later,
We have a failure to communicate which is troubling. We have
a great case. You are a great attorney. You are authorized to proceed.
There will be no non-refundable retainer. Please start the Case and we
will pay you on the hourly basis. . . . The proposal also needs to list
clearly the goals for the case. . . . I will be around most of the day.
This was followed by another email from Thomas later that evening:
I will call you in the morning. We are not yet on the same page.
Carol and I have discussed and we have decided on a more direct route
for you.
Early in the morning of February 11, a severe cold front with inclement
weather hit north Texas. Adams testified that, due to the weather, he decided not to
travel to his office on Thursday, February 11 or Friday, February 12. Beginning on
Monday, February 15, Adams was no longer able to send or receive emails from his
home computer. Adams’s office building closed all operations on February 16.
–3–
During this time, Adams states he had no communications with either Thomas or
Kam.
Despite not being able to access his office and files, Adams stated he
immediately began working intensely on Kam’s cases in preparation for a hearing
scheduled to occur on February 18. Adams testified that, during their discussions
leading up to the retainer agreement, Thomas was adamant Adams be fully prepared
for the hearing and, given the lengthy history of the litigation prior to his
involvement, he stated it took significant effort for him to get “up to speed” and
prepare an analysis.
On the afternoon of February 16, Adams spoke with Kam. According to
Adams, Kam immediately stated that Adams’s lack of response to her telephone
calls (which he states he never received), or to her emails (which he states he
received only days later), had caused her to decide to discontinue using his services.
Adams stated he provided Kam with a detailed invoice for the work he performed.
In addition to the invoice, Adams testified he sent Kam a detailed explanation of his
lack of availability during the storm and encouraged her to reconsider her decision
to terminate his employment. In response, Kam accused Adams of dishonesty and
thievery and demanded Adams disgorge the $10,000 fee he had deposited. Kam told
Adams there was no valid agreement between them because Thomas never signed it.
–4–
In anticipation of claims being filed against him, Adams filed this declaratory
judgment action.1 Adams’s motion for summary judgment summarized the evidence
discussed above and argued simply,
Plaintiff Adams seeks Declaratory Judgment Relief from this Court,
declaring the unambiguous terms of and validity of the Contract, and
seeks the enforcement of all of the terms of the Contract, including the
Non-Refundable Legal Fee obligations of [Kam] under the undisputed
circumstances presented by the Motion for Summary Judgment.
In the alternative, Adams requested quantum meruit relief, also based solely on the
“undisputed circumstances presented.” Kam did not file a written response to the
motion.
Following a hearing, the trial court signed a judgment declaring that (1) the
retainer agreement was valid and enforceable, (2) the $10,000 legal fee was non-
refundable, and (3) Kam’s demands for the return of the $10,000 fee constituted a
repudiation of the agreement. Kam brought this appeal.
Analysis
As her primary argument on appeal, Kam challenges the trial court’s judgment
on the basis that the retainer agreement was not binding or enforceable without her
brother’s signature. To prevail on summary judgment, Adams was required to
establish that no material fact issues existed, and conclusively prove all elements of
his cause of action as a matter of law. Ziemian v. TX Arlington Oaks Apartments,
1
Kam asserted counterclaims under the Texas Deceptive Trade Practices Act, but later withdrew those
claims.
–5–
Ltd., 233 S.W.3d 548, 554 (Tex. App.—Dallas 2007, no pet.). We review a
summary judgment de novo to determine whether this burden has been met. Id. In
deciding whether there is a material fact issue precluding summary judgment,
evidence favorable to the nonmovant is taken as true, every reasonable inference is
indulged in the nonmovant’s favor, and any doubts are resolved in favor of the
nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).
We review the summary judgment record for evidence that would enable reasonable
and fair-minded jurors to differ in their conclusions. Ziemian, 233 S.W.3d at 554.
A motion for traditional summary judgment must expressly present the
specific grounds upon which it is made. TEX. R. CIV. P. 166a(c); McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993). “In determining
whether grounds are expressly presented, reliance may not be placed on briefs or
summary judgment evidence.” McConnell, 858 S.W.2d at 341. The nonmovant has
no burden to respond to a motion for traditional summary judgment unless the
movant establishes its right to judgment on the issues expressly presented to the trial
court. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). The trial
court may not grant summary judgment by default when the movant’s motion is
legally insufficient. Id.
In this case, Adams’s motion for summary judgment merely summarizes his
proffered evidence and then requests, based solely on “the undisputed
circumstances,” a declaratory judgment that the retainer agreement was valid and
–6–
enforceable. The motion cites no authority and does not discuss the elements
required for the formation of a valid contract. Nor does the motion explain how the
evidence submitted establishes any of the required elements. As such, we conclude
the motion failed to expressly present a specific ground for summary judgment.
McConnell, 858 S.W.2d at 341.
Furthermore, Adams’s motion failed to establish the absence of a material fact
issue. The elements required for the formation of a valid contract are: (1) an offer,
(2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the
minds, (4) each party’s consent to the terms, and (5) execution and delivery of the
contract with the intent that it be mutual and binding. Levetz v. Sutton, 404 S.W.3d
798, 803 (Tex. App.—Dallas 2013, pet. denied). Whether or not the parties intended
to enter into a final, binding, and enforceable contract is frequently a question of
fact. Foreca, S.A. v. GRD Dev. Co., Inc., 758 S.W.2d 744, 745 (Tex. 1988). Intent
is a fact question uniquely within the realm of the trier of fact because it depends
upon the credibility of the witnesses and the weight to be given to their testimony.
Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). If the parties
intended that their contract would not be binding until it was signed by the parties,
then the signatures of the parties are required for the contract to be effective. Rea v.
Simmons & Simmons Constr. Co., 275 S.W.2d 747, 750 (Tex. App.—San Antonio),
aff’d, 286 S.W.2d 353 (Tex. 1955).
–7–
Adams’s own summary judgment evidence demonstrates there is a fact issue
regarding whether the retainer agreement would be binding without Thomas’s
signature. The evidence shows that Thomas controlled most aspects of the litigation
involving his sister and he was the primary, if not sole party involved in negotiating
the terms of the retainer agreement with Adams. Thomas’s level of control was such
that both Thomas and Adams felt it necessary to make Thomas a party to the
agreement with the term “Client” defined as being both Thomas and Kam, jointly.
The agreement included distinct signature lines for both Kam and Thomas.
The evidence further shows Kam believed Adams would not deposit the check
she gave him until after Thomas signed the retainer agreement. Although Adams
disputes that this was their understanding, he is an interested witness. For the
testimony of an interested witness to establish a fact as a matter of law, there must
be no circumstances in evidence tending to discredit his testimony. Swilley v.
Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Such circumstances are presented here by
Kam’s complete reliance on Thomas in the creation and negotiation of the retainer
agreement, as well as the continued negotiations and apparent changes made to the
agreement, including to the non-refundable fee specifically, after Kam signed it.
Although Adams performed work on Kam’s cases, there is no evidence Kam
was aware of Adams’s performance or that she accepted the benefits of it. See Rea,
275 S.W.2d at 750. Furthermore, most of the work Adams performed appears to
–8–
have been done after Thomas informed him they would not pay him the non-
refundable fee that is in dispute.
Reading the evidence in the light most favorable to Kam, as we must, Adams’s
summary judgment evidence does not conclusively establish Kam intended to enter
a binding contract with Adams absent Thomas’s signature on the agreement.
Because Adams’s evidence serves only to raise a fact issue, Kam was not required
to offer a response to the motion for summary judgment or contradictory proof. See
Swilley, 488 S.W.2d at 67. “In our summary judgment practice, the opponent’s
silence never improves the quality of a movant’s evidence.” Id.
Based on the foregoing, we conclude Adams failed to establish his entitlement
to a declaratory judgment on the enforceability of the retainer agreement as a matter
of law. Accordingly, we reverse the trial court’s judgment and remand the cause for
further proceedings.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
210871F.P05
–9–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CAROL M. KAM, Appellant On Appeal from the 68th Judicial
District Court, Dallas County, Texas
No. 05-21-00871-CV V. Trial Court Cause No. DC-21-05795.
Opinion delivered by Justice
CARL DAVID ADAM, Appellee Reichek. Justices Schenck and
Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant CAROL M. KAM recover her costs of this
appeal from appellee CARL DAVID ADAM.
Judgment entered November 3, 2022
–10– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482451/ | DENY and Opinion Filed November 3, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01156-CV
IN RE BRODERICK MONDY AND ADDISON COOPER
CONSTRUCTION, LLC, Relators
Original Proceeding from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-06573-2021
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Partida-Kipness, and Justice Smith
Opinion by Chief Justice Burns
Before the Court is relators’ October 26, 2022 petition for writ of mandamus
wherein relators’ seek relief from the trial court’s October 17, 2022 Order on
Defendants’ Motion to Vacate Prior Sanctions Order. Also before the Court is
relators’ October 26, 2022 Emergency Motion for Stay of Underlying Proceedings.
Entitlement to mandamus relief requires relators to show that the trial court
clearly abused its discretion and that relators lack an adequate appellate remedy. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). After reviewing relators’ petition and the record before us, we conclude
that relators have failed to demonstrate entitlement to mandamus relief. See TEX. R.
APP. P. 52.8(a).
Accordingly, we deny the petition for writ of mandamus. We also deny
relators’ emergency motion as moot.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
221156F.P05
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482455/ | REVERSE AND RENDER; Opinion Filed November 1, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00188-CV
METROPCS TEXAS, LLC, Appellant
V.
ZAHRA AMIRI, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF MAHIR A. AMIRI AND ON BEHALF OF MINOR CHILDREN, Z.A.,
F.A., AND H.A.; SHIR A. AMIRI; AND FARZANA AMIRI, Appellees
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-20-04875-D
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Goldstein
Opinion by Justice Schenck
In this interlocutory appeal, MetroPCS Texas, LLC appeals the trial court’s
order denying its special appearance. We conclude the trial court lacked specific or
general jurisdiction over MetroPCS Texas. Accordingly, we reverse the trial court’s
order denying MetroPCS Texas’s special appearance and render judgment granting
the special appearance and dismissing appellees’ claims against MetroPCS Texas.
Because the dispositive issues in this case are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
In September 2018, Mahir Amiri was employed by a security company to
monitor and protect the premises of a Texaco gas station and a strip mall. Mr.
Amiri’s employer was, in turn, hired by the property owner of the strip mall
following the August 2018 entry of an agreed injunction in an action brought by the
City of Dallas. In that action, the City alleged (and the property owner disputed)
that over the eighteen months preceding the agreed order, multiple instances of
incidents of illegal drug use, aggravated assault, robbery, and murder had occurred
at the strip mall.1
Throughout the months of September, October, November, and December of
2018, Mr. Amir reported several verbal assaults and threats, including threats of
physical violence and death by individuals in the area. At approximately 10 p.m. on
December 20, Mr. Amiri was shot multiple times in his back while standing in the
parking lot of the strip mall, resulting in severe injuries requiring multiple surgeries
and care in specialized facilities before his death in April 2021.
In November 2020, Mr. Amiri’s wife2 filed suit against multiple defendants,
including the unknown assailant who shot Mr. Amiri, the security company who
1
That order decreed, among other things, the property owner provide and maintain at least one armed
and uniformed security officer and notify its tenants of any criminal activity occurring at the strip mall.
2
Mrs. Zahra Amiri filed her suit on her own behalf, as well as on behalf of Mr. Amiri and their three
minor children, and Mr. Amiri’s parents, Shir M. Amiri and Farzana Amiri later joined her suit as plaintiffs
(collectively, “Appellees”). The original petition named Mrs. Amiri as Mr. Amiri’s guardian. Her seventh
amended petition, live at the time of the challenged order, noted Mr. Amiri’s death in 2021 and named Mrs.
Amiri as administrator of his estate.
–2–
employed him, and several individuals and business entities she alleged to own or
operate the gas station, the strip mall, and stores in the strip mall. According to the
petition, MetroPCS Texas is a Delaware limited liability company doing business in
Texas. MetroPCS did not own the property, operate the store at the location or
employ Mr. Amir. Rather, its connection with the event is with its licensing another
company to use its name. Specifically, it entered into a dealer agreement with
another defendant, Chris & Steve, Inc., to market and sell its products and services
in the general area. Chris & Steve, Inc. in turn entered into a subdealer agreement
with yet another defendant, K Dynasty, permitting it to operate a MetroPCS store
located in the strip mall. By these arrangements, K Dynasty was permitted to use
the name and sell products and services associated with MetroPCS. K Dynasty, in
turn, rented space from the property owner who, in turn, hired the security company
that hired Mr. Amir.
MetroPCS Texas filed, and later amended, a special appearance, urging that
it is not personally subject to either general or specific jurisdiction in this case.
Appellees responded that the trial court had both general and specific personal
jurisdiction over MetroPCS Texas. After conducting a hearing, the trial court
subsequently signed an order overruling MetroPCS Texas’s amended special
appearance without specifying which type of personal jurisdiction it found. This
interlocutory appeal followed.
–3–
DISCUSSION
I. Personal Jurisdiction
Texas courts may exercise personal jurisdiction over a nonresident defendant
only if (1) the Texas long-arm statute permits the exercise of jurisdiction and (2) the
assertion of jurisdiction satisfies constitutional due-process guarantees. Kelly v.
Gen. Interior Constr., Inc., 301 S.W.3d 653, 657 (Tex. 2010). The long-arm statute
provides, in relevant part, that in addition to other acts that may constitute doing
business, a nonresident does business in this state if the nonresident commits a tort,
in whole or in part, in this state. TEX. CIV. PRAC. & REM. CODE ANN. § 17.042.
Personal jurisdiction over a nonresident defendant satisfies constitutional due-
process guarantees when the nonresident defendant has established minimum
contacts with the forum state and the exercise of jurisdiction comports with
traditional notions of fair play and substantial justice. Kelly, 301 S.W.3d at 658.
Minimum contacts are established when the nonresident defendant
purposefully avails himself of the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its laws. Id. at 657–58. In
determining purposeful availment, we consider (1) the defendant’s own actions but
not the unilateral activity of another party, (2) whether the defendant’s actions were
purposeful rather than random, isolated, or fortuitous, and (3) whether the defendant
sought some benefit, advantage, or profit by availing itself of the privilege of doing
business in Texas. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777,
–4–
785 (Tex. 2005). The focus is the relationship among the defendant, the forum, and
the litigation. Id. at 790 (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 (1984)). In this analysis, we do not assess the quantity of
the contacts, but rather their nature and quality. Moncrief Oil Int’l, Inc. v. OAO
Gazprom, 414 S.W.3d 142, 151 (Tex. 2013).
A defendant’s contacts with a forum can give rise to either specific or general
jurisdiction. Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333,
338 (Tex. 2009). A court has general jurisdiction over a nonresident defendant
whose affiliations with the State are so continuous and systematic as to render it
essentially at home in the forum State. See TV Azteca v. Ruiz, 490 S.W.3d 29, 37
(Tex. 2016) (citing Daimler v. Bauman, 571 U.S. 117, 127 (2014)). This test
requires substantial activities within the forum and presents a more demanding
minimum contacts analysis than for specific jurisdiction. Id. When a court has
general jurisdiction over a nonresident, it may exercise jurisdiction even if the cause
of action did not arise from activities performed in the forum state. Id.
By contrast, courts may exercise specific jurisdiction when the defendant’s
alleged liability arises from or is related to its activities conducted within the forum.
Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007); accord
Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773, 1780 (2017).
The “arises from or relates to” requirement lies at the heart of specific jurisdiction
by defining the required nexus between the nonresident defendant, the litigation, and
–5–
the forum state. Moki Mac, 221 S.W.3d at 579. In order for a nonresident
defendant’s contacts in a forum state to support an exercise of specific jurisdiction,
there must be a substantial connection between those contacts and the operative facts
of the litigation. Id. at 585; accord Walden v. Fiore, 571 U.S. 277, 284 (2014). The
operative facts of the litigation are those facts the trial court will focus on to prove
the nonresident defendant’s liability. See Jani-King Franchising, Inc. v. Falco
Franchising, S.A., No. 05-15-00335-CV, 2016 WL 2609314, at *5 (Tex. App.—
Dallas May 5, 2016, no pet.) (mem. op.), overruled on other grounds by Steward
Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 129 (Tex. App.—Dallas 2021,
no pet.); see also Saidara, 633 S.W.3d at 126.
For specific jurisdiction, we analyze the defendant’s contacts on a claim-by-
claim basis to determine whether each claim arises out of or is related to the
defendant’s minimum contacts. See id. But, when all the claims arise from the same
forum contacts, a claim-by-claim analysis is not required. See Luciano v.
SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 18 (Tex. 2021).
Because the minimum-contacts test is intended to ensure that the defendant
could reasonably anticipate being sued in the forum’s courts, foreseeability is an
important consideration in the analysis. TV Azteca v. Ruiz, 490 S.W.3d 29, 46 (Tex.
2016) (citing World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980);
BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)). But
foreseeability alone will not support personal jurisdiction. Id. Instead, the defendant
–6–
must reasonably anticipate being sued in the forum because of actions the defendant
“purposefully directed toward the forum state.” Id. (quoting Asahi Metal Indus. Co.
v. Superior Court of Cal., 480 U.S. 102, 112 (1987) (plurality opinion)). While a
defendant’s knowledge that its actions will create forum contacts may support a
finding that the defendant purposefully directed those actions at the forum, that
knowledge alone is not enough. Id.
In addition to minimum contacts, due process requires the exercise of personal
jurisdiction to comply with traditional notions of fair play and substantial justice.
See Moncrief Oil, 414 S.W.3d at 154. We undertake this evaluation in light of the
following factors, when appropriate: (1) the burden on the defendant; (2) the
interests of the forum in adjudicating the dispute; (3) the plaintiff’s interest in
obtaining convenient and effective relief; (4) the international judicial system’s
interest in obtaining the most efficient resolution of controversies; and (5) the shared
interest of the several nations in furthering fundamental substantive social policies.
Id. at 155 (citing Asahi, 480 U.S. at 113; Spir Star AG v. Kimich, 310 S.W.3d 868,
878 (Tex. 2010).
The plaintiff bears the initial burden to plead sufficient allegations to invoke
jurisdiction under the Texas long-arm statute. Moki Mac, 221 S.W.3d at 574. The
plaintiff must meet its initial burden on a special appearance by pleading, in its
petition, sufficient allegations to invoke jurisdiction under the Texas long-arm
statute. See Saidara, 633 S.W.3d at 129. Once the plaintiff has pleaded sufficient
–7–
jurisdictional allegations, a defendant who contests the trial court’s exercise of
personal jurisdiction bears the burden of negating all bases of jurisdiction alleged by
the plaintiff. Moki Mac, 221 S.W.3d at 574.
The ultimate question of whether a trial court has personal jurisdiction over a
nonresident defendant is a question of law. Id. And because jurisdiction is a
question of law, an appellate court reviews a trial court’s determination of a special
appearance de novo. Old Republic Nat’l Title Ins. Co. v. Bell, 549 S.W.3d 550, 558
(Tex. 2018). When, as here, the trial court did not issue findings of fact and
conclusions of law, all relevant facts that are necessary to support the judgment and
supported by evidence are implied. Id. When the appellate record includes the
reporter’s and clerk’s records, these implied findings are not conclusive and may be
challenged for legal and factual sufficiency in the appropriate appellate court. BMC
Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the
relevant facts in a case are undisputed, an appellate court need not consider any
implied findings of fact and considers only the legal question of whether the
undisputed facts establish Texas jurisdiction. Bell, 549 S.W.3d at 558.
II. Application of Law to Facts
A. Specific Jurisdiction
We begin our analysis with Appellees’ claims against MetroPCS Texas.
Appellees asserted several claims against defendants, including MetroPCS Texas,
referred to collectively as “Strip Mall Businesses,” specifically negligence,
–8–
negligence per se, gross negligence, premises liability, common law public nuisance,
statutory common nuisance, statutory public nuisance, civil conspiracy, joint
enterprise, aiding and abetting, and wrongful death. All of these claims arise from
the same forum contacts and thus a claim-by-claim analysis is not required. See
Luciano, 625 S.W.3d at 18.
Appellees’ theory of liability underlying each claim against MetroPCS Texas
is that MetroPCS Texas owed a duty to Appellees as an owner, operator, or controller
of premises and breached that duty by causing, contributing to, or refusing to abate
a public nuisance on its own respective properties or the properties it operated and
controlled. The public nuisance in question was alleged to be systemic and pervasive
criminal activities—to wit, possession, sale, and use of illegal drugs, aggravated
assault, robbery, and murder. Appellees alleged MetroPCS Texas knew or should
have known about these activities and failed to remove itself from the location or
otherwise cease or prevent—or warn the general public about—these activities
because it was somehow benefited by them. Indeed, Appellees alleged that
MetroPCS Texas
operated [its] premises as [a] habitual criminal propert[y], and knew or
should have known that criminal conduct against Mr. Mahir Amiri was
both imminent and foreseeable because [it] had notice since at least
March of 2016 that the area was a hub for criminal behavior by the
residents of the [nearby apartment complex] . . . both during and after
normal business hours.
The specific contacts that Appellees argue are connected to their suit are
particular terms contained in MetroPCS Texas’s dealer agreement with Chris &
–9–
Steve and in the subdealer agreement between Chris & Steve and K Dynasty.
Appellees’ petition urged that “MetroPCS Texas asserted or had a contractual
obligation to assert control over the location and manner in which Defendants Chris
& Steve [] and K Dynasty Investment operated the MetroPCS storefront.” In
particular, Appellees point to contractual terms that required Chris & Steve to notify
MetroPCS in writing of any order, injunction, or decree involving Chris & Steve or
its business; permitted MetroPCS Texas to terminate the dealer agreement if Chris
& Steve failed to operate the store in a manner—including “safety issues”—that
reflected positively on MetroPCS Texas;3 and required MetroPCS Texas’s approval
of the store location. They also refer to a contract addendum indicating MetroPCS
Texas’s 2017 approval of the store location.4
The subdealer agreement explicitly provides that (1) it will terminate at
MetroPCS Texas’s sole discretion when MetroPCS Texas notifies Chris & Steve
that the storefront location is no longer approved, and (2) MetroPCS Texas “is a
3
In particular, the dealer agreement provided:
MetroPCS [Texas] may terminate this Agreement at any time . . . if any of the following
occurs:
....
(d) Dealer fails to operate in a manner which reflects positively on MetroPCS [Texas].
This includes, but is not limited to, safety issues, disrepair, cleanliness, confidentiality,
online postings or actions inconsistent with a professional business establishment;
4
At the hearing on the special appearance and during oral argument, Appellees contended more
specifically and citing the 2018 dealer agreement with Chris & Steve attached to the amended special
appearance, as opposed to the 2014 agreement cited in Appellees’ response, that MetroPCS Texas could
have “require[d] [Chris & Steve] to staff a particular Storefront Location with a minimum of two (2)
employees at all times during store operating hours due to ongoing security and safety concerns.”
–10–
third-party beneficiary of the [subdealer agreement between Chris & Steve and K
Dynasty], and may take any equitable or legal action required to enforce its
provisions and the terms and conditions of the Dealer Agreement.”
Thus, the only arguments Appellees presented are that the dealer and
subdealer agreements allowed MetroPCS Texas to insist on the store’s operation in
a manner that reflects positively on MetroPCS Texas and to approve of the location
of the store.
As noted, Appellees’ claims must arise out of or relate to the defendant’s
contacts with the forum. See Ford Motor Co. v. Montana Eighth Judicial Dist.
Court, 141 S.Ct. 1017, 1025 (2021). Or put just a bit differently, there must be some
affiliation between the forum and the underlying controversy, principally, an activity
or an occurrence that takes place in the forum State and is therefore subject to the
State’s regulations. See id. Appellees point to no action (or inaction for that matter)
on the part of MetroPCS in allegedly failing to exercise its right to terminate or alter
its relations with the affiliated entities that would have affected the security at the
strip mall generally or in the hours at issue in this case. Instead, the subdealer/tenant
(KDynasty) had secured a security arrangement from the property owner in the form
of retaining armed security via Mr. Amir’s employer and, in turn, Mr. Amir himself.
Nothing in any of the contracts at issue authorized (much less required) MetroPCS
to provide armed security for visitors to the strip mall in general or the armed security
retained by its subdealer’s landlord in particular.
–11–
Further, the contractual rights that Appellees rely on in seeking to establish
specific jurisdiction over MetroPCS Texas would not give rise to any cognizable
claim of liability in tort make the prospect of defending against it forseeable. As a
rule, a person has no legal duty to protect another from the criminal acts of a third
person. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756
(Tex. 1998). An exception is that one who controls the premises has a duty to use
ordinary care to protect invitees from criminal acts of third parties if he knows or
has reason to know of an unreasonable and foreseeable risk of harm to the
invitee. See id. The exception applies, of course, to a landlord who retains control
over the security and safety of the premises. See id. “But a contracting party’s right
to order work stopped or fire an independent contractor for non-compliance does not
create liability for everything the independent contractor does (or fails to do).” Shell
Oil Co. v. Khan, 138 S.W.3d 288, 293 (Tex. 2004). MetroPCS was, of course, not
the landlord or property owner. Neither was it even a tenant. Its connection to the
tragic incident here was its direct contractual license relationship with one party and
its subrelation to another.
It is undisputed Mr. Amiri (who had been hired to serve as the armed security
himself) was assaulted in the parking lot, not in the store itself, and none of the
contractual rights could arguably grant MetroPCS Texas the right to control the
–12–
parking lot.5 It is undisputed that the property owner maintained an armed security
guard, and nothing in the petition or the evidence would suggest to a person of
ordinary intelligence to add additional security or to foresee litigation for failure to
do same.6 See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 549–50 (Tex.
1985) (“Foreseeability means that the actor, as a person of ordinary intelligence,
should have anticipated the dangers that his negligent act created for others.”).
Appellees attempt to draw an analogy between the facts of Ford Motor Co. v.
Montana Eighth Judicial Dist. Court, 141 S.Ct. 1017, 1022 (2021), and the facts of
this case. In Ford, the plaintiffs in two separate cases consolidated on appeal brought
suit for product liability stemming from car accidents, and the defendant did
substantial business in the forum states, “among other things, advertising, selling,
and servicing the model of vehicle the suit claims is defective.” See id. The
defendant conceded it did substantial business in the forum states and that it actively
seeks to serve the market for automobiles and related products in those states. See
id. at 1026. What the defendant disputed was whether its activities in those states
gave rise to the plaintiffs’ claims. See id. The United States Supreme Court noted
5
For that matter, there is no evidence MetroPCS Texas had any control over the store at the time of the
assault, given that the shooting occurred at approximately 10 p.m., and the contractual provision regarding
the requirement of additional staff specified such employees be present “during store operating hours.”
6
At the hearing on the special appearance and during oral argument, Appellees contended more
specifically and citing the 2018 dealer agreement with Chris & Steve attached to the amended special
appearance, as opposed to the 2014 agreement cited in Appellees’ response, that MetroPCS Texas could
have “require[d] [Chris & Steve] to staff a particular Storefront Location with a minimum of two (2)
employees at all times during store operating hours due to ongoing security and safety concerns.” However,
nothing in the petition or the evidence would suggest to a person of ordinary intelligence to add an additional
employee in the store during operating hours or to foresee suit for failure to do same.
–13–
that the requirement of a connection between a plaintiff’s suit and a defendant’s
activities is not limited to causation but may instead relate to the defendant’s contacts
with the forum. See id. Thus, where the defendant serves a market for a product in
the forum state and the product malfunctions there, specific jurisdiction attaches.
See id. at 1027.
A key distinction here is that none of Appellees’ claims relate to allegations
that a product MetroPCS Texas sold was defective. Instead, what Appellees contend
is that MetroPCS Texas sold products and services in a location known to be
frequented by criminals and gangs, that it knew its products and services were
preferred by such persons, and that it refused to exercise any contractual right to
remove its products and services from that location. But, again, the claims are that
Mr. Amiri was shot in the parking lot near strip mall at night, not in the store during
store hours, and none of the alleged contacts of MetroPCS Texas would give rise to
foreseeability or liability.7 Accordingly, we reject Appellees’ assertion that Ford
requires a finding of specific jurisdiction.
We conclude any finding of specific jurisdiction was in error.
7
In order for Ford to be truly analogous, that case must have involved a similar allegation that plaintiffs
were injured by criminals driving defendant’s cars and that the defendant was responsible because it knew
that criminals preferred to purchase its cars. As exciting and, no doubt, defamatory as such an allegation
would be, it was not in fact made in that case. See Ford, 141 S.Ct. at 1022.
–14–
B. General Jurisdiction
Although the “paradigm” forums in which a corporate defendant is “at home”
are the corporation’s place of incorporation and its principal place of business, the
United States Supreme Court has recognized the possibility of an “exceptional case,”
a corporate defendant’s operations in another state that are “so substantial and of
such a nature as to render the corporation at home in that State.” See BNSF Ry. Co.
v. Tyrrell, 137 S.Ct. 1549, 1558 (2017). Appellees do not allege in their brief that
such an exception case exists here, but because they argued as such to the trial court,
because the trial court did not specify which jurisdiction it found, and because
MetroPCS Texas challenges any such finding on appeal, we consider that argument
here.
In their petition, Appellees alleged MetroPCS Texas “is a foreign limited
liability company doing business in the State of Texas.” The petition alleged
MetroPCS Texas had headquarters located in Richardson, Texas, on which it paid
local and Dallas County taxes. Appellees further alleged the “main purpose” of
MetroPCS Texas is to enter into authorized dealer agreements with Texas entities in
the State of Texas and that it sells its products in the Texas marketplace through
numerous authorized dealer agreements. Finally, Appellees alleged that MetroPCS
–15–
Texas’s contacts with Texas are so continuous and systematic that it is essentially at
home in Texas.8
We conclude Appellees met their minimum pleading requirement. See
Saidara, 633 S.W.3d at 127 (noting minimum pleading requirement satisfied by an
allegation that nonresident defendant is doing business in Texas or committed
tortious acts in Texas). We now examine whether Metro PCS Texas has met its
burden to negate all potential bases for personal jurisdiction that exist in Appellees’
pleadings. See Searcy v. Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016).
MetroPCS Texas urges, and offered evidence, it is neither incorporated nor
headquartered in Texas and that it is a Delaware limited liability company with a
principal place of business in the state of Washington. Metro PCS also offered
evidence denying that it maintains any corporate business records in Texas; that it
holds any member or shareholder meetings in Texas; that it has any employees,
officers, or directors in Texas; or that it owns or leases any real property in Texas.
As for its Richardson office, MetroPCS Texas conceded its dealer agreement lists a
8
Appellees also allege MetroPCS Texas’s principal office was located in Texas for almost a decade
before moving to Washington “sometime in 2014.” Although neither this Court nor any other controlling
authority appears to have directly commented on whether evidence of a corporation’s past place of domicile
may be considered in considering whether that defendant is subject to general jurisdiction, one of our sister
courts of appeals has done so, and we agree that evidence “[t]hat Texas was once the company’s only place
of business is entitled to little weight.” Ascentium Capital LLC v. Hi-Tech the Sch. of Cosmetology Corp.,
558 S.W.3d 824, 831 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Perkins v. Benguet Consol.
Mining Co., 342 U.S. 437, 447–48 (1952)). Indeed, as recently noted by the United States Supreme Court,
“General jurisdiction . . . extends to any and all claims brought against a defendant . . . . But that breadth
imposes a correlative limit: Only a select ‘set of affiliations with a forum’ will expose a defendant to such
sweeping jurisdiction.” Ford Motor, 141 S.Ct. at 1024 (quoting Daimler, 571 U.S. at 137).
–16–
business address located in Richardson, but it offered evidence that until early 2020,
it leased office space at which MetroPCS Texas only stored personal business
property in the form of furniture, office fixtures, and office equipment. The parties
attached as evidence the 2014 and 2018 dealer agreements between MetroPCS Texas
and Chris & Steve, which both required any contractually required notices to
MetroPCS Texas to be sent to an address in Richardson. After reviewing the
allegations and the evidence, we conclude MetroPCS Texas negated the allegations
that it maintains headquarters in Texas. See Searcy, 496 S.W.3d at 66.
As for Appellees’ allegations that MetroPCS Texas’s “main purpose” appears
to be to enter into dealer and subdealer agreements in Texas, thus “taking full
advantage of the Texas marketplace to make money,” MetroPCS Texas offered
evidence that until June 2020, it contracted with dealers and subdealers in New
Mexico, Texas, and Louisiana. Thus, to the extent we may infer MetroPCS Texas’s
purpose was to do business in New Mexico, Texas, and Louisiana, we note that “a
corporation that operates in many places can scarcely be deemed at home in all of
them.” See Tyrrell, 137 S.Ct. at 1559.
Accordingly, we conclude there is no credible argument that MetroPCS Texas
maintains a presence in Texas and thus any finding of general jurisdiction was in
error.
We sustain MetroPCS Texas’s issue and conclude the trial court erred by
denying MetroPCS Texas’s special appearance.
–17–
CONCLUSION
We reverse the trial court’s order denying MetroPCS Texas’s special
appearance and render judgment granting the special appearance and dismissing
appellees’ claims against MetroPCS Texas.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
220188F.P05
–18–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
METROPCS TEXAS, LLC, On Appeal from the County Court at
Appellant Law No. 4, Dallas County, Texas
Trial Court Cause No. CC-20-04875-
No. 05-22-00188-CV V. D.
Opinion delivered by Justice
ZAHRA AMIRI, INDIVIDUALLY Schenck. Justices Reichek and
AND ON BEHALF OF THE Goldstein participating.
ESTATE OF MAHIR A. AMIRI
AND ON BEHALF OF MINOR
CHILDREN, Z.A., F.A., AND H.A.;
SHIR A. AMIRI; AND FARZANA
AMIRI, Appellees
In accordance with this Court’s opinion of this date, we REVERSE the trial
court’s order denying METROPCS TEXAS, LLC’s special appearance, and we
RENDERED judgment:
granting METROPCS TEXAS, LLC’s special appearance and
dismissing ZAHRA AMIRI, INDIVIDUALLY AND ON BEHALF
OF THE ESTATE OF MAHIR A. AMIRI AND ON BEHALF OF
MINOR CHILDREN, Z.A., F.A., AND H.A.; SHIR A. AMIRI; AND
FARZANA AMIRI’s claims against it.
It is ORDERED that appellant METROPCS TEXAS, LLC recover its costs
of this appeal from appellees ZAHRA AMIRI, INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF MAHIR A. AMIRI AND ON BEHALF OF
MINOR CHILDREN, Z.A., F.A., AND H.A.; SHIR A. AMIRI; AND FARZANA
AMIRI.
–19–
Judgment entered this 1st day of November 2022.
–20– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482454/ | Affirmed and Opinion Filed November 1, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00559-CV
IN THE INTEREST OF P.M.B. AND P.M.B., CHILDREN
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-51950-2013
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Garcia
Opinion by Justice Molberg
Mother appeals the trial court’s February 20, 2020 order in this suit to modify
the parent-child relationship. We overrule her sole issue and affirm in this
memorandum opinion. See TEX. R. APP. P. 47.4.
I. Background
Mother and Father divorced on February 13, 2015. At the time of their
divorce, their oldest daughter was eight years old, and their youngest daughter was
almost five.1 The divorce decree is not in the record before us. According to the
1
Because each child has the initials P.M.B., we refer to the children as the “oldest daughter” or
“youngest daughter” when necessary to distinguish between the two. When referring to them together, we
refer to them as “the children.”
docket sheet in the record, Mother filed a petition to modify the parent-child
relationship in 2016, which resulted in an agreed nunc pro tunc order rendered on
July 31, 2017, and signed November 17, 2017.2 That order is also not in the record
before us.3
Mother filed the instant suit on January 9, 2018. In her petition, Mother stated
that she sought to modify the order signed November 17, 2017, and she alleged, in
part, that “[t]he circumstances of the children, a conservator, or other party affected
by the order to be modified have materially and substantially changed since the date
of rendition of the order to be modified.” Based on allegations Mother made
regarding Father’s conduct,4 she asked that the court appoint her as sole managing
conservator or alternatively appoint the parties as joint managing conservators of the
children. Mother also asked, in part, that she be appointed as the person with the
exclusive right to designate the children’s primary residence, to receive and give
receipt for periodic payments for their support, and to consent to psychiatric and
psychological treatment of the children.
2
Mother states this order “was judicially pronounced and rendered in [c]ourt on July 31, 2017 . . . but
[was] signed on November 17, 2017.” We do not have a record of the July 31, 2017 proceedings.
3
While we have no way to verify this from the record, Mother maintains that in the November 17, 2017
order, the trial court ordered that each party has the “independent right, subject to the duty to consult with
the other party, including providing information as to the provider’s name, address, telephone number, the
child’s issue, and notice of the first and subsequent appointments immediately when the appointment is
made, to consent to psychiatric and psychological treatment of the children.”
4
Mother attached an affidavit to her petition alleging various acts by Father since July 31, 2017, and
stating her belief that the children’s present environment may endanger their physical health or significantly
impair their emotional development. Mother alleged that before the filing of the suit, Father had “engaged
in a history or pattern of parental alienation and emotional abuse of [Mother] as well as the children.”
–2–
Father answered, generally denying Mother’s allegations. His answer
requested attorneys’ fees, expenses, and costs but did not request other relief.
The suit was tried to the bench on June 14, 2019. Four witnesses testified:
Mother, Father, a records custodian, and the children’s counselor, Jeanie Barnes,
M.A., L.P.C. During closing arguments, each counsel argued, in part, that their
respective clients should be awarded the exclusive right to consent to psychiatric and
psychological treatment of the children.5 Neither side objected to those arguments
or suggested that the court could not decide that issue. The court took the matter
under advisement at the end of trial.
Four days after trial, the court issued a memorandum ruling denying Mother’s
modification request. In that ruling, the court indicated, in part, that Father would
have the exclusive right to consent to psychiatric and psychological treatment of the
5
Mother’s counsel argued:
[W]e want to make sure, even if the parties are named joint managing conservators, that
[Mother] has the exclusive right to make psychiatric and psychological decisions and
counseling decisions after meaningful consultation with [Father] and subject to any other
requirements that she may be under by the Court in order to exercise that exclusive right,
anything that’s necessary to make sure that [Father] has the ability to participate and does.
Father’s counsel argued:
We do not believe that [Mother] should have the exclusive right to make decisions
concerning psychiatric or psychological treatment of the children. We would first ask that
that exclusive right be given to [Father].
As an alternative to that, Your Honor, we would request . . . that that right be shared by the
parties subject to the terms and conditions that the Court imposes as you see proper to make
sure that the children receive the care that they need and yet both parents are still actively
participating in those decisions.
–3–
children. The memorandum ruling indicated it was not a final judgment and that
further action was required regarding a final order.
Approximately three months later, Father moved for leave to file an amended
pleading. The motion stated that “leave of court is necessary to allow [Father’s]
relief requested to conform to the evidence presented at trial.” Attached to Father’s
motion was a counterpetition to modify the parent-child relationship.6 The court
granted Father’s motion in an order signed September 18, 2019, but the court later
vacated and set aside that order on February 20, 2020—the same day the court signed
the final order Mother now appeals. Thus, at the time the final order was signed, the
Father’s live pleading was his general denial.
In the February 20, 2020 final order, the trial court denied Mother’s petition
to modify. As to conservatorship, the order appointed Mother and Father as parent
joint managing conservators of the children with various rights and duties, including,
but not limited to, the right to receive information from any other conservator of the
children concerning the children’s health, education, and welfare; the right to confer
with the other parent to the extent possible before making a decision concerning the
children’s health, education, and welfare; the right of access to medical, dental,
psychological, and educational records of the children; the right to consult with a
physician, dentist, or psychologist of the children; and the duty to inform the other
Father’s counterpetition requested certain relief but did not make any specific requests regarding his
6
or Mother’s rights to make psychological, psychiatric, and counseling decisions for the children.
–4–
conservator of the children in a timely manner of significant information concerning
the children’s health, education, and welfare.
Also as to conservatorship, the order also stated that Father shall have the
exclusive right to designate the children’s primary residence within Collin County,
Texas and the exclusive right to consent to psychiatric and psychological treatment
of the children. Finally, the order stated that after December 31, 2019, Father may
choose to continue the children in treatment with Jeannie Barnes, M.A., L.P.C., a
different counselor of his selection, or choose to discontinue the children’s
counseling if recommended by Jeannie Barnes, M.A., L.P.C. The court’s order as
to Father’s exclusive right to consent to psychiatric and psychological treatment of
the children and his right regarding their counseling are the only rights about which
Mother complains on appeal.
Mother requested findings of fact and conclusions of law twelve days after
the final order was signed. Thirty days after the final order was signed, she filed a
motion for new trial and an amended motion for new trial.
The trial court issued its findings of fact and conclusions of law on April 9,
2020, concluding that “[i]t is in the best interest of the children that [Father] have
the exclusive right to make the psychological, psychiatric, and counseling decisions
for the children.”
Once her amended motion for new trial was overruled by operation of law,
Mother timely appealed.
–5–
II. Discussion
In her sole issue, Mother argues the trial court abused its discretion by granting
Father the exclusive right to consent to psychiatric and psychological treatment of
the children and to make counseling decisions for the children because that relief
was not requested by Father in his pleadings or tried by consent.
As a general rule, we give wide latitude to a trial court’s decision on custody,
control, possession, and visitation matters. In re C.P.J., 129 S.W.3d 573, 576 (Tex.
App.—Dallas 2003, pet. denied). We will not disturb a trial court’s decision on a
motion to modify conservatorship unless the complaining party shows a clear abuse
of discretion, meaning the trial court acted in an arbitrary and unreasonable manner
or without reference to guiding rules or principles. See In re C.F.M., No. 05-17-
00141-CV, 2018 WL 2276351, at *3 (Tex. App.—Dallas May 18, 2018, no pet.)
(mem. op.).
As relevant here, a trial court may modify a conservatorship order only if the
circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed since the order was rendered and the
modification would be in the child’s best interest. TEX. FAM. CODE § 156.101(a)(1).
The party seeking modification bears the burden of establishing a material and
substantial change in circumstances. In re C.H.C., 392 S.W.3d 347, 349 (Tex.
App.—Dallas 2013, no pet.). Changed circumstances may be established by
–6–
circumstantial evidence, and the law does not prescribe any particular method for
showing them. See In re C.F.M., 2018 WL 2276351, at *2.
As indicated, Mother argues the trial court abused its discretion by granting
Father the exclusive right to consent to psychiatric and psychological treatment of
the children and to make counseling decisions for the children because that relief
was not requested by Father in his pleadings or tried by consent. Citing Flowers v.
Flowers, 407 S.W.3d 452 (Tex. App.—Houston [14th Dist.] 2013, no pet.), Mother
argues that, while a court may liberally construe pleadings to include claims that
may reasonably be inferred from the language used, the court may not use a liberal
construction as a license to read into a petition a claim that it does not contain.
While we agree that the final order did not technically conform to Father’s
pleadings, we disagree that the trial court abused its discretion based on the record
before us. Previously, we stated:
We review a trial court’s decision on a motion to modify under an
abuse-of-discretion standard. See Seidel v. Seidel, 10 S.W.3d 365, 368
(Tex. App.—Dallas 1999, no pet.). A trial court abuses its discretion
when it acts in an arbitrary or unreasonable manner or when it acts
without reference to any guiding principles. Id.
Rule of civil procedure 301 requires that a judgment conform to the
pleadings. TEX. R. CIV. P. 301. However, “[p]leadings are of little
importance in child custody cases and the trial court’s efforts to exercise
broad, equitable powers in determining what will be best for the future
welfare of a child should be unhampered by narrow technical rulings.”
Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied)
(quoting MacCallum v. MacCallum, 801 S.W.2d 579, 586 (Tex.
App.—Corpus Christi–Edinburg 1990, writ denied)). “[A] suit properly
invoking the jurisdiction of a court with respect to custody and control
of a minor child vests that court with decretal powers in all relevant
–7–
custody, control, possession and visitation matters involving the child.
The courts are given wide discretion in such proceedings.” Leithold v.
Plass, 413 S.W.2d 698, 701 (Tex. 1967).
In re B.M., 228 S.W.3d 462, 464–65 (Tex. App.—Dallas 2007, no pet.); see Ellason
v. Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no pet.) (similar
statements, citing Leithold).
Mother does not discuss, analyze, or attempt to distinguish Leithold or any of
our prior precedent in which we cited it.
While she correctly notes family code section 156.004 states that “[t]he Texas
Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit
for modification under [Texas Family Code Chapter 156],” as we stated in In re B.M.
and in Peck, pleadings are of little importance in child custody cases, and the trial
court’s efforts to exercise broad, equitable powers in determining what will be best
for the future welfare of a child should be unhampered by narrow technical rulings.
See In re B.M., 228 S.W.3d at 464–65; Peck, 172 S.W.3d at 35.
A narrow technical ruling is what Mother asks us to issue here. We decline
to do so, primarily because we follow our own precedent and may not overrule a
prior panel decision of this Court, absent an intervening change in the law by the
legislature, a higher court, or this Court sitting en banc. See Mitschke v. Borromeo,
645 S.W.3d 251, 256 n.8 (Tex. 2022) (noting single panel of a multi-member court
lacks power to overrule a precedent); Dyer v. Medoc Health Servs., LLC, 573 S.W.3d
418, 427 (Tex. App.—Dallas 2019, pet. denied); In re A.C., 559 S.W.3d 176, 182
–8–
(Tex. App.—Dallas 2017), aff’d, 560 S.W.3d 624 (Tex. 2018); MobileVision
Imaging Servs., L.L.C. v. LifeCare Hosp. of N. Texas, L.P., 260 S.W.3d 561, 566
(Tex. App.—Dallas 2008, no pet.).
Given the absence of such an intervening change here, we follow our prior
precedent in In re B.M. and Peck, apply the principles discussed by the Texas
Supreme Court in Leithold, upon which both B.M. and Peck were based, and
conclude that Mother has failed to show the trial court clearly abused its discretion.
While one court has suggested that Leithold might have been superseded by
the Texas Family Code’s enactment,7 our prior precedent has continued to rely upon
Leithold in the years since that enactment. We do so again here.
We overrule Mother’s sole issue in part.8
III. Conclusion
We affirm the trial court’s February 20, 2020 order.
/Ken Molberg/
200559f.p05 KEN MOLBERG
JUSTICE
7
See Baltzer v. Medina, 240 S.W.3d 469, 476 n.5 (Tex. App.—Houston [14th Dist.] 2007, no pet.)
(stating that Leithold “did not hold that the civil procedure rules regarding pleadings and judgments do not
apply to cases involving custody of minor children” and that, “[e]ven if it had so held, the enactment of
section 156.004 of the Texas Family Code would supersede this holding”).
8
In light of our conclusion, we need not reach Mother’s argument regarding trial by consent because it
is unnecessary to disposition of the appeal. See TEX. R. APP. P. 47.1.
–9–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF P.M.B. On Appeal from the 219th Judicial
AND P.M.B., CHILDREN District Court, Collin County, Texas
Trial Court Cause No. 219-51950-
No. 05-20-00559-CV 2013.
Opinion delivered by Justice
Molberg. Justices Myers and Garcia
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 1st day of November 2022.
–10– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482495/ | Cite as 2022 Ark. App. 455
ARKANSAS COURT OF APPEALS
DIVISION III
No. E-21-642
MONIQUE MILLER Opinion Delivered November 9, 2022
APPELLANT
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V. [NO. 2021-BR-02793]
DIRECTOR, DIVISION OF
REVERSED AND REMANDED FOR
WORKFORCE SERVICES
ADDITIONAL FINDINGS
APPELLEE
STEPHANIE POTTER BARRETT, Judge
Monique Miller appeals the denial of unemployment benefits from the Arkansas
Board of Review based on its finding she did not show good cause for backdating claims
pursuant to Ark. Code Ann. § 11-10-507(1) (Supp. 2021). We reverse and remand to the
Board for further findings of fact consistent with this opinion.
Ms. Miller, an Arkansas resident working in Tennessee, was laid off from Memphis
Mill Services on March 17, 2020, due to the COVID-19 pandemic. Ms. Miller was instructed
by her employer to file for unemployment insurance (UI) benefits in Tennessee because that
was the state where she was employed. However, after filing in Tennessee, Ms. Miller was
told by the Tennessee Department of Labor and Workforce Development to file for UI in
her state of residency. Ms. Miller began filing claims in Arkansas from April 11 through
August 1, 2020. Ms. Miller was informed she could not file for UI benefits in Arkansas until
her claim in Tennessee was closed, which took approximately five months.
Once her Tennessee claim was closed, Ms. Miller filed for UI benefits in Arkansas,
requesting that her claim be backdated from April 11 through August 1, 2020. On April 8,
2021, the Division of Workforce Services issued a “Notice of Agency Determination” to Ms.
Miller finding she had not shown good cause for backdating claims under Ark. Code Ann.
§ 11-10-507(1). Ms. Miller filed a timely appeal of that decision to the Appeal Tribunal,
which conducted a hearing on June 4, 2021, and affirmed the Division’s determination. Ms.
Miller then timely appealed to the Board of Review. The Board found that because Ms.
Miller had the ability to file her initial claim at an earlier date, she did not establish good
cause for backdating her claim.
We affirm Board of Review decisions when they are supported by substantial
evidence. Robinson v. Dir., 2021 Ark. App. 485, 638 S.W.3d 29. Substantial evidence is that
which reasonable minds might accept as being adequate to support a conclusion. Bushnell v.
Dir., 2022 Ark. App. 194, 645 S.W.3d 24. We view the evidence and all reasonable
inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Even
if the evidence could support a different decision, we limit our review to whether the Board
could have reasonably reached its decision on the evidence presented. Id. However, our
function on appeal is not merely to rubber-stamp decisions arising from the Board. Bushnell,
supra.
2
We hold that the Board’s decision is not supported by substantial evidence. Ark.
Code Ann. § 11-10-507(1) provides that an insured worker shall be eligible for benefits with
respect to any week only if the director of the Division of Workforce Services finds that he
or she has made a claim for benefits with respect to such week in accordance with such rules
as the director may describe. Regulation 14(b)(G) of the Arkansas Division of Workforce
Services contemplates this very issue, stating, “If a claimant files an initial claim for
unemployment compensation against another state and fails to establish a valid claim, is
faced with an indefinite postponement of benefits, or withdraws from a wage combining
arrangement, his subsequent Arkansas initial claim for benefits shall be considered to have
been filed on the date his original initial claim was filed against the other state.” 003.20.2
Ark. Admin. Code § 14(b)(G) (WL current with amendments received through May 15,
2022). It is undisputed that Ms. Miller was instructed by her employer to file her initial claim
in Tennessee and was subsequently unable to establish a valid claim until filing in Arkansas.
Therefore, under Regulation 14, we must reverse the Board’s determination that Ms. Miller
did not show good cause for backdating her claims. Regulation 14 provides that her initial
claim should have been considered filed on the date she first filed in Tennessee. Evidence of
when Ms. Miller filed her initial claim for UI benefits in Tennessee is not before us. Whether
sufficient findings of fact have been made is a threshold question in an appeal from an
administrative board. Vallaroutto v. Alcoholic Beverage Control Bd., 81 Ark. App. 318, 101
S.W.3d 836 (2003). It is the responsibility of the state agency to make findings of fact, and
this court cannot review an agency decision in the absence of adequate and complete findings
3
on all essential elements pertinent to the determination. Sw. Bell Tel., L.P. v. Dir., 88 Ark.
App. 36, 194 S.W.3d 790 (2004). We reverse and remand to the Board for further findings
on the issue of when Ms. Miller filed her original claim for UI benefits in Tennessee as
contemplated by Ark. Code Ann. § 11-10-507(1) and Regulation 14(b)(G) of the Arkansas
Division of Workforce Services.
Reversed and remanded for additional findings.
HARRISON, C.J., and MURPHY, J., agree.
Monique Miller, pro se appellant.
Cynthia L. Uhrynowycz, Associate General Counsel, for appellee.
4 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482492/ | Cite as 2022 Ark. App. 448
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-312
Opinion Delivered November 9, 2022
RALPH BRADBURY APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
ELEVENTH DIVISION
V. [NO. 60CV-11-5472]
EDWARD HARVEY, BONNIE HONORABLE PATRICIA JAMES,
HARVEY, AND MARVIN JONES JUDGE
APPELLEES
REVERSED AND REMANDED
BRANDON J. HARRISON, Chief Judge
This case returns to us almost six years after we dismissed the first appeal for lack of
a final order. Ralph Bradbury appeals the grant of summary judgment in favor of Edward
Harvey, Bonnie Harvey, and Marvin Jones. 1 He argues that the circuit court erred in
finding that his claims against the defendants are barred by collateral estoppel. We reverse
the circuit court’s summary judgment.
I.
The demise of two trucking companies, Continental Express, Inc., and its sister
entity, Arkansas Trucking, Inc., beget this case. Arkansas Trucking withheld federal payroll
1
Edward Harvey died on 5 June 2017, and Bonnie Harvey was appointed as special
administrator as the substituted party for Harvey to represent him in the litigation. For
simplicity’s sake, we continue to refer to them as “the Harveys” in this opinion, unless an
order or argument specifically applies only to Bonnie Harvey.
1
taxes from wages paid to its employees but did not pay them to the federal government.
Bradbury served as president of Continental, and the federal government held him
responsible and assessed penalties against him. The total amount of the assessments was
$799,966.66.
In November 2011, Bradbury sued the federal government seeking a refund and
abatement of the assessments. Also in November 2011, Bradbury sued Continental,
Arkansas Trucking, the Harveys, and Jones in the Pulaski County Circuit Court. The
Harveys were principal shareholders of Continental; Edward Harvey was the owner of
Arkansas Trucking; Jones was a financial and managerial consultant for Continental. At the
defendants’ request, the circuit court administratively stayed the state-court case while the
federal-court case unfolded.
In his complaint before the United States District Court, Bradbury argued that he
was not liable for the tax penalty and that the Harveys and Jones exercised financial control
of Continental during the tax periods at issue. More specifically, Bradbury argued that the
Harveys and Jones exercised financial control to his (Bradbury) exclusion and rendered him
unable to make direct payments to the Internal Revenue Service. In other words: they
boxed him in. Bradbury therefore disputed in federal court that he willfully failed to pay
the required taxes. The government counterclaimed against Bradbury and sought to reduce
its assessments to judgment. Bradbury and the government moved separately for summary
judgment. The district court in due course held that Bradbury is a “responsible person” as
a matter of federal tax law and “mostly” granted the government’s motion. (The district
court denied without prejudice the government’s request to impose a precise penalty
2
amount that Bradbury owed.) 2 The court also held, “Because the United States is entitled
to judgment based on the material facts, both undisputed and taken in Bradbury’s favor
where disputes exist, Bradbury’s motion for summary judgment . . . is denied.”
The federal-court decision led the Pulaski County Circuit Court to dissolve the
administrative stay in March 2015. Once put back in motion, Bradbury’s complaint in
circuit court alleged multiple claims against the defendants, including breach of contract,
breach of fiduciary duty, constructive fraud, and unjust enrichment. For most of these
claims, Bradbury alleged damages including, but not limited to, the amount of the taxes,
penalties, and interest the IRS assessed against him. The Harveys counterclaimed against
Bradbury in state court, asserting that he breached his fiduciary duty by not ensuring that
Continental paid all required taxes and obligations to the IRS and the State of Arkansas.
Jones also counterclaimed in ditto fashion.
In July 2015, Jones moved for summary judgment in circuit court. He argued that
Bradbury was attempting to relitigate the same issue that the federal court decided—namely,
his responsibility for payment of the federal taxes and related fallout. Jones said Bradbury’s
responsibility for the taxes had been decided and is final, so Bradbury is collaterally estopped
from seeking relief in state court. In August 2015, the Harveys filed their own motion for
summary judgment and also pressed collateral estoppel.
2
The term “person” includes “an officer or employee of a corporation, or a member
or employee of a partnership who as such officer, employee, or member is under a duty to
perform the act in respect of which the violation occurs.” 26 U.S.C. § 6671(b). The statute
imposes liability on any person who is required to collect, truthfully account for, or pay
over the withheld taxes and willfully fails to do so. Arriondo v. United States, 196 F. Supp.
3d 708 (S.D. Tex. 2016).
3
Bradbury responded that he had been found “a responsible person” but not “the
responsible person” for the tax penalty. In his view, under statutory law and caselaw, (1)
there may be more than one responsible person; (2) that in the federal case, he was barred
from cross claims or third-party complaints against other responsible persons to allege any
causes of action; and (3) he could seek relief against other potentially responsible persons in
a separate action only after the federal case had concluded. In sum, Bradbury denied that
he was barred from claiming against Jones or the Harveys in a state court involving torts.
On 15 October 2015, the circuit court granted summary judgment to the Harveys
and Jones. The court’s order states,
1. There is no genuine issue of material fact and Bonnie Harvey,
Ed Harvey, and Marvin Jones are entitled to Summary Judgment in their favor
as a matter of law.
2. The Summary Judgment Order of Honorable Price Marshall in
the case of Ralph Bradbury v. United States of America, U.S. District Court,
Eastern District of Arkansas, Western Division, Case No. 4:11-cv-810 (“Tax
Case”), was entered by that Court on March 24, 2014. Thereafter,
subsequent final Judgments of that Court were entered in the Tax Case.
Those Judgments and the Summary Judgment Order are part of the record in
the present Summary Judgment proceedings in this Court. There was no
appeal from those findings and adjudications in the Tax Case and they are
final.
3. The doctrine of collateral estoppel bars the claims of plaintiff,
Ralph Bradbury, in the present case against Ed Harvey, Bonnie Harvey, and
Marvin Jones, as a matter of law.
4. This finding is based upon all of the pleadings of record, with
exhibits thereto, in connection with the Summary Judgment Motions and the
argument of counsel at the hearing.
5. Defendants’ Counterclaim against Ralph Bradbury for
contribution is moot by reason of the Summary Judgment.
4
Bradbury timely appealed from this order on 12 November 2015. On November 30, the
circuit court entered, upon Bradbury’s motion, an order dismissing Continental and
Arkansas Trucking without prejudice.
On 9 November 2016, this court dismissed the appeal without prejudice because
there was no final order from the circuit court. Bradbury v. Harvey, 2016 Ark. App. 538.
We noted that the order had not resolved the Harveys’ counterclaim against Bradbury for
an alleged breach of fiduciary duty.
On 27 February 2017, the circuit court, upon the Harveys’ stipulation, dismissed
their counterclaim against Bradbury without prejudice.
Though it is not clear why so much time passed, on 21 October 2020, Bradbury
moved the circuit court to enter a Rule 54(b) certificate so he could proceed with the appeal
that had been dismissed in 2016. As grounds for doing so, Bradbury explained that while
the Harveys had nonsuited their counterclaim against him, Jones’s counterclaim against him
remained pending. Further, although the circuit court found the counterclaim moot in its
October 2015 summary-judgment order, it was not dismissed; and Jones had declined to
dismiss it. Bradbury argued that if a trial was held on the counterclaim, he would be
“effectively prevented from utilizing any rights of contribution or offset as any defense
against Marvin Jones because the issues were decided against the Plaintiff in the Summary
Judgment. . . . Plaintiff should not have this hardship visited upon him and should be allowed
to appeal.”
On 19 April 2021, the circuit court essentially reissued the 2015 summary-judgment
order with an attached Rule 54(b) certificate, stating in pertinent part,
5
9. The present case meets the standards required for Rule 54(b(1)
Certification. It has not been the usual litigation. It has been an unusually
protracted matter, which has created an unusual burden of hardship and
injustice for the Plaintiff. In the present case, considering the context of the
Defendants’ Summary Judgment Motions, the Defendants argued that certain
issues impacting their liability to the Plaintiff under rights of contribution were
of first impression in the State of Arkansas. The Defendants correctly
contended that there were no Arkansas cases dealing with Section 6672 of the
IRS Code (Responsible Person Liability and Rights of contribution against
others). Therefore, the cost and expense of a trial would not resolve those
issues and they would survive a trial for subsequent appeal, whether on
Plaintiff’s Complaint or the Defendants’ Counterclaims.
....
11. Based upon these specific factual findings, the Court finds potential
hardships or injustices likely to occur to the Plaintiff apart from the typical
stress and expense of civil litigation and that there is no just reason for delay.
12. Defendants have filed no response to the Motion within the time
allowed.
13. The Court hereby certifies, in accordance with Rule 54(b)(1) of
the Arkansas Rules of Civil Procedure, that it has determined that there is no
just reason for delay of the entry of a final judgment in this case and that the
Court does hereby direct that the Amended Summary Judgment herein shall
be certified as a final judgment.
Bradbury timely appealed from this Rule 54(b) order and certificate.
Summary judgment is appropriate when there are no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of law. Koch v. Adams, 2010 Ark.
131, 361 S.W.3d 817. On appeal, this court determines if summary judgment was
appropriate based on whether the evidentiary items presented by the moving party in
support of the motion leave a material fact unanswered. Id. This court views the evidence
in the light most favorable to the party against whom the motion was filed, resolving all
doubts and inferences against the moving party. Kyzar v. City of W. Memphis, 360 Ark.
6
454, 201 S.W.3d 923 (2005). Our review focuses not only on the pleadings but also on the
affidavits and documents filed by the parties. Neal v. Sparks Reg’l Med. Ctr., 2012 Ark. 328,
422 S.W.3d 116. If there are no facts in dispute, our review focuses on the circuit court’s
application of the law to the facts. See E B Mgmt. Co., LLC v. Houston Specialty Ins. Co.,
2019 Ark. App. 294, 577 S.W.3d 408. We give the circuit court’s conclusions of law no
deference on appeal. Id.
II.
Did the circuit court err by ruling that collateral estoppel barred Bradbury’s state-law
claims against Jones and the Harveys given the federal court’s decision in the tax case
between Bradbury and the federal government? The doctrine of collateral estoppel, or issue
preclusion, bars the relitigation of issues of law or fact actually litigated by parties in the first
suit. Ark. Dep’t of Hum. Servs. v. Dearman, 40 Ark. App. 63, 842 S.W.2d 449 (1992). It is
based on the policy of limiting litigation to one fair trial on an issue. Id. Collateral estoppel
requires four elements before a determination is conclusive in a subsequent proceeding: (1)
the issue sought to be precluded must be the same as that involved in the prior litigation;
(2) that issue must have been actually litigated; (3) the issue must have been determined by
a valid and final judgment; and (4) the determination must have been essential to the
judgment. Powell v. Lane, 375 Ark. 178, 89 S.W.3d 440 (2008). The party against whom
collateral estoppel is asserted must have been a party to the earlier action and must have had
a full and fair opportunity to litigate the issue in that first proceeding. Id. Unlike res judicata,
which acts to bar issues that merely could have been litigated in the first action, collateral
estoppel requires actual litigation in the first instance. When determining whether an issue
7
has been actually litigated, we must look to see if the issue was properly raised and whether
there was a full and fair opportunity to be heard. Id.
Bradbury argued in the federal litigation that the Harveys and Jones torpedoed his
ability to remit the payroll taxes; and the district court decided his status as a “responsible
person” under federal tax law. No decision by the federal court was made pursuant to any
facet of Arkansas law. Bradbury basically says that the Harveys’ and Jones’s responsibility to
him (Bradbury) was not litigated under federal law or state law. (Here it is worth recalling
that the state court stayed its case during the federal litigation, and no party attempted, as far
as we can see, to ask the federal court to take up state-law claims that might relate to the
federal tax question under supplemental jurisdiction. See 28 U.S.C. § 1367.)
Further, Bradbury contends that he did not have a full and fair opportunity to litigate
the issues he has raised in circuit court in the prior federal proceeding. In the federal case,
he tested his own personal responsibility under § 6672 and was otherwise prohibited by law
from bringing a claim for contribution. Pursuant to § 6672(d), any claim for recovery from
other responsible persons may be made “only in a proceeding which is separate from, and
is not joined or consolidated with (1) an action for collection of such penalty brought by
the United States, or (2) a proceeding in which the United States files a counterclaim or
third-party complaint for the collection of such penalty.” An essential point to the federal
court’s judgment was that the Harveys and Jones failed to act with the requisite degree of
obstructionism to absolve Bradbury of his responsibility under § 6672. Legal responsibility
under a federal tax statute does not wipe away in tsunami fashion a person’s state-law rights
and duties nor the remedies available for tort liability when it is sufficiently proven. His
8
status as a responsible person was essential to the prior federal-court ruling that decided one’s
federal-tax liability to the United States. But appellees’ liability to Bradbury under state law,
if any, was not. Likewise, the determination of Bradbury’s state claims for breach of
contract, breach of a fiduciary duty, constructive fraud, deceit, civil conspiracy, promissory
estoppel, unjust enrichment, contribution, and indemnification were not essential to the
federal court’s judgment.
Jones and the Harveys generally argue that the circuit court correctly decided that
collateral estoppel bars Bradbury’s claims because the issues necessary to prove his case were
resolved against him in the federal case. They claim that Bradbury’s liability for the tax
penalty was litigated by the federal court, and there is no legal basis for Bradbury to avoid
his liability as a result of the alleged statements or conduct of the Harveys or Jones.
In reply, Bradbury insists that neither Jones nor the Harveys have explained how the
litigated issue (Bradbury’s responsibility under § 6672) that resulted in the federal-court
judgment precludes litigation of the separate issue of their responsibility in the present
litigation for claims exclusive of § 6672. He notes that he has set forth new claims with
differing standards of proof; for example, their misconduct in undercapitalizing Continental
is the factual issue that Bradbury’s claim for piercing the corporate veil seeks to litigate. In
addition, his claims for breach of fiduciary duty, deceit, and constructive fraud, for example,
may turn on specific conduct by other people and are alleged under different legal standards
than were previously litigated in the federal tax-liability case in which only Bradbury and
the United States were formal parties.
9
III.
The circuit court erred in finding that Bradbury’s claims in the present case are barred
by collateral estoppel. An illustration is Bradbury’s breach-of-contract claim in which he
alleges that, during his employment, he had accrued vacation time that he did not use, that
he was owed compensation for this vacation time upon his resignation, and that he had not
been compensated by Continental as required by his employment contract. This claim was
not litigated or even contemplated in the federal-court proceeding.
More generally, we agree with Bradbury’s assertion that litigation of his status as a
“responsible person” under § 6672 does not preclude his present state-law claims exclusive
of § 6672. The claims presented in his complaint involve state-law remedies and were not
litigated in the federal-court proceeding. We reverse the grant of summary judgment and
remand for further proceedings.
Reversed and remanded.
BARRETT and MURPHY, JJ., agree.
Randy Coleman, P.A., by: Randy Coleman, of counsel, Jack Nelson Jones, P.A., for
appellant.
Watts, Donovan, Tilley & Carson, P.A., by: David M. Donovan, for separate appellee
Marvin Jones.
Barber Law Firm, PLLC, by: Robert Kenny McCulloch, for separate appellees Bonnie
and Edward Harvey.
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482493/ | Cite as 2022 Ark. App. 450
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-22-2
RACHEL CHRISSONBERRY (NOW Opinion Delivered November 9, 2022
BENFER)
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FIFTEENTH DIVISION
V. [NO. 60DR-12-3699]
TODD CHRISSONBERRY HONORABLE AMY DUNN JOHNSON,
APPELLEE JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Rachel Benfer appeals the Pulaski County Circuit Court order modifying the custody
arrangement of her minor child (MC) with her former husband Todd Chrissonberry. On
appeal, Rachel argues that the circuit court erred by finding that Todd established a material
change in circumstances warranting modification of custody. She additionally argues that
the court erred by ordering her to pay child support. We affirm.
Rachel and Todd married in April 2008, and MC was born in December 2010. They
divorced in October 2012, and pursuant to their divorce decree, they agreed to share joint
custody of MC.
On January 27, 2020, Todd moved to modify custody and child support, alleging that
there had been a material change in circumstances since the divorce and that it was in MC’s
best interest for him to have full custody. He claimed that MC feared Rachel and had made
allegations of physical and emotional abuse against her. He further stated that the Arkansas
Department of Human Services (DHS) had investigated the allegations and that Rachel had
refused to take MC to counseling as DHS ordered. He also asserted that MC’s school
performance suffered during Rachel’s weeks and that Rachel was engaged to Johnny Propst,
who has felony convictions for domestic battery and drug offenses.
On May 11, Rachel also moved to modify custody and child support, alleging that
there had been a material change in circumstances since the divorce and that it was in MC’s
best interest for her to have full custody. She stated that Todd had made an unfounded DHS
complaint and police report about her alleged abuse of MC. She also stated he had alienated
MC from her. She further claimed that he had refused to return MC to her custody and had
refused to communicate with her about MC.
On July 15, the court entered an agreed temporary order awarding Todd custody of
MC with Rachel having supervised visits at the parties’ discretion.
On May 25, 2021, the court held a hearing on the competing motions. Todd testified
that he had been married to his current wife, Amber, since April 2019. He explained that in
November 2019, MC began exhibiting emotional changes that made him concerned about
her living with Rachel. He stated that MC appeared reserved and afraid to go to Rachel’s
house. Todd testified that he also worried about Rachel’s relationship with Johnny Propst.
Todd further testified that in April 2020, he found bruises across MC’s lower back
and that he thereafter refused to return MC to Rachel’s custody. He believed MC had been
2
abused while in Rachel’s care, and he was concerned for MC’s safety in Rachel’s home. He
explained that he reported the injuries to DHS and the sheriff’s office.
Todd explained that during the custody proceedings, his and Rachel’s
communication had been poor. He stated that he had not responded to Rachel’s inquiries
about MC’s visitations because he wanted MC—with assistance from her therapist—to make
the decision to visit Rachel.
On cross-examination, Todd acknowledged that MC was hospitalized in June 2020
with suicidal ideations and that he did not inform Rachel about the hospitalization. He
further admitted that he did not inform Rachel when he married Amber.
Amber Chrissonberry testified that she and Todd have a great relationship with MC
and that MC had adjusted to being in their home full time. She further stated that Todd
had taken MC to therapy every week and had been involved in her activities. She explained
that in April 2020, she and Todd discovered bruising on MC’s back, and she reported MC’s
injuries to DHS.
Serena Crone testified that she was married to Todd from July 2016 through March
2017. She stated that Todd is dishonest and that Rachel had always been concerned for
MC’s safety.
Rachel testified that DHS had investigated her on two occasions for abuse allegations
made by MC. She stated that in the first investigation, DHS found MC’s accusations
unsubstantiated. Rachel explained that around that time, she was divorcing her second
husband, Joe Benfer, and that they had been fighting “quite a bit.” She did not know her
3
relationship with Joe had affected MC. She testified that DHS had not ordered her to enroll
MC in therapy and that DHS could not provide MC with therapy due to the unsubstantiated
finding. She testified that she attempted to enroll MC in counseling, but she had difficulties
obtaining the insurance information from Todd.
Rachel testified that in the second DHS investigation, DHS again found MC’s abuse
claim unsubstantiated. Rachel denied ever striking MC with an object or punching her.
Rachel stated that Todd had coerced MC to make the abuse accusations.
Rachel testified that she believes Todd sought full custody of MC because he does
not like her fiancé, Johnny. Rachel explained that Johnny has a criminal history, but he had
“served his time.” She stated that he is on parole and has monthly drug tests, and she testified
that MC has a good relationship him. She noted that she and Johnny have a daughter, who
was born in January 2021, and that she has another daughter with her second husband, Joe.
Rachel testified that Todd speaks negatively about her to MC and prohibits their
contact. She stated that before the custody proceedings, she and MC had a wonderful
relationship, but it is now strained. She recalled Todd refusing her contact with MC on
about sixty occasions.
On cross-examination, Rachel testified that MC had lied about the abuse allegations,
and she doubted that MC witnessed her disagreements with her former husband Joe. She
stated that she would need “actual proof that something bad [had] happened to [MC] and
not just [MC] saying it.” She further detailed her relationship timeline—she divorced Joe in
4
October 2019, she started dating Johnny in November 2019, and she got engaged to Johnny
in January 2020. She noted that Johnny had been released from prison in June 2019.
Rachel further explained that in the first DHS investigation in 2019, DHS made a
true finding for environmental neglect because her house was “dirty.” She testified that she
participated in the DHS case and improved the home. DHS then “deemed [the case] as Do
Not Defend.” Rachel also acknowledged that even though DHS had not ordered counseling
for MC, DHS had encouraged it.
At the hearing, Rachel introduced a DHS maltreatment summary report dated
January 30, 2020. The report lists MC as the alleged victim, Rachel as the alleged offender,
and Amber and Todd as the referrals. The findings were unsubstantiated for striking a child
on the face but true for environmental neglect. The interview notes show that MC had
reported that she is afraid of her stepfather Joe Benfer and that he and Rachel frequently
fought. MC further reported that Joe had punched a hole in a door and had chased Rachel
around the home.
She also introduced a DHS maltreatment summary report dated June 8, 2020. The
report again lists MC as the alleged victim, Rachel as the alleged offender, and Amber and
Todd as the referrals. The allegations against Rachel included extreme or repeated cruelty;
kicking a child; cuts, bruises, or welts; and striking a child on the face or head. DHS made a
true finding for cuts, bruises, or welts, but it found the other claims unsubstantiated. The
interview notes show that MC reported that Rachel hit her with a curtain rod on her legs,
5
back, and arm and that Rachel had hit her in the face with her fist. MC also reported that
Johnny Propst had hit her with a belt, pushed her to the ground, and locked her in a closet.
Rachel further introduced a November 12, 2020, DHS order reversing the June 2020
true finding. In the order, the administrative law judge concluded that there was insufficient
evidence to show that Rachel “abused MC by causing nonaccidental physical injury that was
not the result of reasonable and moderate physical discipline.” The ALJ found that “the
disclosure made by MC, that her mother hit her repeatedly with a curtain rod and switches
to be inconsistent and unreliable.” Accordingly, the ALJ ordered that Rachel’s name not be
listed on the Arkansas Child Maltreatment Central Registry.
At the conclusion of the custody hearing, the attorney ad litem submitted his
recommendation that the court award Todd full custody of MC. The ad litem reported that
MC preferred living with Todd and that MC hoped to attend counseling with Rachel and
to participate in unsupervised day visits. The attorney ad litem further recommended that
MC have no contact with Rachel’s fiancé, Johnny.
The ad litem also introduced two videos of MC discussing the abuse allegations
against Rachel—a forensic video of MC at the child advocacy center and a cell-phone video
taken by Todd.
Following the hearing, on June 23, 2021, the circuit court entered an order modifying
the custody arrangement. The court found that “both parties have engaged in conduct that
created a material change in circumstances warranting a modification of custody.” As to
Rachel, the court found that “her divorce from Mr. Benfer, her subsequent cohabitation
6
with a convicted felon a very short time later, and the conflict that [MC] has witnessed
between [Rachel] and each of her partners created significant stress for [MC] and made her
fearful of being in [Rachel’s home.]” The court further found that Rachel dismissed MC’s
distress and that she prioritized her current relationships over MC’s well-being. As to Todd,
the court found “his unilateral decision to deny [Rachel] visitation, thereby alienating her
from [MC], as well as his complete failure to communicate with [Rachel] about [MC]’s well-
being constituted a material change of circumstances.”
The court then concluded that it was in MC’s best interest for Todd to have full
custody. In making this determination, the court acknowledged Todd’s fault in creating the
circumstances. However, the court noted Rachel’s dismissal of MC’s emotional distress, and
it concluded that Todd “had demonstrated a willingness to ensure that [MC] receives the
services that she needs in order to heal from the emotional harm that she has suffered and
to repair her relationship with [Rachel].” Rachel appealed the order to this court.
We review child-custody cases de novo but will not reverse a circuit court’s findings
unless they are clearly erroneous. Grindstaff v. Strickland, 2017 Ark. App. 634, 535 S.W.3d
661. Because the question whether the circuit court’s findings are clearly erroneous turns
largely on the credibility of the witnesses, we give special deference to the superior position
of the circuit court to evaluate the witnesses, their testimony, and the child’s best interest.
Id. There are no cases in which the superior position, ability, and opportunity of the circuit
court to observe the parties carry as great a weight as those involving minor children. Id.
7
Arkansas law is well settled that the primary consideration in child-custody cases is
the welfare and best interest of the children; all other considerations are secondary. Rice v.
Rice, 2016 Ark. App. 575, 508 S.W.3d 80. A judicial award of custody will not be modified
unless it is shown that there are changed conditions that demonstrate that a modification of
the decree will be in the best interest of the child. Id. Generally, courts impose more stringent
standards for modifications in custody than they do for initial determinations of custody. Id.
To change custody, the circuit court must first determine that a material change in
circumstances has occurred since the last order of custody; the party seeking modification
has the burden of showing a material change in circumstances. Earl v. Earl, 2015 Ark. App.
663, 476 S.W.3d 206. If that threshold requirement is met, the circuit court must then
determine who should have custody, with the sole consideration being the best interest of
the children. Id.
On appeal, Rachel argues that the circuit court erred by finding that Todd established
a material change in circumstances warranting modification of custody. She points out that
DHS found MC’s abuse allegations not credible, and she argues that there was no evidence
that MC was harmed in her home. She asserts that Todd influenced MC to make the abuse
allegations. She further claims that there was no evidence that MC’s performance at school
had suffered, and she argues that the concerns with Joe Benfer are irrelevant because they
divorced in 2019.
We hold that the circuit court did not err by finding that Todd established a material
change in circumstances. The evidence showed that Rachel had multiple relationships since
8
the divorce and that there was conflict in her relationships. Further, even though DHS
ultimately found the abuse allegations against Rachel unsubstantiated, the conclusion does
not negate a change-in-circumstances finding in this proceeding. The evidence showed that
MC was fearful of being in Rachel’s home, and the ad litem reported that MC no longer
wanted to live with her. See Earl, 2015 Ark. App. 663, 476 S.W.3d 206. Given these
circumstances, our standard of review, and the deference we give circuit courts to evaluate
the witnesses, their testimony, and the child’s best interest, we are not left with a definite
and firm conviction that the circuit court made a mistake by finding that Todd established
a material change in circumstances.
Rachel also claims that she met her burden of proving a material change in
circumstances warranting modification of custody based on Todd’s behavior. A party who
received the relief she requested cannot complain on appeal. Neumann v. Smith, 2016 Ark.
App. 14, 480 S.W.3d 197; Baker v. Baker, 2013 Ark. App. 543, 429 S.W.3d 389. The circuit
court found that both parties engaged in conduct that created a material change in
circumstances warranting modification of custody, and it cited Todd’s unilateral decision to
deny Rachel visitation and his failure to communicate with Rachel. Thus, the court found
that Rachel had established a material change in circumstances based on Todd’s behavior,
and Rachel cannot establish an error on this point. 1
1
The circuit court then determined that it was in MC’s best interest for Todd to have
full custody, but Rachel does not challenge the court’s best-interest finding.
9
Rachel’s final argument is that because the circuit court erred by awarding full custody
to Todd, the court also erred by ordering her to pay child support. Because we find no error
by the circuit court in awarding Todd full custody, we find no error by the court in ordering
Rachel to pay child support.2
Affirmed.
WHITEAKER and BROWN, JJ., agree.
Law Offices of Peter Miller, by: Jessica Virden Mallett, for appellant.
Lion Legal Services, by: Kristy Sims, for appellee.
2
In his appellate brief, Todd asks this court to dismiss Rachel’s appeal because it is
frivolous and contrary to well-established law. He additionally requests attorney’s fees. We
deny his requests.
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482494/ | Cite as 2022 Ark. App. 451
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-20-364
MORRAND ENTERPRISES, LLC Opinion Delivered November 9, 2022
APPELLANT
APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. 04CV-16-803]
SACHS/HAYNES 503, LLC; AND HCH HONORABLE JOHN R. SCOTT,
TOYOTA, LLC JUDGE
APPELLEES
AFFIRMED
BART F. VIRDEN, Judge
Appellant Morrand Enterprises, LLC (“Morrand”), appeals from the Benton County
Circuit Court’s judgment in favor of appellees, HCH Toyota, LLC, and Sachs/Haynes 503,
LLC (“HCH and Sachs”), on Morrand’s claims for breach of contract, conversion, and unjust
enrichment. The appeal returns to this court after we reversed and remanded the trial court’s
summary judgment in favor of HCH and Sachs. GM Enters., LLC v. HCH Toyota, LLC, 2018
Ark. App. 607, 567 S.W.3d 878.1 After a trial on the merits, judgment was entered against
Morrand. Morrand raises three points for reversal: (1) the trial court erred in denying its
motion for summary judgment based on the law of the case; (2) the trial court failed to follow
1
After remand, GM Enterprises, LLC, was renamed Morrand Enterprises, LLC.
Arkansas contract law and the law of the case; and (3) the trial court erred in denying its
claim for unjust enrichment. We affirm.
Because we do not reach the merits of Morrand’s arguments for procedural reasons,
it is not necessary to delve too deeply into the facts. In GM Enterprises, we concluded that
summary judgment was not appropriate on Morrand’s claim for breach of contract regarding
lease-termination agreements (“LTAs”). We also reversed on Morrand’s conversion claim as
a result of the reversal of the breach-of-contract claim. Further, we reversed as to Morrand’s
claim for unjust enrichment because the trial court had dismissed the claim solely in reliance
on the existence of a written contract without considering any exceptions to the general rule.
Our mandate issued February 21, 2019.
On April 16, 2019, Morrand filed a motion for summary judgment on the basis that
there were no material facts at issue. Morrand referred to GM Enterprises in its argument at
the hearing on the summary-judgment motion and suggested that certain matters had been
established in that opinion; however, in denying Morrand’s motion, the trial court simply
said that there were material issues of fact to be tried. In its order denying the motion, the
trial court bifurcated the upcoming trial with factual issues to be decided by a jury and
equitable theories to be determined by the court.
At trial, the trial court framed the issue for the jury, stating that the jury’s job was to
interpret the parties’ leases. Morrand’s counsel agreed with that characterization of the issue.
The jury unanimously found for HCH and Sachs on Morrand’s claim for breach of contract.
2
Nine jurors found for HCH and Sachs on Morrand’s conversion claim. Finally, the trial
court concluded that HCH and Sachs had not been unjustly enriched.
I. Denial of Summary Judgment
Morrand argues that the trial court erred in not granting its motion for summary
judgment given the law of the case established by this court in GM Enterprises. The denial of
summary judgment, however, is generally not reviewable on appeal. See City of Little Rock v.
Nelson ex rel. Nelson, 2020 Ark. 34, 592 S.W.3d 633. This is true even after a trial on the
merits. Id. A denial of summary judgment is reviewable only when it results in a denial of
sovereign immunity or the immunity of a government official. Id. Because this case does not
involve any claims of immunity, these exceptions do not apply. Nor is this a case in which
the trial court’s denial of the motion was combined with a dismissal on the merits that
effectively terminated the proceeding below. See Johnson v. Simes, 361 Ark. 18, 204 S.W.3d
58 (2005). Therefore, we do not address Morrand’s first argument since it pertains to the
denial of its summary-judgment motion.
II. Law of the Case and Contract Law
We explained the law-of-the-case doctrine in Turner v. Northwest Arkansas Neurosurgery,
91 Ark. App. 290, 210 S.W.3d 126 (2005):
The law-of-the-case doctrine provides that the decision of an appellate court
establishes the law of the case for the trial court upon remand and for the appellate
court itself upon subsequent review and is conclusive of every question of law and
fact previously decided in the former appeal, and also of those that could have been
raised and decided in the first appeal, but were not presented. The rule is grounded
on a policy of avoiding piecemeal litigation. Thus, the law-of-the-case doctrine
prevents consideration of an argument that could have been made at trial and also
3
prevents consideration of an argument that could have been raised in the first appeal
and is not made until a subsequent appeal. However, when the evidence materially
varies, the law-of-the-case doctrine has no application. The law-of-the-case doctrine is
conclusive only where the facts on the second appeal are substantially the same as
those involved in the prior appeal and does not apply if there was a material change
in the facts.
Id. at 298–99, 210 S.W.3d at 133–34.
Whether the law-of-the-case doctrine was properly invoked and to what extent it
applies to a case are questions of law that we review de novo. See Convent Corp. v. City of N.
Little Rock, 2021 Ark. 7, at 17, 615 S.W.3d 706, 716 (“As to issues of law presented, our
review is de novo.”). Morrand’s overarching law-of-the-case argument is not preserved for
review because, although Morrand raised the general principle below, Morrand either failed
to raise a proper objection or failed to get a specific ruling at various points through the trial
court proceedings. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997) (when there was
no law-of-the-case argument made to the trial court and no indication whether the trial court
heard counsel mention law of the case to the prosecutor, and where the appellant failed to
obtain a ruling on the matter, the issue was not preserved for review). It is incumbent on the
parties to raise arguments initially to the trial court in order to give that court an opportunity
to consider them; otherwise, the appellate courts are placed in the position of possibly
reversing a trial court for reasons not addressed by that court. ProAssurance Indem. Co., Inc. v.
Methany, 2012 Ark. 461, 425 S.W.3d 689. The appellate courts will not address arguments
that are not preserved. Id.
4
We will briefly address Morrand’s second point for the sole purpose of showing
missed opportunities for preservation of its arguments. In its second point, Morrand does
not challenge the jury’s decision on its breach-of-contract claim; rather, Morrand argues that
the trial court failed to follow the law of the case established by this court in GM Enterprises
and thereafter failed to follow Arkansas contract law. There are three subpoints to Morrand’s
argument: (1) the trial court did not perform its role as gatekeeper for extrinsic evidence; (2)
the trial court included jury instructions that directly contradicted the law of the case; and
(3) the trial court refused to permit Morrand to present evidence of the law of the case to the
jury.
A. Extrinsic Evidence
Morrand argues that the trial court erred in permitting HCH and Sachs to introduce
extrinsic evidence to explain an ambiguity in the contracts given the law of the case.
Specifically, Hunter Haynes, then managing member of HCH and a member of Sachs,
testified at trial regarding his intent with respect to the contracts and about the parties’
conduct surrounding the execution of the contracts. At the summary-judgment hearing,
counsel for Morrand remarked that any testimony offered by Haynes about his
understanding of the contracts would be impermissible parol evidence; however, Morrand
did not get a specific ruling on that contention. Moreover, during Haynes’s testimony at
trial, Morrand admits that it “did not orally object to each piece of inadmissible parol
evidence to avoid what was sure to be a constant and persistent stream of trial interruptions.”
In fact, Morrand raised no contemporaneous objection during the trial testimony with
5
respect to allegedly inadmissible parol evidence, which precludes this court from addressing
the matter on appeal. Dye v. Precision Found. Specialties & Flow Rite Drainage Sols., Inc., 2022
Ark. App. 220, 646 S.W.3d 168 (failure of homeowners to make contemporaneous objection
to jury’s having been led in a single-file line through their home during trial between
residential contractor and homeowners over breach-of-contract claims arising from home
repairs precluded appellate review); cf. Allstate Ins. Co. v. Dodson, 2011 Ark. 19, 376 S.W.3d
414 (when appellant filed a motion in limine and objected throughout expert’s testimony,
argument was preserved for appeal).2 While Morrand did file a motion in limine, the motion
did not seek to exclude Haynes’s testimony regarding his understanding of the contracts. In
any event, Morrand invited the testimony to which it now objects. Morrand called Haynes
as its first witness and asked on direct examination what language in the contract conveyed
to him that HCH and Sachs were entitled to a full month’s rent. See Rhine v. Haley, 238 Ark.
72, 378 S.W.2d 655 (1964) (recognizing that, even if it was improper for client in legal-
malpractice suit to testify on redirect examination about legal meaning and effect of property-
settlement agreement, attorney could not complain where he cross-examined client about
her understanding as to the agreement’s meaning). Morrand’s argument on extrinsic
2
In its reply brief, Morrand cites Sutton v. State, 311 Ark. 435, 844 S.W.2d 350 (1993),
and Huls v. State, 27 Ark. App. 242, 770 S.W.2d 160 (1989), for the proposition that raising
an objection by pretrial motion without a corollary objection at trial is sufficient to preserve
the issue for appeal. Both of those criminal cases involved pretrial motions in limine.
Morrand filed a motion in limine here, but that motion pertained to preventing any mention
of Kenrick Morrand’s wealth—not with keeping out Haynes’s testimony about the meaning
he assigned to the parties’ contractual language in the LTAs.
6
evidence is not preserved for review. Longley v. Gatewood, 2017 Ark. App. 48, 512 S.W.3d
683.
B. Jury Instructions
Morrand argues that the trial court erred in giving two instructions—numbers twelve
and fourteen. Those instructions provided, in relevant part, that the jury was charged with
the duty of interpreting the contract to give effect to what the parties intended when they
made the agreement and that the jury should give weight to the meaning placed on the
language by the parties themselves as shown by their circumstances, acts, or conduct after
the contract was made.
Prior to trial, Morrand sent a letter to the court in which it voiced its objections to
various proposed instructions, including numbers twelve and fourteen; however, the record
does not show that the trial court ruled with respect to the letter. Moreover, the record before
us does not demonstrate that Morrand raised a law-of-the-case objection to these particular
instructions at trial before the trial court instructed the jury. Morrand’s pretrial letter was
not sufficient to preserve the matter for appeal. Found. Telecomms., Inc. v. Moe Studio, Inc., 341
Ark. 231, 16 S.W.3d 531 (2000) (holding that letter to court stating an objection was not
sufficient to preserve issue). Morrand must have objected when the instructions were given
at trial. Roggasch v. Sims, 2016 Ark. App. 44, 481 S.W.3d 440 (when the appellants did not
make a timely objection to a particular jury instruction at trial, it was not preserved for
review). In any event, Morrand’s letter to the court did not mention any type of law-of-the-
case objection or even this court’s decision in GM Enterprises. Morrand’s letter of objections
7
did not assert that there was no ambiguity in the contracts. Rather, the gist of the letter was
that the trial court must make a prior determination that a contract or a contract term is
ambiguous before instructions twelve and fourteen could be included. While Morrand’s
reply brief makes some passing reference to an apparently unrecorded discussion on jury
instructions that was held in chambers, Morrand does not assert that it made a law-of-the-
case objection; rather, Morrand falls back on the objections raised in its letter, which, as we
have pointed out, only state that a prior determination of ambiguity must be made before
the instructions may be included. Morrand further asserts in the reply brief that, with respect
to the prior determination that must be made, “[t]hat is the objection” (emphasis in
original). Here, the trial court made such determination prior to trial when it framed the
issue to say that the jury’s job was to interpret the parties’ contracts. Under these
circumstances, Morrand’s argument regarding jury instructions is not preserved for review.
C. Proffer of Evidence
Morrand argues that the trial court further erred in refusing its request to present the
law of the case to the jury. During Haynes’s testimony on redirect examination, Morrand
sought to introduce this court’s opinion in GM Enterprises after asking Haynes whether he
remembered the previous litigation. The trial court would not allow admission of the
opinion but granted Morrand’s request to proffer the opinion. At the conclusion of the trial,
Morrand proffered the opinion but did not indicate how the opinion could have been
admissible during Haynes’s testimony. Specifically, it was not clear what questions Haynes
would have been asked about the opinion or what his responses would have been. Copeland
8
v. State, 343 Ark. 327, 37 S.W.3d 567 (2001) (where an appellant during proffer failed to
offer the substance of a witness’s testimony on which he would rely, the matter was not
preserved). In any event, if Morrand wanted either the opinion or language from the opinion
to be presented to the jury, it would have been by way of a jury instruction. Indeed, Morrand
stated during its proffer that the jury had not been instructed on the law of the case.
Morrand, however, did not proffer a proposed jury instruction on the law of the case or an
instruction containing any language from GM Enterprises. Morrand’s argument regarding its
proffer of evidence is not preserved for review.
III. Unjust Enrichment
Morrand argued below that HCH and Sachs had been unjustly enriched because they
received $157,960.85 for one day’s rent, but the trial court ruled that HCH and Sachs were
entitled to the money. Morrand contends on appeal that this contradicts the law of the case.
In its judgment, the trial court found that HCH and Sachs had a contractual right to
the payments under the LTAs. In addition, the trial court found that unjust enrichment was
inappropriate because Morrand had waived and released any claim for return of the rent
payments and that Morrand had failed to do equity, i.e., had unclean hands. Morrand does
not address these additional reasons for dismissal of its unjust-enrichment claim. When a
separate and independent ground that supports a judgment is not challenged on appeal, the
appellate court must affirm. Elaine Petroleum Distrib., Inc. v. Snyder, 2022 Ark. App. 59, 640
S.W.3d 704.
Affirmed.
9
GRUBER and VAUGHT, JJ., agree.
Doss Law Firm, P.A., by: D. Westbrook Doss, Jr., and Alex T. Shirley, for appellant.
Friday, Eldredge & Clark, LLP, by: Clifford W. Plunkett and Joshua C. Ashley, for appellees.
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482458/ | DISMISS and Opinion Filed November 1, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00690-CV
BRYAN A. STEMPOWSKI, Appellant
V.
ORBITAL SOLAR SERVICES, LLC F/K/A
REACH CONSTRUCTION GROUP, LLC, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-01624
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Myers
We reinstate this appeal which we previously abated to allow the parties an
opportunity to obtain a final judgment.
Before the Court is the parties’ joint motion to dismiss the appeal for want of
jurisdiction because no final judgment has been rendered. We GRANT the motion
and dismiss the appeal without prejudice. See TEX. R. APP. P. 42.1(a)(2).
/Lana Myers//
220690f.p05 LANA MYERS
JUSTICE
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRYAN A. STEMPOWSKI, On Appeal from the 193rd Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-21-01624.
No. 05-22-00690-CV V. Opinion delivered by Justice Myers.
Justices Pedersen, III and Garcia
ORBITAL SOLAR SERVICES, participating.
LLC F/K/A REACH
CONSTRUCTION GROUP, LLC,
Appellee
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED WITH PREJUDICE.
It is ORDERED that the parties bear their own costs of this appeal.
Judgment entered this 1st day of November, 2022.
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482444/ | Denied and Opinion Filed November 4, 2022
SIn The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01106-CV
IN RE 1 COVENTRY COURT, LLC, MOSHE FELDHENDLER, AND
LEAH FELDHENDLER, Relators
Original Proceeding from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-01541
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Partida-Kipness, and Justice Smith
Opinion by Justice Partida-Kipness
Relators’ October 17, 2022 petition for writ of mandamus seeks relief from
the trial court’s contempt order. Entitlement to mandamus relief requires relators to
demonstrate that the trial court clearly abused its discretion and that they lack an
adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–
36 (Tex. 2004) (orig. proceeding).
Relators’ record does not comply with the requirements of Texas Rule of
Appellate Procedure 52. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1)–(2).
Accordingly, we deny the petition.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
221106F.P05
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482453/ | DISMISS and Opinion Filed November 2, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01058-CV
IN RE EVAN JOHNSTON AND ADRIANA AKHTAR, Relators
Original Proceeding from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-00476
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Partida-Kipness, and Justice Smith
Opinion by Chief Justice Burns
Before the Court is relators’ motion to dismiss their mandamus petition.
Relators state the controversy described in their mandamus petition—a dispute over
discovery matters—has been mooted by the trial court’s final summary judgment
order disposing of their claims. See In re Alexis, No. 05-97-01916-CV, 1998 WL
564933, at *1 (Tex. App.—Dallas Sept. 8, 1998, orig. proceeding) (not designated
for publication) (“The entry of final judgment renders this mandamus dispute over
pre-trial discovery motions moot.”). Therefore, relators move to dismiss their
pending petition for mandamus relief.
We grant relators’ motion and dismiss this original proceeding.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
221058F.P05
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482434/ | DISMISS and Opinion Filed November 7, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00698-CV
IN THE INTEREST OF K.W., A CHILD
On Appeal from the 468th Judicial District Court
Collin County, Texas
Trial Court Cause No. 468-55854-2017
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Pedersen, III, and Justice Goldstein
Opinion by Chief Justice Burns
Appellant appeals from the July 13, 2022 order denying his motion to recuse
the presiding judge. The record before this Court does not contain a final judgment.
The Court questioned its jurisdiction to review the recusal order and directed
appellant to file, by September 30, a letter brief addressing the Court’s concern. We
cautioned appellant that failure to comply may result in dismissal of the appeal
without further notice. After granting appellant an extension to October 12,
appellant has failed to comply.
With respect to an order denying a motion to recuse, this Court's appellate
jurisdiction is limited to review from the final judgment. TEX. R. CIV. P. 18a(j)(1)(A)
(“An order denying a motion to recuse may be reviewed only for abuse of discretion
on appeal from the final judgment.”). Because the trial court has not rendered a final
judgment, this Court lacks jurisdiction to review the recusal order. See id.
Accordingly, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
220698F.P05
–2–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF K.W., A On Appeal from the 468th Judicial
CHILD District Court, Collin County, Texas
Trial Court Cause No. 468-55854-
No. 05-22-00698-CV 2017.
Opinion delivered by Chief Justice
Burns. Justices Pedersen, III and
Goldstein participating.
In accordance with this Court’s opinion of this date, the appeal is
DISMISSED.
Judgment entered November 7, 2022
–3– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482462/ | Order entered November 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00994-CV
IN RE ASICS AMERICA CORPORATION, Relator
Original Proceeding from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-06193
ORDER
Before Justices Molberg, Pedersen, III, and Garcia
Before the Court is relator’s September 27, 2022 petition for writ of
mandamus. We request that real party in interest and respondent file a response, if
any, to the petition by November 21, 2022.
/s/ DENNISE GARCIA
JUSTICE | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482442/ | DENY and Opinion Filed November 4, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01047-CV
IN RE RUSSELL WILSON II, IN HIS OFFICIAL CAPACITY AS
ATTORNEY PRO TEM FOR THE STATE OF TEXAS, DALLAS COUNTY,
TEXAS, Relator
Original Proceeding from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-00719
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Partida-Kipness, and Justice Smith
Opinion by Chief Justice Burns
Before the Court is relator’s October 5, 2022 petition for writ of mandamus in
which he challenges the trial court’s (1) Order Relating to Attorney Pro Tem and
(2) Order on Defense’s Objection to the State Motion or Notice to Withdraw Intent
to Consolidate.
Entitlement to mandamus relief requires relator to show that the trial court
clearly abused its discretion and that he lacks an adequate appellate remedy. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
Because relator has not submitted an adequate record, we are unable to conduct a
meaningful review of his claims. See TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
Moreover, some of the documents included in the record are not certified by a trial
court clerk or adequately sworn copies. See TEX. R. APP. P. 52.3(k), 52.7(a); In re
Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding) (requiring
relator to submit a record containing certified or sworn copies). Accordingly, we
deny the petition for writ of mandamus.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
221047F.P05
–2– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482460/ | Order entered November 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00826-CV
THE CITY OF MESQUITE, TEXAS, Appellant
V.
ANTHONY WAGNER, Appellee
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-02864
ORDER
Before the Court is appellee’s November 3, 2022 unopposed motion for an
extension of time to file his brief. We GRANT the motion and extend the time to
November 23, 2022.
/s/ BONNIE LEE GOLDSTEIN
JUSTICE | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482463/ | Order entered November 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00450-CV
WILLIAM RICHMOND, Appellant
V.
FOREST GREEN MANOR, Appellee
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-22-01665-C
ORDER
Before the Court is appellant’s November 4, 2022 motion requesting an
extension to January 21, 2023 to file his brief. We GRANT the motion ONLY
TO THE EXTENT that we extend the time to December 9, 2022.
/s/ BILL PEDERSEN, III
JUSTICE | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482467/ | Order entered November 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00139-CR
KEPHREN MARCUS THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F20-36078-T
ORDER
Before the Court is appellant’s October 10, 2022 second motion for
extension of time to file appellant’s brief and to abate the appeal to clear up issues
with the record. Appellant contends there are numerous problems with the exhibits
to the reporter’s record and a missing jury charge from the clerk’s record.
Appellant contends the following exhibits have not been filed with the
reporter’s record because they are reportedly uncopiable: State’s Exhibits 314, 317,
344, 486, and 497 and Defense Exhibits 92 and 125. Appellant contends State’s
Exhibit 407 as filed with the Court is unplayable. Appellant contends State’s
Exhibits 336, 338 and 447, and Defense Exhibit 118 are missing from the record.
Appellant further reports that State’s Exhibits 348 and 349 and Defense Exhibit
107 appear to be mislabeled.
Finally, as appellant notes, by order issued August 12, 2022, the Court
directed the Dallas County District Clerk to supplement the clerk’s record with
the jury charge on punishment and jury punishment verdict. To date, no
supplemental clerk’s record has been filed. A review of the trial court’s online
docket sheet shows that the punishment charge does not appear in the list of
documents available online and, therefore, may not be in the district clerk’s
possession. We observe that the trial court read the jury charge on punishment
into the record where it is found in volume 19, pages 109–119 of the reporter’s
record.
In addition to the issues noted by appellant, the Court notes that the Clerk
has determined that the disc of State’s Exhibit 345 is unplayable. Furthermore,
the court reporter has not filed State’s Exhibits 335, 337, 339, 340, 341, 342, and
343 in proper electronic form as pdf documents placed into a volume, text
searchable, and bookmarked as directed by the Clerk. Instead, the court reporter
has submitted the exhibits as compact discs and filed a letter requesting
–2–
reconsideration of electronic submission on the ground such documents are
voluminous and only small excerpts from each disc was used at trial.
We GRANT appellant’s motion and order relief as follows.
We ORDER the trial court to conduct a hearing regarding the status and
completeness of the record in this case.
Regarding the missing jury charge and jury verdict on punishment, we
ORDER the trial court to make findings regarding whether the jury charge and
verdict on the punishment phase of trial is in the possession of the Dallas County
District Clerk’s Office or whether the jury charge and verdict on punishment has
been lost or destroyed.
If the trial court finds that the Dallas County District Clerk’s Office does
not have possession of the jury charge and verdict on punishment or that the
document has been lost or destroyed, the trial court shall determine whether the
parties, by written stipulation, can deliver a copy of the jury charge and verdict
to the Dallas County District Clerk for inclusion in a supplemental clerk’s record.
If the parties cannot agree, we ORDER the trial court to determine what
constitutes an accurate copy of the jury charge and verdict o n p u n i s h m e n t
and order that the jury charge and verdict on punishment be included in a
supplemental clerk’s record. See TEX. R. APP. P. 34.5e).
–3–
Regarding the problems with the exhibits in the reporter’s record, we
ORDER the trial court to make findings regarding whether the reporter’s record
should contain State’s Exhibits 314, 317, 336, 338, 344, 345, 407, 447, 486, and
497 and Defense Exhibits 92, 118, and 125 and, if so, whether the reporter’s record
can be supplemented with accurate copies of the designated exhibits.
If the trial court determines that any of the specified exhibits should be part
of the record on appeal and cannot be filed in the appellate record, the trial court
shall make findings regarding (1) if the appellant timely requested a reporter’s
record; (2) if without appellant’s fault, a significant exhibit has been lost or
destroyed; (3) if the lost or destroyed exhibit is necessary to the appeal’s
resolution; and (4) if the lost or destroyed exhibit cannot be replaced either by
agreement of the parties or with a copy determined by the trial court to accurately
duplicate with reasonable certainty the original exhibit or exhibits. See TEX. R.
APP. P. 34.6(f).
Regarding the allegedly mislabeled exhibits, in the Court’s record, no video
disks have been filed purporting to be State’s Exhibits 348 and 349. 1 Those
exhibits appear in the record as DNA reports. We agree with appellant that the
index to the reporter’s record shows Defense Exhibit 107 is a chart, but the exhibit
1
The Court has received the following exhibits in physical media: State’s Exhibits A, B, C, D, 301, 306–07,
315, 318–27, 329, 335, 337, 339–43, 345 (unplayable), 346, 407 (unplayable), 429, 437–41, 449–52,
461–62 and 1121; Defense Exhibits 126 and 130.
–4–
filed is a photograph. To resolve these discrepancies, we further ORDER the trial
court to determine whether State’s Exhibits 348 and 349 and Defense Exhibit 107
accurately reflect the exhibits with those designations admitted at trial and, if not,
whether the reporter’s record can be supplemented with the correct exhibits or the
exhibits can be renumbered to reflect their actual exhibit numbers.
Finally, regarding State’s Exhibits 335, 337, 339, 340, 341, 342, and 343, we
ORDER the trial court to make findings of fact determining whether the parties
can agree to requiring the court reporter to produce only certain documents in
electronic form to be filed into the record in PDF format with the remainder of the
documents in the exhibits filed as compact discs. If the parties cannot agree to a
more limited electronic filing, we ORDER the court reporter to produce the entire
contents of those exhibits in electronic PDF format in a volume, text searchable,
and bookmarked.
We ORDER the trial court to transmit to this Court, within THIRTY
DAYS of the date of this order, a record containing its written findings of fact,
any supporting documentation, and the documents it has determined a r e
accurate copies of the jury charge and verdict for punishment.
We DIRECT the Clerk to send copies of this order to the Honorable Lela
Mays, Presiding Judge, 283rd Judicial District Court; Sharina A. Fowler,
–5–
official court reporter, 283rd Judicial District Court; Felicia Pitre, Dallas
County District Clerk; and to counsel for all parties.
We ABATE the appeal to allow the trial court to comply with this
order. The appeal shall be reinstated when the findings are received or at such
other time as the Court deems proper. The Court will set a new due date for
appellant’s brief after reinstatement and a determination that the record is
complete.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE
–6– | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482464/ | Order entered November 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00770-CV
TTS, LLC, Appellant
V.
EVENFLOW, LLC, DAN MANSELLE, AND TRINITY LOGISTICS, INC.,
Appellees
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-05512-2021
ORDER
Before the Court is appellee Trinity Logistics, Inc.’s November 3, 2022
unopposed second motion for an extension of time to file its brief. Appellee timely
filed its brief on November 4. Accordingly, we DENY the motion as moot.
/s/ KEN MOLBERG
JUSTICE | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350145/ | Filed 12/23/22 P. v. Greer 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
(Butte)
----
THE PEOPLE, C095150
Plaintiff and Respondent, (Super. Ct. No. 20CF06247)
v.
ROGER EVERS GREER,
Defendant and Appellant.
Defendant Roger Evers Greer pled guilty to one count of resisting an executive
officer in the performance of the officer’s duties. He also admitted having one prior
strike conviction within the meaning of the three strikes law. Based on the plea and
admission, the trial court found defendant guilty of this offense, found the prior strike
allegation to be true, and ultimately sentenced defendant to serve six years in state prison.
On appeal, defendant contends Senate Bill No. 567 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 731, § 1.3) applies retroactively to his case and requires remand for a
new sentencing hearing. The People concede the point. We accept the concession. We
1
shall therefore vacate the sentence and remand the matter for the trial court to resentence
defendant.
FACTUAL AND PROCEDURAL BACKGROUND
The nature of the contention raised on appeal does not require a detailed recitation
of the underlying facts. It will suffice to note that defendant, while intoxicated, caused a
disturbance at a Lake Oroville marina, drove recklessly out of the parking lot, and refused
to pull over when a responding officer attempted to perform a traffic stop on Highway
162. Then, while speeding, defendant drove directly at another patrol car that was parked
along the highway, stopping directly in front of the car and yelling “Fuck you” at the
officer seated in the vehicle. After resuming the car chase, defendant came to another
abrupt stop, exited his car on foot, and challenged the officers to shoot him. Defendant
was eventually taken into custody after running across the highway, jumping over a
guardrail, and attempting to punch one of the officers.
Based on these facts, defendant pled guilty to one count of resisting an executive
officer in the performance of the officer’s duties and admitted having a prior strike
conviction. At the sentencing hearing, the trial court imposed the upper term sentence of
three years, doubled due to the prior strike. In imposing this sentence, the trial court
stated: “I’ve reviewed the circumstances in aggravation and mitigation set forth in the
[California] Rules of Court. After careful consideration, I do find on balance that the
circumstances in aggravation outweigh the circumstances in mitigation. In aggravation,
the crime involved the threat of great bodily harm, and [defendant] engaged in conduct
that indicates a serious danger to society. He was also on probation at the time that he
picked up the new offense. In mitigation, he pled at an early stage and he has largely led
a crime-free life.”
DISCUSSION
Defendant and the People agree that Senate Bill No. 567 applies retroactively to
this case and requires remand for resentencing. We concur.
2
On October 8, 2021, the Governor signed Senate Bill No. 567 (2021-2022 Reg.
Sess.) into law. This enactment became effective January 1, 2022 (Cal. Const., art. IV,
§ 8, subd. (c)), two months after defendant was sentenced in this case.
As relevant here, Senate Bill No. 567 limits the trial court’s ability to impose an
upper term determinate sentence by making the middle term the presumptive prison term
unless specified circumstances exist. (Pen. Code, § 1170, subd. (b)(1), (2).)1 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.” (§ 1170, subd. (b)(2), italics
added.) The amended statute also permits the trial court to “consider the defendant’s
prior convictions in determining sentencing based on a certified record of conviction
without submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).)
As the People properly concede, this amended version of section 1170,
subdivision (b) applies retroactively in this case as an ameliorative change in the law
applicable to all nonfinal convictions on appeal. (See People v. Flores (2022)
73 Cal.App.5th 1032, 1039.) The People also concede, “None of the aggravating factors
the trial court cited in imposing the upper-term sentence . . . were either admitted by
[defendant] or found to be true beyond a reasonable doubt.” Nor did the trial court base
its upper term sentence on defendant’s prior convictions under section 1170,
subdivision (b)(3). The People further concede that “the People do not believe they can
1 Further undesignated statutory references are to the Penal Code.
3
make a good-faith harmless error argument.” We accept this concession as well. We
must therefore vacate the sentence and remand for resentencing.2
DISPOSITION
The sentence is vacated, and the matter remanded to the trial court to resentence
defendant under the current version of Penal Code section 1170. In all other respects, the
judgment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Duarte, J.
/s/
Boulware Eurie, J.
2 We note that defendant also cites certain changes to section 1170 made by
Assembly Bill No. 124 (Stats. 2021, ch. 695), which were incorporated into Senate Bill
No. 567 (Stats. 2021, ch. 731, § 3), specifically section 1170, subdivision (b)(6). As the
Attorney General correctly observes, defendant will be entitled to the benefit of these
changes as well on remand.
4 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350351/ | THE THIRTEENTH COURT OF APPEALS
13-22-00278-CV
City of Pharr, Texas
v.
David Bautista
On Appeal from the
332nd District Court of Hidalgo County, Texas
Trial Court Cause No. C-0670-21-F
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellant.
We further order this decision certified below for observance.
December 22, 2022 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350350/ | NUMBER 13-22-00278-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF PHARR, TEXAS, Appellant,
v.
DAVID BAUTISTA, Appellee.
On appeal from the 332nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Memorandum Opinion by Chief Justice Contreras
Appellee David Bautista filed suit against appellant the City of Pharr, Texas
alleging a violation of the Texas Whistleblower Act. See TEX. GOV’T CODE ANN. § 554.002.
The City filed a plea to the jurisdiction, which the trial court denied. By its sole issue, the
City appeals the trial court’s denial of its plea, arguing that Bautista’s suit is jurisdictionally
barred because it was not filed within the ninety-day statutory limitations period. See id.
§§ 554.002, .005, .006; TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). We affirm.
I. BACKGROUND
Bautista worked at the City’s wastewater treatment plant. The City terminated
Bautista’s employment on September 30, 2020, “for conduct in violation of personnel
policies.” On October 1, 2020, Bautista sent a letter to the City Manager seeking to initiate
the City’s grievance procedure and appeal his termination. In the letter, he appeared to
assert that he was given an unwarranted write-up and was retaliated against after
reporting his employer to the Texas Commission on Environmental Quality for alleged
infractions.
On October 23, 2020, Ed Wylie, the Interim City Manager, replied by letter to
Bautista as follows:
Mr. Bautista,
Upon receiving your correspondence dated October 01, 2020,
regarding your employment status with the City of Pharr, I have carefully
reviewed, and determined that you did not provide the required minimum
information to consider your correspondence an appeal.
Chapter 53. Section 3. Although no specific form is required, the
appeal must provide the minimum following information:
A. the adverse action or decision that is the subject of the appeal;
B. the date on which the action or decision was taken;
C. the name and title of the . . . person or persons who took the
action or made the decision;
D. an explanation of why the employee believes that the action was
not warranted, not justified, or is otherwise deficient; and,
E. a description of the remedy or relief the employee wants or
requests as part of the appeal.
2
Further, your correspondence was not signed by you, which is also
a requirement as per Chapter 53 [of the City’s Personnel Policy Manual].
Please rest assure [sic] your correspondence has been treated with
u[t]most regard and integrity. At this time, I regret to inform you that I uphold
the decision made by Public Utilities Director, Ruben Rosales, to terminate
the employment relationship between you and the City of Pharr.
On December 7, 2020, Bautista sent a signed response to Wylie containing the
information required under Chapter 53 of the City’s Personnel Policy Manual as listed by
Wylie. Bautista closed his letter by stating his “appeal is now complete and legal” and
requested that Wylie “[p]lease respond with [his] decision as soon as possible.” After
waiting for and receiving no response from the City, Bautista filed suit on February 22,
2021. See TEX. GOV’T CODE ANN. § 554.006(d).
On January 10, 2022, the City filed its plea to the jurisdiction, arguing that Wylie’s
October 23, 2020 letter constituted a denial of Bautista’s appeal, and so, per the ninety-
day filing deadline found in § 554.006 of the government code, Bautista was required to
file suit by January 21, 2021. See id. § 554.006(a)–(c). The City highlighted the last
sentence in Wylie’s letter, which stated that he would “uphold the decision” to terminate
Bautista. In his response to the City’s plea, Bautista argued that Wylie’s letter was not “an
unequivocal and unambiguous denial of” his appeal. Bautista argued that Wylie’s letter
instead informed him that his letter was not considered an appeal and “helpfully listed the
five items [Bautista] could include to complete his appeal.” The City replied to Bautista’s
response and attached an affidavit by Wylie, in which he stated that his letter was
intended as a final decision on Bautista’s appeal.
The trial court heard arguments on the City’s plea on April 4, 2022. At the hearing,
Bautista again argued that “[Wylie’s] October 23rd letter at best is wildly ambiguous.” He
3
stated, “If this letter is supposed to inform somebody that their appeal is over, . . . I invite
the [trial c]ourt to read it . . . and view it as any reasonable person would.” Bautista
contended that Wylie’s letter “clearly informs him [Bautista’s initial] correspondence is not
considered an appeal,” that “[t]here are five things that [the City] need[s] in order to have
it considered an appeal,” and that Bautista “needs to sign” the appeal. And he argued that
Wylie’s use of “at this time” when noting he would uphold Bautista’s termination reflected
the possibility that Wylie could later reach a different conclusion.
On June 14, 2022, the trial court denied the City’s plea to the jurisdiction. This
interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
II. STANDARD OF REVIEW & APPLICABLE LAW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Teal
Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324,
331 (Tex. 2020) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex.
2000)). Whether a trial court has subject matter jurisdiction is a question of law that we
review de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 682 (Tex. 2020) (citing
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
Sovereign immunity protects the State and its agencies from lawsuits for money
damages and deprives a trial court of subject matter jurisdiction over the plaintiff’s claims.
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).
Governmental immunity offers the same protections for political subdivisions of the State,
including municipalities. Id. “Governmental units are immune from suit unless immunity is
waived by state law.” City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022).
4
“Because governmental immunity is jurisdictional, it is properly raised through a plea to
the jurisdiction . . . .” Id.; see Miranda, 133 S.W.3d at 228.
The party suing a governmental unit bears the burden of affirmatively showing a
waiver of immunity. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d
506, 512 (Tex. 2019). “To determine whether the party has met this burden, we may
consider the facts alleged by the plaintiff and the evidence submitted by the parties.” Id.
(citing Tex. Nat. Res. & Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001)).
To prevail on a claim of immunity, the governmental defendant “may challenge the
pleadings, the existence of jurisdictional facts, or both.” Alamo Heights Indep. Sch. Dist.
v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When a plea to the jurisdiction challenges
jurisdictional facts, our review mirrors that of a traditional summary judgment motion.
Maspero, 640 S.W.3d at 528 (citing Garcia, 372 S.W.3d at 635). To that end, “all the
evidence is reviewed in the light most favorable to the plaintiff to determine whether a
genuine issue of material fact exists.” Town of Shady Shores v. Swanson, 590 S.W.3d
544, 550 (Tex. 2019); see Maspero, 640 S.W.3d at 528–29 (“[W]e take as true all
evidence favorable to the nonmovant and indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor.”). “A genuine issue exists if ‘the evidence is such
that a reasonable jury could find that fact in favor of the non-moving party.’” Smith v.
Mosbacker, 94 S.W.3d 292, 294 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.)
(quoting Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998,
pet. denied)). “Material facts are those facts which ‘affect the outcome of the suit under
the governing law.’” Id. (quoting Moore, 981 S.W.2d at 269). If “the pleadings and
5
evidence generate a ‘fact question on jurisdiction,’ dismissal on a plea to the jurisdiction
is improper,” and the fact issue will be resolved at trial by the factfinder. Maspero, 640
S.W.3d at 529 (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)
(per curiam)). “However, ‘if the evidence is undisputed or fails to raise a fact question,’
the plea must be granted.” Id. (quoting Hayes, 327 S.W.3d at 116).
The Texas Whistleblower Act “prevents a local governmental entity from firing a
public employee for reporting another public employee’s violation of the law to a law-
enforcement authority.” City of Madisonville v. Sims, 620 S.W.3d 375, 378 (Tex. 2020)
(per curiam) (citing TEX. GOV’T CODE ANN. § 554.002(a)). “The Whistleblower Act . . .
clearly and unambiguously waives sovereign immunity to allow plaintiffs to obtain relief.”
Id. at 379 (citing TEX. GOV’T CODE ANN. § 554.0035). “But an employee with a
Whistleblower Act claim must strictly abide by the procedural limitations set out in the Act
to obtain relief.” Id. (citing TEX. GOV’T CODE ANN. § 311.034). “The Whistleblower Act is a
broad remedial measure intended to encourage disclosure of governmental malfeasance
and corruption.” City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008). The Act is thus
liberally construed in favor of jurisdiction. Scott v. Godwin, 147 S.W.3d 609, 621 (Tex.
App.—Corpus Christi–Edinburg 2004, no pet.); see also Perez v. Cameron County, No.
13-17-00581-CV, 2018 WL 6219630, at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 29,
2018, no pet.) (mem. op.).
The Whistleblower Act states that “[e]xcept as provided by [§] 554.006, a public
employee who seeks relief under this chapter must sue not later than the 90th day after
the date on which the alleged violation of this chapter” either occurred or was discovered.
6
TEX. GOV’T CODE ANN. § 554.005. In turn, § 554.006 provides that “[a] public employee
must initiate action under the grievance or appeal procedures of the employing state or
local governmental entity relating to suspension or termination of employment or adverse
personnel action before” filing suit. Id. § 554.006(a). Any “[t]ime used by the employee in
acting under the grievance or appeal procedures is excluded” from the ninety-day filing
deadline. Id. § 554.006(c). If the employee initiates the grievance procedure, and “a final
decision is not rendered before the 61st day after the date procedures are initiated . . . ,
the employee may elect to” (1) exhaust the grievance or appeal procedures or
(2) terminate the procedures and sue within the time remaining on the ninety-day
deadline. Id. § 554.006(d). “The ninety-day filing deadline is . . . a jurisdictional statutory
prerequisite to suit, and a claim that fails to meet that deadline may properly be disposed
of by a jurisdictional plea.” Sims, 620 S.W.3d at 379.
III. DISCUSSION
The jurisdictional fact at issue is whether Wylie’s October 23, 2020 letter
constituted a final decision on Bautista’s appeal and the exhaustion of the City’s grievance
procedure, thereby beginning the ninety-day clock for Bautista to file suit. See TEX. GOV’T
CODE ANN. § 554.006. If it did, then Bautista’s suit was untimely, and the City’s plea to the
jurisdiction should have been granted. But, under the relevant standard of review, we
cannot conclude that the trial court erred by denying the City’s plea. See Maspero, 640
S.W.3d at 528. Based on the evidence in this case, the trial court could have reasonably
determined that a fact issue existed as to what Wylie intended to convey through his letter.
See id. at 529; Miranda, 133 S.W.3d at 227–28.
7
At the hearing on the City’s plea, Bautista argued that Wylie’s letter was “at best
. . . wildly ambiguous.” As evidence, Bautista presented Wylie’s letter itself. Though Wylie
stated in his affidavit that he intended his letter to be a final determination in Bautista’s
appeal, the letter itself does not plainly convey that intent and contains no clear language
signifying his decision’s finality. Instead, Wylie’s letter states Bautista “did not provide the
required minimum information to consider [his] correspondence an appeal” and lists the
requirements for a valid appeal under the City’s Personnel Policy Manual. Wylie
concluded his letter noting that “[a]t this time” he would be upholding the decision to
terminate Bautista’s employment. It is unclear whether Wylie intended to (1) uphold
Bautista’s termination “at this time” contingent on Bautista’s filing a corrected appeal as
per the policy manual or (2) render an unfavorable final decision on Bautista’s appeal “at
this time” because Bautista did not file a proper appeal.
Bautista believed Wylie’s letter merely informed him that his correspondence was
not an appeal and advised him of the way to file a proper appeal. That belief finds support
in the record, given that Bautista did in fact send a second letter to Wylie on December
7, 2020, still within the ninety-day limitations period, stating as follows: “Please consider
this a response to your letter dated October 23, 2020, . . . wherein you claim the original
filing of my appeal was deficient. Below, I clarify each of the issues cited by your letter in
turn.” Bautista provided the requisite information under Chapter 53 of the City’s Personnel
Policy Manual and requested a response as soon as possible.
Reviewing the evidence in a light most favorable to Bautista, we find that a
reasonable jury could conclude, as Bautista did, that Wylie’s letter was not a final decision
8
on Bautista’s appeal, but instead served to inform Bautista of the information he needed
to submit for his letter to constitute a proper appeal. See Mosbacker, 94 S.W.3d 292, 294.
As such, a “fact question on jurisdiction” exists, and dismissal on the City’s plea to the
jurisdiction would have been improper. See Maspero, 640 S.W.3d at 529 (holding that the
trial court must deny plea to the jurisdiction if the evidence presents a fact question
concerning jurisdiction); Miranda, 133 S.W.3d at 227–28 (same); see also County of El
Paso v. Latimer, 431 S.W.3d 844, 850 (Tex. App.—El Paso 2014, no pet.) (affirming
denial of County’s plea to the jurisdiction because the evidence in the record concerning
a jurisdictional fact “was unclear . . . such that the trial court could have reasonably
determined that . . . a fact issue was raised”). The trial court denied the City’s plea, and
so it did not err. Accordingly, we overrule the City’s sole issue. 1
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
22nd day of December, 2022.
1 The City argues that a ruling in favor of Bautista “would set a dangerous precedent.” “[U]pholding
the trial court’s decision,” the City contends, “would place governmental employers in . . . impossible
situation[s] by sending the message to employees that they can ignore the explicit wording in personnel
policy manuals, and ignore explicit wording in final decision letters from their employer[s] by simply
responding again, to toll the statute of limitations [under the Whistleblower Act].” See TEX. GOV’T CODE ANN.
§ 554.006(c) (“Time used by the employee in acting under the grievance or appeal procedures is
excluded . . . from the [ninety-day filing] period.”). We do not share the City’s concern. Contrary to the City’s
contention, the wording in Wylie’s October 23, 2020 letter on Bautista’s appeal was not “explicit.” Instead,
as discussed above, the letter was ambiguous as to whether Bautista had exhausted his administrative
remedies.
9 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482469/ | Order entered November 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00724-CV
BUILDERS FIRSTSOURCE, INC., ET AL., Appellants
V.
DESHAWN WHITE, Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-22-01477-B
ORDER
Before the Court is appellee’s November 3, 2022 unopposed motion for an
extension of time to file his jurisdictional brief. We GRANT the motion. We
ORDER the jurisdictional brief tendered to this Court on November 3rd filed as of
the date of this order.
/s/ KEN MOLBERG
JUSTICE | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482473/ | Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Nikita West, Appellant Appeal from the 188th District Court of
Gregg County, Texas (Tr. Ct. No. 50724-
No. 06-22-00031-CR v. A). Memorandum Opinion delivered by
Chief Justice Morriss, Justice Stevens and
The State of Texas, Appellee Justice van Cleef participating.
As stated in the Court’s opinion of this date, we find there was partial error in the
judgment of the court below. Therefore, we modify the trial court’s judgment by deleting
“aggravated assault” as the offense for which appellant was convicted and replacing it with
“aggravated robbery.” Likewise, we delete “2nd Degree Felony” as the degree of offense for
which appellant was convicted and replace it with “First-Degree Felony.” We affirm the trial
court’s judgment, as modified.
We note that the appellant, Nikita West, has adequately indicated his inability to pay
costs of appeal. Therefore, we waive payment of costs.
RENDERED NOVEMBER 4, 2022
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482470/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00063-CR
STEVIE LYNN TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd District Court
Wood County, Texas
Trial Court No. 24,494-2021
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After Stevie Lynn Taylor was arrested and charged with a family violence assault on his
girlfriend, Brittany, he made several threatening telephone calls to her from jail. After receiving
the calls, Brittany contacted Wood County Deputy Sheriff Joshua Davis and sought to drop the
charges against Taylor. As a result of his actions, Taylor was convicted by a Wood County jury
of tampering with a witness in a family violence case (with a previous family violence
conviction).1 After the trial court found that Taylor had one prior felony conviction, it sentenced
him to seventy-five years’ imprisonment and assessed him a $10,000.00 fine.2
On appeal, Taylor complains that the trial court denied him his constitutional right to
represent himself in both the guilt/innocence and punishment phases of his trial, that the trial
court erred when it denied his request for a limiting instruction to be included in the jury charge,
and that the evidence was insufficient to support the trial court’s finding that he had the financial
resources to offset part or all of his court-appointed attorney fees. Because we find that
(1) Taylor failed to clearly, unequivocally, and timely assert his right to self-representation, and
(2) Taylor’s limiting-instruction complaint was not preserved, we will affirm his conviction.
However, because (3) insufficient evidence supports the sufficient-resources finding regarding
Taylor’s ability to offset part or all of his court-appointed attorney fees, we will delete this
finding from the trial court’s judgment and affirm the judgment, as modified.
1
See TEX. PENAL CODE ANN. § 36.05(a), (e-2).
2
See TEX. PENAL CODE ANN. § 12.42(b).
2
(1) Taylor Failed to Clearly, Unequivocally, and Timely Assert His Right to Self-
Representation
In two of his appellate issues, Taylor complains that he was denied his constitutional
right to self-representation at both the guilt/innocence and the punishment phases of his trial. In
a criminal trial, the Sixth Amendment to the United States Constitution guarantees a defendant
the right to self-representation. Faretta v. California, 422 U.S. 806, 807, 817–18, 829–30
(1975); Funderburg v. State, 717 S.W.2d 637, 641 (Tex. Crim. App. 1986). “However, the right
to self-representation does not attach until it has been clearly and [unequivocally] asserted.”
Funderburg, 717 S.W.2d at 642 (citing Faretta, 422 U.S. at 835). In addition, the “right to self-
representation must be asserted in a timely manner, namely, before the jury is impaneled.”
McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997) (citing Ex parte Winton, 837
S.W.2d 134, 135 (Tex. Crim. App. 1992) (orig. proceeding)).
Taylor claims that he asserted his right to self-representation during the guilt/innocence
phase based only on the following exchange, which occurred after the jury was seated, sworn,
admonished, and released for the day:
THE COURT: Yes, sir?
THE DEFENDANT: Sir, I want to - -
[Defense Counsel]: Your Honor, at this time I’m going to make an oral
motion to withdraw as counsel of record. The defendant has indicated to me that
he believes he can do a better job representing himself in this case than I can.
THE DEFENDANT: No. I didn’t say that. It’s just - -
THE COURT: That will be denied.
THE DEFENDANT: There’s stuff he’s not saying to help me.
3
THE COURT: Listen to me, sir. Listen to me. You’ve got very
competent counsel. And I’m not just kidding you on that.
THE DEFENDANT: I know he’s competent, sir.
THE COURT: So you need to listen to your counsel, and let’s just go
from here.
First, and fatal to his claim, Taylor did not timely assert his right to self-representation.
The Texas Court of Criminal Appeals has held that this right must be asserted before the jury is
impaneled. McDuff, 939 S.W.2d at 619. The record shows that the exchange did not occur until
after the jury was impaneled and sworn. For that reason, any asserted right to self-representation
was untimely and, thus, was forfeited.
In addition, although Taylor argues that the above exchange shows he requested self-
representation, we find nothing in the exchange that shows Taylor clearly and unequivocally
asserted his right to self-representation. To the contrary, Taylor denied his counsel’s statement
that he had indicated to counsel that he believed he could do a better job representing himself.
Taylor also argues that the trial court understood that he requested to represent himself at trial
and that it summarily denied his request. However, this record shows that Taylor’s counsel
affirmatively made a motion to withdraw and that the trial court denied that motion. Based on
this record, because Taylor did not clearly and unequivocally request that he represent himself,
we find that his right to self-representation did not attach. Funderburg, 717 S.W.2d at 642.
Taylor also claims that he asserted his right to self-representation in the punishment
phase of his trial when his attorney advised the trial court that Taylor insisted that he introduce
evidence that the trial court had already excluded and that, if counsel did not do so, Taylor did
4
not want counsel to represent him at the hearing. However, in that exchange, Taylor’s counsel
also stated that he did not believe that Taylor wanted to represent himself and that Taylor’s
request was that he be appointed a new attorney. There is nothing in the exchange that indicates
that Taylor was requesting self-representation, rather than a new attorney.
Since the record shows no assertion of the right before the jury was empaneled and also
does not show that Taylor clearly and unequivocally asserted his right to self-representation, we
find that the right did not attach. McDuff, 939 S.W.2d at 619; Funderburg, 717 S.W.2d at 642.
We overrule these two issues.
(2) Taylor’s Limiting-Instruction Complaint Was Not Preserved3
Taylor also complains that the trial court erred when it denied his request to include a
limiting instruction in the jury charge regarding the jury’s consideration of testimony related to
the underlying assault charge.4 At a hearing before any witnesses were called, Taylor objected to
the admission of evidence of the underlying family violence assault under Rule 403 and
requested that, if the evidence were admitted, the trial court give a limiting instruction to the
jury. The trial court overruled the objection as to evidence of the assault that occurred in Wood
County and indicated that it would grant a limiting instruction but would need to consider what
that instruction would be.
3
“[P]reservation of error is a systemic requirement that a first-level appellate Court should ordinarily review on its
own motion.” Alonzo v. State, 158 S.W.3d 515, 516 (Tex. Crim. App. 2005).
4
The State argues that the evidence related to the underlying assault charge was same transaction contextual
evidence for which a limiting instruction is not required. See, e.g., Westbrook v. State, 29 S.W.3d 103, 114–15 (Tex.
Crim. App. 2000). Because this issue was not preserved, we do not address this argument.
5
After several witnesses had testified, the State called Brittany to testify. When the State
first inquired about what happened, the trial court called the attorneys to the bench and inquired
whether the State was going to bring in evidence of the assault. The State acknowledged that it
was, and Taylor reminded the court that it had granted him a running objection to the testimony,
but he did not request a limiting instruction be given to the jury.5 Brittany then described the
assaults. Nevertheless, after the parties rested, Taylor submitted a proposed jury instruction that
would limit the jury’s consideration of Brittany’s testimony, which the trial court denied.6
Rule 105 provides that, when the trial court admits evidence that is admissible for one
purpose but not for another purpose, “the court, on request, must restrict the evidence to its
proper scope and instruct the jury accordingly.” TEX. R. EVID. 105(a). The rule also provides
that any error in the admission of evidence that is admissible for one purpose, but not for the
other, is preserved “only if the party requests the court to restrict the evidence to its proper scope
and instruct the jury accordingly.” TEX. R. EVID. 105(b)(1).7
5
Taylor does not complain that the trial court erred when it did not give a limiting instruction at that time.
6
The proposed jury instruction read:
The State of Texas has introduced evidence of extraneous crimes or bad acts other than the one for
which Defendant stands charged in the indictment in this case. This evidence was admitted only
for the purpose of assisting you, if it does, for the purpose of establishing that the underlying
official proceeding involves family violence and that the Defendant had previously been convicted
of an offense involve[ing] family violence under the laws of this State or another state. You
cannot consider the testimony unless you find and believe beyond a reasonable doubt that the
defendant committed these acts. Additionally, you cannot consider the testimony for any other
purpose other than to determine whether you believe beyond a reasonable doubt that the
underlying official proceeding involves family violence and that the defendant had previously
been convicted of an offense that involved family violence under the laws of this state or another
state.
7
In relevant part, Rule 105 of the Texas Rules of Evidence provides:
6
Under Rule 105 of the Texas Rules of Evidence, a request for a limiting instruction must
be made by the party “at the moment the evidence is admitted.” Hammock v. State, 46 S.W.3d
889, 893, 895 (Tex. Crim. App. 2001) (reaffirming, in part, the court’s holding in Garcia v.
State, 887 S.W.2d 862, 878 (Tex. Crim. App. 1994)). “A failure to request a limiting instruction
at the time evidence is presented renders the evidence admissible for all purposes.” Williams v.
State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008). In such an instance, the trial court is
relieved “of any obligation to include a limiting instruction in the jury charge.” Id. (citing
Hammock, 46 S.W.3d at 892–95). Once the evidence is admitted for all purposes, “it is
impossible for [the jury] to go back at the close of the trial and reassess the evidence in light of
the limiting instruction [given in a jury charge], even if they could appreciate which items of
evidence the instruction was supposed to apply to.” Hammock, 46 S.W.3d at 895 (first alteration
in original) (quoting Rankin v. State, 974 S.W.2d 707, 711 (Tex. Crim. App. 1996)).
Therefore, to preserve his complaint that the trial court erred in admitting evidence
admissible for one purpose, but not another, Taylor was required to request a limiting instruction
at the time the evidence was admitted. Even though the trial court held a bench conference when
(a) Limiting Admitted Evidence. If the court admits evidence that is admissible against a
party or for a purpose—but not against another party or for another purpose—the court,
on request, must restrict the evidence to its proper scope and instruct the jury accordingly.
(b) Preserving a Claim of Error.
(1) Court Admits the Evidence Without Restriction. A party may claim error in
a ruling to admit evidence that is admissible against a party or for a purpose—
but not against another party or for another purpose—only if the party requests
the court to restrict the evidence to its proper scope and instruct the jury
accordingly.
TEX. R. EVID. 105(a), (b)(1).
7
it became apparent that testimony regarding the assault was imminent, Taylor reiterated only his
objection to the testimony and failed to request a limiting instruction be given to the jury.8 As a
result, Taylor failed to preserve any error regarding the trial court’s failure to give a limiting
instruction in its jury charge. See TEX. R. EVID. 105(b)(1). We overrule this issue.
(3) Insufficient Evidence Supports the Sufficient-Resources Finding
The trial court’s written judgment contains an “X” placed in a box by a statement that
reads, “The Court FINDS that Defendant has financial resources that enable Defendant to offset
in part or in whole the cost of the legal services provided to Defendant. Therefore, the Court
ORDERS Defendant to pay $___ as court costs to the County.” Taylor asserts that there is
insufficient evidence to support that finding and asks this Court to delete the finding from the
judgment. The State concedes that there is insufficient evidence and does not oppose the
deletion of that finding.
Article 26.05(g) of the Texas Code of Criminal Procedure gives a trial court the authority
to order the reimbursement of court-appointed attorney fees only if “the judge determines that a
defendant has financial resources that enable the defendant to offset in part or in whole the costs
of the legal services provided, . . . including any expenses and costs.” TEX. CODE CRIM. PROC.
ANN. art. 26.05(g) (Supp.). “[T]he defendant’s financial resources and ability to pay are explicit
8
Since it was incumbent on Taylor to request a limiting instruction “at the moment the evidence [was] admitted,”
Hammock, 46 S.W.3d at 893, Taylor’s pretrial request for a limiting instruction did not preserve this complaint. As
the Court of Criminal Appeals has explained, “Texas courts have frequently stated that the decision of whether to
request a limiting instruction concerning the proper use of certain evidence, including extraneous offenses, may be a
matter of trial strategy,” and “a party might well intentionally forego a limiting instruction as part of its ‘deliberate . .
. trial strategy to minimize the jury’s recollection of the unfavorable evidence.’” Delgado v. State, 235 S.W.3d 244,
250 (Tex. Crim. App. 2007) (citations omitted). Consequently, even though a party may request a limiting
instruction on extraneous evidence before trial, it may have strategic reasons to forego the limiting instruction when
the evidence is admitted.
8
critical elements in the trial court’s determination of the propriety of ordering reimbursement of
costs and fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex.
Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Any
finding under Article 26.05(g) must be supported by sufficient evidence. Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010). Further, “[a] defendant who is determined by the
court to be indigent is presumed to remain indigent for the remainder of the proceedings in the
case unless a material change in the defendant’s financial circumstances occurs.” TEX. CODE
CRIM. PROC. ANN. art. 26.04(p) (Supp.).
Two months before the trial in this case, the trial court found that Taylor was too poor to
employ counsel and appointed him new trial counsel. In addition, four days after the conclusion
of the trial, the trial court again found that Taylor was too poor to employ counsel and appointed
him appellate counsel. Further, at trial, there was no evidence presented that showed Taylor had
sufficient financial resources or an ability to pay any of his court-appointed attorney fees. As a
result, we find that the evidence was insufficient to support that finding. We sustain this issue
and will modify the judgment by deleting that finding.
9
We modify the trial court’s judgment by deleting the “X” placed in the box by the
statement that reads, “The Court FINDS that Defendant has financial resources that enable
Defendant to offset in part or in whole the cost of the legal services provided to Defendant.
Therefore, the Court ORDERS Defendant to pay $____ as court costs to the County.” We affirm
the trial court’s judgment, as modified.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 24, 2022
Date Decided: November 4, 2022
Do Not Publish
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482472/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00031-CR
NIKITA WEST, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 50724-A
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Nikita West was convicted of aggravated robbery with a deadly weapon, enhanced by
one prior conviction, and was sentenced to forty-eight years’ incarceration. Although we modify
the judgment to reflect that West was convicted of the first-degree-felony offense of aggravated
robbery, we conclude that (1) the trial court did not err in admitting buccal swabs into evidence
and, (2) even assuming admission of the photographic lineup was error, the record does not
reflect a substantial likelihood of misidentification. We, therefore, affirm the trial court’s
judgment, as modified.
Moniqua Oliver was working as the manager of the Cash Store in September 2015 when
a man dressed as a woman entered the store carrying a large silver handgun. The man, clad in
women’s slacks, blouse, scarf, and sandals, seated himself at a table across the counter from
Oliver, who was speaking to a customer. Oliver informed the man that the customer was filling
out paperwork and that she could assist him. The man replied that he would wait. A few
minutes later, the robber “slid across the desk,” pushed Oliver and the customer to the ground,
held them at gunpoint, and announced that he was robbing the store. Based on the man’s
demeanor, Oliver believed the man was dressed like a woman to disguise himself. The man
pointed the gun at Oliver and dragged her by the hair to a different desk to retrieve cash from the
drawer. He then forced Oliver to the front of the store to retrieve cash from a second drawer and,
finally, dragged her to the back of the store, where she retrieved cash from the safe. The man
warned Oliver not to trigger any alert to the police, and he removed the mag lock and the panic
alarm from Oliver’s neck. He then put Oliver and the customer in the bathroom and told them
2
not to come out. In addition to approximately $7,000.00 in cash, the man took Oliver’s purse
and cell phone. When interviewed two hours after the robbery, Oliver stated that the robber was
forty or fifty years old, was freshly shaven, and had a dark complexion. He was wearing a black
wig, a black and white shirt, black pants, a pink scarf around his neck, and flip flops.
At trial, Oliver identified West—the man “diagonal from [her] with the turquoise face
mask”—as the man who robbed the Cash Store. After the trial court asked West to lower his
mask, Oliver again identified him as the assailant.
(1) No Error in Admission of Buccal Swabs
Detective Kirby DeLoach of the Longview Police Department (LPD) investigated the
Cash Store robbery. DeLoach testified that the suspect left at the Cash Store a piece of paper
that was swabbed for DNA. He submitted the swab to the Texas Department of Public Safety
(DPS) laboratory and later received a “CODIS hit letter” identifying a person believed to match
the profile from the submitted DNA sample. The trial court sustained West’s objection to
testimony regarding the identity of the person believed to match the submitted DNA profile.
West later signed a voluntary DNA request form authorizing the LPD to collect DNA
samples from him. In accordance with West’s authorization, Detective Rebecca Reeves
collected the DNA samples from West.1 She gave the DNA samples to DeLoach, who then
submitted them to the DPS.2
1
Nikita West, Jr., West’s son, voluntarily provided a sample of his DNA to the LPD as well. Reeves also submitted
Nikita West, Jr.’s, DNA sample to the DPS.
2
Voluntary DNA sample request forms are proprietary to the LPD and have been in use since 2015.
3
According to DeLoach, West’s voluntary DNA samples were taken via buccal swabs.
The swabs, purchased from MedTech Pharmaceutical, arrived at the DPS in boxed, sealed
envelopes. In accordance with general procedure, Reeves collected two buccal swabs from
West, one from each side of the mouth. After the samples were taken, the swabs were re-
packaged and sealed. Reeves recorded the following information on the outside of each sealed
package: the collection date and time, the name of the individual from whom the DNA samples
were taken, and whether that sample was taken from the left or right side of the mouth. In
accordance with procedure, an evidence tracking number—TYL-1510-07224—was assigned to
the case and was included on all DNA evidence submitted by the LPD to the DPS. DeLoach
knew that the DNA samples submitted to the DPS belonged to West because that was the
information Reeves provided to him. DeLoach identified State’s Exhibit 7 as the envelopes
Reeves gave him after she collected the buccal swabs. The evidence tracking number assigned
to this case was consistent with the number on the envelopes and was signed by Reeves and
DeLoach.
In the first of two appellate issues, West contends that the trial court erred by “permitting
the introduction of evidence of the buccal swab” because the “State had not established the first
link in the chain of custody.”
“A trial judge has great discretion in the admission of evidence at trial.” Druery v. State,
225 S.W.3d 491, 503 (Tex. Crim. App. 2007). “We review a trial court’s decision to admit
evidence for an abuse of discretion.” Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App.
2019); see Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court “abuses
4
its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily
or unreasonably.” Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019).
The Texas Court of Criminal Appeals has explained that, “although the evidentiary rules
do not specifically address proper chain of custody, they do state that identification for
admissibility purposes is satisfied if the evidence is sufficient to support a finding that the matter
in question is what its proponent claims. Druery, 225 S.W.3d at 503–04 (citing TEX. R. EVID.
901(a); Kingsbury v. State, 14 S.W.3d 405, 407–08 (Tex. App.—Waco 2000, no pet.)).
“Evidence may be authenticated in a number of ways, including by direct testimony from a
witness with personal knowledge, by comparison with other authenticated evidence, or by
circumstantial evidence.” Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).
“Absent evidence of tampering or other fraud, . . . problems in the chain of custody do not affect
the admissibility of the evidence. Instead, such problems affect the weight that the fact-finder
should give the evidence, which may be brought out and argued by the parties.” Druery, 225
S.W.3d at 503–04.
West claims that the buccal swabs were not properly authenticated because the State
failed to show the beginning of the chain of custody. See Hartsfield v. State, 200 S.W.3d 813,
818 (Tex. App.—Texarkana 2006, pet. ref’d) (item lacking distinctive features must be
authenticated by showing the chain of custody “typically from the scene of the crime to the
courtroom”); Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d) (“The authentication requirement for admissibility is met once the State has shown the
5
beginning and the end of the chain of custody, particularly when the chain ends at a
laboratory.”).
The evidence established that Reeves collected the DNA samples from West after he
signed a voluntary DNA sample consent form that included his date of birth, his address, his
telephone number, and his driver’s license number. When DeLoach fingerprinted West, West
gave DeLoach his date of birth, and that date matched the date on the voluntary DNA request
form. DeLoach testified that Reeves delivered the buccal swabs to him in envelopes containing
her signature and that he submitted the envelopes to the DPS. DeLoach also detailed the
procedures used by the LPD to implement a proper chain of custody for such evidence. He
described the process by which the DNA evidence was gathered, the way the evidence was
sealed in envelopes marked with the collection date and time, the name of the individual from
whom the DNA samples were taken, and whether that particular sample was taken from the left
or right side of the mouth on the outside of the sealed package. DeLoach testified that a specific
evidence tracking number—TYL-1510-07224—was assigned to this case and that all DNA
evidence submitted to the DPS, including the envelopes containing West’s buccal swabs,
included that tracking number. The DNA laboratory reports admitted into evidence in this case
likewise contained the assigned evidence tracking number.
Even though Reeves—who collected the DNA samples from West—did not testify at
trial, we believe the foregoing evidence is sufficient to support a finding that the buccal swabs in
question were taken from West.3 See Tienda, 358 S.W.3d at 638; Druery, 225 S.W.3d at 503–
3
The better practice would have been for Reeves to have personally identified the exhibit.
6
04; Page v. State, No. 03-03-00444-CR, 2004 WL 2007913, at *2 (Tex. App.—Austin Sept. 10,
2004, no pet.) (mem. op., not designated for publication)4 (holding that officer’s name and
suspect’s name and case number on evidence envelope along with other testimony establishing
that officer had dropped evidence envelope into evidence drop box were sufficient to
authenticate exhibit and warrant its admission at trial, even though officer who collected
evidence did not personally identify evidence tag); Kingsbury, 14 S.W.3d at 407–08. We
overrule this point of error.5
(2) Even Assuming Admission of the Photographic Lineup Was Error, the Record Does Not
Reflect a Substantial Likelihood of Misidentification
During her testimony, the State asked Oliver if police investigators showed her a
photographic lineup. West objected to the admission of the photographic lineup on the basis that
the State failed to establish that it was conducted in accordance with Article 38.20 of the Texas
4
“Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana
2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
5
To the extent West claims that Reeves’s failure to testify violated his Confrontation Clause rights, we find that this
issue has been inadequately briefed. The entirety of this argument reads, “In addition to any authentication issue
and violation of Rule 901, the state’s introduction of evidence without the proper witness denied the Defense the
opportunity to cross examine and confront the witness, thus violating Appellant’s constitutional rights.” “To avoid
forfeiting a legal argument for inadequate briefing, an appellant’s brief must contain ‘a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.’” Taylor v. State, 558 S.W.3d
215, 218 (Tex. App.—Texarkana 2018, no pet.) (citing TEX. R. APP. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896–
97 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)). “Because the Texas
Court of Criminal Appeals has emphasized that an appellate court has no obligation to construct and compose
issues, facts, and arguments for an appellant, encompassed within Rule 38.1 is the party’s task of explaining or
discussing why an argument has substance.” Id. (citing Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App.
2017); Lucio, 351 S.W.3d at 896–97; Busby, 253 S.W.3d at 673). West’s brief on the issue of the alleged violation
of his Confrontation Clause rights contains no substantive analysis on his general, conclusory complaint. As a
result, West has forfeited this issue.
7
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.20. The trial court
sustained West’s initial objection.6
The State then called LPD Detective Daniel Lhuillier to testify about the LPD’s policy
for conducting photographic lineups. According to Lhuillier, two individuals with no knowledge
of the suspect typically conduct the lineup. Photographic lineups typically consist of five to
seven photographs. Sometimes the witness will mark the back of each photo, rating it one to ten,
and sometimes “they just [say] yes or no.” LPD Officer Trevor Yates, who also assisted with the
investigation of the Cash Store robbery, explained that the LPD photographic lineup policy
suggests using a double-blind lineup.
Outside the presence of the jury, the trial court reviewed the recording of the
photographic lineup. Afterwards, West again objected to the admission of the photographs used
in the lineup, because there was no predicate testimony regarding the LPD’s policy on
photographic lineups and because the detective administering the lineup commented on the
evidence.7 West further objected on the basis that the men in the photographs looked nothing
alike, arguing that the photographs used in the lineup were highly prejudicial. Finally, West
6
Outside the presence of the jury, the State admitted that Oliver was the only witness available to lay the proper
predicate for the photographic lineup. West also objected to the introduction of a recording of the photographic
lineup identification. That exhibit was admitted for record purposes only and was not published to the jury.
7
The recording indicates that six photographs were used in the lineup. Oliver selected the third photograph, stating
that it was an image of the man who robbed the Cash Store. Oliver stated that she was “almost positive.” She
explained that she remembered the robber’s jawbone and forehead as being the same as the man she selected in the
photographic lineup.
Although neither party mentioned it in their briefing to this Court, the photograph used to identify the
robber in the recording appears to be different from the photograph Oliver signed indicating that the person pictured
was the robber, which photograph was introduced as a part of State’s Exhibit 4 at trial.
8
objected on the basis that the detective encouraged Oliver to be certain of the identification
because the statute of limitations was about to run on the offense.
The trial court overruled West’s objections because it found that the LPD had a policy for
conducting photographic lineups that required two individuals with no knowledge of the suspect
(double-blind administration) to conduct the lineup. The court further found that, although the
LPD slightly deviated from its policy, that consideration did not affect the admissibility of the
evidence. The court ultimately concluded that the photographic lineup was not impermissibly
suggestive.
The State then recalled Oliver to the witness stand for the purpose of authenticating the
photographic lineup. She testified that State’s Exhibit 4 was a form that she signed after she
reviewed the photographic lineup on April 19, 2019, together with a series of photographs from
the lineup.8 The form read:
You will be asked to look at a series of photographs. The fact that the
photographs are shown to you should not influence your judgment. You should
not conclude or guess that the photographs contain the picture of the person who
committed the crime. You are not obligated to identify anyone. It is as important
to free innocent persons from suspicion, as it is to identify guilty parties. Please
do not discuss this case with other witnesses nor indicate in any way that you
have identified someone.[9]
In the event the witness identifies a person from the lineup, the form then instructs, “Please write
in YOUR OWN WORDS how confident you are that the person you selected was involved in
this case.” Oliver signed the form. Although Oliver signed and dated the first photograph in the
8
West objected to the admission of Exhibit 4 on the basis that it was not properly authenticated. The trial court
overruled the objection and admitted the evidence.
9
The recording of the photographic lineup, which the trial court viewed, shows the officer reading these instructions
to Oliver and Oliver indicating that she understands them.
9
series of six, she did not write anything on the form describing her level of confidence that the
person she selected was involved in the case. Nevertheless, Oliver testified that she was
confident West was the man who robbed the Cash Store.
In his second point of error, West complains that the trial court committed reversible
error by permitting the introduction of the photographic lineup because it was impermissibly
suggestive as “no other individual in [the] photo lineup appear[ed] to be within 20 years of age
of the image of the Defendant” and because, “due to the variety of build, skin tone/complexion
and facial hair patterns, the array [was] not substantially similar to that of [the Defendant].”10
“Reliability is the linchpin in determining admissibility of identification testimony.”
Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). “The due process clause of the
Fourteenth Amendment prohibits the use of identification testimony from a witness who was
subjected to an impermissibly suggestive pretrial identification procedure.” Roberts v. State, 923
S.W.2d 141, 144 (Tex. App.—Texarkana 1996, pet. ref’d). “The reason for the rule is the
substantial likelihood of misidentification that suggestive procedures may engender.” Id. (citing
Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988)). Suggestiveness may be “created
by the content of the line-up or photo array itself if the suspect is the only individual closely
resembling the pre-procedure description.” Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App.
1995) (citing Williams v. State, 675 S.W.2d 754 (Tex. Crim. App. 1984)).
When challenging the admissibility of a pretrial identification, the defendant has the
burden to show, by clear and convincing evidence, that (1) the out-of-court identification
10
On appeal, West does not complain about the manner in which the photographic lineup was administered.
10
procedure was impermissibly suggestive and (2) the suggestive procedure gave rise to a very
substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33–34 (citing
Simmons v. United States, 390 U.S. 377 (1968)); see Delk v. State, 855 S.W.2d 700, 706 (Tex.
Crim. App. 1993). “If the totality of the circumstances indicates a substantial likelihood of
irreparable misidentification exists, admission of the identification of the defendant amounts to a
denial of due process.” Adams v. State, 397 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.]
2013, no pet.) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)). Conversely, “if [a
photographic lineup] is found to be impermissibly suggestive, identification testimony would
nevertheless be admissible where the totality of the circumstances shows no substantial
likelihood of misidentification.” Id. (citing Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim.
App. 1999)).
West is an African American male. The photographic array contains headshots of West
and five other African American males. The photograph Oliver identified as the robber depicts a
middle-aged man with no hair, gray and black facial hair, and a dark complexion. The second
photograph depicts a younger man with a goatee and partial beard, and a lighter-toned skin. The
third photograph depicts a younger man with no hair, a goatee, and a lighter-toned skin. The
fourth photograph depicts a younger man with hair, a goatee, and a lighter-toned skin, while the
fifth photograph depicts a somewhat younger man with hair, a beard, and a dark complexion.
Finally, the sixth photograph depicts a younger man with hair, a goatee, and a lighter-toned skin.
The most remarkable differences between the photograph that Oliver identified as depicting the
robber and at least four of the remaining photographs is an easily discernable age difference.
11
And, except for one other photograph, the man depicted in the photograph Oliver identified as
the robber had a darker complexion than four of the other subjects. As for similarities amongst
the photographs, all the subjects depicted were African American, all had some type of facial
hair, and none of them had any other unique facial characteristics. Each photograph depicted a
headshot with a blue background, and nothing about the way the photographs were taken caused
any of them to stand out from the others.
A lineup is considered impermissibly suggestive if other participants are greatly
dissimilar in appearance from the suspect. Withers v. State, 902 S.W.2d 122, 125 (Tex. App.—
Houston [1st Dist.] 1995, pet. ref’d) (citing United States v. Wade, 388 U.S. 218, 232–33
(1967)). For example, “lineup participants appearing to be younger than the appellant” cannot
“alone render the . . . lineup procedure impermissibly suggestive.” Williams v. State, 675
S.W.2d 754, 757 (Tex. Crim. App. 1984) (citing Turner v. State, 600 S.W.2d 927 (Tex. Crim.
App. 1980)). As for West’s accurate observation that some of the photographs depicted
individuals with skin tones lighter than his, “it is not essential that all the individuals be
identical.” Buxton, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985); see Clay v. State, 702 S.W.2d
747, 749 (Tex. App.—San Antonio 1985, pet. ref’d) (“Even if the other photographs portrayed
individuals who apparently had different shades of skin color, that would not by itself render the
lineup impermissibly suggestive.”) (citing Garcia v. State, 563 S.W.2d 925 (Tex. Crim. App.
1978)).
On this record, the photographic lineup included participants who not only appeared to be
younger than West, all but one of the participants also had a much lighter skin tone. But even
12
assuming that the photographic lineup should not have been admitted, the record does not reflect
a substantial likelihood that Oliver misidentified West. In evaluating this likelihood, we may
consider these nonexclusive factors:
(1) the opportunity of the witness to view the criminal at the time of the crime;
(2) the witness’ degree of attention; (3) the accuracy of the witness’ prior
description of the criminal; (4) the level of certainty demonstrated by the witness
at the confrontation[;] and (5) the length of time between the crime and the
confrontation.
Ibarra, 11 S.W.3d at 195 (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)); see Webb v. State,
760 S.W.2d 263, 269 (Tex. Crim. App. 1988). We view these factors “deferentially in a light
favorable to the trial court’s ruling.” Id.
Even though Oliver did not identify West in the photographic lineup until well after the
robbery happened, she expressed a high degree of confidence in her identification of West’s
photograph, stating that she was “almost positive.” She testified again at trial that West was the
robber.
Oliver had an ample opportunity to view West even before the robbery happened. She
was able to view West from a close vantage point when he sat at a table across from Oliver for “a
few minutes” before he accosted her. It appeared that West was acting as a customer at that
point, as he told Oliver that he would wait until the customer filling out the paperwork was
finished. That provided Oliver with an initial opportunity to observe West before he accosted
her, thus decreasing the risk of a tainted identification. See Stokes v. State, No. 03-02-00508-CR,
2003 WL 21401267, at *3 (Tex. App.—Austin June 19, 2003, no pet.) (mem. op., not designated
for publication). Also, Oliver had reason to focus her utmost attention on West when he slid
13
across the counter and accosted her. See Brown v. State, 64 S.W.3d 94, 101 (Tex. App.—Austin
2001, no pet.) (“Witnesses who are victims, rather than casual observers, are generally believed
to have a greater degree of attention.”); Green v. State, No. 06-15-00232-CR, 2016 WL 7234071,
at *3 (Tex. App.—Texarkana Dec. 14, 2016, no pet.) (mem. op., not designated for publication)
(same). Oliver had even more opportunities to observe West when he required her to open two
cash drawers and a safe before shoving her into the bathroom.
Two hours after the robbery, Oliver was able to describe West in detail by age, skin tone,
and attire. And, even several years later, Oliver stated that the robber’s jawbone and his
forehead were the same as the man identified in the photograph.
In addition to the foregoing nonexclusive factors, the record includes undisputed DNA
evidence establishing West as the individual who robbed the Cash Store. Kristen Cossota, a
forensic scientist for the DPS criminal laboratory wrote the DNA report in crime laboratory
sample number TYL-1510-07224. Cossota’s report of June 10, 2020, regarding the DNA
extracted from the paper handled by the robber stated:
The previously obtained partial DNA profile from this item is interpreted as a
mixture of two individuals. The probability of obtaining this mixture profile if the
DNA came from Nikita West Sr. and one unrelated, unknown individual is 116
quintillion times greater than the probability of obtaining this profile if the DNA
came from two unrelated, unknown individuals. This likelihood ratio indicates
support for the proposition that Nikita West Sr. is a possible contributor to the
profile.
According to Cossota, “this number indicates strong support for [the] hypothesis” that West’s
DNA was included in the sample taken from the paper.
14
Cassandra Canela, a forensic DNA analyst in the DNA section of the DPS crime
laboratory in Garland explained that she issued a DNA report in 2021 comparing Nikita West,
Jr.’s, known DNA to submitted evidentiary profiles. Canela concluded that the likelihood ratio
of Nikita West, Jr., being a contributor of the DNA on the paper handled by the robber was
.0836. That supports an exclusionary hypothesis that the DNA profile did not come from the
individual being compared. As a result, Canela’s report excluded Nikita West, Jr., as a
contributor of the DNA on the paper handled by the robber. Conversely, the likelihood ratio for
West being a contributor of the DNA on the paper handled by the robber was 116 quintillion.
That likelihood ratio supports inclusion.
Based on this evidence and our evaluation of the nonexclusive Biggers factors, we
conclude that, even if the trial court erred in admitting the photographic lineup, such admission
did not result in a substantial likelihood that Oliver misidentified West. We overrule this point
of error.
(3) We Modify the Judgment to Reflect the Correct Offense
Though we have overruled West’s points of error, we find, sua sponte, that the trial
court’s judgment requires modification. We have the authority to modify the judgment for
accuracy, even if a party does not raise the issue. TEX. R. APP. P. 43.2; French v. State, 830
S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—
Texarkana 2009, no pet.). “Our authority to reform incorrect judgments is not dependent on the
request of any party, nor does it turn on a question of whether a party has or has not objected in
15
trial court; we may act sua sponte and may have a duty to do so.” Rhoten, 299 S.W.3d at 356;
see French, 830 S.W.2d at 609.
West was indicted for aggravated robbery, a first-degree felony, see TEX. PENAL CODE
ANN. § 29.03(b), the trial court instructed the jury on aggravated robbery, and the jury found
West guilty of aggravated robbery. Although the judgment of conviction lists the correct statute
for the offense of aggravated robbery, the judgment lists the offense for which West was
convicted as aggravated assault and lists the degree of offense as a second-degree felony.
Because West was tried for and convicted of aggravated robbery, a first-degree felony, we
modify the judgment to so reflect. We delete from the judgment “aggravated assault” as the
offense for which West was convicted and replace it with “aggravated robbery.” Likewise, we
delete “2nd Degree Felony” as the degree of offense for which West was convicted and replace it
with “First-Degree Felony.”
We affirm the trial court’s judgment, as modified.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 10, 2022
Date Decided: November 4, 2022
Do Not Publish
16 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482474/ | SUPREME Court
OF
NEVADA
(0) 19474 RE
IN THE SUP*® EME COURT OF THE STATE OF NEVADA
REPUBLICAN NAT’ONAL
COMMITTEE,
Petitioner,
vs.
THE EIGHTH JUD TIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
TIMOTHY C. WILLJAMS, DISTRICT
JUDGE,
Respondents,
and
CLARK COUNTY; CLARK COUNTY
ELECTION DEPARTMENT; JOE P.
GLORIA, IN HIS ORFICIAL CAPACITY
AS THE CLARK COUNTY REGISTRAR
OF VOTERS; DSCC; AND DCCC,
Real Parties in Interest.
No. 85604
FILED ©
NOV 08 20277
ee A. BRO URT
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
C
This emergency, original petition for a writ of mandamus
challenges a district court decision, reflected in November 3, 2022, minutes,
denying petitioner’s request for mandamus or injunctive relief related to the
political composition of the persons verifying signatures used for mail
ballots in Clark County.! Respondents timely filed a response, as directed.
The Clark County Registrar, real party in interest Joe P. Gloria,
initially hired 64 temporary workers from employment agencies to verify
1Restoring Integrity and Trust in Elections, Inc. (RITE) has filed a
motion for leave to file an amicus curiae brief in support of petitioner. The
motion is granted; the amicus brief was filed on November 8, 2022.
22- 35213
the signatures on returned mail ballots; of these, 23 are Democrats, 8 are
Republicans, and 33 are Nonpartisans. An additional 6 Republican workers
were later hired to verify signatures. Nevertheless, given these figures,
petitioner Republican National Committee (RNC) asserts that the
signature verifiers’ composition disproportionately excludes Republicans
and, consequently, the Registrar has violated his duty under NRS
293B.360(2) to ensure that the “members of each [special election] board
must represent all political parties as equally as possible.”
RNC sought relief from the district court, and the district court
denied RNC’s petition but has not yet entered a written order reflecting its
decision. Consequently, RNC has sought emergency writ relief from this
court, which petition we will consider, given the urgent mid-election
circumstances and lack of a written order. Las Vegas Review-Journal v.
Eighth Judicial Dist. Court, 134 Nev. 40, 43, 412 P.3d 23, 26 (2018)
(entertaining a petition for writ relief from the district court’s oral
preliminary injunction, because the oral pronouncement could not be
immediately appealed and a later appeal could not afford adequate relief).
Although the Registrar explained that the make-up of the team varies
significantly each day due to personal employee reasons, RNC seeks an
order mandating immediate compliance with NRC 293B.360(2) going
forward because, it claims, signature verification is currently ongoing and
there is no assurance that the Registrar will continue to hire and schedule
signature verifiers in a manner that effectuates NRS 293B.360(2)’s equal
representation requirement.
As petitioner, it is RNC’s burden to demonstrate a clear legal
right to the relief requested. Halverson v. Sec’y of State, 124 Nev. 484, 487,
186 P.3d 893, 896 (2008) (“A petition will only be granted when the
SUPREME CouRT
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petitioner has a clear right to the relief requested.”); Pan v. Highth Judicial
Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (“Petitioners carry
the burden of demonstrating that extraordinary relief is warranted.”). We
review issues of statutory interpretation de novo, even in the context of a
writ petition. Int’? Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev.
193, 198, 179 P.3d 556, 559 (2008).
NRS 293B.360(1) provides that the Registrar “shall create” a
computer program and processing accuracy board and “may create” other
boards, including a “mail ballot inspection board” and “[s]uch additional
boards... as the [Registrar] deems necessary for the expeditious processing
of ballots.”2 (Emphasis added.) With respect to such boards, the Registrar
must ensure that the members “represent all political parties as equally as
possible.” Nothing in NRS 293B.360 fashions or addresses any board for
signature verification purposes or requires the Registrar to create a board
of signature verifiers. See also NRS 293B.365 & NRS 293B.370 (repealed)
(defining the duties of the central ballot inspection board and the absent
ballot mailing precinct inspection board, respectively, neither of which
mention signature verification).
Rather, a different statute, NRS 293.269927, specifically
governs the procedures for verifying the signatures used for mail ballots.
When mail ballots are returned, “the clerk or an employee in the office of
the clerk” is charged with verifying the voter’s signature on the return
envelope. NRS 293.269927(1). In Clark County, the signatures on mail
ballot return envelopes are initially checked by electronic means. If the
electronic device is unable to match the voter’s signature against the voter
2“Clerk” and “Registrar” are used interchangeably. See NRS 293.044.
Supreme Court
OF
NEvaDA
3
(Oy 7A oS
application signatures on file with the county clerk, the signature must be
verified manually. See NRS 293.269927(2). To do this, “[t]he clerk or
employee” reviews the signature used for the ballot against all the
signatures available in the clerk’s records, and “[i]f at least two employees
in the office of the clerk” discern a reasonable question as to whether the
signatures match, the clerk must contact the voter for confirmation that the
signature belongs to the voter. NRS 293.269927(3). Thus, NRS 293.269927
provides that the Registrar and his employees will conduct the signature
verification process, and it appears that this is the process being followed
by the Registrar. The statute contains no requirement that a board verify
the signatures, nor is there any requirement therein that signature
verification on mail ballot returns is done by persons of different political
parties. Cf. NRS 293.277 (signature verification at polling places to be
conducted by election board officers); NRS 293.217 (requiring merely that
election boards at polling places “must not all be of the same political
party”). The Legislature has placed such express requirements in other
statutes governing the election process, and it is for the Legislature, not this
court, to determine whether similar requirements are warranted for
signature verification of mail ballots.
Nevertheless, RNC insists that, even if the creation of a board
was not required, the Registrar necessarily created a board when he hired
a group of temporary workers to assist him with conducting the election
based on NRS 293B.027, which defines “election board”: “Election board’
means the persons appointed by each county or city clerk to assist in the
conduct of an election.” Essentially, RNC appears to argue that anyone
assisting the Registrar in election efforts is necessarily an election board to
which NRS 293B.360(2) applies. We decline to read such a substantive
Supreme Court
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requirement into a definitional statute in this manner, without
consideration of the statutory scheme specifically governing elections and
the verification of mail ballot signatures discussed above. See generally
Williams v. State Dep’t of Corr., 133 Nev. 594, 601, 402 P.3d 1260, 1265
(2017) (explaining that “the more specific statute will take precedence” over
a general statute). Although an election board is comprised of persons
appointed to assist with an election, the definitional statute does not impose
a requirement that all persons verifying mail ballot signatures constitute a
board that must comply with NRS 293B.360(2). Accordingly, RNC has not
demonstrated a clear legal right to the relief requested, and we
ORDER the petition DENIED.
Parraguirre
/ MU. hawk, a Aan J.
Hardesty Stiglich
(op. J. Preteens J.
Cadish Pickering )
Herndon
Supreme Court
tlevan 5
(O) US7A ee gD
cc: Hon. Timothy C. Williams, District Judge
Pisanelli Bice, PLLC
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP/Las Vegas
Elias Law Group LLP/Wash DC
Clark County District Attorney/Civil Division
Snell & Wilmer/Phoenix
Snell & Wilmer, LLP/Las Vegas
Eighth District Court Clerk
Supreme Count
oF
Nevapa 6
1) tM7A oe | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482491/ | Cite as 2022 Ark. App. 453
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-50
Opinion Delivered November 9, 2022
TERRANCE HUGHES
APPELLANT
APPEAL FROM THE HOT SPRING
V. COUNTY CIRCUIT COURT
[NO. 30CR-19-421]
STATE OF ARKANSAS
APPELLEE
HONORABLE CHRIS E WILLIAMS,
JUDGE
AFFIRMED
RITA W. GRUBER, Judge
A Hot Spring County jury convicted appellant Terrance Hughes of first-degree
murder and aggravated residential burglary and found that the felony offense of first-degree
murder was committed in the presence of a child. He was sentenced to an aggregate of ninety
years’ imprisonment. On appeal, appellant argues that the circuit court abused its discretion
in denying a motion for continuance based on an alleged discovery violation by the State
and by permitting alleged hearsay testimony in violation of the Arkansas Rules of Evidence
and the Confrontation Clause. We affirm.
On November 27, 2019, six men—appellant, Stavaris Balentine, Dale Buckley, Jr.,
Charles George, Korwan Keith, and Duante Weaver—planned to rob Brody Gearhart, a
marijuana dealer. Weaver knocked on Gearhart’s back door while appellant and the others
entered through the front door, at which point appellant shot Gearhart. Hannah Oliver,
Gearhart’s girlfriend, and their young children who were two years old and one month old,
were home at the time of the incident.
The State charged appellant with capital murder on December 2, 2019. On January
9, 2020, the State amended the information to charge appellant with first-degree murder
under Ark. Code Ann. § 5-10-102 (Repl. 2021) and aggravated residential burglary under
Ark. Code Ann. § 5-4-702 (Supp. 2021). The State also sought enhancement for engaging in
violent criminal activity under Ark. Code Ann. § 5-74-108 (Repl. 2016) and committing a
felony in the presence of a child under Ark. Code Ann. § 5-4-702. Appellant filed a motion
for discovery on January 13 and a motion for disclosure of the codefendants’ statements on
December 11 to which the State filed a response that it would provide any such statements.
On July 8, 2021, the morning the jury trial began, appellant learned that on the previous
day, codefendant Stavaris Balentine had reached a plea agreement with the State in exchange
for his testimony. Consequently, appellant moved for a continuance, which was denied.
The jury convicted appellant of first-degree murder and aggravated residential
burglary and found that he had committed the felony offense of first-degree murder in the
presence of a child. He was sentenced to consecutive terms of forty, forty, and ten years’
imprisonment, respectively. Appellant filed a timely notice of appeal.
I. Denial of Motion for Continuance
Arkansas Rule of Criminal Procedure 27.3 provides that “the court shall grant a
continuance only upon a showing of good cause and only for so long as is necessary taking
2
into account not only the request or consent of the prosecuting attorney or defense counsel,
but also the public interest in prompt disposition of the case.” Ark. R. Crim. P. 27.3. The
denial of a motion for continuance is within the sound discretion of the circuit court and
will not be disturbed absent an abuse of that discretion. Beard v. State, 2022 Ark. 7, at 4, 636
S.W.3d 772, 774. An appellant must not only demonstrate that the circuit court abused its
discretion by denying the motion for a continuance but also show prejudice that amounts to
a denial of justice. Id.
Our supreme court has held that it is reversible error when a prosecutor fails to
comply with a defendant’s timely request for disclosure of information when that failure
results in prejudice to that defendant. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). The
information must be disclosed by the prosecutor in sufficient time to permit the defense to
make beneficial use of it. Id. When the prosecutor fails to provide information, the burden
is on the defendant to show that the omission was sufficient to undermine confidence in the
outcome of the trial. Id.
Appellant argues that the State failed to comply with Ark. R. Crim. P. 17.1(a)(ii) and
(d), which provides in pertinent part:
(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall
disclose to defense counsel, upon timely request, the following material and
information which is or may come within the possession, control, or knowledge of
the prosecuting attorney:
....
(ii) any written or recorded statements and the substance of any oral statements
made by the defendant or a codefendant;
3
....
(d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly
upon discovering the matter, disclose to defense counsel any material or information
within his knowledge, possession, or control, which tends to negate the guilt of the
defendant as to the offense charged or would tend to reduce the punishment therefor.
Ark. R. Crim. P. 17.1(a)(ii), (d). Appellant asserts that Rule 17.1(a)(ii) and (d) required the
State to immediately disclose the plea agreement and related statements made to the State
by Balentine and that its failure to do so was in violation of the Arkansas Rules of Criminal
Procedure. Appellant contends that he requested a continuance to prepare for Balentine’s
testimony and make an opening statement addressing the new evidence. He argues that the
circuit court abused its discretion in denying the motion as “untimely” because he made the
motion as soon as possible after learning of the plea agreement. Finally, appellant contends
he was prejudiced by his inability to fully address Balentine’s anticipated testimony in his
opening statement and to prepare for Balentine’s cross-examination.
On the morning of the first day of trial, appellant became aware that the State had
reached a conditional plea agreement with Balentine the previous day. In moving for a
continuance, appellant argued that the defense had a right to the substance of the statements
made by Balentine and “certainly anything that would be in conflict with what he’s already
said.” Counsel stated that had he known about the deal the day before, he could have
prepared for the witness during the eight hours he slept, which prejudiced his ability to
prepare. The State indicated that Balentine’s oral statement made at the time of the plea
agreement did not deviate from the written statement previously provided to the defense.
4
The circuit court never made a ruling as to whether a violation of Rule 17.1 occurred.
However, the circuit court found that appellant was not prejudiced by the plea agreement
being disclosed on the day of trial. Moreover, the court instructed the State not to deviate
from Balentine’s original written statement in its opening statement to the jury, as requested
by the defense.
After voir dire and just before opening statements, defense counsel asked if opening
statements could be made after lunch in order to prepare for Balentine’s testimony. The
State responded that it would wait to call Balentine the following day and would not refer
to his statement during opening statement. Although defense counsel indicated that
Balentine’s statement could not be ignored during opening statement, the court stated that
after opening statement, “we’ll deal with the witnesses then. At that point you can raise your
motion then.”
At the hearing, appellant argued that he should have been informed immediately of
the plea agreement because he would have had the night before trial to prepare for
Balentine’s testimony. In addition to the inability to prepare, appellant also argues on appeal
that he was prejudiced by the importance of Balentine’s testimony. Balentine testified that
he saw appellant with a gun prior to the homicide; he saw appellant go into the home, heard
a gunshot, and everyone else ran in; and appellant told Balentine that he shot someone.
As for appellant’s argument that the circuit abused its discretion in saying that the
motion was untimely, appellant is misguided. Our reading of the circuit court’s ruling was
that the motion was premature because the State indicated that Balentine’s statement had
5
not differed in any way from what had been previously disclosed. Insofar as appellant argues
that he was prejudiced by the inability to address Balentine’s oral statement in his opening
statement, the court limited the State from delving into anything that may have differed.
Further, any alleged prejudice in being unable to adequately prepare for cross-examination
is also without merit. Defense counsel argued that had the plea agreement been disclosed
when it was made the day before trial, he would have had the night to prepare for cross-
examination. The State agreed to wait and call Balentine on the second day of trial; thus,
defense counsel had the night to prepare for cross-examination as he originally asserted he
would have done. It should also be noted there was never any evidence presented or
objection made that Balentine’s original statement differed in any way from any oral
statement made during his plea negotiations.
In light of these circumstances, we cannot say that the circuit court abused its
discretion in denying appellant’s motion for continuance.
II. Hearsay/Confrontation-Clause Objection
Appellant argues that the circuit court abused its discretion when it permitted the
testimony of Officer Jim Bailey about statements made to him by Hannah Oliver at the crime
scene regarding the identity of the shooter. When Officer Bailey was asked whether Oliver
said anything about who had shot Gearhart, appellant objected on grounds of hearsay and
the Confrontation Clause.1 The circuit court agreed that it was hearsay unless an exception
1
Officer Bailey ultimately testified that Oliver said she recognized the shooter and that
“they knew him as T or Terrance.”
6
applied; at which point, the State argued that it was not hearsay. The State argued, “They
have said that she has not said those words to anybody at any time until she got to the police
station. She did say those words. And whether they’re true or not, we’re not offering them
for the truth. She’s identified him other places. But she did say those words at the scene.”
Alternatively, the State argued that the statement was an excited utterance.
Ultimately, the circuit court found that the statement was hearsay and allowed it in
as an excited utterance but required the State to lay a foundation of whether or not it was
an excited utterance. Oliver was recalled by the State during Bailey’s testimony.
As a general rule, hearsay is not admissible evidence. See Ark. R. Evid. 802. There are,
however, certain out-of-court statements that are not considered hearsay. Rule 801(d)(1) sets
out the following:
Prior Statement by Witness. The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is (i)
inconsistent with his testimony and, if offered in a criminal proceeding, was given
under oath and subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to
rebut an express or implied charge against him of recent fabrication or improper
influence or motive, or (iii) one of identification of a person made after perceiving
him[.]
A circuit court’s evidentiary rulings are reviewed on appeal under an abuse-of-discretion
standard. Tarver v. State, 2018 Ark. 202, 547 S.W.3d 689. Abuse of discretion is a high
threshold that does not simply require error in the circuit court’s decision but requires that
the circuit court act improvidently, thoughtlessly, or without due consideration. Jefferson v.
State, 2017 Ark. App. 536, 532 S.W.3d 593. Additionally, unless an appellant can
7
demonstrate prejudice from an evidentiary ruling, the appellate court will not reverse, as
prejudice is not presumed. Taffner v. State, 2018 Ark. 99, 541 S.W.3d 430.
From the outset of the trial, appellant sought to undermine Oliver’s credibility by
implying that she fabricated her identification of appellant as the shooter. For example,
during opening statement, appellant’s counsel pointed out that Oliver said she did not know
who shot Gearhart on the 911 call and on Officer Ledbetter’s body-cam footage, but she
identified appellant at the police station later that evening in a photo lineup. Counsel
pointed out that she told Officer Ledbetter she had her head down. Appellant continued to
test the veracity of Oliver’s identification of appellant during her cross-examination.
Appellant questioned that Oliver told the 911 operator that she did not know who shot
Gearhart, and Oliver explained that she did so because he was dying in front of her and she
was trying to “hurry up.” Counsel also had her admit that she told Officer Ledbetter that she
did not know who shot Gearhart, which called into question that she had stated her head
was down, but she was later able to pick appellant out of a photo lineup because she
recognized his eyes. When counsel asked if she understood that there was a problem that she
did not identify the shooter the first two times she was asked, Oliver responded affirmatively
and stated that she was in shock. Counsel further inquired, “When did you become positive,
assuming that this is correct and you’ve said these things, when did you go from I have no
idea who did it to maybe it’s him?” Oliver responded that she knew the whole time but did
not say because she thought Gearhart would be able to speak for her. Counsel proceeded to
ask her if she unintentionally lied, to which Oliver explained that there was so much going
8
on, her kids were crying, and she wanted Gearhart to be able to speak for himself. Further,
counsel stated, “If you’re lying right now you’re lying so you get a result because you have
come to the decision that it was Terrance[.]”
In light of the foregoing, it is apparent that appellant was trying to imply that Oliver
fabricated her identification. Oliver testified at trial and was subject to cross-examination
concerning the statement made to Officer Bailey. Considering these facts, Officer Bailey’s
testimony about the statement Oliver made at the scene was not hearsay under Ark. R. Evid.
801(d)(1)(ii). Oliver’s statement was consistent with her testimony that appellant was the
shooter and was offered to rebut the implication of fabrication; therefore, the admission of
Officer Bailey’s testimony about Oliver’s statement was not in error. See Cooper v. State, 317
Ark. 485, 879 S.W.2d 405 (1994) (affirming the admission of a prior consistent statement
under Ark. R. Evid 801(d)(1)(ii) where declarant was subject to cross-examination concerning
the statement and defense counsel cast doubt on the veracity of the declarant’s allegations).
Although the circuit court erred in ruling that the statement was hearsay, albeit admissible
as an excited utterance, evidentiary rulings may be affirmed when the circuit court reached
the right result, even if its reason was incorrect. Keesee v. State, 2022 Ark. 68, at 13, 641
S.W.3d 628, 639.
In addition to arguing that it was improper hearsay evidence, appellant argues that
the admission of Bailey’s testimony was a violation of the Confrontation Clause. A
defendant’s right to confront the witnesses against him is found in the Sixth Amendment to
the United States Constitution and in article 2, section 10 of the Arkansas Constitution.
9
Specifically, the Sixth Amendment to the Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI.
Appellant contends that this issue turns on whether the statements made by Oliver
to Bailey at the crime scene were testimonial. Testimonial hearsay statements are generally
inadmissible unless the declarant is unavailable and the defendant has had the opportunity
to cross-examine the declarant regarding the challenged statement. Crawford v. Washington,
541 U.S. 36 (2004). However, the right of confrontation is not violated where testimonial
hearsay is admitted against the defendant, and the declarant is present at trial and available
as a witness. See Toombs v. State, 2015 Ark. App. 71, at 8 (citing Crawford, 541 U.S. at 59). If
the witness is available in court to cross-examine, then the Confrontation Clause is satisfied.
Id. (citing Davis v. State, 2011 Ark. 373).
Here, Oliver testified at trial and was subject to cross-examination regarding her
statement. Therefore, the Confrontation Clause is satisfied under these facts. In conclusion,
the circuit court’s admission of Bailey’s testimony was not hearsay and did not violate the
Confrontation Clause.
Affirmed.
VIRDEN and VAUGHT, JJ., agree.
James Law Firm, by: William O. “Bill” James, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487221/ | REID, Associate Judge.
This case raises the question as to whether the trial court erred when it allowed the jury, during its deliberations and over defense counsel’s objection, to view appellant Yogi Washington up close, and at multiple angles, where the defendant had not been similarly shown to the jury during the trial. We hold that the trial court did not err in allowing the jury, at its request, to view Mr. Washington in this manner, and that their close-up view of Mr. Washington did not constitute “new evidence” requiring the trial court to reopen the case.
FACTUAL SUMMARY
At Mr. Washington’s third jury trial,1 the government presented evidence that at approximately 12:15 a.m., on September 9, 1998, a man wearing jeans, a “light colored shirt,” a “blue hat placed over his head,” and “holding [a blue sweatshirt] to cover a portion of his mouth,” entered the Red Roof Inn on the 500 block of H Street, in the Northwest quadrant of the District of Columbia. The man approached the front desk attendant, Joseph Frazier, pointed a revolver “directly at [his] face,” and told Mr. Frazier to “give me your money.” Mr. Frazier immediately grabbed the barrel of the man’s gun, and the two men wrestled for control of the weapon. During this struggle, the armed man “stumbled back[wards]” and momentarily lost *577control of the weapon; Mr. Frazier, meanwhile, lost his grip on the barrel of the gun. He watched as the man regained control of the gun, and then Mr. Frazier quickly ducked down behind the counter.
Officer Marchella Horton of the Metropolitan Police Department (“M.P.D.”), the hotel’s night security guard, was standing in the lobby of the Red Roof Inn at the time of the incident. After the brief struggle between Mr. Frazier and the armed man, Officer Horton found herself “face to face” with the assailant, her “gun ... pointed at [the assailant] and his gun ... pointed at [her].” Officer Horton told the man, “don’t even try it.” Suddenly, the armed man bolted; he “turned around and ran” out of the hotel lobby. He “made a left” on H Street, running parallel to the hotel, and “made a left around to the rear of the [hotel].”2 Officer Horton, who was only “five or ten feet” away from the armed man, “chased him” out of the hotel and down H Street. Fearing that “he would shoot [hex’] if [she] ran around the corner” of the hotel, Officer Horton “stopped and waited [for] a few seconds before [she] looked around the corner.” When she did look around the corner, she saw the armed man “stooping down behind [a] dumpstei'” in the alleyway. The dumpster was approximately forty to fifty feet from where the officer was standing.
Officer Horton “ran back inside [the hotel] and told Mr. Frazier to call [the police].” After only “a few seconds,” she “ran back out and stopped ... at the corner again and looked around to see if [the armed man] was still there.” She saw that the man was still crouching beside the dumpster, and observed him as he removed a “gray T-shirt” and “threw it on the ground.” Officer Horton “waited on the corner and watched him until [hex’] backup arrived.” Officer Michael Glean of the M.P.D. ai’rived on the scene in a marked police cruiser approximately three or four minutes later. Together, Officers Horton and Glean descended upon the dumpster.3 They found Mr. Washington, covered in sweat and shirtless, “squatting down” behind the dumpster.4
Sergeant Robert Glover of the Metropolitan Police Department arrived on the scene as Officers Horton and Glean were placing Mr. Washington under arrest. Sergeant Glover conducted a pat down search of Mr. Washington, finding “12 live rounds of ammunition” in Mr. Washington’s “left front pants pocket.” The officers also searched the area surrounding the dumpster where Mr. Washington was arrested, as well as the section of the alleyway which the assailant had used to escape. The officers found the assailant’s gray tee shirt, blue hat, sweatshirt, and revolver, all of which had presumably been thrown to the ground as the assailant fled the hotel. The ammunition found in the revolver was the same caliber as the ammunition recovered in Mr. Washington’s pocket.
On November 25, 1998, Mr. Washington was charged in an eight-count indictment with: (1) two counts of second-degree burglary while armed (pistol), D.C.Code *578§§ 22-1801(b), -3202 (1996);5 (2) assault with intent to commit robbery while armed, D.C.Code §§ 22-503, -3202, -2901 (1996);6 (3) assault with a dangerous weapon, D.C.Code § 22-502 (1996);7 (4) possession of a firearm during a crime of violence (“PFCV”), D.C.Code § 22-3204(b) (1996);8 (5) carrying a pistol without a license (“CPWL”), D.C.Code § 22-3204(a)(2) (1996);9 (6) possession of an unregistered firearm, D.C.Code § 6-2311(a) (1981);10 and (7) unlawful possession of ammunition, D.C.Code § 6-2361(3) (1981).11 At his jury trial in January of 2000, the government presented physical evidence of the incident, including the firearm and clothing recovered in the alleyway, and pictures of the assailant captured by the hotel’s security camera. The government also presented the testimony of Joseph Frazier, Officers Horton, Glean, and Carroll, and Sergeant Glover. Mr. Washington’s defense at trial was misiden-tification; he presented the testimony of Michael Ehrmann, a defense investigator, and also recalled Sergeant Glover and Officer Horton.12
At trial, Mr. Frazier identified Mr. Washington as the armed man who entered the Red Roof Inn that evening. Mr. Frazier testified that although the assailant held a sweatshirt “around his mouth,” he “could still see the upper portion of [the man’s] face.” During the “approximately twelve seconds” that the incident lasted, Mr. Frazier stated that he was “mostly focused on [the man’s] face,” and that he was “very confident that [Mr. Washington] [was] the man that pulled the gun [on him].” On cross-examination, Mr. Frazier admitted, however, that the arresting police officers did not ask him to identify Mr. Washington as the assailant at the time Mr. Washington was arrested, or any time prior to trial.
Officer Horton also identified Mr. Washington as the assailant. Officer Horton testified that when she was “face to face” with Mr. Washington in the hotel lobby, with her gun drawn, he was holding his revolver with both hands, and that he did not “have his hands up” covering his face anymore. She was confident that Mr. Washington, the man found hiding behind the dumpster, was the same man whom she had only minutes earlier chased from the hotel, noting that he was wearing “the same gray shirt [as the man] that ran out the door.” On cross-examination, however, Officer Horton admitted that she lost sight of the assailant when “he turned the corner” of the alleyway, and that she never actually saw Mr. Washington run the length of the alleyway to the dumpster; rather, when she eventually turned the corner, she saw Mr. Washington taking off his shirt behind the dumpster. She also admitted that she never saw the assailant throw the gun, hat, or sweatshirt to the *579ground; that she could not remember the assailant’s height, weight, or facial features; and that she was “focusing” on the man’s revolver, not his face, during the incident.
The jury was excused to begin its deliberations on January 13, 2000. The following day, the trial court advised the parties that it had received a note from the jury requesting that it be allowed “to view the defendant at close range, like two to three feet and from each side.” Defense counsel objected to the proposal, claiming that “the request constituted] new evidence,” and that it amounted to “an in-court demonstration of Mr. Washington which was not introduced at ... trial.” Defense counsel argued that while Mr. Washington may have been visible to the jury by his mere presence in the courtroom, he was not “an exhibit” which the jury was free to inspect. Defense counsel concluded that it would be “extremely prejudicial” for the trial court to essentially allow the jury to perform its own post-trial “investigation.”
After carefully considering defense counsel’s arguments, and noting that the “sole issue” was “whether [it could] ... permit the jury to be somewhat closer to Mr. Washington during jury deliberations,” the trial court concluded that it would grant the jury’s request to see Mr. Washington “at close range.” It reasoned that Mr. Washington’s “face [was] already in evidence” because he had been identified by several government witnesses, and because the government had introduced photographs from the hotel security camera which showed the face of the assailant.13 Moreover, the trial court noted that “in essence” the jury was not requesting anything which it had “not already had an opportunity to see during the course of the trial.” It continued:
The defendant has been an object of evidence, if you will, in the trial. No defendant can ever have a sticker and be moved into evidence. This defendant has been here throughout the trial. The jury has had the opportunity to see him standing, to see him sitting, to see him consult with counsel, to see him move his head, to see different sides of his face. They have had ample opportunity to see him. And the only question becomes can they see him closer up.
Given that all of the jurors were “in a position to see [Mr. Washington],” and that “some jurors may have better eyesight than others,” it concluded that the jury’s request would “level the playing field” between those jurors “who do not have as good eyesight as those [who do].” 14
The trial court then “ask[ed] Mr. Washington ... to position himself in front of the jury box.” Standing “less than a foot away” from the jury box, with his left profile facing the jury, Mr. Washington slowly walked from one end of the jury to the other, pausing briefly several times to give the jury an opportunity to look at the profile of his face. He then turned around and, with his right profile facing the jury, walked back to where he was originally standing, again pausing at times to give the jury an opportunity to see his profile. The trial court then had Mr. Washington stand “almost in the center of the well of *580the courtroom,” and “look towards his left.” The trial court noted that “Mr. Washington was never eyeball to eyeball with any of the jurors,” and that he walked “in a dignified fashion ... in front of the jury.”15 The jury was then excused to continue its deliberation.
Only a few hours after the demonstration, the jury sent another note to the trial court indicating that it was “unable to reach a decision,” and asking the trial court to “declare a hung jury.” The trial court excused the jury for the weekend and instructed the jurors to return the following week to resume their deliberations. The jury resumed deliberating on Tuesday morning, taking a break between 12:15 and 1:30 p.m. At approximately 3:08 p.m., the trial court advised the parties that the jury had a reached a verdict— guilty on all charges, except for one count of second-degree burglary while armed.16
ANALYSIS
Mr. Washington’s sole contention on appeal is that the trial court committed reversible error when it allowed the jury to view him “up close and from multiple angles” during its deliberations. He claims that his mere presence in the courtroom during the trial did not “place him in evidence” or permit the trial court “to present him before the jury as a demonstrative exhibit.” He argues that this “highly prejudicial error” was compounded by the trial court’s refusal to give Mr. Washington “an opportunity to address the new evidence through cross-examination, additional evidence, or argument.”
The government contends that “the trial court did not abuse its discretion” by allowing the jury to have a closer inspection of Mr. Washington. It argues that “the physical appearance of the defendant in the courtroom is properly treated as evidence, without any requirement that the defendant [be] formally admitted into evidence,” and that the jury may freely reexamine evidence of Mr. Washington’s appearance during its deliberations, including a “closer inspection” of Mr. Washington himself.
The question raised by Mr. Washington is whether the jury may, during its deliberations and over defense counsel’s objection, be allowed to examine his facial profile up close, and at multiple angles, even though he did not testify at trial and was not shown to the jury in a similar fashion during the trial; in other words, whether Mr. Washington’s facial characteristics constitute “new evidence” requiring the trial court to reopen the trial. This is an issue of first impression for the court. We *581conclude that the jury was free to examine the facial characteristics of Mr. Washington during its deliberations, and that this demonstration did not constitute “new evidence” requiring the trial court to reopen the case.
Mr. Washington relies on United States v. Santana, 175 F.3d 57 (1st Cir.1999), and Scott v. Florida, 664 So.2d 3 (Fla.App.Ct.1995), for the proposition that the jury’s request constituted a request for “new evidence.” 17 However, both of these cases are distinguishable from the facts of the present appeal in one important and, we think, controlling respect — the jury, in this case, did not ask to observe any aspect of Mr. Washington which it could not previously have viewed during his trial. Instead, the jury asked to re-examine Mr. Washington’s facial profile, something which it had had the opportunity to view at various times and at various angles throughout the course of trial.
In both Santana and Scott, supra, by contrast, the juries were given the opportunity to view aspects of the defendants which had not been observable during the trial itself. For example, in Santana, the jury requested, after the close of evidence and during its deliberations, to return to the courtroom to observe the defendant’s ears, which had been covered during the trial by headphones the defendant was wearing to hear translations. 175 F.3d at 60. Over defense counsel’s objection, the trial court allowed the jury to enter the court room and “observe[ ] Santana without his headphones for about thirty seconds.” Id. at 63. On appeal, the First Circuit held that the trial court had erred by allowing the jury to consider “information extrinsic to the closed record.” Id. at 64. The court reasoned that “[t]he jury’s request ... did not pertain to evidence that was presented during the course of the trial” because “Santana’s ears had been hidden during the entire trial.” Id. at 63.
Similarly, in Scott, the jury requested, after the close of evidence and during its deliberations, “to view the defendant’s right profile.” 664 So.2d at 4. Over defense counsel’s objection, the trial court granted the jury’s request, and the defendant was asked “to display his face from different angles to the jurors.” Id. at 4. On appeal, the Intermediate Court of Appeals for the Third District of Florida reversed. The court held that the jury’s request constituted an “improper” request for “new evidence” because “the jury had not viewed that profile at trial.” Indeed, the Scott court noted that the trial court had “expressly found” that the jury “had not seen” the right side of the defendant’s face at any time during the trial; therefore, it concluded that “[t]he display ... constituted non-testimonial ‘real or physical’ evidence” which should not have been introduced after the close of evidence.
In the instant case, however, the jury did not request to view any part of Mr. Washington which it had not observed at trial. This fact was expressly highlighted by the trial court. The trial court noted that all of the jurors were “in a position to see [Mr. Washington],” stating:
*582This defendant has been here throughout the trial. The jury has had the opportunity to see him standing, to see him sitting, to see him consult with counsel, to see him move his head, to see different sides of his face. They have had ample opportunity to see him.
Thus, unlike both Santana and Scott, the jury in this case did not request to observe any part of Mr. Washington which it had not already had an opportunity to view during the course of his trial. In short, we are confident that the brief display of Mr. Washington, which was carefully choreographed by the trial court, did not exceed the bounds of what the jury had already observed.
Therefore, we hold that the jury’s request to view Mr. Washington up close did not constitute a request for “new evidence.” The general principle articulated in Santana and Scott, supra, that a jury should not view physical evidence of the defendant during its deliberations which it did not observe at trial, is sound. The demonstration that permitted the jury to see Mr. Washington again, which was conducted in a “dignified” manner, did not violate this principle. A contrary holding might well disadvantage those jurors with poor vision, especially where the sole issue at trial is the identification of the assailant, and an up close view of Mr. Washington was just as likely to exonerate him as it was to be incriminating.
In addition, we agree with the trial court that this case is analogous to United States v. Rincon, 28 F.3d 921 (9th Cir.1994). In Rincon, the trial court “allowed the jury to view [the defendant] next to a surveillance photograph [of the assailant] after jury deliberations had begun.” Id. at 926. On appeal, the appellant argued that the “display was extrinsic evidence not introduced at trial,” and that it was therefore improper for the trial court to allow the jury to observe him standing next to the photographs. The Ninth Circuit affirmed, concluding that “the display which occurred while the jury was deliberating [did] not fall within [the] definition of extrinsic evidence because all the evidence at issue, ... [including] Rincon himself, w[as] presented to the jury during the trial prior to deliberations.” Id. at 926. Noting that the “surveillance photograph was admitted into evidence,” “two witnesses made in-court identifications of Rincon,” and “Rin-con’s sole defense consisted of displaying himself in front of the jury for identification purposes,” the Ninth Circuit concluded that the post-trial display “must be considered a review of evidence presented during trial.” Id. at 926-27.
While Mr. Washington never formally “displayed] himself in front of the jury,” see id., we do not consider this to be a controlling factor. Throughout the course of the trial, the jury was free to examine Mr. Washington, including his facial characteristics and profile, and to use its observations, even though he neither testified nor intentionally displayed himself to the jury, in its deliberations. See United States v. Pierce, 136 F.3d 770, 775 (11th Cir.1998) (“[B]ecause the surveillance photograph was admitted into evidence, the jury was certainly able to compare [the defendant’s] appearance at trial with the appearance of the individual depicted in the photograph.”). See also State v. Hawkins, 745 A.2d 165, 168 (R.I.2000) (“Physical characteristics relevant to most eyewitness identifications (such as size, gender, skin and hair color, special deformities, and facial features) are apparent, and can be referred to in argument, without a defendant having to take the stand and subject himself to cross-examination and impeachment.”) (quotation marks and citations omitted); State v. Brown, 38 Ohio St.3d 305, 528 N.E.2d *583523, 538 (1988) (“A defendant’s face and body are physical evidence.”). The jury was likewise free to compare its observations of Mr. Washington to the photographs of the assailant captured by the hotel security camera. Pierce, supra.
By allowing the jury to examine Mr. Washington up close, the trial court did nothing more than facilitate the jury’s role as factfinder. Analytically, this is similar to those circumstances where the jury is given a magnifying glass to reexamine physical evidence.18 See United States v. George, 56 F.3d 1078, 1084 (9th Cir.1995) (“No ‘new evidence’ resulted from the jurors’ use of a magnifying glass to examine the fingerprint cards and gun.”); United States v. Brewer, 783 F.2d 841, 843 (9th Cir.1986) (“We are unable to see how the use of the magnifying glass to view photographs differs from the use of corrective eyeglasses by jurors.”). As the trial court noted, the display helped “level the playing field” between those jurors “who do not have as good eyesight as those [who do].”
Finally, even if we were to assume that the trial court erred by allowing the jury to examine “new evidence” without also “reopen[ing] the case to allow the introduction of the evidence and any appropriate argument,” see Barron v. United States, 818 A.2d 987, 992 (D.C.2003), the error would be harmless. In a case of this type, we apply the “harmless error test first articulated by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), to determine whether ... evidence may have been erroneously sent to and considered by the jury, but not properly admitted into evidence.” Id. at 992. Under Kotteakos:
[If] the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Barron, 818 A.2d at 993 (quoting Kotteakos, supra, 328 U.S. at 764-65, 66 S.Ct. 1239 (internal citation omitted)). In other words, we must “determine whether the judgment was substantially swayed by the error ‘without stripping the erroneous action from the whole.’ ” Id.
Here, the jury was excused to begin its deliberations on the morning of January 13, 2000. The following morning, January 14, 2000, the jury sent a note to the trial court stating that it “would like to view the defendant at close range, like two to three feet, and from each side.” The jury also “indieate[d] that until [it] ha[d] an opportunity to see Mr. Washington [it][was] in a *584stalemate.” After considering defense counsel’s objections, the trial court brought the jury back into the courtroom and had Mr. Washington display his right and left profiles to the jury. The jury was then excused to continue its deliberations. A few hours after the demonstration, however, the jury sent another note to the trial court indicating that it was “unable to reach a decision,” and stating that it “would like to declare a hung jury.” The trial court excused the jury for the weekend and instructed the jurors to return the following week to resume their deliberations. The jury resumed deliberating on Tuesday morning, and reached a guilty verdict that same afternoon.
Looking at the sequence of the jury’s deliberations, we are confident, “without stripping the erroneous action from the whole,” that “the judgment was not substantially swayed by the error.” Kotteakos, supra, 328 U.S. at 765, 66 S.Ct. 1239. Only a few hours after observing Mr. Washington up close, the jury sent a note to the trial court indicating that it was “unable to reach a decision.” The jury remained deadlocked. Whatever assistance the jury thought the demonstration might give it in identifying Mr. Washington as the assailant, it is clear from the record that the display did not sway the jury in either direction. Moreover, this is not surprising, given that, as even the government freely acknowledged in its closing argument, the photographs were of such poor quality that they could not be used to compare Mr. Washington to the assailant. In short, the jury’s request to see Mr. Washington up close and at multiple angles was really a request to view evidence of marginal relevance to the identification issue. Without being able to compare Mr. Washington’s profile to the man depicted in the photographs — the only useful purpose the display could have served — the jury could not use its post-trial observations to identify him as the assailant.
Our belief that the display “did not influence the jury, or had but very slight effect,” see Kotteakos, supra, 328 U.S. at 764, 66 S.Ct. 1239, is reinforced by the fact that this was not a close case. The government presented two eyewitnesses, Mr. Frazier and Officer Horton, who testified that Mr. Washington entered the hotel, pointed a gun at Mr. Frazier, and attempted to rob the hotel. Both eyewitnesses identified Mr. Washington in-court as the assailant. Mr. Frazier, in particular, stated that he was “very confident that [Mr. Washington] [was] the man that pulled the gun [on him].” Moreover, Mr. Washington, who matched the physical description of the assailant provided by Officer Horton,19 was found hiding behind the dumpster, shirtless, with a “gray T-shirt” — the same shirt which Officer Horton watched him remove — on the ground beside him. In his pants’ pocket were twelve .38-eali-ber bullets, which matched the bullets recovered from the revolver in the alleyway. In short, there was ample evidence, both direct and circumstantial, linking Mr. Washington to the attempted robbery. This is why we are able to say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” 20 Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239.
*585Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.
So ordered.
. The previous two trials each resulted in a hung jury.
. Officer Horton stated that when she ran out of the hotel lobby she noticed a car, which did not have its headlights on, speed away. However, she stated that the assailant did not get in the vehicle.
. Officer Horton ran down the alley; Officer Glean drove his cruiser down the alley next to her.
.When Officer Glean initially placed Mr. Washington in handcuffs, he conducted a pat-down search for "any weapon, knife or gun,” but he did not find anything "indicative of a weapon” on Mr. Washington’s person.
. Recodified at D.C.Code §§ 22-801(b),-4502 (2001).
. Recodified at D.C.Code §§ 22-403, -4502, - 2801 (2001).
. Recodified at D.C.Code § 22-402 (2001).
. Recodified at D.C.Code § 22-4504(b) (2001).
. Recodified at D.C.Code § 22-4504(a)(2) (2001).
. Recodified at D.C.Code § 7-2502.01(a) (2001).
. Recodified at D.C.Code § 7-2506.01(3) (2002).
. The defense investigator testified that the distance between H Street and the “retaining wall,'' which was located near the dumpster where Mr. Washington was found, was 113 feet. However, he admitted that the dumpster was no longer in the same location as it was on the night of the incident.
. The trial court observed, however, that the photographs were of such poor quality that the jury would be unable to use them to identify Mr. Washington as the assailant. The photographs provided no distinguishing features beyond the assailant's facial hair, which the jury could see from where it was seated.
. The trial court relied on United States v. Rincon, 28 F.3d 921 (9th Cir.1994), to support its conclusion.
. Defense counsel provided a description of the display for the record:
I think the way it can be described in the record is that Mr. Washington walked starting from the left, the rail site closest to Your Honor, walked about less than a foot away from the rail, and that he walked from that rail to the other end of the rail in a straight line when he was showing the profile as his profile.... And at some point Mr. Washington stepped back and stood almost in the center of the well of the courtroom and then was asked to move closer where he moved back in a straight line. And he stood a foot and a half to two feet away from the rail [of the jury box], and then at some point he was asked to look towards his left which would be looking towards seats number seven and eight in the back.
. On April 10, 2000, Mr. Washington was sentenced to concurrent terms of five to fifteen years for second-degree burglary while armed, fourteen years to life for assault with intent to commit robbery while armed, and five to fifteen years, with a mandatory five-year term of imprisonment, for PFCV. In addition, Mr. Washington was sentenced to three to nine years for assault with a dangerous weapon, one year for unlawful possession of ammunition, and one year for possession of an unregistered firearm.
. Mr. Washington also relies on Ex parte Batteaste, 449 So.2d 798, 799 (Ala.1984), where the Supreme Court of Alabama held that it was error for the trial court to permit “the jury, over objection of the defendant, to view the defendant’s face to see if he had a scar on it." In Batteaste, however, the jury’s request, similar to the requests made in both Santana and Scott, supra, was a request to see new evidence. Specifically, the jury in Bat-teaste did not, during the course of the defendant’s trial, have an opportunity to observe whether he had a facial scar on one side of his face. Thus, Batteaste is distinguishable from the facts of the present case.
. This case is, however, to be distinguished from Barron v. United States, 818 A.2d 987 (D.C.2003), infra, where we reviewed the trial court’s decision to "allow[ ] the jury to view [the defendant’s] car during jury deliberations,” even though the car had not been admitted into evidence. Id. at 990. In holding that "the trial court erred in allowing the [jury] view without reopening the case,” id. at 992, we expressly found that the jury’s request constituted a request for new evidence. Thus, we concluded that the trial court "had two options: (1) refuse to allow the jury view or (2) reopen the case to allow the introduction of the evidence and any appropriate argument.” Id. Here, by contrast, we conclude that the jury’s request did not constitute a request for new evidence.
. Although Mr. Washington was not wearing the blue hat or the blue sweatshirt like Officer Horton’s description of the assailant, these items were found discarded in the alleyway, only a short distance from the dumpster where he was hiding.
. Finally, in response to our concurring colleague's contention that the majority has *585"opine[d] (unnecessarily) on the issue of harmlessness,” we note simply that this court has, in prior cases requiring us to consider harmless error, considered whether or not the alleged error was harmless even after concluding that there was no error. See, e.g., Cowan v. United States, 629 A.2d 496, 503-04 (D.C.1993) ("Even if [the appellant] had adequately preserved as an issue the judge’s failure to instruct on self-defense or defense of another — which he did not — we are satisfied that, under the unique circumstances of this case, any error would have been harmless.... We, therefore, also affirm on this alternative ground.") (Schwelb, J.). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487474/ | Verdict, guilty; whipped with fifteen lashes, fined $8, and committed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482475/ | SUPREME COURT
OF
NeEvapa
CLERK’S ORDER
(O) 1947
EE
IN THE SUPREME COURT OF THE STATE OF NEVADA
CARL DEAN EDWARDS. : No. 85487
Appellant,
vs.
THE STATE OF NEVADA Fi L E D
DEPARTMENT OF CORRECTIONS, NOV 08 2027
Respondent. |
ELIZABETH & BROWN
LERK Q&SUPREN
BY,
ORDER DISMISSING APPEAL
This appeal was docketed on October 12, 2022, without
payment of the requisite filing fee. See NRAP 3(e). That same day, this
court issued a notice directing appellant to pay the required filing fee or
demonstrate compliance with NRAP 24 within 14 days. The notice advised
that failure to comply would result in the dismissal of this appeal. To date,
appellant has not paid the filing fee or otherwise responded to this court’s
notice. Accordingly, this appeal is dismissed. See NRAP 3(a)(2).
It is so ORDERED.
CLERK OF THE SUPREME COURT
ELIZABETH A. BROWN
aa | ‘
BY: c
ec: Hon. Steve L. Dobrescu, District Judge
Carl Dean Edwards
Attorney General/Carson City
White Pine County Clerk
22-20\I4S | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482477/ | USCA11 Case: 21-11937 Date Filed: 11/09/2022 Page: 1 of 16
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11937
____________________
LYNN HAMLET,
Plaintiff-Appellant,
versus
MARTIN CORECTIONAL INSTITUTION,
et al.,
Defendants,
OFFICER HOXIE,
Defendant-Appellee.
____________________
USCA11 Case: 21-11937 Date Filed: 11/09/2022 Page: 2 of 16
2 Opinion of the Court 21-11937
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:18-cv-14167-DMM
____________________
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, and GRANT,
Circuit Judges.
GRANT, Circuit Judge:
Lynn Hamlet alleges mistreatment while he was an inmate
at Martin Correctional Institution. Hamlet sued the prison and
several of its officials, alleging violations of his rights under the
First, Fourteenth, and Eighth Amendments to the United States
Constitution. Our narrow task is to ask whether he has specifically
alleged facts that—if true—would violate his rights under clearly
established law. After careful review of the record and with the
benefit of oral argument, we do not believe that he has done so.
We therefore affirm the judgments of the district court.
I.
We are reviewing two orders in this appeal. The first is the
district court’s sua sponte dismissal of Hamlet’s First and
Fourteenth Amendment claims under 28 U.S.C. § 1915(e)(2)(B)(ii),
which requires district courts to dismiss proceedings in forma
pauperis that fail to state a claim on which relief may be granted.
The second is the district court’s grant of summary judgment on
Hamlet’s Eighth Amendment claim against Officer Hoxie. For
both orders, we review the decision of the district court de novo,
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21-11937 Opinion of the Court 3
accepting his allegations as true for his First and Fourteenth
Amendment claims and viewing all disputed facts and reasonable
inferences in the light most favorable to Hamlet for his Eighth
Amendment claim. See Hughes v. Lott, 350 F.3d 1157, 1159–60
(11th Cir. 2003); Jurich v. Compass Marine, Inc., 764 F.3d 1302,
1304 (11th Cir. 2014). 1
II.
Hamlet is an elderly, diabetic man who was an inmate at
Martin Correctional Institution in southern Florida. As he tells it,
his troubles began with a long-running dispute with Officer K.
Shultheiss and her husband Lieutenant A. Shultheiss, both of
whom worked at the prison. He claims that the Shultheisses had
engaged in a campaign of targeted harassment against him,
including by filing a false disciplinary report. Hamlet had filed
grievances about this alleged harassment years before any of the
events giving rise to this case.
In April 2018, Hamlet had recently come out of a diabetic
coma and did not have an appetite, so he saved a small bag of rice
from the prison chow hall. When Officer K. Shultheiss discovered
that he had taken food, he claims that she called him a “bitch.”
Hamlet, in turn, “told her what ever she call me it’s back to her.”
Officer K. Shultheiss then said that Hamlet had called her a “bitch,”
wrote a disciplinary report saying that he had disrespected an
1 We also construe Hamlet’s pleadings liberally because he was then litigating
pro se. See Hughes, 350 F.3d at 1160.
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4 Opinion of the Court 21-11937
official, and had him placed in disciplinary confinement. Hamlet
sought an administrative remedy and signed the paperwork to sue
the prison, Officer K. Shultheiss, and two other prison officials. A
few weeks later, this lawsuit was formally docketed—then limited
to a complaint about the allegedly fabricated disciplinary report.
About a week into Hamlet’s confinement, he received a
hearing about Officer K. Shultheiss’s disciplinary report—a hearing
over which Lieutenant A. Shultheiss presided. After that hearing,
Hamlet’s time in disciplinary confinement was extended. 2
The day after the hearing, Officer Hoxie escorted Hamlet to
the handicap shower, which was designed for seated showering.
While Hamlet showered, the enclosure began to fill with ankle-
deep water. Meanwhile, a potato chip bag filled with feces and
urine floated up and bumped against his ankles, which had open
wounds—a diabetes-related condition from scratching his dry skin
at night. Hamlet asked Hoxie to let him out, but Hoxie responded,
“you did it,” apparently accusing him of being the source of the
feces and urine. Hoxie briefly let Hamlet out, but then changed his
mind and shoved him back in the shower. In the end, Hoxie left
him in the shower for roughly 30 or 40 minutes. Hamlet tried to
move away from the urine and feces, but says he was ultimately
2 An exhibit offered by Hoxie establishes that Hamlet received an additional
22 days in disciplinary confinement (for a total of 30 days) as well as “30 days
loss of GT,” presumably referring to good time credits. But at the time of his
pleading, Hamlet only alleged that he was “put in confinement” without
further explanation.
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21-11937 Opinion of the Court 5
unable to prevent them from getting into his wounds. He also
claims that the problems did not end in the shower, alleging that
Hoxie also took the sheets and clean clothes from his cell and threw
them out in the hallway.
Once back in his cell, Hamlet says he still had feces in his
open wounds from the shower, but he did not tell Hoxie or anyone
else. Instead, he resorted to an attempt to clean his wounds with
his bare hands and toilet water. He did not succeed. Though
Hamlet became sick the next morning, he still did not tell anyone
that he had feces in his wounds or ask anyone for anything to help
clean himself, even though Hoxie ordered that he not be allowed
to take a shower that week.
Three days later, Hamlet filed a grievance with the Warden
about the shower incident. The grievance complained that Hoxie
had blamed Hamlet for the feces in the shower, that Hoxie had
thrown out Hamlet’s sheets, and that Hamlet had not been allowed
to shower since the incident. It made no claims that Hamlet was
sick or had feces on his body. The next day, he received medical
attention for hypoglycemia. But nothing in the records of that visit
indicates that he had wounds or feces on his body at that time.
Hamlet got progressively sicker over the next several days
and was eventually hospitalized. By then, he had lost control of his
bowels and defecated himself; he was covered in feces and urine
when he was admitted to the hospital, where he received a shower.
He was in-and-out of the hospital for some time before a bacterial
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6 Opinion of the Court 21-11937
infection required heart valve surgery; he ultimately spent months
in the hospital and suffered serious complications.
Hamlet originally filed this lawsuit to litigate Officer K.
Shultheiss’s allegedly fabricated disciplinary report. He stopped
litigating the suit while he was in the hospital, so his case was
dismissed for lack of prosecution. Once Hamlet explained his
situation, the court vacated its dismissal of the lawsuit. Magistrate
Judge Reid then found the original § 1983 complaint deficient and
ordered Hamlet to amend it. Hamlet did so, and he also expanded
the scope of the complaint to include both his allegations that
Lieutenant A. Shultheiss had improperly presided over his hearing
and his allegations that Hoxie had exposed him to the feces and
urine in the shower.
The magistrate judge construed Hamlet to be alleging
violations of his First, Eighth, and Fourteenth Amendment rights.
She recommended that the Eighth Amendment claim against
Hoxie be allowed to proceed, but that the rest of the complaint be
dismissed without leave to amend under § 1915(e)(2)(B)(ii). She
reasoned that Hamlet’s First Amendment retaliation claim was
conclusory and vague, and that his Fourteenth Amendment claim
did not identify a protected liberty interest under the Due Process
Clause. The district court adopted the magistrate judge’s
recommendations, dismissing all of Hamlet’s claims without leave
to amend except for the Eighth Amendment claim against Hoxie.
After discovery, the district court granted Hoxie’s motion
for summary judgment on the Eighth Amendment claim. The
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21-11937 Opinion of the Court 7
court rejected Hamlet’s arguments on the merits, determining
that—even if everything Hamlet alleged were true—Hamlet had
not suffered objectively extreme conditions of confinement. The
court also found that Hamlet had alleged no facts showing that
Hoxie was subjectively aware that he faced any risk of infection
from the shower. Hamlet appealed and obtained pro bono
counsel.
III.
We begin with Hamlet’s Eighth Amendment Claim against
Officer Hoxie. We agree with the district court’s grant of summary
judgment. Hoxie is entitled to qualified immunity because his
alleged actions do not violate clearly established Eighth
Amendment law. 3
The Eighth Amendment prohibits “cruel and unusual
punishments.” U.S. Const. amend. VIII. This prohibition applies
to the conduct of state government officials through the
Fourteenth Amendment. McDonald v. City of Chicago, 561 U.S.
742, 764 & n.12 (2010). We assess Eighth Amendment challenges
to unconstitutional conditions of confinement with a two-prong
inquiry. Thomas v. Bryant, 614 F.3d 1288, 1303–04 (11th Cir. 2010).
3 The district court did not reach the question of qualified immunity.
But we
may affirm a grant of summary judgment “on any ground that finds support
in the record” and qualified immunity was briefed by both parties. See Lucas
v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (quotation
omitted).
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8 Opinion of the Court 21-11937
The first prong is an objective inquiry into whether the conditions
are “sufficiently serious to constitute a denial of the minimal
civilized measure of life’s necessities.” Id. at 1304 (quotations
omitted). “Extreme deprivations” are required to make out a
conditions of confinement claim. Id. The second prong is a
subjective inquiry into whether “the official had a sufficiently
culpable state of mind.” Id. (quotation omitted). Only “subjective
deliberate indifference to the substantial risk of serious harm
caused by such conditions” satisfies this prong. Id. at 1307.
Qualified immunity shields government officials “from
liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). To receive qualified immunity, the official
must first prove that he was acting within the scope of his
discretionary authority when the allegedly unlawful conduct took
place. Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d 1347,
1352 (11th Cir. 2015). Hoxie calls it “undisputed” that he was acting
within his discretionary authority, and Hamlet does not contest
this characterization.
Once an official establishes that he was acting within his
discretionary authority, the burden shifts to the plaintiff to
“demonstrate (1) that the facts show that the official violated the
plaintiff's constitutional rights and (2) that the law clearly
established those rights at the time of the alleged misconduct.” Id.
at 1352–53 (quotations omitted). If the defendant’s conduct does
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21-11937 Opinion of the Court 9
not violate clearly established law, then that alone is sufficient
grounds for a court to grant qualified immunity to the defendant.
See Pearson v. Callahan, 555 U.S. 223, 242 (2009). The law “does
not require a case directly on point for a right to be clearly
established,” but “existing precedent must have placed the
statutory or constitutional question beyond debate.” Rivas-
Villegas v. Cortesluna, 142 S. Ct. 4, 7–8 (2021) (quotation omitted).
Here, we consider the narrow question of whether Hamlet
alleged conduct that violated clearly established Eighth
Amendment law. He did not. Clearly established law does not
show that a relatively brief exposure to urine and feces in the
shower is an objectively extreme deprivation of the minimal
civilized measure of life’s necessities.
The case cited by Hamlet that comes closest to his
allegations is Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015). 4 In
Brooks, the plaintiff alleged that he was wearing waist-chains while
receiving medical treatment, that a guard refused to lower his
chains to allow him to use the bathroom, that he consequently
4 Hamlet also relies heavily on Bilal v. Geo Care, LLC, a case with similar facts
to Brooks where we found a violation of the Fourteenth Amendment when a
civilly confined man was forced to sit in his own excrement for three hours.
See 981 F.3d 903, 909, 915 (11th Cir. 2020). But Bilal was decided after the
alleged 2018 incident in the shower, so it is “not relevant to determining
whether the law was clearly established at the time” that Hoxie allegedly
acted. See Gaines v. Wardynski, 871 F.3d 1203, 1212 n.11 (11th Cir. 2017). In
any event, Bilal would not change our analysis.
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10 Opinion of the Court 21-11937
defecated himself, and that he was forced to sit in his own
excrement for two days while the guard mocked him and
prevented nurses from cleaning him. See 800 F.3d at 1298, 1300.
We determined that the exposure to feces in Brooks was a
“deprivation of basic sanitary conditions” that violated the Eighth
Amendment. Id. at 1304–05.
Hamlet argues that Brooks clearly establishes that any
“contact and close proximity with excrement” creates “an
objectively unreasonable risk of serious damage” to a prisoner’s
“future health” and therefore violates the Eighth Amendment. Id.
at 1303–04 (quotation omitted). But this argument misunderstands
the nature of our qualified immunity analysis. The Supreme Court
has “repeatedly told courts not to define clearly established law at
too high a level of generality.” City of Tahlequah v. Bond, 142 S.
Ct. 9, 11 (2021). We cannot remove a line of dicta from its context
and abstract it to the highest possible level. Instead, we must look
at our case law and ask if the governing rule’s “contours” are “so
well defined that it is clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Id. at 11 (quotations
omitted).
Brooks does not clearly establish that Hamlet’s alleged
exposure to feces and urine in the shower objectively deprived
Hamlet of the minimal civilized measure of life’s necessities. The
alleged exposure in the shower here was different in both degree
and kind from the extreme exposure in Brooks.
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21-11937 Opinion of the Court 11
The most obvious difference is the duration of the exposure.
Hamlet claims to have been in proximity to the bag of feces and
urine for 30 to 40 minutes—not two days. But just as importantly,
the nature of Hamlet’s exposure to feces was less extreme. In
Brooks, feces was continuously pressed against the plaintiff’s body.
See 800 F.3d at 1303–04. Here, the bag of feces and urine are
alleged to have repeatedly floated up to Hamlet’s ankles in the
shower, suggesting intermittent rather than consistent contact. 5
Furthermore, unlike the plaintiff in Brooks, Hamlet had
means to mitigate the severity of his exposure to the urine and
feces. Hamlet’s shower naturally involved access to running water.
And Hamlet was sitting on a seat in the handicap shower and
testified that he could have placed his feet on top of the seat. In this
procedural posture, we do not question Hamlet’s claim that he
nonetheless failed to avoid contact with the feces. But access to
running water and the possibility of avoiding contact with feces are
important considerations in assessing the objective extremity of the
conditions of Hamlet’s confinement, and these considerations
were not present in Brooks. Nor does Hamlet allege that Hoxie
was “[l]aughing at and ridiculing” him for being forced to remain
in contact with the feces or that Hoxie forbade others from helping
5 Hamlet’s appellate briefing argues that the feces dissolved in the water, and
that the contaminated water infected Hamlet’s wounds. But under either
explanation for how feces ended up in Hamlet’s wounds, having feces in
proximity to a person in a shower is still different from being forced to defecate
oneself and sit in the excrement.
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12 Opinion of the Court 21-11937
him—further distinctions from Brooks. See Brooks, 800 F.3d at
1307, 1303.
In short, the plaintiff in Brooks alleged that he was “forced
to lie in direct and extended contact with his own feces without any
ability to clean himself” for “a full two days” while the defendant
mocked the plaintiff and prevented him from being cleaned. Id. at
1305. Intermittent contact with feces for 30-40 minutes with access
to running water is simply a different constitutional question.
Brooks does not place that question “beyond debate.” See Rivas-
Villegas, 142 S. Ct. at 8 (quotation omitted). 6
In another effort to frame his case as more extreme than
Brooks, Hamlet tries to define his exposure to feces as lasting for
days, not minutes. He argues that he was forced to spend days (and
perhaps weeks) with feces festering in his open wounds, and that
the many days of exposure should be the relevant period for our
analysis, not just the exposure in the shower.
6 Other cases cited by Hamlet also involved longer and more direct exposure
to unsanitary conditions than this case, often accompanied by deprivation of
water and other prolonged deprivations of basic necessities. See, e.g.,
Chandler v. Baird, 926 F.2d 1057, 1063, 1066 (11th Cir. 1991) (reversing a
summary judgment finding no Eighth Amendment violation when the
plaintiff alleged that he was locked in a freezing cold cell covered in filth for
multiple days without running water); Novak v. Beto, 453 F.2d 661, 665 (5th
Cir. 1971) (describing cases with prolonged confinement in filthy cells lacking
“basic elements of hygiene,” often involving freezing cold temperatures and
a lack of toilet for an extended period).
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21-11937 Opinion of the Court 13
To be sure, framing Hamlet’s injury as several days with
feces festering in open wounds would impact our analysis of
whether his injury satisfied the first prong of the Eighth
Amendment inquiry under clearly established law. But to state an
Eighth Amendment conditions of confinement claim, Hamlet also
must show that Hoxie had “subjective deliberate indifference to
the substantial risk of serious harm.” Thomas, 614 F.3d at 1307.
Nothing in this record suggests that Hoxie—or anyone but Hamlet
himself, for that matter—even knew that he had wounds on his
ankles, much less that he had feces stuck to his wounds for days
after his shower. Hamlet admits that he did not ask Hoxie for
anything when he was led back to his cell after the shower, and he
never suggests that he told Hoxie that he had feces in his wounds.
Nor did he mention his wounds or any remaining feces on his body
in the grievance he filed with the Warden three days after the
shower. And the nurses’ report from Hamlet’s treatment for
hypoglycemia—taken the day after the alleged shower incident—
likewise did not note any wounds or feces on Hamlet’s body,
suggesting that, at the absolute minimum, any wounds or feces
were not so obvious that Hoxie would have noticed them. Under
our Eighth Amendment analysis, Hoxie could not be “subjectively
culpable” for creating conditions of which he was completely
unaware. So whether because a 30-to-40-minute exposure is not
objectively extreme under clearly established law, or because the
record does not support an inference that Hoxie was subjectively
aware of feces in Hamlet’s wounds after the shower, Hamlet’s
claim fails.
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14 Opinion of the Court 21-11937
IV.
We now turn to Hamlet’s appeal of the district court’s
§ 1915 order. Hamlet argues that the court should have allowed
two of the dismissed claims to proceed: a First Amendment
retaliation claim about the allegedly fabricated disciplinary report,
and a Fourteenth Amendment Due Process claim about Lieutenant
A. Shultheiss allegedly adjudicating his own wife’s report against
Hamlet. We are not persuaded. 7
To begin, we agree with the district court that Hamlet
alleged retaliation against his constitutionally protected filing of
grievances, but that both the original and amended complaints
were too vague and conclusory to survive a § 1915 screening.8
7 Hamlet’s appellate briefing describes the facts of the hearing mainly based
on his sworn testimony during discovery for his Eighth Amendment claim,
testimony that was given long after the district court’s § 1915 order. The
district court’s order, however, can only be analyzed based on the information
in the record at that time. Seemingly realizing that this limitation is fatal to
his case, Hamlet requested at oral argument that this Court grant him leave
to amend his complaint a second time to better plead his First and Fourteenth
Amendment claims. He has not sought post-judgment leave to amend his
complaint before the district court, and we will not consider the question in
the first instance. See, e.g., Callahan v. U.S. Dep’t of Health & Hum. Servs.,
939 F.3d 1251, 1266 (11th Cir. 2019).
8 We note that the magistrate judge specifically instructed Hamlet that his
amended complaint would “be the operative pleading considered in this case,”
that “only the claims listed therein will be addressed by the Court,” and that
“[f]acts alleged and claims raised in plaintiff’s previous filings that are not
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21-11937 Opinion of the Court 15
With the generosity due to a pro se plaintiff, a court could
piece together allegations that the Shultheisses called Hamlet
names because he had filed complaints against them, and that
Officer K. Shultheiss falsely filed a report claiming that Hamlet
called her a “bitch.” But these are “naked assertions devoid of
further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (brackets and quotations omitted). At no point does Hamlet
describe in any detail conduct that, if true, would show that he
“suffered adverse conduct that would likely deter a person of
ordinary firmness” from engaging in protected speech, as is
necessary to bring a retaliation claim. See Castle v. Appalachian
Tech. Coll., 631 F.3d 1194, 1197 (11th Cir. 2011).
Hamlet’s Fourteenth Amendment claim faces an even more
fundamental problem: his pleadings did not allege that his hearing
led to the deprivation of a protected liberty interest. A prisoner
only has a right to due process when “a change in the prisoner’s
conditions of confinement is so severe that it essentially exceeds
the sentence imposed by the court” or when the state removes a
consistently bestowed benefit in a way that creates atypical
hardship. Kirby v. Siegelman, 195 F.3d 1285, 1291 (11th Cir. 1999).
Disciplinary confinement does not per se implicate a protected
liberty interest if it “does not present a dramatic departure from the
basic conditions” of the sentence. Sandin v. Conner, 515 U.S. 472,
specifically repleaded in the amended complaint will be considered abandoned
and voluntarily dismissed.” But the complaints are deficient whether read
together or in isolation.
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16 Opinion of the Court 21-11937
485–86 (1995) (holding that 30 days in disciplinary segregation did
not trigger any due process rights).
Hamlet’s complaint alleges that he was “put in
confinement” after his hearing. But that is all; he alleges nothing
about the conditions or duration of his confinement that would rise
above the bar in Sandin and entitle him to due process. That alone
resolves his Due Process claim.
* * *
Hamlet has not adequately alleged a violation of clearly
established law. We AFFIRM the judgments of the district court. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482478/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of Linehan : CASES CONSOLIDATED
From a Decision of the Board of : No. 1167 C.D. 2020
Revision of Taxes :
:
Appeal of: City of Philadelphia :
Appeal of Levin :
From a Decision of the Board : No. 1168 C.D. 2020
of Revision of Taxes :
:
Appeal of: City of Philadelphia :
In Re: Appeal of Linehan :
From a Decision of the Board of : No. 1313 C.D. 2020
Revision of Taxes :
:
Appeal of: City of Philadelphia :
In Re: Appeal of Levin :
From a Decision of the Board : No. 1314 C.D. 2020
of Revision of Taxes :
:
Appeal of: City of Philadelphia : Argued: June 23, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: November 9, 2022
The City of Philadelphia (City) appeals from two orders of the Court of
Common Pleas of Philadelphia County (trial court), which sustained appeals filed
by Alexandra and Timothy Levin (Levins) and Molly and Charles Linehan
(Linehans) (collectively, Taxpayers).1 Essentially, the City contends that Taxpayers
failed to rebut the prima facie validity of the City’s tax assessments of Taxpayers’
properties.
We do not reach the City’s contention. Upon review, the trial court’s
December 2, 2020 order constitutes a legal nullity. We therefore quash the appeals
at dockets 1313 and 1314 C.D. 2020, as they are not properly before this Court.
Further, the trial court’s September 30, 2020 order fails to comply with Section
518.2(a)-(b) of The General County Assessment Law (Assessment Law), Act of
May 22, 1933, P.L. 853, art. V, as amended, added by the Act of December 13, 1982,
P.L. 1160, 72 P.S. § 5020-518.2(a)-(b). We therefore vacate that order, appealed at
dockets 1167 and 1168 C.D. 2020, and remand for further proceedings consistent
with this memorandum opinion.
I. BACKGROUND2
In 2014, the Levins bought 411 West Moreland Avenue, and the
Linehans bought 415 West Moreland Avenue (collectively, Properties), both of
which were then vacant lots in Chestnut Hill, Philadelphia. The City’s Office of
Property Assessment (OPA) valued both vacant lots at $215,000. Taxpayers
contracted to have a single-family home built on each property.
Taxpayers received a ten-year tax exemption from the City on the
assessed values of their new homes. In 2018, OPA valued the taxable land and set
1
We granted the City’s application to consolidate these appeals. Cmwlth. Ct. Order,
8/19/21.
2
Because the record was slim, and because the facts are generally undisputed, some of the
facts herein were sourced from Taxpayers’ bench memoranda. Further, for ease of disposition, we
may refer to one rounded figure in discussing the valuations at issue and specify the exact
valuations for each property only when necessary.
2
the market value for each property.3 Taxpayers appealed to the City’s Board of
Revision of Taxes (Board), which decreased the market value and set a new market
value for each property.
Taxpayers appealed the Board’s decision to the trial court. Taxpayers
filed bench memoranda, which attached various exhibits. The trial court held a
hearing, at which the parties stipulated to the accuracy of the current total assessed
value of the Properties based on OPA records attached to Taxpayers’ bench
memoranda. Notes of Testimony (N.T.) Hr’g, 9/21/20, at 9.4 Taxpayers presented
the testimony of Joseph Benincasa, a real estate appraiser.5 The City did not present
witnesses or introduce evidence in rebuttal.
On September 30, 2020, the trial court sustained the appeals in favor of
Taxpayers and adverse to the City, further reducing the assessed market value of the
land. The trial court’s order specified only the market value of the land for 2018 to
2021. Order, 9/30/20.6 The City timely appealed from that order.
3
Specifically, for 411 W. Moreland Avenue, OPA valued the taxable land at $700,321,
and the market value at $2,414,900. For 415 W. Moreland Avenue, OPA valued the taxable land
at $725,000, and the market value at $2,500,000.
4
For example, for year 2019, the OPA record states that the total assessed market value of
the property located at 411 W. Moreland Ave. was $2,090,000. This total included a tax-exempt
improvement assessed at $1,483,900 and taxable land assessed at $606,100.
5
Mr. Benincasa testified that he compared the sales of five similar properties to the
Properties. N.T. Hr’g at 14, 16. Mr. Benincasa testified as to the amounts for which the properties
were sold, the square footage of the land, and the value per square foot. Based on the values of
the five properties, Mr. Benincasa testified that the land value for the Properties was $300,000, at
$12.18 per square foot. Id. at 20-21.
6
To be clear, this order did not designate the total value of either Property, nor did it
identify the value of the single-family home built thereon. In relevant part, the order stated:
It is further Ordered that the market value of the land at 411 W. Moreland Avenue
. . . is hereby set as follows: 2018: $300,000
2019: $325,000
(Footnote continued on next page…)
3
Meanwhile, the City also timely filed a motion for
reconsideration/clarification. The City’s motion stated that although the trial court’s
order set values for the land, it was “silent” as to “the other components of the
assessment.” City’s Mot. for Recons., 10/22/20, ¶ 4. On December 2, 2020, the trial
court granted in part the City’s motion for reconsideration, and the City timely
appealed from this order.7
II. ISSUES8
The City raises three issues, which we reordered for disposition. First,
the City asserts that the trial court erred by increasing the tax-exempt value of the
2020: $350,000
2021: $350,000
It is further Ordered that the market value of the land at 415 W. Moreland Avenue
. . . is hereby set as follows: 2018: $300,000
2019: $325,000
2020: $350,000
2021: $350,000
Order, 9/30/20.
7
In this order, the trial court clarified, for example, that for tax year 2018 for the 411 W.
Moreland Ave. property, the taxable land value was $300,000, and the exempt improvement value
was $1,790,000, for a total assessed value of $2,090,000. Trial Ct. Order, 12/2/20. We add that
the trial court’s order inadvertently swapped Taxpayers’ addresses, i.e., referred to 411 W.
Moreland Ave. as 415 W. Moreland Ave., and vice-versa.
We add that the trial court incorrectly held that the City waived its issues by, inter alia, not
filing a post-trial motion from the December 2, 2020 order. Trial Ct. Op., 6/7/21, at 4.
Pennsylvania Rule of Civil Procedure 227.1(g) explicitly precludes the filing of a post-trial motion
“in an appeal from the final adjudication or determination of a local agency.” Pa.R.Civ.P. 227.1(g).
Finally, we acknowledge that the City filed a separate notice of appeal at each docket number. See
generally Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021).
8
“Our standard of review in a tax assessment appeal is whether the trial court rendered a
decision unsupported by the evidence, committed an error of law or abused its discretion.”
Residents of Buckingham Springs v. Bucks Cnty. Assessment Off., 60 A.3d 883, 887 (Pa. Cmwlth.
2013). We add that neither party complied with Pa.R.A.P. 2119(a), which requires that the
argument portion of their appellate brief be divided into as many sections as questions presented.
4
Properties without evidence establishing the actual cost of construction. City’s Br.
at 7. Second, the City claims that the trial court erred in altering the land component
of the total assessed value of the Properties. Id. Third, the City challenges the trial
court’s acceptance of a methodologically flawed report prepared by Taxpayers’
appraiser. Id.
III. DISCUSSION
Before discussing the City’s issues, we address the timeliness of the
trial court’s December 2, 2020 order granting the City’s motion for reconsideration.
Pennsylvania Rule of Appellate Procedure 1701(b)(3) states that a trial court may
grant reconsideration if (1) the motion for reconsideration was timely filed; and (2)
the order granting reconsideration is filed within the applicable appeal period for the
underlying order. Pa.R.A.P. 1701(b)(3)(i)-(ii). An order granting reconsideration
after the applicable appeal period has expired is a legal nullity. Orfield v. Weindel,
52 A.3d 275, 277 (Pa. Super. 2012); Sewickley Valley Hosp. v. Dep’t of Pub.
Welfare, 550 A.2d 1351, 1353 (Pa. Cmwlth. 1988).
Here, the trial court’s December 2, 2020 order granting reconsideration
was filed after the time period for appealing the prior September 30, 2020 order had
expired. Therefore, the trial court’s December 2, 2020 order granting
reconsideration is a legal nullity, and we must vacate that order and quash the City’s
appeals at dockets 1313 and 1314 C.D. 2020. See Orfield, 52 A.3d at 277.9
A. The City’s Challenge to Values in a Void Order
In support of the City’s first issue, the City argues that because the
record contains no evidence establishing the actual cost of constructing Taxpayers’
homes, the trial court erred by changing the improvement values in its order granting
9
The City’s appeals at dockets 1167 and 1168 C.D. 2020 are properly before this Court.
5
the City’s motion for reconsideration. City’s Br. at 19-20. The improvement values
challenged by the City, however, exist only in the trial court’s December 2, 2020
order, which we deem a legal nullity. Thus, we may not address the City’s argument.
See id.10
B. The Validity of a Challenge to Only the Land Values11
In its second issue, the City contends that the trial court could not have
altered the land component of the assessment without evaluating the total assessed
10
If this Court could review the December 2, 2020 order, then we would agree that the trial
court erred, as we explain in further detail below.
11
As background, we briefly summarize the property tax assessment process. A county
may designate a “base year” for ascertaining the fair market value of all properties within the
county. See generally Downingtown Area Sch. Dist. v. Chester Cnty. Bd. of Assessment Appeals,
913 A.2d 194, 202 (Pa. 2006) (Downingtown). A county has significant discretion in determining
when it will assess property, i.e., its “base year.” For example, Philadelphia County normally
reassesses its properties annually, as compared to Bucks County, which last reassessed its
properties in 1972.
After a county has ascertained the market values, the county applies an “established
predetermined ratio” (EPR) to calculate the assessed values. Section 102 of the Assessment Law,
72 P.S. § 5020-102 (defining EPR as “the ratio of assessed value to market value established by
the board of county commissioners and uniformly applied in determining assessed value in any
year”). “To take a simple, but common, example, a county may set its base year EPR at 100% of
actual value, and thus, reassess all real estate in the county at its actual value for the base year.
Each year thereafter, until the next county-wide reassessment, a given property’s value may
change, but its assessment ordinarily remains static, fixed at its base year level.” Downingtown,
913 A.2d at 202-03; see 53 Pa.C.S. § 8842. For example, if 2021 is the base year, a property has
a total market value of $6, and a county has elected to impose a 100% EPR, then the total assessed
value is $6.
Any subsequent alterations in the value of the property are then valued “in terms of base
year dollars.” Downingtown, 913 A.2d at 203. “For example, if a home is replaced on a lot, the
parcel’s value may increase from (say) $100,000 to $200,000 in present-year dollars due to the
new construction. However, the board does not simply re-assess the property at $200,000; rather,
using tables, charts, and other accepted techniques, the board determines what the improved
property would have been worth in the base year-in this example, perhaps $180,000[.]” Id. To
take the above example, if the $6 property was improved in 2025 and was worth $12 in 2025
dollars, the Board would have to express the assessed improved value in 2021 dollars, i.e., base
year dollars.
6
values. City’s Br. at 20-22 (discussing N. Park Vill., Inc. v. Bd. of Prop.
Assessments, Appeals & Rev. of Allegheny Cnty., 184 A.2d 253 (Pa. 1962) (Park
Village), and Pittsburgh Miracle Mile Town & Country Shopping Ctr. v. Bd. of Prop.
Assessment, Appeals & Rev. of Allegheny Cnty., 209 A.2d 394 (Pa. 1965) (Miracle
Mile)). In the City’s view, these cases and their progeny stand for the proposition
that a party cannot challenge “only the land component in an assessment appeal.”
Id. at 21.12
The Board assesses property “at the actual value thereof,” i.e., current
market or base year market value. Section 13 of the Act of June 27, 1939, P.L. 1199,
as amended, 72 P.S. § 5341.13.13 “Actual value means market value,” which is
defined as the “price which a purchaser, willing but not obliged to buy, would pay
an owner, willing but not obliged to sell, taking into consideration all uses to which
the property is adapted and might in reason be applied.” Valley Forge Golf Club,
Inc. v. Bd. for the Assessment & Revision of Taxes of Montgomery Cnty., 285 A.2d
213, 215-16 (Pa. Cmwlth. 1971) (Valley Forge) (citation omitted); accord Harley-
Davidson Motor Co. v. Springettsbury Twp., 124 A.3d 270, 279 (Pa. 2015)
(Springettsbury).
12
Taxpayers counter that these cases predated the creation of the property tax exemption
at issue. Taxpayers’ Br. at 5. Regardless, Taxpayers maintain that if OPA alters only the taxable
land value, they are entitled to challenge it. Id.
13
Because the City is a county and city of the first class, see Section 1 of the Act of June
25, 1895, P.L. 275, as amended, 53 P.S. § 101, the Assessment Law governs the City’s property
assessment. That statute does not define “assessment.” Our Courts have consistently defined
“assessment” in the context of our tax statutes as a “valuation of property for the purpose of
taxation.” City of Meadville v. Odd Fellows Home of W. Pa., 193 A. 662, 664 (Pa. Super. 1937);
accord Broad & Sansom Realty Co. v. Fidelity Bldg. Corp., 141 A. 34, 35 (Pa. 1928) (stating,
“Assessed, as used in our taxing statute and as here used, means a certain sum of money, fixed
under a given rate on property valuation, due and payable as taxes.”); Appeal of Hart, 199 A. 225,
227 (Pa. Super. 1938) (explaining that the term “assessment” “more accurately [refers to] a certain
sum of money fixed under a given rate on property valuation”).
7
After a property is assessed, a taxing authority may exempt from
taxation “the assessment attributable to the actual cost of construction” of the new
residence. Sections 301 and 302 of the Improvement of Deteriorating Real Property
or Areas Tax Exemption Act (IDRPA), Act of July 9, 1971, P.L. 206, No. 34, as
amended, added by the Act of August 5, 1977, P.L. 167, 72 P.S. §§ 4711-301 to -
302. For example, the City exempts real estate taxes “limited to that portion of the
assessment valuation attributable to the cost of construction of the new eligible
dwelling unit.” Phila. Code § 19-1303.4(4)(a); see Section 303(b) of the IDRPA, 72
P.S. § 4711-303(b).14 The Board “shall assess separately the dwelling unit and the
land upon which the new residential construction stands.” Phila. Code § 19-
1303.4(6)(d).
A party aggrieved by an assessment may appeal to the Board, which
“shall” determine the “current market value for the tax year in question” as well as
the “common level ratio.” Section 14(b)(1)-(2) of the Act of June 27, 1939, P.L.
1199, as amended, 72 P.S. § 5341.14(b)(1)-(2).15 In turn, a party, including a
14
The IDRPA permits the City “to exempt improvements to certain deteriorated residential
property and areas . . . .” Section 102 of the IDRPA, as amended, 72 P.S. § 4711-102. To the
extent that the statute and ordinance refers to “assessment” or “assessment valuation,” in this
context, the City explained that “the exemption value, by statute, is actually supposed to be set at
the actual cost of construction, and there is no evidence in the record as to the actual cost of
construction.” N.T. Hr’g at 51; cf. Citadel Dev. Corp. v. Bd. of Assessment Appeals of Erie Cnty.,
828 A.2d 1057, 1062 (Pa. 2003) (explaining that if the actual cost of construction is less than the
legislative ceiling at issue, then the entire amount is exempt); MacDonald, Illig, Jones & Britton
v. Erie Cnty. Bd. of Assessment Appeals, 604 A.2d 306, 310 (Pa. Cmwlth. 1992) (construing statute
analogous to IDRPA, in which the “actual costs” of new construction can only be assessed after
construction is complete).
15
A taxpayer may challenge a property’s total assessed value by introducing evidence of
the ratio of assessment value to current market value of “similar properties of the same nature in
the neighborhood,” i.e., the “common level ratio” (CLR). See Downingtown, 913 A.2d at 199-
200; Section 102 of the Assessment Law, 72 P.S. § 5020-102. The State Tax Equalization Board
(STEB) calculates a CLR for each county based on the prior year’s “arm’s-length transactions” of
(Footnote continued on next page…)
8
municipality, may appeal the Board’s assessment to the Court of Common Pleas.
Sections 518.1 and 520 of the Assessment Law, 72 P.S. §§ 5020-518.1, 5020-520;16
accord Phila. Code § 19-1303.4(6)(d). Like the Board, the court “shall make the
following determinations:” the market value and the CLR. 72 P.S. § 5020-
518.2(a)(1)-(2).
For example, in Springettsbury, the trial court was required to
determine the market value of the property and was then “required by law to apply
a [CLR] for each year to arrive at the assessed value for the property . . . .”
Springettsbury, 124 A.3d at 287 n.9. The Springettsbury trial court, however, did
not perform that calculation, and this Court remanded to have the trial court comply
with the statute. Id.
As in Springettsbury, the instant trial court’s order determined the
market value of the land only, which prompted the City to file a motion for
reconsideration to have the trial court enumerate the other values required by statute.
See City’s Mot. for Reconsid. ¶ 4. Unfortunately, as we held above, the trial court
untimely granted the motion for reconsideration. Therefore, somewhat similar to
Springettsbury, the only valid, appealable order before us lacks the values required
by statute, specifically the assessed total values of the Properties and the CLR. See
72 P.S. § 5020-518.2(a)-(b); cf. Springettsbury, 124 A.3d at 287 n.9.
all properties sold within that county. Using our illustration of a property with a 2021 total
assessed market value of $6 as an example, the STEB would calculate the 2021 CLR as 1.0, and
“[t]hereafter, under normal economic conditions, the STEB-calculated CLR tends to diminish each
year, reflecting ongoing inflation and real estate appreciation.” Downingtown, 913 A.2d at 203
(citations omitted). Very simply, the STEB-calculated CLR provides broad guidance to ensure
that the Board and trial court do not inaccurately assess the value of the property at issue. See
generally 72 P.S. §§ 5020-518.2(b), 5341.14(c). But because the STEB-calculated CLR is based
on all county sales, the taxpayer may nonetheless challenge the assessment of the property at issue
by introducing the CLR of similar properties. See Downingtown, 913 A.2d at 205.
16
Section 518.1 was added by the Act of December 28, 1955, P.L. 917.
9
When necessary, as here, the trial court’s order stating the assessed total
market value must also include the assessed land and improvement values,
particularly if only one value is contested or when a tax exemption applies. See
Miracle Mile, 209 A.2d at 395; Park Village, 184 A.2d at 255. For example, in
Miracle Mile, our Supreme Court noted that the parties’ “stipulation as to the fair
market value of land or improvements is merely an evidentiary expedient and does
not alter the court’s obligation on review to pass upon and to determine the
correctness of the property assessment as a whole.” Miracle Mile, 209 A.2d at 395.
In other words, notwithstanding any stipulation, the trial court’s order should include
the values necessary to calculate the “total assessment of the property as a unit.” Id.
Similarly, in Park Village, our Supreme Court observed that the “reasonableness of
the total assessment . . . is controlling,” i.e., the reviewing authority considers the
“total assessment of both land and improvements as a unit . . . .” Park Village, 184
A.2d at 255.
Although the instant order omits the necessary values, we would be
remiss if we did not highlight the parties’ erroneous stipulation to the Properties’
total assessed values and the trial court’s acceptance thereof. Briefly, the Taxpayers’
tax exemption is limited to the actual cost of constructing the new home. See Section
303 of the IDRPA, 72 P.S. § 4711-303; accord Phila. Code § 19-1303.4(4)(a)
(same). In other words, if assessed land value + assessed improvement value = total
assessed value is “$2+$4=$6,” and if the actual cost of constructing the new home
at issue is $4, then the tax exemption is $4. See 72 P.S. § 4711-303(b); Phila. Code
§ 19-1303.4(4)(a).
The parties, however, erred by stipulating to the total assessed value as
a constant, i.e., a fixed value, because any alteration to the assessed land value
10
necessarily alters the assessed improvement value to maintain the constant. See In
re Armco, Inc., 515 A.2d 326, 330 (Pa. Cmwlth. 1986) (noting that in “any equation,
to maintain a constant result when one variable changes, another must change to
counterbalance it”). By way of illustration, in our prior example, if the parties
previously stipulated to a total assessed value of $6, but the trial court decreases the
assessed land value from $2 to $1, then the assessed improvement value must
necessarily increase from $4 to $5 in order to preserve the stipulated total assessed
value of $6, i.e., “$2+$4=$6” becomes “$1+$5=$6.”
The flaw in that illustration is the assumption that the assessed
improvement value can change. The assessed improvement value cannot change,
absent record evidence, because Taxpayers’ tax exemption is limited to the actual
cost of constructing their new homes. See 72 P.S. § 4711-303; accord Phila. Code
§ 19-1303.4(4)(a) (same). Plainly, the actual cost to construct Taxpayers’ homes
cannot be both $4 and $5. It follows that the parties’ stipulation to the total assessed
value is improper when, as here, a party elects to challenge one of the component
values, and therefore the stipulation is void. Cf. Klingler v. Workmen’s Comp.
Appeal Bd., 413 A.2d 432, 435 (Pa. Cmwlth. 1980) (holding that a stipulation to
waive interest was illegal and therefore void). For these reasons, similar to
Springettsbury, we vacate the September 30, 2020 order and remand to the trial court
for an order that complies with 72 P.S. § 5020-518.2(a)-(b). See Springettsbury, 124
A.3d at 287 n.9. Because of our disposition, we need not address the City’s
remaining issue.
IV. CONCLUSION
For these reasons, we quash the appeals at dockets 1313 and 1314 C.D.
2020, vacate the trial court’s September 30, 2020, and December 2, 2020 orders at
11
dockets July 2018-002796 and July 2018-002797, strike the parties’ September 21,
2020 stipulation, and remand to have the trial court issue an order that complies with
72 P.S. § 5020-518.2(a)-(b).
LORI A. DUMAS, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of Linehan : CASES CONSOLIDATED
From a Decision of the Board of : No. 1167 C.D. 2020
Revision of Taxes :
:
Appeal of: City of Philadelphia :
Appeal of Levin :
From a Decision of the Board : No. 1168 C.D. 2020
of Revision of Taxes :
:
Appeal of: City of Philadelphia :
In Re: Appeal of Linehan :
From a Decision of the Board of : No. 1313 C.D. 2020
Revision of Taxes :
:
Appeal of: City of Philadelphia :
In Re: Appeal of Levin :
From a Decision of the Board : No. 1314 C.D. 2020
of Revision of Taxes :
:
Appeal of: City of Philadelphia :
ORDER
AND NOW, this 9th day of November, 2022, we quash the appeals at
dockets 1313 and 1314 C.D. 2020, vacate the trial court’s September 30, 2020, and
December 2, 2020 orders at dockets July 2018-002796 and July 2018-002797, strike
the parties’ September 21, 2020 stipulation, and remand to have the trial court issue
an order that complies with Section 518.2(a)-(b) of The General County Assessment
Law, Act of May 22, 1933, P.L. 853, art. V, as amended, added by the Act of
December 13, 1982, P.L. 1160, 72 P.S. § 5020-518.2(a)-(b).
Jurisdiction relinquished.
LORI A. DUMAS, Judge | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482476/ | USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11049
Non-Argument Calendar
____________________
WADE ROBERTS,
Plaintiff-Appellant,
versus
WELLS FARGO CLEARING SERVICES, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-05221-WMR
____________________
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 2 of 10
2 Opinion of the Court 22-11049
Before WILLIAM PRYOR, Chief Judge, JORDAN, and BRANCH, Circuit
Judges.
PER CURIAM:
Wade Roberts appeals an order compelling him to arbitrate
his complaint against his former employer, Wells Fargo Clearing
Services, LLC, for collecting the balance he owed on outstanding
loans. The district court ruled that Roberts had agreed to arbitrate
with Wells Services in his offer of employment letter and in prom-
issory notes he executed to obtain advances on his compensation.
We affirm.
In August 2016, Wells Services, a registered broker-dealer,
hired Roberts, an experienced financial advisor. Roberts’s offer of
employment letter required him to “maintain [his] licenses and reg-
istration from FINRA [the Financial Industry Regulatory Author-
ity] . . . and other regulatory bodies” as a “broker-dealer agent” and
“investment adviser representative” for Wells Services. The letter
mentioned that Roberts could execute a “promissory note or [in-
cur] other obligations” with the firm. The letter also contained a
dispute resolution clause requiring Roberts to arbitrate all claims
concerning his employment in accordance with the rules of the Fi-
nancial Regulatory Authority:
11. Arbitration; Choice of Law: You agree that any
actions or claims concerning your employment or
termination of employment with Wells Fargo
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 3 of 10
22-11049 Opinion of the Court 3
Advisors shall be resolved by arbitration under the
then-current Rules of the Financial Industry Regula-
tory Authority (“FINRA”) regardless of which Party
commences the claim. . . . You and Wells Fargo Ad-
visors agree that arbitration shall be the exclusive
remedy for all disputes and that the results of such ar-
bitration shall be final and binding. . . . Unless other-
wise provided by law, any controversy relating to
your duty to arbitrate hereinunder, or to the validity
or enforceability of this arbitration clause, or any de-
fense to arbitration, shall also be arbitrated before
FINRA.
“By signing and returning a copy of [the] letter, [Roberts] ac-
cept[ed] and agree[d] to all terms and conditions of [the] offer.”
Roberts registered his new employer with the Financial Au-
thority by executing a Uniform Application for Securities Industry
Registration or Transfer, or a “form U-4.” As provided in the form,
Roberts “agree[d] to arbitrate any dispute, claim or controversy
that may arise between [him] and [his] firm, or a customer, or any
other person that is required to be arbitrated under the rules, con-
stitutions, or by-laws” of the Financial Authority. Roberts signed a
statement that reminded him of his duty to arbitrate “under FINRA
rules” and of the binding nature of the arbitration. Roberts also
signed a noncompetition agreement with Wells Services in which
he acknowledged that his “U-4 requires any dispute between [him-
self] and the Firm . . . arising out of . . . [his] employment or
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 4 of 10
4 Opinion of the Court 22-11049
termination from employment with the Firm to be submitted to
binding arbitration pursuant to the FINRA Code of Arbitration
Procedure.”
Between August 2016 and July 2021, Roberts obtained five
loans from Wells Services for which he executed promissory notes.
The loans operated as advances against future bonuses. The dates
and amounts of the loans were as follows: August 19, 2016, for
$788,128; September 22, 2017, for $274,132; November 16, 2017,
for $171,332; November 27, 2018, for $171,332; and November 30,
2019, for $171,332.
Each promissory note stated that Wells Services could de-
clare a default when “employment . . . ends for any reason or for
no reason.” Upon default, Wells Services could “declare the entire
unpaid principal balance of [the] Note immediately due and paya-
ble” and offset any amounts owed against “any sums or assets in
which [Roberts] h[ad] a direct or indirect interest . . . in any broker-
age, deposit, or other account at Wells Fargo Advisors, including
. . . Wells Fargo Bank, N.A. or any other affiliate of Wells Fargo
Advisors.” In the notes, Roberts “authorize[d] Wells Fargo to exer-
cise this right of set-off.”
Each promissory note contained a dispute resolution clause
that Roberts and Wells Services would arbitrate controversies con-
nected to the note and his employment under the Rules of the Fi-
nancial Authority:
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 5 of 10
22-11049 Opinion of the Court 5
Wells Fargo Advisors and you . . . agree that any ac-
tions or claims instituted by you or Wells Fargo Ad-
visors as a result of: (a) any controversy arising out of,
or in connection with the validity, enforcement or
construction of, this Note as well as (b) any actions or
claims concerning your application for employment,
employment, or separation from employment shall
be resolved by binding arbitration under the then-cur-
rent Rules of the Financial Industry Regulatory Au-
thority. . . . By entering this Agreement, you and
Wells Fargo Advisors are waiving the right to bring
any claims/actions noted herein in a court or before
a jury. . . . This Agreement to arbitrate is subject to
and shall be governed by the Federal Arbitration Act.
Roberts’s promissory notes in August 2016, November 2018, and
November 2019 also contained a disclaimer, in bold font, that the
“Note contains a binding mutual arbitration provision . . . which
may be enforced by the parties.”
For each loan, Roberts signed a Loan Payment Authoriza-
tion that “authorize[d] and direct[ed] Wells Fargo Services, LLC
. . . as [his] employer to deduct the payments due from [his] net
incentive pay . . . at each monthly pay period until the Note is re-
paid in full.” Roberts “voluntarily request[ed] this automatic re-
payment service and [agreed] that the fund[s] deducted be used to
pay back the loan furnished to [him] by Wells Fargo Advisors.”
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 6 of 10
6 Opinion of the Court 22-11049
Roberts also acknowledged that “[t]he amount of such deduction
shall be paid to Wells Fargo Advisors in repayment of the Note.”
In July 2021, Roberts resigned from Wells Services. Its col-
lections department notified Roberts that he had an outstanding
balance of $809,965.26 on his loans, which he refused to pay. Wells
Services garnished Roberts’s bank accounts to satisfy the debt.
Roberts filed a complaint in a Georgia court against Wells
Services for conversion and improper solicitation of money. Rob-
erts denied receiving a loan or “funds . . . other than employee com-
pensation from” Wells Services. Wells Services removed Roberts’s
action to the district court, see 18 U.S.C. § 1332, and then moved
to compel arbitration based on Rule 13200 of the Code of Arbitra-
tion Procedure for Industry Disputes and to dismiss the complaint.
The district court granted the motion to compel arbitration
and dismissed Roberts’s complaint without prejudice. The district
court ruled that the arbitration clauses in Roberts’s employment
letter and five promissory notes were enforceable under Georgia
law and applied to his claims against Wells Services. The district
court rejected Roberts’s arguments that the notes were unenforce-
able.
We review de novo an order compelling a party to arbitrate
a dispute. Spirit Airlines, Inc. v. Maizes, 899 F.3d 1230, 1232 (11th
Cir. 2018).
The Federal Arbitration Act embodies “a policy guarantee-
ing the enforcement of private contractual arrangements” to
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 7 of 10
22-11049 Opinion of the Court 7
arbitrate disputes. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294
(2002); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 625 (1985). The Act states that an arbitration agree-
ment “shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any con-
tract.” 9 U.S.C. § 2. Because the Act “embodies a liberal federal pol-
icy favoring arbitration agreements,” “[t]he role of the courts is to
rigorously enforce agreements to arbitrate” applicable to the par-
ties and their dispute. Hemispherx Biopharma, Inc. v. Johannes-
burg Consol. Invs., 553 F.3d 1351, 1366 (11th Cir. 2008). Even so, a
district court may compel arbitration of “only those disputes . . .
that the parties have agreed to submit.” Granite Rock Co. v. Int’l
Brotherhood of Teamsters, 561 U.S. 287, 302 (2010) (quoting First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943 (1995)). “[A]s with
any other contract, the parties’ intentions control.” Stolt-Nielsen
S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 664 (2010) (quoting
Mitsubishi Motors, 473 U.S. at 626).
Roberts’s form U-4 and his five promissory notes provide
that he would arbitrate controversies related to his employment
and the advances on his bonuses in accordance with the rules es-
tablished by the Financial Authority. That entity is a “self-regula-
tory organization established under the Securities Exchange Act of
1934, 15 U.S.C. § 78o-3, with the authority to exercise comprehen-
sive oversight over all securities firms that do business with the
public.” Pictet Overseas Inc. v. Helvetia Tr., 905 F.3d 1183, 1187
(11th Cir. 2018) (internal quotation marks omitted). The Financial
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 8 of 10
8 Opinion of the Court 22-11049
Authority promulgates rules and regulations that govern its mem-
bers, FINRA Rule 13100(o), and financial advisors registered with
the organization, id. Rule 13100(r). One of the rules requires that
“a dispute must be arbitrated under the Code if the dispute arises
out of the business activities of a member or an associated person
and is between or among . . . Members and Associated Persons.”
Id. Rule 13200.
Roberts argues that his dispute with Wells Services falls out-
side the scope of “business activities” in Rule 13200. That rule, read
“as a whole,” requires that the controversy derive from the busi-
ness relationship between Roberts and Wells Services. Cf. Pictet,
905 F.3d at 1188 (interpreting similarly-worded FINRA Rule
12200); id. at 1191 (Pryor, J. concurring) (discussing “the fair mean-
ing of the text of [Rule 12200] in its context”). We determine
whether Roberts’s claims fall within Rule 13200 based “on the fac-
tual allegations in [his] complaint rather than the legal causes of
action [he] asserted.” Gregory v. Electro-Mechanical Corp., 83 F.3d
382, 384 (11th Cir. 1996).
Roberts alleged that Wells Services seized funds from his ac-
counts under the pretense that the monies satisfied an unpaid bal-
ance on loans he received while an employee. Roberts disavowed
obtaining a loan from Wells Services and alleged that all funds it
gave him constituted “employee compensation.” Roberts also al-
leged that Wells Services lacked authority to demand or to recover
funds “after the termination of [his] employment.”
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 9 of 10
22-11049 Opinion of the Court 9
This dispute squarely “arises out of the business activities”
of Roberts and Wells Services. See FINRA Rule 13200. Roberts con-
tests the character of and repossession of monies he received from
Wells Services during his employment. Roberts’s claims exist
solely because of his business relationship with Wells Services and
the termination of that relationship.
Roberts argues that he is not required to arbitrate based on
Valentine Capital Asset Management Inc. v. Agahi, 94 Cal. Rptr. 3d
526 (Cal. Ct. App. 2009), but we disagree. The California court con-
cluded that the defendants, registered representatives of FINRA
members who Valentine sued for libel, slander, defamation, unfair
competition, and theft of trade secrets, were not obligated to arbi-
trate under Rule 13200 because neither Valentine nor the defend-
ants’ successor employers were members of FINRA. Id. at 528–29,
535–36. Although the defendants were associated persons, they did
not commit their misdeeds as “associated person[s] of a FINRA
member.” Id. at 535. In contrast, the present dispute about em-
ployee compensation stems directly from the business relationship
Roberts has as an associated person with Wells Service, a member
firm.
Roberts’s argument that he can avoid arbitration under Rule
13806 of the Code of Arbitration Procedure fails. Rule 13806 pro-
vides for “arbitrations solely involving a member’s claim that an
associated person failed to pay money owed on a promissory note”
and “may not include any additional allegations.” FINRA Rule
13806(a). But Roberts, not Wells Services, commenced this suit.
USCA11 Case: 22-11049 Date Filed: 11/09/2022 Page: 10 of 10
10 Opinion of the Court 22-11049
And Roberts contested more than his duty to pay because, by the
time he filed his action, Wells Services had already collected the
amounts outstanding on the promissory notes. Rule 13806 is inap-
plicable.
The district court did not err by ordering Roberts to arbi-
trate his claims against Wells Services under Rule 13200. Roberts
signed multiple documents, including a form U-4 and five promis-
sory notes in which he agreed to arbitrate controversies connected
to his employment with and the advances he received from Wells
Services. See Kidd v. Equitable Life Assur. Soc. of U.S., 32 F.3d 516,
520 (11th Cir. 1994) (“If the NASD did not mandate arbitration of
employer-employee disputes, there would be no reason to require
Appellees to sign U–4 forms promising to arbitrate such disputes.”).
Roberts does not dispute the validity of those documents or his
agreements to arbitrate. He concedes that he is an associated per-
son and that Wells Services is a member. And the allegations that
form the basis of the dispute “arise out of the business activities”
between Roberts and Wells Services. See FINRA Rule 13200. Rob-
erts is bound by his agreements to arbitrate.
We AFFIRM the order compelling Roberts to arbitrate. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482485/ | Case: 21-2221 Document: 46 Page: 1 Filed: 11/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NAFISEH T. MOGHADAM,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2021-2221
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-19-0198-W-2.
______________________
Decided: November 9, 2022
______________________
MATTHEW ROSTON, Roston Law Group, Beverly Hills,
CA, argued for petitioner.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by REGINALD THOMAS BLADES, JR., BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY; MAUREEN NEY, Office of
General Counsel, United States Department of Veteran Af-
fairs, Los Angeles, CA.
______________________
Case: 21-2221 Document: 46 Page: 2 Filed: 11/09/2022
2 MOGHADAM v. DVA
Before NEWMAN, REYNA, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
Nafiseh T. Moghadam appeals a Merit Systems Protec-
tion Board (“Board”) decision that denied her Whistle-
blower Protection Act claims. Based on the record before
us, we affirm the decision of the Board.
On appeal, Ms. Moghadam asserts that “she is entitled
under both the [Whistleblower Protection Act] and the
[Whistleblower Protection Enhancement Act] to re-
quest . . . attorney fees.” Reply Br. 6. We do not address
this issue because it was not decided below and has not
been properly raised before this court.
AFFIRMED
COSTS
No costs. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482482/ | 20-2222-ag
Gutierrez Perez v. Garland
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 9th day of November, two thousand twenty-two.
4
5 PRESENT: ROSEMARY S. POOLER,
6 RAYMOND J. LOHIER, JR.,
7 ALISON J. NATHAN,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 RAMON ALBERTO GUTIERREZ PEREZ, AKA
11 RAMON GUTIERREZ, AKA RAMON A.
12 GUTIERREZ, AKA RAMO GETURREZ,
13
14 Petitioner,
15
16 v. No. 20-2222-ag
17
18 MERRICK B. GARLAND, UNITED STATES
19 ATTORNEY GENERAL,
20
1 Respondent.
2 ------------------------------------------------------------------
3
4 FOR PETITIONER: Tadhg Dooley, Wiggin and
5 Dana LLP, New Haven, CT,
6 and Joshua Altman, Samantha
7 Bensinger, Akanksha Shaw,
8 Law Students, Yale Law
9 School Advanced Appellate
10 Litigation Project, New Haven,
11 CT
12
13 FOR RESPONDENT: Karen L. Melnik, Jonathan
14 Aaron Robbins, Trial
15 Attorneys, Erica B. Miles,
16 Acting Assistant Director,
17 Office of Immigration
18 Litigation, for Brian M.
19 Boynton, Principal Deputy
20 Assistant Attorney General,
21 Civil Division, United States
22 Department of Justice,
23 Washington, DC
24
25 UPON DUE CONSIDERATION of this petition for review of a Board of
26 Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED,
27 AND DECREED that the petition for review is DENIED.
28 Petitioner Ramon Alberto Gutierrez Perez, a native and citizen of the
29 Dominican Republic, seeks review of a July 2, 2020 decision of the BIA
30 dismissing his appeal of a January 30, 2020 decision of an Immigration Judge
2
1 (“IJ”) ordering him removed. We assume the parties’ familiarity with the
2 underlying facts and the record of prior proceedings, to which we refer only as
3 necessary to explain our decision to deny the petition.
4 Gutierrez Perez, a permanent resident of the United States, was convicted
5 in New York of the following: third-degree attempted possession of a controlled
6 substance in 1988, and first-degree criminal possession and sale of a controlled
7 substance in 2002. In 2002, during the trial for the second conviction, he fled the
8 United States and returned to the Dominican Republic. He was sentenced in
9 absentia to a term of at least twenty-two years to life imprisonment. Seven
10 years later, in June 2009, Gutierrez Perez was extradited from the Dominican
11 Republic and returned to New York, where he was paroled into the United States
12 and transferred into state custody to serve his sentence.
13 Since 2009, the Government has served Gutierrez Perez with three Notices
14 to Appear (“NTA”), each charging him as inadmissible under 8 U.S.C.
15 § 1182(a)(2) based on his drug-related convictions. The first and second
16 removal proceedings, initiated in 2009 and 2019, respectively, were terminated
17 on the ground that Gutierrez Perez had not been given a “reasonable
18 opportunity to depart,” without which an involuntary parolee cannot be deemed
3
1 an “applicant for admission” eligible for removal under § 1182. Matter of
2 Badalamenti, 19 I. & N. Dec. 623, 626 (BIA 1988).
3 In October 2019 the Government served Gutierrez Perez with the third
4 NTA. In January 2020 the IJ ordered Gutierrez Perez removed after finding that
5 the Government had finally provided sufficient evidence that he had been given
6 a reasonable opportunity to depart. Gutierrez Perez appealed to the BIA,
7 arguing that (1) he was not given a reasonable opportunity to depart as required
8 by the BIA’s precedential decision in Badalamenti, (2) res judicata bars the
9 Government from reasserting the charges in the third NTA, and (3) he is not an
10 arriving alien because the Government did not establish that his parole was
11 lawful. The BIA dismissed the appeal, agreeing with the IJ’s finding that
12 Gutierrez Perez “became an applicant for admission because the [Department of
13 Homeland Security] submitted evidence establishing that [he] was provided
14 sufficient opportunity to depart.” Cert. Admin. R. 3. The BIA also determined
15 that res judicata did not apply because the two prior removal proceedings had
16 not resulted in final judgments, and that Gutierrez Perez’s claim of unlawful
17 parole was not supported by evidence.
18 In the present petition for review, in addition to the arguments made to the
4
1 BIA as noted above, Gutierrez Perez also argues that the IJ erred in refusing to
2 grant a suppression hearing about the legality of his extradition and parole, and
3 that equitable estoppel bars the Government from removing him.
4 “Where, as here, the BIA adopts the IJ’s reasoning and offers additional
5 commentary, we review the decision of the IJ as supplemented by the BIA.”
6 Brathwaite v. Garland, 3 F.4th 542, 547 (2d Cir. 2021). While we review de novo
7 all question of law, including the application of law to facts, see Scarlett v. Barr,
8 957 F.3d 316, 326 (2d Cir. 2020), we apply the “substantial evidence” standard in
9 our review of the agency’s factual findings, see Islam v. Gonzales, 469 F.3d 53, 55
10 (2d Cir. 2006). We uphold the agency’s factual findings if “they are supported
11 by reasonable, substantial and probative evidence in the record.” Yanqin Weng
12 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (quotation marks omitted).
13 I. Inadmissibility
14 Gutierrez Perez argues that he lacked notice of his right to a reasonable
15 opportunity to depart. We disagree and conclude that the agency’s conclusions
16 to the contrary were supported by substantial evidence. Gutierrez Perez has
17 known about his right to depart voluntarily since at least 2011, when his counsel
18 asked an IJ to terminate the first removal proceeding “to allow him to take
5
1 advantage of the case of [Badalamenti,] . . . to withdraw [] his supposed
2 application for admission, and to depart on his own” upon release by state
3 authorities. Cert. Admin. R. 175. At that hearing, Gutierrez Perez’s counsel
4 asked for “a reasonable amount of time of, say seven to 10 days, to depart the
5 country voluntarily.” Id. Gutierrez Perez was again put on notice of his right
6 to depart in September 2019, when an IJ terminated his second removal
7 proceeding because he had not been given a reasonable opportunity to depart. 1
8 Lastly, after the third NTA was issued, he received written notice in November
9 2019 through an email sent to his attorney. At oral argument, Gutierrez Perez’s
10 counsel acknowledged that “[u]nder Badalamenti, there’s not a specific
11 requirement that a written notice is provided at a certain date.” Oral Arg. at
12 12:10–12:16.
13 Substantial evidence also supports the agency’s conclusion that Gutierrez
14 Perez was given a reasonable opportunity to depart and is therefore removable
15 under 8 U.S.C. § 1182. Between June 2019 and January 2020, the Government
16 twice attempted – in person and over e-mail – to discuss and facilitate his
1 During oral argument, Gutierrez Perez’s counsel acknowledged that “an IJ in . . .
[removal] proceeding two could theoretically have provided notice” sufficient for the
initiation of a third removal proceeding by the Government. Oral Arg. at 16:31–16:40.
6
1 voluntary departure, but Gutierrez Perez refused to engage in such discussions.
2 During the third removal proceeding, the Government submitted e-mail records
3 reflecting these discussions, including the Government’s offer to terminate the
4 removal proceedings if Gutierrez Perez agreed to depart voluntarily. The
5 Government also submitted an Immigration and Custom Enforcement official’s
6 declaration confirming that government agents “attempted to interview
7 Gutierrez [Perez] regarding his intent to depart voluntarily from the United
8 States” but that he “refused to answer any questions.” Cert. Admin. R. 127.
9 “A parolee who cannot or will not depart from the United States will no doubt at
10 some point become subject to . . . proceedings as an applicant for admission.”
11 Badalamenti, 19 I. & N. Dec. at 626.
12 II. Res Judicata
13 We also conclude that neither Gutierrez Perez’s 2013 nor his 2019 removal
14 proceedings have res judicata effect barring the Government from pursuing
15 charges against him in his 2020 removal proceedings. “In deciding whether a
16 suit is barred by res judicata, it must first be determined that the second suit
17 involves the same claim or — nucleus of operative fact — as the first suit.”
18 Channer v. DHS, 527 F.3d 275, 280 (2d Cir. 2008) (quotation marks omitted).
7
1 “When a subsequent action involves a claim over ongoing conduct and it relies
2 on facts that occurred both before and after the earlier action commenced,” res
3 judicata “will not bar a suit . . . based upon legally significant acts occurring after
4 the filing of a prior suit that was itself based upon earlier acts.” TechnoMarine
5 SA v. Giftports, Inc., 758 F.3d 493, 501 (2d Cir. 2014) (quotation marks omitted).
6 During his first removal proceedings in 2013, Gutierrez Perez was a
7 parolee serving a state criminal sentence who could not voluntarily depart the
8 United States, and the Government had yet to interview him about his plans to
9 leave the country. The operative facts underlying his first removal proceeding
10 were thus significantly different from those in existence during his third removal
11 proceeding, when his parole and sentence had ended, he was transferred to DHS
12 custody pending his departure or removal, and the Government had interviewed
13 him. See Cert. Admin. R. 3, 168–70. Under these circumstances, res judicata
14 “will not bar” the third removal proceeding. TechnoMarine, 758 F.3d at 501.
15 We turn next to any preclusive effect the second removal proceeding may
16 have had on Gutierrez Perez’s third proceeding. “It is well established that a
17 dismissal without prejudice has no res judicata effect on a subsequent claim.”
18 Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir. 1996). Because his second removal
8
1 proceeding was terminated without prejudice, it had no res judicata effect on the
2 third removal proceeding at issue here.
3 III. Suppression Hearing and Equitable Estoppel
4 Gutierrez Perez also challenges the IJ’s denial of his request for a
5 suppression hearing. We are not persuaded. An individual requesting a
6 suppression hearing “must first provide an affidavit that, taken as true, could
7 support a basis for excluding the evidence.” Zuniga-Perez v. Sessions, 897 F.3d
8 114, 125 (2d Cir. 2018) (quotation marks omitted). Here, Gutierrez Perez failed
9 to submit the required affidavit or any other documentary evidence, even though
10 the IJ granted him two weeks to “add anything else . . . to the record.” Cert.
11 Admin. R. 98.
12 Finally, Gutierrez Perez argues that the Government is barred from
13 removing him based on the doctrine of equitable estoppel, which requires “a
14 showing of affirmative misconduct by the government.” Rojas-Reyes v. INS,
15 235 F.3d 115, 126 (2d Cir. 2000) (quotation marks omitted). Again, we are not
16 persuaded. We have previously declined to apply equitable estoppel where the
17 petitioner “introduced no evidence to support his claims beyond his own
18 testimony.” Ahmed v. Holder, 624 F.3d 150, 155 (2d Cir. 2010). Here, aside
9
1 from his own assertions that he was kidnapped and returned to the United States
2 to serve his sentence, Gutierrez Perez does not point to anything in the record
3 that suggests that his extradition was illegal. He has failed to show that his
4 extradition from the Dominican Republic and his subsequent parole were
5 unlawful or involved government misconduct.
6 For the foregoing reasons, the petition for review is DENIED. All
7 pending motions and applications are DENIED and stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk of Court
10 | 01-04-2023 | 11-09-2022 |
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