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https://www.courtlistener.com/api/rest/v3/opinions/8482480/ | 21-1792-cr
United States v. Latulas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this Court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 9th day of November, two thousand twenty-two.
PRESENT: JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
STEVEN J. MENASHI,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 21-1792-cr
v.
YARBROUGH LATULAS,
Defendant-Appellant.
FOR DEFENDANT-APPELLANT: Kimberly M. Zimmer, Zimmer Law
Office, PLLC, Syracuse, NY.
FOR APPELLEE: Carina H. Schoenberger, Assistant United
States Attorney, for Carla B. Freedman,
United States Attorney for the Northern
District of New York, Syracuse, NY.
1
Appeal from an amended judgment of conviction for Defendant-Appellant Yarbrough
Latulas, entered on July 15, 2021, in the United States District Court for the Northern District of
New York (Glenn T. Suddaby, Chief Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.
Defendant-Appellant Yarbrough Latulas (“Latulas”) appeals from an amended judgment of
conviction in which he was sentenced to 200 months of imprisonment for a Hobbs Act robbery and
conspiracy to commit a Hobbs Act robbery. Latulas challenges his sentence as procedurally and
substantively unreasonable. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
On April 1, 2015, a federal grand jury returned a superseding indictment charging Latulas in
Count One with conspiracy to interfere with interstate commerce by robbery, in violation of 18
U.S.C. §§ 1951(a) and 2(a) (conspiracy to commit Hobbs Act robbery); in Count Two with
interference with interstate commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2(a)
(Hobbs Act robbery); and in Count Three with using and carrying a firearm during and in relation to
a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1) and 2(a), where the crime of violence was
specified as “conspiracy to interfere with interstate commerce by robbery.” Following a five-day
trial, a jury found Latulas guilty on all three counts and the District Court proceeded to sentence
Latulas to a total term of imprisonment of 216 months. 1 On direct appeal, Latulas alleged discovery
and trial errors and we affirmed the judgment of conviction in full. See United States v. Latulas, 683 F.
App’x 51, 55 (2d Cir. 2017). Subsequently, in 2018, Latulas moved to vacate his sentence under 28
U.S.C. § 2255 on the ground of ineffective assistance of counsel, but the District Court denied the
motion and declined to issue a certificate of appealability.
On December 4, 2019, we granted Latulas’s motion to file a successive § 2255 motion on the
basis of United States v. Davis, 139 S. Ct. 2319 (2019). Latulas then filed a § 2255 motion to vacate his
§ 924(c) conviction. The District Court granted the motion and ordered that Latulas “must now be
sentenced de novo” on the two remaining counts of conviction. The District Court appointed
counsel to represent Latulas on resentencing, the Probation Department updated its presentence
investigation report, and the parties submitted sentencing memoranda.
The sentence consisted of 96 months on Counts One and Two, to be served concurrently,
1
and 120 months on Count Three, to be served consecutively to the other two terms.
2
At resentencing, the District Court stated that it had reviewed and considered the
presentence investigation report (“PSR”) 2 and its addenda, the parties’ submissions, the Sentencing
Guidelines manual, and the § 3553(a) factors in deciding to impose a sentence of 200 months on
each count to run concurrently. See Joint App’x 186–87.
I. LEGAL STANDARDS
“We review a sentence for procedural and substantive reasonableness under a ‘deferential
abuse-of-discretion standard.’” 3 We find a sentence to be procedurally unreasonable only where the
district court “fails to calculate (or improperly calculates) the [U.S.] Sentencing Guidelines range,
treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” 4
We will vacate a sentence as substantively unreasonable only in “exceptional cases where the
trial court’s decision ‘cannot be located within the range of permissible decisions.’” 5 Generally, we
find substantive unreasonableness only when a sentence is “‘shockingly high, shockingly low, or
otherwise’ . . . would ‘damage the administration of justice.’” 6 In reviewing a district court’s decision
to vary upward from the Guidelines, we need not determine whether each ground relied upon is
itself an appropriate basis for the variance. Rather, we may uphold a district court’s judgment
against a substantive reasonableness challenge so long as at least one ground relied upon by the
District Court provides an “independently sufficient justification for its variation from the
Guidelines.” United States v. Cavera, 550 F.3d 180, 196 (2d Cir. 2008) (en banc). 7
2
Latulas did not object to the findings of fact in the PSR. Joint App’x 161–62.
3
United States v. Singh, 877 F.3d 107, 115 (2d Cir. 2017) (quoting Gall v. United States, 552 U.S.
38, 41 (2007)).
4
United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (quoting United States v. Robinson, 702
F.3d 22, 38 (2d Cir. 2012)).
5
United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v.
Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
6
United States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (quoting United States v. Rigas, 583
F.3d 108, 123 (2d Cir. 2009)).
7
See Cavera, 550 F.3d at 186, 197 (holding that “a sentence of twenty-four months’
imprisonment—six months longer than the top end of the applicable Guidelines range” was
“substantively reasonable”). In Cavera, the en banc court observed that it was “divided” on whether
the district court “permissibly relied on a determination that trafficking guns into an urban area is
likely to create more harm than the national average offense envisaged by the Guidelines.” Id. at
3
II. DISCUSSION
A. Procedural Unreasonableness
Here, Latulas argues that the District Court procedurally erred because it: (1) “beg[an] its
sentencing analysis with the original sentence imposed in 2015,” which “was results-oriented”; (2)
“disregarded the Sentencing Guidelines”; (3) “disregarded . . . the 18 U.S.C. § 3553(a) sentencing
factors”; (4) “disregarded . . . the fact that Latulas’[s] conviction for violating 18 U.S.C. § 924(c) was
vacated,” Latulas Br. 17; (5) “improperly considered Latulas’[s] invocation of his right to a trial, right
to testify at that trial, and right not to say anything to incriminate himself as aggravating factors,” id.
at 21; and (6) made “reference to the ‘seriousness of [Latulas’s] conduct’ and ‘this very violent
criminal conduct’” that “is not supported by the record,” id. at 22–23.
Latulas’s first four arguments for procedural unreasonableness lack merit for the following
reasons. The District Court adopted the factual findings of the PSR prepared after the vacatur of
the § 924(c) count “without changes.” United States v. Latulas, Am. J., No. 15-cr-00021 (GTS)
(N.D.N.Y. July 19, 2021), ECF No. 121; Joint App’x 187. The Court also adopted the Guidelines
calculations in the PSR’s second addendum, finding that “the total offense level is 27, the criminal
history category is V, and the guideline imprisonment range is 120 to 150 months.” 8 Joint App’x
187. After the District Court’s finding that the Guidelines range was 120 to 150 months, the Court
explained that “an upward variance is warranted” to 200 months and cited the following two
grounds: first, that “the new guideline range fails to adequately account for the seriousness of [the]
offense, which remains unchanged despite Davis”; and second, that Latulas represents a “danger” to
others and there is a “likelihood that [he] will commit further crimes” as underscored by his
“complete lack of remorse and failure to accept any responsibility for [his] criminal conduct,” his
“lengthy and violent criminal record” dating to age 16 involving “both probation and parole
violations,” and his “threatening communications from jail by circumventing prison rules.” Id.
The District Court recognized Latulas’s post-conviction educational efforts, but ultimately
found that the 200-month sentence was “necessary to promote respect for the law,” to “afford
adequate deterrence,” and “to protect the public,” id. at 188, which are among the § 3553(a) factors.
Accordingly, the District Court began its analysis not with the original sentence imposed, but rather
186. However, the court found that it “need not resolve that disagreement . . . because the district
court’s second ground, that of deterrence, provides an independently sufficient justification for its
variation from the Guidelines.” Id.
8
Latulas made no objections to the Guidelines calculation. Joint App’x 163.
4
with the Guidelines range that properly factored in vacatur of the § 924(c) count, and explained its
reasons for an upward variance based upon consideration of the § 3553(a) factors.
Upon examination of the record, we conclude that Latulas’s final two arguments for
procedural unreasonableness are also unpersuasive. First, the record offers no basis to infer that the
District Court improperly considered, as aggravating factors, Latulas’s invocation of his right to a
trial, his right to testify, or his right to remain silent. By contrast, the District Court was well within
its discretion to consider Latulas’s perjured testimony. See Joint App’x 185. Second, the PSR offers
ample support for the District Court’s comments on Latulas’s criminal conduct.
B. Substantive Unreasonableness
Latulas further argues that his sentence is substantively unreasonable for “many of the same
reasons as discussed” in his brief’s procedural unreasonableness section, because of the discrepancy
in sentences between Latulas and his codefendants, Latulas Br. 26-28, and because “[t]he record
lacks any basis for this substantial upward variance,” id. at 26.
The first two arguments are easily disposed of. To the extent that we rejected each of
Latulas’s procedural unreasonableness arguments in our earlier analysis, we likewise reject them here.
We also reject Latulas’s argument that the sentence is substantively unreasonable because it deviates
from the sentences imposed on his codefendants. See United States v. Alcius, 952 F.3d 83, 89 (2d Cir.
2020) (“[T]here is no requirement that a district court consider or explain sentencing disparities
among codefendants.”).
Regarding the basis for the upward variance, we cannot conclude that Latulas’s 200-month
sentence “cannot be located within the range of permissible decisions.” Cavera, 550 F.3d at 189. At
the July 15, 2021, resentencing, the District Court explained how Latulas’s recent conduct influenced
its decision to vary upward from the Guidelines range. Prior to the resentencing, the Government
submitted under seal twelve messages Latulas had sent through an unauthorized communication
system that allowed Latulas to circumvent Bureau of Prison filters designed to allow the public to
block unwanted inmate emails. Despite Latulas’s repeated messages to a Government witness, he
received no response. At resentencing, the Government also represented to the District Court its
belief that Latulas had repeatedly called this witness despite receiving no answer. 9
9
At resentencing, the Government stated that the witness “continues to receive phone calls
from the Montgomery County Jail. She has not answered any of those phone calls, but my
understanding is she got phone calls within the last week clearly coming from the defendant.” Joint
App’x 169. The Government argued that “this fits the pattern the defendant had in his prior
criminal history where one of his convictions is for violating an order of protection where he
continued to reach out to one of his former paramours while he was in custody.” Id.
5
With this information in hand, the District Court found that Latulas had “threaten[ed] this
young lady, this witness, in March 2021, communicating just a few months ago, not back in 2015” at
the time of trial. Joint App’x 184-85. Moreover, the District Court understood from the PSR that
Latulas had previously engaged in acts of domestic violence and harassment. See PSR ¶¶ 38, 42, 43,
46, 54.
Having reviewed the March 2021 messages that were filed under seal, we find no basis to
disturb these factual findings of the District Court with respect to the threatening nature of Latulas’s
messages. Our review suggests that the District Court did not err, much less clearly err, in
characterizing Latulas’s March 2021 messages to a Government witness from the 2015 trial as
“threatening.” Joint App’x 184–85. Even factoring in the mitigating circumstances—Latulas’s
coursework and his role as a chapel orderly, see PSR 27—we are satisfied that Latulas’s threatening
conduct on its own provides an “independently sufficient justification for [the] variation from the
Guidelines” of 50 months, Cavera, 550 F.3d at 196, and we need not consider the other grounds that
might alternatively support such an upward variance. On reviewing the record as a whole, we are
unable to conclude that Latulas’s sentence “cannot be located within the range of permissible
decisions.” 10
III. CONCLUSION
We have reviewed all of the remaining arguments raised by Latulas on appeal and find them
to be without merit. For the foregoing reasons, we AFFIRM the July 15, 2021, judgment of the
District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
10
Cavera, 550 F.3d at 189 (quoting Rigas, 490 F.3d at 238).
6 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482484/ | Case: 22-1252 Document: 35 Page: 1 Filed: 11/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARVIN E. SANDERS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1252
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4867, Judge Scott Laurer.
______________________
Decided: November 9, 2022
______________________
MARVIN E. SANDERS, Compton, CA, pro se.
ANN MOTTO, Civil Division, Commercial Litigation
Branch, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY;
AMANDA BLACKMON, Y. KEN LEE, Office of General Coun-
sel, United States Department of Veterans Affairs, Wash-
ington, DC.
______________________
Case: 22-1252 Document: 35 Page: 2 Filed: 11/09/2022
2 SANDERS v. MCDONOUGH
Before REYNA, CHEN, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
Marvin E. Sanders appeals a decision of the U.S. Court
of Appeals for Veterans Claims affirming the Board of Vet-
erans’ Appeals’ denial of earlier effective dates for his dis-
ability benefits and determining that it lacks jurisdiction
over Mr. Sanders’ claim of clear and unmistakable error.
We affirm.
BACKGROUND
Mr. Sanders served on active duty in Vietnam from
September 1972 to September 1976 and from November
1977 to October 1981. Government SApp’x 52 1. While in
service, Mr. Sanders complained of back pain, headaches,
and pain in his right eye. See id. at 70; see also Reply Br. 2.
In August 1986, Mr. Sanders submitted a disability
claim for back, head, and eye injuries, which was denied by
the VA Regional Office (“Regional Office”) in November
1986. See Government SApp’x 70. Mr. Sanders did not ap-
peal that decision and it became final. Id. at 53.
On September 19, 2005, Mr. Sanders filed a claim for
disability benefits due to degenerative disc disease (“DDD”)
of the cervical and lumbar spine. Sanders SApp’x 13-14 2.
The Regional Office denied his claim, and Mr. Sanders
1 “Government SApp’x” refers to the appendix at-
tached to the Government’s Response Brief.
2 “Sanders SApp’x” refers to the appendix attached
to Mr. Sanders’ Opening Brief. The page numbers refer to
the electronic filing system page number at the top of each
page.
Case: 22-1252 Document: 35 Page: 3 Filed: 11/09/2022
SANDERS v. MCDONOUGH 3
timely appealed to the Board of Veterans’ Appeals
(“Board”). Id.
In March 2006, Mr. Sanders sought to reopen his Au-
gust 1986 disability claims for back pain, headaches, and
pain in his right eye. Government SApp’x 31. The Re-
gional Office denied the request, and Mr. Sanders timely
appealed. Id.
On appeal, the Board denied service connection for
DDD of the lumbar spine. Id. at 63. The Board remanded
Mr. Sanders’ claim of service connection for headaches and
head injury, as well as DDD of the cervical spine, because
it found that new and material evidence had been submit-
ted for both of these claims. Id. at 51–67. The Board fur-
ther determined that Mr. Sanders should undergo a VA
examination, which was administered on February 17,
2009. Id. at 46-47, 66.
On August 20, 2010, the Regional Office granted
Mr. Sanders’ claim for disability benefits for (1) headaches
and head injury effective March 31, 2006; (2) DDD of the
cervical spine effective September 19, 2005; and (3) DDD of
the lumbar spine effective February 17, 2009. Sanders
SApp’x 11. Mr. Sanders appealed to the Board, arguing he
was entitled to an effective date of September 13, 1972, for
all claims, which the Board denied. Government
SApp’x 10–26.
Mr. Sanders appealed to the Court of Appeals for Vet-
erans Claims (“the Veterans Court”). He argued that he
was entitled to a 1972 effective date and that the November
1986 rating decision was based on a clear and unmistaka-
ble error (“CUE”). Sanders v. McDonough, 2021 WL
3864370 at *1 (Vet. App. Aug. 31, 2021) (“Decision”). The
Veterans Court affirmed the Board’s decision denying the
earlier effective dates and determined that it lacked juris-
diction over Mr. Sanders’ CUE claims. Id. Mr. Sanders
timely appealed. We have jurisdiction over appeals from
the Veterans Court pursuant to 38 U.S.C. § 7292(a).
Case: 22-1252 Document: 35 Page: 4 Filed: 11/09/2022
4 SANDERS v. MCDONOUGH
STANDARD OF REVIEW
We review the Veterans Court’s legal determinations
de novo. Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed.
Cir. 2014). Our authority over Veterans Court decisions is
limited. We have no authority to engage in fact finding. 38
U.S.C. § 7292(d)(1). We affirm the Veterans Court unless
the decision is “(A) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (B) con-
trary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limita-
tions, or in violation of a statutory right; or (D) without ob-
servance of procedure required by law.” Id.
DISCUSSION
We affirm the Veterans Court’s determination that
Mr. Sanders was not entitled to earlier effective dates. De-
cision at *1–3. Generally, “the effective date of an award
based on an initial claim . . . shall not be earlier than the
date of receipt of application therefor.” 38 U.S.C.
§ 5110(a)(1). Accordingly, Mr. Sanders is entitled to an ef-
fective date that corresponds with the day each of his disa-
bility claims at issue here were received. We affirm the
Veterans Court’s determination that the effective date for
the DDD of the cervical spine is September 19, 2005—the
date that he filed the initial claim. Decision at *2–3. Re-
garding Mr. Sanders’ remaining claims, we have held that
“the earliest effective date for an award on a reopened
claim is the date of the request for reopening, not the date
of the original claim.” Ortiz v. McDonough, 6 F.4th 1267,
1270–71 (Fed. Cir. 2021) (citing Sears v. Principi, 349 F.3d
1326, 1331 (Fed. Cir. 2003); 38 C.F.R. § 3.400(q)–(r)). We
thus affirm the Veterans Court’s determination that
Mr. Sanders is entitled to an effective date for his disability
benefits for service-connected headaches and head injury
of March 31, 2006, and its determination that Mr. Sanders
“could not receive an effective date earlier than [February
Case: 22-1252 Document: 35 Page: 5 Filed: 11/09/2022
SANDERS v. MCDONOUGH 5
17, 2009]” for the DDD of the lumbar spine. Decision at
*2–3.
Next, Mr. Sanders argues that the Veterans Court
erred in its decision that it lacked jurisdiction over his CUE
claims. The Veterans Court determined that it did not
have jurisdiction over Mr. Sanders’ CUE claims because
Mr. Sanders failed to file a notice of disagreement alleging
CUE occurred in his November 1986 rating decision as re-
quired under 38 U.S.C. § 7105(a). 3 Decision at *4. We have
held that the Veterans Court has jurisdiction over a CUE
claim so long as the veteran raised the CUE claim to the
Regional Office, appealed the adverse decision to the
Board, and then appealed the Board’s adverse decision to
the Veterans Court. Andre v. Principi, 301 F.3d 1354, 1361
(Fed. Cir. 2002). Here, Mr. Sanders failed to appeal the
Board’s decision finding no CUE in the November 1986
Ratings Decision. Accordingly, we affirm the Veterans
Court’s determination that it lacks jurisdiction over the
CUE claims.
Mr. Sanders also argues that he was denied due pro-
cess when he was not provided a physical or mental exam-
ination before the November 1986 ratings decision. Mr.
Sanders did not allege that his due process rights had been
violated in the Veterans Court. We, therefore, do not have
jurisdiction to review factual questions of whether Mr.
Sanders received a physical or mental evaluation before
November 1986. Johnson v. Derwinski, 949 F.2d 394, 395
3 We note, as did the Veterans Court, that Mr. Sand-
ers has filed other notices of disagreement raising CUE
with respect to some of his other RO rating decisions. De-
cision at *4. However, as the Veterans Court explained,
these previous notices of disagreement did not consider
whether there was CUE in the November 1986 rating deci-
sion, and therefore did not properly begin the appeal pro-
cess with respect to this issue.
Case: 22-1252 Document: 35 Page: 6 Filed: 11/09/2022
6 SANDERS v. MCDONOUGH
(Fed. Cir. 1992) (“[T]his court may not generally review
challenges to factual determinations.”). In addition, as a
general rule, this court may not consider an argument
raised for the first time on appeal. See Boggs v. West, 188
F.3d 1335, 1337–38 (Fed. Cir. 1999). With respect to due
process claims that were not presented below, we exercise
discretion whether to hear a due process argument on ap-
peal. In this case, we decline to exercise such discretion.
We note that Mr. Sanders is not prohibited from seek-
ing a CUE claim in the November 1986 ratings decision. A
“request for revision of a decision of the Secretary based on
clear and unmistakable error may be made at any time af-
ter that decision is made.” Andre, 301 F.3d at 1362 (quot-
ing 38 U.S.C. § 5109A(d)).
CONCLUSION
We affirm the Veterans Court’s affirmance of the
Board’s decision denying Mr. Sanders an earlier effective
date than March 31, 2006, for service-connected headaches
and head injury; September 19, 2005, for service-connected
DDD of the cervical spine; and February 17, 2009, for ser-
vice-connected DDD of the lumbar spine. We also affirm
the Veterans Court’s finding that it lacks jurisdiction over
Mr. Sanders’ CUE claims.
AFFIRMED
COSTS
No costs. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482481/ | 20-1447
Lopez-Lopez v. Garland
BIA
Brennan, IJ
A208 293 749
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 9th day of November, two thousand twenty-two.
5
6 PRESENT:
7 RAYMOND J. LOHIER, JR.,
8 STEVEN J. MENASHI,
9 BETH ROBINSON,
10 Circuit Judges.
11 _____________________________________
12
13 GLORIA LOPEZ-LOPEZ,
14 Petitioner,
15
16 v. 20-1447
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Reuben S. Kerben, Kew Gardens,
24 NY.
25
26 FOR RESPONDENT: Brian Boynton, Acting Assistant
27 Attorney General; Margaret Perry,
28 Senior Litigation Counsel; Craig
29 W. Kuhn, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Gloria Lopez-Lopez, a native and citizen of
9 El Salvador, seeks review of an April 2, 2020 decision of the
10 BIA affirming a July 17, 2018 decision of an Immigration Judge
11 (“IJ”) that denied her application for asylum, withholding of
12 removal, and relief under the Convention Against Torture
13 (“CAT”). In re Gloria Lopez-Lopez, No. A 208 293 749 (B.I.A.
14 Apr. 2, 2020), aff’g No. A 208 293 749 (Immig. Ct. N.Y. City
15 July 17, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed the IJ’s decision as modified by the
18 BIA and consider only the grounds for the IJ’s decision that
19 the BIA relied on. We therefore do not address the IJ’s
20 adverse credibility determination. 1 See Xue Hong Yang v.
1 The BIA stated that it “affirm[ed] the [IJ’s] decision for
the reasons set forth by the [IJ],” but it did not explicitly
address credibility. Although it is unclear if the BIA
intended to rely on the adverse credibility determination,
the other grounds it specifically discussed were sufficient
2
1 U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). The
2 applicable standards of review are well established. See
3 Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014) (reviewing
4 factual findings for substantial evidence and questions of
5 law and application of law to fact de novo).
6 The Government argues that we should dismiss the petition
7 because Lopez-Lopez’s brief does not satisfy the requirements
8 of Federal Rule of Appellate Procedure 28(a). We agree that
9 Lopez-Lopez’s counsel did not fully comply with the rule, but
10 the brief otherwise raises identifiable arguments for review,
11 and we therefore decline to dismiss on that basis. See Sioson
12 v. Knights of Columbus, 303 F.3d 458, 459–60 (2d Cir. 2002)
13 (noting that the absence of a statement of facts may be
14 “overlooked” in favor of ruling on the merits); see also New
15 York v. Green, 420 F.3d 99, 104 (2d Cir. 2005) (“[W]e have
16 expressed a strong preference for resolving disputes on the
17 merits.”) (quotation marks omitted).
18 An asylum applicant has the burden of establishing either
19 past persecution or a well-founded fear of persecution and
bases for the agency’s decision. Accordingly, we decline to
rely on the credibility ruling. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976) (“As a general rule courts and agencies
are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”).
3
1 that “race, religion, nationality, membership in a particular
2 social group, or political opinion was or will be at least
3 one central reason for” the claimed persecution. 8 U.S.C.
4 § 1158(b)(1)(B)(i) (asylum); see also 8 C.F.R. § 1208.13(b).
5 A past persecution claim can be based on harm other than
6 “threats to life or freedom . . . including non-life-
7 threatening violence and physical abuse.” Ivanishvili v.
8 U.S. Dep’t of Just., 433 F.3d 332, 341 (2d Cir. 2006)
9 (quotation marks, brackets, and citation omitted); see also
10 Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006).
11 However, the harm must be sufficiently severe, rising above
12 “mere harassment.” Ivanishvili, 433 F.3d at 341.
13 With these principles in mind, we conclude that
14 substantial evidence supports the agency’s determination that
15 Lopez-Lopez did not demonstrate past persecution or a well-
16 founded fear of future persecution on account of a protected
17 ground. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b).
18 Lopez-Lopez testified that she witnessed a gang killing
19 outside of her home and then received threats from gang
20 members, first in 2012 and then again after returning to El
21 Salvador in 2015. She contends that these threats
22 constituted persecution based on her membership in a
23 particular social group. To constitute a particular social
4
1 group, a group must be “(1) composed of members who share a
2 common immutable characteristic, (2) defined with
3 particularity, and (3) socially distinct within the society
4 in question.” Paloka, 762 F.3d at 196 (quoting Matter of M-
5 E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). “To be
6 socially distinct, a group . . . must be perceived as a group
7 by society.” Id. (quoting Matter of M-E-V-G-, 26 I. & N.
8 Dec. at 240).
9 The agency did not err in rejecting Lopez-Lopez’s
10 proposed particular social group of “young people who resist
11 becoming members of Mara” as lacking in particularity and
12 social distinction. See Gomez v. INS, 947 F.2d 660, 664 (2d
13 Cir. 1991) (“Possession of broadly-based characteristics such
14 as youth and gender will not by itself endow individuals with
15 membership in a particular group.”); Matter of S-E-G-, 24 I.
16 & N. Dec. 579, 584-87 (B.I.A. 2008) (proposed groups of
17 “Salvadoran youths who have resisted gang recruitment” are
18 neither particular nor distinct). Lopez-Lopez did not
19 establish shared traits that would identify members of her
20 group to Salvadoran society or produce evidence suggesting
21 that Salvadoran society regards youth resisting gang
22 membership as a distinct social group. See Paloka, 762 F.3d
23 at 196 (“Persecutory conduct aimed at a social group cannot
5
1 alone define the group, which must exist independently of the
2 persecution.”) (quotation marks omitted).
3 Nor is there evidence that the gang targeted Lopez-Lopez
4 based on either her membership in the group or a political
5 opinion of hers, as opposed to its general criminal motives.
6 See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007)
7 (“When the harm visited upon members of a group is
8 attributable to the incentives presented to ordinary
9 criminals rather than to persecution, the scales are tipped
10 away from considering those people a ‘particular social
11 group’ within the meaning of the INA.”); see also Hernandez-
12 Chacon v. Barr, 948 F.3d 94, 101–02 (2d Cir. 2020) (upholding
13 BIA’s denial of social group claim because evidence did not
14 show that Salvadoran society perceived women who rejected
15 advances of gang members as being at greater risk than anyone
16 else who did not “comply with a gang member’s demands”).
17 For the same reasons, we conclude that Lopez-Lopez has
18 failed to establish her entitlement to withholding of
19 removal, which involves a higher burden of proof than does
20 entitlement to asylum. See Ramsameachire v. Ashcroft, 357
21 F.3d 169,178 (2004) (recognizing that because the withholding
22 of removal analysis involves a higher burden of proof, an
23 alien who fails to establish entitlement to asylum
6
1 necessarily fails to establish entitlement to withholding of
2 removal).
3 We do not reach Lopez-Lopez’s CAT claim because she does
4 not advance any arguments in support of it in her brief. See
5 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.
6 2005) (deeming CAT claim abandoned where petitioner failed to
7 address it in the opening brief).
8 For the foregoing reasons, the petition for review is
9 DENIED. All pending motions and applications are DENIED and
10 stays VACATED.
11
12 FOR THE COURT:
13 Catherine O=Hagan Wolfe, Clerk of Court
14
7 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482488/ | Cite as 2022 Ark. App. 454
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-590
VERONICA GAMBLE Opinion Delivered November 9, 2022
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. SEVENTEENTH DIVISION
[NO. 60CV-21-2822]
CAROL GAMBLE
APPELLEE HONORABLE MACKIE M. PIERCE,
JUDGE
AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Veronica Gamble appeals the judgment of the Pulaski County Circuit Court
dismissing her complaint after a bench trial finding she failed to establish by a preponderance
of the evidence that she was entitled to relief on her forgery claim. We affirm.
This pro se appeal involves a three-and-a-half-acre parcel of land deeded to appellee,
Carol Gamble, by her father, Elvin Gamble. Carol lived on the property and took care of
Mr. Gamble until his death in 2018. Mr. Gamble’s last will and testament appointed Carol
as the executor of his estate and ordered his entire estate be shared equally among his
beneficiaries, which included appellant, Veronica Gamble. Following Mr. Gamble’s death,
Carol probated the estate and was ordered to perform a title search to ensure Mr. Gamble
did not own any real estate at the time of his death. First National Title Company performed
the search and found that Mr. Gamble did not own any real estate at the time of his death,
and the land in question was vested in Carol by virtue of a warranty deed dated September
9, 2010.
On May 6, 2021, Veronica filed a complaint alleging Carol had forged Mr. Gamble’s
signature on the 2010 warranty deed, stating the forgery of the warranty deed was evidenced
by the use of an online legal form prepared by Carol, and tax records demonstrating that
from the time Mr. Gamble purchased the land until his death, he was the only person who
paid taxes on the property.
Veronica’s complaint was set for a bench trial on August 16, 2021, via Zoom, and
both parties appeared pro se. Veronica alleged that while Mr. Gamble was sick, Carol, as his
power of attorney, signed the warranty deed herself without Mr. Gamble’s knowledge, which
went against the express wishes of his will. Veronica asked the court to declare the deed void
and divide the land according to the will. Prior to the hearing, Veronica provided exhibits
to the Pulaski County court reporter in compliance with the circuit court’s Zoom hearing
procedures, and those exhibits were marked for purposes of the record. During argument at
the hearing, Veronica referenced the exhibits but never moved to introduce them into
evidence. On August 18, 2021, the circuit court entered an order dismissing Veronica’s
claim, and from that order comes this appeal.
Our standard of review following a bench trial is whether the circuit court’s findings
are clearly erroneous or clearly against the preponderance of the evidence. Williamson v.
Williamson, 2018 Ark. App. 236, 548 S.W.3d 816. A finding is clearly erroneous when,
2
although there is evidence to support it, the reviewing court on the entire evidence is left
with a definite and firm conviction that a mistake has been made. Id.
Veronica argues there was sufficient evidence to support her forgery claim as shown
bythe exhibits she provided to the Pulaski County court reporter. However, these exhibits
were never properly introduced into evidence. A litigant is required to offer an exhibit into
evidence for the court’s consideration, and only if the exhibit is admitted may it be
considered for evidentiary purposes. Although Veronica’s exhibits were marked by the court
reporter prior to the hearing, premarking an exhibit only indicates a reasonable expectation
to introduce the exhibit and does not replace the actual offering of the exhibit into evidence
at trial. Therefore, because Veronica’s exhibits were never properly introduced, the only
evidence the circuit court had to consider was Veronica’s testimony versus Carol’s testimony.
Pro se litigants are held to the same standards as licensed attorneys with respect to complying
with court rules. Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580. By failing to properly
introduce her exhibits into evidence, Veronica failed to meet her evidentiary standard; thus,
the circuit court’s decision to dismiss her complaint was not clearly erroneous.
Affirmed.
HARRISON, C.J., and MURPHY, J., agree.
Veronica Gamble, pro se appellant.
Terrence Cain, for appellee.
3 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482487/ | Case: 19-2454 Document: 93 Page: 1 Filed: 11/09/2022
United States Court of Appeals
for the Federal Circuit
______________________
ELFINA MCINTOSH,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
MERIT SYSTEMS PROTECTION BOARD,
Intervenor
______________________
2019-2454
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-17-0803-I-4.
______________________
Decided: November 9, 2022
______________________
PHILIP SHENG, Davis Polk & Wardwell LLC, Menlo
Park, CA, argued for petitioner. Also represented by
COREY M. MEYER, New York, NY.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ALLISON KIDD-
Case: 19-2454 Document: 93 Page: 2 Filed: 11/09/2022
2 MCINTOSH v. DEFENSE
MILLER.
STEPHEN FUNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
argued for intervenor. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, BRYSON, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
The Department of Defense removed Elfina McIntosh
from her position. Ms. McIntosh alleged she was removed
for protected whistleblowing activity. The Merit Systems
Protection Board sustained the removal and concluded that
the Department would have removed her even absent her
protected whistleblowing activity. She now challenges the
Board’s decision, arguing (1) that the Board’s administra-
tive judges are improperly appointed principal officers un-
der the Appointments Clause and (2) that substantial
evidence does not support the Board’s decision on her re-
moval. We affirm.
I
Elfina McIntosh was employed by the Department of
Defense Education Authority as a Program and Budget An-
alyst. In her role as a Contracting Officer’s Representative
(COR), Ms. McIntosh was responsible for approving travel
expenses for two government contracts. Generally, contrac-
tor employees would submit a travel request to the Pro-
gram Manager, Heather McIntosh-Braden (no relation to
Ms. McIntosh), who would then forward them to Ms. McIn-
tosh for review. Ms. McIntosh would ensure the requests
complied with Federal Travel Regulations and approve or
reject them.
Ms. McIntosh received a promotion around October
2016. Following her promotion, Ms. McIntosh’s superiors
Case: 19-2454 Document: 93 Page: 3 Filed: 11/09/2022
MCINTOSH v. DEFENSE 3
noted that her “demeanor degraded” and her “work ethic
deteriorated.” J.A. 887. The agency raised two repeated
problems with Ms. McIntosh’s job performance: refusal to
approve invoices and refusal to provide contract infor-
mation to her coworkers as directed.
First, in December 2016, Ms. McIntosh refused to ap-
prove a travel authorization request that was submitted to
her on the same day as the scheduled travel because she
believed she would need to change the start date for it to
be contractually appropriate. Her supervisor, Wayne Bos-
well, stated that this was an emergency circumstance and
that the request should be approved to prevent negative
impacts on the armed forces. He stated that if she would
not approve it, he would. Ms. McIntosh maintained that it
would be inappropriate for Mr. Boswell to do so because he
was not the designated COR, even though he was the Di-
rector of the Office of Financial Readiness.
This was not the only instance of Ms. McIntosh refus-
ing to approve invoices, as she also refused to approve in-
voices if she herself had not authorized the travel, even if
the travel had been authorized by others, like Mr. Boswell,
Ms. McIntosh-Braden, or the Contracting Officer Louis
Gilden. Mr. Boswell explained to Ms. McIntosh that the
contracting officer had informed him that he, as the Direc-
tor, and Ms. McIntosh-Braden, as the Program Manager,
could also approve travel requests. On February 8, 2017,
Mr. Boswell informed Ms. McIntosh that her refusal to re-
view and approve invoices amounted to a “refus[al] to per-
form [her] job requirements.” J.A. 1074. That same day,
Ms. McIntosh filed a grievance against Mr. Boswell, alleg-
ing that he had directed her to approve invoices she had
not authorized.
Second, Ms. McIntosh was asked, but repeatedly re-
fused, to provide detailed information about one of her as-
signed contracts to Mr. Boswell, Ms. McIntosh-Braden, and
her coworker, Andy Cohen, who had been asked to review
Case: 19-2454 Document: 93 Page: 4 Filed: 11/09/2022
4 MCINTOSH v. DEFENSE
the contract processes. Ms. McIntosh objected because “the
documents and information at issue were sensitive and
could only be shared on a need-to-know basis.” J.A. 15. Ms.
McIntosh also asserted that Mr. Cohen was not a COR on
the contract and so was not authorized to receive any infor-
mation about it. Mr. Boswell, as the Director, gave his au-
thorization. Ms. McIntosh filed more formal grievances on
these incidents, alleging that she was being forced to dis-
close unauthorized information and was harassed and be-
littled by Mr. Cohen and Mr. Boswell.
The agency investigated Ms. McIntosh’s grievances, in-
terviewing several of her co-workers and supervisors.
Ms. McIntosh did not respond to the investigator’s request
for an interview. Based on its investigation, the agency de-
nied Ms. McIntosh’s grievances on June 27, 2017, deter-
mining that the agency “did not create a hostile work
environment or violate any law, rule, or regulation, as al-
leged.” J.A. 258–59.
In February 2017, Mr. Boswell asked Ms. McIntosh to
send him her annual leave plan because she had significant
use-or-lose leave left over from 2016. In response,
Ms. McIntosh sent Mr. Boswell an email with “Tentative
Leave Dates” that “may be changed or modified,” including
March 27–April 3, 2017. J.A. 176.
On March 22, 2017, Ms. McIntosh sent Mr. Boswell an
email with the subject line “Sick Leave, 3-22” and no other
text. J.A. 1030. Mr. Boswell wished her a speedy recovery
but also found her absence curious because they had sched-
uled her performance review for that day, before Mr. Bos-
well’s imminent retirement. Mr. Boswell sought guidance
from Employee Relations, who advised that he could re-
quire Ms. McIntosh to submit medical documentation from
a licensed doctor that should “[i]nclude a statement that
the medical problem rendered her incapacitated for the
performance of her duties[.]” J.A. 1031. Mr. Boswell re-
quested the documentation.
Case: 19-2454 Document: 93 Page: 5 Filed: 11/09/2022
MCINTOSH v. DEFENSE 5
Ms. McIntosh again emailed in sick on March 23 and
24. She was also absent from work from March 27–April 4,
2017. She asserted that she had been granted that leave
after she sent Mr. Boswell the email with her tentative
leave dates. But Mr. Boswell asserted in his sworn state-
ment that, while he received that email, Ms. McIntosh
never submitted an actual leave request, nor did Mr. Bos-
well approve all the dates at issue. He also provided email
documentation that showed he had tried to contact Ms.
McIntosh about the tentative leave dates because he had
no active request for the leave in the attendance system.
Ms. McIntosh returned to work on April 5, by which
time Mr. Boswell had retired and Mr. Cohen had become
her supervisor. Upon her return, Ms. McIntosh submitted
a letter from her doctor that said she “should be excused
from work due to illness from 3/22/2017 through
3/24/2017.” J.A. 1035. Mr. Cohen, who had since been pro-
moted to replace Mr. Boswell, consulted Employee Rela-
tions and determined that the documentation was not
administratively acceptable. He requested further docu-
mentation and gave her 15 days to procure it. Ms. McIn-
tosh never provided the added documentation.
Upon returning to work on April 5, Ms. McIntosh went
to meet with John T. Hastings, her second-level supervisor,
to discuss her grievances. He directed her to meet with
Mr. Cohen, but she refused, reiterated her grievances, and
requested reassignment. She then emailed the contracting
officers of the two contracts she managed and told them to
remove her as COR immediately.
On the morning of April 6, Mr. Cohen sought to speak
with Ms. McIntosh, but she told him that he should email
her instead and left. She then went to Mr. Hastings’s office
to speak with him. After he asked her to wait a few mo-
ments as he finished a task, he turned to her. She re-
sponded, “[n]ever mind, I’ll handle it myself. I’m not doing
COR duties anymore.” J.A. 495. She then left and, on her
Case: 19-2454 Document: 93 Page: 6 Filed: 11/09/2022
6 MCINTOSH v. DEFENSE
way out, left three binders containing COR files on the desk
of Mr. Hastings’s executive assistant. She told Mr. Has-
tings that they were COR files and later emailed Mr. Cohen
to alert him that the files were in Mr. Hastings’s office for
his retrieval. Ms. McIntosh then emailed several people to
let them know she was leaving early because she was “in a
hostile work environment” and that, for her safety, she
“ha[d] advised Mr. Hasting[s] that I am going home.” J.A.
1047–48. She left at 8:47 am.
Mr. Cohen placed Ms. McIntosh on paid administrative
leave on April 7, 2017 and issued a Notice of Proposed Re-
moval on May 19, 2017. The Notice contained 22 specifica-
tions across four charges: 1) inappropriate conduct, 2)
failure to follow supervisory instructions, 3) absences with-
out leave (AWOL), and 4) lack of candor. The deciding offi-
cial, Ms. McIntosh’s third-level supervisor, Dr. Elizabeth
Van Winkle, sustained the removal, concluding that Ms.
McIntosh’s “lack of dependability and refusal to work with
team members” meant that management had lost “confi-
dence in [her] ability to perform [her] duties.” J.A. 123–24.
Ms. McIntosh’s removal became effective on August 18,
2017.
Ms. McIntosh appealed her removal to the Board. The
administrative judge sustained 18 of the agency’s 21 re-
maining specifications, across all four charges. 1 She found
that Ms. McIntosh largely did not dispute the actions sup-
porting the charges and that the sworn statements from
Ms. McIntosh’s supervisors, as well as emails and contem-
poraneous documents in the record, were more persuasive
than Ms. McIntosh’s evidence.
The administrative judge also considered Ms. McIn-
tosh’s whistleblower defense that the agency was
1 The agency withdrew one of the specifications. J.A.
1010.
Case: 19-2454 Document: 93 Page: 7 Filed: 11/09/2022
MCINTOSH v. DEFENSE 7
retaliating for the grievances she had filed alleging that
Mr. Boswell, Ms. McIntosh-Braden, and Mr. Cohen had vi-
olated federal contracting rules. She concluded that Ms.
McIntosh had met her burden, based on the knowledge-
timing test, of showing that her grievances, filed in early
2017, could be a contributing factor in the May 2017 re-
moval decision. But the administrative judge determined
that, under the Carr factors, the agency had established by
clear and convincing evidence that it would have removed
Ms. McIntosh even absent her disclosures, given the
“strength of the evidence against the appellant and the se-
riousness of the charges.” J.A. 42–44 (citing Carr v. Soc.
Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999)). Finally,
the administrative judge concluded that the agency’s pen-
alty of removal was reasonable and promoted the efficiency
of the service.
The administrative judge’s decision became final on
July 20, 2019. Ms. McIntosh appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II
Under 5 U.S.C. § 7703(c), we may reverse a Board de-
cision only if it is “(1) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or reg-
ulation having been followed; or (3) unsupported by sub-
stantial evidence.” Sistek v. Dep’t of Veterans Affs., 955
F.3d 948, 953 (Fed. Cir. 2020). The petitioner bears the bur-
den of establishing reversible error. Id.
We review the Board’s legal decisions de novo and its
findings of fact for substantial evidence. Salmon v. Soc.
Sec. Admin., 663 F.3d 1378, 1380 (Fed. Cir. 2011); Bolton
v. MSPB, 154 F.3d 1313, 1316 (Fed. Cir. 1998). Substantial
evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Simpson v. Off. of Pers. Mgmt., 347 F.3d 1361, 1364 (Fed.
Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
Case: 19-2454 Document: 93 Page: 8 Filed: 11/09/2022
8 MCINTOSH v. DEFENSE
197, 229 (1938)). We defer to the Board’s penalty determi-
nation “unless the penalty exceeds the range of permissible
punishments specified by statute or regulation, or unless
the penalty is ‘so harsh and unconscionably disproportion-
ate to the offense that it amounts to an abuse of discre-
tion.’” Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1576
(Fed. Cir. 1984) (quoting Power v. United States, 531 F.2d
505, 507 (Ct. Cl. 1976)).
III
A
Ms. McIntosh first argues that, under the Appoint-
ments Clause, the Board’s administrative judges are prin-
cipal officers and are therefore required to be appointed by
the President and confirmed by the Senate. Because the
administrative judge here was not appointed by the Presi-
dent and confirmed by the Senate, Ms. McIntosh contends
that her final decision is invalid. Appellant’s Br. 47. We
disagree.
The Appointments Clause provides that only the Pres-
ident, with the advice and consent of the Senate, can ap-
point principal officers. U.S. Const. art. II, § 2, cl. 2; United
States v. Arthrex, Inc., 141 S. Ct. 1970, 1979 (2021). For
inferior officers, the Clause permits Congress to vest ap-
pointment power “in the President alone, in the Courts of
Law, or in the Heads of Departments.” U.S. Const. art. II,
§ 2, cl. 2.
The Supreme Court has explained that “[w]hether one
is an ‘inferior’ officer depends on whether he has a supe-
rior,” and “‘inferior officers’ are officers whose work is di-
rected and supervised at some level by others who were
appointed by Presidential nomination with the advice and
consent of the Senate.” Edmond v. United States, 520 U.S.
651, 662–63 (1997). Edmond emphasized three factors for
distinguishing principal and inferior officers: (1) whether
an appointed official has the power to review and reverse
Case: 19-2454 Document: 93 Page: 9 Filed: 11/09/2022
MCINTOSH v. DEFENSE 9
the officers’ decision; (2) the level of supervision and over-
sight an appointed official has over the officers; and (3)
whether an appointed official has the power to remove the
officers without cause. See id. at 664–65; see also Intercol-
legiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d
1332, 1338 (D.C. Cir. 2012).
In United States v. Arthrex, Inc., the Supreme Court
determined that the administrative patent judges of the
Patent Trial and Appeal Board (PTAB), who are appointed
by the Secretary of Commerce and issue decisions on behalf
of the Executive Branch, were improperly appointed prin-
cipal officers because they had the “‘power to render a final
decision on behalf of the United States’ without any . . . re-
view by their nominal superior or any other principal of-
ficer in the Executive Branch.” 141 S. Ct. at 1981 (quoting
Edmond, 520 U.S. at 665). Ms. McIntosh contends that the
same problem exists with the Merit Systems Protection
Board’s administrative judges.
The Board’s structure and, in particular, how its ad-
ministrative judges are appointed and issue decisions, is
different from the PTAB. The MSPB itself is made up of
three members who are appointed by the President with
the advice and consent of the Senate, making them princi-
pal officers. 5 U.S.C. § 1201. The Board’s administrative
judges, who are appointed under the Board Chairman’s
general authority under 5 U.S.C. § 1204(j), adjudicate
cases and issue initial decisions under the Board’s appel-
late jurisdiction. See 5 U.S.C. § 7701(b)(1) (“The Board may
hear any case appealed to it or may refer the case to an . . .
employee of the Board designated by the Board to hear
such cases . . . .”). An administrative judge’s initial decision
becomes the final decision of the Board unless a party ap-
peals or the Board reopens the case on its own motion. Id.
§ 7701(e)(1). Thus, unlike the PTAB, an administrative
judge’s decision is subject to review by a principal officer,
in this case, the three member MSPB.
Case: 19-2454 Document: 93 Page: 10 Filed: 11/09/2022
10 MCINTOSH v. DEFENSE
Still, Ms. McIntosh argues that the Board’s adminis-
trative judges qualify as principal officers because “an ap-
pointed official . . . does not have the power to review and
reverse [their] decision[s] in cases that are not appealed to
the Board.” Appellant’s Br. 49 (citing 5 U.S.C. § 7701(a)-
(b)) (emphasis added). Ms. McIntosh is incorrect. Under 5
U.S.C. § 7701(e)(1)(B), the Board, whose members are prin-
cipal officers appointed by the President with the advice
and consent of the Senate, see 5 U.S.C. § 1201, may “reo-
pen[] and reconsider[] a case on its own motion.” 5 U.S.C.
§ 7701(e)(1)(B) (emphasis added). Review is not limited
only to cases in which a party appeals to the full Board.
Even “[o]ne member of the Board may grant a petition or
otherwise direct that a decision be reviewed by the full
Board.” Id. And the Board has discretion to determine
whether “unusual or extraordinary circumstances” war-
rant reopening the appeal. 5 C.F.R. § 1201.118. In contrast,
no principal officer had the power to review the final deci-
sions of administrative patent judges before the constitu-
tional remedy in Arthrex. See Arthrex, 141 S. Ct. at 1981.
Federal employees retain the unilateral ability to peti-
tion for the Board’s review of an administrative judge’s in-
itial decision, 5 U.S.C. § 7701(e)(1)(A); 5 C.F.R.
§ 1201.114(c), and so need not rely on the Board’s discre-
tion to obtain review. Upon review, the Board may “re-
verse, modify, or vacate” the administrative judge’s
decision. 5 C.F.R. § 1201.117. Moreover, “the board is free
to substitute its judgment for that of one of its presiding
officials.” Connolly v. U.S. Dep’t of Just., 766 F.2d 507, 512
(Fed. Cir. 1985). The statutes and related regulations show
that the Board maintains significant review authority over
administrative judges’ decisions, and the first and second
prongs of Edmond weigh in favor of concluding that the
Board’s administrative judges are not principal officers.
Case: 19-2454 Document: 93 Page: 11 Filed: 11/09/2022
MCINTOSH v. DEFENSE 11
B
Ms. McIntosh next argues that the Board Chairman
“lack[s] unfettered removal authority” to remove the
Board’s administrative judges, suggesting that they are
principal officers under the third Edmond prong. Appel-
lant’s Br. 50 (quoting Arthrex, Inc. v. Smith & Nephew,
Inc., 941 F.3d 1320, 1332 (Fed. Cir. 2019), vacated, 141 S.
Ct. 1970). While true that the Board’s administrative
judges can only be removed “for such cause as will promote
the efficiency of the service,” 5 U.S.C. § 7513(a), that fact
alone is insufficient to render them principal officers. In-
deed, in Arthrex, the same for-cause removal restriction ap-
plied to administrative patent judges, but the Supreme
Court ultimately held that the administrative patent
judges could properly be considered inferior officers, even
with the restriction on removal, as long as their decisions
were subject to review by a principal officer. Arthrex, 141
S. Ct. at 1985–87. To remedy the unconstitutional statu-
tory structure in Arthrex, the Supreme Court held unen-
forceable the provision of the America Invents Act that
shielded administrative patent judges’ decisions from Di-
rector review. Id. at 1987. This enabled the Director to “re-
view[] the decisions of the PTAB on his own.” Id. The Court
left in place the removal restrictions under 5 U.S.C. § 7513,
because, “regardless [of] whether . . . at-will removal by the
Secretary would cure the constitutional problem, review by
the Director better reflects the structure of supervision
within the PTO and the nature of [administrative patent
judges’] duties.” Id. The Court emphasized that “the Direc-
tor need not review every decision of the PTAB. What mat-
ters is that the Director have the discretion to review
decisions rendered by [administrative patent judges].” Id.
at 1988 (emphasis added).
Here, unlike the U.S. Patent and Trademark Office Di-
rector or the Secretary of Commerce, principal officers who
previously lacked the authority to review administrative
patent judges’ decisions, see Arthrex, 141 S. Ct. at 1978, the
Case: 19-2454 Document: 93 Page: 12 Filed: 11/09/2022
12 MCINTOSH v. DEFENSE
Board, a body of properly appointed principal officers, al-
ready has the discretion and authority to review adminis-
trative judges’ decisions sua sponte, see supra section III.A.
The Board’s statutory structure mirrors that of the PTAB
following the Arthrex remedy: the Board has the unfettered
authority to review decisions rendered by administrative
judges, and so even if the administrative judges are pro-
tected by the § 7513 removal standard, they are “subject to
the direction and supervision of an officer nominated by the
President and confirmed by the Senate,” just as adminis-
trative patent judges are following the Arthrex remedy. Ar-
threx, 141 S. Ct. at 1988. We hold that the Board’s
administrative judges are not principal officers.
C
Third, Ms. McIntosh argues that the administrative
judge’s decision violates the Appointments Clause because
no Board was in place throughout her case, meaning “what-
ever review authority or removal authority the Board has
over [administrative judges] is non-existent and inapplica-
ble as applied to Ms. McIntosh.” Appellant’s Reply Br. 26.
But Ms. McIntosh could have still petitioned for Board re-
view and had her decision reviewed once a quorum was es-
tablished, as explained at the end of the administrative
judge’s decision. Furthermore, this court recently consid-
ered this argument in another Board appeal and rejected
it:
The absence of a quorum . . . is a temporary
circumstance, not a structural defect result-
ing from statutory limitations on Board re-
view of administrative judges’ initial
decisions . . . . To be sure, the temporary ab-
sence of a quorum means that, at present, if
an employee seeks review by the Board, the
review will be delayed. But the delay, while
unfortunate, does not convert a
Case: 19-2454 Document: 93 Page: 13 Filed: 11/09/2022
MCINTOSH v. DEFENSE 13
constitutionally valid review process into a vi-
olation of the Appointments Clause.
Rodriguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1309
(Fed. Cir. 2021). We note that Board members have since
been nominated and confirmed, and a quorum has been re-
stored. Press Release, U.S. Merit Sys. Prot. Bd., MSPB
Welcomes Acting Chairman Cathy A. Harris (June 6, 2022),
https://mspb.gov/publicaffairs/press_releases/Cathy_Har-
ris_Press_Release_1930967.pdf.
D
Finally, Ms. McIntosh argues in her Reply Brief that
even if the Board’s administrative judges are inferior offic-
ers and not principal officers, they are still not properly ap-
pointed by the “President,” a “court[] of law,” or a “head[]
of department[]” as required by the Appointments Clause.
Appellant’s Reply Br. 28. The government argues that she
has doubly forfeited this challenge by not raising it before
the Board or in her opening brief.
Ms. McIntosh did not preserve this argument because
challenging the appointment of an inferior officer is a sep-
arate ground for reversal that she failed to raise in her
opening brief. “Our law is well established that arguments
not raised in the opening brief are” forfeited. Smithkline
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.
Cir. 2006) (citation omitted). We have found similar be-
lated Appointments Clause challenges forfeited following
our initial decision in Arthrex. See Customedia Techs., LLC
v. Dish Network Corp., 941 F.3d 1173, 1174 (Fed. Cir. 2019)
(concluding that Appointments Clause challenges not
raised in the opening brief are forfeited).
Even if the administrative judges are inferior officers,
any issues with their appointment have since been reme-
died. A quorum of the reconstituted Board, who qualify as
“heads of departments” under the Appointments Clause,
issued a Ratification Order on March 4, 2022 that ratified
Case: 19-2454 Document: 93 Page: 14 Filed: 11/09/2022
14 MCINTOSH v. DEFENSE
the prior appointments of administrative judges, “ap-
prov[ing] these appointments as our own under Article II
of the Constitution.” U.S. Merit Systems Protection Board
Ratification Order (Mar. 4, 2022), available at
https://www.mspb.gov/foia/files/AJ_Ratification_Order_3-
4-2022.pdf.
In sum, the Board’s administrative judges are not prin-
cipal officers under the Appointments Clause because the
Board retains the unfettered authority to review their de-
cisions under 5 U.S.C. § 7701(e)(1)(B), meaning they are
“subject to the direction and supervision of an officer nom-
inated by the President and confirmed by the Senate.” Ar-
threx, 141 S. Ct. at 1988. Ms. McIntosh’s Appointments
Clause challenge thus fails, and we turn to the merits.
IV
On the merits, Ms. McIntosh argues that substantial
evidence does not support the agency’s four charges against
her, or that the administrative judge committed legal error
in affirming said charges. We address each charge in turn.
A
Specification 1 of Charge 1 alleges that Ms. McIntosh
engaged in inappropriate conduct when she emailed con-
tractors unilaterally removing herself from her COR du-
ties. Ms. McIntosh contends that no evidence supports the
administrative judge’s conclusion, despite sworn state-
ments from Ms. McIntosh’s superiors that she had not been
authorized to remove herself from those duties and lacked
the authority to do so unilaterally. Ms. McIntosh does not
dispute that she sent the emails but defends that she sent
them in response to an email from Mr. Boswell with the
subject “Financial Readiness Leadership” that said, “effec-
tive 3 April [sic], Andy Cohen will . . . assume all duties in
overseeing program management and COR responsibili-
ties” relating to the two contracts Ms. McIntosh oversaw.
J.A. 171–72. She claims she read this email as stripping
Case: 19-2454 Document: 93 Page: 15 Filed: 11/09/2022
MCINTOSH v. DEFENSE 15
her of her COR duties. This reading strains credulity. As
the administrative judge noted, Mr. Boswell emailed sev-
eral people across the contracting group to advise them
that he was retiring and that Mr. Cohen would be taking
over his duties as Director—“[n]othing in that email ad-
dresses any change in the assigned COR or otherwise indi-
cates that [Ms. McIntosh] was relieved of her duties
concerning those contracts.” J.A. 6 & n.3. Substantial evi-
dence supports the administrative judge’s conclusion about
this specification.
Ms. McIntosh also challenges Specification 2 of Charge
1, which alleges that she engaged in inappropriate conduct
when she left three binders of sensitive COR files on the
public desk of Mr. Hastings’s executive assistant, refused
to speak to Mr. Hastings, and directed Mr. Cohen to re-
trieve the files. Ms. McIntosh does not dispute that the
binders contained sensitive information but asserts that
she left them with Mr. Hastings’s assistant in an office in
the Pentagon, “an undoubtedly secure place.” Appellant’s
Br. 39. Mr. Hastings provided a sworn statement that the
documents should have been left with Mr. Cohen, Ms.
McIntosh’s supervisor, who was responsible for overseeing
the contracts at issue. The administrative judge weighed
this sworn statement, corroborated by a contemporaneous
memorandum written by Mr. Hastings, against Ms. McIn-
tosh’s unsworn statement and determined that Mr. Has-
tings’s evidence was entitled to more weight, especially
because Ms. McIntosh had failed to make this argument in
her reply to the agency’s proposal notice. The administra-
tive judge concluded that, “[a]s it is undisputed that the
documents contained sensitive or proprietary information
regarding contracts within Mr. Cohen’s division,” prepon-
derant evidence supported the specification. J.A. 10–11.
Given that Ms. McIntosh knew the files were sensitive and
repeatedly refused to share them with others on that basis,
she should have known she could not leave them with
someone who was not authorized to view them. Ms.
Case: 19-2454 Document: 93 Page: 16 Filed: 11/09/2022
16 MCINTOSH v. DEFENSE
McIntosh asks us to reweigh the evidence on appeal, which
we cannot do. Rickel v. Dep’t of the Navy, 31 F.4th 1358,
1366 (Fed. Cir. 2022). Substantial evidence supports the
administrative judge’s conclusion about Charge 1, Specifi-
cation 2.
B
As to Charge 2, failure to follow supervisory instruc-
tions, Ms. McIntosh argues that, under 5 U.S.C.
§ 2302(b)(9)(D), the agency was forbidden from taking a
personnel action against her for “refusing to obey an order
that would require the individual to violate a law, rule, or
regulation.” In her view, her refusal to give COR docu-
ments to Mr. Cohen, because he was not the COR assigned
to the contract and therefore not authorized to receive that
information, was a protected action.
This argument is new on appeal—before the Board,
Ms. McIntosh cited only to a case that discussed how dis-
closing confidential information about “processes, opera-
tions, style of work, or apparatus” of contract offerors could
violate a criminal code. J.A. 906 (citing Kent v. GSA, 56
M.S.P.R. 536, 546–647 (1993)). But she never specifically
pointed to that criminal code or any “law, rule, or regula-
tion” that she was allegedly asked to violate in complying
with Mr. Boswell’s instructions to share the information
with Mr. Cohen and Ms. McIntosh-Braden. See J.A. 258
(Agency’s Response to Grievances finding Ms. McIntosh
failed to provide clarification about the allegations and that
Mr. Cohen “was in a need-to-know position”). Ms. McIntosh
now cites the COR Handbook in support—specifically, a
section that says CORs cannot use “following the boss’s or-
ders” as an excuse to approve unauthorized contract
changes. Appellant’s Br., 9, 33 (citing Dep’t of Def., COR
Handbook 57 (2012). But that Handbook was not in the rec-
ord below, and this argument was never made to the Board,
and so it is forfeited. Even if it were not, showing the COR
Case: 19-2454 Document: 93 Page: 17 Filed: 11/09/2022
MCINTOSH v. DEFENSE 17
files to Mr. Cohen as instructed would not have been an
unauthorized contract change.
Ms. McIntosh also cites to the COR Appointment Mem-
oranda, which state that a COR must “protect[] privileged
and sensitive procurement information.” J.A. 471. Even if
the COR Appointment Memoranda qualified as a “rule” she
was asked to violate under 5 U.S.C. § 2302(b)(9)(D), it was
“not a clear and direct violation” of the memoranda to pro-
vide the contracting information to Mr. Cohen. The Depart-
ment of Defense Instruction governing COR appointments
states that “COR files will be available for review by the
contracting officer, internal review officials, or other offi-
cials as authorized by the contracting officer.” J.A. 227 (em-
phasis added). Mr. Cohen was authorized by the Director,
Mr. Boswell, to review the documents and so he qualified
as an internal review official. It was not reasonable for Ms.
McIntosh to think she could not disclose the documents to
Mr. Cohen. Substantial evidence supports the administra-
tive judge’s finding that Ms. McIntosh failed to follow su-
pervisory instructions.
C
The agency charged Ms. McIntosh with multiple speci-
fications of being absent without leave (AWOL). Ms. McIn-
tosh argues that she was not AWOL on March 22–27, 2017,
as alleged by Specifications 1–3 of Charge 3, but that the
agency impermissibly converted her granted sick leave to
AWOL status. “To support a charge of AWOL, the agency
must show both that the appellant was absent and that ei-
ther the absence was not authorized or that a request for
leave was properly denied.” Cooke v. U.S. Postal Serv., 67
M.S.P.R. 401, 404 (1995), aff’d, 73 F.3d 380 (Fed. Cir.
1995).
Substantial evidence supports the administrative
judge’s conclusion that Ms. McIntosh was AWOL. She does
not dispute that she was not at work from March 22–24,
2017. Following her cursory email stating, “Sick Leave, 3-
Case: 19-2454 Document: 93 Page: 18 Filed: 11/09/2022
18 MCINTOSH v. DEFENSE
22,” Mr. Boswell sought guidance from Employee Rela-
tions, as directed by the regulation, as to what steps he
could take to verify her absence, given that it was taken
the day they had scheduled her last performance review
before his retirement. And Mr. Cohen, as Ms. McIntosh’s
supervisor, was within his authority to request additional
information, after he, in consultation with Employee Rela-
tions, found her initial medical note “not administratively
acceptable.” J.A. 24, 518. Mr. Cohen gave her 15 days to
acquire this new documentation, and she never provided it.
Thus, her sick leave was never authorized, and substantial
evidence supports the administrative judge’s sustaining of
these specifications.
For the first time on appeal, Ms. McIntosh raises the
agency’s leave regulations, which state:
Ordinarily, a medical certificate is not required for
[sick leave] absences of 3 days or less. When there
is reason to believe that an employee is misusing
sick leave, a medical certificate may be required for
all absences chargeable to sick leave, regardless of
the duration. This restriction can be imposed only
when the employee has first been specifically in-
formed of the requirement in advance. . . . Failure
to comply with these requirements may be the ba-
sis for denying sick leave and carrying an employee
in an AWOL status. When appropriate, discipli-
nary action may be taken for noncompliance. . . .
Contact the Personnel Center, Employee Relations
Section, for advice and guidance concerning leave
usage.
Dep’t of Def., DoDEA Regulation 5360.9 (Apr. 2, 1999),
available at https://www.dodea.edu/Offices/Policy-
AndLegislation/upload/5630_9.pdf. Ms. McIntosh argues
that she was never informed of this medical certification
requirement in advance, in violation of the regulation.
Ms. McIntosh never raised this regulation below, and so
Case: 19-2454 Document: 93 Page: 19 Filed: 11/09/2022
MCINTOSH v. DEFENSE 19
her argument is forfeited. Even if it were not, Mr. Cohen
consulted Employee Relations, as directed by the regula-
tion, and gave notice to Ms. McIntosh that he was seeking
more medical certification. Even with the 15 days he gave
her to obtain it, she never provided it.
Ms. McIntosh also challenges the administrative
judge’s sustaining of Specifications 4–10 of the agency’s
AWOL charges, regarding her absences on March 27–31
and April 3–4, 2017. She does not dispute that she was ab-
sent those days but contends that her “Tentative Leave
Dates” email from February 2017 included those dates and
that Mr. Boswell orally approved them before later revok-
ing his approval. Appellant’s Br. 35–36. But, as the Board
noted, Ms. McIntosh presented no evidence that she sub-
mitted an actual leave request or that it was approved—
while Mr. Boswell provided a sworn statement that she
never submitted an actual leave request and that he never
approved the dates at issue. J.A. 26–28. He also provided
contemporaneous email documentation showing that he
had informed Ms. McIntosh that there was no active leave
request in the system. Substantial evidence supports the
administrative judge’s sustaining of these specifications as
well.
D
As to Charge 4, lack of candor, Ms. McIntosh argues
that the charge cannot be sustained because there is no ev-
idence that she had any intent to deceive the agency when
she emailed agency officials telling them she had advised
Mr. Hastings that she was leaving for the day on April 6,
2017. But a lack of candor charge does not require an intent
to deceive. See Ludlum v. Dep’t of Just., 278 F.3d 1280,
1284 (Fed. Cir. 2002) (“Falsification involves an affirmative
misrepresentation, and requires intent to deceive. Lack of
candor, however, is a broader and more flexible concept
. . . . It may involve a failure to disclose something that, in
the circumstances, should have been disclosed in order to
Case: 19-2454 Document: 93 Page: 20 Filed: 11/09/2022
20 MCINTOSH v. DEFENSE
make the given statement accurate and complete.” (citation
omitted)). The administrative judge weighed Ms. McIn-
tosh’s inconsistent statements that she had either advised
Mr. Hastings that she was leaving, or that she had advised
him and that he concurred, against Mr. Hastings’s sworn
statement that he was never informed of, nor did he ap-
prove, her leaving that day. The administrative judge con-
cluded that Ms. McIntosh’s email “appears clearly
designed to imply that she had notified someone in the
agency when, in fact, the preponderant evidence indicates
that she left work without any authorization.” J.A. 31–32.
It is not for us to reweigh evidence on appeal. Substantial
evidence supports the administrative judge’s conclusion
that Ms. McIntosh lacked candor.
Because we conclude that each of the agency’s charges
are supported by substantial evidence, we defer to the judg-
ment of the agency and conclude that the penalty of re-
moval was not an abuse of discretion. Quinton v. Dep’t of
Transp., 808 F.2d 826, 829 (Fed. Cir. 1986).
E
Turning to Ms. McIntosh’s whistleblower reprisal de-
fense, she contends that the agency failed to prove by clear
and convincing evidence that she would have been removed
regardless of the grievances she had filed. In determining
whether the agency has met this burden, we consider the
three Carr factors: 1) the strength of the agency’s evidence
in support of its action, 2) the existence and strength of any
motive to retaliate on the part of the agency officials who
participated in the decision, and 3) any evidence that the
agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situ-
ated. Carr, 185 F.3d at 1323. The agency “need not produce
evidence with regard to each of these factors, nor must each
factor weigh in favor of the agency,” but we instead con-
sider the record as a whole and balance the factors to de-
termine whether substantial evidence supports the
Case: 19-2454 Document: 93 Page: 21 Filed: 11/09/2022
MCINTOSH v. DEFENSE 21
agency’s action. Robinson v. Dep’t of Veterans Affs., 923
F.3d 1004, 1019–20 (Fed. Cir. 2019).
Ms. McIntosh mostly contends that the administrative
judge’s Carr analysis was too brief, and therefore legally
insufficient. Appellant’s Br. 44. Ms. McIntosh also com-
plains that the administrative judge did not address the
third Carr factor.
On the first Carr factor, the administrative judge noted
that, most significantly, the agency had established its four
charges by preponderant evidence—“serious charges,
many with multiple specifications, and were often re-
peated.” J.A. 43. We have already concluded that substan-
tial evidence supports the administrative judge’s
determinations on these charges. Therefore, the evidence
and the first Carr factor strongly support the agency’s de-
cision to remove Ms. McIntosh.
As for the second Carr factor, the administrative judge
determined that the deciding official, Dr. Van Winkle, had
no retaliatory motive because she was never the subject of
any of Ms. McIntosh’s complaints. The administrative
judge also determined that Mr. Cohen had no motivation
to retaliate because Ms. McIntosh “provide[d] no evidence
of any disclosure she made that [he] engaged in activity in
violation of any law, rule or regulation or that he engaged
in gross mismanagement, a gross waste of funds,” or other
violations. J.A. 43. Ms. McIntosh did file a grievance, how-
ever, alleging that Mr. Cohen acted in a hostile and bellig-
erent manner toward her. While the administrative judge
thought these allegations did not show any motivation for
Mr. Cohen to retaliate, we take a different view. A personal
complaint about Mr. Cohen’s behavior could give rise to a
personal motive to retaliate. We do agree, however, that
Dr. Van Winkle likely had no motivation to retaliate, given
that she was never the subject of any grievances and be-
cause Ms. McIntosh admitted that the two had never inter-
acted. Therefore, the evidence for this factor is neutral.
Case: 19-2454 Document: 93 Page: 22 Filed: 11/09/2022
22 MCINTOSH v. DEFENSE
Finally, under the third Carr factor, Ms. McIntosh did
not identify any “similarly situated” individuals before the
Board, except in support of discrimination claims she has
waived on appeal. See J.A. 715–17, 896–901, 911–17. The
agency also did not identify any “similarly situated” indi-
viduals. J.A. 434. Because no pertinent evidence was pre-
sented on Carr factor three, it is effectively removed from
the analysis. Rickel, 31 F.4th at 1366 (citing Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012)).
Considering the record as a whole and balancing the
factors, we conclude that substantial evidence supports the
administrative judge’s determination that, “[b]ased on the
strength of the evidence against the appellant and the se-
riousness of the charges,” J.A. 43–44, the agency has met
its burden of showing it would have removed Ms. McIntosh
even absent her grievances.
V
We have considered Ms. McIntosh’s remaining argu-
ments but find them unpersuasive. Because the Merit Sys-
tems Protection Board’s administrative judges are not
principal officers, and because substantial evidence sup-
ports the Board’s decision on Ms. McIntosh’s removal, we
affirm.
AFFIRMED
COSTS
No costs. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482508/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Callins and Senior Judge Petty
UNPUBLISHED
CHARLES DARRELL PARKER, JR.
v. Record No. 1138-21-3
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES MEMORANDUM OPINION* BY
JUDGE DOMINIQUE A. CALLINS
ROBIN ANN STEELE-PARKER NOVEMBER 9, 2022
v. Record No. 1253-21-3
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Onzlee Ware, Judge
(Christian A. Persinger; Steidle Law Firm, on brief), for appellant
Charles Darrell Parker, Jr.1 Appellant submitting on brief.
(James P. Cargill, on brief), for appellant Robin Ann Steele-Parker.
Appellant submitting on brief.
(Timothy R. Spencer, City Attorney; Jennifer L. Crook, Assistant
City Attorney; Sarah Jane Newton, Guardian ad litem for the minor
children, on brief), for appellee. Appellee and Guardian ad litem
submitting on brief.
Charles Darrell Parker, Jr. (father) and Robin Ann Steele-Parker (mother) appeal the
judgment of the circuit court finding that their minor children, K.P., V.P., and Z.P., were abused or
neglected and granting emergency removal by the Roanoke City Department of Social Services
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
This case was decided without oral argument because the parties elected to waive oral
argument under Rules 5A:20(h) and 5A:21(h).
(“Department” or “DSS”) from their custody. Because the circuit court did not enter a
dispositional order in accordance with Code § 16.1-278.2, we lack jurisdiction to hear this
appeal.
BACKGROUND2
On April 23, 2020, one day after taking custody of the parents’ three minor children, DSS
petitioned the Roanoke City Juvenile and Domestic Relations District Court (JDR court) for the
emergency removal of the children under Code § 16.1-251. In its supporting affidavit, DSS alleged
“non-accidental trauma [to Z.P.], ongoing hostility and aggression by the parents, lack of
cooperation by the parents,” the parents’ previous involvement with Child Protective Services, and
domestic violence allegations against the parents. The same day, the JDR court entered an
emergency removal order for each of the three children, awarding temporary legal custody to DSS
and setting a preliminary removal hearing for April 30, 2020.
At the preliminary removal hearing, the JDR court entered a preliminary removal order
under Code § 16.1-252, granting DSS temporary custody and awarding the parents supervised
visitation. The JDR court also set the matters on separate dates for both adjudicatory and
dispositional hearings, respectively. On May 14, 2020, the JDR court adjudicated the children
abused or neglected under Code § 16.1-228, and on June 29, 2020, it entered dispositional orders
transferring custody to DSS pursuant to Code § 16.1-278.2, including approving foster care plans
with a goal of “Return Home.” Both mother and father appealed to the circuit court all JDR orders,
2
The record here was sealed. Nevertheless, the appeals require unsealing relevant
portions of the record to resolve the issues the parents have raised. Evidence and factual findings
below necessary to address the assignments of error are in this opinion. Consequently, “[t]o the
extent that this opinion mentions facts found in the sealed record, we unseal only those specific
facts, finding them relevant to the decision in this case. The remainder of the previously sealed
record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017).
-2-
including those adjudicating the children abused or neglected and those entered pursuant to Code
§ 16.1-278.2 and making an initial foster care placement.
After substantial delay due to several preliminary procedural matters, on July 22, 2021, the
circuit court held an evidentiary hearing on the de novo appeals. At the conclusion of the evidence,
the court directed the parties to submit their closing arguments in writing. Following submission of
the closing arguments, the circuit court entered an order on August 26, 2021. In its order, the circuit
court denied the respective motions to strike3 of mother and father and granted the Department’s
request for emergency removal. The sum of the court’s rulings was stated in the order as follows:
The Court thus finds that DSS has proven, by a
preponderance of the evidence, that the children are abused or
neglected under Code § 16.1-228. The evidence before the Court
shows severe physical injuries to [Z.P.] and the substantial risk of
death, disfigurement or impairment of bodily or mental functions for
[V.P.] and [K.P.]. Therefore, upon consideration of the argument,
motions, and briefs it is hereby ADJUDGED and ORDERED that:
1. Mr. Parker and Ms. Steele-Parker’s Motions to Strike are
DENIED.
2. [K.P.], [V.P.], and [Z.P.] are adjudged abused or neglected.
DSS’s request for Emergency Removal is GRANTED.
The children are ordered to remain in their foster care
placements.
The order also stated that the matter was stricken from the court’s “active docket” and remanded to
the JDR court. It is from this order that mother and father appeal. 4
3
Nothing in the record provides the substance of these motions. Yet, for the reasons
stated herein, this deficiency in the record is not pertinent to our decision.
4
Mother and father filed independent notices of appeal, but jointly moved this Court to
consolidate their appeals. We granted their motion to consolidate by order entered on December
9, 2021. For these reasons, we consider these matters together.
-3-
ANALYSIS
The parents argue that the circuit court erred by finding that the children were abused or
neglected and by finding that the evidence was sufficient to remove the children from the parents’
home pursuant to Code § 16.1-251. The parents also argue that the Department failed to make
reasonable efforts to avoid the emergency removal of the children.
Although neither party raises the issue, before considering the merits of an appeal, we must
first establish that we have jurisdiction to hear the appeal. Comcast of Chesterfield Cnty., Inc. v.
Bd. of Supervisors of Chesterfield Cnty., 277 Va. 293, 299 (2009); see also Chaplain v. Chaplain,
54 Va. App. 762, 767 (2009) (“The issue of subject matter jurisdiction may be raised sua sponte by
the Court.” (citation omitted)). This Court, by statute, is one of limited jurisdiction. We have
appellate jurisdiction, with limited exception, over “any final judgment, order, or decree of a
circuit court in a civil matter.” Code § 17.1-405(3).5 This includes jurisdiction over final
domestic relations orders entered under Titles 16.1 and 20. See Wells v. Wells, 29 Va. App. 82,
86 (1999). As a general matter, a final judgment or order “is one which disposes of the entire
action and leaves nothing to be done except the ministerial superintendence of execution of the
judgment.” Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560 (2002).
Matters concerning the safety, welfare and custodial placement of minor children involve
complex and nuanced proceedings the navigation of which is embosomed in statute. Code
§ 16.1-251, which governs emergency removal orders, allows for a child’s immediate custody
placement when it is alleged that the child is abused or neglected. The plain language of the
statute anticipates an immediate but temporary action. Within no later than five business days
5
This statute was most recently amended effective July 1, 2022. 2022 Va. Acts ch. 714.
When the parties noted this appeal, Code § 17.1-405 stated in relevant part, “Any aggrieved
party may appeal to the Court of Appeals from . . . [a]ny final judgment, order or decree of a
circuit court involving . . . [t]he control or disposition of a child.” Code § 17.1-403(3)(e)
(emphasis added).
-4-
after entry of the emergency removal order, a trial court must hold another temporary placement
hearing—a preliminary removal hearing. Code § 16.1-251(B); see also Code § 16.1-252(A)
(“The hearing shall be in the nature of a preliminary hearing rather than a final determination of
custody.”). At the end of the hearing, “the court shall determine whether the allegations of abuse
or neglect have been proven by a preponderance of the evidence.” Code § 16.1-252(G). Yet if
there is an appropriate objection to a court rendering a finding during the same hearing, the trial
court must docket an adjudicatory hearing on another date within thirty days of the preliminary
removal hearing. Id. Regardless of objection, where a trial court enters a preliminary removal
order finding a child abused or neglected and directs the child removed from the child’s home, “a
dispositional hearing shall be held pursuant to § 16.1-278.2.” Code § 16.1-252(H).
Code § 16.1-278.2 states that the dispositional hearing must be held within sixty days of a
preliminary removal hearing, though nothing in the statute precludes a hearing being held
simultaneous with or on the same day as the adjudicatory hearing.
At a dispositional hearing, under Code § 16.1-278.2, the court may
(1) enter an order under Code § 16.1-278 and order that services be
provided for the child; (2) permit the child to remain with his
parent, subject to conditions and limitations the court may order
with respect to the child, his parent, or another adult who occupies
the same dwelling; (3) prohibit or limit the contact between the
child and his parent or other adult occupant of the same dwelling;
(4) permit the local board of social services or other agency to
place the child in a suitable home or facility; (5) transfer custody to
a relative, a child welfare agency, private organization or licensed
facility, or to the local board of social services; (6) transfer legal
custody and order the parent to participate in services or programs
or refrain from certain conduct; or (7) terminate the rights of the
parent.
Blevins v. Prince William Cnty. Dep’t of Soc. Servs., 61 Va. App. 94, 99 (2012). Subsection D
states that an order entered pursuant to this statute is a final, appealable order.6
6
Our dissenting colleague argues that our analysis turns on an errant interpretation of
subsection D, and instead contends that a dispositional order “entered pursuant to” Code
-5-
We have recognized that although “a dispositional order is not a ‘final order’ in the
conventional sense of the term, i.e. one that ‘disposes of the whole subject’ and ‘leaves nothing
to be done,’ because Code § 16.1-278.2 contemplates the possibility of further review,” it is still
a final order for appeal purposes.7 Id. at 98; see also Code § 16.1-296(A) (“[O]rders entered
pursuant to § 16.1-278.2 are final orders from which an appeal may be taken.”). But to
constitute an appealable order, a final order must be one entered pursuant to Code § 16.1-278.2.
§ 16.1-278.2 must be appealed “in accordance with § 16.1-296.” Ostensibly, our colleague’s
position is that because Code § 16.1-296(A) authorizes de novo review from a JDR court to a
circuit court, this context should color our interpretation of Code § 16.1-278.2(D). We
respectfully disagree. It is Code § 16.1-278.2 that serves as context for Code § 16.1-296(A), as
much as it clarifies what qualifies as an appealable order to the circuit court. Yet Code
§ 16.1-278.2 binds JDR courts and circuit courts regarding dispositional orders. See
§ 16.1-278.2(A) (“[T]he juvenile court or the circuit court may make any of the following orders
of disposition to protect the welfare of the child.”). And, as Code § 16.1-296 governs the way
appeals taken pursuant to Title 16.1 may proceed, the language of Code § 16.1-278.2(D) extends
to orders appealed from the circuit court. See Code § 16.1-296(I) (“In all cases on appeal, the
circuit court in the disposition of such cases shall have all the powers and authority granted by
[Title 16.1] to the juvenile and domestic relations district court.”); see also Fairfax Cnty. Dep’t
of Fam. Servs. v. D.N., 29 Va. App. 400, 405 (1999) (“[T]he jurisdiction of the appellate court in
such matters is the same as that of the court in which the action was originally instituted.”
(quoting Addison v. Salyer, 185 Va. 644, 651 (1946))). To hold otherwise is to hold that the
circuit court is exempt from complying with Code § 16.1-278.2.
7
Our dissenting colleague is technically correct in stating that the order entered by the
circuit court disposed of the matter before it. Indeed, the circuit court struck the matter from its
docket and remanded it back to the JDR court. But this does not, as our colleague concludes,
render the circuit court’s last order a final, appealable order as the order does not properly
dispose of the matter before the circuit court. Code § 17.1-405(3) does not set the bounds of
what constitutes an appealable order, but rather defines this Court’s subject matter jurisdiction.
When such jurisdiction is invoked, we heed the imperative of Code § 16.1-278.2 that only “[a]
dispositional order entered pursuant to this section is a final order from which an appeal may be
taken in accordance with § 16.1-296.” Code § 16.1-278.2(D) (emphasis added). See also Byrd
v. Petersburg Dep’t of Soc. Servs., No. 0782-15-2, slip op. at 3 (Va. Ct. App. July 19, 2016)
(finding that this Court was without the jurisdiction to review an “adjudicatory” circuit court
order which, despite displacing a previous preliminary removal of the JDR decision, failed to
comply with the formal dispositional requirements provided in Code § 16.1-278.2(A)). “A
cardinal rule of statutory interpretation is that ‘[w]hen one statute addresses a subject in a general
manner and another addresses a part of the same subject in a more specific manner, the two
statutes should be harmonized, if possible, and when they conflict, the more specific statute
prevails.” Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 481 (2008) (alteration in original)
(quoting Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 439-40 (2005)).
-6-
And for an order to have been entered pursuant to the statute, the order must comply with the
statute. That is, to be an appealable order, the order must be a dispositional order. To be a
dispositional order, the order must satisfy the requirements of Code § 16.1-278.2(A).8
Here, the order entered by the circuit court on August 26, 2021, was not a dispositional
order. The order adjudicates de novo a finding of abuse or neglect, grants de novo the request of
DSS for emergency removal, and also states that “[t]he children are ordered to remain in their
foster care placements.” This last ruling about the children’s placement effectively affirms and
continues the JDR court order; it does not render a de novo disposition.9 Code § 16.1-278.2(A)
requires that a trial court affirmatively act in one of the ways specified within the statute. The
statement of facts submitted to the circuit court and endorsed by the circuit court judge does not
reflect that the parents, the GAL or DSS introduced evidence on the disposition issue. Assuming
without deciding that such evidence was presented and considered, we still hold that the circuit
court’s order that the children “remain in their foster care placements” falls short of the statutory
requirement that a trial court make a disposition at the end of a dispositional hearing. 10 Because the
8
Our holding here neither substantively nor effectively limits this Court’s jurisdiction to
circuit court orders that are correct, thereby barring review of erroneous orders. To the contrary,
the circuit court here did err in failing to render its order appealable by making a disposition
consistent with Code § 16.1-278.2.
9
It is axiomatic that on de novo appeal, the circuit court must proceed “as though the
case had been originally brought there.” Mahoney v. Mahoney, 34 Va. App. 63, 66 (2000) (en
banc). Where nothing in the record supports that the circuit court made an independent finding
in accordance with Code § 16.1-278.2 that the children’s “foster care placements” were
appropriate, the circuit court merely affirmed the ruling of the JDR court. See Fairfax Cnty.
Dep’t of Fam. Servs., 29 Va. App. at 406 (“A de novo hearing means a trial anew, with the
burden of proof remaining upon the party with whom it rested in the juvenile court.” (quoting
Parish v. Spaulding, 20 Va. App. 130, 132 (1995))).
10
My concurring colleague would go further and hold that the circuit court failed to
conduct the requisite dispositional hearing. This is an unnecessary postulation as, regardless, the
order is not a dispositional order and therefore we do not have jurisdiction to consider the matter
further. “[A]n appellate court decides cases ‘on the best and narrowest ground available.’. . .
Coupled with these principles of judicial prudence is the proposition that an appellate court may
-7-
circuit court did not make a disposition pursuant to Code § 16.1-278.2, the order is not a
dispositional order, and therefore not an appealable order. Thus, this Court does not have
jurisdiction to hear these appeals.
CONCLUSION
For these reasons, we hold that we lack jurisdiction to consider the merits of these appeals.
We dismiss the appeals and remand to the circuit court to make a disposition pursuant to Code
§ 16.1-278.2, from which further appeal may be taken as a party deems appropriate.11
Dismissed and remanded.
1
structure a decision on an ‘assuming but not deciding’ basis.” Podracky v. Commonwealth, 52
Va. App. 130, 134 (2008) (alterations in original) (quoting Luginbyhl v. Commonwealth, 48
Va. App. 58, 64 (2006)).
11
Our decision to dismiss with remand is a considered one, undertaken for the express
purpose of ensuring that neither parent is left without recourse.
-8-
Chaney, J., concurring in part, and concurring in the judgment.
I concur with the holding that this Court lacks jurisdiction to consider the merits of these
consolidated appeals. I also concur with the conclusions that “the circuit court did not enter a
dispositional order in accordance with Code § 16.1-278.2” and that the appealed circuit court order
“does not render a de novo disposition.” I also join the decision to dismiss the appeals and remand
the cases to the circuit court for further necessary proceedings.
I write separately because, in contrast with my colleague in the majority, I conclude that this
Court lacks jurisdiction over these appeals because (1) the order appealed from is not final in the
conventional sense nor deemed final by statute, see Code § 17.1-405 (limiting this Court’s
jurisdiction in any civil child abuse or neglect case to an appeal from a “final judgment, order, or
decree of a circuit court”),12 and (2) the circuit court failed to hold a de novo dispositional hearing—
a mandatory statutory precondition to the trial court’s power to enter a final dispositional order. See
Code § 16.1-278.2(A) (“[A] dispositional hearing shall be held if the court found abuse or neglect
and . . . removed the child from his home . . . .” (emphasis added)).
The August 2021 order appealed from the circuit court is not a final order because it merely
recorded the circuit court’s finding that the children were abused or neglected and granted DSS’s
petitions for emergency removal pursuant to Code § 16.1-251. In granting the emergency removal
petitions, the August 2021 order continued the children’s prior placement in foster care by the JDR
12
When these appeals were noted in September 2021, Code § 17.1-405(3)(e) provided that
“[a]ny aggrieved party may appeal to the Court of Appeals from . . . [a]ny final judgment, order, or
decree of a circuit court involving . . . [t]he control or disposition of a child.”
-9-
court.13 After entering the August 2021 order adjudicating the children abused or neglected and
authorizing their removal from their home, the circuit court was statutorily mandated to hold a
de novo dispositional hearing and enter a de novo dispositional order with a disposition for each
child. See Code § 16.1-278.2(A) (mandating a dispositional hearing where the court finds a child to
be abused or neglected and orders the child’s removal from the home); see also Code § 16.1-296(A)
(providing that any appeal to the circuit court from a final order of the JDR court “shall be heard
de novo.”). Because the circuit court has yet to hold a mandatory dispositional hearing and enter a
dispositional order for each child, I disagree with my colleagues’ conclusions that “the order
entered by the circuit court disposed of the whole matter before it.”14
Until and unless the circuit court holds a de novo dispositional hearing and enters a de novo
dispositional order with a disposition related to each child, this Court does not have jurisdiction over
appeals in these cases. This Court has recognized that a dispositional order in a civil child abuse or
13
The circuit court’s order also purports to remand the matter to the JDR court and to
strike the matter from its active docket. But the order is void ab initio because the circuit court
lacked the power to enter the order before entering a final judgment. Code § 16.1-297 only
authorizes such a remand to the JDR court “[u]pon the rendition of final judgment upon an
appeal from the juvenile and domestic relations district court.” Code § 16.1-297 mandates that
the trial court render final judgment as a necessary precondition to having the authority to
remand a child abuse-or-neglect matter to the JDR court for supervision under the terms of its
final order and judgment. Here, the circuit court’s unauthorized order remanding the cases to the
JDR court without rendering a final judgment is void ab initio because the circuit court is
adopting a mode of procedure that it cannot lawfully adopt and making a judgment the court had
no power to render. See Collins v. Shepherd, 274 Va. 390, 402 (2007) (“An order is void ab
initio, rather than merely voidable, if ‘the character of the judgment was not such as the court
had the power to render, or because the mode of procedure employed by the court was such as it
might not lawfully adopt.’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73
(1998))); Burrell v. Commonwealth, 283 Va. 474, 480 (2012); Rawls v. Commonwealth, 278 Va.
213, 221 (2009); Anthony v. Kasey, 83 Va. 338, 340 (1887).
The circuit court’s void ab initio order remanding the matter to the JDR court and
striking the matter from its docket did not fully dispose of the appeal from the JDR court because
“a void judgment[ ] . . . is no judgment at all. It is a mere nullity.” Gray v. Stuart, 74 Va. 351,
358 (1880); see also Singh v. Mooney, 261 Va. 48, 52 (2001).
14
My colleague in the majority contends that our dissenting colleague is “technically
correct” in stating that the circuit court “fully disposed of the appeal from the JDR court.”
- 10 -
neglect case is not a final order in the conventional sense, i.e., “one which disposes of the whole
subject, gives all the relief contemplated . . . and leaves nothing to be done in the cause save to
superintend ministerially the execution of the order.” Blevins v. Prince William Cnty. Dep’t of Soc.
Servs., 61 Va. App. 94, 98 (2012) (alteration in original) (quoting James v. James, 263 Va. 474, 481
(2002)). However, the General Assembly has deemed dispositional orders to be final, appealable
orders. See Code § 16.1-296(A) (“[O]rders entered pursuant to § 16.1-278.2 are final orders from
which an appeal may be taken.”); Code § 16.1-278.2(D) (“A dispositional order entered pursuant to
this section is a final order from which an appeal may be taken in accordance with § 16.1-296.”).
The General Assembly has also conditioned the circuit court’s authority to order a disposition for an
abused or neglected child on the circuit court’s holding a dispositional hearing to consider
dispositional alternatives and decide upon a disposition to protect the welfare of each child.15 See
Code §§ 16.1-278.2(A), -296(A). Thus, where a circuit court enters a dispositional order without
holding a de novo dispositional hearing, the circuit court employs a mode of procedure that it may
not lawfully adopt, rendering the dispositional order void ab initio. See Collins v. Shepherd, 274
Va. 390, 402 (2007) (holding that an order is void ab initio where “the character of the judgment
was not such as the court had the power to render, or because the mode of procedure employed
by the court was such as it might not lawfully adopt” (quoting Evans v. Smyth-Wythe Airport
Comm’n, 255 Va. 69, 73 (1998))).
Here, the record does not support a finding that the circuit court complied with the statutory
mandate in Code § 16.1-278.2(A) to hold a de novo dispositional hearing. The circuit court’s
August 2021 order and the written statement of facts endorsed by the circuit court recite, as the
record, the circuit court proceedings. According to this record, the circuit court held a bench trial
15
The circuit court is authorized to order any of the dispositional alternatives set forth in
Code § 16.1-278.2(A).
- 11 -
that addressed only the issues of abuse or neglect and emergency removal. At the trial, the circuit
court determined that DSS proved, by a preponderance of the evidence, that the children were
abused or neglected under Code § 16.1-228. At the conclusion of the trial, the circuit court granted
DSS’s petitions for emergency removal of the children. The trial adjudicating DSS’s abuse or
neglect allegations was the only proceeding held in the circuit court. This proceeding did not
include a dispositional hearing because the circuit court did not consider and decide upon a
disposition to protect the welfare of each child after their emergency placement.
After the trial in the circuit court, the parents appealed the circuit court’s non-final order to
this Court. Because our jurisdiction in child abuse or neglect cases is limited to appeals of final
orders, this Court has no jurisdiction over these appeals. See Code § 17.1-405; see also Byrd v.
Petersburg Dep’t of Soc. Servs., No. 0782-15-2, slip op. at 5-7 (Va. Ct. App. July 19, 2016)
(dismissing appeal upon holding that this Court had no jurisdiction where the circuit court entered
non-final adjudicatory orders and failed to hold a de novo dispositional hearing and enter de novo
dispositional orders pursuant to Code § 16.1-278.2). Therefore, this Court properly dismisses the
appeals and remands the cases to the circuit court for further necessary proceedings.16
16
As in Byrd, this dismissal is without prejudice for any party to file an appeal after the
circuit court has entered a final, appealable order. See Byrd, slip op. at 7 n.4. As in Byrd, it is
expected that “[a]s mandated by statute, a dispositional hearing will occur in this case. Once a
dispositional order is entered, [the parents] ha[ve] every right to appeal . . . to this Court . . . .” Id.
- 12 -
Petty, S.J., dissenting.
The order of the Circuit Court for the City of Roanoke from which these appeals were
taken disposed of the entire action before that court and left nothing further for that court to do.
Thus, it is a final order, and we have jurisdiction to decide these appeals. For this reason, I
dissent from the majority opinion.
The three children of Charles Parker and Robin Ann Steele-Parker were removed from
the home by the Roanoke City Department of Social Services (DSS) due to allegations of abuse
or neglect. After several preliminary hearings, and after making the findings required by the
statute, the Roanoke City Juvenile and Domestic Relations District Court (JDR court) entered
dispositional orders pursuant to Code § 16.1-278.2 on June 29, 2020. In those orders the JDR
court transferred custody of the children to DSS and scheduled a foster care review hearing for
October 29, 2020. Although the orders entered by the JDR court pursuant to Code § 16.1-278.2
were nominally interlocutory in nature, subsection (D) of that statute provides that such orders are
final orders from which an appeal may be taken in accordance with Code § 16.1-296. Code
§ 16.1-296(A) allows for the appeal of a dispositional order to the circuit court to be heard de novo.
Neither statute speaks to an appeal of a dispositional order from the circuit court to this Court.17
Parker and Steele-Parker availed themselves of their statutory right to appeal the
dispositional orders of the JDR court, and a trial de novo was held in the circuit court on July 22,
2021. On August 26, 2021, the circuit court entered a final order finding that the children were
abused or neglected, granting DSS’s request for emergency removal, and ordering that the children
remain in their foster care placements. Furthermore, the order remanded the matter back to the JDR
court and struck the matter from the court’s active docket. It is from that order that Parker and
17
Code § 16.1-296(D) addresses an appeal to this Court of an order terminating parental
rights pursuant to Code § 16.1-283. That subsection is not involved in this appeal.
- 13-
Steele-Parker noted their appeals to this Court invoking our jurisdiction pursuant to Code
§ 17.1-405(3)(e).18
The majority correctly notes that a final judgment or order “is one which disposes of the
entire action and leaves nothing to be done except the ministerial superintendence of execution
of the judgment.” Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560 (2002). In
finding that the circuit court order fails to do so, I believe that the majority errs in two respects.
First, the majority erroneously relies upon the language of Code § 16.1-278.2(D) in its
conclusion that only an otherwise proper dispositional order can be appealed to this Court. That
subsection states, “[a] dispositional order entered pursuant to this section is a final order from
which an appeal may be taken in accordance with Code § 16.1-296.” Contrary to the majority’s
analysis, however, Code § 16.1-296 only permits an appeal from the JDR court to the circuit
court.
From any final order or judgment of the juvenile court affecting
the rights or interests of any person coming within its jurisdiction,
an appeal may be taken to the circuit court within 10 days from the
entry of a final judgment, order or conviction and shall be heard de
novo.
Code § 16.1-296(A).
Accordingly, I do not believe that either Code § 16.1-278.2(D) or Code § 16.1-296(A)
have anything to do with this appeal. The only question before us is whether the order entered
by the circuit court disposed of the entire action before it.
And this is where I see the second error in the majority’s analysis. The majority argues
that to constitute an appealable order, “the order must be a dispositional order” and that “[t]o be a
That statute, as it existed at the time of these appeals, provided that “[a]ny aggrieved
18
party may appeal to the Court of Appeals from . . . [a]ny final judgment, order, or decree of a
circuit court involving . . . [t]he control or disposition of a child.” Code § 17.1-405(3)(e) (2020
Repl. Vol.).
- 14 -
dispositional order, the order must satisfy the requirements of Code § 16.1-278.2(A).” That
simply cannot be correct. It would mean that the order is appealable to this Court only if the
circuit court got it right. Errors that fail to satisfy the requirements of the statute would be
immune from appellate review. For purposes of determining the finality of the circuit court’s
order, and thus our jurisdiction, I believe we ignore the findings and holdings it recites and look
only to whether it fully disposed of the appeal from the JDR court. This order, whether correct
or not, did exactly that. Simply put, there is nothing further the circuit court was authorized to
do regarding the appeal. Thus, I believe it is a final order over which we have jurisdiction, and
we should decide this case on the merits.
For all these reasons, I would proceed to decide these appeals on the merits.
Accordingly, I dissent from the majority opinion.
- 15 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482500/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
REVOLUTION RENTALS DE, LLC, )
)
Plaintiff, )
)
v. ) C.A. No. K21C-08-007 NEP
)
ANDREW R. POMERLEAU and )
AMANDA L. ANDERSON, )
)
Defendants. )
Submitted: August 3, 2022
Decided: November 4, 2022
MEMORANDUM OPINION AND ORDER
Upon Defendants’ Motion to Dismiss
GRANTED
Catherine Di Lorenzo, Esquire, Stern & Eisenberg Mid-Atlantic, PC, Newark,
Delaware, Attorney for Plaintiff.
Donald L. Gouge, Jr., Esquire, Donald L. Gouge, Jr., LLC, Wilmington, Delaware
Attorney for Defendants.
Primos, J.
Before this Court is the motion to dismiss of Defendants Andrew Pomerleau
and Amanda Anderson (hereinafter “Defendants”). This action was originated by
Revolution Rentals DE, LLC (hereinafter “Plaintiff”) in the Justice of the Peace
Court (hereinafter “JP Court”). Defendants contend that dismissal is warranted
because Plaintiff was required to file in this Court within 60 days of the JP Court’s
order transferring the case to the Superior Court and failed to do so. For the reasons
set forth below, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
This debt action arises from allegations of breach of contract and damages to
a rental unit.1 The facts and procedural history relevant to this motion to dismiss are
undisputed.
Plaintiff initiated these proceedings in JP Court on September 2, 2020.2
Defendants requested a jury trial and, in light of the JP Court’s inability to hold a
jury trial in a matter of this nature, filed a motion to transfer the case to Superior
Court.3 The JP Court initially denied the motion, stating that “[t]here is no avenue
for a case filed in JP Court to move directly to Superior Court for a trial by jury.” 4
Upon reargument, however, the JP Court concluded that “the demand for a jury trial
has removed the case from Justice of the Peace Court jurisdiction” and that it could
therefore transfer the case to Superior Court pursuant to 10 Del. C. § 1902,5 which
allows cases to be transferred between courts in the Delaware court system when the
initial court lacks subject matter jurisdiction.6 The transfer order, dated June 10,
1
Compl. (D.I. 1) at 2 ¶ 5.
2
Id. ¶ 6.
3
Defs.’ Mot. to Dismiss Pl.’s Compl. (D.I. 13) Ex. A [hereinafter “JP Court Docket”] at 2.
4
Id.
5
Resp. in Opp’n to Defs.’ Mot. to Dismiss Ex. A (D.I. 16) [hereinafter “June 10, 2021 Order”] at
1.
6
10 Del. C. § 1902 provides in full:
No civil action, suit or other proceeding brought in any court of this State shall be
dismissed solely on the ground that such court is without jurisdiction of the
2
2021, stated that “Plaintiff has 60 days to file its action in Superior Court or this
action will be dismissed with prejudice 60 days from the signing of this order.”7
Plaintiff did not file within the 60-day period, which expired on August 9,
2021. On August 10, 2021, Plaintiff filed a complaint in this Court. On the same
day, Defendants moved to dismiss the proceeding in JP Court with prejudice.8 On
August 11, 2021, the JP Court dismissed the action with prejudice because of
Plaintiff’s failure to act within 60 days.9 Plaintiff filed a Motion for Relief and a
Written Election of Transfer with the JP Court, also on August 11, 2021.10 However,
on August 20, 2021, the JP Court found that:
[T]hrough the Plaintiff’s own admission, they have not acted on the
order until the 61st day. Furthermore, a reasonable person would not
wait until the 61st day to establish a procedural argument that the
subject matter, either in the original proceeding or on appeal. Such proceeding
may be transferred to an appropriate court for hearing and determination, provided
that the party otherwise adversely affected, within 60 days after the order denying
the jurisdiction of the first court has become final, files in that court a written
election of transfer, discharges all costs accrued in the first court, and makes the
usual deposit for costs in the second court. All or part of the papers filed, or copies
thereof, and a transcript of the entries, in the court where the proceeding was
originally instituted shall be delivered in accordance with the rules or special orders
of such court, by the prothonotary, clerk, or register of that court to the
prothonotary, clerk or register of the court to which the proceeding is transferred.
The latter court shall thereupon entertain such applications in the proceeding as
conform to law and to the rules and practice of such court, and may by rule or
special order provide for amendments in pleadings and for all other matters
concerning the course of procedure for hearing and determining the cause as justice
may require. For the purpose of laches or of any statute of limitations, the time of
bringing the proceeding shall be deemed to be the time when it was brought in the
first court. This section shall be liberally construed to permit and facilitate
transfers of proceedings between the courts of this State in the interests of
justice (emphasis supplied).
7
June 10, 2021 Order at 2.
8
JP Court Docket at 2. Defendants’ counsel represented at oral argument that the timing was
coincidental and that he was not yet aware of the action in this Court when he moved to dismiss
the action in JP Court. Tr. of Zoom Oral Arg. at 28:11–16.
9
Resp. in Opp’n to Defs.’ Mot. to Dismiss Ex. B (D.I. 17) [hereinafter “August 11, 2021 Order”]
at 1.
10
JP Court Docket at 1.
3
judge’s order is invalid because it should have considered the case’s
rightful 15-day window to file an appeal. . . . This matter remains
dismissed with prejudice.11
On May 16, 2022, Defendants filed a motion to dismiss this action for lack of
subject matter jurisdiction pursuant to Superior Court Rules of Civil Procedure
12(b)(1) and 12(h)(3).12 On May 31, 2022, Plaintiff filed a Response opposing the
motion to dismiss.13 The Court held oral argument on the motion on July 8, 2022,
and the matter was submitted for decision on August 3, 2022.
PARTIES’ CONTENTIONS
Defendants argue that the case must be dismissed because Plaintiff took no
action within the 60-day period provided for in 10 Del. C. § 1902 and in the JP
Court’s June 10, 2021, order. Specifically, Plaintiff was required to and did not 1)
file an election of transfer in the JP Court14; and 2) file the action in this Court.15
Defendants assert that the complaint should be dismissed with prejudice, but note
that if it is dismissed without prejudice, Plaintiffs could seek leave to assert these
causes of action as counterclaims in pending litigation between the parties in the
Court of Common Pleas.16
Plaintiff seeks to prevent dismissal by arguing, in essence, that the Court
should excuse its failure to file within 60 days because it was “an inadvertent
mistake” by a pro se litigant.17 Plaintiff argues two primary points in support of its
11
Id.
12
Defs.’ Mot. to Dismiss Pl.’s Compl. (D.I. 13) [hereinafter “Mot. to Dismiss”].
13
Resp. in Opp’n to Defs.’ Mot. to Dismiss (D.I. 15) [hereinafter “Response”].
14
While the Motion to Dismiss states that Plaintiff “failed to submit a written order to create a
final judgment for transfer purposes,” Mot. to Dismiss at 3, ¶ 14, Defendants’ counsel clarified at
oral argument that the required filing is actually called an “election of transfer.” Oral Arg. Tr. at
11:12–15, 13:9–19.
15
Mot. to Dismiss at 4, ¶ 15.
16
Id. ¶ 17.
17
Tr. of Zoom Oral Arg. at 16:22–17:2. Plaintiff retained counsel shortly before filing in this
Court.
4
opposition to dismissal: 1) 10 Del. C. § 1902 expressly provides that it “shall be
liberally construed to permit and facilitate transfers of proceedings between the
courts of this State in the interests of justice”18; and 2) the JP Court should not have
relied on 10 Del. C. § 1902 to transfer this action because it had subject matter
jurisdiction.19
ANALYSIS
As the foregoing discussion shows, this matter is before this Court in an
unusual procedural posture. Defendants move to dismiss, invoking Superior Court
Civil Rules 12(b)(1) and 12(h)(3), which call for dismissal when the Superior Court
lacks subject matter jurisdiction. Plaintiff’s arguments call into question both the JP
Court’s decision to rely on 10 Del. C. § 1902 and the manner in which it was applied.
At the outset, it is important to clarify that this action is not an appeal of the JP
Court’s orders: the appropriate forum for appellate review of orders of the JP Court
would be on appeal to the Court of Common Pleas (hereinafter “CCP”) pursuant to
10 Del. C. § 9571.20 What Plaintiff seeks is for this Court to accept a transfer of this
action from JP Court, even though the JP Court ordered that it be dismissed with
prejudice if untimely filed. Thus understood, this is not a question of this Court’s
jurisdiction. Rather, the precise issue before this Court is whether Plaintiff
successfully effectuated a transfer of this action from the JP Court to the Superior
Court pursuant to 10 Del. C. § 1902 and the JP Court’s order, which is, for reasons
explained below, the law of the case. The Court finds that Plaintiff has failed to do
18
Resp. ¶¶ 12 and 20; Tr. of Zoom Oral Arg. at 16:4–6.
19
Resp. ¶¶ 6 and 18.
20
The JP Court’s June 10, 2021, order most likely would have been unappealable as an
interlocutory order. See Plant v. State ex rel. Sims, 801 A.2d 11, 2002 WL 1472245, at *1 (Del.
2002) (TABLE) (“The Superior Court’s order transferring jurisdiction to the Court of Chancery
is, by its terms, interlocutory in nature because it is not a final ruling on the merits of the underlying
controversy.”). However, following the dismissal with prejudice on August 11, 2021, the
appropriate avenue to seek de novo review of the JP Court’s rulings would have been on appeal to
the CCP, not on attempted transfer to this Court.
5
so and will thus leave undisturbed the JP Court’s dismissal with prejudice.
Accordingly, Defendants’ motion to dismiss shall be granted and the action
dismissed with prejudice.
1. Liberal Construction of 10 Del. C. § 1902 Does Not Excuse the 60-Day Time
Limit
Plaintiff argues that the Court should allow the filing on the 61st day because
it was only one day late and 10 Del. C. § 1902, by its own terms, “shall be liberally
construed to permit and facilitate transfers of proceedings between the courts of this
State in the interests of justice.” However, what Plaintiff asks for is not a liberal
construction of the statute, but outright excusal of an explicit time limit stated in the
statute and in the JP Court order.
Case law interpreting the liberal construction provision sheds light on what a
liberal construction of the statute can, and cannot, accommodate. The Delaware
Supreme Court explained in Wilmington Trust Company v. Schneider that 10 Del.
C. § 1902 is “a remedial statute designed to prevent a case from being totally ousted
because it was brought in the wrong Court.”21 In Schneider, the Court addressed
whether the 60-day period continued to run pending appeal of the trial court’s order
dismissing the case subject to the plaintiff’s right to transfer.22 On appeal, the
defendant specifically challenged the plaintiff’s right to transfer, and the plaintiff
defended the appeal without initiating the transfer process. “In view of the
legislative policy declared” in Section 1902, the Court concluded that a plaintiff
should not be “barred because of his failure to take further actions to perfect a
transfer while his opponent actively pursues an attack upon the capability of the
party to undertake the transfer at all.”23
21
342 A.2d 240, 242 (Del. 1975).
22
Id. at 241–42.
23
Id. at 242. The language that is now § 1902 was in § 1901 at the time Schneider was decided.
Admiral Holding v. Town of Bowers, 2004 WL 2744581, at *2 n.9 (Del. Super. Oct. 18, 2004).
6
Other cases have expanded on Schneider’s reasoning in the context of
pending appeals to the Supreme Court. In Benge v. Oak Grove Motor Court, Inc.,
the plaintiff filed a motion to transfer 55 days after the Supreme Court affirmed the
Chancery Court’s ruling that he “had filed suit in the wrong court” but several
months after the Chancery Court’s initial order dismissing the case subject to the
plaintiff’s right to transfer.24 The Vice Chancellor held that the 60-day period began
upon the Delaware Supreme Court’s affirmance of the Chancery Court’s dismissal
order, rather than upon the issuance of the original order.25 The plaintiff’s motion to
transfer to Family Court was thus held timely because it was within 60 days of the
Supreme Court’s order dismissing the appeal.26 More recently, in Olga J. Nowak
Irrevocable Trust v. Voya Financial, Inc., this Court considered whether it could
grant a motion to transfer when the election of transfer was filed with the Superior
Court while an appeal was already pending with the Delaware Supreme Court.27
Analyzing Benge and Schneider, the Court concluded that “granting the motion to
transfer fulfills the statutory direction to liberally construe § 1902 to permit and
facilitate transfers.”28
Unlike the aforementioned cases, here there is no pending appeal, or any
other procedural contingency, to call into question when the 60-day statutory period
began or ended. The 60-day countdown was initiated by the JP Court’s order on
24
2006 WL 2588934, at *1 (Del. Ch. Aug. 30, 2006).
25
Id. at *3 (“Here, even though Benge did not follow the proper procedures to seek interlocutory
review of what is ordinarily a non-appealable order, this State’s highest court accepted his appeal,
and placed itself in the position of having the power to reverse my ruling and permit Benge to
proceed with his case here. As a result, I cannot find that my earlier order was final in the sense of
being the decisive ruling contemplated by § 1902.”).
26
Id. at *4.
27
2021 WL 3700815, at *1 (Del. Super. Aug. 20, 2021).
28
Id. at *2–3.
7
June 10, 2021, and ended on August 9, 2021.29 Plaintiff’s contention is essentially
that the Court should liberally construe “60 days” in effect to mean “61 days” or
“roughly 60 days.” However, Plaintiff identifies no case law supporting the Court’s
authority to simply excuse the time limit, nor has the Court identified any in its own
review.
The Court finds instructive the opinions of the Master in Chancery and Vice
Chancellor in Wells Fargo Bank, NA v. Strong.30 There, as here, the party required
to transfer the case “failed to follow the direct order” of the transferring court and
“also failed to abide by the plain language of Section 1902” because it did not deposit
the required costs in the second court within 60 days.31 Citing Schneider for the
proposition that § 1902 is meant to prevent cases from being dismissed merely on
account of initial filing in the wrong court, the Master in Chancery nevertheless
concluded that “[t]he remedy was properly applied by the Superior Court in this
case” because the party was “given the opportunity . . . to transfer its case to the
Court of Chancery.”32 The party’s failure to complete the process of effectuating the
transfer, not its initial mistake of filing the case in the wrong court, was the basis for
the dismissal.
The Vice Chancellor affirmed, noting that “the Plaintiff does not suggest a
construction of the statute with which it has complied” and that the liberal
“construction” sought would effectively “write the 60–day transfer requirement
29
See Lorenzetti v. Hodges, 2012 WL 1410103, at *3 n.7 (Del. Super. Jan. 27, 2012) (“The transfer
period runs from the date of an order denying the jurisdiction of the first court.”); J.P. Ct. Civ. R.
6(a) (“In computing any period of time prescribed or allowed by these Rules[,] by order of Court,
or by any applicable statute, the day of the act, event, or default from which the designated period
of time begins to run shall not be included unless specifically included by statute, order or rule.”).
30
Wells Fargo Bank, NA v. Strong (“Wells Fargo I”), 2014 WL 3530829 (Del. Ch. July 15,
2014), exceptions denied Wells Fargo Bank, NA v. Strong (“Wells Fargo II”), 2014 WL 6478788
(Del. Ch. Nov. 19, 2014).
31
Wells Fargo I at *3.
32
Id.
8
completely out of Section 1902.”33 Like the plaintiff in Wells Fargo, Plaintiff here
has failed to offer a plausible construction of the statute with which it has complied.
In fact, Plaintiff is even further from compliance than the plaintiff in Wells Fargo,
which at least timely filed an election of transfer in the transferring court and only
failed to follow through in the transferee court. In sum, this case was not timely
transferred to the Superior Court under 10 Del. C. § 1902.34
2. The JP Court’s Transfer Order is the Law of the Case and Compels
Dismissal with Prejudice
While 10 Del. C. § 1902 does not call for a specific result in light of an
untimely attempt at transfer, the Court must also consider the effect of the JP Court’s
June 10, 2021, order. Three aspects of that order are important to the disposition of
this matter, and the Court will address each in turn. The JP Court 1) concluded that
transfer via 10 Del. C. § 1902 was appropriate because the Defendants’ demand for
a jury trial deprived it of jurisdiction; 2) ordered Plaintiff to file in this Court within
60 days; and 3) stated that failure to do so would result in dismissal of the action
with prejudice. The Court concludes that this order is the law of the case and that
the action must therefore be dismissed with prejudice.
Law of the case doctrine serves as “a form of intra-litigation stare decisis”35
and “is founded on the principles of efficiency, finality, stability and respect for the
judicial system.”36 In Preston Hollow Capital LLC v. Nuveen LLC, this Court stated
that “[o]nce a matter has been addressed in a procedurally proper way by a court, it
is generally held to be the law of that case and will not be disturbed by that court
33
Wells Fargo II, 2014 WL 6478788, at *4 (Del. Ch. Nov. 19, 2014).
34
See Johnson v. Div. of Child Prot. Servs., 560 A.2d 490, 1989 WL 42310, at *1 (Del. 1989)
(TABLE) (declining to hear an appeal from Family Court after no action was taken within 60 days
of the Superior Court’s granting leave to transfer the appeal to the Supreme Court).
35
Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 WL 5278913, at *7 (Del. Ch. Sept. 10,
2015).
36
Cede & Co. v. Technicolor, Inc., 884 A.2d 26, 39 (Del. 2005).
9
unless a compelling reason to do so appears.”37 The doctrine requires trial judges to
respect prior rulings made within the same “continuous action within the same court
system,”38 including rulings made by a different trial judge.39 Where rulings of a
prior judge in the same case are at issue, law of the case is “founded upon additional
considerations of courtesy and comity.”40 There are three recognized exceptions to
law of the case: a trial court should reconsider a prior decision only when it is
“clearly wrong, produces an injustice or should be revisited because of changed
circumstances.”41
When a case is transferred via 10 Del. C. § 1902, the transferee court should
apply law of the case doctrine to rulings of the transferring court.42 For example, in
Preston Hollow, this Court concluded that law of the case doctrine extended to
decisions made by the Court of Chancery prior to the case’s transfer to Superior
Court via 10 Del. C. § 1902.43 The Court explained that “[a]lthough the docket
numbers and judicial officers are different, such a transfer does not create an entirely
new action.”44 Thus, the Court concluded that “[f]or purposes of law of the case, the
prior rulings of the Court of Chancery are treated as if they were made by a Superior
Court judge.”45 Likewise, this Court will treat prior rulings of the JP Court in this
37
2020 WL 7365808, at *5 (Del. Super. Dec. 15, 2020) (quoting Zirn v. VLI Corp., 1994 WL
548938, at *2 (Del. Ch. Sept. 23, 1994)).
38
Id. (quoting Carlyle, 2015 WL 5278913, at *8 (Del. Ch. Sept. 10, 2015)); see also State v.
Wright, 131 A.3d 310, 321 (Del. 2016) (“The law of the case is established when a specific legal
principle is applied to an issue presented by facts which remain constant throughout the subsequent
course of the same litigation.” (quoting Hoskins v. State, 102 A.3d 724, 729 (Del. 2014))).
39
Wright, 131 A.3d at 321 (“[A] trial court’s previous decision in a case will form the law of
the case for the issue decided.”).
40
Preston Hollow, 2020 WL 7365808, at *5 (quoting Frank v. Carol, 457 A.2d 715, 719 (Del.
1983)).
41
Wright, 131 A.3d at 322 (quoting Hoskins, 102 A.3d at 729).
42
See e.g. Otto Candies, LLC v. KPMG LLP, 2019 WL 994050, at *6–7 (Del. Ch. Feb. 28, 2019)
(treating prior rulings by the Superior Court, made prior to transfer, as law of the case).
43
2020 WL 7365808, at *6.
44
Id.
45
Id.
10
action as though they were made by the Superior Court.
Applicability of 10 Del. C. § 1902
Plaintiff argues that the JP Court had subject matter jurisdiction and thus
should not have relied on 10 Del. C. § 1902. However, this argument fails for three
separate reasons.
First, the JP Court’s ruling that “pursuant to 10 Del. C. § 1902, the demand
for a jury trial has removed the case from [JP Court] jurisdiction and hence allows
the court to have the case transferred”46 is the law of the case, and Plaintiff has
supplied no sufficient reason to revisit it. 47 The only law of the case exception that
might apply is that this conclusion is clearly wrong as a matter of law. While
Plaintiff does argue that the JP Court had jurisdiction because it has “concurrent
jurisdiction over disputes of this type” and cites to the JP Court’s general grant of
civil jurisdiction contained in 10 Del. C. § 9301,48 this argument is unresponsive to
the JP Court’s conclusion that the jury trial demand removed the case from its
jurisdiction. Here, the JP Court concluded, based on briefing and argument not
provided by the parties to this Court, that transfer via 10 Del. C. § 1902 was the
appropriate procedural mechanism to accommodate Defendants’ jury demand. The
Court is not prepared to rule that this determination was clearly wrong.
Second, even if it was clearly wrong, the issue of whether the JP Court erred
in relying upon 10 Del. C. § 1902 to transfer this action is not properly before this
Court. Had Plaintiff intended to challenge the JP Court’s conclusions with respect
46
June 10, 2021 Order at 1.
47
In Wells Fargo II, the Chancery Court also treated the Superior Court’s determination that it
lacked jurisdiction over the subject matter as the law of the case. 2014 WL 6478788, at *3 (“The
law of this case, as found by the Superior Court, is that the Plaintiff’s attempt to proceed in
Superior Court was in fact an attempt to enforce an equitable mortgage, because the mortgage
document on which it attempted to rely was unsealed and thus legally insufficient. Therefore, the
Superior Court dismissed the matter as outside its jurisdiction, subject to transfer under
Section 1902.”) (emphasis supplied).
48
Resp. ¶ 6.
11
to its own jurisdiction or the applicability of the transfer statute, an appeal should
have been filed in the Court of Common Pleas pursuant to 10 Del. C. § 9571 after
the case was dismissed with prejudice. However, Plaintiff concedes that Defendant
has a right to a jury and does not contest the transfer to this court.49 If, as Plaintiff
contends, the JP Court had subject matter jurisdiction and should not have
transferred the case via 10 Del. C. § 1902, it simply does not follow that the remedy
would be to accept an untimely transfer in this Court.
Finally, a finding that the JP Court did have jurisdiction would create yet
another problem for Plaintiff’s position. If the JP Court acted with subject matter
jurisdiction, then its order dismissing the action with prejudice would operate as an
adjudication on the merits, by a court with jurisdiction, of an action with the same
cause of action, the same issues, and the same parties as the present proceeding. This
Court would thus be barred from proceeding with this case by the doctrine of res
judicata.50
Order to Refile the Complaint in this Court
Plaintiff also argues that the JP Court erred in ordering it to “file its action in
Superior Court”51 because the statute actually requires the transferring party only to
49
Oral Arg. Tr. at 17:3–12.
50
Under Delaware law, the doctrine of res judicata bars an action when the following elements are
met:
(1) [T]he court making the prior adjudication had jurisdiction, (2) the parties
in the present action are either the same parties or in privity with the parties from
the prior adjudication, (3) the cause of action must be the same in both cases or the
issues decided in the prior action must be the same as those raised in the present
case, (4) the issues in the prior action must be decided adversely to the plaintiff’s
contentions in the instant case, and (5) the prior adjudication must be final.
Bailey v. City of Wilmington, 766 A.2d 477, 481 (Del. 2001) (emphasis supplied). A
dismissal with prejudice is generally considered final and on the merits for res judicata
purposes. See RBC Capital Markets, LLC v. Educ. Loan Tr. IV, 87 A.3d 632, 643 (Del.
2014) (“In general, a dismissal with prejudice constitutes a final decree for res
judicata purposes.”).
51
June 10, 2021 Order at 2.
12
file a “written election of transfer, discharge[] all costs accrued in the first court, and
make[] the usual deposit for costs in the second court.”52 Plaintiff correctly states
that, per the terms of the statute, the clerk of the transferring court is to transfer the
case upon the filing of the election of transfer and discharge of court costs.53 In
ordering refiling of the action instead, Plaintiff asserts, the order created unnecessary
confusion and directed Plaintiff to do something it was not legally obligated to do.54
However, it is abundantly clear that whatever Plaintiff was required to do, it was
required to do within 60 days. Plaintiff did not file in this Court until the 61st day,
and did not file a written election of transfer in the JP Court until the 62nd day, after
the JP Court had already dismissed the action.
The Court accepts as the law of the case that Plaintiff had 60 days to take
affirmative steps to effectuate the transfer. The question of whether strict
compliance with the statute but not the terms of the order, or vice versa, would have
been sufficient is not before this Court because Plaintiff complied with neither within
the prescribed time period.
Dismissal with Prejudice
Finally, the JP Court’s June 10, 2021, order directs that the action is to be
dismissed with prejudice unless Plaintiff filed in this Court within 60 days. The
Court concludes that, regardless of whether dismissal with prejudice is the sanction
it would have itself imposed for untimely filing, the JP Court’s directive is the law
of the case and must be carried out.
The Wells Fargo case is again instructive here. There, the Vice Chancellor
52
10 Del. C. § 1902.
53
Id. (“All or part of the papers filed, or copies thereof, and a transcript of the entries, in the court
where the proceeding was originally instituted shall be delivered in accordance with the rules or
special orders of such court, by the prothonotary, clerk, or register of that court to the
prothonotary, clerk or register of the court to which the proceeding is transferred.”)
(emphasis supplied).
54
Response ¶ 7; Tr. of Zoom Oral Arg. at 15:9–14.
13
discussed the implications of the Superior Court’s dismissal subject to the Plaintiff’s
right of transfer:
If the Superior Court Order is read as an unconditional dismissal
without prejudice, then nothing in Section 1902 prevents the Plaintiff
from re-filing this matter in Chancery as a new complaint, albeit
without the benefit of the filing date relating back to the original
Superior Court complaint. On the other hand, if the Superior Court
Order is read as providing for a dismissal without prejudice conditioned
upon compliance with the requirement to file in Chancery within 60
days, the matter may be considered dismissed with prejudice.55
Here, as in Wells Fargo, the transferring court is entitled to deference in crafting the
disposition of the action in the event that a plaintiff fails to carry out the transfer as
ordered. However, unlike the Superior Court’s order in Wells Fargo, the JP Court’s
order in this case requires no interpretation—it clearly calls for dismissal with
prejudice as the sanction for untimely filing.
None of the exceptions to law of the case apply here. Circumstances have not
changed and dismissal with prejudice is not clearly wrong. Insofar as Plaintiff
argues that it produces an injustice because Plaintiff was proceeding pro se in JP
Court, the Court notes that “[t]here is no different set of rules for pro se plaintiffs,
and the trial court should not sacrifice the orderly and efficient administration of
justice to accommodate an unrepresented plaintiff.”56 Moreover, this result is
consistent with a key underlying purpose of law of the case, to “prevent the
relitigation of prior determinations and inconsistent judgments.”57 Here, the JP
Court followed through on its own directive and dismissed the action with
prejudice.58 If this Court were to dismiss the action without prejudice, inconsistent
55
Wells Fargo II, 2014 WL 6478788, at *4 (emphasis supplied).
56
Draper v. Med. Ctr. of Delaware, 767 A.2d 796, 799 (Del. 2001).
57
Fanean v. Rite Aid Corp. of Delaware, Inc., 984 A.2d 812, 818 (Del. Super. 2009) (quoting E.I.
du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995)).
58
Since the JP Court’s dismissal with prejudice occurred after the case was filed in this Court, that
order is not itself the law of the case. However, on its own terms, the August 11, 2021, order was
14
judgments would clearly result—a single action cannot be dismissed both with and
without prejudice. The Court will not resurrect an action already disposed of with
finality by the JP Court.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED, and
Plaintiff’s action is dismissed WITH PREJUDICE.
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
simply carrying out the directive of the June 10, 2021, order. It is not clear whether the JP Court
was aware that a complaint had been untimely filed in this Court when it dismissed the JP Court
action with prejudice.
15 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482506/ | COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Fulton, Ortiz and Senior Judge Petty
Argued at Lexington, Virginia
TREVOR ALAN NEEPER
MEMORANDUM OPINION* BY
v. Record No. 0263-22-3 JUDGE DANIEL E. ORTIZ
NOVEMBER 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
W. Chapman Goodwin, Judge
Aaron W. Graves (Graves Law Offices, on brief), for appellant.
Appellant submitting on brief.
Tanner M. Russo, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The trial court convicted Neeper of refusal of a breath test after he was arrested for driving
under the influence, subsequent offense within ten years (“refusal, subsequent offense”). He asserts
that the trial court “erred by finding that the magistrate had probable cause to issue a warrant for a
[C]lass (1) misdemeanor, and as such[,] the warrant was invalid.” Neeper also contends that the
trial court erred by “allowing hearsay testimony as to what was said to the magistrate, what the
magistrate said, and as to what the magistrate based the issuance of the warrant upon.” Because we
find that Neeper waived his argument as to the warrant’s validity and any error in admitting hearsay
testimony was harmless, we affirm the trial court’s judgment.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). On the evening of July 2, 2020, Trooper J.T. Lotts stopped Neeper’s vehicle after
the officer observed him speeding. When Neeper exited the vehicle at Lotts’ request, he was
“unsteady on his feet” and “[held] onto the side of the truck as he exited.” He smelled of
alcohol, and his eyes were “bloodshot and glassy.” Neeper admitted that he had been drinking.
After Neeper failed to perform field sobriety tests satisfactorily, Lotts arrested him at 6:58 p.m.
for driving under the influence and transported him to jail. They arrived at the jail at 7:20 p.m.
At the jail, Lotts provided Neeper with a “refusal of consent” form outlining the consequences of
failing to submit to a breath test. Neeper refused to submit to the test.
Lotts signed a declaration on the refusal of consent form stating that Neeper had been
arrested under “Code §§ 18.2-51.4, 18.2-266, 18.2-266.1 or 18.2-272(B)” and had refused to
supply a breath sample after he was informed of the consequences of refusal. Lotts stated further
on the declaration form that Neeper had no convictions under Code “§§ 18.2-266, 18.2-268.3, or
any offense described in 18.2-270(E) within the last 10 years.” Lotts faxed the executed form to
the magistrate.
When Lotts appeared before the magistrate that evening via video, the magistrate had
Neeper’s criminal history and driving record. Lotts noted that, as a matter of procedure, dispatch
sent Neeper’s criminal history to the magistrate, but dispatch did not provide it to Lotts. The
magistrate cited a prior DUI conviction during the videoconference. Based on this information,
the magistrate issued an arrest warrant charging Neeper with refusal, subsequent offense.
At trial, Lotts testified over Neeper’s hearsay objection that the magistrate charged
Neeper with the misdemeanor1 because his criminal record revealed that he had a DUI
1
A first refusal is a civil offense, but a subsequent refusal is a Class 1 misdemeanor.
Code § 18.2-268.3(A)(1) and (2).
-2-
conviction in 2017 in Rockingham County. Lotts agreed that he was unaware of the prior
conviction and did not provide that information to the magistrate.
Neeper objected on hearsay grounds to Lotts testifying about anything the magistrate
“said or thought or did.” The trial court overruled the objection to Lotts’ testimony about the
magistrate’s statement concerning Neeper’s criminal history, ruling that it fell within a hearsay
exception. The trial court also ruled that Lotts’ testimony about the procedure of supplying the
magistrate with Neeper’s criminal history and what the magistrate did after receiving that
history, was not hearsay. Neeper’s prior conviction under Code § 18.2-266 for driving under the
influence in 2017 was admitted into evidence.
At the conclusion of the evidence, Neeper moved to strike, asserting that his arrest for
refusal, subsequent offense, was not supported by probable cause. Citing Code
§ 18.2-268.3(D),2 Neeper argued that only the arresting officer’s “sworn certification” could
supply probable cause for violating the refusal statute. Stressing that Lotts’ declaration on the
refusal form stated that Neeper had no qualifying offenses within the last ten years, Neeper
asserted that the magistrate lacked probable cause to issue a warrant for misdemeanor refusal.
2
Code § 18.2-268.3 states in pertinent part:
D. The arresting officer shall, under oath before the magistrate,
execute the form and certify (i) that the defendant has refused to
permit blood or breath or both blood and breath samples to be
taken for testing; (ii) that the officer has read the portion of the
form described in subsection C to the arrested person; (iii) that the
arrested person, after having had the portion of the form described
in subsection C read to him, has refused to permit such sample or
samples to be taken; and (iv) how many, if any, violations of this
section, § 18.2-266, or any offense described in subsection E of
§ 18.2-270 the arrested person has been convicted of within the last
10 years. Such sworn certification shall constitute probable cause
for the magistrate to issue a warrant or summons charging the
person with unreasonable refusal. The magistrate shall attach the
executed and sworn advisement form to the warrant or
summons. . . .
-3-
The trial court denied Neeper’s motion to strike and ruled that the magistrate could rely on
evidence other than the police officer’s declaration in determining probable cause to arrest. The
trial court ruled that the evidence was sufficient to prove refusal, subsequent offense, and
convicted Neeper. This appeal followed.
ANALYSIS
I. Probable Cause
Neeper asserts that the trial court “erred in finding that the magistrate had probable cause
to issue a warrant for a [C]lass 1 misdemeanor, and as such[,] the warrant was invalid.” He
contends that, under Code § 18.2-268(D)(iv), the probable cause to issue the refusal warrant
must be based on the arresting officer’s “sworn certification” and Lotts’ certification included no
prior predicate offenses that rendered Neeper’s refusal a misdemeanor offense.
“The validity of [a charging instrument] is a question of law which we review de novo.”
Epps v. Commonwealth, 293 Va. 403, 407 (2017) (quoting Howard v. Commonwealth, 63
Va. App. 580, 583 (2014)). We also “review compliance with statutes and this Court’s Rules de
novo.” Id.
Rule 3A:9(b)(1) and (c) provide that:
[O]bjections based on defects in the institution of the prosecution
or in the written charge upon which the accused is to be tried, other
than that it fails to show jurisdiction in the court or to charge an
offense, must be raised by motion . . . filed or made before a plea is
entered and, in a circuit court, at least 7 days before the day fixed
for trial.
Epps, 293 Va. at 409-10 (quoting Rule 3A:9(b)(1) and (c)).3 “Failure to comply with these
requirements constitutes a waiver.” Id. at 410 (quoting Prieto v. Commonwealth, 283 Va. 149,
3
Rule 3A:9 was amended after Epps was decided, but the text quoted in the opinion was
not altered.
-4-
181-82 (2012)). As our Supreme Court has recognized, however, “relief from any waiver may
be granted under Rule 3A:9(d)” for good cause. Id. (quoting Prieto, 283 Va. at 182).
Presented with similar facts in Harris v. Commonwealth, 39 Va. App. 670 (2003) (en
banc), we held that a challenge to the validity of the charging instrument must be raised in a
pre-trial motion, absent good cause. Harris, who was charged with driving without a license,
moved to strike at trial on the basis that he should have been charged with a warrant rather than a
summons. Id. at 673. After the trial court denied his motion to strike, Harris appealed and
asserted that the trial court “erred in trying [him] on the charge ‘where the summons issued was
not a valid process to present the charge for trial.’” Id. at 674.
On appeal, the Commonwealth argued for the first time that Harris had “procedurally
defaulted” his argument “because he failed to raise a defense or objection ‘based upon defects in
the institution of the prosecution,’ seven days prior to trial, as required by Supreme Court of
Virginia Rule 3A:9(b) and (c).” Id. at 674. We agreed and held that Harris had waived his
argument by failing to comply with Rule 3A:9 or demonstrating “good cause” for his failure to
do so. Id. at 675. Accordingly, we decided that the trial court had reached the right result for the
wrong reason. Id. at 675-76; see also Epps, 293 Va. at 409-10 (the defendant’s challenge to his
indictment was subject to Rule 3A:9(b)(1) and (c), “mandating that he challenge the indictment
at least seven days before . . . trial”); Mollenhauer v. Commonwealth, No. 0826-20-2, 2021
WL 2793777 (Va. Ct. App. July 6, 2021) (discussing the rationale behind the requirement to
raise certain issues before trial). Significantly, we concluded that Harris had defaulted his
challenge to the charging instrument by failing to comply with Rule 3A:9, even though the trial
court considered the merits of his arguments at trial. Harris, 39 Va. App. at 673-74.
-5-
Based on Harris, we hold that Neeper likewise waived his challenge to the validity of his
refusal warrant by waiting to raise it during his motion to strike.4 Nothing in the record
demonstrates that he had good cause not to comply with Rule 3A:9. See Rule 3A:9(d) (“For
good cause shown the court may grant relief from any waiver provided for in this Rule.”).
Accordingly, as he waived his argument, we conclude that the trial court reached the right result
by denying his motion to strike.5 “[I]t is the settled rule that how[ever] erroneous . . . may be the
reasons of the court for its judgment upon the face of the judgment itself, if the judgment be
right, it will not be disturbed on account of the reasons.” Peters v. Commonwealth, 72 Va. App.
378, 388 (2020) (second and third alterations in original) (quoting Perry v. Commonwealth, 280
Va. 572, 579 (2010)). Nevertheless, we may not affirm the trial court’s decision on this basis
4
We recognize that “[t]o trigger the implied-consent statute, . . . the underlying DUI
arrest must be both timely and lawful.” Green v. Commonwealth, 299 Va. 593, 595 (2021).
Thus, our Supreme Court held that a defendant charged with refusal to submit to a breath test in
violation of Code § 29.1-738.2 may defend that charge at trial with evidence that his arrest for
intoxication while operating a boat was not supported by probable cause. Id. at 594-97. The
Supreme Court reversed the trial court’s ruling that appellant was required to raise his probable
cause challenge in a pre-trial motion under Code § 19.2-266.2, stressing that “Code § 19.2-266.2
applies to ‘[d]efense motions or objections’ that, among other things, seek the ‘suppression of
evidence . . . obtained in violation of’ the Constitution of Virginia or Constitution of the United
States.” Id. at 596 (quoting Code § 19.2-266.2). The Court held that Green was not seeking to
suppress evidence by challenging the lawfulness of his arrest. Further, it concluded that the
applicability of the implied consent statute involved a statutory question rather than a
constitutional one. Id.
In Green, the issue before the Supreme Court was whether Green’s DUI arrest was lawful
because, absent a valid arrest, Green was not subject to the implied consent statute governing
boat operators, Code § 29.1-738.2. Id. at 595-96. Here, unlike Green, Neeper does not assert
that his initial arrest for driving while intoxicated was not supported by probable cause. Based
on that arrest, not his later arrest for refusal, Neeper was offered and refused a breath test. Thus,
the undisputed evidence establishes that Neeper had been validly arrested when Lotts offered
him a breath test, thereby triggering the implied consent statute. Id. at 595 (“To trigger the
implied-consent statute, . . . the underlying DUI arrest must be both timely and lawful.”).
Accordingly, Green does not control our decision.
5
Requiring certain issues to be addressed before trial is “not [a] superfluous
administrative hurdle[].” Bass v. Commonwealth, 70 Va. App. 522, 534 (2019). The
requirement “serve[s] legitimate state interests in protecting against surprise, harassment, and
undue delay.” Id. (quoting Arrington v. Commonwealth, 53 Va. App. 635, 640 (2009)).
-6-
“where the development of additional facts is necessary.” Spinner v. Commonwealth, 297 Va.
384, 391 (2019).
Here, the record before us is sufficiently developed for us to determine that Neeper
waived his argument by failing to raise it before trial. Indeed, the Commonwealth argued to the
trial court that Neeper was required to challenge the arrest warrant before trial.6 Accordingly, we
find no reversible error in the trial court’s denial of Neeper’s motion to strike.
II. Hearsay
Neeper asserts that the trial court erred by allowing hearsay testimony at trial concerning
“what was said to the magistrate, what the magistrate said,” and the basis for the magistrate’s
decision to issue the warrant. “[M]ore specifically,” Neeper maintains that the trial court erred
by admitting Lotts’ testimony regarding the magistrate’s statement about Neeper’s criminal
record. He contends that, because the Commonwealth sought the admission of the hearsay
testimony from Lotts, the burden lay with the Commonwealth to demonstrate that it fell within
an exception to the prohibition against hearsay.
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.
Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.
461, 465 (2006)). “This standard, if nothing else, means that the trial judge’s ‘ruling will not be
reversed simply because an appellate court disagrees.’” Thomas v. Commonwealth, 44 Va. App.
741, 753 (quoting Henry J. Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 754
(1982)), adopted upon reh’g en banc, 45 Va. App. 811 (2005). “Only when reasonable jurists
6
At trial, the Commonwealth argued Neeper waived his argument pursuant to Code
§ 19.2-266.2 instead of Rule 3A:9. The Commonwealth proceeded under Code § 19.2-266.2
because it erroneously compared this case to Green. The Commonwealth’s failure to raise a
Rule 3A:9 argument does not impact Neeper’s waiver of his challenge to the validity of his
refusal warrant.
-7-
could not differ can we say an abuse of discretion has occurred.” Turner v. Commonwealth, 65
Va. App. 312, 327 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). “A
trial court . . . ‘by definition abuses its discretion when it makes an error of law.’” Robinson v.
Commonwealth, 68 Va. App. 602, 606 (2018) (quoting Dean v. Commonwealth, 61 Va. App.
209, 213 (2012)). Thus, “evidentiary issues presenting a ‘question of law’ are ‘reviewed de novo
by this Court.’” Abney v. Commonwealth, 51 Va. App. 337, 345 (2008) (quoting Michels, 47
Va. App. at 465).
“Non-constitutional error is harmless if other evidence of guilt is so overwhelming and
the error so insignificant by comparison that we can conclude the error failed to have any
substantial influence on the verdict.” Dandridge v. Commonwealth, 72 Va. App. 669, 685
(2021) (quoting Lienau v. Commonwealth, 69 Va. App. 254, 270 (2018)); see also Code
§ 8.01-678. Here, even assuming arguendo that the trial court erred by admitting evidence
relating to the magistrate’s issuance of the arrest warrant for refusal, the error did not have “any
substantial influence on the verdict.” Dandridge, 72 Va. App at 685. The Commonwealth
presented evidence of Neeper’s prior DUI conviction, and the evidence was undisputed that
Neeper declined to submit to a breathalyzer. Further, because Neeper had waived his argument
concerning the arrest warrant’s validity, any evidence relating to that issue was not relevant to
his guilt or innocence at trial. Accordingly, any error in the trial court’s admission of the
evidence was harmless. Code § 8.01-678.
CONCLUSION
For the reasons stated above, we affirm the trial court’s judgment.
Affirmed.
-8- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482510/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Chaney and Raphael
UNPUBLISHED
MAURICE LATREL BRYANT
MEMORANDUM OPINION*
v. Record No. 0763-22-4 PER CURIAM
NOVEMBER 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Bruce Strickland, Judge
(Colleen Barlow; Eugene H. Frost, PLLC, on brief), for appellant.
Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Robin M. Nagel, Assistant
Attorney General; on brief), for appellee. Appellee submitting on
brief.
Following a jury trial, the Circuit Court of Stafford County (“trial court”) convicted Maurice
Bryant (“Bryant”) of driving under the influence of marijuana, in violation of Code § 18.2-266.
Bryant contends that the evidence in support of his conviction was insufficient. For the following
reasons, we affirm the trial court.
I. BACKGROUND
Stafford County Sheriff’s Deputy Casey Richardson (“Deputy Richardson”) was on patrol at
one o’clock in the morning on January 23, 2020. Deputy Richardson observed a vehicle being
driven in an easterly direction on Garrisonville Road in Stafford County. The driver of that vehicle,
later identified as Bryant, veered from the “slow” right lane into the middle lane then back across
the right lane onto the right shoulder of the road before returning to the right lane. Deputy
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Richardson saw Bryant swerve several times within about two tenths of a mile before initiating a
traffic stop. As Deputy Richardson approached the driver’s side of the stopped vehicle, he noticed
an odor of marijuana emanating from the vehicle. After Deputy Richardson asked him about the
“erratic driving,” Bryant explained that he was attempting to operate the GPS on his phone because
he was not from the area. When asked to exit the vehicle so that it could be searched for marijuana,
Bryant complied but was “very lethargic,” and his speech and movements were slow. Deputy
Richardson subsequently found a “green leafy substance” he believed to be marijuana in the center
console of the car.
Next, Deputy Richardson conducted field sobriety tests on Bryant beginning with the
horizontal gaze nystagmus test. At trial, Deputy Richardson testified that he conducted this first test
by asking Bryant to keep his head straight while following a writing pen only with his eyes. The
deputy explained that he was looking for three clues of intoxication in each eye, or “six total clues,”
including “a lack of smooth pursuit,” a distinct, sustained “nystagmus maximum deviation,” and the
“onset of nystagmus prior to 45 degrees.” He testified that Bryant exhibited a lack of smooth
pursuit in both eyes and a sustained nystagmus at the maximum deviation in the right eye.
Deputy Richardson then asked Bryant to perform a second field sobriety “walk and turn”
test. Bryant was asked to assume a “starting position” of standing on an imaginary line with his left
foot down and his right foot in front of it, heel to toe, with his hands down by their side. The deputy
then asked Bryant to take nine, heel-to-toe steps in a straight line, then to turn and take nine,
heel-to-toe steps back along the same line which Bryant did. During this second field sobriety test,
Deputy Richardson observed clues indicating that Bryant was intoxicated when he “took two steps,
not on a straight line, and then had an improper turn.” The next test Bryant performed was the
“one-leg stand,” in which Bryant stood with his feet together and then lifted one foot approximately
six inches off the ground, while counting “out loud, one-one-thousand, two-one-thousand, and so
-2-
on,” until being asked to stop. Deputy Richardson observed additional clues of intoxication when
Bryant “put his foot down and used his left arm for balance.” Based upon both his observations
leading up to the stop as well as the results of the field sobriety tests, Deputy Richardson placed
Bryant in custody.
During the trip to the sheriff’s office, Deputy Richardson observed that Bryant kept falling
in and out of sleep in the back seat of the patrol vehicle. Upon arrival at the police station, Deputy
Richardson applied for a search warrant to obtain Bryant’s blood for analysis for illegal substances.
Upon receipt of the search warrant, Bryant was transported to a hospital where a registered nurse
drew Bryant’s blood and placed the blood sample in a kit provided by the Department of Forensic
Science that was then sent to the lab for analysis.
At trial, forensic toxicologist Jon Dalgleish (“Toxicologist Dalgleish”) testified that he
analyzed the vials of blood received by the lab and issued a certificate of analysis memorializing his
findings. The drug screen detected the presence of at least .0051 milligram of THC per liter of
Bryant’s blood. Based upon the concentration present in Bryant’s blood, Toxicologist Dalgleish
opined that that level of marijuana indicated use “within the last zero to six hours of the blood
draw,” but he could not opine as to “the degree of effects” that amount would have on someone.
Toxicologist Dalgleish testified that depending on one’s marijuana use, history, and tolerance, one
could be intoxicated with this level of marijuana in one’s blood or may experience “very little
outward effects.” He further testified that “lethargy or a slower appearance is consistent with many
individuals under the influence of marijuana,” and stated that marijuana would make it more likely
that one might fall asleep. Toxicologist Dalgleish also opined that marijuana, as a “perception
altering drug,” affects both short-term memory and “spatial awareness,” and might influence the
ability to judge “whether you are within a lane of traffic.” He further explained that marijuana
“affects fine motor skills” and can lead to “adverse effects, which make it difficult to operate [a
-3-
vehicle] safely.” On cross -examination, he conceded that marijuana “does not cause Horizontal
Gaze Nystagmus.”
Following closing arguments, the jury found Bryant guilty of driving while under the
influence of marijuana in violation of Code § 18.2-266. The trial court sentenced Bryant to thirty
days in jail, with all of the time suspended. Bryant appealed the conviction.
II. ANALYSIS
A. Standard of Review
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support
it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting
Smith v. Commonwealth, 296 Va. 450, 460 (2018)).
B. Sufficiency of the Evidence
Bryant argues that the evidence was not sufficient to support his conviction for driving
under the influence of marijuana. We disagree.
Code § 18.2-266 provides that “[i]t shall be unlawful for any person to drive or operate any
motor vehicle . . . while such person is under the influence of any narcotic drug or any other self-
administered intoxicant or drug of whatsoever nature . . . to a degree which impairs his ability to
drive or operate any motor vehicle . . . safely.” Code § 18.2-266(iii).
“Elements of a crime may be proved by direct or circumstantial evidence.” Lambert v.
Commonwealth, 70 Va. App. 54, 65 (2019), aff’d, 298 Va. 510 (2020). In fact, “[i]t is firmly
established that ‘[c]ircumstantial evidence is competent and is entitled to as much weight as direct
evidence provided that the circumstantial evidence is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.’” Kelley v. Commonwealth, 69 Va. App. 617, 629 (2019)
(quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). Circumstantially, a driver’s degree of
-4-
intoxication may be established by evidence that shows he consumed enough alcohol or other
intoxicant affecting “his manner, disposition, speech, muscular movement, general appearance or
behavior” to such an extent that his intoxication is apparent from observation. Thurston v. City of
Lynchburg, 15 Va. App. 475, 483 (1992) (quoting Gardner v. Commonwealth, 195 Va. 945, 954
(1954)). Thus, any fact finder in a case involving a violation of Code § 18.2-266(iii) shall
“determine the innocence or guilt of the defendant from all the evidence concerning his condition at
the time of the alleged offense.” Code § 18.2-268.10.
The totality of the circumstances in the instant case supported the jury’s conclusion that
Bryant was operating his vehicle under the influence of marijuana. The evidence proved that
Deputy Richardson observed Bryant swerving back and forth between lanes several times over a
short distance at one o’clock in the morning. Upon approaching the vehicle, Deputy Richardson
noticed an odor of marijuana emanating from the vehicle and thereafter discovered a green leafy
substance having the appearance of marijuana in the center console of the car. As Bryant stepped
out of the vehicle, he appeared lethargic, and his movements were slow. Bryant was speaking and
moving very slowly. Bryant’s performance on the field sobriety tests provided additional clues of
intoxication. He also repeatedly fell asleep in the back of the patrol car on the way to the sheriff’s
office, the magistrate, and the hospital. A certificate of analysis confirmed that at least .0051
milligram of THC per liter of Bryant’s blood was present near the time of his operation of the
vehicle. In addition, Toxicologist Dalgleish, testifying as an expert, opined that such an amount
would indicate recent ingestion of the drug. Toxicologist Dalgleish also testified that the amount of
marijuana in Bryant’s system could affect his short-term memory and his spatial awareness,
negatively impacting Bryant’s ability to safely maintain his lane of traffic and quite possibly causing
him to fall asleep.
-5-
Here, the totality of the evidence presented in this case, with all reasonable inferences drawn
therefrom, is sufficient to support the jury’s verdict finding that Bryant was driving under the
influence of marijuana in violation of the statute.
III. CONCLUSION
For the foregoing reasons, we find that the evidence is sufficient to support the jury’s
finding that Bryant was driving under the influence of marijuana, and we affirm Bryant’s
conviction.
Affirmed.
-6- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482499/ | COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
November 7, 2022
David H. Holloway, Esquire Jody C. Barillare, Esquire
Shlansky Law Group, LLP Amy M. Dudash, Esquire
1504 North Broom Street Morgan Lewis & Bockius, LLP
Wilmington, DE 19806 1201 North Market Street
Wilmington, DE 19801
Catherine G. Dearlove
Caroline M. McDonough
Richards, Layton & Finger, P.A.
920 North King Street
Wilmington, DE 19801
RE: Edward Deane, et al. v. Robert Maginn, Jr.
C.A. No. 2017-0346-LWW
Dear Counsel:
I write regarding fees and expenses incurred by non-party Jenzabar, Inc. in
opposing the plaintiffs’ Second Motion to Compel (the “Motion”). I previously
shifted fees in connection with the Motion. This Letter Opinion addresses the
amount of reasonable fees and expenses Jenzabar is entitled to.
I. BACKGROUND
Jenzabar produced documents in response to a subpoena served by the
plaintiffs. Certain documents were withheld for privilege and listed on Jenzabar’s
C.A. No. 2017-0346-LWW
November 7, 2022
Page 2 of 11
privilege log. The plaintiffs’ Motion broadly challenged that privilege log.1
For example, the plaintiffs averred that they had a “good faith basis to believe
the documents cited in Jenzabar’s privilege log [we]re not privileged.”2 They argued
that the log’s small font was “obfuscatory” to prevent “assessment of the claims of
privilege.”3 They sought the production of every document Jenzabar had withheld
or, in the alternative, in camera review of those documents.4 But the plaintiffs made
no attempt to outline specific issues with individual (or even groups of) privilege
assertions. Moreover, the plaintiffs failed to appropriately meet and confer with
Jenzabar before filing the Motion.5
Jenzabar’s opposition to the Motion included a 10-page declaration (with 10
exhibits) filed by counsel at Richards, Layton & Finger, P.A. (“RLF”) detailing their
attempts to engage with the plaintiffs’ counsel about Jenzabar’s privilege log. 6
Senior Delaware counsel at RLF stated that the “privilege assertions contained in
1
Pls.’ Mot. to Compel Disc. from Jenzabar, Inc. (Dkt. 211).
2
Id. at 3.
3
Id. at 5.
4
Id. at 3, 5.
5
The plaintiffs sent a “meet and confer” letter less than six hours before filing the Motion.
See Opp’n to Pls.’ Mot. (Dkt. 227) ¶ 3.
6
Unsworn Decl. of C. Dearlove (Dkt. 228).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 3 of 11
Jenzabar’s log ha[d] been made with integrity and in accordance with Delaware law
and practice.”7
The plaintiffs’ reply in further support of their Motion raised various
additional arguments, including the Garner doctrine and the crime-fraud exception
to attorney-client privilege.8 The plaintiffs insisted that meeting and conferring with
Jenzabar would have been futile.”9
On March 8, 2022, after oral argument, I denied the plaintiffs’ Motion. I
declined to conduct an in camera review of the documents Jenzabar had withheld or
to second-guess Jenzabar’s privilege determinations given that the plaintiffs “put
forth no specific factual or legal basis by which [the court] could conclude that the
privilege ha[d] not been properly applied.” 10 Jenzabar’s request under Court of
Chancery Rule 37(a)(4)(B) for an award of fees and expenses incurred in connection
with the Motion was granted.
The next day, an Order denying the Motion and shifting fees was entered:
Because the Motion is denied in full, Court of Chancery
Rule 37(a)(4)(B) mandates fee shifting unless the motion
7
Id. ¶ 24.
8
Pls.’ Reply in Supp. of Mot. (Dkt. 233).
9
Id. at ¶ 6.
10
Mar. 8, 2022 Hearing Tr. (Dkt. 304) at 61.
C.A. No. 2017-0346-LWW
November 7, 2022
Page 4 of 11
was “substantially justified” or shifting fees would be
unjust under the circumstances. . . .
After considering the parties’ positions, I conclude that
Rule 37 compels fee shifting—as Jenzabar requests. The
Motion sought to challenge every entry on Jenzabar’s
privilege log and there was no valid basis why the
plaintiffs did not meaningfully meet and confer with
Jenzabar in advance of the Motion’s filing . . . .11
On March 15, 2022, Jenzabar submitted an affidavit (the “Fee
Affidavit”) setting forth the relevant time expended by attorneys and other
billing professionals at RLF.12 The Fee Affidavit stated that RLF spent 129.8
hours of attorney and paraprofessional time to prepare and present Jenzabar’s
opposition to the Motion and that the value of those services was
$104,802.50.13 RLF also incurred $851.63 in expenses.14
On March 23, 2022, counsel for the plaintiffs filed a letter objecting to
the amount of fees sought by the Fee Affidavit.15 The plaintiffs requested
permission to file a substantive opposition challenging the reasonableness of
11
Mar. 9, 2022 Order (Dkt. 250) at cmts.
12
Aff. of C. Dearlove (Dkt. 269).
13
Id. ¶ 4.
14
Id. ¶ 6.
15
Letter to V.C. Will from D. Holloway (Dkt. 280).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 5 of 11
RLF’s fees. Because Rule 37(a)(4)(B) provides that a non-moving party shall
have an “opportunity to be heard,” I granted the plaintiffs’ request.16
On May 17, 2022, Jenzabar filed its opening submission in further
support of its fee request.17 It was accompanied by an affidavit (the “Second
Affidavit”) from counsel at RLF that corrected certain errors in the Fee
Affidavit and provided detailed information about the total fees and expenses
incurred by Jenzabar in opposing the Motion. 18 The Second Affidavit
attached RLF’s invoices, which were annotated to highlight the specific
services RLF provided. The Second Affidavit stated that Jenzabar incurred
$111,253.12 of fees and expenses in opposing the Motion, based on 139.4
hours of RLF’s time. But, given the calculation error, Jenzabar limited its
request to the amount set forth in the original Fee Affidavit ($105,654.13).19
The plaintiffs subsequently filed an opposition to Jenzabar’s
submissions.20 The opposition asserted that Jenzabar “fail[ed] to justify” how
16
Letter to Counsel from V.C. Will (Dkt. 300).
17
Non-Party Jenzabar, Inc.’s Opening Submission (Dkt. 309).
18
Second Aff. of C. Dearlove (Dkt. 309).
19
Id. ¶¶ 3-4.
20
Pls.’ Opp’n to Non-Party Jenzabar, Inc.’s Mot. (Dkt. 313).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 6 of 11
it spent 139.4 hours of professional time opposing the Motion.21 The plaintiffs
called RLF’s billing “excessive” and “unreasonable” and asked the court to
cap the fees awarded at $10,000.22
Jenzabar filed a reply in further support of its request, attaching an
affidavit confirming that the rates charged to Jenzabar are what RLF
customarily charges its clients.23
II. ANALYSIS
Discovery should be a “cooperative and self-regulating process
managed between the parties.”24 But where communication breaks down, the
Court of Chancery Rules provide for judicial intervention.25 Rule 37(a)(4)(B)
is one such example. It creates an “incentive structure” to encourage parties
21
Id. ¶ 2.
22
Id. at 14.
23
Non-Party Jenzabar’s Reply Submission (Dkt. 319). Oral argument was unnecessary.
The plaintiffs’ opposition provided a sufficient opportunity to be heard.
24
Cartanza v. Cartanza, 2013 WL 1615767, at *2 (Del. Ch. Apr. 16, 2013).
25
See Amirsaleh v. Bd. of Trade of City of N.Y., Inc., 2008 WL 241616, at *1 (Del. Ch.
Jan. 17, 2008).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 7 of 11
to resolve discovery disputes out of court and imposes remedies where that
fails.26
Rule 37(a)(4)(B) states that if a motion to compel is denied, the court:
shall, after affording an opportunity to be heard, require
the moving party or the attorney advising the motion or
both of them to pay to the party or deponent who opposed
the motion the reasonable expenses incurred in opposing
the motion, including attorney’s fees, unless the Court
finds that the making of the motion was substantially
justified or that other circumstances make an award of
expenses unjust.27
That is, the rule mandates fee shifting where motions to compel are denied unless
the movant’s conduct was “substantially justified” or doing so would be unjust.
I previously held that the plaintiffs’ Motion was not substantially justified and
that shifting fees was not unjust.28 The Motion was premature. The plaintiffs failed
to fulfill their meet and confer obligations and appropriately refine the bounds of
their discovery dispute before involving the court. The plaintiffs’ actions placed
avoidable and weighty burdens on the court and non-party Jenzabar.
26
In re Appraisal of Dole Food Co., 114 A.3d 541, 563 (Del. Ch. 2014) (explaining that
fee shifting under Rule 37 is “the consequence . . . as a part of an incentive structure
intended by the drafters of [Rule 37] to limit the need for judicial intervention in discovery
disputes”).
27
Ct. Ch. R. 37(a)(4)(B) (emphasis added).
28
Mar. 9, 2022 Order (Dkt. 250); see Mar. 8, 2022 Hearing Tr. (Dkt. 304).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 8 of 11
Jenzabar is not, however, entitled to reimbursement for the full amount
sought. The invoices submitted with the Second Affidavit show that Jenzabar is
seeking to recover for time counsel spent re-reviewing its privileged documents after
the Motion was filed. 29 Jenzabar’s counsel had surely reviewed its privileged
documents before logging them. And if the plaintiffs’ counsel had properly raised
its specific objections to Jenzabar’s privilege log before filing the Motion, RLF
would likely have taken another look at its privilege calls to prepare for a meet and
confer. Thus, time reviewing Jenzabar’s privileged documents would have been
incurred irrespective of whether the Motion was filed.
That leaves the question of whether the remaining fees sought—for preparing
the opposition to and for argument on the Motion—were “reasonable expenses.”30
This court “has broad discretion in determining the amount of fees and expenses to
award.”31 In assessing the reasonableness of a fee application, the court looks to
Rule 1.5(a) of the Delaware Lawyers’ Rules of Profession Conduct. Rule 1.5(a)
states that Delaware courts should:
29
Non-Party Jenzabar, Inc.’s Opening Submission (Dkt. 309) Exs. A-C.
30
Ct. Ch. R. 37(a)(4)(B).
31
Black v. Staffieri, 2014 WL 814122, at *4 (Del. Feb. 27, 2014) (TABLE) (citation
omitted).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 9 of 11
evaluate the reasonableness of fees looking to, among
other factors, the time and labor required, the novelty and
difficulty of the questions involved, the skill required to
perform the legal services, the fee customarily charged in
the locality for similar legal services, the nature and length
of the professional relationship with the client and the
experience, reputation and ability of the lawyer or lawyers
performing the services.32
These factors support the reasonableness of RLF’s fees.
RLF’s hourly rates are comparable to rates approved in recent cases for
attorneys of similar experience and expertise.33 The rates cited by the plaintiffs’
counsel to suggest otherwise appear to be derived from a fee schedule published by
Community Legal Services of Pennsylvania and other inapposite contexts.
RLF asserts that it has represented Jenzabar for almost 20 years. That long
relationship indicates Jenzabar believes RLF’s rates are reasonable. Jenzabar’s
agreement to pay RLF’s fees on a non-contingent basis “provide[s] an initial ‘rough
cut’ of a commercially reasonable fee.”34
32
Greenstar IH Rep., LLC v. TutorPerini Corp., 2019 WL 6884752, at *2 (Del. Ch. Dec. 4,
2019).
33
See, e.g., Roma Landmark Theaters, LLC v. Cohen Exhibition Co., 2021 WL 5174088,
at *5-6 (Del. Ch. Nov. 8, 2021) (finding hourly rate of $1,645 to be reasonable).
34
Danenberg v. Fitracks, Inc., 58 A.3d 991, 997 (Del. Ch. 2012) (quoting Wis. Inv. Bd. v.
Bartlett, 2002 WL 568417, at *6 (Del. Ch. Apr. 9, 2002), aff’d, 808 A.2d 1205 (Del. 2002)).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 10 of 11
Finally, the questions posed by the Motion were not novel or especially
complex. But the breadth of the Motion was sprawling, making a response a time-
consuming and tedious exercise. RLF’s skill and experience were needed to analyze
and argue a hodgepodge of matters—including various privilege doctrines.
The plaintiffs would have me second-guess RLF’s approach to billing and
staffing. But the court should not “examine individually each time entry and
disbursement” in determining the reasonableness of fees. 35 Doing so is neither
“useful nor practicable.”36 I decline to undermine RLF’s judgment in that regard.37
Accordingly, Jenazbar is entitled to reimbursement for the expenses and
attorneys’ fees incurred in connection with: (1) reviewing and analyzing the Motion;
35
Lynch v. Gonzalez, 2020 WL 5587716, at *2 (Del. Ch. Sept. 18, 2020).
36
Weichert Co. v. Young, 2008 WL 1914309, at *2 (Del. Ch. May 1, 2008); see also In re
Dole Food Co. Inc. S’holder Litig., 2015 WL 496533, at cmts. (Del. Ch. Feb. 5, 2015)
(ORDER) (finding that “[t]he time incurred . . . as well as the staffing . . . fell within
reasonable range where it is appropriate to defer to tactical judgment of experienced
counsel”); Aveta Inc. v. Bengoa, 2010 WL 3221823, at *7 (Del. Ch. Aug. 13, 2010)
(awarding fees for time incurred by 20 attorneys).
37
See Arbitrium (Cayman Is.) Handels AG v. Johnston, 1998 WL 155550, at *2 (Del. Ch.
Mar. 30, 1998) (“[C]ounsel ha[s] represented to the Court that all fees being sought here
are for services rendered in this action . . . [n]o reason has been shown why counsels’
representation is not creditworthy.”), aff’d, 720 A.2d 542 (Del. 1998); Lynch, 2020 WL
5587716, at *2 (noting that “to second guess, on a hind-sight basis, an attorney’s judgment
as to whether work was necessary is hazardous, and should whenever possible be
avoided”).
C.A. No. 2017-0346-LWW
November 7, 2022
Page 11 of 11
(2) preparing an opposition to the Motion; and (3) preparing for and participating in
argument on the Motion. After reviewing RLF’s invoices, I conclude that
approximately $60,000 of attorneys’ fees was incurred in those contexts.38 Though
this amount is high, it is not unreasonable. It is a direct result of the plaintiffs’
unjustified Motion. Awarding just $10,000, as the plaintiffs request, would not make
non-party Jenzabar whole in these circumstances.
III. CONCLUSION
Within 30 days of this Letter Opinion, the plaintiffs shall reimburse Jenzabar
for $60,000 of attorneys’ fees and all expenses ($851.63) incurred in opposing the
Motion. IT IS SO ORDERED.
Sincerely yours,
/s/ Lori W. Will
Lori W. Will
Vice Chancellor
38
This analysis is not an exact science. The $60,000 figure is based on my attempt to
segment out time entries where counsel conducted document review and undertook tasks
that were not focused on opposing the Motion. Certain entries that were block billed made
a more granular analysis impossible. I have also rounded amounts to reach an even figure. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482502/ | THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Devin Jamel Johnson, Appellant.
Appellate Case No. 2019-000938
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 5950
Heard April 7, 2022 – Filed November 9, 2022
REVERSED
Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.
Attorney General Alan McCrory Wilson, Deputy
Attorney General Donald J. Zelenka, Senior Assistant
Deputy Attorney General Melody Jane Brown, and
Senior Assistant Attorney General W. Edgar Salter, III,
of Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.
KONDUROS, J.: Devin Jamel Johnson appeals his conviction of murder. He
contends the trial court erred in admitting into evidence his statement to law
enforcement, removing a juror midtrial, and instructing the jury on accomplice
liability. We reverse.
FACTS/PROCEDURAL HISTORY
On June 8, 2011, at 10:18 p.m., Akeem Smalls (Victim) was shot while in the
courtyard breezeway of Building C at Georgetown Apartments in Charleston
County, South Carolina. He died a short time later as a result of being shot. When
Victim was shot, he was just outside of an apartment where Sharmaine Johnson
lived at the time. Sharmaine1 was Johnson's sister and Victim's girlfriend. At the
time of the shooting, Victim owed Johnson $420.
All four of the fired shell casings discovered at the crime scene were identified as
9mm FC Luger casings. Officers discovered an unfired FC 9mm bullet with
Johnson's fingerprint on it in a drawer of a nightstand in Sharmaine's apartment.
Officers interrogated Johnson regarding Victim's shooting. During the
interrogation, Johnson initially denied being in Charleston at the time of the
shooting. After a few hours of interrogation, Johnson admitted he had been at
Georgetown Apartments at the time Victim was shot. Johnson also indicated
someone named Creep 2 was with him at the time of the shooting. Johnson stated
he saw the shooting, claiming a person named Dee shot Victim and that Johnson
and Creep fled the scene out of fear.
Subsequently, officers obtained a search warrant for Johnson's cell phone records,
including his historical cell site location information. Verizon provided Johnson's
cell phone records, which included call history logs and text messages. The
company also supplied cell site location data for outgoing and incoming calls. A
grand jury subsequently indicted Johnson for murder and possession of a weapon
during the commission of a violent crime.
At trial, the State requested the trial court charge the jury "'the hand of one is the
hand of all' . . . because it 'ha[d not] been able to identify a co-defendant.'" State v.
Johnson, 418 S.C. 587, 591, 795 S.E.2d 171, 173 (Ct. App. 2016) (alteration in
original). "The court denied the request, stating it did not 'buy' the State's rationale
that the evidence showed two individuals were involved in the crime." Id. The
1
Sharmaine is also referred to as Shay in the record.
2
Johnson told the officers he did not know Creep's last name or contact
information but described a tattoo he had. He gave the officers the name of
another person who knew Creep and through that person officers located a person
known as Creep. However, officers did not believe this was the person Johnson
claimed was with him when Victim was shot.
court explained that all of the testimony presented indicated Johnson was the
shooter. Id. After deliberations began, "the jury asked, '[I]f the other individual
pulled the trigger, can the defendant still be guilty?'" Id. at 592, 795 S.E.2d at 173
(alteration in original). The trial court determined its prior decision not to charge
"the hand of one is the hand of all" was incorrect; Johnson disagreed. Id. at 592,
795 S.E.2d at 173-74. "[T]he trial court offered [Johnson] the opportunity to
reargue his closing argument before [it] recharged the jury," but Johnson declined
and moved for a mistrial. Id. at 592-93, 795 S.E.2d at 174. The trial court charged
the jury on "hand of one, hand of all" and mere presence. Id. at 593, 795 S.E.2d at
174. After the recharge, Johnson asserted the evidence did not support the new
charge. Id. The jury convicted Johnson of both offenses—murder and the
possession of a weapon during the commission of a violent crime. Id. at 590, 795
S.E.2d at 172.
Johnson appealed, arguing the trial court erred in "instructing the jury concerning
'the hand of one is the hand of all' because the evidence did not support the
instruction" and the timing of the instruction prevented Johnson from addressing
the theory in his closing argument, "rendering the trial fundamentally unfair." 3 Id.
at 588, 795 S.E.2d at 171-72. This court reversed his convictions, finding the trial
court's decision to later give the charge fundamentally prejudiced Johnson because
he "crafted his closing argument in reliance on the trial court's adamancy" during
the charge conference that it would not give the charge. Id. at 598, 795 S.E.2d at
177. The court addressed only that issue because it was dispositive. Id. at 590,
795 S.E.2d at 172.
The State retried Johnson beginning on April 1, 2019. 4 At the outset of the trial,
the court held a Jackson v. Denno 5 hearing on the admissibility of Johnson's
3
Johnson also argued "the trial court erred in (1) admitting text messages and
historical cell service location information obtained from his cellular service
provider by a search warrant" and (2) admitting his statement to investigators.
Johnson, 418 S.C. at 588, 795 S.E.2d at 171.
4
In between the time this court issued the remittitur following the first appeal and
beginning of this trial in April 2019, a second trial began. At oral argument, both
parties were unclear as to what transpired at the second trial other than the State
believed it ended in a mistrial.
5
378 U.S. 368 (1964).
statement to David Osborne.6 Johnson argued the statement was not admissible
because it was involuntary due to a combination of factors: the length of time of
the interview, his repeated requests for cigarettes, and references investigators
made about his daughter. Following testimony from Osborne, the trial court found
the statement admissible.
At trial, Tenika Elmore testified that at the time of Victim's death, she and Johnson
lived together in Orangeburg. Elmore provided that at that time, she worked in
North Charleston and Johnson would occasionally drive her or ride with her to
work in her car, a blue 2008 Toyota Camry. The Camry was missing both
passenger-side hubcaps. On the day of the shooting, Elmore, Johnson, and
Johnson's six-year-old daughter traveled in Elmore's car to Charleston for Elmore
to work. Johnson and his daughter dropped Elmore off, and she worked all day.
Johnson was alone when he picked her up after work. Elmore believed he was
supposed to pick her up at 11 p.m., but she said he was late, which was normal.
After Johnson and Elmore picked up Johnson's daughter from his mother's house,
they stopped at a gas station on the way back to Orangeburg. Elmore identified
Johnson in photos shown to her during her testimony and confirmed that on that
night, he was wearing the clothing shown in the photos. The video surveillance
from the gas station showed Johnson wearing a white tank top 7 and dark pants on
the evening of the crime.
Osborne testified that during law enforcement's investigation of Victim's killing,
officers were interested in one portion of video surveillance from Georgetown
Apartments showing a car backing into a parking spot and two men exiting the
vehicle and walking toward Building C. Osborne indicated that about a minute
before the shooting occurred, the two individuals walked towards the breezeway,
which was the location of the shooting. The shooting occurred outside of the
camera's view. Osborne provided that seconds after the shooting, the two
individuals ran back to the car and fled the complex in it. He testified the pair was
in a hurry when they came back to the car. He explained the vehicle depicted in
the surveillance video was a blue Toyota Camry consistent with the color, make,
and model of Elmore's car and both cars were missing the passenger side hubcaps.
He provided he could tell the vehicle in the video was missing hubcaps because of
6
Osborne was a detective for the Charleston Police Department at the time of
Victim's killing and investigated the case, which included interrogating Johnson.
At the time of trial, he was no longer a detective; he was an assistant solicitor.
7
The officers referred to the shirt shown in the video as a white tank top or "wife
beater."
the difference in shininess around the wheel area on the two sides of the car.
According to Osborne, the driver of the car wore a white tank top and black pants.
Osborne testified the only people that could be seen on the videos entering the
breezeway area was a man with a dog and the two individuals from the car. He
believed the breezeway was the only way to get to the interior of the apartment
building without going through an apartment. Osborne was unsure if someone
could come in from the pool area. On cross-examination, Osborne acknowledged
many cars shown on the security video of the parking lot of the apartment complex
had backed into parking spaces. He also agreed the apartment complex security
cameras had several blind spots.
Osborne testified about the statement Johnson gave to him. Osborne indicated that
for the first four hours of the interview, Johnson claimed he was in Orangeburg at
the time Victim was shot. Osborne provided that during the interview, he left the
room and allowed Johnson to use Osborne's cell phone. Osborne stated that after
Johnson talked on the phone with his mother and Elmore, his story began to
change—he admitted being at Georgetown Apartments and indicated he saw the
shooting. Based on Johnson's statements, Osborne opined Johnson admitted to
being the driver of the vehicle seen in the video.
Robert Holmes testified that he and Victim sold marijuana provided to them by
Johnson. Holmes stated Victim stole marijuana valued at about $1,000 from
Johnson. Holmes testified that about a week before the shooting, Johnson was
looking for Victim and was unhappy with him. On cross-examination, Holmes
acknowledged he had told Osborne that Victim had taken $500 worth of marijuana
but later gave Johnson money for the marijuana. Holmes also admitted he told
Osborne that Victim thought everything was fine between Johnson and himself
after that.
Vanessa Morton testified that while watching the news on television, she learned
law enforcement was looking for her son Diangelo Bumcum. She indicated she
immediately called the police, who then came to her house. She provided
Bumcum did not try to run, despite knowing the police were coming and he
willingly went with them. Morton told police she would help them search her
house and gave the police the clothing her son had been wearing. Police arrested
Bumcum for Victim's murder. Morton testified police arrested her son because he
was the last person seen with Victim. The charges against Bumcum were later
dismissed, and he was released several months after his arrest. Morton identified
her son in a photo from about ten minutes before the shooting and indicated he was
wearing a white tank top.
Bumcum testified that on the night of Victim's killing, he saw Victim on the porch
outside an apartment in Building C of Georgetown Apartments. Bumcum
provided he stopped to talk with Victim and their conversation was friendly. On
cross-examination, he testified he went inside the apartment to use the restroom.
He then left to go to another apartment building in the complex and about thirty to
forty-five minutes later, learned Victim had been killed. Bumcum testified he
worked at Jiffy Lube performing car services around the time period Victim was
killed.
Detective Craig Kosarko testified that at the same time Osborne was questioning
Johnson, he was questioning Bumcum. Detective Kosarko stated that at the end of
the interview, he collected the shirt Bumcum was wearing during the interview
because Bumcum stated he wore it on the day of the shooting. Osborne also
participated in Bumcum's interrogation at times. Osborne testified that after
talking to Bumcum, he looked at the video from the apartments again and observed
someone walking from Building C to Building D about ten minutes before the
shooting. He testified that due to the video quality, he had difficulty identifying
details of the person's face but the body type of the person shown on the video was
consistent with Bumcum's. He indicated the person did not appear to be walking in
a hurry. Osborne testified that Bumcum's shirt tested positive for particles of lead,
which Osborne attributed to Bumcum's job. Osborne testified that lead is one of
three types of particles that need to be detected to identify gunshot reside; the other
two being antimony and barium. Osborne provided that all three substances must
be present to have a positive test result for gunshot reside. Osborne provided that
lead is prevalent in brake pads and Bumcum worked at Jiffy Lube. However,
Osborne indicated he never asked Bumcum about it.
Osborne also testified that during the interrogation of Johnson, Detective Kosarko
showed Johnson a picture of Bumcum. Osborne indicated that Johnson first stated
he did not know the person in the photo. However, Osborne provided that later in
the interview, once Johnson admitted being at the apartment complex, he identified
Bumcum as the shooter.
Detective Kosarko testified that a series of text messages from Johnson to Terry
Stevens from the day Victim was killed showed Johnson was attempting to get
Stevens to help him with something. At 4:37 p.m., Johnson texted "i go wet dude
ass up da nite." The final message to Stevens, at 9:34 p.m. stated, "i cnt wait on u i
gotta handle my bizz."
Detective Kosarko also testified the phone records showed that on the night Victim
was killed, ten phone calls were placed to and from Johnson's phone number
between 9:01 p.m. and 10:02 p.m. and no phone calls were placed between 10:03
p.m. and 10:34 p.m. Additionally, twelve phone calls were placed between 10:35
p.m. and 11:40 p.m. Detective Kosarko indicated that the phone records also
showed Johnson called his sister, Victim's girlfriend, twice at 9:30 p.m. on the
evening of the crime. The phone records show the person placing those two calls
dialed *67 before dialing the number, which Detective Kosarko explained would
prevent the phone number from displaying on the phone of the person receiving the
call. The two phone calls lasted twelve seconds and twenty-eight seconds.
Detective Kosarko further testified about a series of text messages between
Johnson and his mother the day following the shooting. Johnson's mother texted
him asking if he was alright and he responded: " I want to b[e] alrite sha[y] got it
all twist up rite now but i kno[w] [yo]u prayin[g]." Later that same day Johnson's
mother texted him, "How you mean you want to alright[]. Deal with [yo]urself,
maintain your cool let them figure it out you had[ ]nothing to do with it." One
minute later, Johnson's mother sent him another text that stated: "Clear all [yo]ur
texts."
Elmore testified that "to wet somebody up" means "[t]o shoot them." On cross-
examination, when asked if she had stated that "wet or to get wet" also "means to
get drunk or intoxicated," she responded, "That's an interpretation, yes."
Additionally, she confirmed she had not "heard [Johnson] say get wet meaning to
stab or shoot somebody." She agreed Johnson used that term to mean intoxicated.
Holmes testified that "to wet somebody up" means to shoot the person. On cross-,
redirect, and recross-examination, he explained the terms wet and "wet up" are two
different things; that getting wet means to get drunk or intoxicated, whereas
wetting someone up means to shoot that person. Additionally, Osborne testified
that based on his experience, to wet somebody up means "you're going to shoot
somebody," explaining "when you shoot somebody multiple times, they bleed and
then they get wet." Osborne also clarified, "Wet somebody up is different than get
wet. Get wet is getting high. Wet somebody up or wet them up is shoot
somebody." Detective Kosarko also stated that to wet somebody up meant to shoot
or kill someone, describing "when you shoot somebody, their clothes get wet from
the blood."
During the State's case, an issue arose with a juror; initially, the trial court was
concerned the juror possibly had fallen asleep and later, the juror informed the
court he knew one of the witnesses who had testified. 8 After the court spoke to the
juror and the parties argued about whether the juror should be excused, the trial
court stated it was excusing the juror because the State provided it would have
exercised a preemptory challenge if the juror had indicated during voir dire he
knew one of the witnesses.
Prior to the trial court charging the jury, Johnson asked the trial court if it planned
to charge the jury on accomplice liability. The trial court stated it was going to
charge the jury on "what is the hand of one." Johnson replied he was objecting to
that language being included in the charge.
Following closing arguments, the trial court charged the jury. The charge included
the following language:
Now, in conjunction with the crime of murder, I would
charge you of this principle of law. It's called the hand of
one is the hand of all.
If a crime is committed by two or more people who are
acting together in committing a crime, the act of one is
the act of all. A person who joins with another to
accomplish an illegal purpose is criminally responsible
for everything done by the other person which occurs as
a natural consequence of the acts or act done in carrying
out the common plan or purpose. If two or more people
are together, acting together, assisting each other in
committing the offense, the act of one is the act of all.
Now, prior knowledge that a crime is going to be
committed without more is not sufficient to make a
person guilty of the crime. Mere knowledge or merely
being present by another person and the crime is
committed, that's not sufficient to convict a person of the
crime.
In order to convict the defendant -- even if the defendant
was present when it is committed, is not sufficient to
8
The juror knew the witness by a different last name than the one the trial court
listed during voir dire.
convict. You must -- guilt is -- to convict the defendant
as a principal, a principal is proven by showing an actual
or constructive presence at the scene as a result of a prior
arrangement. Therefore, finding a prior arrangement,
plan or common scheme is necessary for a finding of
guilt as a principal.
The State must prove beyond a reasonable doubt by
competent evidence that the theory of the hand of one is
the hand of all. A principal in a crime is one who either
actually commits the crime or who is present aiding,
abetting or assisting in committing the crime.
When a person does an act in the presence of and with
the assistance of another, the act is done by both. Where
two or more are acting with a common plan or scheme or
intent are present at the commission of the crime, it does
not matter who actually commits the crime. All are
guilty.
And of course, as with any other aspect, the State has to
prove each of those facts that we just discussed beyond a
reasonable doubt. That means you are firmly convinced.
After the trial court charged the jury, Johnson objected:
I just wanted to note on the record that we are objecting
to the hand of one/hand of all charge.
We don't believe that the State has presented any
evidence that the person that . . . Johnson was with that
night was the shooter. I think the evidence that they
presented exclusively in this case was the fact that . . .
Johnson was the shooter, and I will say that I believe I
gave a softball to . . . Osborne when I asked him whether
or not he would serve a murder warrant on the person
once he found out who he was and he did say no, that is
tricky because he's a passenger and I would want to find
out his involvement in this case before I did that.
So I think even their own State's witness said we don't
have enough to say he's involved or not, and that's why I
think the [c]ourt should have declined to read that hand
of one/hand of all charge.
The trial court responded:
And while I agree with you that certainly there was a lot
of indication of that in this particular case, I truly believe
the hand of one/hand of all is most appropriate,
especially with the fact that we have -- well, the
evidence.
Of course, we have the evidence, if the jury believes it, of
course, that . . . Johnson -- in taking instruction that the
State has presented that he was intending to go kill him,
go shoot him. Whether he died or not, I don't know if
that was necessarily it. Probably making him bleed I
think was what the typical literal statement of the
vernacular, but that part of it and then getting somebody
to assist him, that seems to imply I want to get somebody
and maybe he didn't want to do it himself. Maybe he
wanted somebody else to be the shooter, but he was
going to assist. So I believe all of that really falls into
that accomplice part of being participating and so I
respect your position, but I think it's appropriate under
the evidence of this case.
During deliberations, the jury sent a note that asked: "Does the 'hand of one' apply
to the possession of a weapon during the commission of a violent crime?" In
response, the trial court provided the jury with the following additional instruction:
If the State has proved beyond a reasonable doubt that
the murder has been committed, then in order to have a
conviction for the hand of one/hand of all, the State
would also have to prove beyond a reasonable doubt that
. . . Johnson had possession of a firearm at the time that
that murder was committed.
In other words, hand of -- you can't -- assuming just for
the sake that there were two people and three people,
whatever, the person -- in order to be convicted, the hand
of one doesn't apply to anything but the murder. It does
not apply to the -- to the firearm possession. You have to
prove actual possession of that in order to return a verdict
of guilty.
After returning to deliberations, the jury convicted Johnson of murder but acquitted
him of the weapons charge. The trial court sentenced him to thirty-six years'
imprisonment, with credit for time served of 2,604 days. Johnson filed a motion
for a new trial, arguing the trial court erred in charging the jury on accomplice
liability. Following a hearing, the trial court denied the motion. This appeal
followed.
STANDARD OF REVIEW
"In criminal cases, the appellate court sits to review errors of law only." State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court "is
bound by the trial court's factual findings unless they are clearly erroneous." Id.
"An appellate court will not reverse the trial [court's] decision regarding a jury
charge absent an abuse of discretion." State v. Commander, 396 S.C. 254, 270,
721 S.E.2d 413, 421-22 (2011) (quoting State v. Mattison, 388 S.C. 469, 479, 697
S.E.2d 578, 584 (2010)). "An abuse of discretion occurs when the conclusions of
the trial court either lack evidentiary support or are controlled by an error of law."
State v. Scott, 414 S.C. 482, 486, 779 S.E.2d 529, 531 (2015) (quoting State v.
Laney, 367 S.C. 639, 643-44, 627 S.E.2d 726, 729 (2006)).
LAW/ANALYSIS
Johnson argues the trial court violated his due process rights by instructing the jury
on the theory of accomplice liability, specifically the hand of one is the hand of all
because the State presented no evidence Johnson acted in concert with another.9
We agree.
9
As a threshold matter, the State submits that Johnson's assertion of a due process
violation misunderstands the function of the Due Process Clause because the
appropriate inquiry is whether the trial court abused its discretion in giving an
accomplice liability instruction because this instruction is not required by the Due
Process Clause. The fact that Johnson mentioned that his due process rights were
"Generally, the trial [court] is required to charge only the current and correct law of
South Carolina." State v. Brown, 362 S.C. 258, 261, 607 S.E.2d 93, 95 (Ct. App.
2004). "The law to be charged must be determined from the evidence presented at
trial." Barber v. State, 393 S.C. 232, 236, 712 S.E.2d 436, 438 (2011) (quoting
State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001)). If any evidence
supports a jury charge, the trial court should grant the request. Brown, 362 S.C. at
262, 607 S.E.2d at 95. A charge is correct if it adequately explains the law and
contains the correct definition when read as a whole. State v. Brandt, 393 S.C.
526, 549, 713 S.E.2d 591, 603 (2011). "In reviewing jury charges for error, we
must consider the court's jury charge as a whole in light of the evidence and issues
presented at trial." Id. (quoting State v. Adkins, 353 S.C. 312, 318, 577 S.E.2d 460,
463 (Ct. App. 2003)). If jury instructions as a whole "are free from error, any
isolated portions [that] may be misleading do not constitute reversible error." State
v. Aleksey, 343 S.C. 20, 27, 538 S.E.2d 248, 251 (2000). "A jury charge [that] is
substantially correct and covers the law does not require reversal." Brandt, 393
S.C. at 549, 713 S.E.2d at 603.
"To reverse a criminal conviction on the basis of an erroneous jury instruction, we
must find the error was a prejudicial error." State v. Bowers, 436 S.C. 640, 646,
875 S.E.2d 608, 611 (2022). "Prejudicial error in a jury instruction is an error that
contributed to the jury verdict." Id. Should an appellate court find a jury charge
erroneous, the court must then decide if the charge affected the jury's deliberations,
contributing to the verdict. See id. If the appellate court has "any reasonable doubt
as to whether the erroneous charge contributed to the verdict," it must reverse the
conviction. Id. at 647, 875 S.E.2d at 611.
"[S]ome principles of law should not always be charged to the jury." State v.
Perry, 410 S.C. 191, 202, 763 S.E.2d 603, 608 (Ct. App. 2014); see also State v.
Burdette, 427 S.C. 490, 503, 832 S.E.2d 575, 583 (2019) (stating some matters
allowed during jury argument should not be included in the jury charge).
"Instructions that do not fit the facts of the case may serve only to confuse the
jury." State v. Blurton, 352 S.C. 203, 208, 573 S.E.2d 802, 804 (2002); see also id.
at 205, 208 n.1, 573 S.E.2d at 803, 804 n.1 (reversing a conviction even though a
jury charge was a correct principle of law because it "was not warranted by the
facts adduced at trial").
violated by the jury charge is of no matter. Johnson provides that the standard of
review applicable here is that of reviewing a jury charge and is for the abuse of
discretion. He does not mention due process again.
"The doctrine of accomplice liability arises from the theory that 'the hand of one is
the hand of all.'" State v. Reid, 408 S.C. 461, 472, 758 S.E.2d 904, 910 (2014)
(quoting 23 S.C. Jur. Homicide § 22.1 (2014)). "Under this theory, one who joins
with another to accomplish an illegal purpose is liable criminally for everything
done by his confederate incidental to the execution of the common design and
purpose." Id. "A person must personally commit the crime or be present at the
scene of the crime and intentionally, or through a common design, aid, abet, or
assist in the commission of that crime through some overt act to be guilty under a
theory of accomplice liability." Id. at 472-73, 758 S.E.2d at 910. "Accordingly,
proof of mere presence is insufficient, and the State must present evidence the
participant knew of the principal's criminal conduct." Id. at 473, 758 S.E.2d at
910. "If 'a person was "present abetting while any act necessary to constitute the
offense [was] being performed through another," he could be charged as a
principal—even "though [that act was] not the whole thing necessary."'" Id.
(alterations in original) (emphases omitted) (quoting Rosemond v. United States,
572 U.S. 65, 72 (2014)).
In State v. Washington, 10 our supreme court determined the trial court erred by
instructing the jury on accomplice liability. 431 S.C. 394, 397, 848 S.E.2d 779,
781 (2020). The supreme court provided "an alternate theory of liability may not
be charged to a jury 'merely on the theory the jury may believe some of the
evidence and disbelieve other evidence.'" Id. at 409, 848 S.E.2d at 787 (quoting
Barber, 393 S.C. at 236, 712 S.E.2d at 438). The supreme court explained that
"[f]or an accomplice liability instruction to be warranted, the evidence must be
'equivocal on some integral fact and the jury [must have] been presented with
evidence upon which it could rely to find the existence or nonexistence of that
fact.'" Id. at 407, 848 S.E.2d at 786 (second alteration by court) (quoting Barber,
393 S.C. at 236, 712 S.E.2d at 439). The supreme court noted the record in that
case contained evidence the defendant was the shooter but also contained evidence
he was not the shooter. Id. Accordingly, the supreme court held that "[t]he
question becomes whether there was equivocal evidence the shooter, if not [the
defendant], was an accomplice of [the defendant]." Id.
10
Johnson's brief mentions this court's Washington opinion and noted that the
supreme court had granted the petition for certiorari and heard arguments. No
opinion had been issued at the time of the filing of the briefs. Johnson provided
the supreme court's opinion to this court as a supplemental authority.
The supreme court examined the case of Wilds v. State, 11 in which this court
affirmed the finding that the trial court erred by giving an accomplice liability jury
charge. Washington, 431 S.C. at 409-10, 848 S.E.2d at 787. The supreme court
observed that this court in Wilds noted no evidence was presented that anyone
other than the defendant was the shooter. Washington, 431 S.C. at 409, 848 S.E.2d
at 787 (citing Wilds, 407 S.C. at 439-40, 756 S.E.2d at 390-91). The supreme court
in Washington posited that the jury, like the jury in Wilds, may have doubted the
testimony from the only possible accomplice that he did not shoot the victim. Id.
at 410, 848 S.E.2d at 787. However, the supreme court found to warrant an
accomplice liability jury instruction, some evidence must have been presented that
the possible accomplice shot the victim. Id. The supreme court held because
neither party presented such evidence, the trial court erred by giving the
accomplice liability jury instruction. Id. at 403, 410-11, 848 S.E.2d at 784, 787-88.
Recently, in State v. Campbell, this court decided whether an accomplice liability
instruction was improperly given. 12 435 S.C. 528, 868 S.E.2d 414 (Ct. App. 2021),
cert. granted, S.C. Sup. Ct. Order dated Sept. 8, 2022. In that case, this court
found the trial court had erred in giving the instruction and reversed the conviction.
Id. at 541, 868 S.E.2d at 421. This court provided:
Based on the evidence presented at trial, only Richardson
could have been [the defendant's] accomplice. On the
day of the shooting, Richardson rode with [the defendant]
from North Charleston to [the location of the shooting],
parked the car for [the defendant], and drove [the
defendant] back to North Charleston. Like in Wilds and
Washington, the jury could have doubted Richardson's
testimony that he was not involved in a common plan or
scheme with [the defendant] to carry out the shooting.
Nevertheless, neither party presented evidence that
Richardson and [the defendant] had joined together in a
common plan or scheme to carry out the shooting.
Indeed, Richardson testified he did not know [the
defendant] was going to drive to [the shooting location]
or why [the defendant] asked him to park the car on [a
particular s]treet.
11
407 S.C. 432, 756 S.E.2d 387 (Ct. App. 2014).
12
Johnson has provided this opinion as a supplemental authority.
Campbell, 435 S.C. at 540, 868 S.E.2d at 421.
This court further explained:
Even if Richardson's involvement was equivocal
evidence he and [the defendant] worked together to carry
out the shooting, the Record must have also contained
some evidence Richardson was the shooter for the
accomplice liability instruction to be proper; it did not.
Again, the jury could have doubted Richardson's
testimony that he was not the shooter. Still, while
security footage showed Richardson walking in [the
shooting location] around the time of the shooting, it also
showed him walking without a rifle, wearing a white T-
shirt and ball cap rather than a hoodie, and getting into
the gold Buick rather than a lime green car.
Consequently, Richardson does not meet the description
of the man seen by [a witness].
Id. at 541, 868 S.E.2d at 421.
This court determined because "neither party presented evidence that either [the
defendant] was working with the man seen by [the witness] or that Richardson was
the shooter," the trial court erred by giving an accomplice liability jury instruction.
Id.
"Generally, motive is not an element of a crime that the prosecution must prove to
establish the crime charged, but frequently motive is circumstantial evidence . . . of
the intent to commit the crime when intent or state of mind is in issue." State v.
Sweat, 362 S.C. 117, 124, 606 S.E.2d 508, 512 (Ct. App. 2004) (omission by
court) (quoting Danny R. Collins, South Carolina Evidence 319 (2d ed. 2000)).
The trial court here erred in giving the accomplice liability jury charge. The State's
theory of the case was that Johnson and the passenger in his car killed the Victim.
No eyewitness testified that he or she saw the Victim being shot. Johnson
provided in his statement to the police that he saw one person shoot Victim, and he
identified Bumcum as that shooter when law enforcement showed him a photo of
Bumcum. The record shows a car with two men in it backed into a parking space,
which Osborne suggested the individuals were "trying to get out in a hurry." The
two individuals walked together toward the crime scene, remained for a few
seconds, and quickly ran back to the car together and fled the complex. Osborne
opined Johnson and another male were the individuals in the vehicle seen in the
video. The car seen in the video is consistent with the car Johnson was known to
be driving that night. From the video, the clothing of the driver of the car matched
the clothing Johnson was wearing that night. Johnson admitted in his statement
that he was at the apartment complex and present at the shooting. Cell phone data
also placed Johnson at the complex. Further, Johnson admitted Creep was with
him at the time of the crime. The State's entire theory of the case was that Johnson
was the shooter.
The State presented evidence Victim owed Johnson a debt. The State also
introduced text messages that Johnson was going to wet someone up, which meant
to shoot or kill a person. The Record contains no evidence that Johnson recruited
anyone to actually shoot Victim; any evidence of recruiting as shown in the text
messages is to assist or accompany Johnson.
An accomplice liability charge was not proper because the evidence is not
equivocal as to whether Johnson or Creep was the shooter—all the evidence
presented only went to Johnson being the shooter; no evidence was presented of
Creep being the shooter. See Barber, 393 S.C. at 236, 712 S.E.2d at 439 ("Like a
lesser-included offense, an alternate theory of liability may only be charged when
the evidence is equivocal on some integral fact and the jury has been presented
with evidence upon which it could rely to find the existence or nonexistence of that
fact. We find the sum of the evidence presented at trial, both by the State and
defense, was equivocal as to who was the shooter. Thus, the charge on accomplice
liability was warranted."). Additionally, although the record contains little
evidence Bumcum was the shooter, to the extent that Bumcum could have been the
principal, the State presented no evidence Johnson was working with him.
The weapons charge of which the jury acquitted Johnson states it applies when "a
person is in possession of a firearm or visibly displays what appears to be a firearm
. . . during the commission of a violent crime and is convicted of committing or
attempting to commit a violent crime." S.C. Code Ann. § 16-23-490(A) (2015).
The record establishes Victim died from being shot with a firearm. For the jury to
acquit Johnson of the weapons charge, it must have found the State did not meet its
burden of proving Johnson actually shot Victim and therefore, only found him
guilty of murder due to the theory of accomplice liability. Therefore, the charge
prejudiced Johnson.
CONCLUSION
The trial court erred by charging the jury on accomplice liability and that error
prejudiced Johnson.13 Accordingly, Johnson's conviction of murder is
REVERSED.
WILLIAMS, C.J., and VINSON, J., concur.
13
Because this issue is dispositive, we need not reach Johnson's issues regarding
the voluntariness of his statement and the juror disqualification. Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) (noting an appellate court need not review remaining issues when its
determination of a prior issue is dispositive of the appeal). | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482505/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Athey and White
UNPUBLISHED
TYLER GLEND COONTZ
MEMORANDUM OPINION*
v. Record No. 0331-22-3 PER CURIAM
NOVEMBER 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Thomas J. Wilson, IV, Judge
(Louis K. Nagy; Law Office of Louis K. Nagy, PLC, on brief), for
appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Stephen J. Sovinsky, Assistant
Attorney General, on brief), for appellee.
Tyler Glend Coontz appeals from the judgment of the trial court revoking his previously
suspended sentences. Coontz contends that the trial court abused its discretion by revoking his
previously suspended sentences and imposing an active term of six years, five months, and thirty
days’ incarceration. After examining the briefs and record in this case, the panel unanimously
holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code
§ 17.1-403(ii)(a); Rule 5A:27(a). This Court affirms the trial court’s judgment.
BACKGROUND
“In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed
unless there is a clear showing of abuse of discretion.’” Jacobs v. Commonwealth, 61 Va. App.
529, 535 (2013) (quoting Davis v. Commonwealth, 12 Va. App. 81, 86 (1991)). “The evidence is
considered in the light most favorable to the Commonwealth, as the prevailing party below.” Id.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
In 2015, Coontz pleaded guilty to distribution of a Schedule III controlled substance
under an agreed disposition.1 Consistent with the agreed disposition, the trial court sentenced
Coontz to five years’ imprisonment with all but one day suspended, conditioned upon two years
supervised probation. In both 2016 and 2018, the trial court revoked and resuspended Coontz’s
previously suspended sentence, in part. At the 2018 revocation hearing, the trial court ordered
Coontz to complete the Community Corrections Alternative Program (“CCAP”) and extended
his probation “for a period of 2 years upon his release to” CCAP.
In 2019, Coontz pleaded guilty to possession of a Schedule I or II controlled substance
under an agreed disposition.2 The trial court sentenced Coontz to four years’ imprisonment with
“all but 12 months” suspended, conditioned on two years of supervised probation. Based on
Coontz’s new conviction, the trial court revoked and resuspended his 2015 suspended sentence,
conditioned on his successful completion of the CCAP program. In May 2020, the trial court
granted Coontz’s request for early release from CCAP, finding that he had “received the
maximum benefit of the program.” The trial court ordered Coontz to report to his probation
officer immediately upon his release from CCAP.
According to Coontz’s probation officer, in August, September, and October 2020,
Coontz violated the terms and conditions of his previously suspended sentences by incurring new
charges, failing to report to scheduled meetings, and admitting to using methamphetamine. The
trial court issued a capias for the violations and ordered on October 30, 2020, that Coontz be held
without bond.
1
In exchange for appellant’s guilty plea, the Commonwealth moved the trial court to
nolle prosequi one count of manufacturing marijuana.
2
In exchange for appellant’s guilty plea, the Commonwealth moved the trial court to
nolle prosequi one count of misdemeanor eluding.
-2-
At the revocation hearing Coontz conceded that he had violated the terms and conditions
of his previously suspended sentences by incurring new convictions for two counts of DUI
maiming.3 Coontz’s counsel advised the trial court that the parties recommended revoking
Coontz’s previously suspended sentences in their entirety and ordering the sentences to run
concurrently with each other but consecutive to the sentences the trial court imposed for the new
convictions. Counsel contended that the recommendation was “just slightly under the high-end”
of the sentencing guidelines. The trial court noted Coontz had incurred the new convictions
three months after it granted him early release from CCAP. Coontz’s counsel stated he had
explained to Coontz that the trial court could “treat a plea agreement differently from a
recommendation” on a revocation.
Coontz proffered that he had suffered serious injuries in the car accident giving rise to the
DUI maiming convictions. In fact, his injuries had confined him to a wheelchair for months, and
he was “completely reliant” on others, which caused him to miss appointments with his
probation officer.
Addressing an appropriate sentence, the Commonwealth acknowledged that it had made
the recommendation as “part of the . . . same negotiation on the underlying charges.” Coontz
argued that he “clearly” had a substance abuse addiction and asked the trial court to order him to
Therapeutic Community as a “last ditch effort” to address his addictions. Although Coontz
understood that the trial court was not required to accept the revocation sentencing
recommendation, he again emphasized that the recommendation was at the “high-end” of the
3
Before the revocation hearing, Coontz pleaded guilty to two counts of DUI maiming
under an agreed disposition. Based on his guilty pleas and the Commonwealth’s proffer of
evidence, the trial court convicted Coontz of the charges. The trial court sentenced Coontz to six
years’ imprisonment with four years suspended for each conviction, for a total active sentence of
four years’ imprisonment. Coontz does not challenge those convictions or sentences.
-3-
sentencing guidelines. In addition, Coontz contended that the plea agreement for the new
convictions contained “two [additional] years added to . . . the suspended sentence.”
In allocution, Coontz apologized to the victims of his DUI maiming convictions. He was
employed before his arrest, had accepted responsibility for his actions, and contended that he was
not a “bad person.”
Before sentencing, the trial court found that neither the discretionary sentencing guidelines
nor the recommendation was adequate under the circumstances. The trial court found that the
conduct underpinning the two maiming convictions—intoxicated driving—occurred only three
months after Coontz’s release from CCAP. In addition, the victims had suffered “catastrophic
permanent injuries” because of Coontz’s actions. The trial court further found that Coontz was a
danger to himself and the community and revoked and reimposed the balance of his previously
suspended sentences. Coontz appeals.
ANALYSIS
Coontz contends that the trial court abused its discretion by imposing the balance of his
previously-suspended sentences. He argues that the trial court failed to give appropriate weight to
the “multiple relevant [mitigating] factors” he presented, “completely ignored the relevant”
sentencing guidelines, disregarded “the negotiations entered into by the parties,” and imposed an
active sentence that was “well outside the bounds of what was necessary, proper, or just.” The
record does not support Coontz’s argument.
After suspending a sentence, a trial court “may revoke the suspension of sentence for any
cause the court deems sufficient that occurred at any time within the probation period, or within the
period of suspension fixed by the court.” Code § 19.2-306(A). Moreover, under the revocation
statute in effect when the revocation proceeding began, once the trial court found that Coontz had
violated the terms of the suspension, it was obligated to revoke the suspended sentence, and the
-4-
original sentence was in “full force and effect.” Code § 19.2-306(C)(ii) (Cum. Supp. 2020).4 The
trial court was permitted—but not required—to resuspend all or part of the sentence. Id.; Alsberry
v. Commonwealth, 39 Va. App. 314, 320 (2002).
Coontz conceded that he had violated the terms and conditions of his previously
suspended sentences by incurring the new convictions. Thus, the trial court had sufficient cause
to revoke his suspended sentences. It was within the trial court’s purview to weigh any
mitigating factors Coontz presented, such as his injuries and need for substance abuse treatment.
Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
This Court rejects Coontz’s argument that the trial court “completely ignored” the
discretionary sentencing guidelines and the “negotiations entered into by the parties” because the
record does not support that contention. Rather than “ignor[ing]” any pertinent information, the trial
court expressly considered both the guidelines and the parties’ recommendation but rebuffed them
as inadequate under the circumstances of the case.
Furthermore, the probation violation guidelines, like the standard sentencing guidelines, “are
not binding on the trial judge; rather, the guidelines are merely a ‘tool’ to assist the judge in fixing
an appropriate punishment.” Belcher v. Commonwealth, 17 Va. App. 44, 45 (1993). Code
§ 19.2-298.01(F) precludes appellate review of whether the trial court adhered to Code
§ 19.2-298.01(B). Specifically, Code § 19.2-298.01(F) states that “[t]he failure to follow any or all
of the provisions of [Code § 19.2-298.01] in the prescribed manner shall not be reviewable on
4
Although Code § 19.2-306(C) was amended effective July 1, 2021, Coontz does not
argue that the statutory amendment applied in his case and this Court recently held that it did not
apply when, as here, the probation violations occurred and the revocation proceeding began
before the effective date of the amendment. See Green v. Commonwealth, 75 Va. App. 69, 84 &
n.4 (2022). Moreover, even under the new statutory framework the trial court has discretion to
impose the balance of a previously suspended sentence when a probationer commits a new
offense during the suspension period. See 2021 Va. Acts Spec. Sess. I, ch. 538; Code
§ 19.2-306.1(B).
-5-
appeal or the basis of any other post-conviction relief.” (Emphasis added). See also, West v. Dir. of
Dep’t of Corrs., 273 Va. 56, 65 (2007) (holding Virginia sentencing guidelines are discretionary);
Fazili v. Commonwealth, 71 Va. App. 239, 248-49 (2019) (holding Code § 19.2-298.01(F) prohibits
appellate review of a trial court’s failure to follow discretionary sentencing guidelines).
“The statutes dealing with probation and suspension are remedial and intended to give the
trial court valuable tools to help rehabilitate an offender through the use of probation, suspension of
all or part of a sentence, and/or restitution payments.” Howell v. Commonwealth, 274 Va. 737, 740
(2007). The record reflects that Coontz engaged in criminal conduct, with catastrophic
consequences for his victims, during the suspension period and within a short time after his early
release from CCAP. The record further reflects that this was Coontz’s third revocation on his 2015
conviction. Coontz failed to report to his probation officer and admitted that he had used
methamphetamine. Coontz’s disregard of the terms of his suspended sentences supports the trial
court’s decision to impose an active sentence.
“When coupled with a suspended sentence, probation represents ‘an act of grace on the part
of the Commonwealth to one who has been convicted and sentenced to a term of confinement.’”
Hunter v. Commonwealth, 56 Va. App. 582, 587 (2010) (quoting Price v. Commonwealth, 51
Va. App. 443, 448 (2008)). Coontz failed to make productive use of the grace that had been
repeatedly extended to him. After considering all the evidence before it, the trial court found that
neither the sentencing guidelines nor the parties’ recommendation was adequate because Coontz
was a danger to himself and the community. Accordingly, this Court finds that the trial court’s
imposed sentence represents a proper exercise of discretion. See Alsberry, 39 Va. App. at 322
(finding the court did not abuse its discretion by imposing the defendant’s previously suspended
sentence in its entirety “in light of the grievous nature of [the defendant’s] offenses and his
continuing criminal activity”).
-6-
To the extent Coontz argues that his sentence was disproportionate, this Court declines to
engage in a proportionality review in cases that do not involve life sentences without the
possibility of parole. Cole v. Commonwealth, 58 Va. App. 642, 653-54 (2011). We noted in
Cole that the Supreme Court of the United States “has never found a non-life ‘sentence for a
term of years within the limits authorized by statute to be, by itself, a cruel and unusual
punishment’ in violation of the Eighth Amendment.” Id. at 653 (quoting Hutto v. Davis, 454
U.S. 370, 372 (1982) (per curiam)). Cf. Vasquez v. Commonwealth, 291 Va. 232, 243 (2016)
(rejecting an Eighth Amendment challenge to a 133-year active sentence because the sentence
was imposed for “eighteen separate crimes”). As noted, the instant proceedings were Coontz’s
third probation violation of his 2015 offense and, despite the trial court’s repeated extensions of
grace, Coontz continued to commit criminal offenses and wholly failed to cooperate with
probation.
CONCLUSION
Having reviewed the record, this Court holds that the sentence the trial court imposed
represents a proper exercise of discretion. Accordingly, the trial court’s judgment is affirmed.
Affirmed.
-7- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482496/ | Cite as 2022 Ark. App. 456
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-22-112
Opinion Delivered November 9, 2022
JOHN KRIEGER
APPELLANT APPEAL FROM THE HOWARD
COUNTY CIRCUIT COURT
V. [NO. 31CR-19-70]
HONORABLE CHARLES A. YEARGAN,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED
KENNETH S. HIXSON, Judge
Appellant John Krieger was convicted in a jury trial of second-degree sexual assault
committed against his eight-year-old step-granddaughter, Minor Child, and he was sentenced
to ten years in prison. On appeal, Krieger argues that the trial court erred in denying his
motion to suppress the results of a polygraph test, 1 notwithstanding Krieger’s written
stipulation to the admission of the test results prior to his taking the test. Krieger also argues
that the trial court erred in excluding the testimony of his expert witness who was called to
critique the manner in which the forensic interviews of Minor Child were conducted. We
affirm.
1
A polygraph test is also sometimes referred to herein as a Computer Voice Stress
Analyzer (CVSA).
The sexual assault was alleged to have been committed in Krieger’s home while Minor
Child was sitting on Krieger’s lap on February 14, 2019. On February 19, 2019, Minor
Child’s father, Scott Lovelis, who is Krieger’s stepson, drove Krieger in his truck to the police
station. While there, Krieger was given his Miranda warnings, and he gave a statement to
the police wherein he denied sexually assaulting Minor Child. Krieger then signed a written
stipulation, which was also signed by the polygraph examiner and the prosecuting attorney.
The written stipulation provided that Krieger agreed to voluntarily submit to a CVSA
regarding his knowledge of the alleged offense and agreed to stipulate that the results of the
test shall be admissible at any pretrial hearing or trial. Krieger also signed a release, which
was signed by the polygraph examiner, wherein Krieger agreed to “voluntarily, without
duress, coercion, promise, reward or immunity, submit to examination by the Voice Stress
Analysis Truth Verification technique[.]” Krieger then submitted to the CVSA, and the
examiner, Investigator David Shelton, detected deception by Krieger when answering
questions related to sexual abuse committed against Minor Child.
Prior to trial, Krieger filed a motion to suppress the results of the CVSA on the
grounds that his consent to the test was coerced and therefore involuntary. In the motion,
Krieger asserted that on February 19, 2019, Minor Child’s father, Scott Lovelis, came to
Krieger’s home and asked him to go for a ride in his truck. Krieger alleged that once Krieger
was in the truck and away from Krieger’s home, Lovelis produced a handgun, busted out the
front windshield of the truck with his fist, and demanded that Krieger immediately go to the
police station and take a polygraph test. Krieger further alleged that Lovelis threatened to
2
cut Krieger into “a million pieces” if he did not comply and that Krieger, in fear for his life,
agreed to take the test. Krieger asserted that he was threatened and coerced into agreeing to
take the test without the benefit of an attorney. Krieger stated that, although he signed a
stipulation agreement as to the admissibility of the test and a release stating that he was not
coerced or under duress, the law enforcement involved should have been alerted that
something was amiss when the father of the alleged sexual-assault victim delivered Krieger to
the police station and presumably would later drive him home. For these reasons, Krieger
asked that the trial court prohibit any mention of the CVSA at trial.
The trial court held a hearing on Krieger’s motion to suppress the results of the
CVSA. Sheriff Bryan McJunkins testified that on the day the CVSA was administered,
Lovelis and Krieger arrived at the police station, and Lovelis told him that Krieger was ready
to give his side of the story and was willing to take a test. Lovelis then left the office.2
Sheriff McJunkins testified that he spoke with Krieger and that the purpose of the
visit was to determine whether Krieger was going to give a statement and was willing to take
a polygraph test. Sheriff McJunkins described Krieger as being calm and stated that there
was no indication that he had been threatened or was in distress. Krieger informed Sheriff
McJunkins that he was formerly in law enforcement. Sheriff McJunkins stated that they
discussed Krieger’s knowledge of his rights and that he was not under any pressure to make
a statement. Officer McJunkins stated that he told Krieger, “You don’t have to talk to us if
2
The record shows that after Lovelis left Sheriff McJunkin’s office, Krieger had no
further contact with Lovelis that day.
3
you don’t want to[,] . . . [but] if you want to talk to us and tell your side of the story, we can
take your statement.” According to Officer McJunkins, Krieger kept saying, “I want to give
a statement, I want to get this out if the way,” and Krieger agreed to give a statement and
take a polygraph test.
On cross-examination, Officer McJunkins testified that he could tell that Krieger was
somewhat anxious and that Krieger had mentioned that there were some words exchanged
between Krieger and Lovelis. Officer McJunkins also testified that Lovelis had a reputation
in the community as a temperamental person. Nonetheless, Sheriff McJunkins never saw
any friction between the two men that day or saw any need to deescalate a situation.
Investigator Joey Davis, who conducted the Mirandized interview with Krieger,
testified next. Investigator Davis testified that when Krieger and Lovelis arrived at the police
station that day, Lovelis told him and Sheriff McJunkins, “He’s here to talk to y’all, please
treat him with respect and be good to him. He agreed to take the test.” Investigator Davis
did not see any threatening behavior by Lovelis. Investigator Davis stated that he went over
the waiver-of-rights form with Krieger and that Krieger initialed each of his rights, signed the
form, and agreed to give a statement. During the process of going over the waiver-of-rights
form, Krieger offered that he had formerly been a police officer for ten years and he indicated
that he knew how “this process and these cases work.” Krieger indicated that during his time
in law enforcement, he had conducted numerous interviews with criminal suspects.
Investigator Davis stated that Krieger appeared very calm and relaxed.
4
Portions of the interview were played during the suppression hearing. At one point
during the interview, Krieger stated that Lovelis “took the gun out and laid it and I said, ‘go
ahead,’ . . . I’m not gonna beg you not to shoot me or yourself or whatever.” Investigator
Davis then stated, “Before we go any further, I want you to know you don’t have to talk to
me.” Krieger responded, “I know that,” and the interview continued. During the interview,
Krieger was asked about the allegations of sexual abuse that occurred on February 14, 2019,
and he denied the allegations. At the conclusion of the interview, Investigator Davis
arranged for Investigator David Shelton to administer the CVSA in the same location where
the interview had been conducted. According to Investigator Davis, he drove Krieger home
from the police station at the end of the day.
Investigator Shelton testified that he has been a certified administrator of CVSAs for
twelve years and had administered approximately 120 tests. Investigator Shelton stated that
he went over the stipulation agreement with Krieger and explained to Krieger that if he
signed it, the CVSA could be used in court. Investigator Shelton indicated that Krieger
appeared to have no trouble understanding the stipulation agreement and that he signed it.
Investigator Shelton also went over the release form with Krieger, which Krieger indicated
that he understood and signed. After Krieger signed the forms, Investigator Shelton
administered the CVSA. During their interaction, Krieger never indicated to Investigator
Shelton at any time that he was afraid or was under duress.
Finally, Krieger himself testified at the suppression hearing. Krieger stated that on
the morning of February 19, 2019, Lovelis came to his house and asked him to go for a ride
5
with hm in his truck. Krieger agreed, and after they left in the truck, Lovelis checked
Krieger’s phone to make sure he was not recording. According to Krieger, Lovelis began
“screaming and hollering and going crazy” about a problem regarding his daughter, Minor
Child. Krieger testified that Lovelis told him if he did not take and pass a polygraph test,
Lovelis would kill him and cut him into “a million pieces.” Krieger stated that Lovelis took
out a gun and laid it on the console and then busted the windshield with his fist.
Krieger confirmed that when they arrived at the police station, Lovelis told the officers
to “treat [Krieger] with dignity and respect,” and then Lovelis left. Krieger testified that he
felt threatened by Lovelis and assumed that if he did not take the polygraph test, Lovelis
would kill him, as Lovelis had said he would do. Krieger stated that he “absolutely” felt like
he took the CVSA under duress. Krieger also stated that he did not feel particularly safe at
the police station because he thought Lovelis was friends with the officers.
Krieger acknowledged that he had almost ten years’ experience as a police officer, and
that during his time as an officer, he had conducted suspect interviews and administered
Miranda warnings, including in sexual-assault cases. Krieger confirmed that he signed the
waiver-of-rights form before giving his statement to the police and indicated that he already
knew his rights based on his prior experience as a police officer. Krieger did not recall signing
the stipulation agreement whereby he stipulated to the CVSA results being admitted at trial,
but he did acknowledge that he signed the document.
6
Krieger testified that he was never threatened by Sheriff McJunkins, Investigator
Davis, or Investigator Shelton. Krieger, however, stated that at some point during the
process, he had told the officers that he was afraid as a result of Lovelis’s threats.
At the conclusion of the suppression hearing, Krieger argued that the CVSA result
should be suppressed for two reasons: because he was taken to the police station by a show
of force and threatened with death if he did not take the test and because he signed the
stipulation of admissibility without the benefit of counsel.
The trial court announced from the bench that it was denying Krieger’s motion to
suppress and made findings in support of its decision. The trial court found that, according
to the officers’ testimony, Krieger was calm and did not communicate to them that he had
been threatened. The trial court further found that Krieger had acknowledged almost ten
years of law-enforcement experience and was aware of his rights to give or not give a statement
as well as his right to an attorney. The trial court noted that, although the stipulation
agreement itself did itself not advise Krieger of his right to counsel, Krieger had signed the
waiver-of-rights form advising him of his right to counsel not long before he executed the
stipulation and agreed that the CVSA results would be admissible at trial. After the trial
court denied Krieger’s motion to suppress the CVSA result, the case proceeded to a jury
trial.
Minor Child was the first witness to testify at the jury trial. Minor Child testified that
on February 14, 2019, when she was eight years old, she was sitting on Krieger’s lap in a
recliner in his living room and that she was covered by a blanket. Minor child stated that
7
her grandmother was also in the room. Minor child stated that Krieger fondled her and
digitally penetrated her vagina. Minor Child stated that this had happened before and that
it started when she was around four years old. After the February 14, 2019 incident, Minor
Child called her mother to come get her, and she disclosed the sexual assault to her mother
on the way home.
Rebecca Freeman, a nurse, testified that that she performed a rape-kit examination
and that there were no physical findings. Jennifer Beaty-West of the Arkansas State Crime
Laboratory testified that male DNA was found on Minor Child’s leggings and underwear,
but not enough for a profile.
Investigator David Shelton testified that he holds an advanced certificate in the field
of CVSA and that he has been administering tests since 2008. Investigator Shelton stated
that he performed a CVSA on Krieger and that Krieger’s demeanor appeared normal that
day. Investigator Shelton testified that his analysis indicated deception by Krieger when
Krieger was asked whether he had ever touched Minor Child’s vagina and whether he had
ever made Minor Child touch his penis.
Krieger testified in his own defense. Krieger denied sexually assaulting Minor Child
or ever touching her inappropriately.
Krieger attempted to present the testimony of Dr. Stephen Thorne, a licensed
psychologist. The purpose of Dr. Thorne’s testimony was to point out inconsistencies in
Minor Child’s statements during two forensic interviews by the Child Advocacy Centers
(CAC). The State objected, arguing that the jury is the sole arbiter of credibility and that it
8
was improper for a witness to comment on the truthfulness of a victim’s statements. The
trial court excluded the proposed testimony on the basis that it would invade the province
of the jury and the CAC interviews had not been introduced into evidence.
After the trial court made its ruling, Krieger proffered the testimony of Dr. Thorne.
Krieger did not, however, proffer the recordings of the CAC interviews Dr. Thorne was
critiquing. In his proffered testimony, Dr. Thorne noted that, although the CAC interviews
had not been introduced into evidence, a recording was introduced and played to the jury
wherein Minor Child’s father asked questions to Minor Child about the abuse, and Minor
Child described what had happened. Dr. Thorne thought that Minor Child’s interview with
her father had the potential to have an effect on the CAC interviews. Dr. Thorne testified
that he noted inconsistencies in Minor Child’s statements that were made during the CAC
interviews, and he opined that that those inconsistencies should have been—but were not—
explored by the forensic interviewers.
At the conclusion of the jury trial, Krieger was found guilty of second-degree sexual
assault and sentenced to ten years in prison. Krieger appealed.
For his first argument on appeal, Krieger argues that, although he stipulated to the
admissibility of results the CVSA, the test results should nonetheless have been excluded
from evidence for various reasons. We reject each of Krieger’s challenges to the admissibility
of the CVSA results for the reasons explained below.
Arkansas Code Annotated section 12-12-701 (Repl. 2016) provides that all law
enforcement agencies in this state are authorized to use a psychological stress evaluation
9
instrument to test or question individuals for the purpose of determining and verifying the
truth of statements. Prior to administering any psychological stress evaluation tests, the
person to whom the test is administered must be warned prior to any questioning that:
(1) He or she has a right to remain silent;
(2) Anything he or she says can be used against him or her in a court of law;
(3) He or she has the right to the presence of an attorney; and
(4) If he or she cannot afford an attorney, one may be appointed for him or her
prior to his or her questioning if he or she so desires.
Ark. Code Ann. § 12-12-702 (Repl. 2016). Arkansas Code Annotated section 12-12-704
(Repl. 2016) provides, “The results of any such examination as provided in this subchapter
shall be inadmissible in all courts in this state.”
Notwithstanding the statutory prohibition against the admission of polygraph test
results, the supreme court has carved out an exception to this prohibition upon a written
stipulation of the parties that results may be introduced into evidence. The supreme court
stated in Hayes v. State, 298 Ark. 356, 357, 767 S.W.2d 525, 525 (1989):
Arkansas law prohibits the admission of polygraph test results, except upon a
written stipulation of the parties. See Ark. Code Ann. § 12–12–704 (1987); Foster v.
State, 285 Ark. 363, 687 S.W.2d 829 (1985). Such stipulation agreements are to be
scrutinized carefully by the courts, and will not be honored if any questions or
problems arise. See, e.g., Foots v. State, 258 Ark. 507, 528 S.W.2d 135 (1975).
Krieger’s first challenge on appeal to the admissibility of the CVSA results is his claim
that, notwithstanding the supreme court’s holding to the contrary in Hayes, supra, there
should be a universal ban on the admission of polygraph tests that cannot be circumvented
10
by a stipulation of the parties or for any other reason. Krieger asserts that “Arkansas
jurisprudence on admissibility of ‘lie detectors’ has stumbled into a state of affairs where the
courts have the power to approve a supposed agreement to violate the law.” Krieger claims
that this violates public policy as well as the separation-of-powers doctrine.
We observe that this particular argument was not raised below, and it is well settled
that an appellant must raise and make an argument at trial in order to preserve the argument
on appeal. See Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003). Krieger acknowledges
that he failed to raise this argument below, but he attempts to invoke the fourth exception
to the contemporaneous-objection rule in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366
(1980). The fourth Wicks exception is based on Ark. R. Evid. 103(d), which provides that
“[n]othing in this rule precludes taking notice of errors affecting substantial rights although
they were not brought to the attention of the court.”3
We do not agree with Krieger’s contention that this is an issue that may be raised for
the first time on appeal in the absence of a proper objection below. Our case law is quite
clear that Wicks presents only narrow exceptions that are to be rarely applied, Williams v.
3
We note that prior to the submission of this case to our court, Krieger filed a motion
to certify the case to the supreme court, arguing that this case presents issues of significant
public interest or a legal principle of major importance. In his motion, Krieger questioned
how the supreme court could carve out an exception to the statutory categorical ban on
polygraph-test evidence and asserted that, although this issue was not raised at trial, this was
cognizable on appeal under Wicks, supra. The supreme court denied Krieger’s motion to
certify the case.
11
State, 2022 Ark. App. 101, 641 S.W.3d 83, and Krieger has presented no convincing
argument that the fourth Wicks exception is applicable here.
Nevertheless, even were we to agree that this issue is preserved, we would be unable
to afford Krieger any relief. This is because we are bound to follow the precedents set by the
supreme court, and we are powerless to overrule its decisions. Brewer v. State, 68 Ark. App.
216, 6 S.W.3d 124 (1999). The supreme court has repeatedly held that a polygraph test may
be admissible upon written stipulation of the parties, see Hayes, supra, Foster, supra, Foots,
supra, and we are bound by those decisions.
Krieger next argues that, even if there is no universal prohibition against the
admissibility of polygraph tests, we should reverse the trial court’s admission of the polygraph
test results under the circumstances presented in this case. Krieger argues that the test results
should have been suppressed because (1) Krieger was not informed of his right to counsel
when he signed the stipulation agreement; and (2) he was coerced into signing the stipulation
agreement where the victim’s armed father threatened Krieger, a seventy-five-year-old
diabetic, and demanded that he accompany him to the police station to take the test. Krieger
notes that in Hayes, supra, the supreme court stated, “Such stipulation agreements are to be
scrutinized carefully by the courts, and will not be honored if any questions or problems
arise.” Hayes, 298 Ark. at 357, 767 S.W.2d at 525. Krieger submits that his uncounseled
decision to sign the stipulation and the fact that he was coerced into taking the polygraph
test constitute the “questions or problems” contemplated by the supreme court in Hayes.
12
As an initial matter, we observe that in making the above statement in Hayes, the
supreme court cited its prior opinion in Foots, supra. In Foots, the supreme court affirmed
the trial court’s exclusion of two polygraph tests, even though there was a stipulation as to
the admissibility of the tests, and offered the following explanation:
During the trial the defense sought to introduce the testimony of two
polygraph examiners, H. G. Kelley and police sergeant Don Wall. The testimony was
offered pursuant to pre-trial stipulations which recited that the defendants ‘will
submit to polygraph tests’ and that ‘any and all polygraph examination results taken’
by the defendants may be introduced in evidence. The trial judge refused to allow
Kelley’s testimony on the ground that his examinations had been made before the
stipulations and refused to allow Wall’s testimony on the ground that he was not a
qualified expert witness in polygraphics.
We think the trial judge correctly interpreted the stipulation, which
contemplated tests to be made thereafter. Lang v. State, 258 Ark. 504, 527 S.W.2d
900, also decided today. Hence Kelley’s testimony was properly excluded. Officer
Wall testified that he was an intern in polygraphics, not a licensed examiner, and that
his tests were reviewed by his supervisor. See Ark. Stat. Ann. § 71-2207 (Supp. 1973).
We find no abuse of the trial court’s wide discretion in determining the qualifications
of an expert witness. Firemen’s Ins. Co. v. Little, 189 Ark. 640, 74 S.W.2d 777 (1934).
Foots, 258 Ark. at 509–10, 528 S.W.2d at 136–37. The “questions or problems” that arose
in Foots were that one of the polygraph tests was taken before the stipulation, and the other
was taken by an unqualified examiner. In the present case, these problems do not exist
because it is undisputed that the parties entered the stipulation prior to Krieger’s taking the
polygraph test, and the qualification of the examiner, Investigator Shelton, was challenged
neither below nor on appeal.
In Wingfield v. State, 2019 Ark. App. 111, 572 S.W.3d 434, this court set forth the
following considerations in reviewing the admissibility of a stipulated polygraph test:
13
Arkansas law prohibits the admission of polygraph test results except upon a
written stipulation of the parties. Hayes, supra. Stipulation agreements about the use
of polygraphs are to be scrutinized carefully by the courts and will not be honored if
any questions or problems arise. Id. We review a circuit court’s decision denying a
defendant’s motion to suppress by making an independent determination based on
the totality of the circumstances. Holly v. State, 2017 Ark. 201, 520 S.W.3d 677. But
a circuit court’s factual findings will be reversed only if they are clearly against the
preponderance of the evidence. Id.
Wingfield, 2019 Ark. App. 111, at 8, 572 S.W.3d at 440.
On this record, we conclude that the trial court’s decision to admit the stipulated-to
CVSA result was not clearly against the preponderance of the evidence. With respect to the
right to counsel, it is undisputed that Krieger was advised of his rights in writing, and he
initialed each right confirming that he understood them immediately before giving his
statement to the police. And Krieger admitted that he was aware of his rights based on his
near ten-year career in law enforcement, during which he himself had Mirandized and
interrogated many suspects. Not long after giving his statement wherein he denied any
wrongdoing, Krieger signed the stipulation wherein he agreed to take the polygraph test and
to the admissibility of the results. Considering the reasonably short lapse of time between
Krieger’s being advised of his right to counsel and his execution of the stipulation, which all
occurred during the same episode in the same location, we do not agree with Krieger’s
argument that he was not informed of or aware of his right to counsel when he signed the
stipulation agreement.
Nor do we agree that the trial court erred in not finding coercion in Krieger’s
execution of the stipulation. Krieger testified that he was never threatened by any of the
14
officers, although he stated that he had been threatened by the victim’s father and that he
had communicated those threats to the officers. However, each of the officers testified that
Krieger appeared calm during their interactions and did not appear to be in distress or under
any threats. And Krieger, a former police officer of almost ten years, reportedly insisted that
he knew his rights and wanted to make a statement to the police. We defer to the superior
position of the trial court to evaluate the credibility of witnesses at the suppression hearing,
and any conflicts in the testimony of the witnesses are for the trial court to resolve. Spraglin
v. State, 2015 Ark. App. 166. Leaving credibility determinations to the trial court, as we
must, we conclude that there was no error in its finding that Krieger signed the stipulation
of his own volition and not under coercion.
Krieger also makes two more arguments challenging the admission of the CVSA
results. Krieger argues the involvement of the prosecutor in securing the stipulation violated
the Arkansas Rules of Professional Conduct and that the admission of the results of the
CVSA constituted inadmissible hearsay and a violation his right to confrontation. However,
because neither of these arguments were raised to the trial court, neither is preserved for
review.4
Krieger’s remaining argument is that the trial court erred in excluding the testimony
of his expert witness, Dr. Stephen Thorne, who was asked by Krieger to critique the manner
in which two forensic interviews with the victim were conducted. A decision to admit or
4
Krieger does not allege that a Wicks exception applies to either of these arguments
being raised for the first time on appeal.
15
exclude evidence is within the sound discretion of the trial court. Rounsaville v. State, 374
Ark. 356, 288 S.W.3d 213 (2008). Krieger cites Harper v. State, 2019 Ark. App. 163, 573
S.W.3d 596, in which this court held that a State’s expert may generally testify about witness
recantation and that it is not unusual for a sexual-abuse victim to recant. Krieger argues that,
considering what the prosecution is permitted to present in expert testimony, the exclusion
of Dr. Thorne’s testimony was an abuse of discretion and mandates reversal.
We can find no error under this point because the forensic interviews that Krieger’s
expert sought to critique were neither introduced into evidence nor proffered by Krieger. It
was Krieger’s duty to present a record on appeal demonstrating error, Bullock v. State, 353
Ark. 577, 111 S.W.3d 380 (2003), and the record presented fails to demonstrate any
prejudicial error in excluding the expert’s testimony.
Affirmed.
GLADWIN and KLAPPENBACH, JJ., agree.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.
16 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482503/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00058-CV
IN THE INTEREST OF A.A. AND A.A., CHILDREN
On Appeal from the County Court at Law
Lamar County, Texas
Trial Court No. 90069
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
The sole question posed in this appeal from the termination of Mother’s parental rights to
her children, A.A. and A.A., is whether the trial court had jurisdiction when it terminated those
rights.1 Because the trial court had jurisdiction, we affirm the termination.
The Department of Family and Protective Services brought a petition for protection of a
child, for conservatorship, and for the termination of Mother’s parental rights. Following a
bench trial, the trial court found that termination of the parent-child relationship was in the
children’s best interests, and it terminated Mother’s parental rights pursuant to Section
161.001(b)(1), grounds (D), (E), (I), (N), (O) and (P). See TEX. FAM. CODE ANN. §
161.001(b)(1)(D), (E), (I), (N), (O), (P). Mother appeals, maintaining that, although the trial
court properly extended, by 180 days, the one-year deadline for disposition of the case, it did not
dispose of the case within that extended period of time. Mother therefore contends that the trial
court was without jurisdiction to terminate her parental rights to her children.2 We disagree and
affirm the trial court’s judgment.
The controlling statutory language is in Section 263.401 of the Texas Family Code:
(a) Unless the court has commenced the trial on the merits or granted an
extension under Subsection (b) or (b-1), on the first Monday after the first
anniversary of the date the court rendered a temporary order appointing the
department as temporary managing conservator, the court’s jurisdiction over the
suit affecting the parent-child relationship filed by the department that requests
1
To protect the children’s privacy, we refer to appellant as Mother and to the children by initials. See TEX. R. APP. P.
9.8(b)(2).
2
At trial, Mother made no objection to the trial court’s alleged lack of jurisdiction. However, “[j]urisdiction may be
raised for the first time on appeal by the parties or by the appellate court.” See In re A.W., 623 S.W.3d 519, 521
(Tex. App.—Waco 2021, no pet.) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.
1993).
2
termination of the parent-child relationship or requests that the department be
named conservator of the child is terminated and the suit is automatically
dismissed without a court order. Not later than the 60th day before the day the
suit is automatically dismissed, the court shall notify all parties to the suit of the
automatic dismissal date.
(b) Unless the court has commenced the trial on the merits, the court may not
retain the suit on the court’s docket after the time described by Subsection (a)
unless the court finds that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary managing conservator
is in the best interest of the child. If the court makes those findings, the court may
retain the suit on the court’s docket for a period not to exceed 180 days after the
time described by Subsection (a). If the court retains the suit on the court’s
docket, the court shall render an order in which the court:
(1) schedules the new date on which the suit will be automatically
dismissed if the trial on the merits has not commenced, which date must
be not later than the 180th day after the time described by Subsection (a);
(2) makes further temporary orders for the safety and welfare of the
child as necessary to avoid further delay in resolving the suit; and
(3) sets the trial on the merits on a date not later than the date specified
under Subdivision (1).
TEX. FAM. CODE ANN. § 263.401(a), (b) (Supp.) (emphasis added). Here, the Department was
granted temporary managing conservatorship of the children on January 26, 2021. At that point
in the proceedings, the deadline for dismissal would have been the first Monday following
Wednesday, January 26, 2022, which was Monday, January 31, 2022. See id.
On November 3, 2021, the trial court entered a permanency hearing order before final
order in which it found that, pursuant to Section 263.401(b), there existed “extraordinary
circumstances” that required the children to remain in the temporary managing conservatorship
of the Department and that it was in the children’s best interests to make that finding. See TEX.
3
FAM. CODE ANN. § 263.401(b). Based on those extraordinary circumstances, the trial court
ordered an extension of not more than 180 days and retained the case on its docket. The trial
court correctly determined in its order that the new dismissal date would be July 30, 2022. On
July 27, 2022, the trial court commenced and concluded the trial on the merits, some three days
before the dismissal date of July 30, 2022. Consequently, the trial court retained its jurisdiction
to enter its order terminating Mother’s parental rights.
Yet, Mother contends that the case was not concluded within the 180-day extension of
the disposition deadline. Mother calculates the relevant date as follows: “An initial order was
entered on January 26, 2021, the one-year and 180 days extended deadline therefore ended on
July 26, 2022, and the trial commenced . . . July 27, 2022.” Consequently, according to Mother,
the trial court lost jurisdiction one day before the commencement of trial. We disagree.
Mother overlooks the language in Section 263.401(a) stating that the initial dismissal
deadline falls on the first Monday following the one-year anniversary of the entry of the order
granting the Department temporary managing conservatorship of the children, which, in this
case, was Monday, January 31, 2022. See TEX. FAM. CODE ANN. § 263.401(a). It was from that
date that the extension of 180 days was counted, resulting in the July 30, 2022, deadline. This is
made evident by the reference to subsection (b), which states that “the court may retain the suit
on the court’s docket for a period not to exceed 180 days after the time described by Subsection
(a).” TEX. FAM. CODE ANN. § 263.401(b) (emphasis added).
4
Because the trial on the merits commenced, and was disposed of, before the extended
dismissal deadline of July 30, 2022, the trial court had jurisdiction to enter the order terminating
Mother’s parental rights to her children, A.A. and A.A. We overrule Mother’s point of error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 1, 2022
Date Decided: November 9, 2022
5 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482498/ | COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
November 7, 2022
Stephen C. Norman, Esquire Matthew D. Perri, Esquire
Matthew F. Davis, Esquire Robert L. Burns, Esquire
Potter Anderson & Corroon LLP Richards Layton & Finger, P.A.
1313 North Market Street 920 North King Street
Wilmington, DE 19801 Wilmington, DE 19801
RE: ITG Brands, LLC v. Reynolds American, Inc., et al.
C.A. No. 2017-0129-LWW
Dear Counsel:
This Letter Opinion resolves ITG Brands, LLC’s Motion for
Reconsideration (the “Motion”) pursuant to Court of Chancery Rule 59(f). The
Motion raises arguments that were previously considered in the September 30,
2022 Memorandum Opinion (the “Summary Judgment Opinion”) or new
arguments that are waived. The Motion is denied for the reasons that follow.
I. BACKGROUND
The facts of this case are described in several prior decisions of the court,
including the Summary Judgment Opinion.1 In that decision, I granted summary
1
Dkt. 328 (“Mem. Op.”). Capitalized terms in this Letter Opinion have the definitions set
forth in the Summary Judgment Opinion.
C.A. No. 2017-0129-LWW
November 7, 2022
Page 2 of 9
judgment in support of Reynolds American Inc. and R.J. Reynolds Tobacco
Company’s argument that a “Florida Judgment Liability” imposed on Reynolds is
an “Assumed Liability” under § 2.01(c)(iv) of the parties’ Asset Purchase
Agreement. As a result, I held that Reynolds is entitled to indemnification from
ITG under § 11.02(a)(vi) of the APA.
My holding turned, in part, on a determination that this court was not bound
by a Florida state court decision interpreting § 2.01(c)(vii) of the APA.2 After
reviewing supplemental briefing by the parties, I concluded that the matter of issue
preclusion was governed by Florida law.3 Four of the five elements of issue
preclusion were satisfied but the fifth—mutuality of the parties—was not because
Reynolds and ITG were not adverse in the Florida litigation.4
ITG has now moved for reconsideration on three grounds. ITG argues that
the court erred by: (1) determining that Florida issue preclusion law requires
adversity;5 (2) finding Reynolds and ITG were not adverse;6 and (3) overlooking a
2
See id. at Section II.A.
3
Id. at 23.
4
Id. at 26-29.
5
ITG Brands, LLC’s Mot. Recons. (Dkt. 329) ¶¶ 3-6.
6
Id. ¶¶ 7-17.
C.A. No. 2017-0129-LWW
November 7, 2022
Page 3 of 9
Delaware choice of law provision in the APA.7 Reynolds filed an opposition to the
Motion, contending that none of these arguments support reconsideration or would
change the outcome in the Summary Judgment Opinion.8
II. ANALYSIS
“The manifest purpose of all Rule 59 motions is to afford the Trial Court an
opportunity to correct errors prior to appeal.”9 The movant bears a “heavy
burden.”10 It must demonstrate “the Court has overlooked a decision or principle
of law that would have controlling effect or the Court has misapprehended the law
or the facts so that the outcome of the decision would be affected.”11 “[A] motion
for reargument is ‘not a mechanism for litigants to relitigate claims already
considered by the court,’ or to raise new arguments that they failed to present in a
timely way.”12
7
Id. ¶¶ 18-22.
8
Defs.’ Opp’n to ITG Brands LLC’s Mot. Recons. (Dkt. 332).
9
Ramon v. Ramon, 963 A.2d 128, 136 (Del. 2008) (quoting Hessler, Inc. v. Farrell, 260
A.2d 701, 702 (Del. 1969)).
10
In re ML/EQ Real Est. P’ship Litig., 2000 WL 364188, at *1 (Del. Ch. Mar. 22, 2000).
11
Mainiero v. Microbyx Corp., 699 A.2d 320, 321 (Del. Ch. 1996) (quoting Stein v.
Orloff, 985 WL 21136, at *2 (Del. Ch. Sept. 26, 1985)).
12
Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 975581, *1 (Del.
Ch. Mar. 4, 2010) (citation omitted), aff’d, 7 A.3d 485 (Del. 2010); see Brace Indus.
C.A. No. 2017-0129-LWW
November 7, 2022
Page 4 of 9
ITG’s arguments do not meet this standard.
A. Whether Florida Law Requires Adversity
First, ITG once again asks me to interpret the Florida Supreme Court’s
decision in Tuz v. Edward M. Chadbourne, Inc. as holding that issue preclusion
applies when the parties were not adverse in a prior proceeding.13 This contention
cannot provide grounds for reconsideration. ITG “merely rehashes arguments
already made . . . and considered by the court.”14
Moreover, I did not misapprehend the law in rejecting the reading of Tuz
that ITG asks me to adopt. The court in Tuz held that it lacked jurisdiction and
dismissed a writ of certiorari as “improvidently issued.”15 As explained in the
Summary Judgment Opinion, any statements beyond that were dicta.16
Contr., Inc. v. Peterson Enters., Inc., 2018 WL 3360584, at *1 (Del. Ch. July 10, 2018)
(quoting ML/EQ Real Est., 2000 WL 364188, at *1).
13
310 So. 2d 8, 10 (Fla. 1975).
14
Wong v. USES Hldg. Corp., 2016 WL 1436594, at *1 (Del. Ch. Apr. 5, 2016).
15
Tuz, 310 So. 2d at 10.
16
Mem. Op. at 28 (citing Cont’l Assur. Co. v. Carroll, 485 So. 2d 406, 408 (Fla. 1986));
see generally Myers v. Atl. Coast Line R. Co., 112 So. 2d 263, 267 (Fla. 1959) (“The
other two aspects [of the Florida Supreme Court’s decision] were merely ancillary and
nonessential gratuitous statements designed to show why there was no abuse and, as
such, were obiter dicta and not a part of the ‘law of the case.’”); Bunn v. Bunn, 311 So. 2d
387, 389 (Fla. Dist. Ct. App. 1975) (“Having made the threshold determination that it
lacked certiorari jurisdiction to review the merits of the case, the views subsequently
expressed on the substantive issue of law involved . . . were necessarily obiter dicta.”).
C.A. No. 2017-0129-LWW
November 7, 2022
Page 5 of 9
Even so, ITG argues that Tuz is “persuasive” and should be given weight
because Florida’s highest court expressly considered an “important question.”17
The question considered by the court in Tuz, however, had nothing to do with
adversity.18
No Florida court since Tuz has interpreted that decision as eliminating
Florida’s adversity requirement—or otherwise suggested that adversity is
unnecessary for issue preclusion to apply. To the contrary, multiple post-Tuz
Florida District Court of Appeals decisions have held that adversity is necessary.19
The Florida Supreme Court has also more recently stated that issue preclusion
17
Cont’l Assur., 485 So. 2d at 408.
18
The court in Tuz was considering whether a lower court’s finding that parties were
identical conflicted with a prior Florida Supreme Court decision (Youngblood v. Taylor).
The principle articulated in Youngblood was: “To illustrate, if two persons wholly
unrelated are passengers in a motorcar that becomes involved in an accident, only one set
of circumstances arises as a basis for recovery. But it does not follow that there is but
one cause of action for each of the injured persons has the right to sue and the action of
one is not determined by the adjudication of the action of the other.” Youngblood v.
Taylor, 89 So. 2d 503, 505 (Fla. 1956). The court in Tuz reiterated that holding and
explained: “We should add to the above taken from Youngblood, ‘so long as the person
was not a party to an earlier action that involved points and questions common to both
causes of action and which were actually adjudicated.’” Tuz, 310 So. 2d at 10.
19
Mem. Op. at 30 n.127 (citing cases).
C.A. No. 2017-0129-LWW
November 7, 2022
Page 6 of 9
requires a matter to “have previously been decided between” the parties to the later
dispute.20
ITG’s argument is therefore rejected, again.
B. Whether ITG and Reynolds Were Adverse
ITG next asserts that the adversity requirement has been met. According to
ITG, although it and Reynolds Tobacco were co-defendants in the Florida
litigation, they were adversaries on the question of ITG’s obligations for the
Florida settlement pursuant to the APA.
ITG’s argument is waived. “A party may not present a new argument for the
first time in a motion for reargument.”21 ITG failed to raise this position in its
summary judgment briefs or its supplemental briefs on Florida issue preclusion
law.22 For example, ITG’s reply to Reynolds’ supplemental brief focused solely on
the adversity element but never argued that ITG and Reynolds Tobacco were
adverse in the Florida litigation.23
20
Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977) (emphasis added) (quoted
in Mem. Op. at 28-29).
21
inTEAM Assocs., LLC v. Heartland Payment Sys., Inc., 2016 WL 6819734, at *2 (Del.
Ch. Nov. 18, 2016).
22
See Dkts. 224, 249, 256, 281, 291.
23
At most, ITG made an oblique reference to this issue in its reply to the defendants’
supplemental brief. It wrote: “Even assuming that Reynolds and ITG could properly be
C.A. No. 2017-0129-LWW
November 7, 2022
Page 7 of 9
In any event, a review of the record demonstrates that the Summary
Judgment Opinion correctly held ITG and Reynolds Tobacco were not adversaries
in Florida on the matter of “whether ITG assumed Liabilities under the Florida
Settlement Agreement pursuant to § 2.01(c)(vii) of the APA.”24 ITG and Reynolds
Tobacco were aligned as co-defendants on that issue.25 Both “dispute[d] Florida’s
argument that § 2.01(c) of the APA created an assumption of liability by ITG for
payments under the Florida Settlement Agreement.”26
C. Whether Delaware Law Governs
Finally, ITG argues that Delaware—not Florida—issue preclusion law
applies due to a Delaware choice of law provision in the APA. Section 12.12(a) of
termed non-adverse, despite the claims against Reynolds pending in this Court since
February 2017, adversity is not among the five factors the Florida Supreme Court
requires for issue preclusion.” ITG Brands, LLC’s Reply to Defs.’ Suppl. Br. (Dkt.
291) 1-2. This cursory statement failed to squarely present the issue. See In re
Mobilactive Media, LLC, 2013 WL 297950, at *12 n.152 (Del. Ch. Jan. 25, 2013)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” (quoting Roca v. E.I. duPont de Nemours
& Co., Inc., 842 A.2d 1238, 1243 n.12 (Del. 2004))); AB Stable VIII LLC v. Maps Hotels
& Resorts One LLC, 2020 WL 7024929, at *78 (Del. Ch. Nov. 30, 2020) (“A court need
not address arguments that are presented in such a cursory and elliptical manner.”), aff’d,
268 A.3d 198 (Del. 2021).
24
Mem. Op. at 24.
25
Id. at 27.
26
Id. at 26; see also id. at 12 (“Reynolds Tobacco and ITG opposed the motions [in
Florida].”).
C.A. No. 2017-0129-LWW
November 7, 2022
Page 8 of 9
the APA requires the application of Delaware law in “all respects” to “any . . .
disputes arising out of or related” to the APA or the purchase of the Acquired
Brands, “without reference to any conflict of Law rules that might lead to the
application of the Laws of any other jurisdiction.”27 If Delaware law applied, ITG
asserts that a different result on issue preclusion would be reached because
Delaware lacks an adversity requirement.
ITG waived this argument. Its prior submissions “did not mention this
provision or make this argument at any time prior to the motion for reargument.”28
In fact, it took the opposition position. ITG unequivocally stated in its
supplemental brief on issue preclusion that “Florida law governs.”29
To the extent any further analysis is necessary, the argument fails. The
Delaware Supreme Court has stated it is “settled law” and a “control[ling]
principle” that Delaware courts give “the same effect” to a foreign judgment as the
foreign court “itself would accord such a judgment.”30 It has rejected an approach
that “would result in Delaware giving the judgments of a sister state greater
27
APA § 12.12(a).
28
See inTEAM Assocs., 2016 WL 6819734, at *2.
29
ITG Brands, LLC’s Suppl. Submission (Dkt. 281) 2.
30
Columbia Cas. Co. v. Playtex FP, Inc., 584 A.2d 1214, 1217 (Del. 1991).
C.A. No. 2017-0129-LWW
November 7, 2022
Page 9 of 9
preclusive effect than they would have in the rendering jurisdiction.”31 ITG would
have me flout this binding precedent without support for the application of a choice
of law provision to a question of issue preclusion.
III. CONCLUSION
Most of ITG’s arguments are deemed waived. None demonstrates that the
court misapprehended the law or facts in applying Florida issue preclusion law.
For the foregoing reasons, ITG’s Motion is denied.
Sincerely yours,
/s/ Lori W. Will
Lori W. Will
Vice Chancellor
31
Id. at 1218. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482509/ | COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Athey and Callins
Argued at Virginia Beach, Virginia
MICHAEL TINK LANE
MEMORANDUM OPINION* BY
v. Record No. 1363-21-1 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
John W. Brown, Judge
Meghan Shapiro, Senior Assistant Public Defender (Virginia
Indigent Defense Commission, on briefs), for appellant.
Tanner M. Russo, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a bench trial, the Circuit Court of the City of Chesapeake convicted the appellant,
Michael Tink Lane, of possession of a controlled substance, in violation of Code § 18.2-250,
misdemeanor possession of drug paraphernalia, in violation of Code § 54.1-3466, and felony failure
to appear, in violation of Code § 19.2-128. The circuit court sentenced Lane to a total of ten years
and twelve months’ incarceration, with eight years and twelve months suspended. On appeal, Lane
contends that the evidence was insufficient to sustain his conviction for possession of a controlled
substance and that the circuit court abused its discretion in imposing a sentence totaling ten years
and twelve months.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
On December 18, 2018, Officer Marquis Sivels observed a maroon Pontiac sedan traveling
with expired registration stickers and four people inside of it. Officer Sivels initiated a traffic stop.
The vehicle dodged in and out of traffic before stopping in a parking lot, at which point its driver,
later identified as Derrick Culpepper, took off running. Officer Sivels chased after Culpepper on
foot, leaving the other occupants of the Pontiac unattended.
Jonathan Vose, a civilian on his lunch break, pulled into the parking lot right behind the
police car with flashing lights. Vose observed Officer Sivels chase after Culpepper, and then turned
his car to face toward the Pontiac. Vose saw the remaining occupants of the Pontiac exit the
vehicle. Alexander Dennos, the driver-side rear passenger and owner of the Pontiac, left the scene,
while the second rear passenger stood by a tree. Vose later testified that after stepping out from the
front passenger seat, Lane saw the police officer was gone and went into the passenger side of the
vehicle and removed a couple of items. According to Vose, Lane threw one item that looked like
tissue on the ground and told the only other passenger who remained at the scene, “Let’s go ahead
and get out of here.” A few seconds later, Vose saw Lane look around, then reach into the
passenger side of the vehicle again and throw another item on the ground before walking across the
street. Vose noticed that when Lane reached into the vehicle the second time, “the tissue had started
to come undone”; then it separated from the item it had been wrapped around as Lane walked away.
When Vose moved closer to the vehicle, he was able to see that the items Lane pulled from the
vehicle were the bottom part of a soda can that had been wrapped in tissue and a syringe.
Two more police cars arrived at the scene, and Officer Sivels returned with Culpepper. On
the ground near the vehicle, Officer Sivels observed the bottom of a soda can that had been cut off
and a hypodermic needle and syringe with liquid inside of it (hereinafter “syringe”). Officer Sivels
also noticed that both items appeared to have heroin residue on them. Officer Jennifer Land
-2-
apprehended Lane at the Taco Bell across the street from the scene and brought him back to the
vehicle. Lane then explained to Officer Land that after Officer Sivels initiated the traffic stop,
Culpepper had “handed him the syringe and tin can and told him to throw it out the window.” Lane
admitted to Officer Land that he got out of the vehicle, stood for a second, then went back into the
vehicle and “got the syringe and tin can” and “placed it outside the vehicle before walking away.”
Lane was charged with possession of heroin and possession of drug paraphernalia. Lane did
not appear for his original trial date—he was present at the circuit court on the date of trial,
September 17, 2019, but left the courthouse before his case was called. He was charged with felony
failure to appear and arrested on a capias on January 18, 2020. At the trial, the Commonwealth
introduced testimony from Officers Sivels and Land and Vose, as well as a certificate of analysis
confirming the residue on the soda can bottom was heroin.1
During Lane’s case-in-chief, Dennos testified that he saw Culpepper throw “something” on
Lane’s lap after the Pontiac stopped. Lane testified that Culpepper handed him some “stuff” in a
“clear baggy” to throw out the window, which Lane refused to do. Lane further testified that the
item in the clear plastic baggy was “wrapped up in a bunch of tissue,” that he did not know what
was inside the bag, that he did not look in the bag, and that he did not take anything out of the bag.
Instead, Lane stated that he “picked [the bag] up and laid it by the tree so police officers could find
it” and that he “didn’t want them to find out where [he] was sitting” in the vehicle or get caught with
the bag. He testified, “I figured that it had to be bad. If [the driver] didn’t want it, I didn’t want it
either.” On cross-examination, Lane admitted that he has prior convictions for lying, cheating, or
stealing.
After considering the evidence, noting the totality of the circumstances, the circuit court
convicted Lane on all charges. During sentencing, Lane testified that in 2010 he sustained a
1
The syringe was not tested.
-3-
traumatic brain injury, causing him to “make bad decisions without thinking of the consequences.”
The circuit court found that Lane had thirty-two felony convictions, seventeen non-traffic
misdemeanors, and eleven probation violations, including some from before 2010. The circuit court
also noted that this was Lane’s eleventh conviction for failure to appear or contempt of court. The
circuit court noted that such a criminal record “would take you to the high end of the guidelines or
outside the guidelines,” but the circuit court stayed within the guidelines. The circuit court
sentenced Lane to five years’ incarceration for possession of heroin, with five years suspended, five
years’ incarceration for felony failure to appear, with three years and six months suspended, and
twelve months’ incarceration for possession of drug paraphernalia, with six months suspended. The
circuit court gave Lane credit for the time he served after his bond was revoked. This appeal
followed.
ANALYSIS
A. Possession of Controlled Substance
Lane challenges the sufficiency of the evidence to prove that he knowingly and
intentionally possessed a controlled substance. “In reviewing a challenge to the sufficiency of the
evidence to support a conviction, ‘the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Melick v. Commonwealth, 69 Va. App. 122,
144 (2018) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)). “If there is
evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own
judgment, even if its opinion might differ from the conclusions reached by the finder of fact at
the trial.’” Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v.
Commonwealth, 67 Va. App. 273, 288 (2017)). “This familiar standard gives full play to the
responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence,
-4-
and to draw reasonable inferences from basic facts to ultimate facts.” Raspberry v. Commonwealth,
71 Va. App. 19, 29 (2019) (quoting Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017)). “In
conducting our analysis, we are mindful that ‘determining the credibility of the witnesses and the
weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the
ability to hear and see them as they testify.’” Id. (quoting Miller v. Commonwealth, 64 Va. App.
527, 536 (2015)). “Thus, we will affirm the judgment of the trial court unless that judgment is
‘plainly wrong or without evidence to support it.’” Id. (quoting Kelly, 41 Va. App. at 257).
Code § 18.2-250 provides, “[i]t is unlawful for any person knowingly or intentionally to
possess a controlled substance . . . .” Heroin is listed as a Schedule I controlled substance. Code
§ 54.1-3446. “In order to convict a person of illegal drug possession, the Commonwealth must
prove beyond a reasonable doubt that the accused was aware of the presence and character of the
drug and that the accused consciously possessed it.” Yerling v. Commonwealth, 71 Va. App.
527, 532 (2020) (citing Jones v. Commonwealth, 17 Va. App. 572, 574 (1994)). Furthermore,
“‘the Commonwealth must also establish that the defendant intentionally and consciously
possessed the drug with knowledge of its nature and character. That knowledge is an essential
element of the crime.’” Christian v. Commonwealth, 59 Va. App. 603, 608 (2012) (quoting
Young v. Commonwealth, 275 Va. 587, 591 (2008)); see also Young, 275 Va. at 592
(“[P]ossession alone, without more, is insufficient to support an inference of guilty
knowledge[.]”). “Such knowledge may be shown by evidence of the acts, statements or conduct
of the accused.” Young, 275 Va. at 591. “Other circumstantial evidence may also support a
finding of a defendant’s knowledge of the nature and character of the substance in his
possession, such as the drug’s distinctive odor or appearance, or statements or conduct of others
in his presence that would tend to identify it.” Id.
-5-
Lane relies on his testimony that Culpepper gave him a “clear baggy” and that he did not
see the contents of the bag, but he placed it outside of the vehicle for police to find. The record,
however, demonstrates that there was sufficient evidence for a rational trier of fact to conclude
that Lane possessed the drug with knowledge of its nature and character. No witness, other than
Lane, claimed that the items were stored in a bag. Even if the cut soda can bottom was in a bag
initially, the testimony of Vose and the officers supports that Lane removed it from the bag
before he placed it on the ground and it was not covered in a way that completely concealed its
distinctive characteristics. Vose observed Lane retrieve the soda can bottom, then wrapped in
tissue, from the inside of the vehicle. Without anyone removing the tissue, it separated from the
soda can bottom while Lane retrieved the syringe from the vehicle and began to walk away from
the scene. When Officer Sivels returned to the scene, he saw the soda can bottom and “knew,
obviously, what it was”—he could tell the can was burnt and appeared to have heroin residue on
the inside. That Lane placed the syringe on the ground with the burnt soda can suggests that he
knew the items belonged together. At the scene, Lane told Officer Land that he “got the syringe
and tin can” and “placed it outside the vehicle before walking away.” Lane’s removal of the soda
can bottom and syringe from the vehicle, considered with his fear of being caught with them,
flight from the scene of the stop, and credibility issues, were sufficient for the circuit court to
conclude that Lane was aware that the soda can bottom contained a controlled substance.
Lane also complains that the circuit court’s finding that he knew the object contained
something “illegal” and “contraband” falls short of a finding that he knew the object contained a
“controlled substance.” We have explained, however, that “[w]hen the illegal nature of the
substance is apparent—as it is here—that circumstance supports a finding of the defendant’s
guilty knowledge of the contraband he possesses.” Christian, 59 Va. App. at 611.
-6-
Lane argues that the circuit court made an impermissible “inference upon an inference,”
by first inferring that he knew the items were “contraband” and then inferring that he knew the
contraband was a “controlled substance.” We disagree. “[A]ll facts proved in a case, whether by
direct or circumstantial evidence, ‘may serve as the basis from which further inference of fact
may be drawn.’” Johnson v. Commonwealth, 15 Va. App. 73, 77 (1992) (quoting Chesapeake &
Ohio Ry. Co. v. Ware, 122 Va. 246, 257 (1918)). “[T]he evidence presented must establish a fact
. . . before that fact may serve as a basis for inference.” Id. Here, Lane admitted that he knew
the items he removed from the car were “bad.” The circuit court considered the totality of the
circumstances which support a finding that Lane knew the burnt soda can bottom contained a
controlled substance; it did not rely on inferences “unsupported by the evidence” or that are
“extremely attenuated.” Id.
Notwithstanding his knowledge of the heroin, Lane argues that the circuit court erred by
finding that he intended to possess the heroin because the evidence shows that he removed it
from his possession once it was thrown onto his lap and moved it “to a clearly visible location
for the approaching authorities to find.”2 The circuit court “was at liberty to discount [Lane’s]
self-serving statements as little more than lying to conceal his guilt and could treat such
prevarications as affirmative evidence of guilt.” Sierra v. Commonwealth, 59 Va. App. 770, 784
(2012) (quoting Armstead v. Commonwealth, 56 Va. App. 569, 581 (2010)). Furthermore,
Lane’s own testimony indicates that his motive for moving the heroin was not to assist law
enforcement, but rather because he “didn’t want them to find out where [he] was sitting” or get
2
Lane adds that his physical possession of the items was “momentary and fleeting.”
However, “[p]hysical possession giving the defendant ‘immediate and exclusive’ control [of a
controlled substance] is sufficient.” Gillis v. Commonwealth, 215 Va. 298, 301-02 (1974). “The
duration of the possession is immaterial[.]” Id. at 302.
-7-
caught with it. The circuit court was not plainly wrong in finding that Lane intended to possess
the heroin when he removed it from the vehicle.
“By finding a defendant guilty . . . the factfinder has found by a process of elimination
that the evidence does not contain a reasonable theory of innocence.” Ray v. Commonwealth, 74
Va. App. 291, 308 (2022) (quoting Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017)).
“The rejection of a hypothesis of innocence ‘is binding on appeal unless plainly wrong . . . .’”
Ervin v. Commonwealth, 57 Va. App. 495, 519 (2011) (en banc) (quoting Archer v.
Commonwealth, 26 Va. App. 1, 13 (1997)). For the foregoing reasons, we will not disturb the
circuit court’s ruling convicting Lane of possession of a controlled substance.
B. Sentencing
Lane argues that the circuit court abused its discretion by sentencing him to a total
sentence of ten years and twelve months for minor criminal conduct because the sentence failed
to account for mitigating factors, including his 2010 traumatic brain injury. “We review the trial
court’s sentence for abuse of discretion.” Scott v. Commonwealth, 58 Va. App. 35, 46 (2011).
“Criminal sentencing decisions are among the most difficult judgment calls trial judges face.”
Du v. Commonwealth, 292 Va. 555, 563 (2016). “Because this task is so difficult, it must rest
heavily on judges closest to the facts of the case—those hearing and seeing the witnesses, taking
into account their verbal and nonverbal communication, and placing all of it in the context of the
entire case.” Id. “A Virginia trial court ‘clearly’ acts within the scope of its sentencing authority
‘when it chooses a point within the permitted statutory range’ at which to fix punishment.” Id. at
564 (quoting Alston v. Commonwealth, 274 Va. 759, 771 (2007)). “Consequently, ‘when a
statute prescribes a maximum imprisonment penalty and the sentence does not exceed that
maximum, the sentence will not be overturned as being an abuse of discretion.’” Id. (quoting
Alston, 274 Va. at 771-72).
-8-
The weight to assign to any mitigating factors Lane presented at sentencing was within the
circuit court’s purview. See Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000). Balanced
against Lane’s mitigation evidence were substantial factors in aggravation. The circuit court found
that Lane had a long criminal history, much of which accumulated before his claimed traumatic
brain injury. Moreover, the majority of the active incarceration the circuit court imposed in its
sentence was for Lane’s felony failure to appear—the circuit court noted that Lane’s record includes
numerous failure to appear convictions, dating back to 1988, well before his claimed traumatic brain
injury.
The sentences the circuit court imposed were within the ranges set by the legislature. As
Lane’s sentence did not exceed the maximum penalties set forth by statute, it will not be
overturned as an abuse of discretion. Du, 292 Va. at 564.
CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
-9-
Callins, J., concurring in part, dissenting in part.
There is no doubt that Lane physically possessed a cut up tin can that contained heroin
residue. But the conviction can only stand if the Commonwealth proved beyond a reasonable
doubt that Lane was aware he possessed a controlled substance. See Yerling v. Commonwealth,
71 Va. App. 527, 532 (2020). Mindful of the standard of review, I must conclude that, even after
viewing the evidence in the light most favorable to the Commonwealth, no evidence supports the
trial court’s finding that Lane knew the can bottom contained a controlled substance.3 See
Melick v. Commonwealth, 69 Va. App. 122, 144 (2018). Thus, I would reverse and vacate the
conviction for possession of a controlled substance in violation of Code § 18.2-250.
The facts establish that Lane knew he was possessing something illegal when he held the
can bottom wrapped in tissue. Lane admitted that he knew he was holding something “bad” and
that he did not want to get caught with it. A witness saw Lane remove the tissue-wrapped can
bottom and syringe from the car. On those facts, the majority holds that because the illegal
nature of the object was “apparent” to Lane, he must have known that he possessed an object
containing a controlled substance. I disagree because possession of an illegal object and
possession of a controlled substance are not always the same. A person can illegally possess
drug paraphernalia without possessing a controlled substance.
The Commonwealth’s theory of the case relied on establishing that Lane saw and
recognized the drug residue in the can bottom. At trial, the evidence established that the can
bottom was wrapped in a tissue while Lane was holding it and that the tissue around the can
bottom separated from the can only after Lane had placed it on the ground and while he was
3
The liquid in the syringe was never tested to determine whether it was a controlled
substance, so the trial court could not have based its finding on the syringe. On appeal, the
Commonwealth urges us to find that the liquid in the syringe was a controlled substance. But it
is not our role to make factual determinations. See Harris v. Commonwealth, 39 Va. App. 670,
676 (2003).
- 10 -
retrieving the syringe and walking away from the car. The majority found it notable that, after
the tissue separated from the can, an officer could tell that the can was burnt and contained drug
residue. But the Commonwealth never proved that Lane looked at the can bottom after the tissue
separated from it, and that fact would be necessary to connect the officer’s observations to an
inference that Lane also identified the drug residue. See Case v. Commonwealth, 63 Va. App.
14, 22 (2014) (“The fact finder . . . is entitled to draw inferences from proved facts . . . .”).
Even viewing the evidence in the light most favorable to the Commonwealth, the
evidence does not establish that final link. It does not show, nor tend to show, that Lane knew
the can bottom contained drug residue because the only proven facts established that the can was
wrapped in a tissue the entire time Lane possessed it. The trial court could not have found that
the residue was apparent to Lane based on an officer’s testimony that, once the tissue separated
from the can, the drug residue was “obvious” to the officer.4 And we are not bound by findings
unsupported by the evidence. See Green v. Commonwealth, 72 Va. App. 193, 199 (2020).
Because the Commonwealth did not present other evidence to show that Lane knew the
can bottom contained drug residue, I must conclude that the evidence was insufficient to show
that Lane knowingly possessed a controlled substance in violation of Code § 18.2-250. Without
his knowledge of his possession of a controlled substance, Lane could not intend to possess the
controlled substance, and thus Lane could not have violated Code § 18.2-250. I respectfully
dissent from that portion of the majority’s ruling.
I concur with the majority’s conclusion that Lane’s sentences for his other two charges were
not an abuse of discretion.
4
There is nothing in the record establishing Lane had the knowledge, ability, or expertise
to identify a controlled substance.
- 11 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482511/ | COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Fulton, Ortiz and Senior Judge Petty
Argued at Lexington, Virginia
LADARIUS TOMAS JEFFRIES, S/K/A
LADARIUS THOMAS JEFFRIES
MEMORANDUM OPINION* BY
v. Record No. 0679-21-3 JUDGE WILLIAM G. PETTY
NOVEMBER 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Paul C. Galanides for appellant.
Tanner M. Russo, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a jury trial, the Circuit Court of the City of Danville convicted appellant, Ladarius
Thomas Jeffries, of first-degree murder, felony use of a firearm, and discharge of a firearm from a
motor vehicle. The trial court sentenced Jeffries to a total of thirty-three years’ incarceration. On
appeal, Jeffries contends that the circumstantial evidence introduced at trial was insufficient to
exclude the reasonable hypothesis that he was not the murderer. We disagree and affirm the trial
court’s judgment.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(2016)). In doing so, we discard any of Jeffries’ conflicting evidence, and regard as true all
credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence. Id. at 473.
On March 4, 2020, at 6:44 a.m., Danville City Police discovered Melvin Smith dead in
his front yard, having been shot at least seven times. A video recorded by Smith’s next-door
neighbor’s surveillance camera shows that a man wearing a gray hoodie exited a vehicle outside
of Smith’s home at 6:38 a.m., ran toward Smith’s property, and discharged a firearm before
running off screen. The video further shows that the man returned to the vehicle and drove past
Smith’s property. According to an eyewitness, the man fired his firearm “some more” as he
drove past Smith’s home.1 No eyewitness saw any other person with the shooter. Police
collected six “RMP .45 auto shell casings” and multiple glass fragments from the yard.
Police discovered during their investigation that Ariel Hicks rented a Hyundai Elantra
matching the description of the suspect vehicle and that it was equipped with GPS tracking. By
using the GPS tracking, police found the Elantra at a repair shop in Greensboro, North Carolina.
Police observed that the Elantra’s passenger side window was broken and collected glass from
the passenger side door. Police also recovered Jeffries’ palm prints from the exterior of the
Elantra’s trunk and passenger side door, as well as gunshot residue from the interior door panel.
Police found and spoke to Hicks at the repair shop. Hicks testified that she rented the
Elantra and gave it to Jeffries on March 3, 2020. According to Hicks, Jeffries informed her by
phone that the Elantra’s window “was broken out” and needed to be fixed. Hicks testified that
Jeffries then picked her up at her residence in a truck at “like six o’clock” in the morning of
1
Smith’s next-door neighbor testified that she awoke after hearing “several” gunshots
and that the suspect fired “some more” as he drove away. Another neighbor testified that she
heard six gunshots, followed by a “significant pause,” and then four more.
-2-
March 4, 2020, and drove her to the residence of Leslie Johnson.2 Hicks explained she and
Jeffries went inside Johnson’s home, that Jeffries was the only man at the residence, and that he
gave her the keys to the Elantra, which was located behind the home. Hicks then drove the
Elantra to Greensboro to get its passenger window fixed.
Later that day, police found Jeffries inside a bedroom at Johnson’s home and arrested
him. Police searched the bedroom and found a gray hoodie, Jeffries’ identification, and a large
sum of money wrapped in a rubber band. Upon searching the rest of Johnson’s home, police
recovered a red iPhone, twelve “unfired Hornaday .45 auto rounds” within a Kickback Jacks
takeout bag, and glass fragments from inside of a vacuum cleaner.
Police extracted information from the red iPhone, which was tied to a phone number
ending in 5595. Upon reviewing the extraction, police discovered one of the three Apple IDs
associated with the red iPhone used the term “ljefferies” while another used the term “Boog,”
which was known to law enforcement as Jeffries’ alias. Police further discovered that a text
message was sent from the red iPhone to Hicks during the afternoon of March 3, 2020, asking
her to pick up food from Kickback Jacks. At 11:46 p.m. that same day, Hicks sent a text
message to the red iPhone requesting a “pic,” and received a photograph of Jeffries in response.
Upon further review, police discovered that the red iPhone had connected to “Hairston-WiFi”
approximately five hours before the shooting. Police searched the home of Toniqua Hairston,
Jeffries’ relative, where they found two “spent” .45 ammunition casings on the back deck of the
residence.
The information extracted from the red iPhone also revealed that a message was sent
from the phone to Kunta Daniels four minutes before the shooting stating, “Showtime!!” Three
hours later, another text message was sent from the red iPhone to Daniels providing the address
2
Hicks also testified that she “got up” around “five or six” in the morning.
-3-
of Johnson’s home. Within a minute after the red iPhone’s message was sent, a person matching
Daniels’ description was observed exiting Daniels’ apartment and departing in Daniels’ Lexus
sedan.3
Jeffries was charged with first-degree murder, felony use of a firearm, and discharge of a
firearm from a motor vehicle. At the jury trial, the Commonwealth introduced testimony from
several law enforcement officers, Smith’s neighbors, and Hicks, along with the evidence
collected by police during their investigation. The Commonwealth also introduced evidence that
Jeffries provided his probation officer with the red iPhone’s phone number as his personal cell
phone number when he was released from jail on July 19, 2019. In addition, the Commonwealth
introduced expert testimony showing that the glass fragments collected by police “were all
consistent in all the physical properties and the refractive index.” The Commonwealth’s expert
testimony further showed that the discharged ammunition casings recovered by police were fired
from the same firearm and that cellular records and GPS data showed that the red iPhone and the
Elantra traveled together until after the shooting. At the close of the Commonwealth’s evidence,
Jeffries moved to strike, which the trial court denied.
During Jeffries’ case-in-chief, Rashia Jones, with whom Jeffries had a child, testified that
she acquired the red iPhone number while Jeffries was in jail in 2019. Jones further testified that
Jeffries had been at her house around three or four in the morning of the shooting and that she
saw him leave her house in a truck at 6:30 a.m. Jones admitted that she purchased bullets at
Jeffries’ request the day before the shooting and that she did not know where the red iPhone was
on the day of the shooting.
Law enforcement had previously installed surveillance cameras at Daniels’ residence as
3
a part of an ongoing criminal investigation.
-4-
At the close of all the evidence, Jeffries renewed his motion to strike on the basis that the
circumstantial evidence presented at trial failed to establish that he was the shooter. The trial
court denied the motion, and the jury subsequently convicted Jeffries of all charges. The trial
court sentenced Jeffries to a total of thirty-three years’ incarceration, and this appeal followed.
ANALYSIS
“In reviewing a challenge to the sufficiency of the evidence to support a conviction, ‘the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Melick v. Commonwealth, 69 Va. App. 122, 144 (2018) (quoting Kelly v.
Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)). “The sufficiency ‘inquiry does not
distinguish between direct and circumstantial evidence, as the fact finder . . . is entitled to consider
all of the evidence, without distinction, in reaching its determination.’” Rams v. Commonwealth, 70
Va. App. 12, 27 (2019) (quoting Commonwealth v. Moseley, 293 Va. 455, 463 (2017)).
“Circumstantial evidence is as competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.”
Breeden v. Commonwealth, 43 Va. App. 169, 177 (2004) (quoting Coleman v. Commonwealth, 226
Va. 31, 53 (1983)). “While no single piece of [circumstantial] evidence may be sufficient, the
‘combined force of many concurrent and related circumstances, each insufficient in itself, may lead
a reasonable mind irresistibly to a conclusion.’” Ervin v. Commonwealth, 57 Va. App. 495, 505
(2011) (en banc) (quoting Stamper v. Commonwealth, 220 Va. 260, 273 (1979)). “However, the
Commonwealth is ‘not required to exclude every possibility’ of the defendant’s innocence but,
rather, ‘only . . . hypotheses of innocence that flow from the evidence.’” Rams, 70 Va. App. at 28
(quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000)). “The reasonableness of ‘an
alternate hypothesis of innocence’ is itself a question of fact, and thus, the fact finder’s
-5-
determination regarding reasonableness ‘is binding on appeal unless plainly wrong.’” Id. at 28
(quoting Wood v. Commonwealth, 57 Va. App. 286, 306 (2010)). “By finding the defendant guilty,
therefore, the [fact finder] ‘has found by a process of elimination that the evidence does not contain
a reasonable theory of innocence.’” Id. (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9
(2004)). Finally, because Jeffries introduced evidence in his own behalf, he has waived his motion
to strike at the conclusion of the Commonwealth’s case, and we will determine the sufficiency of
the evidence from the entire record. Inge v. Commonwealth, 217 Va. 360, 366 (1976).
Jeffries argues that the circumstantial evidence introduced at trial was insufficient to
exclude the reasonable hypothesis that he was not the murderer and advances three theories in
support thereof.4 Jeffries first contends that the Commonwealth failed to exclude the hypothesis
that another shooter was involved in the murder. Although Jeffries concedes that the
eyewitnesses “only saw one person,” he points out that only six ammunition casings were found
at the crime scene, Smith was shot seven times, and some neighbors heard more than seven
gunshots. Based on this evidence, Jeffries argues that “another person or persons could have
been present or involved in the shooting.” Neither Jeffries nor the record explain how a finding
that at least seven bullets were fired would establish that another shooter was involved in the
murder. Rather, the eyewitnesses testified that they did not see any other person with the
murderer. Accordingly, the Commonwealth was not required to exclude the possibility that there
was more than one shooter. See Kelley v. Commonwealth, 69 Va. App. 617, 629 (2019) (“The
Commonwealth need exclude only reasonable hypotheses of innocence that ‘flow from the
4
Jeffries also argues that the evidence failed to show that he had intended to rob Smith
and his lack of motive is “inconsistent with the remainder of the evidence in this case.” Motive,
however, “is not an essential element of murder.” Tibbs v. Commonwealth, 31 Va. App. 687,
704 (2000).
-6-
evidence itself, and not from the imagination’ of the defendant.” (quoting Pijor v.
Commonwealth, 294 Va. 502, 512 (2017))).
For his second theory of innocence, Jeffries argues that the evidence implicated Daniels
as the murderer. In support of this argument, Jeffries points out that Daniels appeared “to be
communicating with whomever is using the red iPhone and in the Hyundai at the time of the
murder.”5 Jeffries further claims that “[n]othing in the evidence precludes the possibility that
Daniels used the cell phone and Hyundai when he committed the murder.” To the contrary, the
Commonwealth’s expert testimony showed that the red iPhone and Elantra were in the same
place at the time of the murder. Under Jeffries’ theory of innocence, Daniels would have had
two phones, the red iPhone and his personal cell phone, and texted himself just minutes before
the murder. Moreover, the record reflects that the red iPhone was connected to Apple IDs
associated with Jeffries, Jeffries provided his probation officer with the red iPhone’s phone
number, and Jeffries sent Hicks a photograph of himself from the red iPhone just six hours
before the murder. Given these facts and other evidence in the record implicating Jeffries, the
jury was not plainly wrong in rejecting the theory that Daniels was the murderer. “[T]he
factfinder determines which reasonable inferences should be drawn from the evidence, and
whether to reject as unreasonable the hypotheses of innocence advanced by a defendant.”
Moseley, 293 Va. at 464.
In his final argument, Jeffries contends that the evidence established an alibi in favor of
his innocence, namely that he was with Hicks at the time of the murder. Jeffries relies on Hicks’
testimony that Jeffries picked her up in a truck at “like six o’clock” on the morning of the murder
and drove her to Johnson’s home. Hicks also testified, however, that she “got up” around “five
5
Jeffries also claims that “Daniels knew Smith was dead even before police had had a
chance to inform his widow.” Smith’s widow, however, testified that Daniels contacted her after
the police notified her of her husband’s death.
-7-
or six” in the morning and that Jeffries picked her up after he informed her that the Elantra’s
window “was broken out.” In light of the evidence tying the Elantra to the murder and Hicks’
approximations of time, the jury was not plainly wrong in concluding that Jeffries picked up
Hicks after the murder. See Kelley, 69 Va. App. at 626 (“‘The fact finder, who has the
opportunity to see and hear the witnesses, has the sole responsibility to determine their
credibility’ as well as ‘the weight to be given their testimony.’” (quoting Hamilton v.
Commonwealth, 279 Va. 94, 105 (2010))).
“By finding [a] defendant guilty, therefore, the factfinder ‘has found by a process of
elimination that the evidence does not contain a reasonable theory of innocence.’” Ray v.
Commonwealth, 74 Va. App. 291, 308 (2022) (quoting Edwards v. Commonwealth, 68 Va. App.
284, 301 (2017)). “The rejection of a hypothesis of innocence ‘is binding on appeal unless
plainly wrong . . . .’” Ervin, 57 Va. App. at 519 (quoting Archer v. Commonwealth, 26 Va. App.
1, 13 (1997)). The Commonwealth’s evidence was competent, was not inherently incredible,
and was sufficient to prove beyond a reasonable doubt that Jeffries was guilty of first-degree
murder, felony use of a firearm, and discharge of a firearm from a motor vehicle.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
-8- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482517/ | COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, Chaney and Raphael
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY
v. Record No. 0911-22-1 JUDGE CLIFFORD L. ATHEY, JR.
NOVEMBER 9, 2022
ANTONIO VICTOR OLIVER, JR.
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Alicia M. LeClair, Assistant Commonwealth’s Attorney (Colin D.
Stolle, Commonwealth’s Attorney, on brief), for appellant.
Shawn M. Mihill (Anderson & Associates, PC, on brief), for
appellee.
The Commonwealth of Virginia (“Commonwealth”) appeals from an interlocutory order
in the Circuit Court of the City of Virginia Beach (“trial court”) granting a motion to suppress
the results of a DNA analysis performed on the appellee, Antonio Victor Oliver, Jr. (“Oliver”),
during the course of his police interview. The Commonwealth assigns error to the trial court’s
decision to grant the motion to suppress on two grounds: (1) that Oliver was not in custody at
any point during the interview and, (2) that he voluntarily participated in both the interview and
the DNA test. The Commonwealth also contends that the May 16, 2022 transcript was timely
filed in this Court and is therefore part of the record for our consideration. Based on the
following, we deem the transcript timely filed and subject to our consideration. Further, we
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
reverse the decision of the trial court to suppress the evidence and remand the case to the trial
court for further proceedings consistent therewith.
I. BACKGROUND
During an investigation into a child sexual abuse case, Oliver was asked to come to the
Virginia Beach Police Department for an interview on March 18, 2021. Although Oliver was a
suspect in the investigation, he had not yet been charged with any crime when he arrived for the
interview. Oliver voluntarily agreed to be interviewed and proceeded to follow Virginia Beach
Police Detective Anna Webb (“Detective Webb”) back to the interview room. Detective Webb
was one of two Virginia Beach Police Department detectives present during the interview.
Virginia Beach Police Detective Gerard Dalina (“Detective Dalina”) also participated in the
interview, and both detectives were dressed in plain clothes. Just prior to commencing the
interview, Detective Webb made it clear to Oliver that Oliver could leave at any time, and even
after closing the door, she stated that he could open the door at any time and “you can leave at
any time.” Also, Oliver was not physically restrained at any point during the interview.
The interview was recorded by video and lasted for approximately two hours. Toward
the end of the interview, Detective Webb asked Oliver if he would consent to voluntarily
undergo a polygraph examination, and Oliver responded: “Can I speak to a lawyer about that?”
Webb responded, “Yep, that’s up to you, that’s your right.” Oliver was not questioned further
about the polygraph examination, but he was subsequently asked if he would consent to a buccal
swab for DNA analysis. Oliver consented to perform the buccal swab test and was subsequently
swabbed for DNA.
Oliver was eventually indicted for consensual intercourse with a child over the age of
fifteen in violation of Code § 18.2-371 and for taking indecent liberties while in a custodial role
in violation of Code § 18.2-370.1. Before trial, Oliver filed a motion to suppress evidence
-2-
stemming “from an interrogation and a DNA collection that took place on March 18[, 2021],”
alleging violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights under the
United States Constitution. A hearing was held on the motion to suppress on May 16, 2022, and
following the presentation of the Commonwealth’s single exhibit (a video recording of the
interview), the trial court granted the motion to suppress because Oliver “asked about an
attorney” during the course of his interrogation. On May 19, 2022, there was a second hearing in
order “to obtain clarification” on the prior May 16 trial court ruling that originally granted the
motion to suppress. During the May 19 hearing, the trial court clarified its prior ruling by stating
the motion to suppress was being granted because Oliver’s participation in the interview became
involuntary after he asked to speak to a lawyer about the polygraph test. Thus, any testimonial
or other evidence obtained after Oliver’s question concerning consulting with an attorney before
taking a polygraph test was suppressed. The Commonwealth then timely appealed the
interlocutory ruling pursuant to Code § 19.2-398.
In the July 28, 2022 order of this Court awarding an appeal, both Oliver and the
Commonwealth were requested to brief the issue of “whether the May 16, 2022 transcript was
timely filed on June 13, 2022 (as indicated by the clerk in the table of contents in the transmittal
of the record)[,] or on June 14, 2022 (as indicated by the date-stamp on the transcript itself).”1
On August 4, 2022, the trial court subsequently entered an order clarifying the filing date of the
transcript “as being filed on 2022 JUN 13, during regular business hours as the transcript was
scanned on the 13th of June, 2022.” The court further ordered that the date entered “for the
1
The dissent alleges that the clerical correction in Lamb v. Commonwealth, 222 Va. 161
(1981), was supported in the record by the court reporter’s testimony, while here, the trial court’s
order was based “on an unsupported assertion about a purported fact not” in the record regarding
the date of the transcript. The dissent states that “the Clerk’s machine-printed date stamp” is “the
authoritative source of a document’s filing information.” However, the table of contents of the
record similarly certifies that the filing date is on “06/13/2022.” The record would support the
conclusion that the actual date of filing was in dispute.
-3-
transcript of May 16, 2022, be corrected” to reflect this. On appeal we consider both the trial
court’s decision to suppress and whether the transcript was timely filed and therefore available
for our consideration.
II. ANALYSIS
A. Standard of Review
On an appeal from an order to suppress evidence, the evidence is viewed in the most
favorable light to the prevailing party, and “[w]e will not reverse the trial judge’s decision unless
it is plainly wrong.” Commonwealth v. Grimstead, 12 Va. App. 1066, 1067 (1991). On appeal,
the issue of “whether a defendant clearly requested an attorney during a custodial interrogation is
a mixed question of law and fact.” Commonwealth v. Redmond, 264 Va. 321, 326 (2002). This
issue requires applying a “constitutional standard to the facts of a particular case, and in this
context de novo review of that question is appropriate.” Id. (citing United States v. Bajakajian,
524 U.S. 321, 336-37 n.10 (1998)). Whether Miranda v. Arizona, 384 U.S. 436 (1966),
warnings were required during a police interview is a mixed question of law and fact and is
reviewed de novo on appeal. See Keepers v. Commonwealth, 72 Va. App. 17, 33 (2020) (citing
Spinner v. Commonwealth, 297 Va. 384, 392 (2019)). Similarly, the “legal question of
voluntariness” is reviewed de novo on appeal. See id. at 40.
B. The trial court erred in granting the motion to suppress the evidence because Oliver
was not in custody at any point during the interview.
The Commonwealth contends that because Oliver was not in custody, the trial court erred
in granting the motion to suppress. Conversely, Oliver responds that the interrogation was
-4-
custodial in nature, and he was not advised of his Miranda rights. We agree with the
Commonwealth.2
The United States Supreme Court’s holding in Miranda determined that when one is
subject to a custodial interrogation, he has the privilege to be protected against incriminating
himself under the Fifth and Fourteenth Amendments and has the right to remain silent and have
an attorney present. 384 U.S. at 444. “Pursuant to the Fifth Amendment of the United States
Constitution, law enforcement officers must inform a suspect in a custodial interrogation of
certain rights.” Stevens v. Commonwealth, 283 Va. 296, 302 (2012) (citing Commonwealth v.
Hilliard, 270 Va. 42, 49 (2005)). A series of factors are used to determine whether an individual
is in custody; these factors include: “the familiarity or neutrality of the surroundings, the number
of officers present, the degree of physical restraint, the duration and character of the
interrogation, the presence of probable cause to arrest, and whether the suspect has become the
focus of the investigation.” Cherry v. Commonwealth, 14 Va. App. 135, 140 (1992).
During Oliver’s interview, there were only two detectives present, he was not physically
restrained, and it was made clear to him that he could leave the interview at any time.
Considered together, these circumstances do not indicate that Oliver was held in custody during
the interview. Further, Oliver’s question asking if he could “speak to a lawyer” about taking a
polygraph amounted to a question “about” counsel, rather than a request for counsel. Redmond,
264 Va. at 330 (finding that the question “Can I speak to my lawyer? I can’t even talk to [a]
lawyer before I make any kinds of comments or anything?” was not a request for counsel);
2
We note that the Commonwealth’s opening brief changed the text of the two
assignments of error included in the Commonwealth’s petition for appeal. The proper way to
change an assignment of error is to seek leave of court. See Whitt v. Commonwealth, 61
Va. App. 637, 659 (2013) (en banc). But the changes here are not fatal to the appeal because
they do not “change the substance of the error[s] alleged.” Id. (quoting Allstate Ins. Co. v.
Gauthier, 273 Va. 416, 418 n.5 (2007)). The original assignments of error, even if not amended,
sufficed to warrant reversal.
-5-
Davis, 512 U.S. at 462 (stating “[m]aybe I should talk to a lawyer” was not considered to be a
request for counsel).
Because Oliver was not in custody, there was no requirement under the Fifth Amendment
to provide Oliver with Miranda warnings at the start of the interview. Accordingly, we agree
that the trial court erred in granting the motion to suppress because Oliver was not in custody.
C. The trial court erred in granting the motion to suppress the evidence because the
interview remained voluntary for its entire duration.
The Commonwealth contends that the trial court erred in granting the motion to suppress
because the interview remained voluntary even after Oliver asked about a lawyer. Oliver argues
that the “request for an attorney necessarily ended the voluntariness of his cooperation with the
interview progress.” Oliver extrapolates that on these grounds, the DNA sample was properly
excluded because he requested an attorney prior to the DNA collection. We disagree with
Oliver.
“The Commonwealth has the burden to prove, by a preponderance of the evidence, that a
defendant’s confession was freely and voluntarily given.” Bottenfield v. Commonwealth, 25
Va. App. 316, 323 (1997). “Whether . . . a statement was voluntary or the result of coercive
police activity is a legal question to be determined from a review of the totality of the
circumstances.” Keepers, 72 Va. App. at 40-41 (alteration in original) (these circumstances
include “details of the interrogation,” the accused’s characteristics, whether the statement of the
accused was made freely or whether his will was overcome). Likewise, “[w]hen evaluating the
conduct of the police, we ‘must consider the interrogation techniques employed, including
evidence of trickery and deceit, psychological pressure, threats or promises of leniency, and
duration and circumstances of the interrogation.’” Id. at 41 (quoting Terrell v. Commonwealth,
12 Va. App. 285, 291 (1991)).
-6-
The trial court suppressed the DNA evidence and any statements made by Oliver after his
question because the trial court held that the interview ceased to be voluntary after Oliver asked
if he could “speak to a lawyer about that.” In assessing whether the DNA evidence and further
statements were involuntary, we must employ a totality of the circumstances analysis. Initially,
Oliver voluntarily went to the police station to answer questions, voluntarily remained in the
interview room during the interview, continued to respond to questions from the officers, and
after asking if he could talk to a lawyer about taking a polygraph test, Oliver acquiesced to a
buccal swab. Based on a totality of the circumstances analysis, the nature of this interview
simply does not reflect circumstances that would amount to a coercive interrogation.
Additionally, the conduct of the detectives here did not amount to police conduct that was
deceitful, threatening, or psychologically challenging. For those reasons, the motion to suppress
the DNA was wrongfully granted because the interview remained voluntary throughout.
D. Under Code § 8.01-428(B), this Court grants leave for the trial court to correct the
record as to the date of the filing of the transcript.
The Commonwealth urges us to consider that the transcript from May 16 was timely filed
in the Virginia Beach Clerk’s Office and that it was solely due to a clerical error that it shows a
later timestamp date. Oliver argues that the entry of a timestamp is not a type of clerical error
encompassed by the language of Code § 8.01-428(B) and that the trial court had no authority to
correct this mistake because the trial court did not request leave from this Court. In considering
these arguments and the discretion given to this Court in granting leave for the correction of
clerical errors, we hold that the transcript is timely filed pursuant to the trial court’s order
correcting the error.
Code § 8.01-428(B) stipulates when and how a trial court may correct a clerical mistake.
The Code provides that:
-7-
Clerical mistakes in all judgments or other parts of the record and
errors therein arising from oversight or from an inadvertent
omission may be corrected by the court at any time on its own
initiative or upon the motion of any party and after such notice, as
the court may order. During the pendency of an appeal, such
mistakes may be corrected before the appeal is docketed in the
appellate court, and thereafter while the appeal is pending such
mistakes may be corrected with leave of the appellate court.
Code § 8.01-428(B).
Code § 8.01-428(B) allows for a trial court to make a correction of certain clerical
mistakes “at any time,” even by “its own initiative.” In Lamb v. Commonwealth, 222 Va. 161
(1981), the Supreme Court granted leave to the trial court ex post facto. See id. at 166 (holding
“that the transcript shall be corrected in the manner ordered by the trial court” on appeal)3; see
also Belew v. Commonwealth, 284 Va. 173, 178, 181 (2012) (finding that Code § 8.01-428(B)
allowed for the entry of an omitted transcript prior to the filing of petition for appeal in the Court
of Appeals).
The issue of whether the May 16 transcript was timely filed depends on whether the case
was docketed for appeal before August 4, 2022. The petition for appeal was received on June
24, 2022. This Court awarded an appeal on July 28, 2022. The trial court issued its order
regarding the date correction on August 4, 2022. For Code § 8.01-428(B) purposes, “an appeal
‘is docketed in the appellate court’ when the petition for appeal is received in the appellate
court.” Belew, 284 Va. at 178, 181 (finding that “the circuit court had authority under the statute
to correct the error prior to Belew’s filing of her petition for appeal in the Court of Appeals”).
Based on these facts, for the trial court to independently issue its order correcting the
record, it would have needed to issue its order prior to June 24, 2022, the date the petition for
appeal was received. However, Lamb offers a guiding principle for understanding when this
3
Further, the Court noted that “to hold otherwise would be to elevate form over
substance.” See Lamb, 222 Va. at 166.
-8-
Court has the authority to grant leave to the lower court. In Lamb, the Supreme Court affirmed
the trial court’s order to correct the transcript, even though the case was already docketed for
appeal, effectively granting ex post facto leave on the grounds that there is no time limit to grant
leave while the appeal is pending. See Lamb, 222 Va. at 166. Likewise, in the later Supreme
Court case, Belew, the Court determined that “the circuit court had authority under the statute to
correct the error” before the petition was filed in the Court of Appeals. Belew, 284 Va. at 181.
The distinction in the case at bar is that the trial court order correcting the date was issued
following this Court’s receipt of the petition for appeal. Because Belew does not go so far as to
challenge this Court’s ability to grant “ex post facto leave” in a case presenting a clerical error, as
noted by the dissent in Belew, we agree that the holding of Lamb applies here. Id. at 182
(Powell, J., dissenting). With this in mind, we grant leave to the trial court in receiving its order
and find that the order properly corrects the record and permits our review.
III. CONCLUSION
For the aforementioned reasons, we find that the suppression of the DNA evidence was
plainly wrong, and we reverse and remand to the trial court for further proceedings.
Reversed and remanded.
-9-
Chaney, J., dissenting.
In this pretrial appeal of the trial court’s order granting Oliver’s suppression motion,4 the
majority rescues the Commonwealth’s appeal and reverses the suppression order—despite multiple
procedural defaults that would be fatal to the appeal under a proper application of the relevant
statutes and Rules of Court. In accordance with the controlling legal standards, I would hold that
the Commonwealth waived its assignments of error in two ways: (1) by failing to timely file the
indispensable suppression hearing transcript and (2) by making unauthorized substantive alterations
to the second assignment of error in the granted petition for appeal.
Even if the Commonwealth’s waivers are disregarded, both assignments of error fail as
grounds for reversing the trial court’s suppression order. Assuming arguendo that the
Commonwealth did not waive its first assignment of error regarding the custodial nature of Oliver’s
interrogation, I would hold that the first assignment of error fails as a basis for reversing the trial
court’s judgment because the trial court did not make the ruling alleged to be erroneous in the first
4
Code § 19.2-398(A)(2) provides that in a felony case, the Commonwealth may take a
pretrial appeal from:
An order of a circuit court prohibiting the use of certain
evidence at trial on the grounds such evidence was obtained in
violation of the provisions of the Fourth, Fifth or Sixth
Amendments to the Constitution of the United States or Article I,
Section 8, 10 or 11 of the Constitution of Virginia prohibiting
illegal searches and seizures and protecting rights against
self-incrimination, provided the Commonwealth certifies that the
appeal is not taken for purpose of delay and that the evidence is
substantial proof of a fact material in the proceeding.
Code § 19.2-398(A)(2). If the Commonwealth appeals pretrial pursuant to Code § 19.2-398, “the
defendant may cross appeal from any orders from which the Commonwealth may appeal,
pursuant to § 19.2-398.” Code § 19.2-401. Although Code § 19.2-408 provides that no further
pretrial appeal shall lie to the Virginia Supreme Court from this Court’s decision, Code
§ 19.2-409 provides that “[s]uch finality of the Court of Appeals’ decision shall not preclude a
defendant, if he is convicted, from requesting the Court of Appeals or Supreme Court on direct
appeal to reconsider an issue which was the subject of the pretrial appeal.”
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assignment of error. Assuming arguendo that the Commonwealth did not waive its second
assignment of error regarding the voluntariness of the DNA collection from Oliver, I would hold
that the trial court’s presumptively correct suppression of the DNA evidence should be affirmed
because it is supported by the application of the law to the evidence viewed in the light most
favorable to the defendant, the prevailing party below.
The majority’s opinion:
(1) erroneously holds that the trial court properly modified the filing date on the suppression
hearing transcript;
(2) erroneously grants retroactive leave for the trial court to make a purported correction to
the transcript’s filing date;
(3) erroneously holds that the indispensable suppression hearing transcript was timely filed;
(4) erroneously ignores the fact that the trial court did not make the ruling alleged to be
erroneous in the Commonwealth’s first assignment of error;
(5) erroneously holds that the Commonwealth’s unauthorized alterations to its second
assignment of error are non-substantive changes and not fatal to the appeal;
(6) erroneously holds that the Commonwealth’s original assignments of error suffice as a
basis for reversal;
(7) erroneously holds that Oliver voluntarily consented to the buccal swab search for DNA
samples when a rational fact-finder could find from the evidence that Oliver’s consent to
the buccal swab search was not voluntary; and
(8) erroneously holds that the trial court’s suppression of the DNA evidence was plainly
wrong.
Therefore, I respectfully dissent.
I. THE SUPPRESSION HEARING TRANSCRIPT WAS NOT TIMELY FILED.
In this pretrial appeal, filed pursuant to Code § 19.2-398, the transcript of a proceeding is a
part of the record on appeal when it is timely filed in the trial court in accordance with Code
§ 19.2-405 and Rule 5A:8. “When the appellant fails to ensure that the record contains transcripts
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or a written statement of facts necessary to permit resolution of appellate issues, any assignments of
error affected by such omission will not be considered.” Rule 5A:8(b)(4)(ii) (emphasis added).
Here, the transcript of the suppression hearing is not included in the record on appeal
because it was not timely filed. Code § 19.2-405, which applies only to pretrial appeals, provides:
The transcript or written statement of facts shall be filed with the
clerk of the circuit court from which the appeal is being taken, no
later than 25 days following entry of the order of the circuit court.
Upon motion of the Commonwealth, the Court of Appeals may grant
an extension of up to 45 days for filing the transcript or written
statement of facts for good cause shown.
The Commonwealth appealed the trial court’s suppression order entered on May 19, 2022.
Therefore, under Code § 19.2-405, the Commonwealth was required to file the transcript of the May
16, 2022 suppression hearing within twenty-five days of May 19th, no later than June 13, 2022.
However, the Clerk’s machine-printed date stamp on the face of the suppression hearing transcript
shows that the transcript was filed one day late, on June 14, 2022.
The Clerk’s filing date stamp on the face of the suppression hearing transcript states:
FILED
VA BEACH CIRCUIT COURT
2022 JUN 14 AM 12:48
TINA E. SINNEN, CLERK
BY ___________ D.C.
The deputy clerk completed the Clerk’s machine-printed date stamp with a handwritten signature
attesting to the accuracy of the filing information provided therein. In accordance with this
Court’s standard of review, when the record evidence and the reasonable inferences therefrom
are taken in the light most favorable to Oliver, as the prevailing party below, the Clerk’s filing
date stamp establishes that the suppression hearing transcript was filed on June 14, 2022. See
Williams & Connolly, L.L.P. v. People for Ethical Treatment of Animals, Inc., 273 Va. 498, 512
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(2007) (recognizing the Clerk’s date stamp as the authoritative source of a document’s filing
information).
Notwithstanding clear evidence that the suppression hearing transcript was untimely
filed, this Court granted the Commonwealth’s petition for appeal on July 28, 2022. In the order
granting the petition for appeal, this Court directed the parties as follows:
The parties should also brief whether the May 16, 2022
[suppression hearing] transcript was timely filed on June 13, 2022
(as indicated by the clerk in the table of contents in the transmittal
of the record) or on June 14, 2022 (as indicated by the date-stamp
on the transcript itself), and if it was filed on June 14, whether the
order from which the appeal is taken must be affirmed on the
ground that the transcript is indispensable and was not filed within
the twenty-five days required by Code § 19.2-405.
Commonwealth v. Oliver, No. 0911-22-1 (Order dated July 28, 2022). A few days after this Court
entered the order granting the Commonwealth’s petition for appeal, the trial court sua sponte
entered an order that purports to correct the filing date of the suppression hearing transcript.
On August 8, 2022, the circuit court clerk transmitted to this Court a purported addendum to
the record on appeal, which included a purported circuit court order dated August 4, 2022 (“the
purported correction order”).5 The purported correction order states:
On the Court’s initiative for clarification of the filing date of the
transcript of the May 16, 2022, court hearing, it appearing that the
filed date of the transcript was incorrect in showing it was filed on
2022 JUN 14 AM 12:48 and should actually be reflected as being
filed on 2022 JUN 13 during regular business hours as the transcript
5
The purported addendum including the purported correction order is not part of the
record in this appeal because—in addition to the fact that the trial court lacked the power to
render the order—this Court did not award a writ of certiorari to allow enlargement of the record
to include the purported correction order. “After the record has been transmitted to this Court
pursuant to [the Rules of Court] and an appeal has been granted, the record on appeal cannot be
enlarged except by our award of a writ of certiorari under Code § 8.01-[675.4].” Watkins v.
Commonwealth, 26 Va. App. 335, 341 (1998) (first alteration in original) (quoting Godfrey v.
Commonwealth, 227 Va. 460, 465 (1984)). Here, the circuit court clerk transmitted the record to
this Court on July 5, 2022, and the appeal was granted on July 28, 2022. Subsequently, this
Court did not issue a writ of certiorari to authorize enlargement of the record by the addition of
the purported correction order.
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was scanned on the 13th of June, 2022. It is hereby ORDERED that
date filed in for the transcript of May 16, 2022, be corrected to reflect
the transcript was filed on 2022 JUN 13.
The purported correction order is not part of the record in this appeal because the trial court
had no power under Code § 8.01-428(B) to make the purported correction of the filing date of the
suppression hearing transcript. Code § 8.01-428(B) authorizes trial courts to correct clerical
mistakes in the record “and errors therein arising from oversight or from an inadvertent
omission.” “The court has the power to correct the record under Code § 8.01-428(B) only ‘when
the record clearly supports such corrections.’” School Bd. of Lynchburg v. Caudill Rowlett Scott,
Inc., 237 Va. 550, 555 (1989) (quoting Cutshaw v. Cutshaw, 220 Va. 638, 641 (1979)). Here,
the record does not clearly support the purported correction of the clerk-certified,
machine-printed filing date on the suppression hearing transcript. The Commonwealth contends
that the June 13, 2022 filing date stated on the table of contents of the digital record shows that
the suppression hearing transcript was timely filed on June 13, 2022. But this entry in the table
of contents appears to be erroneous in light of the Clerk’s filing date stamp showing June 14,
2022, as the filing date of the suppression hearing transcript. The filing date contained in the
Clerk’s machine-printed date stamp was generated and recorded contemporaneously with the
filing of the transcript in the trial court, in contrast with the filing date that was subsequently
recorded in the digital record’s table of contents. Taking the record evidence and the reasonable
inferences therefrom in the light most favorable to Oliver, the prevailing party below, the filing
date recorded in the digital record’s table of contents is a clerical mistake.
The trial court failed in its attempt to change the transcript filing date from June 14,
2022—the filing date attested to on the Clerk’s filing date stamp—to June 13, 2022, by its
purported correction order. The trial court’s stated basis for this change is the alleged fact that
the transcript was scanned—not filed—on June 13, 2022. However, this purported fact
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regarding the scan date is wholly outside the record. The record is devoid of evidence to support
a finding that the suppression hearing transcript was “scanned” or filed on June 13, 2022, and
that the June 14, 2022 filing date attested to by a deputy clerk on the Clerk’s filing date stamp is
a clerical mistake or error “arising from oversight or from an inadvertent omission.” See Code
§ 8.01-428(B). Therefore, because the record does not clearly support the purported correction of
the suppression hearing transcript’s filing date, the trial court had no power to render the purported
correction order. See School Bd. of Lynchburg, 237 Va. at 555. Thus, the purported correction
order is void ab initio and a nullity. See Burrell v. Commonwealth, 283 Va. 474, 480 (2012)
(holding that an order entered without the power to render it is void ab initio). As a nullity, the
purported correction order is not part of the record in this appeal, and the majority erred in
considering it.
In addition to its ultra vires entry of the purported correction order, the trial court had no
jurisdiction to enter the purported correction order. During the pendency of an appeal, Code
§ 8.01-428(B) authorizes trial courts to correct clerical mistakes and errors arising from oversight
or inadvertent omission “before the appeal is docketed in the appellate court, and thereafter
while the appeal is pending such mistakes may be corrected with leave of the appellate court.”
(Emphasis added). Here, the appeal was docketed on June 24, 2022, when the petition for appeal
was filed. See Belew v. Commonwealth, 284 Va. 173, 178 (2012) (“[A]n appeal ‘is docketed in
the appellate court’ when the petition for appeal is received in the appellate court.” (quoting
Lamb v. Commonwealth, 222 Va. 161, 165 (1981))). When the appeal was docketed in this
Court on June 24, 2022, this Court acquired jurisdiction over the case and the trial court’s
jurisdiction ceased. See Frazer v. Frazer, 23 Va. App. 358, 378-80 (1996). Thus, the trial court
had no jurisdiction to enter the purported correction order dated August 4, 2022, without leave of
this Court. Cf. Belew, 284 Va. at 179 (“[T]he circuit court granted Belew’s motion to make the
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Missing Transcript part of the record prior to the filing of her petition for appeal and while it had
jurisdiction to do so under the statute[, Code § 8.01-428(B)].” (emphasis added)).
The majority erroneously purports to remedy this jurisdictional defect by granting
retroactive leave for the trial court’s entry of the purported correction order.6 The majority’s
reliance on Lamb to grant such leave is misplaced. In Lamb, our Supreme Court, in effect,
granted retroactive leave to the trial court, pursuant to Code § 8.01-428(B), to correct a transcript
that demonstrably included an “obvious error” in wording. Lamb, 222 Va. at 164. In Lamb, the
trial court’s finding that the court reporter had incorrectly transcribed “Lee” as “me” was
supported by the court reporter’s testimony that she had incorrectly transcribed her notes and had
typed “me” when the correct word was “Lee.” Id. at 163. Unlike the record-supported clerical
correction in Lamb, this trial court’s purported correction order was based on an unsupported
assertion about a purported fact that is not in the record, i.e., that “the transcript was scanned on
the 13th of June, 2022.” The source of this purported fact is unknown, and its meaning and
relevance are unclear. The purported fact that “the transcript was scanned on the 13th of June,
2022” is unclear because, without more, it fails to establish that the transcript was filed in the
clerk’s office on that date. “The transcript was scanned on the 13th of June, 2022” could mean
only that the creation date of the PDF containing the transcript is June 13, 2022. If that PDF was
created prior to filing by the transcript preparer or the Commonwealth, then the purported fact
that the transcript was scanned on June 13, 2022, sheds no light whatsoever on the actual filing
date. The record does not support the trial court’s assertion that the alleged scan date is the filing
date of the transcript. Because the record does not clearly support the trial court’s purported
6
Although the Commonwealth failed to file a proper motion requesting that this Court
grant leave to the trial court to correct the record pursuant to Code § 8.01-428(B), the majority
considered and granted the request that was improperly set forth in the Commonwealth’s reply
brief.
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correction of the filing date of the suppression hearing transcript, the trial court could not
lawfully modify the filing date. Thus, the record does not support the majority’s conclusion that
“the order properly corrects the record and permits our review.”
II. THE TRANSCRIPT IS INDISPENSABLE FOR APPELLATE REVIEW.
The late-filed transcript of the suppression hearing is indispensable to enable this Court to
consider the Commonwealth’s assignments of error. See Turner v. Commonwealth, 2 Va. App. 96,
99 (1986) (“If the record on appeal is sufficient in the absence of the transcript to determine the
merits of the appellant’s allegations, we are free to proceed to hear the case.”). Notably, in
accordance with its duty of candor, the Commonwealth acknowledged to this Court during oral
argument that the suppression hearing transcript is indispensable in this appeal. The suppression
hearing transcript is necessary (1) to inform this Court of the evidence that was admitted and the
arguments that were made at the suppression hearing and (2) to enable this Court to review the trial
court’s factual findings and rulings of law. However, because the late-filed transcript is not
included in the record on appeal, this Court cannot ascertain and review the entire basis of the trial
court’s order granting Oliver’s suppression motion. Therefore, under the rules governing appeals in
this Court, the Commonwealth has waived its assignments of error and this Court should not
consider them.7 See Rule 5A:8(b)(4)(ii).
7
In light of the Commonwealth’s failure to ensure that the record contains the
indispensable transcript of the suppression hearing, the Commonwealth’s petition for appeal was
improvidently granted on July 28, 2022—before the trial court entered the purported correction
order on August 4, 2022.
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III. FATALLY FLAWED ASSIGNMENTS OF ERROR
A. The Flawed First Assignment of “Error”
The trial court did not make the ruling alleged to be erroneous in the Commonwealth’s first
assignment of error. The Commonwealth’s first assignment of error, as stated in the opening brief,
is:
The trial court erred in granting the motion to suppress the
evidence because the Appellee was not in custody at any point
during the interview.
Op. Br. at 3. However, at a hearing held on May 19, 2022, (three days after the suppression
hearing) to clarify the trial court’s ruling granting Oliver’s suppression motion, the trial court made
the explicit finding that “because he was told he could leave and he could open the door, that it’s
noncustodial.”8 (Emphasis added). Subsequently, the Commonwealth requested further
clarification.
THE COMMONWEALTH: Just to clarify, you’re holding that the
defendant was never in custody at any point?
THE COURT: Well, the interview was noncustodial, so I guess that
means he wasn’t in custody.
(Emphasis added). Clearly, the trial court did not make the ruling alleged to be erroneous in the
Commonwealth’s first assignment of “error.”9 Therefore, the first assignment of error fails as a
basis for reversing the trial court’s judgment.
8
The transcript of the May 19, 2022 hearing was timely filed on May 24, 2022.
9
Whether the interrogation was custodial should not be considered in this pretrial appeal
because Oliver did not cross appeal the trial court’s determination that the interrogation was
non-custodial. See Code § 19.2-401 (allowing, but not requiring, the defendant to cross appeal
pretrial when the Commonwealth files a pretrial appeal pursuant to Code § 19.2-398).
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B. Waiver of the Second Assignment of Error
The Commonwealth made improper substantive alterations to the second assignment of
error in the granted petition for appeal, thereby waiving the issue raised in the second assignment of
error. The Commonwealth’s second assignment of error in the granted petition for appeal states:
The trial court erred in granting the motion to suppress the evidence
because the interview was not required to cease when the respondent
said “Can I speak to a lawyer about that” when asked if he would
consent to a polygraph examination as he was not in custody and the
question was not a demand, request, or assertion.
Petition for Appeal at 2. In the Commonwealth’s opening brief, the altered second assignment of
error states:
The trial court erred in granting the motion to suppress the evidence
because the interview remained voluntary for its entire duration.
Op. Br. at 3. At issue in the second assignment of error in the granted petition for appeal is whether
the detectives were required to cease their questioning of Oliver when he asked to speak to a lawyer.
But the second assignment of error in the Commonwealth’s opening brief raises a different issue:
whether the interview was voluntary throughout. The words “voluntary” and “involuntary” do not
even appear in the Commonwealth’s arguments in its petition for appeal. Because the alterations to
the second assignment of error, if allowed, would permit the Commonwealth to argue a different
issue on appeal than was raised in the Commonwealth’s petition for appeal, these alterations are
substantive changes, by definition. See Henderson v. Cook, 297 Va. 699, 707 (2019) (defining
non-substantive alterations “as those that ‘do not permit the appellant to argue a different issue on
appeal’” (quoting Northam v. Virginia State Bar, 285 Va. 429, 434 n.* (2013))). Such substantive
alterations to an assignment of error defeat the purpose of assignments of error, which “is to alert
the appellate court and opposing counsel to the precise error allegedly committed below and to limit
review to that issue.” Brooks v. Commonwealth, 61 Va. App. 576, 583 (2013) (emphasis added).
Therefore, “[i]t is improper for an appellant to change the wording of an assignment of error from
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that which was presented to the Court at the petition stage.”10 Henderson, 297 Va. at 705 (quoting
Allstate Ins. Co. v. Gauthier, 273 Va. 416, 418 n.* (2007)). Accordingly, Rule 5A:12(c)(1)(i)
provides that “[o]nly assignments of error assigned in the petition for appeal will be noticed by this
Court.” This Court does not “recognize any unauthorized substantive alteration to the granted
assignment of error.” Henderson, 297 Va. at 707 (quoting Commonwealth v. Herring, 288 Va. 59,
72 (2014)). Therefore, this Court may not lawfully consider the Commonwealth’s altered second
assignment of error. See Northam, 285 Va. at 434 n.* (“It is well established that the Court will not
consider assignments of error as modified by an appellant’s opening brief, but only as granted by
the Court.”).
The majority glosses over the Commonwealth’s unauthorized alterations to its second
assignment of error by asserting in a footnote that “the changes here are not fatal to the appeal
because they do not change the substance of the errors alleged.” (Internal quotation and citations
omitted). This assertion is demonstrably false in light of the above comparison between the altered
and granted second assignment of error. The comparison shows that the altered second assignment
of error changed the issue from the Miranda v. Arizona, 384 U.S. 436 (1966), right to counsel
during custodial interrogation to the voluntariness of non-custodial statements and actions. By
raising an issue that was not encompassed by the second assignment of error in the granted petition
for appeal, the Commonwealth substantively changed that assignment of error. Therefore, the
majority erred in considering the altered second assignment of error. See Northam, 285 Va. at
434 n.*.
10
The Commonwealth also altered the first assignment of error by changing
“Respondent” to “Appellee” and by adding the phrase “at any point during the interview.” These
alterations are non-substantive to the extent that both versions of the first assignment of error
raise the same issue. “While it is improper for an appellant to alter the wording of a [granted]
assignment of error . . . non-substantive changes to an assignment of error . . . do not default the
issue raised.” Henderson, 297 Va. at 707 (alterations in original) (quoting Northam, 285 Va. at
434 n.*).
- 20 -
The majority also erroneously asserts that “[t]he original assignments of error, even if not
amended, sufficed to warrant reversal.” If the Commonwealth had adequately briefed the issue
presented in the granted second assignment of error, the improper modification of the second
assignment of error would not prevent this Court from considering the issue for which an appeal
was granted. See Henderson, 297 Va. at 708. But the Commonwealth abandoned the second
assignment of error granted in the petition by omitting it and its related arguments from the opening
brief. Under these circumstances, the second assignment of error in the Commonwealth’s petition
for appeal cannot lawfully serve as a basis for reversal. See id. at 708-09. Because the
Commonwealth made substantive changes to the second assignment of error and did not adequately
brief the granted issue, the matter is defaulted. See id. at 710.
The Commonwealth’s original, unaltered assignments of error were fatally flawed because
neither of them addressed the basis of the trial court’s judgment granting the suppression motion.
Oliver’s motion to suppress was based on alternative grounds. Oliver claimed that (1) his Miranda
rights were violated when he was subjected to custodial interrogation and (2) even if the
interrogation was non-custodial, the encounter became non-consensual and his statements
became involuntary at the point where he asked for an attorney. Although the trial court granted
Oliver’s motion based on the second ground, both of the Commonwealth’s original assignments
of error addressed only the first ground of Oliver’s suppression motion, which the trial court
rejected. This explains why the Commonwealth substantively altered the second assignment
error to address the voluntariness issue, which was the basis of the trial court’s judgment
granting the motion to suppress. Because the assignments of error in the granted petition for
appeal limit the scope of this Court’s review, the Court cannot properly consider the issue of
voluntariness in this appeal. See id. at 707; Northam, 285 Va. at 434 n.*.
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IV. THE SUPPRESSION ORDER’S LEGAL AND EVIDENTIARY SUPPORT
Assuming arguendo that the Commonwealth did not waive its second assignment of error,
the trial court’s presumptively correct suppression of the DNA evidence should be affirmed because
it is supported by the application of the law to the evidence. The Commonwealth has the burden to
show that granting the motion to suppress was reversible error. See Taylor v. Commonwealth,
70 Va. App. 182, 186 (2019). On appeal of a trial court’s order granting a defendant’s motion to
suppress evidence, “the evidence must be viewed in the light most favorable to the defendant and
findings of fact are entitled to a presumption of correctness unless they are plainly wrong or
without evidence to support them.” Commonwealth v. Peterson, 15 Va. App. 486, 487 (1992)
(citing Code § 8.01-680).
Oliver’s motion to suppress was based on the Fourth, Fifth, Sixth, and Fourteenth
Amendments. The Fourth Amendment right against unreasonable searches and seizures is
implicated by the detective’s collection of Oliver’s DNA because “using a buccal swab on the
inner tissues of a person’s cheek in order to obtain DNA samples is a search.” Maryland v. King,
569 U.S. 435, 446 (2013). Given that Oliver was not under arrest when the detective collected
his DNA, Oliver had a reasonable expectation of privacy that the police would not swab his
mouth without a warrant and without his voluntary consent. Cf. id. at 465-66 (holding that
taking and analyzing a cheek swab of a validly-arrested person’s DNA is “a legitimate police
booking procedure that is reasonable under the Fourth Amendment”).
“[W]hen the subject of a search is not in custody and the State attempts to justify a search
on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate
that the consent was in fact voluntarily given, and not the result of duress or coercion, express or
implied.” Commonwealth v. Ealy, 12 Va. App. 744, 752-53 (1991) (alteration in original)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)). “[V]oluntariness is a
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question of fact to be determined from all the circumstances.” Bay v. Commonwealth, 60
Va. App. 520, 535 (2012) (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)). The trial court’s
implicit finding that Oliver did not give voluntary consent to the buccal swab procedure is a
factual determination that is presumptively correct and must not be overturned on appeal unless
clearly erroneous. See Ealy, 12 Va. App. at 753.
Taking the evidence in the light most favorable to Oliver, as the prevailing party below—
as this Court must on appellate review—a rational fact-finder could find, based on the totality of
the evidence, that Oliver’s consent to the buccal swab search of his mouth was not voluntary.
Although Oliver voluntarily met with the detectives at the outset of the interrogation, the
evidence—including a video of Oliver’s interrogation—supports a finding that the encounter had
become non-consensual by the time Oliver asked for a lawyer and was subsequently swabbed for
DNA. Considering the evidence in this context, a rational fact-finder could find that Oliver’s
consent to the buccal swab search was elicited under coercive circumstances and obtained as a
result of coercion rather than voluntary consent.
After more than an hour of questioning, Oliver stated, “I’ve been thinking about killing
myself for the last year.” When asked why he had suicidal thoughts, Oliver replied, “I just can’t
make enough money.”
Detective Webb responded, “Is that all? Or is it that you’re disgusted with yourself?”
Detective Webb told Oliver that she could tell he was ashamed of his relationship with his
fiancee’s teenage daughter. Then Detective Webb stated, “So, let’s talk about the time or times
that your penis went in her vagina and caused her to be pregnant, ok?”
A minute before Oliver asked to talk to a lawyer, Oliver cried and slumped forward in his
seat with his right hand over his eyes. Then Detective Webb said the following:
I know it happened. And you’re not being honest with us. And
I’m getting really frustrated that you’re not being honest, okay?
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Because we have been dancing around the truth for over an hour
now. . . .We know that it happened. We know when it happened.
We know that it happened in Meredith’s bed. And we know it
happened when Meredith had gone to work one day and Greg was
at daycare, right? We already know these things. So let’s just
(pauses) keep going.
Before Detective Webb uttered the words, “keep going,” she paused and punched her right fist
into the palm of her left hand.
A few seconds later, as Oliver stared down at the floor, he asked in a choked-up voice,
“Can I please just go?” Neither detective answered this question.
Seconds after Oliver asked to leave, Detective Webb asked Oliver if he would be willing
to take a polygraph. Oliver asked, “Can I speak to a lawyer about that?”
Detective Webb replied, “Yep, that’s up to you. It’s your right.”
Then Detective Webb asked Oliver if he had ever heard of a buccal swab. When Oliver
replied, “no,” Detective Webb explained the buccal swab procedure as Oliver continued staring
down at the floor. Then Detective Webb asked Oliver, “Would you mind if I – if I do that to
you?”
Without looking up, Oliver separated his clasped hands and threw them up to each side as
he said, “Go ahead.”
Detective Webb responded, “Okay, alright, and then let me go get that, and then, um,
then you can leave at any time if you want to, but do you mind if we do that?”
Oliver replied, “Yes.”
Detective Webb responded, “Oh, okay. Yes, I can do it?”
Oliver responded by swinging his right hand forward and upward, saying nothing. Then
Detective Webb said, “Okay, let me go get it, and then, um, as soon as we’re done, we’ll wrap
this up, okay?”
- 24 -
As Detective Webb was leaving the room, Oliver asked for more tissue. Detective Webb
returned, gave Oliver some tissue, and then left again, leaving Oliver in the interrogation room
with the other detective. Moments later, Detective Webb returned with the buccal swabs.
Detective Webb showed Oliver that she was removing the swab from its packaging.
Then Detective Webb said, “Would you open your mouth for me?” Oliver closed his eyes and
opened his mouth, and Detective Webb proceeded to swab Oliver’s inner cheeks.
Considering the totality of evidence related to the DNA collection from Oliver, a rational
fact-finder could find that Oliver did not voluntarily consent to the buccal swab search. Oliver
was asked to submit to the buccal swab search moments after Detective Webb explicitly accused
him of having sexual intercourse with his fiancee’s teenage daughter. Such a “specific allegation
of criminal wrongdoing to the suspect . . . is highly significant among the totality of factors” in
determining whether a police encounter is non-consensual. See Barkley v. Commonwealth, 39
Va. App. 682, 692-93 (2003) (alteration in original) (quoting Davis v. Commonwealth,
37 Va. App. 421, 431-32 (2002)). A rational fact-finder could find that Oliver’s meeting with
detectives transitioned into a non-consensual encounter and that the detective thereafter used
coercion to obtain DNA samples from Oliver. After specifically alleging criminal wrongdoing to
Oliver, Detective Webb made a threatening gesture with her fist as she told Oliver, “Let’s just
keep going.” When Oliver responded with a tearful request to leave, both detectives ignored his
request. Then Detective Webb asked Oliver to submit to the buccal swab procedure. A rational
fact-finder could consider Oliver’s verbal response, “go ahead,” in conjunction with his body
language—staring at the floor, unclasping his hands, and throwing his hands up—to be evidence
of Oliver’s submission to authority rather than his free and voluntary expression of consent.
Detective Webb subsequently told Oliver that she would go and get the buccal swabs and “then
you can leave at any time if you want to.” A rational fact-finder could find that Detective Webb
- 25 -
thereby conditioned Oliver’s freedom to leave on his submission to the buccal swabs. When
Detective Webb again asked Oliver if he would mind if they used the buccal swabs on him,
Oliver replied, “Yes.” Detective Webb responded, “Yes, I can do it?” Then Oliver merely
swung his right hand forward in response, but he did not respond verbally. After Detective
Webb returned with the buccal swabs, she said to Oliver, “Would you open your mouth for me?”
A rational fact-finder could conclude, based on the totality of the evidence taken in the light most
favorable to Oliver, that Oliver’s non-verbal response of closing his eyes and opening his mouth
was his compliance with a perceived directive, not a free and voluntary consent to the buccal
swab search. Therefore, even if the voluntariness issue in the Commonwealth’s altered second
assignment of error was not procedurally defaulted, the trial court’s suppression of the DNA
evidence should be affirmed.
V. CONCLUSION
For the foregoing reasons, I would affirm the trial court’s order granting Oliver’s motion to
suppress. Accordingly, I respectfully dissent.
- 26 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482520/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Huff and AtLee
Argued by videoconference
PUBLISHED
JORDAN HEATH JOYCE
OPINION BY
v. Record No. 0736-22-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 9, 2022
BOTETOURT COUNTY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Joel R. Branscom, Judge
Wilson C. Pasley for appellant.
Matthew J. Schmitt (Mark C. Popovich; L. Brad Braford, Guardian
ad litem for the minor child; Guynn, Waddell, Carroll & Lockaby,
PC, on brief), for appellee.
Jordan Heath Joyce (“father”) appeals the order of the Botetourt County Circuit Court
(“circuit court”) terminating his parental rights to his child, N.J., pursuant to Code § 16.1-283(C)(2).
Father argues that the circuit court erred in finding that the Botetourt County Department of Social
Services (“the Department”) could not provide services to father because he was subject to a
protective order for the first year that N.J. was in foster care. Accordingly, he argues the evidence
was insufficient to prove the Department made reasonable and appropriate efforts with respect to
father to substantially remedy the conditions which led to or required continuation of N.J.’s foster
care placement.
BACKGROUND
“On appeal, ‘we view the evidence and all reasonable inferences in the light most
favorable to the prevailing party below, in this case the Department.’” Farrell v. Warren Cnty.
Dep’t of Soc. Servs., 59 Va. App. 375, 386 (2012) (quoting Jenkins v. Winchester Dep’t of Soc.
Servs., 12 Va. App. 1178, 1180 (1991)). So viewed, the evidence established the following:
Father and Aiden Joyce (“mother”) are the biological parents to N.J., who is the subject of
this appeal.1 The Department became involved with the family in July 2018, shortly after father and
mother separated. At the time, four-year-old N.J. lived with mother and his twelve-year-old sister,
A.J. On July 22, 2018, mother made allegations that father had sexually abused A.J., and the
Botetourt County Juvenile and Domestic Relations District Court (“the JDR court”) entered an
emergency protective order against father. On August 14, 2018, the JDR court entered a two-year
protective order, prohibiting father from having contact with the children, “except through visitation
at Sabrina’s Place. (Only if juveniles wish to visit.)” The protective order stated that it expired on
August 14, 2020. In June 2019, father moved the JDR court to have the protective order dissolved.
The JDR court denied the motion; father did not appeal.
Also in June 2019, law enforcement responded to a call regarding A.J. hiding from her
mother in the woods. Law enforcement saw that mother and the children were living in
unacceptable conditions. Law enforcement contacted the Department, which found the living
conditions to be “unfit” for the children. On June 12, 2019, mother signed an entrustment
agreement, entrusting N.J. and A.J. to the care of the Department. Pursuant to the agreement, the
Department removed the children from the home, while mother had time to try to remedy the living
situation.
By August 12, 2019, mother had not remedied the living situation, and the JDR court
approved the Department’s petition to place the children in foster care, with a permanent goal of
returning the children to their home. On that date, the JDR court found that there was an existing
1
Mother’s parental rights to N.J. and her older child, A.J., were terminated at the same
time as father’s parental rights to N.J. were terminated; mother did not appeal the circuit court’s
ruling. Father is not the biological father of A.J.
-2-
protective order in place against father but ordered that father could have visitation with N.J. at the
Department’s discretion. However, in foster care plans prepared in November 2019, April 2020,
and September 2020, the Department explained, “Due to [N.J.’s] diagnosis and [father’s] current
health situation, [N.J.] does not visit with his father.” The foster care plans included no services for
father, and the Department’s only other reference to father in the plans was its conclusion that he
was “not a viable option” for relative placement because of a “current protective order.” Each of
these foster care plans described services and visitation efforts offered to mother to achieve the
stated goal of returning N.J. to his own home. The target date to accomplish the goal was
December 2020.
In April 2021, twenty-two months after the Department removed N.J. from the home, the
Department petitioned the JDR court for termination of parental rights as to father and mother. In
support of its petition, the Department cited mother’s unreliable income and housing and her failure
to follow through with substance abuse treatment. As for father, the Department stated that he
suffers with Parkinson’s disease and that he has had no contact with N.J. On July 20, 2021, the JDR
court terminated father’s parental rights to N.J. under Code § 16.1-283(C)(2). Father appealed to
the circuit court.
On February 2, 2022, the parties appeared before the circuit court for a de novo hearing on
the Department’s petition to terminate father’s parental rights. At the time of the hearing, N.J. was
eight years old. When he first entered foster care, N.J., who is on the autism spectrum, was “very
much out of control, at times,” according to his foster mother. N.J. “was nonverbal . . . he would
say words but he wouldn’t communicate at all . . . he was very smart but . . . he didn’t have any way
to express himself.” Since entering foster care, N.J. had made “leaps and bounds of improvement.”
N.J. was doing very well in his foster home.
-3-
The Department presented evidence about the services it offered mother to help her achieve
the goal of returning N.J. to home. The Department admitted that it offered no services to father,
nor did it assist father in any way to communicate with N.J. The Department explained that initially
father was “not put in the service plan because . . . there was still a protective order so he couldn’t
have visitation.” The Department conceded that father contacted the Department about visiting N.J.
approximately seven times over the two-year period that N.J. had been in foster care.
Father cross-examined the Department about the foster care plans, which indicated that N.J.
did not visit with father because of N.J.’s autism diagnosis and father’s “current health situation.”
The Department explained that father never said “what he had going on” regarding his health, but
during the court hearings “he sat there and just shook, could hardly speak or anything.” The
Department admitted that it did not inquire into father’s health status but nevertheless determined
that it would not be in N.J.’s best interest to visit with him. The Department never offered father
visitation with N.J., even after the protective order was lifted and the Department determined that
the sexual allegations against father were unfounded.
Father testified that he wanted to reunite with N.J. and that he contacted the Department
“multiple times over the years” to inquire about visitation, to no avail. He also testified that he
contacted Sabrina’s Place about visitation; however, the representative from Sabrina’s Place told
father that he would have to consult with the Department about visitation. As for his health, father
explained that he has “the beginning stages of Parkinson’s,” which causes him to shake, but his
symptoms would not prevent him from parenting. Father offered that he has been co-parenting his
nineteen-year-old autistic child, and believes that his experience in raising his older child would
help him with parenting N.J. Father also noted that, even though he has not visited with N.J. since
June 2018, he raised N.J. for the first five years of his life, and he is aware of N.J.’s autistic
-4-
behaviors. Father requested that N.J. be returned to his custody, recognizing that they would need
to go through counseling.
In closing remarks, the Department’s counsel acknowledged that it was required to provide
reasonable and appropriate services under the statute but argued that its “hands were tied for that
initial year [that N.J. was in foster care] by a court order.” Counsel asserted that it “had no reason to
attempt to provide services for reunification because at that time there was no contact.”
The circuit court acknowledged that father’s situation was “troubling” because the
protective order “limited [father’s] ability to have contact” with N.J. and father “followed the terms
of the protective order.” The circuit court, however, was “concerned that somebody who wanted to
have contact, it seems could do more . . . .” The circuit court noted that the JDR court found by a
preponderance of the evidence that father was “a danger” to A.J. and N.J. The circuit court also
recalled mother’s testimony that father was “a danger” to A.J. and N.J. The circuit court found that
there was no “good cause for [father] to be unable to have contact for twelve months,” and he had
not made satisfactory efforts to have visitation with N.J. when he could have gone to Sabrina’s
Place. In conclusion, the circuit court “agree[d] with the Department that they could not provide
services during that period of time because of the protective order and for that reason I’m granting
the petition on [N.J.] as, as well.” The circuit court further found that N.J. was thriving and that it
was in N.J.’s best interests to terminate father’s parental rights under Code § 16.1-283(C)(2). Father
appeals.
ANALYSIS
I. No Provision of Services because of Protective Order
Father challenges the circuit court’s finding that the Department could not provide
services to him during the time the protective order placed restrictions on his contact with N.J.
-5-
“On review of a trial court’s decision regarding the termination of parental rights, we
presume the trial court ‘thoroughly weighed all the evidence, considered the statutory
requirements, and made its determination based on the child’s best interests.’” Norfolk Div. of
Soc. Servs. v. Hardy, 42 Va. App. 546, 552 (2004) (quoting Logan v. Fairfax Cnty. Dep’t of
Hum. Dev., 13 Va. App. 123, 128 (1991)). “Accordingly, the trial court’s decision will not be
disturbed on appeal unless it committed an abuse of discretion, or unless its decision was plainly
wrong or without evidence to support it.” Id. (citation omitted). “A circuit court’s discretionary
authority means it ‘has a range of choice, and that its decision will not be disturbed as long as it
stays within that range and is not influenced by any mistake of law.’” Everett v. Tawes, 298 Va.
25, 40 (2019) (quoting Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346,
352 (2011)). When, as here, an appellant challenges the legal conclusion of the circuit court, the
appropriate standard for appellate review is de novo. Farrell, 59 Va. App. at 424; see also
Harvey v. Flockhart, 65 Va. App. 131, 143 (2015) (question of whether circuit court’s
determination of adoption comported with adoption statutes reviewed de novo).
“‘[T]he interest of parents in the care, custody, and control of their children . . . is perhaps
the oldest of the fundamental liberty interests recognized by’ the United States Supreme Court.”
Geouge v. Traylor, 68 Va. App. 343, 368 (2017) (alterations in original) (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000) (plurality opinion)). This liberty interest of natural parents
“does not evaporate simply because they have not been model parents or have lost temporary
custody of their child to the State. . . . [P]arents retain a vital interest in preventing the
irretrievable destruction of their family life.” Santosky v. Kramer, 455 U.S. 745, 753 (1982).
The termination of parental rights is a “grave, drastic, and irreversible action.” Bristol Dep’t of
Soc. Servs. v. Welch, 64 Va. App. 34, 44 (2014) (quoting Helen W. v. Fairfax Cnty. Dep’t of
Hum. Dev., 12 Va. App. 877, 883 (1991)). “Statutes terminating the legal relationship between
-6-
parent and child should be interpreted consistently with the governmental objective of
preserving, when possible, the parent-child relationship.” Id. at 45 (quoting Richmond Dep’t of
Soc. Servs. v. L.P., 35 Va. App. 573, 580 (2001)). “[T]he law presumes that the child’s best
interests will be served when in the custody of its parent.” Id. (quoting Judd v. Van Horn, 195
Va. 988, 996 (1954)). “[T]he state cannot ‘infringe on the fundamental right of parents . . .
simply because a state judge believes a better decision could be made.’” Id. (quoting Thach v.
Arlington Cnty. Dep’t of Hum. Servs., 63 Va. App. 157, 173 (2014)).
Here, the circuit court terminated father’s parental rights under Code § 16.1-283(C)(2).
This section permits a court to terminate residual parental rights when such a termination is in the
best interests of the child and:
[t]he parent or parents, without good cause, have been unwilling or
unable within a reasonable period of time not to exceed 12 months
from the date the child was placed in foster care to remedy
substantially the conditions which led to or required continuation
of the child’s foster care placement, notwithstanding the
reasonable and appropriate efforts of social, medical, mental health
or other rehabilitative agencies to such end.
Code § 16.1-283(C)(2). Stated differently, a court must make three separate findings by clear and
convincing evidence: (1) that termination is in the child’s best interest, (2) that, without good cause,
the parent failed to substantially remedy the conditions that led to, or required continuation of, the
child’s placement in foster care, and (3) that the Department made reasonable and appropriate
efforts to help the parent remedy those conditions. See id. Father challenges the circuit court’s
ruling related to the third factor. Father argues the circuit court “erred in ruling that [father] being
subject to the Protective Order for the first year that [N.J.] was in foster care relieved the
Department of having to prove that it made reasonable and appropriate efforts to remedy the
conditions that led to or required continuation of [N.J.] being in foster care.” It is undisputed that
the Department offered no plan or services to father to help him parent N.J.
-7-
A parent’s residual parental rights cannot be terminated “[i]n the absence of evidence
indicating that ‘reasonable and appropriate efforts’ were taken by social agencies to remedy the
conditions leading to foster care . . . .” Weaver v. Roanoke Dep’t of Hum. Res., 220 Va. 921, 928-29
(1980). We have held that the “reasonable and appropriate” efforts of the Department can only be
judged with reference to the circumstances of a particular case and that “‘a court must determine
what constitutes reasonable and appropriate efforts given the facts before the court.’” Harrison v.
Tazewell Cnty. Dep’t of Soc. Servs., 42 Va. App. 149, 163 (2004) (quoting Ferguson v. Stafford
Cnty. Dep’t of Soc. Servs., 14 Va. App. 333, 338-39 (1992) (finding statute “does not specify
incarceration as a basis for terminating parental rights or waiving the need for efforts to be made by
the Department”)). And where “there is undisputed evidence that a parent has not been offered or
provided services, . . . the party moving for termination is put to the burden of proving the factors
listed in § 16.1-283(C)(2).” Harris v. Lynchburg Div. of Soc. Servs., 223 Va. 235, 243 (1982); see
also Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 269 (2005) (distinguishing Code
§ 16.1-283(C)(2) as specifically requiring “a showing that DSS has provided ‘reasonable and
appropriate’ services to a delinquent parent prior to terminating his rights”). “[I]n the absence of
such proof, reversal of a termination order is required.” Harris, 233 Va. at 243.
In Cain v. Commonwealth, 12 Va. App. 42 (1991), the circuit court terminated appellant’s
parental rights upon her conviction of robbery and subsequent incarceration. Id. at 44, 46. The
department made no effort to assist appellant, and instead, “sought termination of parental rights
without first offering of services which would enable the court to determine whether in fact mother
was unwilling or unable, if given the opportunity, to correct or eliminate the conditions which
resulted in the initial neglect.” Id. at 46. The department argued that “the fact of mother’s
incarceration per se established lack of ‘good cause’ for her inability to care for the children,”
referring to the “without good cause” requirement in Code § 16.1-283(C). Id. at 44-45. The circuit
-8-
court agreed with the department and granted the petition to terminate parental rights. Id. at 44.
This Court expressly declined to adopt the per se rule. Id. This Court reversed the circuit court’s
termination of parental rights because the circuit court’s finding was based “solely” on the robbery
and subsequent incarceration and the record lacked clear and convincing evidence that the
department offered the services required by statute. Id. at 46.
Here, as in Cain, the circuit court distilled the issue on the record at the hearing: “I agree
with the Department that they could not provide services during that period of time because of the
protective order and for that reason I’m granting the petition on [N.J.] as, as well.” We disagree.
The protective order was in place when N.J. entered foster care and expired twelve months
later. The protective order allowed father to have visitation with N.J. at Sabrina’s Place. The
subsequent JDR court order transferring custody of N.J. to the Department in August 2019 provides
for visitation between father and N.J. in the discretion of the Department. However, despite the
temporary nature of the protective order and the possibility of visitation under the protective order
and the custody order, the evidence establishes that the Department offered no services to father and
facilitated no visitation with the child. The Department proceeded on the premise that the protective
order rendered the father unreachable and exempted the Department from offering any services to
father. The circuit court’s finding that the Department could not offer father services was based on
the protective order in place against father. As we have done in Cain and Ferguson regarding the
mere fact of incarceration for a crime, we reject a per se rule that a protective order alone satisfies
the evidentiary requirement of proving that the Department offered “reasonable and appropriate”
services in accordance with the termination of parental rights statute. Code § 16.1-283(C)(2).
II. Sufficiency of the Evidence
In his second assignment of error, father argues that the circuit court erred when it
terminated his parental rights to N.J. under Code § 16.1-283(C)(2), because the evidence in the
-9-
record is insufficient to support a finding that reasonable and appropriate efforts were made with
respect to father to substantially remedy the conditions which led to or required continuation of
N.J.’s foster care placement. Father addresses the insufficiency of the evidence, acknowledging that
this Court could agree with his first argument but still find that the circuit court reached the right
result for the wrong reason when viewing all the evidence in the record. Notwithstanding our
finding rejecting a per se rule, we consider whether the evidence supports a finding that the
Department made reasonable and appropriate efforts regarding father.
Once again, Code § 16.1-283(C)(2) requires the Department to offer father “reasonable and
appropriate efforts of social, medical, mental health or other rehabilitative agencies” to remedy the
conditions which led to or required continuation of N.J.’s foster care placement. “Reasonable and
appropriate” efforts of the Department “can only be judged with reference to the circumstances of a
particular case.” Harrison, 42 Va. App. at 163 (quoting Ferguson, 14 Va. App. at 338). The
Department explained in its foster care plans and at the circuit court hearing that there were reasons
besides the protective order for its refusal to allow visitation. Specifically, the Department was
concerned about father’s “health issues” and N.J.’s autism diagnosis. At the hearing, the
Department acknowledged that it was not fully aware of father’s “health issues,” but the foster care
case manager noticed that at “a couple of the court hearings he sat there and just shook, could hardly
speak or anything.” The Department did not consult with father on his health status or his ability to
parent an autistic child. The Department failed to make a good faith effort to engage father on his
health matters or other assistance he may need to remedy conditions that required N.J.’s
continuation in foster care.
The Department claims that it was not required to provide services to father after N.J. had
been in foster care for twelve months and during those twelve months the protective order prevented
the Department from offering services to father. “The twelve-month time limit established by Code
- 10 -
§ 16.1-283(C)(2) was designed to prevent an indeterminate state of foster care ‘drift’ and to
encourage timeliness by the courts and social services in addressing the circumstances that resulted
in the foster care placement.” L.G. v. Amherst Cnty. Dep’t of Soc. Servs., 41 Va. App. 51, 56
(2003). “The legislation established a reasonably presumptive time frame of twelve months for
parents to receive rehabilitative services to enable them to correct the conditions that led to foster
care placement.” Id. at 57. The twelve-month time frame operates, in part, to encourage social
services to act with timeliness. We do not see how the protective order prevented the Department
from developing a plan or offering services to father within the twelve months to allow father to
parent N.J. after the protective order expired. We disagree with the Department that the
presumptive statutory twelve-month time frame exempts it from engaging with father after the
twelve months has passed, especially considering father’s attempts to contact the Department to
visit his son and the temporary nature of the protective order.
On appeal, the Department argues that it was “not required to force its services upon an
unwilling or disinterested parent.” Tackett v. Arlington Cnty. Dep’t of Hum. Servs., 62 Va. App.
296, 323 (2013). However, the record before us shows that father demonstrated interest in N.J.
when he appeared at court hearings concerning N.J.’s custody and called the Department seven
times to initiate visitation with N.J. The Department asserts on appeal that visitation was
available to father all along at Sabrina’s Place and that father could have had visitation if he had
tried harder; yet the Department offers no explanation as to why father’s phone calls were
insufficient steps towards arranging visitation with N.J., which had to occur within the
Department’s discretion. Furthermore, when the Department provides no services to a parent,
“we have no way of knowing whether he would have been willing or interested” in receiving the
services. Harris, 223 Va. at 243-44. Accordingly, because the Department provided no services to
father, we reverse the order terminating his parental rights and remand the case to allow father “an
- 11 -
opportunity to show what progress he can make with the assistance of the [Department] and other
agencies toward establishing, within a reasonable period, a suitable home” for N.J. Id. at 244.2
CONCLUSION
For the reasons stated above, we reverse the judgment of the circuit court, vacate the order
terminating father’s parental rights to N.J., and remand the case to the circuit court for further
proceedings consistent with this opinion.3
Reversed, vacated, and remanded.
2
Father also asserts that the circuit court’s decision violated his parental rights under the
Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Section 11
of Article I of the Virginia Constitution. We need not address this issue. “It is a well recognized
principle of appellate review that constitutional questions should not be decided if the record
permits final disposition of a cause on non-constitutional grounds.” Luginbyhl v.
Commonwealth, 48 Va. App. 58, 64 (2006) (quoting Keller v. Denny, 232 Va. 512, 516 (1987)).
Accordingly, given our decision concerning the circuit court’s erroneous interpretation of Code
§ 16.1-283(C)(2) and the Department’s failure to provide services, we need not address father’s
due process argument.
3
We previously have held that, “[i]t is clearly not in the best interests of a child to spend
a lengthy period of time waiting to find out when, or even if, a parent will be capable of
resuming his [or her] responsibilities.” Tackett, 62 Va. App. at 322 (second alteration in
original) (quoting Kaywood v. Halifax Cnty. Dep’t of Soc. Servs., 10 Va. App. 535, 540 (1990)).
This observation applies to the time it takes a parent to address the issues that necessitated a
disruption of the normal parent-child relationship. The time a parent is apart from a child while
successfully pursuing an appeal of the termination of that parent’s rights regarding the child is
different in kind. Accordingly, in any proceeding on remand, the fact that father has been
separated from N.J. since the JDR court terminated his parental rights may not be used to justify
any diminution in father’s parental rights.
- 12 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482518/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Callins and Senior Judge Petty
UNPUBLISHED
CHARLES DARRELL PARKER, JR.
v. Record No. 1138-21-3
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES MEMORANDUM OPINION* BY
JUDGE DOMINIQUE A. CALLINS
ROBIN ANN STEELE-PARKER NOVEMBER 9, 2022
v. Record No. 1253-21-3
ROANOKE CITY DEPARTMENT
OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Onzlee Ware, Judge
(Christian A. Persinger; Steidle Law Firm, on brief), for appellant
Charles Darrell Parker, Jr.1 Appellant submitting on brief.
(James P. Cargill, on brief), for appellant Robin Ann Steele-Parker.
Appellant submitting on brief.
(Timothy R. Spencer, City Attorney; Jennifer L. Crook, Assistant
City Attorney; Sarah Jane Newton, Guardian ad litem for the minor
children, on brief), for appellee. Appellee and Guardian ad litem
submitting on brief.
Charles Darrell Parker, Jr. (father) and Robin Ann Steele-Parker (mother) appeal the
judgment of the circuit court finding that their minor children, K.P., V.P., and Z.P., were abused or
neglected and granting emergency removal by the Roanoke City Department of Social Services
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
This case was decided without oral argument because the parties elected to waive oral
argument under Rules 5A:20(h) and 5A:21(h).
(“Department” or “DSS”) from their custody. Because the circuit court did not enter a
dispositional order in accordance with Code § 16.1-278.2, we lack jurisdiction to hear this
appeal.
BACKGROUND2
On April 23, 2020, one day after taking custody of the parents’ three minor children, DSS
petitioned the Roanoke City Juvenile and Domestic Relations District Court (JDR court) for the
emergency removal of the children under Code § 16.1-251. In its supporting affidavit, DSS alleged
“non-accidental trauma [to Z.P.], ongoing hostility and aggression by the parents, lack of
cooperation by the parents,” the parents’ previous involvement with Child Protective Services, and
domestic violence allegations against the parents. The same day, the JDR court entered an
emergency removal order for each of the three children, awarding temporary legal custody to DSS
and setting a preliminary removal hearing for April 30, 2020.
At the preliminary removal hearing, the JDR court entered a preliminary removal order
under Code § 16.1-252, granting DSS temporary custody and awarding the parents supervised
visitation. The JDR court also set the matters on separate dates for both adjudicatory and
dispositional hearings, respectively. On May 14, 2020, the JDR court adjudicated the children
abused or neglected under Code § 16.1-228, and on June 29, 2020, it entered dispositional orders
transferring custody to DSS pursuant to Code § 16.1-278.2, including approving foster care plans
with a goal of “Return Home.” Both mother and father appealed to the circuit court all JDR orders,
2
The record here was sealed. Nevertheless, the appeals require unsealing relevant
portions of the record to resolve the issues the parents have raised. Evidence and factual findings
below necessary to address the assignments of error are in this opinion. Consequently, “[t]o the
extent that this opinion mentions facts found in the sealed record, we unseal only those specific
facts, finding them relevant to the decision in this case. The remainder of the previously sealed
record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017).
-2-
including those adjudicating the children abused or neglected and those entered pursuant to Code
§ 16.1-278.2 and making an initial foster care placement.
After substantial delay due to several preliminary procedural matters, on July 22, 2021, the
circuit court held an evidentiary hearing on the de novo appeals. At the conclusion of the evidence,
the court directed the parties to submit their closing arguments in writing. Following submission of
the closing arguments, the circuit court entered an order on August 26, 2021. In its order, the circuit
court denied the respective motions to strike3 of mother and father and granted the Department’s
request for emergency removal. The sum of the court’s rulings was stated in the order as follows:
The Court thus finds that DSS has proven, by a
preponderance of the evidence, that the children are abused or
neglected under Code § 16.1-228. The evidence before the Court
shows severe physical injuries to [Z.P.] and the substantial risk of
death, disfigurement or impairment of bodily or mental functions for
[V.P.] and [K.P.]. Therefore, upon consideration of the argument,
motions, and briefs it is hereby ADJUDGED and ORDERED that:
1. Mr. Parker and Ms. Steele-Parker’s Motions to Strike are
DENIED.
2. [K.P.], [V.P.], and [Z.P.] are adjudged abused or neglected.
DSS’s request for Emergency Removal is GRANTED.
The children are ordered to remain in their foster care
placements.
The order also stated that the matter was stricken from the court’s “active docket” and remanded to
the JDR court. It is from this order that mother and father appeal. 4
3
Nothing in the record provides the substance of these motions. Yet, for the reasons
stated herein, this deficiency in the record is not pertinent to our decision.
4
Mother and father filed independent notices of appeal, but jointly moved this Court to
consolidate their appeals. We granted their motion to consolidate by order entered on December
9, 2021. For these reasons, we consider these matters together.
-3-
ANALYSIS
The parents argue that the circuit court erred by finding that the children were abused or
neglected and by finding that the evidence was sufficient to remove the children from the parents’
home pursuant to Code § 16.1-251. The parents also argue that the Department failed to make
reasonable efforts to avoid the emergency removal of the children.
Although neither party raises the issue, before considering the merits of an appeal, we must
first establish that we have jurisdiction to hear the appeal. Comcast of Chesterfield Cnty., Inc. v.
Bd. of Supervisors of Chesterfield Cnty., 277 Va. 293, 299 (2009); see also Chaplain v. Chaplain,
54 Va. App. 762, 767 (2009) (“The issue of subject matter jurisdiction may be raised sua sponte by
the Court.” (citation omitted)). This Court, by statute, is one of limited jurisdiction. We have
appellate jurisdiction, with limited exception, over “any final judgment, order, or decree of a
circuit court in a civil matter.” Code § 17.1-405(3).5 This includes jurisdiction over final
domestic relations orders entered under Titles 16.1 and 20. See Wells v. Wells, 29 Va. App. 82,
86 (1999). As a general matter, a final judgment or order “is one which disposes of the entire
action and leaves nothing to be done except the ministerial superintendence of execution of the
judgment.” Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560 (2002).
Matters concerning the safety, welfare and custodial placement of minor children involve
complex and nuanced proceedings the navigation of which is embosomed in statute. Code
§ 16.1-251, which governs emergency removal orders, allows for a child’s immediate custody
placement when it is alleged that the child is abused or neglected. The plain language of the
statute anticipates an immediate but temporary action. Within no later than five business days
5
This statute was most recently amended effective July 1, 2022. 2022 Va. Acts ch. 714.
When the parties noted this appeal, Code § 17.1-405 stated in relevant part, “Any aggrieved
party may appeal to the Court of Appeals from . . . [a]ny final judgment, order or decree of a
circuit court involving . . . [t]he control or disposition of a child.” Code § 17.1-403(3)(e)
(emphasis added).
-4-
after entry of the emergency removal order, a trial court must hold another temporary placement
hearing—a preliminary removal hearing. Code § 16.1-251(B); see also Code § 16.1-252(A)
(“The hearing shall be in the nature of a preliminary hearing rather than a final determination of
custody.”). At the end of the hearing, “the court shall determine whether the allegations of abuse
or neglect have been proven by a preponderance of the evidence.” Code § 16.1-252(G). Yet if
there is an appropriate objection to a court rendering a finding during the same hearing, the trial
court must docket an adjudicatory hearing on another date within thirty days of the preliminary
removal hearing. Id. Regardless of objection, where a trial court enters a preliminary removal
order finding a child abused or neglected and directs the child removed from the child’s home, “a
dispositional hearing shall be held pursuant to § 16.1-278.2.” Code § 16.1-252(H).
Code § 16.1-278.2 states that the dispositional hearing must be held within sixty days of a
preliminary removal hearing, though nothing in the statute precludes a hearing being held
simultaneous with or on the same day as the adjudicatory hearing.
At a dispositional hearing, under Code § 16.1-278.2, the court may
(1) enter an order under Code § 16.1-278 and order that services be
provided for the child; (2) permit the child to remain with his
parent, subject to conditions and limitations the court may order
with respect to the child, his parent, or another adult who occupies
the same dwelling; (3) prohibit or limit the contact between the
child and his parent or other adult occupant of the same dwelling;
(4) permit the local board of social services or other agency to
place the child in a suitable home or facility; (5) transfer custody to
a relative, a child welfare agency, private organization or licensed
facility, or to the local board of social services; (6) transfer legal
custody and order the parent to participate in services or programs
or refrain from certain conduct; or (7) terminate the rights of the
parent.
Blevins v. Prince William Cnty. Dep’t of Soc. Servs., 61 Va. App. 94, 99 (2012). Subsection D
states that an order entered pursuant to this statute is a final, appealable order.6
6
Our dissenting colleague argues that our analysis turns on an errant interpretation of
subsection D, and instead contends that a dispositional order “entered pursuant to” Code
-5-
We have recognized that although “a dispositional order is not a ‘final order’ in the
conventional sense of the term, i.e. one that ‘disposes of the whole subject’ and ‘leaves nothing
to be done,’ because Code § 16.1-278.2 contemplates the possibility of further review,” it is still
a final order for appeal purposes.7 Id. at 98; see also Code § 16.1-296(A) (“[O]rders entered
pursuant to § 16.1-278.2 are final orders from which an appeal may be taken.”). But to
constitute an appealable order, a final order must be one entered pursuant to Code § 16.1-278.2.
§ 16.1-278.2 must be appealed “in accordance with § 16.1-296.” Ostensibly, our colleague’s
position is that because Code § 16.1-296(A) authorizes de novo review from a JDR court to a
circuit court, this context should color our interpretation of Code § 16.1-278.2(D). We
respectfully disagree. It is Code § 16.1-278.2 that serves as context for Code § 16.1-296(A), as
much as it clarifies what qualifies as an appealable order to the circuit court. Yet Code
§ 16.1-278.2 binds JDR courts and circuit courts regarding dispositional orders. See
§ 16.1-278.2(A) (“[T]he juvenile court or the circuit court may make any of the following orders
of disposition to protect the welfare of the child.”). And, as Code § 16.1-296 governs the way
appeals taken pursuant to Title 16.1 may proceed, the language of Code § 16.1-278.2(D) extends
to orders appealed from the circuit court. See Code § 16.1-296(I) (“In all cases on appeal, the
circuit court in the disposition of such cases shall have all the powers and authority granted by
[Title 16.1] to the juvenile and domestic relations district court.”); see also Fairfax Cnty. Dep’t
of Fam. Servs. v. D.N., 29 Va. App. 400, 405 (1999) (“[T]he jurisdiction of the appellate court in
such matters is the same as that of the court in which the action was originally instituted.”
(quoting Addison v. Salyer, 185 Va. 644, 651 (1946))). To hold otherwise is to hold that the
circuit court is exempt from complying with Code § 16.1-278.2.
7
Our dissenting colleague is technically correct in stating that the order entered by the
circuit court disposed of the matter before it. Indeed, the circuit court struck the matter from its
docket and remanded it back to the JDR court. But this does not, as our colleague concludes,
render the circuit court’s last order a final, appealable order as the order does not properly
dispose of the matter before the circuit court. Code § 17.1-405(3) does not set the bounds of
what constitutes an appealable order, but rather defines this Court’s subject matter jurisdiction.
When such jurisdiction is invoked, we heed the imperative of Code § 16.1-278.2 that only “[a]
dispositional order entered pursuant to this section is a final order from which an appeal may be
taken in accordance with § 16.1-296.” Code § 16.1-278.2(D) (emphasis added). See also Byrd
v. Petersburg Dep’t of Soc. Servs., No. 0782-15-2, slip op. at 3 (Va. Ct. App. July 19, 2016)
(finding that this Court was without the jurisdiction to review an “adjudicatory” circuit court
order which, despite displacing a previous preliminary removal of the JDR decision, failed to
comply with the formal dispositional requirements provided in Code § 16.1-278.2(A)). “A
cardinal rule of statutory interpretation is that ‘[w]hen one statute addresses a subject in a general
manner and another addresses a part of the same subject in a more specific manner, the two
statutes should be harmonized, if possible, and when they conflict, the more specific statute
prevails.” Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 481 (2008) (alteration in original)
(quoting Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 439-40 (2005)).
-6-
And for an order to have been entered pursuant to the statute, the order must comply with the
statute. That is, to be an appealable order, the order must be a dispositional order. To be a
dispositional order, the order must satisfy the requirements of Code § 16.1-278.2(A).8
Here, the order entered by the circuit court on August 26, 2021, was not a dispositional
order. The order adjudicates de novo a finding of abuse or neglect, grants de novo the request of
DSS for emergency removal, and also states that “[t]he children are ordered to remain in their
foster care placements.” This last ruling about the children’s placement effectively affirms and
continues the JDR court order; it does not render a de novo disposition.9 Code § 16.1-278.2(A)
requires that a trial court affirmatively act in one of the ways specified within the statute. The
statement of facts submitted to the circuit court and endorsed by the circuit court judge does not
reflect that the parents, the GAL or DSS introduced evidence on the disposition issue. Assuming
without deciding that such evidence was presented and considered, we still hold that the circuit
court’s order that the children “remain in their foster care placements” falls short of the statutory
requirement that a trial court make a disposition at the end of a dispositional hearing. 10 Because the
8
Our holding here neither substantively nor effectively limits this Court’s jurisdiction to
circuit court orders that are correct, thereby barring review of erroneous orders. To the contrary,
the circuit court here did err in failing to render its order appealable by making a disposition
consistent with Code § 16.1-278.2.
9
It is axiomatic that on de novo appeal, the circuit court must proceed “as though the
case had been originally brought there.” Mahoney v. Mahoney, 34 Va. App. 63, 66 (2000) (en
banc). Where nothing in the record supports that the circuit court made an independent finding
in accordance with Code § 16.1-278.2 that the children’s “foster care placements” were
appropriate, the circuit court merely affirmed the ruling of the JDR court. See Fairfax Cnty.
Dep’t of Fam. Servs., 29 Va. App. at 406 (“A de novo hearing means a trial anew, with the
burden of proof remaining upon the party with whom it rested in the juvenile court.” (quoting
Parish v. Spaulding, 20 Va. App. 130, 132 (1995))).
10
My concurring colleague would go further and hold that the circuit court failed to
conduct the requisite dispositional hearing. This is an unnecessary postulation as, regardless, the
order is not a dispositional order and therefore we do not have jurisdiction to consider the matter
further. “[A]n appellate court decides cases ‘on the best and narrowest ground available.’. . .
Coupled with these principles of judicial prudence is the proposition that an appellate court may
-7-
circuit court did not make a disposition pursuant to Code § 16.1-278.2, the order is not a
dispositional order, and therefore not an appealable order. Thus, this Court does not have
jurisdiction to hear these appeals.
CONCLUSION
For these reasons, we hold that we lack jurisdiction to consider the merits of these appeals.
We dismiss the appeals and remand to the circuit court to make a disposition pursuant to Code
§ 16.1-278.2, from which further appeal may be taken as a party deems appropriate.11
Dismissed and remanded.
1
structure a decision on an ‘assuming but not deciding’ basis.” Podracky v. Commonwealth, 52
Va. App. 130, 134 (2008) (alterations in original) (quoting Luginbyhl v. Commonwealth, 48
Va. App. 58, 64 (2006)).
11
Our decision to dismiss with remand is a considered one, undertaken for the express
purpose of ensuring that neither parent is left without recourse.
-8-
Chaney, J., concurring in part, and concurring in the judgment.
I concur with the holding that this Court lacks jurisdiction to consider the merits of these
consolidated appeals. I also concur with the conclusions that “the circuit court did not enter a
dispositional order in accordance with Code § 16.1-278.2” and that the appealed circuit court order
“does not render a de novo disposition.” I also join the decision to dismiss the appeals and remand
the cases to the circuit court for further necessary proceedings.
I write separately because, in contrast with my colleague in the majority, I conclude that this
Court lacks jurisdiction over these appeals because (1) the order appealed from is not final in the
conventional sense nor deemed final by statute, see Code § 17.1-405 (limiting this Court’s
jurisdiction in any civil child abuse or neglect case to an appeal from a “final judgment, order, or
decree of a circuit court”),12 and (2) the circuit court failed to hold a de novo dispositional hearing—
a mandatory statutory precondition to the trial court’s power to enter a final dispositional order. See
Code § 16.1-278.2(A) (“[A] dispositional hearing shall be held if the court found abuse or neglect
and . . . removed the child from his home . . . .” (emphasis added)).
The August 2021 order appealed from the circuit court is not a final order because it merely
recorded the circuit court’s finding that the children were abused or neglected and granted DSS’s
petitions for emergency removal pursuant to Code § 16.1-251. In granting the emergency removal
petitions, the August 2021 order continued the children’s prior placement in foster care by the JDR
12
When these appeals were noted in September 2021, Code § 17.1-405(3)(e) provided that
“[a]ny aggrieved party may appeal to the Court of Appeals from . . . [a]ny final judgment, order, or
decree of a circuit court involving . . . [t]he control or disposition of a child.”
-9-
court.13 After entering the August 2021 order adjudicating the children abused or neglected and
authorizing their removal from their home, the circuit court was statutorily mandated to hold a
de novo dispositional hearing and enter a de novo dispositional order with a disposition for each
child. See Code § 16.1-278.2(A) (mandating a dispositional hearing where the court finds a child to
be abused or neglected and orders the child’s removal from the home); see also Code § 16.1-296(A)
(providing that any appeal to the circuit court from a final order of the JDR court “shall be heard
de novo.”). Because the circuit court has yet to hold a mandatory dispositional hearing and enter a
dispositional order for each child, I disagree with my colleagues’ conclusions that “the order
entered by the circuit court disposed of the whole matter before it.”14
Until and unless the circuit court holds a de novo dispositional hearing and enters a de novo
dispositional order with a disposition related to each child, this Court does not have jurisdiction over
appeals in these cases. This Court has recognized that a dispositional order in a civil child abuse or
13
The circuit court’s order also purports to remand the matter to the JDR court and to
strike the matter from its active docket. But the order is void ab initio because the circuit court
lacked the power to enter the order before entering a final judgment. Code § 16.1-297 only
authorizes such a remand to the JDR court “[u]pon the rendition of final judgment upon an
appeal from the juvenile and domestic relations district court.” Code § 16.1-297 mandates that
the trial court render final judgment as a necessary precondition to having the authority to
remand a child abuse-or-neglect matter to the JDR court for supervision under the terms of its
final order and judgment. Here, the circuit court’s unauthorized order remanding the cases to the
JDR court without rendering a final judgment is void ab initio because the circuit court is
adopting a mode of procedure that it cannot lawfully adopt and making a judgment the court had
no power to render. See Collins v. Shepherd, 274 Va. 390, 402 (2007) (“An order is void ab
initio, rather than merely voidable, if ‘the character of the judgment was not such as the court
had the power to render, or because the mode of procedure employed by the court was such as it
might not lawfully adopt.’” (quoting Evans v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73
(1998))); Burrell v. Commonwealth, 283 Va. 474, 480 (2012); Rawls v. Commonwealth, 278 Va.
213, 221 (2009); Anthony v. Kasey, 83 Va. 338, 340 (1887).
The circuit court’s void ab initio order remanding the matter to the JDR court and
striking the matter from its docket did not fully dispose of the appeal from the JDR court because
“a void judgment[ ] . . . is no judgment at all. It is a mere nullity.” Gray v. Stuart, 74 Va. 351,
358 (1880); see also Singh v. Mooney, 261 Va. 48, 52 (2001).
14
My colleague in the majority contends that our dissenting colleague is “technically
correct” in stating that the circuit court “fully disposed of the appeal from the JDR court.”
- 10 -
neglect case is not a final order in the conventional sense, i.e., “one which disposes of the whole
subject, gives all the relief contemplated . . . and leaves nothing to be done in the cause save to
superintend ministerially the execution of the order.” Blevins v. Prince William Cnty. Dep’t of Soc.
Servs., 61 Va. App. 94, 98 (2012) (alteration in original) (quoting James v. James, 263 Va. 474, 481
(2002)). However, the General Assembly has deemed dispositional orders to be final, appealable
orders. See Code § 16.1-296(A) (“[O]rders entered pursuant to § 16.1-278.2 are final orders from
which an appeal may be taken.”); Code § 16.1-278.2(D) (“A dispositional order entered pursuant to
this section is a final order from which an appeal may be taken in accordance with § 16.1-296.”).
The General Assembly has also conditioned the circuit court’s authority to order a disposition for an
abused or neglected child on the circuit court’s holding a dispositional hearing to consider
dispositional alternatives and decide upon a disposition to protect the welfare of each child.15 See
Code §§ 16.1-278.2(A), -296(A). Thus, where a circuit court enters a dispositional order without
holding a de novo dispositional hearing, the circuit court employs a mode of procedure that it may
not lawfully adopt, rendering the dispositional order void ab initio. See Collins v. Shepherd, 274
Va. 390, 402 (2007) (holding that an order is void ab initio where “the character of the judgment
was not such as the court had the power to render, or because the mode of procedure employed
by the court was such as it might not lawfully adopt” (quoting Evans v. Smyth-Wythe Airport
Comm’n, 255 Va. 69, 73 (1998))).
Here, the record does not support a finding that the circuit court complied with the statutory
mandate in Code § 16.1-278.2(A) to hold a de novo dispositional hearing. The circuit court’s
August 2021 order and the written statement of facts endorsed by the circuit court recite, as the
record, the circuit court proceedings. According to this record, the circuit court held a bench trial
15
The circuit court is authorized to order any of the dispositional alternatives set forth in
Code § 16.1-278.2(A).
- 11 -
that addressed only the issues of abuse or neglect and emergency removal. At the trial, the circuit
court determined that DSS proved, by a preponderance of the evidence, that the children were
abused or neglected under Code § 16.1-228. At the conclusion of the trial, the circuit court granted
DSS’s petitions for emergency removal of the children. The trial adjudicating DSS’s abuse or
neglect allegations was the only proceeding held in the circuit court. This proceeding did not
include a dispositional hearing because the circuit court did not consider and decide upon a
disposition to protect the welfare of each child after their emergency placement.
After the trial in the circuit court, the parents appealed the circuit court’s non-final order to
this Court. Because our jurisdiction in child abuse or neglect cases is limited to appeals of final
orders, this Court has no jurisdiction over these appeals. See Code § 17.1-405; see also Byrd v.
Petersburg Dep’t of Soc. Servs., No. 0782-15-2, slip op. at 5-7 (Va. Ct. App. July 19, 2016)
(dismissing appeal upon holding that this Court had no jurisdiction where the circuit court entered
non-final adjudicatory orders and failed to hold a de novo dispositional hearing and enter de novo
dispositional orders pursuant to Code § 16.1-278.2). Therefore, this Court properly dismisses the
appeals and remands the cases to the circuit court for further necessary proceedings.16
16
As in Byrd, this dismissal is without prejudice for any party to file an appeal after the
circuit court has entered a final, appealable order. See Byrd, slip op. at 7 n.4. As in Byrd, it is
expected that “[a]s mandated by statute, a dispositional hearing will occur in this case. Once a
dispositional order is entered, [the parents] ha[ve] every right to appeal . . . to this Court . . . .” Id.
- 12 -
Petty, S.J., dissenting.
The order of the Circuit Court for the City of Roanoke from which these appeals were
taken disposed of the entire action before that court and left nothing further for that court to do.
Thus, it is a final order, and we have jurisdiction to decide these appeals. For this reason, I
dissent from the majority opinion.
The three children of Charles Parker and Robin Ann Steele-Parker were removed from
the home by the Roanoke City Department of Social Services (DSS) due to allegations of abuse
or neglect. After several preliminary hearings, and after making the findings required by the
statute, the Roanoke City Juvenile and Domestic Relations District Court (JDR court) entered
dispositional orders pursuant to Code § 16.1-278.2 on June 29, 2020. In those orders the JDR
court transferred custody of the children to DSS and scheduled a foster care review hearing for
October 29, 2020. Although the orders entered by the JDR court pursuant to Code § 16.1-278.2
were nominally interlocutory in nature, subsection (D) of that statute provides that such orders are
final orders from which an appeal may be taken in accordance with Code § 16.1-296. Code
§ 16.1-296(A) allows for the appeal of a dispositional order to the circuit court to be heard de novo.
Neither statute speaks to an appeal of a dispositional order from the circuit court to this Court.17
Parker and Steele-Parker availed themselves of their statutory right to appeal the
dispositional orders of the JDR court, and a trial de novo was held in the circuit court on July 22,
2021. On August 26, 2021, the circuit court entered a final order finding that the children were
abused or neglected, granting DSS’s request for emergency removal, and ordering that the children
remain in their foster care placements. Furthermore, the order remanded the matter back to the JDR
court and struck the matter from the court’s active docket. It is from that order that Parker and
17
Code § 16.1-296(D) addresses an appeal to this Court of an order terminating parental
rights pursuant to Code § 16.1-283. That subsection is not involved in this appeal.
- 13-
Steele-Parker noted their appeals to this Court invoking our jurisdiction pursuant to Code
§ 17.1-405(3)(e).18
The majority correctly notes that a final judgment or order “is one which disposes of the
entire action and leaves nothing to be done except the ministerial superintendence of execution
of the judgment.” Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560 (2002). In
finding that the circuit court order fails to do so, I believe that the majority errs in two respects.
First, the majority erroneously relies upon the language of Code § 16.1-278.2(D) in its
conclusion that only an otherwise proper dispositional order can be appealed to this Court. That
subsection states, “[a] dispositional order entered pursuant to this section is a final order from
which an appeal may be taken in accordance with Code § 16.1-296.” Contrary to the majority’s
analysis, however, Code § 16.1-296 only permits an appeal from the JDR court to the circuit
court.
From any final order or judgment of the juvenile court affecting
the rights or interests of any person coming within its jurisdiction,
an appeal may be taken to the circuit court within 10 days from the
entry of a final judgment, order or conviction and shall be heard de
novo.
Code § 16.1-296(A).
Accordingly, I do not believe that either Code § 16.1-278.2(D) or Code § 16.1-296(A)
have anything to do with this appeal. The only question before us is whether the order entered
by the circuit court disposed of the entire action before it.
And this is where I see the second error in the majority’s analysis. The majority argues
that to constitute an appealable order, “the order must be a dispositional order” and that “[t]o be a
That statute, as it existed at the time of these appeals, provided that “[a]ny aggrieved
18
party may appeal to the Court of Appeals from . . . [a]ny final judgment, order, or decree of a
circuit court involving . . . [t]he control or disposition of a child.” Code § 17.1-405(3)(e) (2020
Repl. Vol.).
- 14 -
dispositional order, the order must satisfy the requirements of Code § 16.1-278.2(A).” That
simply cannot be correct. It would mean that the order is appealable to this Court only if the
circuit court got it right. Errors that fail to satisfy the requirements of the statute would be
immune from appellate review. For purposes of determining the finality of the circuit court’s
order, and thus our jurisdiction, I believe we ignore the findings and holdings it recites and look
only to whether it fully disposed of the appeal from the JDR court. This order, whether correct
or not, did exactly that. Simply put, there is nothing further the circuit court was authorized to
do regarding the appeal. Thus, I believe it is a final order over which we have jurisdiction, and
we should decide this case on the merits.
For all these reasons, I would proceed to decide these appeals on the merits.
Accordingly, I dissent from the majority opinion.
- 15 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482512/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Ortiz and Senior Judge Petty
UNPUBLISHED
Argued at Lexington, Virginia
KEITH CAVELLE MITCHELL
MEMORANDUM OPINION* BY
v. Record No. 0023-22-3 JUDGE DANIEL E. ORTIZ
NOVEMBER 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY
Michael T. Garrett, Judge
(Herbert E. Taylor, III; The Law Offices of Herbert E. Taylor, III,
PLLC, on brief), for appellant. Appellant submitting on brief.
John Beamer, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a bench trial, the trial court convicted Keith Cavelle Mitchell of aggravated
sexual battery of a child over the age of thirteen by a step-grandparent, in violation of Code
§ 18.2-67.3(A)(3). The trial court sentenced Mitchell to twenty years of imprisonment with thirteen
years suspended. Mitchell challenges the sufficiency of the evidence to sustain his conviction,
contending that the victim’s testimony was “inconsistent and contradictory.” Because the victim’s
testimony was not incredible as a matter of law, the evidence was sufficient to sustain Mitchell’s
conviction. We affirm the judgment.
BACKGROUND
On May 20, 2019, seventeen-year-old B.S. lived in Amherst County with her
grandmother and Mitchell, her grandmother’s spouse. That morning, B.S. was sleeping in her
bedroom. She was not wearing clothing because of a severe sunburn. Mitchell entered the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
bedroom to wake B.S. for school. He told her that he “had something” to help her sunburn. He
left the room and returned with what B.S. thought was Vaseline. He then pulled away the
blanket covering B.S.’s legs and rubbed the back of her legs and back with the Vaseline.
Mitchell then removed the covers completely and rubbed her buttocks. Although she could not
remember how, at some point B.S. was turned onto her back. Mitchell then rubbed the front of
her legs and breasts. B.S. “just kind of froze” and “didn’t know what to do anymore.” Mitchell
removed his pants, got on top of B.S., and penetrated her vagina with his penis. After, Mitchell
put on his clothes and left the room. B.S. showered, dressed, and took the bus to school. At
school, B.S. reported what happened to a friend.
Investigator Gregory Jones interviewed Mitchell about B.S.’s allegation the next day.
When Jones asked whether Mitchell’s DNA might be found in B.S.’s bed, Mitchell claimed that
he slept there occasionally because of his snoring. Mitchell further stated that B.S. had already
left for school when he awoke on May 20, 2019.
On May 21, 2019, a sexual assault nurse examiner collected evidence from B.S.’s body.
DNA testing proved that Mitchell could not be eliminated as the contributor to the sperm fraction
found in the sample taken from B.S.’s vagina and cervical area.
On January 21, 2020, Jones interviewed Mitchell again, due to the DNA testing results.
When Jones asked Mitchell to explain the results, Mitchell initially stated that “it couldn’t be
him” and that he did not enter B.S.’s bedroom. Mitchell then stated that he rubbed Vaseline on
B.S. for her sunburn and became sexually aroused. He said that he rubbed his penis on her legs
and ejaculated. He claimed that he penetrated her vagina with two fingers, but not his penis.
At trial, Mitchell testified that he did not touch B.S. in an inappropriate manner and that
he did not leave his bedroom until after she had gone to school. Mitchell claimed that he was
anxious when he spoke to Jones in January 2020, but he could not otherwise explain why he
-2-
made the statement about penetrating B.S.’s vagina with his fingers. Mitchell also admitted
having a prior felony conviction.
ANALYSIS
On appeal, Mitchell challenges the sufficiency of the evidence to sustain his conviction
for aggravated sexual battery. Under Code § 18.2-67.3(A)(3), “[a]n accused is guilty of
aggravated sexual battery if he or she sexually abuses the complaining witness, and . . . [t]he
offense is committed by a parent, step-parent, grandparent, or step-grandparent and the
complaining witness is at least 13 but less than 18 years of age . . . .”
“On review of the sufficiency of the evidence, ‘the judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Ingram v. Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v.
Commonwealth, 296 Va. 450, 460 (2018)). “The question on appeal, is whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Id. (quoting Yoder v. Commonwealth, 298 Va. 180, 182 (2019)). “If there is evidentiary support
for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.
273, 288 (2017)).
We view the facts in the “light most favorable to the Commonwealth, the prevailing party
at trial.” Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth,
292 Va. 380, 381 (2016)). In doing so, we discard any of Mitchell’s conflicting evidence, and
“regard as true all credible evidence favorable to the Commonwealth and all fair inferences to be
drawn therefrom.” Id. at 473 (quoting Kelley v. Commonwealth, 289 Va. 463, 467-68 (2015)).
-3-
Mitchell argues that B.S.’s testimony was inconsistent and therefore not credible.
However, the trial court accepted B.S.’s testimony and rejected Mitchell’s testimony and
arguments in finding Mitchell guilty. “The fact finder, who has the opportunity to see and hear
the witnesses, has the sole responsibility to determine their credibility, the weight to be given
their testimony, and the inferences to be drawn from proven facts.” Rams v. Commonwealth, 70
Va. App. 12, 26-27 (2019) (quoting Hamilton v. Commonwealth, 279 Va. 94, 105 (2010)).
“When ‘credibility issues have been resolved by the [fact finder] in favor of the Commonwealth,
those findings will not be disturbed on appeal unless plainly wrong.’” Towler v. Commonwealth,
59 Va. App. 284, 291 (2011) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299 (1991)).
“In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving
testimony of the accused and to conclude that the accused is lying to conceal his guilt.”
Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v. Commonwealth,
27 Va. App. 505, 509-10 (1998)).
“[T]his [C]ourt will not seek to pass upon the credibility of the witnesses where their
[testimony] is not inherently incredible.” Gerald, 295 Va. at 486 (first and second alterations in
original) (quoting Rogers v. Commonwealth, 183 Va. 190, 201-02 (1944)). “Evidence is not
‘incredible’ unless it is ‘so manifestly false that reasonable men ought not to believe it’ or
‘shown to be false by objects or things as to the existence and meaning of which reasonable men
should not differ.’” Id. at 487 (quoting Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).
The record does not reflect that B.S.’s testimony was inherently incredible. Contrary to
Mitchell’s assertions, B.S. consistently testified that Mitchell entered her bedroom while she was
naked; rubbed Vaseline on her legs, buttocks, and breasts; removed his pants; and penetrated her
vagina with his penis. B.S. reported the attack to a friend that same day and submitted to a
sexual assault examination the next day. Her testimony was corroborated by DNA testing, which
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proved that Mitchell’s sperm was in B.S.’s vagina. Finally, when confronted with the DNA
evidence, Mitchell admitted that he became aroused, touched B.S. inappropriately, inserted his
fingers into her vagina, and ejaculated. Considering these facts and circumstances, a reasonable
finder of fact could conclude beyond a reasonable doubt that Mitchell was guilty of aggravated
sexual battery.
CONCLUSION
For the foregoing reasons, we find that the evidence was sufficient to prove Mitchell’s
guilt beyond a reasonable doubt. We affirm his conviction.
Affirmed.
-5- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482522/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, Raphael and Lorish
PUBLISHED
Argued at Arlington, Virginia
MEDICAL MANAGEMENT INTL. AND
TRAVELERS INDEMNITY COMPANY OF AMERICA
OPINION BY
v. Record No. 0363-22-4 JUDGE STUART A. RAPHAEL
NOVEMBER 1, 2022
PAMELA JEFFRY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Amy L. Epstein (Schoenberg & Associates, on brief), for appellants.
M. Thomas McWeeny (Julie H. Heiden; Koonz, McKenney,
Johnson, DePaolis, L.L.P., on brief), for appellee.
After surgery for her compensable worker’s compensation injury rendered her unable to
drive, appellee Pamela Jeffry sometimes took Uber rides to her medical appointments if no
family member could take her. Jeffry’s employer and the employer’s insurer contend that
Jeffry’s failure to give advance notice to her employer that she needed a ride bars her from
recovering her out-of-pocket Uber costs. The Workers’ Compensation Commission awarded full
reimbursement of Jeffry’s Uber costs, concluding that the employer and insurer suffered no
prejudice from the lack of notice. We affirm on a different ground: we find no such notice
requirement in the statute.
BACKGROUND
The facts are undisputed. Jeffry suffered a compensable work injury in November 2013.
Appellant Medical Management Intl. was Jeffry’s employer at the time, and appellant Travelers
Indemnity Company of America is the employer’s workers’ compensation insurer. We refer to
the appellants collectively as the “employer.”
The Workers’ Compensation Commission entered multiple awards of medical benefits
and compensation to Jeffry. After undergoing surgery in April 2019 for her compensable injury,
Jeffry’s physician instructed her not to drive. Jeffry’s husband or another family member would
usually drive Jeffry to her medical appointments. But when her husband’s work schedule
conflicted with those appointments and other family members were unavailable, Jeffry relied on
Uber—a mobile ride-hailing service. She used Uber only as “a last resort.”
Jeffry testified that she tried to keep her employer’s case manager informed about her
medical status. Jeffry thought that the case manager knew that Jeffry was restricted from driving
after her surgery. But Jeffry did not explicitly inform the employer that she needed
transportation. Nor did the employer offer transportation. Jeffry asked the Commission to award
her compensation for her Uber expenses incurred for medical visits between May 2, 2019, and
February 19, 2020. The Uber charges for forty-four trips totaled $881.47.
The employer did not offer any evidence that the Uber charges incurred by Jeffry were
unreasonable or that the charges exceeded what it would have cost the employer to transport
Jeffry to her medical appointments. The employer’s claims adjuster, Leslie Jones, said that the
employer had arranged private transportation for other injured workers to attend their medical
appointments. Those matters were generally left to the case manager nurses. Jones said that she
did not receive those transportation bills, however, and she did not know the cost of that
transportation. Jones reviewed Jeffry’s communications with her case manager but saw no
transportation requests nor any claims that Jeffry was restricted from driving.
The deputy commissioner denied the reimbursement claim because Jeffry had not given
notice to her employer that she needed transportation. The deputy commissioner ordered the
employer to reimburse Jeffry using the Commission’s standard rate per mile, an amount totaling
$139.83.
-2-
The Commission reversed. It ruled that the lack of notice alone is not necessarily fatal to
a claim for transportation costs. The Commission “divine[d] but one purpose” for a notice
requirement: to “allow[] the [employer] the opportunity to save money by arranging
transportation by a less costly means than that chosen by the claimant.” “If the [employers] can
mitigate their costs, then notice affords them the opportunity to do so. If, however, they can’t
secure less costly transportation, then they cannot claim that their interests were prejudiced
merely because the claimant failed to notify them that she was securing transportation through
Uber.” In short, the Commission viewed the relevant question as one of prejudice. Because the
employer showed no prejudice from the lack of notice, the claim was not barred. So the
Commission awarded Jeffry the full amount of her Uber charges.
Commissioner Rapaport dissented. He interpreted Commission precedent to require
claimants to provide notice of their transportation needs as a condition of recovering more than a
mileage reimbursement.
ANALYSIS
An award of the Workers’ Compensation Commission is “conclusive and binding as to
all questions of fact.” Code § 65.2-706. But we review the Commission’s determinations of law
de novo. Code § 2.2-4027; Roske v. Culbertson Co., 62 Va. App. 512, 517 (2013). “The
[C]ommission’s construction of the [Workers’ Compensation] Act is entitled to great weight on
appeal.” Wiggins v. Fairfax Park Ltd. P’ship, 22 Va. App. 432, 441 (1996). Yet we are “not
bound by the [C]ommission’s legal analysis in this or prior cases.” Peacock v. Browning Ferris,
Inc., 38 Va. App. 241, 248 (2002) (quoting USAir, Inc. v. Joyce, 27 Va. App. 184, 189 n.1
(1998)).
When an employee’s medical claim is compensable, the Act requires the employer to
“furnish or cause to be furnished, free of charge to the injured employee, a physician chosen by
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the injured employee from a panel of at least three physicians selected by the employer and such
other necessary medical attention.” Code § 65.2-603 (emphasis added). In order that such
medical attention be free of charge to the employee, the Commission “has consistently held that
the employer is responsible for the reasonable and necessary transportation in connection with
[a] claimant’s medical treatment.” Mabe v. Great Barrier Insulation Co., 70 O.I.C. 288, 288,
1991 WL 836133, at *1 (1991); Carter v. Arlington County, JCN VA0658327, slip op. at 4, 2016
WL 6677270, at *2 (Va. Workers Comp. Comm’n Nov. 8, 2016) (“long held”).1 Depending on
the circumstances, reasonable and necessary costs may encompass various methods of
transportation, ranging from “mileage reimbursement” to “the cost of taxi service, ambulance
[rides] or airplane [fare].” Elliott v. Sam Green Vault Corp., JCN VA00001108316, slip op. at 7
(Va. Workers Comp. Comm’n Oct. 5, 2021).
The employer argues that the Commission erred in awarding Jeffry her out-of-pocket
Uber expenses and that the Commission should have limited her reimbursement to a mileage
award. The employer acknowledges that the amount in controversy is relatively small—several
hundred dollars. But the employer said at oral argument that it wishes to establish a black-letter-
law requirement that claimants must provide notice of their need for transportation to a medical
appointment as a condition of receiving reimbursement for any actual out-of-pocket costs.
We reject the employer’s claim that Jeffry’s failure to request transportation is “fatal to
her claim for reimbursement of her Uber expenses after the fact.” Assignment of Error No. 1.
We find nothing in the Act to support an advance-notice or pre-authorization requirement. And
to imply such a requirement would be inconsistent with the “remedial” purpose of the Act, which
1
The same practice is followed in workers’ compensation systems in other States. See 8
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 94.03[2][a] (2022)
(“Transportation costs necessarily incurred in connection with medical treatment are
compensable, even if the act speaks only of medical and hospital services.”).
-4-
must be “liberally construed in favor of the injured employee.” E.I. du Pont de Nemours & Co.
v. Eggleston, 264 Va. 13, 17 (2002).
We find the omission of such a notice requirement in the text of the Act to be significant
because the General Assembly knew how to create a notice requirement if it had intended one.
Thus, for an occupational disease, the employee (or someone on the employee’s behalf) must
“give written notice thereof to the employer” within sixty days of the diagnosis. Code
§ 65.2-405(A). The failure to give notice defeats the employee’s claim only if “such failure
resulted in clear prejudice to the employer.” Id. For a work-related injury, the employee must,
“as soon thereafter as practicable, give or cause to be given to the employer a written notice of
the accident.” Code § 65.2-600(A). The claimant cannot recover compensation “unless such
written notice is given within thirty days after the occurrence of the accident or death, unless
reasonable excuse is made to the satisfaction of the Commission for not giving such notice and
the Commission is satisfied that the employer has not been prejudiced thereby.” Code
§ 65.2-600(D).
“[W]hen the General Assembly has used specific language in one instance, but omits that
language or uses different language when addressing a similar subject elsewhere in the Code, we
must presume that the difference in the choice of language was intentional.” Zinone v. Lee’s
Crossing Homeowners Ass’n, 282 Va. 330, 337 (2011). In light of the express notice
requirements in Code §§ 65.2-405 and -600, which have no counterpart in Code § 65.2-603, it
would be strange to require employees to give notice of their intent to undertake reasonable and
necessary expenses that are ancillary but essential to their compensable medical treatment. It
would be even stranger to default the employee for failing to provide such notice without asking
if the lack of notice prejudiced the employer’s interests.
-5-
The employer does not argue that advance notice or pre-authorization is required for
other ancillary but necessary medical expenses. Such ancillary expenses could include
“reasonable and necessary diagnostic procedures” ordered by the doctor, Herbert Clements &
Sons, Inc. v. Harris, 52 Va. App. 447, 457 (2008); medical equipment, e.g., Reynolds Metals Co.
v. Chowning, No. 0800-00-2, slip op. at 5-6, 2000 WL 1180151, at *2-3 (Va. Ct. App. Aug. 22,
2000);2 or prescription medicine. The employer conceded at oral argument that pre-
authorization for pharmacy expenses is not required but could not explain why transportation to a
medical appointment should be treated differently. We ruled in Chowning that a claimant did not
need her employer’s pre-approval to purchase a hot tub that her doctor prescribed for pain relief.
Slip op. at 5-6, 2000 WL 1180151, at *2-3. We upheld the Commission’s reasoning that “[i]f the
evidence showed that her purchase was not reasonable or necessary or that the cost was
excessive, she acts at her peril and bears the cost herself. She is not, however, required to seek
and obtain pre-authorization before purchasing the equipment.” Id. at 5, 2000 WL 1180151, at
*2. We fail to see why the same rule of reason does not apply to transportation costs.
It would also be inconsistent to require notice here when a claimant does not have to
specifically request medical benefits in an application to the Commission to be entitled to all
necessary medical costs. Because the employer’s statutory duty to provide compensation under
Code § 65.2-603(A) is “mandatory,” the claimant “is automatically entitled to receive medical
benefits once the fact of a compensable injury has been established.” Vital Link, Inc. v. Hope, 69
Va. App. 43, 56 (2018) (quoting Nelson Cnty. Schs. v. Woodson, 45 Va. App. 674, 678 (2005)).
Thus, “[a]n employer is responsible for the medically necessary treatment regardless of
2
“Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012); see Rule
5A:1(f).
-6-
claimant’s ‘failure to specifically request an award of medical benefits in [his] application to the
[C]ommission.’” Id. at 58 (alteration in original) (quoting Woodson, 45 Va. App. at 678).
We are not persuaded by the employer’s argument that a notice requirement springs from
several of the Commission’s other opinions addressing transportation costs. In Hamil v. Lowe’s,
VWC No. 208-73-39, 2003 WL 21296903 (Va. Workers Comp. Comm’n May 30, 2003), and
Souleyrette v. Clinchfield Coal Co., VWC No. 199-21-61 (Va. Workers Comp. Comm’n Sept.
22, 2009), the Commission concluded that when a claimant lacks transportation “and requests
the employer/carrier provide transportation,” the employer must provide transportation or
reimburse the claimant for transportation costs. Hamil, slip op. at 5, 2003 WL 21296903, at *3
(emphasis added); Souleyrette, slip op. at 3 (same). The fact that the claimant in both cases
requested employer-provided transportation says nothing about whether a claimant must give
notice or obtain pre-approval of necessary transportation expenses. The employer likewise
misplaces its reliance on Green v. Greenfield Reflections of Petersburg, JCN VA00000594550
(Va. Workers Comp. Comm’n Apr. 16, 2013). It is true that the deputy commissioner there
denied an employee’s claim for cab fare because her employer did not know that she needed
transportation. Green, slip op. at 2. But the Commission decided the case on a different
rationale; it denied the claim because the claimant “produced no convincing evidence
substantiating [her] expenses.” Id. at 3.
That an employee with a compensable injury is entitled to free transportation to medical
appointments does not mean transportation by any method or at any cost. Transportation costs
must be “reasonable and necessary.” Mabe, 70 O.I.C. at 288, 1991 WL 836133, at *1.
Moreover, our decision here does not disturb the Commission’s prior rulings that an
employer “can choose the means by which” to meet its obligation to provide the claimant
transportation to medical appointments. See Davis v. Lupton Logging & Pulpwood, Inc., VWC
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No. 168-83-90, slip op. at 3, 2006 WL 2590146, at *2 (Va. Workers Comp. Comm’n Aug. 14,
2006) (citing Daniel v. CTR Corp., VWC No. 194-04-81, 2002 WL 1774411 (Va. Workers
Comp. Comm’n June 18, 2002)). For instance, an employer could contract with a third-party
vendor to provide employees with necessary transportation to their medical appointments. If an
employee unreasonably rejected that option and chose a more expensive means of transportation,
the Commission could well deny the employee’s reimbursement request. That scenario is not
presented here, as Jeffry’s employer did not specify any particular method that Jeffry should use
to get to her medical appointments. Absent such guidance—and absent any evidence that the
Uber charges were excessive—it was not unreasonable for Jeffry to use a commercial ride-
hailing service.
CONCLUSION
In short, the Commission correctly awarded Jeffry compensation for the Uber costs she
paid to travel to her medical appointments. We reach that conclusion not because the employer
failed to show prejudice from the lack of notice that Jeffry needed such transportation (though no
such prejudice was shown), but because we find no statutory basis to impose such a notice
requirement in the first place. We therefore affirm the Commission’s decision as right for a
different reason. See McClary v. Jenkins, 299 Va. 216, 224 (2020); Davis v. Commonwealth, 73
Va. App. 500, 511 n.2 (2021). Our decision on this ground moots the employer’s other
assignments of error.
Affirmed.
-8- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482521/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Chaney, Callins and Senior Judge Petty
PUBLISHED
Argued at Lexington, Virginia
DAVID BRANDON CANNADAY
OPINION BY
v. Record No. 0810-21-3 JUDGE DOMINIQUE A. CALLINS
NOVEMBER 9, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Fred D. Smith, Jr. (Fred D. Smith, Jr., P.C., on briefs), for appellant.
John Beamer, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
David Brandon Cannaday appeals his sentence imposed for possession of over 100 grams of
methamphetamine with intent to distribute under Code § 18.2-248(H)(5). On that conviction, the
trial court sentenced Cannaday to forty years, of which he was to serve the mandatory minimum
incarceration period of twenty years as required by Code § 18.2-248(H)(5) for a conviction under
that statute. On appeal, Cannaday contends that the trial court erred in failing to apply the “safety
valve” provision of Code § 18.2-248(H)(5). Because we hold that the trial court properly
considered the safety valve provision, we affirm the trial court’s judgment.
BACKGROUND1
I. The Underlying Offense
Cannaday’s interactions with the Henry County Sheriff’s Office began in February 2018.
Three times that month, February 4, 8, and 20, an informant came to Cannaday’s home and
purchased drugs from Cannaday.2 Based on information provided by the informant, the sheriff’s
office obtained a search warrant for Cannaday’s home and executed the warrant on February 28,
2018.
In the second-floor master bedroom of the home, sheriff’s deputies found $1,837 in cash,
.55 gram of heroin, a Schedule I controlled substance, 10.76 grams of “a substance containing
methamphetamine,” a Schedule II controlled substance, a loaded Taurus PT-740 semi-automatic
pistol, a Thompson Center 50 caliber muzzle-loader rifle, and a loaded semi-automatic Soc It Flli
Galesi-Brescia 6.35 caliber pistol. The Taurus PT-740 was found under the mattress, while the
muzzle-loader was hanging over a window. The Soc It Flli Galesi-Brescia was found in a
nightstand.
In the kitchen, the deputies found $1,000 in cash, a spoon, scissors, a shoelace, a bag
containing digital scales, and a ledger on the countertop. On the top shelf of a utility closet in the
kitchen, the deputies found a plastic bag containing 114.88 grams of “a substance containing
methamphetamine.” Along with the firearms, drugs, and other items found in the home, deputies
also seized $1,600 in cash from the “nail room,” three cell phones, and a set of black body armor
1
“Although parts of the record are sealed, this appeal requires unsealing certain portions
to resolve the issues raised by [Cannaday]. To the extent that certain facts are found in the
sealed portions of the record, we unseal those portions only as to those specific facts mentioned
in this opinion. The rest remains sealed.” Khine v. Commonwealth, 75 Va. App. 435, 442 n.1
(2022).
2
The informant conducted another buy on February 15, but the substance he bought from
Cannaday was not illegal.
-2-
from the living room. Finally, the deputies seized several vehicles, including a 2009 Nissan
Maxima. The deputies discovered a Ruger semi-automatic pistol in the console of the Nissan
Maxima.
Following the execution of the search warrant, Cannaday spoke with the Henry County
investigators, including Investigator Timothy Brummit. Cannaday admitted ownership of all the
controlled substances found in his home. He cooperated with the sheriff’s office, providing the
investigators with information about his buyers and suppliers, and offering detail about an
upcoming controlled substance purchase. He also asserted that all the firearms discovered in the
search of his home belonged to his wife.
II. The Charges and Pleas
On January 4, 2021, the trial court convicted Cannaday of three counts of distribution of
various substances in violation of Code § 18.2-248(C) and one count of distribution of an
imitation substance in violation of Code § 18.2-248(G), all of which stemmed from the
controlled purchases that occurred in February 2018.3 Then, on April 5, 2021, Cannaday pled no
contest to, and was convicted of, one count of possession with intent to distribute more than 100
grams of methamphetamine in violation of Code § 18.2-248(H)(5), the amended charge of
possession of a firearm while possessing a controlled substance in violation of Code
§ 18.2-308.4(A), and one count of possession of a firearm after previously being convicted of a
felony within ten years, in violation of Code § 18.2-308.2(A). The April 2021 convictions
stemmed from the search of Cannaday’s home executed February 28, 2018.
3
The precise nature of the four charges resulting from the February 4, 8, and 20, 2018
controlled purchases is not relevant to our analysis.
-3-
III. The Sentencing Affidavit
In anticipation of sentencing, Cannaday filed an “Affidavit in Support of Request for
Safety Valve Exemption Pursuant to § 18.2-248(H)[(5)].” The affidavit asserted that Cannaday
purchased the Soc It Flli Galesi-Brescia 6.35 caliber pistol a few days before the search from a
friend who was “trying to make some money.” Cannaday claimed that he “had no idea” that his
wife kept a firearm hidden underneath the mattress in their master bedroom, although he was
aware of the Ruger she kept in her Nissan Maxima. The muzzle-loader, Cannaday affirmed, was
a gift from his grandfather and inoperable. Cannaday admitted to lying to the investigators about
the ownership of some of the firearms. He explained that he told investigators that the firearms
found in the home belonged to his wife because “[he] knew [he] was a felon and couldn’t own
firearms.” The affidavit also included a detailed description of Cannaday’s business in narcotics
distribution.
Cannaday also submitted an affidavit executed by his wife, Kasie Taylor Cannaday. In
her affidavit, Kasie acknowledged that the Taurus PT-740 semi-automatic pistol discovered
under the mattress belonged to her. Kasie explained that Cannaday “didn’t know about it”
because she purchased the pistol during a period of marital separation. When she and Cannaday
reconciled, she did not tell him about the pistol because she “knew he couldn’t be around guns”
because of a prior felony conviction. Kasie acknowledged she also owned the Ruger found in
her Nissan Maxima and asserted that she “always kept it with [her] in the car for protection.”
IV. The Sentencing Hearing
The trial court then held a sentencing hearing. Before the hearing, Cannaday filed a
“Motion and Memorandum of Law in Support of Safety Valve Relief From Mandatory
Minimum Sentence.” The motion addressed all five of the predicates enumerated in Code
§ 18.2-248(H)(5) and argued, essentially, that Cannaday met the requirements of the safety valve
-4-
provision because the firearms seized at his residence were not used in connection with the drug
distribution offense with which he was being charged.
Before taking evidence, the trial judge announced to both counsel that “the [c]ourt has
reviewed . . . the Defendant’s Affidavit in Support of his request for the safety valve exemption
and his motion and Memorandum of Law in support of that motion.” The trial court then heard
evidence from the Commonwealth and from Cannaday.
Cannaday called Kasie and Gary Wayne Wagoner, his father-in-law, as witnesses.
Cannaday also testified on his own behalf. He testified that he had not been truthful in his
statement to investigators that he was “this big guy” in the local drug community. Other than
this admission about his candor with investigators, neither Cannaday nor his witnesses testified
to the safety valve predicates addressed in his motion.
The Commonwealth called Investigator Brummit as her sole witness. Investigator
Brummit testified that several months following the initial search, the sheriff’s office learned that
Cannaday had resumed selling controlled substances from his home. This information ultimately
led to the execution of another search warrant on Cannaday’s home on July 3, 2019. Although
no drugs were found in the second search, sheriff’s deputies seized two ATVs, three
motorcycles, a scooter, a boat, a camper, four more vehicles, and $3,300 in cash.
At the conclusion of the evidence, the trial court heard argument from both the
Commonwealth and Cannaday. The Commonwealth argued that Cannaday did not satisfy the
safety valve provision because in his affidavit in support of his request “[Cannaday] said he had
the firearm, he bought the firearm, [and] it was his firearm in the drawer of the bedroom where
he was located.” Cannaday’s counsel, acknowledging that the trial court had “responded” to its
motion for safety valve relief, argued that Cannaday had “taken the necessary steps to invoke the
safety valve provision of [Code § 18.2-248(H)(5)] . . . to show that [Cannaday] at no point
-5-
during this transaction possessed a firearm, used a firearm, us[ed] threats of violence or any
credible threats of violence, [which] is required for one of the factual predicates.” Cannaday
concluded by asking the trial court “to find that he has satisfied all of the factual predicates for
safety valve relief and sentence him to an appropriate sentence.”
After hearing the evidence and the arguments, the trial judge stated,
As far as mandatory minimums . . . . You know, the question is:
does Mr. Cannaday comport with the safety valve provisions of the
statute, and the main question is the gun, although I think to a
certain extent, Mr. Cannaday was playing both ends against the
middle. . . . I am afraid I have to come to the conclusion that the
safety valve provisions do not apply to Mr. Cannaday in this
particular instance.
The trial court then sentenced Cannaday to forty years in prison on the charge of possession of
methamphetamine with intent to distribute and five years on the charge of possession of a
firearm after being convicted of a felony. Of his forty-year sentence, twenty years were
mandatory active time under Code § 18.2-248(H)(5), and two years were mandatory active time
under Code § 18.2-308.2(A). The remainder of each sentence was suspended. The court also
imposed five years’ imprisonment, all suspended, for each of the remaining charges.4 This
appeal followed.
ANALYSIS
Cannaday contends that the trial court erred in imposing the mandatory minimum
sentence under Code § 18.2-248(H)(5) because it did not first articulate its specific findings for
each predicate included in the statute’s safety valve provision. He argues that by stating that the
safety valve provision “did not apply,” the trial court disqualified Cannaday at the threshold
4
On appeal, Cannaday assigns error only as it regards the mandatory minimum sentence
he received under Code § 18.2-248(H)(5).
-6-
without properly considering whether his evidence satisfied the safety valve provision of Code
§ 18.2-248(H)(5).
We review the trial court’s imposition of sentence for abuse of discretion.
Commonwealth v. Greer, 63 Va. App. 561, 567 (2014). This “includes review to determine that
the discretion was not guided by erroneous legal conclusions.” Porter v. Commonwealth, 276
Va. 203, 260 (2008). But if this Court must interpret a statute, our review is de novo. Hall v.
Commonwealth, 296 Va. 577, 582 (2018). “[W]e owe no deference to the circuit court’s
interpretation of the statutory scheme.” Esposito v. Va. State Police, 74 Va. App. 130, 133
(2022). In interpreting law our “primary objective . . . is to ascertain and give effect to
legislative intent.” Lawlor v. Commonwealth, 285 Va. 187, 236 (2013) (quoting Conger v.
Barrett, 280 Va. 627, 630 (2010)).
I. The “Safety Valve” Provision of Code § 18.2-248(H)(5)
Code § 18.2-248(H)(5) provides that any person who
manufactures, sells, gives, distributes or possesses with the intent
to manufacture, sell, give or distribute . . . 100 grams or more of
methamphetamine . . . shall be guilty of a felony punishable by a
fine of not more than $1 million and imprisonment for 20 years to
life, 20 years of which shall be a mandatory minimum sentence.
That said,
Such mandatory minimum sentence shall not be applicable if the
court finds that (i) the person does not have a prior conviction for
an offense listed in subsection C of § 17.1-805; (ii) the person did
not use violence or credible threats of violence or possess a firearm
or other dangerous weapon in connection with the offense or
induce another participant in the offense to do so; (iii) the offense
did not result in death or serious bodily injury to any person;
(iv) the person was not an organizer, leader, manager, or
supervisor of others in the offense, and was not engaged in a
continuing criminal enterprise as defined in subsection I of this
section; and (v) not later than the time of the sentencing hearing,
the person has truthfully provided to the Commonwealth all
information and evidence the person has concerning the offense or
-7-
offenses that were part of the same course of conduct or of a
common scheme or plan[.]
Id. The five predicates listed in this subsection are often referred to as its “safety valve”
provision. When a trial court finds that all five predicates are satisfied, a defendant is entitled to
relief from the imposition of a mandatory minimum sentence.
No appellate court has previously interpreted subsection (H)(5). However, in Stone v.
Commonwealth, 297 Va. 100 (2019), our Supreme Court was presented with the question of how
to interpret an identical provision of Code § 18.2-248(C)(4). In Stone, the appellant, charged
with “cocaine distribution offenses,” sought relief under the safety valve provision of subsection
(C)(4). Id. at 100. Considering the appellant’s claim, the Supreme Court held that “‘the burden
of production and persuasion’ in establishing the factual predicates that provide potential relief
from the mandatory minimum sentence under Code § 18.2-248(C) ‘falls on the defendant
seeking to invoke [this] safety-valve provision.’” Id. at 101 (alteration in original) (quoting Hall,
296 Va. at 586). The Stone Court also adopted the federal courts’ preponderance of the evidence
proof standard in evaluating whether a defendant has satisfied the safety valve provision. Id.
Because subsections (C) and (H) are identically drafted, the Stone standards are also applicable
here. The same burdens of production and persuasion and the same standard of proof apply to
the safety valve provision of Code § 18.2-248(H) as to subsection (C) of the statute.
The mandatory minimum sentence imposed by subsection (H)(5) is modified by a second
mandate, the safety valve provision. According to subsection (H), if a defendant satisfies the
conditions enumerated within the safety valve provision, a trial court may not impose a
mandatory minimum of twenty years’ imprisonment. That is, the safety valve provision of
subsection (H)(5) constitutes a provisional mandate modifying the initial, presumed mandate of a
minimum sentence. Thus, the clause “[s]uch mandatory minimum sentence shall not be
applicable if,” waives the statute’s mandate of a minimum sentence conditioned on satisfaction
-8-
of specified predicates. See Crawford v. Commonwealth, 23 Va. App. 661, 666 (1996) (en banc)
(“The principle is well settled that ‘[w]hen the word “shall” appears in a statute it is generally
used in an imperative or mandatory sense.’” (quoting Schmidt v. City of Richmond, 206 Va. 211,
218 (1965))). However, the onus of production and persuasion sits with the defendant. When a
defendant invokes the waiver by moving for relief under subsection (H)(5), a trial court must
evaluate whether the defendant has satisfied the statute’s predicates before imposing a sentence.
II. The Trial Court’s Consideration of the Safety Valve Relief Provision
Cannaday argues that “the safety valve statutes require findings of fact on the dispositive
issues rather than threshold denials.” He contends that “the trial court here did not weigh [his]
evidence on the disputed safety valve criteria.” The trial court did permit Cannaday a hearing on
his claim for relief under Code § 18.2-248(H)(5) and, contrary to his contention, weighed the
evidence on the disputed criteria.
Cannaday filed a motion noticing the trial court of his intent to seek relief under the
provision, accompanied by affidavits from Cannaday and his wife, Kasie. At the sentencing
hearing, the trial judge acknowledged receiving and reviewing the motion and its supporting
affidavits. Cannaday presented witnesses, none of whom—including Cannaday himself—
testified to the predicates specified in Code § 18.2-248(H)(5). The trial court heard this
evidence. It also heard argument from both counsel. Yet Cannaday bore the burden of
producing sufficient evidence to support satisfaction of the safety valve provision. Stone, 297
Va. at 101. That he did not prevail in satisfying the safety valve predicates of Code
§ 18.2-248(H)(5) does not equate to the trial court not having properly considered Cannaday’s
request for relief.
But, Cannaday argues, the trial court could not have considered his request because the
trial judge did not state the court’s findings as to each predicate. On its face, Code
-9-
§ 18.2-248(H)(5) does not require a trial court to state its findings explicitly to establish that it
made findings in accordance with the statute. And “[a]bsent a statutory mandate . . . a trial court
is not required to give findings of fact and conclusions of law.” Fitzgerald v. Commonwealth,
223 Va. 615, 627 (1982). No appellate court of this Commonwealth has interpreted Code
§ 18.2-248(H)(5) to implicitly require the same, and we find no reason to do so now. Even so,
under Code § 18.2-248(H)(5), relief from the mandatory minimum sentence turns on a trial court
finding a defendant to have satisfied statutorily mandated factual predicates. It follows that,
where a trial court denies relief under the statute, it should, as the trial court did here, articulate
the basis of its ruling sufficiently to enable review by this Court.
Cannaday challenges the trial court’s use of the phrase “do not apply,” arguing that this
language proves the trial court failed to consider the statute’s predicates and thus, disqualified
him “at the threshold” from relief under the safety valve provision. In support, Cannaday points
to the Second Circuit case of United States v. Schreiber, 191 F.3d 103 (2d Cir. 1999). In
Schreiber, the Second Circuit found that the district court explicitly declined to apply the
predicates listed in 18 U.S.C. § 3553(f) based on an erroneous interpretation of the statute.5 That
is, the Second Circuit held that “[b]ecause it disqualified appellant at the threshold, the district
court never considered the factual question [presented by the statute’s predicates].” Id. at 109.
Although that case is not binding on this Court, Cannaday’s reliance on Schreiber is nonetheless
misplaced. Despite the similar underlying facts, this case is substantively distinct from
Schreiber.
5
Specifically, the district court erroneously held, “Defendants must provide truthful
information from the moment they meet with the prosecutors” in contravention of the statutory
deadline of “not later than the time of the sentencing hearing” provided in 18 U.S.C.
§ 3553(f)(5). Schreiber, 191 F.3d at 106 (emphasis added).
- 10 -
Here, by contrast, the trial court evaluated all of the relevant evidence towards the
predicates included in Code § 18.2-248(H)(5) and did not disqualify Cannaday at the threshold.
At the sentencing hearing, both sides acknowledged that of the predicates to be evaluated by the
trial court, the relevant inquiry concerned predicate (ii): whether Cannaday possessed a firearm
or other dangerous weapon in connection with his distribution offense. In his affidavit,
Cannaday gave a detailed description of his involvement in drug distribution, including just
before the execution of the first search warrant. He disclosed that his purchase of the Soc It Flli
Galesi-Brescia 6.35 discovered in a nightstand next to his bed took place a few days before that
search. Cannaday’s affidavit also acknowledged that he had initially lied to investigators about
his possession of firearms, stating, “I knew I was a felon and couldn’t own firearms.” In her
affidavit, Kasie admitted that the Taurus PT-740 semi-automatic pistol was under Cannaday’s
mattress. The trial court had convicted Cannaday of several counts of drug possession connected
with the execution of the first search warrant, during which search investigators also discovered
the firearms. The court then addressed the matter squarely: “The question is: does Mr. Cannaday
comport with the safety valve provisions of the statute, and the main question is the gun.” After
reviewing motions and hearing testimonial evidence and argument, the trial court found the
answer to that question did not favor applying the provision. We disagree that the trial court’s
statement that Code § 18.2-248(H)(5) “did not apply” establishes that the trial court did not
weigh Cannaday’s evidence, and in doing so decline to adopt a conclusion so beholden to the
formal features of a trial court’s ruling as to render the substance of the actual proceedings a
nullity. Thus, the remaining question is whether the trial court erred in finding that Cannaday
failed to satisfy predicate (ii) of the safety valve provision.
- 11 -
III. Application of the Safety Valve Provision of Code § 18.2-248(H)(5)
In assessing the trial court’s application of the safety valve provision of Code
§ 18.2-248(H)(5), we defer to the lower court’s factual findings and view the facts in the light
most favorable to the Commonwealth, the prevailing party below. Kim v. Commonwealth, 293
Va. 304, 311 (2017). Further, “[t]he judgment of the trial court is presumed correct and will not
be disturbed unless it is ‘plainly wrong or without evidence to support it.’” Gerald v.
Commonwealth, 295 Va. 469, 479 (2018) (alteration in original) (quoting Pijor v.
Commonwealth, 294 Va. 502, 512 (2017)). At issue is predicate (ii), which concerns whether
Cannaday “possess[ed] a firearm or other dangerous weapon in connection with the offense” of
possession with intent to distribute, in violation of Code § 18.2-248(H).6 Code
§ 18.2-248(H)(5)(ii) (emphasis added).
Our Supreme Court considered the “in connection with the offense” element in Stone.
There, a confidential informant conducted four controlled drug buys at the appellant’s home.
Stone, 297 Va. at 102. Execution of a search warrant at the home led to the discovery of drugs
and an AK-47 assault rifle in the appellant’s bedroom. Id. The Commonwealth proffered an
affidavit executed by the appellant’s wife which stated that two months before the execution of
the search warrant, the appellant “obtained the firearm . . . in the house for protection.” Id. The
affidavit was admitted, without objection from the appellant, as a factual stipulation. Id. The
Supreme Court found that the appellant “failed to carry his burden of establishing that he did not
possess the firearm in connection with” his drug distribution offenses. Id. at 103. The Court
found the trial court entitled to draw an affirmative inference of connection based on the
6
At oral argument, both counsel agreed that Code § 18.2-248(H)(5)(ii) was at issue in the
lower court. At oral argument, the Commonwealth also contended that predicate (v) (regarding
truthful disclosure to the Commonwealth by the time of the sentence hearing) was at issue below.
But the record reflects that subdivision (ii) was the only predicate addressed by trial counsel and
decided on by the trial court.
- 12 -
stipulated evidence of the presence of the firearm in the appellant’s home while he conducted an
illegal drug operation out of his home. Id. (holding that “the circuit court did not err by imposing
the three-year mandatory minimum sentence . . . after rejecting [the appellant’s] request for
application of the safety valve provision”).
According to the parties’ stipulations, all the controlled buys conducted at Cannaday’s
home took place within days of each other in February 2018. Before the end of that month, the
sheriff’s office executed the search warrant which led to the discovery of four firearms within his
residence. Three of the firearms were found in Cannaday’s bedroom where he also maintained
over eleven grams of illegal drug product. Two of those three firearms—the pistols—were
within arm’s reach of his bed. And although the muzzle-loader was inoperable, it hung over a
window in plain view upon entry into the bedroom. See United States v. Rhind, 289 F.3d 690,
694-96 (11th Cir. 2002) (finding that the “fact that the guns were not loaded or inoperable is not
dispositive” of the “in connection with” requirement of U.S.S.G. § 2K2.1(b)(5)). Although the
affidavits claim that the firearm under the mattress belonged to Kasie, Cannaday also admitted in
his supporting affidavit that he told investigators that the firearms found in the home belonged to
his wife because “[he] knew [he] was a felon and couldn’t own firearms.” See Flanagan v.
Commonwealth, 58 Va. App. 681, 702 (2011) (holding that a factfinder may disbelieve
self-serving testimony of the accused). As in Stone, the trial court here was entitled to draw from
these facts an affirmative inference that Cannaday’s possession of the firearms was connected to
his illegal drug operation.
Cannaday presses to distinguish his case from Stone. Among other factors, Cannaday
claims that he purchased the firearms after the distribution offenses; in contrast, Stone’s firearms
were purchased before his distribution offenses. This distinction is of no consequence. What is
of consequence is that, as the record establishes, the relevant firearms were present and
- 13 -
accessible to Cannaday in his home at the time of the first search, when he was found to also be
in possession of sufficient quantities of controlled substances as to suggest a distribution
operation. See Stone, 297 Va. at 103 (recognizing that “it was reasonable [for the trial court] to
draw the affirmative inference from the stipulated evidence that Stone in fact possessed the
firearm for the protection of his illegal drug operation being conducted out of his residence”).
Cannaday also emphasizes that, while the appellant in Stone pleaded guilty to possessing cocaine
with the intent to distribute, he entered a plea of no contest to the offenses of possession of a
controlled substance while in possession of a firearm and possession of over 100 grams of
methamphetamine with intent to distribute.
We find Cannaday’s distinctions unpersuasive. Although not identical to a guilty plea, a
plea of no contest operates as an admission of the truth of the charge and all facts supporting it,
for the purpose of imposing judgment and sentencing in a case. Smith v. Commonwealth, 59
Va. App. 710, 723 (2012). When a defendant admits the essential element of the offenses of
possession of a firearm while possessing a controlled substance and possession with intent to
distribute a controlled substance, a trial court may infer a connection between the possession of
the firearm and the drug distribution offense. See Logan v. Commonwealth, 19 Va. App. 437,
445 (1994) (en banc) (affirming the link “between the distribution of controlled substances . . .
and the possession and use of dangerous weapons”). The gravamen of each offense, one
concerning simultaneous possession of a firearm and controlled substance, the other possession
of methamphetamine with intent to distribute, implicates a connection between possession of a
firearm and the drug distribution offense. That is, Cannaday did not just plead no contest to
possession of a controlled substance. He also pleaded no contest to possession with intent to
distribute methamphetamine. If a defendant is in possession of both a controlled substance and a
firearm, while also having the intent to distribute a controlled substance, there is an adequate
- 14 -
foundation for the inference that possession of the firearm is in connection with the drug-related
offense. See id. Such an inference remains warranted when a defendant pleaded no contest, and
thus, has impliedly confessed to each relevant offense for sentencing purposes. Here, it is the
sum of the pleas that produces the result.
Cannaday’s two pleas, the discovery of body armor, multiple firearms, and substantial
amounts of illegal drug product in his home, and the stipulation that multiple drug sales out of
his home had occurred are all facts from which a reasonable factfinder could conclude that
Cannaday possessed firearms “in connection with” his illegal drug distribution. The trial court
had the evidence before it, reviewed Cannaday’s request for safety valve relief, and heard the
arguments of counsel regarding the same. Although not comprehensive, the statements of the
trial court that “the main question is the gun,” “I think to a certain extent, Mr. Cannaday was
playing both ends against the middle,” and “I have come to the conclusion that the safety valve
provisions do not apply” show the trial court considered the statutory requirements and the
evidence presented, including Cannaday’s and his wife’s credibility. The trial court found that
Cannaday failed to meet his burdens and therefore did not qualify for refuge under the safety
valve provision of Code § 18.2-248(H)(5). We find the trial court did not err in so finding.
CONCLUSION
For all these reasons, we affirm the judgment of the trial court.
Affirmed.
- 15 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482524/ | USCA11 Case: 21-13200 Date Filed: 11/09/2022 Page: 1 of 25
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13200
____________________
NICOLE OWENS,
Plaintiff-Appellant,
versus
STATE OF GEORGIA, GOVERNOR’S OFFICE OF STUDENT
ACHIEVEMENT,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-05683-MHC
____________________
USCA11 Case: 21-13200 Date Filed: 11/09/2022 Page: 2 of 25
21-13200 Opinion of the Court 2
Before LUCK, BRASHER, and HULL, Circuit Judges.
BRASHER, Circuit Judge:
This appeal requires us to answer a question of first
impression about the Rehabilitation Act. We have held that, to
trigger an employer’s duty to provide an accommodation under
the Rehabilitation Act, a disabled employee must (1) make a
specific demand for an accommodation and (2) demonstrate that
such an accommodation is reasonable. Frazier-White v. Gee, 818
F.3d 1249, 1255–56 (11th Cir. 2016). But we have never addressed
what information a disabled employee must provide to her
employer to trigger the employer’s duty to accommodate her
disability.
This appeal presents that question. Following her c-section
childbirth in July 2018, Nicole Owens informed her employer, the
State of Georgia, Governor’s Office of Student Achievement
(“GOSA”), that she would need to work remotely for several
months. In support of this request, Owens provided GOSA two
notes from her physician, which mentioned Owens’s c-section
delivery, stated that she was “doing well,” and concluded that she
“may” telework until November 2018. Owens separately informed
GOSA that she was seeking to telework due to childbirth-related
“complications” but provided no detail about the nature of these
complications or how they would be accommodated by
teleworking. Finding this information insufficient to support
Owens’s accommodation request, GOSA asked Owens to either
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21-13200 Opinion of the Court 3
submit additional documentation or return to the office. When
Owens failed to do either, GOSA terminated her employment.
Owens sued GOSA for (1) failure to accommodate in
violation of the Rehabilitation Act; (2) retaliation in violation of the
Rehabilitation Act; and (3) pregnancy discrimination under the
Pregnancy Discrimination Act. The district court granted
summary judgment for GOSA on all three claims. As to the first
claim, the district court reasoned that Owens failed to establish a
prima facie case of failure to accommodate because she never
notified GOSA of her disability or connected that disability with
her requested accommodation. As to the other claims, the district
court concluded that Owens failed to establish that GOSA’s
proffered reasons for terminating her were pretext for
discrimination.
We agree with the district court. We hold that, as part of her
initial burden to establish that a requested accommodation is
reasonable under the Rehabilitation Act, an employee must put her
employer on notice of the disability for which she seeks an
accommodation and provide enough information to allow her
employer to understand how the accommodation she requests
would assist her. Because Owens did not identify any disability
from which she suffered or give GOSA any information about how
her requested accommodation—teleworking—would
accommodate that disability, the district court correctly granted
summary judgment. We conclude that Owens’s other claims fail
for the lack of evidence that GOSA’s proffered reasons for
USCA11 Case: 21-13200 Date Filed: 11/09/2022 Page: 4 of 25
21-13200 Opinion of the Court 4
terminating her were pretext for discrimination. Accordingly, we
affirm.
I.
Nicole Owens began working for GOSA in 2016 as a web
content specialist and served in this role without reprimand until
her termination in 2018. Although GOSA employees were allowed
to work from home one day per week, Dr. Cayanna Good—
GOSA’s Executive Director—did not favor full-time teleworking
because she believed it impeded effective staff supervision and
support. As Executive Director, Good was GOSA’s ultimate
decisionmaker for both accommodation requests and firing of
GOSA staff.
In early 2018, Owens informed GOSA that she had a “high-
risk pregnancy” and wanted to take time off under the Family
Medical Leave Act (“FMLA”) until her due date. GOSA sent Owens
a letter approving her FMLA request. The approval letter stated
GOSA’s policy that an employee taking FMLA leave is “required to
present a medical release before returning to work” containing
“any restrictions and the duration of same.” But the policy does not
specify whether “returning to work” meant returning to the
physical office. Owens was on FMLA paid leave from early 2018
until July 20, 2018.
Owens gave birth via c-section on July 18, 2018. Thereafter,
Owens notified her immediate supervisor, Rosaline Tio, that she
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21-13200 Opinion of the Court 5
was experiencing childbirth-related complications arising from her
c-section, which required two blood transfusions.
On August 3, 2018, Tio informed Owens that Owens had
exhausted her paid FMLA leave and was being placed on unpaid
leave as of July 20, 2018. Owens responded that same day,
informing GOSA that she would return to work remotely on
August 6, 2018. She attached a note from her physician, which
stated that Owens “delivered a baby by cesarean on 7/18/2018,”
“is doing well,” and “may return to work via tele-work from her
home.”
Good believed this note qualified as a “medical release” for
Owens to “return to work” under GOSA’s FMLA policy. Owens,
too, admits that this note cleared her to return to work, though
only in a remote capacity.
Good was unaware at the time of this initial telework
request that Owens was experiencing any medical complications
that would prevent her from working in the office. Nonetheless,
because she knew that “most childcare facilities don’t accept infants
younger than six weeks,” Good allowed Owens to telework
temporarily so that Owens could make childcare arrangements.
Because Good believed that Owens’s August 3 telework request
was unrelated to any health complications, Good did not require
Owens to provide additional medical documentation before
approving her temporary teleworking arrangement. Owens thus
resumed work remotely on August 6, 2018. The parties agree that,
at that time, Owens was no longer on FMLA leave.
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21-13200 Opinion of the Court 6
Owens routinely communicated with Tio about her post-
delivery medical appointments. Knowing Owens had her six-week
“milestone appointment” scheduled for September 11, 2018, Tio
wrote Owens on September 12, asking how the appointment went.
Owens responded that, because of complications from her c-
section delivery, she would need to continue teleworking until
November 5, 2018. Owens attached a second doctor’s note dated
9/11/2018, which stated only that Owens “may return to work
November 5, 2018” and “may continue to telework at home until
then.” The note said nothing about Owens’s medical conditions or
the medical necessity of teleworking.
Tio forwarded this information to Good and Felicia Lowe, a
Human Resources Director in the Office of Planning and Budget,
which carried out GOSA’s human resources functions. Because
Owens’s second doctor’s note stated only that Owens “may”
telework, not that she “must,” Good believed it was ambiguous
and lacked enough information for her to evaluate Owens’s
accommodation request. Because Tio had expressed concerns with
Owens’s productivity and responsiveness while teleworking, Good
found it important to ensure that Owens’s teleworking
accommodation was necessary, not merely her own personal
preference.
At Good’s direction, Lowe called Owens and told her that
she needed to submit additional documentation to show her
telework request was medically necessary. Owens followed up
with Lowe that same day after speaking with her doctor’s nurse.
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21-13200 Opinion of the Court 7
She told Lowe that if GOSA required more detail than “just an
appendage” to the September 11 note stating its contents were
“medically advised,” GOSA would need to provide the doctor’s
office with an information request form.
Accordingly, on September 20, 2018, Lowe sent Owens
reasonable accommodation paperwork for her and her physician
to complete. The accommodation paperwork asked for
information verifying Owens’s disability and the limitations caused
by that disability, describing how those limitations restrict Owens’s
ability to perform her job functions, and identifying any workplace
accommodations that would permit Owens to perform these job
functions. Included with the reasonable accommodation
paperwork was an “Employee Release” for Owens to sign that
would authorize GOSA to acquire medical information from
Owens’s doctor directly. There is no evidence that Owens ever
completed or returned this release to GOSA.
On September 24, 2018, Owens forwarded the reasonable
accommodation paperwork to her doctor’s records and release
department for completion. Owens knew it could take the records
department up to twenty days to fulfill such requests, but she never
informed GOSA of this timeline.
Although GOSA did not initially provide Owens a deadline
for returning the completed paperwork, Lowe contacted Owens
on October 1 and told her that if she did not either submit the
documentation to GOSA by the next day, October 2, or return to
USCA11 Case: 21-13200 Date Filed: 11/09/2022 Page: 8 of 25
21-13200 Opinion of the Court 8
the office on October 3, “business decisions would need to be
made.”
Owens emailed Lowe on October 2, stating that she had not
received the completed paperwork from her doctor and would be
unable to return to the office the next day. Owens wrote that she
had called her doctor’s office “numerous times” trying to expedite
the paperwork and had “notified everyone that the process to get
paperwork signed by the office typically takes time” but that she
could not “expedite internal processes out of [her] control.”
Lowe shared this email with Good, who decided to give
Owens another week to submit her paperwork or return to the
office. Lowe informed Owens of this extension and sent her “an
official and final request” for “details to assist in determining the
continued allowability of teleworking.” This final request
memorandum informed Owens that “[f]ailure to provide the
completed reasonable accommodation documentation” by
October 10, 2018, or “to return to the worksite” by October 11,
2018, “may result in termination of your employment.”
Owens called her doctor’s office daily trying to expedite her
paperwork request and informed GOSA of these efforts. In the
meantime, Good and Tio began outlining a proposed teleworking
plan for Owens, should her reasonable accommodation paperwork
reveal that teleworking was a reasonable accommodation for her
disability. And Tio had arranged to discuss this new teleworking
protocol with Owens on October 10.
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21-13200 Opinion of the Court 9
On the evening of October 10, after hearing no word from
Owens about her paperwork or whether she planned to return to
the office the next day, Tio sent Good a memorandum
summarizing Tio’s interactions with Owens related to her
accommodation request. Tio also emailed Owens to ask if she
would be coming into the office the next day. Owens did not
respond. Instead, on October 11, Owens emailed Lowe, stating
that she had not obtained her paperwork from her doctor and
would not be returning to the office that day. Later that morning,
Good fired Owens for failing to return her medical documentation
or return to the office as instructed.
Based on these events, Owens sued GOSA alleging failure to
accommodate and retaliation, in violation of Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, and discrimination, in
violation of the Pregnancy Discrimination Act, 42 U.S.C. §
2000e(k). The district court granted summary judgment for GOSA
on all three claims.
The court reasoned that Owens never triggered GOSA’s
accommodation obligations under the Rehabilitation Act because
the information neither identified a specific disability nor explained
how telework would accommodate it. And, even if Owens
triggered GOSA’s accommodation duties, the court determined
that her accommodation claim still failed because she caused a
“breakdown” in the “interactive process” between her and GOSA.
The district court also reasoned that, even if Owens established a
prima facie case of retaliation under the Rehabilitation Act and
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21-13200 Opinion of the Court 10
discrimination under the Pregnancy Discrimination Act, both
those claims failed because she did not show that GOSA’s stated
reasons for firing her were pretext for discrimination. The district
court entered final judgment in GOSA’s favor. Owens timely
appealed.
II.
We review an appeal from summary judgment de novo.
Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1310 (11th Cir. 2013).
Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)).
Although we must view the evidence in the light most favorable to
the nonmoving party, drawing “all justifiable inferences” in that
party’s favor, “inferences based upon speculation” are not
justifiable. Kernel Recs. Oy v. Mosley, 694 F.3d 1294, 1301 (11th
Cir. 2012) (quotations omitted). Thus, where “the nonmoving
party presents evidence that is ‘merely colorable or not
significantly probative,’” the movant is entitled to judgment as a
matter of law. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th
Cir. 2017) (quoting Stephens v. Mid–Continent Cas. Co., 749 F.3d
1318, 1321 (11th Cir. 2014)).
USCA11 Case: 21-13200 Date Filed: 11/09/2022 Page: 11 of 25
21-13200 Opinion of the Court 11
III.
A.
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a),
prohibits covered employers from discriminating against
employees based on their disabilities. Sutton v. Lader, 185 F.3d
1203, 1207 (11th Cir. 1999). In employment discrimination cases,
the standards for determining whether an employer violates the
Rehabilitation Act “shall be the standards applied under title I of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)
and the provisions of sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12201 to 12204
and 12210)” relating to employment. 29 U.S.C. § 794(d). “[T]hus,
cases involving the ADA are precedent for those involving the
Rehabilitation Act.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (citing Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th Cir.
2000)).
“To establish a prima facie case of discrimination under the
[Rehabilitation] Act, an individual must show that (1) he has a
disability; (2) he is otherwise qualified for the position; and (3) he
was subjected to unlawful discrimination as the result of his
disability.” Sutton, 185 F.3d at 1207–08 (citations omitted).
Unlawful discrimination under the Rehabilitation Act includes
failing to provide reasonable accommodations for employees’
known disabilities. Boyle, 866 F.3d at 1289 (citing Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001)).
USCA11 Case: 21-13200 Date Filed: 11/09/2022 Page: 12 of 25
21-13200 Opinion of the Court 12
The Rehabilitation Act does not require employers to
speculate about their employees’ accommodation needs. Instead,
we have held that to trigger an employer’s duty to provide a
reasonable accommodation, the employee must (1) make a specific
demand for an accommodation and (2) demonstrate that such
accommodation is reasonable. Frazier-White, 818 F.3d at 1255–56;
see Willis v. Conopco, Inc., 108 F.3d 282, 284–86 (11th Cir. 1997).
Only after the employee provides this information must the
employer “initiate an informal, interactive process” with the
employee to discuss the employee’s specific limitations, explore
potential accommodations, and select the most appropriate
accommodation for both the employer and the employee. See 29
C.F.R. § 1630.2(o)(3); see also D’Onofrio v. Costco Wholesale
Corp., 964 F.3d 1014, 1021 (11th Cir. 2020) (citing Gaston v.
Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir.
1999)), cert. denied, 141 S. Ct. 1435 (2021); Willis, 108 F.3d at 284–
86.
Owens argues that she triggered GOSA’s accommodation
duties when she informed GOSA that she was requesting a
teleworking accommodation for childbirth-related complications.
We disagree. By informing GOSA of her need to telework
following her childbirth, Owens made a specific demand for an
accommodation in satisfaction of the first part of our failure-to-
accommodate test. But the second part of our test—demonstrating
that the requested accommodation is reasonable—requires that an
employee put her employer on notice of the disability for which
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21-13200 Opinion of the Court 13
she seeks an accommodation and provide enough information to
allow an employer to understand how the accommodation would
address the limitations her disability presents. Because Owens did
neither, we conclude that Owens did not demonstrate that her
requested accommodation was reasonable.
1.
We have not specifically addressed how an employee who
makes a demand for an accommodation can meet her obligation to
demonstrate that her requested accommodation is reasonable. But
we believe that an employee must do at least two things: identify
her disability and suggest how the accommodation will overcome
her physical or mental limitations.
First, our caselaw and the statutory text establish that an
employee must identify her disability before an employer is
obligated to engage in an interactive process about
accommodating that disability. We have held that a plaintiff cannot
sustain a prima facie case of disability discrimination without proof
that her employer knew of her disability. Morisky v. Broward
Cnty., 80 F.3d 445, 448 (11th Cir. 1996). Our requirement that
disabled employees notify their employers of their disability flows
from the Rehabilitation Act’s text, which imposes a duty on
employers to accommodate only disabilities that are “known” to
them. 42 U.S.C. § 12112(b)(5)(A); see 29 U.S.C. § 794(d)
(incorporating § 12112); see also 29 C.F.R. § Pt. 1630, App. § 1630.9
(“[A]n employer would not be expected to accommodate
disabilities of which it is unaware.”). It is “evident that an employee
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21-13200 Opinion of the Court 14
cannot be fired ‘because of’ a disability” in violation of the statute
“unless the decisionmaker has actual knowledge of the disability.”
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1185 (11th Cir. 2005).
In most cases, to identify a disability, an employee must
provide at least some information about how a physical or mental
condition limits her functioning. The statutory text defines a
disability as a physical or mental impairment that limits a major life
activity, such as “performing manual tasks, . . . lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(1)(a), (2)(a)
(defining disability under the ADA). Consistent with that
definition, the statute requires employers “to make reasonable
accommodation only to the physical or mental limitations” caused
by the employee’s physical or mental condition. 29 C.F.R. § Pt.
1630, App. § 1630.9 (emphasis added). Accordingly, to put her
employer on notice of her disability, an employee must identify—
at least in broad strokes—the limitations her mental or physical
condition imposes.
Second, we believe an employee must provide her employer
enough information to assess how her proposed accommodation
would help her overcome her disability’s limitations. We have held
that “[a]n accommodation can qualify as ‘reasonable’ . . . only of it
enables the employee to perform the essential functions of the
job.” Lucas, 257 F.3d at 1255–56 (citing LaChance v. Duffy’s Draft
House, Inc., 146 F.3d 832, 835 (11th Cir. 1998)). The same
accommodation might be appropriate for one disability and
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21-13200 Opinion of the Court 15
inappropriate for another, and the same disability may require
different accommodations for different employees. See Ward v.
McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014) (“Few disabilities are
amenable to one-size-fits-all accommodations.”). Accordingly, an
employee must link her disability to her requested accommodation
by explaining how the requested accommodation could alleviate
the workplace challenges posed by her specific disability.
The bottom line is that employees must give employers
enough information to respond effectively to an accommodation
request. We have made clear that “an employer is not required to
accommodate an employee in any manner that the employee
desires—or even provide that employee’s preferred
accommodation.” D’Onofrio, 964 F.3d at 1022, cert. denied, 141 S.
Ct. 1435 (2021). Therefore, when an employee triggers an
employer’s accommodation duties, the employer must expend
time and expense to explore the universe of reasonable
accommodations, identify one that is mutually agreeable to the
parties, and implement it. To begin this interactive process, “an
employer needs information about the nature of the individual’s
disability and the desired accommodation.” Ward, 762 F.3d at 31.
The type and extent of information that an employee must
provide will depend, of course, on the particulars of each case. The
link between the disability and the requested accommodation may
often be obvious. “[A]n employee confined to a wheelchair,” for
instance, “would hardly need a doctor’s report to show that she
needed help in getting to her workstation if this were accessible
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21-13200 Opinion of the Court 16
only by climbing a steep staircase.” Id. at 32 (quoting Langon v.
Dep’t of Health & Human Servs., 959 F.2d 1053, 1058 (D.C. Cir.
1992)). But in other circumstances, the link between a person’s
limitations and the requested accommodation will be unclear
without additional information. Because this information is
“typically possessed only by the individual or her physician,” id., it
is reasonable that the employee inform her employer how the
accommodation she seeks will address her limitations before
requiring the employer to initiate the interactive process.
Even so, we expect an employee’s informational burden to
be modest. Although “[v]ague or conclusory statements revealing
an unspecified incapacity are not sufficient to put an employer on
notice” of its accommodation duties, Morisky, 80 F.3d at 448, an
employee is not required to provide her employer with detailed or
private information about her disability to initiate the employer’s
duty to engage in an interactive assessment about the need for an
accommodation. We recognize that “[d]isabled employees . . . may
have good reasons for not wanting to reveal unnecessarily every
detail of their medical records because much of the information
may be irrelevant to identifying and justifying accommodations,
could be embarrassing, and might actually exacerbate workplace
prejudice.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d
Cir. 1999). Rather, to trigger an employer’s accommodation duties,
a disabled employee need only identify a statutory disability and
explain generally how a particular accommodation would assist
her.
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21-13200 Opinion of the Court 17
2.
Owens argues that she sufficiently notified GOSA of her
disability and linked that disability to her telework request. She
points to her doctor’s statement that she had delivered a child by c-
section and may work remotely until November and her statement
that she experienced “childbirth-related complications,” requiring
“two blood transfusions.” We disagree that this information was
sufficient.
Courts and regulators have recognized that neither
childbirth nor pregnancy qualifies as a disability under the statute.
See 29 C.F.R. pt. 1630, App. § 1630.2(h) (“Other conditions, such as
pregnancy, that are not the result of a physiological disorder are
also not impairments.”); Farrell v. Time Serv., Inc., 178 F. Supp. 2d
1295, 1298 (N.D. Ga. 2001) (“It is clearly established that pregnancy
per se does not constitute a disability under federal law.”)
(collecting cases). “Disability” is a statutory term, which the
Rehabilitation Act defines as “a physical or mental impairment that
substantially limits one or more major life activities.” Boyle, 866
F.3d at 1288 (quoting 29 U.S.C. § 705(9)(B) (incorporating 42 U.S.C.
§ 12102)). To be sure, a pregnancy- or childbirth-related
impairment may qualify as a disability, but only if that impairment
substantially limits a major life activity. 29 C.F.R. pt. 1630, App. §
1630.2(h). But the conditions themselves are not disabilities.
Although Owens’s unspecified “childbirth-related
complications” may have caused a disability, Owens never
identified what that disability was. She points to her c-section and
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21-13200 Opinion of the Court 18
blood transfusions as information identifying a disability, but these
are medical procedures and treatments, not disabilities. See
cesarean section, MERRIAM-WEBSTER’S MEDICAL DICTIONARY
(2016) (“a surgical procedure . . . for delivery of offspring”); blood
transfusion, MERRIAM-WEBSTER’S MEDICAL DICTIONARY (2016) (“a
medical treatment in which someone’s blood is put into the body
of another person”). As with childbirth-related complications, such
procedures or treatments may cause a disability, but Owens failed
to identify any such disability in her communications with GOSA.1
There is no obvious limitation on functioning that arises from
having had a c-section or a blood transfusion five or six weeks
earlier.
Having failed to identify a disability, Owens also failed to
explain to GOSA why teleworking would accommodate her
disability. Although her doctor’s recommendation that she
telework qualifies as a demand for a specific accommodation, it
does not explain how that accommodation would alleviate any
physical or mental limitation.
1 By way of comparison, the Equal Employment Opportunity Commission’s
enforcement guidance identifies several specific pregnancy-related
impairments that it says could be sufficiently severe to substantially limit a
person’s functions. U.S. Equal Emp. Opportunity Comm’n, EEOC-NVTA-
2015-2, Questions and Answers about the EEOC’s Enforcement Guidance on
Pregnancy Discrimination and Related Issues (June 25, 2015),
https://www.eeoc.gov/laws/guidance/questions-and-answers-about-eeocs-
enforcement-guidance-pregnancy-discrimination-and (all internet materials as
visited Sept. 27, 2022, and available in Clerk of Court’s case file).
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21-13200 Opinion of the Court 19
Viewed in its entirety, and in the light most favorable to
Owens, the information Owens provided GOSA amounts to
nothing but “[v]ague or conclusory statements revealing an
unspecified incapacity.” Morisky, 80 F.3d at 448. Because such
information is not enough to trigger an employer’s duties under
the Rehabilitation Act, Owens’s claim that GOSA discriminated
against her by failing to provide her reasonable accommodations
fails as a matter of law. Accordingly, we need not decide whether
her claim fails on the ground that she caused a breakdown in the
interactive process. Cf. Lucas, 257 F.3d at 1256.
B.
Owens also maintains that the district court erred when it
granted GOSA summary judgment on Owens’s retaliation and
pregnancy discrimination claims on the ground that she failed to
show pretext. We disagree.
In addition to imposing liability for failing to provide
reasonable accommodations, the Rehabilitation Act also prohibits
retaliating against an employee for engaging in protected activity.
29 U.S.C.§ 794(a). Further, Title VII, as amended by the Pregnancy
Discrimination Act, prohibits discrimination based on pregnancy,
childbirth, or related medical conditions. 42 U.S.C. § 2000e(k)
(amending 42 U.S.C. § 2000e-2). Because both claims are governed
by the same legal framework, see Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1328 (11th Cir. 1998); Ellis, 432 F.3d at 1326 (citing
Cash, 231 F.3d at 1305 n.2), we address them together.
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21-13200 Opinion of the Court 20
Where, as here, a plaintiff claims discrimination or
retaliation based on circumstantial evidence, we ordinarily apply
the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). 2 See Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (citing
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.
2004)); Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d
1280, 1294 (11th Cir. 2021) (citing Johnson v. Miami-Dade Cnty.,
948 F.3d 1318, 1325 (11th Cir. 2020)).
Under the McDonnell Douglas framework, the plaintiff
bears the initial burden of establishing a prima facie case. Alvarez,
610 F.3d at 1264 (citing Wilson, 376 F.3d at 1087); Tolar, 997 F.3d
at 1294 (citing Johnson, 948 F.3d at 1325). If the plaintiff satisfies
this burden, the burden of production then shifts to her employer
to articulate a legitimate, nondiscriminatory reason for its actions.
Alvarez, 610 F.3d at 1264 (citing Wilson, 376 F.3d at 1087); Tolar,
997 F.3d at 1294 (citing Johnson, 948 F.3d at 1325). If the employer
proffers even one such reason, the burden then shifts back to the
plaintiff, who must show that the reason given by the employer
2 Alternatively, we have said that, even if a plaintiff fails to satisfy her burden
under the McDonnell Douglas framework, she may still defeat summary
judgment by presenting “a convincing mosaic” of circumstantial evidence that
“raises a reasonable inference that the employer discriminated” against her.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011); see also
Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (describing
types of relevant circumstantial evidence under Smith). Owens does not argue
that she satisfies this alternative framework on appeal.
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21-13200 Opinion of the Court 21
was a mere pretext for discrimination. Alvarez, 610 F.3d at 1264
(citing Wilson, 376 F.3d at 1087); Tolar, 997 F.3d at 1294 (citing
Johnson, 948 F.3d at 1325). “Importantly, throughout this entire
process, the ultimate burden of persuasion remains on the
employee.” Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir.
2013).
To establish pretext and avoid summary judgment, the
plaintiff “must present ‘significant probative’ evidence,” Mayfield
v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996)
(citations removed), “sufficient to permit a reasonable fact finder
to conclude that the discriminatory animus was the ‘but-for’ cause
of the adverse employment action,” Sims, 704 F.3d at 1332 (citing
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009)). This
evidence must reveal “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Jackson v. Ala.
State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005)
(quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th
Cir. 1997)).
Our review on this issue is limited. We “do not sit as a super-
personnel department that reexamines an entity’s business
decisions.” Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470
(11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck & Co., 864
F.2d 1359, 1365 (7th Cir. 1988)). Nor may we analyze whether an
employer’s proffered reasons “are prudent or fair,” Damon v.
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21-13200 Opinion of the Court 22
Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999), or find pretext “by simply quarreling with the wisdom
of th[ose] reason[s],” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d
1295, 1314 (11th Cir. 2016) (quoting Chapman v. AI Transp., 229
F.3d 1012, 1030 (11th Cir. 2000)). We have made clear that an
“employer may fire an employee for a good reason, a bad reason,
a reason based on erroneous facts, or for no reason at all, as long as
its action is not for a discriminatory reason.” Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir.1984). If
the evidence shows that the “employer[] w[as] dissatisfied with [the
plaintiff] for . . . non-discriminatory reasons, even if mistakenly or
unfairly so,” the employer is entitled to summary judgment.
Alvarez, 610 F.3d at 1266 (citing Elrod, 939 F.2d at 1470).
Here, even assuming Owens established a prima facie case
of retaliation and pregnancy discrimination, both claims still fail
because Owens has not shown that GOSA’s legitimate, non-
retaliatory reasons for firing her—failing to return her reasonable
accommodation paperwork or return to the office as requested—
were pretextual.
Owens argues that GOSA’s first reason—Owens’s failure to
submit her reasonable accommodation paperwork by GOSA’s
deadline—was pretextual because Owens made every effort to
expedite her doctor’s paperwork process (a process outside of her
control); GOSA knew of these efforts; and, in any event, GOSA did
not need this information to make an informed decision about
Owens’s accommodation request. We disagree. The undisputed
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21-13200 Opinion of the Court 23
evidence negates any inference that GOSA’s request for additional
information, or its choice to fire Owens after she failed to abide by
that request, were motivated by illegal discrimination.
We already concluded that Owens failed to provide GOSA
with sufficient information to allow it to adequately assess Owens’s
accommodation request. GOSA was therefore within its right to
request additional information from Owens before deciding
whether to approve her teleworking accommodation.
The evidence also demonstrates GOSA’s genuine interest in
obtaining this information and establishes that GOSA was prepared
to approve Owens’s accommodation request upon its receipt. Not
only did GOSA extend Owens’s deadline for submitting her
paperwork, but GOSA had already begun preparing a teleworking
plan for Owens in anticipation of receiving it.
This evidence establishes that GOSA fired Owens, not for
any discriminatory reason, but rather because Owens kept GOSA
in the dark as to when it could expect to receive Owens’s
paperwork or what that paperwork would reveal about her
medical condition. Owens never communicated with GOSA
directly about how telework would reasonably accommodate any
childbirth-related disability. She also failed to submit GOSA’s
medical release, which would have authorized GOSA to contact
Owens’s doctor directly. Finally, she neglected to share with GOSA
that her doctor had a 20-day turnaround for paperwork requests.
An employer is not required to wait indefinitely for necessary
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21-13200 Opinion of the Court 24
information supporting an accommodation request. A reasonable
jury could not find pretext here.
Next, Owens argues that GOSA’s second proffered reason
for firing her—failing to return to the office after several
warnings—was also pretextual because it was implausible,
incoherent, and inconsistent, given GOSA’s own policy required
employees on FMLA leave to submit a medical release before
returning to work. Owens argues that, under this policy, she was
not permitted to return to work, as her doctor cleared her to work
only remotely. Because we conclude that GOSA’s first reason for
firing Owens was not pretextual, Owens’s retaliation and
pregnancy discrimination claims fail as a matter of law even if she
is correct that GOSA’s second reason is suspect. Wascura v. City of
South Miami, 257 F.3d 1238, 1243 (11th Cir. 2001) (explaining that
employer is entitled to summary judgment unless the employee
establishes that “each of the [employer’s] proffered reasons is
pretextual”).
In any event, we disagree that this second reason for firing
Owens was pretextual. GOSA’s FMLA policy did not require an
employee to be released to return to the physical office; it required
only that she be released “to return to work.” The parties agree
that Owens’s August 3 doctor’s note released her to return to work
in a remote capacity, and that Owens was no longer on FMLA
leave once she began teleworking on August 6. And by requiring
that an employee’s medical release specify any “restrictions” on an
that employee’s return, GOSA’s FMLA policy contemplates the
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21-13200 Opinion of the Court 25
possibility of “returning to work” in a limited capacity, such as
remotely. Owens was thus free to return to work under GOSA’s
medical release policy.
And no matter what we believe the policy requires, the
evidence that Good believed Owens was medically released to
return to work under the policy forecloses Owens’s pretext
argument. The pretext analysis centers on the employer’s
subjective beliefs; “the employee’s beliefs” or even “reality as it
exists outside of the decision maker’s head” is irrelevant. Alvarez,
610 F.3d at 1266 (citing Holifield v. Reno, 115 F.3d 1555, 1565 (11th
Cir. 1997)); see also Elrod, 939 F.2d at 1470. And Good’s belief that
Owens had been medically released to return to work is entirely
consistent with her decision to fire Owens for failing to return to
the office.
Because the evidence shows Good was “dissatisfied” with
Owens “for . . . non-discriminatory reasons, even if mistakenly or
unfairly so,” Owens has not shown pretext, and both her retaliation
and pregnancy discrimination claims fail as a matter of law. See
Alvarez, 610 F.3d at 1266 (citing Elrod, 939 F.2d at 1470).
IV.
For these reasons, the district court is AFFIRMED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482514/ | COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Friedman and Callins
UNPUBLISHED
HERBERT J. MORRIS
MEMORANDUM OPINION*
v. Record No. 0261-22-2 PER CURIAM
NOVEMBER 9, 2022
MARC ELIAS
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
W. Reilly Marchant, Judge
(Herbert J. Morris, on briefs), pro se. Appellant submitting on
briefs.
(Charles T. Kimmett; Hilary P. Gerzhoy; Harris, Wiltshire & Grannis
LLP, on brief), for appellee. Appellee submitting on brief.
Herbert J. Morris appeals from a January 31, 2022 order sustaining a demurrer and
dismissing his complaint alleging unlawful retaliation against an employee. On appeal, Morris
argues that the trial court improperly dismissed his complaint on First Amendment grounds,
failed to apply the proper statute, and failed to determine whether Marc Elias was his employer.
For the following reasons, we affirm the judgment of the trial court.
BACKGROUND1
In reviewing a trial court’s judgment sustaining a demurrer, we “accept as true all factual
allegations expressly pleaded in the complaint and interpret those allegations in the light most
favorable to the plaintiff.” Seymour v. Roanoke Cnty. Bd. of Supervisors, ___ Va. ___ , ___
(June 9, 2022) (quoting Coward v. Wellmont Health Sys., 295 Va. 351, 358 (2018)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We dispense with oral argument in this case because the parties agreed that “oral argument
is not necessary.” Code § 17.1-403(ii).
“Furthermore, we draw any reasonable inferences arising from the express factual allegations of
the complaint in the plaintiff’s favor.” Id. at ___ .
Morris filed a complaint on October 26, 2021, alleging unlawful retaliation against an
employee.2 According to the complaint, Morris began working as a field organizer for the
Democratic Party of Virginia/Virginia Turnout Project on August 16, 2021. On August 24, 2021,
Sam Shaver, Morris’s supervisor, told Morris a voicemail he left was “a rant” and he “sounded
panicked” and “unprofessional.” The next day, Morris told Shaver that he had a “mental health
condition” and asked for a day off work because of “anxiety.” Morris averred that Shaver accused
him of “yelling” at Shaver and other employees and that Eli Seo, the district organizing director,
told Morris to take a paid day off on August 26, 2021. Morris alleged that he was fired the next day,
eleven days into a fourteen-day “probationary period.”
Morris’s complaint alleged that he used Twitter to complain about his termination and
contact Andrew Whitley, the executive director of the Democratic Party of Virginia. When Whitley
“blocked” Morris, Morris created a new Twitter account, but Whitley “blocked” that account also.
Morris emailed partners at Elias Law, which represented the Democratic Party of Virginia in
various matters, about being “blocked” by Whitley. Morris averred that he also used Twitter to
contact Marc Elias, a partner at Elias Law, and to make public complaints about Elias Law
protecting the Democratic Party of Virginia from being liable for illegal discrimination. Elias
“blocked” Morris’s Twitter account. Seo “blocked” Morris after Morris referred to Seo’s Instagram
account in a post on the Virginia Democratic Party Instagram account.
The defendants other than Elias demurred and moved to dismiss Morris’s complaint. Morris
moved to amend and filed an amended complaint on November 17, 2021. Morris alleged retaliation
2
In addition to Elias, Morris’s complaint named as defendants the Democratic Party of
Virginia/Virginia Turnout Project, Andrew Whitley, and Susan Swecker.
-2-
under Code § 40.1-27.3 as his sole cause of action in the amended complaint and sought
reinstatement to his position and compensatory and punitive damages. After Morris settled with all
defendants other than Elias, the trial court dismissed his complaint as to those defendants.
Elias filed a demurrer and objection to venue on November 22, 2021. Morris filed a pair of
motions in response. On January 27, 2022, the trial court held a hearing on the demurrer. After that
hearing, the trial court entered an order that dismissed Morris’s complaint with prejudice and
without leave to amend “for reasons stated from the bench.” Morris appeals.
ANALYSIS
Morris, pro se, presents three assignments of error on appeal. First, he contends that the trial
court “erred by dismissing the entire case and based the dismissal on a cited first amendment court
case when this case was not a first amendment case.” He maintains that this was a “retaliation case”
and the trial court “did not respond” to his request “for a Nexus Test” or “weigh” certain
circumstances when dismissing his complaint. Second, Morris argues that the trial court erred by
not applying Code § 40.1-27.3, asserting that he was fired because he “complained to a supervisor,”
which he maintains is legally “protected activity,” and then, as a former employee, suffered
retaliation. Finally, Morris contends that the trial court “did not determine” if Elias “was the
employer, or an entity of the employer, or even define the definition of ‘employer’ under Virginia
Code 40.1-2.” We cannot consider any of Morris’s arguments, however, because the record
contains no timely-filed transcript or written statement of facts in lieu of transcript of the January
27, 2022 hearing on the demurrer.
“The transcript of any proceeding is a part of the record when it is filed in the office of the
clerk of the trial court no later than 60 days after entry of the final judgment.” Rule 5A:8(a).
“When the appellant fails to ensure that the record contains transcripts or a written statement of facts
necessary to permit resolution of appellate issues, any assignments of error affected by such
-3-
omission will not be considered.” Rule 5A:8(b)(4)(ii). See also Smith v. Commonwealth, 32
Va. App. 766, 771 (2000) (holding that “[t]his Court has no authority to make exceptions to the
filing requirements set out in the Rules” (quoting Turner v. Commonwealth, 2 Va. App. 96, 99
(1986))).
The trial court’s January 31, 2022 order granted the demurrer and dismissed Morris’s
complaint “for reasons stated from the bench” during the January 27, 2022 hearing. Without a
transcript of that hearing, the record does not contain the “reasons” given by the trial court for its
ruling, and we are unable to determine whether the trial court erred. Specifically, we cannot
determine whether the trial court held that Morris’s complaint failed because of the First
Amendment, because it “did not apply” Code § 40.1-27.3, or because it failed to consider whether
Elias was an “employer” or “entity of the employer,” as Morris alleges. The absence of a transcript
renders impossible the ability to review the trial court’s decision for error. Although navigating
procedure may impose understandable and unique burdens for pro se litigants, a party “who
represents himself is no less bound by the rules of procedure and substantive law than a [party]
represented by counsel.” Townes v. Commonwealth, 234 Va. 307, 319 (1987) (citation omitted).
“Even pro se litigants must comply with the rules of court.” Francis v. Francis, 30 Va. App. 584,
591 (1999).
Accordingly, after reviewing the record and the briefs filed on appeal, we conclude that a
timely-filed transcript or written statement of facts of the January 27, 2022 hearing is indispensable
to resolve Morris’s assignments of error. See Smith, 32 Va. App. at 772; Turner, 2 Va. App. at
99-100. Because Morris failed to ensure that the record contains the necessary transcript or written
statement of facts, we cannot reach his assignments of error. See Rule 5A:8(b)(4)(ii).
-4-
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
-5- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482526/ | USCA11 Case: 22-10363 Date Filed: 11/09/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10363
Non-Argument Calendar
____________________
RALPH McCOIG,
Plaintiff-Appellant,
versus
CITY OF ROCKLEDGE, FLORIDA,
BRYCE PHILLIPS,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
USCA11 Case: 22-10363 Date Filed: 11/09/2022 Page: 2 of 5
2 Opinion of the Court 22-10363
D.C. Docket No. 6:21-cv-092-RBD-GJK
____________________
Before JORDAN, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Ralph McCoig appeals the district court’s order
dismissing his claims against the City of Rockledge and Officer
Bryce Phillips that arose following McCoig’s arrest for aggravated
assault with a firearm and shooting/throwing a missile or other
hard substance into an occupied vehicle. McCoig filed a four-count
complaint against the defendants/appellees alleging: (1) false arrest
under Florida law against the City; (2) Fourth Amendment viola-
tion against the City; (3) false arrest against Officer Phillips individ-
ually under 42 U.S.C. § 1983; and (4) state law malicious prosecu-
tion against Rodney Temple, the individual who notified the police
about McCoig’s alleged unlawful conduct. The district court
granted both the City’s motion to dismiss and Phillips’s motion to
dismiss with prejudice and declined to exercise supplemental juris-
diction over the malicious prosecution claim against Temple, thus
dismissing this claim without prejudice. Having read the parties’
briefs and reviewed the record, we affirm the district court’s order
dismissing McCoig’s complaint.
I.
We review de novo a district court’s dismissal of a complaint
for failure to state a claim. Chua v. Ekonomou, 1 F.4th 948, 952
(11th Cir. 2021). Federal Rule of Civil Procedure 12(b)(6) permits
USCA11 Case: 22-10363 Date Filed: 11/09/2022 Page: 3 of 5
22-10363 Opinion of the Court 3
defendants to move a district court to dismiss a case because the
complaint “fail[s] to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). In reviewing the grant of a
Rule 12(b)(6) motion, we are “guided by the same principles of re-
view as the district court” and view the complaint in the light most
favorable to the plaintiff, accepting the complaint’s well-pleaded
facts as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043,
1057 (11th Cir. 2007). To survive a motion to dismiss, a complaint
must contain sufficient facts that, if true, state a facially plausible
claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949 (2009). A claim is facially plausible if it creates a “reasonable
inference that the defendant is liable for the misconduct alleged.”
Id.
II.
McCoig first argues that the district court erred in dismissing
his complaint against the defendants because Officer Phillips did
not have probable cause to arrest him. Specifically, McCoig asserts
that Temple’s statement alone was insufficient to support a finding
of probable cause. However, the record demonstrates that the dis-
trict court properly dismissed the false arrest claims against the City
and Officer Phillips because it found the presence of probable cause
for McCoig’s arrest. A finding of probable cause is an absolute bar
to federal and state claims of false arrest. Rankin v. Evans, 133 F.3d
1425, 1435 (11th Cir. 1998). See also Myers v. Bowman, 713 F.3d
1319, 1326-27 (11th Cir. 2013) (probable cause is an absolute bar to
a § 1983 false arrest claim). The district court’s assessment of
USCA11 Case: 22-10363 Date Filed: 11/09/2022 Page: 4 of 5
4 Opinion of the Court 22-10363
probable cause is a purely legal determination and is subject to ple-
nary review by the appellate court. See United States v. Allison,
953 F.2d 1346, 1350 (11th Cir. 1992). “[P]robable cause exists when
the facts, considering the totality of the circumstances and viewed
from the perspective of a reasonable officer, establish a probability
or substantial chance of criminal activity.” Washington v. Howard,
25 F.4th 891, 899 (11th Cir. 2022) (internal quotation marks omit-
ted).
Here, Officer Phillips properly relied on Temple’s criminal
complaint, that alleged that McCoig discharged a firearm into
Temple’s vehicle, to support his finding of probable cause to arrest
McCoig. See Rankin, 133 F.3d 1441 (stating that an officer can rely
upon a victim’s statement to support probable cause). Moreover,
even McCoig’s complaint acknowledges that there was physical
damage to Temple’s car, which offers additional support for the
officer’s conclusion that McCoig had engaged in unlawful activity.
Thus, the district court properly dismissed with prejudice the false
arrest claims against the City and Officer Phillips.
Additionally, the record indicates that the district court
properly dismissed McCoig’s Fourth Amendment claim because it
found probable cause existed for McCoig’s arrest. See Washington,
25 F.4th at 898 (“Probable cause renders a seizure pursuant to legal
process reasonable under the Fourth Amendment.”); Wood v. Kes-
ler, 323 F.3d 872, 878 (11th Cir. 2003) (“An arrest does not violate
the Fourth Amendment if the police officer has probable cause for
the arrest.”)
USCA11 Case: 22-10363 Date Filed: 11/09/2022 Page: 5 of 5
22-10363 Opinion of the Court 5
III.
McCoig’s final argument is that the district court improperly
reviewed the defendants’ motions to dismiss as motions for sum-
mary judgment, thus invoking the incorrect legal standards in ana-
lyzing his claims. The record belies McCoig’s assertion. The dis-
trict court applied the proper standard for ruling on motions to dis-
miss. It accepted the factual allegations of the complaint as true
and construed the allegations in the light most favorable to
McCoig. Furthermore, contrary to McCoig’s allegations, the dis-
trict court did not resolve disputed issues of fact. It construed the
four corners of the complaint and found that probable cause existed
for Officer Phillips to arrest McCoig based on the victim’s state-
ment. This was the proper analysis for the district court to under-
take in deciding motions to dismiss.
We conclude from the record that the district court properly
granted the defendants’ motions to dismiss. Accordingly, we af-
firm the district court’s order dismissing McCoig’s complaint.
AFFIRMED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482523/ | 21-551-cv
M.A. v. Rockland County Department of Health
In the
United States Court of Appeals
For the Second Circuit
August Term, 2021
No. 21-551
M.A., on behalf of his minor children, H.R. & M., M.C., on behalf of her minor
child, R.J., W.D., on behalf of his minor children, A. & J., N.D., on behalf of her
minor children, L.M. & P., E.E., J., on behalf of their minor children, A. & S., J.J., on
behalf of her minor child R., L.V.G., on behalf of his four minor children, P.J., on
behalf of his minor child A., D. on behalf of their minor children, S. & O., R.J. on
behalf of their minor children S. & O., K.K., on behalf of her minor children M. &
G., L.K. on behalf of his minor child L., M.K., on behalf of his minor child, A.,
V.L., on behalf of their two minor children, V.M., on behalf of their minor child,
I., A.M., on behalf of their minor child, I., T. on behalf of their minor children Y.,
N. & S., M.M., on behalf of their minor children Y., N. & S., K.M.M., on behalf of
their minor children, S., K. & L., W.M., on behalf of their minor children, S., K. &
L., K.M., on behalf of their minor children, R. & A., J.O., on behalf of her minor
child, T., M.P., on behalf of his minor children, TR. & TE., L.P., on behalf of her
minor child, M., M.R., on behalf of her minor children, R. & E., J.R., T.T., on behalf
of his minor child, M., Y.T., on behalf of her minor child, Y., J.E., M.O.,
Plaintiffs-Appellants,
v.
ROCKLAND COUNTY DEPARTMENT OF HEALTH, DR. PATRICIA SCHNABEL RUPPERT,
in her official capacity as Commissioner and in her individual capacity,
1
ROCKLAND COUNTY, ED DAY, in his official capacity as County Executive and in
his individual capacity, 1
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of New York
No. 19-cv-2066
(Argued: June 14, 2022; Decided: November 9, 2022)
Before: POOLER, PARK, and LEE, Circuit Judges.
Plaintiffs-Appellants, who are the parents of minor children enrolled in the
Green Meadow Waldorf School or the Otto Specht School and are residents of
Rockland County, New York, bring this action against the Rockland County
Department of Health and several Rockland County officials asserting various
claims, including a violation of the Free Exercise Clause of the First Amendment,
based on orders which excluded children who were not vaccinated against
measles from attending school and an emergency declaration which barred
unvaccinated children, other than those with medical exemptions, from places of
public assembly.
Defendants subsequently moved for summary judgment, and the district
court granted their motion in full. We disagree with the district court’s dismissal
of Plaintiffs’ Free Exercise claim because this claim raises numerous factual
disputes—including whether there is evidence of religious animus, to whom the
emergency declaration applied, and what the County’s purpose was in enacting
the declaration—that prevent Defendants from prevailing on summary judgment.
1The Clerk of the Court is respectfully directed to amend the official caption to
conform to the above.
2
For the reasons explained below, we VACATE in part as to the grant of
summary judgment on the Free Exercise claim, REVERSE the district court’s
dismissal of Plaintiffs’ claims, and REMAND for trial on the Free Exercise claim
and for consideration of whether partial summary judgment for the Defendants is
warranted on the remaining claims.
Judge Park concurs in a separate opinion.
MICHAEL H. SUSSMAN, Sussman &
Associates, Goshen, New York, for
Plaintiffs-Appellants.
LARRAINE FEIDEN, Principal Assistant
County Attorney (Patrick John
Fischer, Principal Assistant County
Attorney, on the brief), for Thomas E.
Humbach, County Attorney, County
of Rockland Department of Law,
New City, New York, for Defendants-
Appellees.
EUNICE C. LEE, Circuit Judge:
Plaintiffs-Appellants, who are the parents of minor children enrolled in the
Green Meadow Waldorf School or the Otto Specht School and are residents of
Rockland County, New York, bring this action against the Rockland County
Department of Health and several Rockland County officials asserting various
claims, including a violation of the Free Exercise Clause of the First Amendment,
3
based on orders which excluded children who were not vaccinated against
measles from attending school and an emergency declaration which barred
unvaccinated children, other than those with medical exemptions, from places of
public assembly.
Defendants subsequently moved for summary judgment, and the district
court granted their motion in full. We disagree with the district court’s dismissal
of Plaintiffs’ Free Exercise claim because this claim raises numerous factual
disputes—including whether there is evidence of religious animus, to whom the
emergency declaration applied, and what the County’s purpose was in enacting
the declaration—that prevent Defendants from prevailing on summary judgment.
For the reasons explained below, we VACATE in part as to the grant of
summary judgment on the Free Exercise claim, REVERSE the district court’s
dismissal of Plaintiffs’ claims, and REMAND for trial on the Free Exercise claim
and for consideration of whether partial summary judgment for the Defendants is
warranted on the remaining claims.
BACKGROUND
Beginning in October 2018, Rockland County experienced a measles
outbreak—the largest outbreak in New York since measles was declared
4
eradicated in 2000. The Rockland County Department of Health (“RC DOH”),
including Defendant-Appellee Patricia Schnabel Ruppert, the Commissioner of
Health of the Rockland County Health District, coordinated with the New York
State Department of Health (“NY DOH”) to identify cases and implement contact
tracing methods. Isolation at home was recommended for those who had been
exposed and lacked immunity. However, cases began to spread.
That same month, RC DOH began to issue temporary orders of exclusion to
schools with one or more measles case, requiring that unvaccinated and partially
vaccinated children stay home. After cases continued to rise, NY DOH and RC
DOH broadened their school exclusion orders on November 1, 2018, to reach
schools without infected students, but with low vaccination rates, if those schools
were in close geographic proximity to the areas with the highest concentration of
confirmed cases. The NY DOH identified two zip codes with the highest
concentrations of confirmed cases, which cover approximately eleven square miles
and primarily contain Hasidic Jewish communities. At first, a low vaccination rate
was considered under 70%, but since less restrictive means did not quell the
outbreak, Ruppert upped the low vaccination rate designation to 80% and then
95%.
5
On December 3, 2018, RC DOH ordered the Green Meadow Waldorf School
and its sister school, the Otto Specht School (collectively, “GMWS”), to exclude all
non-vaccinated students for twenty-one days because it was in one of the
identified zip codes and its vaccination rate was only about one-third of students
(“First Exclusion Order”). Prior to the start of the measles outbreak, all of
Plaintiffs’ children had previously received religious exemptions to vaccination,
including for measles, from GMWS. 2 However, the First Exclusion Order and the
subsequent exclusion orders provided no religious or medical exemptions. By
December 21, 2018, 105 cases had been reported in Rockland County, up from
forty-five in late October, 3 and RC DOH issued another order informing GMWS
that if it reached the threshold of 95% vaccinated, then RC DOH would lift the
current exclusion order (“Second Exclusion Order”). RC DOH sent additional
exclusion orders to other schools with vaccination rates under 95% on January 3,
2019.
2Approximately forty-four percent of GMWS’s elementary school population
had religious exemptions to vaccination. However, GMWS is not a religious-
based school.
3New York State Measles Watch, N.Y. ST. DEP’T HEALTH,
https://nyshc.health.ny.gov/web/nyapd/measles-watch.
6
On January 30, 2019, RC DOH found that GMWS high school had achieved
a 95% vaccination rate for students under eighteen and lifted the high school’s
exclusion order. However, on February 7, 2019, GMWS was informed that as long
as any active case of measles existed in Rockland County, the exclusion orders on
the lower school would not be lifted until the school achieved a 95% vaccination
rate or forty-two days passed without any new cases (“Third Exclusion Order”).
These Exclusion Orders formed the basis for Plaintiffs’ initial complaint in this
action, which was filed in federal court on March 6, 2019, and alleged various
claims against RC DOH and Defendant Ruppert.
In March 2019, NY DOH reported that Rockland County had seen a total of
152 measles cases since the outbreak began in October, which included a rise in
cases from the 116 cases that had been reported in January. On March 26, 2019,
Defendant-Appellee Ed Day, Rockland County Executive, issued a Local State of
Emergency Declaration (the “Emergency Declaration” or the “Declaration”),
barring unvaccinated children under the age of eighteen, except for those with a
medical exemption or documented serological immunity, from places of public
assembly, including schools. The Declaration provided that:
From 12:01 a.m. March 27, 2019 to 11:59 p.m. on April 25, 2019, no
parent or guardian of a minor or infant under the age of 18, shall
7
cause, allow, permit, or suffer a minor or infant under their
supervision, to enter any place of public assembly in Rockland
County, if that minor or infant is not vaccinated against measles for
any reason other than being serologically immune to measles as
documented by a physician, or prevented from receiving a measles
vaccination for a medical reason documented by a physician, or
because the infant is under the age of 6 months.
Joint App’x at JA-1648. At his deposition, Day testified that he issued the
Declaration after Ruppert expressed concern regarding a possible rise in measles
during the upcoming holiday season of Easter and Passover. Ruppert, however,
testified that she “had no direct role” in the development of the Declaration. Joint
App’x at JA-356.
On April 3, 2019, in an Article 78 proceeding before the Supreme Court,
County of Rockland, and while the federal lawsuit was still pending, Plaintiffs
sought a preliminary injunction ordering Rockland County to rescind the
Emergency Declaration and Third Exclusion Order. See Order to Show Cause,
W.D. v. Cnty. of Rockland, No. 31783/2019 (Sup. Ct. Rockland Cnty. Apr. 3, 2019),
ECF No. 2. The court granted the motion on April 5, 2019. W.D. v. Cnty. of
Rockland, 101 N.Y.S.3d 820, 824 (Sup. Ct. 2019). On April 19, 2019, the Second
Department denied Rockland County’s motion for leave to appeal and to stay
enforcement of the Supreme Court’s ruling. Decision & Order on Motion, W.D. v.
8
Cnty. of Rockland, No. 2019-03666 (N.Y. App. Div. 2d Dep’t Apr. 19, 2019), ECF No.
45.
Later in April, Day and Ruppert lobbied New York legislators to repeal New
York State’s statutory religious exemption to the vaccine requirement for school
children, which requires vaccination against measles. In support of the repeal,
Day stated: “There’s no such thing as a religious exception. The bottom line here
is that in addition to the fear factor, we have, we have babies in ICU’s. We’ve had
a baby born with measles. When are we going to wake up and say, ‘you know
something, let’s do the right thing here . . . .’” Joint App’x at JA-1724, JA-2195. Day
also characterized “anti-vaxxers” as “loud, very vocal, also very ignorant.” Joint
App’x at JA-2186. The New York legislature passed a bill repealing all religious
exemptions for vaccination on June 13, 2019. S. 2994A, 2019-2020 S., Reg. Sess.
(N.Y. 2019). On September 25, 2019, Rockland County declared an end to the
resurgence.
In their amended complaint in federal court, which added Day and the
County as Defendants, as well as claims based on the Emergency Declaration,
Plaintiffs alleged a violation of procedural due process, violation of the First
Amendment Free Exercise Clause, violation of the Fourteenth Amendment Equal
9
Protection Clause, and violation of the right to publicly assemble under the First
Amendment. Plaintiffs claimed that the Exclusion Orders and Emergency
Declaration impermissibly targeted them based on their sincerely held religious
beliefs. Following discovery, Defendants moved for summary judgment on all
claims.
The district court granted Defendants’ motion in full. W.D. v. Rockland
Cnty., 521 F. Supp. 3d 358, 371 (S.D.N.Y. 2021). As relevant to Plaintiffs’ Free
Exercise claim, the district court found that the Emergency Declaration prohibiting
unvaccinated children, except those with a medical exemption, from assembly in
certain public places was “subject to rational basis review because it [was] both
facially neutral and generally applicable.” Id. at 397. As to neutrality, the district
court observed that the Declaration applied to all “children between six months
and eighteen years old who were unvaccinated ‘for any reason,’ except those with
documented medical reasons preventing vaccination or those deemed
serologically immune.” Id. at 398. Moreover, the Declaration applied equally to all
types of gatherings and did not distinguish between religious and non-religious
children. Id. at 398–400. The district court found no disputed facts as to
discriminatory intent, despite Day’s comments regarding “anti-vaxxers,” because
10
those comments “d[id] not raise a triable issue of fact as to discriminatory intent
because none of Day’s statements are derogatory, nor do they indicate ‘active
hostility’ towards religion.” Id. at 400–01 (citation omitted).
The district court concluded that the Declaration was generally applicable
because it “impose[d] identical burdens on religious and non-religious conduct”
and observed that the Declaration applied to children other than those with
religious affiliations, including those who were homeschooled or were not
vaccinated for non-religious reasons. Id. at 402–03. Plaintiffs argued that because
the Declaration provided only a medical exemption, it was underinclusive, and
likely targeting religion, given that children who are unvaccinated for medical
reasons are “just as likely” as children unvaccinated for religious reasons “to
become infected and spread the virus” if permitted to gather in public places. Id.
at 403. Rejecting Plaintiffs’ argument, the court explained that “the medical
exemption was created to control the measles outbreak by encouraging
vaccination” of all those who could be vaccinated, “while protecting those who
could not be inoculated for medical reasons.” Id.
Applying rational basis review, the district court found that the Emergency
Declaration was rationally related to Defendants’ interest in controlling measles.
11
Id. at 406–07. Next, in the alternative, the district court evaluated the Declaration
under strict scrutiny, finding that the interest in quelling the measles outbreak was
compelling and that the Declaration was narrowly tailored in light of “Defendants’
previous unsuccessful efforts, the medical data and their limited resources in
March 2019.” Id. at 407–08. Finally, the district court found that Plaintiffs’
procedural due process claim, Equal Protection Clause claim, and freedom of
assembly claim all failed. Id. at 381–96, 409–14. This appeal, which challenges the
Exclusion Orders and Declaration, followed.
“We review a district court’s grant of summary judgment de novo,
construing the evidence in the light most favorable to the party opposing summary
judgment and drawing all reasonable inferences in her favor.” Guan v. City of N.Y.,
37 F.4th 797, 804 (2d Cir. 2022). Summary judgment is appropriate where “the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
For the reasons explained below, we VACATE the district court’s grant of
summary judgment for Defendants as to the Free Exercise claim, REVERSE the
district court’s dismissal of Plaintiffs’ claims, and REMAND for trial on the Free
12
Exercise claim and consideration of whether partial summary judgment is
warranted on the remaining claims.
DISCUSSION
Because there are factual issues relevant to whether the Emergency
Declaration was neutral and generally applicable, the district court erred in
granting summary judgment in favor of Defendants on Plaintiffs’ claim that the
Emergency Declaration violated their rights under the Free Exercise Clause. While
a reasonable juror could conclude that Day’s statements evinced religious animus,
rendering the Declaration not neutral, a reasonable juror could also conclude the
opposite. Similarly, there are disputes of fact regarding whether the Declaration,
in practice, primarily affected children of religious objectors or whether there was
a sizable population of children who were unvaccinated for a variety of non-
medical and non-religious reasons. There are also disputes as to whether the
County’s purpose in issuing the Declaration was to stop the spread of measles or
to encourage vaccination. Given these fact-intensive issues, the district court’s
grant of summary judgment on Plaintiffs’ Free Exercise Claim was erroneous. 4
4On appeal, Plaintiffs challenge the district court’s decision in its entirety. Because
we find that the district court’s dismissal of Plaintiffs’ Free Exercise claim was
13
The Free Exercise Clause protects “the ability of those who hold religious
beliefs of all kinds to live out their faiths in daily life through ‘the performance of
(or abstention from) physical acts.’” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407,
2421 (2022) (quoting Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 877
(1990)). However, “the right of free exercise does not relieve an individual of the
obligation to comply with a valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).” Smith, 494 U.S. at 879 (citation and internal quotation marks
omitted). Where a law is both neutral and generally applicable, rational basis
review applies. See Kane v. de Blasio, 19 F.4th 152, 166 (2d Cir. 2021). On the other
hand, where a law is not neutral or generally applicable, “this Court will find a
First Amendment violation unless the government can satisfy ‘strict scrutiny’ by
demonstrating its course was justified by a compelling state interest and was
narrowly tailored in pursuit of that interest.” Kennedy, 142 S. Ct. at 2422 (quoting
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)). We
address neutrality and general applicability in turn.
erroneous, we reverse as to that claim, vacate the district court’s grant of summary
judgment as a whole, and remand for consideration of whether partial summary
judgment is justified on the remaining claims.
14
I. Neutrality
“[I]f the object of a law is to infringe upon or restrict practices because of
their religious motivation, the law is not neutral.” Lukumi, 508 U.S. at 533. “To
determine the object of a law, we must begin with its text, for the minimum
requirement of neutrality is that a law not discriminate on its face.” Id. We find
that the Declaration is facially neutral in that it applies to all unvaccinated
children, but for two limited exceptions, in prohibiting them from entering a place
of public assembly. See We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 281 (2d
Cir. 2021) (finding a rule facially neutral because it applied to “all
‘personnel,’ . . . aside from those who qualify for the narrowly framed medical
exemption”). However, “[o]fficial action that targets religious conduct for
distinctive treatment cannot be shielded by mere compliance with the requirement
of facial neutrality.” Lukumi, 508 U.S. at 534.
We therefore consider whether the Declaration “had as [its] object the
suppression of religion” by assessing factors including, “the historical background
of the decision under challenge, the specific series of events leading to the
enactment or official policy in question, and the legislative or administrative
history, including contemporaneous statements made by members of the
15
decisionmaking body.” Id. at 540; see also Masterpiece Cakeshop, Ltd. v. Colo. C.R.
Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting Lukumi, 508 U.S. at 540).
“Government fails to act neutrally when it proceeds in a manner intolerant of
religious beliefs or restricts practices because of their religious nature.” Fulton v.
City of Phila., 141 S. Ct. 1868, 1877 (2021).
Plaintiffs argue that the object of the Declaration was to burden the exercise
of their religious beliefs because Day and Ruppert acted with discriminatory
intent, evinced by Day’s statements made between April and June 2019.
Defendants respond that the statements do not illustrate discriminatory intent
because they were made several weeks after the Declaration was rescinded and in
a different context.
Given the fact-intensive nature of this inquiry, Defendants have not met the
high bar required to prevail at the summary-judgment stage. Contrary to the
district court’s holding, we conclude that a reasonable juror could find that
Defendants acted with religious animus. Notably, Day testified that he issued the
Declaration after Ruppert expressed concern over a rise in measles cases during
the Easter and Passover holidays. Moreover, in connection with his lobbying for
the repeal of a religious exemption to vaccination, Day commented that “[t]here’s
16
no such thing as a religious exception” and characterized “anti-vaxxers” as “very
ignorant.” Joint App’x at JA-1724. 5 Based on these facts, a reasonable juror could
find the Declaration was designed “to target religious objectors to the vaccine
requirement because of their religious beliefs.” We The Patriots, 17 F.4th at 284. As
the Supreme Court has recognized, the government “cannot act in a manner that
passes judgment upon or presupposes the illegitimacy of religious beliefs and
practices.” Masterpiece Cakeshop, 138 S. Ct. at 1731.
Assessing the relevance of statements by public officials to the question of
religious animus is often context specific. In We The Patriots, this Court held that
statements made by Governor Kathy Hochul at a press conference, including that
her “‘personal opinion’ [was] that no religious exemption is required” and “that
she was ‘not aware of’ any ‘sanctioned religious exemption from any organized
religion,’” did not evince religious animosity in connection with a vaccine
requirement for healthcare workers that did not provide a religious exemption. 17
F.4th at 283–84. Unlike here, however, Governor Hochul did not actually issue the
vaccination rule, see id. at 274 (the rule “was issued by the State’s Public Health
5At oral argument, Defendants’ counsel reiterated Day’s sentiments, referring to
Plaintiffs’ “so-called religious beliefs.” Arg. 22:21–25.
17
and Health Planning Council, a group of 25 healthcare professionals, including the
Commissioner of Health”), and her statements merely appeared to express “the
State’s litigation position” and “the fact . . . that many religious leaders have stated
that vaccination is consistent with their faiths,” id. at 283-84. Ultimately, given that
it was Day himself who issued the Declaration and indicated that the religious
holidays were a factor in doing so, and that Day later made derogatory comments
about “anti-vaxxers,” which may include religious objectors, the evidence could
support a finding of discriminatory intent.
On the other hand, a juror could find that there is no evidence of religious
animus. Although Day stated that he issued the Declaration after Ruppert
expressed concern regarding measles cases during the religious holidays, a juror
could also credit Ruppert’s testimony that she had no direct role in developing the
Declaration. Additionally, Day’s remaining statements postdated the Declaration
and were made in connection with repealing the religious exemption, not issuing
the Declaration. Cf. Masterpiece Cakeshop, 138 S. Ct. at 1729–30 (finding
contemporaneous statements were evidence of religious animus). A reasonable
juror could conclude that while Day’s statements were “insensitive,” see W.D., 521
F. Supp. 3d at 401, he was merely expressing a concern for the community’s health,
18
not a hostility towards religion. At bottom, this presents the sort of close factual
question that should be left to the jury. The district court erred in holding
otherwise.
II. General Applicability
The general applicability requirement prohibits the government from “in a
selective manner impos[ing] burdens only on conduct motivated by religious
belief.” Lukumi, 508 U.S. at 543. “A law . . . lacks general applicability if it
prohibits religious conduct while permitting secular conduct that undermines the
government’s asserted interests in a similar way.” Fulton, 141 S. Ct. at 1877; see
Cent. Rabbinical Cong. of the U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene,
763 F.3d 183, 197 (2d Cir. 2014) (“A law is therefore not generally applicable if it is
substantially underinclusive such that it regulates religious conduct while failing
to regulate secular conduct that is at least as harmful to the legitimate government
interests purportedly justifying it.”). “[W]hether two activities are comparable for
purposes of the Free Exercise Clause must be judged against the asserted
government interest that justifies the regulation at issue,” and “[c]omparability is
concerned with the risks various activities pose.” We The Patriots, 17 F.4th at 285
(quoting Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021)).
19
Plaintiffs argue that the Declaration is not generally applicable because the
medical exemption permits those who are unvaccinated for non-religious reasons
to assemble in public places. Plaintiffs characterize unvaccinated children who are
subject to the Declaration as falling into two groups—children with medical
exemptions and the children of religious objectors—with only the latter being
prohibited from public gatherings. Defendants counter that the Declaration
applied to multiple categories of non-religious, unvaccinated children, affecting
them to the same extent as Plaintiffs’ children.
Given the underdeveloped record, Defendants have failed to meet the
burden needed to prevail without trial on this issue. In finding the Declaration
generally applicable, the district court accepted the assertion that the Declaration
prohibited children other than those of religious objectors from public assembly.
See W.D., 521 F. Supp. 3d at 402. However, based on the record before us, we
cannot determine whether the Declaration affected only the two groups identified
by Plaintiffs or affected the other groups posited by the district court, such as
homeschooled students or those who objected to vaccination on philosophical
20
grounds. 6 Much like the question of religious animus, the question of who was
actually affected by the Declaration should be put before the factfinder.
Additionally, there is a dispute regarding what governmental interest the
Declaration was intended to serve, which is relevant to the question of whether
the Declaration was “substantially underinclusive,” and therefore, not generally
applicable. See We The Patriots, 17 F.4th at 284–85. Rockland County’s interest in
issuing the Declaration could be to stop the transmission of measles, which might
lead a factfinder to question why there was a medical exemption, where, as
Plaintiffs point out, medically exempt children “are every bit as likely to carry
undetected measles [as] a child with a religious exemption and are much more
vulnerable to the spread of the disease and serious health effects if they contract
it.” Appellants’ Br. at 56.
On the other hand, as advocated by Defendants, the purpose of the
Declaration could be to encourage vaccination. If this is the purpose, then the
Declaration could be viewed as a reasonable method for doing so. The language
of the Declaration itself, however, does little to resolve this issue, stating both that
6The district court’s citations to bolster this fact—which are to Defendants’
memoranda of law, see W.D., 521 F. Supp. 3d at 402—provide little factual
support.
21
“[i]t has been found that a meaningful portion of the County’s residents are not
vaccinated against the measles, which permits the outbreak to continue,” and that
the Declaration must be issued to “protect the infants, infirm, and ill of this County
who are unable to be vaccinated against the measles or who are
immunocompromised.” Joint App’x at JA-1647. This is another fact-intensive
question that should be explored at trial through the examination of evidence that
supports or undermines the two suggested purposes, including whether there is
any evidence to suggest that the County’s stated purpose is pretextual. See We The
Patriots, 17 F.4th at 285.
In sum, because factual questions about the Emergency Declaration pervade
the issues of neutrality and general applicability, the question of what level of
scrutiny applies cannot be resolved on summary judgment, and Defendants fail to
meet the high burden required to prevail at this stage. Therefore, the district
court’s grant of summary judgment for Defendants on Plaintiffs’ Free Exercise
claim was in error.
CONCLUSION
For the reasons set forth above, we VACATE in part as to the grant of
summary judgment on the Free Exercise claim, REVERSE the district court’s
22
dismissal of Plaintiffs’ claims, and REMAND for trial on the Free Exercise claim
and for consideration of whether partial summary judgment for the Defendants is
warranted on the remaining claims.
23
21-551-cv
M.A. v. Rockland Cnty. Dep’t of Health
PARK, Circuit Judge, concurring:
In the spring of 2019, Rockland County quarantined children
who were unvaccinated for measles for religious reasons—
prohibiting them from entering any public place—but not children
who were unvaccinated with medical exemptions. County officials
did not even try to hide their reasons for engaging in this “religious
gerrymander[ing],” which served to isolate, target, and burden
Plaintiffs’ religious practices. 1 Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 534 (1993) (citation omitted). To them,
Plaintiffs were “anti-vaxxers” who were “loud, very vocal, [and] also
very ignorant.” Special App’x at SA-12. “There’s no such thing as
a religious exemption,” they said, and Plaintiffs—all of whom
received valid exemptions from the State of New York—held beliefs
that “were debunked years ago.” Id. at SA-13. The officials’
justification for the mass quarantine was based on their concerns
about the spread of measles during the “Easter and Passover
1 At first, the County’s temporary orders of exclusion—which
included neither medical nor religious exemptions—targeted only schools
that actually had measles cases. But the First Exclusion Order relied on
supposed “mapping technology” to select schools that had no connection
to the outbreak other than proximity and vaccination rates below 70%.
Special App’x at SA-7. These criteria necessarily targeted nearby schools
with high numbers of religious objectors, especially in the Hasidic
community. Cf. Agudath Isr. of Am. v. Cuomo, 983 F.3d 620, 624 (2d Cir.
2020) (Governor segmenting population into “zones” with varying
religious constituencies). And once vaccination rates increased in those
schools, officials simply moved the goalposts, requiring higher percentage
thresholds. After this sort of targeting was no longer possible (because the
County imposed a broad-based, County-wide order via the Emergency
Declaration), the County included a medical exemption, while students
with religious objections were still subject to the mandate.
holidays.” Id. at SA-12. Even at oral argument before this Court,
Defendants’ counsel questioned Plaintiffs’ “so-called religious
beliefs.” Oral Arg. Tr. at 22:10.
I agree with the majority that the district court erred by
granting summary judgment for Defendants and by dismissing
Plaintiffs’ claims. Plaintiffs did not move for summary judgment, so
we are not presented today with the question whether they would
have prevailed if they had done so. The majority refrains from
applying Employment Division v. Smith, 494 U.S. 872 (1990), finding
close factual issues to be resolved at trial. But in my view, a
straightforward application of Smith to facts not in dispute shows that
the Emergency Declaration was neither neutral nor generally
applicable.
The Emergency Declaration was not neutral because its
“object” was to burden Plaintiffs’ choices “at least in part because of
their religious character.” Kennedy v. Bremerton Sch. Dist., 142 S. Ct.
2407, 2422 (2022) (citation omitted). A review of the “historical
background,” “contemporaneous statements made by members of
the decisionmaking body,” and the “specific series of events leading
to the enactment” of the Emergency Declaration reveals its
discriminatory object. Lukumi, 508 U.S. at 540. County Executive
Day publicly defended the Declaration as an effort to address the risk
of rising measles cases during religious holidays, and he made
numerous disparaging comments about religious objectors as part of
his effort to repeal the religious exemption from the statewide vaccine
mandate. See Maj. Op. at 16–17.
Moreover, the Emergency Declaration was not generally
applicable because, by allowing a medical exemption, it “prohibit[ed]
2
religious conduct while permitting secular conduct that
undermine[d] the government’s asserted interests in a similar way.”
Fulton v. City of Phila., 141 S. Ct. 1868, 1877 (2021); see also Tandon v.
Newsom, 141 S. Ct. 1294, 1296 (2021) (“Comparability is concerned
with the risks various activities pose, not the reasons” for them.).
The County even conceded at oral argument that children who were
medically exempted from the mandate were given free rein
throughout the County, even though they posed identical risks to the
public as children seeking a religious exemption.
The Emergency Declaration was neither neutral nor generally
applicable and should thus be subject to strict scrutiny under Smith.
The district court erred by applying rational-basis review in the first
instance. See Lukumi, 508 U.S. at 546.
Although the district court applied strict scrutiny in the
alternative, it improperly deferred to the “Defendants’ authority as
elected representatives to use their best judgment.” Special App’x at
SA-62. Courts “may not defer” to the executive on constitutional
questions “simply because he is addressing a matter involving science
or public health.” Agudath Isr. of Am. v. Cuomo, 983 F.3d 620, 635 (2d
Cir. 2020); see Lukumi, 508 U.S. at 546 (noting that strict scrutiny
should not be “watered . . . down but really means what it says”
(cleaned up)).
The majority opinion does not address whether the record
already supports a conclusion that the Emergency Declaration fails
strict scrutiny and Plaintiffs would thus be entitled to summary
judgment. On that understanding, I join the majority in vacating the
grant of summary judgment for Defendants and remanding for trial
on Plaintiffs’ free-exercise claim.
3
I note two additional points. First, during the events at issue
in this case, New York amended its school-vaccination requirements
to eliminate the state’s religious exemption altogether—while still
allowing medically exempt students to enter school classrooms. See
2019 N.Y. Laws ch. 35, § 1 (repealing N.Y. Pub. Health Law § 2164(9)).
Indeed, Defendants made their derogatory comments about
Plaintiffs’ religious beliefs while lobbying New York state legislators
to repeal the religious exemption (after enforcement of the Emergency
Declaration had been enjoined 2 ). New York’s school-vaccination
laws are now an extreme outlier. 3 We have not yet had occasion to
review the constitutionality of New York’s new regime. 4
Second, this case highlights the difficulty of applying Smith.
General applicability turns on whether an exception “undermines the
purposes of the law” at issue or “undermines the government’s
asserted interests in a similar way” that a requested religious
exemption would. Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d
2 See W.D. v. Cnty. of Rockland, 101 N.Y.S.3d 820 (Sup. Ct. 2019).
3 See States with Religious and Philosophical Exemptions from School
Immunization Requirements, Nat’l Conf. St. Legislatures (May 25, 2022),
https://www.ncsl.org/research/health/school-immunization-exemption-
state-laws.aspx (listing only six states with neither religious nor personal-
belief exemptions, three of which repealed such exceptions within the last
few years).
4 In accordance with Smith, we said that “New York could
constitutionally require that all children be vaccinated in order to attend
public school” and that the state “goes beyond what the Constitution
requires by allowing an exemption for parents with genuine and sincere
religious beliefs.” Phillips v. City of N.Y., 775 F.3d 538, 543 (2d Cir. 2015).
But we have never said that allowing some unvaccinated students (i.e., those
with medical exemptions) to mingle with their peers in schools, while
excluding religious objectors, would be constitutional.
4
Cir. 2004) (Alito, J.); Fulton, 141 S. Ct. at 1877. But laws can have
various purposes and advance various interests. The Emergency
Declaration, for example, could be viewed as an effort aimed
narrowly at preventing the spread of measles, broadly at promoting
public health, or something in between at both stopping the spread
and “encouraging vaccination of all those for whom it was medically
possible.” Special App’x at SA-52. The more narrowly a law’s
purpose is construed, the more difficult it is for an exception to
undercut it—at a granular enough level, the purpose of any law is
simply to “appl[y] to everything it applies to.” Douglas Laycock &
Steven T. Collis, Generally Applicable Law and the Free Exercise of
Religion, 95 Neb. L. Rev. 1, 16 (2016). Conversely, a law’s purpose
could be framed broadly—for example, “to promote public health”—
so that an exception would rarely undermine it. See Does 1–3 v. Mills,
142 S. Ct. 17, 20 (2021) (Gorsuch, J., dissenting from denial of
application for injunctive relief) (“[A]n error this Court has long
warned against [is] restating the State’s interests . . . at an artificially
high level of generality.”).
In short, the general-applicability test embraces a purposivist
approach that is vulnerable to manipulation and arbitrariness. And
although the inquiry is highly malleable, the consequences are
entirely inflexible: Pass the test and the law faces only rational-basis
review; fail, and it is subject to strict scrutiny. See Fulton, 141 S. Ct.
at 1876. At least with ordinary analysis under the tiers of scrutiny,
constitutional burdens can be weighed against the government’s
interests as a whole. But with Smith, the inquiry is all-or-nothing—
an exception either undermines a law’s particular, overriding
“purpose,” or it does not. See id.
5
Unlike recent cases arising from governmental responses to the
COVID-19 pandemic, this appeal comes to us free from the exigencies
of emergency motion practice and with the benefit of a summary-
judgment record. The majority’s careful opinion rightly holds based
on the record below that the district court’s grant of summary
judgment for Defendants was in error. But courts will continue to
struggle in cases raising similar issues in emergency proceedings
when timeframes are short, records are undeveloped, and the science
is uncertain. Until Smith is overruled, its ill-defined test means that
free-exercise rights risk being perennially trumped by “the next
crisis.” Dr. A v. Hochul, 142 S. Ct. 2569, 2571 (2022) (Thomas, J.,
dissenting from denial of certiorari). For today at least, our Court
has not fallen into that trap, and I join its opinion in full.
6 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487256/ | Gexjbb, J.
(dissenting):—My opinion is that a juror who has such a disregard for the gravity of the situation where a human life is at stake, and has the levity of mind to go to counsel on either side and say what this juror has admitted he said, is unfit to sit and deal seriously and gravely and impartially with a case involving the issue of life and death. Therefore, I say he ought not to be allowed to sit in the case at all.
I do not think that his disqualification would lead to every juror doing that thing. In my opinion it is a disregard of his duty, *348summoned and sworn as he is, as a juror, and in my opinion it is a contempt of Court; and if the jurors who repeat this thing are punished by the Court, as in my opinion, the Court has the power to do, it would stop this thing as it ought to.
The defendant excepted to the majority ruling of the Court.
PRAYERS OR THE PART OP THE STATE.
The State prayed the Court to instruct the jury in part as follows :
First. What constitutes murder of the first degree?
Second. That the statements of the prisoner on the night of the seventeenth of May in the saloon at Fourth and Orange streets, that he would get the sucker, or get the son of a bitch before he left town, and also his statements in the house at 227 Orange street, that he would cover the deadly instrument, the baseball bat? which he carried in his hand, with blood and gore, with gray matter, that he would decorate the deadly weapon, together with the fact that he stood over his prostrate victim, and struck him twice over the head after he lay senseless upon the ground, must be taken by the jury as absolutely conclusive as to express malice if they believe such evidence.
Third. That every person is presumed to be sane until the contrary is shown, and the burden of proving insanity rests upon the defendant which he must establish beyond a reasonable doubt and to the satisfaction of the jury, before it can shield him from the natural consequences of his own deliberate act.
State vs. Danby, Houst. Crim. Cases, 173; State vs. Harrington, 9 Houst., 376; State vs. Thomas, 1 Houst. Crim. Cases, 525-530.
Fourth. To excuse one from crime on the ground of insanity it *349must be established to the satisfaction of the jury not only that the defendant had insane delusions or was, at times, melancholy, but that he was insane upon the particular act committed; otherwise it would be no excuse for his crime, and he is equally guilty as if he had no delusion or melancholia and was perfectly sane. In this State the test has invariably been, has the defendant the ability to comprehend the difference between right and wrong in respect to the very act with which he stands charged ?
State vs. Windsor, 5 Harr., 512; State vs. Dillehunt, 3 Harr., 551; State vs. Hurley, 1 Houst. Crim. Cases, 371.
Fifth. That a jury is never warranted in inferring that a man is insane from the mere fact of his committing a crime, or from the enormity of the crime, however shocking and repulsive in its nature it may be, for the law assumes that there is a bad motive and a wicked heart, and that these shocking details were premeditated by malice.
Commonwealth vs. Lynch, 2 Lawson’s Criminal Defences, 148.
PRAYERS ON THE PART OF THE DEFENDANT.
First. To constitute a crime against human law, there must be, first a vicious will. It is a rule established by legal authorities, that an act and an evil intent must combine to constitute, in law, a crime.
4 Blackstone Com. (Chitty Ed.) 14 and 21; 1 Bishop Crim. Laws, Sec. 20.
Second. While the law holds every man against whom there is proof of the commission of crime to have been of sound mind at the time he did it, this presumption is not a conclusive one, but may be successfully rebutted by proof, provided it be satisfactory to the jury. If such proof be sufficient to create, in the minds of the jury, a well founded, reasonable doubt upon the point of the sanity of the prisoner at the time the act was done, the prisoner is to be given the benefit of it; for the law humanely holds every man to be innocent until shown by adequate proof to be guilty. When the pre*350sumption of sanity is made doubtful by countervailing evidence, facts or circumstances,—the doubt, in a criminal case, is not to be resolved by what is called the superior weight of the State’s testimony merely; but such testimony must be of so convincing a character as, upon consideration by the jury, removes the doubt altogether. Not until all reasonable doubts of the criminality of the prisoner are removed, after a calm, deliberate, impartial and unbiased consideration of all the facts and circumstances shown in proof both for and against him, can the jury properly render a verdict of guilty.
If, upon all the presumptions of law and evidence in this case, there should remain in the minds of the jurors a reasonable doubt of the prisoner’s entire accountability for the crime charged, then they must give him the benefit of it and find him not guilty by reason of insanity.
State vs. Reidell, 9 Houst. 480, 481, 483.
Third. The existence of previous cases of insanity in the defendant’s family, if proved to the satisfaction of the jury, must be considered by them in determining the question of the defendant’s criminal capacity at the time the alleged act was committed.
State vs. Windsor, 5 Harr., 512.
Lore, C. J., charging the jury:
Gentlemen of the jury:—The prisoner, Montylaoo A. Cole, is charged in the indictment with murder of the first degree.
The indictment contains three counts. The first count charges that death resulted from a mortal wound inflicted on the left side of the head; the second from such wound inflicted on the right side of the head; the third from like wounds inflicted on both sides of the head. It is conceded that there is no evidence sustaining the second count, charging a mortal wound on the right side of the head, therefore the second count must be left out of your consideration. You have only to deal with the first and third counts.
Murder of the first degree consists in killing a human being *351with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death; that is to say in general, when it is committed with a sedate, deliberate mind and formed design to take life, or do some great or serious bodily injury. Such design may be shown from the circumstances attending the act; such as the deliberate selection and use of a deadly weapon, a preconcerted hostile meeting, privily lying in wait, a previous quarrel or grudge, antecedent menaces or threats, or in the preparation of means to effect such design or intent.
Murder of the second degree is where there was no such delibrately formed design to take life, or to perpetrate or attempt to perpetrate a crime punishable with death; but where nevertheless the killing was without justification or excuse, without any provocation or without sufficient provocation to rebut malice and reduce the homicide to manslaughter.
Manslaughter is the unlawful killing of a human being without malice.
Malice is the test of murder, and in a legal sense, is the dictate of a wicked, depraved or malignant heart, and of a disposition to do the evil act. It may be indicated by the use of a deadly weapon, the manner in which such weapon is used, the declaration of intent to kill, and by expressions and indications of grudge» malice and anger, and any and all other like circumstances surrounding the act.
It is elementary law that an act and an evil intent must combine to constitute a crime. Human laws do not deal with the intent, which rests only in the mind but waits for its manifestation in some act before it imposes its penalties.
It is well settled in law, as a rule of universal application, that every man is presumed to contemplate and intend the ordinary and natural consequences of his own acts; so that if a deadly weapon be used against the person of another, as it has a direct tendency to destroy life, the intention to take life is a necessary conclusion from the nature and character of the act itself.
State vs. Pratt, 1 Houst. Crim. Cases, 263.
*352The defense relied upon by the prisoner is insanity. That is, that the prisoner by reason of insanity was incapable of forming ■and executing a criminal intent. It is claimed that on the part of both father and mother, insanity existed in his family.
That at the time of the homicide, by reason of excess in studying for his examination, overtaxing his strength, and other causes, that he was so demented as not to be responsible for his actions. Upon this defense the prisoner has rested his case, and if it be true, it is a complete defense.
“Insanity may be either total or partial in its character, so also it may be total and permanent, or total but temporary in duration.
“A person totally and permanently insane is incapable of •committing any crime whatever; because the will and judgment of a man, being overborne and obliterated by the malady, his act cannot, justly, be considered the voluntary act of a free agent, but rather the mere act of the body, without the consent of a directing or controlling mind. So in regard to total but temporary insanity3 if it be such for the time being as to totally overwhelm the reason and conscience, the will and judgment, the accused cannot justly be held criminally responsible for his acts done during the continuance of such temporary insanity.”
State vs. Pratt, 1 Houst. Crim. Cases, 266.
In order to exempt a person from responsibility for a criminal act, the controlling power of the insanity, whether arising from delusion or from real cause, must be so intense and overwhelming as utterly to deprive the party of his reason in regard to the act charged as criminal. The inquiry is always, in a case like this, narrowed down to this plain, sharp question, of the insanity of the person at the time, and in respect to the criminal act charged against him. Was he at the time, and as touching that act, sane or insane ? The question is not, whether he was insane on any subject whatever, but whether-he was insane with respect to the particular *353act charged against him. If the person had sufficient capacity at the time to distinguish between the right and the wrong of that particular act; if he had sufficient capacity to know that that act was wrong and the power to choose whether he would do it or not—he is responsible for it, and for all its fatal consequences. For after all has been said that can be said in elucidation of the subject, we are compelled to return to the plain and simple question, whether the person, at the time he committed the act, had sufficient mental capacity to distinguish between right and wrong in respect to that act and the power to choose whether or not he would do the act; if he had, he is responsible.
We call your attention to two primary or cardinal rules or tests which are to govern you in reaching your conclusion upon insanity as a defense for crime, as authoritatively established in this State.
The first great rule is this,—every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crime, until the contrary be proved to the satisfaction of the jury. This rule is fundamental and of universal application; it meets you at the very commencement of your inquiries and you must carry it with you in all your deliberations. You must, therefore, gentlemen, fully understand and remember, throughout all your investigations that the prisoner is to be considered by you to be a sane man and capable of committing crime until his insanity shall be satisfactorily established by the evidence. On this ground you must take your stand firmly and squarely, if you expect ever to arrive at a just and proper decision of this case.
The second great rule is; insanity being matter of defense, the burden of showing it lies on the prisoner. It must be proved as any other fact to the satisfaction of the jury. If the proof does not arise out of the evidence offered by the State, the prisoner must establish the fact of insanity by distinct evidence, and prove it to the satisfaction of the jury; otherwise the presumption of sanity *354or soundness of mind will remain unrebutted and in full force. Exhibitions of mere eccentricity of mind, manner or conduct will not excuse him from the consequences of his criminal act. You should not confuse insanity with drunkenness, anger, wrath or revenge. The law requires more than this; the proof must establish the fact, that the prisoner at the time he committed the act of killing, was incapable of distinguishing between right and wrong, in respect to that fatal act, and was without the power to choose whether or not he would do the act.
If upon a calm review and consideration of all the evidence you have a reasonable doubt of the guilt of the prisoner such as honest, candid and intelligent minds might entertain, that doubt should enure to his benefit. It must, however, be such a doubt as honest, conscientious men, acting under the solemn obligations of their oaths, in full view of all the testimony, feel themselves constrained to entertain.
State vs. Thomas, 1 Houst. Crim. Cases, 530; State vs. Manlove, Ibid, 217.
Applying the law as the Court has just given it to you, to the evidence in this case, you must reach your conclusion.
If you should be satisfied from the evidence that the prisoner, at the time he gave the mortal wounds, was laboring under such a disease of the mind as to render him, for the time being, incapable of distinguishing between the right and the wrong of that act or without the power to choose whether or not he would do the act, you should acquit him on the ground of insanity, and should so return your verdict.
But if you are satisfied that he was then capable of so distinguishing, and had the power of so choosing, you may if the evidence shall so warrant, find the prisoner guilty of murder of the first degree, or of murder of the second degree or of manslaughter.
Verdict, guilty of manslaughter. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487259/ | Grubb, J.,
charging the jury :
Gentlemen of the jury :—In this indictment Walter Brinte and John Jiner, alias John Joiner, the prisoners at the bar, stand charged with murder of the first degree, for the felonious killing, with express malice aforethought, of John R. Taylor, in the month of January of the present year, at Wilmington hundred, in this county. The first count of the indictment charges that the death of the said Taylor was caused by mortal wounds inflicted by Walter Brinte by the means and in the manner described therein, whilst the said John Jiner was aiding and abetting the said Brinte as his accomplice in committing said felonious assault; the second count charges that the death of Taylor was caused by mortal wounds inflicted by said Jiner whilst Brinte was aiding and abetting Jiner as his accomplice in the crime; and the third and last count of the *560indictment charges that the death of Taylor was caused by mortal wounds inflicted by each and both of said prisoners.
A statute of this state provides that “every person who shall abet, procure, command or counsel any other person or persons, to commit any crime, or misdemeanor, shall be deemed an accomplice and equally criminal as the principal offender, and shall be punished in the same manner and with the same punishment.” (Rev. Code, 1852, Chap. 133, Sec. 1). Therefore, if the jury is satisfied that either of the prisoners inflicted said mortal wounds, it is sufficient for the conviction of the other, who was, if you so find from the evidence, aiding and assisting in the felonious assault upon Taylor the one who actually inflicted them, because, in contemplation of law, it becomes the act of each and all of those who were co-operating and participating in the perpetration of the crime then and there committed.
Under any indictment for murder of the first degree, the jury may find the accused guilty of either murder of the first or second degree, or of manslaughter, according as the law and the evidence may warrant; but, unless they shall find the accused guilty of one of these three grades of homicide, they must acquit, and render a general verdict of not guilty.
Homicide is the killing of any human creature, and is of three kinds—justifiable, excusable,-and felonious.
Felonious homicide, at common law, is of two kinds, namely, murder and manslaughter, the difference between which consists principally in this : that in murder there is the ingredient of malice, whilst in manslaughter there is none, for manslaughter, when voluntary, arises from the sudden heat of the passions, but murder from the wickedness and malignity of the heart. Therefore manslaughter is defined to be the unlawful killing of another without malice, either express or implied, and without premeditation.
Murder is where a person of sound memory and discretion unlawfully kills any human being under the peace of the State, with malice aforethought, either express or implied. The chief *561characteristic of this crime, distinguishing it from manslaughter and every other kind of homicide, and therefore indispensably necessary to be proved, is malice preconceived or aforethought. This term, malice, is not restricted to spite or malevolence toward the deceased in particular, but, in its legal sense, it is understood to mean that general malignity and recklessness of the lives and personal safety of others which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Malice is implied by law from every deliberate, cruel act committed by one person against another, no matter how sudden such act may be. For the law considers that he who does a cruel act voluntarily does it maliciously.
Under the statute laws of this State (Rev. Code, 1852, Chap. 127, See’s 1-2), there are two degrees of murder, namely, murder of the first and murder of the second degree. The first is where the crime of murder is committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death; and the second degree is where the crime of murder is committed otherwise, and with malice aforethought implied by law. Express malice is proved by evidence of a sedate, deliberate purpose and formed design to kill another; and such purpose and design may be shown from the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, knowing it to be such, stealthily lying in wait, preconcerted plans, or the previous procurement or preparation of instruments, contrivances, or other means for slaying or doing great bodily harm to the deceased victim. These, however, are but some of the instances, given for the sake of examples or illustrations, in which the external or attending circumstances will evidence the sedate, deliberate mind and formed design to kill, or to do the party killed some bodily harm, for whenever in any other instance the attending circumstances evidence such a mind and design to do the act, and death ensues, it constitutes, in law, express malice aforethought, and murder of the first degree, under the statute, and is punishable with *562death, as where one, either from motives of hatred or revenge, or with a view to rob him of his money or get possession of any other thing about his person, eooly and deliberately forms the design in his mind to kill another, or wound and disable him for that purpose, and commits the act, either by lying in wait for him, or in any other manner, and his death ensues as the consequence of such bodily injury, it is likewise murder with express malice aforethought, and of the first degree, under the statute.
State vs. Goldsborough, Houst. Cr. Cas., 314.
Implied or constructive malice is an inference or conclusion of law from the facts found by the jury; and, among these, the actual intention of the prisoner becomes an important and material fact for, though he may not have intended to take away life or to do any personal harm, yet he may have been engaged in the perpetration of some other felonious or unlawful act from which the law raises the presumption of malice. It is the difference between express and implied or constructive malice aforethought which distinguishes murder of the first from murder of the second degree, except, however, that under our statute murder of the first degree may be committed when the malicious killing is done in perpetrating or attempting to perpetrate any crime punishable with death, as rape or arson is in this State, although from such a felonious act malice is merely implied or presumed by law. Therefore murder of the second degree is held to be proved where it is not satisfactorily shown by the evidence submitted to the jury that the killing was done with a deliberately formed design to take life, or in perpetrating or attempting to perpetrate any crime punishable with death, but is so shown that it was done suddenly, without justification or excuse, and without any provocation, or without provocation sufficient to reduce the homicide to the grade of manslaughter, or was done in perpetrating or attempting to perpetrate a felony not capitally punishable, or any unlawful act of violence from which the law raises the presumption of malice.
*563Having thus instructed you as to murder of the first and second degrees and the lesser grades of homicide, for your proper guidance in determining the guilt or innocence of the prisoners whom you have in charge, it is also proper to remind you that, as the law presumes every accused person to be innocent until he is proven guilty, the burden is upon the prosecution to prove beyond a reasonable doubt, by competent evidence, every essential ingredient of the crime charged in this indictment, before the prisoners, or either of them, can be found guilty thereof. But on the other hand, every sane man is presumed to intend that which is the ordinary and natural consequence of his own wilful act. Therefore, on the charge of murder, where the fact of killing as charged in the indictment is shown by the prosecution, unaccompanied by circumstances of legal justification, excuse or mitigation, the law presumes that the homicide was committed with malice, and hence amounts to murder, until the contrary is shown; and consequently the burden is thereupon thrown upon the accused of disproving the malice and showing by evidence to the satisfaction of the jury that the killing was not malicious, but was either justifiable or excusable homicide, or else manslaughter.
But as it has not been claimed in behalf of the accused prisoners that the alleged killing of Taylor is either justifiable or excusable homicide or manslaughter, it becomes your duty to determine, upon a careful review and consideration of all the evidence before you, whether the said slaying of Taylor is a higher grade of homicide, and, further, whether or not the prisoners, or either of them, are guilty of either murder of the first degree or of murder of the second degree, under this indictment. In considering the evidence with a view to determining this question, you must be guided by the legal definition and nature of these two degrees of murder, and bear in mind the distinction between malice aforethought express and malice aforethought implied, as these have just been defined to you. And here it is necessary also to inform you that although where the fact of killing, as charged in the indictment, is shown by *564the prosecution, unaccompanied by circumstances of legal justification, excuse or extenuation, the law presumes that the homicide was committed with malice, until the contrary appears from the evidence produced at the trial, yet it goes no further than to imply malice, and therefore the legal presumption goes no further in such a case than that the killing is murder of the second degree, under our statute. Wherefore, before a verdict by the jury of murder of the first degree can be lawfully rendered, it must be shown by the prosecution that the prisoners, or one of them, killed or participated in the killing of Taylor, if he be dead, with a sedate, delib- , crate purpose and formed design to take life. Such deliberate purpose and formed design may exist only for the briefest period of time, but it must be shown by the facts and circumstances attending the homicide to actually exist, in order to prove that express malice aforethought, without the evidence of which a conviction of murder of the first degree cannot be secured.
But before the prisoners, or either of them, can be found guilty of murder of either degree under this indictment, it is imperatively incumbent on the prosecution to prove to you, beyond a reasonable doubt, first, that John R. Taylor died on or about January 8th of the present year; second, that his death was caused by the means, and in the manner described in this indictment, and within this county; and, third, that the prisoners at the bar, or one of them, committed, or aided and participated in the commission of, the fatal act, as alleged therein. In the absence of direct or positive evidence, each of these essential ingredients of the crime may be established by circumstantial evidence alone.
Regarding confessions of guilt in criminal prosecutions, you will remember that these are either direct confessions, or confessions inferred from the conduct, etc., of the accused, and termed indirect confessions of guilt. * Confessions of guilt should not be received where they are not free and voluntary, but procured through the influence of threats or the promise of favor. Both their admissibility and value as evidence depend upon their being *565deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interests and safety unless impelled to do so by the promptings of truth and conscience. A confession of guilt reduced to writing, and signed by the person making it, if. deliberately made and signed, without being influenced thereto by any threats or promises by others, should be regarded, in the absence of evidence to the contrary, as strong and convincing evidence in the case. The degree of credit due to a confession is to be estimated by the jury under the circumstances of the particular case. The whole of what the accused said on the subject at the time of making the confession should be taken together. The jury may believe that part which criminates the accused and reject that which is in his favor, or credit so much as is in his favor and discard that which is against him, if they see sufficient grounds, upon all the evidence, for so doing, for the jury are at liberty to judge of it, like any other evidence, from all the proven circumstances of the case.
After the commission of a crime has been accomplished, no one engaged in it can, by any subsequent declaration or act of his own, not made or done in the presence of another, affect that other person. His confession, therefore, subsequently made, is not admissible in evidence as such against any but himself. If the confession of one prisoner implicates any other person by name, it must be proved as it was made, not omitting such name; but the Court should instruct the jury, as we do you, that it is not evidence against any but the prisoner who made such confession.
1 Greenleaf on Evidence, Secs. 218, 223.
Proof beyond a reasonable doubt does not mean that the guilt of the accused or any other fact shall be established with the absolute certainty of a mathematical demonstration. Matters of fact are required to be proved merely to a moral certainty. To require more in dealing with human conduct and the ordinary affairs of life would be impracticable and therefore unreasonable. It is sufficient that any disputed fact relating to these shall be *566established by that amount of competent or appropriate evidence which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a man of common sense and ordinary discretion, and so to convince him that he would act upon that conviction in matters of the highest concern and importance to his own interest. Reasonable doubt, in the legal sense, therefore, does not mean a vague, speculative, or whimsical doubt or uncertainty, nor a merely possible doubt of the truth of the fact to be proved.
In civil cases it is the duty of the jury to decide in favor of the party on whose side the weight of evidence preponderates, and according to the apparent probability of truth; but in criminal cases, because of the graver consequences of a wrong decision, the jurors are required to be satisfied beyond a reasonable doubt of the guilt of the accused, or it is their duty to acquit him. In civil cases it is sufficient if the evidence in the aggregate agrees with and supports the hypothesis which it is adduced to prove, but in criminal cases it must not only do this, but also must be such as to produce a moral certainty of guilt, and to exclude any other reasonable hypothesis or conclusion but that of the guilt of the accused. In both cases a verdict may well be founded on circumstances alone, and these often lead to a conclusion more satisfactory than that produced by direct evidence. In considering the testimony, if you find that any of the witnesses contradict each other, you must decide between them after viewing the testimony of each in connection with all the facts and circumstances proved in the case, and after considering the comparative qualifications and advantages of each for knowing, observing, comprehending, recollecting, and impartially and truthfully relating the circumstances and matters concerning which they have testified. Where there is a conflict of testimony, you must reconcile it, if possible. If you cannot do so, then you may reject so much thereof as you deem the less trust*567worthy, and accept tliat portion which you consider the more so, after due deliberation upon all the evidence submitted from the witness stand, and from no other source.
You are the judges of the facts and of the credit due to the respective witnesses, and it is your exclusive province, subject only to the law as explained to you by this Court, to determine according to the evidence whether or not the prisoners, or either of them? have been proven, beyond a reasonable doubt, guilty of any offense under this indictment. By reasonable doubt, as we have already explained, is not meant a vague, speculative, whimsical, or merely possible doubt, but such a doubt only as intelligent, reasonable, and impartial men may honestly entertain after a careful examination and conscientious consideration of all the evidence.
It only remains for us to say in conclusion that if, after such examination and consideration of all the evidence submitted on both sides in this case, you shall be satisfied, beyond such a reasonable doubt, that the prisoners, or either of them, are the persons who, as principals or accomplices, caused the death of Taylor as alleged in this indictment, and within this county, then you are further to determine, subject to the law as we have explained it to you, whether or not the prisoners, or either of them, are guilty of murder of the first degree, or murder of the second degree, or of any kind of felonious homicide, and render your verdict accordingly. But if, after such examination and consideration of said evidence, you should not be so satisfied that the prisoners are guilty of murder of either degree, or of any kind of felonious homicide, then you should acquit them, and render a verdict of not guilty. Any one or both of the prisoners may be convicted or acquitted under this indictment, according as the evidence may justify and warrant it, in the judgment of the jury.
With these instructions for your aid and guidance in the discharge of your solemn and responsible duty, the case is now submitted to you for your verdict.
Verdict.—John Jiner, guilty of murder of the first degree; Walter Brinte, guilty of murder of the second degree.
*568Motions for New Trial, etc.
Mr. Townsend, counsel for the defendant Jiner, thereupon made motions for a new trial and in arrest of judgment, basing said motions upon the following reasons for a new trial-:
“John Joiner, one of the above-named defendants, by Sylvester D. Townsend, Jr., his attorney, files the following reasons for a new trial: (1) That the panel of jurors drawn for service at the Court of Oyer and Terminer in and for New Castle County, in the State of Delaware, at the May term, A. D. 1904, included, among others, a certain John C. Mitchell. (2) That the said John C. Mitchell did not appear at the said court, but that a certain John W. Mitchell appeared and answered for the said John C. Mitchell. (3) That the said John C. Mitchell’s name, was drawn by the proper officer of the court as one of the jury in this cause. (4) That he, the said John W. Mitchell, in response to such call for John C. Mitchell, took his place as one of the jurors in this cause, although he was not the John C. Mitchell intended as a juror in this cause. (5) And that therefore there was a mistrial in this cause. That the aforesaid facts were unknown to the said John Joiner, or his counsel, until after the jury had been sworn and the trial begun. Therefore the said John Joiner, by Sylvester D. Townsend, Jr., his attorney, prays the Court that the verdict in this cause be set aside, and that a new trial be granted.”
The following affidavit was filed in support of the above reasons:
“State of Delaware, New Castle County, ss.: Personally appeared before me, Sylvester D. Townsend, Jr., a notary public for the State of Delaware, Caleb C. Hopkins, who, being by me duly sworn according to law, deposes and says that he is Levy Court Commissioner for the Fourth District of New Castle County; that on or about the 18th day of March, A. D. 1904, in accordance with the statute in that behalf made and provided, he deposited in *569the petit jury box of New Castle county the name of one John C. Mitchell; that at the May term, A. D. 1904, of the Court of Oyer and Terminer, in the case of the State against Walter Brinte and John Joiner, when the name of John C. Mitchell was called, one John W. Mitchell made answer, and was duly sworn and served on said jury; that the person or juror who answered to the name of John C. Mitchell was not the John C. Mitchell intended and designated to serve on said jury; that your said deponent saw the said John W. Mitchell on his attendance at the said Court of Oyer and Terminer as a juror; and that he was not the same person whose name your said deponent, as such Levy Court Commissioner, had deposited, or whose name he had intended to deposit, in the jury box as aforesaid. Further, your deponent saith not.
Caleb C. Hopkins.
“Sworn and subscribed before me this 31st day of May, A. D. 1904.
Sylvester D. Townsend, Jr.,
[Seal of Notary] Notary Public.”
The State filed counter affidavits, which, omitting the captions, were as follows:
“State op Delaware, New Castle County, ss.: Be it remembered that on this 2d day of June, A. D. 1904, personally came before me, George Janvier, Deputy Clerk of the Peace, George W. Cox, who, being by me first duly qualified according to law, deposes and says that he is a deputy of the Sheriff of the County of New Castle, in the State of Delaware; that, as the deputy of said Sheriff, there was put in his hands a part of the certified list of special jurors to be summoned to attend the Court of Oyer and Terminer at the term thereof which began on the 25th day of May, A. D. 1904, in and for the said County of New Castle; that among other names so put in his hands as aforesaid was the name John C. Mitchell; that this deponent knew of one John Mitchell, a resident-in Stanton, in the said County of New Castle, and duly summoned *570him to attend said court as a member of said special jury so to be summoned as aforesaid; that upon summoning the said Mitchell he found that the middle initial of said Mitchell was “W”, rather than “C”, but this deponent assumed that there had been a clerical error as to the middle initial of said Mitchell, and that the said John W. Mitchell was the man intended to be described by the name of John C. Mitchell upon the list of said jurors so placed in his hands to summon as aforesaid; that" this deponent duly and regularly summoned the said John W. Mitchell to attend said Court of Oyer and Terminer as a member of said special jury for said term, and did not summon any other John Mitchell for said purpose; that the said John W. Mitchell duly attended said court as such such special juror, and sat on the above stated cause as a juror to try the defendants in said cause.
George W. Cox.
“Sworn and subscribed before me this 2d day of June, A. D. 1904.
George Janvier,
Deputy, C. P.”
“State of Delaware, New Castle County, ss.: Be it remembered that on this 2d day June, A. D. 1904, personally came before me, George Janvier, Deputy Clerk of the Peace, Winfield S. Quigley, who, being by me first duly qualified according to law deposes and says that he is the Clerk of the Peace in and for said County of New Castle, and, as such, took out of the box containing the names of the general and special jurors in attendance at the trial of the above named defendants the names of the jurors as they were called to be sworn upon their voir dire at the time of the impaneling of the jury in the above stated case; that upon one of the slips containing the names of said special jurors was the name John C. Mitchell; that said deponent called out said name in a loud tone of voice; that thereupon a certain John W. Mitchell, being the only John Mitchell who had been summoned either upon said general or special jury lists in attendance at said term, arose and responded to *571said name of John G. Mitchell; that thereupon it was suggested t hat the name of said Mitchell so arising and responding as aforesaid was John W. Mitchell, and not John C. Mitchell, and that this deponent thereupon asked the said Mitchell, in the presence and hearing of said defendants and their counsel, whether his name was John C. Mitchell, or John W. Mitchell; that said juror replied, in a tone of voice audible to this deponent and all other persons there being, that his name was John W. Mitchell; that thereupon this deponent called the attention of the judges then and there presiding at the trial of the said defendants to the fact that the name of the said juror was John W. Mitchell, and not John C. Mitchell; that thereupon, no objection being made by either the Attorney-General or by the counsel for said defendants, the said John W. Mitchell was first duly sworn upon his voir dire by the name of John W. Mitchell, and, under oath, replied to the questions usually asked a proposed juror upon his voir dire in a capital cause; that thereupon the said prisoners were given an opportunity to challenge the said juror, either peremptorily or for cause, by said prisoners, but responded to the said opportunity to so challenge said juror with the words ‘Swear him,’ pronounced by said prisoners through the mouth of their counsel then and there engaged in defending them on said trial; that said juror was also accepted without challenge by the State, the plaintiff in said cause; that thereupon the said juror was duly sworn to try said cause by the name of John W. Mitchell, and regularly sat in said trial during the entire course thereof, without objection upon the part of the said prisoners or their counsel, and was one of the jurors which returned a verdict of guilty upon being duly polled at the request of the said prisoners through their counsel; that said John W. Mitchell is a resident and citizen of said State and county, and eligible for jury service under the laws of the State of Delaware; that no person by the name of John C. Mitchell had been summoned or was in attendance on the said court as a juror.
Winfield S. Quigley.”
*572“Sworn and subscribed before me this 2d day of June, A. D.
1904.
George Janvier,
Deputy C. P.”
Argument of Motion for New Trial.
Mr. Townsend:—Where a person who is not the person intended to be summoned is returned, or answers, and participates in the trial, the verdict is of no validity, and the proceedings will be treated as a mistrial.
12 Am. & Eng. Ency. Pl. & Pr., 352.
The foregoing is supported, among others, by the following authorities:
Dovey vs. Hobson, 6 Taunt., 460; Rex vs. Tremaine, 16 E. C. L., 318; McGill vs. State, 34 Ohio St., 228; People vs. Ransom, 7 Wend., 417; Goodwin vs. State, 102 Ala., 87; Mingia vs. People, 54 Ill., 274.
In the case of Dovey vs. Hobson, supra, Gibbs, C. J., said : “ We think that the eleven jurymen being well summoned, and a twelfth not being well summoned, and a verdict taken by those twelve, and the objection being pointed out at the time, the court, in the exercise of their discretion, ought to set aside this verdict.” In McGill vs. State, supra, the facts were as follows : Eli Stephenson, whose name appeared in the venire, was regularly summoned and returned by the sheriff. At the trial, when his name was called, his father, of the same name, answered and sat at the trial. Boynton, J., said: “* * * A majority of the court are unwilling to hold, especially in a case involving life, that the accused, by neglecting to inquire of the juror whether he was the person by that name summoned, was so far guilty of negligence as to estop or prevent him from taking advantage of the juror’s disqualification *573after the trial. * * * The plaintiff was apprised that one Eli Stephenson was one of the regular jurors summoned for his trial; and, when such juror was called, a person by that name appearing and answering thereto, we think he might well assume such person to be the regular juror. If the person so appearing had borne another name, and had personated the absent juror, this clearly would have been ground for a new trial, if the fact of such personation was unknown to the accused in time to correct the error before he was prejudiced thereby. * * * Yet no one can doubt that the identity of the two names was calculated to disarm vigilance, and render deception more successful and complete. Therefore, to impute a want of diligence, under the circumstances, to the accused or his counsel, in not ascertaining before the trial that the sitting juror was not the one summoned, or to hold him to have waived all objection to the juror’s competency, would be to exact a higher degree of care aad caution than the law requires.”
12 Am. & Eng. Ency, Pl. & Pr., 364,—note, citing Goodwin vs. State, 102 Ala., 89; (15 South., 571,) says : “The defendant is entitled to the juror drawn by the commissioners, and cannot be required to have one of the same name, whose name was erroneously placed on the venire, and who responded to the name of the juror drawn.”
Mingia vs. People, supra, says : “Only the persons named on the sheriff’s return can be sworn as jurors, and hence it is a ground of error that a juror of a different name from the one furnished the prisoner was sworn upon the panel.”
The Attorney-General in opposing the motion for a new trial, cited the following authorities:
Hill vs. Yertes, 12 East. 29, (1810); Mann vs. Town of Fairlee 44 Vt.* 672.
Opinion.
Grubb, J.:—It appearing to the Court by the facts before us *574in this ease that, although John C. Mitchell was the person selected by the Levy Court, and drawn by the Clerk of the Peace and Prothonotary, and whose name was placed on the jury list for this term of court, yet John W. Mitchell was the person actually summoned by the Sheriff, and that the name of J ohn C. Mitchell was drawn from the box by the Clerk of the Court during the drawing of the jury at the trial, and that J ohn W. Mitchell answered thereto, instead of John C. Mitchell, and that thereupon attention was publicly called by the Clerk of the Peace to the fact, in the presence of the prisoner and his counsel, and that, upon the voir dire examination of said John W. Mitchell, he was not challenged for this or any other cause by the prisoner or his counsel, but, on the contrary, was expressly accepted by them and sworn as a juror in the cause, and, further, it not appearing to the Court that any prejudice or injustice was done to the prisoner by reason of the fact that John W. Mitchell was sworn and served as a juror at the trial, the motion for a new trial is refused.
Sentence.
The prisoner was thereupon sentenced as follows :
Gbttbb, J.:—John Jiner, stand up. John Jiner, you have been indicted by the grand jury of this county for the murder of the first degree of John R. Taylor, and upon that indictment you have had a fair and impartial trial. Your counsel, with great zeal and fidelity, presented to the Court and jury every fact and argument which, in his judgment, were available for your defense. The jury nevertheless rendered a verdict of guilty, and it therefore becomes the solemn duty of this Court to pronounce the sentence of the law upon you for the commission of the heinous crime for which you were indicted. Have you anything to say why this Court shall not now pronounce the sentence of the law upon you ?
Prisoner:—Yes, sir; I have a word to say. I don’t think it *575is right, when we both were guilty, and both were sent to jail for the same crime, to let one go free, and hang the other. I don’t think I have had justice.
Grubb, J.:—Is that all you have to say?
Prisoner:—Yes, sir.
Grubb, J.:—The sentence of the law, as considered by the Court, is that you, John Jiner, alias John Joiner, be now taken from the bar of this Court to the New Castle County Workhouse, the public prison of this county, the place from which you came, and be there safely and securely kept in custody until Friday, the second day of September, in the year of our Lord 1904, and on that day, between the hours of 10 o’clock in the morning and 3 o’clock in the afternoon, be taken to some convenient place of private execution within the precincts of the said prison inclosure, and that you be then and there hanged by the neck until you be dead ; and may God have mercy on your soul.
You are now committed to the custody of the Board of Trustees of the New Castle County Workhouse, until this sentence is carried into execution.
It is also considered, adjudged, and ordered by the Court that a duly certified copy of the foregoing sentence of death upon John Jiner, alias John Joiner, be forthwith made and delivered by the Clerk of the Court to Emmit F. Stidham, the Sheriff of New Castle County, as his sufficient warrant to observe and execute said sentence of death according to the judgment of this Court of Oyer and Terminer at the time appointed by the Court. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487261/ | Lore, C. J.,
charging the jury:
Gentlemen of the jury:—On Saturday, the 28th day of May, 1904, at No. 17 Peoples street in this city, one Samuel Still was killed by a gunshot wound, which was inflicted by Samuel Emory, the prisoner.
For this homicide the prisoner is indicted for murder of the first degree.
Under the laws of this State there are three degrees of felonious homicide, viz., (1) murder of the first degree, (2) murder of the second degree, (3) manslaughter.
1. Murder of the first degree consists of killing a human being with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death. That is to say in general, when the murder is committed with a sedate, deliberate mind and formed design to take life. Such design may be shown by the deliberate selection and use of a deadly weapon, by a previous quarrel or grudge, by antecedent menaces or threats. To constitute murder of the first degree it is not necessary that such design should have existed in the mind of the assailant for any considerable length of time prior to the killing. It is sufficient if it so existed at the time of the inflicting of the mortal wound.
2. Murder of the second degree is where there is no such deliberate mind and formed design to take life, but where, nevertheless, the killing is malicious and without justification or excuse; *130without any provocation, or without sufficient provocation to reduce the homicide to the grade of manslaughter.
3. Manslaughter is the unlawful killing of a human being without malice either express or implied.
Malice aforethought is the essence and test of murder • while in manslaughter there is no malice.
Whenever one person is killed by another, the mere killing is presumed to be unlawful and to have been done with malice aforethought, until the contrary appears.
1. The prisoner admits that he killed Samuel Still, but claims that he did so in self-defense in his own dwelling house, and that therefore the homicide is excusable.
2. That he killed Still in a sudden brawl or mutual altercation, and in the heat of blood, and may not therefore be convicted of homicide of a higher degree than manslaughter.
We would say as to the claim of the prisoner, that he was in his own dwelling house at the time of the shooting, that there may be doubt whether the law in respect to the defense of property is specially applicable to this case, however clearly it may apply to cases like that of the State vs. Talley, 9 Houst., 417, where Talley at the time of the homicide was defending his property against alleged trespassers; still it may be generally laid down as was said by the Court in that case, that every man’s dwelling house is his castle of defense, and when he is violently attacked in such dwelling house by any one who intends to kill him or to do him some grievous bodily harm, he need not take any steps to get out of the way, but may slay his adversary if necessary for his own protection. In such case, however, one may not take the life of a trespasser on his premises unless it be to save his own life or to escape great bodily harm. (State vt. Hoskin, 1 Houst. Or. Cas., 116.) The reason of this doctrine is clearly explained in State vs. Patterson, 45 Vt., 308.
The prisoner pleads self-defense. This plea, if proven to your satisfaction, will entitle him to a verdict of not guilty.
*131To escape the consequences of his act in using a deadly weapon in self-defense, the prisoner must show to your satisfaction, that what he did to Still was only for the purpose of saving his own life or to escape great bodily harm; neither fear nor apprehension of death or of great bodily harm will totally excuse one from killing another, but to have effect in law, the danger must be imminent and impending at the instant, and must be real, not imaginary. He must have declined the combat and retreated from his assailant as far as he could do so consistently with his own safety. (State vs. Hollis, 1 Houst., Cr. Cas., 87.) A man may defend himself against his assailant, but he cannot do so as he pleases. If one be assaulted with the fist he may not defend himself with a club or a deadly weapon, because the defense is disproportioned to the offense, and if in such defense death ensues, the law implies malice from the character of the weapon used. It is for the jury to determine under all the circumstances of the case, whether the prisoner was justified in using a deadly weapon in self-defense at the time and in the manner proven in the testimony. You must be satisfied that the peril or danger was such as would justify an ordinarily prudent man in taking such measures of defense. It is not what a man may see fit to think in such strait, but what an ordinarily prudent man would do, and what the prisoner reasonably believed from the circumstances surrounding him and known to him at that time.
In case you should decide that self-defense is not established, the prisoner claims further that when he killed Still it was under provocation in a fight or mutual altercation with the deceased and in the heat of blood; and that in any event he may not be convicted of a higher grade of homicide than manslaughter.
In order to reduce the offense to manslaughter, you must decide that the death wound was given by the prisoner upon provocation, in a sudden brawl or altercation between him and the deceased, and in the heat of passion, without time for reflection and deliberation and without cooling time. Where death is produced by a deadly weapon, as in this case, the provocation must be very *132great to reduce the crime to manslaughter. No mere words, however insulting or offensive, no defiant gestures or weak assault will constitute such provocation.
Under this indictment you may find the prisoner guilty of murder of the first degree, or murder of the second degree, or manslaughter, or you may find him not guilty—as in your judgment may be warranted and justified by the law and the evidence.
If you conclude from the evidence that at the time the prisoner shot the deceased he did so with a sedate, deliberate mind and formed design to kill, your verdict should be guilty in manner and form as he stands indicted. If you should find there was no such sedate, deliberate mind and formed design to take life but that the shooting was malicious, in cruel and reckless disregard of human life, your verdict should be not guilty in manner and form as he stands indicted, but guilty of murder in the second degree.
Should you find that the shooting was not malicious, but was under provocation on the part of the deceased arising in a sudden brawl or fight, and while the prisoner was in hot blood therefrom without cooling time, then your verdict should be not guilty in manner and form as he stands indicted but guilty of manslaughter.
But should you believe the shooting was done strictly in self-defense, as defined by the Court, your verdict should be not guilty.
Governed by the law as set forth in this charge, it is now your duty to determine from the evidence in this case whether the prisoner be guilty or innocent; and if guilty, it is for you to determine the grade of the homicide.
In order to convict the prisoner of any offense, it is incumbent on the part of the State to satisfy you beyond a reasonable doubt of the guilt of the prisoner.
A reasonable doubt is not a whimsical, imaginary or possible doubt, but a substantial doubt such as intelligent men may reasonably entertain upon a careful and conscientious consideration of all the evidence.
Verdict, guilty of murder in the second degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487262/ | Lore, C. J.,
charging the jury:
Gentlemen of the jury:—It is not disputed, that on the twelfth *269day of April, 1902, the dead body of Alda Collins was found in the stable part of a building on the farm near Laurel, in this county, on which she with her husband Elmer Collins, the prisoner, and their two small children had theretofore been living. The body was covered with blood; the face was bruised; the nose was broken; the back and side of the skull were crushed in and the throat was cut.
The indictment charges that she was killed by Elmer Collins, her husband, and that he is guilty of murder of the first degree.
Inasmuch as under this indictment, you may find the prisoner guilty of murder of the first degree, or of the second degree, or of manslaughter, if in your judgment the evidence shall so warrant; it is necessary for the Court to define these three grades of felonious homicide.
(1) Murder of the first degree, consists in taking a human life with express malice aforethought, or in perpetrating or in attempting to perpetrate a crime punishable with death. That is to say, when such life is so taken with a sedate, deliberate mind and formed design to take the life of, or to do some great bodily injury to the person whose life is so taken.
(2) Murder of the second degree is where there is no such deliberately formed design to take life, or to perpetrate or attempt to perpetrate a crime punishable with death • but where, nevertheless, the killing is without justification or excuse; without any, or without sufficient provocation to reduce the homicide to manslaughter.
(3) Manslaughter is the unlawful killing of a human being without malice aforethought.
Malice is the essence of murder.
In murder of the first degree such malice must be express, and may be indicated by all such facts and circumstances as show a deliberately formed design to take life.
In murder of the second degree, malice may be shown by such cruel acts and conduct, as indicate a reckless disregard of *270human life, although unaccompanied with a deliberate design to take life.
In manslaughter there is no malice.
Bearing in mind these distinctions, it is your duty to inquire into the guilt or innocence of the prisoner.
Whenever the life of one person is proved to have been taken by another, it is presumed in law to have been taken with malice aforethought, unless the contrary appears.
Crime may be proved either by direct or by circumstantial evidence, or by both.
Direct evidence is such as the confessions of the accused or the testimony of persons who saw the crime committed.
Circumstantial evidence consists of the suspicious facts and circumstances which surround a case, but which lack the direct or positive character.
The universal experience of those engaged in the administratian of justice shows the absolute necessity of admitting and relying upon circumstantial evidence, in forming our conclusions in regard to the guilt or innocence of accused persons; and when clearly convincing and conclusive, is of equal weight with direct evidence. Indeed it is often the only means of uncovering and proving crimes which are committed in secret and which are concealed by the cunning artifices of the perpetrator. But while this is so, we say to you most emphatically that circumstantial evidence, to warrant a conviction, must be entirely satisfactory, and of such significanee, consistency and force, as to produce conviction in the minds of the jury, of the guilt of the accused beyond a reasonable doubt. The great rule on this subject is this: that when the evidence is circumstantial the jury must be fully satisfied not only that the circumstances are consistent with the guilt of the prisoner, but they must also be satisfied, that the facts are such as to be inconsistent with any other reasonable conclusion than that the prisoner was the guilty party. They must be such as to exclude any other hypothesis or conclusion.
*271This is the rule relating to circumstantial evidence, as distinguished from direct evidence. The State claims to have produced in this case both direct and circumstantial evidence.
But whether the evidence be direct, or circumstantial, or both, it must in every case be of such a character as to satisfy the minds of the jury of the guilt of the prisoner beyond a reasonable doubt.
Such a doubt, gentlemen, must not only be reasonable under the facts disclosed in the case, but must grow out of the evidence as you have heard it here, and must be of such a character as to prevent your minds from reaching an honest conclusion of the guilt of the accused, after a most careful and conscientious consideration of all the facts, circumstances and conditions surrounding the case. If after such consideration there remains in your mind such a reasonable doubt of the guilt of the prisoner, you should acquit him.
The burden of proof is upon the State. All the presumptions of law, independent of evidence, are in favor of innocence, and every person accused of crime is presumed to be innocent until proved guilty.
Expert testimony is the evidence of persons who are skilled in some art, science, profession or business; which skill or knowledge is not common to their fellow-men and which has come to such experts by reason of special study and experience in such art, science, profession or business. The value of such testimony depends upon the learning and skill of the expert and varies with the circumstances of each case. The jury should take into consideration the expert’s means of knowledge, and the reasons he assigns for the opinions he has given, and give credence to his testimony as they may find his qualifications sufficient and his reasons satisfactory. The jury may accept or reject the conclusions of experts, as in their judgment they may or not be found consistent with reason and experience or otherwise satisfactory. The testimony of experts is to be considered like any other testimony, and is to be tried by the same tests, and receive just so much weight and credit *272as the jury may deem, it entitled to, viewed in connection with all the evidence in the case.
The testimony of detectives, of police officers, and of relatives of accused persons is to be taken and considered in like manner.
Proof of good or bad character, whether it relates to witnesses, or to the accused, is to be considered by you as any other evidence tending to show credibility or innocence or guilt, as the case may be; and is entitled to just so much weight as the jury may deem just, in connection with all the other evidence in the case.
Like consideration is to be given to proof of marital relations subsisting between the prisoner and his deceased wife at and before the time of her death.
From the nature of the evidence, and the mystery attending this homicide, the testimony in this case has necessarily occupied many days. Both your patience and endurance have been largely taxed. That testimony is now all before you. It has been presented and argued with great care by counsel, both on the part of the State and of the prisoner.
From that evidence, and from that alone, you are to reach your verdict, after the most thoughtful and conscientious consideration of it, under the solemn obligation of the oath you took when you entered that jury box.
If after such consideration you are not satisfied beyond a reasonable doubt that the prisoner did kill his wife in the manner laid in the indictment, your verdict should be not guilty.
Should you believe, however, that he did kill her in such manner, unlawfully, but without malice, your verdict should be guilty of manslaughter.
Again, if you believe that he killed her in such manner, cruelly and wantonly, but without express malice aforethought,you should find him guilty of murder in the second degree.
But if you believe, that he killed her in such manner, with sedate, deliberate mind and formed design to take life, then your verdict should be guilty in manner and form as he stands indicted.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487263/ | Spruance, J.,
charging the jury:
Gentlemen of the jury:—The prisoner, Edward Brown, is indicted for the murder of James Lethrem on the eleventh day of June last in the town of Clayton, in Duck Creek Hundred, in this county. The uncontradicted evidence is that the death of Lethrem was caused by a stroke or blow upon his head, inflicted by the *341handle of a pitch-fork in the hands of the prisoner.
On behalf of the prisoner it is contended, (1) that the death of Lethrem was the result of an accident without the fault of the prisoner; (2) that the fatal blow was inflicted by the prisoner in justifiable self-defense against an attack or threatened attack by the deceased ; (3) that if the prisoner is guilty of any offense whatever the crime cannot exceed manslaughter.
By the law of this State felonious homicide is of three kinds ; murder of the first degree, murder of the second degree and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. As here used, the term malice is not restricted to spite or hatred towards the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart regardless of social duty and fatally bent on mischief. Wherever the killing is done deliberately or without adequate cause, the law presumes that it was done with malice and the burden is on the prisoner to show from the evidence or by inference from the circumstances of the case that the act was not done with malice.
Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. Express malice aforethought is where the killing is done with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways; as for instance by lying in wait, prior menaces or threats, former grudges, ill-will or hatred toward the deceased, or any other circumstances which disclose the purpose or intention of the accused toward his victim.
It is not necessary for us to say more in reference to the crime of murder of the first degree, as the Attorney-General has very properly stated that the evidence in this case does not disclose such deliberate mind and formed design on the part of the accused to murder the deceased, as would warrant the jury in finding him guilty of murder of the first degree.
*342Murder in the second degree is where the killing was done with implied malice. Implied malice is an inference or conclusion of the law from the facts found by the jury. Murder in the second degree is where there was no deliberate mind or formed design to take life or to perpetrate a crime punishable with death, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter.
All homicides with a deadly weapon, that is, with a weapon likely to produce death, are presumed to be malicious until the contrary appears from the evidence, and the burden of proof to the contrary lies on the accused, as the natural and probable consequences of the use of a deadly weapon are presumed by thé law to have been intended by the person so using it.
In order to constitute the crime of murder of the second degree, it is not essential that the slayer intended to kill his victim at the time he struck the fatal blow.
If death ensues from an unlawful cruel act of violence on the part of the slayer, in the absence of adequate or sufficient provocation, the law implies that such act was done maliciously, and the crime is murder of the second degree.
Manslaughter is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter the provocation must be very great; so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved spirit and is characterized by malice, manslaughter results not from malice but from unpremeditated and unreflecting passion.
No looks or gestures, however insulting; no words, however opprobrious or offensive, can amount to a provocation sufficient to justify even a slight assault. Nor can a slight assault excuse the killing of the assailant with a deadly weapon so as to reduce the offense from the grade of murder to that of manslaughter. The more usual instances of manslaughter occur where two persons are *343engaged in mutual combat and one slays the other in the heat of passion. ■
The burden of establishing self-defense to the satisfaction of the jury rests with the accused.
In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary for that purpose he becomes the aggressor.
If the deceased first attacked the accused, even though the attack was of such a character as to create in the mind of the accused a reasonable belief that he was in danger of death or great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant. j
No one may take the life of another, even in self-defense, unless there is no other available means of escape from death or great bodily harm.
If one is attacked and from the character of such attack he had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased would be a justifiable act of self-defense.
If, on the other hand, the attack was of a trifling character and manifested no purpose or intention on the part of the assailant to inflict any serious injury, the repelling of such an attack by the use of a weapon likely to produce deatS, would not be an act of justifiable self-defense.
In ascertaining whether the accused was in any and in what danger of injury at the hands of the deceased when he struck the mortal blow, and, if in such "danger, whether he took the proper precautions to avoid such danger, the jury should consider the facts and circumstances of the case as disclosed by the witnesses. And in this connection, due weight should be given to the .relative size and physical power of the accused and the deceáüfd. If the *344jury are satisfied that the deceased made the first assault, they should consider the character of such assault. Was it merely a technical or trivial assault, or was it an angry or violent assault which indicated a purpose to take the life of the accused, or to do him some serious bodily harm.
In order to justify or excuse the accused in striking the fatal blow it is not sufficient that he at the time believed himself to be in danger of death or great bodily harm at the hands of the deceased, but the circumstances must have been such as to justify a reasonable man in such belief, and further that there was no reasonable way of avoiding or escaping from such danger except by slaying the assailant.
In ascertaining whether the accused should have retreated from his assailant, the jury should give due weight to the evidence touching the physical condition of the accused at that time, as well as to the evidence as to his actual movements shortly before and at the time of the killing.
In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. The accused should not be convicted of any crime unless every material ingredient of the crime shall be proved to the satisfaction of the jury beyond a reasonable doubt.
If after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such a doubt and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague or speculative doubt, but a reasonable substantial doubt remaining in your minds after a careful consideration of all of the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.
Under this indictment, if the evidence shall so warrant you, you may find the prisoner guilty of murder of the second degree, or guilty of manslaughter or not guilty.
Verdict, guilty of manslaughter. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487264/ | Spruancb, J.,
sharging the jury:
Gentlemen of the jury;—The prisoner, Annie E. Tilghman, is indicted for the murder of James E. Tilghman.
Homicide is the killing of one human being by another. Felonious homicide, under our law, is of three kinds: murder of the first degree, murder of the second degree and manslaughter.
Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the mind or heart. As here used, this term is not restricted to spite or malevolence towards the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart devoid of a just sense of social duty and fatally bent on mischief. Wherever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.
Murder of the first degree is where the killing is done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways. As for instance, by lying in wait for the deceased, or by antecedent menaces or threats that disclose a purpose on the part of the prisoner to commit the act charged, or by former grudges, ill-will, spite, hatred or malevolence towards the deceased, or any other circumstances which disclose the purpose or intent of the accused towards her victim at the time when the crime was committed. The deliberate selection and use of a deadly weapon is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a deliberate formed design to kill. All homicides with a *58deadly weapon are presumed to be malicious until the contrary appears from the evidence, and the burden of proof to the contrary lies on the accused.
Where the killing by a deadly weapon is admitted or proved, malice aforethought is presumed, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, as- the natural and probable consequences of the act are presumed by law to have been intended by the person using a deadly weapon. If the jury are satisfied from the evidence that the prisoner when she killed the deceased deliberately intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder.
Murder in the second degree is where the killing was done with implied malice. Implied malice is an inference or conclusion of law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take life, or perpetrate a crime punishable with death, but where the killing was done without justification or excuse, or without provocation or without sufficient provocation to reduce it to manslaughter.
Manslaughter is where one person unlawfully kills another without malice.
In order to reduce the crime to manslaughter, the provocation must be very great; so great as to produce such a transport of passion as renders the person for the time deaf to the voice of reason. While murder proceeds from a wicked and depraved spirit and is coupled with malice, manslaughter results from no malignity, but from unpremeditated and unreflecting passion.
Before attempting to classify the offense with which this prisoner is charged, you should determine whether the evidence before you is sufficient to prove beyond a reasonable doubt that the prisoner committed the act of which she is accused. The indictment charges, in substance, that the prisoner on the night of the eleventh day of November last shot and killed her husband James E. Tilghman. The prisoner admits that she and her hus*59band were the only persons present when he was killed, but she denies that she killed him, and insists that the evidence before you is not sufficient to prove that she did it.
In this, as in every other stage of your inquiry, you should bear in mind that the law presumes the prisoner to be innocent until she is proved to be guilty.
In civil cases the rule is that the verdict should be in favor of the person for whom is the preponderance or greater weight of the evidence; but this is not the rule in criminal cases. In criminal cases the law requires that the accused should not be convicted unless the jury are satisfied from the evidence beyond a reasonable doubt that he or she is guilty.
If upon mature consideration of the evidence you should not be able to determine how the fatal shot was fired, or by whom it was fired, or if you should not be satisfied from the evidence beyond a reasonable doubt that the shot was fired by the prisoner, you should acquit her. If you should find from the evidence that Tilghman, with a gun in his hands, made an assault upon the prisoner, or was about to do so, and that she, without intending to injure him, attempted to disarm him or attempted to prevent him from injuring her, and in the struggle the gun was accidentally discharged and killed Tilghman, you should acquit the prisoner. And if the jury are satisfied from the evidence that the deceased first attacked the prisoner and that from the character of such attack she had reasonable cause to believe, and did believe, that she was in imminent danger of death or great bodily harm, and that she had no reasonable means of avoiding or preventing her death or great bodily harm, other than by killing her assailant, and that under such circumstances she shot and killed him, it was a justifiable act of self-defense and she should be acquitted of any crime whatever.
Where the evidence relied upon to prove the guilt of the accused is circumstantial, it is essential, first, that such circumstances be proved to the satisfaction of the jury beyond a reasonable doubt; second, that such circumstances be in all respects consistent with the theory of the guilt of the accused, *60and, third, that such circumstances be inconsistent with any other reasonable theory than the guilt of the accused. In other, words, there should not be a conviction upon circumstantial evidence unless such evidence be sufficient to exclude any reasonable inference or conclusion other than that the accused is guilty of the crime charged.
Neither the written or oral statements or evidence before you made by the prisoner as to this tragedy can properly be called confessions, as in all of them she denies any guilt whatever. But the rules governing confessions are applicable to such statements. A free and voluntary confession is generally deserving of the highest credit, because it is against the interest of the person making it and is presumed to flow from a sense of guilt. The whole of what the prisoner said upon the subject at the time of making the statement or confession should be taken together and considered by the jury, but all parts of a confession, whether for or against the prisoner, are not necessarily entitled to equal credit. The prosecution is at liberty to deny or contradict any part of such statement or confession. In determining the credit to be given to such statement or confession the jury may reject as not entitled to belief such parts of it as are contrary to other parts of it, or in conflict with the facts which are proved to the satisfaction of the jury. The jury may believe that part of the statement or confession which charges the prisoner and reject that which is in her favor, if under all the circumstances of the case they find sufficient ground for so doing. The duty of the jury with respect to statements or confessions of the prisoner and in respect to her own testimony and the testimony of other witnesses is precisely the same. The jury should believe so much of such confession or statement and testimony as they deem true or worthy of belief and reject so much of the same as they deem false or unworthy of belief.
In criminal cases the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt; and if after carefully and conscientiously considering and weighing all the evidence in this case you should entertain a reasonable doubt of the guilt of the prisoner, that *61doubt must inure to her benefit and your verdict should be not guilty. But such a doubt does not mean a mere fanciful, vague, or speculative doubt, but a reasonable, substantial doubt remaining in your minds after a careful consideration of all the evidence, and such a doubt as a reasonable, fair-minded and conscientious man would entertain under all the facts and circumstances of the case.
Under this indictment, if the evidence shall so warrant, you may find the prisoner guilty in manner and form as she stands indicted, that is, guilty of murder in the first degree; or, guilty of murder in the second degree, or guilty of manslaughter, or not guilty.
Verdict: Guilty of murder in the second degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482537/ | IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 142
October Term, A.D. 2022
November 9, 2022
IN THE MATTER OF THE PETITION
FOR WITHDRAWAL OF BAR
MEMBER:
COLLIN C. HOPKINS, 6-4032
ORDER TERMINATING ATTORNEY’S MEMBERSHIP IN THE WYOMING STATE BAR
[¶1] This matter came before the Court upon a Report and Recommendation Approving
Request for Resignation and Petition for Withdrawal of Bar Member Collin C. Hopkins,
filed herein October 31, 2022, by the Executive Director of the Wyoming State Bar,
pursuant to Article I, Section 4 of the Bylaws of the Wyoming State Bar. The State Bar
requests that this Court approve Collin C. Hopkins’s request that his membership in the
Wyoming State Bar be terminated. After a careful review of the Report and
Recommendation, the material attached thereto, and the file, this Court finds Mr. Hopkins’s
membership in the Wyoming State Bar should be terminated. It is, therefore,
[¶2] ORDERED that Collin C. Hopkins’s membership in the Wyoming State Bar is
terminated, effective October 31, 2022; and it is further
[¶3] ORDERED that the Clerk of this Court shall docket this Order Terminating
Attorney’s Membership in the Wyoming State Bar as a matter coming regularly before this
Court as a public record; and it is further
[¶4] ORDERED that this Order Terminating Attorney’s Membership in the Wyoming
State Bar shall be published in the Wyoming Reporter and the Pacific Reporter; and it is
further
[¶5] ORDERED that the Clerk of this Court cause a copy of this Order Terminating
Attorney’s Membership in the Wyoming State Bar to be served upon Collin C. Hopkins.
[¶6] DATED this 9th day of November, 2022.
BY THE COURT:
/s/
KATE M. FOX
Chief Justice | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482531/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
WILLIAM B.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.B.,
Appellees.
No. 1 CA-JV 22-0078
FILED 11-8-2022
AMENDED PER ORDER FILED 11-08-2022
Appeal from the Superior Court in Maricopa County
No. JD534480
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee
WILLIAM B. v. DCS, B.B.
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 William B. ("Father") appeals the superior court's dependency
and disposition orders. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the legal parent of B.B. ("Child"), born in 2004.
Child's biological parents are not parties to this appeal.
¶3 Child was born substance-exposed to marijuana. To avoid
placing Child in the foster-care system, Father has cared for Child from
birth. Initially, Father and Child lived with Child's great-grandmother,
great-grandfather, and great-aunt.
¶4 In 2010, the family court granted Child's biological mother's
request for Father to have sole custody of Child. Subsequently, Father got
married and Child lived with Father, Father's wife, and Father's daughter.
Later, Father acceded to great-grandmother's request that Child live with
her. Child then went to live with his aunt and uncle. In 2020, Child
returned to Father's home after the aunt and uncle reported that Child hit
their minor daughter.
¶5 In December 2021, Father learned that Child had allegedly
sexually assaulted his minor cousin in 2019 while living with his aunt and
uncle. Father then contacted the Department of Child Safety ("DCS") to
remove Child from Father's home. Father insisted that DCS remove Child
from his home and told the DCS investigator that he believed Child posed
a risk to the other minor children living in Father's home and no relative
was willing to care for Child at the time. The court ordered Child into
temporary out-of-home care and DCS placed Child in an independent-
living group home.
¶6 Shortly after, DCS filed a dependency petition alleging Father
(1) neglected Child due to his inability or unwillingness to provide Child
with supervision, food, clothing, shelter, or medical care, which placed
2
WILLIAM B. v. DCS, B.B.
Decision of the Court
Child in an unreasonable risk of harm; and (2) was unwilling or unable to
provide proper and effective parental care. At the pretrial conference
hearing, Father contested the allegations of the dependency petition and the
court ordered Child into his great-aunt's care.
¶7 At the March 2022 dependency hearing, Father requested that
the court find Child dependent on the inability-to-parent ground but
contested the neglect ground. After adjudicating Child dependent, the
court held a disposition hearing and ordered a case plan of supervised
independent living.
¶8 In July 2022, a week before Child's eighteenth birthday, the
court dismissed the dependency action and affirmed the case plan of
independent living. While living with his great-aunt and shortly after his
eighteenth birthday, Child executed a voluntary agreement under A.R.S. §
8-521.02(3) to participate in the extended foster care program.
¶9 Father timely appealed. We have jurisdiction under A.R.S. §§
8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶10 We review a dependency order for an abuse of discretion,
Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015), and view
the evidence in the light most favorable to upholding the court's order,
Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005).
Because trial courts are "in the best position to weigh the evidence, observe
the parties, judge the credibility of witnesses, and resolve disputed facts,"
Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004), we
will affirm an order if reasonable evidence supports it, Willie G., 211 Ariz.
at 235, ¶ 21. DCS bears the burden of proving the allegations of a
dependency petition by a preponderance of the evidence. A.R.S. § 8-
844(C)(1); Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 50, ¶ 13 (App. 2016).
Moreover, the circumstances that indicate dependency must be present at
the time of the adjudication. Shella H., 239 Ariz. at 50, ¶ 12.
¶11 We note that the dismissal of the dependency petition does
not render Father's appeal moot. See A.R.S. § 8-804(A), (G) (requiring DCS
to maintain a central registry of "substantiated" reports of child neglect—
dependency based on an allegation of neglect is a substantiated report that
must be maintained for a maximum of 25 years); see, e.g., Bradley T. v. Dep't
of Child Safety, 1 CA-JV 20-0036, 2020 WL 3970994, at *1, ¶ 5 n.4 (Ariz. App.
July 14, 2020) (mem. decision) (considering the merits of an appeal based
on a dependency finding of neglect despite the child turning 18).
3
WILLIAM B. v. DCS, B.B.
Decision of the Court
I. Neglect Ground.
¶12 We reject Father's argument that reasonable evidence does
not support the court's order adjudicating Child dependent on the neglect
ground. We will affirm an order unless no reasonable evidence supports
the court's findings. Willie G., 211 Ariz. at 235, ¶ 21.
¶13 A child is dependent if his home is unfit due to neglect by a
parent. A.R.S. § 8-201(15)(a)(iii). Neglect means the "inability or
unwillingness of a parent, guardian or custodian of a child to provide that
child with supervision, food, clothing, shelter or medical care if that
inability or unwillingness causes unreasonable risk of harm to the child's
health or welfare." A.R.S. § 8-201(25)(a)(2019). Moreover, a dependency
adjudication must be "based upon the circumstances existing at the time of
the adjudication hearing" and "not merely on past circumstances." Francine
C. v. Dep't of Child Safety, 249 Ariz. 289, 300, ¶ 35 (App. 2020) (quoting Shella
H., 239 Ariz. at 50, ¶ 12).
¶14 At the dependency hearing, the court heard evidence that (1)
Father did not know the learning disability Child had been diagnosed with
and the services that Child received under Child's individualized education
plan ("IEP"), (2) Father had not taken Child to a dentist in the year and a
half Child lived with Father, (3) Father had not taken Child to a doctor while
Child lived with Father despite Child requiring an inhaler, (4) Father did
not seek out professional counseling for Child when Child expressed that
he "felt like self-harming," and (5) Father had not visited or attempted to
visit Child since his removal in December 2021. Thus, based upon the
circumstances that existed at the time of the adjudication hearing,
reasonable evidence supports the court's finding that Father neglected
Child due to Father's inability or unwillingness to provide Child with
supervision and medical care. See A.R.S. § 8-201(25)(a) (defining neglect).
¶15 Moreover, Father's inability or unwillingness caused
unreasonable risks of harm to Child's health or welfare. See A.R.S. § 8-
201(25)(a). The court heard evidence that Child required extensive dental
care after he was removed from Father's care, and Father did not arrange
counseling when Child told Father he thought about hurting himself. In
addition, the DCS investigator testified about Child's developmental
shortcomings, struggles in school, and Father's belief that Child was lazy
even though Child required an IEP.
¶16 The burden of proof to establish a dependency is less than
required for termination of parental rights. See A.R.S. § 8-537(B) (requiring
4
WILLIAM B. v. DCS, B.B.
Decision of the Court
clear and convincing evidence for termination proceedings). The record
contains reasonable evidence to support the court's findings. See Willie G.,
211 Ariz. at 235, ¶ 21 ("On review of an adjudication of dependency, we
view the evidence in the light most favorable to sustaining the juvenile
court's findings."); Oscar O., 209 Ariz. at 334, ¶ 4 ("A juvenile court as the
trier of fact in a termination proceeding is in the best position to weigh the
evidence . . . .").
II. Inability-to-Parent Ground.
¶17 We also reject Father's argument that the court did not make
sufficient findings of fact to support the inability-to-parent ground. When
courts find DCS has proven the allegations in a dependency petition by a
preponderance of the evidence, they must "state specific facts that support
a finding of dependency." Ariz. R.P. Juv. Ct. 338(h)(4). A court's finding
must include all the "ultimate facts," but it need not list "each fact that
supports its ruling." Francine C., 249 Ariz. at 296, ¶ 14 (citations omitted).
"[U]ltimate facts are at least the essential and determinative facts on which
the conclusion was reached. They are the controlling facts, without which
the court cannot correctly apply the law in resolving the disputed issues in
the case." Id. (quoting Logan B. v. Dep't of Child Safety, 244 Ariz. 532, 537, ¶ 15
(App. 2018)). "We review the sufficiency of findings of fact de novo as a
mixed question of fact and law." Id.
¶18 Here, the court found DCS had proven by a preponderance of
the evidence that Child is dependent as to Father on the grounds that Father
is unable or unwilling to provide the child with proper and effective
parental care and control. See A.R.S. § 8-201(15)(a)(i) (defining dependency
on the inability-to-parent ground). The court adjudicated Child dependent
by finding "Father refuse[d] to have the child back in his home due to
allegations of inappropriate conduct by the child." There is no dispute that
Father asked the court to find Child dependent on the inability-to-parent
ground. Because the court's finding of fact is sufficient, the court did not
abuse its discretion. Louis C., 237 Ariz. at 488, ¶ 12.
CONCLUSION
¶19 We affirm the dependency. We also note that Child has
voluntarily agreed to participate in DCS's extended foster care program.
See A.R.S. § 8-521.02(A)(1) (qualifying young adults must "have been in the
custody of [DCS] as a dependent child" when they turned 18). Because the
extended foster care program is consistent with the court's disposition
5
WILLIAM B. v. DCS, B.B.
Decision of the Court
order of supervised independent living, we affirm the court's disposition
order.
AMY M. WOOD • Clerk of the Court
FILED: JT
6 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482534/ | IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 141
October Term, A.D. 2022
November 9, 2022
SHANE JAY WILLIAMS,
Appellant
(Defendant),
S-22-0185, S-22-0186,
v.
S-22-0187, S-22-0188
THE STATE OF WYOMING,
Appellee
(Plaintiff).
ORDER OF AFFIRMANCE
[¶1] This matter came before the Court upon its own motion following receipt of
Appellant’s Appeal brief letter, which was filed October 24, 2022, in docket S-22-0185.
Pursuant to a plea agreement, the district court resolved the cases that give rise to the
captioned appeals. In S-22-0185 and S-22-0186, Appellant seeks review of orders revoking
his probation, which stemmed from convictions for check fraud. Wyo. Stat. Ann. § 6-3-
702. In both cases, Appellant admitted he violated his probation, based on being charged
with additional offenses. Following the probation revocations, the district court imposed
the underlying three to five-year sentences. In S-22-0187 and S-22-0188, Appellant seeks
review of two convictions for burglary. Wyo. Stat. Ann. § 6-3-301. Appellant entered
unconditional guilty pleas to those charges. The district court imposed a five to seven-year
sentence on each count. The district court ordered all four sentences be served concurrently.
[¶2] On September 8, 2022, Appellant’s court-appointed appellate counsel e-filed
Motions to Withdraw as Counsel, pursuant to Anders v. California, 386 U.S. 738, 744, 87
S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). This Court subsequently entered orders granting
extensions of time to file pro se briefs. This Court ordered that, on or before October 24,
2022, Appellant was permitted to file with this Court pro se briefs specifying the issues he
would like the Court to consider in these appeals. This Court also provided notice that,
after the time for filing pro se briefs expired, this Court would make its ruling on counsel’s
motions to withdraw and, if appropriate, make a final decision on these appeals. In dockets
S-22-0186, S-22-0187, and S-22-0188, Appellant did not file a pro se brief or other
pleading in the time allotted. In docket S-22-0185, Appellant filed an Appeal brief letter.
[¶3] Now, following a careful review of that letter, the records, and the Anders briefs
submitted by appellate counsel, this Court finds appellate counsel’s motions to withdraw
should be granted and the probation revocations and the judgments should be affirmed. It
is, therefore,
[¶4] ORDERED that the captioned appeals are consolidated; and it is further
[¶5] ORDERED that the Wyoming Public Defender’s Office, court-appointed counsel
for Appellant Shane Jay Williams, is hereby permitted to withdraw as counsel of record
for Appellant; and it is further
[¶6] ORDERED that, in docket S-22-0185, the Laramie County District Court’s
October 19, 2021, Order Revoking Probation and Imposing Sentence be, and the same
hereby is, affirmed; and it is further
[¶7] ORDERED that, in docket S-22-0186, the Laramie County District Court’s
October 19, 2021, Order Revoking Probation and Imposing Sentence be, and the same
hereby is, affirmed; and it is further
[¶8] ORDERED that, in docket S-22-0187, the Laramie County District Court’s
October 19, 2021, Judgment and Sentence be, and the same hereby is, affirmed; and it is
further
[¶9] ORDERED that, in docket S-22-0188, the Laramie County District Court’s
October 19, 2021, Judgment and Sentence be, and the same hereby is, affirmed.
[¶10] DATED this 9th day of November, 2022.
BY THE COURT:
/s/
KATE M. FOX
Chief Justice | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482535/ | THE SUPREME COURT, STATE OF WYOMING
2022 WY 143
OCTOBER TERM, A.D. 2022
November 9, 2022
MICHAEL DAVID LOTT,
Appellant
(Defendant),
v. S-22-0047
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable Kerri M. Johnson, Judge
Representing Appellant:
Office of Public Defender: Diane M. Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel; H. Michael Bennett, Senior Assistant Appellate
Counsel.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua
C. Eames*, Senior Assistant Attorney General; Timothy P. Zintak*, Senior
Assistant Attorney General.
* An Order Allowing Withdrawal of Counsel was entered on August 1, 2022.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FENN, Justice.
[¶1] A jury convicted Michael David Lott of two counts of felony child endangerment
and one count of misdemeanor possession of methamphetamine. He appeals his
convictions arguing the prosecutor made two statements that amounted to prejudicial
prosecutorial misconduct. We affirm.
ISSUE
[¶2] Were the prosecutor’s comments during opening and closing statements prejudicial
to Mr. Lott?
FACTS
[¶3] On May 17, 2021, while on probation for felony child endangerment, Michael Lott
submitted a urine sample that tested presumptively positive for methamphetamine. His
probation agent confronted him with the positive test result, and he eventually admitted to
recent methamphetamine use. His probation agent requested assistance from the Mills
Police Department to use a K9 officer to conduct a search of Mr. Lott’s vehicle. Corporal
Kate Acord and her K9, Archer, were dispatched to the probation and parole office in Mills,
Wyoming.
[¶4] When Corporal Acord deployed Archer around Mr. Lott’s vehicle, the dog alerted
to the odor of narcotics, but no drugs were discovered during the subsequent search of his
vehicle. His probation agent decided to search Mr. Lott’s residence, which he shared with
his significant other, Jackie Flores, and their four children: MW, BP, IL, and WL. Ms.
Flores was also on probation, so two probation agents and Corporal Acord went to Mr.
Lott’s residence.
[¶5] Ms. Flores and two of the children, IL and WL, were inside the residence. The older
children, MW and BP, were at school. Ms. Flores was asleep in one of the bedrooms, and
Mr. Lott had difficulty waking her up. Ms. Flores was taken outside, but IL and WL were
allowed to remain in the home. Mr. Lott and Ms. Flores both showed signs of ongoing
methamphetamine use, including greyish complexions, low body weight, and poor dental
health.
[¶6] Corporal Acord entered the residence with Archer, who alerted to the presence of
narcotics in the bedroom where Ms. Flores was sleeping. During their subsequent search
of that room, the probation agents found a piece of glass/mirror with a small amount of a
white crystalline substance on it, which they believed to be methamphetamine. They also
discovered a razor blade and an X-acto knife on the glass, which indicated to them the
methamphetamine was ready to ingest. The probation agents also located the kind of
butane torch commonly used to smoke methamphetamine. The substance was field tested,
1
and it was presumptively positive for methamphetamine. The State Crime Lab later
confirmed the substance was methamphetamine.
[¶7] Corporal Acord spoke to Mr. Lott after the methamphetamine was discovered. She
advised him of his rights pursuant to Miranda. During this conversation, Mr. Lott told
Corporal Acord he brought items into the home from his storage unit the previous evening.
At first, Mr. Lott claimed he did not know the methamphetamine was in those items.
Corporal Acord informed him the methamphetamine was cut with a razor blade and
appeared to be ready to ingest. He then claimed he found the methamphetamine in the
items that he brought from storage that morning, and he did not “put it away.” Mr. Lott
made multiple admissions that the methamphetamine was his. He stated it would not be
fair to punish Ms. Flores for his actions. Ms. Flores denied any knowledge of the drugs,
and her probation agent confirmed her recent urine sample tested negative for controlled
substances.
[¶8] The State charged Mr. Lott with four counts of felony child endangerment and one
count of misdemeanor possession of a controlled substance. After a two-day jury trial, Mr.
Lott was convicted of the child endangerment counts related to IL and WL and the
possession count. He was acquitted of the child endangerment counts related to BP and
MW. He was sentenced to three-to-five years in prison for both child endangerment counts
and 26 days in jail for the possession charge. Those sentences would run concurrently with
each other, but consecutive to the sentence in his previous case. This appeal timely
followed.
DISCUSSION
[¶9] Mr. Lott complains about two almost identical statements the prosecutor made
during his trial. The first challenged statement occurred at the very beginning of the State’s
opening statement:
Ladies and gentlemen, the use of methamphetamine, its storage
and possession, are fundamentally inconsistent with the health
and safety of small children. What you’re going to hear in this
case is that on May 17th of this year, Mr. Lott decided to pick
methamphetamine over the safety of his children.
The second challenged statement occurred near the end of the State’s closing argument:
Ladies and gentlemen, he’s the one that’s responsible here.
He’s the one that chose methamphetamine over his own
children, and that is why he is guilty is [sic] of these charges
under the evidence.
2
Mr. Lott asserts these comments constituted prosecutorial misconduct because they
“served no purpose other than to inflame the passions of the jury.” He further asserts
“[c]hoosing methamphetamine over his children was not an element of the charged crime,”
and the prosecutor’s comments “tempt[ed] the jury to find Mr. Lott guilty based on their
sympathy for the children rather than the evidence.” The State argues these remarks did
not constitute prosecutorial misconduct, and we should affirm Mr. Lott’s conviction
because he “cannot explain how the prosecutor’s remarks would have influenced the jury’s
decision.”
[¶10] “Prosecutorial misconduct occurs when a prosecutor illegally or improperly
attempts to persuade a jury ‘to wrongly convict a defendant or assess an unjustified
punishment.’” Armajo v. State, 2020 WY 153, ¶ 32, 478 P.3d 184, 193 (Wyo. 2020)
(quoting Hartley v. State, 2020 WY 40, ¶ 9, 460 P.3d 716, 719 (Wyo. 2020)). Mr. Lott
“bears the burden of establishing prosecutorial misconduct.” Mendoza v. State, 2021 WY
127, ¶ 12, 498 P.3d 82, 85 (Wyo. 2021) (quoting Armajo, ¶ 32, 478 P.3d at 193). Because
Mr. Lott “did not object to either of these statements at trial, we review for plain error.” Id.
(citing Ridinger v. State, 2021 WY 4, ¶ 32, 478 P.3d 1160, 1168 (Wyo. 2021)). Under this
standard, Mr. Lott must show “(1) the record is clear about the incident alleged as error;
(2) a violation of a clear and unequivocal rule of law; and (3) he was denied a substantial
right resulting in material prejudice.” Id. (quoting Ridinger, ¶ 33, 478 P.3d at 1168).
“Failure to establish each element precludes a finding of plain error.” Klingbeil v. State,
2021 WY 89, ¶ 40, 492 P.3d 279, 288 (Wyo. 2021) (quoting Lewis v. State, 2018 WY 136,
¶ 13, 430 P.3d 774, 777 (Wyo. 2018)). “[O]ur review is focused on whether the error
affected [Mr. Lott’s] substantial right to a fair trial.” Dixon v. State, 2019 WY 37, ¶ 40, 438
P.3d 216, 231 (Wyo. 2019) (citing McGinn v. State, 2015 WY 140, ¶ 13, 361 P.3d 295,
299 (Wyo. 2015)).
[¶11] The first prong of plain error review is satisfied in this case “because the allegedly
improper comments clearly appear in the record.” Ridinger, ¶ 34, 478 P.3d at 1168. We
find this case is one where it is appropriate to “address the prejudice element of the plain
error test first, without addressing whether there has been a violation of a clear and
unequivocal rule of law.” Klingbeil, ¶ 43, 492 P.3d at 288 (quoting Leners v. State, 2021
WY 67, ¶ 23, 486 P.3d 1013, 1018 (Wyo. 2021)). We review the entire record to determine
if Mr. Lott was prejudiced. Id. at ¶ 44, 492 P.3d at 289 (quoting Hathaway v. State, 2017
WY 92, ¶ 33, 399 P.3d 625, 634 (Wyo. 2017)). When “conducting this review, we are
mindful of our ‘reluctance to find plain error in closing arguments lest the trial court
becomes required to control argument because opposing counsel does not object.’”
Ridinger, ¶ 33, 478 P.3d at 1168 (quoting Trujillo v. State, 2002 WY 51, ¶ 4, 44 P.3d 22,
24 (Wyo. 2002)). Mr. Lott “must establish he suffered material prejudice from the error
by demonstrating it is reasonably probable he would have received a more favorable verdict
if the error had not been made.” Klingbeil, ¶ 43, 492 P.3d at 288 (quoting Leners, ¶ 24, 486
P.3d at 1018). He “must show prejudice under ‘circumstances which manifest inherent
3
unfairness and injustice or conduct which offends the public sense of fair play.’” Id., 492
P.3d at 288–89 (quoting McGinn, 2015 WY 140, ¶ 13, 361 P.3d at 299).
[¶12] “The most important factor in our prejudice analysis is the strength of the State’s
case.” Shields v. State, 2020 WY 101, ¶ 40, 468 P.3d 1097, 1108 (Wyo. 2020) (citing
Bogard v. State, 2019 WY 96, ¶ 72, 449 P.3d 315, 332 (Wyo. 2019)). Mr. Lott asserts he
was prejudiced by the prosecutor’s comments because the jury heard evidence implicating
Ms. Flores, and the evidence against him “was not so overwhelming that such improper
comments would have no effect.” We disagree.
[¶13] It is undisputed officers found methamphetamine in Mr. Lott’s home where two of
his children were present. Although Mr. Lott did not testify at trial, his statements to law
enforcement were played for the jury. In these statements, Mr. Lott repeatedly admitted
the methamphetamine was his. Mr. Lott stated he found the methamphetamine that
morning, and he did not “put it away.” Mr. Lott admitted to recent, ongoing
methamphetamine use, and he tested positive for methamphetamine on the day of the
search.
[¶14] To convict Mr. Lott of child endangerment, the State did not have to prove it was
Mr. Lott, and not Ms. Flores, who had ingested methamphetamine in the home. Rather,
the State had to prove Mr. Lott had the care or custody of the children, and that he
knowingly and willfully permitted the children to remain in a dwelling where he knew
methamphetamine was being possessed, stored, or ingested. Wyo. Stat. Ann. § 6-4-405(b)
(LexisNexis 2021). The evidence presented by the State proved each of these elements.
Mr. Lott knew the methamphetamine was in his home, he did not remove it from the home,
and he allowed two of his children to remain in the home with the methamphetamine. To
convict Mr. Lott of possession, the State needed to prove he knowingly and intentionally
possessed a controlled substance. Wyo. Stat. Ann. § 35-7-1031(c) (LexisNexis 2021). Mr.
Lott repeatedly admitted to the essential elements of the possession charge.
[¶15] Considering his admissions and the other evidence presented at trial, Mr. Lott failed
to demonstrate a reasonable probability the outcome of his trial would have been different
had the prosecutor not made the challenged statements. Klingbeil, 2021 WY 89, ¶ 43, 492
P.3d at 288 (quoting Leners, 2021 WY 67, ¶ 24, 486 P.3d at 1018). We conclude the
challenged statements did not affect Mr. Lott’s substantial right to a fair trial. Shields, 2020
WY 101, ¶ 43, 468 P.3d at 1109 (citing Bogard, ¶ 18, 449 P.3d at 321).
CONCLUSION
[¶16] Mr. Lott failed to establish the prosecutor’s statements denied him a substantial right
or materially prejudiced his case. Therefore, he failed to establish plain error occurred, and
his convictions are affirmed.
4 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482549/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TAHARRA ASSETS 5545, INC.,
Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, etc., et al.,
Appellees.
No. 4D21-2709
[November 9, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrea Gundersen, Judge; L.T. Case No. CACE-08-
000858 (11).
Joseph J. Portuondo, Coral Gables, for appellant.
Joseph G. Paggi III of Deluca Law Group, PLLC, Fort Lauderdale, for
appellee U.S. Bank National Association, etc.
PER CURIAM.
Affirmed.
WARNER, DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482548/ | Filed 11/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049838
(Santa Cruz County
Plaintiff and Appellant, Super. Ct. Nos. 20CR03618 &
21AP00003)
v.
ROBERT AMBROSE BUCHANAN IV,
Defendant and Respondent.
H049839
THE PEOPLE, (Santa Cruz County
Super. Ct. Nos. 20CR03330 &
Plaintiff and Appellant, 21AP00002)
v.
KAREN GINGER DOWNS,
Defendant and Respondent.
Among the rights the Sixth Amendment guarantees to a person accused in a
criminal prosecution is the right to a speedy trial. These appeals by the Santa Cruz
County District Attorney turn on whether a person cited and released on a written
promise to appear under Penal Code section 853.61 is “accused” for Sixth Amendment
purposes in the interval between the promised appearance date and the state’s later filing
of a misdemeanor complaint. Although we consider the citation to be an accusation
1
Undesignated statutory references are to the Penal Code.
otherwise sufficient to initiate Sixth Amendment protection against delay, we conclude
that the District Attorney’s election not to file formal charges by the appearance date
ceased any legal restraint upon the accused and had the same effect, for constitutional
speedy trial purposes, as a dismissal of charges. Accordingly, we reverse the trial court’s
judgments dismissing the prosecutions of Robert Ambrose Buchanan IV and Karen
Ginger Downs.
I. BACKGROUND
A. The Arrests and the Filing of the Complaints
The procedural history for each of these cases is, for our purposes, identical. Law
enforcement officers separately arrested Buchanan and Downs for driving under the
influence of alcohol or drugs (DUI) in violation of Vehicle Code section 23152 and
released each with a Judicial Council of California Form TR-130 Notice to Appear.
Buchanan and Downs each signed their respective notice to appear—each of which
included the issuing officer’s declaration alleging the facts of the misdemeanor
violation—agreeing to appear in court on a specified date and time more than 25 days
later.
The court date specified on each notice to appear passed without the filing of
charges as to either defendant, but the District Attorney ultimately filed charges against
each defendant just as the one-year statute of limitations for misdemeanor DUIs was
about to expire.
Buchanan and Downs were arraigned about 90 days after the District Attorney
filed charges, and nearly 15 months after arrest.
Date Buchanan Downs
Arrest and Notice to Appear August 18, 2019 August 2, 2019
Noticed Court Date September 23, 2019 September 17, 2019
2
Complaint Filed August 17, 2020 July 31, 2020
Arraignment on Complaint November 16, 2020 October 23, 2020
B. Dismissal and Appeal
Following arraignment, Buchanan and Downs each moved to dismiss the
complaint against them, asserting violation of their speedy trial rights. In a combined
hearing, the trial court determined that (1) the defendants were and remained “accused”
within the meaning of the Sixth Amendment speedy trial guarantee from the day law
enforcement arrested and released them on notices to appear; (2) the lapse of more than
one year from the issuance of the notice to appear was presumptively prejudicial under
Barker v. Wingo (1972) 407 U.S. 514; and (3) although the delay of nearly a year from
arrest to the filing of the complaints was justified by a commensurate delay in analyzing
blood specimens collected upon arrest; (4) the further delay between the filing of the
complaint and arraignment was unjustified. The trial court therefore dismissed both
actions.
The superior court’s appellate department reversed, in split decisions, but certified
the cases for transfer to this court. This court ordered both cases transferred pursuant to
California Rules of Court, rules 8.1002 and 8.1008 and ordered both cases considered
together for the purposes of oral argument and disposition.
II. DISCUSSION
Although we review a trial court’s grant or denial of a speedy trial motion for
abuse of discretion (People v. Vila (1984) 162 Cal.App.3d 76, 85; People v. Cowan
(2010) 50 Cal.4th 401, 431), “the deference [this standard] calls for varies according to
the aspect of a trial court’s ruling under review.” (Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711.) We review de novo a trial court’s conclusions of law. (Id. at
p. 712.) Here, the trial court’s decision to grant defendants’ speedy trial motions hinged
3
on its threshold determination that defendants were entitled to a presumption of prejudice
because the Sixth Amendment speedy trial time period ran uninterrupted from the date of
citation.
But because both Buchanan and Downs ceased to be under continuing restraint
once the date originally noticed for their appearance passed without formal charge, their
Sixth Amendment speedy trial right did not reattach until the District Attorney filed the
operative charging document.2
A. Sixth Amendment Speedy Trial Right
“On its face, the protection of the [Sixth] Amendment is activated only when a
criminal prosecution has begun and extends only to those persons who have been
‘accused’ in the course of that prosecution.” (U.S. v. Marion (1971) 404 U.S. 307, 313
(Marion).) “ ‘The Sixth Amendment right to a speedy trial is . . . not primarily intended
to prevent prejudice to the defense caused by the passage of time; that interest is
primarily protected by the Due Process Clause and by statutes of limitations.’ ” (Serna,
supra, 40 Cal.3d at p. 259, quoting United States v. MacDonald (1982) 456 U.S. 1, 8
(MacDonald); see also Marion, supra, 404 U.S. at p. 320; People v. Martinez (2000) 22
Cal.4th 750, 760-761 (Martinez).) Rather, the right’s purpose is to prevent prejudice to
the defendant personally, as distinct from the defendant’s ability to answer the charges:
although chief among the harms to be mitigated are “ ‘the possibility of lengthy
incarceration prior to trial, [and] the lesser, but nevertheless substantial, impairment of
liberty imposed on an accused while released on bail,’ ” the Sixth Amendment speedy
trial right is also intended “ ‘to shorten the disruption of life caused by arrest and the
presence of unresolved criminal charges.’ ” (Serna, supra, 40 Cal.3d at pp. 259-260.)
2
In this court, defendants assert no violation of the California Constitution’s
speedy-trial right, which attaches in a misdemeanor prosecution when a criminal
complaint is filed. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 248 (Serna); Cal.
Const., art. I, § 5.)
4
Delay exceeding one year before the trial of a person thus accused is presumptively
prejudicial, and dismissal of the charges “constitutionally compelled in the absence of a
demonstration of good cause for the delay.” (Id. at p. 254.)
“[T]he Sixth Amendment right to speedy trial attaches in misdemeanor
prosecutions, as it does in felonies, with the filing of the accusatory pleading, here a
misdemeanor complaint, or arrest, whichever is first.” (Serna, supra, 40 Cal.3d at p. 262,
fn. omitted.)3 An arrest represents the government’s assertion of probable cause to
believe the arrestee has committed a crime. (Martinez, supra, 22 Cal.4th at p. 762,
quoting Dillingham v. United States (1975) 423 U.S. 64, 65 (Dillingham).) “Arrest is a
public act that may seriously interfere with the defendant’s liberty, whether he is free on
bail or not, and that may disrupt his employment, drain his financial resources, curtail his
associations, subject him to public obloquy, and create anxiety in him, his family and his
friends . . . .” (Marion, supra, 404 U.S. at p. 320.)
As our Supreme Court has explained, however, an “arrest” does not render a
person an “accused” under the Sixth Amendment indefinitely: “it appears that the [Sixth
Amendment right to a speedy trial] attaches upon arrest unless the defendant is released
without restraint or charges are dismissed.” (Martinez, supra, 22 Cal.4th at p. 762; see
also Dillingham, supra, 423 U.S. at p. 65; United States v. Loud Hawk (1986) 474 U.S.
302, 311 (Loud Hawk); MacDonald, supra, 456 U.S. at pp. 8-9.) The Sixth Amendment
speedy trial right does not apply once the defendants are “ ‘freed without restraint’ ” or
“ ‘[o]nce charges are [initially] dismissed.’ ” (Martinez, supra, 22 Cal.4th at pp. 762-
3
Unlike in a misdemeanor proceeding, the filing of a felony complaint does not
trigger the Sixth Amendment speedy trial right. (Martinez, supra, 22 Cal.4th at pp. 763,
765 [Sixth Amendment “speedy trial right does not attach upon the filing of a felony
complaint, but only upon either arrest with continuing restraint or the filing of an
indictment, an information, or a complaint charging a misdemeanor”].)
5
763, quoting Loud Hawk, supra, 474 U.S. at p. 311 and MacDonald, supra, 456 U.S. at
p. 8.)
B. Arrests by Citation under Section 853.6
To begin, we reject the District Attorney’s contention that defendants were not
subject to continuing restraint from issuance of the citation and release upon their
promises to appear.4 Issuance of the citation served defendants with notice not only of
the issuing officer’s accusation and assertion of probable cause but of their obligation to
appear in court on a date certain on pain of further criminal liability. (See § 853.7; Veh.
Code, § 40508, subd. (a).) We conclude the statutory scheme at least initially subjected
defendants to restraint sufficient to implicate Sixth Amendment protection.
Unless they demand to immediately appear before a magistrate, a person arrested
for a misdemeanor offense, “in order to secure release, shall give their written promise to
appear” for arraignment as directed in a citation, or notice to appear. (§ 853.6, subd. (d).)
The written notice to appear, prepared in duplicate, bears “the name and address of the
person, the offense charged, and the time when, and place where, the person shall
appear . . . .” (§ 853.6, subd. (a)(1).) As the arrestee’s copy of the notice warns, failure
to appear is punishable as a misdemeanor. (§ 853.7; Veh. Code, § 40508, subd. (a);
Judicial Council of California Form TR-130 [“WARNING: If you fail to appear in court
as you have promised, you may be arrested and punished by 6 MONTHS IN JAIL
AND/OR A $1,000 FINE regardless of the disposition of the original charge”]5.)
We reject defendants’ contention that the District Attorney forfeited this
4
contention by failing to raise it in the trial court: the District Attorney plainly argued that
the speedy trial right did not attach upon the initial arrest and release.
5
The reverse of the TR-130s issued to defendants is not in the appellate record.
However, the standard language, last revised on June 26, 2015, is made publicly available
on the California Courts’ website. We take judicial notice on our own motion of the
standardized language. (See Evid. Code, §§ 459, subd. (a), 452, subds. (c) & (h).)
6
Under subdivision (e) of section 853.6, the prosecuting attorney can direct the
officer to directly file the duplicate notice with the court as the operative misdemeanor
charging document, as is the practice with infraction offenses; otherwise, the “duplicate
notice and underlying police reports in support of the charge shall be filed with the
prosecuting attorney.” (§ 853.6, subd. (e)(1)-(3)(A).) Where the officer files the notice
with the prosecuting attorney in lieu of the court, “the prosecuting attorney, within their
discretion, may initiate prosecution by filing the notice or a formal complaint with the
magistrate specified in the duplicate notice within 25 days from the time of arrest. . . .
The failure by the prosecutor to file the notice or formal complaint within 25 days of the
time of the arrest shall not bar further prosecution of the misdemeanor charged in the
notice to appear. However, any further prosecution shall be preceded by a new and
separate citation or an arrest warrant.” (§ 853.6, subd. (e)(3)(B).)
Here, at the time of arrest, the government imposed actual restraints on
defendants’ liberty by, as a condition of their release, requiring them to appear in court at
a designated time to respond to a law enforcement officer’s accusation that they had
committed a misdemeanor offense—actual restraints that would remain in effect unless
and until the prosecuting attorney decided not to file charges. (See Serna, supra, 40
Cal.3d at pp. 259-260.)
To the extent People v. Williams (2012) 207 Cal.App.4th Supp. 1 (Williams)
suggests these restraints are of no constitutional consequence, we disapprove it. (See
Williams, 207 Cal.App.4th Supp. at p. 7 [holding that release on promise to appear did
not amount to “actual restraint”].) In Williams, the Contra Costa County Superior
Court’s appellate department held that a defendant who “was arrested on a misdemeanor
and cite released without bail or other apparent restraint” was not subjected to any actual
restraints. (Ibid.) The court elaborated that the defendant was not “placed under any
conditions of release, . . . restricted from travel, . . . or otherwise [subjected to] and of the
actual restraints that normally accompany an arrest when charges are pending.” (Ibid.)
7
The Williams court dismissed the significance of the requirement to appear on the date
specified in the notice to appear, reasoning that if no complaint was actually filed before
the noticed date then the court would have no basis for issuing an arrest warrant in
response to the failure to appear. (Ibid.)
Unlike the Williams court, we anticipate that a person released on a citation—
subject to a criminally enforceable promise to appear as directed—will take at face value
the unambiguous threat of prosecution for failure to appear. As noted by the dissent in
the appellate department proceedings here, a person released on a citation who willfully
fails to appear on the noticed date could be subject to a new misdemeanor charge for that
failure “ ‘regardless of the disposition of the charge upon which [they were] originally
arrested.’ (Pen. Code, §§ 853.7 and 1320.)” The practical reality that courts may be
unequipped to track failures to appear on citations not filed with the court by the
appearance date does nothing to address the restraint that is “ ‘the disruption of life
caused by arrest and the presence of unresolved criminal charges,’ ” which the Sixth
Amendment right is also intended to mitigate. (See Serna, supra, 40 Cal.3d at p. 260.)
The restraint imposed by the obligation to appear remains in effect unless and until the
state ends it.6
The logical conclusion of following Williams as urged by the District Attorney
would be that an arresting officer could specify on the notice to appear an appearance
6
Martinez, on which Williams relies, does not hold otherwise. (Compare
Williams, supra, 207 Cal.App.4th Supp. at pp. 6-7.) In Martinez, the defendant was
arrested for driving under the influence and provided an address at which she could be
contacted. (Martinez, supra, 22 Cal.4th at p. 756.) Ten days later, the district attorney
filed a felony complaint and sent an arraignment notice to the address provided. (Ibid.)
The Supreme Court did not address the constitutional relevance of the initial arrest,
because “defendant does not contend that her Sixth Amendment speedy trial right
attached upon her initial warrantless DUI arrest in September 1991, apparently because
she was promptly released without bail and without any sort of probable cause
determination by a magistrate.” (Id. at p. 761.)
8
date as much as 364 days from arrest, whether to accommodate delays in analysis of
serological samples, court congestion, or any other bureaucratic or administrative failure
not amounting to a constitutionally adequate justification for delay. As we have
explained, the record before us reflects that, consistent with the statutory scheme,
defendants’ releases were contingent upon their promise to appear in court to answer “the
offense charged” in the notice. (See § 853.6, subd. (a)(1).) Defendants, though released,
remained subject to the “continuing restraint” of the obligation to comply with the notice.
C. Cessation of Continuing Restraint
Nevertheless, the District Attorney elected not to formally charge defendants
pursuant to the Notices to Appear before the deadline set forth in section 853.6,
subdivision (e)(3)(B), or defendants’ court dates, as set forth in the notices. Once the
appearance date passed without formal charges, defendants were effectively “freed
without restraint,” even though they were subject to an ongoing investigation. Under
controlling decisional law, they ceased to be “accused” within the meaning of the Sixth
Amendment speedy trial clause.
In MacDonald, the United States Supreme Court distinguished, for speedy trial
purposes, between an individual facing charges and an individual subjected to an ongoing
investigation after charges have been dismissed. There, the Army formally charged
MacDonald with murdering his pregnant wife and two children on a military reservation.
(MacDonald, supra, 456 U.S. at pp. 3-4.) After collecting information from 56
witnesses, the Army dismissed the charges. (Id. at pp. 4-5.) At the request of the Justice
Department, however, the Army continued its investigation, enabling the Justice
Department to secure a grand jury indictment charging MacDonald with the three
murders more than four years after the Army dismissed its charges. (Id. at p. 5.) The
United States Supreme Court held that the speedy trial guarantee did not apply to the
period between the Army’s dismissal of its homicide charges and the grand jury
indictment. (Id. at pp. 8-11.) The court explained that after dismissal “the formerly
9
accused is, at most, in the same position as any other subject of a criminal
investigation. . . . After the charges against him are dismissed, ‘a citizen suffers no
restraints on his liberty and is [no longer] the subject of public accusation: his situation
does not compare with that of a defendant who has been arrested and held to answer.’
[Citation.] Following dismissal of charges, any restraint on liberty, disruption of
employment, strain on financial resources, and exposure to public obloquy, stress and
anxiety is no greater than it is upon anyone openly subject to a criminal investigation.”
(MacDonald, supra, 456 U.S. at pp. 8-9, fn. omitted.)
Similarly, an arrestee held in custody for 72 hours then released and informed that
no charges were then being filed “stands in the same position as one against whom
charges are filed and then dismissed.” (People v. Price (1985) 165 Cal.App.3d 536, 539,
541 (Price).) Thus, applying MacDonald, the court in Price held that the delay between
arrest and the eventual filing of charges by information did not support dismissal of the
information on Sixth Amendment grounds. (See id. at p. 541; see also Loud Hawk,
supra, 474 U.S. at pp. 307-308, 311-312 [applying MacDonald to exclude from the Sixth
Amendment speedy trial analysis time during which defendants were freed without
restraint while the government appealed the district court’s dismissal of the original
indictment against them].)
The election by a prosecuting attorney not to file a complaint within the initial
25 days contemplated by section 853.6 places the arrestee in a position that is
indistinguishable, for Sixth Amendment speedy trial purposes, from an arrestee who is
free pending an ongoing investigation pursuant to a dismissal or a release without
charges. Once the dates on the Notices to Appear passed without the District Attorney
filing a case against them, defendants were freed without restraint in a position
indistinguishable from any other individual subject to an ongoing criminal investigation.
(See MacDonald, supra, 456 U.S. at pp. 8-9; Loud Hawk, supra, 474 U.S. at p. 311;
Price, supra, 165 Cal.App.3d at p. 541; Williams, supra, 207 Cal.App.4th Supp. at p. 7.)
10
From that date until the District Attorney filed the operative misdemeanor complaints,
they were no longer accused. Defendants accordingly were not entitled to count this time
toward the one-year threshold at which we may presume prejudice.7 (See Serna, supra,
40 Cal.3d at pp. 251-253 [delay of more than one year from filing of the misdemeanor
complaint to the arrest is presumptively prejudicial].)
Although delays of shorter duration may result in actual prejudice warranting
dismissal (see Serna, supra, 40 Cal.3d at p. 254), defendants did not introduce evidence
of actual prejudice in the trial court. Thus, the record did not permit the trial court to
grant defendants’ motions.
III. DISPOSITION
The trial court’s orders dismissing the complaints in both actions are reversed.
7
We need not decide whether the time period between the arrest and the
appearance date on the Notice to Appear may properly be aggregated with a
noncontinuous period of post-complaint delay, as the combined total on this record would
not support a presumption of prejudice.
11
____________________________
LIE, J.
WE CONCUR:
____________________________
GREENWOOD, P.J.
_____________________________
GROVER, J.
People v. Buchanan
H049838
People v. Downs
H049839
Trial Court: Santa Cruz County
Superior Court Nos. 20CR03618,
21AP00003, 20CR03330, and
21AP00002
Trial Judge: The Honorable Samuel S. Stevens
Attorney for Plaintiff and Appellant Jeffrey S. Rosell,
The People of the State of California: District Attorney
Tara L. George,
Chief Deputy District Attorney
Lauren Apter,
Assistant District Attorney
Attorneys for Defendants and Respondents William Safford,
Robert Ambrose Buchanan IV and under appointment by the
Karen Ginger Downs: Court of Appeal for Respondents
People v. Buchanan
H049838
People v. Downs
H049839 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482544/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3256
___________________________
I Square Management, LLC; Arkansas Knoxville Hotel, LP
lllllllllllllllllllllPlaintiffs - Appellants
v.
McGriff Insurance Services, Inc.
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: September 21, 2022
Filed: November 9, 2022
____________
Before LOKEN, ARNOLD, and KOBES, Circuit Judges.
____________
ARNOLD, Circuit Judge.
This case involves a flood that destroyed property stored at a warehouse.
Unfortunately for the companies with an interest in the property, insurance didn't
cover their loss, and so they sued their insurance agent for negligence. The district
court1 granted summary judgment to the agent on the ground that it had no duty to
give advice about different coverages or to ensure that adequate coverage existed.
The companies appeal, but we affirm.
I Square Management LLC is a hotel management company that, according to
its chairman and CEO Shashwat Goyal, also builds and renovates existing hotels. One
of those hotels was in Knoxville, Tennessee. Goyal helped create Arkansas Knoxville
Hotel, LP (AKH), to purchase the hotel, and AKH and I Square entered into a hotel
management agreement. I Square and AKH planned a significant renovation of the
hotel, and, as part of that renovation, I Square and AKH purchased furniture, fixtures,
and equipment in bulk and stored it all in a warehouse. At one point during the
project their insurance agent, McGriff Insurance Services, Inc., advised the project's
general contractor that a builder's risk policy was unnecessary for the construction.
After a flood damaged or destroyed property in the warehouse, I Square and AKH
filed claims with their insurers, but those claims were denied. They therefore sued
McGriff, alleging that it had negligently advised that they need not purchase a
builder's risk policy for the project.
To prevail on a negligence theory under Arkansas law, which applies in this
diversity case, see Chew v. Am. Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014),
a plaintiff must prove, among other things, that the defendant owed it a duty. See
Duran v. Sw. Ark. Elec. Coop. Corp., 537 S.W.3d 722, 726 (Ark. 2018). Determining
whether a defendant owed a duty to the plaintiff is a question of law for the court, and
if the court determines that no duty is owed, then summary judgment is appropriate.
See id. at 727. If Arkansas law is unclear on whether a duty is owed, we must do our
best to predict how the Arkansas Supreme Court would rule in the circumstances. See
Cincinnati Ins. Co. v. Rymer Cos., LLC, 41 F.4th 1026, 1029 (8th Cir. 2022); see also
1
The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.
-2-
Chew, 754 F.3d at 635. Decisions from the Arkansas Court of Appeals may provide
some evidence of how the Arkansas Supreme Court would rule, but we are not bound
to follow them. See Burger v. Allied Prop. & Cas. Ins. Co., 822 F.3d 445, 447 (8th
Cir. 2016).
In determining the duties an insurance agent owes its clients, the Arkansas
Supreme Court has consistently applied what it described as a "long established rule
placing a responsibility on the insured to educate himself concerning matters of
insurance coverage." See Stokes v. Harrell, 711 S.W.2d 755, 756 (Ark. 1986). That
means that it is the insured's "responsibility to adequately convey, albeit in laymen's
terms, the nature of his wishes, in order to obtain the protection requested," and so
"[a]n agent may point out to him the advantages of additional coverage and may ferret
out additional facts from the insured applicable to such coverage, but he is under no
obligation to do so." See id.
The Stokes court recognized, however, that where an agent and an insured have
a "special relationship," some jurisdictions impose a duty on the agent to advise
clients of appropriate insurance coverage. See id. But the court in that case
immediately signaled that it was skeptical about that rule, and our overall impression
from reading that court's opinions on the subject is that it takes a dim view of what
is called the special-relationship exception, though it has been hesitant to say that it
could never apply. We offer three reasons to support that impression.
First, in the 36 years since the Arkansas Supreme Court decided Stokes, that
court has never applied the exception, as far as we can tell, to impose additional
duties on agents. Nor has the Arkansas Court of Appeals. Not once.
Second, as we've already noted, the court in Stokes didn't seem impressed by
the insured's argument. After noting that "some jurisdictions" had imposed additional
duties thanks to a special relationship, the court immediately said that those decisions
-3-
had "not found a large following among the courts." See id. It did, however, explain
that a special relationship would entail "an established and ongoing relationship
between the insured and the agent over a period of time, with the agent actively
involved in the client's business affairs, and regularly giving advice and assistance in
maintaining the proper coverage for the client." The court stopped short of saying that
the exception was part of Arkansas law and instead held merely that, even if it were,
the facts of that case wouldn't support applying it. See id.
Third, when it seemed that the facts of a case might call for applying the
special-relationship exception, the Arkansas Supreme Court didn't do so. See Mans
v. Peoples Bank of Imboden, 10 S.W.3d 885 (Ark. 2000). There a widow sued an
insurance agent for negligence after it failed to discover that her husband's life
insurance policy had lapsed. See id. at 886. The court expressly held that no special
relationship existed even though the widow had done business with the agent for 23
years, was unsophisticated, and had trusted the agent's advice. See id. at 889–90. And
so the court applied the general rule that the insured "has a duty to educate herself
concerning her insurance." See id. at 888, 890. As in Stokes, the court never expressly
embraced the exception, recognizing merely that "some jurisdictions" have and that
a special relationship "may" be found in certain circumstances. See id. at 888.
I Square and AKH invite us to focus on language from an Arkansas Court of
Appeals opinion that, they say, supports its view. See Buelow v. Madlock, 206 S.W.3d
890 (Ark. Ct. App. 2005). There, the court said that the insured can prove "a special
relationship by showing that there exists something more than the standard insurer-
insured relationship," see id. at 893 (quoting Sintros v. Hamon, 810 A.2d 553, 556
(N.H. 2002)), which is something determined on a case-by-case basis and presents a
question of fact. See id. It also explained that a special relationship might exist when
there is an "express agreement, long established relationships of entrustment in which
the agent clearly appreciates the duty of giving advice, additional compensation apart
from premium payments, and the agent holding out as a highly-skilled expert coupled
-4-
with reliance by the insured." See id. (quoting Sintros, 810 A.2d at 556). I Square and
AKH say that "something more" than the ordinary insurance relationship existed here:
it points out that McGriff held itself out as a highly skilled expert and that they relied
on those assurances to their detriment. And, they add, since the presence of a special
relationship is a question of fact, the district court here should not have granted
summary judgment to McGriff.
We are not convinced that the Buelow court's digression into Sintros was meant
to open the door to expanded duties for insurance agents. It would be the rare agent
who does not hold himself out as highly skilled, and the rare insured who doesn't rely
on the agent's skill in making insurance selections. We do not think the Arkansas
Supreme Court, given its skepticism about expanding liability, would now ask merely
for the presence of "something more" than the ordinary relationship to do so;
otherwise the exception would bid fair to swallow the rule. And so we are not
inclined to give this aspect of Buelow much weight. We point out, moreover, that the
Buelow court ultimately declined to find a special relationship and reversed a trial
court decision imposing additional duties on the agent, see id. at 894, adding another
case to the unbroken string of Arkansas appellate decisions rejecting this theory of
liability.
I Square and AKH argue that there is more in this record to support a
conclusion that McGriff had a duty that exceeded that of an ordinary insurance agent.
They first point to how their relationship with McGriff began, explaining that it was
McGriff (or more specifically, its predecessor, but for ease of reference, we will just
use "McGriff") who expressed interest in doing business with I Square and not the
other way around. McGriff then met with I Square at I Square's offices where it gave
a personalized pitch promoting McGriff's insurance prowess and a plan that would
streamline I Square's insurance practices and save it money. McGriff also promised
to service I Square's existing policies for free, and when those policies were due for
renewal, McGriff would recommend a plan whereby I Square would purchase one
-5-
universal policy to cover all its projects rather than obtain multiple policies covering
different projects. So I Square abandoned its existing agent and turned to McGriff.
According to Goyal, over the next months McGriff employees met with
I Square several times to get a better understanding of I Square's business. The
meetings were so frequent, he says, that I Square's staff made sure that at least one
McGriff employee's favorite jellybeans were on hand. At that time I Square was
working on other projects for which it bought furniture, fixtures, and equipment in
bulk and stored them offsite. Goyal says that, at least for some of these projects,
I Square told Nick Hall of McGriff about the offsite storage on those projects and
asked him to obtain additional policies to insure the property stored there, which he
did.
We conclude that the circumstances surrounding the commencement of the
parties' relationship are insufficient to demonstrate a special relationship under
Arkansas Supreme Court precedent. It's unlikely that the Arkansas Supreme Court
would think it unusual that an agent interested in obtaining new business would
promote its expertise to a potential client who then relies on those promotions to
make insurance decisions, see Mans, 10 S.W.3d at 888, even if that agent took steps
to learn how the client's business operated so that it could provide sound advice.
Note, too, that the court in both Stokes and Mans emphasized that a special
relationship would involve "an established and ongoing relationship between the
insured and the agent over a period of time." See Stokes, 711 S.W.2d at 756; see also
Mans, 10 S.W.3d at 888. Here, McGriff's relationship with I Square and AKH existed
for only about two years before the warehouse flooded, and, after what appears to be
a brief honeymoon phase at the beginning of their relationship, McGriff was not
involved in I Square's operations to the extent necessary to make for a special
relationship under Arkansas Supreme Court precedent. Under Arkansas law, it was
still incumbent upon I Square and AKH to ensure that the insurance it obtained
provided adequate coverage for its projects.
-6-
In addition to the parties' early dealings, I Square and AKH point to McGriff's
participation in the Knoxville project itself as evidence that they and McGriff had a
special relationship. For example, they point out that Hall communicated directly with
the mortgage broker involved in the Knoxville project as well as the project's general
contractor and the insurer about insurance coverage on the project.
But those communications don't get I Square and AKH across the line. Hall's
communications to these project participants were isolated and infrequent and appear
to have concerned only the hotel site and not the warehouse where property was
damaged. In fact, Hall's communications with the mortgage broker predate the lease
to the warehouse. The record shows that I Square, AKH, and the project's general
contractor handled the warehouse without McGriff's involvement until well after the
flood. They had obtained separate insurance on the property in the warehouse without
McGriff's assistance, moreover, and after the warehouse flooded, they looked to this
separate coverage first to cover their losses. It appears as well that Goyal asked
McGriff to help file a claim with this separate insurer, and it was only later that
I Square and AKH filed a claim with the insurance that McGriff had obtained on its
behalf. The main point is that McGriff was involved in the Knoxville project only
tangentially, and certainly not to an extent that creates a special relationship under
Arkansas law.
We therefore hold that, whether we consider the circumstances I Square and
AKH highlight in isolation or cumulatively, they have failed to show the existence
of a special relationship between McGriff and the insureds that gave rise to additional
duties on the part of McGriff to ensure that they had adequate coverage.
Finally, I Square and AKH assert that, even if no special relationship existed,
McGriff voluntarily assumed a duty to ensure adequate coverage existed. See Farm
Credit Midsouth, PCA v. Bollinger, 548 S.W.3d 164, 176 (Ark. Ct. App. 2018). They
point to the email Hall sent to the project's general contractor advising that a builder's
-7-
risk policy was unnecessary. But this is far from an assurance like the one in
Bollinger that was a promise to "handle" an insurance difficulty. See id. All Hall did
here was respond to an inquiry from the general contractor. The record simply does
not support a conclusion that McGriff, through Hall, voluntarily assumed additional
duties to I Square and AKH.
But even if it did, we think that any assumed duty to give proper advice would
have been based on the knowledge that McGriff had about the project, and it does not
appear that anyone at I Square or AKH had told McGriff about the warehouse or that
McGriff otherwise knew about it such that it could ensure it was properly covered.
I Square and AKH vigorously contend otherwise, arguing that Hall's knowledge or
lack of knowledge of the warehouse is "the most hotly contested fact there is in this
case." But we don't think the record on this point is sufficient to reach a jury because
no reasonable jury could believe that Hall knew about the warehouse. I Square and
AKH have not identified a single communication to or from Hall or anyone else at
McGriff about the warehouse until after the flood, nor do they point to testimony
from anyone who says that he told Hall or McGriff about the warehouse. Surely Hall
didn't assume a duty to advise about proper coverage for a location he didn't even
know existed.
I Square and AKH argue nonetheless that Hall did know about the warehouse
for a few reasons. First, they say that Hall had participated in three other projects that
entailed storing furniture, fixtures, and equipment offsite and that Hall knew about
the offsite storage and helped insure it. But that doesn't show that Hall knew about
offsite storage here; in fact, two of those other projects apparently involved "ground-
up" construction projects and not a "floor by floor" renovation where onsite storage
might be more feasible. And according to Goyal, for those other projects in which
offsite storage was used, I Square and AKH specifically told Hall about the
warehouses, but nothing in the record indicates they did so here for the Knoxville
project.
-8-
I Square and AKH also point to a memo created by an insurance investigator
who interviewed Hall after the flood, and they say that the memo shows that Hall
admitted "that he knew about the warehouse's existence when the renovations began"
and "that he just 'assumed'" the other insurance would cover it. We think I Square and
AKH misread the memo. We read it to say merely that Hall, at the time of the
investigation a few months after the flood, had obtained communications from others
about the warehouse that were dated around the time the project began, not that he
personally was involved in conversations about the warehouse before the flood. And
we think the memo quite clearly says that it was I Square and AKH that mistakenly
assumed the property in the warehouse was covered, not that Hall thought that.
And finally, I Square and AKH say that Hall knew about the warehouse
because he obtained a copy of the construction contract that referred to storage of
materials. But this oblique reference to the potential need for warehousing in a
seventeen-page, single-spaced construction contract cannot reasonably be thought to
supply Hall with knowledge of the actual warehouse, especially since the warehouse
had not even been obtained until months after Hall received a copy of the contract.
So even if Hall assumed a duty to give accurate advice when he responded to
the general contractor's insurance inquiry, the scope of the duty assumed could only
reasonably be interpreted to include the giving of advice about circumstances that
Hall actually knew of. And the record won't support a conclusion that he knew about
the warehouse.2
Affirmed.
______________________________
2
Appellants' motion to supplement the record is denied.
-9- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482546/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SYLVIA E. FARRINGTON,
Plaintiff,
v.
Civil Action No. 21-3240 (BAH)
ALEJANDRO MAYORKAS,
Chief Judge Beryl A. Howell
Secretary of Homeland Security,
Defendant.
MEMORANDUM OPINION
Plaintiff Sylvia Farrington is a former employee for the Federal Emergency Management
Agency (“FEMA”), a subagency of the Department of Homeland Security (“DHS”). She was fired
in 2015, but only after she filed two complaints with the Equal Employment Opportunity
Commission (“EEOC”)—one six years before her termination and one two years prior—alleging
claims of race and sex discrimination against her employer. Asserting unlawful retaliation for
filing EEO complaints, plaintiff has now sued the DHS Secretary, Alejandro Mayorkas, in his
official capacity, under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42
U.S.C. § 2000e et seq. Defendant moves to dismiss, claiming that plaintiff failed to allege
sufficient facts to plausibly infer that she was fired because of her prior protected EEO activity.
For the reasons below, defendant’s motion to dismiss is granted without prejudice.
I. BACKGROUND
The relevant factual and procedural background is summarized below.
A. Factual Background
1
Plaintiff began working for the FEMA in 1996, Am. Compl. ¶ 1, ECF No. 17, and, in 2005,
was dismissed from her position as Branch Chief in Orlando, Florida, id. ¶¶ 15-16. She
successfully complained to the EEOC, alleging discrimination based on race, sex, and retaliation
for prior protected activity, id. ¶ 16, resulting in an Administrative Law Judge (“ALJ”) award of
“numerous remedies, including backpay, compensatory damages, and that she be returned to her
position within 60 days” of the order, id. ¶ 17. Despite the ALJ’s order, DHS did not return
plaintiff to her old position as Branch Chief but instead demoted her to “Trainee” status,
“thrust[ing]” her into financial hardship in the process. Id. ¶ 19-20.
Plaintiff’s luck went from bad to worse. In August 2012, plaintiff’s credit check for a
government travel credit card returned an outstanding debt of $65,000 to Chase Bank. Id. ¶¶ 21-
24. That same month, DHS personnel sent plaintiff a letter, “requesting information regarding an
‘issue of concern’ in her credit report” regarding that debt. Id. ¶ 24. Plaintiff explained that the
debt was a result of both unlawful business practices by Chase Bank and financial hardships caused
by DHS. Id. ¶¶ 25, 28. Sometime in 2012, her debt with Chase Bank was resolved in plaintiff’s
favor. See id. ¶ 28. Plaintiff repeatedly notified the Department of Homeland Security that her
debt had been resolved. Id. ¶¶ 29, 43. Nonetheless, on May 3, 2013, the Chief of DHS’s Personnel
Security Branch—who was aware of plaintiff’s prior EEO activity—issued a “Final Fitness
Determination” finding her “unfit for federal service.” Id. ¶ 31. On August 12, 2013, plaintiff
filed a formal complaint of discrimination with the EEOC. Id. ¶ 33.
Plaintiff remained employed until she was terminated on May 28, 2015 by her supervisor
Johanna Pastrana. Id. ¶¶ 37, 40. Patricia Silva, a Human Capital Officer, allegedly advised
Pastrana to immediately terminate plaintiff “without any prior warning(s) or other progressive
notice(s) of sequential disciplinary actions.” Id. ¶ 41. Pastrana and Silva were both allegedly
2
aware of her previous EEO activity. Id. ¶¶ 39, 42. Plaintiff appealed her termination on June 5,
2015, presenting evidence that “the discrepancy in her credit report was due to Defendant’s refusal
to abide by the” order issued by the ALJ, id. ¶ 43, but this termination appeal was denied on
September 22, 2015, id. ¶ 44. According to plaintiff, DHS “acted with malice, in bad faith, and in
reckless disregard of Ms. Farrington’s federally protected civil rights.” Id. ¶ 46.
B. Procedural History
On December 10, 2021, Plaintiff filed the instant lawsuit against DHS, alleging a Title VII
violation for retaliation for prior EEO activity, Compl. ¶¶ 1, 43-44, ECF No. 1, and she filed an
Amended Complaint on March 30, 2022, see generally Am. Compl. Defendant timely moved to
dismiss the Amended Complaint for failing to allege sufficient facts supporting plaintiff’s claim
that her termination was based on retaliation for protected EEO activity. Def.’s Mot. to Dismiss,
at 4 (“Def.’s Mot.”), ECF No. 19. With the parties having completed their briefing, defendant’s
motion is now ripe for resolution.
II. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “[a]
plaintiff need not make ‘detailed factual allegations,’” but the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” VoteVets
Action Fund v. McDonough, 992 F.3d 1097, 1104 (D.C. Cir. 2021) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). A facially plausible claim pleads facts that are not “‘merely consistent
with’ a defendant’s liability” but that “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir.
2012). Consequently, “a complaint survives a motion to dismiss even ‘if there are two alternative
3
explanations, one advanced by [the] defendant and the other advanced by the plaintiff, both of
which are plausible.’” VoteVets Action Fund, 992 F.3d at 1104 (quoting Banneker Ventures, LLC
v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015)).
In deciding a motion under Rule 12(b)(6), the court must consider the whole complaint,
accepting all factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555; see
also Atchley, v. AstraZeneca UK Limited, et al., 22 F.4th 204, 210–11 (D.C. Cir. 2022). Courts
do not, however, “assume the truth of legal conclusions, nor do [they] ‘accept inferences that are
unsupported by the facts set out in the complaint.’” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015) (alteration in original) (citation omitted) (quoting Islamic Am. Relief Agency v. Gonzales,
477 F.3d 728, 732 (D.C. Cir. 2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; see also id. at
687 (explaining that a failure to allege any of a claim’s elements beyond “a sheer possibility that
a defendant acted unlawfully” results in a dismissal).
III. DISCUSSION
Title VII forbids an employer from retaliating against an employee because the employee
engaged in protected activity by opposing unlawful employment practices or by bringing
discrimination charges under Title VII. See 42 U.S.C. § 2000e-3(a); see also Jeffries v. Barr, 965
F.3d 843, 860 (D.C. Cir. 2020) (noting that Title VII restricts the government “from retaliating
against employees for asserting their Title VII rights.”). “Claims of retaliation under Title VII are
governed by the same McDonnell-Douglas burden-shifting analysis applicable to discrimination
claims[,]” Iyoha v. Architect of the Capitol, 927 F.3d 561, 574 (D.C. Cir. 2019) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973)). “Under this framework, [plaintiff] bears
the initial burden of establishing a prima facie case for retaliation, which [s]he can meet by
4
showing ‘(1) that [s]he engaged in statutorily protected activity; (2) that [s]he suffered a materially
adverse action by h[er] employer; and (3) that a causal link connects the two.’” Id. (quoting Jones
v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)); see also Allen v. Johnson, 795 F.3d 34, 38–39
(D.C. Cir. 2015) (same); McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012) (same).
Plaintiff has satisfactorily pled the first two elements of her retaliation claim: She engaged in
protected activity by filing an EEO complaint, and she was subject to an adverse personnel action
when she was eventually fired. See Holbrook v. Reno, 196 F.3d 255, 263 (D.C. Cir. 1999).
Defendant’s sole contention is that plaintiff cannot plead the third element of her retaliation
claim, namely that DHS fired her because of her protected EEO activity. Def.’s Mot. at 4. Even
if those responsible for dismissing plaintiff knew of her prior EEO activity and failed to give her
warnings prior to her termination, defendant argues that plaintiff has not satisfied her burden
because (1) mere knowledge is insufficient to support a plausible inference of retaliation,
particularly considering the significant time gap between plaintiff’s protected activity and the
adverse action; and (2) a failure to issue prior warnings evinces retaliation only if it violates an
employer policy. Id. at 4–6. Defendant is correct.
For starters, a plaintiff must state allegations beyond the employer’s mere knowledge of a
protected activity. See, e.g., Brown v. Mills, 674 F. Supp. 2d 182, 197 n.8 (D.D.C. 2009) (“[M]ere
knowledge of . . . protected acts is not sufficient to allow a jury to infer that [the] acts were
motivated by retaliation.”); Barry v. U.S. Capitol Guide Bd., 636 F. Supp. 2d 95, 106–07 (D.D.C.
2009) (“[T]he plaintiff must submit proof beyond mere knowledge about protected activity and
speculation that [defendant] harbored retaliatory animus[.]”); see also Iyoha, 927 F.3d at 574
(explaining that “weak evidence of temporal proximity to show that the [defendant’s] decisions
were motivated by a desire to retaliate against [the plaintiff] . . . does not, without more, raise an
5
inference of retaliation”). “[P]ositive evidence beyond mere proximity is required to defeat the
presumption that the proffered explanations are genuine,” see Woodruff v. Peters, 482 F.3d 521,
530 (D.C. Cir. 2007), and a lengthy gap between the protected activity and termination also
weakens support for causation, see Holbrook, 196 F.3d at 263 (explaining that the plaintiff must
show both that the employer had knowledge of the protected activity and that the adverse action
took place shortly thereafter); Taylor v. Solis, 571 F.3d 1313, 1322 (D.C. Cir. 2009) (holding that
“two and one-half months” of a gap between the protected activity and termination is not sufficient
for a retaliation claim).
As in Brown v. Mills and Barry v. U.S. Capitol Guide Board, the mere fact that Pastrana
and Silva knew about plaintiff’s prior EEO activity is not enough to show that she was terminated
because of that activity. Any plausible connection between her protected activity and her
termination is further weakened because of the lack of temporal proximity: She filed her first and
second EEO complaints six and two years prior to her termination, respectively, far longer than
the two-and-a-half months that the D.C. Circuit deemed insufficient to plead an inference of
causation in Taylor v. Solis. See also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001)
(citing with approval cases holding three- and four-month gaps to be insufficient, and holding that
an adverse action “20 months later suggests, by itself, no causality at all.”). 1
1
Plaintiff’s reliance on Casole v. Johanns, 577 F. Supp. 2d 138 (D.D.C. 2008), see Pl.’s Opp’n to Def.’s Mot.
to Dismiss at 7, ECF No. 20, is misplaced. Although Casole looked past the fact of a five-year gap between when the
plaintiff first filed his complaint and the defendant fired him, the court did so because the plaintiff was engaging in
other EEO-protected activities close to his termination. Id. at 140. Plaintiff says her case is similar because her case
“lagged on for years, not only due to the long EEOC process, but also appeals and subsequent lawsuits[,]” but she
does not show when that legal process culminated in her Amended Complaint. Regardless, even if her termination
was proximate to the end of her administrative process, she has not offered additional evidence or facts to defeat the
presumption that FEMA terminated her for a non-discriminatory reason. See Woodruff, 482 F.3d at 530.
6
In opposition, plaintiff first asserts that she has satisfied her pleading requirements by
pleading a bare, conclusory allegation of causation, see Pl.’s Opp’n to Def.’s Mot. to Dismiss
(“Pl.’s Opp’n”) at 5–6, ECF No. 20, but that flatly contradicts binding Supreme Court precedent.
Plaintiff’s reliance on cases like Vance v. Chao, which holds that a Title VII retaliation plaintiff
may plead “causation simply by alleging that the adverse actions were caused by her protected
activity[,]” 496 F. Supp. 2d 182, 187 (D.D.C. 2007) (citing ACLU Found. of S. Cal. v. Barr, 952
F.2d 457, 467 (D.C. Cir. 1991)), uses caselaw that predates the Supreme Court’s decision in Bell
Atlantic Corporation v. Twombly. Plaintiff must proffer facts that at least give rise to the plausible
inference of causation, rather than just plead a naked and conclusory claim that causation is
satisfied.
Next, plaintiff contends that the following factual allegations about DHS—(1) failing to
restore her to her previous position as Branch Chief after she filed her initial EEO complaint, (2)
subjecting her to an unwarranted credit inquiry, and (3) terminating her without prior warnings
after she had resolved her debt—support a plausible basis to show she was fired because of her
prior EEO activity. Pl.’s Opp’n at 5–6. On these facts alone, plaintiff’s causation argument cannot
stand.
The mere fact that FEMA “failed to return Farrington to her [former] position” as Branch
Chief, and as she alleges the ALJ required, also cannot support an inference of causation because
plaintiff cannot link the failure to reinstate her to her decision to file an EEO complaint. 2 Title
VII retaliation claims follow a but-for causation standard, and it is axiomatic that a plaintiff cannot
2
Plaintiff’s allegation that the ALJ directed FEMA to reinstate her to the position she previously held as
Branch Chief is belied by the administrative record. Attach. A, Def.’s Mot. Dismiss Am. Compl., Decision & Order
at 66, ECF No. 19-1 (explaining that FEMA was only required to place plaintiff in “a comparable managerial
position”); see also Owens v. BNP Paribas, S.A., 897 F.3d 266, 273 (D.C. Cir. 2018) (“Public records are subject to
judicial notice on a motion to dismiss when referred to in the complaint and integral to the plaintiff’s claim.”).
7
satisfy that standard if the defendant would have taken the same adverse action absent the protected
activity. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347 (2013) (quoting William Keeton
et al., Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“[A]n action ‘is not regarded as a
cause of an event if the particular event would have occurred without it.’”). Plaintiff’s suggestion
that her first EEO complaint led to her demotion, which led to her financial difficulties, which then
led to her decision to take out a large loan, which in turn caused her firing, requires too many
logical leaps to support an inference of causation. She cannot plausibly plead that her termination
would not have happened were it not for her protected EEO activity.
Plaintiff’s reliance on the fact that she did not receive prior warnings before her termination
is no help to her either. Unless the employer has a policy that requires warnings for termination,
the lack of prior warnings also does not support a plausible inference of retaliation. See Rand v.
CF Indus., Inc., 42 F.3d 1139, 1145 (7th Cir. 1994) (“Rand’s reliance on CFI’s policy is misplaced
because it does not state or imply that CFI is obliged to communicate problems before it decides
to discharge an employee.”); Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1291 (10th Cir. 2013)
(cleaned up) (“[W]here progressive discipline is entirely discretionary, and the employer did not
ignore any established company policy in its choice of sanction, the failure to implement
progressive discipline is not evidence of pretext.”). Nowhere does plaintiff plead that DHS has a
policy of warning its employees that an outstanding debt may prompt termination, so a reasonable
jury could not necessarily infer that DHS deviated from a typical practice of issuing disciplinary
warnings in the context of her termination.
Plaintiff makes three additional arguments, but none are persuasive to avoid dismissal.
First, she says that FEMA unfairly raised concerns about her debt on her credit report, particularly
considering that her bank violated North Carolina law when issuing that debt and engaged in
8
“unfair and unlawful predatory lending practices” when doing so. Pl.’s Opp’n at 7; see Am.
Compl. ¶¶ 25, 28. Second, she argues that the bank ultimately resolved the matter in her favor, so
her termination from FEMA must have been pretextual. Pl.’s Opp’n at 6; see Am. Compl. ¶¶ 24-
30. Third, she claims that she was “promptly terminated in 2015” after “there was a change in her
supervisors.” Pl.’s Opp’n at 7; Am. Compl. ¶¶ 37, 40.
As to the first argument, even if plaintiff’s bank broke state law in issuing the debt to her,
she provides no facts to suggest that FEMA’s concerns about her debt were accordingly worthless
or that the debt itself was invalid. Nor was FEMA required to take plaintiff’s explanations for
granted when determining that she was unfit for service. Her prompt termination after the
supervisor switch, by itself, cannot support an inference of causation because an adverse action
alone, “without more, is not proof of illegal discrimination or retaliation.” See Wiley v. Glassman,
511 F.3d 151, 158 (D.C. Cir. 2007). Even when viewed in their best light, plaintiff’s allegations
do not support the sufficiency of a retaliatory action for a protected activity.
IV. CONCLUSION
For the reasons set forth above, plaintiff’s Amended Complaint is dismissed without
prejudice. An Order consistent with this Memorandum Opinion will be filed contemporaneously.
Date: November 9, 2022
__________________________
BERYL A. HOWELL
Chief Judge
9 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482564/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Petitioner,
v.
JAMELL DEMONS,
Respondent.
No. 4D22-1874
[November 9, 2022]
Petition for writ of prohibition to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No.
19-1872CF10A.
Ashley Moody, Attorney General, Tallahassee, and Leslie T. Campbell,
Senior Assistant Attorney General, West Palm Beach, for petitioner.
Philip R. Horowitz of the Law Offices of Philip R. Horowitz, Miami, for
respondent.
LEVINE, J.
In 2019, the defendant was indicted for two counts of first-degree
murder with a firearm. The state filed a timely notice of intent to seek the
death penalty, which included the aggravating factors the state would rely
on while seeking the death penalty. In 2022, a superseding indictment
added a sentencing enhancement for benefiting, promoting, or furthering
the interests of a criminal gang. Since the state did not file another notice
of intent to seek the death penalty after filing the superseding indictment,
the trial court granted the defendant’s motion to preclude the state from
seeking the death penalty. The state filed a writ of prohibition arguing the
trial court exceeded its authority. We agree.
We find that the state complied with its statutory obligations when it
filed its notice of intent to seek the death penalty within 45 days of
arraignment. The fact that the state filed a superseding indictment,
requiring a second arraignment, does not vitiate the already filed and
timely notice of intent. Notice is notice. The superseding indictment was
clearly a continuation of the original indictment. The state did not nolle
prosse the original indictment, nor did it add aggravating factors to the
required notice seeking the death penalty. We find the trial court erred by
precluding the state from seeking the death penalty, and thus, grant the
writ of prohibition. 1
In February 2019, the defendant was indicted by a grand jury on two
counts of first-degree murder with a firearm. Within 45 days of the
defendant’s arraignment, the state timely filed its notice of intent to seek
the death penalty in accordance with section 782.04(1)(b), Florida Statutes
(2018), and Florida Rule of Criminal Procedure 3.181, listing four
aggravating factors: (1) the capital felony was committed for pecuniary
gain, (2) the capital felony was especially heinous, atrocious, or cruel, (3)
the capital felony was a homicide and was committed in a cold, calculated,
and premediated manner without any pretense of moral or legal
justification, and (4) the capital felony was committed by a criminal gang
member.
In February 2022, the state sought to amend its notice of intent to seek
the death penalty. The state sought to limit one previously listed
aggravator to apply to only one victim and to add the following aggravator:
that the defendant was previously convicted of another capital felony
involving the use or threat of violence to the person. The trial court denied
the motion. Several days later, the state filed a superseding indictment,
again alleging two counts of first-degree murder with a firearm and adding
a sentencing enhancer that the defendant had committed the offenses “for
the purpose of benefiting, promoting, or furthering the interests of a
criminal gang.” § 874.04, Fla. Stat. (2018). The defendant was rearraigned
under the superseding indictment.
Thereafter, in April 2022, more than 45 days after rearraignment, the
defendant filed a motion to preclude the state from seeking the death
penalty, arguing that the state had failed to timely provide notice of intent
to seek the death penalty under the superseding indictment and
accompanying rearraignment. The state responded that it did not need to
file a second notice of its intent to seek the death penalty following the
superseding indictment and that it would be improper for the court to
foreclose the death penalty as a possible penalty in this case.
The trial court granted the defendant’s motion and precluded the state
from seeking the death penalty. The trial court relied on State v.
Chantiloupe, 248 So. 3d 1191 (Fla. 4th DCA 2018), for the proposition that
1Due to our granting the state’s petition for writ of prohibition, we need not rule
on the state’s accompanying petition for writ of certiorari.
2
it could preclude the state from seeking the death penalty as a proper
remedy if notice was not given. Further, the trial court stated that an
amended information ended legal proceedings on the original information,
rendering the state’s original notice of intent to seek the death penalty
without any legal effect.
The state filed an emergency petition for writ of prohibition, stating that
the trial court acted in excess of its jurisdiction by reading a requirement
of re-notification into the statute and procedural rule in the present case,
where there was a superseding indictment. The state argues that it did
not need to file a second notice of intent and that it would be improper to
foreclose seeking the death penalty.
We review the legal question presented in the state’s writ of prohibition
de novo. Sutton v. State, 975 So. 2d 1073, 1076 (Fla. 2008). A writ of
prohibition is appropriate “if a trial court interferes with the prosecutor’s
discretion by refusing to allow a first-degree murder prosecution to
proceed as a capital case.” Chantiloupe, 248 So. 3d at 1195. We also
review de novo the trial court’s interpretation of statutes. D.A. v. State, 11
So. 3d 423, 423 (Fla. 4th DCA 2009).
We start our review with the understanding that “[t]he state attorney
has complete discretion in making the decision to charge and prosecute.”
Cleveland v. State, 417 So. 2d 653, 654 (Fla. 1982). However, in order for
the state to seek the death penalty, the state must comply with section
782.04(1)(b), Florida Statutes, and Florida Rule of Criminal Procedure
3.181.
Section 782.04(1)(b) states:
In all cases under this section, the procedure set forth in s.
921.141 shall be followed in order to determine sentence of
death or life imprisonment. If the prosecutor intends to seek
the death penalty, the prosecutor must give notice to the
defendant and file the notice with the court within 45 days
after arraignment. The notice must contain a list of the
aggravating factors the state intends to prove and has reason
to believe it can prove beyond a reasonable doubt. The court
may allow the prosecutor to amend the notice upon a showing
of good cause.
Florida Rule of Criminal Procedure 3.181 states:
3
In a prosecution for a capital offense, if the prosecutor intends
to seek the death penalty, the prosecutor must give notice to
the defendant of the state’s intent to seek the death penalty.
The notice must be filed with the court within 45 days of
arraignment. The notice must contain a list of the aggravating
factors the state intends to prove and has reason to believe it
can prove beyond a reasonable doubt. The court may allow
the prosecutor to amend the notice upon a showing of good
cause.
To interpret a statute, we look at the plain language of the statute.
State v. Sampaio, 291 So. 3d 120, 123 (Fla. 4th DCA 2020). Generally,
courts need not look behind the statute’s plain language when the statute
is “clear and unambiguous.” Brown v. City of Vero Beach, 64 So. 3d 172,
174 (Fla. 4th DCA 2011).
The plain language of section 782.04(1)(b) and rule 3.181 requires that
the state give notice to the defendant if the state is seeking the death
penalty. The defendant must also be notified of the aggravating factors
the state intends to prove. The statute and the rule require that the
notification occur within 45 days of arraignment. Here, the state timely
filed its notice of intent to seek the death penalty within 45 days of the
arraignment after the original indictment.
Nowhere does the statute or rule require the state, after a superseding
indictment, to file an additional notification to the defendant that the state
is seeking the death penalty. The statute and the rule are silent on
requiring notifications on superseding indictments. Even assuming there
was a theoretical reason to re-notify the defendant that the state is, once
again, still seeking the death penalty when a superseding indictment
merely adds a gang enhancement, the courts are without jurisdiction to
add words to a statute which the legislature has not written. State v.
Estime, 259 So. 3d 884, 888-89 (Fla. 4th DCA 2018). Applying the plain
language of the statute and rule, it is clear that the state complied with
the notice requirement, in order to seek the death penalty, by having filed
the notice within 45 days of arraignment.
Further, the filing of an amended indictment does not nullify or void
the original indictment. State v. Calle, 560 So. 2d 355, 356 (Fla. 5th DCA
1990) (recognizing that the filing of an amended information does not nolle
prosse the original information); see also State v. Clifton, 905 So. 2d 172,
177 (Fla. 5th DCA 2005) (“The filing of an amended information differs
significantly from a nolle prosequi, an announcement of ‘no action,’ and
doing nothing to initiate prosecution because with the filing of an amended
4
information, there is no interruption in, or cessation of, the prosecution.”).
Similarly, in the present case, the mere filing of a superseding indictment
did not nullify the original indictment. See U.S. v. Flores-Perez, 646 F. 3d
667, 671 (9th Cir. 2011) (“[A] superseding indictment does not nullify an
original indictment.”). Nor did it vitiate any of the notices already timely
filed by the state.
In this case, there would be no need to re-notice the defendant upon
the filing of a superseding indictment. The trial court retains jurisdiction
over a prior indictment, and any resulting motions, even after a
superseding indictment or amended information. Calle, 560 So. 2d at 356
(“Since the amended information supplants or replaces the original, there
is no merit to Calle’s argument that the court had no jurisdiction over him
and that no case existed in the absence of an arraignment upon the
amended information.”). In this case, the original indictment was not
nullified, and as such, the trial court retained jurisdiction over the case
including the state’s timely filed notice of intent. Id. Of course, if the state
had nolle prossed the charges filed in the original indictment, then the
state would have had to re-notice the defendant of the state’s intent to seek
the death penalty. See Matos v. State, 961 So. 2d 1077, 1077 (Fla. 4th
DCA 2007) (holding that the defendant’s motion to dismiss for charges
filed after the statute of limitations should have been granted where the
state chose to nolle prosse the original charges, which “effectively ends the
proceeding and any subsequent action is a nullity,” instead of filing an
amended information).
In precluding the state from seeking the death penalty, the trial court
relied on a quote by the Florida Supreme Court that “[i]t is well settled that
the filing of an amended information purporting to be a complete
restatement of the charges supersedes and vitiates an earlier information.”
State v. Anderson, 537 So. 2d 1373, 1374 (Fla. 1989) (emphasis added).
However, the superseding indictment in this case is clearly not a complete
restatement of the charges, as it sought only to add a sentencing enhancer.
Thus, the trial court erred by concluding that the superseding indictment
vitiated the original indictment where the state added only a statutory
sentencing enhancer. See Howard v. State, 27 So. 3d 104, 106 (Fla. 4th
DCA 2009) (holding that an information amended for the sole purpose of
adding a defendant’s alias did not vitiate the original information).
We see in other situations where a prosecution continues from the
original indictment or information through an amended information or
superseding indictment. For example, speedy trial waivers from an
original indictment survive an amended information or superseding
indictment. Wallace v. State, 189 So. 3d 1022, 1027 (Fla. 3d DCA 2016).
5
The original indictment or information is also relevant to the consideration
of the statute of limitations. See Clifton, 905 So. 2d at 177 n.2 (“However,
when the state files an amended information that does not substantially
alter the original charge or otherwise prejudice the defendant and it is
sufficiently linked to the original information, the courts have held that
the amended information relates back to the filing of the original
information without an interruption of the prosecution of the case.”);
Bongiorno v. State, 523 So. 2d 644, 645 (Fla. 2d DCA 1988) (holding that
prosecution under an amended information filed after the statute of
limitations is not barred where the amended information is “merely a
continuation of the original information”). The obtaining of evidence
through discovery also does not terminate following an amended
information or superseding indictment—discovery obligations continue
throughout prosecution. See Quattrocchi v. State, 17 So. 3d 329, 331 (Fla.
3d DCA 2009) (“The defense . . . requested a mistrial to engage in further
discovery” after the state amended the information during trial.) (emphasis
added).
The trial court relied in part on Chantiloupe to preclude the state from
seeking the death penalty. However, Chantiloupe is relevant only to
determine the applicable remedy when the state does not provide any
notice of its intent to seek the death penalty. In Chantiloupe, this court
affirmed the trial court’s decision to preclude the state from seeking the
death penalty where the defendant received no notice from the state of its
intent to seek the death penalty. 248 So. 3d at 1193, 1200. However,
unlike this case, the state in Chantiloupe never complied at all with section
782.014(1)(b) inasmuch as it did not file the notice within 45 days of
arraignment. Thus, Chantiloupe is limited to circumstances where the
defendant was not noticed at all within the 45-day window of the state
seeking the death penalty. That differs from the circumstances in this
case. Here, unlike Chantiloupe, the defendant did receive timely
notification of the state seeking the death penalty.
Although we find the statute is clear and unambiguous, the canons of
construction offer further support to our granting the writ. 2 First and
2 The Florida Supreme Court in Conage v. United States, 346 So. 3d 594 (Fla.
2022), held that statutory canons of interpretation may be consulted alongside
the plain language, even when the plain language is clear and unambiguous. Id.
at 598 (“[T]he traditional canons of statutory interpretation can aid the
interpretive process from beginning to end . . . . It would be a mistake to think
that our law of statutory interpretation requires interpreters to make a threshold
determination of whether a term has a ‘plain’ or ‘clear’ meaning in isolation,
without considering the statutory context and without the aid of whatever canons
might shed light on the interpretive issues in dispute.”).
6
foremost, the omitted-case canon of construction is persuasive. Our court
has repeatedly relied on this canon. See Nunes v. Herschman, 310 So. 3d
79, 84 (Fla. 4th DCA 2021); State v. Wooten, 260 So. 3d 1060 (Fla. 4th
DCA 2018). The omitted-case canon stands for “the principle that what a
text does not provide is unprovided.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 96 (2012). This canon is
another way of stating the longstanding principle that courts are not at
liberty to add words to a statute that the legislature has not expressly
provided. Neither the relevant statute nor rule in this case required the
state to re-notice the defendant of its intent to seek the death penalty.
According to the statute, the state was required to notify the defendant
“within 45 days after arraignment,” which the state clearly did. Nowhere
in the statute is there a requirement that the state re-notice the defendant
after each superseding indictment. To require a re-notice for each
superseding indictment, especially where the superseding indictment had
no bearing on the state’s seeking of the death penalty, would result in the
addition of words to the statute. We are not at liberty to add what the
legislature did not provide.
We also look to the presumption against ineffectiveness. “The
presumption against ineffectiveness ensures that a text’s manifest
purpose is furthered, not hindered.” Scalia & Garner, Reading Law at 63.
“This canon follows inevitably from the facts that (1) interpretation always
depends on context, (2) context always includes evident purpose, and (3)
evident purpose always includes effectiveness.” Id. The “evident purpose”
of the statute was to provide the defendant with notice that the state was
seeking the death penalty. The “evident purpose” of section 782.04(1)(b),
as well as rule 3.181, was fulfilled when the state filed its notice to seek
the death penalty after the filing of the original indictment.
The “evident purpose” and the “effectiveness” of the statute would be
hindered by requiring the re-notice of the state seeking the death penalty
after every subsequent indictment, even where the changes to the
superseding indictment had no bearing on the seeking of the death
penalty, like in the present case, where the superseding indictment merely
added a gang enhancement. The rationale for a notice requirement in
criminal cases is to apprise the defendant of the charges and potential
punishments against him, such as the death penalty, and afford the
defendant an opportunity to adequately prepare a defense. Glasserman v.
State, 590 So. 2d 17, 17 (Fla. 4th DCA 1991).
Clearly, in the present case, the defendant was noticed and apprised of
the state seeking the death penalty in 2019. The defendant has had nearly
three years to start the preparation of his defense to the state seeking the
7
death penalty, between the filing of the original notice and the superseding
indictment. The record contains no evidence that the defendant was
prejudiced in any way by the state not filing a re-notice of its intent to seek
the death penalty after the addition of the gang enhancement.
Finally, we can look to the “title-and-headings” canon for guidance. The
“title-and-headings” canon means that “the title of a statute or section can
aid in resolving an ambiguity in the legislation’s text.” I.N.S. v. Nat’l Ctr.
for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991); Scalia & Garner,
Reading Law at 221. The title of rule 3.181 is “Notice to Seek Death
Penalty.” Thus, the title gives us clear direction on the purpose of the rule.
In this case, the superseding indictment added a gang enhancement,
which, once again, had no effect on the death penalty that the state seeks.
The gang enhancement would not affect the death penalty, nor the state’s
notice under rule 3.181. The rule’s title confirms that the notice to seek
the death penalty would apply to those circumstances only. The rule’s
title corroborates the state’s interpretation that the defendant need not be
re-noticed following a superseding indictment that had no bearing on the
seeking of the death penalty, like in the present case.
In summary, we find the trial court exceeded its authority by precluding
the state from seeking the death penalty. The state complied with the
statute, and rule, requiring notice within 45 days of arraignment. We
grant the writ of prohibition, remand to the trial court, and direct the trial
court to allow the state to proceed in seeking the death penalty.
In addition, we certify the following to the supreme court as a question
of great public importance:
WHETHER THE FILING OF A SUPERSEDING INDICTMENT,
WHICH ADDS ONLY A STATUTORY SENTENCING
ENHANCEMENT, REQUIRES RE-NOTICE OF AN ALREADY
TIMELY FILED NOTICE OF INTENT TO SEEK THE DEATH
PENALTY?
Petition granted and remanded; question certified.
GROSS and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
8 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482593/ | 11/09/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 1, 2022
IN RE ISAIAH D.
Appeal from the Circuit Court for Gibson County
No. H4174 Clayburn Peeples, Judge
No. W2021-01168-COA-R3-PT
A mother and stepfather filed a petition to terminate a father’s parental rights. The trial
court dismissed the petition after finding that the mother and stepfather failed to prove by
clear and convincing evidence the existence of any ground for termination. Because the
trial court failed to make specific findings of fact in its order dismissing the petition, we
vacate the order and remand for the trial court to enter an order making sufficient findings
of fact.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded
ANDY D. BENNETT, J., delivered the opinion of the Court, in which JOHN W. MCCLARTY
and KENNY W. ARMSTRONG, JJ., joined.
Angela W. Mueller, Trenton, Tennessee, for the appellants, Jasmine D. and David D.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves a petition to terminate a biological father’s parental rights.
Andre D., Jr. (“Father”) and Jasmine D. (“Mother”) had a non-marital child in 2017. Father
and Mother have had a tumultuous relationship throughout the child’s life, as evinced by
Mother obtaining more than one order of protection against Father. Their relationship
became further strained when Mother married David D. (“Stepfather”) in August 2020 and
when Father joined in a dependency and neglect petition filed by Mother’s sister, Niyia B.
(“Aunt”). In the petition, Aunt alleged that the child had been living with Aunt for
approximately two years due to Mother’s financial and emotional instability and that
Mother intended to relocate with the child to Humboldt, Tennessee. Aunt found the latter
to be the most concerning because Mother was moving to Humboldt to live with Stepfather
even though the two had not been dating very long. Based on the allegations in the petition,
the juvenile court entered an ex parte protective custody order granting Aunt temporary
legal custody of the child. The record shows, however, that the child remained in Mother’s
physical custody despite this order.
The juvenile court heard the dependency and neglect petition on October 7, 2020.
Because Aunt failed to appear at the hearing, the court dismissed the petition “for failure
to prosecute” and restored legal custody to Mother. In the order dismissing the petition,
the juvenile court stated that Father’s visitation rights were “revoked until such time as
Father files his own petition for visitation rights.” There is no dispute that Father failed to
file a petition for visitation, nor is there any dispute that he had no visitation with the child
after October 7, 2020. Initially, Father claimed that he did not file a petition for visitation
because he believed that, during the October 7, 2020 hearing, the court told him and Mother
to reach their own agreement about visitation. He later claimed, however, that his failure
to petition for visitation was due to not having Mother’s address so he could serve her with
such a petition.
Father learned of Mother and Stepfather’s address on October 31, 2020,1 and went
to the home to speak to Mother. Stepfather answered the door and asked Father to leave;
Father left and did not return. Shortly thereafter, Mother filed for another order of
protection against Father alleging that he was stalking her when he came to her home on
October 31. The order of protection was granted on February 7, 2021. Five days before
the order of protection was granted, Father was arrested and incarcerated in the Desoto
County Detainment Center in Hernando, Mississippi, where he remained until April 1,
2021.
On March 12, 2021, Mother and Stepfather filed a petition to terminate Father’s
parental rights and for adoption by stepparent alleging the following grounds for
termination: (1) abandonment by failure to visit for a period of four consecutive months
immediately preceding the filing of the petition, (2) abandonment by failure to support for
a period of four consecutive months immediately preceding the filing of the petition, (3)
abandonment by an incarcerated parent due to a failure to visit for four months before
incarceration, and (4) abandonment by an incarcerated parent due to a failure to support
1
According to Father, he learned of Mother and Stepfather’s address when he saw Mother’s car in a
parking lot while he was in West Tennessee for work on October 31, 2020:
And I’m on the road, and the car [Mother] drives, it’s a - - it’s a bug. I don’t know the year
and stuff, but I know the car because I have paperwork, and so, with that, I stopped. I said,
oh, wait up, that’s her car . . . . So, I just went and knocked on the door. It took them a
while to come to the door, and I just still stood there, and before I could say a word,
[Stepfather] said, “That’s not how we do it. You have to - - [Mother] didn’t bring you here.
You have to get off my property.
-2-
for four months before incarceration. After a one-day trial, the trial court dismissed the
termination petition based on its conclusion that clear and convincing evidence did not
exist to establish any ground for termination of Father’s parental rights.
Mother and Stepfather appealed and present the following issue for our review:
whether the trial court erred in concluding that they failed to establish by clear and
convincing evidence the existence of any ground for termination of Father’s parental
rights.2
STANDARD OF REVIEW
Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010) (citing Troxel v. Granville,
530 U.S. 57, 65 (2000)); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996)
(citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)). Although this right is
fundamental, it is not absolute and may be terminated in certain situations. In re Angela
E., 303 S.W.3d at 250. Our legislature has identified “‘those situations in which the state’s
interest in the welfare of a child justifies interference with a parent’s constitutional rights
by setting forth grounds on which termination proceedings can be brought.’” In re Jacobe
M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., IV., Nos. M2004-
00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct.
App. Apr. 29, 2005)).
Tennessee Code Annotated section 36-1-113 provides the grounds and procedures
for terminating parental rights. First, a petitioner seeking to terminate parental rights must
prove that at least one ground for termination exists. Tenn. Code Ann. § 36-1-113(c)(1);
In re Angela E., 303 S.W.3d at 251. Second, a petitioner must prove that terminating
parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The termination of a parent’s rights is one of the most serious decisions courts make
because “[t]erminating parental rights has the legal effect of reducing the parent to the role
of a complete stranger,” In re W.B., IV, 2005 WL 1021618, at *6, “and of ‘severing forever
all legal rights and obligations of the parent or guardian.’” Id. (quoting Tenn. Code Ann.
§ 36-1-113(l)(1)). Consequently, a parent has a constitutional right to “fundamentally fair
procedures” during termination proceedings. In re Hannah C., No. M2016-02052-COA-
R3-PT, 2018 WL 558522, at *2 (Tenn. Ct. App. Jan. 24, 2018); see also In re Carrington
H., 483 S.W.3d 507, 522 (Tenn. 2016).
2
Father elected not to file an appellate brief.
-3-
Tennessee law ensures fundamental fairness in termination proceedings by
requiring a heightened standard of proof—clear and convincing evidence. See Tenn. Code
Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d at 522. Before a parent’s rights
may be terminated, a petitioner must prove both the grounds and the child’s best interest
by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79
S.W.3d at 546. “Clear and convincing evidence ‘establishes that the truth of the facts
asserted is highly probable, and eliminates any serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” In re Serenity B., No. M2013-
02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In
re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)).
We review the trial court’s findings of fact de novo with a presumption of
correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re
Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we
must then make our own determination “as to whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, amount to clear and convincing
evidence of the elements necessary to terminate parental rights.” In re Carrington H., 483
S.W.3d at 524 (citing In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010)).
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN TERMINATION CASES
Before we can address the issue raised by Mother and Stepfather, we must consider
whether the trial court made sufficient findings of fact and conclusions of law in its order
dismissing the termination petition. Tennessee Code Annotated section 36-1-113(k)
expressly states that trial courts are required to “enter an order that makes specific findings
of fact and conclusions of law” in termination cases. Therefore, “trial courts must prepare
and file written findings of fact and conclusions [of] law with regard to every disposition
of a petition to terminate parental rights, whether they have been requested or not.” In re
B.L.R., No. W2004-02636-COA-R3-PT, 2005 WL 1842502, at *15 (Tenn. Ct. App. Aug.
4, 2005) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL
22794524, at *3 (Tenn. Ct. App. Nov. 25, 2003)); see also In re K.J.G., No. E2015-00087-
COA-R3-PT, 2016 WL 1203800, at *3 (Tenn. Ct. App. Mar. 28, 2016). In other words,
this requirement applies not only to cases where a trial court terminates a parent’s parental
rights but also to cases where a trial court declines to terminate a parent’s parental rights.
See In re Adoption of Muir, 2003 WL 22794524, at *2-3 (vacating order that denied petition
to terminate because the trial court failed to make specific findings of fact). Except under
certain circumstances, if a trial court fails to comply with this requirement, we must remand
the case for preparation of the necessary findings of fact and conclusions of law. State v.
McBee, No. M2003-01326-COA-R3-PT, 2004 WL 239759, at *6 (Tenn. Ct. App. Feb. 9,
2004) (citing In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003)); see also In re Ralph M.,
No. E2021-01460-COA-R3-PT, 2022 WL 3971633, at *16-17 (Tenn. Ct. App. Sept. 1,
2022) (vacating the persistence of conditions ground due to insufficient findings of fact but
declining to remand for additional findings because “other grounds exist[ed]”).
-4-
Here, the entirety of the trial court’s order dismissing the termination petition is as
follows:
ORDER OF DISMISSAL
This cause came to be heard on August 26, 2021 before the Honorable
Clayburn Peeples, Judge for the Circuit Court of Gibson County at Trenton,
Tennessee, upon a Petition to Terminate Parental Rights and for Adoption by
Step-Parent filed by [Mother and Stepfather];
Those present and testifying before this court being the [Mother and
Stepfather], and their attorney Angela Mueller; [Father], and his attorney
Eric P. Egbert; the Guardian ad Litem, Betty S. Scott; and witnesses [Aunt]
and Tiffany Burrus;
That upon the testimony of [Mother and Stepfather], [Father],
representations of counsel, witnesses and the entire record in this cause, from
all of which it appears to the Court that the court finds [Mother and
Stepfather] have failed to prove by clear and convincing evidence that
[Father] abandoned the Minor Child pursuant to T.C.A. 36-1-102(A)(i).
This Court finds that [Father] did not willfully fail to visit the child
for a period of four consecutive months nor did [Father] willfully fail to
support the child.
It is THEREFORE, ORDERED, ADJUDGED AND DECREED that
the Amended Petition by [Mother and Stepfather] for Termination of
Parental Rights and for Adoption by a Step-Parent be dismissed, that all
counsel including the Guardian ad litem be relieved of their duties, and that
costs of this cause, if any, shall be taxed to Petitioners.
SO ORDERED THIS 27[th] day of September, 2021.
This meager, five-paragraph order provides little that could be deemed findings of
fact. It needs to be understood that merely stating in a final order that a parent “did not
willfully fail to visit” or “did not willfully fail to support” are conclusions of law, not
findings of fact. Placing the phrase “This Court finds” before these statements does not
convert the conclusions of law into findings of fact. See In re K.N.R., No. M2003-01301-
COA-R3-PT, 2003 WL 22999427, at *4 (Tenn. Ct. App. Dec. 23, 2003) (“Moreover,
placing the statement (abandoned the child) following the popular phrase ‘the Court
therefore finds’ does not transform a conclusion of law into a finding of fact.”).
Because the trial court failed to set forth the findings of fact that underlie the
conclusions of law, we are unable to proceed with our review of this case. Therefore, we
vacate the Order of Dismissal and remand the matter to the trial court to enter an order that
makes specific findings of fact. We note that, in both the original termination petition and
the amended termination petition, Mother and Stepfather asserted “abandonment” as
defined in Tenn. Code Ann. § 36-1-102(1)(A)(i) and as defined in Tenn. Code Ann. § 36-
-5-
1-102(1)(A)(iv). The trial court referenced the definition in subsection (i), but it is unclear
from the order whether the court considered the definition in subsection (iv). Thus, on
remand, the trial court should make specific findings of fact as to both definitions relied
upon by Mother and Stepfather.
CONCLUSION
The judgment of the trial court is vacated and the case is remanded for further
proceedings consistent with this opinion. Costs of this appeal are assessed against the
appellants, Jasmine D. and David D., for which execution may issue if necessary.
_/s/ Andy D. Bennett_______________
ANDY D. BENNETT, JUDGE
-6- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487265/ | Pennewill, J.,
charging the jury:
Gentlemen of the jury:—The prisoner, Howard Honey, is charged in this indictment with murder of the first degree,—it being alleged that he did on the twenty-ninth day of August, 1906, wilfully and maliciously kill and murder one Clarence Morgan with a sedate, deliberate mind and with express malice aforethought.
It is incumbent upon the State, in order to convict the prisoner, to prove all the necessary and essential ingredients of the crime alleged in this indictment, beyond a reasonable doubt.
Under this indictment you may find the prisoner guilty in manner and form as he stands indicted; that is, guilty of murder in the first degree,—or guilty of murder in the second degree, or guilty of manslaughter, or not guilty, as the evidence shall warrant.
It becomes our duty therefore to define to you the different degrees of felonious homicide. Homicide is the killing of one human being by another. Felonious homicide is, in this State, of three kinds: murder of the first degree, murder of the second degree, and manslaughter. Malice is an essential ingredient of-.the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the mind or heart. As here used, this term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Wherever the fatal act is done deliberately or without adequate cause, the *150law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.
Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design; which formed design may be manifested in many ways. The deliberate selection and use of a deadly weapon is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a deliberate formed design to kill. All homicides with a deadly weapon are presumed to be malicious until the contrary appears by the evidence, and the burden of proof to the contrary lies on the accused, as the natural and probable consequences of the act are presumed by the law to have been intended by the person in using a deadly weapon. If the jury are satisfied from the evidence that the prisoner, when he killed the deceased, deliberately intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder. It must be remembered that even the most sudden and instantaneous acts may be accompanied with circumstances which show beyond doubt that it was the result of a deliberate purpose. Time, that is, the lapse of time, need not enter into consideration, as an essential or necessary element of deliberation, for if a design or intention to take life be but the conception of a moment, it is sufficient. If the slayer had time for thought, and thinking but for a moment, did intend to kill, and in fact did kill, it is just the same, in legal contemplation as if he had intended it for a length of time, and killing under such circumstances is held to be both deliberate and premeditated.
Murder in the second degree is where the killing was done with implied malice. Implied malice is an inference or conclusion of law from the facts found by the jury. Murder of tho second degree is where there was no deliberate mind or formed *151design to take life or to perpetrate a crime punishable with death, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the ofíense to manslaughter.
Implied or constructive malice, being an inference or conclusion of law from facts actually proved before the jury, is implied by law from every unlawful, deliberate, cruel act committed by one person against another, however sudden the act may be, for the law considers that he who does a cruel act voluntarily, does it maliciously.
In order that you may have a definite idea of the distinction between the two degrees of murder, we say to you, -first wherever there exists a design or intention, deliberately formed in the mind of the accused, to take life, and death ensues from his act, it is murder with express malice, and consequently murder of the first degree. Secondly, where there exists no such design or intention to take life, but death results from an unlawful act of violence on the part of the accused, and in the absence of adequate or sufficient provocation, it is murder with or by implied malice, and therefore murder in the second degree.
Manslaughter is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter, the provocation must be very great—so great indeed as to produce such a transport of passion as renders the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved spirit and is characterized by malice, manslaughter results from no malignity, but from unpreumeditated and unreflecting passion.
The burden of establishing self-defense,—where it is set up as a defense— to the satisfaction of the jury, .rests upon the prisoner. In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary for that purpose, he becomes the aggressor. If the deceased first attacked the prisoner, even though the attack was of such a character as to create in the mind of the prisoner a reasonable belief that he was in danger of death or great bodily harm, it *152was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant. No one may take the life of another, even in the exercise of the right of self-defense, unless there is no other available means of escape from death or great bodily harm. If the jury are satisfied from the evidence that the deceased first attacked the prisoner, and from the character of such attack the prisoner had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and that he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased was a justifiable act of self-defense, and the prisoner should be acquitted of any crime whatever.
If you shall be satisfied from the evidence that the prisoner killed the deceased unlawfully, your next duty will be to determine the grade of the offense in accordance with the instructions given you by the Court. In the discharge of that duty you should not be swayed or influenced by any consideration of the punishment which may follow a conviction. It is your duty to determine and declare whether the prisoner under this indictment is guilty of any, and, if any, of what offense; and there your duty ends.
In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, that doubt must insure to his benefit, and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague or speculative doubt, but a reasonable, substantial doubt, remaining in your minds after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.
Verdict, guilty of manslaughter. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487267/ | Pennewill, J.,
charging the jury.
Gentlemen of the jury:—Oliver Cephus, the prisoner at" the bar, is charged in this indictment with murder of the second degree,—it being alleged that he did, on the twenty-first day of July of the present year, kill one William H. Passwater, at or near Horsey’s Cross Roads in Seaford Hundred in this County, by striking him on the head with a wooden club or stick, inflicting thereby a mortal wound, from which the said Pass-water in a short time died.
In this case you may find any one of three verdicts, as the evidence shall warrant; -first, not g uilty; second, guilty of manslaughter; third, guilty in manner and form- as he stands indicted,—that is, of murder in the second degree.
It is not necessary for us to explain to you at length what would constitute murder of the first degree, because the prisoner is not charged with that grade of murder. We will say, however, that murder of the first degree is where the killing is committed with express malice aforethought,—with a sedate, deliberate mind and formed design to kill.
Murder of the second degree—which is charged in this case '—is where the killing was done with implied malice. Implied malice is an inference or conclusion of the law from the facts found by the jury. Murder in the second degree is where there was no deliberate mind or formed design to take life or to perpetrate a crime punishable with death, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter. And where the circumstances surrounding the case show that the killing was committed under the influence of a wicked and depraved heart, or with a cruel and wicked indifference to human life, the law implies malice and makes the offense murder-of the second degree.
Implied malice—which must be proved in. order to establish murder of the second degree—is an inference or conclusion of law from the facts actually proved before the jury, and is implied by the law from every deliberate cruel act committed by *163one person against another, however sudden the act may be, for the law considers that he who does a cruel act voluntarily does it maliciously. Malice is an essential element of the crime charged in this indictment, and it may be proved just as any other material element of the charge. Without malice there can be no murder.
When the killing is shown to have been done with a deadfy weapon, malice is presumed in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, for the usual and probable consequences of the act are presumed in law to have been intended by the person using the deadly weapon.
A deadly weapon is such a weapon as is likely to produce death when used by one person against another; such, for example, as a knife, or piece of wood of sufficient size to cause death to one who may be struck by it. And if death is produced by the use of a deadly weapon, great must be the provocation to reduce the killing from murder to manslaughter.
Manslaughter is where one in a sudden affray in the heat of blood or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. It is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter the provocation must be very great; so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved heart and is characterized by malice, manslaughter results not from malice but from unpremeditated and unreflecting passion.
We have been asked by counsel for the prisoner to charge you in respect to the law of self-defense; and we will say that no looks or gestures, however insulting; no words, however opprobrious or offensive, can amount to a provocation sufficient to justify even a slight assault. Nor can a slight assault excuse the killing of the assailant with a deadly weapon so as to reduce the offense from the grade of murder to that of manslaughter. The *164more usual instances of manslaughter occur where two persons are engaged in mutual combat and one slays the other in the heat of passion.
The burden of establishing self-defense to the satisfaction of the jury rests with the accused.
In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defence greater force than is necessary for that purpose he becomes the aggressor.
If the deceased first attacked the accused, even though the attack was of such a character as to create in the mind of the accused a reasonable belief that he was in danger of death or great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant.
No one may take the life of another, even in self-defense, unless there is no other available means of escape from death or great bodily harm. If one is attacked and from the character of such attack he had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased would be a justifiable act of self-defense.
If, on the other hand, the attack was of a trifling character and manifested no purpose or intention on the part of the assailant to inflict any serious injury, the repelling of such attack by the use of a weapon likely to produce death, would not be an act of justifiable self-defense.
In ascertaining whether the accused was in any, and in what, danger of injury at the hands of the deceased when he struck the mortal blow; and, if in such danger, whether he took the proper precautions to avoid such danger, the jury should consider the facts and circumstances of the case as disclosed by the witnesses.
In order to justify or excuse the accused in striking the fatal blow it is not sufficient that he at the time believed himself to be in danger of death or great bodily harm at the hands *165of the deceased, but the circumstances must have been such as to justify a reasonable man in such belief; and further, that there was no reasonable way of avoiding or escaping from such danger except by slaying the assailant.
In order to convict the prisoner it is incumbent upon the State to prove beyond a reasonable doubt every material ingredient of the crime charged; and if after carefully and conscientiously considering and weighing all the evidence in the case you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such a doubt, and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague or speculative doubt, but it must be a reasonable, substantial doubt remaining in your minds after a careful consideration of all of the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances as proved in the case.
If you are not satisfied beyond a reasonable doubt that the prisoner killed William H. Passwater, or even though you'should believe that he did kill him, yet if you are satisfied that he did it in necessary and lawful self-defense, as we have defined it to you, your verdict should be not guilty. If, however, you are satisfied that the prisoner killed the deceased unlawfully, but without malice, your verdict should be guilty of manslaughter.
But if you believe that the prisoner killed the deceased deliberately; that he did it without provocation, or without sufficient provocation to reduce the offense to manslaughter, your verdict should be guilty of murder of the second degree.
We think it proper to remind you that crime seems to be increasing in our midst; that offenses of a grave and serious character are all too common in this State and in this County ; and while it is your duty to acquit the prisoner if you are not satisfied beyond a reasonable doubt of his guilt, it is equally your duty to the State and to society that you should render a verdict of guilty, if the evidence should warrant you in so doing.
Verdict, guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482539/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
West Point Contractors, Inc. ) ASBCA Nos. 63039, 63040
)
Under Contract No. W9126G-18-D-0025 )
T.O. W9126G-18-F-2500 )
APPEARANCE FOR THE APPELLANT: Casey J. McKinnon, Esq.
Cohen Seglias Pallas Greenbelt & Furman PC
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Maureen E. Rudolph, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Albuquerque
Shane T. Lauritzen, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, Vicksburg
ORDER OF DISMISSAL
The disputes have been settled. These appeals are dismissed with prejudice.
Dated: October 19, 2022
JOHN J. THRASHER
Administrative Judge
Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA Nos. 63039, 63040, Appeals of West
Point Contractors, Inc., rendered in conformance with the Board’s Charter.
Dated: October 19, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
2 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482538/ | IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 140
October Term, A.D. 2022
November 9, 2022
EDGAR ALLEN STITZEL,
Appellant
(Defendant),
v. S-22-0191
THE STATE OF WYOMING,
Appellee
(Plaintiff).
ORDER AFFIRMING THE DISTRICT COURT’S JUDGMENT AND SENTENCE
[¶1] This matter came before the Court upon its own motion following notification
Appellant has not filed a pro se brief within the time allotted by this Court. Pursuant to a
plea agreement, Appellant entered an unconditional guilty plea to one count of failure to
register as a sex offender. Wyo. Stat. Ann. § 7-19-302. The district court imposed a three
to five-year sentence, which was suspended in favor of one year of supervised probation.
Appellant filed this appeal to challenge the district court’s April 26, 2022, Order of
Suspended Sentence and Supervised Probation.
[¶2] On September 14, 2022, Appellant’s court-appointed appellate counsel e-filed a
Motion to Withdraw as Counsel, pursuant to Anders v. California, 386 U.S. 738, 744, 87
S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). This Court subsequently entered an Order
Granting Motion for Extension of Time to File Pro Se Brief. This Court ordered that, on
or before October 31, 2022, Appellant was permitted to file with this Court a pro se brief
specifying the issues he would like the Court to consider in this appeal. This Court also
provided notice that, after the time for filing a pro se brief expired, this Court would make
its ruling on counsel’s motion to withdraw and, if appropriate, make a final decision on this
appeal. This Court notes that Appellant did not file a pro se brief or other pleading in the
time allotted.
[¶3] Now, following a careful review of the record and the Anders brief submitted by
appellate counsel, this Court finds that appellate counsel’s motion to withdraw should be
granted and the district court’s Order of Suspended Sentence and Supervised Probation
should be affirmed. It is, therefore,
[¶4] ORDERED that the Wyoming Public Defender’s Office, court-appointed counsel
for Appellant Edgar Allen Stitzel, is hereby permitted to withdraw as counsel of record for
Appellant; and it is further
[¶5] ORDERED that the Albany County District Court’s April 26, 2022, Order of
Suspended Sentence and Supervised Probation be, and the same hereby is, affirmed.
[¶6] DATED this 9th day of November, 2022.
BY THE COURT:
/s/
KATE M. FOX
Chief Justice | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482542/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Selevive Group, LC ) ASBCA Nos. 63292, 63293
)
Under Contract No. W91QF4-21-P-0023 )
APPEARANCES FOR THE APPELLANT: Nicole D. Pottroff, Esq.
Shane J. McCall, Esq.
John L. Holtz, Esq.
Stephanie L. Ellis, Esq.
Greg P. Weber, Esq.
Koprince McCall Pottroff LLC
Lawrence, Kansas
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
MAJ Chris C. Walton, JA
Dana J. Chase, Esq.
CPT Camille J. Grathwohl, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE EYESTER
PURSUANT TO BOARD RULE 12.2 ON
THE GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION
Selevive Group, LC (Selevive or appellant) appeals two contracting officer
final decisions (COFD) and has elected to proceed under the Board’s Small Claims
(Expedited) Procedures, Board Rule 12.2. The Contract Disputes Act, 41 U.S.C.
§ 7106(b)(4)-(5), as implemented by Board Rule 12.2, provides that this decision shall
have no precedential value, and in the absence of fraud, shall be final and conclusive
and may not be appealed or set aside.
The government contends the Board lacks jurisdiction and has moved to
dismiss the appeals. For the reasons stated below, we grant the government’s motion
in part and deny it in part.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. On December 10, 2020, the Department of the Army, Mission and
Installation Contracting Command, issued Solicitation No. W91QF421Q0010 for
visual inspection and certified testing of lightning protection systems (LPS) at Fort
Leavenworth (R4, tab 1 at 1, 6). The solicitation was set-aside for women-owned
small businesses (id. at 1). Offerors were to submit quotations using fixed-prices for
all contract line-item numbers (CLINs), which included the base year CLIN and two-
option year CLINs, and award was to be made on a lowest-priced technically
acceptable (LPTA) basis (id. at 26-27, 29). The solicitation had two technical exhibit
(TE) attachments: Technical Exhibit A – Facilities Lists & Measurements, and
Technical Exhibit B – Installation Map (id. at 26).
2. On April 27, 2021, the agency awarded purchase order No.
W91QF421P0023 in the amount of $23,087.50 to Selevive for the base year (R4, tab 7
at 64). The purchase order included Federal Acquisition Regulation (FAR) 52.212-4,
Contract Terms and Conditions – Commercial Items (OCT 2018), which requires
resolution of a dispute pursuant to FAR 52.233-1, Disputes, and for the contractor to
proceed with performance pending final resolution of the dispute. FAR 52.212-4(d).
3. Pursuant to the performance work statement (PWS), the appellant was to
provide all supervision, labor, supplies, and equipment “necessary to perform visual
inspections, and certified testing of [LPS] for facilities at Fort Leavenworth as defined
in this [PWS] and the Technical Exhibits and Attachments” (R4, tab 7 at 70). The
purchase order stated several times that the appellant shall “accomplish all inspection
and testing tasks [in accordance with] the Unified Facilities Criteria [(UFC)] 3-575-01,
[National Fire Protection Association (NFPA)] 780, [Department of the Army
Pamphlet (DA Pam)]-385-64, UL Lighting Protection Standards and other listed
regulatory standards” (id. at 78; see also id. at 70). In addition, the appellant was to
ensure all work was accomplished in accordance with the documents in paragraph 7,
which included the technical exhibits, and identified “which buildings/areas belong to
each building type, the approximate square footage of the building/areas roofs, any
special security considerations, and any constraints” (id. at 70, 90).
4. Further, the appellant was to provide the government “with a comprehensive
report showing inspections, tests and results therein performed on all facilities” (R4,
tab 7 at 71). The inspection and testing reports developed for each building were
required to list, “at a minimum, facility number, [a] brief description of facility type or
style (smoke stack, office building, control tower etc.), [a] comprehensive list of
installed LPS system(s) and their respective locations and coverage of the facility it is
installed on, [a] list of all tests performed, satisfactory and unsatisfactory results of the
installation of the system or equipment or test results” (id. at 78).
2
5. The purchase order also required appellant to “develop isometric projection
diagrams of each facility and inspected/tested system, and develop comprehensive
reports from each inspection of and test of, each facility and its respective installed
LPS system in its entirety, indicating each inspection and testing result for each
system, and facility covered under this contract” (R4, tab 7 at 78). The purpose of the
drawings was to “identify faulty or inadequate installations of, or deteriorated, broken,
missing, or otherwise unsatisfactory installed parts of the LPS in order to make
informed and required repairs in the future” (id. at 79).
6. According to the order, it was the appellant’s “sole responsibility” to
directly coordinate with the facility occupants for the scheduling of inspection and
testing requirements (R4, tab 7 at 70). However, the contracting officer’s
representative (COR) could “assist with this if there are issues scheduling or
coordinating with individual facilities as needed.” (Id.)
7. The order set forth numerous requirements concerning access to the base.
For example, it stated that all personnel entering must report to the visitor’s center for
a background check and a day pass (R4, tab 7 at 74). In the alternative, personnel
working on an approved contract could apply for a Local Access Credential (LAC)
card that would give them extended access to the base without going to the visitor
center every day (id.). The appellant was to submit the LAC application form to the
COR; the purchase order provided detailed instructions about the application process
and a website to access the form (id.). The average time for standard background
checks from submission until approval/denial was ten business days, and during busy
times the average was one month. (Id.)
8. In addition, if the appellant was to use special equipment or lifts and booms
in an inaccessible area or one designated as general parking to perform direct
inspection and testing of installed systems for facilities, the appellant was to
coordinate with the Ft. Leavenworth Provost Marshall/Military Police Traffic Section
at least four days ahead of the scheduled work (R4, tab 7 at 73). The purchase order
provided a phone number for the traffic section. (Id.)
9. In April and May of 2021, the agency emailed the appellant the government
points of contact, information regarding LAC applications, and other information
about accessing the facilities (R4, tabs 36-37, 40-41). Also in May of 2021, the
government approved the appellant’s LAC passes, but the appellant failed to pick them
up in time and they expired (R4, tab 44). The appellant resubmitted the LAC
applications and was given the option of obtaining day passes to complete the work (as
explained in the purchase order) or reschedule the work once the long-term passes
were approved (id. at 755).
3
10. On June 22, 2021, the appellant asked the COR if the agency would
provide a guide to work with them especially since heavy equipment would be used,
and stated some of the buildings did not have a contact person and asked how to get
access to the buildings to establish access and notify them of the impending work (R4,
tab 8 at 102). The COR emailed the appellant with the PWS sections explaining the
coordination process (R4, tab 45 at 767). The appellant also emailed the COR and
stated it was waiting for LAC approval, missing contact information, coordination
with military police, and a training waiver (R4, tab 47 at 771). By June 25, 2021, the
COR provided the appellant an updated points of contact list (R4, tab 48). At this
point, the COR emailed the contracting officer and expressed concern over the
appellant’s ability to perform (R4, tab 8 at 101-02).
11. On August 13, 2021, the appellant provided the COR an inspection report
for the LPS (R4, tab 9 at 112-13). This was the beginning of the issues relating
primarily to the isometric drawings. On August 16, 2021, the COR responded and
requested the isometric drawings and diagrams and the required test data (id. at 111-
12). That same day, the appellant responded and stated that it needed the original
lightning protection as built drawings or, if those were unavailable, architectural or
mechanical roof drawings with actual scaling (id. at 110). According to the appellant,
without this information, there “will be a price per building and a lead time associated
per building based on the amount of engineering time required to produce” the
documents (id. at 110). There continued to be much back and forth about the
isometric drawings (id. at 105-09).
12. On August 18, 2021, the appellant asked for the height of each of the
buildings and a modification of the contract to a cost-type, level-of-effort for a
specified number of hours to be worked by engineering personnel (R4, tab 9 at 105).
On that same day, in an internal email, the COR explained that the heights were
provided as approximates to the bidders to consider potential costs in buying or renting
lifts and the omitted heights would be captured by the vendor at the time of inspection
(R4, tab 10 at 122).
13. On August 19, 2021, the contracting officer emailed the COR and others,
expressing concern about the project and stating the appellant underbid in order to get
this award, there were three acceptable quotations and the appellant’s was $80,000
under the next acceptable quotation for the base period alone but the agency could not
evaluate realism, and the agency could make the appellant whole by stating there was
a mistake in the quotation (R4, tab 10 at 120-21). The contracting officer stated it was
likely the appellant would file a request for equitable adjustment (REA) and then a
claim due to the specific language she used in her request for a modification (id.
at 121).
4
14. On August 24, 2021, the appellant informed the contracting officer that the
engineers created the isometric drawings despite the missing information relating to
the height of each building, but this resulted in an additional cost (R4, tab 9 at 104).
On August 27, 2021, the COR informed appellant the drawings were unacceptable
because none showed the installed LPS or the test results (id.; R4, tab 11 at 136-37).
The appellant resubmitted the drawings and test reports and they were again rejected
(see R4, tab 12 at 138). This appears to be the beginning of the issues relating
primarily to the inspection/testing requirements.
15. On September 7, 2021, the agency requested additional drawings and the
inspection readings for all components (R4, tab 13 at 143). In response, the appellant
stated the lightning protection inspection was performed as a visual inspection and
could only be performed as such on the components, with a continuity test at the
through roof connections, and no other testing could be performed (id. at 142-43). The
COR responded that all systems can be tested to ground, as the PWS states, using an
industry standard vibroground device and other means (id. at 141).
16. The next day, the agency again rejected the submitted drawings (R4, tab 14
at 145). On September 21, 2021, the appellant again sent the deliverables stating they
“satisfy NFPA 780 inspections;” the agency accepted the deliverable the next day (R4,
tab 15 at 149-50). The appellant then asked to proceed with close-out and payment,
but was informed that there were still missing deliverables, namely, the test results (id.
at 148-49). The appellant disagreed and stated that testing was performed under the
requirements of NFPA 780. (Id. at 148)
17. On September 30, 2021, the appellant emailed the contracting officer and
requested payment on its invoice (R4, tab 16 at 154). In addition, the appellant
submitted an REA using the template prescribed by DFARS 243.205-71, Requests for
Equitable Adjustment, again asking for a modification to a cost-type, level-of-effort
purchase order for a specified number of hours to be worked by engineering personnel
due to not having the requested information (id. at 154-55). The REA also stated that
a specified number of hours increased due to requested coordination with officers for
building access and other documents not foreseen in the original scope of work (id.
at 155). The total requested was $12,700 (id.). On October 8, 2021, the contracting
officer requested the appellant provide the specific amounts tied to a government-
caused issue (id. at 152).
18. On October 26, 2021, the contracting officer emailed the appellant and
others in the government and stated that there was a “dispute” about the testing
requirements and that the appellant believed the previously provided inspection reports
satisfied the contract (R4, tab 17 at 157). The government maintained that ground
testing was required, and not provided by the appellant. (Id.) On October 27, 2021,
5
the appellant submitted an invoice for isometric drawings in the amount of $11,543.75;
the invoice was accepted the same day (R4, tab 30).
19. On November 30, 2021, a different contracting officer issued a COFD
regarding appellant’s September 30, 2021 email asserting it provided all deliverables
and requesting payment in full (R4, tab 18 at 159). The COFD stated the purchase
order was ambiguous regarding the type of testing required such that while the PWS
references NFPA 780 and DA Pam 385-64 “there is not an immediately clear
correlation in the statement of what tests are to be performed nor what tests are
referenced or a location within the specifications to locate applicable testing. . . .” (Id.
at 160). However, because the appellant waited more than 90 days to challenge the
ambiguity, it was required to perform the testing on the LPS (id.). The contracting
officer asked the appellant to provide a revised schedule regarding the testing by
December 3, 2021 (R4, tab 19 at 178). The COFD also stated that the REA relating to
coordination of access to facilities would be handled as a separate matter (R4, tab 18
at 159).
20. On December 1, 2021, the appellant requested a meeting (R4, tab 19
at 172-73). In addition, the appellant submitted a new report (id. at 169). The
contracting officer stated that it appeared to be the original report and requested a
report with the ohm value readings which were needed to determine LPS compliance.
(id. at 168) The appellant informed the agency that it subcontracted the testing work
and it would be performed the week of January 17, 2022 (id. at 162, 166).
21. On February 18, 2022, the agency held a teleconference with the appellant
to discuss the partial acceptance of the deliverables (R4, tab 21 at 182). According to
the meeting minutes, the appellant stated the former contacting officer informed her by
telephone that she only needed to provide the minimum deliverables which she had
already provided, and there was no requirement to provide additional data (id.). The
appellant also stated that the government must meet with her subcontractors and walk
them around each facility to show them what the government wanted (id.). In
response, the government stated that there were no documented or verbal discussions
with any of the assigned contracting officers that changed the scope of the work or
deliverables which were relayed to the COR (id. at 183). The government also stated
that the facilities, locations, and access processes were in the PWS and the appellant
has had access to each facility as confirmed by its own prior admission (id.). The
agency agreed to pay a portion--$8,338.05--of the remaining balance due to the
partially accepted test result deliverables (id.).
22. On March 9, 2022, the contracting officer asked the appellant for more
details concerning the September 30, 2021 REA, such as the hours not included in the
original scope, the personnel not available, and the documentation to be provided that
was out of scope (R4, tab 24 at 194). In response, the appellant stated that only roof
6
testing was required but the agency insisted on ground testing per the November 30,
2021 COFD, and the blueprint of the original installation of the LPS was never
provided (id.). The appellant failed to address the allegations relating to access to
government buildings.
23. On March 13, 2022, the agency issued a COFD on the September 30, 2021
REA (R4, tab 22 at 185-86). The agency disputed the REA and concluded the PWS
did not state a requirement for the government to provide drawings or blueprints for
the LPS but stated the appellant was required to provide a drawing of each facility (id.
at 185). The COFD did not address any issues relating to base access.
24. On March 16, 2022, the agency and appellant held another meeting, which
included the appellant’s subcontractors, to explain what test data was still due (R4,
tab 23 at 189). The government insisted the appellant test every installed LPS
component and sub-component for electrical resistance (id.). The appellant argued
that the government was asking for deliverables not required by the purchase order,
that all deliverables provided to date satisfied the order, and the government was
requesting items which were not “industry standard acceptable practice” and
impossible to provide (id. at 190). The government disagreed and stated that it
received this exact same product on another contract (id.). The parties did not resolve
their issues and the appellant insisted it did not owe the government anything more.
(Id.) Nonetheless, the appellant continued work on the purchase order.
25. On March 25, 2022, the COR spoke with an individual working for the
appellant to discuss the LAC/pass process and how to maneuver the boom on the
streets (R4, tab 68 at 1013). On March 30, 2022, the agency sent the appellant and a
subcontractor links to webpages on visitor access to the base such as the visitor’s
office hours and location and pass requirements (R4, tab 67).
26. On March 31, 2022, the appellant’s subcontractor stated it needed a larger
boom lift because it was missing needed information (R4, tab 26 at 218-19). In
response, the appellant asked the subcontractor to confirm that the building dimensions
originally sent were insufficient to determine the building heights because she need to
justify the additional costs for equipment and labor (id. at 218). On that same day, the
subcontractor confirmed that the information was not enough to gauge the size of the
boom lift required (id.).
27. Also on March 31, 2022, the appellant emailed the contracting officer with
an REA seeking $97,370 for missing information not provided by the agency, which
caused an increase in overall costs such as manpower and equipment (R4, tab 26
at 207). The REA listed a cost of $24,470 for the inspection of all 18 buildings and
inspection reports to “include any necessary remediations;” $34,800 for isometric
drawings due to missing information from the agency; and $38,100 for the cost of
7
additional testing and measurements due to missing information from the agency (id.
at 209). It included a copy of a check to Lightning Masters Corporation, a copy of a
wire transfer to Scientific Lightning Solutions, LLC, and various emails relating to
missing building heights (id. at 210-14, 217). The appellant informed the contracting
officer that it was “going this route of Equitable Adjustment rather than a different
route for now because I want to preserve a good working relationship with your team”
(id. at 208).
28. In early April 2022, the appellant informed the government it could not
finish the work due to weather conditions and trying to get cars moved or maneuvering
the boom around parked cars (R4, tab 68 at 1011-12). On April 5, 2022, the appellant
emailed the COR and asked to work the weekend to complete the job (id. at 1011).
The contracting officer approved the request, but reminded the appellant to read the
PWS, especially the sections relating to hours of operation, parking, weather
conditions, and coordination with the traffic section (id. at 1010). The contracting
officer stated she was not granting any additional money for overtime work. (Id.)
29. On April 8, 2022, the agency issued a COFD denying the REA (R4, tab
27). According to the COFD, the PWS: (1) required the appellant provide remedies
and solutions for substandard or deficient systems or components; (2) stated the
appellant would provide the government isometric drawings; and (3) stated the
appellant would provide testing and measurements of the buildings (id. at 221). The
COFD stated the government provided building heights for the five tallest buildings in
technical exhibit A, and therefore appellant had knowledge of the appropriate
equipment needed. (Id.)
30. On April 11, 2022, the appellant emailed the contracting officer and stated
“see attached claim” (R4, tab 28 at 223). The claim consisted of a claim summary
schedule (setting forth costs for direct labor, staff payroll, general and administrative
(G&A) expenses and profit), and several corresponding invoices, and requested a total
amount of $97,370 (id. at 224-31). Specifically, the appellant attached the following
invoices: (1) $7,625 from Bolt Lightning Protection for testing, travel, and ground
readings on 13 buildings; (2) $18,470 from Lightning Master for inspection of all 18
buildings, lift rental, travel, inspection reports to include necessary remediations
required to bring LPS up to industry standard per NFPA 780; and (3) $24,012.58 from
Scientific Lightning Solutions, LLC for a feasibility study for lightning protection and
surge protection with notes that the building heights were not provided so the
assumption was a 60-ft boom lift was required (id.).
8
31. On April 13, 2022, the agency issued a COFD on the claim (R4, tab 29). 1
First, with respect to the $7,265 for the test reports and grounding readings, the
government denied the claim because the testing and inspection services were required
by the PWS (id. at 233). The COFD also stated: “Additionally, there is no evidence in
the contract file that the contractor posed any questions related to testing and
inspection that would warrant an increase in costs” (id.). The government also denied
the claim seeking $18,470 for testing and inspection reports and isometric drawings
(id. at 232). According to the government, the PWS required the appellant provide all
supplies, equipment, management and labor personnel to perform inspection and
testing services for the specified buildings; and the appellant was to provide remedies
and solutions to get substandard or deficient systems or components within acceptable
standards along with a scale isometric projection drawing of each facility listed in the
TE (id.). The government stated that the appellant had an opportunity to account for
these costs in its quotation and again stated that there was no evidence in the contract
file that the appellant posed any questions on the testing and inspection procedures that
would warrant an increase in costs (id.).
32. The government also denied the request for $24,012.58 for a feasibility
study, which included providing measurements for all buildings listed in the PWS (R4,
tab 29 at 233). According to the government, the PWS required testing and
measurements of the buildings (id.). The government also denied the requests for staff
payroll, G&A, and profit because the PWS required the appellant provide all
supervision, management, tools, equipment, and labor necessary to perform inspection
and testing services (id.). The contracting officer concluded by requiring the appellant
provide the required testing of the LPS (id.).
33. On April 22, 2022, the appellant emailed Thomas Prayne and stated that
testing and inspection would be conducted on April 25-26, 2022 and that all
stakeholders had been informed and vehicles will need to be parked away from the
building to allow access (R4, tab 71 at 1029). On April 22, 2022, Mr. Prayne stated
that he could provide the appellant cones but the appellant would have to pick them up
(id.). On April 25, 2022, the appellant informed the COR she was having problems
with access to certain buildings (R4, tab 70 at 1022-23). The COR asked the appellant
if she had coordinated with the military traffic section to have the areas coned off, as
described in the PWS (id. at 1022). The appellant then forwarded her email to
Mr. Prayne and asked for assistance in accessing the buildings (id. at 1022).
34. On May 18, 2022, the appellant filed a Notice of Appeal on the COFD on
the REA, which the Board docketed as ASBCA No. 63292. On May 25, 2022, the
1
The government found a discrepancy in the amount requested and provided a
response to each of the amounts requested in the various invoices (R4, tab 29
at 232).
9
appellant filed a Notice of Appeal filed on the COFD on the claim, which the Board
docketed as ASBCA No. 63293. On May 31, 2022, the appellant submitted a final
invoice for final testing in the amount of $11,543.75; the government accepted the
invoice on June 3, 2022 (R4, tab 31 at 239, 243).
35. On June 21, 2022, the appellant, this time through counsel, submitted a
Statement of Clarification to the Board explaining that the two “claims” submitted
initially by the pro se owner are for the same amount of $97,370 and therefore within
the monetary limits for expedited procedures (app. corr. dtd. June 21, 2022). On
July 19, 2022, the appellant submitted a Second Statement of Clarification explaining
that the March 31, 2022 REA and April 11, 2022 claim submitted by the appellant to
the contracting officer “are for the same matters and based on the same allegations,
which shows why the amounts claimed in each are identical.” (App. corr. dtd. July 19,
2022)
36. In its amended complaint, the appellant alleges the following: (1) there
was promissory estoppel because the contracting officer verbally modified the
solicitation prior to award when it informed the appellant during a call that the
solicitation only sought annual inspection services which the appellant says “would
only consist of visual inspection services in accordance with NFPA 780”(amended
compl. ¶¶ 30-37); and (2) the government breached its implied duty of good faith and
fair dealing when it failed to cooperate and prevented the appellant from accessing the
site to conduct work under the contract, resulting in wasted expenditures on labor,
equipment and subcontractors (amended compl. ¶¶ 38-43).
DECISION
The government has made several arguments that the Board lacks jurisdiction
over the appeal. First, the government argues the appellant never submitted a “valid”
claim to the contracting officer. 2 The government contends the April 11, 2022
correspondence was “simply seeking reimbursement of its costs as if the Contract were
cost-reimbursement type, rather than firm-fixed price type, similar to the appellant’s
efforts in its March 31, 2022 REA” (gov’t reply at 12). The government further
contends the April 11, 2022 communication fails to provide clear language providing
the basis of the claim (gov’t mot. at 11-12; gov’t reply at 12-13).
2
The government has moved to dismiss the appeals by arguing that the April 11, 2022
submission is not a “valid” claim and only averring that the March 31, 2022
submission is an REA even though the agency issued COFDs for both (see e.g.,
gov’t reply at 14-16). As noted, Selevive appeals both COFDs and asserts that
the two are for the same matters and based on the same allegations; the Board
consolidated the appeals. Further matters, if any, relating to the March 31,
2022 REA will be addressed in a decision on the merits.
10
The appellant argues that it submitted a claim as evidenced by the earlier
correspondence and communications which preceded the claim, along with the claim
itself (app. resp. at 11-15). According to the appellant, these documents provided a
clear statement of the basis of the claim, and the contracting officer understood the
basis of the claim, as evidenced by the COFD (id.).
Selevive bears the burden of establishing jurisdiction by a preponderance of the
evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.
1988) (citations omitted); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA
¶ 35,700 at 174,816 (citing Hanley Indus., Inc., ASBCA No. 58198, 14-1 BCA
¶ 35,500 at 174,015). “The facts supporting jurisdiction are subject to our fact-finding
upon a review of the record.” CCIE & Co., 14-1 BCA ¶ 35,700 at 174,816 (citing
Raytheon Missile Sys., ASBCA No. 58011, 13 BCA ¶ 35,241 at 173,016).
Is the April 11, 2022 correspondence a claim?
The FAR defines a “claim” 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 under
or relating to this contract.” 48 C.F.R. § 52.233-1(c). Claims under $100,000 need not
be certified. 41 U.S.C. § 7103(b)(1); see 48 C.F.R. § 52.233-1(d)(2)(i). The FAR also
explains that “[a] voucher, invoice, or other routine request for payment that is not in
dispute when submitted is not a claim under 41 U.S.C chapter 71.” 48 C.F.R.
§ 52.233-1(c). To determine whether a claim was submitted, “we apply a common
sense analysis, looking at specific communications on a case-by-case basis and the
‘totality of previous correspondence between the parties.’” Kellogg Brown & Root
Servs., Inc., ASBCA No. 62681, 21-1 BCA ¶ 37,974 at 184,427 (quoting Holmes &
Narver, Inc., ASBCA No. 51430, 99-1 BCA ¶ 30,131 at 149,054).
The April 11, 2022 submission is a claim. It followed the COFD denying the
March 31, 2022 REA which likewise sought $97,370 for, among other things,
inspection and testing. Further, the April 11, 2022 submission followed months of
conflict between the appellant and government over many things including the
requirements for testing. Based on the record before us, as far back as February 18,
2022, the appellant disputed the requirement to perform ground tests on the LPS due to
an alleged conversation she had with the contracting officer (SOF ¶ 21). Accordingly,
the April 11, 2022 submission sought compensation due to alleged unforeseen or
unintended circumstances and is therefore not a routine submission made “‘in
accordance with the expected or scheduled progression of contract performance.’”
James M. Ellett Constr. Co., Inc., 93 F.3d 1537, 1542 (Fed. Cir. 1996) (quoting
Reflectone, Inc., v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995)).
11
Was there a clear and unequivocal statement providing adequate notice of the claim?
The government contends the claim never specifically referenced anything
relating to the first allegation in the complaint--the alleged pre-award clarification call
with the contracting officer--and is only a table of expenses and several invoices which
failed to explain their relevance (gov’t mot. at 2-3, 11; gov’t reply at 20-21). “A claim
need not be submitted in any particular form or use any particular wording, but it must
provide a clear and unequivocal statement that gives the contracting officer adequate
notice of the basis and amount of the claim.” Tolliver Grp., Inc., 20 F.4th 771, 776
(Fed. Cir. 2021) (quoting K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000, 1005
(Fed. Cir. 2015)). In addition, “[i]n determining a claim’s scope, we are not limited to
the claim document but can examine the totality of the circumstances.” Dawson-
Alamo1 JV, LLC, ASBCA No. 60590, 19-1 BCA ¶ 37,357 at 181,645 (quoting Sauer,
Inc., ASBCA No. 60366, 16- 1 BCA ¶ 36,565 at 178,101).
When looking at the circumstances in total, the April 11, 2022 claim provided
adequate notice that the appellant was contesting the scope of work due to prior
discussions with the contracting officer. Again, the record shows that during a
February 2022 meeting, the government disputed appellant’s allegations that any of
the assigned contracting officers had discussions that changed the PWS or
deliverables. (R4, tab 21 at 183) The appellant then submitted what it labeled an REA
on March 31, 2022, listing as relevant here a cost of $24,470 for the inspection of all
18 buildings and inspection reports and $38,100 for the cost of additional testing (R4,
tab 26 at 207, 209). The agency issued a COFD denying the REA, contending the
PWS required testing (R4, tab 27). Next, on April 11, 2022, the appellant submitted
the claim at issue here which included invoices for testing and inspection reports (R4,
tab 28). In response, the COFD specifically states twice that there was “no evidence in
the contract file that the contractor posed any questions” related to testing and
inspection that would warrant an increase in costs (R4, tab 29 at 232-33). Therefore,
the government was aware of the basis of the claim, at least as it relates to the
requirement for more than visual inspections.
With respect to the second allegation that the government failed to cooperate
and prevented the appellant from accessing the site, the government argues the claim
says nothing about these issues relating to base access (gov’t mot. at 9; gov’t reply
at 22). The record shows the appellant had raised this issue as far back as
September 2021 (R4, tab 16 at 155), and the issue concerning access to facilities was
apparently discussed again during the teleconference on February 18, 2022 (SOF
¶ 21). However, on March 9, 2022, the contracting officer requested a detailed
response regarding the REA in which this issue was raised and asked for “personnel
not available”; the appellant failed to provide information regarding access to the
facilities (SOF ¶ 22). Further, the March 31, 2022 REA seeking $97,370 for missing
information and the cost of inspections and additional testing failed to set forth any
12
allegations regarding lack of access to the buildings (SOF ¶ 27). Likewise, the
subsequent April 11, 2022 claim seeking $97,370 for testing and inspection and other
costs never discussed this issue (SOF ¶ 30). While there is communication in the
record showing in late April 2022 that the appellant believed there were base access
issues, these occurred after both COFDs. Accordingly, the claim failed to provide
adequate notice of this allegation to the contracting officer, and this allegation is
dismissed.
Is this the same claim as presented to the contracting officer?
The government also moved to dismiss the appeals arguing that the causes in
the complaint are not based on the same operative facts and basis of the claim
submitted to the government for a COFD (gov’t mot. at 8-10; gov’t reply at 12). The
Contract Disputes Act requires that “[e]ach claim by a contractor against the Federal
Government relating to a contract shall be submitted to the contracting officer for a
decision.” 41 U.S.C. § 7103(a)(1). The purpose of presenting a claim to the
contracting officer first is “to create opportunities for informal dispute resolution at the
contracting officer level.” Tolliver Grp., Inc. v. United States, 20 F.4th 771, 776 (Fed.
Cir. 2021) (quoting Raytheon Co. v. United States, 747 F.3d 1341, 1354 (Fed. Cir.
2014)). Because ‘“[t]he scope of [an] appeal is determined by the claim originally
submitted to the contracting officer for a final decision’. . . . we do not possess
jurisdiction over new claims that were not previously presented to the contracting
officer.” Parwan Grp. Co., ASBCA No. 60657, 18-1 BCA ¶ 37,082 at 180,495
(quoting MACH II, ASBCA No. 56630, 10-1 BCA ¶ 34,357 at 169,673).
A claim presented to the Board may be considered the same as the one
presented to the contracting officer if it “derives from the same set of common or
related operative facts” and “seeks the same or similar relief.” Anthony and Gordon
Constr. Co., ASBCA No. 61916, 21-1 BCA ¶ 37,887 at 184,001 (quoting Parwan
Grp. Co., 18-1 BCA ¶ 37,082 at 180,495). In general, we look at the “operative facts”
of the claim submitted to the contracting officer, which are “the essential facts that
give rise to the cause of action.” M.A. DeAtley Constr., Inc. v. United States, 75 Fed.
Cl. 575, 579 (2007) (quoting Kiewit Constr. Co. v. United States, 56 Fed. Cl. 414, 420
(2003)).
In addition, a claim that introduces “additional facts which do not alter the
nature of the original claim” or asserts “a new legal theory of recovery, when based
upon the same operative facts as included in the original claim” does not constitute a
new claim. Trepte Constr. Co. Inc., ASBCA No. 38555, 90-1 BCA ¶ 22,595
at 113,385. The claimant is free to change its legal theory as long as it is not
materially different from what was presented in the claim. Wilwood Eng’g, ASBCA
No. 62773, 22-1 BCA ¶ 38, 116 at 185,144.
13
Selevive’s complaint argues there was promissory estoppel because the
contracting officer verbally modified the solicitation prior to award when it informed
the appellant during a call that the solicitation only sought annual inspection services
which the appellant says would only consist of visual inspection services in
accordance with NFPA (amended compl. ¶ 30-37). “[P]romissory estoppel is
essentially an equitable cause of action whereby one who reasonably relies on
another’s promise can subsequently require that person to make good on his promise.”
Carter v. United States, 98 Fed. Cl. 632, 638 (2011). Although Selevive did not
specifically articulate, or use the words, promissory estoppel in its claim, the Army
understood the claim was based on the appellant’s reliance of alleged oral advice from
a contracting officer. Accordingly, we conclude that Selevive did present this theory
of recovery in its claim to the contracting officer.
The parties were asked to provide briefing on whether the Board has
jurisdiction over the appellant’s allegation of promissory estoppel. The government
contends that the Board does not have jurisdiction.
“An obligation based upon promissory estoppel is a type of contract implied-in-
law. . . and cannot be asserted against the government.” RGW Commc’ns., Inc. d/b/a
Watson Cable Co., ASBCA Nos. 54495, 54557, 05-2 BCA ¶ 32,972, at 163,338 n.13
(citations omitted). A contract implied-in-law is one “in which there is no actual
agreement between the parties, but the law imposes a duty in order to prevent
injustice.” International Data Products Corp. v. U.S., 492 F.3d 1317, 1325 (Fed. Cir.
2007). The Board does not possess jurisdiction over a contract implied-in-law, and
therefore we do not possess jurisdiction over a claim of promissory estoppel. See
Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,085 at 180,534. Here, the appellant
has argued that it relied on information provided by the contracting officer prior to
award, and the appellant “adjusted [its] proposal to only account for visual inspection
services” (amended compl. ¶ 36). As the promissory estoppel allegation concerns an
implied-in-law contract, we dismiss for lack of jurisdiction.
In its brief, the appellant argued that “this situation is unique as it is one where
an express contract was made. . . [and] Selevive’s claim can be more properly
described as one for negligent misrepresentation” (app. br. at 1). The appellant has
sought to amend its complaint (app. br. at 2). Accordingly, as appellant has raised an
additional issue that requires further briefing, the appeal remains before the Board and
that issue will be resolved at a later time.
CONCLUSION
For the foregoing reasons, the government’s motion on jurisdiction is granted in
part and denied in part, and the Board dismisses the allegation regarding promissory
14
estoppel. Accordingly, ¶¶ 31 through 32, and 38 through 43 are stricken from the
amended complaint.
Dated: October 18, 2022
LAURA EYESTER
Administrative Judge
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 63292, 63293, Appeals of
Selevive Group, LC, rendered in conformance with the Board’s Charter.
Dated: October 18, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
15 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482543/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3624
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Nicole Marie Gorsline,
lllllllllllllllllllllDefendant - Appellant.
____________
Appeal from United States District Court
for the Southern District of Iowa - Eastern
____________
Submitted: September 19, 2022
Filed: November 9, 2022
[Unpublished]
____________
Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
Nicole Gorsline challenges the reasonableness of a sentence of twenty-four
months’ imprisonment imposed by the district court* after Gorsline violated the terms
*
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
of her supervised release. We conclude that the district court did not abuse its
discretion, and therefore affirm the judgment.
Gorsline entered the federal criminal justice system when she was convicted
of conspiracy to manufacture methamphetamine and sentenced to 120 months’
imprisonment in 2005. She commenced a term of ninety-six months of supervised
release in 2013, and the court twice revoked her release before the instant
occasion—once for sexual misconduct in a residential reentry center and once after
she was arrested for forgery. The court imposed a four-month prison term for the first
violation. The latter revocation, in 2018, resulted in a prison sentence of a year and
a day, plus thirty-six months of supervised release. The court also modified the
conditions of release in 2017 to require drug treatment after Gorsline tested positive
for the use of methamphetamine.
This appeal arises from a third revocation in November 2021 for twelve
violations of conditions of release: (1) associating with an individual engaged in
criminal activity, (2) frequenting a place where controlled substances are illegally
used, (3) failing to support her dependents and meet other family responsibilities, (4)
failure to comply with substance abuse testing, (5) failure to comply with substance
abuse treatment, (6) obstructing police by providing false information during a traffic
stop, (7) leaving the district without permission, (8) commission of felony forgery,
(9) commission of aggravated misdemeanor theft, (10) associating with another
individual engaged in criminal activity, (11) associating with a person convicted of
a felony, and (12) failing to support her dependents and meet other family
responsibilities on a second occasion.
The violations arose from several incidents. In May 2021, probation officers
found methamphetamine and marijuana in Gorsline’s residence. A methamphetamine
pipe was in plain view on a coffee table; Gorsline’s seven-year-old son was holding
a syringe with suspected methamphetamine. Gorsline’s husband claimed that all of
-2-
the contraband belonged to him, but the district court found that Gorsline knew about
the drugs. During May and June 2021, Gorsline thrice failed to report for drug testing
or drug treatment as required by her conditions. Later in June, police in Illinois
stopped a vehicle in which Gorsline was a passenger. Gorsline obstructed the officers
by providing a false name. Also in June 2021, Gorsline’s two children tested positive
for the presence of amphetamine and methamphetamine in their hair. In September
2021, Gorsline pleaded guilty to theft in Iowa state court. In exchange for the plea,
the State dismissed four counts of forgery that were filed based on Gorsline’s passing
of forged checks in April 2021.
The district court determined an advisory guideline range of twelve to eighteen
months’ imprisonment. But after considering the factors in 18 U.S.C. § 3553(a), the
court elected to vary upward from the range to a term of twenty-four months’
imprisonment, and to forego additional supervised release. The court cited the
number and seriousness of the violations, the length of time over which the violations
occurred, the defendant’s dangerousness to the community, and the need for
deterrence. The court explained that as a result of prior violations, the court had
modified conditions and provided resources and assistance to Gorsline, but that her
recent conduct manifested a “rejection of all of the tools that have been provided to
the defendant.” The court remarked that the positive drug test results for Gorsline’s
children, in particular, “demonstrates an ongoing dangerous situation despite the
resources, despite the opportunities, and despite the efforts of the Court and the
probation office to assist.” We review the reasonableness of a revocation sentence
under the same deferential abuse-of-discretion standard that applies to initial
sentencing proceedings. United States v. Merrival, 521 F.3d 889, 890 (8th Cir.
2008); see Gall v. United States, 552 U.S. 38, 51 (2007).
Gorsline argues that the advisory guideline range was sufficient punishment
under the circumstances, and that the district court’s upward variance was an abuse
of discretion. She maintains that the court failed to make an individualized
-3-
assessment based on the facts presented, and unduly emphasized Gorsline’s “recent
relapse” without giving sufficient weight to the previous two years of successful
performance on supervised release.
We conclude that there was no abuse of discretion. The district court
acknowledged that Gorsline had “done well for two years,” but properly gave
individualized consideration to Gorsline’s history and the series of violations that she
committed over several months during 2021. The recent violations involved both
financial crimes and drug abuse, and Gorsline’s conduct endangered not only the
community at large, but her own children. The court properly considered that
Gorsline continued to commit violations despite assistance provided to her after
previous modifications and revocations of supervised release, and it was reasonable
to conclude that a firm sanction of twenty-four months’ imprisonment was necessary
to satisfy the purposes of sentencing.
The judgment of the district court is affirmed.
______________________________
-4- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482550/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RODNEY R. ELLIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-3156
[November 9, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; William L. Roby, Judge; L.T. Case No. 562018CF002544A.
Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
MAY, GERBER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482551/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RAQUEL FERNANDES,
Appellant,
v.
UROLOGY CENTER OF SOUTH FLORIDA,
Appellee.
No. 4D20-2765
[November 9, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2020-CA-
000994-AXXXX-MB.
Jason S. Remer and Rainier Regueiro of Remer & Georges-Pierre, PLLC,
Miami, for appellant.
Kenneth M. Rehns of Ward Damon PL, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
WARNER, DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482552/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MYRON DICKERSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-2077
[November 9, 2022]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Timothy L. Bailey,
Judge; L.T. Case No. 09-021776-CF-10A.
Myron Dickerson, Graceville, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
KLINGENSMITH, C.J., CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482553/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MATTHEW MULLIGAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-1024
[November 9, 2022]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Martin S. Fein, Judge;
L.T. Case No. 16-7354CF10A and 16-6882 CF10A.
Matthew Mulligan, Milton, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
WARNER, MAY and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482554/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARY ORELLANA,
Appellant,
v.
PUBLIX SUPER MARKETS, INC.,
a Florida corporation,
Appellee.
No. 4D21-3392
[November 9, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Keathan B. Frink, Judge; L.T. Case No. CACE19000957
(12).
R. Timothy Vannatta of Rubenstein Law, P.A., Miami, and Bard D.
Rockenbach and Adam Richardson of Burlington & Rockenbach, P.A.,
West Palm Beach, for appellant.
Edward G. Guedes of Weiss Serota Helfman Cole & Bierman, P.L., Coral
Gables, for appellee.
PER CURIAM.
Affirmed.
WARNER, DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482555/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LAMAR EUGENE RUSSELL-CASSEL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D22-274
[November 9, 2022]
Appeal from the County Court for the Nineteenth Judicial Circuit,
Martin County; Darren Steele, Judge; L.T. Case No. 432021MM000164.
Carey Haughwout, Public Defender, and Narine Austin, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
MAY, GERBER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482567/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
MORGAN STANLEY HOME EQUITY LOAN TRUST 2007-1,
Appellant,
v.
ORLANDO PEREIRA and ADINILCE M. PEREIRA,
Appellees.
No. 4D21-2054
[November 9, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2012-
CA-007244-XXXX-MB.
Brandi Wilson and Joseph G. Paggi III of the Deluca Law Group, PLLC,
Fort Lauderdale, for appellant.
Michael Vater and Peter Ticktin of The Ticktin Law Group, Deerfield
Beach, for appellees.
LEVINE, J.
Deutsche Bank National Trust Company appeals a final award of
attorney’s fees in favor of the appellee homeowners following final
judgment in the homeowners’ favor, raising three issues. We reverse the
portion of the order awarding the homeowners a contingency fee
multiplier. On all other issues, we affirm without further comment.
The following factors are relevant when determining the applicability of
a fee multiplier:
(1) whether the relevant market requires a contingency fee
multiplier to obtain competent counsel; (2) whether the
attorney was able to mitigate the risk of nonpayment in any
way; and (3) whether any of the factors set forth in Rowe are
applicable, especially, the amount involved, the results
obtained, and the type of fee arrangement between the
attorney and his client.
Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990).
The record is devoid of any evidence of the first factor, the relevant
market factor. Awarding a contingency fee multiplier in the absence of
testimony regarding the relevant market is error. See USAA Cas. Ins. Co.
v. Prime Care Chiropractic Ctrs., P.A., 93 So. 3d 345, 347 (Fla. 2d DCA
2012) (“If there is no evidence that the relevant market required a
contingency fee multiplier to obtain competent counsel, then a multiplier
should not be awarded.”); see also State Farm Mut. Auto. Ins. Co. v. Cedolia,
571 So. 2d 1386, 1387 (Fla. 4th DCA 1990) (reversing the award of a fee
multiplier, in part where “[n]othing in the record supports the statement
that the relevant market required a contingency fee multiplier to obtain
counsel”); Sumner Grp., Inc. v. M.C. Distributec, Inc., 949 So. 2d 1205, 1207
(Fla. 4th DCA 2007) (affirming the denial of a requested fee multiplier
where “Sumner Group did not establish that the market for collection
cases requires a contingency risk multiplier to obtain competent counsel”
and “evidence that a multiplier is required in relevant market to attract
competent counsel is mandatory”). “[W]here reversal is the result not of
trial court error, but a party’s failure to meet its evidentiary burden, a
remand to allow for a ‘second bite of the apple’ is generally not permitted.”
Certain Underwriters at Lloyd’s London v. Candelaria, 339 So. 3d 463, 471
n.9 (Fla. 3d DCA 2022).
Thus, we reverse and strike the portion of the order applying a
multiplier to the homeowners’ fee award. See Universal Prop. & Cas. Ins.
Co. v. Deshpande, 314 So. 3d 416, 421 (Fla. 3d DCA 2020) (reversing
application of fee multiplier where the record is devoid of evidence of the
relevant market factor).
Affirmed in part; reversed in part.
CONNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482557/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GENESIS HUDSON,
Appellant,
v.
AURAIN KEVIN EDWARDS,
Appellee.
No. 4D22-764
[November 9, 2022]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Tabitha Blackmon, Judge; L.T. Case No. 21-17498
COWE.
Genesis Hudson, Lauderhill, pro se.
No brief filed on behalf of appellee.
PER CURIAM.
Affirmed.
WARNER, CIKLIN and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482558/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BLAIR LANSTON WRIGHT,
Appellant,
v.
OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LEGAL
AFFAIRS, STATE OF FLORIDA, et al.,
Appellee.
No. 4D22-27
[November 9, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE
08-49280 (18).
Blair Lanston Wright, Fort Lauderdale, pro se.
Ashley Moody, Attorney General, Tallahassee, and Victoria A. Butler,
Director, Office of the Attorney General, Tampa, and Laurie Uustal
Mathews, Scott B. Cosgrove, and Ellen Ross Belfer of León Cosgrove, LLP,
Miami, for appellee.
PER CURIAM.
Affirmed.
WARNER, DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482559/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY BOX a/k/a ANTHONY D. BOX,
Appellant,
v.
WELLS FARGO BANK NA AS TRUSTEE ON BEHALF OF THE
HOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II,
INC., BEAR STEARNS MORTGAGE FUNDING TRUST 2007-AR3
MORTGAGE PASS THROUGH CERTIFICATES SERIES 2007-AR3,
Appellee.
No. 4D21-3278
[November 9, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barry Stone, Senior Judge; L.T. Case No. CACE18-
025145.
James Jean-Francois of James Jean-Francois, P.A., Hollywood, for
appellant.
William L. Grimsley of McGlinchey Stafford, Jacksonville, for appellee.
PER CURIAM.
Affirmed.
MAY, GERBER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482560/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AHMED KABIR,
Appellant,
v.
CITIZENS PROPERTY INSURANCE CORPORATION,
Appellee.
No. 4D22-227
[November 9, 2022]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Terri-Ann Miller, Judge; L.T. Case No. COSO19-005907
(62).
Joseph R. Dawson of The Dawson Law Firm, Fort Lauderdale, for
appellant.
Jessica C. Conner of Dean, Ringers, Morgan & Lawton, Orlando, for
appellee.
PER CURIAM.
Affirmed.
MAY, GERBER and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482547/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSEPH A. BALLARD,
Petitioner,
v.
Civil Action No. 21-cv-02288 (CKK)
FRANK KENDALL, III 1
Respondent.
MEMORANDUM OPINION
On August 31, 2016, Petitioner, Joseph A. Ballard voluntarily retired from the United
States Air Force. See Petition (“Pet.”), ECF No. 1, at 10; 2 See Pet. Exhibits (“Pet. Exs.”), ECF
No. 1-1, at Pet. Ex. A (Aug. 31, 2016 Cert. of Release). In April 2017, Ballard was recalled to
active duty, pursuant to 10 U.S.C. §§ 688(b)(1), 802(a)(4), so that he could be tried by court-
martial. See Pet. at 10; Pet. Ex. B (Apr. 11, 2017 Recall Memorandum Approval); Pet. Ex. C (Apr.
20, 2017 Air Force Special Recall Order). Ballard was charged with committing multiple
violations of the Uniform Code of Military Justice (“UCMJ”) based on events that occurred while
he was stationed in Japan and Korea. See Pet. at 11; see also United States v. Ballard, 79 M.J.
675, 676–78 (A.F. Ct. Crim. App. 2019). Ultimately, in 2017, before a general court-martial,
Ballard pleaded guilty to multiple offenses of the UCMJ, arising from his sexual abuse of three
minors, including his daughter. See Ballard, 79 M.J. at 676–78. Ballard was sentenced to 50 years
imprisonment, which was later reduced to 40 years based on a pre-trial agreement. See id. at 676.
1
The current United States Secretary of the Air Force is automatically substituted as
Respondent in his official capacity for his predecessor pursuant to Fed. R. Civ. P. 25(d).
2
The Court refers to the ECF-generated page numbers in citing to the Petition.
1
Proceeding pro se, Ballard has filed a Petition for a Writ of habeas corpus pursuant to 28
U.S.C. § 2241. See Pet. at 1, 8, 13. Respondent, the Secretary of the Air Force (“Air Force”), has
moved to dismiss the Petition. See generally Motion to Dismiss (“MTD”), ECF No. 10, and
Memorandum in Support (“MTD Mem.”), ECF No. 10-1. 3 On July 11, 2022, Ballard filed a
combined Opposition and Reply to the Air Force’s Response to Show Cause (“Opp’n”), ECF No.
13, to which the Air Force filed a Reply (“Reply”), ECF No. 18.
For the reasons explained below, the Court will grant the Air Force’s Motion to Dismiss,
dismissing this matter for want of subject matter jurisdiction, failure to state a claim, and improper
venue.
I. PROCEDURAL & FACTUAL BACKGROUND
Ballard enlisted in the Air Force in 1995. See Pet. Ex. A. He remained on active duty for
over 21 years. See id. According to Ballard, in January 2016, he was ordered for an examination
by a Medical Evaluation Board (“MEB”), and was found to have an 85% loss in hearing. Pet. at
10. After that preliminary assessment, Ballard did not proceed to the next stage of the Air Force’s
medical fitness assessment––i.e., before the Physical Evaluation Board (“PEB”)––because in the
interim, he applied for voluntary retirement, which was then approved. See id.; see also Pet. Ex.
A. At some unknown time after Ballard’s retirement on August 31, 2016, Ballard claims that the
Department of Veterans Affairs (“VA”) assessed him with a preliminary 35% overall disability
rating due to arthritis in his wrists and an injury to his shoulder. See Pet. at 10. However, Ballard
contends that the VA’s disability assessment, which was still in progress, was interrupted by his
recall to active duty for his trial by court-martial. See id.
3
The Air Force has also filed a separate Response, ECF No. 11, to the Court’s Order to
Show Cause, ECF No. 3, which is identical to the Memorandum in support of its Motion to
Dismiss.
2
More specifically, on April 11, 2017, the Secretary of the Air Force approved Ballard’s
recall by issuance of a Memorandum, see Pet. Ex. B, and on April 20, 2017, the Air Force issued
a Recall Order, see Pet. Ex. C. Ballard takes issue with much of this administrative process,
complaining that he was not served with the Recall Order until his arrest on May 15, 2017, though
he received it in less than 30 days, and it is unclear why he expected to receive it earlier. See Pet.
at 10–11. He also speculates that the Secretary’s Memorandum was forged. See id. at 10, 12. He
goes on to refer to his arrest as a “kidnapping,” alleging that it was made under false pretenses by
the Air Force Office of Special Investigations and Air Force Security Forces, without any
involvement of local law enforcement or the United States Marshals Service. See id. at 11. He
also takes issue that he was unable to return to his home before being transported to Little Rock
Air Force Base. See id. Ballard fails to cite to any authority that would have required either the
involvement of local or federal law enforcement in his arrest, or his return home prior to his
detainment. See id.
While awaiting his court martial at Little Rock Air Force Base, Ballard states that he was
placed in solitary confinement, and that he endured several hardships, including, a restricted diet,
lack of access to legal materials, and that he was limited to phone contact with his attorneys. See
id. He also alleges that, during this time, unspecified individuals threatened potential witnesses,
ostensibly favorable to the defense. See id. The week of his court martial, in late October 2017,
Ballard met in person with his attorneys. See id. He insinuates that he had insufficient legal
representation, that he was coerced into pleading guilty, and that the evidence against him was
somehow insufficient because it was predicated on the “statements of the alleged victims.” See
id. He also states that he did not receive active duty pay until the week of his court martial, but he
was receiving retired pay. See id. at 3, 10; see also Pet. Ex. A.
3
After Ballard pleaded guilty and was sentenced, he was transferred to the U.S. Disciplinary
Barracks, in Fort Leavenworth (“Fort Leavenworth”) Kansas, where he has remained incarcerated
to date. See Pet. at 11. He appealed his conviction to the U.S. Air Force Court of Criminal
Appeals, arguing that the court martial lacked jurisdiction over his criminal proceedings under the
UCMJ because he was retired from military service at the time of the proceeding, and was
receiving retired pay and benefits, not active pay. See id.; Ballard, 79 M.J. at 679–80. On
September 30, 2019, the Air Force Court of Criminal Appeals affirmed the court martial’s
determinations, see Pet. at 11, finding that Ballard “was undoubtedly a retired member of the
regular Air Force entitled to retired pay at the time he was recalled to active duty for purposes of
facing a court-martial. He committed all of the offenses to which he pleaded guilty while on active
duty[,]” and “Congress acted well within the authority entrusted to them by the Constitution's
Make Rules Clause when they permitted court-martial jurisdiction of retired members of a regular
component of the armed forces who are entitled to pay in Article 2(a)(4)[,]” Ballard, 79 M.J. at
681 (collecting substantially similar cases) (fn. omitted). On January 14, 2021, the United States
Court of Appeals for the Armed Forces denied Ballard’s Petition for Grant of Review. See Pet. at
12; United States v. Ballard, 79 M.J. 420, 420 (CAAF 2020).
Here, Ballard seeks relief pursuant to § 2241, as a “collateral challenge of [his] general
court martial proceedings[,]” and he demands his immediate release from confinement at Fort
Leavenworth. See Pet. at 1, 8, 13–14. In his Petition, he raises comparable arguments to the ones
he raised before the U.S. Air Force Court of Criminal Appeals, contending again that, due to his
retired status, the Air Force was without jurisdiction under the UCMJ to recall him and subject
him to court-martial, rendering his conviction and sentence “unconstitutional, void, and without
legal effect.” See id. at 1–8, 13.
4
II. LEGAL STANDARDS
Dismissal Standards
The Air Force moves to dismiss pursuant to Federal Rules 12(b)(3) and (b)(6). See MSJ
Mem. at 1–9. The Court also independently finds cause to dismiss this matter pursuant to Federal
Rule 12(b)(1). See Fed. R. Civ. P. 12(h)(3) (requiring the court to dismiss an action “at any time”
if it determines that the subject matter jurisdiction is wanting).
In assessing whether a petitioner has failed to state a claim, or whether a court if want of
subject matter jurisdiction, a court must “treat a [petition’s] factual allegations as true . . . and must
grant a petitioner ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)); see also Am. Nat'l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011). Where an action is brought by a pro se petitioner, a district
court has an obligation “to consider his filings as a whole before dismissing a [petition],” Schnitzler
v. United States, 761 F.3d 33, 38 (D.C. Cir. 2014) (citing Richardson v. United States, 193 F.3d
545, 548 (D.C. Cir. 1999)), because pro se pleadings are held “to less stringent standards than
formal pleadings drafted by lawyers[,]” see Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
Nevertheless, a court need not accept inferences drawn by a petitioner if those inferences are
unsupported by the facts alleged, nor must the court accept a petitioner’s legal conclusions.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
i. Subject Matter Jurisdiction
The evaluation under Federal Rule 12(h)(3) “is subject to the same standards as a Rule
12(b)(1) motion to dismiss for lack of jurisdiction.” Southern Poverty Law Cntr. v. U.S. Dep’t of
Homeland Sec., No. 18-0760, 2022 WL 1801150, at *3 (D.D.C. Jun. 2, 2022) (citing Murray v.
5
Amalgamated Trans. Union, 206 F. Supp. 3d 202, 207 (D.D.C. 2016)). Under Rule 12(b)(1), a
petitioner bears the burden of establishing jurisdiction by a preponderance of the evidence. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int'l Corp., 217 F. Supp.
2d 59, 63 (D.D.C. 2002), aff’d, 409 F.3d 414 (2005), 546 U.S. 1173 (2006). Federal courts are
courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen.
Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we
begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction
is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-
matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F. 3d 970, 971
(D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982)).
As part of its inquiry into of subject matter jurisdiction, the court may consider documents
outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735
n.4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (holding same); see also Artis
v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) (“A court may consider material outside
of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject-
matter jurisdiction.).” By considering documents outside the pleadings, the court does not convert
the motion into one for summary judgment; “the plain language of Rule 12(b) permits only a
12(b)(6) motion to be converted into a motion for summary judgment” when documents
extraneous to the pleadings are considered by a court. Haase, 835 F.2d at 905.
ii. Failure to State a Claim
6
In order to survive a Rule 12(b)(6) motion to dismiss, a pleading must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First,
the tenet that a court must accept as true all of the allegations contained in a [petition] is
inapplicable to legal conclusions.” Id. at 678. “Second, only a [petition] that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that [respondent] is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a [respondent] has acted unlawfully.” Id. A pleading must offer more than “labels
and conclusions” or a “formulaic recitation of the elements of a cause of action,” id. (quoting
Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id.
In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily
consider only “the facts alleged in the [petition], documents attached as exhibits or incorporated
by reference in the [petition] and matters about which the Court may take judicial notice.”
Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997)).
iii. Venue
Under Fed. R. Civ. P. 12(b)(3), a party may move to dismiss a case for improper venue.
Similarly, the federal venue statute, 28 U.S.C. § 1406(a), requires that a district court dismiss or
transfer a case that is filed “in the wrong division or district.” Together, “Section 1406(a) and Rule
7
12(b)(3) allow dismissal only when venue is ‘wrong’ or ‘improper’ . . . in the forum in which [the
case] was brought.” Atl. Marine Constr. Co. v. U.S. Dist. Court, 571 U.S. 49, 50 (2013). “Whether
venue is ‘wrong’ or ‘improper’ depends exclusively on whether the court in which the case was
brought satisfies the requirements of federal venue laws[.]” Id.
The moving party objecting to venue must provide “sufficient specificity to put the
[petitioner] on notice of the defect” that the case fails to fall within one of the three categories set
out in § 1391(b). 14D Charles Alan Wright, et al., Fed. Practice and Procedure § 3826 at 496 (4th
ed. 2013). Nonetheless, the burden remains on the petitioner to establish that venue is proper since
it is “ ‘the [petitioner’s] obligation to institute the action in a permissible forum . . .’ ” Williams v.
GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011) (quoting Freeman v. Fallin, 254 F. Supp. 2d
52, 56 (D.D.C. 2003)); see also Ananiev v. Wells Fargo Bank, N.A., 968 F. Supp. 2d 123, 129
(D.D.C. 2013) (citing 14D Charles Alan Wright, et al., Fed. Practice and Procedure § 382, at 502,
505–06) (“[W]hen [an] objection has been raised, the burden is on the [petitioner] to establish that
the district he [or she] chose is a proper venue [,] . . . consistent with the [petitioner’s] threshold
obligation to show that the case belongs to the particular district court in which the suit has been
instituted.”)).
In assessing a motion for improper venue, the court “ ‘accepts the [petitioner’s] well-pled
factual allegations regarding venue as true, draws all reasonable inferences from those allegations
in the [petitioner’s] favor and resolves any factual conflicts in the [petitioner’s] favor.’ ” McCain
v. Bank of Am., 13 F. Supp. 3d 45, 51 (D.D.C. 2014), aff'd sub nom., McCain v. Bank of Am. N.A.,
602 Fed. Appx. 836 (D.C. Cir. 2015) (quoting Wilson v. Obama, 770 F. Supp. 2d 188, 190 (D.D.C.
2011) (other citations omitted)); see also Darby v. U.S. Dep't of Energy, 231 F. Supp. 2d 274, 276
(D.D.C. 2002)). “The Court, however, need not accept the [petitioner’s] legal conclusions as true,
8
and may consider material outside the pleadings, including undisputed facts evidenced in the
record[.]” Ananiev, 968 F. Supp. 2d at 129 (quoting Ebron v. Dep't of Army, 766 F. Supp. 2d 54,
57 (D.D.C. 2011); citing Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249,
1253 (D.C. Cir. 2005); Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.
2003); Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (1992); Haley v. Astrue, 667 F. Supp.
2d 138, 140 (D.D.C. 2009)).
Habeas Petitions & Military Prisoners Challenging a Court Martial Proceeding
Generally, a civilian federal prisoner “claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence,” must file a motion under § 2255 in
“the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. §
2255(a); Day v. Trump, 860 F.3d 686, 691 (D.C. Cir. 2017), cert. denied, 138 S.Ct. 1338 (2018).
A “federal prisoner may resort to § 2241 to contest his conviction if but only if the § 2255
remedial mechanism is ‘inadequate or ineffective to test the legality of his detention.’ ” Prost v.
Anderson, 636 F.3d 578, 580 (10th Cir. 2011) (quoting 28 U.S.C. § 2255(e)), cert. denied, 565
U.S. 1111 (2012). Section 2241 allows a court to grant writs of habeas corpus to prisoners “in
custody” only “within their respective jurisdictions.” See 28 U.S.C. §§ 2241(a), (c). A writ of
habeas corpus specifically acts upon the individual physically holding the prisoner in custody,
rather than upon the prisoner himself. Dillon v. Wormuth, No. 21-cv-02124, 2022 WL 971087, at
*2 (D.D.C. Mar. 31, 2022) (citing Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1238 (D.C. Cir.
2004)). For that reason, under the “immediate custodian rule,” “a court may issue the writ only if
it has jurisdiction over the person doing the confining.” Id. (citing Rumsfeld v. Padilla, 542 U.S.
426, 437, 441 (2004) (noting that a § 2241 habeas petitioner seeking to challenge his present
9
physical custody within the United States “should name his warden as respondent and file the
petition in the district of confinement”)).
Military members, unlike civilians, are generally tried by court martial, and court martials
can hear cases “involving a wide range of offenses, including crimes unconnected with military
service.” Ortiz v. United States, 138 S. Ct. 2165, 2170 (2018). “The court martial proceeding
itself is ‘an officer-led tribunal convened to determine guilt or innocence and levy appropriate
punishment.’ ” Dillon, 2022 WL 971087, at *2 (citing Ortiz, 138 S. Ct. at 2170; 10 U.S.C. §§ 816,
818, 856a). “An order from a commanding officer calls the ad hoc tribunal into existence.” Id.
(citing Ackerman v. Novak, 483 F.3d 647, 651 (10th Cir. 2007)). “Once convened, the tribunal
considers the ‘set of charges that the commander has referred to’ it.” Id. (citing Ackerman, 483 at
651). “And the tribunal dissolves after the purpose for which it convened has been resolved.” Id.
(citing Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004)).
Consequently, “[a] petitioner convicted and sentenced by a court martial cannot rely on §
2255 to launch a collateral attack on his conviction or sentence because that tribunal dissolved
once the proceedings concluded.” Id. at 3 (citing McCarthan v. Dir. of Goodwill Indus.-Suncoast,
Inc., 851 F.3d 1076, 1110 (11th Cir. 2017)). Therefore, a military petitioner may rely on § 2241
in bringing a collateral challenge because § 2255 is unavailable, or in other words, is an
“inadequate or ineffective to test the legality of [one’s] detention.” See id. (quoting 28 U.S.C. §
2255(e); citing Brown v. Sec’y of the U.S. Army, 859 F. App’x 901, 901 (11th Cir. 2021) (per
curiam)). Simply put, “a petition for habeas relief under § 2241, rather than a motion under §
2255, represents the proper ‘vehicle for district-court review of a military conviction.’ ” Id.
(quoting Youngberg v. Watson, No. 19-1140, 2021 WL 2815412, at *1 (7th Cir. Mar. 5, 2021);
citing Prost, 636 F.3d at 588; Gilliam v. Bureau of Prisons, 208 F.3d 217, 217 (8th Cir. 2000)
10
(table) (per curiam) (“[A] person convicted in a court-martial proceeding may not file a section
2255 challenge in the court of conviction because, following conviction, that court ceases to
exist.”); Beras v. Johnson, 978 F.3d 246, 260 (5th Cir. 2020) (noting that § 2241 is used for habeas
challenges to military convictions); Clinton v. Goldsmith, 526 U.S. 529, 538 n.11 (1999) (noting
that “once a criminal conviction has been finally reviewed within the military system, and a
servicemember in custody has exhausted other avenues provided under the UCMJ to seek relief
from his conviction . . . he is entitled to bring a habeas corpus petition [under] 28 U.S.C. §
2241(c)”)).
III. DISCUSSION
The Court finds that it is want of subject matter jurisdiction over Ballard’s claims.
First, Ballard predominantly contends that this District may exercise subject matter
jurisdiction pursuant to § 2241, see Pet. at 8, 13, but he is mistaken. Ballard “remains incarcerated
at the Disciplinary Barracks in Fort Leavenworth, Kansas . . . [and] claims that his [conviction]
[and] sentence suffer[] from jurisdictional infirmities, and he attacks these infirmities with a habeas
petition filed under 28 U.S.C. 2241.” Dillon, 2022 WL 971087, at *3; see also Pet. at 1, 8, 13.
Consequently, and as discussed above, the proper respondent in a § 2241 habeas action is a
prisoner’s present custodian. See Padilla, 542 U.S. at 434–35; Blair–Bey v. Quick, 151 F.3d 1036,
1039 (D.C. Cir. 1998). And here, it is without question that Ballard’s present “custodian is the
commandant of” Fort Leavenworth, see Monk v. Secretary of Navy, 793 F.2d 364, 368–69 (D.C.
Cir. 1986), and not, despite Ballard’s contentions, see Pet. at 8, 13; Pet. Exs. at Motion for Venue
¶ 3, the Secretary of the Air Force, see Dillon, 2022 WL 971087, at *3 (citing Chatman-Bey v.
Thornburgh, 864 F.2d 804, 810 (D.C. Cir. 1988) (en banc)). This Court cannot exercise subject
matter jurisdiction over Ballard’s § 2241 Petition, and has no discretion in doing so, “unless the
11
respondent custodian is within its territorial jurisdiction.” Stokes, 374 F.3d at 1239. Ballard’s
custodian is in Fort Leavenworth, Kansas, and such, this case should be filed in the District of
Kansas, and against that custodian. 4 See Dillon, 2022 WL 971087, at *2–3 (dismissing petition
for want of subject matter jurisdiction and venue where the petitioner, also confined at Fort
Leavenworth, Kansas, challenged his conviction by court-martial on several counts of sexual abuse
of minors under the UCMJ, and argued that his conviction was void and unconstitutional because
he was in the process of retiring due to disabilities sustained while enlisted with the Army).
In response, Ballard first reiterates the same arguments presented in his Petition. See Opp’n
at 1–3. He then argues, circularly and self-servingly, that because his recall, arrest, and conviction,
were all unlawful, “it leaves the question open-ended as to the proper Respondent in this case[,]”
and he maintains that, because he allegedly has no valid immediate custodian, the question then
becomes who exercises “legal control” over him; his answer to that question is the Secretary of
the Air Force. See id. at 2–3. In support, he argues that Padilla, 542 U.S. 426, is inapplicable to
him, citing to Ex Parte Endo, 323 U.S. 283 (1944), in an attempt to prove that he does not have an
immediate custodian. See Opp’n at 3. In Endo, the petitioner, seeking her release from a Japanese
4
The Air Force also moves to dismiss for want of personal jurisdiction, pursuant to Federal
Rule 12(b)(2), over Ballard’s custodian at Fort Leavenworth. See MSJ Mem. at 1, 3, 6. It is
ostensibly “evident that th[is] District Court would not have personal jurisdiction over” Ballard’s
custodian, see Chatman-Bey, 864 F.2d at 813, id. at n.7 (noting that “[a]lthough 28 U.S.C. §
1391(e) generally provides for nationwide service on officers of the United States, this basis of
personal jurisdiction is unavailable in habeas) (citing Schlanger v. Seamans, 401 U.S. 487, 490 n.4
(1971)), “[b]ut this need not detain us,” because this Court is dismissing this matter on other
superseding grounds, see id. at 813. Furthermore, regardless of the near certainty, it is unclear that
the Air Force has standing to bring a 12(b)(2) defense on behalf of Ballard’s custodian, who is not
named as a party to this case, and this Court is without the necessary “relevant matter” required to
“assist in determining the [personal] jurisdictional facts[,]” United States v. Philip Morris Inc., 116
F. Supp. 2d 116, 120 n.4 (D.D.C. 2000); Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005), to
determine if personal jurisdiction––general or specific––could be exercised over Ballard’s
custodian, see Intl. Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); D.C. Code §§ 13–422, 423.
12
internment camp in California, filed a petition for habeas corpus in the District of California, but
thereafter, the War Relocation Authority transferred her to another state. See Endo, 323 U.S. at
284–85. The Supreme Court held that the District of California retained jurisdiction over the
matter, see id. at 304–07, standing “for the important but limited proposition that when the
Government moves a habeas petitioner after she properly files a petition naming her immediate
custodian, the District Court retains jurisdiction and may direct the writ to any respondent within
its jurisdiction who has legal authority to effectuate the prisoner’s release[,]” Padilla, 542 U.S. at
440 (citing to and explaining the holding of Endo, 323 U.S. at 304–05, 307). The facts in Endo
are patently incongruent to those presented in this matter. Ballard was never designated to a
facility in this District, nor was he ever transferred from this District to another––or from any
District to another––while his Petition was pending, or otherwise.
Ballard next cites to a progeny of cases, and like Endo, they all notably predate Padilla.
See Opp’n at 3–4, 6–7 (citing several Vietnam-era cases). He cites first, see Opp’n at 3–5, to
Schlanger, 401 U.S. at 488–89, in which the petitioner, a non-incarcerated active serviceman who
was on temporary duty orders in Arizona, challenged his subsequent transfer order to Moody Air
Force Base, in Georgia. The Supreme Court found that, for purposes of jurisdiction and venue,
the petitioner was under the custody and control of his commanding officer at Moody AFB because
the petitioner was neither a resident of Arizona nor amenable to its process, and no one in chain of
command over the petitioner was in territorial jurisdiction of the District of Arizona. See id. at
489–92.
Next, Ballard cites to Strait v. Laird, 406 U.S. 341 (1972), see Opp’n at 3, which involved
an army reservist whose active-duty obligations were deferred while he attended law school, see
Strait, 406 U.S. at 341–42. The petitioner’s military records, and nominal commanding officer,
13
were located at Fort Benjamin Harrison, Indiana, see id., but the officer was not “responsible for
the day to day control of his subordinates,” and was instead in charge of primarily administrative
decisions as to “unattached reservists,” see id. at 345. The petitioner was, at all times, domiciled
in California, and during his deferment, he filed an application for discharge as a conscientious
objector in California. See id. at 342. Following the application’s denial, the petitioner sought a
writ of habeas corpus. See id. The Supreme Court found that, because the petitioner always
resided in California and his application for discharge was processed there, jurisdiction was proper
in the District of California. See id. at 343–46. The Strait Court also found that requiring the case
to proceed in the District of Indiana would improperly “result in a concentration of similar cases
in the district in which the Reserve Officer Components Personnel Center is located[,]” when
indeed, the case should properly proceed elsewhere. See id. at 345.
Quite similarly, in Eisel v. Secretary of the Army, 477 F.2d 1251 (D.C. Cir. 1973), cited by
Ballard, see Opp’n at 3, 7, the petitioners, a commissioned inactive Army reservist and a
commissioned inactive Air Force reservist, sought release from military orders on grounds that
they were conscientious objectors and, when their applications were denied, they filed for writs of
habeas corpus, see Eisel, 477 F.2d at 1253. The D.C. Circuit held that this District was want of
jurisdiction, and that the matter should be heard in the districts where the petitioners were
respectively domiciled. See id. at 1266. The Eisel Court stressed that, despite the location of
military headquarters and high-ranking officials in this District––including the Secretaries of the
Army and the Air Force––this forum was nonetheless improper because the petitioners’
relationship to the military located in the District of Columbia was no different from any other
member of the military, and their significant contacts with the military were elsewhere. See id. at
1255–56. Moreover, allowing such an interpretation of jurisdiction and venue would be contrary
14
to law, creating an influx of unsuitable cases filed by service members in this District. See id. at
1256.
Ballard also cites to Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973).
See Opp’n at 6. Braden stands for the proposition that the immediate physical custodian rule, by
its terms, does not necessarily apply when a habeas petitioner challenges something other than his
conviction and present physical confinement. See Braden, 410 U.S. at 488–89, 494–95; see also
Padilla, 542 U.S. at 438 (explaining that the petitioner in Braden “did not contest the validity of
the Alabama conviction for which he was confined, but instead challenged a detainer lodged
against him in Kentucky state court[,]” and that “nothing in Braden supports departing from the
immediate custodian rule in the traditional context of challenges to present physical confinement.”)
(other citations omitted).
Last, Ballard cites to a series of additional similar cases from outside circuits, see Opp’n at
3, starting with Lantz v. Seamans, 504 F.2d 423 (2d Cir. 1974) (per curiam), in which the Second
Circuit held that the petitioner––who was not incarcerated and challenged the Secretary of the Air
Force’s denial of his application for a discharge as a conscientious objector––should file his
petition for writ of habeas corpus in the District where he was domiciled, see id. at 424. In Arlen
v. Laird, 451 F.2d 684 (2d Cir. 1971), see Opp’n at 3, the Second Circuit arrived at the same
conclusion with analogous facts involving an unattached reservist in New York, see Arlen, 451
F.2d at 685–87. And the First Circuit, in Carney v. Sec'y of Def., 462 F.2d 606 (1st Cir. 1972), see
Opp’n at 3, found that an un-incarcerated service member, also seeking conscientious objector
status, should file his petition for writ of habeas corpus where he was located, and not in the District
where he was ordered to be transferred and inevitably dispatched to Vietnam, see Carney, 462
F.2d at 606–07.
15
As argued by the Air Force, see Reply at 4–7, all of the cases cited by Ballard are inapposite
to his circumstances. Nearly all of the cases involve non-prisoner petitioners, challenging––not
the constitutionality of their incarceration, but instead––the terms of military orders, often transfer
orders to new jurisdictions, from commanding officers in yet different jurisdictions. With more
than one forum at play, and with the petitioner’s location in flux, these cases necessitated an
analysis as to which jurisdiction and venue were most appropriate. However here, Ballard is
incarcerated, and he is challenging his conviction and resulting present confinement, see Pet. at 1,
8, 14, therefore, the immediate custodian rule is traditionally applied without exception because
there is absolutely no ambiguity as to his location, immediate custodian, and the relief sought.
Even if there was some ambiguity, this District would still be improper under the cases cited by
Ballard. Those cases hold, in large part, that if a petitioner lacks a clear present custodian, based
on existing factors––most importantly, convenience––the proceedings should generally be held
where the petitioner is located. See, e.g., Straight, 406 U.S. at 345–46; Braden, 410 U.S. at 500–
01; Eisel, 477 F.2d at 1254–56, 1265; Arlen, 451 F.2d at 687; Lantz, 504 F.2d at 424; Carney, 462
F.2d at 606–07.
Thus, assuming arguendo the cases cited by Ballard were applicable, which the Court does
not concede, those cases would still position this case where Ballard is located––i.e. the District of
Kansas, see Sanchez-Mercedes v. Bureau of Prisons, 453 F. Supp. 3d 404, 417 (D.D.C. 2020),
aff'd, No. 20-5103, 2021 WL 2525679 (D.C. Cir. Jun. 2, 2021) (citing In re Pope, 580 F.2d 620,
622 (D.C. Cir. 1978); Patel v. Phillips, 933 F. Supp. 2d 153, 165 (D.D.C. 2013)), and if not that
District, perhaps alternatively, in the District of Arkansas, see Turner v. Kelly, 411 F. Supp. 1331,
1332 (D. Kan. 1976); see Pet. at 11; Opp’n at 1, 7 (stating that Ballard was domiciled in Arkansas
prior to his arrest). Regardless, Ballard’s case law simply does not support jurisdiction or venue
16
in this District under any interpretation. If anything, the cases serve as warning to petitioners like
Ballard that suit against a military branch or high-ranking military official does not necessitate
venue or jurisdiction in the District of Columbia, 5 and indeed doing so would “exalt fiction over
reality.” See Strait, 406 U.S. at 344–46; see also Eisel, 477 F.2d at 1255–56.
And Ballard’s arguments that his arrest, conviction, and present incarceration are illegal,
therefore somehow negating his custodian at Fort Leavenworth, see Opp’n at 2–3, 5–6, is not only
unsupported by any legal precedent, but is also an improper attempt to prematurely impose and
conflate a merits argument upon a preliminary jurisdiction and venue analysis. In support of this
argument, Ballard relies on criminal statutes, see id. at 1–2 (citing 18 U.S.C. § 1385), id. at 4–5
(citing 18 U.S.C. § 4001(a)), that neither support a private right of action nor afford the type of
relief that he seeks, see United States v. Khatallah, 160 F. Supp. 3d 144, 148–50 (D.D.C. 2016)
(explaining that there is no private right of action under § 1385); see Bailey v. BOP, 133 F. Supp.
3d 50, 54–55 (D.D.C. 2015) (explaining that there is no private right of action under § 4001(a)).
As such, and for all of these reasons, the Court finds that this District lacks subject matter
jurisdiction over Ballard’s Petition.
Second, Ballard asserts that this Court has federal question jurisdiction under the Fifth
Amendment, based on his ancillary facial constitutional challenge to 10 U.S.C. §§ 688(b)(1) and
802(a)(4), see Pet. at 8, 12–13, more specifically, the Air Force’s ability to recall him under those
provisions, see id. at 1–8. “But it is this Court that lacks jurisdiction over [Ballard’s] §2241 petition
5
As noted by the Air Force, again assuming for the sake of argument that the case law cited
by Ballard were somehow applicable here, see Reply at 7 n.5, and also assuming that the Secretary
of the Air Force was somehow hypothetically Ballard’s present custodian, this District would yet
still be improper because the Secretary of the Air Force resides at the Pentagon, located in
Arlington, Virginia. See 28 U.S.C. § 1391(e)(1)(A); see also, e.g., Chin-Young v. Esper, No. 18-
2072, 2019 WL 4247260, at *5 (D.D.C. Sept. 6, 2019) (“The Court takes judicial notice . . . that
the Pentagon is located in Arlington, Virginia[, despite its Washington, D.C. mailing address].”).
17
because he failed to bring his habeas petition in the jurisdiction where the proper respondent
resides. The Court, as it must, declines to pass on the merits of [Ballard’s] [constitutional]
arguments.” Dillon, 2022 WL 971087, at *3 (finding that the court could not exercise subject
matter jurisdiction over the petitioner’s “Fifth Amendment procedural due process challenge[,]”
embedded in his § 2241 petition, “on the basis that he had retired from the military at the time of
the court-martial proceeding and that the military tribunal therefore lacked jurisdiction over him.”).
By and through his constitutional challenge, Ballard seeks an order striking § 802(a)(4)
and enjoining its enforcement, including a finding that the use of the provision violated his Fifth
Amendment rights, thus enabling his immediate release from “illegal confinement” at Fort
Leavenworth. See Pet. at 1, 14. He argues that, as a military retiree, who was entitled to, and
receiving, “retired pay” from the Department of Treasury and Department of Defense Military
Fund, rather than “active duty pay” directly from the Air Force, he should not be subject to recall,
because as an inactive servicemember his criminal case did not arise “in the land or naval forces.”
See Pet. at 1–8, 12–13; see also U.S. CONST. amend. V. Despite his reliance on the Fifth
Amendment, Ballard’s stated relief, if granted, would still result in his “immediate release from
prison . . . fall[ing] squarely ‘within the core of habeas corpus.’ ” See Monk, 793 F.2d at 367
(quoting Preiser v. Rodriguez, 411 U.S. 475, 487, 500 (1975) (holding that when a prisoner is
challenging “the very fact or duration of his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a speedier release from that imprisonment,
his sole federal remedy is a writ of habeas corpus.”)). Consequently, Ballard cannot circumvent
the parameters of § 2241 by raising a fallback constitutional challenge, in an attempt to reach the
same outcome.
18
Furthermore, presupposing that Ballard could even raise this Fifth Amendment challenge,
he has failed to state a claim because it has already been foreclosed by clear District of Columbia
Circuit precedent. A substantially similar challenge was recently reviewed by the D.C. Circuit.
See Larrabee v. Del Toro, 45 F.4th 81 (2022). In Larrabee, the plaintiff, a “de facto” retiree in
the Fleet Marine Reserve, see id. at 84, who pleaded guilty before a court-martial to sexual assault
of civilian, see id. at 83, did not bring a habeas claim, but raised constitutional challenges to 10
U.S.C. § 802(a)(6), including under the Fifth Amendment, see id. at 85–86, and argued that his
status as a reservist and his receipt of retired pay––or “retainer pay”––rather than active pay, should
exclude him from recall under the UCMJ, and that therefore, the court martial was without
jurisdiction to convict him, see id. at 84, 86, 96. The trial court ruled in favor of Larrabee, see
Larrabee v. Braithwaite, 502 F. Supp. 3d 322, 333 (D.D.C. 2020), but on appeal, the D.C. Circuit
reversed in full, citing a long line of Supreme Court precedent “interpreting the Make Rules
Clause, as well as historical evidence from the Founding era, [which] both indicate that Congress
may extend court-martial jurisdiction” over a military retiree, so long as they have “a formal
relationship with the military that includes a duty to obey military orders[,]” see Larrabee, 45 F.4th
at 101. The D.C. Circuit went on to state that,
[i]ndeed, as early as 1881, in United States v. Tyler, the Court found that
while retirees are “not required to perform full service, they are [still] part
of the army, and may be assigned to such duty as the laws and regulations
permit.” 105 U.S. 244, 245, 26 L.Ed. 985 (1881); cf. Thornley v. United
States, 113 U.S. 310, 315, 5 S.Ct. 491, 28 L.Ed. 999 (1885) (“The point
on which [Tyler] turned was ... that an officer of the army, though retired,
was still in the service.”). [T]he Supreme Court and this court's
predecessor have both affirmed court-martial sentences imposed on
military retirees without questioning the constitutionality of the military
proceedings. See United States v. Fletcher, 148 U.S. 84, 13 S.Ct. 552, 37
L.Ed. 378 (1893); United States v. Page, 137 U.S. 673, 11 S.Ct. 219, 34
L.Ed. 828 (1891); Closson v. United States ex rel. Armes, 7 App. D.C. 460
(1896). . . . [T]he Court's consistent and repeated acknowledgement that
military retirees are properly regarded as members of the armed forces,
19
rather than civilians, substantiates our conclusion that Fleet Marine
Reservists [,][like military retirees][,] fall within the “land and naval
Forces” governed by the Make Rules Clause.
Id. at 97. Furthermore, the D.C. Circuit held that “the scope of the Grand Jury Clause's exception
is coextensive with that of the Make Rules Clause. Because Larrabee was[,]” even as a retired
service member, “in ‘the land and naval Forces’ at the time of his court-martialing, his ‘case[ ]
ar[ose] in the land or naval forces[.]’ ” (quoting U.S. CONST. art. I, § 8, cl. 14; id. at amend. V).
This Court notes that, while Larrabee was a reservist, and Ballard is a retiree, this is a
distinction without difference. As explained above, the D.C. Circuit plainly found that a reservist
is, for all intents and purposes, a retiree, see id. at 84, 96–98, and furthermore, under 10 U.S.C. §
688, a reservist is treated in the same manner as a retiree as it relates to a recall, including recall
for purposes of court martial, compare id. at § 688(b)(1), with id. at § 688(b)(3); also compare 10
U.S.C. § 802(a)(4), with id. at § 802(a)(6). Ballard, as a retired service member who is entitled to
and was receiving retired pay, among other benefits, had an undisputable relationship with the Air
Force and a continued duty to obey military orders. See Pet. at 1–5, 7, 10 ; Pet. Ex. A; see
Larrabee, 45 F.4th at 96–97 (“the Supreme Court has recognized military retirees as part of the
nation's armed forces.”) (collecting cases). Therefore, for the reasons stated in Larrabee,
upholding the parallel provision, § 802(a)(6), against an equivalent Fifth Amendment challenge,
Ballard’s challenge must also fail. Any finding otherwise would contradict the law of the D.C.
Circuit.
Ballard references the Larrabee case, though it is clear that he is citing to the trial court’s
decision, rather than that of the D.C. Circuit, see Opp’n at 5–6 (citing Larrabee, 502 F. Supp. 3d
at 322), which is understandable because the Circuit reversed shortly after Ballard filed his
Opposition in this matter, see generally Larrabee, 45 F.4th at 81 (decided on Aug. 2, 2022).
20
Notwithstanding, Ballard cannot escape that he is relying on now outmoded law. He seemingly
attempts to differentiate his circumstances from those in Larrabee by arguing that he and others
like him, who are or may be entitled to VA permanent disability benefits under 38 U.S.C. §§ 1110,
1131, and 3102, should be specifically excluded from recall under 10 U.S.C. § 802(a)(4). See Pet.
at 1–3, 6–8, 10, 13. He seems to argue that disabled or potentially disabled retired service members
should be excluded from recall for court martial––and added to the list of exempt service members
identified in 10 U.S.C. § 688(d)––because it is unlikely that disabled retirees would otherwise be
recalled to active service. See id. This argument is unpersuasive.
Notably, Ballard did not retire based on disability. See id. at 10; Pet. Ex. A; see also 10
U.S.C. Ch. 61. He contends that he was diagnosed with some hearing loss by the Air Force, and
that he was in the process of being assessed for fitness, but during that process, he elected to,
applied for, and received, a voluntary retirement. See Pet. at 10; Pet. Ex. A. Ballard admits that
he only completed the first step of a multi-step process in assessing his then fitness for service.
See Pet. at 10; see also Torres v. Del Toro, No. No. 21-cv-306, 2022 WL 5167371, at *1–2 (D.D.C.
Oct. 5, 2022) (citation omitted) (describing and including a detailed diagram of Disability
Evaluation System process and explaining that “[t]he Disability Evaluation System (‘DES’),
created by the DoD, governs the process for servicemembers facing separation or retirement due
to disability[] . . . [and] [t]hat system involves several steps that together determine whether a
servicemember is unfit to continue serving.”); Havens v. Mabus, 146 F. Supp. 3d 202, 205–06
(D.D.C. 2015) (citing Havens v. Mabus, 759 F.3d 91, 93 (D.C. Cir. 2014) (also explaining the DES
process in which a service member is determined to be fit or unfit for duty)), aff’d, No. 16-5016,
2016 WL 4098840 (D.C. Cir. Jul. 22, 2016). As noted by Ballard, see Pet. at 10, an assessment
by the MEB is the first step, thereafter, an Informal Physical Evaluation Board (“IPEB”), or yet
21
later, a Formal Physical Evaluation Board (“FPEB”) must actually address whether a service
member is unfit to serve due to a disability, see Torres, 2022 WL 5167371, at *2.
Moreover, even if Ballard had retired based on disability it does not necessarily mean that
he could not be recalled. Even if a service member “is finally determined to be unfit for duty and
is retired for physical disability, the member retains military status and may be recalled to active
duty under certain circumstances.” U.S. v. Stevenson, 53 M.J. 257, 260 (Armed Forces App. 2000)
(citing cases), cert. denied, 532 U.S. 919 (2001); see U.S. v. Reynolds, No. 201600415, 2017 WL
1506062, at *4–5 (Navy-Marine Crim. App. Apr. 27, 2017) (explaining in detail that the
Department of Defense Regulations, implementing 10 U.S.C. § 688, specifically authorize
recalling permanently disabled retirees); see also Larrabee, 45 F.4th at 96–97 (finding that “it is
not open to question . . . that [retired] officers are [still] officers in the military service of the United
States.”) (quoting Kahn v. Anderson, 255 U.S. 1, 6–7 (1921) (internal quotation marks omitted)).
Though Ballard states that the VA, at some point after his retirement, initially found him to be
30% disabled, he believes that he will, by the end of the assessment process, be assessed at 100%
disability. See Pet. at 7. Even taking this presumption at face value, it does not prove that Ballard
was 100% disabled at the time of his retirement. See Banerjee v. United States, 77 Fed. Cl. 522,
537 (Fed. Cl. 2007). To that end, the VA and Air Force have different standards for determining
whether a service member is disabled, or unfit for military service, respectively. “The VA operates
under title 38. It compensates former service members based on the likelihood that a disability
will make it difficult for them to seek civilian employment in the future. The Air Force, on the
other hand, operates under title 10. It rates and compensates members based on their ability to
perform their then-present Air Force duties. These two systems thus operate under different
statutory authorities and rate member’s disabilities based under different standards.” Fisher v.
22
United States, 72 Fed. Cl. 88, 94–95 (Fed. Cl. 2006). And the Court is not in a position to speculate
as to Ballard’s level of fitness or unfitness at the time of his retirement.
Third, Ballard contends that this Court has subject matter jurisdiction under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201–02. See Pet. at 8, 13–14. The Declaratory Judgment Act,
however, is not an independent basis for jurisdiction. See Porzecanski v. Azar, 943 F.3d 472, 485
n.11 (D.C. Cir. 2019). Rather, the availability of [declaratory] relief presupposes the existence of
a judicially remediable right.” Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (quoting C&E
Servs., Inc. of Washington v. D.C. Water & Sewer Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) (other
citations and internal quotation marks omitted)). Despite Ballard’s reliance on alternative legal
authority, the arguments based on that authority nonetheless present a “thinly veiled and improper
attempt[] to collaterally attack” a conviction and sentence imposed by the Air Force. See Stone v.
Dep’t of Housing & Urb. Dev., 859 F. Supp. 2d 59, 63, id. n.2, 64 (D.D.C. 2012) (finding that the
court lacked subject matter jurisdiction over the plaintiff’s request for relief under the Declaratory
Judgment Act to vacate his conviction, sentence, and other terms of his plea agreement, because
he could raise those claims through a writ of habeas corpus).
Finally, and as discussed above in part, the Court also finds that venue in in the District of
Columbia is improper. See Chatman-Bey, 864 F.2d at 811–13 (“venue considerations” generally
dictate “adjudication of the habeas claim in the jurisdiction where the habeas petitioner is
confined.”). Ballard maintains that this District is proper “because the Defendant has an official
office in the district of Columbia.” Pet. at 8. But once again, Ballard’s “immediate custodian, not
a supervisory official who exercises legal control, is the proper respondent.” Dillon, 2022 WL
971087, at *3 (quoting Padilla, 542 U.S. at 439) (internal quotation marks omitted)). “Crediting
[Ballard’s] argument would allow a prisoner to name ‘the State or the Attorney General as a
23
respondent to a § 2241 petition,’ which would conflict with ‘statutory language, established
practice, and [] precedent.’ ” Id. (quoting Padilla at 439–40). Indeed, the D.C. Circuit has
forewarned that courts in this jurisdiction must examine venue carefully to guard against the
danger that a litigant might manufacture it in the District of Columbia, merely by virtue of naming
a federal agency or officer as a respondent. See Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C.
Cir. 1993); see also Bartel v. Federal Aviation Admin., 617 F. Supp. 190, 199 (D.D.C. 1985)
(holding that the location of the federal government or an agency's headquarters office does not
necessitate venue in this district).
IV. CONCLUSION
For the foregoing reasons, the Air Force’s Motion to Dismiss is GRANTED and Joseph A.
Ballard’s Petition for Habeas Corpus pursuant to § 2241 is hereby DENIED. Petitioner may refile
for relief pursuant to 28 U.S.C. § 2241 in the proper jurisdiction and venue. An Order will be
entered contemporaneously with this Memorandum Opinion.
________/s/__________________
COLLEEN KOLLAR-KOTELLY
Date: November 9, 2022 United States District Judge
24 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350173/ | People v Singletary (2022 NY Slip Op 07392)
People v Singletary
2022 NY Slip Op 07392
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: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
935 KA 21-01628
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vDAQUAN SINGLETARY, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JED S. HUDSON OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered September 21, 2021. The judgment convicted defendant upon a plea of guilty of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third 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 Onondaga County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals 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 weapon in the third degree (§ 265.02 [3]). We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure of the vehicle in which he was a passenger (defendant's vehicle), and therefore County Court erred in refusing to suppress the physical evidence seized—i.e., a firearm—and defendant's subsequent statements to the police.
Here, the police officers effectively seized defendant's vehicle when they pulled into the gas station parking lot and stopped their patrol vehicle directly behind defendant's parked vehicle in such a manner as to prevent it from driving away (see People v Jennings, 45 NY2d 998, 999 [1978]; People v Jennings, 202 AD3d 1439, 1440 [4th Dept 2022]; People v Williams, 177 AD3d 1312, 1312 [4th Dept 2019]; People v Suttles, 171 AD3d 1454, 1455 [4th Dept 2019]).
Furthermore, we conclude that the police did not have " 'reasonable suspicion that defendant had committed, was committing, or was about to commit a crime' " to justify their seizure of the vehicle (Jennings, 202 AD3d at 1440). Police officer testimony at the suppression hearing established that, at the time the officers made the initial stop, they were responding to the sound of multiple gunshots that had originated at or near the gas station, which was known to be a high crime area. The officers also testified, however, that at no time did they visually observe the source of the gunshots, and they did not see any shots emanating from the area where defendant's vehicle was parked. The officers' attention was drawn to defendant's vehicle because, at the time they arrived on the scene, it had collided with another vehicle as it tried to leave the area. Defendant's vehicle was one of a number of vehicles and pedestrians that the police saw trying to leave the gas station due to the ongoing gunfire. Under those circumstances—i.e., where the police are unable to pinpoint the source of the gunfire, and the individuals in defendant's vehicle are not the only potential suspects present at the scene—the evidence does not provide a reasonable suspicion that the individuals in defendant's vehicle had committed, were committing, or were about to commit a crime (see People v King, 206 AD3d 1576, 1577 [4th Dept 2022]; cf. People v Floyd, 158 AD3d 1146, 1147 [4th Dept 2018], lv denied 31 NY3d 1081 [2018]; People v Jones, 148 AD3d 1666, 1667 [4th Dept 2017], lv [*2]denied 29 NY3d 1082 [2017]). On the record before us, defendant's vehicle was, at most, "simply a vehicle that was in the general vicinity of the area where the shots were heard," which is insufficient to establish reasonable suspicion (People v Fitts, 188 AD3d 1676, 1678 [4th Dept 2020]).
In light of the foregoing, we conclude that the seizure of defendant and his vehicle was unlawful and that, as a result, the physical evidence seized by the police and the statements made by defendant to the police following the unlawful seizure should have been suppressed. Consequently, the judgment must be reversed and, "because our determination results in the suppression of all evidence in support of the crimes charged, the indictment must be dismissed" (Suttles, 171 AD3d at 1455 [internal quotation marks omitted]; see Jennings, 202 AD3d at 1440). In light of our determination, we do not address 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/8482562/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
UNITED AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
LAUDERHILL MEDICAL CENTER LLC,
a/a/o AMBER GRIFFIN,
Appellee.
No. 4D21-3336
[November 9, 2022]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Olga Gonzalez Levine, Judge; L.T. Case No. COWE-20-
022726.
Michael J. Neimand, Miami, for appellant.
John C. Daly, Christina M. Kalin, and Matthew C. Barber of Daly &
Barber, P.A., Plantation, for appellee.
LEVINE, J.
Appellant, United Automobile Insurance Company, appeals the trial
court’s final order granting summary judgment in favor of appellee,
Lauderhill Medical, on Lauderhill’s claim for underpayment of PIP benefits.
Lauderhill provided “vibe therapy” 1 to the insured and billed United
Automobile under CPT code 97039, which is a non-specific code for
therapy. United Automobile reimbursed Lauderhill Medical according to
the lower-paid workers’ compensation fee schedule because CPT code
97039 did not have a set price under the Medicare fee schedule. The trial
court held that United Automobile’s reimbursement was in error because
it is the nature of the service that controls, not the billed CPT code. See
Allstate Fire & Cas. Ins. Co. v. Perez ex rel. Jeffrey Tedder, M.D., P.A., 111
So. 3d 960 (Fla. 2d DCA 2013). Because we have held that the plain
1 The expert witness affidavit defined vibe therapy as providing a massage using
a “power vibe machine.” He described the machine as “a patented sonic vibration
technology whole body vibration which uses vibration for maximum muscle
toning and lymph drainage.”
language of section 627.736(5), Florida Statutes (2019), mandates
payment under the workers’ compensation schedule only if the service is
not reimbursable under Medicare Part B, and vibe therapy is a
reimbursable service under Medicare Part B even though the CPT code has
no set price, we affirm the trial court’s order granting summary judgment
in favor of Lauderhill Medical. See United Auto. Ins. Co. v. Lauderhill Med.
Ctr., LLC, No. 21-2308 (Fla. 4th DCA Nov. 9, 2022).
Affirmed.
CONNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482563/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TRAFORI MAURICE BAILEY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-2198
[November 9, 2022]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Sherri L. Collins, Judge; L.T. Case No.
502018CT022795AMB.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Tallahassee, and Sorraya M. Solages-Jones, Assistant
Attorney General, West Palm Beach, for appellee.
PER CURIAM.
In this Anders 1 appeal, we affirm Appellant’s judgment and sentence,
but remand for the trial court to correct a scrivener’s error in the cost
judgment to reflect that the $15.00 cost imposed for “County Alcohol and
Other Drug Abuse TF” is imposed under section 938.13, Florida Statutes
(2018). Maestas v. State, 76 So. 3d 991, 993 (Fla. 4th DCA 2011).
Appellant need not be present for this ministerial action. Peavey v. State,
302 So. 3d 1079, 1080 (Fla. 4th DCA 2020) (affirming convictions and
sentences in Anders appeal but remanding to correct scrivener’s error).
Affirmed and remanded.
WARNER, MAY and FORST, JJ., concur.
* * *
1 Anders v. California, 386 U.S. 738 (1967).
Not final until disposition of timely filed motion for rehearing.
2 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482540/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Titan One Zero, LLC ) ASBCA Nos. 63106, 63424
)
Under Contract No. N00014-20-C-2043 )
APPEARANCES FOR THE APPELLANT: Matthew R. Keller, Esq.
Kristen L. Loesch, Esq.
Praemia Law, PLLC
Reston, VA
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
Adam A. Orr, Esq.
Catherine M. Kellington, Esq.
Trial Attorneys
Arlington, VA
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL
The parties have resolved their dispute and request that the Board enter
judgment in favor of appellant. The parties have stipulated that the property under the
subject contract was incorrectly added to the contract and that the contract ended on
July 30, 2021.
It is the Board’s decision, pursuant to 41 U.S.C. §§ 7105(e), 7108(b), and the
parties’ stipulation and agreement, that the appeal is sustained. In the nature of a
consent judgment, the Board makes a monetary award to appellant in the amount of
$1,800,000. Appellant has agreed to waive Contract Disputes Act interest.
Dated: October 19, 2022
Michael N. O’Connell
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 63106, 63424 Appeals of
Titan One Zero, LLC, rendered in conformance with the Board’s Charter.
Dated: October 20, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
2 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482541/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Fast Works Company for General Trading Ltd. ) ASBCA No. 63014
)
Under Contract No. W56KGZ-21-P-6000 )
APPEARANCE FOR THE APPELLANT: Mr. Mezgin Saeed Mohsin
CEO
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.
Army Chief Trial Attorney
MAJ Weston E. Borkenhagen, JA
CPT Timothy M. McLister, JA
Trial Attorneys
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: October 19, 2022
JOHN J. THRASHER
Administrative Judge
Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 63014, Appeal of Fast Works
Company for General Trading Ltd., rendered in conformance with the Board’s Charter.
Dated: October 19, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482580/ | J-S23024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIE ALBERTO SANTIAGO-LEON :
:
Appellant : No. 1331 MDA 2021
Appeal from the PCRA Order Entered September 20, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003366-2016
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 09, 2022
Jamie Alberto Santiago-Leon appeals from the order dismissing his Post
Conviction Relief Act (“PCRA”)1 petition as untimely. Santiago-Leon argues his
petition is timely under a theory of equitable tolling because (1) he does not
speak English, (2) his trial counsel abandoned him, and (3) he asserts a claim
of actual innocence. He further argues that his PCRA counsel was ineffective
for failing to present his timeliness arguments to the court, and that the court
disregarded his request to proceed pro se. We affirm.
Santiago-Leon “was charged with one count of Criminal Homicide after
he shot a man named Luis Santiago one time in the face, killing him.” Trial
Court Opinion, 2/14/22, at 1 (footnote omitted). Santiago-Leon pleaded guilty
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546.
J-S23024-22
to one count of Third-Degree Murder. See 18 Pa.C.S.A. § 2502(c). The court
sentenced him to serve a term of 20 to 40 years’ incarceration on September
13, 2017. Santiago-Leon did not file a direct appeal.
Over three years later, in April 2021, Santiago-Leon filed a “Motion to
Withdraw Guilty Plea, Nunc Pro Tunc,” which the court treated as a first PCRA
petition. Among its other requests, the petition stated Santiago-Leon “does
not at this time want counsel appointed unless, it is Court Ordered that said
Counsel would have to follow the directions of my Jailhouse Assistant, Timothy
S. Hikledire, GX-7550, and an interruptor [sic] that this Defendant trusts to
explain to him what is actually being said.” Mot. to Withdraw Guilty Plea, Nunc
Pro Tunc, 4/7/21, at ¶ 12. Nonetheless, the court appointed counsel, who filed
a motion to withdraw. Counsel attached to her motion a copy of the Finley
no-merit letter2 she sent to Santiago-Leon explaining her conclusion that his
petition was untimely.3
The court granted counsel’s motion to withdraw and issued Rule 907
notice of its intent to dismiss the petition without a hearing. See Pa.R.Crim.P.
907. Santiago submitted a pro se response to the Rule 907 notice, asserting
his PCRA counsel had erred in determining his claims lacked merit and filing a
Finley letter, and that in treating his motion as a PCRA petition, the court had
____________________________________________
2 See Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1998) (en banc)
(explaining requirements for counsel seeking to withdraw from representation
in collateral proceedings).
3 Counsel included a copy in English as well as one in Spanish.
-2-
J-S23024-22
prevented him “from asserting actual meritorious issues.” Defendant’s
Response to 907 Notice of Intent, dated 8/9/21, at 1. The court dismissed the
petition.
Santiago-Leon filed a notice of appeal.4 He presents the following issues:
1. Whether the P.C.R.A. Court violated [Santiago-Leon]’s Rights
to Self-[Representation], when it ignored [Santiago-Leon]’s
explicit request for NO appointment of Counsel?
2. Whether Appointed P.C.R.A. Counsel was ineffective and
whether [Santiago-Leon]’s P.C.R.A. was properly reviewed by
P.C.R.A. Counsel?
3. Is [Santiago-Leon] inherently entitled to Equitable Tolling,
caused by Counsel’s Abandonment, negligence which prejudiced
[Santiago-Leon?]
4. Whether the Lancaster Police Officer(s) and/or Detectives
violate[d] . . . [Santiago-Leon]’s Rights against an Illegal Photo
Array, at many times when consisting [of] One Photo[?]
5. Whether the testimony of witnesses was unreliable, since many
statements differed from each other?
6. Has the Commonwealth proven or presented Prima Facie
sufficient to reach the determination of intent, outside the scope
of skunk [sic] throwing[?]
7. Was [Santiago-Leon] extremely prejudiced by “not” having
and/or receiving Case documents presented in [his] native
tongue?
____________________________________________
4 The notice of appeal states the appeal is from the order entered “on 17th day
of Sept. 24, 2021.” Notice of Appeal, 10/15/21, at 1. However, those dates
reflect when the trial court signed the final order dismissing the petition and
when Santiago-Leon signed the notice of appeal. The court filed the order on
the trial court docket on September 20, 2021, and we have amended the
caption accordingly. Santiago-Leon also filed a second notice of appeal. We
dismissed that appeal as duplicative.
-3-
J-S23024-22
8. Was [Santiago-Leon] additionally prejudiced by “not” having
been provided a competent/certified interpreter, present at every
Counsel meeting or every hearing?
9. Whether [Santiago-Leon] was severely prejudiced by Counsel’s
“Waiver of Preliminary Hearing,” and whether Counsel concede[d]
[Santiago-Leon]’s guilt over [Santiago-Leon]’s unambiguous
objection?
10. Whether [Santiago-Leon]’s P.C.R.A. is barred by time or [his]
claim protected under Equitable Tolling; Language Barrier,
Counsel Abandonment?
Santiago-Leon’s Br. at 5-6 (suggested answers omitted).
Santiago-Leon argues that his trial counsel was ineffective. He claims
that trial counsel abandoned him by failing to investigate or prepare a defense.
Santiago-Leon argues the Commonwealth never proved a prima facie case
against him, but “solely presented witnesses and/or affidavits of uncredible
witnesses [who] fabricated distinctive stories” and “simply proved that
[Santiago-Leon] was present at the place [and] time the victim was
murdered[.]” Santiago-Leon’s Br. at 9, 12. Santiago-Leon further argues some
of the Commonwealth’s evidence should have been suppressed, including the
results of a suggestive photo array.
Santiago-Leon next argues that he does not speak English, and his trial
counsel failed to communicate with him in Spanish, which constituted further
abandonment. He states that although trial counsel visited him with a
Spanish-speaker, the person was “not [always] present, and was not
proficient, or clearly understandable in [Santiago-Leon]’s native tongue.” Id.
at 10. He asserts that the “Prison’s visitor’s log will demonstrate [d]efense
[c]ounsel neither arrived [sic] with a Certified Interpreter, and there were very
-4-
J-S23024-22
rare occasions that [c]ounsel visited [him].” Id. at 11. Santiago-Leon alleges
that he only entered a guilty plea because he had “little or no other options,
understanding and realizing Counsel would not properly defend [him].” Id.
Santiago-Leon further claims that his PCRA petition should be deemed
timely under a theory of equitable tolling. He argues equitable tolling should
apply because he was unable to communicate with his trial counsel in Spanish.
He cites Pabon v. Superintendent S.C.I. Mahanoy, 654 F.3d 385 (3d Cir.
2011), in which he claims a petitioner successfully invoked equitable tolling
on the grounds that he did not have access to legal materials translated into
Spanish and was not given the assistance of a translator. Id. at 10. He also
maintains attorney abandonment is a basis for equitable tolling, citing
Christeson v. Roper, 574 U.S. 373 (2015), Maples v. Thomas, 565 U.S.
266 (2012), and Holland v. Florida, 560 U.S. 631 (2010). Id. at 11. Finally,
Santiago-Leon argues his assertion of actual innocence should qualify his
petition as timely. Id. at 11-12 (citing Rivas v. Fischer, 687 F.3d 514, 541
(2d Cir. 2012)).
In connection with the above, Santiago-Leon argues his PCRA counsel
was ineffective for failing to advance his claims that trial counsel was
ineffective and that his petition was timely. He contends he could have proven
his trial counsel had abandoned him, through examination of counsel at an
evidentiary hearing. He further argues that PCRA counsel was ineffective for
failing respect his right to self-representation on his PCRA petition; Santiago-
Leon alleges the court appointed PCRA counsel “even after specific notice that
-5-
J-S23024-22
[he] would be invoking [his] Right to self-representation. All of which was
ignored by the P.C.R.A. Court and P.C.R.A. Counsel.” Id. at 7.
We will affirm the denial of a PCRA petition if “the PCRA court’s order is
supported by the record and free of legal error.” Commonwealth v.
Anderson, 234 A.3d 735, 737 (Pa.Super. 2020) (citation omitted).
We begin with Santiago-Leon’s arguments related to the timeliness of
his petition, as a PCRA court lacks jurisdiction to grant relief that is requested
in an untimely petition. Id. The timeliness of a PCRA petition is controlled by
statute. See 42 Pa.C.S.A. § 9545. A petitioner seeking PCRA relief has one
year from the date the judgment of sentence becomes final in which to petition
the court, unless the petitioner pleads and proves a statutory exception. See
42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the
conclusion of direct review, or when the time to seek direct review has expired.
Id. at § 9545(b)(3).
Santiago-Leon did not file a direct appeal. Therefore, his judgment of
sentence became final thirty days after his September 13, 2017, sentencing,
when the period to file a direct appeal expired. See Pa.R.A.P. 903(a). He
accordingly had until October 13, 2018, to file a PCRA petition. His 2021
petition is therefore untimely, unless he can plead and prove one of three
statutory exceptions applies. Those exceptions are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
-6-
J-S23024-22
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Santiago-Leon does not assert that any of these exceptions applies. He
instead claims his petition was timely under a theory of equitable tolling.
However, the only exceptions to the PCRA’s one-year deadline are the three
statutory exceptions. There is no equitable tolling. Commonwealth v. Fahy,
737 A.2d 214, 222 (Pa. 1999); accord Commonwealth v. Davis, 816 A.2d
1129, 1135 (Pa.Super. 2003). The federal cases Santiago-Leon cites do not
hold to the contrary, as each involves tolling within the context of federal
habeas corpus relief.5 They do not purport to construe the PCRA. As the PCRA
____________________________________________
5 Four of the cases—Pabon, Christeson, Holland, and Rivas—involve the
application of equitable tolling following the petitioner’s failure to meet the
deadline to file a federal habeas petition. In Pabon, the Third Circuit held that
the deadline for filing a federal habeas petition may be tolled under
extraordinary circumstances, such as the prisoner’s inability to understand
English and lack of access to translation services or legal assistance. Pabon,
654 F.3d at 401. In Christeson and Holland, the United States Supreme
Court held that an attorney’s abandonment may constitute extraordinary
circumstances to justify the equitable tolling of the deadline for filing a federal
habeas petition. Christeson, 574 U.S. at 381; Holland, 560 U.S. at 649,
653-54. In Rivas, the Second Circuit held the deadline for filing a federal
habeas petition may be tolled by a claim of actual innocence based on new
evidence. Rivas, 687 F.3d at 543.
In the fifth case—Maples—the Supreme Court held that the federal
district court could entertain a habeas petition, even where the petitioner had
(Footnote Continued Next Page)
-7-
J-S23024-22
court observed, decisions interpreting federal habeas rules are “irrelevant to
[the] construction of the timeliness provisions set forth in the PCRA.” Trial Ct.
Op. at 7 (quoting Commonwealth v. Brown, 143 A.3d 418, 420-21
(Pa.Super. 2016)) (alteration in original).
Santiago-Leon has failed to advance any theory under which the PCRA
court could have found his petition timely. Furthermore, although he argues
the deadline should be subject to equitable tolling on the basis that he could
not communicate with trial counsel in English and was constructively
abandoned by trial counsel, Santiago-Leon does not explain how these factors
caused him to miss the PCRA filing deadline. And, although he asserts he is
innocent, he does not claim to have made any recent discoveries that would
provide a basis for a timeliness exception. We therefore conclude the PCRA
court did not err in dismissing his petition as untimely and for want of
jurisdiction.
Accordingly, we also conclude Santiago-Leon’s PCRA counsel was not
ineffective for moving to withdraw rather than advancing Santiago-Leon’s
meritless timeliness arguments. See Commonwealth v. Ligon, 206 A.3d
515, 519 (Pa.Super. 2019) (stating petitioner alleging ineffective assistance
of counsel must plead and prove the underlying claim has arguable merit).
____________________________________________
failed to file a timely notice of appeal in state court, if the petitioner can
demonstrate his failure to meet the state’s deadline was due to abandonment
by counsel. 565 U.S. at 289. Although this case involves the failure to meet a
deadline imposed by the state, it is nonetheless an application of federal
habeas law.
-8-
J-S23024-22
Finally, we conclude Santiago-Leon waived his claim that he was
deprived of his right to proceed without counsel. He did not list the issue in
his Statement of Matters Complained of on Appeal, and, consequently, the
PCRA court takes no notice of it in its Rule 1925(a) Opinion. Moreover, he
failed to object when the court appointed counsel, thus effectively acquiescing
to the putative error, and did not raise the issue in response to the court’s
Rule 907 notice. He thus waived this claim for review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
-9- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482582/ | J-S23035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MANUEL PAGAN, JR. :
:
Appellant : No. 14 MDA 2022
Appeal from the PCRA Order Entered December 14, 2021
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001286-2017
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.:
Manuel Pagan, Jr., appeals from the order dismissing, without a hearing,
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. Pagan, acting pro se, has also submitted a filing
titled “Motion to Proceed Pro Se”. In that motion, Pagan, inter alia, “requests
that this Court remand [his] case back to the PCRA court and allow him to
further develop [a layered ineffective assistance of counsel] claim pro se (or
with newly appointed counsel).” Motion to Proceed Pro Se, dated 9/22/22, at
7 (finding fault with both his trial and PCRA counsel). Furthermore, Pagan
“requests that [this] Court grant him leave to raise and develop four additional
[ineffective assistance of counsel] claims.” Id. Pagan premises his present
ability to assert a claim that his PCRA counsel was ineffective based on our
____________________________________________
Retired Senior Judge assigned to the Superior Court.
J-S23035-22
Supreme Court’s decision in Commonwealth v. Bradley. See 261 A.3d 381
(Pa. 2021). We vacate the order dismissing Pagan’s petition and remand for
further proceedings.
Pagan’s counsel in the current appeal is the same counsel who
represented him before the PCRA court. Pagan’s twelve-page pro se motion
avers that his PCRA counsel was ineffective because counsel failed “to bring
up [multiple] issues related to trial counsel’s ineffectiveness[.]” Motion to
Proceed Pro Se, dated 9/22/22, at 4. Believing his PCRA counsel’s omissions
to have effectively waived review of meritorious pathways to relief, Pagan
asserts that he “had no way to compel [PCRA counsel] (who had already filed
a Finley [550 A.2d 213 (Pa. Super. 1998) (en banc)] [l]etter and
demonstrated no interest in [his] case) to litigate more issues that [Pagan]
wanted to litigate.” Id. Furthermore, Pagan believes that PCRA counsel
“underdeveloped” the sole claim advanced on his behalf in the present appeal.
Id., at 6. Accordingly, Pagan seeks remand, which “would include the
appointment of new PCRA counsel or, alternatively, [Pagan] would be allowed
to represent himself.” Id., at 4.
Implicit in Pagan’s argument is that this is his first opportunity to raise
a claim that his PCRA counsel was ineffective. Guided by Bradley, the record
does not yield any clear resolution to the varied issues asserted in Pagan’s pro
se motion. As such, a remand is appropriate for further proceedings. See
Bradley, 261 A.3d at 401-02 (allowing a PCRA petitioner to raise claims of
PCRA counsel’s ineffectiveness at the first opportunity to do so, encompassing
-2-
J-S23035-22
even an appeal from a PCRA court determination, and further identifying that
an “appellate court may need to remand to the PCRA court for further
development of the record and for the PCRA court to consider such claims as
an initial matter”).1
Pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the
PCRA court should, on remand, hold a hearing to ascertain whether Pagan is
permitted to proceed pro se or is entitled to the appointment of new counsel.
If continuing without prior counsel is appropriate, the court should then allow
Pagan to more fully develop his contention that his PCRA counsel was
ineffective. After that, the court should make a corresponding ruling on the
issue of ineffectiveness, allowing for the disposal of this claim in the first
instance.
____________________________________________
1 Given that Pagan’s PCRA counsel has filed a brief in this appeal, we
acknowledge the apparent disconnect between the Bradley decision, which
gives PCRA petitioners the ability to assert ineffective assistance of counsel
claims against their PCRA counsel at the first opportunity to do so, and our
Supreme Court’s decision in Commonwealth v. Rogers, 645 A.2d 223 (Pa.
1994), wherein it was made clear that appellants are required to remain with
counsel through an appeal once an appellate brief has been filed. See 645
A.2d at 584.
-3-
J-S23035-22
Order vacated. Motion to proceed pro se denied as moot. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
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https://www.courtlistener.com/api/rest/v3/opinions/8482576/ | J-A15025-21
2022 PA Super 190
ERIC TOPPY IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
PASSAGE BIO, INC.
Appellee No. 24 EDA 2021
Appeal from the Order Entered November 25, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 200400905
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
OPINION BY STABILE, J.: FILED NOVEMBER 9, 2022
In this employment dispute, Appellant, Eric Toppy, filed a five-count
complaint against Appellee, Passage Bio, Inc., alleging that Appellee breached
a settlement agreement that resolved Appellant’s wrongful termination claims
against Appellee. Appellee filed preliminary objections in the nature of
demurrers asserting, inter alia, that the parties never entered a binding
settlement agreement. The trial court sustained Appellee’s preliminary
objections and dismissed the complaint with prejudice. Appellant appeals
from the order of dismissal. We affirm in part and reverse in part. We reverse
the dismissal of Appellant’s claims for breach of the settlement agreement and
violation of the Wage Payment Collection Law (“WPCL”), 43 P.S. §§ 260.1—
260.13. We affirm the dismissal of Appellant’s claims for unjust enrichment,
fraudulent misrepresentation and negligent misrepresentation.
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Appellant’s complaint alleges the following. Appellee is an emerging
growth company engaged in the development of gene therapies for the
treatment of rare central nervous system diseases. In April 2019, based on
his prior employment in the health care industry and his relationships with
rare disease patient organizations, Appellee hired Appellant as Vice President
of Patient Engagement and Market Access. As compensation, Appellee agreed
to pay Appellant an annual salary of $260,000 and a bonus targeted at 25%
of his base salary. Appellee also granted Appellant 448,623 stock options
which were to vest over the ensuing four years.
In October 2019, while Appellant was on a business trip for Appellee in
Europe, Appellant’s supervisor, Ms. Quigley, sent Appellant an e-mail stating
that she intended to terminate his employment. On his return, Appellant met
with Appellee’s general counsel, who told him that his employment was at an
end effective October 25, 2019. Having consulted and retained counsel,
Appellant then asserted1 three employment-related claims for relief against
Appellee: (1) disability discrimination; (2) misrepresentation related to the
forfeiture of the 448,623 stock options he had been granted; and (3)
defamation related to pejorative comments that Quigley made about him to
third parties.
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1 Although the complaint is not clear on this point, it appears from context
that Appellant first asserted these claims in private correspondence to
Appellee as opposed to the filing of a civil action in the court of common pleas.
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Appellant and Appellee agreed to mediate his claims before Patricia
McInerney, a former common pleas judge. Complaint, ¶¶ 2, 4. On January
30, 2020, the mediation took place. Id. at ¶ 25. The parties reached
agreement on two of the three settlement terms that Appellant proposed,
namely payment by Appellee of eight months of Appellant’s annual salary and
a 25% bonus pro-rated for eight months. Id. at ¶ 26. What remained
unresolved was the number of shares of common stock Appellee agreed to
issue to Appellant in exchange for his 448,623 stock options.2 Id. at ¶ 27.
Settlement negotiations continued over the weekend regarding the number of
shares of stock to be issued to Appellant. Id. at ¶ 28. On Monday, February
3, 2020, Appellee agreed to issue Appellant 150,000 shares of common stock.
Id.
On February 3, 2020, Judge McInerney sent an e-mail to Appellant’s
counsel, Harold Goodman that stated as follows:
I just got out of a meeting and Susan has replied accepting your
proposal:
I just heard back from my client. They agree to the
terms [Appellant’s counsel] suggested (150,000
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2 While stock options “take many forms and have assorted conditions,”
Marchlen v. Township of Mt. Lebanon, 746 A.2d 566, 570 n.9 (Pa. 2000),
a stock option is, generally speaking, a benefit given by a company to an
employee to purchase company stock at a discount or fixed price. Stock
shares, on the other hand, represent fractional ownership of an issuing
company. Guarantee Trust and Safe Deposit Co. of Mt. Carmel v. Tye,
196 A. 618, 620 (Pa. Super. 1938) (share of stock in business corporation is
“one of the whole number of equal parts into which the capital stock of a
trading company or corporation is or may be divided”).
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shares, 8 months’ severance, 25% bonus pro-rated
for 8 months, etc.), with two small tweaks:
1. They want to add Lysogene to the list of companies
where [Appellant] cannot work (the others are
Axovant and Prevail Therapeutics).
2. Regarding the letter of reference, Steve Squinto is
willing to state something like Eric’s role changed and
he wanted to leave so that he could continue to work
in patient engagement. He does not want to address
Eric’s performance as he did not supervise Eric and
obviously, Eric’s supervisor was critical of his
performance.
They also wanted me to make clear that this is their final position.
Id., ex. 1. Nothing in this email stated or suggested that the stock would be
subject to a pre-IPO (initial public offering) reverse stock split. The complaint
alleged that the email constituted an agreement because it resolved the final
issue between the parties. Id. at ¶ 28 (“Following discussions over the
weekend, the parties reached agreement on that remaining issue [the number
of shares of common stock]. Specifically, as reflected in the attached Monday,
February 3, 2020 e-mail from Judge McInerney, [Appellee] agreed with
[Appellant’s] counsel to issue him 150,000 shares of its Common Stock”).
On February 12, 2020, counsel for Appellee sent Appellant’s counsel a
draft settlement agreement and release to review. The draft accurately
described the severance and bonus payments that Appellant would receive.
The draft stated that Appellee would issue Appellant 150,000 shares of its
Common Stock, but it added in a vague parenthesis that the number “may be
adjusted by stock splits, stock combinations, recapitalizations or the like.” Id.
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at ¶ 31. Unbeknownst to Appellant at that time, Appellee already intended to
authorize a pre-IPO reverse split3 of its common stock. Id. at ¶ 32. Appellee
was aware of this internal decision at the time of the mediation before Judge
McInerney (January 30, 2020) and on the day it agreed to issue Appellant
150,000 shares of its common stock (February 3, 2020). Id. at ¶ 33. Despite
that, Appellee never said anything to Appellant about the reverse stock split
until more than two weeks later. Id. at ¶ 34. On February 18, 2020, counsel
for Appellee informed Appellant’s counsel that four days earlier (February 14,
2020), Appellee’s Board of Directors had met and authorized a 4.43316
reverse split of its common stock. Id. No notice of that meeting was sent to
Appellant or his counsel. Id. at ¶ 36. In effect, without Appellant’s
agreement, Appellee unilaterally decided to reduce the agreed upon shares of
common stock to be issued to Appellant from 150,000 to 33,836 shares. Id.
at ¶ 34. This occurred after the parties already agreed to issue Appellant
150,000 shares in exchange for his 448,623 stock options, or approximately
33% of the options.
Appellant refused to sign the draft settlement agreement that Appellee
sent to Appellant’s counsel on February 12, 2020. Appellee’s Brief at 5.
In an initial public offering on February 28, 2020, Appellee’s stock
opened on the NASDAQ Exchange at $18.00 per share. Id. at ¶ 41. Based
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3 A reverse stock split is one whereby existing shares of stock are merged to
create a smaller number of proportionally more valuable shares.
Consequently, the price per share increases proportionally.
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on this opening share price, the difference between the value of 150,000
shares of Appellee’s common stock and 33,836 shares is in excess of $2
million. Id. at ¶ 44.
Appellant requested that Appellee comply with the terms of the
agreement that Appellant envisioned: payment of eight months of salary, a
25% bonus pro-rated for eight months, and distribution of 150,000 shares of
common stock to Appellant. Appellee refused. Appellant thereupon
commenced the present action by filing a five-count complaint against
Appellee. Count I alleged that Appellee breached the parties’ settlement
agreement and requested “enforcement in full of the parties February 3, 2020
settlement agreement, including payment of the severance and bonus he is
due, and an injunction compelling Passage Bio to issue him 150,000 shares of
its Common Stock.” Count I, Prayer for Relief. Counts II and III alleged
claims for intentional and negligent misrepresentation against Appellee based
on its failure to disclose its reverse stock split to Appellant. Count IV asserted
a claim for unjust enrichment. Count V alleged a claim for violation of the
WPCL.
Appellee filed preliminary objections to the complaint in the nature of
demurrers. Appellee’s sole basis for demurrer to Appellant’s claim for breach
of the settlement agreement was that Appellant repudiated the settlement
agreement, and thus could not enforce it, because he raised claims for
intentional and negligent misrepresentation in Counts II and III of his
complaint. Appellee “dispute[d] that the parties ever entered into an
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enforceable contract,” but for purposes of its preliminary objections, it
“accept[ed] as true” what it called the “factual allegation[]” that “an
enforceable contract was formed.” Appellee’s Memorandum In Support Of
Preliminary Objections to Complaint, at 7 n.4.4
Appellant filed a timely answer to the preliminary objections, and
Appellee filed a reply brief in support of its preliminary objections.
In a November 24, 2020 memorandum and order, the trial court
sustained Appellee’s preliminary objections and dismissed the complaint in its
entirety. This timely appeal followed. The trial court did not order Appellant
to file a Pa.R.A.P. 1925 statement of matters complained of on appeal.
Appellant raises the following issues in this appeal:
I. In sustaining [Appellee’s] preliminary objection and dismissing
[Appellant’s] claim for breach of the parties’ settlement
agreement, did the trial court commit reversible error by:
A. ignoring [Appellee’s] concessions that the parties did
enter into a binding settlement agreement;
B. disregarding the allegations in the Complaint that the
parties did reach an enforceable settlement agreement;
C. misconstruing the mediator’s e-mail (Exh. 1 to the
Complaint) regarding the substance of the parties’
settlement agreement?
____________________________________________
4 Appellee made a similar statement in its reply brief in support of its
preliminary objections. Reply Brief in Support of Appellee’s Preliminary
Objections to Complaint, at 2 (“Passage Bio . . . is not contesting the assertion
that the parties reached agreement on the material terms of a settlement
agreement”).
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II. In sustaining [Appellee’s] preliminary objection and dismissing
[Appellant’s] claim for unjust enrichment, did the trial court
commit reversible error by:
A. failing to recognize that a claim for unjust enrichment is
a judicially recognized alternative to one for breach of
contract; and
B. disregarding the allegations in the Complaint that
[Appellee] wrongfully secured a general release of claims
from [Appellant] while unjustly retaining all of the payments
and shares of Common Stock it agreed to provide him?
III. In sustaining [Appellee’s] preliminary objections and
dismissing [Appellant’s] claims for intentional and negligent
misrepresentation, did the trial court commit reversible error by
disregarding the allegations in the Complaint that [Appellee]
concealed from [Appellant] its intention to implement a pre-IPO
reverse split of its Common Stock that would dilute the number of
shares it agreed to issue to him from 150,000 to 33,836 shares?
IV. In sustaining [Appellee’s] preliminary objection and dismissing
[Appellant’s] claim for violation of Pennsylvania’s Wage Payment
and Collection Law (“WPCL”), did the trial court commit reversible
error by:
A. relying on its mistaken view that [Appellant] failed to
plead sufficient facts to support his claim for an enforceable
settlement agreement; and
B. concluding that the 150,000 shares of Common Stock
were not “wages” under the WPCL?
Appellant’s Brief at 5-6.
This Court reviews an order sustaining preliminary objections for an
error of law, and in so doing, it must apply the same standard as the trial
court. Sayers v. Heritage Valley Medical Group, Inc., 247 A.3d 1155,
1160-61 (Pa. Super. 2021). Preliminary objections in the nature of a
demurrer
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test the legal sufficiency of the complaint. When considering
preliminary objections, all material facts set forth in the
challenged pleadings are admitted as true, as well as all inferences
reasonably deducible therefrom. Preliminary objections which
seek the dismissal of a cause of action should be sustained only
in cases in which it is clear and free from doubt that the pleader
will be unable to prove facts legally sufficient to establish the right
to relief. If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
preliminary objections.
Id. at 1161.
In his first argument, Appellant contends that the trial court erred by
dismissing the first count in his complaint, a claim that Appellee breached the
settlement agreement by refusing to issue 150,000 shares of its common
stock to Appellant. We agree that the trial court erred by dismissing this
count.
The trial court’s analysis on this issue was as follows:
Judge McInerney’s February 3, 2020 email records an incomplete
agreement, one that was almost there—but not quite. Appellant’s
offer to release [Appellee] included the idea of [Appellant]
receiving 150,000 shares of stock. This was generally acceptable
to [Appellee], but with “two small tweaks.” These tweaks are not
defined in Judge Mclnerney’s email and they turn out to be
substantive when revealed in [Appellee’s] complete draft
Settlement Agreement. These “two small tweaks” go to the heart
of how the respective parties monetarily valued “150,000 shares,”
and they have disagreed.
And also, without an agreed date on which the value of the shares
were to be measured, the essential term defining consideration
was neither final nor enforceable.
In this situation, [Appellee’s] February 12, 2020 draft Settlement
Agreement amounts to a counter-offer which has not—to date—
been accepted.
Trial Court Memorandum Opinion, 11/24/20, at 5.
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We believe two preliminary maters warrant comment before we address
the merits of the trial court’s analysis.
First, all points in the above-recited passage were raised by the trial
court sua sponte; Appellee did not raise any of these points in its preliminary
objections or in its reply brief in support of preliminary objections. This Court
has held that trial courts should not dismiss actions based on grounds not
raised by the parties. MacGregor v. Mediq Inc., 576 A.2d 1123, 1127-28
(Pa. Super. 1990) (trial court erred by sustaining preliminary objections and
dismissing complaint by sua sponte raising immunity issue that defendant did
not raise; “the preliminary objections raised only the questions regarding the
Rule 1020 defect and whether the averred facts supported a claim for
emotional distress and punitive damages. Under the Rules and the case law,
it is clear that matters not raised in preliminary objections may not be
considered by the court sua sponte”). Appellant, however, did not object to
the trial court’s decision to dismiss his claim for reasons not raised by
Appellee. Since Appellant failed to make a MacGregor argument, we do not
address whether to vacate the decision on this basis.
On the other hand, because of the sua sponte nature of the trial court’s
decision, and because the trial court did not order Appellant to file a Pa.R.A.P.
1925 statement, this appeal is the first opportunity for Appellant to object to
the issues raised in the trial court’s memorandum opinion. Appellant availed
himself of this opportunity in his appellate briefs. Consequently, we will review
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the merits of the arguments raised by Appellant in opposition to the trial
court’s decision. See, e.g., DiGregorio v. Keystone Health Plan East, 803
A.2d 361, 366 (Pa. Super. 2003) (plaintiffs’ claim that trial court violated
coordinate jurisdiction rule of law of the case doctrine by granting defendant’s
purported motion to dismiss on morning of trial was not waived by failure to
raise it on the record before the trial court; plaintiffs raised the issue at their
first opportunity in their concise statement of matters complained of on
appeal, and court’s decision, whether judgment on the pleadings or summary
judgment, denied plaintiffs an opportunity to preserve issue in written
response).
Second, Appellant argues that Appellee is bound by its “judicial
admissions” in the trial court and that for purposes of its preliminary
objections, it accepted that the parties entered into a binding settlement
agreement. Appellant’s Brief at 23-24 (citing Appellee’s memoranda in
support of preliminary objections). We disagree. Judicial admissions “apply
only to disputed facts[] and are exclusive of legal theories and conclusions of
law.” Nicholas v. Hoffman, 158 A.3d 675, 696 (Pa. Super. 2017). The
existence of a contract is a conclusion of law, not a disputed fact. Delaware
River Preservation Co., Inc. v. Miskin, 923 A.2d 1177, 1182 (Pa. Super.
2007) (question of whether valid contract has been formed is generally one of
law for court to decide). Thus, Appellee’s acceptance of a contract for
purposes of preliminary objections does not constitute a judicial admission.
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Proceeding to the merits of this appeal, we consider that the substance
of Appellant’s first issue is that the parties entered a valid and enforceable
settlement agreement through Judge McInerney’s February 3, 2020 email and
Appellant’s acceptance of the two “tweaks” therein. The enforceability of
settlement agreements
is determined according to principles of contract law. Because
contract interpretation is a question of law, this Court is not bound
by the trial court’s interpretation. Our standard of review over
questions of law is de novo and to the extent necessary, the scope
of our review is plenary as [the appellate] court may review the
entire record in making its decision.
Mastroni–Mucker v. Allstate Ins. Co., 976 A.2d 510, 517–18 (Pa. Super.
2009).
Like any contract, to be enforceable, a settlement agreement must
possess all the elements of a valid contract: offer, acceptance, and
consideration. Muhammad v. Strassburger, McKenna, Messer, Shilobod
& Gutnick, 587 A.2d 1346, 1349 (Pa. 1991). “[I]t is essential to the
enforceability of a settlement agreement that the minds of the parties should
meet upon all the terms, as well as the subject matter, of the agreement.”
Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999). “An alleged acceptance
of an offer is not unconditional and, therefore, is not an ‘acceptance’ if it
materially alters the terms of the offer.” Yarnall v. Almy, 703 A.2d 535, 539
(Pa. Super. 1997). “As such, a reply which purports to accept an offer, but
instead changes the terms of the offer, is not an acceptance, but, rather, is a
counter-offer, which has the effect of terminating the original offer.” Id.
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“When the evidence is in conflict as to whether the parties intended that a
particular writing should constitute an enforceable contract, it is a question of
fact whether a contract exists.” Yellow Run Coal Co. v. Alma-Elly-Yv
Mines, Ltd., 426 A.2d 1152, 1154 (Pa. Super. 1981).
Of significance, “[i]f the parties have agreed on the essential terms, the
contract is enforceable even though it is an informal memorandum requiring
future approval or negotiations of incidental terms.” Id. at 1155. Indeed,
courts also will enforce informal agreements that are missing “material” terms
so long as the parties agree on the essential terms. Field v. Golden Triangle
Broad, Inc., 305 A.2d 689, 694 (Pa. 1973); Bredt v. Bredt, 326 A.2d 446,
449 (Pa. Super. 1974). In Field, a party who sought to purchase two radio
stations wrote a letter in the form of a preliminary memorandum stating the
parties’ agreement on price and terms for financing. The letter stated that it
was “(s)ubject to agreement on a formal contract,” and it did not specify a
date for settlement or set a deadline for approval by the Federal
Communications Commission. Our Supreme Court held that the letter was an
enforceable contract:
Appellant also urges that “many other” material terms and
conditions that are customarily included in a contract for sale of a
going concern are absent from the . . . letter agreement. However,
the fact that additional provisions would enhance the position of
both parties is not controlling. What is necessary is that the
parties agree to all the essential terms and intend the letter to be
binding upon them. We believe that the letter agreement in
question manifests such agreement and intention.
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Id., 305 A.2d at 694. Subsequently, in Bredt, the parties reached a verbal
agreement in open court in a support action. The court and counsel referred
to the “agreement” between the parties. Id., 326 A.2d at 449. At the
conclusion of the hearing, the husband’s attorney stated that the “agreement
itself will have to be formalized.” Id. The court entered an order finding that
the parties entered into a binding agreement in open court. Citing Field, this
Court affirmed, stating, “The fact that the parties intended to formalize their
agreement at some later date or omitted some material terms and conditions
therefrom is not controlling as long as the parties agreed to all the essential
terms and intended the contract to be binding upon them.” Id.
Mastroni-Mucker provides another useful illustration of a settlement
agreement that constitutes an enforceable contract despite the absence of a
formalized agreement. There, during trial, counsel for the parties stated on
the record that the plaintiffs accepted a $60,000 settlement offer from the
defendants in exchange for a general release of claims. The defendants later
reneged on the settlement, contending that it was conditioned on the parties’
approval of a particular form of release. This Court held that the on-the-
record agreement constituted an enforceable contract because it contained an
offer, acceptance, and consideration and counsel for the defendants never
expressed that the scope of the release was in dispute. Id., 976 A.2d at 523.
Of note, in a case with analogous facts, the New York Court of Appeals
held that plaintiffs, who had entered stock option agreements with a
corporation, had the right to exercise their options without adjustment for the
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corporation’s post-agreement reverse stock split. Reiss v. Fin. Performance
Corp., 764 N.E.2d 958 (N.Y. 2001). The Court of Appeals observed that one
month before the stock option agreements with the plaintiffs, the corporation
had agreed to a stock option agreement with a third person that in fact
required adjustment in the event of a reverse stock split. Id. at 959-60.
Thus, the omission of an adjustment provision from the plaintiffs’ agreements
indicated that the parties did not intend for any adjustment in the event of a
post-agreement reverse stock split. Id. at 961. Although we are not bound
by decisions from other jurisdictions, we regard this ruling as persuasive
authority on the point whether Appellee’s omission to inform Appellant of a
possible reverse stock split at the time settlement was reached should now
affect the number of common shares agreed upon to be issued to Appellant.
Farese v. Robinson, 222 A.3d 1173, 1188 (Pa. Super. 2019) (although
Superior Court is not bound by decisions from courts in other jurisdictions, we
may use such decisions for guidance to degree we find them useful,
persuasive, and not incompatible with Pennsylvania law).
In this case, the complaint alleges that the parties agreed to mediate
claims that Appellant planned to file against Appellee relating to the
termination of his employment. During the mediation, Appellant proposed
three terms for settling the dispute. Appellee agreed to two of these terms
during the mediation. The third term proposed by Appellant was that Appellee
would issue him 150,000 shares of common stock in exchange for the 448,623
stock options given to Appellant during his employment. Following the
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mediation, the mediator sent an email to Appellant’s attorney stating that
Appellee agreed to all three terms: eight months of severance pay, a bonus,
and 150,000 shares of common stock. The email added that Appellee agreed
to these terms with “two small tweaks”: (1) Appellant could not work for
another entity named Lysogene, and (2) Steve Squinto’s letter of reference
would be modified as to the reason why Appellant was terminated. Neither of
these tweaks affected agreement upon the term promising Appellant 150,000
shares of common stock. One week later, Appellee sent a formal settlement
agreement to Appellant that purported to change the nature of stock to be
issued, but Appellant did not sign it. On February 14, 2020, Appellee’s Board
of Directors authorized a reverse stock split that would reduce the 150,000
shares promised to Appellant to 33,836 shares. Appellee planned this reverse
stock split prior to Appellant’s mediation but did not inform Appellant about
the split until February 18, 2020, four days after the Board of Directors
authorized the split and fifteen days after the mediator related to Appellant
on February 3, 2020, Appellee’s agreement to issue 150,000 shares to
Appellant. On February 28, 2020, Appellee’s initial public offering of its stock
took place on the NASDAQ exchange.
The allegations in the complaint, accepted as true, and the inferences
reasonably deducible therefrom, state a cause of action against Appellee for
breaching a settlement agreement that it entered with Appellant on February
3, 2020. Appellant offered to settle the dispute in consideration for three
terms. Appellee accepted two of these terms during the mediation, and the
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mediator’s February 3, 2020 email constituted Appellee’s acceptance of the
third term. Thus, the averments of the complaint support that the parties
reached a meeting of the minds on all essential terms. The two additional
terms in the email that Appellant would not work at Lysogene and Steve
Squinto would modify his letter of reference for Appellant, were immaterial,
since the email characterized them as mere “tweaks.” Therefore, those terms
did not constitute a counteroffer that nullified Appellant’s offer. Second, it is
apparent, and we can infer from the complaint, that Appellant immediately
accepted these minor “tweaks,” given the complaint’s repeated references to
the “February 3, 2020 agreement,” Complaint at ¶¶ 34, 35, the “agreement
that [Appellant] and [Appellee] reached on February 3, 2020,” id. at ¶ 49,
and “February 3, 2020[,] when the case settled,” id. at ¶ 33.5
Under the precedents discussed above, see Field, Bredt, Mastroni-
Mucker, the fact that the agreement was informal instead of a signed formal
release does not render it unenforceable, because the essential terms of the
agreement were spelled out in the February 3, 2020 email. In particular, the
____________________________________________
5 In arriving at this inference, we do not take into account Appellant’s response
to Appellee’s preliminary objections in the trial court, in which Appellant
asserted that he accepted the tweaks. Appellant’s Memorandum Of Law In
Opposition To Appellee’s Preliminary Objections, at 13 n.1. Nor do we take
into account Appellant’s assertion in this Court that states that he approved
the tweaks on February 4, 2020, one day after the mediator’s email.
Appellant’s Brief at 13 n.1. We cannot take these statements into
consideration because they do not appear in Appellant’s complaint. Sayers,
247 A.3d at 1161 (review of demurrer in preliminary objections limited to
challenged pleading). Reasonable inferences, however, may be
acknowledged.
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term that Appellant would receive 150,000 shares of Appellee’s common stock
was essential in order to provide an adequate exchange for the 448,623 stock
options and add sufficient value to Appellant’s settlement package. The
complaint also satisfactorily alleges that Appellee breached the agreement by
reducing the number of shares by 75 percent by a reverse stock split, an act
that Appellee planned prior to settlement negotiations.
The trial court concluded that the complaint failed to state a claim
because the parties did not agree on the price of the common stock shares or
their date of valuation. In this regard, the trial court misconstrues the
agreement reached between the parties as pled in the complaint. The parties
agreed to a quantity of stock to be issued in place of the stock options, not to
a value that would be paid in stock. The complaint buttresses why the parties
negotiated a quantity of stock as opposed to a value to be paid in stock. The
complaint alleges that Appellee’s initial public offering of its common stock
took place several weeks after the parties reached their settlement
agreement. The inference arises that the parties did not negotiate a price
because they intended the market price of the shares to determine their value.
For the same reason, it was not necessary for the parties to define a date of
valuation for the shares.
We therefore must disagree with the trial court’s conclusion that the
parties did not reach an agreement because the mediator’s email did not
define the “two small tweaks” remaining for negotiation and the parties failed
to resolve them. The email explicitly identified the two “tweaks” as (1)
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Appellant would not work for Lysogene and (2) a revision to the scope of
Squinto’s letter of reference. Further, as discussed above, we infer from the
allegations in the complaint that Appellant accepted the tweaks. In addition,
we disagree with the trial court’s claim that these tweaks “go to the heart of
how the respective parties monetarily valued ‘150,000 shares’ [of Appellee’s
common stock].” Trial Ct. Op. at 5. These subjects appear to concern where
Appellant will work in the future and the content of the reference that Squinto
will send to prospective employers, subjects entirely unrelated to the valuation
of the shares. The trial court simply was mistaken as to the importance these
tweaks had to the settlement agreement.
Appellee argued in the trial court, and continues to argue here, that
Appellant cannot pursue a claim for breach of the settlement agreement
because he rescinded this claim by asserting counts for intentional and
negligent misrepresentation in the complaint. The trial court did not address
this issue in its opinion and order dismissing Appellant’s action.
We disagree with Appellee’s argument for several reasons. First, the
law is clear that parties may plead and pursue alternative causes of action but
are limited to a recovery of damages under a single theory. Our Supreme
Court recently stated:
[O]ur Rules of Civil Procedure expressly allow the pleading of
alternative causes of action, see Pa.R.C.P. 1020(c), and further
permit liberal amendment of pleadings in order to secure a proper
determination of the merits . . . Accordingly, a party may generally
simultaneously plead and attempt to prove alternative causes of
action seeking damages through inconsistent remedies supported
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by the same factual scenario . . . . However, the substantive
application of the election of remedies doctrine operates to bar
windfall judgments or otherwise duplicative recoveries resulting
from a single injury; although such inconsistent remedies may be
pleaded and pursued in litigation, damages calculated pursuant to
only one theory may be recovered.
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 217 A.3d
1227, 1239 (Pa. 2019). Therefore, Appellant has the right to plead and pursue
claims of misrepresentation as well as a claim for breach of the settlement
agreement. He cannot recover damages for the same injury, however, under
more than one theory.
Appellee relies on Smith v. Brink, 561 A.2d 1253 (Pa. Super. 1989),
and Devore v. City of Philadelphia, 2005 WL 352698 (E.D.Pa. 2005), for
the proposition that Appellant rescinded the settlement agreement by alleging
claims of misrepresentation in his complaint. Smith is not controlling. There,
the plaintiff sued two police officers in federal court under 42 U.S.C. § 1983
for an alleged illegal arrest. The parties entered a settlement, but the
defendants reneged on the agreement. Instead of seeking to enforce the
settlement, the plaintiff proceeded to litigate their Section 1983 claims, which
resulted in a defense verdict. After losing the verdict, the plaintiff filed a
separate action in the Court of Common Pleas of Dauphin County seeking to
enforce the settlement. The Dauphin County court dismissed this action, and
we affirmed, reasoning:
[The plaintiff] fully litigated his federal tort suit to a final verdict
in favor of the appellees. Therefore, the present suit must fail for
want of consideration since the settlement was based in part upon
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the existence of [the plaintiff’s] federal action. Moreover, [his]
decision to forego litigation on the breach of contract action until
after the final resolution of [his] tort claim acted, in effect, as a
repudiation of the alleged settlement agreement.
Id., 561 A.2d at 1256. We also stated that
when a settlement contract is breached, the plaintiff has two
coexistent but inconsistent remedies available: he may treat the
compromise agreement as rescinded and sue on the original tort,
or he may sue on the contract. The plaintiff may not, however,
prosecute one of these remedies to judgement and then sue on
the other.
Id. (citing Burrus v. American Casualty, 518 F.2d 1267, 1269 (7th Cir.
1975)).
Smith does not support Appellee’s argument that Appellant rescinded
the settlement agreement by merely alleging tort claims in the complaint.
Smith held that the plaintiff therein could not sue for breach of the settlement
agreement because he tried to take two bites at the apple—he first
prosecuted his tort claims to verdict and then, displeased with the verdict,
sued for breach of the settlement agreement. The present case is different.
Appellant did not prosecute his original claims to judgment before seeking to
enforce his settlement agreement. Indeed, it does not appear that he has
ever filed a lawsuit alleging his original claims prior to the instant action. All
claims in Appellant’s present action relate to the settlement agreement. Count
I seeks to enforce the settlement agreement; Count II, a claim of unjust
enrichment, seeks damages for benefits allegedly conferred upon Appellee
through the settlement agreement; Counts III and IV demand damages for
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alleged misrepresentations during and after settlement negotiations; Count V,
a claim under the WPCL, seeks damages for breach of the settlement
agreement. No claim in the complaint relates to Appellant’s original claims of
discrimination, wrongful forfeiture of stock options or defamation. Nor do any
claims in the complaint rescind the settlement agreement. This case is
Appellant’s first bite at the apple, not his second.
Devore also is inapposite. There, following a verdict in favor of the
plaintiff in an employment dispute, the parties settled the plaintiff’s underlying
claims while post-verdict motions were pending. The defendant then failed to
comply with the settlement. In response, the trial judge offered the plaintiff
one of two options: (1) file a separate action to enforce the settlement, or (2)
vacate the settlement and reinstate the pre-settlement verdict. The plaintiff
chose to reinstate the verdict but then filed a separate action to enforce the
settlement. Similar to Smith, the court precluded the separate action on the
ground that the plaintiff could not take two bites at the apple; he could not
both retain his verdict and enforce his settlement. Unlike the plaintiff in
Devore, Appellant does not seek recovery on both the settlement agreement
and his original claims. Appellant merely seeks remedies relating to the
settlement agreement.
We conclude today only that the allegations of the complaint, accepted
as true for the purpose of evaluating Appellee’s preliminary objections, set
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forth a valid action for breach of contract.6 Therefore, the trial court erred in
sustaining Appellee’s preliminary objection to Count I of the complaint, and
we remand for further proceedings on this count.
In his second issue, Appellant contends that the trial court erred by
dismissing his claim of unjust enrichment in Count IV of the complaint. We
affirm the dismissal of this count.
A claim for unjust enrichment arises from a quasi-contract. Gutteridge
v. J3 Energy Grp., Inc., 165 A.3d 908, 916 (Pa. Super. 2017). “A quasi-
contract imposes a duty, not as a result of any agreement, whether express
or implied, but in spite of the absence of an agreement, when one party
receives unjust enrichment at the expense of another.” Id. “The elements of
unjust enrichment are benefits conferred on defendant by plaintiff,
appreciation of such benefits by defendant, and acceptance and retention of
such benefits under such circumstances that it would be inequitable for
defendant to retain the benefit without payment of value.” Id. “Critically, the
doctrine of unjust enrichment is inapplicable when the relationship between
parties is founded upon a written agreement or express contract.” Wilson v.
Parker, 227 A.3d 343, 353 (Pa. Super. 2020).
____________________________________________
6 Our decision today is limited to reviewing the trial court’s disposition of
preliminary objections, does not foreclose the parties from developing all
factual issues in the parties’ dealings during later stages of this case, including
but not limited to whether they arrived at an agreement, how they arrived at
the agreement, the terms of the agreement and whether any ambiguity exists
in the agreement.
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In Khawaja v. RE/MAX Central, 151 A.3d 626 (Pa. Super. 2016), the
plaintiff, Khawaja, filed an action alleging breach of a written contract and
unjust enrichment. The defendant filed preliminary objections arguing that
the plaintiff failed to state a cause of action. The trial court sustained the
defendant’s preliminary objections and dismissed the complaint in its entirety.
This Court reversed the trial court’s decision to dismiss the breach of contract
claim and remanded for further proceedings on this claim. We then affirmed
the dismissal of the unjust enrichment claim, reasoning:
A claim sounding in breach of contract may be pleaded
alternatively with a claim of unjust enrichment if the claims are
raised in separate counts of a complaint. Lugo v. Farmers Pride,
Inc., 967 A.2d 963, 970 (Pa. Super. 2009). However, the fact
remains that “[a] cause of action for unjust enrichment arises only
when a transaction is not subject to a written or express contract,”
Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co.,
933 A.2d 664, 669 (Pa. Super. 2007). Khawaja argues that the
trial court’s rejection of her claim based on the Agreement meant
that her unjust enrichment claim should have been permitted to
proceed . . . But because we have reversed the dismissal of
Khawaja’s contract claim, this argument no longer has any force.
Khawaja’s complaint alleged unjust enrichment in her second
count, which incorporated by reference the facts pled in Count I,
her breach of contract count . . . Her unjust enrichment count thus
averred the existence and terms of the signed Agreement.
Because a claim for unjust enrichment cannot stand when there
is an express contract and because Khawaja’s allegations in this
regard are based on the terms of such a contract, we affirm the
trial court’s dismissal of Khawaja’s unjust enrichment claim.
Id., 151 A.3d at 633-34.
The same reasoning applies here. We have vacated the dismissal of
Appellant’s claim for breach of the settlement agreement in Count I, a claim
of an express contract. Appellant’s claim for unjust enrichment in Count IV
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incorporates by reference the factual allegations pled in Count I. Complaint,
at ¶ 65. Thus, Appellant’s unjust enrichment claim avers the existence and
terms of the settlement agreement. Because an unjust enrichment claim
cannot stand when there is an express contract, and because Appellant’s
allegations of unjust enrichment are based on the terms of such a contract,
we affirm the dismissal of his unjust enrichment claim.
In his third issue, Appellant maintains that the trial court erred by
dismissing his claims for intentional and negligent misrepresentations. We
disagree.
In a non-disclosure case, the tort of intentional misrepresentation
requires proof of: (1) concealment; (2) which is material; (3) with the intent
of misleading another into reliance upon the material omission; (4) justifiable
reliance on the material omission; and (5) resulting injury caused by the
reliance. Bortz v. Noon, 729 A.2d 555, 560-61 (Pa. 1999). Negligent
misrepresentation requires proof of: (1) a misrepresentation of a material
fact; (2) made under circumstances in which the misrepresenter ought to have
known its falsity; (3) with an intent to induce another to act on it; and (4)
which results in injury to a party acting in justifiable reliance on the
misrepresentation. Id. at 561.
In the trial court, Appellee argued in its preliminary objections that the
complaint failed to allege that Appellant relied to his detriment upon any
misrepresentation. The trial court agreed, reasoning that “[Appellant] never
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released [Appellee] and therefore cannot show he relied on a
misrepresentation to do anything detrimental to his interests.” Trial Ct. Op.
at 6. We too agree with Appellee. The complaint does not allege that
Appellant took any action to his detriment as a result of Appellee’s
concealment of its intent to perform a reverse stock split. The complaint
alleges that when Appellant entered into a settlement agreement with
Appellee on February 3, 2020, Appellee allegedly harbored the intent to
perform a reverse stock split. On February 14, 2020, Appellee performed the
reverse stock split, lowering the number of Appellant’s shares from 150,000
(the number of shares in the settlement agreement) to 33,836 shares. On
February 28, 2020, the initial public offering of Appellee’s stock took place.
Appellant’s complaint seeks to enforce the promise in the settlement
agreement to provide him with 150,000 shares. These allegations do not
demonstrate that Appellant took any action to his own detriment. Appellant
did not act to his own detriment by entering the alleged February 3, 2020
settlement agreement. To the contrary, the agreement is beneficial to him
because it gives him 150,000 shares. Indeed, Appellant regards this
agreement as beneficial because he is attempting to enforce it in this action.
Nor did Appellant act to his own detriment in response to the release that
Appellee sent on February 12, 2020, since Appellant never signed the release.
Lastly, Appellant did not act to his own detriment after Appellee performed
the reverse stock split and its initial public offering. The only act that Appellant
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took in response was to prosecute this lawsuit, an act that in no way
constitutes detrimental reliance on any conduct by Appellee.
For these reasons, we affirm the dismissal of the counts in Appellant’s
complaint for intentional or negligent misrepresentation.
In his final issue, Appellant contends that the trial court erred in
dismissing his claim for relief under the WPCL in Count V of the complaint.
According to the complaint, Appellee promised to pay 448,623 stock options
to Appellant in the parties’ original April 2019 agreement. Subsequently, in
the February 3, 2020 agreement, Appellee promised to issue 150,000 shares
of stock to Appellant in consideration of his stock options. The complaint
alleges that Appellee breached the WPCL by failing to pay the stock shares
promised in the February 3, 2020 agreement. Complaint, ¶¶ 71-75. We hold
that Appellant states a valid claim under the WPCL for Appellee’s refusal to
pay the stock shares.
The legislature enacted the WPCL
to provide a vehicle for employees to enforce payment of their
wages and compensation held by their employers. The underlying
purpose of the WPCL is to remove some of the obstacles
employees face in litigation by providing them with a statutory
remedy when an employer breaches its contractual obligation to
pay wages. The WPCL does not create an employee’s substantive
right to compensation; rather, it only establishes an employee’s
right to enforce payment of wages and compensation to which an
employee is otherwise entitled by the terms of an agreement.
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Hartman, 766 A.2d at 352. “[T]he Pennsylvania rules of statutory
construction require the civil provisions of the WPCL to be liberally construed.”
Id. at 353 (citing 1 Pa.C.S.A. § 1928(c)).
The WPCL provides a right of action to “any employe” to whom “any
type of wages is payable.” 43 P.S. § 260.9a(a). There are two distinct
categories of “wages” under the WPCL, “earnings” and “fringe benefits or wage
supplements.” 43 P.S. § 260.2a.
The WPCL’s definition section, 43 P.S. § 260.2a, defines “wages” and
“fringe benefits or wage supplements” as follows:
Wages. Includes all earnings of an employe, regardless of
whether determined on time, task, piece, commission or other
method of calculation. The term ‘wages’ also includes fringe
benefits or wage supplements whether payable by the employer
from his funds or from amounts withheld from the employes’ pay
by the employer.
Fringe benefits or wage supplements. Includes all monetary
employer payments to provide benefits under any employe benefit
plan, as defined in section 3(3) of the Employee Retirement
Income Security Act of 1974, 29 U.S.C. § 1001 et seq.; as well as
separation, vacation, holiday, or guaranteed pay; reimbursement
for expenses; union dues withheld from the employes’ pay by the
employer; and any other amount to be paid pursuant to an
agreement to the employe, a third party or fund for the benefit
of employes.
43 P.S. § 260.2a (emphasis added). Under these definitions, “any other
amount to be paid pursuant to an agreement with an employe” constitutes
fringe benefits, which in turn constitute wages under the WPCL. See also
Shaer v. Orthopaedic Surgeons of Cent. Pennsylvania, Ltd., 938 A.2d
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457, 465 (Pa. Super. 2007) (“severance pay and other separation related
contractual arrangements are indeed covered by the WPCL”).
With this statutory framework in place, we turn to the allegations in
Count V of the complaint. Construed in the light most favorable to Appellant,
the complaint states a valid cause of action under the WPCL for two reasons.
First, the stock options in the parties’ original agreement are considered
“fringe benefits” under the WPCL. 43 P.S. § 260.2a; Scully v. US WATS,
Inc., 238 F.3d 497 (3d Cir. 2001).7 In Scully, the plaintiff entered into a
two-year agreement to serve as the defendant’s president and CEO. As an
inducement for the plaintiff to remain the full two years, the defendant granted
him an option to purchase 850,000 shares of restricted stock that would vest
over a two-year period. Before the two-year period expired, the defendant
terminated the plaintiff without just cause. Subsequent to termination, the
plaintiff attempted to exercise his option to purchase 600,000 shares that had
vested by that date, but the defendant refused to honor the option. The
plaintiff contended that the defendant violated the WPCL by refusing to honor
the option. The district court ruled in favor of the defendant, but the Third
Circuit reversed.
____________________________________________
7Although not binding on us, we may cite federal authority for its persuasive
value. Bochetto v. Piper Aircraft Co., 94 A.3d 1044, 1050 (Pa. Super.
2014).
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The Third Circuit held that the stock option extended to the plaintiff “falls
within the [WPCL’s] definition of fringe benefits or wage supplements because
it represents an ‘amount to be paid pursuant to an agreement to the
employee.’” Id., 238 F.3d at 517. The court continued:
[A] stock option may qualify as earned compensation under the
WPCL if the employer specifically agreed to deliver the option as
employment compensation . . . [This case] presents exactly this
situation. Stock options provide an incentive to an employee to
work to increase the stock’s value and thereby benefit the
company . . . The company benefits because the stock option
lowers the amount of up-front compensation costs that must be
paid directly to the employee, but the employee bears a
considerable risk since his compensation will not increase unless
the stock value increases. Thus, stock options are often termed
“contingent compensation.” . . .
[The parties] entered into this precise arrangement. As the
District Court noted, “[t]he entire thrust of the overall
arrangement between plaintiff and the defendants was that
plaintiff’s efforts in improving the fortunes of the company would
be rewarded on the basis of the company’s improved condition as
of a year after the exercise of the option.” Scully v. US WATS,
Inc., No. CIV. A. 97–4051, 1999 WL 592695, at *1 (E.D.Pa. June
10, 1999).
[I]t is quite apparent that plaintiff’s whole purpose in
entering into these arrangements was the expectation
that, as a result of his efforts, the company would
experience a big improvement in its fortunes, and
plaintiff would share in that prosperity. Defendants
wrongfully deprived plaintiff of that opportunity[] and
should not be permitted to insist that plaintiff’s chance
for future profit ended as of January 23, 1997 [the
date he exercised his option]. . . .
Scully, 1999 WL 553474, at *5.
Under these circumstances, we think it clear that, once [the
plaintiff] entered into the two-year oral employment contract, he
needed to do no more to bind [the defendant] to the stock option.
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[The plaintiff’s] stock option was thus “earned within the meaning
of the WPCL because [he] was not required to render any further
services before they vested and became exercisable.”
Id. at 517-18. We find this analysis persuasive and similarly conclude that
the stock options provided to Appellant in the original April 2019 agreement
constitute fringe benefits covered under the WPCL.
Second, accepting as true the averment that the parties entered a
settlement agreement on February 3, 2020, the stock shares promised under
this agreement constitute fringe benefits, and therefore wages, under the
WPCL. Under Scully, Appellant’s right to stock options, as a component of
the parties’ original agreement, is a fringe benefit that vested during
Appellant’s employment. The 150,000 stock shares promised in the February
3, 2020 settlement represent the parties’ compromise of the number of stock
options Appellant earned, and thus was entitled to exercise, during his
employment. Consequently, the stock shares are fringe benefits because they
relate back to stock options that were fringe benefits, and hence wages, under
Appellant’s employment agreement. Since the stock shares qualify as wages,
Appellant states a valid claim under the WPCL due to Appellee’s failure to issue
them.
We do not agree with the grounds advanced by the trial court or
Appellee for rejecting Appellant’s WPCL action. The trial court rejected
Appellant’s WPCL claim, stating, “[Appellant] relies on the February 3, 2020
email to make a claim that he is owed employee compensation in the form of
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150,000 shares which [Appellant] would characterize as wages. As the parties
have not settled, there is no binding contract that could be remotely construed
to require ‘wage’ compensation.” Trial Ct. Op. at 6. The trial court’s rationale
is incorrect because, as held above, the allegations in the complaint, accepted
as true, demonstrate that the February 3, 2020 agreement was binding on
Appellee, and the promised shares relate back to options that were a part of
Appellant’s employment agreement.
Citing three federal decisions, Riseman v. Advanta Corp., 39 F. App’x
761 (3d Cir. 2002), De Ascencio v. Tyson Foods, Inc., 342 F.3d 301 (3d
Cir. 2003), and Meister v. Sun Chem. Corp., 2018 WL 4961596 (E.D. Pa.
Oct. 15, 2018), Appellee argues that the stock shares fall outside the
protections of the WPCL. Riseman held the mere fact that certain
compensation is not payable until a future date is not necessarily fatal to a
WPCL claim so long as the employee is deemed to have earned it during his
employment. Id. at 765. De Ascencio stated in dicta that the WPCL does
not create a right to compensation, but rather only provides a statutory
remedy when the employer breaches a contractual obligation to pay earned
wages. Id. at 304. It is the contract between the parties that governs in
determining whether specific wages are earned. Id. Meister, on the other
hand, held that an agreement to make post-employment payments based
upon post-employment considerations could not be considered wages or
compensation earned because the plaintiff did not earn them during his
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employment. Appellee cites to these cases in support of its belief that the
agreement to issue stock shares under the February 3, 2020 agreement places
them outside what was earned during employment. As we have discussed,
however, since the February 3, 2020 agreement provides for the issuance of
stock in consideration of options earned during employment, the shares may
be considered fringe benefits, and hence wages, under the WPCL.
Accordingly, we conclude that Count V of the complaint states a valid
cause of action for recovery under the WPCL. The trial court erred in
dismissing this count of the complaint.
For the reasons articulated above, we affirm the trial court’s dismissal
of Counts II, III and IV of the complaint, and we reverse the dismissal of
Counts I and V.
Order affirmed in part and reversed in part. Order affirmed to the extent
it dismissed Counts II, III and IV of complaint. Order reversed to the extent
it dismissed Counts I and V of complaint. Counts I and V are reinstated, and
this case is remanded for further proceedings on those counts. Jurisdiction
relinquished.
Judge Musmanno did not participate in the consideration or decision of
this case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/09/2022
- 34 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482578/ | J-A17008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMP DEVELOPMENT, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NEW BEGINNINGS CHURCH OF : No. 67 EDA 2022
BUCKS COUNTY ANGELY ASSET :
MANAGEMENT COMPANY D/B/A :
RE/MAX CENTRE REALTORS, AND :
HERMAN PETRECCA :
Appeal from the Judgment Entered December 8, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2017-04171
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 9, 2022
This case involves the failed sale of a vacant parcel of land owned by
New Beginnings Church of Bucks County to JAMP Development, LLC. After
careful review, we affirm.
New Beginnings purchased the property in 2005 for $359,000.00. In
2010, the church listed the property for $499,000.00. The price was lowered
multiple times, yet New Beginnings did not receive any offers. In 2015, New
Beginnings signed a listing contract with Herman Petrecca and lowered the
asking price to $249,000.00. On December 30, 2015, JAMP, a land developer,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A17008-22
and New Beginnings signed an Agreement of Sale, which expressed that JAMP
would purchase the property for $170,000.00 subject to three contingencies.
Petrecca acted as dual agent, representing both New Beginnings and JAMP.
The Agreement of Sale contained a settlement date of October 1, 2016, and
JAMP presented $10,000.00 as a deposit.
The parties failed to proceed to closing the purchase by the closing date
of October 1, 2016. JAMP attempted to close following the agreed upon date,
but New Beginnings declined to close on the sale, indicating that the
settlement date had passed.
On June 26, 2017, JAMP initiated this action with the filing of a complaint
raising claims of specific performance, breach of contract, and unjust
enrichment. New Beginnings filed its Answer, New Matter, Counterclaim and
Cross-Claim, joining additional defendants.1 All parties filed motions for
summary judgment, which the trial court denied.
The case proceeded to a nonjury trial on November 1, 2021. During the
trial, New Beginnings and the additional defendants reached a settlement. At
the conclusion of trial, the court entered a verdict in favor of New Beginnings.
Specifically, the trial court ruled that the Agreement of Sale was unambiguous
regarding the closing date being set for October 1, 2016. Further, the trial
____________________________________________
1New Beginnings joined Angely Asset Management Company d/b/a RE/MAX
Centre Realtors and Petrecca as additional defendants.
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court determined that JAMP failed to tender settlement on or before the
October 1, 2016 settlement date and declined to order specific performance.
JAMP filed timely post-trial motions, which the trial court denied. New
Beginnings then filed a praecipe to enter judgment. This timely appeal by
JAMP followed. Both JAMP and the trial court complied with Pa.R.A.P. 1925.
JAMP first argues that the trial court erred in determining the Agreement
of Sale was unambiguous. JAMP asserts that paragraphs 4 and 29(B) are in
conflict as to the dates of settlement, creating an ambiguity. In addition, JAMP
argues that the trial court should have ordered specific performance because
New Beginnings prevented JAMP from closing on the property by October 1,
2016.
“[W]e review the trial court’s nonjury verdict to determine if the trial
court’s findings are supported by the evidence or whether the trial court
committed legal error.” Palmieri v. Partridge, 853 A.2d 1076, 1078 (Pa.
Super. 2004) (citation omitted). Because the issues concern the interpretation
of a contract, which is a question of law, our standard of review of the sales
agreement is de novo. See id. (citation omitted).
A fundamental rule in construing a contract is to ascertain and give
effect to the intent of the contracting parties. See Kmart of Pennsylvania,
L.P. v. MD Mall Associates, LLC, 959 A.2d 939, 943 (Pa. Super. 2008). The
intent of the parties in a written contract is contained within the writing itself.
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See id. at 944. When the contract is clear and unambiguous, the meaning of
the contract is ascertained from the writing alone. See id. Moreover,
[i]t is well-settled that clauses in a contract should not be read as
independent agreements thrown together without consideration
of their combined effects. Terms in one section of the contract,
therefore, should never be interpreted in a manner which nullifies
other terms in the same agreement. Furthermore, the specific
controls the general when interpreting a contract.
Southwestern Energy Production Co. v. Forest Resources, LLC, 83 A.3d
177, 187 (Pa. Super. 2013) (quoting Trombetta v. Raymond James
Financial Services, Inc., 907 A.2d 550, 560 (Pa. Super. 2006)).
In addition, an action for specific performance sounds in equity. See
Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006). Our standard of
review over an equitable matter requires a determination as to whether an
error of law or abuse of discretion has been committed. See Southall v.
Humbert, 685 A.2d 574, 576 (Pa. Super. 1996). Our scope of review is limited
in that it does not allow us to disturb an equitable determination unless it is
unsupported by the evidence or is demonstrably capricious. See id. Our
review of a final equity decree is very narrow. See Yarnall v. Almy, 703 A.2d
535, 536 (Pa. Super. 1997).
We explained in American Leasing v. Morrison Co., 454 A.2d 555
(Pa. Super. 1982), the well-established principle under the Statute of Frauds
that “the terms purporting to convey an interest in land must be manifest in
writing, in order to make the contract enforceable. The property must be
adequately described, the consideration must be set forth, and the agreement
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must be signed by the party to be charged.” Id. at 557-558 (citation omitted).
See also, 33 P.S. § 1.2 The fundamental purpose of the Statute of Frauds is
to prevent assertions of verbal understandings that are contrary to the written
agreement, thereby obviating the opportunity for fraud and perjury. See
Fannin v. Cratty, 480 A.2d 1056, 1058 (Pa. Super. 1984). Even so,
Pennsylvania has adopted the principle that “every contract imposes upon
each party a duty of good faith and fair dealing in its performance and its
enforcement.” John B. Conomos, Inc. v. Sun Co., 831 A.2d 696, 706 (Pa.
Super. 2003).
We observe that JAMP’s request of specific performance seeks a form of
equitable relief that is largely entrusted to the discretion of the trial court:
[s]pecific performance compels the surrender of a thing in itself,
because that thing is unique and cannot by its nature be
duplicated. The value of the object sought transcends money
because it has no peer of location, antiquity, artistry or skill. Thus,
when two persons want only what one can have, only the clearest
right can prevail, and it cannot be decided by reasons other than
the most careful discrimination of long precedent and careful
scrutiny of the equities arising from the facts. A Chancellor must
at last be relied upon to perceive them, and if the facts can support
his decision, we are bound to follow it.
Cimina v. Bronich, 537 A.2d 1355, 1357-1358 (Pa. 1988) (citations
omitted).
____________________________________________
2 The Statute of Frauds provides, in pertinent part, that no estates or interests
in land “shall ... be assigned, granted or surrendered, unless it be by deed or
note, in writing, signed by the party so assigning, granting or surrendering
the same, or their agents, thereto lawfully authorized by writing[.]” 33 P.S. §
1.
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Our Supreme Court has long explained that if an agreement of sale
provides that time is of the essence, the agreement will not be specifically
enforced in equity unless the buyer tenders performance on or before the
settlement date. See Phaff v. Gerner, 303 A.2d 826, 831 (Pa. 1973).
Further, regarding allegations that a seller cannot convey title, “the way to
ascertain whether [a party] could [convey title] was to make a tender on or
before the day named, and, this not having been done, the court could not
decree specific performance.” McKuen v. Serody, 112 A. 460, 461 (Pa. 1921)
(citation omitted).
We have reviewed the briefs of the parties, the relevant law, the certified
record, and the thorough opinion authored by the Honorable James M.
McMaster of the Court of Common Pleas of Bucks County, dated January 1,
2022. We conclude that Judge McMaster’s opinion adequately and accurately
addresses JAMP’s issues.
Regarding JAMP’s first claim that the trial court erred in determining the
Agreement of Sale was unambiguous because paragraphs 4 and 29(B) are in
conflict as to the date of settlement, we agree with the trial court’s
determination that the contract is not ambiguous. Time being of the essence,
Paragraph 4(A) sets the specific date for settlement on October 1, 2016, or
before, and Paragraph 5(D) explains that the settlement date is not extended
by any other provision of the Agreement of Sale, unless done so by mutual
agreement of the parties. Therefore, the contingencies in Paragraph 29(B) did
-6-
J-A17008-22
not create a new timeline for settlement but set forth the requirements that
needed to be fulfilled prior to the October 1, 2016 settlement date.
Accordingly, we adopt as our own the trial court’s cogent discussion on this
issue. See Trial Court Opinion, 1/11/22, at 5-7.
We likewise find no merit to JAMP’s claim that the trial court should have
ordered specific performance because New Beginnings allegedly prevented
JAMP from closing on the purchase by October 1, 2016. As the trial court aptly
explained, the record is devoid of evidence that JAMP tendered payment on
or before the settlement date. See Trial Court Opinion, 1/11/22, at 8. As such,
the trial court did not commit any error in determining that JAMP was not
entitled to specific performance, and we agree with the court’s decision to
award JAMP the return of its initial $10,000.00 deposit money.
Accordingly, we discern no error in the trial court rendering a verdict in
favor of New Beginnings. We therefore affirm the judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/09/2022
-7-
e
ted 10/27/2022 10:00 AM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL DIVISION
DAMP DEVELOPMENT, LLC NO. 2017-04171
Plaintiff,
vs.
NEW BEGINNINGS CHURCH OF
BUCKS COUNTY,
Defendant,
ANGELY ASSET MANAGEMENT
COMPANY, d/b/a RE/MAX CENTRE
REALORS, and HERMAN PETRECCA,
Additional Defendants.
OPINION
This is an appeal by JAMP Development, LLC (hereinafter "DAMP") of a
judgment entered on December 8, 2021 after an Order entered in this matter on
November 22, 2021, denying JAMP's Motion for Post-Trial Relief. This Opinion is
filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) in support of
this Court's Order.
BACKGROUND
On December 30, 2015, JAMP and New Beginnings Church of Bucks
County (hereinafter " New Beginnings") entered into a written agreement for the
sale of real property (hereinafter "Agreement of Sale") located at 1427 Almshouse
Road, Jamison, Bucks County, Pennsylvania (hereinafter "Property") for a
purchase price of $ 170,000.00 (one-hundred seventy thousand dollars). See
generally Complaint Ex. A. The Agreement of Sale was executed by DAMP, as
buyer, and New Beginnings, as seller. JAMP agreed to pay a deposit of $ 10,000
(ten thousand dollars) within five (5) days of execution of the Agreement of Sale.
Id. at 2. Herman Petrecca (hereinafter "Petrecca") is a licensed real estate sales
agent who acted as a dual agent for JAMP and New Beginnings. Id. at 1. Angely
Asset Management Company d/b/a Re/Max Centre Realtors (hereinafter
1
"Angely") is the broker for Petrecca. N.T. 1 at 125-126.
By this Agreement of Sale, per Paragraph 4(A), the settlement date for the
Property was " October 1, 2016, or before if buyer and seller agree." Complaint
Ex. A. at T4(A). Paragraph 5(B) of the Agreement of Sale clarifies, "[t]he settlement
date and all other dates and times identified for the performance of any
obligations of this Agreement are of the essence and are binding." Id. at ¶ 5(B).
Further, Paragraph 5(D) of the Agreement of Sale conditions, "[tlhe settlement
date is not extended by any other provision of this Agreement and may only be
extended by mutual written agreement of the parties." Id. at ¶5(D). The
Agreement of Sale was subject to three (3) contingencies agreed upon by DAMP
and New Beginnings. N.T. at 66. These contingencies were outlined by Paragraph
29(B).
The parties failed to proceed to settlement by the written and agreed upon
date of October 1, 2016. On June 26, 2017, DAMP filed a Civil Complaint with
this Court, raising claims of specific performance (Count I), breach of contract
(Count II), and unjust enrichment (Count III) against New Beginnings. New
Beginnings thereafter filed an Answer, New Matter, Counterclaim for Breach of
Contract as to DAMP, and Crossclaim against Petrecca and Angely as additional
Defendants. Years of litigation and a multitude of filings ensued. On April 1,
2021, DAMP filed aMotion for Summary Judgment. 2 Days later, on April 7, 2021,
additional Defendants Petrecca and Angely filed a Motion for Summary
Judgment. Both JAMP's and the additional Defendants' Motions were denied by
this Court on June 10, 2021. New Beginnings filed a Motion for Summary
Judgment on May 24, 2021, which was also denied by this Court on August 2,
2021.
On November 1, 2021, a bench trial was held before the undersigned and
a verdict was entered in favor of New Beginnings. This Court held that the
1 All references to Notes of Testimony ("N.T.") are to testimony taken on November 1, 2021, at a
bench trial held before the undersigned.
2 JAMP filed another Motion for Summary Judgment on April 15, 2021, which was identical to
its April 1, 2021 Motion for Summary Judgment.
2
Agreement of Sale was unambiguous and expired on the written settlement date
of October 1, 2016. N.T. at 242-243. It was found New Beginnings was under no
obligation to sell the Property as there was no tender of settlement by DAMP prior
to October 1, 2016. Id. Further, this Court found, because New Beginnings is no
longer willing to settle, and thus the Agreement of Sale has failed, JAMP is
entitled to a return of its $ 10,000 (ten thousand dollar) deposit. Id.
Thereafter, JAMP filed aMotion for Post-Trial Relief on November 12, 2021.
JAMP requested the verdict in favor of New Beginnings be set aside and judgment
entered in favor of JAMP. The Motion for Post-Trial Relief was denied by this
Court on November 22, 2021.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
On December 20, 2021, JAMP filed a Notice of Appeal of this Court's
November 22, 2021 Order denying its Motion for Post-Trial Relief. Subsequently,
on December 6, 2021, this Court issued a 1925(b) Order to JAMP, providing it
was to submit a Statement of Matters Complained of on Appeal within twenty-
one (21) days of the date of the Order. JAMP timely filed its Statement of Matters
Complained of on Appeal on December 23, 2021, and it is stated below, verbatim:
1. Whether this Court committed reversible error by holding that the
Agreement of Sale was unambiguous and set a definitive closing date
of October 1, 2016, where: (a) this Court interpreted Paragraph 4 in a
vacuum at trial without regard to Paragraph 29(B)---which is in conflict
with Paragraph 4; (b) Appellee/Defendant New Beginnings Church of
Bucks County ("New Beginnings") asserted in a verified pleading one
month before trial that the Agreement of Sale was " ambiguous and
unclear," (c) New Beginnings' current pastor, Ben Rivera, testified at
trial that nothing had changed since the filing of the pleading to alter
New Beginnings' reading of the Agreement of Sale; (d) Robert Novak
testified that Ben Rivera's representation to this Court was truthful; (e)
defense counsel conceded during his closing argument that the
Agreement of Sale was ambiguous; (f) because the two provisions
cannot be read in harmony with one another, the Agreement of Sale is
ambiguous, necessitating consideration of parol evidence; (g) Herman
Petrecca, John Piotrowski, and Matthew Piotrowski all testified during
trial that Paragraph 29(B) of the Agreement of Sale established the
closing date for the transaction and that the date in Paragraph 4 was
simply a target date, and New Beginnings did not offer any competent
3
evidence to refute this testimony; (h) the parties' undisputed intent is
reinforced by the terms and structure of the Agreement of sale; (i)
construing the Agreement of Sale as setting a definitive closing date of
October 1, 2016 requires re-writing the Agreement and adding the
following bolded and italicized language to Paragraph 29(B):
"Settlement in 30 days after township approval is granted and/or the
current site contractor using the lot vacates the lot and buyer approves
conditions, so long as one or both conditions occur on or before
October 1, 2016"—which conflicts with settled principles of contract
interpretation; 0) such an interpretation also leads to an absurd result,
because it mandates closing by October 1, 2016 regardless of whether
the contingencies in Paragraph 29(B) have been satisfied, thereby
rendering those contingencies meaningless and transforming this into
a non-contingent sale; and (k) this Court's interpretation of the
Agreement of Sale at trial violates the "law of the case" doctrine,
because President Judge Bateman necessarily found that the
Agreement of Sale was ambiguous and that there were factual issues
that needed to be resolved at trial, when he denied New Beginnings'
Cross-Motion for Summary Judgment earlier in this litigation?
2. Whether, in the alternative, this Court committed reversible error by
refusing to order specific performance of the Agreement of Sale and
rendering averdict in favor of New Beginnings and against JAMP where:
(a) it is fundamental that a buyer's obligation to tender by a fixed date
is excused where the seller is not ready to settle by that date, see e.g.,
Michael and Linda, LLC v. Smith, 216 A.3d 262 ( Pa. Super. Ct. 2019);
(b) New Beginnings could not convey good and marketable title on
October 1, 2016 because Herman Petrecca and Robert Novak both
testified New Beginnings never provided the title company with the
necessary documents to execute closing, thereby rendering any tender
by JAMP futile; (c) New Beginnings also never performed its contractual
obligation to remove the existing stone base; (d) the Agreement of Sale
remained in full force and effect, because Paragraph 18(D) gave JAMP
the sole discretion to terminate the Agreement and John Piotrowski and
Matthew Piotrowski both testified that JAMP never terminated the
contract; and (e) specific performance is the only appropriate remedy,
because New Beginnings clearly violated the Agreement of Sale when
they refused to convey the Property, its refusal left JAMP without an
adequate remedy at law, and it would be inequitable to deny JAMP
specific performance under the circumstances?
JAMP's Concise Statement of Matters Complained of on Appeal, pp. 1-2.
4
DISCUSSION
Under Pennsylvania law, when appellants raise an " outrageous" number
of issues in their Pa. R.C.P. 1925(b) statement, they deliberately circumvent the
meaning and purpose of Rule 1925(b) and, thereby, effectively preclude appellate
review of the issues they seek to raise. Jones v. Jones, 878 A.2d 86, ( Pa. Super.
2005). Here, DAMP has only raised two issues in its Statement of Matters
Complained of on Appeal, however, the first Issue has eleven subsections, A
through K, and the second Issue has five subsections, A through E. Throughout
these subsections, DAMP makes numerous irrelevant arguments as this matter
is one of contract interpretation, left to the discretion of the Court. While this
Court is of the opinion that the sheer number of irrelevant subsections raised
under these Issues effectively precludes appellate review, the Court addresses
the substance of these Issues in this Opinion and asserts its position generally.
A. This Court did not err in finding the Agreement of Sale is unambiguous
and that there was a definitive closing date of October 1, 2016. Under
Pennsylvania law, "the cardinal rule of contract construction is that the intent
of the parties at the time they contracted is controlling. The intent of the
contracting parties is exclusively determined from the written instrument if its
words are `clear and unambiguous'." Spatz v. Nascone, 424 A.2d 929, 937 (Pa.
Super. 1981). "Where the words of a contract in writing are clear and
unambiguous, its meaning is to be ascertained in accordance with its plainly
expressed intent." Atlantic Refining Co. v. Wyoming Nat'l Bank, 51 A.2d 719 (Pa.
1947). A contract is unambiguous "if the court can determine its meaning
without any guide other than aknowledge of the simple facts on which, from the
nature of the language in general, its meaning depends; and a contract is not
rendered ambiguous by the mere fact that the parties do not agree on the proper
construction." Samuel Rappaport Family Partnership v. Meridian Bank, 657 A.2d
17, 22 (Pa. Super. 1995)(citing Z & L Lumber Co. of Atlasburg v. Nordquist, 502
A.2d 697 ( Pa. Super. 1985)).
5
The present matter is one of pure contract interpretation. DAMP
continually relied on its assertion that Paragraph 29(B) reading, in relevant part,
"[s]ettlement in 30 days after township approval is granted and/or the current
site contractor using the lot vacates the lot and buyer approves conditions,"
reflects a modification of the settlement date set by Paragraph 4(A). Complaint
Ex. A. at ¶ 29(B). However, this Court found that the controlling paragraph in the
Agreement of Sale is paragraph 4(A) which clearly states, "[s]ettlement date is
October 1, 2016, or before if Buyer and Seller agree." Id. at ¶ 4(A). Further,
Paragraph 5, specifically Paragraph 5(D), makes it clear that there is no
ambiguity by clarifying, "[t]he settlement date is not extended by any other
provision of this Agreement and may only be extended by mutual written
agreement of the parties" (emphasis added). Id. at ¶ 5(D); see also N.T. at 242. It
is explicitly written that the settlement date was October 1, 2016, and was not
to be extended by any other provision of the Agreement of Sale. Thus, Paragraph
29(B) does not warrant an exception to Paragraph 4(A). Had the contingencies
been fulfilled earlier than October 1, 2016, then settlement would have taken
place thirty (30) days after township approval was granted and/or the site
contractor vacated the lot and DAMP approved conditions. However, as written,
the contingencies in Paragraph 29(B) had to have been fulfilled prior to October
1, 2016, as the settlement date was not to be extended.
Further, JAMP asserts numerous arguments that the parties themselves
found the Agreement of Sale to be "ambiguous and unclear;" however, as
previously stated, a contract is not rendered ambiguous simply because the
parties disagree. See Samuel Rappaport Family Partnership v. Meridian Bank,
657 A.2d 17, 22 (Pa. Super. 1995). DAMP and New Beginnings executed the
Agreement of Sale with a settlement date, of October 1, 2016, stated in plain
language. Per Paragraph 5(B), the October 1, 2016 settlement date was "of the
essence" and "binding." Complaint Ex. A. at ¶5(B). Again, the only exception to
this date was clearly set forth by Paragraph 5(D) stating, '[t]he settlement date
is not extended by any other provision of this Agreement and may only be
extended by mutual written agreement of the parties' (
emphasis added). Id.
6
at ¶ 5(D). JAMP argues the Court's interpretation of the Agreement of Sale "leads
to an absurd result" while failing to recognize that they executed and signed the
Agreement of Sale to be interpreted this way. See JAMP's Concise Statement of
Matters Complained at 16). Had the parties noted the existence of Paragraph
5(D) and intended the settlement date to be dependent on contingencies within
Paragraph 29(B), they had the authority to modify the date and "re-write" their
own agreement through a mutual written addendum. Id. at 1(i). Because there
was no mutual written agreement extending the settlement date, it at all times
remained October 1, 2016.
It is for the trial court to decide whether, as a matter of law, written
contract terms are clear or ambiguous. Samuel Rappaport Family Partnership v.
Meridian Bank, 657 A.2d 17, 22 (Pa. Super. 1995). The Court must look at the
written word of the Agreement of Sale, not the subjective intent the parties may
have had that failed to be evidenced by the writing. This Court found the
provisions of the Agreement of Sale, read together in harmony, are unambiguous
and clear as it could determine the meaning from the nature of the language in
general, without any other guide. According to its plainly expressed intent, the
settlement date was October 1, 2016, and was not extended by any other
provision of the Agreement of Sale nor did a mutual writing extending the
settlement date exist. Thus, the Agreement of Sale expired on this date of October
1, 2016.
Additionally, DAMP argues consideration of parol evidence was necessary.
Under Pennsylvania law, parol evidence is only admissible where the language
of a written agreement is ambiguous on its face, to explain the agreement and
resolve ambiguities to ascertain the meaning of the parties. Baney v. Eoute, 784
A.2d 132, 136 (Pa. Super. 2001). Again, because the Agreement of Sale was
found to be unambiguous, at the discretion of this Court, parol evidence cannot
be introduced.
B. This Court did not err because specific performance of the Agreement of
7
Sale was not ordered. Under Pennsylvania law, a decree of specific performance
will be granted only if a plaintiff clearly is entitled to such relief, there is no
adequate remedy at law, and the trial court believes that justice requires such a
decree. Oliver v. Ball, 136 A.3d 162 (Pa. Super. 2016). An action for damages is
an inadequate remedy when there is no method by which the amount of damages
can be accurately computed or ascertained. Strank v. Merch Hospital of
Johnstown, 117 A.2d 697 (Pa. 1955).
This Court determined that the Agreement of Sale between the parties
expired on October 1, 2016, as the parties failed to close by the settlement date.
Further, because there was no tender of settlement by DAMP, as buyer, prior to
this date of October 1, 2016, New Beginnings, as seller, was not obligated to sell
the Property. N.T. at 242-243. New Beginnings is no longer willing to settle, and
so this Court found JAMP is entitled to a return of its $ 10,000 (ten thousand
dollar) deposit. Id. Therefore, the amount of damages, $ 10,000 (ten thousand
dollars), was accurately computed and the return of the deposit is an adequate
remedy at law. Because JAMP was granted an adequate remedy of its damages,
it would be improper for this Court to grant a decree of specific performance.
CONCLUSION
For the reasons stated above, JAMP's appeal should be quashed or denied.
BYATHE COURT:
DATE YMES M. M MA TER J.
N.B. It ,-ponsibility
to notir, ,ted parties
of action.
8 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482572/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
AKERMAN LLP, ABS HEALTHCARE SERVICES LLC, HEALTH OPTION
ONE LLC, MY AGENT SOLUTION LLC, and TPBO SERVICE LLC
(COLLECTIVELY, THE “ICD COMPANIES”),
Petitioners,
v.
MICHELLE COHEN and SANDRA COHEN,
Respondents.
Nos. 4D22-553 and 4D22-556
[November 9, 2022]
Consolidated petitions for writs of certiorari to the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; James L. Martz, Judge;
L.T. Case Nos. 50-2019-DR-009402-XXXX-SB and 50-2019-DR-008836-
XXXX-SB.
Elizabeth A. Izquierdo and D. David Keller of Keller Landsberg PA, Fort
Lauderdale, for petitioner Akerman, LLP.
Emily J. Chase and John B.T. Murray, Jr., of Gunster, Yoakley &
Stewart, P.A., West Palm Beach, for petitioners ICD Companies.
Joel M. Weissman and Ashley M. Bolender of Joel M. Weissman, P.A.,
West Palm Beach, for respondents.
CONNER, J.
Akerman LLP (“Akerman”) and ABS Healthcare Services LLC, Health
Option One LLC, My Agent Solution LLC, and TPBO Service LLC
(collectively “the ICD Entities”) petition for certiorari review of two January
24, 2022 written orders that compel Akerman to produce various
documents sought by two separate subpoenas issued in two separate
divorce proceedings after denying assertions of attorney-client privilege.
We consolidated the cases for review by the same panel. Because the
January 2022 orders deny assertions of attorney-client privilege, certiorari
review is appropriate. See Am. Airlines, Inc. v. Cimino, 279 So. 3d 200, 203
(Fla. 4th DCA 2019) (“Certiorari is the appropriate vehicle to obtain review
of orders requiring cat-out-of-the-bag disclosure of privileged documents.”
(quoting Fla. Power & Light Co. v. Hicks, 162 So. 3d 1074, 1075 (Fla. 4th
DCA 2015))).
Upon considering the record and arguments presented, we grant the
petitions, quash both orders, explain our reasoning for determining the
orders depart from the essential requirements of law, and remand for
further proceedings consistent with this opinion. We decline to address
any oral or written orders that postdate the January 2022 orders as
beyond the scope of the petitions.
Background
This case has an unusual fact pattern in that it involves two brothers
(Seth and Bradley) pursuing divorce in separate proceedings while
represented by the same attorney. The wives (Michelle and Sandra,
respectively) also share an attorney. The two brothers and their father are
involved in multiple business entities created by the brothers to operate in
the health insurance industry, including the ICD Entities. Neither brother
owns a majority interest in any of the ICD Entities. 1
Akerman has provided legal services to both couples in estate planning,
asset protection, and in defending an IRS audit. Akerman has also
provided numerous services as outside counsel for the brothers’ various
business entities.
The First Akerman Subpoena and March 2021 Hearing
Through discovery requests in 2019, Michelle initially sought the
contested ICD documents, among other documents, from Seth. At the
time, attorney Miller represented Seth in the divorce and performed legal
work for the ICD Entities. In response to the discovery requests, attorney
Miller moved to protect trade secrets and other confidential business
information within the requested documents. Attorney Miller never
asserted an attorney-client privilege as to the requested documents.
At a status conference in January 2020, Seth’s and Michelle’s attorneys
agreed Seth would produce the ICD documents and other documents in
exchange for an agreed confidentiality order. An agreed order for
production to that general effect was entered by Judge Burton in February
2020. However, that order did not specifically mention the ICD Entities or
1 Each brother holds 40% of the membership units in ABS Healthcare Services
LLC, Health Option One LLC, and TPBO Service LLC. Each brother holds 25%
of the membership units in My Agent Solution LLC.
2
documents. When Seth failed to produce the ICD documents, Michelle
served Akerman with a subpoena for the documents (“the First Akerman
Subpoena”).
That subpoena sought documents pertaining to offshore trusts created
by Seth and every invoice generated by Akerman to the ICD Entities.
Akerman declined to produce ICD related documents, contending the
request was overbroad, unduly burdensome, and infringed on attorney-
client privilege. Thereafter, Michelle moved to compel production,
resulting in a March 2021 hearing before Judge Martz.
Before the trial court heard Michelle’s motion, and during a hearing on
a different matter in the Seth-Michelle divorce, attorney Miller stated that
Seth did not object to the subpoena and stated that “[w]e told them, by
silence, send everything,” referring to the ICD Entities.
Also prior to the hearing on Michelle’s motion to compel, Akerman filed
a privilege log asserting attorney-client privilege using a category-by-
category format, rather than a document-by-document format, because of
the categorical nature of the privilege asserted. The ICD Entities had not
been added as parties to the Seth-Michelle divorce proceeding at the time
of the March 2021 hearing, and they were not represented by counsel at
the hearing.
During the March 2021 hearing, Michelle pointed to three occurrences
to argue the attorney-client privilege was waived regarding the ICD
documents. Michelle directed the trial court to attorney Miller’s statement
during the prior hearing, 2 Seth’s lack of objection to the Akerman
subpoena, and certain orders entered by Judge Burton prior to Akerman
being served with the subpoena.
Seth objected, contending the “privilege” issue was not noticed for a
hearing. The trial court disagreed, reasoning the issue of whether there
was compliance with discovery requests and a subpoena was intertwined
with privilege issues. However, the trial court acknowledged that the
privilege issue could require an additional hearing. Michelle continued to
argue Seth’s lack of objection and attorney Miller’s statement effectively
waived the attorney-client privilege as to the ICD documents.
2At subsequent hearings and in subsequent filings, Akerman contends the “send
them everything” comment pertained to the Gopman and Brian Harris documents
discussed below.
3
The hearing then focused on a portion of the ICD documents referred
to as “the Gopman Documents” and “the Brian Harris Documents.”
Gopman was an Akerman attorney engaged by Seth and Michelle to create
offshore trusts for asset protection. Harris was an Akerman attorney who
defended an IRS audit involving Seth and Michelle and multiple entities.
During the hearing, the trial court overruled Akerman’s objections that
the requests were overbroad and unduly burdensome, and Akerman’s
attorney-client privilege objections as to the Gopman and Brian Harris
documents. An April 2021 order entered after the hearing reflects that
ruling. Significantly, the April 2021 order was silent as to whether the
attorney-client privilege was waived as to the ICD documents other than
the Gopman and Brian Harris documents.
The Second Akerman Subpoena and October 2021 Hearing
Shortly after the March 2021 hearing on the First Akerman Subpoena,
Sandra served Akerman with a second subpoena which sought production
of Akerman’s invoices and the sources of payment for those invoices, as
well as other documents in connection with Akerman’s representation of
Seth and Bradley and multiple other entities, including the ICD Entities
(“the Second Akerman Subpoena”).
Because Michelle contended the First Akerman Subpoena was still not
fully complied with, she later joined Sandra in moving to compel
compliance with both subpoenas.
Akerman filed a written response to the motions to compel contending
that no member of management or counsel for the ICD Entities had
authorized waivers of attorney-client privilege. The ICD Entities supported
that response with the declaration of their chief financial officer (“CFO”)
who stated that the ICD Entities did not waive their attorney-client
privilege. The CFO further explained that Akerman was the ICD Entities’
primary outside counsel and provided a list of legal services Akerman
furnished to the ICD Entities in such matters as employment law, litigation
claims by third parties, and an arbitration. 3
In October 2021, the trial court held a hearing on the motions to compel
compliance with the First and Second Akerman Subpoenas. By that time,
the ICD Entities were added as third-party defendants in both divorce
3 In subsequent filings and hearings, the ICD Entities maintained the listed
services had nothing to do with issues related to equitable distribution or other
issues raised in the divorce proceedings.
4
actions and were represented by the Gunster, Yoakley & Stewart, P.A., law
firm.
At the hearing, the wives argued the April 2021 order issued after the
March 2021 hearing on the First Akerman Subpoena required full
production without applying an attorney-client privilege. The wives noted
the ICD Entities were now parties and represented, and no entity sought
relief from the April 2021 order, filed a privilege log, nor asked the trial
court to review documents in camera (ignoring the February 2021
categorical privilege log filed in the Seth-Michelle divorce).
The husbands specifically argued the attorney-client privilege asserted
by Akerman was not waived as to the ICD Entities. They argued the April
2021 order solely addressed the Seth-Michelle divorce and thus did not
address Bradley’s privilege issues. They also reminded the trial court the
ICD Entities were not present at the March 2021 hearing or parties at that
time. They further argued the ICD Entities are not marital assets and the
wives were ignoring the formalities of corporate structure.
The ICD Entities clarified that Akerman possessed four general
categories of documents: (1) the Gopman Documents; (2) the Brian Harris
Documents; (3) documents relating to Meridian Trust Company; and (4)
documents related to Akerman’s representation of the ICD Entities as their
outside general counsel. The ICD Entities argued the wives were not
parties to any privilege associated with the fourth group of documents
because the husbands, while owning a membership interest in the ICD
Entities, “don’t control the privilege.” The husbands further argued that
the attorney-client privilege dispute as to the fourth category of documents
involved communications between the Entities and their lawyer which had
nothing to do with the financial discovery and equitable distribution issues
pertinent to the divorce proceedings.
The trial court commented it did not doubt that there was “privilege all
over the place in many aspects of this case,” and observed that what was
contributing to the problem was the fact that Akerman did not have
multiple “accounts” for clients to clearly categorize its information. The
trial court then stated the case “screams for a special master to go through
all of this with a fine tooth comb.”
The trial court was frustrated that nothing was presented showing the
individual ICD Entities asserted their “own privileges.” Because the law
firm does not hold the privilege, the trial court explained that the entities
have “to step forward,” and either waive or assert their privilege.
5
The trial court commented that it could not do its job “where we are
right now.” The trial court then announced that the April 2021 order
remained “in play,” and no privileges were asserted so far other than
blanket privileges. The trial court concluded: “So I need specificity. And,
quite frankly, the appellate court deserves my respect in trying to create
specificity for them to rule later . . . .”
The wives’ counsel asked if the trial court was permitting any further
objections or a privilege log being filed, to which the trial court responded:
We got a bunch of entities. … And if you guys file something
in the meantime, I’ll address it. I don’t know what more to say
than that. I guess what I’m ruling today is that the blanket
objections which have been argued today are insufficient to
move this Court from its prior ruling. … And it does require
that the individual entities who hold the privilege assert the
privilege if a privilege is going to be asserted and that it is on
a case-by-case basis as needed. And then I think we’ll have a
clearer picture on who and what.
The trial court also stated it would consider any necessary redactions.
The hearing ended with Akerman’s attorney advising that Akerman would
continue to work with the attorneys to produce the documents ordered
and “let the other parties litigate any privilege issues, and then we’ll abide
by instructions or an order of the Court.”
The January 24, 2022 orders under review (one in the Seth-Michelle
divorce, the other in the Bradley-Sandra divorce) were issued to
memorialize the trial court rulings at the October 2021 hearing.
Certiorari Analysis
Petitioners raise multiple arguments why we should quash the January
2022 orders under review. Three of their arguments are dispositive
grounds for granting certiorari relief. We conclude the trial court departed
from the essential requirements of law by: (1) determining that the ICD
Entities waived the attorney-client privilege based on the conduct of Seth
and attorney Miller; (2) failing to make an explicit determination as to the
manner in which the privilege was waived and the scope of the waiver; and
(3) failing to conduct an in camera review of the purportedly-privileged
documents prior to ordering them to be produced.
Generally, the burden of establishing a discovery privilege rests on the
party asserting the privilege. S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d
6
1377, 1383 (Fla. 1994). However, when communications appear privileged
on their face, the party seeking disclosure bears the burden of proving that
they are not. Eight Hundred, Inc. v. Fla. Dep’t of Revenue, 837 So. 2d 574,
576 (Fla. 1st DCA 2003).
Here, the documents in dispute are purportedly communications
between Akerman and a client, thus, prima facie appear to be attorney-
client privileged. See Brookings v. State, 495 So. 2d 135, 139 (Fla. 1986)
(“It is the communication with counsel which is privileged, not the facts.”).
Moreover, the wives do not contest that, but for a purported waiver, the
documents are preliminarily subject to an attorney-client privilege.
A privilege can be waived by voluntary disclosure or consent. See §
90.507, Fla. Stat. (2021). Below and in this Court, the wives contend that
Seth’s failure to object to the First Akerman Subpoena and the statement
by attorney Miller that “[w]e told them, by silence, send everything,”
constituted conduct broadly waiving the attorney-client privilege by the
ICD Entities. The trial court apparently agreed with that contention in the
April 2021 order and the January 2022 orders under review. We have
multiple problems with that contention.
Waiver by Client Consent
We agree with petitioners that the wives’ contention that the ICD
Entities waived the attorney-client privilege by consent based on the
conduct of either Seth, attorney Miller, or both, ignores that neither Seth
nor attorney Miller had the authority to waive the privilege on behalf of the
ICD Entities.
As the trial court correctly noted multiple times in the proceedings, the
privilege belongs to and protects the client. See § 90.502(2), Fla. Stat.
(2021) (“A client has a privilege to refuse to disclose, and to prevent any
other person from disclosing, the contents of confidential communications
when such other person learned of the communications because they were
made in the rendition of legal services to the client.”) (emphasis added). If
the privilege belongs to and protects the client, then a fortiori it is only the
client who can waive the privilege. See Sedgwick Claims Mgmt. Servs., Inc.
v. Feller, 163 So. 3d 1252, 1254 (Fla. 5th DCA 2015) (“[T]he trial court
erred by finding that the attorney-client privilege was waived by counsel’s
statement at a hearing.”); Coates v. Akerman, Senterfitt & Eidson, P.A., 940
So. 2d 504, 508 (Fla. 2d DCA 2006) (“[A]ll personal privileges may be
waived by the client.”); see generally, Charles W. Ehrhardt, Florida
Evidence § 502.8 (2014 ed.) (“The client is the holder of the privilege and
is the only person who may waive it.”) (citations omitted). Thus, attorney
7
Miller could not waive the ICD Entities’ privilege without the express
consent of the ICD Entities.
Section 90.502(1)(b), Florida Statutes (2021), defines “client” to include
“any . . . corporation, association, or other organization or entity, either
public or private.” § 90.502(1)(b), Fla. Stat. (2021). “The power to exercise
the corporate lawyer-client privilege rests with the corporation’s
management.” Tail of the Pup, Inc. v. Webb, 528 So. 2d 506, 507 (Fla. 2d
DCA 1988) (citation omitted). Because “all corporate powers are exercised
by, or under the authority of, the corporation’s board of directors . . . an
individual stockholder, officer and director, has no authority to waive or
assert the privilege against the wishes of the corporation’s board of
directors.” Id. Although we could find no cases expressly addressing the
structural authority by which a limited liability company waives its
attorney-client privilege, like corporations, we conclude the company’s
management structure informs the decision.
In Florida, limited liability companies are either member-managed or
manager-managed. § 605.0407(1), Fla. Stat. (2021). Unless the operating
agreement or articles of organization expressly provides the company is or
will be manager-managed, the company is member-managed. Id. If the
company is member-managed, “[e]ach member’s vote is proportionate to
that member’s then-current percentage or other interest in the profits of
the limited liability company owned by all members,” and “the affirmative
vote or consent of a majority-in-interest of the members is required to
undertake an act, whether within or outside the ordinary course of the
company’s activities and affairs.” § 605.04073(1), Fla. Stat. (2021).
Similarly, in a manager-managed company, “a matter relating to the
activities and affairs of the company shall be decided” in one of three ways:
“by the manager; if there is more than one manager, by the affirmative vote
or consent of a majority of the managers; or if the action is taken without
a meeting, by the managers’ unanimous consent in a record.” §
605.04073(2), Fla. Stat. (2021).
Nothing in the record shows Seth had the authority on behalf of any of
the ICD Entities to waive the attorney-client privilege. The trial court
apparently accepted the wives’ argument that because Seth had a 40%
ownership interest in three of the ICD Entities, he singularly had the
authority to waive the privilege. Absent a record showing that an operating
agreement or articles of organization granted Seth such authority, his
ownership interest alone does not support the conclusion he had the
singular management authority to waive the privilege. Thus, the trial
court erred in accepting the wives’ argument that Seth waived the privilege
by not objecting to the First Akerman Subpoena and purportedly
8
authorizing the ICD Entities to produce the contested documents “by
silence.” The flawed premise of the April 2021 order was also carried over
to the January 2022 orders under review.
Waiver by Failure to Timely File a Privilege Log
We next address the wives’ argument that the privilege was waived by
failing to timely file an adequate privilege log.
A finding of waiver is not favored, although it is within the trial court’s
discretion. Compare Andreatta v. Brown, 330 So. 3d 589, 591 (Fla. 1st
DCA 2021) (finding no waiver where the party asserting the privilege had
“e-mail[ed] explanations [that] were sufficient to expressly claim attorney-
client privilege and describe the nature of the redacted communications”)
(citations omitted), with TIG Ins. Corp. of Am. v. Johnson, 799 So. 2d 339,
341 (Fla. 4th DCA 2001) (agreeing waiver is not favored but finding waiver
under specific facts and where no log was filed).
The failure to file a privilege log meeting the requirements of Florida
Rule of Civil Procedure 1.280(b)(6) may result in waiver of the attorney-
client privilege. DLJ Mortg. Cap., Inc. v. Fox, 112 So. 3d 644, 645 (Fla. 4th
DCA 2013) (“A trial court has discretion to find a waiver of privilege from
the failure to file a privilege log.”) (citation omitted). “However, the failure
to file a log should not be applied to categorical assertions of privilege.”
Id.; see also GKK, etc. v. Cruz, 251 So. 3d 967, 969 (Fla. 3d DCA 2018);
Nevin v. Palm Beach Cnty. Sch. Bd., 958 So. 2d 1003, 1008 (Fla. 1st DCA
2007).
Almost a month prior to the March 2021 hearing on the First Akerman
Subpoena, Akerman filed a privilege log. In responding to the petition, the
wives assert that the trial court’s April 2021 order failed to “sustain” any
objection raised by Akerman at the March 2021 hearing, “meaning that its
entire privilege log was rejected.” From that assertion, the wives ask us to
determine the trial court properly found a waiver of the privilege. Based
on our review of the hearing transcript and the April 2021 order, we decline
the invitation. Neither reveals a specific ruling that the privilege was
waived by Akerman filing an untimely or inadequate privilege log.
After the Second Akerman Subpoena was served on Akerman, the wives
moved to compel Akerman to produce the contested ICD Entities’
documents. A month before the hearing, the ICD Entities were joined as
parties and appeared at the hearing. Prior to the hearing, the ICD Entities
filed the CFO’s declaration stating the ICD Entities did not waive the
attorney-client privilege as to the documents sought by the subpoena and
9
confirming that neither Seth nor Bradley unilaterally control the
management of the ICD Entities. 4
To the extent the April 2021 order constitutes an implied determination
that the trial court found a waiver of the privilege by the failure to timely
file a privilege log, we are satisfied such a determination departed from the
essential requirements of law because it ignored that a privilege log was
timely filed in February 2021 as to the disputed documents. If the order
determined a waiver based on an inadequate privilege log, then the order
again departed from the essential requirements of law because it did not
afford the ICD Entities the opportunity to file an adequate log. See
Sedgwick, 163 So. 3d at 1254 (quashing an order determining privilege
was waived by counsel filing an insufficient detailed privilege log where the
log was not produced in response to a trial court order and could have
been amended to cure any defects had counsel been given that
opportunity).
Waiver Based on Orders Entered in 2020
Next, the wives argue that the purported finding of complete waiver at
the March 2021 hearing on the First Akerman Subpoena was merely an
extension and continuation of 2020 orders entered by Judge Burton
regarding production of the same contested documents directly from Seth.
The premise of the argument is that because Seth raised other objections
to the production, but never specifically asserted an attorney-client
privilege, the privilege was completely waived as to the ICD Entities. That
argument travels on the same faulty premise that Seth, singularly, had the
management authority to waive the Entities’ privilege. Thus, we reject this
argument for the same reasons addressed above.
Failure to Identify the Scope of Waiver
“[I]f attorney-client privilege is waived regarding a certain matter, the
waiver is limited to communications on the same matter.” Alliant Ins.
Servs., Inc. v. Riemer Ins. Grp., 22 So. 3d 779, 781 (Fla. 4th DCA 2009)
(citations omitted). “If the parties disagree as to the scope of the privilege
waiver, a trial court must delineate the scope of the waiver before it may
compel discovery of information.” Id.
4Nothing in the record shows Bradley consented to a waiver of the privilege on
behalf of the ICD Entities to support an argument that the prior waiver by Seth,
coupled with Bradley’s consent, constituted a vote of a majority of either the
members or the managers.
10
In the instant case, at both the March 2021 and October 2021 hearings,
the husbands and Akerman clearly disputed any waiver of attorney-client
privilege by the ICD Entities. At the October 2021 hearing, the ICD Entities
clearly disputed any waiver had occurred, as well as the scope of any
waiver.
Our review of the transcripts of both hearings leads us to conclude the
trial court made unclear or confusing statements as to the scope of the
waiver. Review of the April 2021 and January 2022 orders reveal no clear
statement of the scope of any waiver. Thus, the trial court departed from
the essential requirements of law by failing to identify the scope of any
waiver of the privilege.
Failure to Conduct an In Camera Review
For over thirty years, we have stated: “If a party seeks to compel the
disclosure of documents that the opposing party claims are protected by
attorney-client privilege, the party claiming the privilege is entitled to an
in camera review of the documents by the trial court prior to disclosure.”
Id. (citing Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584
So. 2d 1128, 1128–29 (Fla. 4th DCA 1991)); see also RC/PB, Inc. v. Ritz-
Carlton Hotel Co., L.L.C., 132 So. 3d 325, 327 (Fla. 4th DCA 2014) (finding
an in camera inspection was warranted before compelling production of
documents to which an alleged attorney-client privilege is asserted).
The Florida Supreme Court and our sister districts agree. See
Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla.
2011); Am. Home Assurance Co. v. Sebo, 324 So. 3d 977, 982 (Fla. 2d DCA
2021); Varela v. OLA Condo. Ass’n., Inc., 279 So. 3d 266, 267 (Fla. 3d DCA
2019); Butler v. Harter, 152 So. 3d 705, 714 (Fla. 1st DCA 2014);
Nationwide Mut. Fire Ins. Co. v. Hess, 814 So. 2d 1240, 1243 (Fla. 5th DCA
2002).
The wives contend the trial court did not fail to conduct an in camera
review because neither Akerman nor the husbands submitted documents
for a review as verbally ordered by the trial court at the March 2021
hearing. We are not persuaded by the wives’ argument. At the hearing,
redacted records produced by Akerman in response to the subpoena were
discussed. To resolve whether the redactions were proper, the trial court
verbally ordered Akerman to submit unredacted documents to the court
and further ordered Michelle to provide a list of names of people or entities
mentioned in the documents that she contended would “raise a red flag”
that the document was pertinent to the divorce proceeding. However, after
alluding to the verbal order regarding the review process for the redactions,
11
the April 2021 order stated that, after the hearing, the parties resolved the
redaction issue, and “[a]s such, the redaction pronouncement by this
Court and the protocol for the Court to review the same is moot.” 5 Thus,
it appears that as of the date the April 2021 order was entered, there was
no requirement or need for the submission of documents to conduct an in
camera review.
Conclusion
The ICD Entities will suffer irreparable harm that cannot be remedied
on appeal of a final order if they are compelled to produce attorney-client
privileged materials pursuant to the First and Second Akerman
Subpoenas or similar discovery requests served on the husbands. Having
determined the trial court departed from the essential requirements of law
in entering the January 24, 2022 orders, we grant the petitions and quash
the orders. We remand the case to the trial court to conduct an in camera
review of the disputed ICD Entities documents to consider whether:
(1) the communication would not have been made but for the
contemplation of legal services;
(2) the employee making the communication did so at the
direction of his or her superior;
(3) the superior made the request of the employee as part of
the entity’s effort to secure legal advice or services;
(4) the content of the communication relates to the legal
services being rendered, and the subject matter of the
communication is within the scope of the employee’s
duties; and
(5) the communication is not disseminated beyond those
persons who, because of the Entity’s structure, need to
know its contents.
5We also note that the wives’ response to the petition does not assert the wives
complied with the verbal order to supply the list of names which would “raise a
red flag.” We see no reason to fault one party with noncompliance with a verbal
order when it is not clear the other party complied.
12
See Deason, 632 So. 2d at 1383. We also direct the trial court to delineate
in a written order the scope of any waiver of the attorney-client privilege
the trial court determines applicable during the proceedings on remand. 6
Petitions granted, orders quashed, and case remanded for further
proceedings.
LEVINE and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
6 We note that on the same day the two orders on review were rendered, the ICD
Entities filed a lengthy privilege log, which was not reviewed by the trial court
prior to issuing the January 24, 2022 orders on review. We express no opinion
regarding whether the January 24, 2022 privilege log is pertinent to the
determination of the scope of any waiver of privilege.
13 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482571/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRENDA FAYE ALIZZI,
Appellant,
v.
JOSEPH BRADFORD ALIZZI,
Appellee.
No. 4D22-1183
[November 9, 2022]
Appeal of nonfinal order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Laura Johnson, Judge; L.T. Case No.
502020DR007608MB.
James D. Tittle of Tittle, Kairalla & Logan, PL, West Palm Beach, for
appellant.
Abigail Beebe of Beebe Armstrong, LLP, West Palm Beach, for appellee.
GERBER, J.
The wife appeals from the circuit court’s order granting in part and
denying in part her amended motion for temporary relief. Although the
wife sought $10,174.00 in temporary monthly support, the circuit court
directed the husband to pay the wife only $1,494.00 in temporary monthly
support. The circuit court also wholly denied the wife’s request for the
husband to pay the wife’s temporary attorney’s fees and costs, which had
totaled $128,798.12 by the time of the temporary relief hearing. The wife
argues both rulings were in error. Although we reverse both rulings, the
relief which we grant is not as great as the relief which the wife seeks.
Procedural History
The parties had a twenty-three-year marriage. The parties separated
when they were in their late sixties. Before the parties’ separation, they
had owned a successful restaurant and had lived in an expensive home.
Upon the parties’ separation, the wife moved into the three-bedroom home
of her daughter from a previous marriage.
The parties had been separated for sixteen months by the time the
circuit court heard the wife’s amended motion for temporary relief. During
that hearing, the wife testified as follows. When the parties separated, she
retained an attorney and a forensic accountant for the ensuing dissolution
action. At that time, her liquid assets consisted of $82,000 in two checking
accounts and $215,000 in her IRA.
Sixteen months later, by the time of the temporary relief hearing, the
wife had paid a total of $128,000 in attorney’s fees and forensic accounting
fees. The wife also had withdrawn $75,000 from her IRA to use towards
her daughter’s down payment on a larger four-bedroom house in which
she, her daughter, and her daughter’s two sons would live. Those and
other expenses had reduced the wife’s liquid assets to approximately
$10,000 in her checking accounts and $72,000 in her IRA.
The wife also had incurred a $40,911 tax penalty for withdrawing funds
from her IRA. The wife further owed another $17,000 in attorney’s fees
and $6,300 in forensic accounting fees. The wife’s health insurance also
cost $781 per month, and she paid $1,800 in monthly rent and utilities to
her daughter. The wife’s only income was from Social Security and a
pension which combined to provide $3,424 per month. The wife testified
she required the husband’s support to enable her to live in the manner
which she had enjoyed before the separation.
The wife’s forensic accountant testified the wife’s net worth was
approximately $36,000. The accountant further determined the wife’s
financial needs, after offsetting income, was $10,174 per month, including
$7,000 for monthly rent for her own furnished apartment. However, the
accountant conceded those amounts were not the wife’s actual expenses,
but were anticipated expenses based on her historical lifestyle and
expenses before the parties’ separation.
The husband’s forensic accountant testified that, pursuant to the wife’s
second amended financial affidavit, her actual expenses totaled $6,858 per
month. The husband’s accountant agreed with the wife’s income
calculation.
After the hearing, the circuit court entered a written order granting in
part and denying in part the wife’s amended motion for temporary relief.
The circuit court began by finding “[t]here is no question that the Husband
has the ability to pay temporary support.” The circuit court then made
findings regarding the wife’s income which mirrored the amounts to which
the wife and the accountants had testified. However, regarding the wife’s
needs, the circuit court concluded, in pertinent part:
2
In determining whether and to what extent an award of
temporary alimony is proper, the Court is to look at the Wife’s
actual need and the Husband’s ability to pay, taking into
account the parties’ standard of living, the parties[’] ages, the
employment history and ability of the parties, as well as the
other factors under Florida Statute Section 61.08.
The Wife has included in her “needs” extras, gifts, expenses
she is not actually incurring and other items not appropriate
for purposes of Temporary Relief.
….
Although temporary awards of alimony are within the trial
court’s broad discretion, they must be supported by
competent, substantial evidence that demonstrates the actual
need for support and the paying spouse’s ability to pay.
The temporary alimony request in this case is not
accompanied by any evidence concerning the Wife’s actual
need for this award of temporary support.
….
Applying the Wife’s net income … pursuant to the Wife’s
Second Amended[] Financial Affidavit … the Court finds the
Wife actual needs to be $1,494.00 per month for purposes of
temporary alimony.
(paragraph numbers and internal citations omitted).
The circuit court also concluded the wife had failed to present
competent substantial evidence that she had a need for the husband to
pay her temporary attorney’s fees or costs. The circuit court reasoned, in
pertinent part: “[T]he Wife has utilized funds available to her for both her
actual needs and attorney’s fees and costs, diminishing her available
assets and income during the pendency of this litigation, while gifting …
$75,000.00 to her adult child[].” The circuit court added the following
finding to support its conclusion: “[T]he Wife’s three (3) financial affidavits
all indicate her net worth to be in excess of $3.8 [million].”
At the end of its order, the circuit court added that it had “the ability
and discretion to determine whether or not to award any retroactive …
support or fees to the Wife once the Court is able to assess the Wife’s need
after a determination of the ultimate issues in this matter.” Thus, the
3
circuit court “reserve[d] jurisdiction with regard to the issue of retroactive
alimony and retroactive attorney’s fees and costs.”
This Appeal
This appeal followed. The wife argues the circuit court erred in: (1)
directing the husband to pay the wife only $1,494 in temporary monthly
support; and (2) wholly denying the wife’s request for the husband to pay
the wife’s temporary attorney’s fees and costs.
We review a circuit court’s decision on temporary spousal support and
temporary attorney’s fees and costs for an abuse of discretion. Trainor v.
Trainor, 199 So. 3d 523, 524 (Fla. 4th DCA 2016). Further, a temporary
relief award must be supported by competent, substantial evidence. Van
Maerssen v. Gerdts, 213 So. 3d 952, 953 (Fla. 4th DCA 2017).
1. Temporary Monthly Support
On the temporary monthly support issue, we agree with the circuit
court’s finding that the wife’s requested financial need of $10,174 per
month, including $7,000 for monthly rent, was not supported by
competent substantial evidence. As the wife’s forensic account candidly
acknowledged, those amounts were not based on the wife’s actual
expenses, but the wife’s anticipated expenses. Cf. Ard v. Ard, 208 So. 3d
1288, 1288 (Fla. 1st DCA 2017) (reversing temporary alimony award where
the award was based on anticipated household expenses which the wife
testified she would incur when she moved from her mother’s home, but no
evidence existed as to when this move, with its corresponding expenses,
was to occur). The wife has not resided in, nor did the evidence indicate
she will reside in, a furnished rental apartment which would cost $7,000
per month. Instead, the wife chose to give her daughter $75,000 towards
a down payment on a larger four-bedroom house in which both of them
now reside, and the wife is paying her daughter $1,800 monthly for rent
and utilities.
The wife’s argument that she was entitled to additional temporary
support solely based upon the standard of living during the marriage lacks
merit. See Donoff v. Donoff, 940 So. 2d 1221, 1225 (Fla. 4th DCA 2006)
(“The standard-of-living is not a super-factor in setting the amount of
alimony—trumping all others. … When the living standard during
marriage was significantly high and the payor has the ability to pay more
than minimum wage (so to speak), its purpose is to avoid having alimony
set at bare subsistence levels.”).
4
Although we agree with the circuit court’s finding that the wife’s
requested financial need of $10,174 per month was not supported by
competent substantial evidence, we see no competent substantial evidence
in the record to support the circuit court’s ruling directing the husband to
pay the wife only $1,494 in temporary monthly support. As the husband’s
forensic accountant testified, pursuant to the wife’s second amended
financial affidavit, her expenses totaled $6,858 per month. Also, the
husband did not dispute that the wife’s only income was from Social
Security and a pension which combined to provide $3,424 per month.
Thus, based on the circuit court’s findings that the wife had a need for,
and the husband had the ability to pay, temporary monthly support, the
circuit court’s ruling should have directed the husband to pay the wife at
least $3,434 in temporary monthly support.
For this reason, we reverse the circuit court’s temporary monthly
support award of $1,494, and remand for the circuit court to enter a
temporary monthly support award of $3,434, retroactive to the date of the
circuit court’s order on the wife’s amended motion for temporary relief. If
further discovery reveals, or a final disposition determines, that the
temporary support order is inequitable or based upon improper
calculations, any inequity can be resolved in the final judgment, after a
full and fair opportunity to be heard. Ghay v. Ghay, 954 So. 2d 1186,
1190 (Fla. 2d DCA 2007).
2. Temporary Attorney’s Fees and Costs
We also must reverse the circuit court’s denial of the wife’s request for
the husband to pay any of the wife’s temporary attorney’s fees and costs.
Ordinarily, we would have affirmed the circuit court’s denial of
temporary attorney’s fees and costs, if the circuit court had determined
the wife failed to present competent substantial evidence that she had a
need for the husband to pay her temporary attorney’s fees or costs. See
Von Baillou v. Von Baillou, 959 So. 2d 821, 823 (Fla. 4th DCA 2007) (“If one
party has no financial need for fees, the other party cannot be compelled
to pay them solely because his or her sizeable assets minimize the financial
strain of such a payment.”).
However, what gives us pause here is that the circuit court, in
concluding the wife had failed to present competent substantial evidence
that she had a need for the husband to pay her temporary attorney’s fees
or costs, added the following finding to support its conclusion: “[T]he
Wife’s three (3) financial affidavits all indicate her net worth to be in excess
of $3.8 [million].”
5
A review of the wife’s financial affidavits indicates that the wife’s
reported $3.8 million net worth was comprised of the jointly titled marital
home—valued at approximately $3.5 million—which the husband
continued to occupy after the parties’ separation, and other alleged marital
assets. Because those assets are not available to the wife as sources to
pay her attorney’s fees and costs, the circuit court erred in considering
those assets in denying the wife’s request for the husband to pay any
portion of the wife’s temporary attorney’s fees and costs. See Kelly v. Kelly,
491 So. 2d 330, 330 (Fla. 1st DCA 1986) (“[W]e find that the trial court
abused its discretion in failing to award the wife an attorney’s fee. … The
majority of her property award does not become liquid until the marital
home is sold. Without liquid assets, she is in a substantially worse
financial position in the short run than the husband.”); cf. Hasson v.
Hasson, 339 So. 3d 1006, 1008 (Fla. 4th DCA 2022) (“While a court is not
prevented from considering non-liquid assets when determining ability to
pay temporary fees, here, the court did not make sufficient findings
showing the husband could convert these assets to cash in order to pay
the wife’s fees within the time frame ordered[.]”).
Thus, we remand for the circuit court to consider only the wife’s
available assets in determining the wife’s request for the husband to pay
the wife’s temporary attorney’s fees and costs. Nothing in this opinion
should be interpreted as suggesting the circuit court’s ruling on remand
on this issue.
Reversed and remanded for proceedings consistent with this opinion.
MAY and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
6 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482574/ | IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 49873
In the Matter of John Doe I and John )
Doe II, Children Under Eighteen (18) ) Filed: November 9, 2022
Years of Age. )
) Melanie Gagnepain, Clerk
STATE OF IDAHO, DEPARTMENT OF )
HEALTH & WELFARE, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Petitioner-Respondent, ) BE CITED AS AUTHORITY
)
v. )
)
JOHN DOE (2022-28), )
)
Respondent-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Third Judicial
District, State of Idaho, Canyon County. Hon. Shane Darrington, Magistrate.
Judgment terminating parental rights, vacated and case remanded.
Aaron J. Bazzolli, Canyon County Public Defender; Alex W. Brockman, Deputy
Public Defender, Caldwell, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John T. Spalding, Deputy Attorney
General, Caldwell, for respondent.
________________________________________________
LORELLO, Chief Judge
John Doe (2022-28) appeals from the judgment terminating his parental rights. For the
reasons set forth below, we vacate the judgment terminating Doe’s parental rights and remand for
further proceedings.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Doe is the father of the two minor children in this action. The children were born in 2014
and 2016. The children were placed into foster care in October 2020 following their mother’s
1
arrest on an outstanding warrant. Temporary custody of the children was awarded to the Idaho
Department of Health and Welfare. Ultimately, the Department filed a petition to terminate Doe’s
parental rights. Doe was incarcerated at the time of the evidentiary hearing and had been since
November 2019. Doe is eligible for parole in October 2022 but, if not paroled, he could remain
incarcerated until November 2026.
In March 2022, the magistrate court held an evidentiary hearing on the petition to
terminate. The magistrate court concluded that clear and convincing evidence showed that Doe
“has been incarcerated and is likely to remain incarcerated for a substantial period of time during”
the children’s minorities. In arriving at this conclusion, the magistrate court considered Doe’s
prior period of incarceration as well as the likely period of incarceration remaining. The magistrate
court also concluded that clear and convincing evidence showed that termination is in the best
interests of the children and terminated Doe’s parental rights.1 Doe appeals.
II.
STANDARD OF REVIEW
On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable inferences
in support of the trial court’s judgment when reviewing an order that parental rights be terminated.
Id. The Idaho Supreme Court has also said that the substantial evidence test requires a greater
quantum of evidence in cases where the trial court’s finding must be supported by clear and
convincing evidence than in cases where a mere preponderance is required. State v. Doe, 143
Idaho 343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally understood
to be evidence indicating that the thing to be proved is highly probable or reasonably certain. Roe
v. Doe, 143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the trial court’s decision must
be supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d at 600.
1
The mother’s parental rights were also terminated but are not at issue in this appeal.
2
III.
ANALYSIS
Doe asserts the magistrate court erred in concluding that he had been incarcerated and is
likely to remain incarcerated for a substantial period of time during the children’s minorities and
that termination is in the best interests of the children. The Department concedes that, in
concluding there was a statutory basis for termination, the magistrate court “cited” to case law that
has been “overruled.” Nonetheless, the Department responds that Doe invited the error and
forfeited appellate review of the error by failing to provide cogent argument and by not arguing
the correct standard of review. The Department further responds that substantial and competent
evidence supports the magistrate court’s finding that termination is in the best interests of the
children. Because the magistrate court erred by aggregating Doe’s past period of incarceration
with his likely future period of incarceration, we vacate the judgment terminating Doe’s parental
rights and remand for further proceedings. As such, we do not address whether the magistrate
court erred in concluding that termination is in the best interests of the children.
Idaho Code Section 16-2005(1) authorizes a trial court to terminate parental rights if
termination is in the best interests of the child and one or more of the listed conditions exist. One
such condition is when a “parent has been incarcerated and is likely to remain incarcerated for a
substantial period of time during the child’s minority.” I.C. § 16-2005(1)(e). This requires a trial
court to make two factual findings: “(1) the parent has been incarcerated; and (2) the parent is
likely to remain incarcerated for a substantial period of time during the child’s minority.” Idaho
Dep’t of Health & Welfare v. Doe (2016-14), 161 Idaho 596, 602, 389 P.3d 141, 147 (2016)
(internal quotations and brackets removed). The likely period of incarceration remaining is
measured from the date of the evidentiary hearing regarding termination to the time when the
parent is likely to be released. See id. at 603, 389 P.3d at 148. There is no bright-line rule to
determine what constitutes a substantial period during a child’s minority. Idaho Dep’t of Health
& Welfare v. Doe (2010-28), 151 Idaho 605, 610, 261 P.3d 882, 887 (Ct. App. 2011). Rather,
whether a likely period of future incarceration is for a substantial period during the child’s minority
is determined on a case-by-case basis, applying a definition of “substantial” meaning important,
essential, or considerable in quantity. Id. In this analysis, a trial court may consider numerous
factors including, but not limited to: “the age of the child; the relationship, if any, that has
3
developed between the parent and the child; and the likely period of time that the parent will remain
incarcerated.” In re Doe (2014-26), 158 Idaho 548, 552, 348 P.3d 163, 167 (2015). On appeal,
there is no dispute that the magistrate court found that Doe had been incarcerated prior to the
evidentiary hearing on the petition to terminate his parental rights, satisfying the first required
finding. Doe’s argument on appeal centers on the second required finding, which is that a parent
is likely to remain incarcerated for a substantial period of time during the child’s minority.
Doe asserts the magistrate court erred by aggregating his past period of incarceration with
his likely future period of incarceration and then concluding that the aggregate period of
incarceration was a substantial period during the children’s minorities. A trial court errs by
considering the “aggregate duration of [a parent’s] incarceration, rather than the time [the parent]
may be required to serve subsequent to the date of the evidentiary hearing,” when determining the
second required finding under I.C. § 16-2005(1)(e). Doe (2016-14), 161 Idaho at 603, 389 P.3d at
148. As the Department concedes on appeal, Doe (2016-14) overruled the portion of
Doe (2010-28) that interpreted I.C. § 16-2005(1)(e) as requiring consideration of both the prior
period of incarceration and the likely time remaining. See Doe (2016-14), 161 Idaho at 602, 389
P.3d at 147.
In arriving at its decision, the magistrate court found that Doe had been incarcerated since
the children were three and four years old, meaning the children would be six and seven when Doe
would be eligible for parole but would be ten and eleven if he served his entire sentence. The
magistrate court found that “those age ranges encompass a great portion of the children’s formative
years.” Notably, these “age ranges” include the time Doe was incarcerated prior to the evidentiary
hearing. As for the possibility of parole, the magistrate court did not find credible Doe’s testimony
that he would be granted parole in October 2022. Instead, the magistrate court found that Doe’s
“history tends to show he will not ultimately have the strength of will necessary to secure parole.”
The magistrate court further observed that Doe’s “period of incarceration both prior to trial and
prior to any release makes up a large majority of the percentage of the children’s lives to date” and
that this “percentage will only increase if [Doe] fails to parole as hoped.” These findings show
that the magistrate court aggregated Doe’s past period of incarceration with the likely period of
incarceration remaining after the evidentiary hearing.
4
The magistrate court also considered other factors. Specifically, the magistrate court found
that it would take at least a year after Doe’s release from incarceration for him to be ready for the
children to return to his custody, that the children were not in his custody for sixteen months during
a prior child protection case, and that “the ages in question are perhaps the most formative in a
person’s life.” After reviewing all these factors, the magistrate court concluded that “the likely
period of incarceration [is] a substantial period of the children’s minorit[ies].” Notably, this
conclusion does not qualify the word “incarceration” with the word “remaining,” again indicating
that the magistrate court considered Doe’s aggregate period of incarceration, not the likely period
of incarceration remaining. By aggregating Doe’s past period of incarceration with the likely
period of incarceration remaining and considering this aggregate period in determining whether it
was a substantial period during the children’s minorities, the magistrate court erred.
The Department advances several reasons why we should disregard this error. First, the
Department contends that Doe invited the error. The doctrine of invited error applies to estop a
party from asserting an error when his or her own conduct induces the commission of the error.
Thomson v. Olsen, 147 Idaho 99, 106, 205 P.3d 1235, 1242 (2009). One may not complain of
errors one has consented to or acquiesced in. Id. In short, invited errors are not reversible. Id.
The purpose of the invited error doctrine is to prevent a party who caused or played an important
role in prompting the court to take action from later challenging that decision on appeal. State,
Dep’t of Health & Welfare v. Doe (2020-33), 168 Idaho 105, 109, 480 P.3d 143, 147 (Ct. App.
2020). The Department notes that Doe cited to Doe (2010-28) in his written closing argument to
the magistrate court. Doe, however, did not cite Doe (2010-28) for the proposition that a parent’s
prior period of incarceration should be a factor in determining the second finding required by I.C.
§ 16-2005(1)(e). Instead, Doe cited the opinion to show that I.C. § 16-2005(1)(e) is a statutory
basis for termination, that the statute “does not provide a bright line-rule for a percentage of a
child’s minority that a parent be incarcerated,” and that the opinion factored in the time it would
take the parent after release from incarceration to be “able to provide a safe and stable home
environment.” Thus, the citation to Doe (2010-28) did not invite the error.
The Department also asserts Doe invited the error because he argued to the magistrate court
that the period of incarceration (including both the prior period and the future likely remaining
period) was “far less than a substantial period of the children’s minorit[ies].” Arguing an incorrect
5
legal standard, by itself, does not preclude review of a trial court’s adoption of that incorrect legal
standard. See Doe (2016-14), 161 Idaho at 602, 389 P.3d at 147 (noting that, on appeal, “the
parties’ arguments are predicated upon the same erroneous legal standard as the magistrate
applied”). Although Doe’s argument relied on an incorrect legal standard, he did not invite the
magistrate court to conclude that termination was warranted under I.C. § 16-2005(1)(e)--instead,
Doe argued for the opposite result. Because Doe did not invite the magistrate court’s action, he
did not invite the error. Cf. Doe (2020-33), 168 Idaho at 109, 480 P.3d at 147 (holding that a
parent invited an error by stipulating to the magistrate court allowing the parent to testify by video
and to be otherwise present by telephone).
Second, the Department asserts Doe forfeited consideration of the error by failing to
present cogent supporting argument. This Court generally does not address issues not supported
by cogent argument and citation to legal authority, even in a case terminating parental
rights. Idaho Dep’t of Health & Welfare v. Doe (2018-24), 164 Idaho 143, 147, 426 P.3d 1243,
1247 (2018). According to the Department, “the issue in [Doe (2016-14)] was where the
magistrate was ‘focusing,’” but Doe fails to “argue the issue of focus at all.” The Department also
asserts that, in this case, “it is not clear that the magistrate court impermissibly focused on prior
incarceration” but, instead, “most of the findings were forward-facing.” The Department’s
argument, however, relies on an incorrect interpretation of Doe (2016-14). Although the Idaho
Supreme Court used the word “focusing,” Doe (2016-14), 161 Idaho at 602-03, 389 P.3d at 147-48,
it was that trial court’s consideration of the entire period of incarceration--the prior period of
incarceration combined with the likely period of incarceration remaining--that was error, see id.
Notably, the Court in Doe (2016-14) did not engage in the analysis that the Department asserts is
required. There is no discussion in Doe (2016-14) of whether the trial court gave too much weight
to one period over the other. See id. As discussed above, the magistrate court erred by aggregating
Doe’s past period of incarceration with the likely period of incarceration remaining and then
considering whether this aggregate period constituted a substantial period during the children’s
minorities.
Third, the Department argues that Doe forfeited consideration of the error by failing “to
cite a standard of review other than arguing that questions of law are reviewed de novo.” The
Department attempts to fault Doe by asserting that he “took no steps to explain how any error in
6
this case warrants reversal or fails to warrant reversal under the applicable standard of review.”
The Department then cites to authority holding that an appellate court will not consider issues
raised for the first time on appeal, Doe (2016-1) v. Doe, 160 Idaho 854, 860, 380 P.3d 175, 181
(2016), and that an appellant forfeits an issue by failing to provide argument or authority, Idaho
Dep’t of Health & Welfare v. Doe (2011-16), 152 Idaho 263, 267, 270 P.3d 1048, 1052 (2012).
Doe, however, cannot be expected to argue to the magistrate court that its ruling warrants reversal
under a standard of review applicable only on appeal. Consequently, the authority cited by the
Department prohibiting issues from being raised for the first time on appeal is inapposite.
Regarding argument and authority, we disagree that Doe failed to present adequate argument or
authority that the magistrate court’s error warrants reversal under the applicable standard of
review. As is evident from our analysis above, Doe cited authority and argued that the magistrate
court erred by applying an incorrect legal standard. Because Doe’s argument and authority was
adequate for our review, any omission of a relevant standard of review in his appellate briefing
does not result in a forfeiture of the issue. See State v. Jeske, 164 Idaho 862, 870, 436 P.3d 683,
691 (2019) (disavowing an interpretation of Idaho case law that would require “a formalistic
recitation of the standard of review” and observing that the “real concern of this Court is whether
an appellant’s arguments are supported with relevant argument and authority”).
We now turn to several of Doe’s other assertions of error. Doe asserts the magistrate court
erred because, according to Doe, a trial court must consider whether the likely period of future
incarceration would be “a large percentage of the children’s remaining minority.” (Emphasis
added.) In support of his position, Doe cites to an opinion in which the Idaho Supreme Court
disagreed with the Court of Appeals’ holding that “I.C. § 16-2005(1)(e) does not require an
analysis of whether the prospective period of the parent’s incarceration constitutes a substantial
percentage of the time remaining in the child’s minority.” Doe (2016-14), 161 Idaho at 602, 389
P.3d at 147 (quoting Doe (2010-28), 151 Idaho at 610, 261 P.3d at 887). However, the Idaho
Supreme Court did not address whether the period of incarceration must be a certain “percentage
of the time remaining in the child’s minority.” Instead, the Idaho Supreme Court held that,
contrary to the Court of Appeals’ holding, the second finding mandated by I.C. § 16-2005(1)(e)
requires consideration of only the incarceration that a parent “may be required to serve subsequent
to the date of the evidentiary hearing.” Doe (2016-14), 161 Idaho at 603, 389 P.3d at 148. Thus,
7
the Idaho Supreme Court did not require trial courts to consider whether the likely period of
incarceration remaining would be a “substantial percentage of the time remaining in the child’s
minority.” Other than Doe (2016-14), Doe offers no authority in support of his argument that a
substantial likely period of incarceration remaining is determined as a ratio of the amount of time
the child has left as a minor, as opposed to the child’s entire minority. Because the parties have
not provided adequate argument and authority on this issue, and the resolution of this issue is not
necessary on appeal, we decline to address it further. See Doe (2018-24), 164 Idaho at 147, 426
P.3d at 1247.
Doe asserts in a footnote that the magistrate court “likely” erred by failing to apply the
criteria for granting parole listed in Idaho Administrative Procedures Act Rule 50.01.01.250. In
support of his argument, Doe cites to Brauner v. AHC of Boise, LLC, 166 Idaho 398, 459 P.3d
1246 (2020), an opinion concerning a civil action for medical malpractice. Brauner, however,
does not address termination of parental rights or parole eligibility. Because Doe failed to support
his argument with relevant authority, we do not consider this argument further. See Doe (2018-24),
164 Idaho at 147, 426 P.3d at 1247.
Finally, we address what remedy is appropriate. Doe asserts that the magistrate court’s
“error cannot be merely remedied by a remand” to apply the correct legal standard. Instead, Doe
requests that this case be remanded “to proceed under the child-protection-action [sic].”
According to Doe, this remedy is appropriate because there is not substantial and competent
evidence to “support a finding” that Doe was likely to remain incarcerated for a substantial period
during the children’s minorities. We cannot resolve this factual issue on appeal. It is for the
magistrate court to determine, in the first instance, whether Doe’s likely period of incarceration
remaining is a substantial period of time during the children’s minorities. See Doe (2016-14), 161
Idaho at 602-03, 389 P.3d 147-48. Consequently, we vacate the judgment terminating Doe’s
parental rights and remand for further proceedings consistent with this opinion.
IV.
CONCLUSION
The magistrate court erred by aggregating Doe’s previous period of incarceration with his
likely period of incarceration remaining and considering whether the aggregate period constituted
a substantial period during the children’s minorities. Accordingly, the judgment terminating Doe’s
8
parental rights is vacated and the case is remanded to the magistrate court for further proceedings
consistent with this opinion.
Judge HUSKEY and Judge BRAILSFORD, CONCUR.
9 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487268/ | Spruance,. J.,
charging the jury,
Gentlemen of the jury:—The prisoner, Lewis Johns, is charged with the murder of Araminta Jones, commonly known as Minnie Jones, on the night of the seventeenth of July of the present year, on Pine Street near Klund in this city.
The uncontroverted testimony is, that upon the night in question, the prisoner made an assault upon the -said Minnie Jones with a heavy iron stove leg, crushing her skull and inflicting wounds from which within an hour thereafter she died. It is not contended on behalf of the prisoner that the killing of the deceased was excusable or justifiable, or that the circumstances of the case warrant a verdict of manslaughter, but it is insisted on behalf of the prisoner that he is not guilty of murder in the first degree, but is guilty of murder in the second degree only. On the other hand it is insisted by the State that the crime of the prisoner is murder in the first degree. You will thus see that the scope of your inquiry will be limited to the determination of the degree of murder of which the prisoner should be found guilty. For the purpose of aiding you in this inquiry, it is necessary that we should explain to you what, un der the laws of this State, is murder in the first degree and murder in the second degree, and it is quite unnecessary for us to define or explain the crime of manslaughter or the circumstances under which the killing of one human being by another is excusable or justifiable.
Under our law the crime of murder is divided into murder of the first degree and murder of the second degree. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder of either degree. The term malice as here used is not restricted to hatred, spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human *176life which- proceed from a heart void of a just sense of social duty and fatally bent on mischief. Wherever the fatal act is done deliberately, or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.
Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. Express malice aforethought is where one person kills another with a deliberate mind and formed design, which formed design may be manifested in many ways; as, for instance, by lying in wait for the deceased, or by former menaces or threats that disclose a purpose on the part of the accused to commit the act charged, or by a former grudge, ill-will, spite, hatred, or malevolence towards the deceased, or any other circumstances which disclose the purpose or intention of the ■ accused toward his victim at the time when the crime was committed. The deliberate selection and use of a deadly weapon, by which is meant a weapon likely to produce death, is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act, of a deliberate formed design to kill. All homicides with a deadly weapon are presumed to be malicious until the contrary appears from the evidence, and the burden of proof to the contrary lies on the accused. Where the killing by a deadly weapon is admitted or proved, malice aforethought is presumed, in the absence of proof to the contrary, and the burden of showing the contrary is on the accused, as the natural and probable consequences of the act are presumed by law to have been intended by the person using a deadly weapon. If the jury are satisfied from the evidence that the prisoner, when he killed the deceased, intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder in the first degree.
Murder in the second .degree is where the killing was done with implied malice. Implied malice is an inference or conclu*177sion of law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take life, or to perpetrate a crime punishable with death, but where the killing was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter.
If the prisoner deliberately killed the deceased under the impulse of anger, jealously, hatred or revenge, created or incited by his belief or knowledge of the prior infidelity of the deceased, or any prior wrong doing of the deceased, such killing was not only without adequate provocation, but was wilful and malicious, and constituted the crime of murder of the first degree.
The good character of an accused person, when proved, is to be taken in connection with all the other evidence in the case, and is to be given just such weight, under all the facts and circumstances of the case, as in the judgment of the jury it is entitled to.
In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, or a reasonable doubt as to the degree of his crime, such doubt should enure to the benefit of the accused. But such a doubt must not be a mere fanciful, vague or speculative doubt, but a reasonable, substantial doubt, remaining in your minds after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.
Verdict, guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487269/ | Lore, C. J.,
charging the jury:
*179Gentlemen of the jury:—James Adams and Theodore Adams, the defendants, are indicted for murder of the first degree.
The State charges that on the nineteenth day of June of the present year, they so cut and wounded one James Redden with a knife that he died the following day.
"Under this indictment you may find one or both of the defendants guilty of murder of the first degree, or of murder of the second degree, or of manslaughter, or you may find them or either of them not guilty.
It is therefore necessary that you should be instructed as to these three grades of felonious homicide.
Murder of the first degree consists in killing a human being with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death; that is, where the murder is committed with sedate deliberate mind and formed design to take life. Such design may be indicated by the deliberate selection and use of a deadly weapon, by previous quarrels or grudges, by antecedent menaces or threats. It is not necessary that such design to take life should have existed in the mind of the assailant for any considerable time prior to the killing. It is sufficient if it so existed at the time the mortal wound was inflicted.
Murder of the second degree is where there is no such deliberate mind and formed design to take life, but where the killing is malicious, and without justification or excuse; without any provocation, or without sufficient provocation to reduce the homicide to manslaughter. In such case malice is implied by law.
Manslaughter is where the homicide is wilful and unlawful, but is committed under such circumstances of provocation or alleviation as to rebut the implication of malice; as where one in a mutual altercation in the heat of blood, or in a transport of passion upon sufficient provocation, without malice, inflicts a mortal wound without time for reflection or for the passions to cool. In all such cases there must be the absence of a deliberate *180intent to kill; the killing must result from heat of blood or transport of passion.
Bearing these definitions in mind, your inquiry will be of which of these grades, if of any, the defendants are guilty.
The defendants are indicted jointly. You may find one of them or both of them guilty, or one of both of them not guilty of any one of these crimes, if the evidence shall so warrant.
It is not disputed by the defendants that James Redden died on or about the twentieth day of June last from a wound inflicted by a knife as alleged in the indictment; but each defendant claims that he did not inflict the mortal wound but that the other defendant did.
By the statutes of this State, “Every person who shall abet, procure, command or counsel any other person or persons to commit any crime, or misdemeanor, shall be deemed an accomplice and equally criminal with the principal offender.” If from the evidence you shall be satisfied that one of the defendants actually inflicted the wortal wound, and that at that time the other defendant was present abetting, procuring, commanding or counseling him in so doing, the one so abetting would be an' accomplice and equally guilty with the principal under the law. You should, however, be satisfied that such accomplice did or said something showing his consent to the felonious purpose and contributing to its execution.
We have been asked by counsel for the defendants to charge you as to the credit to be given to the dying declaration of James Redden the deceased which has been offered in evidence in this case. In the case of State vs. Frazer, 1 Houst. Cr. Cas., 186, the Court said: “In such a situation and in view of the death, which he fully apprehends, and believes in his own mind to be surely and inevitably approaching and near at hand, the conscious solemnity of the occasion, and his duty to speak the truth and nothing but the truth, is rightly assumed in law to invest his declaration made under such circumstances, with as high a sanction, and as much credibility, as if made under the obligation of an oath duly and formally administered in a court of stice under ordinary circumstances.”
*181These declarations are therefore to be considered and weighed by you as any other testimony, in connection with all the other evidence relating to that subject matter.
The general rule is that drunkenness is no excuse for crime. The question of the degree of the alleged intoxication of the defendants or either of them, at the time of the alleged murder, as well as the condition of mind and mental capacity from that cause, to form a specific intent or deliberate design to kill or stab the deceased with the knife, is to be decided by you upon all the evidence before you on that subject; with the instruction, that you must be satisfied from the evidence that such capacity and intention existed, in order to convict of murder in the first degree.
It is for the jury to determine how much weight and credit is to be given to any confession of the accused, after carefully considering all the circumstances connected therewith.
In like manner, it is for the jury to determine the weight of the evidence as to the alleged flight of the defendant Theodore Adams from the State immediately after the homicide, considering therein his motive and reason .therefor as disclosed by the testimony.
Every accused person is presumed to be innocent of the crime charged until he is proved to be guilty.
It is incumbent upon the State to prove every element of the crime charged.
In murder malice is a material element, and must be proved beyond a reasonable doubt. It may be proved by any and all the circumstances surrounding the case which show that the act complained of was intentional, and was wickedly and recklessly done.
To convict of murder of the first degree express malice must be proved, so as to show that the killing was committed with a sedate deliberate mind and formed design.
To convict of murder of the second degree, such wilful, deliberate and cruel conduct must be proved as to show implied malice.
*182If death is produced by the use of a deadly weapon, great must be the provocation to reduce the homicide from murder to manslaughter.
If the killing takes place in a fight between the parties, to reduce the crime to manslaughter, it should appear from all the circumstances of the case that it was perpetrated in a transport of passion, or in the heat of blood, and upon sufficient provocation, without malice, and without time for the passions to cool. State vs. Harmon, 4 Penn’ll, 506.
Where the testimony is conflicting, it is the duty of the jury to reconcile it if they can; if this can not be done, then they should give credit to such of the testimony as they deem most worthy of belief under all the circumstances.
In order to convict the defendants, or either of them, of any crime, you should be satisfied of their guilt beyond a reasonable doubt. If after a careful and conscientious consideration of all the evidence there remains in your minds a reasonable doubt of guilt, your verdict should be not guilty. Such a doubt, however, should be a reasonable one and not vague, fanciful or speculative.
If the evidence shall so warrant, you may find one of the defendants guilty and the other not guilty, or you may find both of the defendants guilty or both not guilty as you may deem just.
Verdict, guilty of murder in the second degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487270/ | Pennewill, J.:
We think it is not admissible
Petro Ferano, a witness sworn on behalf of the State, testified that on the night of the shooting the first he knew of the trouble was that while he was sleeping, downstairs, Mike, the prisoner, called him from upstairs, saying “Uncle Peter, Uncle Peter, light the lamp because I have got to come downstairs.” The witness continued: “I got up with my night-clothes on and I lighted the lamp, and then Mike came down and I heard his wife and his children hollering, and I said to Mike ‘What is the trouble?’ Mike said, ‘ Keep quiet, Peter. I was cleaning the revolver and the shot went off and I hit my wife in her hand and now I am going for the doctor,’ and he got his coat and went out. So I *214left the lamp downstairs and I ran upstairs because she was hollering ‘Uncle Peter, Uncle Peter.’ She lay on the bed and I said ‘What is the matter?”’
Ball for the defendant here interrupted with an objection to the witness’ stating anything that the deceased said as to the cause of the injury, there being no evidence as to the time that elapsed between the firing of the revolver and the time the witness went upstairs; that such testimony was not admissible therefore as part of the res gestae.
The witness then testified that he did not know how long it was from the time the deceased was hurt until he went upstairs, because he never heard the report of the revolver, but that it may have been five or ten minutes. The witness further stated that it was somewhere around five or ten minutes from the time he went upstairs to the room of the deceased until Destafano came up there. The witness was then asked: “What did this woman say to you when you went into that room?”
(Objected to by counsel for defendant as not part of the res gestae.)
Pennewill, J.:—We think it is too uncertain and vague as to what time had elapsed between the shooting and the conversation that you seek to introduce, and that the question is not admissible.
Q. Did she say whether or not she had been shot?
(Objected to by counsel for prisoner on the same ground as before stated.)
Pennewill, J.:—We sustain the objection.
Alexander Patella, being sworn as a witness on behalf of the defendant, testified that at the time they took the deceased away and put her in the ambulance, she said to the witness “ Godfather, they are going to take me away; I am going to die. You take care of my children.” The witness was then asked the following question: “After she said to you she was going to die and showed the wound, what did you say then to her about how it happened or anything of that kind? ”
(Objected to by the Deputy Attorney-General, because suf*215ficient facts had not been shown to admit the statement as a dying declaration.)
Pennewill, J.:—We think, taking into consideration all this testimony, that whatever she may have said was in contemplation of impending death and under the belief that she would die. We therefore hold that the question is admissible.
A. I asked her what was the trouble and how this happened, and she said that “Mickele was turning the revolver and the shot went off and hit me, and it was an accident.”
Q. What else did she say to you about this shooting just before being taken to the ambulance? A. She said: “Godfather, Mike is not at fault, and I want him not to be arrested and to take care of the children.”
(The above answer is objected to by the Deputy Attorney-General and motion is made to strike it out, on the ground that it is immaterial and states a conclusion of law.)
Pennewill, J.:—We think that part of the answer which refers to her desire not to have the defendant arrested and to take care of her children should be stricken out, but the part in which she says that it was not the defendant’s fault should remain in.
The witness Giocondina Patella, being produced on behalf of the defendant, testified that she saw Kathrina A. Uzzo, the wife of the defendant, in the front room shortly after the shooting, when she said to the witness: “I feel like dying any moment,” and then showed witness the wound, and when asked how it happened, she said, “Godmother, it was an accident. Mike was turning his revolver and the shot went off and hit me.”
The State in rebuttal recalled the witness Peter Ferano and asked the following question: “After you got upstairs where Mrs. Uzzo was, how soon was it before Godmother Giacondina Patella came in?” A. I had no time-piece in my hand, but five or ten minutes.
Q. Did Kathrina A. Uzzo say anything to you about whether or not she was going to die? A. No sir.
Q. What was it this woman said to you?
*216Objected to by Mr. Ball, counsel for defendant, as inadmissible, not being a dying declaration. Hastings, Deputy Attorney-General, stated that the testimony was admissible, being offered for the purpose of contradicting the dying declaration already put in evidence on behalf of the defendant; citing State vs. Lodge, 9 Houst. 542.
Pennewill, J.:—The defendant put in the dying declaration of the deceased, and as she is not here for the pulpóse of cross-examination, in the place of that the State can contradict it by statements which she made about the samé time. It was done in the Fleetwood case. We overrule the objection.
A. I went upstairs in the room and the woman was lying on the bed, and she said “Uncle Peter; Uncle Peter; he killed me; he killed me.”
During the introduction of testimony on behalf of the defendant, six witnesses were asked by defendant’s counsel what, if anything, the wife of the defendant said to them as to how the shot occurred, to which the reply was uniformly made that Mike was not at fault at all and that the shot went off accidentally.
A seventh witness being called by defendant’s counsel and asked the same question, the Deputy Attorney-General objected on the ground that under the rule of Court only six witnesses were allowed to testify upon the same point. Ball, for defendant, contended that while such might be the rule in certain cases, as for instance upon the point of character, yet such a rule was never laid down in a murder case; that where a man was being tried for his life the widest latitude should be and is given by all Courts, in the matter of evidence.
Pennewill, J.:—We know of no distinction having been made in this regard between murder cases and other cases. There must be some limit when it is the identical question, and we think the rule should be enforced in this as in any other case. We sustain the objection.
Pennewill, J., charging the jury:
*217Gentlemen of the jury:—The prisoner, Mickele Uzzo, is charged in this indictment with the crime of murder of the first degree. It is claimed by the State that the defendant, on December 8, 1906, at his home in this City, wilfully and maliciously shot Kathrina A. Uzzo, his wife, with a pistol, thereby causing her death and committing the crime of murder. It is claimed by the defendant that the killing of his wife was not unlawful but entirely accidental.
Under this indictment you may find any one of four verdicts, as the evidence shall warrant: Murder of the first degree, as charged in the indictment;-murder of the second degree; manslaughter; or not guilty.
Murder of the first degree is where the crime is committed with express malice aforethought. Express malice may be defined to be, where one person kills another with a sedate, deliberate mind and formed design; which formed design to kill may be manifested in many ways,.as for instance by lying in wait for the deceased, by antecedent menaces or threats, by former ill-will, secret enmity or sullen malevolence towards the deceased, or by any other circumstances calculated to disclose the inward fatal purpose or intention of the accused towards his victim. If a design or intention to take life be but the conception of a moment, it is sufficient. If the slayer had time for thought and thinking but for a moment, did intend to kill, and in fact did kill, it is just the same in legal contemplation as if he had intended it for a length of time, and killing under such circumstances is held to be both deliberate and premeditated.
In order, therefore, to find a verdict of murder of the first degree, you must be satisfied that the prisoner killed the deceased with express malice aforethought, that is, with a sedate, deliberate mind and formed design to kill.
Murder of the second degree is where the crime is committed with implied malice; that is, where the malice is not express, as in murder of the- first degree, but is an inference or conclusion of law from facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the kill*218ing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter. For example, where the killing was committed without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and wicked indifference to human life, the law implies malice and makes the offense murder of the second degree.
In order, therefore, to find a verdict of murder of the second degree, you must be satisfied that the prisoner killed the deceased with implied malice.
Malice, however, is implied by law from every unlawful and cruel act committed by one person against another, however sudden that may be; for the law considers that he who does an unlawful and cruel act voluntarily, does it maliciously. If death ensues from an unlawful and cruel act of violence on the part of the slayer, in the absence of adequate or sufficient provocation, the law implies that such act was done maliciously, and the crime is murder of the second degree.
Malice is an essential element of the crime charged in this indictment, and must be proved just as any other material element of the charge. Without malice there can be no murder.
Where the killing is shown to have been done with a deadly weapon, such as a pistol, it is presumed to have been done maliciously, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, for the usual and probable consequences of the act are presumed in law to have been intended by the person using the deadly weapon. If death is produced by the use of a deadly weapon, great must be the provocation to reduce the killing from murder to manslaughter.
Manslaughter is where one person unlawfully kills another without malice. For example, where one in a sudden affray, in the heat of blood, or in a transport of passion, inflicts a mortal wound, without time for reflection or for the passions to cool. In order to reduce the crime to manslaughter the provocation must be very great—so great as to produce such a transport of passion as to render the person for the time being deaf to the *219voice of reason. While murder proceeds from a wicked and depraved spirit and is characterized by malice, manslaughter results not from malice but from unpremeditated and unreflecting passion.
Dying declarations are entitled to the same consideration from the jury, and should be given the same weight and credit, whether in favor of the State or the defendant.
In every criminal prosecution the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague, speculative or possible doubt, but a reasonable, substantial doubt remaining in your minds after a careful consideration of all of the evidence; and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case as shown by the evidence.
Now, gentlemen, if you should believe from the evidence that the defendant killed his wife with express malice aforethought—that is, with a sedate, deliberate mind and formed design to kill, your verdict should be guilty in manner and form as he stands indicted; namely, of murder of the first degree. If you should believe that the defendant killed his wife, not with express malice, but with implied malice; that is, not with a delberate mind and formed design to kill, but with a wicked and depraved heart and with a cruel and wicked indifference to human life, your verdict should be guilty of murder of the second degree. If you should believe that the defendant killed his wife unlawfully, but without malice express or implied, your verdict should be guilty of manslaughter.
If you should not be satisfied beyond a reasonable doubt that the defendant killed his wife maliciously or unlawfully, your verdict should be not guilty.
Verdict, not guilty | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487271/ | *492The facts appear in the charge of the Court.
Pennewill, J.
charging the jury:
Gentlemen of the jury:—The prisoner, Frederick Underhill, is charged in this indictment with the murder of Hester Nelson on the tenth day of November last, in the town of Newark in this county.
The uncontradicted testimony shows that the prisoner and Rachael Nelson, the sister of the deceased, had for several years prior to the fatal shooting lived together apparently as husband and wife, and although the sister a short time before the death of Hester obtained a home of her own, the sexual relations between her and the prisoner continued the same as before. That on the day of the shooting the prisoner went to the house of Charles Davis and obtained a revolver, and very soon thereafter proceeded to the home of the aunt of the deceased where her sister then was, and where the deceased soon came. That the prisoner first went on the porch, and seeing Rachael at the window, asked her to come out and go home, which she declined to do. Thereupon he entered the house and, after some words had passed between them, shot her several times; and almost immediately thereafter he turned and shot in the direction of the deceased, which shot entered her breast and killed her almost instantly.
The State claims that the prisoner was angry with the deceased, and had a grudge against her, because she kept a house of ill fame and had enticed or coaxed Rachael there, where she had sexual intercourse with another man; that he shot Hester Nelson deliberately, with express malice aforethought, and therefore the killing of Hester was murder of the first degree.
The prisoner admits that he fired the shot which caused the death of Hester, but claims that he did not intend to kill her'or even knowingly point the pistol in her direction, and that therefore he is not guilty of any crime higher than manslaughter, *493or at the most, murder of the second degree. In other words, he does not deny that he is guilty of some crime, but insists that he is not guilty of murder of the first degree.
It becomes our duty, therefore, to define for you, as clearly as we may, the different kinds of felonious homicide.
Homicide is the killing of one human being by another. Felonious homicide is of three kinds: Murder of the first degree, murder of the second degree, and manslaughter.
Malice is an essential ingredient of the crime of murder of either degree, for without malice there can be no murder. Malice is a condition of the mind or heart. It is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Whenever the fatal act is done deliberately, or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show that it was not done with malice. So much we say in respect to malice generally.
Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating, or attempting to perpetrate, a crime punishable with death. Express malice aforethought exists where one person kills another with a sedate, deliberate mind and formed design; which may be manifested by circumstances disclosing the intention or design, such as lying in wait, antecedent menaces or threats, a former grudge, ill will, spite, hatred, or malevolence toward the deceased, preconcerted plans or the previous procurement or preparation of an instrument or means for slaying or doing great bodily harm to the deceased.
The deliberate selection and use of a deadly weapon is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates in the mind of the person committing the act, a deliberate, formed design to kill; and the burden of showing the contrary is on the accused, as the natural and prob*494able consequences of the act are presumed by the law to have been- intended by the person using a deadly weapon. In order to convict the prisoner in this case of murder of the first degree the jury must be satisfied from the evidence that he had a sedate, deliberate mind and formed design or intention to kill the deceased. But the length of time that such design or intention existed is immaterial. The most sudden and instantaneous acts may be accompanied with circumstances which show that it was the result of a deliberate purpose. The lapse of time need not enter into your consideration, as a necessary element of deliberation, for if the design or intention to take life be but the conception of a moment, it is sufficient. If the slayer had time for thought, and thinking but for a moment, did intend to kill the deceased, it is just the same in legal contemplation as if he had intended it for a length of time, and killing under such circumstances is held to be deliberate and premeditated, and murder of the first degree.
Murder of the second degree is where the killing was done with implied malice. Implied malice is an inference or conclusion of law from the facts proved. If. there was no deliberate mind or formed design to take life, or to perpetrate a crime punishable with death, but the killing was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offence to manslaughter, it would be murder of the second degree. Implied malice being an inference or conclusion of law from the facts proved, it is implied by law from every unlawful, deliberate and cruel act committed by one person against another, however sudden the act may be, for the law considers that one who commits a cruel and unlawful act of violence voluntarily, does it maliciously.
But although where the fact of killing is shown, unaccompanied by circumstances of legal justification,excuse or extenuation, the law presumes that the homicide was committed with malice, until the contrary appears from the evidence, yet it goes no further than to imply malice, and therefore the legal pre*495sumption goes no further in such a case than that the killing is murder of the second degree.
Manslaughter is where one person unlawfully kills another without malice, as where one in a mutual combat, in the heat of blood, or in a transport of passion, upon sufficient provocation, without malice, inflicts a mortal wound without time for reflection or for the passions to cool. In order to reduce a felonious homicide to manslaughter, the provocation must be very great, so great indeed as to produce such a transport of passion as renders the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved spirit and is characterized by malice, manslaughter results from no malignity, but from unpremeditated and unreflecting passion.
Mere words, however offensive, vexatious or opprobrious, are never sufficient to reduce a felonious homicide to manslaughter.
We have been speaking thus far of that kind of manslaughter which the law terms voluntary, and which usually arises from mutual combat or sufficient provocation. But there is another kind of manslaughter which is termed involuntary, and this is where one, in doing an unlawful act, not felonious nor tending to great bodily harm, or in doing a lawful act without proper precaution or requisite skill, undesignedly kills another.
As we have before stated, the prisoner admits that he is guilty of committing an unlawful act, and does not ask or expect you to return a verdict of not guilty. It is your duty, therefore, to determine the grade of the offence of which he is guilty, in accordance with the instructions we have given you. In the discharge of that duty you should not be influenced by any consideration of the punishment which may follow a conviction. It is for you to determine, and declare, of what offence the prisoner is guilty under this indictment, and there your duty ends.
We may say, gentlemen, that you are the exclusive judges of the facts and of the credit due to the witnesses in the case, and subject only to the law as explained to you by the Court *496it is for you to determine according to the evidence of what crime the prisoner is guilty, beyond a reasonable doubt. And we will say that while you must be satisfied of the prisoner’s guilt beyond a reasonable doubt in order to convict him, the law does not mean by reasonable doubt a vague, speculative or mere possible doubt; but a reasonable, substantial doubt remaining in the minds of the jury after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.
If you believe there is any evidence to warrant you in finding that the prisoner in the heat of blood or with sufficient provocation, and without malice, shot the deceased, and at the time had no intention of taking her life; or that the prisoner was at the time engaged in doing an unlawful act not felonious nor tending to great bodily harm; or that he was engaged in doing a lawful act without proper precaution, you may consider whether he is guilty of manslaughter; but if you do not so believe, you should direct your attention to the question whether he is guilty of murder of the first degree or murder of the second degree.
If you are not satisfied that at the time the prisoner shot Hester Nelson he had a deliberate mind and formed design to take her life, but are satisfied that the death of Hester Nelson resulted from an unlawful act of violence on the part of the accused, and that there was no adequate or sufficient provocation therefor, it was murder with implied malice, and your verdict should be not guilty in manner and form as he stands indicted, but guilty of murder of the second degree.
But, if you believe that at the time the prisoner shot Hester Nelson he had, even for a moment, a deliberate mind and formed design to take her life, it was murder with express malice, and your verdict should be guilty in manner and form as he stands indicted, that is, of murder of the first degree.
Verdict, guilty of murder in the second degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487272/ | Boyce J.,
The argument of counsel upon the question now before the Court was interesting and very helpful.
The prisoner admits that he shot the deceased, but he insists that he did it in self-defense.
The State, in support of the objection made to the admissibility of the testimony now offered, urged that the general reputation of the deceased for violence is not in issue, and relied chiefly on a previous ruling of this Court in the case of State vs. Thawley, decided at the April Term, 1845, in Kent County. Chief Justice Booth, speaking for the Court in that case (Harrington, J., being dubitante), said in part: “The testimony offered is the general character of the deceased as a violent man. From the fact that we cannot find any case in the books, where this evidence has been admitted, nor any principle which would admit it, we feel constrained to reject the evidence.” 4 Harr., 526.
So far as we are advised, that ruling has not been questioned or departed from by this Court since its announcement. The Attorney-General conceded that, in nearly all of the State Courts as well as in the Supreme Court of the United States, the rule was, contrary to our own decision, to admit the general reputation of the deceased for violence, if known to the accused, after evidence has been introduced, intended to establish the fact of an actual assault upon the accused. But he suggested that this Court might hesitate to depart from its previous decision.
In the case of Smith vs. United States, 161 U. S. 88, Mr. Justice Gray said: “The main question in controversy at the *129trial was whether the killing of W. by the defendant was in self defense. Upon that question any evidence, which, according to the common experience of mankind, tended to show that the defendant had reasonable cause to apprehend great bodily harm from the conduct of the deceased towards him just before the killing, was admissible; and upon principle, and by the weight of authority, evidence that the deceased was a larger and more, powerful man than the defendant, as well .as evidence that the deceased had the general reputation of being a quarrelsome and dangerous person, was competent, especially if his character in this respect was known to the defendant, which there was evidence in this case tending to show.” And in the case of Upthegrove vs. The State, 37 Ohio State, 662, it was said: “As a general rule, in trials for homicide or felonious assault the character of the person assaulted or killed cannot be shown; for the reason that the law holds it to be as criminal to assault a bad and violent man as a good and peaceable one. But to this rule there is an exception in cases where the plea is self-defense and there is evidence tending to show that the actual or attempted killing took place while the accused was being actually assaulted. * * * The rule allowing evidence of character or general reputation in such cases, brought home to the knowledge of the prisoner, is founded on the clearest principles of reason, and is amply sustained by authority.” 3
Reluctant as we, always, are to depart from a former decision of this Court, we are constrained, in view of the great weight of authority and the sound principle of evidence opposed to the ruling in State vs. Thawley, to disregard that ruling and admit the evidence now offered, it being relevant and material to the issue raised by the plea of self-defense, and proper to be considered by the jury, if they should find from the evidence that an actual assault was first made by the deceased upon the prisoner, in determining whether the prisoner was, at the time of the shooting, in reasonable fear of death or great bodily harm.
The objection to the question now before the Court, is overruled.
*130Boyce, J., charging the jury:
Gentlemen of the jury:—Elwood Wiggins, the prisoner, is charged in the indictment with murder of the first degree.
It is charged that the prisoner shot William Edward Denby with a pistol, in the left side, on or about the twenty-third day of July, A. D. 1907, at or near Brady’s Woods, near Middletown, this County, and that Denby died in consequence of the shot wound, on or about the first day of August following.
The prisoner admits the shooting of Denby as charged, and the death of the latter as the result is not denied.
The prisoner insists that he did the shooting in necessary self-defense.
Homicide is the killing of one human being by another. Felonious homicide is of three kinds: murder of the first degree, murder of the second degree and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the mind or heart. As here used this term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Wherever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence or by inference from the circumstances of the case, that the act was not done with malice.
Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways; as, for instance, by lying in wait for the deceased, or by antecedent menaces or threats that disclose *131a purpose on the part of the prisoner to commit the act charged, or by a former grudge, ill-will, spite, hatred, or malevolence towards the deceased, or any other circumstances which disclose the purpose or intention of the accused toward his victim at the time when the crime was committed. The deliberate selection and use of a deadly weapon is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a deliberate formed design to kill. All homicides with a deadly weapon are presumed to be malicious until the contrary appears by the evidence, and the burden of proof to the contrary lies on the accused. Where the killing by a deadly weapon is admitted or proved, malice aforethought is presumed, in the absence of evidence to the contrary,.and the burden of showing the contrary is on the accused, as the natural and probable consequences of the act are presumed by law to have been intended by the person in using a deadly weapon. If the jury are satisfied from the evidence that the prisoner, when he killed the deceased, deliberately intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder.
Murder in the second degree is where the killing was done with implied malice. Implied malice is an inference or conclusion of law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take life or to perpetrate a crime punishable with death, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter.
Manslaughter is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter, the provocation must be very great—so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved sprit and is characterized by malice, man_ *132slaughter results from no malignity, but from unpremeditated and unreflecting passion.
No looks or gestures, however insulting, no words, however opprobrious or offensive, can amount to a provocation sufficient to excuse or justify even a slight assault. Nor can a slight assault excuse the killing of an assailant with a deadly weapon, so as to reduce the offense from the grade of murder to that of manslaughter.
State vs. Powell, 5 Pennewill 24 (at 37-39).
As has been said,the prisoner admits firing the fatal shot, but seeks to justify it on the ground that he was at the time of the shooting in danger of death or great bodily harm. In other words, he relies upon necessary self-defense. The burden of establishing such a defense to the satisfaction of the jury rests upon the prisoner. The law is that in repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary for that purpose, he becomes the aggressor. If a person is assailed in such a manner as to create in the mind of a reasonable person a belief that he is in danger of death or great bodily harm, it is his duty to retreat, if he can safely do so, or to use such other reasonable means as may be within his power to avoid killing his assailant. No one may take the life of another, even in the exercise of the right of self-defense, unless there is no other available means of escape from death or great bodily harm.
If you are satisfied from the evidence that the deceased firs t attacked the prisoner, and that from the character of such attack, the prisoner had reasonable cause to believe, and did believe, at the time of the shooting, that he was in imminent danger of death or great bodily harm, and that he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased was a justifiable act of self-defense, and the prisoner should be acquitted of any crime whatever.
If you find from the evidence that the deceased did first attack the prisoner and that in addition thereto he had a general reputation for ferocity and violence, known to the prisoner, at *133the time of the shooting, then such a reputation of the deceased is a proper subject for your consideration in connection with the character of the attack, in determining whether, or not, the deceased, by his acts, created in the mind of the prisoner, at the time of the shooting, a reasonable belief that he was in danger of death or great bodily harm. Neither the mere fact that an attack was made upon the prisoner by the deceased, nor the fact that the deceased was a man of general bad reputation for violence, known to the prisoner, or both, would justify the shooting of the deceased, unless the prisoner had reasonable cause to believe and did believe, at the time of the shooting, that he was in imminent danger of death or great bodily harm, and that he had no other reasonable means of avoiding or preventing death or great bodily harm.
A free and voluntary confession is generally deserving of the highest credit, because it is against the interest of the person making it, and is presumed to flow from a sense of guilt. The whole of what the prisoner said on the subject, at the time of making the confession, should be taken together and considered by the jury; but all parts of a confession, whether for or against the prisoner, are not necessarily entitled to equal credit. The prosecution is at liberty to deny or contradict any part of it. In determining the credit to be given to a confession, the jury may reject, as not entitled to belief, such parts of it as are contradictory to other parts of it, or in conflict with facts otherwise proved to the satisfaction of the jury. The jury may believe that part of the confession which charges the prisoner, and reject that which is in his favor, if, under all the circumstances of the case, they find sufficient grounds for so doing. The duty of the jury in respect to the confessions of the prisoner and in respect to his own testimony and the testimony of the other witnesses is precisely the same. They should believe so much of such confessions and testimony as they deem true and worthy of belief, and reject so much of the same as they deem false and unworthy of belief.
You are the judges of the weight of the testimony and the credibility of the witnesses. Where, as in this case, the testimony is *134conflicting, you should reconcile it if you can, but if you cannot do so, you should accept that part of it which in view of all the testimony and surrounding circumstances of the case, you deem worthy of credit, and reject that part which you deem unworthy of credit, having due regard to the apparent intelligence or ignorance of the witnesses, their manner of testifying, their impartiality or bias, if any, and their opportunity of knowing the facts to which they have testified.
Your duty is to determine from the evidence, adduced before you, considered in connection with the instructions of the Court, whether the prisoner is guilty of any, and, if any, of what offense, such as you may find under this indictment, and there your duty ends. In the discharge of this duty you should not be moved by any considerations of the punishment which may follow a conviction.
In every criminal case the accused is presumed to be innocent until his guilt, including every essential element necessary to constitute the crime charged, is proved to the satisfaction of the jury beyond a reasonable doubt.
! Verdict, guilty of murder of the second degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487273/ | Information in the Nature of a Writ of Quo Warranto.
The following agreement was entered into in the above stated case and signed by counsel for the respective parties, viz.:—
“And Now, To-Wit, this fourteenth day of April, A. D., nineteen hundred and three, it is agreed by and between the above named parties, by their respective attorneys, as follows, to-wit: “That the above stated action shall be docketed as of the February Term, A. D. 1903, of the Superior Court of the State of Delaware, in and for New Castle County, the defendants waiving *212the issue, service and return of the rule to show cause why the writ of quo warranto prayed for by the Attorney-General should not be issued, and agreeing that the said writ shall be issued and returned forthwith the defendants waiving'the service of the said writ and appearing gratis.
“It is further agreed that if judgment shall be rendered in said cause after hearing by the Court in Banc no writ of error or other proceeding shall be taken by either party except to enforce said judgment.”
The Court thereupon made the following order:
“And Now To-Wit, this fifteenth day of April, A. D. 1903, it is considered by the Court that the questions of law arising in the foregoing case ought to be heard by the Court in Banc; it is therefore, on the joint application of the parties, ordered by the Court, and they do hereby direct that the same shall be heard by the Court in Banc.
“ (s) Charles B. Lore, C. J.
“ (s) W. C. Spruance, J.
“ (s) Wm. H. Boyce, /.”
The information (omitting the caption) was as follows:
“Herbert H. Ward, Attorney-General of the State of Delaware, who sues for the said State of Delaware in this behalf comes here before the Judges of the Superior Court of the State of Delaware, in and for New Castle County, on this fourteenth day of April, A. D., nineteen hundred and three, at the February Term A. D. nineteen hundred and three of said Court, and gives the Court here to understand and be informed that Jacob H. Lewis and Thomas A. D. Hutson, both of the City of Wilmington and State of Delaware, for the space of one day and upwards now last past have usurped and intruded into the office of members of the Department of Elections for the City of Wilmington; and as such members of said Department are assuming, together with the other members of said Department, to participate in the transfer and registration of voters preparatory to holding a Muni*213cipal Election in the City of Wilmington, and, generally, claim that they are members of the said Department of Elections for the City of Wilmington, with such rights and duties that said defendants are so as aforesaid doing the things aforesaid and assuming the authority and powers aforesaid without legal right in this that there is no authority in law for said doings and assumptions.
“Wherefore, the said Attorney-General prays that the said defendants be required to answer by what warrant they claim the right to participate in said transfer and registration of voters as aforesaid, and that they be adjudged to be so acting and assuming authority without warrant of law, and that they be ousted and altogether excluded from said office and from performing the said duties imposed upon the Department of Elections for the City of Wilmington.
Herbert H. Ward, A ttorney-General. ’ ’
Counsel for defendants filed the following answer:
“And Now, To-Wit, this fourteenth day of April, nineteen hundred and three, come Jacob H. Lewis and Thomas A. D. Hutson, the defendants above named, by Hugh C. Browne, Anthony Higgins and William S. Hilles, their attorneys, and having heard the Information read do complain that under color of the premises in the said Information contained, they are greatly vexed and disquieted, and this by no means justly, because protesting that the said Information and the matters therein contained are by no means sufficient in the law, and that they need not nor are obliged by law to answer thereto, yet for plea in this behalf they say that under and by virtue of the power reposed in him by Chapter 70, Volume 22, Laws of Delaware, the Governor of the State of Delaware did appoint and commission these defendants, who were then and are now residents of the City of Wilmington to be members of the enlarged Department of Elections for the City of Wilmington, and that these defendants are by virtue of the provisions of the laws of the State of Dela*214ware, and their appointment and commission as aforesaid, now and for the space of two years last past have been members of the Department of Elections for the City of Wilmington, and as such of right hold, use and exercise the office of members of said Department, among the rights and duties of which office is the transfer and registration of voters preparatory to holding said Municipal Election, without this that these defendants held, used and exercised, and still do hold, use and exercise the office of members of the said Department without legal right as in the said Information mentioned, all which matters and things these defendants are ready to verify, as the Court shall award.
“Wherefore, they pray that the office of members of the Department of Elections for the City of Wilmington by them above claimed may be adjudged and allowed to them, and that they may be dismissed and discharged by the Court hereof and from the premises above charged against 'them.
William S.-Hilles, Anthony Higgins,
For Defendants.”
Counsel for relator filed a general demurrer to the above answer.
Defendants filed a joinder to said demurrer.
Facts:—Two so-called Departments of Election have been making transfers of registered voters who voted at the last General Election, and who, since that time, have changed their places of residence. Said Departments of Election have done this for the purpose of holding primary elections in the Month of May, A. D. 1903, at which elections will be nominated by different political parties, candidates for various municipal offices, to be voted for at the municipal election held in Wilmington, June the Sixth, A. D, 1903, Said departments have also been making and are still making preparations for the holding of a municipal election in Wilmington, June the sixth, A. D. 1903. The action in this case is one of Quo Warranto against Jacob H. Lewis, and Thomas A, D. Hutson to test their right as members of any *215Department of Elections to hold a municipal election in the City of Wilmington, at the time above mentioned.”
Counsel for the State contended that Jacob H. Lewis and Thomas A. D. Hutson had no right to hold a municipal election in Wilmington, June sixth, A. D. 1903, for the following reasons: “First. The statute under and by which the said Lewis and the said Hutson were appointed as members of the Department of Elections, for the City of Wilmington, was passed by a majority vote, only, and as it was an indirect way of amending the charter of the City, by adding new officials to the City at the time when municipal elections were to be held in said City, it should have been passed by two-thirds vote, to have made it operative.
“Second. The above mentioned Act does not refer at all to municipal elections, but is made in express language to apply to “All general or special elections to be hereafter held in said City. Vol. 22, ch. 70, p. 117, sec. 1.”
“ Third. The Department of Elections which was simply enlarged from three to five members, was and is, a State Department of Elections, and, as such, has no authority whatever to hold Municipal Elections in the City of Wilmington, but only State, County and Special Elections in said City.”
“Fourth. There is no law or laws under and by which, a Municipal Election can now be held in the City of Wilmington, and therefore, no Department of Elections, however in other respects legally constituted and qualified, can hold a Municipal Election in Wilmington on June the sixth, A. D. 1903.”
After hearing argument the Court rendered the following judgment:
“And Now To-Wit, this fifteenth day of April, A. D. 1903, the questions of law arising in this case, directed by the Superior Court, in and for New Castle County, to be heard by the Court in Banc, having been fully argued by counsel of the respective parties and duly considered by the Court, we are of the opinion that the' defendants, Jacob H. Lewis and Thomas A. D. Hutson, are, by virtue of the provisions of the laws of the State of Delaware, and their appointment and commission by the Governor, *216members of the Department of Elections for the City of Wilmington, and, as such, of right hold, use, and exercise the office of members of the said Department, among the rights and duties of which office is the transfer and registration of voters, preparatory to holding the municipal election in said City; and that therefore the demurrer of the plaintiff should be overruled It is ordered that this opinion be certified to the said Superior Court.”
(This was signed by the five Judges sitting.) | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482583/ | J-S23019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW EVAN HOWLAND :
:
Appellant : No. 61 MDA 2022
Appeal from the Judgment of Sentence Entered November 18, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005410-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW EVAN HOWLAND :
:
Appellant : No. 62 MDA 2022
Appeal from the Judgment of Sentence Entered November 18, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005421-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW EVAN HOWLAND :
:
Appellant : No. 63 MDA 2022
Appeal from the Judgment of Sentence Entered November 18, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002475-2021
J-S23019-22
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 09, 2022
Andrew Evan Howland appeals from the judgment of sentence entered
following his jury trial conviction for multiple crimes related to his kidnapping
and sexual abuse of a 13-year-old child and to child pornography. He
challenges the discretionary aspects of his sentence. We affirm.
Howland faced charges on three separate dockets relating to allegations
he removed a 13-year-old child from his1 home in the state of Indiana to a
hotel room in Lancaster, PA, where he committed sex crimes against the child.
Howland was charged with interference with custody of children and
corruption of minors.2 After further investigation, Howland was charged at a
second docket with kidnapping of minor to facilitate felony, unlawful contact
with minor, involuntary deviate sexual intercourse (“IDSI”) with a person less
than 16 years of age, statutory sexual assault, aggravated indecent assault of
a person less than 16 years of age, and indecent assault of a person less than
16 years of age.3
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The child victim is transgender and identifies as male. We will use male
pronouns when referring to the child.
2 18 Pa.C.S.A. §§ 2904(a) and 6301(a)(1)(i), respectively.
3 18 Pa.C.S.A. §§ 2901(a)(2), 6318(a)(1), 3123(a)(7), 3122.1(b),
3125(a)(8), and 3126(a)(8), respectively.
-2-
J-S23019-22
Additional investigation led the discovery of child pornography on
Howland’s Snapchat account. He was charged with four counts of possession
of child pornography and one count of criminal use of communication facility.4
The trial court set forth the facts as follows:
[I]n the fall of 2020 [Howland] began communicating
electronically with the victim about sexual matters.
[Howland] was 38 years old and the victim was only 13
years old. In one Snap Chat video [Howland] is seen telling
the victim that he loves [him]. The victim then sent a naked
photo . . . to [Howland]. Messages between [Howland] and
child revealed that [Howland] planned to pick up the child
from the child’s home.
On December 2, 2020, [Howland] traveled from Lancaster
County to the state of Indiana, picked up the child without
the knowledge or permission of the child’s parents, and
brought that child back to Lancaster. Police were able to
identify [Howland] as the perpetrator based on his Snap
Chat and Facebook accounts, and they were able to locate
him at a hotel in Lancaster through a ping on his phone.
When police arrived at the hotel, they found the victim
inside a room with [Howland]. [Howland] claimed the victim
was his [child]. The victim was not wearing pants. Unused
condoms were found in the hotel room and [Howland]’s car,
while used condoms were found in a garbage bag in
[Howland]’s car. Child pornography was found on
[Howland]’s phone.
The victim testified that they had sexual relations. In his
testimony, [Howland] admitted he knew the victim was only
13 years old and there would be potential legal ramifications
for what he did, he admitted communicating with the child
by Snap Chat and Facebook, admitted receiving images of
the child, admitted talking to [him] about sex and wanting
to feel himself inside [the child], admitted driving to Indiana
to pick up the child, admitted he did not have permission
____________________________________________
4 18 Pa.C.S.A. §§ 6312(d) and 7512(a), respectively.
-3-
J-S23019-22
from the parents, and admitted bringing the child back to
Lancaster.
[Howland] denied having sex with the child, claiming instead
that he masturbated into a condom while at the hotel with
the child. The jury found that [Howland] was not credible in
this regard.
Trial Court Opinion, Feb. 9, 2022, at 6-7 (“1925(a) Op.”). Howland further
testified that the child wanted Howland to take him from his home and that
Howland “didn’t think [the child’s home] was a good environment . . . for [the
child].” Id. at 430.5 A jury convicted Howland of all charges.
The trial court held a sentencing hearing in November 2021. The court
had reviewed the presentence investigation report. Howland’s counsel stated
that Howland suffered from several mental health problems, including
depression, suicidal ideations, and self-harm, and that he had been abused by
older men. Howland spoke at sentencing, stating:
So if the [child’s] family’s testimony in trial was accurate,
then I do truly feel sorry for the emotional stress they went
through.
However, after reading the [Child and Youth Services]
report from last January and seeing [the child] testify in
court, I am glad to see that [the child] has stopped hurting
himself, has stopped trying to commit suicide, he’s been
accepted by his family as he truly is, and even his father
specifically has included [the child] more in activities.
____________________________________________
5 Howland stated “I just felt like the way [the child] was deteriorating and the
reason why he kept saying his mental health was deteriorating was always
because of his family. It was never because of anything that I ever said to
[the child]. It was always because of the way his family treated him, the things
his family would say to him, the way his family would not identify his gender
and sexuality.” N.T., Aug 18, 2021, at 464.
-4-
J-S23019-22
And I am appalled by the horror that Assistant District
Attorney Amy Muller put [the child] through with the
investigation at trial.
N.T., 11/21/21, at 11.
The court stated Howland was the type of person who should not return
to society:
Well, Mr. Howland, I can tell you right now that you are
delusional and that I made that determination at the time
you testified and the record will very accurately reflect that
to any appellate courts. I think any appellate courts that
would look at your testimony and the facts and
circumstances of this case would be absolutely appalled.
And you are the type of person that really, I think most
people would agree, should not ever set foot in our society
again.
Id. at 14-15. Before imposing sentence, the court gave the following reasons
for the sentence:
Mr. Howland, first of all, I have considered all the
information contained within the presentence investigation
report. I’ve read it in full.
I have considered your family history, your mental health
history. And while you have not been formally diagnosed,
you believe you suffer from bipolar disorder and you are
currently prescribed Prospero for depression.
I’ve considered the additional information provided by
[Howland’s counsel] today.
I have considered your history of substance abuse. You
state that you did not use illegal substances. You started
drinking regularly at the age of 21 as an escape mechanism,
but you never felt you were at the point that you could not
stop.
I have considered the arguments of counsel as well as your
testimony at trial and your statement today.
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J-S23019-22
I have considered the penalties authorized by the
Pennsylvania legislature for the crimes committed, the
guidelines of the Sentencing Code, the guidelines
established by the Pennsylvania Commission on Sentencing,
and the applicable mandatory minimum sentences.
I have considered your age. You were born July 27, 1982.
You were 38 years of age when these offenses occurred, an
age of sufficient maturity to understand the significance of
your acts.
I have considered your character and history as disclosed at
trial and in the presentence investigation report as well as
in your statement to the Court today.
I have considered your level of education. You graduated
from Harbor Creek High School in Erie in 2000. There is
nothing to indicate a lack of intellectual ability that would
prevent you from understanding the difference between
right and wrong.
I have considered your work history. You worked at Walmart
in York in 2002 to 2016, and then Target in Lancaster from
2016 to 2020, when you were fired.
I have considered your lack of any prior criminal record.
I have considered your rehabilitative needs.
I have also considered the nature and circumstances of the
offenses for which you have been convicted and, as noted
by the Commonwealth, this was a unanimous verdict on all
counts.
....
I have considered the gravity of the offenses as they relate
to impact on the victim and the victim’s family as well as the
community.
You preyed on a 13-year-old child who was experiencing
emotional issues. You groomed that child. You brought that
child back to Lancaster to sexually abuse and then you did,
in fact, sexually abuse that child. And in your testimony you
actually believed that you were doing the child a favor.
-6-
J-S23019-22
I’ve been doing this for over 30 years. I’ve never come
across somebody like you. You present -- and,
unfortunately, the whole record of the transcript won’t
necessarily reflect how evil you are. You showed absolutely
no remorse at the time of the trial and you showed
absolutely no remorse here today. You are every parent’s
worst nightmare. The gravity of your criminal conduct and
your lack of remorse is immeasurable.
For all of these reasons, the Court believes a sentence of
total confinement is necessary because you are in need of
correctional treatment that can be provided most effectively
by your commitment to an institution.
You are an extreme danger to the community and society
must be protected. Incarceration is warranted because a
lesser sentence will depreciate the seriousness of your
conduct. And there is an undue risk that during a period of
probation or partial confinement you will commit another
crime, particularly as it relates to sexual offenses involving
children.
N.T., Nov. 18, 2021, 19-24.
The court sentenced Howland at the first docket to one to five years’
incarceration for interference with custody of children and three months to
two years’ incarceration for corruption of minors, consecutive to each other.
At the second docket, the court imposed sentences of three to 20 years’
incarceration for kidnapping, five to 20 years’ incarceration for unlawful
contact with minors, 10 to 20 years’ incarceration for IDSI, two to 20 years’
for statutory sexual assault, and five to 10 years’ incarceration for aggravated
indecent assault. The sentences were consecutive to each other and to the
sentences imposed at the first docket. The court found the indecent assault
conviction merged for sentencing purposes.
-7-
J-S23019-22
At the third docket, the court sentenced Howland to three to six years’
incarceration for two of the possession of child pornography convictions, and
one to three years’ incarceration for the two remaining counts of possession
of child pornography. The sentences were concurrent to each other. The court
also imposed a sentence of nine months to two years’ incarceration for
criminal use of communication facility, consecutive to the possession
sentences. The sentences at the third docket were consecutive to the
sentences imposed at the other two dockets. All sentences were within the
Sentencing Guidelines' standard range. The aggregate sentence was 30 to 105
years in prison.
Howland filed a post-sentence motion, arguing the aggregate sentence,
which included consecutive sentences, was unreasonable and manifestly
excessive and not necessary to address the nature and circumstances of the
crime considering the history and character of the defendant and was not
consistent with the protection of the public, gravity of the offense, or
rehabilitative needs of the defendant. The trial court denied the motion.
Howland filed a timely notice of appeal.
Howland raises the following issue:
Was the imposition of eight consecutive sentences on
Information Numbers 5410 and 5420 of 2020 and 2475 of
2021, for an aggregate sentence of 30 to 105 years’
incarceration, manifestly excessive under the circumstances
and an abuse of the court’s discretion, and were both the
minimum and maximum sentences manifestly excessive?
Howland’s Br. at 8.
-8-
J-S23019-22
Howland’s issue goes to the discretionary aspects of his sentence, for
which there is no automatic right to appellate review. Commonwealth v.
Banks, 198 A.3d 391, 401 (Pa.Super. 2018). A defendant may obtain
appellate review of discretionary aspects of sentence only if: (1) the appeal is
timely; (2) the defendant preserved the issues below; (3) the defendant
included in the brief to this Court a Pa.R.A.P. 2119(f) concise statement of
reasons relied upon for allowance of appeal; and (4) the Rule 2119(f)
statement raises a substantial question that the sentence is not appropriate
under the Sentencing Code or is contrary to fundamental sentencing norms.
Id.; Pa.R.A.P. 2119(f).
“A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015) (en banc)
(citation omitted). We make this determination based on the contents of the
Rule 2119(f) statement. Commonwealth v. Mouzon, 812 A.2d 617, 621-22
(Pa. 2002). Only if the appellant has raised a substantial question may we
turn to the merits of the sentencing claims. See id.
Howland filed a timely appeal, preserved the issue in a post-sentence
motion, and included in his brief to this court a Rule 2119(f) statement. In his
Rule 2119(f) statement, Howland claims his sentence of 30 to 105 years’
incarceration was clearly unreasonable and so manifestly excessive that it was
-9-
J-S23019-22
an abuse of discretion. He claims the application of the guidelines was clearly
unreasonable. He challenges the imposition of eight consecutive sentences,
claiming it was excessive and nearly a life sentence. He further claims the
court imposed an excessive sentence without considering Howland’s
rehabilitative needs and mitigating circumstances. Howland’s issue raises a
substantial question. See Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa.Super. 2013) (claim raises substantial question where it argues imposition
of consecutive sentences resulted in excessive sentence and articulates why
consecutive sentences were unreasonable); Commonwealth v. Coulverson,
34 A.3d 135, 143 (Pa.Super. 2011) (finding substantial question raised where
appellant claimed court imposed manifestly excessive aggregate sentence
without considering appellant’s rehabilitative needs).
We will now address the merits of Howland’s sentencing claim. Howland
alleges the “court focused almost exclusively on the severity of [] Howland’s
offense and his lack of remorse.” Howland’s Br. at 19. He argues his aggregate
sentence of 30 to 105 years’ incarceration was manifestly excessive and the
consecutive sentences results in a clearly unreasonable sentence. He claims
the seriousness of the offense “must be considered in perspective,” claiming
he “removed a willing thirteen-year-old child with whom he had been
communicating via social media, believing that he was removing the child from
a situation in which the child was suicidal and desperate.” Id. at 24. He states
that “[a]lthough the child was not old enough to consent to sexual contact,
the sexual contact was not forced.” Id. at 25. He claims the facts, “along with
- 10 -
J-S23019-22
[his] solid work history for the past nineteen years . . . were mitigating factors
which should have been considered.” Id. Howland points out he will be 68
years old when he completes the minimum sentence and the maximum
sentence of 105 years exceeds his lifetime, which, he claims, is “clearly
excessive.” Id. at 26.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Shull, 148 A.3d 820, 831 (Pa.Super. 2016)
(citation omitted). “[A]n abuse of discretion is not shown merely by an error
in judgment.” Id. (citation omitted). “Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,
or arrived at a manifestly unreasonable decision.” Id. (citation omitted).
Where a pre-sentence investigation report exists, we “presume[] that
the sentencing court ‘was aware of the relevant information regarding
defendant’s character and weighed those considerations along with mitigating
statutory factors.’” Commonwealth v. Tirado, 870 A.2d 362, 366 n.6
(Pa.Super. 2005) (citation omitted). “[I]mposition of consecutive rather than
concurrent sentences lies within the sound discretion of the sentencing court.”
See Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super. 2014) (quoting
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008)).
The trial court did not abuse its discretion. The trial court had the benefit
of the PSI, and is presumed to have considered the information it contained,
- 11 -
J-S23019-22
including any mitigating factors and rehabilitative needs. Further, in imposing
sentence, the court stated it had considered, among other things, the
information in the PSI, Howland’s family and mental health history, the
authorized penalties and the sentencing guidelines, Howland’s age, and his
character, history, education, and work history, his lack of a prior record, and
his rehabilitative needs. The court also said it had taken into account the
nature and circumstances of the offense, including that Howland “preyed on a
13-year-old child who was experiencing emotional issues,” groomed the child,
brought the child to Lancaster, and sexually abused him. N.T., Nov. 18, 2021,
at 23. The court pointedly stated that Howland’s testimony at trial showed
Howland believed he was “doing the child a favor.” Id. The court found
Howland to be an extreme danger to the community. It noted that Howland
showed no remorse, was “every parent’s worst nightmare,” and “[t]he gravity
of [his] criminal conduct and [his] lack of remorse is immeasurable.” Id. at
24.
We conclude the court considered all relevant factors and the sentence
imposed was not an abuse of discretion. Contrary to Howland’s contention,
the court considered the facts of the case and Howland’s work history in
imposing sentence. It simply did not view the facts in the same light as
Howland. That the child was allegedly suffering emotionally does not in any
way mitigate Howland’s conduct. As the trial court found, Howland preyed on
and abused the child.
- 12 -
J-S23019-22
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
- 13 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482586/ | J-S23038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN HANNA :
:
Appellant : No. 200 MDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000417-2018
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED NOVEMBER 09, 2022
Appellant, Sean Hanna, appeals from a judgment of sentence of 36 to
84 months’ incarceration imposed after he pled guilty to receiving stolen
property.1 For the reasons set forth below, we affirm.
On April 3, 2018, Appellant was charged with theft by unlawful taking
and receiving stolen property for stealing $27,791 in cash from a home where
he and another person for whom he worked as a helper were providing house
cleaning services. Criminal Complaint. On November 12, 2019, Appellant
entered a negotiated plea of guilty to the charge of receiving stolen property
and the Commonwealth, pursuant to the plea agreement, nolle prossed the
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 3925(a).
J-S23038-22
theft by unlawful taking charge. N.T. Guilty Plea at 4-7; Written Guilty Plea
Colloquy at 1. The only other terms of Appellant’s plea agreement that were
presented to the trial court when Appellant pled guilty and trial court accepted
the plea were that Appellant would be released on unsecured bond pending
sentencing and that the restitution of $27,791 would be imposed as joint and
several. N.T. Guilty Plea at 5, 7; Written Guilty Plea Colloquy at 1. Appellant
at the guilty plea hearing was asked whether he had been promised anything
else in exchange for his guilty plea and answered “No, sir.” N.T. Guilty Plea
at 6.
The offense gravity score for receiving stolen property of more than
$25,000 in value was 6 and the standard range minimum sentence under the
sentencing guidelines for that offense gravity score for a defendant with
Appellant’s prior record score was 27-40 months’ imprisonment. 204 Pa. Code
§§ 303.15, 303.16(a); Guideline Sentence Form. On January 6, 2022, the
trial court sentenced Appellant to 36 months to 84 months’ imprisonment,
within the standard range, with credit for time served prior to Appellant’s
release on unsecured bail, and imposed a $500 fine and $27,791 in restitution
joint and several with any other participants. N.T. Sentencing at 6;
Sentencing Order.2
____________________________________________
2The lengthy delay in Appellant’s sentencing was a result of continuances to
defer sentencing until after a co-defendant’s trial that ultimately did not occur.
N.T. Sentencing at 3-4, 6.
-2-
J-S23038-22
At the sentencing hearing, when the trial court stated the offense gravity
score and applicable sentencing guidelines before imposing sentence,
Appellant stated he thought that there was an agreement for an offense
gravity score of 5 and a 12-to-18-month sentence. N.T. Sentencing at 2.
Appellant’s counsel asserted that the Commonwealth had agreed prior to
Appellant’s guilty plea that the offense gravity score would be reduced if
Appellant provided credible testimony in the prosecution of a co-defendant,
but that the Commonwealth did not go forward with the prosecution of the co-
defendant. Id. at 2-3. The Commonwealth agreed that there was a May 9,
2018 agreement to give Appellant some consideration at sentencing if
Appellant cooperated in that prosecution and in recovering the stolen funds
and provided the trial court with a written stipulation signed by Appellant and
the Commonwealth referencing a plea to receiving stolen property with the
other charge nolle prossed and stating “[c]onsideration at sentencing of
cooperation in attempting recovery and restitution of stolen funds.” Id. at 8-
9; Commonwealth Ex. 1. The Commonwealth advised the trial court that no
prosecution of the co-defendant went forward. N.T. Sentencing at 6.
After imposing sentence, the trial court advised Appellant of his right to
appeal and advised Appellant that if he wished to appeal on the ground that
his guilty plea was not voluntary and knowing or wished to challenge his
sentence on appeal, he must file a post-sentence motion within 10 days. N.T.
Sentencing at 6-8. Appellant then stated that he wanted to appeal
-3-
J-S23038-22
because I wasn’t under -- I didn’t know that I was supposed to be
getting sentenced on such high guidelines. Had I known, I
wouldn’t have even taken the plea. I was under the assumption
that it was 12 to 18 months. I understand that’s not what was
said, but that's what I was under the assumption of.
Id. at 8. Appellant filed no post-sentence motion and file a timely appeal from
the judgment of sentence on February 4, 2022. Docket Entries at 14-15.
Appellant presents the following single issue for our review:
Whether the trial court erred by not enforcing the plea agreement
reached between Appellant and Appellee which would have reduced
Appellant’s offense gravity score and thereby reduced his standard
range sentence.
Appellant’s Brief at 1 (unnecessary capitalization omitted). Appellant is not
entitled to relief on this issue.
A defendant is entitled to enforcement of a plea agreement only where
that agreement has been presented to and accepted by the trial court.
Commonwealth v. Martinez, 147 A.3d 517, 531-32 (Pa. 2016);
Commonwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 1993), limited on
other issue, Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). Where
the record of the defendant’s plea shows that the term that the defendant
seeks to enforce was not a term of the plea agreement that was accepted by
the court, the defendant is not entitled to enforcement of that term.
Commonwealth v. Travaglia, 28 A.3d 868, 893 (Pa. 2011). The record
here is clear that no reduction in offense gravity score or recommendation or
limitation on Appellant’s sentence was part of the plea agreement that was
accepted by the trial court. The only terms of Appellant’s plea agreement that
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J-S23038-22
were presented to the trial court were that the theft charge against Appellant
would be nolle prossed, that Appellant’s bail until sentencing would be
unsecured, and that restitution would be joint and several. N.T. Guilty Plea
at 5, 7; Written Guilty Plea Colloquy at 1. The Commonwealth and the trial
court complied with all of those terms. N.T. Guilty Plea at 5, 7-8; Court
Commitment; N.T. Sentencing at 6; Sentencing Order.
In addition, Appellant stated in both his oral plea colloquy in court and
in his written plea colloquy that he had not been promised anything else in
exchange for his guilty plea. N.T. Guilty Plea at 6; Written Guilty Plea Colloquy
at 2, 4. Indeed, Appellant in his written plea colloquy stated that he had
received no promises or indications concerning the sentence that he would
receive. Written Guilty Plea Colloquy at 2. A defendant is bound by the
statements that he makes during his plea colloquy and cannot assert
challenges to his plea that contradict his statements when he entered the plea.
Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super. 2018);
Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017);
Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002).
Because the plea agreement accepted by the trial court did not include any
reduction in offense gravity score or any provision concerning Appellant’s
sentence other than making restitution joint and several, Appellant was not
entitled to enforcement of any agreement by the Commonwealth concerning
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reduction in the offense gravity score or concerning sentencing consideration
in exchange for Appellant’s cooperation.
Moreover, any claim that the Commonwealth’s agreement made
Appellant’s plea involuntary or unknowing is barred by waiver and would not
provide the relief that Appellant seeks in this appeal. A request to withdraw
a guilty plea on the grounds that it was involuntary or unknowing must be
raised by motion in the trial court in order to be reviewed on direct appeal.
Jabbie, 200 A.3d at 506; Commonwealth v. Rush, 959 A.2d 945, 949 (Pa.
Super. 2008). Although Appellant asserted at the sentencing hearing that his
plea was based on his belief that there was an agreement for a lower sentence
and expressed a desire to appeal his sentence, N.T. Sentencing at 2, 8,3 he
did not request to withdraw his guilty plea or make any motion to withdraw
the plea. Despite the trial court’s specific instruction that he was required to
file a motion challenging the validity of the plea within 10 days if he wished to
assert on appeal that the plea was not knowing and voluntary, id. at 7,
Appellant filed no post-sentence motion and instead filed this appeal without
first seeking to withdraw his plea or seeking any other relief in the trial court.
____________________________________________
3 We note that Appellant’s claim that he expected a sentence of 12 to 18
months is not consistent with his claim that the offense gravity score would
be reduced to 5, as an offense gravity score of 5 has a standard range
minimum sentence of 24 to 36 months for defendants with Appellant’s prior
record score. 204 Pa. Code § 303.16(a).
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Even if the issue were not waived, the relief to which Appellant would
be entitled if he showed that his plea was involuntary or unknowing would be
withdrawal of the plea, not resentencing. Commonwealth v. Hickman, 799
A.2d 136, 143 (Pa. Super. 2002); Commonwealth v. Harris, 620 A.2d 1175,
1181 (Pa. Super. 1993). In this appeal, Appellant notably does not seek
remand to permit withdrawal of his plea, but seeks only resentencing in
accordance with an alleged term that was not part of the plea agreement
accepted by the trial court.
Because the record shows that the alleged agreement concerning
reduction of the offense gravity score was not part of the plea agreement
accepted by the trial court, Appellant is not entitled to specific performance of
that alleged agreement and the trial court did not err in sentencing Appellant
in accordance with the offense gravity score and sentencing guidelines
applicable to Appellant’s offense. We therefore affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
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https://www.courtlistener.com/api/rest/v3/opinions/8482587/ | J-S23020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY EUGENE GRIM :
:
Appellant : No. 59 MDA 2022
Appeal from the Judgment of Sentence Entered October 5, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000201-2021
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 09, 2022
Timothy Eugene Grim appeals from the judgment of sentence entered
after he was convicted of driving under the influence of alcohol and controlled
substances.1 Grim challenges the admission of his statements at trial as well
as the sufficiency and weight of the evidence. He also challenges the
discretionary aspects of his sentence. We affirm.
We glean the following statement of facts from the record, viewed in the
light most favorable to the Commonwealth, as it prevailed at trial. See
Commonwealth v. Talbert, 129 A.3d 536, 542 (Pa.Super. 2015). On
September 30, 2020, around 8 p.m., Denise Natalie heard a “loud, screeching
noise” while walking in her neighborhood. N.T., Trial, 10/1/21, at 4, 5. When
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(d)(3).
J-S23020-22
she turned in the direction of the noise, she saw sparks and a wheel coming
toward her. Id. at 5. She jumped out of the way and then “saw the car parked
there with the wheel off.” Id. Natalie saw a woman get out of the passenger
side of the vehicle and a man, later identified as Grim, “come around the back
from the driver’s side.” Id. Natalie testified that it was not dark outside at the
time. Id. at 6. She heard the male yelling, “I just bought this car. It cost me
$6,000.” Id. at 7. After seeing the male’s reaction, she returned to her home.
Id. at 8, 11.
Trooper John Rayho arrived on the scene later and saw Grim’s vehicle
on a tow truck. Grim was still at the scene. Id. at 13. Trooper Rayho asked
Grim for his identification, insurance, and registration for the vehicle. Id. at
14. Grim replied that he did not have a license. Id. He told Trooper Rayho
that “he was driving around with his girlfriend after just picking up the car
from the dealership.” Id. Grim stated that “[a]fter driving it around for an
hour and a half, he stated that it began to feel like the tire was going flat, and
the next thing he knew the tire came off.” Id. at 15. Trooper Rayho observed
that the vehicle’s “front passenger side tire was completely off, only one of
the axle bolts was still remaining on.” Id. at 19. He also observed that “[i]t
was impossible to determine what had actually caused it to sheer off.” Id.
Trooper Rayho described Grim’s demeanor as “argumentative and
combative.” Id. He testified that Grim “was aggressive and repetitively saying
that he just picked up the car. And he was trying to hurry the investigation
along.” Id. Trooper Rayho asked Grim if he had anything to drink and Grim
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stated that he had a beer earlier. Id. at 17. Trooper Rayho asked Grim to
perform a field sobriety test but “[h]e refused because he said that he was on
pain killers.” Id. Grim also informed Trooper Rayho that his legs were injured
from his time in the army. Id. at 39. Trooper Rayho testified that he asked
Grim to complete a field sobriety test because “[h]is walking was unsure” and
“[h]is overall demeanor was somebody that appeared to be possibly under the
influence of either narcotics or alcohol.” Id.
Trooper Rayho then arrested Grim and transported him to a hospital for
a blood draw. Grim refused the blood draw, stating, “I’m not giving you my
blood because I’m on morphine and Percocet.” Id. at 18. Trooper Grim also
determined that Grim’s license was suspended due to a prior DUI conviction.
Id. at 24. Trooper Grim testified that he did not believe that Grim was able to
operate his vehicle safely. Id. at 32. He also said he had two and a half years
of experience as an officer and had encountered individuals under the
influence of both alcohol and controlled substances. Id. at 17-18.
The Commonwealth also introduced the motor vehicle recording (“MVR”)
into evidence.2 Once the Commonwealth rested its case, Grim argued that
because the only evidence of Grim’s intoxication was from his statement, the
prosecution had not made out the corpus delicti. Id. at 51. The court did not
rule on this matter and allowed Grim to present his case.
____________________________________________
2 The MVR is not part of the certified record.
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Grim testified that his leg injury was due to being hit with an IED while
serving in the army. Id. at 60. He testified that due to the injury, he had to
have multiple surgeries, and “at one time, I was on morphine and Percocet’s,
but I have been on suboxone for the last two years.” Id. He testified that he
shared his various uses of medication with Trooper Rayho but informed him
that he was not taking these medications at that time. Id. He said that as of
the date of the trial, he had not taken morphine and Percocet for the preceding
17 or 18 months. Id. at 63. He stated that he was upset on the day of the
incident because of what happened with the car, in conjunction with his post-
traumatic stress disorder and anxiety. Id. at 61. The court did not find Grim’s
testimony credible. See Memorandum Opinion, filed 3/18/22, at 6.
The trial court found Grim guilty of driving under the influence of alcohol
and a controlled substance. At sentencing, it considered the Sentencing
Guidelines, the presentence investigation report, Grim’s injury from his
service in the army, and his need for additional treatment on his ankle due to
those injuries. See N.T., Sentencing, at 11. It sentenced Grim to a term of 21
months to seven years’ incarceration. Grim filed a post-sentence motion
challenging his sentence. He also challenged the weight of the evidence. The
court denied the motion and this timely appeal followed.
Grim raises the following issues:
I. Should [Grim’s] alleged self-inculpatory statements
have been considered relevant or contributed to a
finding of guilt, as the observations of the arresting
officer preceding these statements were grossly
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J-S23020-22
insufficient by themselves to establish a corpus delicti
beyond a reasonable doubt?
II. Even if those statements could contribute to
establishing the elements of the offense, would the
facts on record as a whole still be legally insufficient
to support [Grim’s] conviction for driving under the
influence simultaneously of drugs and alcohol to such
a degree as to impair his driving, where, inter alia,
there was no evidence of impaired driving, as no
witness saw him driving at all, and there was no
evidence that he was at that time under the influence
of any alcohol?
III. Should [Grim’s] conviction be reversed for lack of
evidentiary weight in support thereof, where, inter
alia, the arresting officer’s testimony was too vague
and his conclusions as to [Grim’s] neurochemical state
too speculative to sustain a verdict of guilt?
IV. Was the sentence imposed on [Grim] for a run-of-the-
mill DUI contrary to utilitarian principles of
sentencing, an abuse of discretion given the
mitigating circumstances, and excessively harsh given
his grave medical problems?
Grim’s Br. at 6-7 (answers of trial court, suggested answers, and footnote
omitted).
In his first claim, Grim alleges that the court erred in considering his
statements to Trooper Rayho. He maintains that the Commonwealth did not
establish corpus delicti before introducing these statements and therefore the
court should not have considered them. He argues that before introducing
these statements, there must have been evidence that “(1) impaired driving
occurred and (2) it was owing to the influence of drugs and alcohol.” Grim’s
Br. at 24. He maintains the only way to prove such would be “by the present-
sense observations of the officer[.]” Id. He argues that the Commonwealth
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did not present evidence of impaired driving. He also argues that Trooper
Rayho’s observations showed no signs of intoxication.
The corpus delicti rule deals with the admission of evidence, which we
review for abuse of discretion. See Commonwealth v. Murray, 174 A.3d
1147, 1154 (Pa.Super. 2017). The corpus delicti rule requires that before the
Commonwealth may admit the statements of an accused, it must first prove
that: “(1) a loss has occurred; and (2) the loss occurred as a result of a
criminal agency.” Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003).
Once it has presented such proof, the Commonwealth may then “rely upon
statements and declarations of the accused to prove that the accused was, in
fact, the criminal agent responsible for the loss.” Id. (citation omitted).
The rule entails a two-step inquiry. “The first step concerns the trial
judge’s admission of the accused’s statements and the second step concerns
the fact finder’s consideration of those statements.” Murray, 174 A.3d at
1154 (emphasis added). Before the statements may be admitted, the
Commonwealth must prove the corpus delicti by a preponderance of the
evidence. See Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa.Super.
2012). However, before the factfinder may consider the statements, the
Commonwealth must show corpus delicti beyond a reasonable doubt. See id.
Grim’s argument goes to the second step. See Grim’s Br. at 22. We find
his argument lacking in merit.
Here, the Commonwealth presented sufficient circumstantial evidence
to prove the corpus delicti of DUI beyond a reasonable doubt. Before
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J-S23020-22
considering Grim’s statement, the court heard testimony from Natalie and
Trooper Rayho. Natalie testified that she heard a loud screeching sound and
when she turned toward the sound, a tire flew by her. She then observed a
parked vehicle missing a tire. She saw Grim come around the back of that
vehicle from the driver’s side. Trooper Rayho testified that Grim’s “walking
was unsure” and his demeanor was aggressive, argumentative, and
combative. N.T. at 39. Trooper Rayho also testified that Grim’s “overall
demeanor was somebody that appeared to be possibly under the influence of
either narcotics or alcohol.” Id. Trooper Rayho based this conclusion on his
two years of experience as an officer and encountering individuals under the
influence of both alcohol and narcotics. This evidence adequately proved
beyond a reasonable doubt that “(1) a loss has occurred; and (2) the loss
occurred as a result of a criminal agency.” Taylor, 831 A.2d at 590. The trial
court properly considered Grim’s statements that he had drunk a beer, was
the driver of the vehicle, and had taken painkillers, morphine, and Percocet.
Next, Grim challenges the sufficiency of the evidence. He alleges that
the evidence is insufficient because the Commonwealth did not prove that he
was under the influence of drugs and alcohol. He states that while he admitted
to having a beer earlier that day, by the time he was arrested, “it was well out
of his system[.]” Grim’s Br. at 29. He also argues that the painkillers he
admitted to taking could have included non-narcotic medications such as
Tylenol or Advil. He also claims that the Commonwealth failed to prove that
his driving was impaired. He notes that no one observed him driving carelessly
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J-S23020-22
or unsafely, “and there was no circumstantial evidence from which unsafe
driving could be rationally inferred.” Id. Grim further maintains that the
Commonwealth failed to prove that he was still under the influence of alcohol
at the time of his interactions with Trooper Rayho.
We review a challenge to the sufficiency of the evidence by determining
“whether viewing all the evidence admitted at trial in the light most favorable
to the verdict winner, there [was] sufficient evidence to enable the fact-finder
to find every element of the crime beyond a reasonable doubt.” Talbert, 129
A.3d at 542 (citation omitted). The Commonwealth may sustain its burden “by
means of wholly circumstantial evidence.” Id. at 543 (citation omitted).
Here, the court found Grim guilty of driving under the influence of
alcohol and controlled substances. See 75 Pa.C.S.A. § 3802(d)(3). To sustain
this conviction the Commonwealth was required to prove beyond a reasonable
doubt that: (1) Grim’s ability to safely drive was impaired; and (2) Grim’s
impairment was due to his influence of alcohol and a drug or combination of
drugs. See id.
All the evidence, together, was sufficient to prove Grim’s guilt beyond a
reasonable doubt. Grim admitted to consuming beer, Percocet, and morphine.
He also admitted that he drove his vehicle to the location where his tire
eventually fell off. Trooper Rayho testified that Grim’s walking was unsure, he
was aggressive, combative, and repetitive, and his overall demeanor was that
of a person under the influence of alcohol and/or narcotics. Particularly
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J-S23020-22
incriminating was his refusal of the blood draw because he was on morphine
and Percocet. That was strong evidence of consciousness of guilt.
To credit most of Grim’s claims – such as that the beer ought to have
been out of his system, and the painkillers he mentioned could have been
non-narcotic medications – would require us to violate the standard of review,
which requires us to consider the evidence in the Commonwealth’s favor, not
in Grim’s favor. Moreover, these issues go to the weight of the evidence, not
its sufficiency. Grim’s final claim – that there was no evidence that he had
driven carelessly or unsafely – tilts at a windmill. Unsafe driving is not an
element of the crime. Rather, the prosecution must prove that Grim’s ability
to safely drive was impaired. When viewed in the proper light, the evidence
was sufficient to prove all of the elements of the conviction under Section
3802(d)(3).
Grim also challenges the weight of the evidence. He argues that Trooper
Rayho’s testimony was vague and speculative. He further states that his
walking was impaired due to his chronic leg injuries. Grim reiterates his claim
that any alcohol he consumed would have been out of his system by the time
he encountered Trooper Rayho.
We review the trial court’s rejection of a challenge to the weight of the
evidence for an abuse of discretion. See Commonwealth v. Landis, 89 A.3d
694, 699 (Pa.Super. 2014). The trial court should grant relief on a weight
claim if the verdict “is so contrary to the evidence that it shocks one’s sense
of justice.” Id. (citation omitted).
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Here, the court stated that its review of the MVR showed that Grim
“repeatedly told Trooper Rayho he wasn’t going to take a blood test,
specifically stating ‘I got so many drugs in my system it ain’t funny.’”
Memorandum Op. at 4-5. Though Grim testified that he did not mean that he
was on narcotics at the time, the court did not find Grim credible. Id. at 6.
The court concluded that “[b]ased upon [Grim’s] appearance, actions, and
overall demeanor, the trooper had ample reason to believe that [Grim] was
under the influence of alcohol or narcotics to a degree of which he was not
able to safely operate a motor vehicle.” Id. at 4.
We discern no abuse of discretion. The verdict was not so contrary to
the evidence that the trial court’s rejection of Grim’s weight claim constituted
an abuse of discretion.
Grim’s final claim challenges the discretionary aspects of his sentence.
He argues that the court failed to consider mitigating factors and imposed an
excessively harsh sentence.
Challenges to the discretionary aspects of sentence are not automatic.
Instead, we must first determine whether the appellant: (1) filed a timely
notice of appeal; (2) preserved the issue at sentencing or in post-sentence
motion; (3) included a Rule 2119(f) statement in the brief; and (4) raised a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. See Commonwealth v. Proctor, 156 A.3d 261, 273
(Pa.Super. 2017). A substantial question exists where the appellant presents
an argument that the trial court’s sentence was “(1) inconsistent with a
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specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Id. (citation omitted).
Here, Grim has satisfied all the above factors for his sentencing claims.
He filed a timely notice of appeal, argued in his post-sentence motion that his
sentence was excessive in view of his medical conditions, included a Rule
2119(f) statement in his brief, and set forth a substantial question. See
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (“[A]n
excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.”) (citation
omitted).
Sentencing is a matter within the discretion of the court. See
Commonwealth v. Barnes, 167 A.3d 110, 122 n.9 (Pa.Super. 2017) (en
banc). Therefore, we will not disturb a court’s sentencing order absent an
abuse of discretion. See id. If the court had a presentence investigation
report, we presume that it was aware of the information the report contained
and appropriately weighed it. See Commonwealth v. Griffin, 804 A.2d 1, 8
(Pa.Super. 2002).
Here, the record shows that the court at sentencing was aware of the
presentence investigation report. We therefore presume it considered its
contents and gave it appropriate weight. Defense counsel also presented
argument regarding Grim’s military service and injuries. The court considered
the Sentencing Guidelines and imposed a sentence at the low end of the
standard range. We do not find an abuse of discretion.
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Judgment of sentence affirmed.
Judge Colins joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
- 12 - | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482561/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
UNITED AUTOMOBILE INSURANCE COMPANY,
Appellant,
v.
LAUDERHILL MEDICAL CENTER LLC,
a/a/o ROBERT WHITE,
Appellee.
No. 4D21-2308
[November 9, 2022]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Olga Gonzalez Levine, Judge; L.T. Case No. COWE-20-
22728.
Michael J. Neimand, Miami, for appellant.
John C. Daly, Christina M. Kalin, and Matthew C. Barber of Daly &
Barber, P.A., Plantation, for appellee.
LEVINE, J.
Lauderhill Medical Center, the medical provider, provided “vibe
therapy” to an insured party involved in a motor vehicle accident. The
medical provider billed the therapy under the non-specific CPT code of
97039, which does not have a set reimbursement price attached to it. The
insurer, United Auto Insurance Company, paid the claim to the medical
provider as an assignee of the insured, in accord with the workers’
compensation fee schedule. The medical provider filed a complaint against
the insurer for underpayment of PIP benefits, claiming that reimbursement
should have been made pursuant to the higher-paid Medicare fee
schedule.
Ultimately, the trial court entered final summary judgment for the
medical provider. On appeal, the insurer argues that the trial court erred
in determining that reimbursement under the workers’ compensation fee
schedule was improper. Based on the plain language of the applicable
statute, we agree with the trial court and find that the medical service
provided by the provider was reimbursable under Medicare Part B. As
such, we affirm.
In December 2019, the insured was involved in a motor vehicle
accident. The insured’s injuries were treated, in part, with “vibe therapy.” 1
The insurer paid the medical provider 80% of the maximum charges
permitted under the workers’ compensation schedule pursuant to section
627.736(5)(a)(1)(f), Florida Statutes (2019). The insurer claimed that the
service was not reimbursable under Medicare Part B, and therefore, the
allowable reimbursement was limited to 80% of the maximum
reimbursable allowance under workers’ compensation.
The medical provider argued that CPT code 97039 is an allowable code
under Medicare Part B, but since that code has no set price, the claim
should be paid at a reasonable amount up to 80% of 200% of the allowable
amount under the Medicare fee schedule. 2 The trial court entered final
summary judgment in favor of the medical provider, relying on Allstate Fire
& Casualty Insurance Co. v. Perez ex rel. Jeffrey Tedder, M.D., P.A., 111 So.
3d 960 (Fla. 2d DCA 2013). The trial court ordered that the insurer
reimburse the medical provider pursuant to the Medicare Part B fee
schedule for the claim. This appeal follows.
We interpret the text and provisions of the PIP statute de novo. MRI
Assocs. of Tampa, Inc. v. State Farm Mut. Auto. Ins. Co., 334 So. 3d 577,
583 (Fla. 2021). Summary judgment is also subject to the de novo
standard of review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760
So. 2d 126, 130 (Fla. 2000).
Section 627.736, the pertinent statute for determining the parameters
of reimbursement of medical services under PIP, provides as follows:
(5) Charges for treatment of injured persons.—
(a) A physician, hospital, clinic, or other person or institution
lawfully rendering treatment to an injured person for a bodily
1 The expert witness affidavit defined vibe therapy as providing a massage using
a “power vibe machine.” He described the machine as “a patented sonic vibration
technology whole body vibration which uses vibration for maximum muscle
toning and lymph drainage.”
2 In support that CPT code 97039 does not have a set price under Medicare Part
B, the medical provider relied on multiple authorities, including CMS.gov
physician fee schedule search results, First Coast Service Options Local Coverage
Determination, AAPC Coder excerpts, 70 Fed. Reg. 70116-01 (Nov. 21, 2005), the
National Correct Coding Initiative Policy Manual, and Florida Administrative
Code Rule 69B-220.201.
2
injury covered by personal injury protection insurance may
charge the insurer and injured party only a reasonable
amount pursuant to this section for the services and supplies
rendered . . . .
1. The insurer may limit reimbursement to 80 percent of the
following schedule of maximum charges:
....
f. For all other medical services, supplies, and care, 200
percent of the allowable amount under:
(I) The participating physicians fee schedule of Medicare Part
B, except as provided in sub-sub-subparagraphs (II) and (III).
(II) Medicare Part B, in the case of services, supplies, and care
provided by ambulatory surgical centers and clinical
laboratories.
(III) The Durable Medical Equipment Prosthetics/Orthotics
and Supplies fee schedule of Medicare Part B, in the case of
durable medical equipment.
However, if such services, supplies, or care is not reimbursable
under Medicare Part B, as provided in this sub-subparagraph,
the insurer may limit reimbursement to 80 percent of the
maximum reimbursable allowance under workers’
compensation, as determined under s. 440.13 and rules
adopted thereunder which are in effect at the time such
services, supplies, or care is provided. Services, supplies, or
care that is not reimbursable under Medicare or workers’
compensation is not required to be reimbursed by the insurer.
§ 627.736(5), Fla. Stat. (2019) (emphasis added).
When interpreting the PIP statute, like all other statutory provisions, a
court is bound by the plain language meaning of the text and its
provisions. MRI Assoc., 334 So. 3d at 583. A court is to “presume that a
legislature says in a statute what it means and means in a statute what it
says there.” Id. (citation omitted). We are required to give effect “to every
word, phrase, sentence, and part of the statute if possible, and words in a
statute should not be construed as mere surplusage.” Am. Home Assur.
Co. v. Plaza Materials Corp., 908 So. 2d 360, 366 (Fla. 2005) (citation
3
omitted).
Finally, “a basic rule of statutory construction provides that the
Legislature does not intend to enact useless provisions, and courts should
avoid readings that would render part of a statute meaningless.” Id.
(citation omitted). “[R]elated statutory provisions must be read together to
achieve a consistent whole, and that ‘[w]here possible, courts must give
full effect to all statutory provisions and construe related statutory
provisions in harmony with one another.’” Woodham v. Blue Cross & Blue
Shield of Fla., Inc., 829 So. 2d 891, 898 (Fla. 2002) (citations omitted).
A key provision of section 627.736(5) is that “if such services, supplies,
or care is not reimbursable under Medicare Part B, as provided in this sub-
subparagraph, the insurer may limit reimbursement to 80 percent of the
maximum reimbursable allowance under workers’ compensation, as
determined under s. 440.13. . . . ” (emphasis added).
Thus, the workers’ compensation schedule applies only if the services
provided are not reimbursable under Medicare Part B. If a CPT code, such
as 97039, has no set price but is still reimbursable under the Medicare fee
schedule, then the PIP statute would allow a reasonable amount up to 80%
of 200% of the allowable amount, instead of the workers’ compensation
schedule. 3
The trial court, in granting final summary judgment, relied on Perez.
We also find that case to be persuasive. In Perez, a doctor provided
medical services billed under a previously recognized CPT billing code,
which was no longer a recognized code on the date of the provision of
services. 111 So. 3d at 961. However, the medical services provided were
still covered under Medicare Part B. Id. at 962-63. In Perez, like the
present case, the insurer paid the medical provider under the workers’
3 Medicare specifically addresses situations where the service is covered, but
there is no delineated amount in a fee schedule: “We recognize that there may be
services or procedures performed that have no specific CPT codes assigned. In
these situations, it is appropriate to use one of the CPT codes designated for
reporting unlisted procedures.” Medicare Program; Revisions to Payment Policies
Under the Physician Fee Schedule for Calendar Year 2006 and Certain Provisions
Related to the Competitive Acquisition Program of Outpatient Drugs and Biologicals
Under Part B, 70 FR 70116-01 (Nov. 21, 2005). See also § 627.736(5)(a)(3), Fla.
Stat. (2019) (providing that an insurer is not prohibited “from using the Medicare
coding policies and payment methodologies of the federal Centers for Medicare
and Medicaid Services, including applicable modifiers, to determine the
appropriate amount of reimbursement for medical services, supplies, or care if
the coding policy or payment methodology does not constitute a utilization limit”).
4
compensation fee schedule instead of under the fee schedule for Medicare
Part B. Id. at 961.
The court in Perez determined that the insurer erred in using the
workers’ compensation schedule, and not the Medicare Part B schedule.
Id. at 963. The court recognized that although the specific CPT code was
not recognized for payment, the services represented in the code were still
covered under Medicare Part B, if medically reasonable and necessary. Id.
at 662-63. The Second District reasoned:
The language of section 627.736(5)(a)(2)(f) [now
627.736(5)(a)(1)(f)] is clear. The statute focuses on whether
services, supplies, or care is “reimbursable under Medicare Part
B”; it does not require that CPT codes be recognized by
Medicare for reimbursement purposes. While CPT codes help
to clearly identify services that may be reimbursable under the
PIP statute, a CPT code alone does not dictate whether a service
is reimbursable under the statute. As the county court ruled, it
is the nature of the medical service that controls. This plain
reading of the statute is consistent with the well-established
rule in Florida that the PIP statute should be construed
liberally in favor of the insured.
Id. at 963 (citations omitted) (emphasis added). The Second District
further stated:
[W]e understand the confusion that is likely caused when a
provider uses a CPT code that, while still valid in the medical
community, is no longer recognized by the current Medicare
Part B schedule but the services are considered covered and
therefore reimbursable under Medicare Part B. As in this
case, the insurer would have to look beyond the CPT code to
determine whether the services represented in the code are
reimbursable under Medicare Part B. We understand that
this complicates the reimbursement process under the PIP
statute. Nonetheless, we are bound by the plain language of
section 627.736(5)(a)(2)(f), which does not require a CPT code to
be recognized by Medicare Part B if the services are otherwise
covered and reimbursable under Medicare Part B.
Id. at 964 (emphasis added).
The insurer attempts to distinguish Perez from the present case,
inasmuch as the statutory version applicable in the present case differs
5
from the version utilized in the Perez case.
In the version of the statute applicable in the present case, the
additional language amounted to the following: “as provided in this sub-
subparagraph.” The additional verbiage does not change our reliance on
Perez. The amended version of the statute does not change the focus on
whether the service is reimbursable under Medicare Part B. Nothing in
the statutory version, effective at the time of the Perez case or the present
case, added a requirement that CPT codes have a set value under a fee
schedule under Medicare to be reimbursed. Had the legislature intended
that those services have a corresponding and specific set reimbursement
rate under Medicare or default to the workers’ compensation billing, it
would have said so. This court is not empowered to impose an additional
statutory requirement for reimbursement not written by the legislature.
Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999) (“We are not at liberty to add
words to statutes that were not placed there by the Legislature.”).
Finally, if we were to accept the insurer’s argument and require a
specific CPT code and reimbursement rate and default to the workers’
compensation schedule in its absence under Medicare Part B, that
interpretation would render the “80% of the 200%” of the allowable amount
under Medicare mere surplusage. See Am. Home Assur. Co., 908 So. 2d
at 366 (recognizing that a court is required to give effect “to every word,
phrase, sentence, and part of the statute if possible, and words in a statute
should not be construed as mere surplusage”) (citation omitted).
In summary, we find that the trial court correctly determined that the
proper payment under section 627.736(5) was pursuant to Medicare Part
B. We affirm.
Affirmed.
CONNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
6 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482591/ | J-A18041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORMAN ELDER BOOHER :
:
Appellant : No. 1459 WDA 2021
Appeal from the PCRA Order Entered November 16, 2021
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002368-2019
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 9, 2022
Norman Elder Booher appeals the denial of his request for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He claims
the court erred by failing to issue notice of its intent to dismiss his petition
without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal
Procedure. We affirm.
On December 17, 2019, Booher pled guilty to burglary and was
sentenced the same day to three to six years’ incarceration followed by two
to three years reporting probation with credit for time served.1 Booher did not
file a direct appeal. Booher filed the instant petition on November 14, 2021,
after the denial of a series of PCRA petitions. He raised claims of ineffective
assistance of counsel, the unavailability of exculpatory evidence, and a
____________________________________________
1 18 Pa.C.S.A. § 3502(a)(4).
J-A18041-22
violation of the United States and Pennsylvania constitutions. The petition did
not raise any time-bar exception and did not address the timeliness of the
petition. The next day, the court dismissed the petition, stating that the
petition “contains the same issues as his previous six petitions.” Order, filed
11/16/21. The court did not issue a Rule 907 notice. It later justified its
conclusion in its Pa.R.A.P. 1925(a) opinion by citing the comment to Rule 907,
which states that in certain circumstances, the court may summarily dismiss
a PCRA petition. This timely appeal followed.
Booher raises one issue: “Did the PCRA court err in failing to comply
with the notice requirements of Pa.R.Crim.P. 907 before dismissing Booher’s
petition?” Booher’s Br. at 4.
We review the denial of PCRA relief to determine whether the PCRA
court’s factual findings are supported by the record and if it committed any
legal error. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
When a court determines that a PCRA petition should be dismissed
without a hearing, the court must provide notice of its intent to dismiss
pursuant to Rule 907. See Pa.R.Crim.P. 907(1); Commonwealth v. Guthrie,
749 A.2d 502, 503 (Pa.Super. 2000) (stating issuance of Rule 1507 (prior
version of Rule 907) notice is mandatory).
Booher argues that the court was required to issue notice of its intent
to dismiss his petition. He also maintains that the court erroneously
interpreted the comment in Rule 907 to conclude that Rule 907 notice was
excused here. He contends that despite the court’s interpretation, “nothing in
-2-
J-A18041-22
the comment creates a freestanding right to dismiss a petition without
complying with the notice requirement.” Booher’s Br. at 10.
Booher’s claim deals with the proper interpretation of a Rule of Criminal
Procedure. “The interpretation of procedural rules is a question of law, so our
standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa.Super. 2016) (citation
omitted). When interpreting the Rules of Criminal Procedure, “we employ the
same principles employed in the interpretation of statutes.” Id. (citation
omitted). Our objective in interpreting the criminal rules “is to ascertain and
effectuate the intention of our Supreme Court[.]” Id. (internal quotations and
citations omitted). “When the words of a [rule] are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).
Here, the PCRA court concluded that it was not required to issue Rule
907 notice because Booher’s petition raised the same facts and issues as his
first PCRA petition. The court determined that the comment in Rule 907 stating
that a court may summarily dismiss a petition raising the same issues and
facts, excuses a court “from compliance with the process” of Rule 907. Rule
1925(a) Opinion, filed 2/1/22, at 3. It also determined that if courts were
required to “conduct the lengthy notice process” each time it denied a PCRA
petition for the same meritless issues, “it would rapidly and unjustifiably
exhaust the time and judicial resources of the courts of this Commonwealth[.]”
Id. at 5.
-3-
J-A18041-22
The relevant comment of Rule 907 provides:
The judge is permitted, pursuant to paragraph (1), to
summarily dismiss a petition for post-conviction collateral
relief in certain limited cases. To determine whether a
summary dismissal is appropriate, the judge should
thoroughly review the petition, the answer, if any, and all
other relevant information that is included in the record. If,
after this review, the judge determines that the petition is
patently frivolous and without support in the record, or that
the facts alleged would not, even if proven, entitle the
defendant to relief, or that there are no genuine issues of
fact, the judge may dismiss the petition as provided
herein.
A summary dismissal would also be authorized under this
rule if the judge determines that a previous petition
involving the same issue or issues was filed and was finally
determined adversely to the defendant. See 42 Pa.C.S. §
9545(b) for the timing requirements for filing second and
subsequent petitions.
Pa.R.Crim.P. 907, comment (emphasis added).
A plain reading of this comment explains that a court may summarily
dismiss a PCRA petition without a hearing under certain conditions, but must
do so pursuant to the procedures set forth in Rule 907. These conditions
include if: 1)the petition is frivolous and without support in the record; 2) the
facts alleged, even if true, would not entitle the petitioner to relief; 3) there
are no genuine issues of fact; or 4) a previous petition involving the same
issue or issues was filed and determined adversely to the petitioner. However
even under these circumstances, subsection one of Rule 907 provides that the
court “shall” give notice of its intent to dismiss a petition without a hearing.
Pa.R.Crim.P. 907(1). The comment does not purport to create an exception to
-4-
J-A18041-22
this requirement, and we do not see how it could without contradicting the
unambiguous terms of Rule 907 itself. See 1 Pa.C.S.A. § 1921(b). Therefore,
we conclude that the court erred in failing to issue notice of its intent to dismiss
Booher’s petition.
Nevertheless, no relief is due here because of the untimely nature of
Booher’s petition. See Commonwealth v. Ziegler, 148 A.3d 849, 851 n. 2
(Pa.Super. 2016) (“[F]ailure to issue Rule 907 notice is not reversible error
where the record is clear that the petition is untimely”). A petitioner seeking
relief under the PCRA petition must file the petition within one year of the
judgment of sentence becoming final. 42 Pa.C.S.A. § 9545(b)(1). When the
petition is filed beyond this one-year deadline, the petitioner must plead and
prove at least one time-bar exception. Id. at § 9545(b)(1)(i)-(iii). A failure to
do so will result in the dismissal of the petition, as this Court and the PCRA
court is without jurisdiction to entertain an untimely PCRA petition. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Booher’s judgment of sentence became final on January 16, 2020. See
42 Pa.C.S.A. § 9545(b)(3) (“a judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review”); Pa.R.A.P. 903(a) (30 days to appeal from
-5-
J-A18041-22
order). Thus, Booher had until January 18, 2021 to file a timely PCRA petition.2
Booher filed his petition in November 2021 making it untimely. Booher’s
petition did not address the petition’s timeliness, much less even attempt to
raise any time-bar exception. As such, because the petition is untimely, we
affirm the order of the court. See Commonwealth v. Pursell, 749 A.2d 911,
917 n. 7 (Pa. 2000) (affirming dismissal of untimely PCRA petition where PCRA
court did not issue Rule 1507 notice to petitioner and petitioner did not plead
and prove any time-bar exception); Ziegler, 148 A.3d at 851;
Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009) (this Court
may affirm the decision of the court on any basis which is supported by the
record).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
____________________________________________
2 The 30-day deadline fell on a Saturday. See 1 Pa.C.S.A. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, . . . such day
shall be omitted from the computation”).
-6- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482581/ | J-A18045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERTO HERNANDEZ PEREZ :
:
Appellant : No. 1518 WDA 2021
Appeal from the PCRA Order Entered December 20, 2021
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000342-2017
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 9, 2022
Roberto Hernandez Perez appeals the denial of his Post Conviction Relief
Act (“PCRA”) petition. 42 Pa.C.S.A. §§ 9541-9546. He claims that he raised
meritorious claims of ineffective assistance of counsel. We affirm.
A jury convicted Perez of one count each of drug delivery resulting in
death and involuntary manslaughter; four counts each of possession with
intent to deliver and criminal conspiracy; and three counts of recklessly
endangering another person.1 We affirmed the judgment of sentence and
Perez did not seek allowance of appeal with our Supreme Court.2 See
Commonwealth v. Perez, No. 1361 WDA 2019, 2020 WL 6707506
(Pa.Super. filed Nov. 16, 2020) (unpublished memorandum).
____________________________________________
1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 2705, 903(a)(1), 2506, and
2504(a).
2 The PCRA court reinstated Perez’s direct appeal rights on August 8, 2019.
J-A18045-22
In November 2021, Perez filed the instant, timely PCRA petition through
counsel. Perez alleged that trial counsel was ineffective for failing “to
adequately prepare for trial in advance in this matter, in that he did not
request funds for a forensic pathologist, request fund[s] for a private
investigator, or request a continuance of trial until it was too late.” PCRA
Petition, filed 11/15/21, at ¶ 13(d). He also argued that counsel’s failings
caused him prejudice, “as the evidence presented at trial regarding the drugs
provided by [Perez], their consumption by the decedent, other sources of
drugs, and the cause of death were contestable issues[.]” Id. at ¶ 13(e). He
also alleged that counsel prejudiced him in the following ways:
- [Perez] was unable to present information regarding
other potential sources of fentanyl . . . .
- [Perez] was unable to present a forensic expert to
counter the Commonwealth’s suspect evidence that the
drugs obtained from [Perez] and ingested by the
decedent were sufficient to cause his death . . . .
- . . . The Commonwealth’s evidence in these areas could
have been countered by expert testimony and/or
information regarding additional sources of fentanyl
- . . . the jury was not presented with any information to
counter the Commonwealth’s case[.]
Id. at ¶ 13(f). Perez requested an evidentiary hearing for the court to hear
testimony from trial counsel and himself.
The court issued notice of its intent to dismiss the petition without a
hearing. See Pa.R.Crim.P. 907(1). The court stated that Perez had failed to
“outline in his petition the specific evidence that would have been presented
-2-
J-A18045-22
at trial had his counsel obtained a continuance and obtained an expert and
private investigator.” See Opinion and Order, filed 12/7/21, at 3. Based on
this omission, it concluded that Perez had failed to show any prejudice from
counsel’s alleged error. See id. Perez filed a response arguing that he had
provided sufficient information in his PCRA petition. See Request for
Reconsideration, filed 12/17/21. The court denied Perez’s PCRA petition, and
this timely appeal followed.
Perez raises the following issue: “Did the lower court err in concluding
that [Perez’s] PCRA Petition failed to demonstrate prejudice as defined in
Commonwealth v. Little, 2021 PA. Super. 7, 246 A.3d 312 (Pa.Super. 2021)
and in summarily dismissing [Perez’s] PCRA Petition without a hearing?”
Perez’s Br. at 4 (suggested answer omitted).
When reviewing the denial of PCRA relief, we determine “whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Koehler,
36 A.3d 121, 131 (Pa.Super. 2012) (citation omitted). “[T]o obtain reversal
of a PCRA court’s decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.” Commonwealth v. D'Amato, 856 A.2d 806,
820 (Pa. 2004).
Perez maintains that considering Little, the court erred in concluding
that he did not prove the prejudice of his ineffectiveness claim. Perez alleges
-3-
J-A18045-22
that trial counsel was ineffective for failing to hire a defense expert in
pathology and a private investigator to testify at trial. He maintains that he
suffered prejudice because the evidence presented at trial “regarding the
drugs provided by [Perez], their consumption by the decedent, other sources
of drugs, and the cause of death were contestable issues,” and the
Commonwealth’s evidence on these points was “weak, inconsistent,
inconclusive, and challengeable[.]” Perez’s Br. at 12.
Counsel is presumed effective; therefore, Perez was required to plead
and prove that his ineffectiveness claim had arguable merit, counsel’s action
or inactions lacked any reasonable basis, and he was prejudiced by counsel’s
error. See Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012). Where
a PCRA petitioner claims counsel was ineffective for failing to call a witness at
trial, to establish prejudice, the PCRA petitioner must plead and prove that:
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew, or should have
known, of the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citing
Sneed, 45 A.3d at 1108-09). “[T]he PCRA petitioner must show how the
uncalled witnesses’ testimony would have been beneficial under the
circumstances of the case.” Commonwealth v. Johnson, 966 A.2d 523, 536
(Pa. 2009) (citation omitted). Failing to satisfy any prong of an ineffectiveness
-4-
J-A18045-22
claim results in the rejection of the claim. See Commonwealth v. Martin, 5
A.3d 177, 183 (Pa. 2010).
Because Perez limits his argument to the prejudice prong of his
ineffectiveness claim, we likewise focus our attention on this prong. In his
PCRA petition, Perez claimed that counsel failed to call a defense expert
witness in pathology as well as a private investigator. He claimed that he
suffered prejudice from counsel’s inaction because if counsel had called these
witnesses, they would have been able to “provide additional information as to
whether or not the Commonwealth’s expert’s findings were inaccurate” and
provide “possible alternative sources of fentanyl.” PCRA Pet. at ¶¶ 13(b)(ii),
(c)(ii). However, he did not identify any expert witness who was available to
testify on his behalf at trial. Nor did he identify a private investigator or allege
any particular evidence an investigator would have unearthed.
The court determined that Perez failed to establish the prejudice prong
of the ineffectiveness test. It concluded that Perez made “general assertions
that he was prejudiced” but “failed, to outline in his [p]etition the specific
evidence that would have been presented at trial had his counsel obtained a
continuance and obtained an expert and private investigator.” Opinion and
Order, at 3.
We discern no abuse of discretion. Perez did not explain whether these
witnesses existed, were available and willing to testify, or that counsel knew
or should have known of their existence. See Wantz, 84 A.3d at 331. Perez’s
claim is one of mere speculation, as he did not identify any specific witness
-5-
J-A18045-22
nor explain what evidence they would have testified to that would have
changed the outcome of the case. See Commonwealth v. Chmiel, 889 A.2d
501, 546 (Pa. 2005) (“Trial counsel’s failure to call a particular witness does
not constitute ineffective assistance without some showing that the absent
witness’ testimony would have been beneficial or helpful in establishing the
asserted defense”). Furthermore, Perez’s citation to Little is unavailing. We
note that he did not claim that the PCRA court erred in its determination based
on the holding of Little in his Rule 1925(b) statement, and the claim is
therefore waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b)(4)(vii). Even if it
were not waived, Little would afford him no relief. The petitioner in Little
proved actual prejudice. 246 A.3d at 330. Here, Perez made no such showing.
Perez also maintains that counsel was ineffective for failing to timely
request a continuance of the trial. He alleged that this prejudiced him because
1) he was not able to present information on alternative sources of the
fentanyl; 2) he was not able to present expert testimony to counter the
Commonwealth’s evidence that the fentanyl provided by Perez was the cause
of the decedent’s death; 3) he was not able to counter the Commonwealth’s
expert testimony; and 4) the jury did not hear alternative evidence to counter
the Commonwealth’s case. PCRA Pet. at ¶¶ 13(f)(i)-(iv).
Here, trial counsel asked the court for a continuance of the trial 20 days
before the trial was set to begin. See Perez, 2020 WL 6707506 at *7. Counsel
alleged that he needed additional time due to the unavailability of a forensic
pathologist and due to new information, that he obtained that was exculpatory
-6-
J-A18045-22
in nature. See id. Counsel maintained that he was too busy to investigate the
new information and needed to hire a private investigator. See id. He stated
that two weeks, however, would not be enough time for the investigator to
investigate the information. See id.
The trial court denied the request, stating that “it is unclear why efforts
to address the obtainment of and report of a forensic expert and private
investigator were not undertaken at an earlier date.” See id. (citing Trial Court
Opinion, 1/18/18, at 8-9). It also stated that counsel’s suggestion that the
private investigator could likely uncover beneficial information regarding the
source of the fentanyl was speculative. See id. The court maintained “there
is only [an] assertion that a witness may be found and he or she may have
valuable information; and, that vague assertion does not support the grant of
a continuance of trial.” See id. (quoting Trial Ct. Op. at 8-9). However, the
court did state that it would revisit and reconsider the request if it was
“supported by more specific assertions[.]” Id. (quoting Trial Ct. Op. at 8-9).
Counsel provided no further specificity.
As evidenced by the history of this case, counsel never specified the
witnesses or the information that would necessitate a continuance. Perez
again raises speculative claims that he could have presented information on
alternative sources of fentanyl, that the expert would have countered the
Commonwealth’s evidence regarding the cause of death, or that any
information, if found, would have countered the Commonwealth’s evidence.
Thus, he fails to show that but for the timing of counsel’s continuance request,
-7-
J-A18045-22
there is a reasonable probability that the result of the proceeding would have
been different. As such, Perez failed to plead and prove prejudice and the
court did not err in denying this claim of ineffectiveness. There was therefore
no need for an evidentiary hearing, and the court did not err in denying his
request for one. See D'Amato, 856 A.2d at 820.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
-8- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482625/ | 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. DA 21-0212
__________________
STATE OF MONTANA,
Plaintiff and Appellee,
v. ORDER
JOSHUA GLEN REID,
Defendant and Appellant.
__________________
Upon consideration of the Appellant’s motion to consolidate cases
and amend the caption, having no objection from the State and with good
cause appearing, Appellant’s motion to consolidate is GRANTED.
It is hereby ORDERED that Cause Nos. DA 21-0212, DA 21-0213,
and DA 21-0214 are hereby consolidated for the purposes of appeal
under Cause No. DA 21-0212 and as captioned as above.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 9 2022 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482566/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ERICA LEE HENRY f/k/a ERICA RIEGSECKER,
Appellant,
v.
CRAIG RIEGSECKER,
Appellee.
No. 4D21-3415
[November 9, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan Greenhawt, Senior Judge; L.T. Case No. FMCE-
21-000970 (41) (93).
Thomas L. Hunker, Jonathan M. Woods and V. Ashley Paxton of
Hunker Appeals, Fort Lauderdale, for appellant.
David M. Scott of the Law Office of David Scott, P.A., Fort Lauderdale,
for appellee.
PER CURIAM.
Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d
1150, 1152 (Fla. 1979).
WARNER, DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482596/ | Appellate Case: 21-1038 Document: 010110766170 FILED Page: 1
Date Filed: 11/09/2022
United States Court of Appeals
Tenth Circuit
PUBLISH November 9, 2022
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
STACEY WRIGHT,
Plaintiff - Appellant,
v. No. 21-1038
PORTERCARE ADVENTIST
HEALTH SYSTEM, a Colorado
nonprofit corporation, d/b/a Centura
Health - Castle Rock Adventist
Hospital,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:19-CV-01067-WJM-STV)
Richard P. Barkley (Jeanine M. Anderson and Claire E. Sweetman, with him on
the briefs), Anderson Barkley, LLC, Denver, Colorado, for Plaintiff - Appellant *.
M. Brian Sabey (Mark L. Sabey with him on the brief), Hall, Render, Killian,
Heath & Lyman, P.C., Denver, Colorado, for Defendant - Appellee.
Before McHUGH, MURPHY, and ROSSMAN, Circuit Judges.
*
Richard P. Barkley argued on behalf of Appellant. An order was entered
on April 21, 2022, granting the appellant’s motion for Mr. Barkley to withdraw as
counsel. Claire E. Sweetman also filed a motion to withdraw as counsel and that
motion was granted on February 2, 2022.
Appellate Case: 21-1038 Document: 010110766170 Date Filed: 11/09/2022 Page: 2
MURPHY, Circuit Judge.
I. INTRODUCTION
Stacey Wright worked as the charge nurse in the cardiac catheterization lab
(“cath lab”) at Castle Rock Adventist Hospital (“Castle Rock”), a unit of the
Portercare Adventist Health System (“Portercare”). After she was denied a
transfer within Portercare and was terminated from her position at Castle Rock,
Wright brought Title VII claims for discrimination and retaliation. The district
court granted Portercare summary judgment, concluding it advanced legitimate,
nondiscriminatory reasons for its employment decisions and Wright failed to
adduce evidence supporting a finding of pretext. Exercising jurisdiction pursuant
to 28 U.S.C. § 1291, this court affirms.
II. BACKGROUND
A. Factual Background
1. Management Transition in the Cath Lab
Wright began working in the cath lab in 2013 and became its charge nurse
within one year. From 2012 to mid-2017, Russ Royer was the cath lab’s manager
and Wright’s direct supervisor. Under Royer’s supervision, Wright received
positive performance reviews. Royer averred that Wright was “one of the most
skilled nurses that [he] ever worked with in all [of his] years in the healthcare
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industry, and it [was] difficult for [him] to find anything to complain about when
it comes to [her] work performance.” After Royer left his position, cath lab staff
and Castle Rock physicians encouraged Wright to apply to take his place.
Although Wright applied to become the cath lab’s manager, the position remained
vacant while the department’s leadership underwent a change.
In fall of 2017, the cath lab came under the control of Carol Pontius.
Pontius hired Suzanne Parker as the cath lab’s director and Julie Lombard as the
lab’s manager. The decision to hire Lombard frustrated the lab’s four permanent
staff members: Frank Przymus, John West, Ryan Voegle, and Wright. In
particular, Wright found it difficult to accept Lombard as her supervisor and
admitted she was “less than” “very friendly and open” towards Lombard or
willing to assist Lombard’s transition as she became cath lab manager. The
tension between Lombard and Wright did not escape the attention of other cath
lab staffers. West averred that the decision to hire Lombard and to task Wright
with Lombard’s training caused “obvious rifts” and “a tense vibe in the room.” 1
1
West averred as follows:
[Pontius] asked [Wright] to train [Lombard] about the Cath Lab.
That did not seem fair to me, to hire [Lombard] and thereby suggest
that [Wright] was not capable of running the Cath Lab, but then to
ask [Wright] to train [Lombard] how to do the job. It was not a good
situation, and there were obvious rifts between [Wright] and
[Lombard] and between [Wright] and [Pontius].
(continued...)
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Wright testified she and Lombard “had very few conversations,” and
acknowledged she did not think “there’s anybody in this whole hospital that
doesn’t know how I’m disappointed in the current state of our department.” 2
2. Incidents Underlying Adverse Employment Actions
a. Data Reports
The physicians served by the cath lab expected the lab to prepare several
monthly data reports. During his tenure, Royer prepared the bulk of these
reports. 3 After Royer left Castle Rock, Clint Watson, then-director of the cath
1
(...continued)
[Wright] did not get along well with [Lombard]. When they
were together there was a tense vibe in the room. When [Lombard]
would come in, [Wright] would be very quiet, which was not her
usual self. Their interaction was minimal. . . .
West swore out a second affidavit clarifying some of the averments set out in his
original affidavit. He did not, however, change his testimony about the tension
between Wright and Lombard, nor his testimony that Wright was generally quiet
in Lombard’s presence.
2
On October 30, 2017, Wright emailed Jodi Parrish, a Castle Rock human
resources official, to set up a meeting between Parrish and the cath lab’s
permanent staff. Wright requested that the meeting take place without the cath
lab’s management team. Parrish’s notes regarding that meeting indicate the
leadership change left the staff with “a lot of mistrust.” The staff did not “even
want to talk to [Lombard]” and indicated it did not “make sense to them” that
Wright, with her fifteen years of experience, was passed over in favor of
Lombard, who had no cath lab experience.
3
According to Wright, “Royer delegated to [her] the data reporting for
NCDR Databases as it was a very time consuming task.” She also testified she
was in charge of “ACS” data abstraction “from day one.”
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lab, took over primary responsibility for the data reports. In two separate months
while Watson was responsible for the reports, he asked for Wright’s help to
compile the reports. Although she “struggled,” she and Watson were able to work
together to achieve the task. When the cath lab came under Pontius’s control,
Parker replaced Watson as the cath lab’s director.
On October 24, 2017, Wright sent a series of emails to Lombard about the
data reports. 4 Lombard attempted to communicate with Wright about the data
reports by text. Despite her expressed preference for text messages as “the best
way to communicate with her,” Wright did not respond to Lombard’s texts. On
4
The bodies of the relevant emails state as follows:
!Attached is the ACS data spreadsheet. This information
needs to be sent to Susan Beech each month. I try to get it to her as
soon as I can since she has to collect the info from all South Denver
facilities. I have reported out up until September 2017, so she will
need October data at the beginning of November.
Let me know if you have any questions and I can try to assist
you!
!Attached is the EP dashboard for the SDG. This is
something Brenda Yost will ask you to provide monthly—similar to
the ACS dashboard.
!I know you had mentioned in the past that you might be
interested in taking over the NCDR databases. If this is still
something that interests you, let me know when you are ready to take
them on. In this regard, I have a lot of experience and would be able
to assist you as needed.
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November 6th, approximately two weeks after receiving Wright’s emails and after
the October reports were due, Lombard replied to Wright’s emails with a trio of
responses, each of which asked Wright to handle the reports until Lombard was
prepared to undertake those duties. 5 The next day, Wright met with Lombard,
Parker, and human resources director Jodi Parrish to clarify expectations about
communications between Wright and Lombard and to discuss Wright educating
Lombard about the preparation of the required data reports. The meeting
“focused on transitioning the ACS abstracting and EP dashboard to [Lombard],
5
The bodies of the relevant email responses state as follows:
!It may be a bit before I feel comfortable taking over the
databases. Until then, I’d like to have you keep them as you are
experienced!
I’d like to work on this slowly. [C]ould we have a standing
weekly appointment to help get me up to speed?
I’d like to suggest Tuesdays from 1-2.
Let me know what you think.
!I’d like to work on this slowly with you as well. Until I’m
able to get up to speed, I’d like to have you keep them as you are
experienced!
Could we go over the ACS/EP dashboard when we go over the
NCDR information during our weekly meeting?
!Would you kindly report to Brenda on the October’s data?
I’m unsure of the process, but look forward to learning.
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which [Wright] had assisted [Watson] with during the interim absence of a
manager after [Royer] left.” Lombard involved her supervisor and a human
resources representative because “[t]here was some issues with her responding to
my texts and not coming down to teach me. And so I just wanted to have others
involved in the meeting.” Wright did not complete any data reports for October,
November, or December of 2017.
b. OR/PACU 6 Assistance
At 8:22 a.m. on the morning of December 11, 2017, Lombard sent Wright a
text message directing her, along with the other cath lab employees, to provide
assistance in the OR: “The OR needs help today with admission vitals and IV’s[.]
Would you all please go over to help?” One minute later, Wright responded
“Ok.” Shortly thereafter, Wright checked in with the PACU and “learned that
their needs were going to be primarily in the afternoon.” Wright decided to take
an early lunch break and go pick up her daughter’s Christmas present.
Accordingly, at 8:31 a.m., Wright texted Lombard that she was “running over to
Walmart. Be right back.” At 8:44 a.m., Lombard texted Wright as follows: “Btw
when you get back come see me . . . .” After sending this text, Lombard spoke to
the PACU charge nurse, who said no one from the cath lab had come over to
6
The terms OR for operating room and PACU for post-anesthesia care unit
are used interchangeably by the parties.
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help. 7 At 8:53 a.m., Lombard directed Wright by text as follows: “Come see me
in [Parker’s] office let me know when ur back from Walmart.”
Wright returned to Castle Rock and clocked back in at 9:03 a.m. Upon her
return, Wright bumped into Watson in a hallway. Rather than proceeding directly
to Parker’s office as Lombard had requested, Wright spent almost thirty minutes
visiting with Watson. At approximately 9:30 a.m., Wright proceeded to Parker’s
office and met with Lombard and Parker. Lombard and Parker questioned Wright
about running the errand. As regards the meeting, Wright averred as follows:
I explained that it had been common for [cath lab staff] to run short
errands after ensuring we had coverage and letting our manager
know. . . . I told them to check with . . . [Przymus] and [West], who
would confirm this practice. I then asked why I was being treated
differently than those male employees, and whether they . . . believed
that the male staff members just never ran errands. . . . [Parker]
confirmed that she knew that the male employees ran errands, but did
not notify management when they did so, and that I was the only one
who ever provided notice before leaving for an errand. [8]
7
In her contemporaneous version of events, documented in an email she
sent to Parrish at 10:51 on the morning of December 11, Wright made no mention
of checking in with the PACU before she left for Walmart. In later-created
documents, Wright has variously claimed that she actually checked in with the
PACU and that she simply had an informal conversation in the break room with a
PACU nurse. Taking the facts in the light most favorable to Wright, as we must
in reviewing the district court’s summary judgment ruling, we assume for
purposes of this appeal that Wright did in fact check in with the PACU.
Nevertheless, it is undisputed that the PACU charge nurse told Lombard that none
of the cath lab employees had come to help.
8
The evidence also demonstrates, however, that to Parker’s and Lombard’s
knowledge, no other cath lab staffer had ever left to run a personal errand while a
(continued...)
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That same day, Lombard drafted a proposed corrective action at the level “written
warning” and submitted it to human resources. 9 When human resources generalist
Allyssa Gleason reviewed the draft written warning, she expressed concern about
making sure Wright was treated consistently with other cath lab employees. In
particular, Gleason noted Castle Rock needed “to be careful that we don’t only
discipline [Wright] if others have been doing it.” Gleason also noted, however,
that Parrish “mentioned adding some recent behavioral issues” to the written
warning and solicited examples of such conduct. On December 21, 2017,
Lombard talked to the other members of the cath lab about their practice of
running errands during the workday, telling them that “staff should not be leaving
the premises during business hours.”
8
(...continued)
specific assignment from a manager was pending.
9
In her appellate brief, Wright complains that Lombard drafted this
proposed corrective action “without verifying Wright’s statement that she had
contacted PACU” before she went to Walmart. Wright cites no evidence,
however, that she ever made such a statement to Lombard. According to both
Wright’s and Lombard’s descriptions of the 9:30 a.m. meeting, Wright only told
Lombard and Parker that all cath lab employees ran errands during the work day
and other members of the cath lab could have covered for her. None of the
various recountings of this meeting include any reference to Wright explaining
that she checked in with the PACU before leaving, and Lombard specifically
testified that she was never told Wright had spoken with anyone in the PACU
before she left on her errand.
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c. Training Temporary Employees
Non-permanent personnel, “travelers,” periodically visited the cath lab and
received an orientation from its staff. Prior to the expected arrival of travelers on
December 18, 2017, Ryan Voegle notified the other staff members that he had
been asked to provide orientation. On the Friday before the travelers were
expected to arrive, Lombard noted on the cath lab’s whiteboard that travelers
would be arriving in the department on the afternoon of December 18, 2017.
Although Wright acknowledges she had notice of the arrival of travelers from the
whiteboard, she emphasizes she was never asked to provide orientation and
orienting travelers is not a responsibility of the charge nurse. According to
Lombard, on the other hand, she specifically asked Wright to aid in the
orientation of the travelers on the morning of the 18th. Wright did testify that in
the past she had generally oriented traveler nurses and Przymus had oriented the
“tech” travelers. Ultimately, Wright did not participate in the orientation of the
traveler nurse who arrived on December 18, 2017. Instead, Wright was absent
from the cath lab during this time frame and did not communicate with
management about her absence. See infra n. 13 (noting Wright’s complete
absence from the cath lab without explanation during the orientation of the
travelers).
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3. Denial of Transfer
After the errand incident, Wright decided to seek a transfer within the
Portercare network. Human resources generalist Gleason knew by December 15,
2017, that Wright was scheduled to interview for a position at Parker Adventist
hospital. Neither Gleason nor anybody else associated with Portercare advised
Wright she might be ineligible for a transfer. Indeed, Gleason asked a human
resources employee at Parker Adventist to keep her in the loop so Castle Rock
could “have a good plan in place for sustaining staffing in our” cath lab in case
Wright was offered the position. This was true even though Gleason had
commented on Lombard’s draft written corrective action on December 11, 2017.
Portercare employees are eligible for a transfer if they have not had a written
warning within the last six months. Wright believed she met this requirement and
asserts she had no reason to be aware she was ineligible to transfer. Wright was
offered the position at Parker Adventist. On December 20, 2017, Wright sent a
message to Parker, Lombard, and Parrish indicating she intended to transfer to
Parker Adventist. Sondra Davis, Portercare’s regional vice president of human
resources, advised Parrish to inform Wright a corrective action was in the works
that would make Wright ineligible for a transfer. Accordingly, Parrish sent
Wright an email on December 21, 2017, “clarify[ing]” that Wright was ineligible:
You need to be aware [Castle Rock] had already decided, prior to
your email notice, to place you on a corrective action due to your
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conduct these past couple months. Because the corrective action is
already in the works, you are ineligible to transfer at this time.
Leadership will be meeting with you soon to review the corrective
action and set expectations.
Ultimately, Parrish, Davis, and Todd Folkenberg, Castle Rock’s chief executive
officer, made the decision to disallow Wright’s request to transfer.
The same day she was informed she would not be allowed to transfer to
Parker Adventist, Wright initiated a complaint with the Integrity Helpline. 10
Integrity Helpline complaints are normally routed to an employee’s human
resources director for an investigation, except when the complaint involves that
director. Under those circumstances, the complaint would go elsewhere, normally
to the vice president of human resources, to “keep it neutral.” Wright’s Integrity
Helpline complaint made allegations against three individuals: Parrish, Lombard,
and Parker. Because Parrish was named in the complaint, Davis was assigned to
investigate it. During her investigation into the Helpline complaint, Davis
interviewed Wright, along with the three individuals named in the complaint. She
did not interview the other employees in the cath lab, the prior cath lab manager,
or anyone else.
10
Although the record reveals that the Integrity Helpline—sometimes also
called the Integrity Hotline—is an internal complaint-resolution process, the
record does not reveal much about the contours of the program.
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4. Final Written Warning
On December 27, 2017, Portercare issued to Wright a corrective action
form with a disciplinary action designation of “Final Written Warning.” The
Final Written Warning listed three incidents that were found to “exhibit the
unprofessional behavior [of] insubordination, lack of respect, unresponsiveness,
ineffective communication and negative attitude”: (1) the November 7, 2017
coaching meeting and subsequent “lack of cooperation and follow through” with
respect to the data reports 11; (2) the December 11, 2017 Walmart errand
incident 12; and (3) the December 18, 2017 traveler orientation incident. 13 Wright
11
As to this incident, the Final Written Warning stated as follows:
During a coaching session . . . , a conversation was had regarding
transitioning some of the duties she had been completing during the
interim absence of a manager in the Cath Lab department. . . . There
were numerous attempts made by the Cath Lab manager to set up
time to review these transition items which were unsuccessful due to
[Wright’s] lack of cooperation and follow through. On 12/13
Director and Manager were on the monthly South Denver Group EP
quality meeting when it was noted that none of [the] data had [] been
reported since October. Additionally, “bleeding risk scores” had not
been reported to South Denver since July 2017. On 12/18 [Wright]
spent approx. 5 minutes with manager regarding the EP data.
12
As to this incident, the Final Written Warning stated as follows:
[Wright], charge nurse, was asked by her manager at 8:22 a.m. to go
help the PACU department because they needed help with IV’s and
vitals. Instead of going to help the PACU, she passed the message to
the other members of the Cath Lab team. At 8:31, [Wright] texted
her manager back and stated “I’m running over to Walmart. Be right
(continued...)
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12
(...continued)
back.” [Wright] clocked out and left campus to go to the store. At
8:45 the manager spoke with the charge nurse of PACU who shared
that no one from the Cath Lab team had come over to help.
The first problem is she was the only RN in the Cath Lab and the
PACU needed help getting IV’s started. However, due to a lack of
IV skills, the techs that eventually did respond to PACU were unable
to assist with the requested patient care needs. [Wright] willfully
disregarded her manager’s request and was not there for the team.
The second problem is she did not ask leaders for permission to leave
campus. The manager texted her at 8:44 and again at 8:53, with no
response, to come see her upon [Wright’s] return. Upon [Wright’s]
return to campus, she did not go directly to her manager or director’s
office first as was requested. She clocked in at 9:03 and arrived to
the director’s office approx. 9:30 a.m., almost a half an hour after her
return from an unauthorized “errand.” She did not report to the
PACU during this time to assist other associates as requested.
13
As to this incident, the Final Written Warning stated as follows:
One expectation of [Wright’s] role as the charge nurse is to provide
orientation to new staff in the department. Two new travelers, a RN
and Tech, arrived to the department to orient on 12/18/17. On
Friday, 12/15/17, the manager placed on the whiteboard that traveler
staff would be arriving to the department on the afternoon of
12/18/17. The morning of 12/18, manager arrived in the control
room and spoke with the staff present (two techs) and reminded them
that the traveler staff would be arriving that afternoon. . . . Manager
had asked [Wright] at approx. 10:30 am, while she was in manager’s
office, to help orient the new staff who would be in the department at
approximately 1:30 pm that day. She verbally agreed.
At approx. 1:00–1:30 the new staff arrived, [but Wright] was not in
the control room or the procedure room. The manager had the techs
that were present in the Cath Lab orient the staff. As of 3:00 pm,
[Wright] had not returned to the lab to help orient the new staff.
[Wright] did not fulfill her role as charge nurse and perform the
(continued...)
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met with Parrish on January 5, 2018 to discuss the Final Written Warning. As to
the root cause of her clashes with Lombard, Wright indicated the two were having
“personality conflict[s].”
Wright initiated an alternative dispute resolution (“ADR”) process in an
attempt to set aside the Final Written Warning. Like the Integrity Helpline
process, the ADR complaint was assigned to Davis. Wright met with Davis on
January 8, 2018, to address both the Integrity Helpline and ADR complaints.
During this meeting, Davis and Wright engaged in a wide-ranging discussion of
the incidents set out as the basis for the Final Written Warning. As was true of
her January 5th meeting with Parrish, Wright asserted her issues at work were
“part” of a “misunderstanding” and “a personality conflict.” Wright also
indicated, however, that she did not understand the decision to punish her for the
errand incident when male cath lab staffers engaged in the same practices.
13
(...continued)
orientation required for the new travelers. Additionally, she did not
communicate her whereabouts during this time . . . .
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5. Termination
On January 8, 2018, Frank Archuleta became the manager of the cath lab. 14
There is no evidence Archuleta was aware of Wright’s “staff issues” when he
became the cath lab’s manager. Soon after he became manager, Archuleta met
with Wright one-on-one. Wright stated she continued to be interested in
transferring to Parker Adventist. After this meeting, Archuleta had a positive
impression of Wright. His impression of Wright, however, quickly became
negative over the next few days. On January 16th, Archuleta met with Parrish “to
discuss his concerns and ask for guidance regarding his experience and
interactions with” Wright. Parrish took notes of the matters discussed at the
meeting.
Archuleta noted it was unlikely Wright was “going to help this department
succeed.” Wright was sharing her human resources “issues” with cath lab staff
and physicians, causing “a lot of emotion” amongst the staff, and her dominant
purpose appeared to be to convince him to help her in her quest to transfer to
Parker Adventist. Archuleta cataloged an almost daily series of problematic
14
The evidence in the record reveals Lombard was replaced by Archuleta
because the cath lab was performing poorly and because the relevant physicians
wanted a manager with cath lab experience. At approximately the same time
Lombard was replaced by Archuleta, Parker discontinued her responsibilities as
director of the cath lab. Thus, upon his hiring as manager of the cath lab,
Archuleta answered directly to Pontius. As was true of Lombard, Parker had no
prior cath lab experience when she was hired as the cath lab’s director.
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events in the cath lab, including: (1) Wright stating to Archuleta, in front of cath
lab staff, that she had discussed Archuleta with several cardiologists; (2) a
pharmaceutical mischarging incident involving Przymus, during which Archuleta
believed Wright, West, and Przymus lied to him about the cath lab’s drug-
charging practices; (3) Wright’s resistance to documenting “(LDA’s)—
documentation for line, drains, assessment”; (4) Wright introducing Archuleta to
doctors and/or showing Archuleta texts from doctors indicating Archuleta needed
to protect Wright and keep Wright on his team; (5) Wright telling Archuleta her
lawyers advised her to not have any interactions with Lombard or Parker; and
(6) Wright texting to Archuleta and West a picture of the patient schedule for the
following day, with private patient information included, on a day she was out of
the hospital sick. At the conclusion of the meeting, Archuleta stated to Parrish as
follows: “[Wright] is smart and I wanted her to develop, sad thing is I don’t think
she wants to be here. I like her as a person. She is very experienced and knows
what she is doing. I’m just worried that she is not on board and will damage all
of the work I am doing.”
With minimal additional investigation, Parrish accepted Archuleta’s report
as accurate. Parrish felt that her experience with Wright corroborated Archuleta’s
concerns and made him the more credible witness, rendering it useless to discuss
the report with Wright. Thus, Parrish raised Archuleta’s concerns with Davis and
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Folkenberg, and the three of them decided that termination was the appropriate
next step. Parrish avers that the basis for the decision to terminate Wright was
that a second manager in a row expressed the perception Wright was
unsupportive.
B. Procedural Background
The district court granted Portercare summary judgment. It noted Wright
had not produced direct evidence of discrimination or retaliation and, thus,
employed McDonnell Douglas’s burden-shifting framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). It assumed Wright had established
a prima facie case of both discrimination and retaliation and ruled Portercare
satisfied its burden of advancing legitimate, nondiscriminatory reasons for the
employment decisions. It ruled that Wright’s final written warning listed three
nondiscriminatory reasons in support of the denial of Wright’s transfer request
and ultimate termination. It further concluded Portercare advanced an additional
nondiscriminatory basis for Wright’s termination: a second manager, in quick
succession, informed leadership Wright was not supportive.
Having resolved the first two steps of the McDonnell Douglas analysis, the
district court proceeded to analyze whether Wright adduced sufficient evidence of
pretext to send the case to a jury. It recognized Wright offered overlapping
theories of pretext as to her discrimination and retaliation claims. At base, those
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theories relied on (1) assertions of meaningful differential treatment of Wright
and the cath lab’s male employees and (2) challenges to the veracity of
Portercare’s stated reasons for its employment decisions, based on alleged
irregularities in Portercare’s procedures and inconsistencies in its explanations. 15
As to Wright’s claim that sex-based differential treatment supported a finding of
pretext, the district court concluded the alleged differences in treatment were
“trivial or accidental or explained by a nondiscriminatory motive” and thus could
not sustain a claim of pretext. See Swackhammer v. Sprint/United Mgmt. Co., 493
F.3d 1160, 1168 (10th Cir. 2007). Next, the district court concluded Wright
failed to adduce sufficient evidence from which a jury could conclude
Portercare’s employment decisions were procedurally irregular. Finally, the
15
The district court summarized these theories as follows:
For her discrimination claim, Wright asserts three overarching
theories of pretext: (1) Wright was disciplined for issues for which
similarly situated men were not disciplined; (2) there were procedural
irregularities in the discipline and termination of Wright; and (3)
there were inconsistent explanations for the termination decision.
For her retaliation claim, Wright asserts four overarching
theories of pretext: (1) that Wright was denied a transfer, disciplined,
and fired shortly after complaining of disparate treatment; (2) the
reason for denying the transfer was false and did not comply with
Centura’s written policies concerning transfers; (3) similarly situated
employees were not disciplined for identical infractions and the
discipline was procedurally irregular; and (4) the proffered reason for
the termination was pretextual for the reasons set forth above.
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district court ruled that Wright failed to produce evidence which could call into
question Portercare’s good-faith belief in the validity of the instances of
misconduct set out in the final written warning. See Bird v. W. Valley City, 832
F.3d 1188, 1201 (10th Cir. 2016) (explaining that, in assessing an employer’s
legitimate, nondiscriminatory reason for its employment decisions, this court
“examine[s] the facts as they appear to the person making the decision” and
holding that this court does “not ask whether the employer’s proffered reasons
were wise, fair or correct; we ask only whether [the employer] honestly believed
those reasons and acted in good faith upon those beliefs” (quotation omitted)). 16
III. DISCUSSION
This court reviews “the district court’s grant of summary judgment de
novo” and applies “the same legal standard used by the district court.”
Swackhammer, 493 F.3d at 1167 (quotation omitted). Summary judgment is
16
Wright asserts the district court impermissibly weighed the evidence
rather than appropriately determining whether a jury considering the evidence in
the light most favorable to Wright could find pretext. There is reason to doubt
this assertion, as the district court repeatedly framed its conclusions in terms of
the lack of evidence rather than the weight of evidence. Ultimately, however, this
court need not resolve whether the district court utilized an erroneous standard in
evaluating Wright’s claims. On review of a district court’s grant of summary
judgment, this court engages in de novo review. Parker v. United Airlines, Inc.,
49 F.4th 1331, 1337 (10th Cir. 2022). Because this court can and will apply the
correct standard on appeal, there is no need to remand the matter to the district
court for further proceedings. Id. at 1340; Knitter v. Corvias Mil. Living, LLC,
758 F.3d 1214, 1227 n.9 (10th Cir. 2014).
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appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In analyzing the propriety of a grant of summary judgment, this
court “view[s] the evidence and draw[s] reasonable inferences therefrom in the
light most favorable to the nonmoving party.” Swackhammer, 493 F.3d at 1167
(quotation omitted). On appeal, the parties dispute only the pretext step of the
McDonnell Douglas analysis. Accordingly, this court need not consider any
issues relating to the first two steps of McDonnell Douglas.
“[A] plaintiff utilizing the McDonnell Douglas framework normally cannot
provide direct evidence of discrimination.” Swackhammer, 493 F.3d at 1167.
“[A] pretext argument provides a method of satisfying this burden by allowing the
factfinder to infer the ultimate fact of discrimination from the falsity of the
employer’s explanation.” Id. (quotation omitted). “A plaintiff shows pretext by
demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence and hence
infer that the employer did not act for the asserted nondiscriminatory reasons.”
Id. (quotation omitted). “One typical method for a plaintiff to prove pretext is by
providing direct evidence that the defendant’s stated reason for the adverse
employment action was false.” Id. (quotation omitted). “Another common
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method is a differential treatment argument, in which the plaintiff demonstrates
that the employer treated the plaintiff differently from other similarly-situated
employees who violated work rules of comparable seriousness in order to show
that the employer failed to follow typical company practice in its treatment of the
plaintiff.” Id. at 1167-68 (quotation and alteration omitted). “Evidence of pretext
may also take a variety of . . . forms. A plaintiff may not be forced to pursue any
particular means of demonstrating that a defendant’s stated reasons are
pretextual.” Id. at 1168 (alterations and quotation omitted). Ultimately, however,
the plaintiff must produce sufficient evidence of pretext to allow a jury to infer
that the real reason for the employment decision was prohibited discrimination or
retaliation. Id.
As set out below, we conclude Wright has failed to carry her burden of
“demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions” in Portercare’s legitimate, nondiscriminatory reasons for its
employment decisions. Id. at 1167 (quotation omitted). Likewise, the differential
treatment identified by Wright, along with the alleged procedural irregularities
she identifies, are easily and cogently explained by nondiscriminatory reasons.
Id. at 1168. Finally, her claim that the relevant employment decisions were
infected with procedural irregularity is not remotely convincing. Accordingly, the
district court did not err in granting summary judgment in Portercare’s favor.
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A. Alleged Differential Treatment
As support for the notion she was treated differently than the male cath lab
employees, Wright notes that after she first met with Lombard on October 15,
2017, Lombard began keeping a log of notes about her communications with
Wright. Lombard did not, according to Wright, keep such a log as to any other
cath lab employee. Citing to and quoting from Lombard’s deposition, Wright
asserts Lombard could not explain why she singled Wright out in this fashion.
Importantly, however, the quotation set out in Wright’s brief omits, with well-
placed ellipses, critical portions of Lombard’s deposition testimony, including
Lombard’s testimony that she kept paper notes as to her interactions or coaching
sessions with all cath lab permanent employees. After a recess during the
deposition, Lombard clarified that it was only after conflicts arose between her
and Wright that she started taking more specific notes and transferred those notes
from her notebook to a computer. Wright asserts a factfinder could conclude this
“clarification,” which was made after a discussion with counsel during a break in
the deposition, was not truthful.
Wright’s arguments as to the computerized log of interactions do not
advance her Title VII claims. Even before the break in the deposition, Lombard
made clear that she took notes on her interactions with all cath lab permanent
employees, male and female. Wright has not identified any evidence remotely
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calling this testimony into doubt. Furthermore, the computerized log of
interactions created by Lombard is dated “12/14/17,” demonstrating it was created
in the manner described in Lombard’s deposition. It cannot be reasonably denied
that by December 14, 2017, Wright and Lombard had had numerous negative
interactions. Indeed, a mere thirteen days later, Wright was issued a final written
warning based on incidents memorialized in the log. Given the undisputed
evidence, no reasonable jury could rely on the existence of the computerized log
of interactions to conclude Lombard treated Wright worse than the male cath lab
employees because Wright was a female.
As the centerpiece for her assertions of differential treatment, Wright
claims she was disciplined for running an errand during work hours, when her
male colleagues were not. Like the district court, we conclude no reasonable jury
could find Wright was punished for running an errand during work hours.
Instead, the record demonstrates Wright was punished for her insubordinate
response to Lombard’s orders. See supra n.12 (setting out, in full, the text of the
final written warning relating to this incident). 17
17
In analyzing whether this alleged instance of differential treatment would
support a finding of pretext, we draw all reasonable inferences from the evidence
in favor of Wright and assume: (1) Lombard’s request to help the PACU on
December 11, 2017, was transmitted to both Wright and the male cath lab
employees, rather than being sent only to Wright; and (2) the male employees
were not issued any punishment for their past instances of errand running during
(continued...)
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Viewed from Portercare’s perspective, Bird, 832 F.3d at 1201, the event
unfolded as follows. At 8:22 a.m., Lombard directed Wright to “go over to help”
the PACU with admission vitals. Nine minutes later, Wright replied by text that
she was “running over to Walmart” and would “[b]e right back.” Wright did not
indicate that she had checked in with the PACU, ask permission to disregard
Lombard’s order, or indicate her trip to Walmart was consistent with preexisting
cath lab practice. Lombard responded by directing Wright to come see her when
she returned to the hospital. Lombard then checked with the PACU charge nurse,
who told Lombard no one from the cath lab had come to help. In response to this
news, Lombard sent another text to Wright, this one indicating Wright should,
upon her return to the hospital, meet with both Lombard and Parker, the cath lab
director, in Parker’s office. This directive—that Wright should meet with
Lombard and their joint supervisor upon her return to the hospital—made clear
Lombard had issues with how Wright had approached her work-hours trip to
Walmart. When she clocked back in upon returning to Castle Rock, however,
Wright did not proceed directly to Parker’s office. Instead, she spent
17
(...continued)
work hours. Because no reasonable juror could conclude Wright’s punishment
over the errand incident was based on the fact she ran the errand, as opposed to
being primarily based on her insubordinate responses to her supervisor’s requests,
this court need not consider further what is at most a weak material issue as to
these two asserted facts.
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approximately thirty minutes talking with Watson about a toy Wright purchased
for her daughter for Christmas. When she did arrive at the meeting with Parker
and Lombard, Wright told Lombard the following: “I was sorry that I notified her
at all—that we as a team cover for each other if we need to handle errands
throughout the day, and do not normally involve management.”
Moreover, this event occurred in the context of Wright’s history of
disregarding Lombard’s communications and resisting her authority. Wright
found it difficult to accept Lombard as her supervisor and admitted she was “less
than” “very friendly and open” towards Lombard or willing to assist Lombard’s
transition as she became cath lab manager. Wright testified she “had very few
conversations” with Lombard, and West explained there was “a tense vibe in the
room” when Wright and Lombard were together. Indeed, Wright noted it was
widely known at Castle Rock that she was disappointed with the state of the cath
lab under Lombard’s management. And, by the time of this incident, Lombard
had already convened a group meeting with Wright, Parker, and Parrish to discuss
more efficient communication between Wright and Lombard regarding the data
reports, due to “issues with [Wright] responding to [Lombard’s] texts.” Parrish
indicated as much in an email responding to Wright’s complaint about her
interactions with Lombard and Parker on December 11th: “With all of the
conversations and work that has/is being done currently in the Cath Lab one of
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the main focuses has been about communication and how keeping [Lombard] and
[Parker] in the loop on everything that’s going on in the Cath Lab is vital.”
Thus, viewing the final written warning as focused on Wright’s failure to
communicate with, and lack of respect for, Lombard is compelled by the record.
While Wright’s errand certainly led to the final written warning, no reasonable
jury could conclude the final written warning was premised on the errand itself. 18
Instead, as is made clear on the face of the final written warning, Wright’s
subsequent interactions with, and reactions to, her supervisors are what led to the
inclusion of the incident in the final written report. 19
18
Wright’s challenges to the veracity of Portercare’s reliance on the errand
incident to support issuance of the final written report, its use to deny her transfer
request, and its use as justification for her termination all also rely narrowly on
her assertion she was punished exclusively for running the errand, as opposed to
her interactions with her managers thereafter. The same is true as to her
challenges to the procedural regularity of the inclusion of this incident in the final
written warning. For those reason set out above, these challenges also fail and
will not be considered further.
19
Wright argues Lombard’s dialogue with Gleason as to the propriety of
punishing Wright for running errands, see supra at 9, supports a finding of
pretext. This argument is unavailing. True enough, when Lombard sent Gleason
the preliminary corrective action, Gleason wanted to confirm Portercare was not
disciplining Wright for conduct if other employees engaged in the same behavior.
Id. The final written warning, however, demonstrates that the main point of the
discipline was focused on Wright’s behavior toward Lombard. Gleason’s e-mail
does show that Portercare was aware of a possible Title VII issue if discipline was
imposed on Wright but not her male colleagues based on running errands.
Gleason’s email does not, however, demonstrate Wright was disciplined because
she ran errands.
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Wright’s comparison of herself to the male cath lab employees is thus
unavailing. The record does not indicate that these individuals engaged in similar
interactions with their supervisors, either in general or in the context of their
errands. Considered against the entire record, and even after drawing all
reasonable inferences from the evidence in Wright’s favor, there is nothing about
the inclusion of the errand incident in the final written report that would support a
finding Przymus, West, or Voegle were treated differently from Wright because
they were men.
Finally, Wright asserts that an incident underlying Archuleta’s complaints
to Parrish about Wright’s performance demonstrates discriminatory differential
treatment of Wright and male cath lab employees. Again, Wright’s assertion is
not supported by the record. When Archuleta met with Parrish on January 16,
2018, to discuss Wright’s future in the cath lab, Archuleta related to Parrish, as
one of many concerns he had about Wright’s commitment to his team, an incident
involving perceived incorrect charging of a prescription drug. Archuleta noticed
West charged a patient for an entire bottle of lidocaine, while only using one
fourth of the bottle. In response, Archuleta instructed staff to only charge the
patient for the amount used. West told Archuleta he was following the
pharmacy’s directions, but he and Przymus clarified with Archuleta that they
would only charge for the portion used going forward, as per Archuleta’s
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instructions. In contrast, Wright stated as follows to Archuleta: “It would have
been nice if people have told us, so we would be doing it that way. Well that’s
not what they’ve told us, this is how we are supposed to do it. We’ve never done
it that way.” Archuleta told Parrish that, for three reasons, he did not believe
Wright’s assertion about the cath lab’s previous billing practices: (1) the billing
error was quickly caught by a Castle Rock employee in revenue management
support; (2) Wright and Pryzmus were well-trained “charge champions” and an
examination of their past charts revealed proper charging practices; and
(3) improper past billing practices would have been discovered during revenue
management audits.
Wright correctly notes that during his deposition, Archuleta testified that as
to the lidocaine mischarging incident he believed West, Przymus, and Wright had
all three lied to him about past billing practices in the cath lab. She further
asserts, based on this testimony, that the fact she was terminated, but that West
and Przymus went unpunished, demonstrates the type of differential treatment
based on sex upon which a jury could find pretext. Wright’s argument is
unpersuasive for several reasons. Archuleta specifically testified that he had
more than one conversation with West and Przymus to address his concern that
they were lying to him about past charging practices. Furthermore, the record
definitively reveals that Castle Rock and Portercare management did not tell
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Archuleta about Wright’s past issues with Lombard in order to give Wright a
fresh start. And Wright testified she did not have any basis to believe Archuleta
discriminated against her on the basis of her sex. Finally, and most importantly,
the charging incident was only one part of a much larger pattern of incidents
Archuleta observed, all of the remainder of which were unique to Wright. See
supra at 16-17 (cataloging some of the relevant incidents). Those incidents,
considered in the aggregate, caused Archuleta to conclude Wright was a particular
threat to his ability to effectively manage the cath lab. In that regard, Archuleta
noted that Wright was uniquely influential in the cath lab, as demonstrated by the
fact that West’s and Przymus’s resentment towards hospital management and
administration seemed to originate with Wright and by the fact that in expressing
resistance to change West and Przymus referenced Wright’s opinions.
Given the record in this case, no reasonable juror could conclude any
differential treatment that might exist as to Wright and the male cath lab staff
flowed from sex-based animus. Accordingly, no reasonable juror could use
differential treatment as a basis for finding pretext in this case.
B. Falsity of Reasons for Adverse Employment Actions
Wright asserts she has demonstrated “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in Portercare’s proffered
legitimate reasons for its employment actions such that a reasonable factfinder
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could rationally find them unworthy of credence. See Swackhammer, 493 F.3d at
1167. In contrast to this assertion, however, this court concludes Wright has not
made the necessary showing.
Wright asserts a reasonable jury could find that Lombard did not
specifically instruct her to orient the travelers arriving at the cath lab on
December 18, 2017, and could also find that, during Royer’s tenure as manager of
the cath lab, orienting travelers was not a duty of the cath lab’s charge nurse. We
agree a jury could so find. Those findings, however, would not be sufficient for a
jury to find that Portercare did not, in good faith, issue Wright a final written
correction based, in part, on her actions on December 18th. Bird, 832 F.3d at
1201 (holding that this court “examine[s] the facts as they appear to the person
making the decision” and does “not ask whether the employer’s proffered reasons
were wise, fair or correct; we ask only whether [the employer] honestly believed
those reasons and acted in good faith upon those beliefs” (quotation omitted)).
On the Friday before the travelers were expected to arrive, Lombard noted on the
cath lab’s whiteboard that travelers would be arriving in the department on the
afternoon of December 18th. Wright acknowledged she had notice of the arrival
of travelers from the whiteboard and testified that in the past she had generally
oriented traveler nurses and Przymus had oriented the “tech” travelers.
Nevertheless, Wright did not participate in the orientation of the traveler nurse
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who arrived on December 18, 2017. Furthermore, as specifically noted in the
final written warning, see supra n.13, Wright was absent from the cath lab during
this time frame and did not communicate with management about her absence.
Finally, the inclusion of the travelers incident must not be viewed in isolation but,
instead, must be viewed from Portercare’s perspective. By the time of the
travelers incident, Lombard, Parker, and Parrish had engaged Wright in numerous
conversations about Wright’s unwillingness to communicate with and respect
Lombard. On the record before the court, no reasonable jury could conclude
Portercare did not, in good faith, believe in the validity of the sanctionable nature
of the travelers incident.
Wright also challenges the veracity of Portercare’s reliance on the data-
reports incident. Again, however, her argument merely nibbles around the edges
of the incident and, ultimately, fails to create jury questions as to Portercare’s
good-faith reliance on the data-reports incident to justify its employment actions.
See Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303, 1309 (10th Cir. 2005) (“[A]s a
general rule, an employee must proffer evidence that shows each of the
employer’s justifications are pretextual.” (quotation omitted)). Wright points to
evidence indicating two instances in which she either met with, or tried to meet
with, Lombard regarding the transitioning of the data reports from her to
Lombard. Even if true, however, that fact does not demonstrate Lombard, Parker,
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Parrish, or Portercare’s leadership did not believe Wright was resistant to training
Lombard as to the management functions of the cath lab. Indeed, the record is
rife with evidence that Wright, and the other members of the cath lab, found it
unfair Wright was being required to train Lombard. The record also reveals that
Lombard included her supervisor and a human resources representative in the
meeting on November 7th, which focused on making sure Wright aided Lombard
in coming up to speed in preparing the data reports, specifically because Wright
had theretofore been unresponsive to Lombard’s requests.
In any event, the final written warning makes clear that the data-reports
incident merited punishment because Wright failed to finish three months’ worth
of data reports as specifically directed by her manager. See supra n.11. Wright
does not address this aspect of the incident in her appellate brief. In her
deposition and affidavit, Wright claimed this task was Lombard’s responsibility,
but she does not point to any evidence indicating Lombard was precluded from
delegating the task to her. The emails Lombard sent Wright on November 6th
make clear that Lombard did delegate the task to Wright. See supra n.5.
C. Procedural Irregularities
Finally, Wright sets out a scattershot listing of supposed procedural
irregularities attendant to the challenged employment actions. None comes close
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to creating a material issue of fact as to pretext, and all can be dealt with in
summary fashion.
Wright attempts to assign procedural irregularity to the fact Castle Rock
CEO Folkenberg, aided by human resources representatives Davis and Parrish,
made the decision to terminate her employment. She cites a brief passage of
Parrish’s deposition wherein Parrish notes human resources does not recommend
punishment but, instead, acts as “a consultant and a guide.” Wright also
insinuates it was odd that her former and current managers, Lombard and
Archuleta, did not participate in the termination decision. The problem for
Wright, however, is that she does not cite any evidence indicating it was unusual
for Folkenberg to make ultimate decisions as to punishing or terminating
employees, nor does she cite any evidence that Davis or Parrish acted outside
their normal role in guiding Folkenberg in resolving that question. Furthermore,
based on the record before this court it cannot be reasonably argued that
Archuleta, an individual Wright testified she had no reason to think was biased
against women, did not play a process in Wright’s termination. Instead, his
lengthy and detailed discussion with Parrish about his doubts Wright would help
the cath lab succeed was the direct cause of Wright’s termination. Given how
soon Archuleta expressed new concerns about Wright following the issuance of
the final written warning, it is not remotely unusual Folkenberg decided to
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terminate Wright’s employment. And she provides no explanation why Lombard,
as her former manager, should have been involved in the termination decision.
Wright asserts Davis’s participation in the Integrity Helpline and ADR
investigations was inappropriate because she was not neutral. The record
definitively demonstrates, however, that Davis acted consistent with Portercare
policy. Indeed, there is no indication in the record that Davis was not expected to
resolve Wright’s complaint at “Step 4” of the ADR process even if she was
involved in earlier discussions about the propriety of denying Wright’s transfer
request pending issuance of the final written warning. Nor can Wright identify
any aspect of Portercare policy that obligated Davis to interview witnesses whose
testimony she did not think would be material to the denial-of-transfer decision.
Finally, although there is evidence Davis played a part in the decision to deny
Wright’s transfer request while a final written warning was in the final stages of
issuance, there is no evidence Davis played any part, prior to Wright’s invocation
of the Integrity Helpline and ADR processes, in deciding whether the events
recounted in the final written warning were accurate and/or justified punishment.
Wright asserts that the denial of her request for a transfer was inconsistent
with Portercare’s policy. Portercare’s policy states that an employee is not
eligible to apply for a transfer if the employee has received a corrective action
during the last six months. Although it is certainly true Wright had not yet
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received her final written warning at the time she requested to transfer, it is also
true the warning was in the process of finalization. As noted by Portercare, the
obvious purpose of this policy is to prevent problematic employees from
transferring to other Portercare facilities to escape their situations without first
resolving their behaviors. The question here is not whether Portercare’s
interpretation of its policy was “wise, fair or correct.” Bird, 832 F.3d at 1201.
Instead, the question is whether Portercare operated in good faith when it
interpreted its policy as obligating Wright to resolve her issues at Castle Rock
before transferring to Parker Adventist. On that point, Wright has not come close
to creating a fact issue for the jury. Indeed, she does not point to any evidence
indicating the interpretation of internal policy adopted by Portercare in this case
is remotely at odds with past applications of the policy.
Finally, Wright asserts it was procedurally irregular that Portercare failed to
investigate the accuracy of Archuleta’s complaints about her before terminating
her employment. The problem for Wright is that the only relevant Portercare
policy she cites is one relating to the investigation of acts of disparate treatment.
As noted above, however, there is nothing about Archuleta’s complaints to
Parrish that would support a finding of prohibited disparate treatment. See supra
at 28-30.
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IV. CONCLUSION
For those reasons set out above, the order of the United States District
Court for the District of Colorado granting summary judgment in favor of
Portercare is hereby AFFIRMED.
-37- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482601/ | Filed 11/9/22 Marriage of Moreno 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
(Placer)
----
In re the Marriage of CHRISTINA DURAN MORENO C095252
and MIGUEL ANGEL MORENO.
CHRISTINA DURAN MORENO, (Super. Ct. No. SDR0051619)
Appellant,
v.
MIGUEL ANGEL MORENO,
Respondent.
In a January 2020 marital property settlement agreement, which was attached to a
subsequent judgment of dissolution, appellant Christina Duran Moreno (Christina)1 and
respondent Miguel Angel Moreno (Miguel) agreed regarding the division of most of their
1 As is customary in marital dissolution cases, we refer to the parties by their first names
for ease of reading and to avoid confusion. (In re Marriage of Campi (2013)
212 Cal.App.4th 1565, 1567, fn. 1.)
1
property and assets, with the understanding that a subsequent expert report would
characterize and value the investment and retirement accounts as of a certain date.
Following trial on several reserved issues, the trial court confirmed to the parties their
respective retirement accounts and ordered Miguel to pay an equalizing payment to
Christina from his 401(k) account via a Qualified Domestic Relations Order (QDRO).2
The court also ordered the parties to equally pay the expert’s costs.
On appeal, Christina contends the trial court erred in failing to include gains and
losses on the QDRO equalizing payment. She further contends the court erred in equally
allocating all of the expert’s fees in assessing the parties’ investment accounts, rather than
allocating only those expert fees incurred after Miguel belatedly disclosed various 401(k)
information, which required additional expert analysis.
We conclude that Christina is entitled to the gains and losses on the equalizing
payment. We further conclude that the trial court did not allocate all of the expert’s fees
to the parties equally, but rather addressed only those additional fees incurred to prepare
his revised report. Accordingly, we shall modify the judgment to clarify that Miguel
shall pay Christina the equalizing payment as of December 31, 2019, plus any gains and
minus any losses, until the payment is divided pursuant to the QDRO, and that the parties
shall share equally the cost of the expert’s additional fees for revising his report. As so
modified, we shall affirm the judgment.
2 “Under provisions of the federal Employee Retirement Income Security Act of 1974
(29 U.S.C. § 1001 et seq.; hereafter ERISA), private retirement plans may, pursuant to a
state court’s domestic relations order, pay a portion of an employee participant’s
retirement benefits directly to the employee’s former spouse or dependents, if and only if
the state court order meets certain specifications. Such an order is a ‘qualified domestic
relations order’ . . . . (29 U.S.C. § 1056(d)(3).)” (In re Marriage of Oddino (1997)
16 Cal.4th 67, 71.)
2
FACTS AND HISTORY OF THE PROCEEDINGS
Christina and Miguel married in September 2004, had two children together, and
separated in September 2016. Christina filed for divorce in January 2017, and the status
of the marriage was dissolved at Miguel’s request in November 2017.
The parties resolved most of the marital property issues through private mediation.
In January 2020, the parties executed a Property and Spousal Support Settlement
Agreement, dividing the majority of their assets and permanently waiving spousal
support. The marital settlement agreement was “subject to [the] final determination of
values of the bank accounts at November 1, 2016 and the characterization of the
investment and retirement accounts as of December 31, 2019, as further determined by
[expert] Seth Kaplan.” The settlement agreement also required Miguel to pay Christina
an equalizing payment of $20,000 from his share of the bank accounts awarded to him
under the agreement. Each party was to bear his or her own attorney’s fees and costs.
On March 13, 2020, the court entered a judgment of dissolution, which included
the parties’ marital settlement agreement. The dissolution judgment reserved jurisdiction
over all other issues.
Trial on the reserved issues commenced on August 25, 2020. Although Kaplan
had prepared an expert tracing report on the parties’ various investment and retirement
accounts shortly before trial, Miguel apparently had failed to provide Kaplan with
documentation regarding Christina’s 401(k) account, which Miguel had received months
earlier at the house they formerly shared. The court therefore reserved its decision on the
retirement account issue to await Kaplan’s revised report incorporating the newly
disclosed information.
Because Miguel belatedly disclosed the 401(k) information, Christina’s counsel
requested that the court order him to pay for any additional fees Kaplan incurred in
revising his tracing report. The court ordered Miguel to bear the cost of any updated
3
Kaplan report based on the new information, but “reserve[d] jurisdiction to reallocate up
to 50 percent of that cost upon a showing that is reasonable under the circumstances.”
On December 1, 2020, the trial court issued a Memorandum of Tentative
Decision. The court adopted the calculations in Kaplan’s revised report, which the
parties submitted by stipulation in September 2020. Based on Kaplan’s revised
calculations, the court awarded Christina $619,145 in her retirement and cash accounts,
and awarded Miguel $832,146 in his retirement and cash accounts. In order to equalize
the division of the pension, retirement, brokerage, and bank accounts, the court ordered
Miguel to pay Christina an equalizing payment of $126,501.3
As to expert costs, the tentative decision found that under the prior marital
settlement agreement, the parties were responsible for their respective attorneys’ fees and
costs, “except for the costs incurred with Seth Kaplan.” The court found that both
Miguel and Christina had substantial, and essentially comparable, assets and income, and
exercised its discretion to order that the parties share Kaplan’s expert costs equally.
Miguel objected to the court’s Memorandum of Tentative Decision on several
grounds and requested a Statement of Decision. In order to address an alleged
unintended tax windfall to Christina, Miguel requested that the court enter a QDRO to
distribute the $126,501 equalization payment to Christina from his 401(k) account. As
for Kaplan’s charges, Miguel argued that to avoid confusion, the court should state that
all of Kaplan’s charges during the dissolution litigation were to be shared equally, and
that the difference between the amounts paid to Kaplan should be equalized by adjusting
the $126,501 equalizing payment, either up if Christina paid him more, or down, if
Miguel paid him more.
3 The total equalizing payment included the initial $20,000 equalization payment
stipulated to in the marital settlement agreement plus $106,501.
4
Christina responded to Miguel’s objections, arguing that the only thing the
tentative decision determined regarding Kaplan’s fees was that the parties should pay
equally for the additional amounts incurred in revising his report because Miguel had
failed to timely provide Kaplan with the most recent 401(k) reports and summaries. She
asserted that the totality of Kaplan’s fees, and the payment thereof, were not presented to
the court for decision during the trial on reserved issues, and ordering her to pay any
portion of those fees violated the parties’ prior marital settlement agreement where they
each agreed to pay their own attorneys’ fees and costs.
On April 22, 2021, the trial court issued an order denying the objections to the
Memorandum of Tentative Decision and proposals for a Statement of Decision, and
adopted its tentative decision as its Statement of Decision. The court filed a signed
judgment on reserved issues on August 27, 2021.
An attachment to the judgment on reserved issues states the following:
“5. Equalization Payment:
“a) Respondent, Miguel Moreno, owes to Petition[er], Christina Duran Moreno,
from the above the total of $126,501 as of December 31, 2019. Such shall be paid
through a division of the retirement plan as follows:
“1) A Qualified Domestic Relations Order shall be prepared to equalize the
division of the retirement accounts which provides Petitioner, Christina Duran Moreno,
and interest, in the amount of $126,501 (which includes the $20,000 equalizing payment
from Section 4, above) from the Intel 401(k)/SERP plan as of December 31, 2019.”
The attachment also provides that “Each party shall bear his/here [sic] own
attorneys’ fees and costs; except, however, the costs incurred with Seth Kaplan shall be
shared equally by the parties.” A typewritten notation at the bottom of the attachment
stating that the attachment was “approved as conforming to court order” by Christina’s
attorney was left blank with a handwritten line through it, crossing it out.
5
Notice of entry of judgment was filed and served on October 26, 2021. Christina
timely appealed.
DISCUSSION
I
Gains and Losses on Equalization Payment from Miguel’s 401(k) Account
Christina contends that she is entitled to the gains and losses on the $126,501
equalization payment as of December 31, 2019, to the date of the payment or distribution
under the QDRO. Miguel disagrees, arguing that Christina cannot seek gains and losses
on the equalization payment on appeal because she never raised the issue below, and that
awarding an equalization payment without accounting for gains or losses was proper. We
conclude Christina has the better argument.
In a marital dissolution proceeding, the trial court must divide community property
equally. (Fam. Code, § 2550; In re Marriage of Campi, supra, 212 Cal.App.4th at
p. 1572.) This nondelegable judicial function generally requires that the court value the
assets and liabilities as near as practicable to the time of trial. (Fam. Code, § 2552; In re
Marriage of Campi, at p. 1572.)
“ ‘ “[T]he [trial] court has broad discretion to determine the manner in which
community property is divided and the responsibility to fix the value of assets and
liabilities in order to accomplish an equal division. [Citations.]” ’ ” (In re Marriage of
Wozniak (2020) 59 Cal.App.5th 120, 130.) The trial court’s findings on the
characterization and valuation of assets in a dissolution proceeding are factual
determinations that we review for substantial evidence. (In re Marriage of Campi, supra,
212 Cal.App.4th at p. 1572.) “ ‘However, when the resolution of the issue “ ‘requires a
critical consideration, in a factual context, of legal principles and their underlying
values,’ ” the issue is a mixed question of law and fact in which legal issues predominate,
and de novo review applies.’ ” (In re Marriage of Wozniak, at p. 130.)
6
Here, the parties stipulated the expert would characterize and value their
retirement accounts as of December 31, 2019. Based on the expert’s analysis, the trial
court subsequently awarded Christina and Miguel their respective retirement accounts in
the judgment on reserved issues, and ordered Miguel to pay Christina $126,501 from his
401(k) retirement account as of December 31, 2019, via a QDRO to equalize the division
of the retirement accounts. The judgment on reserved issues did not specifically
reference the gains and losses on the $126,501 equalization payment from the date of
valuation to the date of division under the QDRO, however.
Nevertheless, we agree with Christina that she is entitled to the gains and losses on
the equalization payment until it is distributed under the QDRO. On this point, we find
In re Marriage of Janes (2017) 11 Cal.App.5th 1043 instructive.
In In re Marriage of Janes, the parties executed a marital settlement agreement,
which was attached to a judgment of dissolution, that awarded the wife approximately
$113,000 from the husband’s retirement account, but the judgment did not mention gains
or losses on that amount. (In re Marriage of Janes, supra, 11 Cal.App.5th at pp. 1045,
1050.) The money was not distributed immediately, and later the wife sought the
$113,000 plus the gains and losses resulting from that money in a request for a QDRO.
(Ibid.)
In rejecting the husband’s argument that the court lacked jurisdiction to modify the
earlier judgment of dissolution by awarding the gains and losses to the wife (In re
Marriage of Janes, supra, 11 Cal.App.5th at p. 1049), the court found that the $113,000
became the wife’s separate property when the parties delivered the signed marital
settlement agreement on the same date the court entered the dissolution judgment, and
that the husband had no legal right to the gains on the wife’s separate property. (Ibid.,
citing Fam. Code, § 770, subd. (a)(3) [rents, issues, and profits acquired on separate
property are separate property].) The court found that the judgment did not need to
explicitly reference the gains and losses since it included all the necessary information to
7
make any necessary calculations--$113,000 of the 401(k) account was the wife’s separate
property as of the date of the marital settlement agreement and dissolution judgment. (Id.
at pp. 1049-1050.) “Whatever gains or losses occurred on that money after that date
belonged to [the] [w]ife--it was not necessary to include that information in the
judgment.” (Id. at p. 1050.)
The court also rejected the husband’s argument that the wife was not entitled to
gains and losses on the $113,000 because it constituted an equalization payment rather
than part of the regular division of community property. (In re Marriage of Janes, supra,
11 Cal.App.5th at p. 1051.) In doing so, the court reasoned that “[t]he fact that [the]
[w]ife’s separate property equalization payment remained in the [husband’s] 401(k) does
not entitle Husband to the gains earned on [the] [w]ife’s separate property.” (Ibid.)
We agree with the reasoning in In re Marriage of Janes.4 Applying that reasoning
here, at Miguel’s request, the trial court ordered him in the judgment on reserved issues
to pay Christina $126,501 from his 401(k) retirement account as of December 31, 2019,
via a QDRO to equalize the division of property. The parties had previously stipulated
that the retirement accounts would be characterized as of that date. Thus, Christina is
entitled to the amount of the equalization payment as of December 31, 2019, plus any
gains and less any losses until the $126,501 payment is actually divided pursuant to the
QDRO.
4 While the parties cite cases dealing with whether a trial court must consider future tax
consequences that may or may not arise after dividing community (see e.g., In re
Marriage of Fonstein (1976) 17 Cal.3d 738, 742 [trial court erred in taking into account
the tax consequences that might result to the husband in the event he subsequently
decided to convert his interest in his law firm into cash, and in reducing the current value
of that item accordingly]; Weinberg v. Weinberg (1967) 67 Cal.2d 557, 567 [trial court
did not abuse its discretion in awarding a money judgment to wife for half the value of
the community interest in the husband’s wholly owned corporations without considering
future tax consequences]), we find those decisions inapposite as neither party contends
the court erred in considering the tax consequences of the equalization payment.
8
To the extent Miguel argues that Christina never requested gains or losses during
trial and cannot raise this new issue for the first time on appeal, we disagree. Christina
repeatedly raised the issue of property characterization, allocation, and division below,
which implicitly raised the issue of gains and losses on any property allocated to her as
separate property. (In re Marriage of Janes, supra, 11 Cal.App.5th at pp. 1049-1051;
Fam. Code, § 770, subd. (a)(3) [as a matter of law, gains on separate property are
separate property].)
We likewise reject Miguel’s contention that the court’s handwritten interlineation
striking the word “interest” with respect to the equalization payment in the judgment on
reserved issues shows that the court intended to award Christina only the lump sum of
$126,501 and nothing more. As Christina points out, it appears that Miguel’s counsel,
and not Christina’s, prepared the attachment with the “interest” language and her counsel
did not sign off on the suggested language eventually stricken by the court. In any event,
the fact that the court did not award Christina interest on the equalization payment, says
little, if anything, about whether Christina is entitled to the gains and losses on the
equalization payment the court ordered in the judgment on reserved issues.
And finally, we disagree that awarding Christina the equalization payment plus
gains and losses required the trial court to engage in some sort of speculation as Miguel
argues. Rather, as Christina points out, the gains and losses easily will be determined at
the time the 401(k) account is segregated by the plan administrator pursuant to the
QDRO.
While not necessarily required under In re Marriage of Janes (see In re Marriage
of Janes, supra, 11 Cal.App.5th at pp. 1050-1051), for purposes of clarity, we shall
modify the judgment to state that Miguel shall pay Christina the sum of $126,501 as of
December 31, 2019 from his 401(k) account, plus any gains thereon and less any losses
thereon, to the date of the payment or distribution under the QDRO.
9
II
Costs of Kaplan’s Expert Services
Christina contends the trial court erred in ordering the parties to share the cost of
Kaplan’s fees equally, interpreting the judgment’s language to mean all of Kaplan’s fees.
According to her, the only issue before the court at trial was who should pay for the
additional fees Kaplan incurred to revise his report to incorporate the 401(k) information
that Miguel failed to timely disclose; as a result, ordering her to pay half of all of
Kaplan’s fees without notice and an opportunity to be heard deprived her of due process
and violated the parties’ previous marital settlement agreement wherein they stipulated to
pay their own attorneys’ fees and costs. Miguel, by contrast, argues the court properly
ordered them to split all of Kaplan’s costs equally. As explained below, we are not
persuaded by either party’s position.
In this case, the judgment on reserved issues states: “Each party shall bear
his/here [sic] own attorneys’ fees and costs; except, however, the costs incurred with Seth
Kaplan shall be shared equally by the parties.” This language was based on the court’s
prior Statement of Decision, which provided in relevant part: “in its discretion, that the
costs incurred with Mr. Kaplan shall be shared equally.”
On its face, the judgment and its underlying Statement of Decision are arguably
ambiguous regarding Kaplan’s costs. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th
384, 391 [“An ambiguity arises when language is reasonably susceptible of more than
one application to material facts”].) It is not clear whether the court meant all of
Kaplan’s fees throughout the entire litigation, or only a portion of Kaplan’s fees (such as
those fees incurred for the additional work required to revise his report). Given this
ambiguity, we look to extrinsic evidence to decipher the court’s intended meaning.
(SLPR, L.L.C. v. San Diego Unified Port District (2020) 49 Cal.App.5th 284, 299 [if an
order or judgment is ambiguous, a reviewing court may examine the record for its scope
10
and effect and may look at the circumstances of its making, and if the extrinsic evidence
is not in conflict, the order or judgment is reviewed de novo]; Postal Instant Press, Inc. v.
Sealy (1996) 43 Cal.App.4th 1704, 1708 [in construing terms of contract, an appellate
court must independently determine the meaning of the language used].)
Based on the record before us, we disagree with the parties’ interpretation of the
language--that it encompasses all of Kaplan’s costs, and instead conclude that the
judgment’s language, although inartfully phrased, refers to splitting equally the
additional costs Kaplan incurred when revising his report. We thus resolve any
ambiguity in Christina’s favor.
Contrary to the trial court’s finding in the Statement of Decision, the parties’
marital settlement agreement did not reference any stipulation regarding the payment of
Kaplan’s costs. Rather, the settlement agreement merely provides that each party shall
bear his or her own costs and attorneys’ fees.
At trial, Christina’s counsel objected to paying for the cost for Kaplan to revise his
report based on the belatedly disclosed 401(k) information. Counsel argued: “Now if the
Court was inclined . . . that you go through and value on the new information as opposed
to what we have now, then I would request that that be entirely 100 percent at [Miguel’s]
charge because he’s the one who concealed this information from my client.” The court
agreed that it was reasonable to have Miguel advance the costs to Kaplan for any
additional work, and ordered as follows: “the cost for the updated report from [Kaplan]
based upon the new additional information shall be borne by [Miguel]. The Court
reserves jurisdiction to reallocate up to 50 percent of that cost upon a showing that is
reasonable under the circumstances.” (Italics added.)
Miguel later requested that the trial court amend or modify its Memorandum of
Tentative Decision to include the word “all” in discussing Kaplan’s fees. In his
Objections to the court’s tentative decision, Miguel argued: “Page 8 at item 3 states that
Seth Kaplan’s charges should be shared equally. To avoid confusion, [Miguel] requests
11
the court to state that ALL of Mr. Kaplan’s charges in this litigation are to be shared
equally . . . .” The court overruled Miguel’s objection, and expressly denied “[t]he
request for modifications, additions and/or exclusions . . . .” Thereafter, the court
adopted the Memorandum of Tentative Decision, which did not reference ALL of
Kaplan’s fees, as its Statement of Decision.
Given the above, we do not interpret the court’s Statement of Decision and
subsequent judgment to have addressed whether the parties would share ALL of Kaplan’s
fees throughout the entire course of the litigation as that issue was not properly before the
court at trial. Instead, as the trial transcript makes clear, the only issue before the court
was allocating the cost of any additional fees Kaplan incurred to revise his report.
Indeed, the court specifically rejected Miguel’s request to include ALL of Kaplan fees in
the Statement of Decision upon which the judgment is based.
We note further that in discussing the payment of Kaplan’s fees in the Statement
of Decision, the court did so in relation to Christina’s argument during trial that she
should not be responsible for any additional fees incurred with Kaplan since it was
Miguel who failed to provide the most recent 401(k) reports and summaries in a timely
manner. This juxtaposition further supports our interpretation that the court ordered the
parties to share equally the additional costs associated with Kaplan’s work to revise the
report, and not all of Kaplan’s costs throughout the entire dissolution proceeding.
Interpreting the judgment in this manner also avoids a potential due process
problem. “ ‘The term “due process of law” asserts a fundamental principle of justice
which is not subject to any precise definition but deals essentially with the denial of
fundamental fairness, shocking to the universal sense of justice.’ ” (In re Marriage of
Carlsson (2008) 163 Cal.App.4th 281, 290.) Due process applies in marital dissolution
proceedings (id. at p. 284), and requires that parties be given notice and an opportunity to
be heard before a court decides an issue. (Id. at pp. 284, 290-291.) Because the only
issue before the court at trial regarding Kaplan’s costs were those costs associated with
12
revising his report based on Miguel’s belated disclosure of the 401(k) information,
interpreting the judgment to refer to all of Kaplan’s costs, as the parties have, raises
serious due process concerns.
To clarify any ambiguity, we shall modify the judgment to state that each party
shall equally pay for any additional costs Kaplan incurred to revise his report based on
the 401(k) information Miguel belatedly disclosed.
DISPOSITION
The judgment is modified to state that Miguel shall pay Christina the sum of
$126,501 as of December 31, 2019, from his 401(k) account, plus any gains thereon and
less any losses thereon, to the date of the payment or distribution under the QDRO. The
judgment is further modified to provide that Christina and Miguel shall equally pay for
any additional costs Kaplan incurred to revise his expert report based on the 401(k)
information Miguel belatedly disclosed. As so modified, the judgment is affirmed.
Christina is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1),
(3).)
HULL, J.
We concur:
ROBIE, Acting P. J.
BOULWARE EURIE, J.
13 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482603/ | Filed 11/9/22 Doe v. USA Swimming CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
JANE DOE, a Minor, etc.,
Plaintiff and Appellant, C091417
v. (Super. Ct. No. STK-CV-UPI-
2019-0004973)
USA SWIMMING, INC.,
ORDER MODIFYING
Defendant and Respondent. OPINION AND DENYING
REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed in this case on October 13, 2022, be modified
as follows:
On page 10, first full paragraph, after the last sentence beginning with “As we
have explained,” insert the following footnote:
Doe argued in a petition for rehearing that we must reverse because Doe objected to the
general duty of care instruction in her motion for new trial. She asserted that the trial
court had a duty to give a complete and comprehensive instruction on USA Swimming’s
duty to Doe based on a special relationship because Doe objected to the general duty of
care instruction. If this court were to accept that argument, it would mean a plaintiff in a
1
civil case who lost in the trial court could prevail on appeal by asserting that the trial
court gave an incomplete jury instruction to which the plaintiff objected even though the
plaintiff did not proffer a correct and complete instruction on the plaintiff’s theory of the
case. That is not the law. As noted, to obtain reversal based on the trial court’s failure to
instruct the jury on the plaintiff’s theory of the case, the plaintiff must have proposed
“complete and comprehensive instructions in accordance with [that party’s] theory of the
litigation . . . .” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951.) In addition,
although Doe suggested in her petition for rehearing that the general duty of care
instruction (CACI No. 401) was “incorrect,” the instruction correctly stated the general
duty of care. “Negligence is the failure to use reasonable care to prevent harm to oneself
or to others. . . .” (CACI No. 401.) Because Doe did not propose an appropriate,
complete and comprehensive instruction reflecting her theory of the case, Doe’s objection
to the general duty of care instruction did not preserve for appeal the assertion that a
different instruction should have been given.
This modification does not change the judgment.
The petition for rehearing is denied.
FOR THE COURT:
/S/
MAURO, Acting P. J.
/S/
HOCH, J.
/S/
EARL, J.
2
Filed 10/13/22 Doe v. USA Swimming CA3 (unmodified opinion)
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
JANE DOE, a Minor, etc.,
Plaintiff and Appellant, C091417
v. (Super. Ct. No. STK-CV-UPI-
2019-0004973)
USA SWIMMING, INC.,
Defendant and Respondent.
After a swimming coach repeatedly abused a minor athlete, Jane Doe, the minor
sued the coach, the local swim club, and USA Swimming, Inc., the national governing
body (NGB) for swimming competition in the United States. The lawsuit alleged, among
other things, that USA Swimming was negligent in failing to take reasonable measures to
protect the minor from sexual abuse by the coach. At trial, there was evidence USA
Swimming had an abuse-prevention program called SafeSport, but that USA Swimming
did not require minor athletes and their parents to be trained on the risk of sexual abuse.
1
Doe requested the following jury instruction regarding USA Swimming’s duty of
care: “USA Swimming had a duty of care to take reasonable measures to protect Plaintiff
Doe from the risk of sexual abuse by USA Swimming coaches, such as training or
educating Plaintiff Doe and her parents about how to avoid such a risk.” The trial court
denied the requested instruction and instead used the general negligence duty of care
instruction.
The jury found that USA Swimming was not negligent, and Doe appeals. USA
Swimming is the only respondent in this appeal. Doe contends the trial court improperly
denied the requested special instruction on duty.
Doe’s proposed instruction correctly explained that USA Swimming had a duty to
take reasonable measures to protect Doe from sexual abuse by USA Swimming coaches.
This is so because USA Swimming had a special relationship with both the minor athlete
and the coach, and the parties do not argue that the Rowland factors identify policy
considerations that should limit the duty. (Brown v. USA Taekwondo (2019) 40
Cal.App.5th 1077, 1094-1101 (Brown I); Brown v. USA Taekwondo (2021) 11 Cal.5th
204, 209, 216 (Brown II); Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland).) But
the remainder of Doe’s special instruction was too specific, proposing to instruct the jury
that examples of reasonable measures included training or educating Doe and her parents
about how to avoid such abuse. The trial court did not err in declining Doe’s proposed
instruction.
The trial court also instructed the jury that it could “consider customs or practices
in the community in deciding whether USA Swimming acted reasonably.” (CACI No.
413.) Doe contends it was error to give that instruction, but again, Doe has not
established instructional error.
We will affirm the judgment.
2
BACKGROUND
We independently review claims of instructional error. In doing so, we view the
evidence in the light most favorable to the appellant, in this case Doe. (Henderson v.
Harnischfeger Corp. (1974) 12 Cal.3d 663, 674.)
A
USA Swimming is the national organization responsible for Olympic trials,
national events, and service to local swim clubs. Such service includes the establishment
of rules, a code of conduct, and best practices; it also includes guidance on how to grow
the sport and the teams. USA Swimming provides clinics and camps for coaches and
athletes, education to coaches, and team training. About 3,200 member clubs are
associated with USA Swimming, but USA Swimming is not responsible for day-to-day
operation of the clubs. Hundreds of thousands of minors are athlete members of USA
Swimming. Coaches at member clubs must also be members of USA Swimming and are
subject to USA Swimming’s rules and code of conduct.
USA Swimming has been aware of sexual abuse issues in the sport of swimming
for many years. It adopted SafeSport in 2010 as its abuse prevention program. Through
SafeSport, USA Swimming requires mandatory background checks and screenings of
local swim club coaches and officials. The background checks are initiated by the local
clubs but accomplished through USA Swimming’s online portal. Coaches and officials
must regularly participate in athlete protection training.
USA Swimming provides SafeSport model policies to the local clubs, including
some mandatory policies such as abuse prevention and anti-bullying. In 2014, an
independent assessment commissioned by USA Swimming reported that although USA
Swimming had a voluntary program for education and training of parents and athletes on
sexual abuse prevention, few parents (about 1.4 percent) or athletes (about .5 percent)
completed the training. The report recommended that USA Swimming make the sexual
3
abuse prevention education and training mandatory for parents and minor athletes, but
USA Swimming did not adopt the recommendation.
Evidence was presented that an abuser typically tries to develop a relationship
with the minor, and sometimes a parent, and thus grooms the minor and the parent.
The abuser then begins touching the minor inappropriately, stretching boundaries and
progressing to more serious abuse, but the minor, or even the parent, does not stop or
report the touching because of the relationship with the abuser or for other reasons.
There was evidence that although the purpose of the sexual abuse prevention policies and
programs is to prevent abuse, they may not prevent all abuse.
B
Stockton Swim Club is a member of USA Swimming. It was a party to these
proceedings but settled with Doe before trial. Shunichi Fujishima was a coach at
Stockton Swim Club, and Doe was an athlete in the club. She was born in 2005.
Fujishima favored Doe in practices and began giving her hugs and full-body
massages at practices and swim meets. This took place in front of other coaches and
athletes. Fujishima also connected with Doe over SnapChat, including on topics
unrelated to swimming.
At a swim meet in Japan in 2018, Fujishima pressed Doe against a wall, kissed
her, and tried to put his hand inside the bottom and top of her swimsuit. He touched her
vagina. Before going to Japan, Fujishima kissed Doe at the pool while no one else was
there.
Also in 2018, Doe’s mother allowed Fujishima to move into the home of Doe and
her mother. Fujishima and Doe, who was 12 and 13 years old during that time, had
sexual intercourse many times for about eight months. That summer, with her mother’s
permission, Doe went with Fujishima to the Junior Olympics in San Jose and stayed at a
hotel with Fujishima and his brothers. Fujishima was arrested in January 2019.
4
Doe’s mother testified she and Doe would have taken SafeSport training if she had
known about it. But one of Doe’s experts testified he did not know of any youth-serving
sports organization in the United States that mandates training for parents about the risk
of sexual abuse.
Doe’s trial counsel asked the trial court to give a special instruction that would tell
the jury USA Swimming had a duty to take reasonable measures to protect Doe from the
risk of sexual abuse, such as training and educating her and her parents about how to
avoid the risk. In support of the request, Doe’s trial counsel argued USA Swimming had
a special relationship and added: “If USA Swimming had trained or provided education
materials to [Doe] or her parents, both would have been able to detect and report
Fujishima’s grooming behavior. Further, if other Stockton Swim Club staff, youth
member[s] and parents were trained they would have reported the grooming behavior that
was right before their eyes well before any abuse occurred.” Doe’s trial counsel
continued: “[T]he high degree of foreseeability that a child could be abused, coupled
with the minimal burden on USA Swimming to educate or train its members with
currently existing materials, strongly supports the imposition of a duty here.”
Trial counsel for USA Swimming opposed the request for the special jury
instruction, arguing that “while it sounds good to require training of parents and children
in the area of sexual abuse -- that is not the standard of care in the United States, and it is
not required in any youth serving sports organization.” Trial counsel for USA Swimming
added that the authorities proffered by Doe were inapplicable and insufficient to support
her proposition that USA Swimming had a duty to educate and train Doe and her parents.
Following argument at the jury-instruction conference, the trial court took the
matter under submission and later issued a ruling declining, without comment, to give
the proposed special instruction. Instead, the trial court instructed the jury with CACI
No. 401 regarding USA Swimming’s duty of care, stating:
5
“Negligence is the failure to use reasonable care to prevent harm to oneself or to
others.
“A person can be negligent by acting or by failing to act. A person is negligent if
he or she does something that a reasonably careful person would not do in the same
situation or fails to do something that a reasonably careful person would do in the same
situation.
“You must decide how a reasonably careful person would have acted in USA
Swimming’s situation.”
DISCUSSION
I
Doe contends the trial court erred in refusing to instruct the jury using Doe’s
proposed special instruction on USA Swimming’s duty of care. We disagree.
A
“The formulation of the standard of care is a question of law for the court.
[Citations.] Once the court has formulated the standard, its application to the facts of the
case is a task for the trier of fact if reasonable minds might differ as to whether the
defendant’s conduct has conformed to the standard. [Citations.] [¶] In most cases,
courts have fixed no standard of care for tort liability more precise than that of a
reasonably prudent person under like circumstances. [Citations.] ‘But the proper
conduct of a reasonable person under particular situations may become settled by judicial
decision or be prescribed by statute or ordinance.’ [Citations.]” (Ramirez v. Plough, Inc.
(1993) 6 Cal.4th 539, 546-547.)
When a plaintiff alleges negligence based on a defendant’s failure to take action to
protect the plaintiff from injuries caused by a third party, we apply a two-step process to
determine the defendant’s duty of care to the plaintiff. “First, the court must determine
whether there exists a special relationship between the parties or some other set of
circumstances giving rise to an affirmative duty to protect. Second, if so, the court must
6
consult the factors described in Rowland to determine whether relevant policy
considerations counsel limiting that duty.” (Brown II, supra, 11 Cal.5th at p. 209.)
“A special relationship between the defendant and the victim is one that ‘gives the
victim a right to expect’ protection from the defendant, while a special relationship
between the defendant and the dangerous third party is one that ‘entails an ability to
control [the third party’s] conduct.’ [Citation.] Relationships between parents and
children, colleges and students, employers and employees, common carriers and
passengers, and innkeepers and guests, are all examples of special relationships that give
rise to an affirmative duty to protect. [Citations.] The existence of such a special
relationship puts the defendant in a unique position to protect the plaintiff from injury.
The law requires the defendant to use this position accordingly. [Citation.]” (Brown II,
supra, 11 Cal.5th at p. 216.)
In Brown I, the court held that USA Taekwondo (USAT), the national governing
body for the Olympic sport of taekwondo, had a special relationship with a molesting
coach because the coach “was required to register with USAT to coach taekwondo at
USAT-sponsored competitions, athletes could only compete in competitions with
registered coaches, USAT could (and later did) implement policies and procedures to
protect athletes from sexual abuse by their coaches, and USAT could (and later did) bar
[the coach] from coaching athletes at taekwondo competitions for his violations of
USAT’s policies and procedures. USAT was therefore in a unique position to protect
taekwondo youth athletes from harm.” (Brown I, supra, 40 Cal.App.5th at p. 1084.)
There is no substantial difference between the foregoing quoted passage in Brown
I and the circumstances in this case with respect to the NGB’s position to control coaches
and protect minor athletes. USA Swimming requires coaches to be registered and take
mandatory sexual abuse prevention training, and it can bar coaches who are a threat to
minor athletes. In addition, USA Swimming has the SafeSport program, meant to protect
minor athletes from sexual abuse. USA Swimming does not argue against a finding of a
7
special relationship. We conclude USA Swimming had a special relationship with the
coach and with Doe.
Furthermore, the parties do not argue that the Rowland factors identify policy
considerations that should limit the duty. USA Swimming had special relationships with
the coach and with the minor athlete and there has been no showing that the Rowland
factors identify policy considerations that should limit the duty to protect the minor
athlete.
B
Thus, Doe’s proposed special instruction correctly explained that USA Swimming
had a duty to take reasonable measures to protect Doe from sexual abuse by USA
Swimming coaches. But it also proposed to instruct the jury that examples of reasonable
measures included training or educating Doe and her parents about how to avoid such
abuse. That portion of the proposed instruction was overly specific.
The formulation of a duty of care does not depend on the specific facts of the case.
“An approach that [focuses] the duty inquiry on case-specific facts would tend to
‘eliminate the role of the jury in negligence cases, transforming the question of whether a
defendant breached the duty of care under the facts of a particular case into a legal issue
to be decided by the court . . . .’ [Citation.]” (Cabral v. Ralphs Grocery Co. (2011)
51 Cal.4th 764, 773.) Citing Cabral and other authorities, Justice Cuéllar, in a
concurring opinion in Brown II, emphasized that duty must be expressed at a high level
of generality because what constitutes reasonable care in a specific case usually involves
the question of whether the defendant breached a duty. (Brown II, supra, 11 Cal.5th at
pp. 228-229 (conc. opn. of Cuéllar, J.), citing Cabral, at p. 773.) Justice Cuéllar added
that as a policy matter, courts tend to leave questions of breach to the jury. (Ibid.)
In this case, Doe’s proposed special instruction was not crafted with a high level
of generality. Rather, it purported to give specific examples of what USA Swimming
8
should have done, thereby conflating duty and breach of duty. The trial court did not err
in rejecting the proposed instruction.
At oral argument, counsel for Doe asserted that even if the proposed instruction
was too specific because it referenced the examples of education and training, the trial
court was nevertheless familiar with Brown II and should have corrected the instruction.
But that assertion is contrary to the law in civil cases. The trial court did not have the
responsibility to modify Doe’s proposed jury instruction.
“Each party in a civil proceeding must request complete and comprehensive
instructions on its theory of the case; if a party fails to do so, the court ordinarily has no
duty to instruct on its own motion. [Citation.]” (Bullock v. Philip Morris USA, Inc.
(2008) 159 Cal.App.4th 655, 674-675.) While a litigant has a right to have the jury
properly instructed on its theory of the case, the proffered instructions must accurately
state the law and must not overemphasize selective issues or evidence. (Fierro v.
Internat. Harvester Co. (1982) 127 Cal.App.3d 862, 869.) A trial court may reject an
incorrect or misleading jury instruction in a civil case, and the court is not required to
rewrite an incorrect or misleading jury instruction. (Shaw v. Pacific Greyhound Lines
(1958) 50 Cal.2d 153, 158 (Shaw).) To successfully claim on appeal that the trial court
improperly rejected a proposed instruction, the appellant must show a legally correct and
specific instruction was requested. (Switzer v. State of California (1969) 269 Cal.App.2d
627, 636.)
Here, Doe would have been justified to propose an instruction that USA
Swimming had a duty to take reasonable measures to protect Doe from sexual abuse by
USA Swimming coaches. But Doe’s proposed instruction went further, seeking to
instruct that the duty included such efforts as training or educating Doe and her parents
about how to avoid the risk of sexual abuse. Such examples were too specific for the
required more general instruction on duty, and the trial court did not have an obligation to
correct the proposed instruction. (Shaw, supra, 50 Cal.2d at p. 158.)
9
Doe claims the instruction actually given to the jury regarding USA Swimming’s
duty of care was insufficient, and she objected to that instruction by making a motion for
new trial after the verdict was rendered. As noted, the general duty instruction, CACI
No. 401, was given in this case. It asked the jury to consider how a reasonable person in
USA Swimming’s situation would act, but it did not inform the jury that USA Swimming
had a duty to take reasonable measures to protect Doe. As we have explained, however,
it was Doe’s responsibility to propose a complete instruction in this civil case, and thus
her challenge to the instruction lacks merit.
II
The trial court also instructed the jury based on CACI No. 413 as follows:
“You may consider customs or practices in the community in deciding whether USA
Swimming Inc. acted reasonably. Customs and practices do not necessarily determine
what a reasonable person would have done in USA Swimming Inc.’s situation. They are
only factors for you to consider. Following a custom or practice does not excuse conduct
that is unreasonable. You should consider whether the custom or practice itself is
reasonable.”
On appeal, Doe contends the trial court erred by giving this instruction because
NGBs like USA Swimming have a duty to affirmatively protect minor athletes from
sexual abuse. As we have explained, we agree that USA Swimming had a duty to take
reasonable measures to protect Doe from sexual abuse by USA Swimming coaches, and
that the jury should have been so instructed if Doe had requested a proper instruction.
However, Doe again seeks to conflate duty and breach of duty. We do not agree with
Doe that the jury could not consider customs or practices in the community in
determining whether USA Swimming acted reasonably, i.e., whether it breached its duty.
Generally, a jury may consider customs and practices in the community when deciding
whether the actor used due care, even though such evidence is not conclusive. (Holt v.
Dept. of Food & Agriculture (1985) 171 Cal.App.3d 427, 435.) It was not error to so
10
instruct the jury, as the jury was asked to determine whether USA Swimming acted with
due care.
DISPOSITION
The judgment is affirmed. USA Swimming is awarded its costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
/S/
MAURO, Acting P. J.
We concur:
/S/
HOCH, J.
/S/
EARL, J.
11 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482605/ | SUPERIOR COURT
OF THE
STATE OF DELAWARE
PAUL R. WALLACE LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 N. KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
(302) 255-0660
Date Submitted: November 4, 2022
Date Decided: November 9, 2022
Ryan P. Newell, Esquire Joanna J. Cline, Esquire
YOUNG CONAWAY STARGATT Emily L. Wheatley, Esquire
& TAYLOR, LLP TROUTMAN PEPPER HAMILTON
100 North King Street SANDERS LLP
Wilmington, Delaware 19801 1313 Market Street, P.O. Box 1709
Wilmington, Delaware 19801-1709
Andrew P. Sherrod, Esquire
HIRSCHLER FLEISCHER, P.C.
P.O. Box 500
Richmond, Virginia 23218-0500
RE: Hub Group, Inc. d/b/a Unyson Logistics v. Southern States Cooperative, Inc.
and Agway Farm & Home Supply, LLC
C.A. No. N22C-04-131 PRW (CCLD)
Plaintiff Hub Group Inc.’s Motion to Transfer Action to Active Docket
Dear Counsel:
This Letter Order resolves Plaintiff Hub Group, Inc. d/b/a Unyson Logistics’
Motion to Transfer C.A. No. N22C-04-131 to the Active Docket.
In April 2022, Plaintiff Hub Group, Inc. d/b/a/ Unyson Logistics (“Hub
Group”) brought an action for breach of contract against Defendant Southern States
Cooperative, Inc. (“SSCI”) and Agway Farm & Home Supply, LLC (“Agway”).1
1
Compl. ¶¶ 28-35, Apr. 20, 2022 (D.I. 1).
Hub Group, Inc. d/b/a Unyson Logistics v. Southern States Cooperative, Inc. and
Agway Farm & Home Supply, LLC
C.A. No. N22C-04-131 PRW (CCLD)
November 9, 2022
Page 2 of 6
SSCI timely answered and filed a cross-claim against Agway for contractual
indemnification.2
On July 5, 2022, Agway filed a voluntary petition for relief in the United
States Bankruptcy Court for the District of Delaware,3 and on August 18, 2022, the
Superior Court Prothonotary informed the parties the case was moved onto the
Bankruptcy Dormant Docket.4
Hub Group has now moved to transfer the case back to the active docket—
but, as to SSCI only, not to Agway.5
This Court’s Civil Rule 41(g) governs the procedures relating to the
bankruptcy dormant docket. The Rule provides:
When the Court is advised that a party has filed a bankruptcy petition,
the action shall be stayed. The Prothonotary shall remove the action
from the active docket to the dormant docket. All parties for whom an
appearance has been entered, either by counsel or pro se, shall be
notified of the date of the transfer to the dormant docket. Twenty-four
months after the transfer, the action shall be dismissed without further
notice unless, prior to the expiration of the twenty-four month period, a
party seeks to extend the period, for good cause shown.6
2
Countercl. ¶¶ 7-9, May 26, 2022 (D.I. 5).
3
See D.I. 14.
4
D.I. 15.
5
Pl.’s Mot. at 1. Sept. 23, 2022 (D.I. 18).
6
Del. Super. Ct. Civ. R. 41(g).
Hub Group, Inc. d/b/a Unyson Logistics v. Southern States Cooperative, Inc. and
Agway Farm & Home Supply, LLC
C.A. No. N22C-04-131 PRW (CCLD)
November 9, 2022
Page 3 of 6
Hub Group suggests that because the defendants are severally liable, complete
relief can be afforded if the case proceeds against SSCI only—i.e., without Agway.7
Hub Group insists that Superior Court Civil Rule 41(g) is not “an immutable
stay as to all defendants involved in the litigation.”8 Hub Group relies on two cases
for that proposition: Kurten v. Johnson & Johnson9 and Nichols Nursery Inc. v.
Lobdell.10
SSCI counters that moving the case back to the active docket would unduly
prejudice it, harm Agway’s bankruptcy estate, and violate the purpose behind the
bankruptcy stay.11 First, SSCI says that defending its case “may require significant
discovery of information and documents that are in Agway’s possession” and
because of the automatic stay it “is unable to seek this discovery from Agway.”12
Second, SSCI argues that because it has filed a cross-claim for indemnification, it
7
Pl.’s Mot. ¶ 4.
8
Id. ¶ 6.
9
2020 WL 1888940, at *2 (Del. Super. Ct. Apr. 14, 2020) (“nothing suggests [Rule 41(g)] was
ever intended to be - an independent right of non-bankrupt co-defendants to enjoy the stay of the
bankrupt entity”).
10
2017 WL 3051481, at *1 (Del. Super. Ct. July 19, 2017) (lifting stay after 90 days unless the
bankruptcy court determines the automatic stay should apply to the non-bankrupt individual co-
defendants).
11
Def. SSCI’s Response at 2-6, Oct. 7, 2022 (D.I. 23).
12
Id. at 3-4.
Hub Group, Inc. d/b/a Unyson Logistics v. Southern States Cooperative, Inc. and
Agway Farm & Home Supply, LLC
C.A. No. N22C-04-131 PRW (CCLD)
November 9, 2022
Page 4 of 6
will be forced to continue the action “without the ability to pursue its contractual
right to indemnification against Agway.”13 Last, SSCI posits that “Hub’s suit against
SSCI is in essence a suit against Agway” and in those instances the federal courts
have extended stays to non-bankrupt defendants.14
In A.H. Robins Co., Inc. v. Piccinin, the United States Court of Appeals for
the Fourth Circuit recognized that while the bankruptcy code’s automatic stay
provision15 “is generally said to be available only to the debtor,” there could be
situations where the automatic stay should include a third party or co-defendant so
as to avoid an “unusual situation.”16 That situation could occur “when there is such
identity between the debtor and the third-party defendant that the debtor may be said
to be the real party defendant and that a judgment against the third-party defendant
will in effect be a judgment or finding against the debtor.”17 The Court provided an
example of such a situation: “a suit against a third-party who is entitled to absolute
13
Id.at 4.
14
Id. at 5-6.
15
11 U.S.C. § 362(a)(1) (2022).
16
788 F.2d 994, 999 (4th Cir. 1986). As noted by SSCI, A.H. Robins Co., Inc. has been applied
by various circuits—including the Third Circuit. See McCartney v. Integra Nat’l Bank N., 106
F.3d 506, 510 (3d Cir. 1997).
17
788 F.2d at 999.
Hub Group, Inc. d/b/a Unyson Logistics v. Southern States Cooperative, Inc. and
Agway Farm & Home Supply, LLC
C.A. No. N22C-04-131 PRW (CCLD)
November 9, 2022
Page 5 of 6
indemnity by the debtor on account of any judgment that might result against them
in the case.”18 According to the Fourth Circuit, “[t]o refuse application of the
statutory stay” in those types of situations “would defeat the very purpose and intent
of the statute.”19
Ultimately, both parties are correct. Superior Court Civil Rule 41(g)20 is not
an automatic stay for non-bankrupt third parties or co-defendants.21 But because
SSCI has filed a cross-claim for contractual indemnification, partially activating the
case has the palpable potential of affecting Agway and thus serves counter to the
purpose of the bankruptcy code’s automatic stay and, by implication, Rule 41(g).22
18
Id.
19
Id.
20
As recognized by this Court in Kurten v. Johnson & Johnson, “it appears there are virtually no
opinions written on the effect of the dormant docket of Rule 41.” 2020 WL 1888940, at *1 (Del.
Super. Ct. Apr. 14, 2020)
21
Id. at *2; Nichols Nursery Inc., 2017 WL 3051481, at *1.
22
The Court heard argument last week. D.I. 26. At argument, the parties referenced certain cases
not included in their briefing. So, the Court allowed the parties to supplement with those case
citations referenced. Id. Generally, the cases provided concerned whether a plaintiff should be
allowed to propound discovery against a non-bankrupt co-defendant, even when that discovery
might implicate the debtor. D.I. 27 at 1-2; D.I. 28 at 1-3.
The automatic stay “does not preclude generation of information regarding claims by or against a
non-debtor party, even where that information could eventually adversely affect the Debtor.” In re
Miller, 262 B.R. 499, 505 (B.A.P. 9th Cir. 2001). However, when “discovery requests would . . .
affect the property of the debtor” such as in the indemnity context, discovery too should be stayed.
In re Philadelphia Newspaper, LLC, 423 B.R. 98, 105 (E.D. Pa. 2010). There appears some
disagreement on whether the indemnification obligation needs to be absolute, or whether the
presence of an indemnification obligation is enough to stay discovery. Compare Stanford v.
Hub Group, Inc. d/b/a Unyson Logistics v. Southern States Cooperative, Inc. and
Agway Farm & Home Supply, LLC
C.A. No. N22C-04-131 PRW (CCLD)
November 9, 2022
Page 6 of 6
For the foregoing reasons, Hub Group’s Motion to Transfer the Action to the
Active Docket is DENIED.
IT IS SO ORDERED.
_______________________
Paul R. Wallace, Judge
cc: All Counsel via File and Serve
Foamex, L.P., 2009 WL 1033607, at *2 n.9 (E.D. Pa. Apr. 15, 2009) (“Foamex’s indemnification
obligations do not appear absolute, as required by courts extending the stay due to the existence of
indemnification agreements.” (citation omitted)); Hess Corp. v. Performance Texaco, 2008 WL
4960203, at *2 (M.D. Pa. Nov. 19, 2008), with in re Philadelphia Newspaper, LLC, 423 B.R. at
105. But the Court need not necessarily resolve that issue here as the ability or inability to engage
full discovery among the several parties is not dispositive to the Court’s resolution.
That said, the Court was not provided with the Contribution Agreement—which SSCI claims
contains an indemnification provision. But based on SSCI’s averments, it appears that the
indemnification obligation would apply to the sole claim (breach of contract) such that the action
should remain on the dormant bankruptcy docket and, under these circumstances, discovery should
not commence here. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482599/ | Filed 11/9/22 P. v. Cruz 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
THE PEOPLE,
Plaintiff and Respondent, G060903
v. (Super. Ct. No. 02CF0796
ROBERTO CARLOS CRUZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Steven D. Bromberg, Judge. Affirmed.
Leslie Conrad, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Roberto Carlos Cruz was convicted, along with a codefendant, of
the 2002 murders of Andres Garza and Francisco Walle. The jury found the murders to
be first degree and returned true findings on special circumstance and enhancement
allegations. Cruz was sentence to consecutive terms of life imprisonment without parole
(a gang enhancement was stricken, and sentence on another count was stayed). He
appealed and we affirmed his conviction. (People v. Cruz (Sept. 29, 2006, G035177)
[nonpub. opn.].)
Cruz has since petitioned unsuccessfully for writ relief from this conviction
three times. In 2021, he filed this action, seeking relief pursuant to newly enacted Penal
Code section 1170.95.1 Section 1170.95 is the procedural mechanism for implementing
legislative changes in California law which narrow the scope of vicarious liability for
murder in two ways. First, the Legislature eliminated the natural and probable
consequences theory for that crime by providing that “[m]alice shall not be imputed to a
person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Second,
it reigned in the felony murder rule so that it can only be applied to nonkillers if they
aided and abetted the killer in committing first degree murder, or they were a major
participant in the underlying felony and acted recklessly indifferent to human life. (§
189, subd. (e).)
In addition to ushering in these changes, the Legislature also enacted
section 1170.95, which is the procedural mechanism for challenging a murder conviction
based on vicarious liability. To obtain relief under that section, the defendant must show
1) he was prosecuted for murder under the felony murder rule or the natural and probable
consequences doctrine, 2) he was ultimately convicted of first or second degree murder,
1
That statute has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.)
Because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to
Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code.
2
and 3) and he would not be liable for murder today because of how the Legislature has
redefined that offense. (§ 1170.95, subd. (a).)
If the defendant makes a prima facie showing to that effect, the trial court is
required to issue an order to show cause and, absent a concession by the People, conduct
an evidentiary hearing. (§ 1170.95, subds. (c), (d).) At the hearing, the prosecution must
prove beyond a reasonable doubt the defendant is ineligible for resentencing because his
conduct did in fact rise to the level of murder as redefined by Senate Bill 1437. (Id.,
subd. (d)(3).) Otherwise, the defendant is entitled to vacatur and resentencing pursuant to
the terms of section 1170.95.
Here, counsel was appointed for appellant, the matter was fully briefed, a
hearing was held, and the trial court denied the requested relief. Appellant appealed, and
we appointed counsel to represent him. Counsel filed a brief which set forth the
procedural facts of the case. Counsel did not argue against appellant but advised us there
were no issues in the case that had any chance of success. Appellant was invited to
express his own objections to the proceedings against him and filed a brief, but – as we
will discuss – while he touched upon the section 1170.95 issue, he mostly addressed
substantive issues not cognizable on his petition.
We find ourselves in agreement with appellate counsel. There is no relief
available to Cruz. In the first place, the jury found defendant guilty of first degree
murder. That finding necessarily requires an intent to kill. The jury also found a gang
special circumstance to be true as to both counts, again necessarily reflecting an intent to
kill. And they found true a drive-by murder special circumstance, another finding that
necessarily includes a decision Cruz had the intent to kill.
As the trial court correctly found – after appointing appellant an attorney
and conducting an undisputed hearing on the issue – these determinations establish
appellant harbored actual malice so as to render him ineligible for resentencing under
section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952, 971; People v. Gentile (2020)
3
10 Cal.5th 830, 847; People v. Bentley (2020) 55 Cal.App.5th 150, 154.) Therefore, his
petition was properly denied. There is simply no issue here. Relief under section
1170.95 requires that the applicant be someone who could not be convicted under the
legislative reformation of the felony murder rule. Cruz does not fit that mold; he was one
of two shooters and the jury found he had an intent to kill.
In his supplemental brief, appellant contends the jury instructions were
erroneous. He relies on erroneous instructions regarding the “natural and probable
consequences theory” of criminal liability he says were given. But those instructions
were not given here.
This was a mistaken identity defense; Cruz claimed never to have been at
the scene and to have met his codefendant only when they were jailed together. Cruz was
tried as one of two shooters in a gang retaliation case; there was no suggestion of any
underlying crime of which the murder was a natural and probable consequence. The only
natural and probable consequence in the case was that if you shoot somebody he may
naturally and probably die. So no “natural and probable consequence” instructions were
given.
Beyond that, Cruz’s briefing consists entirely of issues we are not able to
decide in an appeal from the denial of a section 1170.95 petition. He contends the joinder
of his case with his codefendant’s was prejudicial (an argument analyzed and rejected in
Cruz’s direct appeal), he asserts California’s criminal street gang laws are
unconstitutional, he contends his trial counsel provided inadequate assistance, he attacks
the sufficiency of the evidence, pointing out the discrepancies between the descriptions of
the perpetrators and his own physical makeup, and argues the photo array from which his
picture was chosen was unduly suggestive. Essentially his argument is that the case
against him is so weak that he could not be convicted if tried again – and that section
1170.95 is designed to provide relief to those who could not be convicted under
California’s new murder standards.
4
But on this appeal, we are limited by law to a review of the proceedings
under his request for relief under section 1170.95. We cannot review issues either
decided on his direct appeal or apparent and unraised. All we can do is review the
hearing held below on his section 1170.95 petition, and we are unable to find any flaw in
those proceedings. The jury rejected his defense that he was not there. By finding him
guilty of first degree murder and finding the special circumstances true, they necessarily
found he was a major participant (there were no minor participants; there were only the
two shooters) and he had the intent to kill.
The order is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
5 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482598/ | Filed 11/9/22 San Jose Water Co. v. Brightview Landscape Services CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
SAN JOSE WATER COMPANY, H049017
(Santa Clara County
Cross-Complainant and Appellant, Super. Ct. No. 18CV330562)
v.
BRIGHTVIEW LANDSCAPE
SERVICES, INC.,
Cross-Defendant and Respondent.
When a neighbor sued for personal injury due to debris from one of its trees,
defendant San Jose Water Company (SJWC) filed a cross-complaint for indemnity
against cross-defendant BrightView Landscape Services, Inc. (BrightView), which was
contracted to provide landscaping and tree care services on behalf of SJWC.
The trial court granted BrightView’s motion for summary judgment and, in the
alternative, summary adjudication of SJWC’s first amended cross-complaint, on the
ground that Brightview had no obligation under its contract to defend or indemnify
SJWC for the neighbor’s injury. SJWC appeals from the ensuing judgment.
We conclude that BrightView has met its initial burden and SJWC has failed to
raise any issue of triable material fact regarding BrightView’s indemnity obligation
arising from the contract between the parties. Accordingly, we affirm.
I. BACKGROUND
A. Complaint
In June 2018, plaintiff Carole Adams sued defendants Cabernet Vineyards
Homeowners Association (Cabernet), SJWC, and Community Management Services, Inc.
Her complaint set forth two causes of action: (1) premises liability; and (2) negligence.
Adams alleged that she was injured when she tripped on debris that had fallen from
nearby trees onto a walkway near the front of her residence at the Cabernet property. She
alleged the trees had been overgrown for a long period of time before the incident and the
defendants had failed to act reasonably to remove the hazards, inspect the premises, or
warn pedestrians.
B. First Amended Cross-Complaint
The following year, SJWC filed the operative first amended cross-complaint
(cross-complaint), pleading the following causes of action: (1) comparative indemnity;
(2) declaratory relief; (3) equitable indemnity; (4) equitable contribution; and (5) breach
of contract of express indemnity. SJWC alleged that BrightView had a duty to defend
and indemnify SJWC against the Adams complaint, under theories of both equitable and
express indemnity.
C. The Parties’ Motions
In August 2020 (with an amended notice on September 16), BrightView filed a
motion for summary judgment and, in the alternative, summary adjudication, contending
that it had no duty to inspect or trim the trees giving rise to the underlying lawsuit against
SJWC. The next month, SJWC moved for summary adjudication of its second cause of
action for declaratory relief, seeking to compel BrightView to comply with its alleged
duty to defend SJWC against Adams’s claims.1
1
SJWC’s opening brief only addresses and asks for relief regarding BrightView’s
motion for summary judgment. SJWC’s motion for summary adjudication is not before
us in this appeal.
2
The following evidence was before the trial court on these motions:2
On July 6, 2016, Adams tripped and injured her ankle while walking in a common
area walkway of the Cabernet community where she was a resident. She tripped on
debris that had fallen onto the walkway from overgrown and encroaching trees located on
SJWC property.
BrightView (formerly Valley Crest Companies) and its predecessors have
provided tree care services to SJWC for over 35 years. BrightView also provides tree
care services to Cabernet. At the time of Adams’s injury, BrightView and SJWC were
parties to a Master Services Agreement (Agreement), which provided that BrightView
would provide SJWC with “[l]andscaping and tree care services.” The Agreement also
provided that BrightView “shall perform the services described in each work order
executed by [SJWC] from time to time substantially in the form attached hereto as
Attachment A.”
BrightView provided tree care services for Cabernet on a yearly basis. The yearly
inspection would include a proposal containing identified issues and would be presented
to Cabernet’s community manager and then the Cabernet board for approval. Cabernet
could have any additional needs beyond the yearly inspection addressed by contacting
Brent Wahlberg, an account manager for BrightView, who was the account manager for
both Cabernet and SJWC at the time of the incident.
The Cabernet property was bordered by SJWC’s Williams Station. Tom Vais is
the facilities supervisor for Williams Station. Vais makes final determinations as to
landscaping and tree maintenance for SJWC, but he has no training identifying safety
hazards posed by trees or identifying when trees need to be cut. Vais is the only person
2
We take the following facts from the parties’ separate statements of undisputed
facts, evidence admitted in conjunction with the motion for summary judgment, and
admissions in the parties’ briefs. (See Thompson v. Ioane (2017) 11 Cal.App.5th 1180,
1186, fn. 4.)
3
responsible for landscape and tree care issues at 150-175 separate SJWC locations and
was the only one with the duty to oversee landscaping at Williams Station. Between
2014 and 2017, Vais had no regularly scheduled visits to inspect Williams Station.
Before the inception of the Master Services Agreement, SJWC had received a
proposal from Valley Crest which stated: “We are committed to being pro-active rather
than re-active in our management of your landscape. We will email reports that include
finding of faulty irrigation parts, damaged plants, turf or trees.” One of the services that
Valley Crest proposed it would provide was to “[w]alk the various sites with you to
continually be aware of your priorities.” Vais never did any walkthroughs of Williams
Station with Valley Crest.
Wahlberg testified at his deposition that there was no recurring scheduled
inspection at Williams Station. Tree care issues would generally be handled at the
request of SJWC; SJWC made requests approximately six times a year. Vais likewise
stated in his deposition that tree care would be performed at Williams Station only in
response to a specific request for tree care. He also stated that when a need for tree care
services was brought to his attention, he would contact BrightView “to assess the
situation and take [the] proper course of action” and that the overhanging tree condition
was one he would have expected Cabernet to bring to SJWC’s attention. Wahlberg
testified that prior to June 2016, he never went to Williams Station to inspect the area
adjacent to the Cabernet property.
On June 27, 2016, Wahlberg conducted his annual inspection of the Cabernet
property. During the inspection, Wahlberg was told by someone from Cabernet that there
was a problem with overhanging trees growing into the Cabernet property. Wahlberg
told the person that he would contact SJWC to recommend that the trees be trimmed
back, reduced, or removed. Wahlberg testified that when he contacted Vais to notify him
about the overhanging trees, Vais told him to go ahead and take care of it and to put it
4
into his schedule. The tree trimming was completed on August 10, 2016, at the direction
of, and paid by, SJWC.
The Agreement between the parties contains an indemnity provision.
Paragraph 7(a) of the Agreement provides: “To the fullest extent permitted by law,
Contractor shall defend, indemnify and hold the Company and its agents, directors,
officers, employees, parent company, attorneys, affiliates, subsidiaries, representatives,
independent contractors, insurers, assigns and successors harmless from and against all
claims, demands, losses, expenses, or liability, including attorneys’ fees, arising, directly
or indirectly, from or in connection with the performance of the Services under this
Agreement, whether or not such claims, demands, or liability are caused by Contractor,
Contractor’s agents or employees, or subcontractors employed on work hereunder, their
agents or employees, or products installed by Contractor or subcontractors under this
Agreement, except to the extent such claims, demands, losses, expenses or liability are
caused by the sole negligence, active negligence or willful misconduct of the Company,
or arise from defects in designs furnished by the Company. Such indemnity shall extend
to claims, demands, losses, expenses and liability for damage or injuries occurring after
completion of work under this Agreement arising out of the performance of such work.”
(Italics added.)
Three years after the accident, SJWC demanded that BrightView defend and
indemnify SJWC for the claims made in Adams’s Complaint. BrightView has refused.
C. Trial Court Order
Following a hearing, the trial court issued an order on January 29, 2021. The court
first discussed SJWC’s motion for summary adjudication. It examined section 7(a) in the
Agreement to determine whether SJWC’s claims were “embraced by the indemnity.”
The court concluded that Adams’s claims did not arise, directly or indirectly, from or in
connection with BrightView’s performance of its services under the Agreement. It noted
that, although the Agreement stated that BrightView was retained to perform landscaping
5
and tree care services, the Agreement did not specify what services were to be provided
and where. It stated further that BrightView provided unrebutted evidence that it was not
allowed to perform its own inspections of SJWC property and that, even after BrightView
contacted SJWC about the overgrown trees in late June 2016, SJWC did not authorize
trimming until early August 2016, after the injury had occurred. The court therefore
denied the motion for summary adjudication on the issue of the duty to defend.
With regard to BrightView’s motion, the court granted summary judgment. As to
the equitable indemnity claim, the court noted there was an express indemnity provision
governing the relationship between the parties that displaced any implied rights. The
court also concluded that BrightView had no obligation to inspect and trim the trees on
SJWC’s property that were adjacent to Cabernet, other than upon SJWC’s express
request. The court stated that Wahlberg was never asked by SJWC to inspect the trees
lining the Cabernet property and was never asked to trim the trees prior to Adams’s
injury.
On March 15, 2021, the trial court issued a judgment based on the court’s order
granting BrightView’s motion for summary judgment. SJWC timely appealed.
II. DISCUSSION
On appeal, SJWC argues that the trial court based its ruling on factual findings
unsupported by the evidence—(1) that “[BrightView] has provided unrebutted evidence
that it was not allowed to perform its own inspections of SJWC property, but rather had
to wait for a SJWC representative to contact it before it could do work”; and (2) that
“after [BrightView] contacted SJWC about the Tree in late June 2016, SJWC did not
authorize trimming until early August 2016—i.e. after [Adams’s] injury occurred.”
SJWC argues that the evidence establishes that BrightView independently identified tree
care needs for SJWC and recommended services, and that there is no evidence showing
when Wahlberg notified SJWC of the condition of the tree and recommended that it be
trimmed. SJWC contends therefore that there are triable issues of fact regarding whether
6
BrightView’s identification of tree care needs and recommendations regarding trimming
and maintenance are encompassed by the Agreement, whether BrightView undertook a
duty to rectify the condition of the tree when it promised Cabernet that it would, and
whether BrightView’s negligent delay in trimming the tree indirectly or directly caused
or contributed to Adams’s injuries.
We conclude that BrightView had no affirmative duty under the Agreement to
inspect for and correct the dangerous condition created by the overhanging trees and that
it met its initial burden of establishing that Adams’s injury did not arise out of and was
not connected to BrightView’s provision of services under the Agreement.
A. Legal Principles and Standard of Review
A party moving for summary judgment must meet two separate burdens. First, a
“party moving for summary judgment bears the burden of persuasion that there is no
triable issue of material fact and that he is entitled to judgment as a matter of law.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) That party
also “bears an initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his burden of production,
he causes a shift, and the opposing party is then subjected to a burden of production of his
own to make a prima facie showing of the existence of a triable issue of material fact.”
(Ibid.) Unlike the burden of production, the burden of persuasion never shifts. (Ibid.)
“In reviewing an order granting summary judgment, we review the entire record
de novo in the light most favorable to the nonmoving party to determine whether the
moving and opposing papers show a triable issue of material fact.” (Genisman v. Carley
(2018) 29 Cal.App.5th 45, 50.) “We liberally construe the evidence in support of the
party opposing summary judgment and resolve doubts concerning the evidence in favor
of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Hampton v.
County of San Diego (2015) 62 Cal.4th 340, 347.)
7
Indemnity is “the obligation resting on one party to make good a loss or damage
another party has incurred.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d
622, 628 (Rossmoor).) Generally, it may arise from “express contractual language
establishing [the] duty” or from “equitable considerations brought into play either by
contractual language not specifically dealing with indemnification or by the equities of
the particular case.” (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497,
506-507 (E. L. White).) “Each of these two basic forms of indemnity is subject to its own
distinctive legal rules and limitations.” (Ibid.)
“The duty to defend arises if a lawsuit creates ‘a potential for indemnity,’ that is, a
potential for liability of a sort covered under the policy. [Citation.] If there is no
possibility of such liability, then there is no possibility of coverage and no corresponding
duty to defend.” (All Green Electric, Inc. v. Security National Ins. Co. (2018) 22
Cal.App.5th 407, 413.) We accordingly focus on BrightView’s potential for indemnity
under the Agreement.
B. BrightView’s Duty of Indemnity
In its moving papers, BrightView argued that it owed no duty to Adams or SJWC
to trim or inspect the trees encroaching on the Cabernet property. To the extent that
BrightView’s arguments related to general negligence and equitable principles, these
have no application here, because the parties are bound by an express indemnity contract.
With an express indemnity contract, the scope of any duty to indemnify is defined by the
contract itself and not from the independent doctrine of equitable indemnity. (See E. L.
White, supra, 21 Cal.3d at p. 508; Rossmoor, supra, 13 Cal.3d at p. 628 [where the
parties have expressly contracted with respect to the duty to indemnify, the extent of that
duty must be determined from the contract].) “In an express indemnity agreement, the
parties may agree to results which would not occur in the absence of an express
agreement for reasons other than equally or ‘fairly’ apportioning loss.” (Smoketree-Lake
Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1737, fn.
8
omitted (Smoketree).) Further, “an express indemnity clause is accorded a certain
preemptive effect, displacing any implied rights which might otherwise arise within the
scope of its operation.” (E. L. White, supra, 21 Cal.3d at pp. 507-508.) Similarly,
because the first, third, and fourth causes of action are based on equitable principles,
these are preempted by the agreement and are subject to summary adjudication on that
basis alone. (See Smoketree, supra, 234 Cal.App.3d at pp. 1736-1737 [doctrines of
implied indemnity rest on the equities of the circumstances].) Consequently, we will
limit our focus to the scope of BrightView’s indemnity duty as defined by the
Agreement, and the second and fifth causes of action.
The indemnity clause in the Agreement provides that BrightView shall both
defend and indemnify SJWC for claims “arising, directly or indirectly, from or in
connection with the performance of the Services under [the] Agreement . . . except to the
extent such claims . . . are caused by the sole negligence, active negligence or willful
misconduct of [SJWC].” Based on this language, for BrightView to have an indemnity
obligation, a claim must (1) arise out of the performance of “Services” as defined in the
Agreement and (2) not be caused by SJWC’s sole or active negligence. Our analysis
turns on the first on these elements.
The Agreement provides that BrightView “shall perform the services described in
each work order executed by [SJWC] and [BrightView] from time to time . . .
substantially in the form attached hereto as Attachment A.” “Services” are defined in
Attachment A as “[l]andscaping and tree care services.” Attachment A is a “Form of
Work Order.”
BrightView’s evidence shows that it did not undertake the tree trimming until
August 10, 2016—after Adams was injured. Although SJWC characterizes this fact as
“disputed,” SJWC identifies no contrary evidence that might manifest any real factual
dispute. There is therefore no basis to conclude that it was BrightView’s trimming of the
tree that produced the debris to which Adams attributes her injury. The question
9
remaining is whether the Agreement obligated BrightView to perform “services” that it
failed to perform.
The parties disagree as to whether the Agreement required Bright View to be
“proactive” in inspecting and correcting any dangerous conditions related to the trees at
Williams Station. “The precise meaning of any contract . . . depends upon the parties’
expressed intent, using an objective standard. [Citations.] When there is ambiguity in
the contract language, extrinsic evidence may be considered to ascertain a meaning to
which the instrument’s language is reasonably susceptible.” (Golden West Baseball Co.
v. City of Anaheim (1994) 25 Cal.App.4th 11, 21.)
The Agreement itself provides no express definition of BrightView’s
“[l]andscaping and tree care” services. But paragraph 1 of the Agreement provides in
relevant part: “Contractor shall perform the services described in each work order
executed by the Company and Contractor from time to time (each a ‘Work Order[’])
substantially in the form attached hereto as Attachment A (the ‘Services’).” And “each
Work Order . . . shall constitute authorization to proceed.” This indicates that the
specifics of the “landscaping and tree care” services BrightView is to perform would be
defined in each work order “from time to time” (i.e., when the parties agreed on work
that needed to be completed). Accordingly, under the terms of the Agreement, it is the
issuance of a work order that authorizes BrightView to perform.
SJWC identifies no contrary language in the Agreement that would support its
contention that BrightView had an ongoing duty under the Agreement to inspect for and
correct dangerous conditions caused by trees. Indeed, the Agreement also states that
SJWC “is free to seek similar services from other service providers during the term of
this Agreement without being deemed in breach of the Agreement”: it would not be
necessary for SJWC to have the option to seek other contractors to perform tree services
if BrightView were generally already obligated to perform continuous tree work.
10
Even if we were to find the language of the Agreement to be ambiguous, extrinsic
evidence of the parties’ expectations and conduct supports BrightView’s position that it
was only obligated and authorized to perform work upon receiving a work order. (Code
Civ. Proc., § 1856, subd. (c) [the terms of a contract may be explained or supplemented
by course of dealing or course of performance].)
BrightView’s agent, Wahlberg, testified that he would generally go out to
Williams Station at the request of a representative of SJWC, and not on any regularly
occurring schedule, and he would get requests to go to Williams Station about half a
dozen times each year. Although he answered in the affirmative when asked if he
thought Valley Crest (i.e., BrightView) was “proactive in terms of identifying tree care
needs at the Williams [S]tation San Jose Water Company property,” he also answered in
the affirmative when asked if “the only time [he] would really go out there was in relation
to a specific request that San Jose Water Company made.” He added, “Unless I was
driving by and saw something.” This testimony does not demonstrate that Wahlberg
thought he had any affirmative duty to regularly visit and inspect Williams Station for
tree care issues. SJWC relies on Wahlberg’s testimony that, when informed by Cabernet
Vineyards of the overgrowth, he considered it “appropriate” to notify SJWC of the
condition, but we do not read his willingness to do so on this one occasion as imposing
on BrightView a contractual duty to “proactively” monitor the SJWC property.
SJWC’s person most knowledgeable, Vais, also testified that tree care issues
would be addressed “[w]hen a work request would come in” and that he would just
respond to tree care needs on an as-needed basis. He responded, “Correct,” when asked
to confirm that it was “not [his] expectation that [BrightView] would be doing
inspections for tree care during [its] work at the Williams Station facility.”
Both the language of the Agreement, and the testimony of the two individuals with
firsthand knowledge of the actual conduct of the parties under the Agreement and
Williams Station, lead to the conclusion that BrightView had no affirmative duty to
11
inspect Williams Station for tree care issues or to correct any issues that might arise
without first obtaining a work order from SJWC to authorize the work. Without such a
duty, it cannot be said that the injury to Adams arose out of BrightView’s “services”
under the Agreement when BrightView had not yet taken any corrective measures for the
tree situation at that time.3 Accordingly, BrightView has met its initial burden to show
that it has no indemnity obligation under the Agreement based on Adams’s claims.
As in the trial court, SJWC continues to argue on appeal that BrightView utilized a
proactive approach to identify tree care needs and generate work orders. As an example,
SJWC points to Wahlberg’s walkthrough of the Cabernet property and subsequent
authorization from Vais to take care of the overhanging trees. But Wahlberg’s
walkthrough of the Cabernet property was in furtherance of BrightView’s independent
contractual agreement with Cabernet. The fact that Wahlberg might bring an issue to
Vais’s attention on the occasions when he happened to see one—incidental to his duties
to Cabernet—does not raise any triable issue of material fact regarding BrightView’s
obligation under the Agreement with SJWC. BrightView and Wahlberg had no duty to
perform any regular inspection at Williams Station nor authorization to perform
“services” without first obtaining a work order from Vais.
SJWC relies on the earlier proposal from Valley Crest to assert that BrightView
was to provide proactive tree maintenance services. But SJWC provides no evidence
showing that any portion of the proposal was incorporated into the Agreement. The
Agreement is silent as to any such expectation and also contains an integration clause,
which provides that the “Agreement, any attachments hereto, together with the executed
Work Orders and any attachments referenced thereto shall constitute the entire
Agreement of the parties and supersedes any prior agreements between them, whether
written or oral, with respect to the subject matter hereof.” This forecloses an
We therefore do not reach the question of whether Adams’s claims were “caused
3
by SJWC’s sole or active negligence.”
12
interpretation reading the “proactive” aspect of the Valley Crest proposal into the
Agreement. (See Grey v. American Management Services (2012) 204 Cal.App.4th 803,
807 [the existence of an integration clause is a key factor in determining whether the
parties intended the contract to be a final and complete expression of their agreement].)
SJWC argues that Wahlberg knew about the condition of the trees nine days
before Adams was injured and, once he contacted SJWC about the overhanging trees
after his walkthrough at the Cabernet property, received immediate approval to address
the problem. This, SJWC contends, shows that Wahlberg either failed to timely inform
SJWC about the trees in time or failed to timely perform the work despite authorization
from SJWC.
SJWC concedes that it is not known when Wahlberg contacted SJWC about the
trees and that no written work order exists.4 SJWC appears to contend that BrightView
had some affirmative obligation to notify SJWC within a certain timeframe or otherwise
complete the work before the injury-causing incident. But this contention cannot be
reconciled with the absence of an affirmative obligation or authorization under the
Agreement to independently inspect or work on any trees without SJWC issuing
BrightView a work order. With no evidence showing that BrightView received
authorization to work on the overhanging trees prior to Adams’s injury, SJWC has not
raised a triable issue of material fact regarding any services provided by BrightView prior
to or in connection with the injury.
SJWC alternatively argues that it does not matter whether BrightView actually
performed or failed to perform under the contract, because the indemnity provision in the
Agreement applies whether or not BrightView caused Adams’s claims. SJWC bases this
4
BrightView’s material fact number 37 states that Wahlberg contacted Vais
“[w]ithin the next month” after the inspection at the Cabernet property. The evidence
cited to does not support that assertion, however. It consists only of Wahlberg’s
testimony that the work was done on August 10, 2016.
13
argument on language in the indemnity provision specifying that indemnity, where
otherwise applicable, will be required “whether or not such claims, demands, or liability
are caused by Contractor” or its agents. But this clause only limits and does not negate
the express condition that the claim, demand, or liability must “arise . . . in connection
with” BrightView’s performance. The clause is not reasonably interpreted as mandating
indemnity even when a claim does not arise from or in connection with the performance
of services under the Agreement. SJWC need not prove that BrightView caused Adams
to injure her ankle in order to invoke BrightView’s duty to defend and indemnify, but
what it would still need to prove is that Adams’s injury “arose in connection with”
BrightView’s performance of services under the contract.
BrightView having met its initial burden, SJWC has failed to present evidence
raising a triable issue of material fact that Adams’s claims arose from or in connection
with BrightView’s performance of services under the contract. Accordingly, as a matter
of law, BrightView has established it owes SJWC no duty of indemnity or defense as to
Adams’s claims.
III. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to BrightView.
14
LIE, J.
WE CONCUR:
GREENWOOD, P.J.
GROVER, J.
San Jose Water Company v. Brightview Landscape Services, Inc.
H049017 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482600/ | Filed 11/9/22 Marriage of Williams 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
In re Marriage of JOSEPH and
ROBIN WILLIAMS.
JOSEPH A. WILLIAMS, G059573
Respondent, (Super. Ct. No. 94D10500)
v. OPINION
ROBIN WILLIAMS,
Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Michael E. Perez, Judge. Reversed and remanded with instructions.
Law Offices of Lisa R. McCall, Lisa R. McCall, and Erica M. Baca for
Appellant.
Law Office of Leslie Ellen Shear, Leslie Ellen Shear, and Julia C. Shear
Kushner for Respondent.
* * *
Robin Williams appeals from the trial court’s denial of her motion under
the court’s continuing jurisdiction (Fam. Code, § 2556) to adjudicate her rights, if any, to
a share of pension benefits earned by her former husband, Joseph A. Williams, during
1
their marriage. According to Robin, at some unspecified time before their divorce,
Joseph signed a written agreement concerning the pension and other assets, in which he
expressly agreed she was entitled to “1/2 of Joe’s IBEW retirement unless I get my own.”
The document similarly divided the couple’s other community property. Joseph did not
dispute the authenticity of the document, but claimed the couple had “moved on from that
position” before executing the default judgment he obtained in 1995, which dissolved the
marriage.
The default judgment signed by Robin included this language: “There are
no community or quasi-community assets, community debts, or retirement benefits to be
disposed of by the court.” (Italics added.) The trial court ruled that the foregoing “clause
adjudicated the pension,” and therefore “there isn’t [section] 2556 . . . relief available.”
As we explain, on our de novo review of the words of the default judgment, we are not
persuaded that a clause disclaiming adjudication by the court amounted to a binding prior
adjudication by the court of an unnamed asset.
Moreover, the trial court’s failure to resolve this disputed factual issue—
namely, the parties’ rights to Joseph’s pension—requires reversal. We cannot agree with
Joseph’s position that his extrinsic evidence proved as a matter of law that the default
1
All further statutory references are to the Family Code, unless noted. For
ease of reference and to avoid confusion, given the parties have the same last name, we
refer to each party by their first name and intend no disrespect in doing so.
2
judgment somehow incorporated and ratified, with res judicata effect, an unwritten
marital property division agreement purportedly agreed to outside the judgment and now
sharply disputed by the parties.
Simply put, the factual discrepancies between Robin’s and Joseph’s
accounts about the substance of their agreement, if any, required the trial court to
determine as a factual matter what the parties’ actual agreement was before it made its
ruling. The default judgment did not adjudicate these questions. We therefore reverse
the trial court’s order and remand the case for these factual questions to be resolved.
FACTUAL AND PROCEDURAL BACKGROUND
Robin and Joseph married in 1971 and separated in 1990 or 1991. Joseph
began accruing an interest in an employment-based pension in July 1974, and continued
to do so until he retired in 2004. Ten years earlier, in October 1994, Joseph filed a
petition for dissolution of the marriage.
Joseph’s petition included his declaration “regarding community and
quasi-community assets and obligations” in which he stated that “[t]here are no such
assets or obligations subject to disposition by the court in this proceeding.” In this same
section of Joseph’s declaration, the following boxes were left unchecked: “All such
assets and obligations have been disposed of by written agreement”; and “All such assets
and obligations are listed . . . in [an] Attachment . . . below.” A box next to the statement
“Petitioner requests confirmation as separate assets and obligations [any listed] items”
did not specify or list elsewhere in the petition any items he claimed as his separate
property. The petition did not suggest any community assets had been divided by oral
agreement or disposed of in any other manner.
During the dissolution process, Robin prepared a written agreement
regarding division of the parties’ community assets, which Joseph does not dispute he
signed. The updated agreement provided (bold typeface added):
3
“1. Quick [sic] claim 3201 S. Lowell house over to me/Robin.
“2. Quick [sic] claim 3706 S. Sycamore over to Joe Williams.
“3. 1/2 of Joe’s social security to Robin La Rue [her maiden name] unless I get
my own.
“4. 1/2 of Joe’s IBEW retirement unless I get my own.
“5. [$]600.00 a month alimony till [sic] January 15th 2001.
“6. If something happens to Joseph A. Williams before January 15th 2001
provisions will be made from the estate.
“7. Money in savings accounts and IRAs will be split jointly.”
Joseph initialed after each numbered item and signed his name at the bottom of the
agreement. According to Robin, Joseph agreed the foregoing terms were the basis on
which a judgment of dissolution would be entered.
In 1995, Joseph sought to finalize the dissolution by entry of a default
judgment and gave notice to Robin of his intent. Joseph’s initial request for a default
judgment either was not filed, or otherwise was not signed and entered by the court. It
included as an attachment a “Spousal Support Order” stating that Joseph’s net monthly
disposable income was $3,400 and Robin’s was $0.00, and that Joseph was required to
pay Robin $1,000 per month in spousal support until December 15, 2001. Consistent
with their written agreement, Robin handwrote on the proposed order, “Please change
spousal support to $600.00 a month.” With the amendment, Robin signed the proposed
support order on July 4, 1995.
The default judgment ultimately entered by the court included a spousal
support order modified to reflect the foregoing, and included a one-page attachment that
Robin also signed on July 4, 1995, and which Joseph had previously signed on
December 11, 1994, stating: “Petitioner and Respondent each acknowledge receipt from
the other of the Preliminary and Final Declarations of Disclosure and all attachments.”
(Original underlining and bold typeface.)
4
Key to the parties’ contentions below and on appeal, the attachment also
included the following language: “There are no community or quasi-community assets,
community debts, or retirement benefits to be disposed of by the court. This matter may
proceed on the default or uncontested calendar and before a pro tem judge. The parties
waive their rights to notice of trial, a statement of decision, to move for a new trial, and to
appeal.” (Italics added.)
The court entered the judgment of dissolution on August 17, 1995, with the
above-noted attachments incorporated into the judgment.
The parties subsequently quitclaimed their two parcels of real property to
each other as contemplated in their written agreement, except that, as Joseph notes, they
included their two adult children in the intrafamily transfers. That is, Joseph quitclaimed
the Lowell property jointly to Robin and their son, Steven. Robin, similarly, transferred
the Sycamore residence jointly to Joseph and their daughter, Aimee.
In 2018, on turning 65 years old, which Robin believed was her “retirement
age” when she would be “eligible to receive payments” under Joseph’s pension, Robin
contacted the pension plan department of Joseph’s former employer. The plan
administrator requested a copy of the divorce decree. Robin returned the document along
with a copy of the handwritten agreement Joseph had signed. She received a response
stating the pension plan’s counsel reviewed the judgment and concluded “that as of this
date, no documents have been received which award any interest to you. However, since
the Judgment does not show any form of property division, you would be free to reopen
the dissolution proceeding and secure any award of community property interest.”
Robin then filed in the superior court her request for an order (RFO) for
division of the pension as an omitted or undivided community property asset pursuant to
section 2556. She also requested her attorney fees, costs, sanctions, an accounting of
pension disbursals to date, and reimbursement of her share thereof, if any, with interest.
5
Joseph opposed the request to divide the pension or, in the alternative,
argued that any division should be prospective only. His supporting declaration stated:
“I have read the undated hand written [sic] note attached to the moving papers. It is my
recollection that this was a discussion that took place early on in the settlement discussion
and that we moved on from that position with the execution of the Judgment.”
Joseph further attested, “Once the Judgment [was] completed we signed all
the necessary real estate transfer documents. We agreed that all other property and debts
[sic] we divided by virtue of whose name appeared on the asset or debt kept that items
[sic] and that the other items of personal property remained with the party who had
possession of the items. [¶] The judgment recited that there was no community property
because we had agreed all other assets were divided in place so to speak.” (Italics
added.)
Responding to Robin’s contention in her RFO that Joseph “said he would
make [their handwritten agreement] part of the judgment,” Joseph claimed, “The reason
why nothing else was added [to the divorce judgment] was because we agreed that all
other assets and debts were to be divided [sic: by?] our keeping the pensions, IRA’s,
other accounts in our names and personal property in our possession. This method [w]as
a simple and direct solution.”
Joseph reiterated in his declaration his position that the divorce decree
specified the couple had no community property: “Our judgment specifically recited that
we had no community property for a good reason . . . . We believed we had divided it!”
(Original ellipses.) Joseph also added this: “The informality of this understanding is real
and evidenced by the 23 plus years of calm since our dissolution was finalized.”
In her RFO declaration Robin described her state of mind leading up to, in
her view, the parties’ mutual understanding that their written agreement regarding assets
was part-and-parcel of the divorce decree: “At the time of our separation, I was severely
depressed. I just wanted to be a mother and wife. I didn’t work outside of the home and
6
didn’t have an advanced education or advanced work skills. I was afraid and didn’t care
if I lived or died. My life was falling apart and I was in a deep dark tunnel. Petitioner
[Joseph] took advantage of my state of mind and always insinuated that we could get
back together.” She concluded with this: “Petitioner gave me [sic: back?] sign the
[written agreement she prepared] and said he would make that part of the Judgment.”
Joseph insisted in his declaration that his alleged understanding of their
agreement regarding assets informed the backdrop of their dissolution decree and was
incorporated therein. He asserted the couple’s understanding—including as to the
pension—was mutual, referring to it as “Our thought” regarding the “Quid Pro Quo” of
their agreed-upon property division: “The real estate distributed represented a[n] unequal
division [because] the property awarded to Robin was much more valuable than the
property awarded to me and was close to being paid off. [¶] Our thought was that I
would pay support until the house was paid off and then she would be in a better position
to support herself by renting out the property. [¶] This allocation would also eliminate
any inequity from my receiving my pension.”
Joseph further suggested in his opposition to Robin’s RFO that he believed
she received “communications” from the pension plan in 2003 confirming that the “plan
was [his].” He submitted with his declaration a copy of his own August 2003
correspondence with counsel for the pension plan’s trust fund. In the letter, counsel for
the fund confirmed receiving the copy of the divorce decree Joseph sent and observed,
“The Judgment of Dissolution provides that there is no community property or retirement
benefits to be divided.” Counsel then opined, “Accordingly, your pension benefits in
the . . . Defined Benefit Plan . . . and Defined Contribution Plan are your sole and
separate property and will be paid to you upon application and satisfaction of the
eligibility criteria therefor.” Joseph’s declaration also noted he “served a subpoena on the
plan and hopefully today, 16 years later, we can see any communications with Robin”; no
such communication was produced.
7
Joseph closed his opposition by invoking laches: “The unfortunate thing
was that we prepared our disclosures and over time, I lost the Schedule of Assets and
Debts associated with the disclosures. I am certain that the disclosures identified my
pension benefit and the other assets we divided. [¶] . . . [¶] I began to draw my pension
in 2004 and here comes the Respondent today requesting to undo the transaction that was
put in place over 23 years ago. [¶] Everything that we agreed to was done. The real
properties were transferred by deed and I started to receive my pension after disclosing
the dissolution to the plan who approved the full benefit to me.” (Italics added.)
Joseph added, “There has not been one peep from Robin about the other
assets and debts divided or of a[n] unequal division. Robin can’t be allowed to
selectively choose what she wants. [¶] In fact, Respondent has substantially benefitted
from the asset allocation by receiving the more valuable parcel of real estate. [¶] At this
point, I would like the Court to deny the relief requested and to give us the benefit of the
bargain we made in 1995.”
At the hearing on Robin’s motion, the trial court made the following initial
observations: “The court has a motion to address the pension that was not adjudicated in
a judgment or it’s alleged it’s not adjudicated in the judgment . . . . [¶] . . . [¶] I am
aware based upon the filings that there was sort of this catch-all phrase in the judgment
[that] there are no community or quasi community assets, community debts or retirement
benefits to be disposed of by the court. [¶] And so then the question becomes, and it
appears at the time, [that] Ms. Williams signed the document, you know, I guess arguably
knowing that the pension existed or was at issue; so therefore th[e] argument could be
made that the clause, that clause adjudicated the pension.”
The court adopted this argument as the basis for its tentative ruling to deny
Robin’s motion and noted “if . . . the pension ha[s] been adjudicated” in the divorce
judgment, “then there isn’t [section] 2556 release—relief available. [¶] There could be
8
relief sought under Family Code section 2122 for any alleged mistake or fraud, but the
court does not have anything regarding Family Code section 2122 before it at this time.”
After hearing argument from the parties but receiving no evidence on the
issue, the trial court affirmed its tentative ruling. Referring to the clause in the marital
dissolution judgment which stated there were no community assets “to be disposed of by
the court,” the trial court reasoned, “It seems that this agreement captured . . . sort of in
the negative, [that the pension] was adjudicated by indication in the signature by both
parties that there were no community assets. Or quasi community assets. Signature,
done and done. [¶] In the negative, if there is an asset out there, this document says it’s
not a community asset. That’s why my tentative remains.” The court acknowledged, “I
could see there could be an argument. I’m not making findings. I’m not going to wade
in on that. I see there could be arguments made under Family Code section 2122.”
The trial court entered its ruling denying Robin’s motion under
section 2556; she now appeals.
DISCUSSION
Robin challenges the trial court’s conclusion that the clause in the couple’s
divorce decree stating there were no community assets “to be disposed of by the court” as
a matter of law, in the court’s words, “adjudicated the pension.”
In essence, the issue is whether the clause gave the default judgment res
judicata or collateral estoppel effect on the issue of the parties’ pension rights. “Whether
the doctrine of res judicata applies in a particular case is a question of law which we
review de novo.” (City of Oakland v. Oakland Police & Fire Retirement System (2014)
224 Cal.App.4th 210, 228.) Res judicata, or claim preclusion, “‘prevents relitigation of
the same cause of action in a second suit between the same parties or parties in privity
with them.’” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) More
precisely here, collateral estoppel applies to prevent “relitigation of previously decided
9
issues” (id. at p. 824), and is found “(1) after final adjudication (2) of an identical issue
(3) actually litigated and necessarily decided in the first suit and (4) asserted against one
who was a party in the first suit or one in privity with that party” (id. at p. 825). Both
concepts require a final adjudication on the merits.
In the seminal case regarding division of omitted assets, the Supreme Court
held that “‘under settled principles of California community property law, property which
is not mentioned in the pleadings as community property is left unadjudicated by [a]
decree of divorce.’”” (Henn v. Henn (1980) 26 Cal.3d 323, 330 (Henn), superseded by
statute as stated in In re Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492
(Thorne & Raccina).) “This rule applies to partial divisions of community property as
well as divorces unaccompanied by any property adjudication whatsoever.” (Henn, at
p. 330; see, e.g., In re Marriage of Huntley (2017) 10 Cal.App.5th 1053, 1059 (IRMO
Huntley or Huntley).)
In some jurisdictions, “adjudication” is held to occur simply where “the
marital asset in th[e] case was disclosed and discussed during the divorce proceedings
and the parties had a fair opportunity to litigate its division.” (Doan v. Wilkerson (Nev.
2014) 327 P.3d 498, 502 (Doan) [distinguishing cases where “property at issue was
unadjudicated when it simply had been omitted from consideration by the parties,” italics
added], superseded by statute on other grounds as recognized in Kilgore v. Kilgore (Nev.
2019) 499 P.3d 843, 849.) In California, in contrast, “discussion” or “consideration” is
not enough; the “mere mention” of a pension benefit is “not an adjudication of property
rights” (Brunson v. Brunson (1985) 168 Cal.App.3d 786, 788), even when referenced in
the judgment (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 692 [‘“The mere
mention of an asset in the judgment is not controlling”’]). Instead, “‘the crucial question
is whether the benefits were actually litigated and divided in the previous proceeding.’”
(Thorne & Raccina, supra, 203 Cal.App.4th at p. 501.)
10
Doan is nevertheless instructive in its discussion of California statutory
law—section 2556—as distinct from Nevada law at the time. There, the trial court
“found that there was full disclosure” of the husband’s Federal Aviation Administration
(FAA) pension in the couple’s divorce proceedings years earlier and that “retirement
benefits were considered in determining the length of alimony.” (Doan, supra, 327 P.3d
at p. 502.) These findings, together with the fact that the pension was mentioned several
times in the record, including in the wife’s pretrial memorandum as property subject to
division, were sufficient for the reviewing court to find the pension had been
“adjudicated” in the divorce proceedings, though not referenced in the divorce decree.
The pension therefore could not be relitigated by the wife as a marital asset allegedly
omitted from the decree. (Ibid.)
Doan held under Nevada law that “[t]he fact that the FAA retirement
benefit was not mentioned in the decree is not an exceptional circumstance justifying
equitable relief.” (Doan, supra, 327 P.3d at p. 503.) Doan observed, “It is up to the
Legislature whether to create an action, or permit continuing jurisdiction, for partitioning
property that was merely left out of the divorce decree. California has done so: ‘A party
may file a postjudgment motion . . . in order to obtain adjudication of any community
estate asset or liability omitted . . . by the judgment.”’ (Id. at p. 503.)
Here, Robin sought division of Joseph’s pension—unmentioned in their
default judgment divorce decree—under section 2556: “In a proceeding for dissolution
of marriage, for nullity of marriage, or for legal separation of the parties, the court has
continuing jurisdiction to award community estate assets or community estate liabilities
to the parties that have not been previously adjudicated by a judgment in the proceeding.
A party may file a postjudgment motion or order to show cause in the proceeding in order
to obtain adjudication of any community estate asset or liability omitted or not
adjudicated by the judgment. In these cases, the court shall equally divide the omitted or
unadjudicated community estate asset or liability, unless the court finds upon good cause
11
shown that the interests of justice require an unequal division of the asset or liability.”
(Italics and underscoring added.)
We interpret statutory provisions de novo, including whether the statute
affords relief in the given circumstances. (See Lexin v. Superior Court (2010) 47 Cal.4th
1050, 1072.) We similarly interpret the written terms of a judgment de novo. (Fox v.
Fox (1954) 42 Cal.2d 49, 52.)
“Marital settlement agreements incorporated into a dissolution judgment
are construed under the statutory rules governing the interpretations of contracts
generally.” (In re Marriage of Iberti (1997) 55 Cal.App.4th 1434, 1439.) “When the
language . . . is clear, explicit, and unequivocal, and there is no ambiguity, the court will
enforce the express language.” (Id. at p. 1440.) If, on the other hand, the language is
ambiguous—i.e., susceptible to more than one reasonable interpretation—we may look to
extrinsic evidence to determine the parties’ intent. (Id. at p. 1439.) In such a context,
extrinsic evidence is admissible so long as “it supports a meaning to which the language
is reasonably susceptible.” (Ibid.)
IRMO Huntley provides several useful guidelines as we determine whether
Robin was entitled to proceed under section 2556. First, “[i]n providing courts with
continuing jurisdiction, section 2556 imposes no time limit on former spouses to seek to
adjudicate omitted or unadjudicated community property after a dissolution judgment
was entered.” (IRMO Huntley, supra, 10 Cal.App.5th at p. 1060.)
Second, section 2556 “applies even when former spouses were aware of the
community property at the time the dissolution judgment was entered.” (Huntley, supra,
10 Cal.App.5th at p. 1060.) This rule follows because “‘[r]egardless of whether the
parties know of, or discuss, the vested pension, if the “court was not called upon to award
it, and did not award it, as community property, separate property, or any property at all”
[citation], then the pension is a missed asset subject to a postdissolution claim.’” (Ibid.)
In other words, “adjudicate” means “[t]o rule on judicially.” (Black’s Law Dict. (11th ed.
12
2019) p. 52, col. 1.) Absent a judicial ruling, the asset is unadjudicated within the
meaning of section 2556.
“In sum,” Huntley explained, “section 2556 applies to community property
not actually adjudicated in the previously entered dissolution judgment.” (Huntley,
supra, 10 Cal.App.5th at p. 1061.)
Huntley explained that the trial court there “erred in ruling [the wife] was
required to move to set aside the default judgment before availing herself of the
continuing jurisdiction provided by section 2556 for division of unadjudicated
community property. The dissolution judgment did not divide—or even mention—any
community property. Consequently, the parties’ community property remained
‘“‘subject to future litigation.’””’ (Huntley, supra, 10 Cal.App.5th at p. 1061.)
In Huntley, the wife had “handled the finances during the marriage,” and
while it is unclear whether Robin did so here, it is undisputed she was aware of Joseph’s
pension at the time of the dissolution proceedings. (See Huntley, supra, 10 Cal.App.5th
at p. 1061.) Nevertheless, though a spouse at the time of dissolution “was aware of the
very community property she [later] sought to have divided under section 2556, her
knowledge did not provide a basis for denying her motion.” (Ibid.)
While Joseph in his declaration viewed “the 23 plus years of calm since our
dissolution was finalized” as evidence of a “real” agreement that was binding despite its
“informality,” Huntley rejected the notion that an informal agreement executed outside of
a divorce decree had res judicata status which precluded section 2556 relief. Specifically,
the husband there argued “the trial court correctly determined that, even if cognizable,
[the wife’s] motion was properly denied because all of the community property had
actually been divided by the parties according to their informal agreement.” (Huntley,
supra, 10 Cal.App.5th at p. 1061.)
But, as Huntley explained, in marital dissolution proceedings, “to be valid,
even an agreement to divide community property equally must comply with
13
section 2550.” (Huntley, supra, 10 Cal.App.5th at p. 1062, italics added.) A fortiori,
unequal divisions must also, under section 2550, “either be written or orally stated in
open court” and that requirement must be “strictly construed.” (Ibid.) As Huntley
observed, these requirements “promote the policy of encouraging the parties to arrive at
an out-of-court resolution containing sufficiently definite terms to be enforced by the
court without further litigation. Requiring the parties’ settlement agreement to be
committed to writing or recited in court, as mandated by . . . section 2550, prevents the
2
risk of the court enforcing an agreement that never was made.” (Huntley, at p. 1062.)
In Huntley, the “judgment of dissolution of marriage did not include any
property orders,” but the trial court found the wife could not proceed under section 2556
because, outside of the judgment, “the parties had divided all of their community
property and these assets were ‘now owned by the parties based on their actual title.’”
(Huntley, supra, 10 Cal.App.5th at p. 1062.) The appellate court reversed, because “this
later finding does not address or remedy the absence of any division of community
property in the judgment. For this reason, the trial court did not fulfill its duty to divide
the parties’ community property as required by section 2550 and under the continuing
jurisdiction provided by section 2556.” (Ibid.)
Joseph attempts to distinguish Huntley on grounds that this default
judgment included a property order. He argues the clause in the judgment specifying that
there was no community property “to be disposed of by the court” had the effect of
ratifying and stamping with court approval his version of an unspecified agreement
between the couple to divide their community property.
2 Section 2550 provides: “Except upon the written agreement of the parties,
or on oral stipulation of the parties in open court, or as otherwise provided in this
division, in a proceeding for dissolution of marriage or for legal separation of the parties,
the court shall, either in its judgment of dissolution of the marriage . . . or at a later time if
it expressly reserves jurisdiction to make such a property division, divide the community
estate of the parties equally.” (Italics added.)
14
We cannot agree for two reasons. First, the supposed agreement is not set
forth in or referenced by the judgment. As discussed in Huntley, assets claimed to be
divided by an informal agreement but omitted or unadjudicated by the judgment remain
within the statute’s scope. Pursuant to section 2556, “even where there is an ostensible,
final and complete judgment the parties may nonetheless litigate issues of property rights
that are not expressly adjudicated by that judgment.” (In re Marriage of Dunmore (1996)
45 Cal.App.4th 1372, 1379, fn. 6.)
The judgment does not say, as Joseph claims, that the couple had no
community property. It says that there were no community assets for disposition by the
court. We cannot convert this expressly requested nondisposition of assets into court
adjudication of assets. The concepts are contradictory. It is not enough that the parties
discussed or litigated a community asset or debt if the judgment itself did not finally
divide or otherwise allocate the asset or debt. “‘“[T]he crucial question is whether the
[asset or debt was] actually litigated and divided in the previous proceeding.’”” (In re
Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 575, italics added.)
Second, to the extent Joseph suggests the contested clause in the
judgment—“[t]here are no community or quasi-community assets, community debts, or
retirement benefits to be disposed of by the court”—amounted to a marital settlement
agreement which transmuted any community property into separate property, it was
inadequate to do so as a matter of law. Section 2550’s “strictly construed” requirement
that the terms on which divorcing spouses divide their property must “either be written or
orally stated in open court” was not met here, since no division was included in the
judgment. (Huntley, supra, 10 Cal.App.5th at p. 1062.)
Nor was the clause adequate to memorialize, as Joseph claims, an informal
division of property preceding the judgment. “Fundamentally, the validity and
enforceability of such ‘transmutation agreements’ turns on compliance with applicable
transmutation formalities . . . .” (Hogoboom & King, Cal. Practice Guide: Family Law
15
(The Rutter Group 2022) ¶ 9:256, p. 9-115 (hereafter Rutter).) Except for insubstantial
gifts between spouses of clothing, jewelry and the like, a transmutation of real or personal
property on or after January 1, 1985, is valid only if made “in writing by an express
declaration that is made, joined in, consented to, or accepted by the spouse whose interest
in the property is adversely affected.” (§ 852, subds. (a), (c), italics added; see, e.g.,
Marriage of Valli (2014) 58 Cal.4th 1396, 1400-1401; Rutter, supra, ¶ 9:257, p. 9-115.)
The adversely affected spouse’s ‘“express declaration”’ must contain language stating the
characterization or ownership of the property is being changed. (Estate of MacDonald
(1990) 51 Cal.3d 262, 272.) The intent to transmute the property must be clear and
unambiguous, without resorting to extrinsic evidence. (Ibid.)
Like section 2550, section 852 requires sufficiently definite terms to
prevent the risk of a court enforcing an agreement that was never made. (See Huntley,
supra, 10 Cal.App.5th at p. 1062.) Since it made no reference to Joseph’s pension, the
default judgment clause on which he relies changed nothing regarding ownership or
characterization of the pension. The asset therefore was omitted or unadjudicated within
the meaning of section 2556, and the trial court erred in concluding otherwise.
On remand, pursuant to the terms of section 2556, the trial court must
equally divide the pension “unless the court finds upon good cause shown that the
interests of justice require an unequal division of the asset or liability.” In making this
determination, the court should evaluate Joseph’s claim that the pension should be his
alone because the parties divided their other assets unequally. The court must also
evaluate Robin’s claim that they agreed in writing to divide it equally, which Joseph
presumably thought at that time was fair. Neither party is constrained by laches to “bar
§2556 relief.” (Rutter, supra, ¶ 8:1516, p. 8-533, original italics.) Instead, the court must
exercise its equitable judgment under section 2556 in the first instance. (See Lakkees v.
Superior Court (1990) 222 Cal.App.3d 531, 540, fn. 5 [although former Civil Code
section 4353, predecessor to section 2556, did not authorize dismissal for delay in
16
prosecution, it did “allow[] the court to make equitable adjustments in dividing an
asset”].)
DISPOSITION
The trial court’s order denying Robin’s section 2556 petition is reversed.
The matter is remanded for the trial court to conduct further proceedings consistent with
this opinion, including making the necessary factual findings regarding the parties’ intent
in order to determine how to proceed under section 2556. The trial court may receive
additional evidence and conduct further proceedings in its discretion to make the
necessary findings. Appellant is entitled to her costs on appeal.
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
17 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482606/ | 11/09/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 4, 2022
STATE OF TENNESSEE v. ERIC R. WRIGHT
Appeal from the Criminal Court for Shelby County
Nos. 90-02654, 90-02655 John W. Campbell, Judge
No. W2021-01270-CCA-R3-CD
The Defendant, Eric R. Wright, was convicted by a Shelby County Criminal Court jury of
robbery committed by the use of a deadly weapon and two counts of assault with the intent
to commit first degree murder, for which he is serving an effective 150-year sentence as a
Range III, persistent offender. He filed a Motion to Correct an Illegal Sentence pursuant
to Tennessee Rule of Criminal Procedure 36.1, which the trial court denied. On appeal, he
contends that the trial court erred in denying relief without appointing counsel and
conducting a hearing. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which J. ROSS
DYER and TOM GREENHOLTZ, JJ., joined.
Eric R. Wright, Whiteville, Tennessee, Pro Se.
Jonathan Skrmetti, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; for the appellee, State of
Tennessee.
OPINION
The Defendant’s convictions relate to offenses which occurred on October 15,
1989. He was convicted in 1990, and this court affirmed the convictions in 1992. See Eric
Wright v. State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at *1 (Tenn. Crim.
App. Dec. 17, 2001) (Wright II); State v. Eric R. Wright, No. 02C01-9107-CR-00152, 1992
WL 1414 (Tenn. Crim. App. Jan 8, 1992) (mem.) (Wright I). Thereafter, the Defendant
unsuccessfully sought post-conviction and habeas corpus relief. See Eric R. Wright v.
Grady Perry, Warden, No. W2016-00341-CCA-R3-HC, 2017 WL 213988 (Tenn. Crim.
App. Jan. 18, 2017) (Wright IV); Eric Wright v. State, No. W2009-00865-CCA-R3-PC,
2010 WL 11739410 (Tenn. Crim. App. Sept. 24, 2010) (Wright III) (affirming the denial
of post-conviction relief), perm. app. denied (Tenn. Feb. 16, 2011); Wright II, 2001 WL
1690194 (reversing and remanding dismissed post-conviction case for an evidentiary
hearing).
Undeterred, the Defendant filed the present Motion to Correct an Illegal Sentence
on June 7, 2021. In the motion, he contended that his offenses were committed before the
effective date of the Sentencing Reform Act of 1989 and that the law in effect at the time
required the trial court to compute his sentence under both the 1982 Sentencing Act and
the 1989 Act and to impose the one which was more favorable to him. He alleged that
because this had not occurred, his 150-year sentence was illegal. He also contended that
he was not properly sentenced to a Range III sentence and that he should have been
classified as a Range I or II offender. The trial court summarily denied the Defendant’s
motion on the basis that he had not alleged a colorable claim for relief under Rule 36.1.
This appeal followed.
Tennessee Criminal Procedure Rule 36.1 states, in relevant part, that
(a)(1) Either the defendant or the state may seek to correct an illegal sentence
by filing a motion to correct an illegal sentence in the trial court in which the
judgment of conviction was entered. . . .
(a)(2) For purposes of this rule, an illegal sentence is one that is not
authorized by the applicable statutes or that directly contravenes an
applicable statute.
The trial court is required to file an order denying the motion if it determines that the
sentence is not illegal. Id. at 36.1(c)(1).
Whether a motion states a colorable claim is a question of law and is reviewed de
novo. State v. Wooden, 478 S.W.3d 585, 588 (Tenn. 2015). A colorable claim is defined
as “a claim that, if taken as true and viewed in a light most favorable to the moving party,
would entitle the moving party to relief under Rule 36.1.” Id. at 593. A motion filed
pursuant to Rule 36.1 “must state with particularity the factual allegations on which the
claim for relief from an illegal sentence is based.” Id. at 594. A trial court “may consult
the record of the proceeding from which the allegedly illegal sentence emanated” when
determining whether a motion states a colorable claim for relief. Id.
Only fatal errors result in an illegal sentence and “are so profound as to render the
sentence illegal and void.” Id. at 595; see State v. Cantrell, 346 S.W.2d 445, 452 (Tenn.
2011). Fatal errors include sentences imposed pursuant to an inapplicable statutory
scheme, sentences that designate release eligibility dates when early release is prohibited,
-2-
sentences that are ordered to be served concurrently when consecutive service is required,
and sentences that are not authorized by statute. Wooden, 478 S.W.3d at 595. Errors which
are merely appealable, however, do not render a sentence illegal and include “those errors
for which the Sentencing Act specifically provides a right of direct appeal.” Id.; see
Cantrell, 346 S.W.2d at 449. Appealable errors are “claims akin to . . . challenge[s] to the
sufficiency of the evidence supporting a conviction” and “involve attacks on the
correctness of the methodology by which a trial court imposed sentence.” Wooden, 478
S.W.3d at 595; see Cantrell, 346 S.W.2d at 450-52.
The Defendant’s ex post facto claim regarding sentencing under the 1982 and 1989
Acts was previously determined in Wright III and again in Wright IV. In both cases, this
court noted that the Defendant had been sentenced appropriately, with the trial court
considering the potential sentences under both the 1982 and 1989 Acts and imposing the
sentence which was more favorable to the Defendant. See Wright IV, 2017 WL 213988, at
*6; Wright III, 2010 WL 11739410, at *4, 8. As we noted in both cases, the Defendant
would have received 180 years if he had been sentenced under the 1982 Act. See Wright
IV, 2017 WL 213988, at *6; Wright III, 2010 WL 11739410, at *8. Without question, his
150-year sentence pursuant to the 1989 Act is the more favorable alternative. Both the trial
court and this court are bound by the conclusions reached in the previous appeals. See
State v. Sammie Lee Taylor, No. W2015-01831-CCA-R3-CD, 2016 WL 3883566, at *3
(Tenn. Crim. App. June 6, 2016) (holding that the trial court did not err in dismissing a
claim pursuant to Rule 36.1, the merits of which had been previously determined), perm.
app. denied (Tenn. Oct. 21, 2016); see also State v. Terence Dewayne Borum, No. W2019-
00666-CCA-R3-CD, 2020 WL 730891, at *2 (Tenn. Crim. App. Feb. 12, 2020) (holding
that the trial court did not err in summarily dismissing a Rule 36.1 motion on the basis that
the issue regarding the defendant’s offender classification had been previously
determined).
Because the Defendant’s claim was previously determined, the trial court did not
err in denying relief without appointing counsel and conducting an evidentiary hearing.
Regarding the Defendant’s argument that he was improperly sentenced as a Range
III offender, his contention failed to raise a cognizable claim of an illegal sentence under
Rule 36.1. See State v. Anthony Robinson, No. W2015-02482-CCA-R3-CD, 2016 WL
7654949, at *2-3 (Tenn. Crim. App. Aug. 26, 2016) (stating that a defendant’s claim of
improper sentencing as a Range II offender did not render the sentence illegal and was not
a cognizable claim under Rule 36.1, provided the sentence fell within the parameters of the
Sentencing Act); see also State v. Eddie Readus, No. M2017-02339-CCA-R3-CD, 2019
WL 3064049, at *4 (Tenn. Crim. App. July 12, 2019), perm. app. denied (Tenn. Dec. 4,
2019).
-3-
The Defendant failed to state a cognizable claim for relief. The trial court did not
err in denying relief without appointing counsel and conducting a hearing.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
-4- | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482594/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 21-2655 & 22-2027
____________
LACEY STRADFORD;
WILLIAM NETTLES;
JESSE STROUD;
WILLIAM SCOTT;
RICHARD RICHARDSON,
on behalf of THEMSELVES AND ALL OTHER
SIMILARLY SITUATED
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF
CORRECTIONS,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-16-cv-02064)
District Judge: Honorable Juan R. Sanchez
____________
Argued: June 29, 2022
Before: JORDAN, PORTER, and PHIPPS,
Circuit Judges.
(Filed: November 9, 2022 )
____________
Sean A. Kirkpatrick
Office of Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Daniel B. Mullen [Argued]
Office of Attorney General of Pennsylvania
1251 Waterfront Place
Mezzanine Level
Pittsburgh, PA 15222
Counsel for Appellant
Donald Driscoll [Argued]
Community Justice Project
100 Fifth Avenue
Suite 900
Pittsburgh, PA 15222
Alexandra Morgan-Kurtz
Pennsylvania Institutional Law Project
247 Fort Pitt Boulevard
4th Floor
Pittsburgh, PA 15222
Counsel for Appellees
2
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Class representatives Lacey Stradford, William Nettles,
Jesse Stroud, William Scott, and Richard Richardson
(“Appellees”), all convicted sex offenders, allege the
Pennsylvania Department of Corrections (“DOC”)1 enforces a
policy that unconstitutionally discriminates against sex
offenders. The policy requires DOC to consider, among other
things, “community sensitivity” when it evaluates parolees for
halfway house placement. The District Court entered summary
judgment for Appellees, holding that sex offenders and non-
sex offenders are similarly situated and consideration of
“community sensitivity” when making halfway house
assignments is irrational.
But not all crimes are alike. The differences among sex
crimes, and between sex crimes and non-sex crimes, preclude
the purported similarity between sex offenders and non-sex
offenders in this case. A discretionary grant of parole cannot
erase those differences. In any event, DOC’s halfway house
policy considering “community sensitivity,” among many
other factors, is rationally related to more than one legitimate
government interest. So we will reverse and remand for entry
of summary judgment for the DOC.
1
At the time of judgment, John Wetzel was the Secretary of
Corrections. George Little took his place. See Fed. R. App. P.
43(c)(2) (providing automatic substitution of officeholders).
3
I
After completing a minimum sentence, inmates in
Pennsylvania are eligible to serve the rest of their sentence on
parole. See 61 Pa. Cons. Stat. § 6137(a)(3). Parole is “a matter
of grace and mercy shown to a prisoner who has demonstrated
to the Parole Board’s satisfaction his future ability to function
as a law-abiding member of society upon release before the
expiration of the prisoner’s maximum sentence.” Hudson v.
Pa. Bd. of Prob. & Parole, 204 A.3d 392, 396 (Pa. 2019)
(quoting Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319,
322–23 (Pa. 1999)).
The decision to grant parole is discretionary. 42 Pa.
Cons. Stat. § 2154.5(b). Before deciding, the Parole Board
must investigate, among other things, “[t]he general character
and background of the inmate,” “[t]he nature and
circumstances of the offense committed,” “[t]he written or
personal statement of the testimony of the victim or the
victim’s family,” the inmate’s “behavioral condition and
history,” and his “complete criminal record.” 61 Pa. Cons. Stat.
§ 6135(a).
When reviewing parole applications, the Parole Board
must determine whether “[t]he best interests of the offender
justify or require that the offender be paroled” and whether “the
interests of the Commonwealth will be injured by the
offender’s parole.” Id. § 6137(a)(1)(i)–(ii). In evaluating this
standard, the Parole Board considers its own guidelines, which
are designed to: (1) “[g]ive primary consideration to the
protection of the public and to victim safety,” (2) “[p]rovide
for due consideration of victim input,” (3) encourage proper
conduct of parolees, (4) “encourage inmates and parolees to
participate in programs that have been demonstrated to be
4
effective in reducing recidivism,” (5) prioritize “incarceration,
rehabilitation and other criminal justice resources for offenders
posing the greatest risk to public safety,” (6) “[u]se validated
risk assessment tools,” and “take into account available
research relating to the risk of recidivism, minimizing the
threat posed to public safety and factors maximizing the
success of reentry.” 42 Pa. Cons. Stat. § 2154.5(a).
The Parole Board also has authority to delay parole
release until a satisfactory home plan is arranged and approved.
See 37 Pa. Code § 63.1(d) (“The date of parole may be
postponed until a satisfactory plan is arranged for the parolee
and approved by the Board.”); Barge v. Pa. Bd. of Prob. &
Parole, 39 A.3d 530, 548 (Pa. Commw. Ct. 2012). Because
finding housing is often difficult, most inmates first rely on
halfway houses. Those houses have limited capacity. Public
houses have only 700 spaces, and private contract facilities
have 2,100 spaces statewide. But each year, about 9,000
Pennsylvania inmates are released on parole.
Sex offenders face several collateral consequences due
to the nature of their criminal acts. They must participate in a
specialized treatment program to become eligible for parole.
Violent sex offenders must continue that specialized treatment
program even after release from prison. Sex offenders must
register with the Pennsylvania State Police. For violent sex
offenders, the Pennsylvania State Police must notify the victim
of their release. And relevant here, the Pennsylvania State
Police must notify each resident, school district, day-care
center, and college about nearby registered violent sex
offenders. 42 Pa. Cons. Stat. §§ 9718.1, 9799.13, 9799.26,
9799.27, 9799.70.
5
According to DOC, that notification requirement makes
it difficult to place sex offenders into community halfway
houses because once neighbors are notified, some oppose sex
offenders’ presence. In at least one instance, community
backlash against high concentrations of sex offenders in
neighboring halfway houses caused a halfway house to close.
For the same reasons it is hard to place sex offenders
into halfway houses, sex offenders once placed tend to linger
in halfway houses longer than other parolees. Potential
landlords can use an applicant’s sex offender status to refuse
leasing to them, and many sex offenders cannot obtain
federally funded housing. See 42 U.S.C. § 13663(a); 24 C.F.R.
§ 5.856. As a result, paroled sex offenders often remain in
halfway houses until their maximum sentences expire, and
because sex offenders receive higher-than-average maximum
sentences, it can take years for their sentences to expire once
they are paroled. By contrast, according to DOC, other
parolees spend ninety days on average in a halfway house. The
cumulative effect of these phenomena is that sex offenders clog
the parole system.
As originally drafted, DOC Policy 8.1.1 Section 4
designated sex offenders as categorically “hard to place” and
rejected them for initial placement into halfway houses.
J.A. 76. When the putative sex offender class challenged that
policy in court, the District Court determined that, because
non-sex offenders have a greater likelihood of successfully
rejoining their communities after temporary placement in a
halfway house, the DOC’s policy served the legitimate interest
in avoiding clogging the system. Stradford v. Wetzel, No. CV
16-2064, 2017 WL 1196656, at *4 (E.D. Pa. Mar. 31, 2017).
The named plaintiffs appealed.
6
While on appeal, DOC changed its policy. The new
policy lists thirteen factors DOC must consider before placing
a parolee in a halfway house:
a. community sensitivity to a criminal offense
or specific criminal incident;
b. board action stipulations;
c. program needs vs. program availability in a
particular area;
d. separations from other reentrants or staff;
e. multiple failures at one facility;
f. victim consideration;
g. medical or mental health needs;
h. final discharge of maximum sentence date;
i. gender status of the facility;
j. pilots or studies being conducted;
k. request by the reentrant for relocation;
l. available community resources/support; and
m. where the reentrant’s committing county;
requested release county; and home county are
in relation to an appropriate center.
J.A. 83.
After the policy change, we vacated the District Court’s
judgment and remanded for it to consider whether the lawsuit
was moot. Stradford v. Sec’y Pa. Dep’t of Corr., 783 F. App’x
150, 151 (3d Cir. 2019). Appellees filed an amended complaint
challenging the new policy and the District Court found the suit
not moot. See Stradford v. Wetzel, 519 F. Supp. 3d 214, 223
n.6 (E.D. Pa. 2021). The District Court said its former decision
was in error. Id. at 230. It held that paroled sex offenders are
similarly situated to other paroled offenders, and that there
could be no rational basis to delay their placement into halfway
7
houses because of “community sensitivity.” Id. at 224–25,
230–31.2 This appeal followed.
II
Appellees filed this class action under 42 U.S.C. § 1983.
The District Court had subject matter jurisdiction under 28
U.S.C. §§ 1331 and 1343. We have jurisdiction under 28
U.S.C. § 1291.
We review de novo the District Court’s resolution of
cross-motions for summary judgment. Int’l Union, United
Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248,
1252 (3d Cir. 1990). Summary judgment is appropriate when,
drawing all reasonable inferences in favor of the nonmoving
party, “the movant shows that there is no genuine dispute as to
any material fact,” and thus the movant “is entitled to judgment
as a matter of law.” Thomas v. Cumberland Cnty., 749 F.3d
217, 222 (3d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
2
The DOC says that there is an unresolved dispute of material
fact over the degree of delay in halfway house placement
caused by the community-sensitivity factor. While this is a
factual dispute, it is not material because both parties agree that
the community sensitivity factor disfavors sex offenders. In
defense of the policy, DOC admits that community backlash
makes sex offenders difficult to place. And DOC recognizes
that “lack of community acceptance,” Appellant’s Opening Br.
12, prevents it from “[p]lacing too many sex offenders into
halfway houses at a given moment,” Appellant’s Opening Br.
13. Without a genuine dispute of material fact, we will evaluate
the equal-protection claim’s merit.
8
III
The Fourteenth Amendment’s Equal Protection Clause
states that “[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. The Supreme Court has said that “the equal
protection of the laws is a pledge of the protection of equal
laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). At
bottom, the Equal Protection Clause requires equal treatment
of “all persons similarly situated.” Ass’n of N.J. Rifle & Pistol
Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 125 (3d Cir. 2018)
(quoting Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422
F.3d 141, 151 (3d Cir. 2005)). “The Equal Protection Clause
does not forbid classifications.” Nordlinger v. Hahn, 505 U.S.
1, 10 (1992). But the distinctions between classes “must be
rationally related to a legitimate governmental purpose.” City
of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).
To establish an equal-protection claim, a plaintiff “must
show that the Government has treated it differently from a
similarly situated party and that the Government’s explanation
for the differing treatment does not satisfy the relevant level of
scrutiny.” Real Alternatives, Inc. v. Sec’y Dep’t of Health &
Hum. Servs., 867 F.3d 338, 348 (3d Cir. 2017) (emphasis
removed) (citing City of Cleburne, 473 U.S. at 439–40).3
3
The parties agree that the DOC’s policy is subject to rational
basis review because sex offenders do not belong to a suspect
or quasi-suspect class and the DOC’s policy implicates no
fundamental constitutional rights. See Artway v. Att’y Gen. of
N.J., 81 F.3d 1235, 1267 (3d Cir. 1996).
9
A
Because “equality” is a rhetorically ambiguous concept,
it’s easy to “invoke any existing descriptive inequality as a
basis for asserting what is essentially a prescriptive grievance.”
Peter Westen, Speaking of Equality: An Analysis of the
Rhetorical Force of “Equality” in Moral and Legal Discourse
279 (1990). But the Fourteenth Amendment proscribes
unequal treatment only among persons similarly situated
according to a relevant standard of comparison. See
Nordlinger, 505 U.S. at 10 (Persons are similarly situated
under the Equal Protection Clause when they are alike “in all
relevant respects.”). So an equal-protection challenge must
allege more than “broad generalities” in identifying a
comparator. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1204
(11th Cir. 2007). Courts must “isolate the factor allegedly
subject to impermissible discrimination.” United States v.
Olvis, 97 F.3d 739, 744 (4th Cir. 1996) (quoting United States
v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989)); Cung Hnin v.
TOA (USA), LLC, 751 F.3d 499, 504–05 (7th Cir. 2014)
(same); Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th
Cir. 1995) (same). Other factors explaining disparate treatment
will usually preclude persons from being similarly situated. In
turn, the failure to identify similarly situated persons dooms an
equal-protection claim. See Hill v. Borough of Kutztown, 455
F.3d 225, 239 (3d Cir. 2006) (citing Levenstein v. Salafsky, 414
F.3d 767, 776 (7th Cir. 2005)) (stating equal-protection claim
“must fail because [plaintiff] does not allege the existence of
similarly situated individuals”).
Pennsylvania law creates three tiers of sex offenders
based on their offenses and further distinguishes sexually
violent predators. See 42 Pa. Cons. Stat. §§ 9799.14, 9799.24.
10
DOC incorporates those distinctions into its decisions on when
and where to place sex offender parolees. Appellees must show
that these are irrational distinctions for those decisions.
When evaluating whether offenders are similarly
situated under the Equal Protection Clause, we must assess the
nature of their respective crimes. See Skinner v. Oklahoma ex
rel. Williamson, 316 U.S. 535, 541 (1942) (determining
whether embezzlement and grand larceny are “intrinsically the
same quality of offense”); Doe v. Settle, 24 F.4th 932, 940 (4th
Cir. 2022) (“When a law imposes collateral consequences
based on criminal convictions, two impacted offenders who are
treated differently can be similarly situated if their convictions
are similar enough.”). So Appellees need to show, for example,
that an offender convicted of rape and an offender convicted of
robbery, wire fraud, or a drug offense “are alike ‘in all relevant
respects.’ ” Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir.
2020) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).
Because Appellees assert that all sex offenders are
similarly situated to all other offenders eligible for parole, they
need to do this comparison for each crime of conviction. They
must also show that sex offenders are similarly situated among
themselves. Differences between crimes might reasonably
explain differences in treatment. So Appellees must evaluate
each crime to see if they are, in essence, the same quality of
offense.
Appellees have not made these comparisons. But courts
that have done so conclude, unsurprisingly, that sex crimes and
non-sex crimes—and even different types of sex crimes—are
dissimilar. See, e.g., Petitpas v. Martin, No. 20-3557, 2021 WL
6101469, at *2 (2d Cir. Dec. 22, 2021) (collecting cases);
Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1353–54
11
(10th Cir. 2017) (aggravated sex offenders are not similarly
situated to ordinary sex offenders); Litmon v. Harris, 768 F.3d
1237, 1243 (9th Cir. 2014) (mentally disordered offenders and
mentally disordered sex offenders are not similarly situated to
sexually violent predators).
These essential differences between crimes also explain
why laws imposing collateral burdens on sex offenders have
generally been upheld. See, e.g., United States v. Kebodeaux,
570 U.S. 387, 395–96 (2013) (explaining why differences
between sex offenders and non-sex offenders justify post-
release registration rules); Smith v. Doe, 538 U.S. 84, 103–04
(2003) (upholding reporting requirements for sex offenders);
Conn. Dept. of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003)
(upholding publicly available sex offender registry).
“Sex offenders are a serious threat in this Nation.”
McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion).
“[T]he victims of sexual assault are most often juveniles,” id.,
and “[t]he sexual abuse of a child is a most serious crime and
an act repugnant to the moral instincts of a decent people.”
Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002).
Precisely because sex offenses are serious and different than
other types of crimes, Pennsylvania law imposes unique
collateral consequences on sex offenders. Sex offenders must
register with the state police, may not qualify for federally
funded public housing, and must participate in a sex offender
treatment program.4 And the state police must notify each
4
See 42 Pa. Cons. Stat. § 9799.13 (requiring registration with
the state police); 34 U.S.C. § 20920 (requiring states put
offender information on a publicly accessible website); 42
U.S.C. § 13663(a) (prohibiting those who are subject to a
lifetime registration requirement from public housing); 42 Pa.
12
resident, school district, day-care center, and college about
nearby registered sex offenders. See 42 Pa. Cons. Stat.
§ 9799.27. Those collateral consequences are linked to
Pennsylvania’s finding that “[s]exual offenders pose a high
risk of committing additional sexual offenses and [that]
protection of the public from this type of offender is a
paramount governmental interest.” 42 Pa. Cons. Stat.
§ 9799.11(a)(4).
Because of these policies, sex offenders have a harder
time finding a job or a home. The notification policy also
means that residents are aware of the presence of sex offenders
(unlike other offenders) in their neighborhood. These are
inescapable facts for policymakers at DOC trying to make
rational halfway house policies.
Appellees argue that a favorable parole action
eliminates the differences between offenders because the
Parole Board considers them all safe to release into the public.
See Appellees’ Br. 17–18. The District Court adopted that
theory. Wetzel, 519 F. Supp. 3d at 224–25. We disagree. The
individualized assessment underlying a favorable parole action
doesn’t expunge one’s legal status as a sex offender, or change
him from a sex offender to a non-sex offender. And the parole
inquiry of “whether an individual poses a substantial danger of
physical harm to others is far broader than the inquiry into
whether one is likely [to] . . . engage in sexually violent
criminal behavior.” Litmon, 768 F.3d at 1243 (internal
quotation marks omitted). So a favorable parole action does not
Cons. Stat. § 9718.1 (requiring participation in treatment
program); 42 Pa. Cons. Stat. § 9799.70 (mandating a continued
treatment program for violent sex offenders).
13
alleviate the differences between sex crimes and non-sex
crimes.
A parole board’s individualized assessment is merely a
reasoned “prediction[] of future behavior” about a particular
individual, so by itself it cannot make two people, let alone
entire groups of offenders, similarly situated. Conn. Bd. of
Pardons v. Dumschat, 452 U.S. 458, 464 (1981). As in other
states, the decision to parole in Pennsylvania is discretionary.
See 42 Pa. Cons. Stat. § 2154.5(b). The Parole Board uses a
general and flexible standard when deciding to grant parole.
See 61 Pa. Cons. Stat. § 6137(a)(1)(i)–(ii). When applying this
standard, the Parole Board considers numerous subjective
criteria. See 42 Pa. Cons. Stat. § 2154.5(a). And to aid in its
decision, it must investigate, among other things, the various
attributes of the inmate and the facts of his crime. See 61 Pa.
Cons. Stat. § 6135(a).
Despite its best efforts, the Parole Board can’t predict
any offender’s future conduct. The Parole Board’s
discretionary, predictive, and fallible determination is based on
individualized evaluation and imperfect knowledge. That is
legally relevant because state action that involves
“discretionary decisionmaking based on a vast array of
subjective, individualized assessments” necessarily results in
different treatment among those subject to the discretionary
action. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 603–04
(2008) (different but discretionary treatment of apparently
similarly situated employees does not raise equal protection
concerns).
The Equal Protection Clause allows state officials to
exercise their discretion to grant parole to “one class of
criminals and deny it to others,” to determine “the kind or
14
amount of evidence upon which to base its determination,” or
attach whatever “conditions to the application for or to the
granting of [parole] as [the state] may deem proper.” Ughbanks
v. Armstrong, 208 U.S. 481, 488 (1908).5 The government “is
not bound to grant a parole in any case” so long as it treats
similarly situated persons equally. Id. at 487.
The District Court held that considering the collateral
consequences of sex offenses was irrelevant because they “are
part of the very classification on the basis of which Plaintiffs
argue they are suffering discrimination.” Wetzel, 519 F. Supp.
3d at 225. That is, the District Court agreed with Appellees that
DOC couched an equal protection violation within another,
antecedent equal protection violation. But these collateral
burdens have themselves survived Equal Protection Clause
scrutiny. See, e.g., Artway, 81 F.3d at 1267–68. And in any
event, Appellees’ counsel acknowledged in oral argument that
state and federal laws imposing collateral burdens on sex
offenders are reasonable attempts to protect the public and
disclaimed the suggestion that they, too, are unconstitutional.
Appellees are not similarly situated with non-sex
offender parolees, so the first prong of their equal protection
claim fails. Hill, 455 F.3d at 239. But even if Appellees could
show that they are similarly situated to non-sex offender
parolees, that would not save their claim. Because Appellees
5
Of course, Pennsylvania may not classify offenders based on
factors that are “foreign to the parole statute,” such as race,
religion, or political beliefs. Newman v. Beard, 617 F.3d 775,
784 (3d Cir. 2010). But none of these impermissible factors are
at issue here.
15
don’t belong to a suspect class, they would have to show that
DOC’s halfway house policy is irrational.
B
Under the rational basis test, a law does not “run afoul
of the Equal Protection Clause if there is a rational relationship
between the disparity of treatment and some legitimate
governmental purpose.” Armour v. City of Indianapolis, 566
U.S. 673, 680 (2012) (quoting Heller v. Doe, 509 U.S. 312,
319–20 (1993)). The challenged “legislation enjoys a
presumption of validity, and [a] plaintiff must negate every
conceivable justification for the classification in order to prove
that the classification is wholly irrational.” Brian B. ex rel. Lois
B. v. Pa. Dep’t of Educ., 230 F.3d 582, 586 (3d Cir. 2000). “[I]f
there is any reasonably conceivable state of facts that could
provide a rational basis for the classification,” the policy
survives. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313
(1993). And if DOC’s conceivable rationale seems tenuously
related to its governmental interest, the sex offenders still must
show that its criteria and actions are “wholly irrational.”
Cabrera v. Att’y Gen. U.S., 921 F.3d 401, 404 (3d Cir. 2019)
(citation omitted).
DOC’s halfway house policy is supported by rational
bases. Pennsylvania has a legitimate interest in considering
public safety and public concern over the concentration of
sexual offenders in a given area. Specifically, DOC has a
legitimate interest in considering a community’s rational
concern about sex offenders’ troubling crimes and risk of
recidivism.
Communities rationally fear that sex offenders pose a
serious “danger to the community” because they typically have
16
a “higher risk of recidivism.” United States v. Juv. Male, 670
F.3d 999, 1010 (9th Cir. 2012) (quoting United States v.
Salerno, 481 U.S. 739, 747 (1987)); Litmon, 768 F.3d at 1244;
see also Doe v. Moore, 410 F.3d 1337, 1347 (11th Cir. 2005)
(“The increased reporting requirements based on evidence of
increased recidivism among [sex offenders] . . . [are] rationally
related to the state’s interest in protecting its citizens from
criminal activity.”); Cutshall v. Sundquist, 193 F.3d 466, 483
(6th Cir. 1999) (“Given the indications that sex offenders pose
a particular threat of reoffending, we cannot say that the Act is
irrational [under the Equal Protection Clause].”).
These fears are not based on mere animus or unfounded
prejudice. “Half of prisoners released after serving time for
rape or sexual assault had an arrest within 9 years that led to a
conviction.” U.S. Department of Justice, Bureau of Justice
Statistics, Recidivism of Sex Offenders Released from State
Prison: A 9-Year Follow-Up (2005-2014) 6 (2019)
(https://bjs.ojp.gov/library/publications/recidivism-sex-
offenders-released-state-prison-9-year-follow-2005-14, last
visited September 14, 2022). And the Justice Department
recently confirmed its prior findings that sex offenders released
from state prison are much more likely than other released
prisoners to be arrested for rape or sexual assault. Id. at 5. See
McKune, 536 U.S. at 32 (citing 1997 and 2000 studies).
But even if sex offenders recidivate at equal or lower
rates than other criminals, a community can rationally fear sex
offenders more than other criminals because sex offenders
target “vulnerable individuals.” Artway, 81 F.3d at 1267
(“Protecting vulnerable individuals from sexual offenses is
certainly a legitimate state interest.”); see also Doe v. Cuomo,
755 F.3d 105, 115 (2d Cir. 2014) (requiring a sex offender
17
considered non-dangerous to remain on a sex offender registry
rationally relates to protecting the public).
Appellees contend that any consideration of community
sensitivity impermissibly opens the door to irrational prejudice
held unconstitutional by City of Cleburne, 473 U.S. 432. That
argument conflates “mere negative attitudes, or fear, [toward
the mentally retarded] unsubstantiated by factors which are
properly cognizable in a zoning proceeding” with one of
thirteen factors cumulatively considered by the Parole Board
before designating prisoners for discretionary placement in a
halfway house. Id. at 448. In City of Cleburne, the city council
denied a special use permit for a group home for the
intellectually disabled. To support its decision, the council
pointed to “the negative attitude of the majority of property
owners located within 200 feet” of the proposed location. Id.
But those concerns are not “properly cognizable in a zoning
proceeding.” Id. The council needed a different reason to
justify denying the permit.
The Court in Cleburne emphasized that only “irrational
prejudice” is unlawful under the Fourteenth Amendment. Id. at
450 (emphasis added); see also U.S. Dep’t of Agric. v. Moreno,
413 U.S. 528, 534–35 (1973) (holding that nothing more than
“a bare congressional desire to harm a politically unpopular
group” violates the Equal Protection Clause); Romer v. Evans,
517 U.S. 620, 632 (1996) (holding unlawful a state law that
precluded local ordinances from protecting homosexuals from
discrimination because it “seems inexplicable by anything but
animus toward the class it affects”). In other words, disfavor
based on nothing but mere animus toward a group violates the
Equal Protection Clause. Here, DOC relied on thirteen factors
to evaluate a parolee’s fitness for placement in a halfway
18
house, and those factors are related to the success of the
halfway house system.
Appellees argue that by virtue of the Parole Board’s
favorable decision, sex offenders granted parole do not have
the same likelihood of recidivism as sex offenders denied
parole. This argument relies on two faulty premises. In its
strongest form, the argument presumes that a favorable parole
decision somehow eliminates or reduces the offender’s actual
likelihood of recidivism. In its weaker form, the argument
presumes that a decision to grant parole is a definitive finding
of offenders’ low risk to the public. But any parole decision is
an exercise of discretion considering, among many other
things, the Parole Board’s best assessment of an offender’s risk
of recidivism. The Parole Board doesn’t purport to predict the
future, and it certainly can’t determine the offender’s actual
likelihood of recidivism. The agency’s discretionary,
predictive decision doesn’t render irrational community
concerns about sex offender recidivism or the State’s
legitimate interest in protecting vulnerable people.
For administrative and efficiency reasons, DOC also
has a rational interest in considering community concern over
high concentrations of sex offenders. See Califano v. Jobst,
434 U.S. 47, 53 (1977) (administrative efficiency of Social
Security program is a legitimate government interest satisfying
rational basis test). According to DOC, space in halfway
houses is limited. There are more parolees than rooms
available in halfway houses. Thus, halfway houses cannot
accommodate every parolee, especially not for long periods.
The nettlesome issue with sex offenders, according to DOC, is
that they tend to stay longer in halfway houses and end up
clogging the halfway house system. DOC says this is
19
attributable to the collateral burdens that sex offenders
uniquely face.
Because of those challenges, the population of sex
offenders in halfway houses tends to increase over time. Such
concentration, combined with sex offenders’ propensity to
recidivate, arguably creates an increased risk of sex crimes in
an area. Because of similar concerns, Pennsylvania law limits
the number of sexually violent predators in group homes,
including halfway houses. See 42 Pa. Cons. Stat.
§ 9799.55(d)(1). The community is rationally sensitive to sex
offender concentration, and DOC’s policy of considering
community sensitivity for halfway house placement rationally
relates to its interest in maximizing halfway house availability
for all offenders.
Appellees argue that most, but not all, offenders were
successfully placed in homes after their stays in halfway
houses, that most sex offenders left halfway houses before their
sentences expired, that at least one halfway house’s occupants
consist of forty percent sex offenders without controversy, and
that DOC officials did not produce evidence showing that sex
offenders commit sex offenses during their stays at halfway
houses. But this evidence doesn’t negate every conceivable
justification offered by DOC or show that its halfway house
policy is utterly irrational. “[T]he Constitution does not require
the [DOC] to draw the perfect line nor even to draw a line
superior to some other line it might have drawn. It requires only
that the line actually drawn be a rational line.” Armour, 566
U.S. at 685. Nor does rational basis review require specific
facts to justify the government’s legitimate purpose; all it asks
is whether a policy is rational based on “any reasonably
conceivable state of facts.” Beach Commc’ns, 508 U.S. at 313.
20
Even “rational speculation unsupported by evidence or
empirical data” is enough. Id. at 315. DOC’s halfway house
policy satisfies that low bar.
Finally, we note that the entire criminal law system
reflects the community’s moral judgments. See United States
v. Bass, 404 U.S. 336, 348 (1971) (“[B]ecause of the
seriousness of criminal penalties, and because criminal
punishment usually represents the moral condemnation of the
community, legislatures and not courts should define criminal
activity.”). Criminal and penal laws graduate punishment to
account for the severity of the crime and the defendant’s moral
culpability. See, e.g., Wimberly v. Williams, 14 F.4th 1140,
1148–49 (10th Cir. 2021) (state had rational basis to treat sex
offenders differently because they “have been convicted of
crimes considered particularly heinous”). There is no reason to
depart from this principle for parole proceedings. The public’s
moral judgments about sex offenses are no less legitimate in
post-conviction matters, particularly where offenders are still
serving their term of punishment. See Commonwealth v.
Williams, 692 A.2d 1031, 1035 (Pa. 1997) (citing Griffin v.
Wisconsin, 483 U.S. 868, 873–75 (1987)) (“parole is a form of
criminal punishment imposed after a guilty verdict”).
* * *
Because the District Court erred in granting summary
judgment for Appellees, we will reverse and remand for entry
of summary judgment for the Department of Corrections. In
light of our disposition, the appeal of the District Court’s April
29, 2022 order will be dismissed as moot.
21 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482602/ | Filed 11/8/22 Gearing v. Garfield Beach CVS CA4/3
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
FOURTH APPELLATE DISTRICT
DIVISION THREE
RUTH GEARING,
Plaintiff and Appellant, G060807
v. (Super. Ct. No. 30-2019-01059332)
GARFIELD BEACH CVS, LLC, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Gregory
H. Lewis, Judge. Affirmed.
Elizabeth Nigro & Associates and Elizabeth Nigro for Plaintiff and
Appellant.
La Follette, Johnson, DeHaas, Fesler & Ames, Dennis K. Ames, Marissa A.
Warren, and David J. Ozeran for Defendant and Respondent.
* * *
Plaintiff Ruth Gearing appeals from a judgment of nonsuit entered against
her in a personal injury action against defendant Garfield Beach CVS, LLC. Plaintiff
contends the trial court erred in its analysis of the duty of care, and by excluding certain
expert testimony. Defendant argues the trial court properly granted nonsuit, but also
contends plaintiff’s appeal is untimely based on the interaction of plaintiff’s motion for
new trial and motion to disqualify the trial judge. We conclude the appeal is timely and
affirm the judgment, as plaintiff failed to produce admissible evidence that defendant
caused her injuries.
FACTS AND PROCEDURAL HISTORY
Plaintiff was injured at a CVS pharmacy owned by defendant in Mission
Viejo, California. The injury occurred when an elderly man attempted to manually open
the automatic “Exit” door of the pharmacy. The man pulled the crash bar on the door,
overriding the motor and triggering a safety mechanism that pushed the door open with
30 pounds of force. The door pushed the man backward into plaintiff, who fell and was
injured.
Plaintiff sued defendant, alleging causes of action for negligence and
premises liability. Plaintiff alleged the following seven breaches of duty: (1) locating the
shopping carts to the left of the exit door, rather than on the right of the entrance door; (2)
locating a structural pillar in the vicinity of the exit door, such that plaintiff was forced to
walk across the path of the exit door twice; (3) placing a handle on the exit door, inviting
attempts to open it; (4) the door snapping open upon being pulled; (5) a “handicap”
sticker on the exit door, inviting attempts to open it from the outside; (6) failure of
defendant’s staff to identify the elderly man who opened the door; and (7) failing to
perform daily maintenance on the doors.
At trial, plaintiff abandoned her contention that the doors were defective.
Instead, plaintiff contended defendant breached its duty of care in various other ways, as
described above. Specifically, plaintiff contended the location of the carts relative to the
2
doors drew plaintiff into the path of the exit door, the danger of which was compounded
by the bar on the outside of the door and the “handicap” sticker, which plaintiff argued
enticed the elderly man to try to open the door, triggering the accident. Plaintiff also
argued defendant failed to warn its customers of the danger involved in attempting to
open the exit door from the outside, or in standing near the exit door. Lastly, plaintiff
argued defendant failed to identify the elderly man.
At the conclusion of plaintiff’s case-in-chief, defendant moved for nonsuit.
Defendant argued plaintiff failed to present evidence of defendant’s negligence or of an
unsafe condition on defendant’s premises. The trial court granted the motion, finding
there was no substantial evidence the defendant fell below the standard of care.
Plaintiff served a notice of intention to move for new trial on April 28,
2021, and moved for new trial on May 10, 2021. The trial court entered judgment in
defendant’s favor on May 25, 2021. On the same day, plaintiff moved to disqualify the
1
trial judge. Defendant served a notice of entry of judgment on June 1, 2021. Plaintiff’s
motion to disqualify was heard by Judge Katherine A. Bacal of the San Diego County
Superior Court. Judge Bacal denied plaintiff’s motion to disqualify the trial judge on
September 15, 2021. The trial court denied plaintiff’s motion for new trial 12 days later,
on September 27, 2021. Plaintiff filed a notice of appeal on October 25, 2021.
DISCUSSION
On appeal, plaintiff contends the trial court erred in granting defendant’s
motion for nonsuit, and in making certain underlying evidentiary rulings. Defendant
1
We note the record does not contain a proof of service for the notice of
entry of judgment, but based on the parties’ use of electronic filing and the lack of any
challenge to effective service, we assume the notice was served on June 1, 2021, the same
day it was filed.
3
argues the trial court’s decisions were correct, but also contends plaintiff’s appeal is
untimely. We begin with the timeliness issue.
Plaintiff’s Appeal is Timely
The timeliness issue raised by defendant arises from the interaction
between plaintiff’s motion for new trial and her motion to disqualify the trial judge.
When, as here, a motion for new trial is filed and denied, a notice of appeal must be filed
within the earliest of: “(A) 30 days after the superior court clerk or a party serves an
order denying the motion or a notice of entry of that order; [¶] (B) 30 days after denial of
the motion by operation of law; or [¶] (C) 180 days after entry of judgment.” (Cal. Rules
of Court, rule 8.108(b)(1)(A)-(C).) Meanwhile, a motion for new trial is deemed denied
by operation of law if the motion is not determined within 75 days after a notice of entry
of judgment is served by the clerk of the court or a party. (Code Civ. Proc., § 660, subd.
2
(c).)
The notice of entry of judgment was filed on June 1, 2021. Because August
15, 2021 was a Sunday, the time for the trial court to rule was extended to the following
Monday, August 16, 2021. (§§ 660, subd. (c), 12a.) However, as noted above, the trial
court did not rule on the motion for new trial until September 27, 2021, and plaintiff did
not file her notice of appeal until October 25, 2021. Thus, defendant contends, the
motion for new trial was deemed denied by operation of law on August 17, 2021, and
plaintiff’s time to appeal ran out 30 days later, well before she filed her notice of appeal.
The trial court considered this issue and reached a different conclusion.
Relying on Collins v. Nelson (1940) 41 Cal.App.2d 107 (Collins), the trial court
concluded the time for the trial court to rule on the motion for new trial was tolled during
the period the motion to disqualify was pending.
2
All statutory references are to the Code of Civil Procedure.
4
In Collins, which was decided under an earlier version of section 660
mandating a 60-day period, the trial court granted a motion for new trial under very
similar circumstances. (Collins, supra, 41 Cal.App.2d at pp. 112-113.) Just as in this
case, the trial court received a motion for new trial but was divested of jurisdiction to rule
on the motion by a party’s motion to disqualify the trial judge. (Id. at p. 112.) While the
motion to disqualify was pending, more than 60 days elapsed. (Ibid.) On appeal, the
nonmoving party contended the trial court lacked jurisdiction to grant the motion for new
trial because of the expiration of the 60-day period. (Ibid.)
The Court of Appeal rejected this argument. The court determined the 60-
day period was tolled during the pendency of the motion to disqualify, when the trial
court lacked jurisdiction to rule on the motion for new trial. (Collins, supra, 41
Cal.App.2d at p. 112.) “To hold otherwise would lead to absurdity, because a party
resisting a motion for new trial could defeat it merely by resorting to the proceedings
named in section 170 . . . , in the determination of which motion to disqualify the trial
judge more than 60 days might reasonably be expected to elapse, especially if an appeal
were taken, as in the present case.” (Id. at pp. 112-113.)
We find the Collins court’s reasoning persuasive. Defendant makes no
effort to distinguish Collins or to attack its reasoning, despite the trial court’s reliance on
that case, and we conclude there is no material distinction between that case and this one
and no reason to depart from the clear rule it prescribes.
Accordingly, tolling the 75-day period as prescribed by Collins, we
conclude the trial court ruled on the motion for new trial well within 75 days after service
of the notice of entry of judgment. Plaintiff’s notice of appeal was filed within 30 days
after the trial court’s denial of the motion for new trial. Thus, plaintiff’s appeal is timely.
5
The Trial Court Correctly Granted Defendant’s Motion for Nonsuit
Plaintiff raises several challenges to the trial court’s ruling on defendant’s
motion for nonsuit. Plaintiff contends the trial court failed to fully account for
defendant’s duty of care as owner or lessee of the property in question, incorrectly
excluded certain expert testimony that affected the outcome of the nonsuit motion and
failed to properly credit plaintiff’s “multiple causes” argument. We begin with the
evidentiary issues.
1. Evidentiary Issues
As always, we apply the abuse of discretion standard of review to
evidentiary rulings. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) “Claims of
evidentiary error under California law are reviewed for prejudice applying the
‘miscarriage of justice’ or ‘reasonably probable’ harmless error standard of People v.
Watson (1956) 46 Cal.2d 818, 836 [citation], that is embodied in article VI, section 13 of
the California Constitution. Under the Watson harmless error standard, it is the burden of
appellants to show that it is reasonably probable that they would have received a more
favorable result at trial had the error not occurred.” (Id. at p. 447.)
The first evidentiary ruling plaintiff challenges is the court’s sustaining
relevance objections to the following two questions posed to plaintiff’s expert witness:
“All right, now, while you were working for All American Lock Corporation, isn’t it true
that most of the CVS stores you were servicing were transitioning from the automatic
swinging doors like exist at the Mission Viejo store on Marguerite Parkway over to the
slider doors, correct?”; and “Would you agree that the automatic slider doors are safer
than the automatic swing doors”?
Plaintiff argues this evidence is relevant because it tends to show the doors
were inherently unsafe as designed, and that defendant knew it and had a duty to replace
them. However, defendant’s duty to replace a dangerous condition on its property with a
6
safer alternative only arises when there is, in fact, a dangerous condition. The inherent
dangerousness of the automatic door, and a resulting unreasonable risk of harm, as
established by expert testimony, was therefore a factual prerequisite for the relevance of
evidence regarding potential alternatives. And at no point did plaintiff’s expert testify the
automatic doors were inherently unsafe. Thus, we cannot say the trial court abused its
discretion in sustaining defendant’s objections to these questions.
The second evidentiary ruling plaintiff challenges is another relevance
objection sustained by the trial court during plaintiff’s expert witness’s testimony.
Plaintiff asked the expert, “Would you agree that the inspections of these doors need to
be done on a daily basis as recommended [by] A.A.A.D.M. for the safety of the
customers to the store?” Plaintiff argues this evidence is relevant because it demonstrates
defendant’s “indifference to customer safety relative to the automatic swinging doors.”
But plaintiff conceded the doors were not defective. The daily inspections recommended
by the industry group were designed to ensure that the doors functioned properly.
Therefore, there is no evidence to support a causal connection between the inspections (or
lack thereof) and the accident, and the evidence was properly excluded.
2. Defendant’s Duty of Care
Plaintiff argues the trial court failed to adequately consider defendant’s
duty of care as an owner or lessee of the property. Specifically, plaintiff contends
defendant’s duty of care extends beyond ensuring that the doors were operating properly
and includes various other components in which plaintiff argues defendant was negligent.
It is true that defendant owed plaintiff a duty to remedy or warn of any
known dangerous condition on its property. But the primary basis for the trial court’s
ruling was not the absence of a duty; it was the absence of a breach of that duty.
Plaintiff’s various suggestions of defendant’s potential breaches of duty all fail.
7
Plaintiff’s first suggestion, that defendant failed to adequately inspect or
maintain the doors, fails (as discussed above) because plaintiff conceded the doors were
not defective. Plaintiff’s second suggestion, that defendant did not obtain contact
information for the elderly man who opened the door, fails because there is no causal
connection between the man’s contact information and the accident itself, which had
already occurred by the time there was any reason to investigate the man’s identity.
Plaintiff’s third suggestion, that defendant should have removed the crash bar from the
outside of the door, fails because the expert testimony on the subject showed that the
crash bar was itself a safety feature, designed to prevent a shopping cart from crashing
through the glass. Further, there was no expert testimony that the crash bar was
unreasonably dangerous—instead, the expert testified the crash bar was “there for a
reason.”
Plaintiff’s fourth suggestion, that the spring to snap the door open should
have been reduced from 30 pounds of pressure to 20 pounds, fails for two reasons. First,
there was no evidence, expert or otherwise, that this reduction would have prevented the
accident. Second, plaintiff’s expert testified that 30 pounds of pressure were required by
the relevant safety industry group in order to ensure that the door could be opened for
“fire life safety.”
Plaintiff’s fifth suggestion, that a more specific warning sign was required,
fails because there was no expert testimony that the absence of such a warning created a
dangerous condition, or that a more specific warning would have prevented the accident.
This expert testimony was necessary, especially in light of the existing “do not enter” and
“caution automatic door” warning signs, and the fact that the elderly man who opened the
door does not appear to have looked at any of the signs. Plaintiff’s sixth suggestion, that
the “handicap” sign on the door might have lured the elderly man into erroneously
attempting to enter through the exit door, also fails for lack of expert testimony that this
was a dangerous condition, or that the handicap sign was located somewhere it should not
8
have been. Plaintiff’s seventh and last suggestion, that a large structural pillar and the
location of the shopping carts forced plaintiff to walk through a zone of danger behind
the exit door, also fails due to lack of expert testimony that this was a dangerous
condition.
3. Multiple Causes
Lastly, plaintiff argues defendant’s negligence was at least a contributing
factor in the accident, and that therefore the jury should have decided the extent of
defendant’s responsibility. But, as discussed above, plaintiff’s various theories of
defendant’s breach of duty all fail, whether for lack of evidence, lack of causation, or by
virtue of plaintiff’s own concessions. In the absence of evidence of even a single breach
of duty by defendant in the causal chain leading up to the accident, the trial court had no
choice but to enter a judgment of nonsuit.
DISPOSITION
The judgment is affirmed. Defendant Garfield Beach CVS, LLC shall
recover costs on appeal.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOTOIKE, J.
9 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482637/ | Filed 11/9/22 P. v. Martinez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082203
Plaintiff and Respondent,
(Super. Ct. No. BF181599A)
v.
MARIA PONCE MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa
Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
During a dispute that began with a racial epithet against her neighbor, defendant
Maria Ponce Martinez entered her neighbors’ apartment; engaged in a physical
altercation with the two adults; and, after returning with a baseball bat, threatened to
“get” their nine-year-old child next and damaged their door and multiple windows with
the bat. Defendant was charged by information with the six felonies and one
misdemeanor, as follows: one count of assault with a deadly weapon against S.D. (Pen.
Code, § 245, subd. (a)(1); count 1),1 one count of assault with a deadly weapon against
J.M. (§ 245, subd. (a)(1); count 2), child endangerment against L.M. (§ 273a, subd. (a);
count 3), making criminal threats against L.M. (§ 422, subd. (a); count 4), first degree
burglary (§ 460, subd. (a); count 5), vandalism (§ 594, subd. (b)(1); count 6), and
misdemeanor resisting arrest (§ 148, subd. (a)(1); count 7).2
During trial, the vandalism count was reduced from a felony to a misdemeanor.
The jury subsequently acquitted defendant of burglary, but convicted her of the lesser
included offenses of assault on counts 1 and 2, child endangerment, making criminal
threats, vandalism, and resisting arrest. The trial court sentenced defendant to the middle
term of four years for child endangerment, but suspended execution of sentence and
placed her on probation for four years, with one year in jail. The court imposed the
middle term of two years, stayed under section 654, for making criminal threats, 180 days
in jail with credit for time served for the assault counts, and concurrent terms of one year
in jail for vandalism and resisting arrest.
Defendant advances one claim on appeal. She seeks reduction of her conviction
for child endangerment from a felony to a misdemeanor on the ground that there is
insufficient evidence supporting the jury’s finding that she inflicted mental suffering on
1 All further statutory references are to the Penal Code.
2 An eighth charge of felony vandalism was dismissed following the preliminary hearing.
2.
L.M. under “circumstances or conditions likely to produce great bodily harm or
death .…” (§ 273a, subd. (a).) The People dispute any entitlement to relief.
We find substantial evidence supports the jury’s verdict on count 3 and affirm the
judgment.
FACTUAL SUMMARY
S.D.; her partner, J.M.; their 9-year-old daughter, L.M.; and their 15-year-old son
lived in the same apartment complex as defendant, in an adjacent apartment. S.D.
testified that she and defendant had been on friendly terms but shortly before the crimes,
defendant started calling her the N-word. Although it angered S.D. and she felt
defendant was racist given the repeated use of the term, she just responded by smiling
and laughing.
In June 2020 at around 9:00 a.m., S.D. and J.M. awoke to the sound of their small
dog barking in the yard, sounding stressed. S.D. got up, moved the blinds aside in the
dining area of the apartment, and saw defendant standing right outside against the
window. S.D. asked defendant to move away because her presence was making the dog
bark. Defendant responded by saying, “fuck you, [N],” and holding up her middle finger.
After putting some clothing on, S.D. opened the front door. She testified that
defendant was standing at the door with a basketball and water in hand, while J.M.
testified the two argued outside angrily before moving to the front door. As defendant
stood at the open front door, she had a wood or metal broom handle in her hand, which
S.D. kept outside for yard work.3 J.M., who had an issue with his legs and used a walker,
positioned himself in the doorway between defendant standing on the outside and S.D.
standing on the inside. Defendant hit J.M. with the broom handle while trying to get at
3 Descriptions of the handle were inconsistent, but all three witnesses testified that
defendant had it in her hand when she was in the doorway of the apartment. S.D. described the
item as a pole and then clarified it was a wooden broom handle. J.M. said it was an aluminum
broom handle, and L.M. said it was big, black and metal. A responding officer testified that he
found a bent hollow metal white or grey broom handle in the bushes outside.
3.
S.D. Defendant then dropped the items, pushed J.M. down with her hands, and charged
at S.D. Defendant ended up on top of S.D., pinning her to the floor as L.M. stood nearby
watching. J.M. was still on the floor unable to get up and defendant outweighed S.D., so
she called for L.M. to help get defendant off of her.
L.M. picked up “a stick” and hit defendant in the head several times while yelling,
“get off my mama[!]” This caused defendant to look up and S.D. kicked her in the face.
Defendant then got up, grabbed her phone from the floor where it had fallen, and left.
S.D. went into the bathroom to run water over her bleeding hand and call 911.
Defendant returned right away with a baseball bat, and she started pounding on the
closed screen door with the bat and demanding that J.M. open it. Defendant started
breaking windows with the bat and yelling at L.M., “I’m gonna get you too, you little
bitch.” J.M. asked if defendant was threatening his daughter and defendant said, “F you
too. And, yeah, I’m threatening her.”
Defendant then ran off, but was quickly located one street over from the apartment
complex by an officer on foot. Defendant was sitting on the curb still holding the
baseball bat. Her speech was “incomprehensible,” and she kept turning around while the
officer searched her, despite being told to face forward. Defendant was also yelling
during the search, spraying spittle as she did. Defendant kept saying she had been
stabbed with a knife, but the officer observed no injuries on her. After the officer
managed to get defendant handcuffed, defendant kept moving and disobeying directions.
Once a patrol car arrived, it took four officers to get defendant inside. She refused to get
in; she kept straightening her arms, legs and body; and she used her body weight to resist.
J.M. testified that although defendant hit him with the handle and pushed him
down, he was not injured. S.D. sustained gashes to her thumb and pinky, and she said
she had permanent numbness where she was cut. It was unclear exactly how she was
injured. There was some testimony that defendant may have had a knife. S.D. testified
that defendant must have pulled a pocketknife out while they were on the floor and cut
4.
her with it, because defendant was digging around her pockets and the cuts were too deep
to be scratches. The officer who interviewed S.D. that morning testified she told him
defendant was swinging a knife, a pole, and her fists. J.M. and L.M. did not see a knife,
however, and police did not locate a knife at the scene, on defendant, or in the backpack
she had when arrested, although her apartment was not searched.
There was blood on the porch, front door, and wall. L.M. said there was blood on
the handle when she picked it up to hit defendant, and an officer testified the metal broom
handle he found was jagged where it was bent. He also testified that there were five
broken windowpanes and damage to the screen door.
DISCUSSION
I. Standard of Review
“The Due Process Clause of the Fourteenth Amendment denies States the power to
deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt
every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265,
citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by
substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On
appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must
disclose substantial evidence to support the verdict—i.e., evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (Zamudio, supra, at p. 357.)
“In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.” (Zamudio, supra, 43 Cal.4th at
p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of the
5.
defendant’s guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A
reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict” (Zamudio, supra, at p. 357), but “speculation, supposition and suspicion are
patently insufficient to support an inference of fact” (People v. Franklin (2016) 248
Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v.
Xiong (2013) 215 Cal.App.4th 1259, 1268).
II. Analysis
A. Felony Child Endangerment
Defendant was convicted of felony child endangerment under section 273a,
subdivision (a), which “‘is an omnibus statute that proscribes essentially four branches of
conduct.’” (People v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez), quoting People v.
Sargent (1999) 19 Cal.4th 1206, 1215 (Sargent).) The statute provides, “Any person
who, under circumstances or conditions likely to produce great bodily harm or death,
willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical
pain or mental suffering, or having the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or willfully causes or permits that
child to be placed in a situation where his or her person or health is endangered, shall be
punished by imprisonment in a county jail not exceeding one year, or in the state prison
for two, four, or six years.” (§ 273a, subd. (a).)
“Violation of section 273a, subdivision (a) ‘“can occur in a wide variety of
situations: the definition broadly includes both active and passive conduct, i.e., child
abuse by direct assault and child endangering by extreme neglect.” (People v. Smith
(1984) 35 Cal.3d 798, 806.) … Section 273a[, subdivision (a)] is “intended to protect a
child from an abusive situation in which the probability of serious injury is great.”
(People v. Jaramillo (1979) 98 Cal.App.3d 830, 835.) “[T]here is no requirement that the
6.
actual result be great bodily injury.” (Ibid.)’ (Sargent, supra, 19 Cal.4th at pp. 1215–
1216.)” (Valdez, supra, 27 Cal.4th at p. 784.)
B. Substantial Evidence Supports Conviction
Defendant does not dispute that there is sufficient evidence she inflicted
unjustifiable mental suffering on L.M., but she argues the evidence is insufficient to show
“circumstances or conditions likely to produce great bodily harm or death” and, therefore,
her conviction should be reduced from felony to misdemeanor child endangerment.
(§ 273a, subd. (a).) We disagree.
The evidence, viewed in the light most favorable to the prosecution, shows that
defendant became enraged after S.D. asked her to move away from the side of the
family’s apartment because her presence was making their dog bark. Defendant began
spewing racial epithets and was at the family’s open apartment door with a metal handle
in hand. While attempting to strike S.D. with the handle, she struck J.M. and then pushed
him down. Defendant barged inside and S.D. ended up on the floor pinned down by
defendant, who outweighed her. Because J.M. was unable to get up quickly without
assistance, he could not come to S.D.’s aid and she had to call for L.M., who was
witnessing the assault on her parents. L.M. grabbed a stick or a handle and struck
defendant several times while yelling for defendant to get off of her mother. This
enabled S.D. to kick defendant in the face.
Although defendant got up and left, she immediately returned with a baseball bat,
started pounding on the family’s screen door with it and demanding they open it. J.M.
described defendant as “going ballistic.” Defendant began breaking the apartment
windows with the bat. During this time, she called L.M. “a little [bitch],” and said, “I’m
gonna get you too, you little bitch,” which L.M. interpreted to mean defendant was going
to kill her. J.M. asked defendant if she was threatening his daughter and responded,
“F you too. And, yeah, I’m threatening her.” When defendant was located by police
shortly thereafter one street over, she still had the baseball bat with her.
7.
J.M. described L.M. as “hysterical” and “scared” by defendant’s actions, and he
stated she was still frightened of defendant. L.M. testified she started crying, she asked
defendant to leave them alone, and she did not understand why defendant helped her
build something the previous day and “turn[ed] evil” the next day. L.M. said she feared
defendant was going to kill her and she was still frightened of defendant at the time of
trial, approximately four months after the incident.
Defendant did not physically injure L.M. or attempt to physically injure her, but
“[f]elony child abuse does not require force likely to produce great bodily injury” (People
v. Clark (2011) 201 Cal.App.4th 235, 243, italics added), and it does not require “‘“that
the actual result be great bodily injury”’” (Valdez, supra, 27 Cal.4th at p. 784). The
statute is intended “to protect vulnerable members of society from a wide range of
dangerous situations” (id. at p. 790), and “[w]hether the injury is inflicted under
circumstances or conditions likely to produce great bodily injury is a question for the trier
of fact” (People v. Clark, supra, at p. 245, citing Sargent, supra, 19 Cal.4th at p. 1224).
The felony child endangerment charge was based on the incident in its entirety,
and the jury was entitled to consider the totality of the circumstances. (People v. Clark,
supra, 201 Cal.App.4th at p. 245.) As stated, L.M. was only nine years old and
defendant, an adult larger than her mother, struck her father with a metal handle, knocked
him to the ground, and charged inside, knocking her mother to the ground. L.M. had to
physically intervene and hit defendant with an object to stop the assault on her mother,
and, after leaving, defendant returned immediately armed with a baseball bat, which she
used to pound on the screen door and smash windows, demanding to be let in. During
the midst of this, defendant was calling L.M. a little bitch and threatening to get her next.
Defendant was enraged throughout this incident, and, following her arrest, it took
multiple officers to get her into a patrol car.
From the totality of this evidence, a reasonable jury could infer that in inflicting
mental suffering on L.M., there existed “circumstances or conditions likely to produce
8.
great bodily harm” (§ 273a, subd. (a); accord, Sargent, supra, 19 Cal.4th at p. 1221;
People v. Lee (1991) 234 Cal.App.3d 1214, 1220 [“Section 273a does not focus upon
actual injury produced by abusive actions but ‘rather upon whether or not the attendant
circumstances make great bodily injury likely.’”].) It is immaterial that defendant did not
actually harm L.M. physically with the metal handle, her fists, or the baseball bat.
Substantial evidence supports defendant’s conviction for felony child endangerment, and
we affirm the judgment.
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
PEÑA, Acting P. J.
SNAUFFER, J.
9. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482648/ | Washington v Todd (2022 NY Slip Op 06282)
Washington v Todd
2022 NY Slip Op 06282
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
REINALDO E. RIVERA
JOSEPH A. ZAYAS
WILLIAM G. FORD, JJ.
2019-12625
(Index No. 706940/2015)
[*1]Tiffany Washington, etc., respondent,
vAngela H. Todd, etc., et al., appellants, et al., defendant.
Heidell, Pittoni, Murphy & Bach, LLP, New York, NY (Daniel Lei and Daniel S. Ratner of counsel), for appellants.
The Fitzgerald Law Firm, P.C., Yonkers, NY (John M. Daly and Mitchell Gittin of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for medical malpractice, the defendants Angela H. Todd, Geddis Abel-Bey, Dr. Geddis Abel-Bey, Jr., M.D., P.C., and Phoenix OB/GYN Services appeal from an order of the Supreme Court, Queens County (Darrell L. Gavrin, J.), dated August 20, 2019. The order, insofar as appealed from, after a hearing, granted that branch of those defendants' motion which was to preclude the plaintiff from offering an expert medical opinion that polymicrogyria can be caused by periventricular leukomalacia, associated with the complications of extreme prematurity, only to the extent of precluding the plaintiff from offering an expert medical opinion that polymicrogyria can be caused by post-delivery events.
ORDERED that the appeal is dismissed, with costs.
The plaintiff alleges that, as a result of the defendants' medical malpractice, her infant son suffered complications from his premature birth including polymicrogyria (hereinafter PMG) and petriventricular leukomalacia (hereinafter PVL). Before the trial, the defendants Angela H. Todd, Geddis Abel-Bey, Dr. Geddis Abel-Bey, Jr., M.D., P.C., and Phoenix OB/GYN Services (hereinafter collectively the defendants) moved, inter alia, to preclude the plaintiff from offering an expert medical opinion that PVL, associated with the complications of extreme prematurity, could have caused the infant plaintiff's PMG, or in the alternative, for a hearing pursuant to Frye v United States (293 F 1013 [D.C. Cir]). The Supreme Court conducted a Frye hearing, and thereafter granted the defendants' motion only to the extent of precluding the plaintiff from offering an expert medical opinion that polymicrogyria can be caused by post-delivery events. The defendants appeal, contending that the court also should have precluded the plaintiff from offering an expert medical opinion that PMG can be caused by extreme prematurity, prematurity, PVL, and intraventricular hemorrhage.
The Supreme Court's determination precluding the plaintiff from offering certain expert medical opinions at trial, and implicitly declining to preclude the plaintiff from offering certain other expert medical opinions, was an evidentiary ruling. Such a ruling, even when made in advance of trial on motion papers, constitutes, at best, an advisory opinion, which is not appealable, [*2]either as of right or by permission (see Dupree v Voorhees, 102 AD3d 912; Barnes v Paulin, 52 AD3d 754; Citlak v Nassau County Med. Ctr., 37 AD3d 640). Thus, the appeal must be dismissed (see Dupree v Voorhees, 102 AD3d at 914).
CONNOLLY, J.P., RIVERA, ZAYAS and FORD, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482604/ | EFiled: Nov 09 2022 12:19PM EST
Filing ID 68366916
Case Number 152,2022
IN THE SUPREME COURT OF THE STATE OF DELAWARE
LONG DENG AND MARK FANG, §
§ No. 152, 2022
Defendants/Counterclaim and §
Third Party Claim Plaintiffs §
Below, Appellants, §
§ Court Below—Court of Chancery
v. § of the State of Delaware
§
DENGRONG ZHOU, §
§ C.A. No. 2021-0026
Plaintiff/Counterclaim §
Defendant Below, Appellee. §
Submitted: October 26, 2022
Decided: November 9, 2022
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
This 9th day of November 2022, after careful consideration of the parties’
briefs and the record below, and following oral argument, we find it evident that the
judgment of the Court of Chancery should be affirmed on the basis of and for the
reasons stated in its Memorandum Opinion dated April 6, 2022.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Court of
Chancery is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice | 01-04-2023 | 11-09-2022 |
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