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https://www.courtlistener.com/api/rest/v3/opinions/8489382/ | ORDER ON MOTION FOR SUMMARY JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS CAUSE came on for hearing upon the Motion for Summary Judgment filed by Associates Financial Services, Inc. (Associates), the Defendant in the above-captioned adversary proceeding, who asserts that there are no issues of material fact and it is entitled to judgment as a matter of law.
The facts germane to the resolution of this Motion are without serious dispute and may be summarized as follows:
In August of 1978, prior to the enactment of the Bankruptcy Reform Act of 1978, the Debtors obtained a loan from Associates. The loan was secured by a lien on some of the Debtors’ household goods and furnishings. This loan later was renewed in June of 1979. The lien granted to Associates is admittedly a non-purchase money, non-pos-sessory security interest. In December of 1980, the Debtors filed their petition for relief under Chapter 7 of the Bankruptcy Code and claimed as exempt all their personal properties, including property encumbered by the lien of Associates. On March 31, 1981, the Debtors instituted this adversary proceeding and sought to avoid the lien of Associates pursuant to § 522(f) of the Code.
The Defendant contends that the retroactive application of the lien avoidance provisions of the Bankruptcy Code, § 522(f), to liens created prior to the enactment of the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2549, i.e. November 5,1978, is an unconstitutional taking of property without due process of law contrary to the *947protection afforded by the Fifth Amendment to the Constitution of the United States.
A retroactive application of any provisions of the bankruptcy law involving property rights, received the attention of the Supreme Court as early as 1935 in the case of Louisville Joint Stock Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935). This case involved a provision of the Frazier-Lemke Act of 1933 which amended § 75 of the Bankruptcy Act of 1898. The amendment permitted Debtors to stay state foreclosure proceedings for five years and also provided that the debtor at the end of five years could redeem the property by paying only the appraised price of the mortgaged property. In declaring this amendment to be unconstitutional, the Supreme Court stated that:
The bankruptcy power, like the other great substantive powers of Congress, is subject to the Fifth Amendment. Under the bankruptcy power, Congress may discharge the debtor’s personal obligation, because, unlike the states, it is not prohibited from impairing the obligations of contracts. [Citations omitted]. But the effect of the act here complained of is not the discharge of Radford’s personal obligation. It is the taking of substantive rights in specific property acquired by the bank prior to the Act. 295 U.S. at 589.
The Court concluded that application of the Frazier-Lemke Act retroactively constituted taking properties without just compensation, which is prohibited by the Fifth Amendment of the U.S. Constitution.
Liens created prior to November 6, 1978, the date that the Bankruptcy Reform Act of 1978 was enacted, are often referred to as “pre-enactment liens”. Those created between November 6,1978 and its effective date of October 1, 1979, are referred to as “gap liens”. This case, of course, involves a pre-enactment lien. Several courts have found the application of § 522(f) to pre-en-actment liens constitutional. In re Stump, 8 B.R. 516 (Bkrtcy. D.S.D. 1981); In re Paden, 10 B.R. 206 (Bkrtcy. E.D. Pa. 1981); In re Pillow, 8 B.R. 404 (Bkrtcy. D. Utah 1981). The majority of the courts which have considered the question, however, have found it unconstitutional. In re Bibb, 10 B.R. 40 (Bkrtcy. E.D. Mich. 1981); In re Felmey, 9 B.R. 331 (Bkrtcy. E.D. Va. 1981); Groves v. Household Finance Co., 9 B.R. 775 (Bkrtcy. D. Colo. 1981). See also, Morris v. Associates Finance Co., 12 B.R. 321, 325 n. 6 (Bkrtcy. N.D. Ill. 1981).
There is no doubt that the holding in Radford prohibits a substantial impairment of substantive rights in specific property by legislation, which rights were created prior to the enactment of the legislation. There is no doubt that a lien is a property right, and the secured creditor’s right is substantial, regardless of the actual value of his collateral. Rodrock v. Security Industrial Bank, 3 B.R. 629 (Bkrtcy. D. Colo. 1980), aff’d, 642 F.2d 1193 (10th Cir. 1981).
In this case, the Defendant acquired its rights in the collateral by lien, prior to the enactment of the Reform Act, i.e. November 6, 1978. Therefore, under Radford, its vested rights cannot be taken from the Defendant by Congress for the benefit of the Debtors, based on retroactive application of § 522(f).
In light of the foregoing, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by the Defendant be, and the same hereby is, granted. It is further
ORDERED, ADJUDGED AND DECREED that judgment be, and the same hereby is, entered in favor of the Defendant and against the Plaintiff and the complaint be, and the same hereby is, dismissed with prejudice. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489383/ | OPINION
EMIL F. GOLDHABER, Bankruptcy Judge:
The issue at bench is whether we have jurisdiction under the Bankruptcy Act to permit the trustee to amend his original complaint against the defendant compelling the turnover of certain equipment presently in the defendant’s possession. We conclude that we do have jurisdiction over the instant controversy because the defendant failed to make a timely objection to our jurisdiction and thereby consented to such jurisdiction.
The facts of the instant case are as follows 1 On August 14, 1974, Herman Has-singer, Inc. (“the debtor”) filed a petition under chapter XI of the Bankruptcy Act (“the Act”).2 Some time prior thereto, the debtor (for reasons disputed and therefore to be determined at the trial of this case) transferred four (4) dies to the defendant, Bowersox Precision Casting, Inc. (“Bower-sox”). On July 8, 1981, the trustee sold all *949of the tools and dies of the debtor to Perka-sie Industries Corporation (“Perkasie”), including the four dies mentioned above. There is no dispute that, at the time of the trustee’s sale, the aforesaid dies were in the actual possession of Bowersox. Furthermore, the dies still remain in Bowersox’s possession. Consequently, the trustee has been unable to fulfill his obligation to Per-kasie arising from the July 8 sale.
On December 1, 1981, the trustee filed a complaint against Bowersox to compel the turnover of the four dies. On February 8, 1982, Bowersox filed an answer to the trustee’s complaint in which it alleged that it had a possessory interest and lien in the said dies as security for the payment of labor and material it had provided to the debtor and that, as a consequence, the trustee was not entitled to the possession of the dies.
Subsequent to the filing of the above-mentioned complaint and answer, Perkasie asserted a claim against the trustee seeking damages, as an administrative expense, arising out of the trustee’s failure to deliver the four dies to Perkasie as agreed pursuant to the July 8 sale. As a result, the trustee then sought leave to amend its original complaint against Bowersox to include a second count for any damages for which the trustee might, as a result of Bowersox’s alleged failure to return the dies in question, become liable to Perkasie. On March 19,1982, Bowersox filed a motion to dismiss the trustee’s amendment, contending that we lacked jurisdiction to determine the trustee’s complaint to compel turnover of the aforementioned dies. We conclude that that objection is untimely.
It is well-settled that, under the Bankruptcy Act, the bankruptcy court only has jurisdiction to summarily adjudicate all rights and claims pertaining to controversies concerning property in the actual or constructive possession of the bankrupt. See 2 Collier on Bankruptcy ¶ 23.04[2] at 453 n. 11 (14th ed. 1976) and the cases cited therein. Collier points out that:
There is hardly any question of law better settled than that ... a court of bankruptcy has no jurisdiction, without the consent of the adverse claimant, to hear and adjudicate in a summary proceeding a controversy as to title of or claims upon property held adversely to the bankrupt estate, where such property came into the claimant’s possession prior to bankruptcy.
However, Bowersox committed a flagrant procedural error by failing to file its objection to this court’s jurisdiction when it filed its original answer to the trustee’s original complaint. Rule 915(a) of the Rules of Bankruptcy Procedure3 provides:
(a) Waiver of Objection to Jurisdiction. Except as provided in Rule 112 and subject to Rule 928, a party waives objection to jurisdiction of an adversary proceeding or a contested matter and thereby consents to such jurisdiction if he does not make objection by a timely motion or answer, whichever is first served.
See Rules of Bankruptcy Procedure, Rule 915(a), 11 U.S.C.4
Bowersox first filed an answer to the trustee’s complaint to compel turnover. That answer, which was filed before Bower-sox’s present motion to dismiss for lack of jurisdiction, contained no objection to our jurisdiction. Instead, Bowersox asked, in its answer, that we determine that the trustee was not entitled to the possession of the dies or, alternatively, that we provide adequate protection of its interest in said dies. Consequently, since Bowersox failed to object properly to our jurisdiction at its first opportunity, — namely, when it filed its *950answer to the trustee’s original complaint, —we conclude that it thereby consented to our jurisdiction over the instant controversy-
Accordingly, we will deny Bowersox’s motion to dismiss the trustee’s motion to file an amended complaint.
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. Although the Bankruptcy Act has been superseded by the Bankruptcy Code as of October 1, 1979, the provisions of the Act still govern petitions filed before that date. The Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, § 403, 92 Stat. 2683 (1978).
. Rule 915(a) clearly applies where the trustee has instituted a proceeding to recover property from an adverse claimant. See Collier on Bankruptcy ¶ 23.08[4] at 546 (14th ed. 1976).
. “The premise of subdivision (a) is that a party to any controversy being litigated in the bankruptcy court must object to the court’s jurisdiction at the first opportunity in order to avoid being deemed to have consented thereto.”
See Advisory Committee’s Note, Rules of Bankruptcy Procedure, Rule 915(a), 11 U.S.C. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489385/ | ORDER
WALTER J. KRASNIEWSKI, Bankruptcy Judge.
This matter is before the Court on the motion of Debtors for Court provided interpreting services at their Section 341 Meeting of Creditors scheduled for September 15, 1982 and at their Section 524(d) Discharge Hearing scheduled for December 21, 1982. The motion is not well taken and is denied.
The motion states that the Debtors are both hearing impaired and cannot communicate effectively without the assistance of a competent interpreter for the hearing and speech impaired who can communicate with the Debtors using sign language. In addition, it is asserted that the failure to appoint a competent interpreter for the above proceedings will result in a denial of the Debtors’ rights to receive fair, equitable and impartial access to this Court, that it would deny them due process, and that it would discriminate against them solely because of their speech and hearing impairment.
In United States v. Kras, 409 U.S. 434, 446, 93 S.Ct. 631, 638, 34 L.Ed.2d 626, 636 the Supreme Court of the United States held that there is no constitutional right to obtain a discharge of one’s debts in bankruptcy. The Court upheld the statutory requirement of Section 14(b)(2) of the *970Bankruptcy Act, 11 U.S.C. Section 32(b)(2), that filing fees be paid as a condition precedent to obtaining a discharge seeing “no fundamental interest that is gained or lost depending on the availability of a discharge in bankruptcy.” 409 U.S. at 445, 98 S.Ct. at 638, 34 L.Ed.2d at 636. The Court further found that the filing fee requirement did not deny the debtor equal protection of the laws and that there was a rational basis for the filing fee requirement.
There being no constitutional right to obtain a discharge, the Court can find no constitutional infirmity in denying Debtors’ request for court provided interpreting services on either due process or equal protection grounds. Section 341 of the Bankruptcy Code provides that there shall be a meeting of creditors within a reasonable time after the entry of an order for relief. Section 343 provides that the debtor shall appear and submit to examination under oath at the Section 341 meeting. The Debtors must meet their obligations under the Code, including all expenses incident thereto, or risk dismissal of their case and/or denial of a discharge. The requirement that Debtors provide their own interpreter, in the Court’s opinion, is an incidental expense like filing fees, transportation costs, etc. that the Debtors must pay in meeting the obligations under the Code and in no way discriminates against them due to their hearing impairment.
The Court also finds no entitlement to court provided interpreting services under the provisions of the Court Interpreters Act, P.L. 95-539, codified in 28 U.S.C. Section 1827 (1978). Under 28 U.S.C. Section 1827(d) the Court shall utilize the services of an interpreter “in any criminal or civil action initiated by the United States” when the Court determines that a party or witness suffers from a hearing impairment. The present bankruptcy case was “initiated” by the Debtors filing of a petition not by the United States and therefore there is no entitlement to court provided interpreting services in the present proceedings.
For the foregoing reasons, it is hereby,
ORDERED that Debtors’ motion to appoint an interpreter for the hearing and speech impaired at their Meeting of Creditors on September 15, 1982 and at their December 21, 1982 Discharge Hearing be, and hereby is, denied. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489386/ | OPINION
WILLIAM A. KING, Jr., Bankruptcy Judge.
This case reaches the Court on a complaint for relief from the automatic stay. The plaintiff, Westinghouse, is a creditor of the Chapter 11 debtor in possession secured in four (4) pieces of construction equipment. Westinghouse is seeking relief from the stay to foreclose on this collateral. The Court will grant the request for relief.1
Urban Industries is an excavation contractor which filed a petition for relief under Chapter 11 of the Bankruptcy Code in January of 1982. Westinghouse holds a valid, perfected security interest in four (4) pieces of the debtor’s equipment. The outstanding obligation of the debtor to the plaintiff is in excess of $36,000, with interest accruing on a daily basis. No payments have been made on this loan since August of 1981.
The collateral consists of one 1970 Koehr-ing 505 back hoe, one 1958 Caterpillar bulldozer, and two 1965 Euclid pan scrapers. The sole issue before the Court is whether relief from the stay imposed by § 362(a) of the Bankruptcy Code should be granted, under § 362(d)(2), in order to allow this secured creditor to pursue its remedies against the collateral as allowed by state law. Under § 362(d)(2) of the Code, the Court may grant relief from the stay if the debtor does not retain any equity in the property and the property is not necessary for an effective reorganization.
In this regard, the Court must establish the fair market value of the property in order that a determination of the existence and amount of the debtor’s equity in the collateral may be made. The plaintiff introduced the testimony of a professional appraiser who had recently examined the machines in question.
According to the appraiser, the Koehring back hoe had a fair market value of only $5,000. He based this figure on the fact that the machine was tracked and suffered from a severe oil leak on one of the hydraulic shafts. On the other hand, the president of the debtor corporation valued this machine at close to twenty-thousand dollars. In light of the condition of this back hoe, the Court deems $20,000 to be an entirely too optimistic a valuation. Five thousand dollars, however, is too low. The Court finds the fair market value of this back hoe to be $8,000.
The plaintiff’s expert valued the 1958 Caterpillar bulldozer at $2,500. The Court must agree with this figure. The bulldozer has a cable-operated blade, as opposed to the modern hydraulic-shaft models, and is otherwise hopelessly antiquated.
*977Finally, the plaintiff valued the two Euclid pan scrapers at a total of $7,000. One of the scrapers was completely inoperable, as a result of being minus both the front arid rear engines. The appraiser assigned a value of $2,000. to this piece. In view of the immobile state of the machine, the Court wonders whether this low value may be excessive. Nevertheless, the Court finds the value of this pan scraper to be $2,000. The remaining scraper was apparently in running order and was valued at $5,000. by the appraiser. The Court finds the value assigned this second scraper to be too low. Although this scraper is not in mint condition, it is meant for excavation not exhibition. The Court, therefore, finds the value of this scraper to be $7,500.
The debtor’s president testified and made strenuous efforts to discredit the appraiser. In regard to the scrapers, he fixed their value at over $15,000. each. He also asserted that these scrapers were not Euclid scrapers at all. Apparently, the president was attempting to cast doubt on the testimony of the plaintiffs witness by showing his inability to properly identify the equipment. If so, the tactic backfired woefully. Schedule A-2 and the security agreement, both signed by this individual, clearly identified the collateral as Euclid scrapers and carried the identical serial numbers.
The total fair market value of the collateral is only $20,000. The total balance of the debt is in excess of $36,000. The plaintiff, therefore, has carried his burden of proving a lack of equity in the collateral.
The burden of proving that the property is necessary for an effective reorganization is on the debtor. 11 U.S.C. § 362(g)(2). In this regard, it is clear to the Court that this equipment will not be necessary for an effective reorganization. The back hoe has not been used by the debtor for nearly a year and, furthermore, was seized by a third party prior to the filing of the petition eight (8) months ago. Urban Industries also owns four (4) additional back hoes. In addition to the 1958 Caterpillar, the company owns five (5) other bulldozers. This old bulldozer is superfluous. Finally, the president testified that the company had not worked since January of 1982 and that Urban Industries had no contracts at all for excavation projects in the future. The Court, therefore, finds that this idle equipment is not necessary for effective reorganization.
An Order will be entered granting relief from the stay.
. This Opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489387/ | ORDER ON OBJECTION TO PROOF OF CLAIM FILED BY IRS
ALEXANDER L. PASKAY, Chief Judge.
THIS IS an Act case and the matters under consideration are two objections to Proof of Claims filed by the Internal Revenue Service (IRS). The objection is filed by David Gorman, the Trustee of the estate of Ruth H. Ward, the Debtor involved in a Chapter VII litigation case. Pursuant to a request of the Trustee, this Court ordered that Part VII of the Bankruptcy Rules shall govern the proceeding.
The facts relevant to the issues raised by the objection and which control this contested matter, as established at the final evi-dentiary hearing,; can be summarized as follows:
On September 22, 1978, the estate of Ha-zell Orrel, filed an involuntary case against Ruth H. Ward. After an unsuccessful attempt to convert the proceeding to a Chapter XII case, Mrs. Ward was adjudicated bankrupt. In due course, Mr. Gorman was appointed as Trustee. On September 10, 1980, the IRS filed a claim for income taxes claiming that Mrs. Ward is indebted to the Government in the approximate amount of $235,000. This claim is based on her alleged liability for income taxes for calendar years 1976 and 1977. This alleged tax liability arose as a result of an investigation initially conducted by the Florida Bar and later on by the State’s Attorney. The investigation was centered around both Mr. and Mrs. Ward. At the time relevant, Mr. Ward was a practicing attorney in St. Petersburg, Florida, and was also involved with several corporations in which both Mr. and Mrs. Ward were involved as principals. The investigation culminated in the indictment and conviction of Mr. Ward for embezzlement of trust funds of clients represented by him in probate matters. Mrs. Ward was also indicted. She pled nolo contendere to larceny, forgery and uttering false checks and was placed on probation.
As the result of the criminal proceeding, the IRS commenced an extensive audit of both Mr. and Mrs. Ward. After examining various bank accounts, books and then meeting with Mr. Ward during his incarceration, the IRS determined the amount of the tax deficiency owed by the Wards. The allocation of the assessment against Mr. and Mrs. Ward was done by first treating the embezzled funds as taxable income and then by treating Mr. and Mrs. Ward as equal participants in the embezzlement scheme. In addition, the IRS traced the transfer of monies from Mr. Ward’s trust account to other personal and corporate accounts of the Wards. The source of all the funds was never established; neither did the IRS trace transfers from all of the accounts or determine whether some of the transfers involved fees legitimately earned by Mr. Ward. It is clear that the co-mingling of personal funds with clients somewhat obscured the precise determination of the amount of the deficiency. However, based on the assumption of equal participation, the IRS assessed a deficiency against Mrs. Ward for one-half of the amount of the embezzled funds for a total of $235,-150.56.
On December 15, 1978, Mrs. Ward signed IRS Form 4549 entitled, “Consent to *47Assessment and Collection.” That form is essentially a waiver by Mrs. Ward of her right to press an appeal of the assessment and a consent to the immediate collection of the amount due. Because this jeopardy assessment was executed in a post-petition posture, the Trustee contends pursuant to § 70c of the Act that it cannot operate as a waiver of the Trustee’s defenses to the claim of the IRS.
The question of a binding force of a waiver on the Trustee is basically treated by § 70c the Bankruptcy Act which provides as follows:
“The trustee may have the benefit of all defenses available to the bankrupt as against third persons, including statutes of limitation, statutes of fraud, usury, and other personal defenses; and a waiver of any such defense by the bankrupt after bankruptcy shall not bind the trustee.” (emphasis supplied).
In describing the import of this Section, Collier states:
“A defense is something that may prevent an unjust claim against either the estate or the bankrupt, and if it can be raised by either, a possible recovery is prevented where it might otherwise prevail. Thus, in order to insure that the estate shall not be wrongly deprived of a meritorious defense, the first section of § 70c also specified that any waiver of a defense by the bankrupt after bankruptcy shall not deprive the trustee thereof ...” (emphasis supplied). 4 Collier on Bankruptcy, ¶70.46[1] (14th ed. 1978).
In light of the plain language of § 70c, it is clear that the bankrupt’s post-petition consent to the collection and assessment of taxes is not binding upon the Trustee.
This leaves for consideration the question: to what extent, if any, is the bankrupt indebted to the Government. There is no doubt that embezzled funds must be included in gross income for the year or years in which the funds are misappropriated. James v. U. S., 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); I.R.C. § 61(a). It is also true that a properly filed proof of claim constitutes prima facie evidence of the validity and amount of the claim. Bankruptcy Act § 57a; Bankruptcy Rule 301(b); Data Industries Corp. of Texas v. IRS, 489 F.2d 1038 (5th Cir. 1974). The evidence adduced at trial also supports the claim of the IRS. Mrs. Ward was her husband’s bookkeeper and she made practically all the deposits in the various bank accounts maintained by her husband. Her close and active involvement in the business of her husband belies the contentions that she merely followed instructions and was oblivious of the fact that the monies deposited in the accounts and spent for various purchases, 'including purchases of real estate, did not come from her husband’s earnings generated through his legitimate law practice.
The problem in this case is that the record is unclear and it is improper to establish as to the amount of monies involved. It is impossible to trace funds obtained through embezzlement and the funds obtained otherwise from legitimate sources. Most importantly, it is impossible to determine from this record the extent Mrs. Ward benefited from the embezzled funds.
However, considering the amount of monies presently available in the estate for distribution to creditors, any further inquiry into this issue is unwarranted. Even assuming that the amount of the claim of the IRS is correct, there are insufficient funds in the estate to satisfy the claim of the IRS and, therefore, any attempt to determine the exact amount owing would be, largely, an academic exercise.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Bankrupt’s and Trustee’s objections to the proof of claim filed by the Internal Revenue Service be, and the same hereby is, overruled. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490296/ | ORDER
ROBERT CLIVE JONES, Chief Judge.
Debtors demand a jury trial on their complaint seeking recision and damages for defendants’ alleged tortious conduct in addition to violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. Based upon the arguments of counsel and the Point and Authorities submitted in support of debtors’ position, and also noting defendants’ failure to submit opposing Points and Authorities, the Court concludes that the debtors have a right to a trial by jury. Furthermore, bankruptcy courts have the power and authority to conduct jury trials. See Walsh v. Long Beach Honda (In re Gaildeen Industries, Inc.), 59 B.R. 402, 405-407 (N.D.Cal.1986), and cases cited. Accordingly,
IT IS HEREBY ORDERED that this adversary proceeding shall be set for a trial by jury. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490297/ | OPINION
EMIL F. GOLDHABER, Chief Judge:
The question for resolution, where the plaintiff has filed suit to set aside the debt- or’s assignment of its right to purchase realty under an installment sale contract, is whether we should grant the motion for partial summary judgment filed by the defendant/assignee in light of the fact that the prepetition assignment was not recorded although the trustee abandoned its interest in the property. On the basis of the reasons outlined below, we conclude that the motion for summary judgment should be denied.
*606The facts of this controversy are as follows: 1 The debtor agreed to purchase a parcel of realty in Philadelphia, Pennsylvania, from PIDC Financing Corporation (“PIDC”) under an installment sale contract signed in 1978. Four years later, in a transaction not recorded with the county recorder of deeds, the debtor assigned its interest in the contract to DEW Realty and Leasing Co., Inc. (“DEW”). Thereafter the debtor filed a petition for reorganization under chapter 11 of the Bankruptcy Code (“the Code”). The case was subsequently converted to chapter 7 and a trustee was appointed. Several months later the trustee moved, with the following language, for abandonment of the estate’s interest in the installment contract:
Prior to the filing of the petition in this case, [the debtor] conveyed its equitable interest in real property ... to DEW_
[DEW] now wishes to convey said property free of any interest that the estate may have in the property.
The trustee is of the opinion that the estate’s interest in the property is negligible and of no value to the creditors.
WHEREFORE the trustee prays for the entry of an order in the form attached abandoning the estate’s interest in the real property....
No parties objected to the motion and we signed a proposed order2 submitted to us, which contained the following operative language:
[It is]
ORDERED that the estate’s interest in real property located at 4865 Sten-ton Avenue, Philadelphia, PA is hereby abandoned, and no longer property of the estate or subject to the Automatic Stay, it is further
ORDERED [that] this order of abandonment is without prejudice to the rights or claims of the creditors’ committee or the trustee regarding the pre-petition disposition of said real property.
Last year the trustee filed a voluminous complaint against DEW and others seeking, under count XX of the complaint, an avoidance of the debtor’s assignment of the contract to DEW under the so-called strong arm clause, 11 U.S.C. § 544(a)3 of the code. *607DEW moved for summary judgment on count XX.
While other questions of law are raised in the parties’ briefs, the predominant points are whether DEW needed to record the assignment of the installment sale contract to protect it from attack under § 544(a) and whether the trustee’s purported abandonment of the estate’s interest in the property precludes relief favorable to the trustee.
It is clear to us that if our order of abandonment contained only the first operative clause but not the second, the trustee could not prevail on count XX. The clarity of this view is vitiated by the presence of the second clause in the order. It is possible that by including that language in the proposed order, which we adopted, the trustee wanted “to have his cake and eat it, too.” That is our provisional view, and it weighs heavily against the trustee. Nonetheless, other possible reasons for inclusion of that second clause are plausible, and are not precluded by the current state of the record. As such, summary judgment is inappropriate at this juncture. We reserve for later decision any other questions of law which may flow from our final determination of the meaning of the second clause.
We will accordingly enter an order denying DEW’s motion for summary judgment on count XX of the complaint.
. Under Fed.R.Civ.P. 56, which is applicable through Bankruptcy Rule 7056, summary judgment can be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The U.S. Court of Appeals for the Third Circuit has characterized summary judgment as “a drastic remedy,” and has stated "that courts are to resolve any doubts as to the existence of genuine issues of fact against the moving parties.” Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir.1981). “Inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. den., 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Nonetheless, in opposing a motion for summary judgment “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(c).
. The origin of the proposed order is unclear to us. The proposed order submitted by the trustee with his motion is different than the one we ultimately adopted.
. § 544. Trustee as lien creditor and as successor to certain creditors and purchasers
(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by—
(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists:
(2) a creditor that extends credit to the debtor at the time of the commencement of the case, and obtains, at such time and with respect to such credit, an execution against the debtor that is returned unsatisfied at such time, whether or not such a creditor exists; or
(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to *607be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists. 11 U.S.C. § 544(a). We have reproduced § 544(a) as it stands after clarifying changes made by the Bankruptcy Amendments and Federal Judgeship Act of 1984. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482945/ | RENDERED: NOVEMBER 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0103-MR
BILLY MELTON APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
v. HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 04-CR-00089
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: On December 21, 2005, a jury convicted the appellant, Billy
Melton, of murder, two counts of rape in the first degree, complicity to commit
tampering with physical evidence, and intimidating a witness. He was sentenced
to life imprisonment. See Melton v. Commonwealth, No. 2006-SC-000080-MR,
2007 WL 4139640, at *1 (Ky. Nov. 21, 2007). This is an appeal from an order of
the Monroe Circuit Court denying Billy Melton’s July 17, 2019 motions to vacate
his 2005 conviction and sentence pursuant to CR1 60.02, and for the presiding
judge to recuse. Upon review, we affirm.
I. CR 60.02 Motion
In sum, Melton’s CR 60.02 motion at issue in this appeal was properly
denied because it presented arguments Melton either could have made in prior
proceedings, did make in prior proceedings, or that he was otherwise procedurally
barred from making due to the time limitations set forth in the civil rule. Before
discussing the substance of those arguments, however, it is necessary to review the
history of this case, starting with the relevant facts of Melton’s underlying
conviction, which the Kentucky Supreme Court summarized when it resolved
Melton’s direct appeal:
Melton was indicted on various offenses arising
from the death of Jodi Pace. On September 17, 2004,
Pace, a fourteen-year-old, had gone to spend the night
with Kassandra Hudson, her eighteen-year-old friend.
Together the girls contacted Melton to see if he could
obtain methamphetamine for them. After several calls,
Melton agreed to pick up the girls.
Amanda Coe, Melton’s cousin, lived with him at
the time of the incident. Melton, Coe, and Coe’s baby
went to pick up Pace and Hudson. Upon arriving at
Melton’s home in Tompkinsville, Pace and Hudson were
informed that Melton had not yet obtained the
methamphetamine for them. While they waited, Coe
1
Kentucky Rule of Civil Procedure.
-2-
witnessed Melton giving the two girls a handful of pills
and marijuana. Coe testified that Melton gave them
[Lorcet], Percocet, Oxycontin, Xanax, and an
unidentified pill. At some point Melton agreed to
provide Pace and Hudson with one gram of
methamphetamine each in return for sex. Shortly after
that, Melton had sexual relations with the girls.
Pace and Hudson began to question Melton about
the methamphetamine, so he gave them more pills.
According to the testimony of Scottie Key and Clinton
Rowe, Melton then had sexual relations with both girls
again, although they were then passed out. Key and
Rowe, who had shared a cell with Melton after his arrest,
came forward and testified concerning various statements
he had made in their presence in which he had bragged
about the events that night. The testimony of Key and
Rowe confirmed the sex-for-methamphetamine theory.
In addition, both testified that on various occasions
Melton had specifically said he had given the drug
Seroquel to Pace.
At some point in the early hours of September
18th, Coe informed Melton that Pace was not well and
that they should get her help. Melton refused and
threatened to harm Coe if she attempted to use the phone.
Later that morning, Melton was informed that Pace was
unresponsive. Melton, aware that Pace had overdosed,
delayed calling for help in order to give Coe time to
collect the pill bottles and dispose of them in the woods
adjoining his property. Further, Melton threatened to
harm Coe if she told authorities what had happened.
Once the pills were removed and Hudson was hidden,
Melton called 911 for an ambulance.
An ambulance was dispatched to Melton’s
residence at 9:21 a.m. During his conversation with the
911-operator, Melton claimed he did not know who the
girl was. He stated that she had arrived with three other
girls the evening before. Further, Melton stated that the
-3-
girls were visiting with Coe when he went to sleep on the
couch, but that Pace had not responded when they tried to
wake her that morning. Pace was taken to the hospital
and pronounced dead on arrival by the Monroe County
Deputy Coroner.
Once the ambulance left with Pace, Melton and
Coe took Hudson back and dropped her off near her
home. As a result of the night’s events, Hudson was also
taken to the hospital. It was there that officers found her
later on September 18th.
Officers from the Kentucky State Police (KSP)
became involved shortly after Pace arrived at the
hospital. KSP Detectives interviewed Melton on the
afternoon of September 18, 2004. Melton provided a
story similar to that given to the 911-operator. With
Melton’s written consent, the officers searched Melton’s
house, his car, and the surrounding property. As a result
of that search, the officers recovered various pill bottles,
rolling papers, and a can modified for use with
methamphetamine.
Melton was subsequently interviewed at the
Monroe County Sheriff’s office. KSP Detective Atwood,
having obtained a conflicting story from Coe, gave
Melton his Miranda warnings and began a taped
interview. Once again, Melton told the detective that
four girls had arrived the night before to visit Coe.
Melton repeated his assertion that no alcohol or drugs
were used while he was present and that Pace had been
fine when he went to sleep. When questioned, Melton
did admit to having sexual relations with two of the girls.
Melton told Detective Atwood that it had been a “group
deal” with the two girls. After completing his statement,
Melton admitted that marijuana had been used. He stated
he had not mentioned it because he did not believe it was
a drug. After further reflection, Melton told Detective
Atwood that if he gave him the tape of the first interview,
he would give him another statement. Detective Atwood
-4-
informed Melton that he could not do that, but that he
would listen to anything Melton wanted to say. Melton
made no further statements. Melton was arrested
following this interview.
An autopsy on Pace revealed that the cause of
death was an overdose of Seroquel. Lab reports also
revealed the presence of Xanax, oxycodone, and
hydrocodone. Given the circumstances surrounding
Pace’s death, officers obtained a rape collection kit on
both Pace and Hudson. After obtaining a warrant, a rape
suspect collection kit was obtained from Melton. Lab
tests showed that samples of DNA taken from both Pace
and Hudson matched Melton’s DNA. In addition,
Hudson’s sample contained DNA from an unknown
source.
Melton, 2007 WL 4139640, at *1-2. After rejecting Melton’s only two contentions
on direct appeal – that the trial court had erred by denying his motions to continue
the trial and for a change of venue – the Court affirmed Melton’s conviction and
sentence.
Thereafter, Melton initiated a variety of post-judgment proceedings,
some of which overlapped during the years that followed. On October 19, 2009,
pursuant to RCr2 11.42, Melton filed a motion to vacate, claiming his trial counsel
had been ineffective because, among other reasons, his trial counsel had reason to
question his competency prior to his trial but failed to request a hearing; and
because his trial counsel had failed to consult with a pathologist to discredit the
2
Kentucky Rule of Criminal Procedure.
-5-
testimony of Dr. Tracey Corey, the Commonwealth’s medical examiner, who had
testified that Pace died as a result of an overdose of Seroquel. Melton v.
Commonwealth, No. 2009-CA-2271-MR, 2011 WL 2078590, *3-5 (Ky. App. May
27, 2011). The trial judge summarily denied Melton’s motion; this Court affirmed;
and the Kentucky Supreme Court denied discretionary review.
On January 3, 2014, Melton filed a petition for writ of mandamus
against Judge Eddie Lovelace, who had presided over his trial. We dismissed his
petition on May 14, 2014, for his failure to pay the requisite $5.00 filing fee.
Melton v. Lovelace, No. 2014-CA-000047-OA.
On October 2, 2013, Melton filed a petition for writ of habeas corpus
in the Monroe Circuit Court. His petition was denied on August 18, 2014. And, in
a March 25, 2015 order, this Court affirmed, explaining that the argument he had
advanced in his petition – that his conviction was void ab initio because he was
allegedly not evaluated concerning his competency to stand trial – had already
been presented to the trial court and this Court in his RCr 11.42 proceedings; and
that because Kentucky law had already provided Melton a more appropriate forum
for his grievance, habeas corpus relief was not available to him. Melton v.
Commonwealth, No. 2014-CA-001466-MR. On February 10, 2016, the Kentucky
Supreme Court denied discretionary review. Melton v. Commonwealth, No. 2015-
SC-000172-D.
-6-
On August 10, 2020, Melton filed another petition for writ of
mandamus, this time against Judge David L. Williams, who presided over his CR
60.02 motion. This Court denied the petition on November 25, 2020. Melton v.
Williams, No. 2020-CA-0502-OA. Melton did not seek further review.
And with that in mind, we step back to July 17, 2019, when Melton
filed the CR 60.02 motion at issue in this matter before the Monroe Circuit Court.
There, he made three3 contentions. First, he argued the trial court had erred in
failing to raise and address the issue of his competency sua sponte because, he
believed, it had been on notice prior to his trial of facts sufficient to place his
competence to stand trial in question. He asserted the “trial court was fully aware
of his prior existing and readily debilitating, and often incapacitating over-
medicating, in conjunction with an IQ score of 58, all duly influenced by the
lifetime of mental problems which plague him and interfere with his ability to
meaningfully interact with others.” Thus, as he had done in his October 19, 2009
RCr 11.42 motion, and also in his October 2, 2013 writ petition, Melton contended
a new trial was warranted because he had not been provided a pretrial competency
hearing.
3
Melton listed four “issues” in his CR 60.02 motion, but his fourth essentially repeated his
second; both asserted, in somewhat differing language, that the circuit court had erred by failing
to provide him a competency hearing prior to his trial.
-7-
For his second and third arguments, recall that in the RCr 11.42
proceeding he initiated in 2009, Melton had faulted his trial counsel for failing to
consult with a pathologist to discredit the testimony of Dr. Tracey Corey, the
Commonwealth’s medical examiner who had testified that Pace died as a result of
an overdose of Seroquel. Resolving that issue in his prior appeal, this Court had
explained, “Melton does not offer any evidence that he knew of a specific expert
who was willing to testify in a manner helpful to the defense or of what such
testimony would consist.” Melton, 2011 WL 2078590, at *5.
However, in 2019, Melton found an individual he deemed an expert,
who was willing to testify in a manner helpful to his defense, and who had indeed
supplied him with an extensive affidavit detailing what his expert testimony would
be. The “expert” in question was Douglas H. Rank, a fellow inmate who had been
a licensed physician and psychiatrist. Rank stated in his affidavit that his opinion
was based upon his review of the following documents:
1. FINAL DIAGNOSIS on PACE, JODI ME-04-832
(“J.P.”) Completed by Tracey Corey, MD, on 11/08/2004
(Exhibit #1)
2. POST MORTEM EXAMINATION OF THE BODY
OF PACE, JODI ME-04-832 Completed by Tracey
Corey, MD, on 09/19/2004 (Exhibit #2)
3. TRANSCRIPTION from the trial of Billy Melton,
10/28/2005, starting at 3:09:15 p.m. These are the
remarks by the Commonwealth Attorney, Charlton C.
Hundley, to Billy Melton’s jury. (Exhibit #3)
-8-
4. Medication Follow-Up Sheet, Lifeskills, Inc. for Billy
Melton, 8-12-02 through 10-27-04.
5. “Fatal Overdoses Associated with Quetiapine,” by
Loralie J. Langman, et. al. Journal of Analytical
Toxicology, Vol. 28, September 2004.
6. Physician’s Desk Reference (“PDR”)
As to the substance of his opinion, it was three-fold. Citing item “4”
of the documents he reviewed – which listed the various medications Melton had
been prescribed prior to Melton’s trial – he agreed with Melton’s contention that
Melton had been over-medicated prior to trial, and that his competency to stand
trial therefore should have been in question. Next, he opined that his experience,
the documentation he had reviewed, as well as the medical literature available prior
to Melton’s trial, all indicated that Pace could not have died from ingesting
Seroquel; that oxycodone or hydrocodone could not have contributed to Pace’s
death; and that Melton could not have had sexual intercourse with Pace while she
was physically helpless. Lastly, he concluded Dr. Corey was unreasonable, and
perhaps negligent, in concluding otherwise.
From Rank’s affidavit, Melton formulated his second and third CR
60.02 arguments. Regarding his second argument, Melton contended Rank’s
opinion constituted “new evidence” of which he had only recently become aware;
and that because it completely exonerated him, Rank’s opinion entitled him to a
-9-
new trial “under the umbrella of CR 60.02(e)[4] and/or (f).” Regarding his third
argument, Melton contended he was entitled to a new trial because Rank’s affidavit
demonstrated Hudson and Coe – two of the witnesses examined at his trial – must
have committed perjury when they testified Melton had provided Pace Oxycontin
and Lorcet prior to her death; and that Dr. Corey must have presented false
evidence at trial.
The circuit court denied Melton’s motion. Over the course of its April
24, 2020 order to that effect, as well as an August 28, 2020 order overruling
Melton’s subsequent petition for reconsideration, the circuit court explained its
reasoning. First, it noted Melton had previously asserted – in his RCr 11.42
motion – that his ability to cognitively function was a basis for setting aside his
conviction; and that the courts had already addressed that issue. Second, it found
that the passage of over fifteen years between Melton’s final sentence and CR
60.02 motion was not a reasonable amount of time and was far too long to warrant
granting Melton’s requested relief. Third, it explained:
This Court cannot ascertain any evidence of a conclusive
or clear and convincing character that evinces fraud in
the proceeding. Melton’s basis for his motion relies
heavily on an affidavit submitted by Douglas H. Rank.
4
Below, Melton cited nothing indicating, per CR 60.02(e), that his judgment of conviction “is
void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have
prospective application.” Nor does he cite this specific provision in his appellate brief; nor, for
that matter, does the record support such a contention.
-10-
Mr. Rank. A former physician, is currently serving a
fifteen (15)-year sentence for assaulting a patient with a
sword.[FN]
[FN] See Commonwealth v. Douglas Rank,
Kenton Circuit Court 10-CR-00186
Mr. Rank surrendered his license to practice medicine in
February of 2011. Based upon these facts, this Court
cannot determine that Mr. Rank’s allegations are credible
enough to support the granting of a CR 60.02 trial.
Melton now appeals, reasserting his CR 60.02 arguments. Regarding
his first argument, no error occurred. It is well-established that the remedy
provided under CR 60.02 is extraordinary and only available to raise issues that
could not have been raised in other proceedings. McQueen v. Commonwealth, 948
S.W.2d 415 (Ky. 1997). CR 60.02 is unavailable “to raise claims which could and
should have been raised in prior proceedings, but, rather, ‘is for relief that is not
available by direct appeal and not available under RCr 11.42.’” Sanders v.
Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011) (quoting Gross v.
Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983)). Here, as the circuit court
noted, Melton argued in his RCr 11.42 motion that his purported inability to
cognitively function served as a basis for relieving him of his judgment. Further,
the circuit court correctly noted that issue was addressed and resolved in those
prior proceedings. If Melton’s lack of competence was as clear and obvious prior
to his trial as Melton continues to represent, the issue also could have, and should
-11-
have, been raised in his direct appeal pursuant to RCr 10.26 for palpable error
review.
Regarding his second and third arguments, both are untimely. To
begin, the operative time limits specified in CR 60.02 commence after the entry of
judgment, not the finality of any appellate or post-judgment proceedings. Meredith
v. Commonwealth, 312 S.W.2d 460, 462 (Ky. 1958). Thus, to the extent Melton
asserts “perjury or falsified evidence” as bases for a new trial, his fifteen-year
delay precluded him from making such arguments. See CR 60.02(c) (providing
such arguments must be made no later than one year after entry of judgment).
Moreover, while Rank’s “expert” opinion might be “new” to Melton,
it is not “new evidence” within the meaning of CR 60.02(b), let alone new
evidence of such “an extraordinary nature,” per CR 60.02(f), that it could not have
been discovered within one year of his conviction.5 As our Supreme Court
explained in Foley v. Commonwealth, 425 S.W.3d 880, 887 (Ky. 2014), relative to
both CR 60.02(b) and (f),
“Newly discovered evidence is evidence that could not
have been obtained at the time of trial through the
exercise of reasonable diligence.” Commonwealth v.
Harris, 250 S.W.3d 637, 642 (Ky. 2008). See also
Sanders v. Commonwealth, 339 S.W.3d 427, 437 (Ky.
2011) (holding that CR 60.02 allows appeals based upon
claims of error that “were unknown and could not have
5
CR 60.02(b) requires any motion based upon “newly discovered evidence” to be made no later
than one year after entry of judgment.
-12-
been known to the moving party by exercise of
reasonable diligence and in time to have been otherwise
presented to the court”). Certainly, testimony in the form
of an expert’s opinion is “evidence” in the literal sense.
KRE 702. But an expert’s opinion cannot fit the
definition of “newly discovered evidence” unless it is
based upon underlying facts that were not previously
known and could not with reasonable diligence have
been discovered. An opinion consisting simply of a
reexamination and reinterpretation of previously known
facts cannot be regarded as “newly discovered evidence.”
There would be no finality to a verdict if the facts upon
which it was based were perpetually subject to whatever
reanalysis might be conceived in the mind of a qualified
expert witness.
Here, Rank’s “expert opinion” was based entirely upon his
reexamination and reinterpretation of facts that were either known – or in Rank’s
view, should have been known – prior to Melton’s trial. Indeed, even the medical
literature Rank cited in his review – including the edition of the “Physician’s Desk
Reference” he relied upon – predated Melton’s trial. Therefore, even if Rank’s
opinion could be lent credence as “evidence,” it did not qualify as “new evidence”
capable of invoking CR 60.02.
Our Supreme Court has warned that because of the desirability of
according finality to judgments, CR 60.02(f) must be invoked only with extreme
caution, and only under most unusual circumstances. Cawood v. Cawood, 329
S.W.2d 569 (Ky. 1959). That is most definitely not the case in this matter: Melton
merely made arguments that have, could have, or should have been made prior to
-13-
his trial, reinforcing that nothing has changed, and no extraordinary circumstance
has come into being, since his 2005 conviction. We therefore affirm the circuit
court’s decision to deny his motion.
II. Recusal Motion
In conjunction with his CR 60.02 motion, Melton also sought to have
the presiding judge, David L. Williams, recuse. He argued Judge Williams was
biased against him and therefore incapable of fairly resolving his CR 60.02 motion
because: (1) he was Judge Williams’ blood relative; and (2) he owed Judge
Williams an outstanding sum of money for legal services then-attorney Williams
rendered for him in 1982 in connection with a prior charge of theft. On appeal, he
argues Judge Williams erroneously denied his motion.
However, we reemphasize that Melton’s CR 60.02 arguments were
procedurally barred regardless. That aside, Melton’s contentions that he is related
to Judge Williams and owed him money were: (1) denied by Judge Williams in his
dispositive order; and (2) supported only by Melton’s unsworn allegations. We
will not accept conclusory allegations as proof in this regard. “The burden of proof
required for recusal of a trial judge is an onerous one. There must be a showing of
facts of a character calculated seriously to impair the judge’s impartiality and sway
his judgment.” Alred v. Commonwealth, Jud. Conduct Comm’n, 395 S.W.3d 417,
429 (Ky. 2012) (internal quotation marks and footnotes omitted). Consequently,
-14-
we will not assume for purposes of this appeal that Judge Williams and Melton are
related; that Melton owed him money; or that any bias existed.
III. Conclusion
The Monroe Circuit Court committed no error. We therefore
AFFIRM.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Billy Melton, pro se Daniel Cameron
West Liberty, Kentucky Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
-15- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482947/ | 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0660
DA 21-0660
_________________
TAI TAM, LLC,
Plantiff and Appellant,
v.
ORDER
MISSOULA COUNTY, acting by and through
its BOARD OF COUNTY COMMISSIONERS,
Defendant and Appellee.
_________________
This cause, which was previously classified for submission on briefs to a five-justice
panel, is hereby reclassified for submission to the Court sitting en banc.
The Clerk is directed to provide a copy hereof to all counsel of record and to the
Honorable John W. Larson, District Judge.
For the Court,
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 9 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482949/ | 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 22-0347
DA 22-0347
STATE OF MONTANA,
NOV 0 9 r22
Plaintiff and Appellee,
, , 'r --3court
r,ovvcn C 0d
„. Mor,,ana
v. ORDER
MATTHEW RYAN AILER,
Defendant and Appellant.
Pursuant to Appellant Matthew Ryan Ailer's motion for extension to of tirne to file
his opening brief and good cause appearing,
IT IS HEREBY ORDERED that Appellant has until December 9, 2022, to file his
opening brief.
DATED this day of November, 2022.
For the Court,
-
►
'
Chief Justice | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482950/ | 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 20-0221
DA 20-0221
_________________
STATE OF MONTANA,
Plaintiff and Appellee,
v. ORDER
GARY WAYNE TEMPLE, JR.,
Defendant and Appellant.
_________________
Pursuant to the Internal Operating Rules of this Court, this cause is classified for
submission on briefs to a five-justice panel of this Court.
The Clerk is directed to provide a copy hereof to all counsel of record and to the
Honorable Elizabeth Best, District Judge.
For the Court,
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 9 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482946/ | MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 55
Docket: Pis-21-378
Argued: September 8, 2022
Decided: November 10, 2022
Panel: MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.
STATE OF MAINE
v.
CHRISTOPHER HALLOWELL
MEAD, J.
[¶1] Christopher Hallowell appeals from a judgment of conviction for
attempted murder (Class A), 17-A M.R.S. §§ 152(1)(A), 201 (2018);1 aggravated
assault (Class B), 17-A M.R.S. § 208(1)(B) (2022); criminal threatening with a
dangerous weapon (Class C), 17-A M.R.S. § 209(1) (2022); 17-A M.R.S.
§ 1252(4) (2018);2 three counts of reckless conduct with a dangerous weapon
(Class C), 17-A M.R.S. § 211(1) (2018); 17-A M.R.S. § 1252(4); eluding an officer
(Class C), 29-A M.R.S. § 2414(3) (2022); and criminal mischief with a dangerous
1 Title 17-A M.R.S. § 201 has since been amended. See P.L. 2019, ch. 113, § B-9 (effective
Sept. 19, 2019); P.L. 2019, ch. 271, § 2 (effective Sept. 19. 2019); P.L. 2019, ch. 462, § 3 (effective
Sept. 19, 2019) (codified at 17-A M.R.S. § 201 (2022)).
2 Title 17-A M.R.S. § 1252(4) was repealed and replaced with a new section 1604 by P.L. 2019,
ch. 113, §§ A-1, A-2 (effective May 16, 2019) (codified at 17-A M.R.S. § 1604(5)(A) (2022)).
2
weapon (Class C), 17-A M.R.S. § 806(1)(A) (2022); 17-A M.R.S. § 1252(4),
entered by the trial court (Piscataquis County, Anderson, J.) following a nonjury
trial.
[¶2] Hallowell contends that the court failed to adequately consider the
evidence that he was suffering from a serious mental abnormality that “made it
impossible for him to form the requisite intent to kill,” and that because
evidence was presented at trial that he suffered from an abnormal condition of
the mind, there was insufficient evidence to prove intent beyond a reasonable
doubt. See 17-A M.R.S. § 38 (2018).3 Hallowell also contends that his
“long-standing mental health problems” and the “conflicting version of events”
he described to different evaluators constituted “compelling evidence” that the
court improperly ignored in its “cursory treatment” of his affirmative defense
of insanity. We affirm the judgment.
I. BACKGROUND
[¶3] “Viewed in the light most favorable to the State, the evidence
admitted at trial establishes the following facts.” State v. Graham, 2015 ME 35,
¶ 2, 113 A.3d 1102. Hallowell and the victim are distant relatives; Hallowell’s
great-grandmother is the victim’s husband’s grandmother. The victim and her
3Title 17-A M.R.S. § 38 has since been amended, though the amendment is not relevant in the
present case. See P.L. 2019, ch. 462, § 1 (effective Sept. 19, 2019) (codified at 17-A M.R.S. § 38 (2022)).
3
husband live in Shirley, Maine, and house their animals in a barn located on land
owned by Hallowell’s great-grandmother. On July 8, 2019, after spending
multiple days holed up in his bedroom, Hallowell decided to confront his
relatives about what he believed to be their mistreatment of his
great-grandmother.4 In the early hours of the morning, Hallowell packed
multiple weapons into a “go-bag” and walked approximately ten minutes to the
barn where his relatives kept their animals because he knew that they went to
the barn every day to care for the animals. He entered the barn and spent
multiple hours waiting for them to arrive. At one point while he was pacing
inside the barn, he fed the horses hay because they became restless. At
approximately 6:00 a.m., the victim arrived at the barn, entering through the
grain room. As she went to feed the first animal, Hallowell “jumped up” and
shot her in the hip with a handgun, knocking her to the ground. The victim had
been unaware that Hallowell was inside the barn, and Hallowell did not say
anything to the victim before shooting her.
4 There was no evidence admitted at trial specifying the nature of what Hallowell considered to
be the mistreatment of his great-grandmother. Hallowell referred to the alleged mistreatment as
“basic human rights that were not being respected,” potentially during the time that the
great-grandmother resided with the victim and her husband in their home. The court made explicit
findings regarding the intensity of Hallowell’s feelings about his great-grandmother’s alleged
mistreatment that were supported by evidence admitted at trial.
4
[¶4] After being shot, the victim turned toward the sound of the gunshot
and saw that Hallowell was holding a handgun and had a rifle strapped to his
chest. Hallowell raised the handgun, and the victim got up and ran to a sliding
door at the opposite end of the barn. After failing to open the door,5 the victim
ran the length of the barn, past Hallowell as he fired at her, and left the barn
through the grain room door she had entered through. Hallowell fired at least
four more times as the victim tried to escape the barn, although no additional
bullets hit the victim.
[¶5] Hallowell chased after the victim with the rifle when she exited the
barn. Hallowell tased the victim and she eventually stumbled to the ground.
While the victim was on the ground, Hallowell hit her on the head with his rifle.
As the two struggled and wrestled with the weapon, the rifle broke. Several
rounds of live ammunition fell on the ground, indicating that the rifle had been
loaded. Hallowell spoke to the victim for the first time while they were
wrestling over the rifle on the ground, stating: “I hate you for what you did to
my grandmother.” The victim pleaded with Hallowell to stop the attack.
[¶6] The victim was able to get away from Hallowell and ran toward the
road. A pickup truck towing a trailer was traveling on the road in front of the
5The court found there was a “fairly strong inference” that Hallowell caused the sliding door to
malfunction.
5
property, and the victim was able to wave the truck down and get in. At that
point, Hallowell had followed the victim down to the road and was running
toward the truck with a handgun. The truck was unable to back up due to its
trailer, so the driver sped past Hallowell with the victim lying on the floor of the
rear seat. As the truck sped past him, Hallowell aimed at the truck and fired
three shots, two of which hit the rim and tire on the rear passenger wheel of the
truck. At some point after the pickup truck drove past him, Hallowell returned
to his mother’s house, spoke to his parents, gathered some items, and left in a
vehicle.
[¶7] After law enforcement was notified of the incident, an alert was
issued for Hallowell and the vehicle he was suspected to be traveling in.
A Maine State Police lieutenant, who was patrolling in an unmarked cruiser,
located the suspect vehicle in the town of Clinton. The lieutenant turned on his
emergency lights and siren, but the vehicle did not stop. The lieutenant
estimated that he pursued the vehicle at speeds up to ninety-five miles per hour
over three and a half miles for a total duration of two and a half to three
minutes. Eventually the vehicle failed to negotiate a left-hand turn and left the
road, landing in a field. After the crash, the driver of the vehicle reported that
6
he was uninjured, identified himself as Christopher Hallowell, complied with
law enforcement directives, and allowed himself to be taken into custody.
[¶8] On July 9, 2019, the state charged Hallowell with various crimes in
a twelve-count complaint. The court (Stitham, J.) ordered a mental
examination. Dr. April O’Grady conducted the initial evaluation, which included
competency and criminal responsibility evaluations, on August 8, 2019, and
filed her report with the court. During the evaluation, Hallowell reported that
he had a “goal,” and that even though he did not intend to hurt anyone, “he was
prepared for violence.” Hallowell also informed O’Grady that he could
“absolutely see” that society would view his behavior as wrong but he “had
decided to take justice into his own hands,” that “he had considered that type
of aggression for years,” that “it took a lot for him to consider that type of
aggression,” and that he thought that if his relatives were “out of the picture,
then they [could] not harm [his great-grandmother] anymore.” O’Grady
reported that in her professional opinion, Hallowell was in contact with reality
during the time leading up to the incident in the barn and during his time in the
barn.
[¶9] On March 2, 2020, the State filed a superseding indictment.
Hallowell entered not guilty pleas on all twelve counts. Hallowell subsequently
7
underwent additional mental health examinations. The court (Anderson, J.)
held a competency hearing on December 28, 2020, and found Hallowell
incompetent to stand trial. Hallowell was examined again in 2021 and,
following a second competency hearing on August 8, 2021, was found
competent to stand trial. On August 20, 2021, Hallowell entered a plea of not
criminally responsible by reason of insanity. The trial court held a bench trial
on August 20 and 23, 2021.
[¶10] At trial, Hallowell raised the defense of mental abnormality,
see 17-A M.R.S. § 38, and the affirmative defense of insanity, see 17-A M.R.S. § 39
(2022). In support of his defenses, Hallowell called Dr. Geoffrey Thorpe, who
had evaluated Hallowell approximately two years after the incident. Thorpe
testified that Hallowell had been diagnosed with autism spectrum disorder,
post-traumatic stress disorder, attention deficit hyperactivity disorder, and
various substance abuse disorders. Thorpe also testified that a possible nodule
might have been found on Hallowell’s thyroid gland, although whether the
nodule actually existed or had any effect on Hallowell was unknown.
[¶11] Thorpe testified that Hallowell reported that he had lied to O’Grady
during her evaluation and that he experienced delusions, hallucinations, and
dissociated states of consciousness. Thorpe testified that Hallowell stated that
8
he carried loaded firearms with him because “he felt the need to defend himself
against snakes” in the area, that he injected a homemade concoction of drugs
and alcohol before the incident in a suicide attempt, that he heard voices that
told him to go to the barn, and that he believed that if he shot one of his relatives,
he would be able to seek asylum in Germany. Thorpe also testified, however,
that Hallowell subsequently reported that his hallucinations did not begin until
he was incarcerated after the incident and that the thoughts Hallowell reported
to him “sounded quite improbable and highly unlikely.” Thorpe conducted
testing of Hallowell and found that the validity of Hallowell’s answers raised
questions about possible overreporting of symptoms and that the results “could
be interpreted but with caution.”
[¶12] Ultimately, Thorpe opined that at the time of the crime, Hallowell
was “impaired by mental disorders.” Thorpe and O’Grady, who was called as a
rebuttal witness, both testified that Hallowell might have been malingering
when he was questioned about the inconsistencies in his reports to different
evaluators as well as in his answers to testing. After a brief deliberation, the
court found Hallowell guilty on eight of the charges.6
6
The court found Hallowell not guilty on three of the charges, and another charge was dismissed.
9
[¶13] In announcing its verdict from the bench, the court stated, with
respect to Hallowell’s defenses of mental abnormality and insanity:
So, I come away from analyzing [the] evidence with the
belief that the State has proved beyond a reasonable doubt
that when he at least took that first shot he was intending to
kill her. And that might have been a momentary belief in his
mind at the time, but . . . I believe the State has proved that it
existed.
....
[M]y findings on the insanity defense are very easily
explained. . . . [T]he insanity defense would depend on
whether the version of events that he gave to Dr. Thorpe was
accurate, that he had not been telling the truth to . . .
Dr. O’Grady, that he was only really telling what happened to
Dr. Thorpe, and I just don’t believe that. I just do not believe
that at all. I believe, consistent with the finding that I’ve
already made, that what he said to Dr. O’Grady was what was
going through his mind at the time and not what he said to
Dr. Thorpe. And if you—if you don’t have the version that he
told to Dr. Thorpe, then you don’t have a serious mental
illness at all. So, that’s why I’m rejecting the insanity defense.
. . . Abnormal condition of mind is nothing more than proving
the intent, and I have already found that the State did prove
the intent. So, although abnormal condition of mind in some
quarters is thought of as like a separate—it’s not really a
separate defense. It’s just whether the State can prove the
appropriate mens rea or not, and I have found that they
proved that when he shot [the victim] he intended to kill her,
and all the other elements of recklessness and things like that
are sort of a lesser—lesser form of intent or knowing, so I
think it’s been proved easily.
10
[¶14] For the Class A count of attempted murder (Count 3), the court
sentenced Hallowell to thirty years in prison with all but twenty-five years
suspended, and four years of probation. The court imposed concurrent
sentences of ten years for the Class B count of aggravated assault; five years for
the Class C count of criminal threatening with a dangerous weapon, the three
counts of Class C reckless conduct with a dangerous weapon, and the Class C
count of eluding an officer; and one year for the Class C count of criminal
mischief with a dangerous weapon. Hallowell timely appealed from the
judgment of conviction.
II. DISCUSSION
A. Mental Abnormality
[¶15] Hallowell argues the court failed to adequately consider the
evidence that he was suffering from a serious mental abnormality and that
because evidence was presented at trial that he suffered from an abnormal
condition of the mind, there was insufficient evidence to prove intent beyond a
reasonable doubt. See 17-A M.R.S. § 38.
[¶16] “Evidence of an abnormal condition of the mind may raise a
reasonable doubt as to the existence of a required culpable state of mind.” Id.
“The trial court’s application of a statutory defense is an issue of law that we
11
review de novo.” Graham, 2015 ME 35, ¶ 15, 113 A.3d 1102. “When evidence
of an abnormal condition of the mind is presented, the court is called upon to
determine whether the State has proved beyond a reasonable doubt that the
accused acted with the culpable state of mind necessary to commit the crime
charged.” State v. Weyland, 2020 ME 129, ¶ 25, 240 A.3d 841 (alterations and
quotation marks omitted).
[¶17] “A person is guilty of [Class A] criminal attempt if, acting with the
kind of culpability required for the commission of the crime, and with the intent
to complete the commission of the crime, the person engages in conduct that in
fact constitutes a substantial step toward its commission and the crime is . . .
[m]urder.” 17-A M.R.S. § 152(1)(A). “A person acts intentionally with respect
to a result of the person’s conduct when it is the person’s conscious object to
cause such a result.” 17-A M.R.S. § 35(1)(A) (2022). “The statutory definition
of intentional conduct focuses on the purposeful nature of the conduct and the
actor’s awareness of its consequences. Thus, in evaluating whether evidence of
the defendant’s abnormal mental state raises doubt as to the intentional quality
of the defendant’s actions, the fact-finder should consider the relationship
between the defendant’s mental state and evidence that the defendant in fact
acted purposefully and appreciated the consequences of his or her actions.”
12
Graham, 2015 ME 35, ¶ 23, 113 A.3d 1102. “Evidence that a defendant may
have been suffering from mental or emotional difficulties does not necessarily
suggest that [the] defendant’s conduct was not intentional as that term is
defined in the criminal code.” Id. ¶ 22 (alterations and quotation marks
omitted).
[¶18] Contrary to Hallowell’s contentions, the court properly considered
the evidence presented that Hallowell was purportedly suffering from serious
abnormalities that made it impossible for him to form the requisite intent for
criminal attempt. Although Thorpe testified that he believed Hallowell’s
capacity was “impaired by mental disorders” and “wasn’t at a hundred
percent,” the State presented the opposite opinion in O’Grady’s rebuttal
testimony. Furthermore, in a phone call made from the Piscataquis County Jail
on October 23, 2019—more than three months after the incident—Hallowell
contended that he “had every respect” [sic] to shoot his great-grandmother’s
“abuser,” that it was his constitutional right, and that just because the other
speaker “don’t like it, doesn’t mean it’s bad.”7
7 The call included the following exchange:
Hallowell: [The guards] have no respect for the 4th amendment, Lynn.
Called Party: Ummm, Chris you had no respect and that’s why you’re there.
13
[¶19] “In making its factual findings, the court was permitted to draw all
reasonable inferences from the evidence, and decide the weight to be given to
the evidence and the credibility to be afforded to the witnesses.” State v.
Mackin, 2020 ME 78, ¶ 7, 234 A.3d 1232 (quotation marks omitted). When
announcing its findings, the court stated that (1) it did not believe Hallowell’s
version of events as reported to Thorpe approximately two years after the
incident; (2) it believed that Hallowell’s report to O’Grady was “what was going
through [Hallowell’s] mind at the time”; and (3) the State proved beyond a
reasonable doubt that, at least in the moment when Hallowell fired the first shot
that hit the victim, he intended to kill her.8 Thus, the court considered the
Hallowell: I had no respect? I had every respect. That’s the whole point. When the
state government refused to protect a ninety-year-old woman, I shot her abuser. That
is just plain simple. That is my constitutional right as much as it is [interrupted by
Called Party]
Called Party: No, it isn’t [interrupted by Hallowell]
Hallowell: Yes, it is, Lynn. The second amendment exists for a reason, Lynn. I’m not
gonna argue about it with you.
Called Party: Alright.
Hallowell: She has basic human rights that were not being respected by this [. . .]
government. So somebody does have to take care of her regardless.
Called Party: [pause] M’kay. [pause]
Hallowell: You don’t like it, doesn’t mean it’s bad.
8 The court did not make factual findings regarding Hallowell’s intent as he beat the tased victim
on the head with his rifle.
14
relationship between Hallowell’s mental state and the evidence that Hallowell
acted purposefully and appreciated the wrongfulness of his goal-oriented
conduct. See Graham, 2015 ME 35, ¶ 23, 113 A.3d 1102. In so doing, the court
properly placed the burden on the State to prove all elements of the offense,
including intent, beyond a reasonable doubt. See id. ¶ 26. The evidence
supports the court’s finding that Hallowell was not suffering from an abnormal
condition of the mind that raised a reasonable doubt as to whether he acted
intentionally when he shot the victim. See State v. Norris, 2016 ME 37, ¶ 19,
134 A.3d 319.
B. Insanity
[¶20] Hallowell also contends that his “long-standing mental health
problems” and the “conflicting version of events” that he described to different
evaluators was “compelling evidence” that the court improperly ignored in its
“cursory treatment” of his affirmative defense of insanity.
[¶21] “A defendant is not criminally responsible by reason of insanity if,
at the time of the criminal conduct, as a result of mental disease or defect, the
defendant lacked substantial capacity to appreciate the wrongfulness of the
criminal conduct.” 17-A M.R.S. § 39(1). As used in section 39(1), “‘mental
disease or defect’ means only those severely abnormal mental conditions that
15
grossly and demonstrably impair a person’s perception or understanding of
reality.” Id. § 39(2). “The defense of insanity does not raise a reasonable doubt
as to an element of the crime, but instead excuses a defendant from criminal
responsibility even though the State can prove each element of the crime.”
State v. Griffin, 2017 ME 79, ¶ 9, 159 A.3d 1240. The insanity defense is an
affirmative defense that must be proved by the defendant by a preponderance
of the evidence. 17-A M.R.S. §§ 39(3), 101(2) (2022); see Norris, 2016 ME 37,
¶ 14, 134 A.3d 319.
[¶22] Whether Hallowell met his burden of proof is a question of fact.
Norris, 2016 ME 37, ¶ 14, 134 A.3d 319. “[I]f the fact-finder decides that the
defendant has not met the burden of proof, we will disturb that finding only if
the record compels a contrary conclusion. We must review the evidence, and
any reasonable inferences that may be drawn from it, most favorably to the
result reached by the trial court.” Id. (citations and quotation marks omitted).
[¶23] It is undisputed that Hallowell has a range of mental health
diagnoses. The factual question before the court was whether Hallowell
sufficiently proved that he had a “mental disease or defect,” as those terms are
defined, that resulted in a lack of substantial capacity to appreciate the
wrongfulness of his criminal conduct. 17-A M.R.S. § 39(1)-(2). During the
16
defense’s closing, the court conducted a colloquy with defense counsel to clarify
what the alleged mental disease or defect was. The defense acknowledged its
burden and that the court as the fact-finder would need to “basically believe
one [expert] over the other—[Thorpe] as opposed to [O’Grady]”—in order to
find that Hallowell met his burden. Ultimately, the court did not believe the
version of events that Hallowell described to Thorpe over the version he
described to O’Grady, and it therefore rejected the insanity defense.
[¶24] Viewed in the light most favorable to the court’s decision, the
evidence admitted at the trial did not compel a contrary conclusion. In addition
to occurring years after the incident, during which time Hallowell had time to
evaluate previous reports, Hallowell’s statements about his purported
hallucinations and delusions were described even by Thorpe as “improbable”
and “highly unlikely.” Hallowell also reported to Thorpe that his hallucinations
began after he was incarcerated, contrary to his reports that the hallucinations
and delusions directed his actions on the morning of July 8, 2019. Although the
record might support a conclusion that Hallowell suffers from mental health
conditions, it did not compel a finding that he had a “severely abnormal mental
condition[] that grossly and demonstrably impair[ed] [his] perception or
understanding of reality.” 17-A M.R.S. § 39(2); see Norris, 2016 ME 37, ¶ 17,
17
134 A.3d 319. Even Thorpe’s testimony that Hallowell was “impaired by mental
disorders” at the time of the incident contained nothing further to support
Hallowell’s contention that those mental disorders were a “mental disease or
defect” as those terms are defined by and used within the statute. See
17-A M.R.S. § 39(2). The court did not err in finding that Hallowell failed to
meet his burden of proof on the affirmative insanity defense.
The entry is:
Judgment affirmed.
Maxwell Coolidge, Esq. (orally), Ellsworth, for appellant Christopher Hallowell
Marianne Lynch, District Attorney, and Mark A. Rucci, Dep. Dist. Atty. (orally),
Prosecutorial District V, Bangor, for appellee State of Maine
Piscataquis County Unified Criminal Docket docket number CR-2019-225
FOR CLERK REFERENCE ONLY | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482952/ | claw 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0411
DA 21-0411
STATE OF MONTANA,
FILED
NOV 0 9 2022
Plaintiff and Appellee, ref...1;- • JOG,
eight-year sentence for convictions for which two years is the available maximum; they
stipulate that the District Court's imposed sentence is a sentence totaling eight years from the
revocation of eight separate felony counts that each have a two-year maximum available
sentence. Third, the parties agree that the Judgment and Sentence erroneously omits some of
Warren's credit for time served, which they calculate as a total of 44 days. Finally, the
parties assert that theDistrict Court gave Warren too much credit for street time as she was
entitled to only 1,347 days.
The parties therefore ask this Court to remand this matter to the District Court for
entry of an amended judgment and to dismiss the remainder of this appeal with prejudice.
Based on the parties' stipulation and rnotion to dismiss and the record on appeal, and
good cause appearing,
IT IS HEREBY ORDERED that this case is REMANDED to the Nineteenth Judicial
District Court, Lincoln County, with instructions for the District Court to amend its
Judgment and Sentence as follows:
1. Defendant's suspended sentence dated June 6, 2017, is revoked. The
Defendant is committed to the Department of Corrections for a total period of
8 years.
2. Defendant shall receive credit for 77 days' time served by reason of prior
incarceration as of the date of this Judgment.
3. Having considered § 46-18-203(7)(b), MCA, the Court gives the Defendant
1,347 days street credit toward her sentence for elapsed time while Defendant
was under her initial probationary sentence.
IT IS FURTHER ORDERED that the remainder ofthis appeal is DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that REMITTITUR shall issue IMMEDIATELY UPON
REMAND.
The Clerk is directed to provide copies of this Order to all counsel of record and to
presiding judge Honorable Matthew Cuffe. The Clerk of District Court for the Nineteenth
2
Judicial District is directed to provide a copy of the amended judgment to the Department of
Corrections Recordkkpartment.
Dated this day of November, 2022.
3 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482954/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 183
William S. Wilkinson; Ann L. Nevins and
Amy L. Perkins as Personal Representatives
for the Estate of Dorothy A. Wilkinson;
Barbara Caryl Materne, Trustee of the
Petty Living Trust; Charlie R. Blaine and
Vanessa E. Blaine, as Co-Trustees of the
Charlie R. Blaine and Vanessa E. Blaine
Revocable Trust; Lois Jean Patch, life tenant;
and Lana J. Sundahl, Linda Joy Weigel,
Deborah J. Goetz, Marva J. Will, Ronald J.
Patch, Michael Larry Patch, and Jon Charles
Patch, Remaindermen, Plaintiffs and Appellants
v.
The Board of University and School Lands
of the State of North Dakota, Brigham Oil &
Gas, LLP; Statoil Oil & Gas LP; Defendants and Appellees
and
EOG Resources, Inc.; XTO Energy Inc.;
Petrogulf Corporation, and all other persons
unknown who have or claim an interest in
the property described in the Complaint, Defendants
and
North Dakota State Engineer, Intervenor and Appellee
No. 20220037
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justice McEvers joined. Justice Crothers filed a specially concurring opinion.
Joshua A. Swanson (argued) and Robert B. Stock (appeared), Fargo, N.D., for
plaintiffs and appellants.
Jennifer L. Verleger, Assistant Attorney General, Bismarck, N.D., for
defendant and appellee The Board of University and School Lands of the State
of North Dakota, and for intervenor and appellee North Dakota State
Engineer.
John E. Ward, Bismarck, N.D., for defendants and appellees Brigham Oil and
Gas, LLP, and Statoil Oil & Gas LP.
Wilkinson v. Bd. of University and School Lands of the State of N.D.
No. 20220037
Tufte, Justice.
The plaintiffs appeal from a judgment dismissing their takings,
conversion, unjust enrichment, civil conspiracy, and 42 U.S.C. § 1983 claims
against the Board of University and School Lands (“Land Board”), Department
of Water Resources,1 and Statoil Oil & Gas LP.2 We affirm, concluding the
district court did not err in dismissing these claims and denying damages,
costs, and attorney’s fees.
I
J.T. Wilkinson and Evelyn M. Wilkinson acquired title to property
located in Williams County described as:
Township 153 North, Range 102 West
Section 12: SW¼
Section 12: S½NW¼, excepting that portion which constitutes the
right-of-way of the BNSF Railway Company
Section 13: Farm Unit No. 312 in the Buford-Trenton Project
In 1958, the Wilkinsons conveyed the property to the United States for
construction and operation of the Garrison Dam and Reservoir, but they
reserved the oil, gas, and other minerals in and under the property. The
plaintiffs are the Wilkinsons’ successors in interest.
The plaintiffs have leased their minerals numerous times since they
conveyed the surface property to the United States. Most notably, in 2009, the
1 At the time of the lawsuit, the Department of Water Resources was known as the Office of the State
Engineer. The 67th Legislative Assembly repealed the statutes creating the Office of the State
Engineer and State Engineer, as codified regulatory entities, and replaced those statutory entities with
the Department of Water Resources and Director, respectively, effective August 1, 2021. 2021 N.D.
Sess. Laws ch. 488. For the purposes of this opinion, we will refer to this party as the Department of
Water Resources. N.D.R.Civ.P. 25(d).
2 When this case began, this defendant was known as Brigham Oil & Gas, L.P. Brigham subsequently
became Statoil Oil & Gas LP, which subsequently became Equinor Energy LP. This party will be
referred to as Statoil.
1
plaintiffs (or their predecessors in interest) entered into oil and gas leases for
286 acres of their property. The plaintiffs received bonus payments of $300 per
acre and a 3/16ths royalty rate. The leases provide they shall remain in effect
as long as oil or gas is produced or drilling operations are continuously
prosecuted, but drilling or production on pooled portions of the leases will not
maintain the leases for the unpooled portions.
In 2010 and 2011, the Land Board entered into four oil and gas leases
with oil operators in Williams County, Township 153 North, Range 102 West,
for the northwest and southwest quarters of Section 12 (“Section 12 leases”)
and northeast and northwest quarters of Section 13 (“Section 13 leases”).
Statoil is the operator of the Lippert 1-12 1-H Well, which was spud in Section
1, Township 153 North, Range 102 West. The spacing unit3 for the Lippert Well
consists of Sections 1 and 12. In November 2010, the Lippert Well began
production. From August 2011 to April 2015, Statoil paid the Land Board
royalties for its fractional portion of the leased acreage within the spacing
unit.4 Section 13 has no associated spacing unit, and because no drilling
operations or production commenced in Section 13, the Section 13 leases
expired under their terms. The Land Board received and retained bonus
payments from the oil operators under the Section 13 leases.5 The plaintiffs’
2009 leases, likewise, remain in effect for Section 12, but have expired as to
Section 13.
3 Under N.D.C.C. § 38-08-07(1), the North Dakota Industrial Commission establishes spacing units
for a pool to prevent waste, avoid the drilling of unnecessary wells, and protect correlative rights. A
“pool” is “an underground reservoir containing a common accumulation of oil or gas or both; each zone
of a structure which is completely separated from any other zone in the same structure is a pool.”
N.D.C.C. § 38-08-02(13).
4 In addition to the Section 12: NW1/4 and SW1/4 leases pertinent here, the Land Board has three
leases covering Section 1: SE1/4 and Section 12: NE1/4 and SE1/4. Thus, the Land Board claims
ownership to additional royalty interests within the Lippert Well spacing unit beyond the Section 12
leases.
5 The Land Board also received bonus payments from the oil operator under the Section 12 leases.
However, as part of the acreage adjustment process under N.D.C.C. § 61-33.1-04(2)(a) and the terms
of the leases, the Land Board refunded these amounts to the oil operator. The plaintiffs have not sought
disgorgement of these amounts, and thus they are irrelevant to this appeal.
2
In 2012, the plaintiffs sued the Land Board and oil operators to quiet
title to disputed mineral interests in Sections 12 and 13. The plaintiffs
amended their complaint, adding additional oil operators as defendants and
the following claims: unconstitutional takings under the federal and state
constitutions by the Land Board; deprivation of their constitutional rights
under 42 U.S.C. § 1983 by the Land Board; and conversion, unjust enrichment,
and civil conspiracy by the Land Board and oil operators, including Statoil. The
district court granted the Department of Water Resources’ motion to intervene
as a defendant. As a result of the title dispute over minerals within the spacing
unit, Statoil suspended royalty payments to the plaintiffs. Statoil also began
escrowing the Land Board’s royalty payments at the Bank of North Dakota
(the “Bank”) starting in May 2015.
The Land Board and Department of Water Resources (collectively,
“State”) moved for summary judgment. The district court granted the State’s
motion, concluding the State owned the disputed minerals. After the court
entered summary judgment and the plaintiffs appealed, the Legislative
Assembly enacted N.D.C.C. ch. 61-33.1, relating to the ownership of mineral
rights of land inundated by the Pick-Sloan Missouri Basin Project dams. 2017
N.D. Sess. Laws ch. 426. In Wilkinson v. Board of University & School Lands,
2017 ND 231, 903 N.W.2d 51 (“Wilkinson I”), we reversed the judgment and
remanded for the court to determine whether N.D.C.C. ch. 61-33.1, governing
state ownership of the Missouri riverbed, applied and governs ownership of the
minerals in this case.
On remand, the district court granted the plaintiffs’ motion for summary
judgment, concluding N.D.C.C. ch. 61-33.1 applied and the plaintiffs own the
disputed minerals. In Wilkinson v. Board of University & School Lands, 2020
ND 179, ¶¶ 16, 20, 947 N.W.2d 910 (“Wilkinson II”), although a final judgment
disposing of all the claims against all the parties was not entered, we exercised
our supervisory jurisdiction. We affirmed the judgment in part, concluding
N.D.C.C. ch. 61-33.1 applied and the disputed mineral interests are above the
ordinary high water mark of the historical Missouri riverbed channel and are
not state sovereign lands. Id. at ¶ 32. We reversed in part, concluding the
3
statutory process was not completed, and remanded to resolve the remaining
claims and determine damages. Id.
Following Wilkinson II, the escrowed royalties were released to Statoil.
In November 2020, Statoil paid the plaintiffs the outstanding royalties owed
to them, dating back to November 2010, totaling $571,094. After a bench trial,
the district court dismissed the plaintiffs’ remaining claims and denied
damages on those claims, including interest on the royalties, disgorgement of
the Section 13 bonus payments made to the State, and costs and attorney’s
fees. The plaintiffs appeal.
II
In an appeal from a bench trial, the court’s findings of fact are reviewed
under the clearly erroneous standard of review, and its conclusions of law are
fully reviewable. Serv. Oil, Inc. v. Gjestvang, 2015 ND 77, ¶ 12, 861 N.W.2d
490. A finding of fact is clearly erroneous if it is induced by an erroneous view
of the law, if there is no evidence to support it, or if, after reviewing all the
evidence, we are left with a definite and firm conviction a mistake has been
made. Id. The trial court is “the determiner of credibility issues and we do not
second-guess the trial court on its credibility determinations.” Id. “A trial
court’s choice between two permissible views of the weight of the evidence is
not clearly erroneous, and simply because we may have viewed the evidence
differently does not entitle us to reverse the trial court.” Id. at ¶ 13. The court’s
findings are adequate if the record enables us to understand its factual
determinations and the basis for its conclusions of law and judgment. Id.
III
The plaintiffs argue the district court erred by dismissing their
conversion claim against the State. The State asserts the district court lacked
subject matter jurisdiction over the claim under N.D.C.C. § 32-12.2-04(1),
which requires a claim against the State for an injury be presented to the
director of the office of management and budget (“OMB”) within 180 days after
the alleged injury is discovered or reasonably should have been discovered.
“Absent the timely filing of a notice of claim under N.D.C.C. § 32-12.2-04(1),
4
the court lacks subject matter jurisdiction to entertain the lawsuit.” Ghorbanni
v. N.D. Council on Arts, 2002 ND 22, ¶ 8, 639 N.W.2d 507. We review challenges
to the district court’s subject matter jurisdiction de novo when jurisdictional
facts are not in dispute. State ex rel. Stenehjem v. Maras, 2021 ND 68, ¶ 8, 958
N.W.2d 475.
It is undisputed the plaintiffs failed to present a notice of claim to OMB.
They argue, however, that the State waived this argument because the
judgment and order for judgment do not address this issue and the State did
not appeal from the court’s November 2015 order holding the statute did not
apply to the conversion claim. Although the court dismissed the conversion
claim on the merits, not for failure to file a notice of claim, the plaintiffs’ waiver
argument is unpersuasive. The November 2015 order denied the Land Board’s
motion to dismiss. Thus, the order was not an appealable order. Dimond v.
State ex rel. State Bd. of Higher Educ., 1999 ND 228, ¶ 12, 603 N.W.2d 66
(concluding that denial of a motion to dismiss is a non-appealable,
interlocutory order). Further, because the issue implicates the court’s subject
matter jurisdiction, Ghorbanni, 2002 ND 22, ¶ 8, the issue cannot be waived
and may be raised at any time. N.D.R.Civ.P. 12(h)(3); Earnest v. Garcia, 1999
ND 196, ¶ 7, 601 N.W.2d 260 (concluding that issues involving subject matter
jurisdiction cannot be waived and can be raised at any time).
The plaintiffs argue in the alternative that they were not required to
present their conversion claim to OMB because the claim was not one for
“injury” under the statute. “‘Injury’ means personal injury, death, or property
damage.” N.D.C.C. § 32-12.2-01(2). “Personal injury” includes “injury to a
person’s rights.” N.D.C.C. § 32-12.2-01(4). “‘Property damage’ includes injury
to or destruction of tangible or intangible property.” N.D.C.C. § 32-12.2-01(5).
The plaintiffs assert the State wrongfully exercised control over the property,
but such control does not constitute property damage under the statute.
The case law generally shows that “injury” is synonymous with tort. See,
e.g., Ghorbanni, 2002 ND 22, ¶ 15 (concluding retaliatory discharge claim
“sounded in tort” and thus notice-of-claim statute applied); State v. Haskell,
2001 ND 14, ¶ 7, 621 N.W.2d 358 (explaining that in Dimond the Court held
5
that “any possible tort claim [the plaintiff] may have had was barred for failing
to present notice of his tort claim within the time allowed by N.D.C.C. § 32-
12.2-04(1)”). “Conversion consists of a tortious detention or destruction of
personal property, or a wrongful exercise of dominion or control over the
property inconsistent with or in defiance of the rights of the owner.” Ritter,
Laber & Assocs., Inc. v. Koch Oil, Inc., 2004 ND 117, ¶ 11, 680 N.W.2d 634.
“Conversion requires an intent to exercise control or interfere with the use of
property to such a degree as to require a forced sale of the plaintiff ’s interest
in the goods to the defendant.” Id. We conclude that conversion requires an
injury either to personal property or the property owner’s rights, consistent
with N.D.C.C. § 32-12.2-01(2), (4), (5), and the plaintiffs were required to
provide a notice of claim to OMB. Because a notice of claim was not provided,
the district court lacked subject matter jurisdiction over the conversion claim,
and dismissal of the claim, albeit for the wrong reason, was properly granted
by the court. See Schmidt v. City of Minot, 2016 ND 175, ¶ 21, 883 N.W.2d 909
(affirming judgment of dismissal when district court reached the right result
for a wrong reason).
IV
The plaintiffs argue the State and Statoil conspired to convert their
royalties. Civil conspiracy is “a combination of two or more persons acting in
concert to commit an unlawful act or to commit a lawful act by unlawful means,
the principal element of which is an agreement between the parties to inflict a
wrong against or injury upon another and an overt act that results in
damages.” Burris Carpet Plus, Inc. v. Burris, 2010 ND 118, ¶ 42, 785 N.W.2d
164. The underlying act itself must generally be actionable as a tort claim to
support a civil conspiracy claim, and if the underlying tort claim is dismissed,
the civil conspiracy claim is defeated. Id. at ¶ 45.
The district court concluded that the plaintiffs’ conspiracy claim against
the State failed for lack of an underlying tort. Indeed, the plaintiffs alleged
that the State conspired to wrongfully take their property without just
compensation. A taking, however, is not a tort claim. Minch v. City of Fargo,
297 N.W.2d 785, 789 (N.D. 1980) (A takings claim “proceeds from a
6
constitutional right and must be distinguished from claims grounded in tort
theory only.”). Moreover, even if the plaintiffs alleged the State conspired to
convert their royalties, their failure to file a notice of claim with OMB bars this
tort claim against the State under N.D.C.C. § 32-12.2-04(1).
The district court also dismissed the claim against Statoil, concluding
the evidence does not show the State and Statoil conspired to convert the
plaintiffs’ royalties in Section 12. The plaintiffs argue Statoil knew the
plaintiffs owned the minerals when it entered into the Section 12 leases with
the State. However, the State entered into the Section 12 leases with Bowie Oil
Partners, LLC, not Statoil. Statoil came into possession of the Section 12 leases
through assignment. The plaintiffs do not assert that Bowie conspired with
Statoil and the State, nor do they assert Bowie was an agent of Statoil. Thus,
the leases do not support the claim of a conspiracy involving Statoil.
The plaintiffs also contend that the escrow agreement between the State
and Statoil to escrow royalties at the Bank was an agreement to deprive the
plaintiffs of their royalties. The district court found the escrow agreement was
required under N.D. Admin. Code § 85-06-01-09, which at the time of the
escrow agreement in 2015 was Land Board Rule 85-06-06-08.1 (2010). Land
Board Rule 85-06-06-08.1 stated that any payor that “proposes to withhold
royalty payments based upon an ownership dispute must establish an escrow
deposit account and must deposit the disputed payments into this account.” We
agree with the court that Statoil lawfully escrowed royalties in this case.
Because the State and Statoil did not act in concert to commit an unlawful act,
a lawful act by unlawful means, or agree to inflict a wrong against or injury
upon the plaintiffs, we conclude the court did not err by dismissing the
conspiracy claim against Statoil.
V
The plaintiffs argue the State committed an unconstitutional taking of
their minerals and they are entitled to just compensation including interest.
The plaintiffs do not differentiate the Takings Clause in the U.S. Constitution
from the state constitutional provision, analyzing these claims together.
Because no party asserts the text or history of the state constitutional
7
provision requires us to apply a different standard, we analyze the federal and
state takings challenges together. Northwest Landowners Ass’n v. State, 2022
ND 150, ¶ 23.
The Fifth Amendment guarantees that private property shall not “be
taken for public use, without just compensation.” U.S. Const. Amend. V. “The
takings clause of the Fifth Amendment is made applicable to the states
through the Fourteenth Amendment.” Wild Rice River Estates, Inc. v. City of
Fargo, 2005 ND 193, ¶ 12, 705 N.W.2d 850. Article I, § 16, of the North Dakota
Constitution states that “[p]rivate property shall not be taken or damaged for
public use without just compensation having been first made to, or paid into
court for the owner.” “Whether there has been a taking of private property for
public use is a question of law.” Wilkinson I, 2017 ND 231, ¶ 22. The trial court’s
findings of fact will not be set aside unless they are clearly erroneous under
N.D.R.Civ.P. 52(a). Wild Rice River, at ¶ 10.
The State has conceded that the plaintiffs own the minerals in dispute
after our decision in Wilkinson II, which stated that “the Wilkinson property is
above the OHWM of the historical Missouri riverbed channel and is not State
sovereign lands.” 2020 ND 179, ¶ 32. Further, “[m]ineral interests in Williams
County, in the oil-producing Bakken formation, have value.” Wilkinson I, 2017
ND 231, ¶ 24. Thus, if the State effectuated a taking, the plaintiffs are due just
compensation.
A
Before reviewing the merits of the takings claims, we consider whether
the takings claims were mooted by the Legislative Assembly or waived by the
plaintiffs.
The district court concluded that the takings claims were mooted by the
passage of N.D.C.C. ch. 61-33.1 and its application to the plaintiffs’ property.
However, where the government’s actions have already worked a taking, “no
subsequent action by the government can relieve it of the duty to provide
compensation for the period during which the taking was effective.” Ark. Game
& Fish Comm’n v. United States, 568 U.S. 23, 33 (2012) (quoting First English
8
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S.
304, 321 (1987)); see also Knick v. Township of Scott, 139 S. Ct. 2162, 2171-72
(2019) (noting that government’s post-takings actions cannot nullify property
owner’s Fifth Amendment right). Accordingly, the Legislative Assembly’s
passage of N.D.C.C. ch. 61-33.1, effective April 21, 2017, 2017 N.D. Sess. Laws
ch. 426, has not mooted the plaintiffs’ takings claims, which they alleged began
in 2010.
The district court also concluded that because this action was initiated
as a title dispute, a takings claim cannot prevail. The court relied on cases that
concluded the government’s commencement of a quiet title action alone cannot
be a taking. See Mackin v. City of Coeur D’Alene, 551 F. Supp. 2d 1205 (D. Idaho
2008), aff’d, 347 F. App’x 293 (9th Cir. 2009); Doenz v. Sheridan County, Case
No. 98-CV-76-D (D. Wyo. June 25, 1999). However, the plaintiffs do not assert
the legal action itself worked a taking on their mineral interests, but rather
the State leasing their mineral interests caused the taking. The government’s
assertion of title and further governmental action can amount to a taking. See
Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 888-89 (Fed. Cir. 1983);
Central Pines Land Co. v. United States, 107 Fed. Cl. 310, 325, 327-28 (Fed.
Cl. 2010); Pettro v. United States, 47 Fed. Cl. 136, 147-49 (Fed. Cl. 2000). In
their amended complaint, the plaintiffs brought claims for declaratory relief
declaring that they own the minerals and the takings claims for just
compensation. Reframing the action as merely an action for quiet title does not
preclude a determination of the takings claims on the merits.
Finally, the State argues the plaintiffs waived their takings claims by
not responding to its waiver argument during summary judgment, which was
prior to Wilkinson II. In Wilkinson II, we concluded that the district court did
not dispose of all of the claims, and specifically, the takings claims. 2020 ND
179, ¶ 16. Therefore, the plaintiffs have not waived their takings claims.
Because the takings claims have not been mooted or waived, we turn to the
merits of the claims.
9
B
There are two categories of regulatory action considered per se takings:
physical takings and total regulatory takings. Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 538 (2005); Wild Rice River, 2005 ND 193, ¶ 13. A physical taking
is where the government “requires an owner to suffer a permanent physical
invasion of her property.” Lingle, at 538; Wild Rice River, at ¶ 13. “[T]otal
regulatory takings” occur when regulations “completely deprive an owner of
‘all economically beneficial use’ of her property.” Lingle, at 538 (quoting Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 1019, 1026 (1992)); Wild Rice River, at
¶ 13. For total regulatory takings, the “complete elimination of a property’s
value is the determinative factor . . . because the total deprivation of beneficial
use is, from the landowner’s point of view, the equivalent of a physical
appropriation.” Wild Rice River, at ¶ 13. Beyond these two categories, takings
challenges are governed by the standards set out in Penn Central
Transportation Co. v. New York City, 438 U.S. 104 (1978), which require
situation-specific factual inquiries. Wild Rice River, at ¶ 13. The plaintiffs
contend the district court erred by concluding the State did not commit either
a physical taking or a total regulatory taking. They do not assert a taking has
occurred under the Penn Central factors.
1
Although the plaintiffs contend a physical taking occurred, they do not
argue they suffered a permanent physical invasion of their property, Lingle,
544 U.S. at 538; see also Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 426 (1982). Instead, they argue the State committed a temporary
physical taking of their minerals by entering into leases with oil operators,
thereby directly appropriating their minerals for a period of ten years. See
Lingle, at 539 (recognizing the “classic taking” involves government directly
appropriating private property or ousting the owner from her domain); Cedar
Point Nursery v. Hassid, 141 S. Ct. 2063, 2074, 2077 (2021) (explaining that “a
physical appropriation is a taking whether it is permanent or temporary” and
defining “appropriation” as “taking as one’s own”).
10
The district court found that the State did not advertise or otherwise
promote minerals for leasing. Instead, operators interested in leasing state-
owned minerals filed a nomination petition with the State. If the tract was not
already being leased, it was placed on a public auction list. The court found
that because the minerals were leased at a public auction, interested parties
could avail themselves of any uncertainty in title. The court found, “Rather
than entering a lease with a specific legal description, the State’s riverbed
leases are simply for a given number of acres within a quarter section, with no
particular legal description specified beyond ‘Missouri River.’”
The Section 12 and 13 leases, paragraph 2, provide:
If [Land Board] owns an interest less than the whole and
undivided fee in the leased premises, the royalties . . . shall be paid
[Land Board] in the proportion which [Land Board]’s interest bears
to the whole and undivided fee. [Land Board] neither warrants nor
agrees to defend title to the leased premises, except that all
bonuses and rentals will be returned to the [oil operator] in the
event [Land Board] does not have a lawful right to lease the leased
premises for oil and/or gas exploration and production.
Addendums to the leases reiterate that the Land Board “does not warrant its
title to the acreage leased” and that under Board Rule 85-06-06-02.1,
“Sovereign lands lease acreage . . . may be adjusted . . . as survey information
is obtained, the ordinary high watermark is delineated, and other reliable
relevant facts are identified.” Moreover, the addendums state, “If, during any
time prior to expiration of the lease, it is determined by a court or by [Land
Board] that the [Land Board] owns less acreage than that set forth in this
lease, then [Land Board] will refund to [oil operator] the proportionate per acre
bonus paid for this lease.” These provisions make clear that the Land Board
was leasing all mineral interests it had in the identified quarter sections, if
any, but did not warrant title to the acreage leased.
After the acreage adjustments under N.D.C.C. ch. 61-33.1, the State is
leasing 159 mineral acres in the Lippert Well spacing unit. The court found
that at the time of trial, the State was still owed royalty payments for its
interest in the Lippert Well spacing unit. Thus, the State has not received any
11
excess royalty payments, and has not needed to refund any payments to
Statoil, as the Lippert Well spacing unit operator. Statoil has since paid the
State lump-sum “catch-up” royalty payments.
Notwithstanding the State’s leases in 2010 and 2011, the plaintiffs (or
their predecessors in interest) have entered into numerous oil and gas leases
with operators concerning their property located in Sections 12 and 13 since
they conveyed the surface to the United States in 1958. In 2009, the plaintiffs
entered into leases providing them a $300 per acre bonus payment on 286 acres
and a 3/16ths royalty rate. The leases provide they shall remain in effect as
long as oil or gas is produced or drilling operations are continuously
prosecuted, but that drilling or production on pooled portions of the lease will
not maintain the lease for the unpooled portions. Thus, the plaintiffs’ leases
remain in effect for Section 12, but have expired as to Section 13. The plaintiffs
did not refund the bonus payments they received on the expired Section 13
portion of the leases. Although the plaintiffs’ royalties were initially placed in
suspense due to the title dispute, their outstanding royalties were paid in
November 2020. The department of trust lands’ director of revenue compliance
and managing auditor, Adam Otteson, testified that the State did not retain
any funds provided in the Section 12 leases concerning the plaintiffs’ property.
He also testified the State did not have access or control over the escrowed
funds.
We conclude the State did not cause a physical taking of the plaintiffs’
minerals. While the State’s leases included legal descriptions of property that
was ultimately determined to be the plaintiffs’ property, the State did not
warrant title to the property. In fact, the language of the leases reads similarly
to a quitclaim deed, which “conveys only the grantor’s interest or title, if any,
in property, rather than the property itself.” Carkuff v. Balmer, 2011 ND 60,
¶ 10, 795 N.W.2d 303. By themselves, the leases neither invaded the property
nor legally authorized a physical invasion or occupation of the plaintiffs’
property. See also Sickler v. Pope, 326 N.W.2d 86, 93 (N.D. 1982) (noting that
oil and gas leases alone, while evidence of possession, do not constitute actual
possession of property); Cedar Point Nursery, 141 S. Ct. at 2071 (explaining
that physical takings include condemning property, physically taking
12
possession of property without acquiring title, and occupying property); Tahoe-
Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322
n.17 (2002) (“When the government condemns or physically appropriates the
property, the fact of a taking is typically obvious and undisputed.”).
The plaintiffs cite non-binding case law for the proposition that the
government commits a temporary physical taking by issuing mineral leases,
including Central Pines, 107 Fed. Cl. at 327; Pettro, 47 Fed. Cl. at 147; Petro-
Hunt, L.L.C. v. United States, 90 Fed. Cl. 51, 65 (2009), aff ’d, 862 F.3d 1370
(Fed. Cir. 2017).
In Central Pines, the court concluded there was a temporary taking of
the plaintiffs’ mineral interests when the government asserted title to their
minerals and issued leases. 107 Fed. Cl. at 325, 328. The court reasoned that
oil operators forwent entering into leases with the plaintiffs to enter into leases
with only the government. Id. at 328. It concluded that “the government’s
leasing of plaintiffs’ mineral interests deprived the plaintiffs of the benefit they
otherwise would have received from a potential lessee during that period.” Id.
The plaintiff in Pettro owned a sand and gravel pit. 47 Fed. Cl. at 138.
After a title search, the Forest Service asserted they owned the property and
ordered the plaintiff and his contractors to cease all work in the pit and remove
all their equipment, or be liable for damages. Id. at 145. The court found the
Forest Service’s actions had a direct effect on the plaintiff and his contractors,
including removing equipment, abstaining from mining, and causing the
plaintiff to make “no attempt to exercise his mineral rights.” Id. at 147. The
court concluded a taking had occurred, preventing the plaintiff from exercising
his property right to mine the pit and sell the sand and gravel, and depriving
him of all economic use of the property. Id. at 147, 149.
In Petro-Hunt, the plaintiff brought temporary takings claims
“predicated upon a series of mineral leases entered into between the United
States and third parties.” 90 Fed. Cl. at 64. The United States Court of Federal
Claims dismissed some of the plaintiff ’s temporary takings claims as untimely
because the statute of limitations had run on the claims. Id. at 67. Thus, the
13
court’s focus was on when these claims accrued and whether they were timely.
See id. at 65-67. As a part of this analysis, the court determined that the
“decisional law suggests that the timing of the accrual of a temporary takings
claim may depend upon the nature of the takings involved”—i.e., whether the
takings were physical or regulatory. Id. at 65. Without further discussion, the
court agreed with the plaintiff that the “leases authorized the physical
occupation of property” and thus “should be analyzed as potentially giving rise
to physical, not regulatory takings.” Id.
These three cases provide little guidance in the situation presented here.
In Central Pines, the court found the government’s actions deprived the
plaintiffs of additional leases. In Pettro, the plaintiff was completely prevented
from exercising his mineral rights. Petro-Hunt was a statute of limitations
case, recognizing the leases should be analyzed as “potentially giving rise to
physical, not regulatory takings.” In concluding that certain claims were not
time-barred, the court concluded only that they “state a valid claim” sufficient
to survive a motion to dismiss, because it was not clear as a factual matter
whether the leases at issue affected the true owner’s use or enjoyment of the
property. Petro-Hunt, 90 Fed. Cl. at 70-71. To the extent Petro-Hunt suggested
the government’s oil and gas leases could effectuate a physical taking on the
plaintiff ’s property, it relied on alleged facts that “the lessees were paying
royalties to the United States (and not plaintiff) for the exclusive right
(presumably, as against plaintiff) to . . . all of the oil and gas.” Id. at 70. In
contrast, the State’s leases at issue here expressly did not warrant title to the
property and did not purport to grant an exclusive right, and both the plaintiffs
and the State leased the disputed property and were paid royalties.
Additionally, the plaintiffs fail to demonstrate the State’s leases
interfered with any of their property rights. Recall, the plaintiffs entered into
leases on their property in 2009. Because the Lippert Well continues to
produce, the plaintiffs’ leases concerning Section 12 remain active. Unlike in
Central Pines, Pettro, and Petro-Hunt, the State’s overinclusive leasing activity
of disputed interests did not cause the plaintiffs to lose other leases or interfere
with the lessee’s operations. Therefore, the intervening events of the State
14
entering into leases with oil operators in 2010 and 2011 did not interfere with
the plaintiffs’ negotiations concerning bonus payments and royalty rates.
The plaintiffs also cite Horne v. Dep’t of Agric., 576 U.S. 350 (2015), in
support of their physical takings claims. In Horne, the United States Supreme
Court held that the Takings Clause is implicated when the government directly
appropriates private property for its own use. 576 U.S. at 357. The Supreme
Court further held that a requirement that a percentage of a raisin grower’s
crop must be physically set aside for the account of the government, free of
charge, was a physical taking. Id. at 361. In concluding a physical taking
occurred, the Court highlighted the government’s actual possession and control
of the raisins:
The reserve requirement imposed by the Raisin Committee
is a clear physical taking. Actual raisins are transferred from the
growers to the Government. Title to the raisins passes to the
Raisin Committee. The Committee’s raisins must be physically
segregated from free-tonnage raisins. . . .
Raisin growers subject to the reserve requirement thus lose
the entire bundle of property rights in the appropriated raisins—
the rights to possess, use and dispose of them . . . . The
Government’s actual taking of possession and control of the
reserve raisins gives rise to a taking as clearly as if the
Government held full title and ownership, as it essentially does.
Id. (cleaned up). Because Horne emphasized the government’s actual, physical
possession and control of the property, we view the holding and reasoning as
support for our conclusion that no physical taking occurred in this case.
Recently, in Northwest Landowners, we concluded the State committed
a per se taking by allowing third-party oil and gas operators to “physically
invade a landowner’s property by injecting substances into the landowner’s
pore space.” 2022 ND 150, ¶ 26. Specifically, the bill at issue granted operators
the right to access the landowner’s property to store or dispose of gases and
wastes. Id. “As amended, the statutes would allow anyone conducting
operations under Chapter 38-08 to inject waste into a surface owner’s pore
space without the surface owner’s consent.” Id. The bill went beyond codifying
15
the implied easement authorizing “the mineral owner to use the surface estate
as ‘reasonably necessary’ to find and develop minerals when the surface and
mineral estates are severed.” Id. at ¶ 28. The bill authorized “subsurface
disposal of waste generated within a spacing unit or unitized field and also
disposal of waste generated outside the unit or field.” Id. at ¶ 29. Because
disposal operations beyond the scope of the implied easement are trespasses,
the bill’s barring of tort actions for these trespasses created an uncompensated
physical taking of the surface owner’s property. Id. at ¶ 30.
In Northwest Landowners, the State, acting in its sovereign capacity,
reallocated property rights through legislation, eliminating the core of a
longstanding property right in pore space—the right to exclude others. Here,
the State acted in its proprietary capacity by issuing leases. The State’s leases
did not warrant the State’s title to the leased property, nor did they diminish
the interest of any other property owner. Through the leases, the State acted
in its capacity as a landowner to release any claims it may have to the mineral
interests. By entering into the lease agreements, the State did not purport to
alter the rights or obligations of others who may have claims or interests in the
property.
The plaintiffs also cite a line of cases concluding a physical taking occurs
when the government physically diverts water or causes water to be diverted
away from property owners. See Dugan v. Rank, 372 U.S. 609 (1963); United
States v. Gerlach Live Stock Co., 339 U.S. 725 (1950); Int’l Paper Co. v. United
States, 282 U.S. 399 (1931); Casitas Mun. Water Dist. v. United States, 543 F.3d
1276 (Fed. Cir. 2008). In all of these cases, the government took the property
owners’ water for public use, depriving them of their water rights and actual
use of the water. Contrastingly, in addition to this case involving minerals, not
water, the State did not physically invade or seize the plaintiffs’ minerals, or
otherwise deprive them of leasing their minerals.
At no point in time has the State prevented or hindered the plaintiffs’
ability to exercise the primary incident of mineral ownership, issuing oil and
gas leases, which they have done throughout the years. The plaintiffs have
16
received bonus payments and, upon resolution of this title dispute, the
royalties owed to them.
The State may protect its interests in a title dispute and must do
“something more” than assert title to complete a taking. Central Pines, 107
Fed.Cl. at 325. The State may not abdicate its legitimate claims to sovereign
lands. State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 540 (N.D. 1994).
To protect the public interest in sovereign lands, the State may have to litigate
a quiet title action to determine the extent of its sovereign lands along
navigable waters when the boundaries are disputed. See id. The State’s leases
were not without basis—they were consistent with the 2010 Phase I study of
the ordinary high water mark (OHWM). The later Phase II study and the
Chapter 61-33.1 process applied historical information to determine the
OHWM prior to closing the Garrison Dam, which resulted in the State
narrowing its sovereign lands claims. The State’s leases were not frivolous or
unsupported. They were ultimately determined to be overinclusive, but this
nonfrivolous assertion of title by the State is not by itself a taking. The State’s
act of leasing the disputed lands is insufficient to be the “something more”
under any of the cases cited to us. The scope of the State’s Missouri River
acreage would have been disputed and in need of resolution with or without a
State lease. Under N.D.C.C. § 47-16-39.1, a title dispute is sufficient for the
operator to suspend royalty payments. Vic Christensen Mineral Tr. v. Enerplus
Res. (USA) Corp., 2022 ND 8, ¶ 12, 969 N.W.2d 175.
Finally, the State’s more aggressive litigation positions, which we
rejected in Wilkinson II, related to application of Chapter 61-33.1, which was
enacted in 2017 and amended in 2019. The temporary taking claim here was
argued to have begun in 2010 when production began and continued through
2020 when escrowed royalties were paid. Any aggressive litigation positions
taken by the State under Chapter 61-33.1 were far too late to support a
temporary taking beginning in 2010.
2
Alternatively, the plaintiffs contend the State committed a total
regulatory taking because it completely deprived them of all economically
17
beneficial uses of their property. As discussed above, the record shows that the
plaintiffs were not deprived by the State’s leasing of minerals in any material
way, let alone completely deprived of all economically beneficial uses of their
property. Lingle, 544 U.S. at 538; Wild Rice River, 2005 ND 193, ¶ 13. The
plaintiffs do not assert they received below market rates in leasing the
minerals. As noted above, it was not the lease but the underlying title dispute
that triggered the suspension and escrowing of royalties. The plaintiffs do not
argue that the State is obligated to pay just compensation every time royalties
are subject to suspension or escrow under applicable statutes or rules.
Accordingly, we conclude the State has not committed a regulatory taking.
3
The plaintiffs argue the State effectuated a taking of their royalties while
the royalties were held in escrow at the Bank of North Dakota because the
Bank was acting as the agent for the Land Board.
Otteson testified that the escrow agreement was between the Bank, as
the escrow agent, and Statoil. The escrow agreement in the record states it is
between the State, acting through the Bank, and the State, acting through the
Land Board. The “Receipt of Escrow Funds” states that Statoil deposited funds
into the Bank under the terms of the deposit agreement, which the receipt
states was executed by Statoil. The receipt also refers to the Bank as an agent
for the Land Board, which Otteson acknowledged in his testimony. Jodi Smith,
the Land Board commissioner, testified that any operator can enter into an
agreement with the Bank to escrow funds if a title dispute arises. Smith
testified the agreement is not with the Land Board, but acknowledged the
Land Board has a separate agreement with the Bank to have the Bank act as
its agent.
The district court found that Statoil, not the State, deposited the royalty
payments into an escrow account at the Bank, and was required to do so under
Land Board Rule 85-06-06-08.1, which provided that any payor that “proposes
to withhold royalty payments based upon an ownership dispute must establish
an escrow deposit account and must deposit the disputed payments into this
account.” Upon resolution of the title dispute, the escrowed funds were
18
remitted to Statoil for dispersal as the well operator. Statoil paid the plaintiffs
the royalties owed to them. The court concluded, on the basis of Otteson’s
written declaration, that the State never had access to or control over the
escrowed funds. This is one permissible view of the evidence, which we will not
overturn on appeal. See Serv. Oil, 2015 ND 77, ¶ 13 (“A trial court’s choice
between two permissible views of the weight of the evidence is not clearly
erroneous.”). Because the plaintiffs have not demonstrated the State
committed a taking in violation of the federal or state constitutions, the court
did not err in dismissing the takings claims.
VI
The plaintiffs contend the State was unjustly enriched by leasing their
minerals in Section 13 and retaining the Section 13 bonus payments from the
oil operators. The plaintiffs assert that equity demands the State disgorge
these payments to them.
The doctrine of unjust enrichment is well-established:
Unjust enrichment is an equitable doctrine based upon a
quasi or constructive contract implied by law to prevent a person
from being unjustly enriched at the expense of another. The
doctrine serves as a basis for requiring restitution of benefits
conferred in the absence of an expressed or implied in fact contract.
A determination of unjust enrichment is a conclusion of law and is
fully reviewable by this Court. Unjust enrichment requires: (1) an
enrichment; (2) an impoverishment; (3) a connection between the
enrichment and the impoverishment; (4) an absence of justification
for the enrichment and impoverishment; and (5) an absence of
remedy provided by law. The doctrine of unjust enrichment may be
invoked when a person has and retains money or benefits which in
justice and equity belong to another. A determination of unjust
enrichment holds that a certain state of facts is contrary to equity.
An essential element of recovery under unjust enrichment is the
receipt of a benefit by the defendant from the plaintiff that would
be inequitable to retain without paying for its value. Even when a
person has received a benefit from another, that person is liable
only if the circumstances of the receipt or retention are such that,
as between the two persons, it is unjust to retain the benefit.
19
Ritter, 2004 ND 117, ¶ 26 (cleaned up).
Similar to the Section 12 leases, the State did not advertise the leasing
of the Section 13 minerals. Instead, the tracts were nominated and placed for
auction. The Section 13 leases also state that the Land Board “does not warrant
its title to the acreage leased.” No well was drilled or oil produced in Section
13, and the Section 13 leases expired under their terms due to non-production.
The district court found that it is standard industry practice for the bonus
payments on expired leases to be retained by the lessor and not refunded to
the oil operator. The plaintiffs also leased their minerals in Section 13 in
exchange for bonus payments. The plaintiffs, likewise, did not refund their
bonus payments after the Section 13 portions expired for lack of production.
The plaintiffs have not shown they were impoverished by the State’s
retention of the bonus payments. Nor have they shown the State’s leases
negatively impacted their ability to negotiate their own leases with oil
operators. In fact, the plaintiffs (or their predecessors in interest) entered into
oil and gas leases for their Section 13 minerals in 2009, before the State
entered into its Section 13 leases in 2010 and 2011. The bonus payments that
the plaintiffs request be disgorged from the State were provided by the oil
operators in exchange for contractual obligations on behalf of the State. The
plaintiffs were not parties to the Section 13 leases and did not provide any
bonus payments to the State. Thus, the Section 13 leases between the State
and oil operators were of no material detriment to the plaintiffs, and equity in
our view does not demand disgorgement of the State’s bonus payments to the
plaintiffs. The district court did not err in dismissing the plaintiffs’ unjust
enrichment claim against the State.
VII
The plaintiffs argue they are entitled to costs and attorney’s fees under
42 U.S.C. §§ 1983, 1988, and N.D.C.C. ch. 32-15. Section 1983 provides a cause
of action against a state actor depriving a citizen of a constitutional right.
Section 1988(b) allows a court, in its discretion, to award attorney’s fees to the
prevailing party in a 1983 action. Section 32-15-32, N.D.C.C., allows a court,
in its discretion, to award costs and attorney’s fees to the defendant in an
20
eminent domain action. See also N.D.C.C. § 32-15-01(1) (defining eminent
domain as the right to take private property for public use). Because the
plaintiffs have not prevailed on their takings claims, the State has not deprived
them of their constitutional rights under 42 U.S.C. § 1983, and they are not
entitled to costs and attorney’s fees under 42 U.S.C. § 1988 or N.D.C.C. § 32-
15-32.
VIII
The judgment is affirmed.
Jon J. Jensen, C.J.
Lisa Fair McEvers
Jerod E. Tufte
The Honorable Gerald W. VandeWalle disqualified himself subsequent to
oral argument and did not participate in this decision.
Crothers, Justice, specially concurring.
I agree with the majority’s result and most of what they have written. I
write separately regarding the taking claim.
The dividing line between governmental actions that constitute taking
or not taking private property was explained by the federal court of claims:
As the court has previously ruled, the government’s mere
assertion of title does not constitute a taking. As the court
explained, “When the Government is acting as a landowner, it is
entitled to avail itself of the judicial system in order to clarify or
protect its right to title of property in which it owns a stake.” In
order to establish a taking, something more than the mere
assertion of title is required.
Central Pines Land Co. v. U.S., 107 Fed.Cl. 310, 325 (2010) (cleaned up).
21
The majority concludes the State did not commit acts constituting
“something more” because during its leasing of the disputed minerals it made
known “the Land Board was leasing all mineral interests it had in the
identified quarter sections, if any, but did not warrant title to the acreage
leased,” and “did not warrant title to the property.” Majority opinion, ¶¶ 28, 31,
respectively. On this point, I take the contrary view.
First, I do not agree the fact that the State and the oil companies had
contracts permitting a dynamic expansion or contraction of the minerals under
lease excuses the State from takings liability to the true owners for leasing
more minerals than the State owns. To conclude otherwise would allow the
government to indiscriminately claim ownership or control over private
property as long as a lease or an administrative regulation permitted the over-
leasing activity. Second, in some circumstances the State’s act of signing leases
when it did not know and would not (or could not) defend its title to minerals
could be the “something more” required to support a temporary takings claim.
As discussed in a different context, it is the government’s action, rather
than their description or intent, that determines a liability for taking:
In whatever other context it may be useful, moreover,
determination of whether the United States has acted in a
proprietary or governmental-sovereign capacity is of little, if any,
use in Fifth Amendment-just compensation analysis. The purpose
and function of the Amendment being to secure citizens against
governmental expropriation, and to guarantee just compensation
for the property taken, what counts is not what government said
it was doing, or what it later says its intent was, or whether it may
have used the language of a proprietor. What counts is what the
government did. Hughes v. Washington, 389 U.S. 290, 298, 88 S.Ct.
438, 443, 19 L.Ed.2d 530 (Stewart, J., concurring) (1967). What the
government appears to have done here was to prevent Yuba from
mining minerals for about six years.
Yuba Goldfields, Inc. v. U.S., 723 F.2d 884, 889-90 (1983).
I generally agree with the court in Central Pines when it stated the
government can “avail itself of the judicial system in order to clarify or protect
22
its right to title of property in which it owns a stake.” 107 Fed.Cl. at 325. In
this case the State disputed title to the minerals, leased the disputed minerals
(resulting in royalty payments being suspended and held without interest
under N.D.C.C. § 47-16-39.1(1)), and engaged in extensive litigation. The
litigation position by the State generally, and by the State Engineer in
particular, included actions that were much more than the assertion or
protection of title. Rather, as we explained in Wilkinson II, the State Engineer
advanced arguments that were clearly contrary to controlling legislation. We
held, “The State Engineer’s interpretation would dismantle the statutory
process and instead would require each mineral interest claimant to sue and
prove the property is subject to inundation by the Pick-Sloan Missouri basin
project dams, and not the Missouri River. Clearly, that was not the legislature’s
intent.” Wilkinson v. Board of University & School Lands, 2020 ND 179, ¶ 34,
947 N.W.2d 910 (Wilkinson II); Sorum v. State, 2020 ND 175, ¶ 40, 947 N.W.2d
382. Nevertheless, over-aggressive litigation tactics occurring seven or eight
years after the title dispute arose does not support a finding of temporary
taking in this case. See majority opinion, ¶ 44.
The Fifth Amendment does not prevent the government from taking
private property; rather, the government cannot take property without
payment of just compensation. The court in Central Pines explained:
The Fifth Amendment specifies that private property shall
not be taken by the government without “just compensation.” U.S.
Const. amend. V. Thus, when the government is found to have
taken property, just compensation must be paid as damages. In the
context of a temporary taking, the proper measure of just
compensation is generally recognized to be the rental value of the
property (sometimes simply referred to as “fair rental value”) over
the period of time for which it was taken. Yuba Natural Res., Inc.
v. United States (“Yuba III”), 904 F.2d 1577, 1581 (Fed.Cir.1990);
see also Pettro v. United States, 47 Fed.Cl. 136, 138 (2000)
(compensation for temporary taking is measured by fair market
rental value of the property, but not lost profits); Heydt v. United
States, 38 Fed.Cl. 286, 309 (1997) (proper measure of just
compensation for a temporary taking is the fair market rental
value of the property). Fair rental value is “the price a willing
23
lessee would pay to a willing lessor, for the period of the temporary
taking.” Heydt, 38 Fed.Cl. at 309.
107 Fed.Cl. at 328.
In this case, the plaintiffs leased their property, received bonus payments
for those leases, and ultimately received royalties held in suspense during
pendency of this 10-year dispute with the State. See majority opinion, ¶¶ 29-
30. The State signed leases and received bonus payments under nearly the
same terms as the plaintiffs. Therefore, under the measure of damages
described in Central Pines, the plaintiffs have no recoverable damages for these
items. The plaintiffs leased their minerals in 2010. It was not until after 10
years of litigation, and the 2020 rejection of the State’s claims in Wilkinson II,
that the plaintiffs finally received their royalty payments that were suspended
under N.D.C.C. § 47-16-39.1(1).
The 10-year delay in the plaintiffs receiving their royalty payments was
directly due to the State’s claims and conduct. Without the State’s claims and
conduct, the plaintiffs would have received their royalty payments starting in
2010. A State’s interference with or control over receipt and disposition of
money generally, and interest in particular, can be a taking. See Phillips v.
Washington Legal Foundation, 524 U.S. 156, 169-170 (1998) (involving dispute
over control of interest on lawyer trust accounts and whether diversion from
owner constituted taking); Hodel v. Irving, 481 U.S. 704, 715 (1987) (noting
“the right to pass on” property “is itself a valuable right”).
In this case, the State originally was faced with unresolved title
questions about lands under and adjacent to the historic Missouri River. The
State was entitled to pursue its title claims to that disputed property, just as
the plaintiffs were entitled to pursue their interests in the property. These
competing title claims have led to this litigation, which again both parties are
entitled to pursue absent “something more.”
The plaintiffs argue “something more” exists in this case and included a
near 10-year suspension of their royalties. However, suspension of the royalties
was lawful under N.D.C.C. § 47-16-39.1(1) due to the title dispute, which of
24
course was the subject of this protracted litigation. In turn, the litigation was
a proper means for the parties to resolve their competing title claims, so that
lawful suspension of royalties by itself should not be viewed as the additional
State action necessary to turn a title dispute into a taking.
The plaintiffs further contend the State did “something more” when it
leased portions of the disputed property that already had been leased by the
plaintiffs. I agree with the majority, “the plaintiffs fail to demonstrate the
State’s leases interfered with any of their property rights.” Majority opinion,
¶ 37. As a result, and under the facts of this case, “[a]t no point in time has the
State prevented or hindered the plaintiffs’ ability to exercise the primary
incident of mineral ownership, issuing oil and gas leases, which they have done
throughout the years.” Id. at ¶ 42.
Finally, the State leased the disputed property consistent with the 2010
Phase I study of the Ordinary High Water Mark (OHWM). The OHWM
changed under the later Phase II study and under enactment of Chapter 61-
33.1, N.D.C.C., and the State modified its title claim accordingly. While the
State’s leasing and initial claim of title can be viewed in retrospect as over-
inclusive, under the process used to establish the currently-recognized OHWM,
I agree with the majority that the required “something more” does not exist,
and that no temporary taking of the plaintiffs’ property occurred.
Daniel J. Crothers
25 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482955/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 191
Troubadour Oil and Gas, LLC, Petitioner
v.
The Honorable Joshua B. Rustad, Judge of the District
Court, Northwest Judicial District, Williams County and
Northern Oil and Gas, Inc., Respondents
No. 20220196
Petition for Supervisory Writ.
PETITION FOR SUPERVISORY WRIT GRANTED.
Opinion of the Court by Crothers, Justice.
Lisa M. Hettich, Williston, ND, for petitioner.
Nick A. Swartzendruber, Denver, CO, for respondent Northern Oil and Gas,
Inc.
Troubadour Oil & Gas v. Rustad, et al.
No. 20220196
Crothers, Justice.
[¶1] Troubadour Oil and Gas, LLC, petitions this Court for a supervisory writ
after the district court issued a discovery order requiring Troubadour to
disclose all communications between Troubadour’s counsel and Troubadour’s
owner who also is identified as an expert witness. Troubadour argues the court
erroneously required the disclosure of confidential communications protected
by the attorney-client privilege and the work product doctrine. We grant the
petition and direct the district court to vacate the portion of its March 10, 2022
discovery order requiring disclosure of all communications between
Troubadour’s counsel and Troubadour’s owner because the court abused its
discretion and misapplied the law by relying on federal rules and case law not
applicable in this state court proceeding. We also vacate the court’s award of
attorney’s fees and remand for reconsideration.
I
[¶2] In June 2020, Northern Oil and Gas, Inc. sued Troubadour for breach of
contract, alleging the parties agreed via email to the purchase and sale of an
oil and gas lease. Troubadour denied the allegations.
[¶3] The parties stipulated to a scheduling order agreeing Northern Oil would
disclose any expert witnesses by February 26, 2021, and Troubadour would
disclose any experts by March 26, 2021. Troubadour designated Keria
Robertson, its president and sole member, as its expert witness. Troubadour’s
discovery disclosure stated Robertson “may testify as both a fact witness and
expert witness at the trial.”
[¶4] During discovery, Northern Oil requested “all documents in Keria
Robertson’s expert file,” including “all communications with Troubadour’s legal
counsel.” Troubadour objected, claiming the request was overbroad and sought
privileged information protected as attorney-client privileged communications
and attorney work product. After a hearing on Northern Oil’s motion to compel,
1
the district court ordered Troubadour to disclose all communications between
Troubadour’s counsel and Robertson:
“The Court is troubled by Troubadour’s objections to this
Request because, counsel for the parties had stipulated to the
exchange of expert files. On the agreed date, Northern served its
experts’ files consistent with the parties’ stipulation but
Troubadour did not serve anything. Troubadour objected to
Northern’s formal Request in its May 3, 2021 Responses to
Northern’s Second Discovery and again produced nothing.
“Northern’s request for Ms. Robertson’s expert file is
relevant, as the parties have recognized in their stipulations.
Further, this Request conforms to the widely recognized rule that
permits discovery into ‘the facts or data considered by the witness
in forming’ his or her opinions. Fed.R.Civ.P. 26(a)(2)(B)(ii); Polum
v. North Dakota Dist. Court, Southwest Judicial Dist., 450 N.W.2d
761, 763 (N.D. 1990). Troubadour is ordered to respond to this
Request.
“The Court denies Troubadour’s attempts to assert attorney-
client privilege and the work product doctrine. The cases speaking
on non-retained experts hold that a party may not simultaneously
designate a client’s employee or principal as an expert witness, and
also assert the attorney-client privilege and work product
protections to shield communications with counsel. See, e.g., U.S.
v. Sierra Pac. Indus., 2011 U.S. Dist. LEXIS 60372 (E.D. Ca. May
26, 2011); Davies v. United States EPA, No. CV 17-115-H-BMM-
JTJ, 2020 U.S. Dist. LEXIS 92611, at *5 (D. Mont. May 26, 2020);
Cooper v. Meritor, Inc., 2018 U.S. Dist. LEXIS 20103, 2018 WL
10467776, *5 (N.D. Miss. Feb. 7, 2018); Garcia v. Patton, Civil
Action No. 14-cv-01568-RM-MJW, 2015 U.S. Dist. LEXIS 192861,
at *9 (D. Colo. July 9, 2015); PacifiCorp v. Northwest Pipeline GP,
879 F. Supp. 2d 1171, 1211-1214 (D. Ore. July 16, 2012). Both
Northern and this Court are entitled to review any and all
communications between Troubadour’s counsel and Ms. Robertson
in order to understand potential influence on her opinions.
Troubadour is ordered to produce the documents sought in Request
for Production (Set 2) No. 2.”
2
[¶5] The district court awarded Northern Oil its attorney’s fees and costs
incurred in connection with Troubadour’s failure to comply with discovery.
Troubadour claims it has timely complied with the district court’s orders on
discovery except for disclosure of “any and all communications between
Troubadour’s counsel and Ms. Robertson,” which is the subject of this petition.
II
[¶6] Troubadour requests a supervisory writ. This Court’s authority to issue
supervisory writs derives from N.D. Const. art. VI, § 2. “The power to issue
such a writ is discretionary and is used only to rectify errors and prevent
injustice in extraordinary cases where no adequate alternative remedy exists.”
St. Alexius Med. Ctr. v. Nesvig, 2022 ND 65, ¶ 6, 971 N.W.2d 878. Troubadour
argues a supervisory writ is appropriate and necessary because the district
court’s order to produce privileged communications is not appealable, leaving
Troubadour with the untenable choice of disclosing privileged information or
be held in contempt for failure to follow a court order. See N.D.R.Civ.P. 37(b).
We agree and conclude this case is appropriate for exercising our supervisory
jurisdiction.
III
[¶7] Troubadour asserts the communications compelled by the district court
are privileged. Troubadour contends it did not waive the attorney-client
privilege by disclosing Robertson as its expert witness. Troubadour also claims
the communications between its attorney and Robertson are limited by the
discovery provisions relating to work product and testifying experts.
[¶8] We review orders compelling discovery under the abuse of discretion
standard. PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2016 ND 114, ¶ 9,
881 N.W.2d 216. A district court abuses its discretion when it acts in an
unreasonable, arbitrary, or unconscionable manner, when it misinterprets or
misapplies the law or when its decision is not the product of a rational mental
process leading to a reasoned decision. Id.
3
A
[¶9] Rule 26(b)(1)(A), N.D.R.Civ.P., provides the general scope of discovery.
Under N.D.R.Civ.P. 26(b)(1)(A), “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense, including
the existence, description, nature, custody, condition, and location of any
documents, electronically stored information, or other tangible things and the
identity and location of persons who know of any discoverable matter.”
[¶10] The attorney-client privilege is governed by N.D.R.Ev. 502. “A client has
a privilege to refuse to disclose and to prevent any other person from disclosing
a confidential communication made for the purpose of facilitating the rendition
of professional legal services to the client.” N.D.R.Ev. 502(b). A “representative
of the client” is a person having authority to act on legal advice rendered for a
client and is able to make or receive a confidential communication while acting
in the scope of employment for the client. N.D.R.Ev. 502(a)(4). The general rule
of privilege under N.D.R.Ev. 502(b) “is intended to encompass all
communications necessarily made in the performance of legal services, not just
those made between a client and his attorney.” N.D.R.Ev. 502, Explanatory
Note.
[¶11] Under N.D.R.Ev. 510(a), a holder of the privilege may waive the privilege
if the person “voluntarily discloses or consents to disclosure of any significant
part of the privileged matter.” Whether the attorney-client privilege is waived
depends on the circumstances of each case. Farm Credit Bank of St. Paul v.
Huether, 454 N.W.2d 710, 722-23 (N.D. 1990).
B
[¶12] Troubadour asserts that in addition to being privileged, the
communications between its attorney and Robertson are limited by the work
product discovery provisions in N.D.R.Civ.P. 26(b)(3)(A) and constraints on
discovery from testifying experts under N.D.R.Civ.P. 26(b)(4)(A). The work
product privilege in N.D.R.Civ.P. 26(b)(3)(A) provides:
“(3) Trial Preparation Materials.
4
(A) Documents and Tangible Objects. Ordinarily, a party may not
discover documents and tangible things that are prepared in
anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant,
surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(5),
these materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need of the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.”
Rule 26(b)(4)(A), N.D.R.Civ.P., on discovery from testifying experts provides:
“(4) Trial Preparation Experts.
(A) Expert Who May Testify. Discovery of facts known and opinions
held by experts, otherwise discoverable under Rule 26(b)(1) and
acquired or developed in anticipation of litigation or for trial, may
be obtained only as follows:
(i) a party may through interrogatories require any other
party to identify each person whom the other party expects
to call as an expert witness at trial; to state:
• the subject matter on which the expert is expected to
testify;
• the substance of the facts and opinions to which the
expert is expected to testify; and
• a summary of the grounds for each opinion;
(ii) a party may depose any person who has been identified
as an expert witness whose opinions may be presented at
trial unless the court finds, on motion, that the deposition is
unnecessary, overly burdensome, or unfairly oppressive.”
[¶13] In Polum v. N.D. Dist. Ct., Stark Cty., S.W. Jud. Dist., 450 N.W.2d 761,
763 (N.D. 1990), this Court addressed discovery of expert information and the
5
work product doctrine under N.D.R.Civ.P. 26(b)(3). In looking at federal case
law for guidance because at that time the North Dakota rule was similar to the
federal rule, this Court concluded the work product doctrine does not apply to
the discovery of expert information. Id. “[D]iscovery of expert information is
governed by Rule 26(b)(4), not the work-product provisions of Rule 26(b)(3).”
Id. (citing Bogosian v. Gulf Oil Corp., 738 F.2d 587, 594 (3d Cir. 1984); USM
Corp. v. American Aerosols, Inc., 631 F.2d 420, 424 (6th Cir. 1980)).
[¶14] This state’s discovery rules relating to the work product doctrine and
discovery of expert information discussed in Polum have remained relatively
unchanged. In general, our current rules on the work product doctrine and
expert information were part of the 1970 amendments to Fed.R.Civ.P. 26.
Polum, 450 N.W.2d at 763. Apart from allowing testifying experts to be
deposed, the North Dakota Joint Procedure Committee has recommended
against the wholesale adoption of the 1993 and 2010 amendments to
Fed.R.Civ.P. 26 relating to expert disclosures and discovery of expert
information. See Minutes of Joint Procedure Committee 21-22 (September 29-
30, 1994); Minutes of Joint Procedure Committee 10-12 (January 26-27, 1995);
Minutes of Joint Procedure Committee 10-14 (May 12-13, 2016); Fed.R.Civ.P.
26(a)(2); Fed.R.Civ.P. 26(b)(4)(B) and (C).
[¶15] Some federal courts construed the expert disclosure requirements in the
1993 amendments to Fed.R.Civ.P. 26 as “[authorizing] discovery of all
communications between counsel and expert witnesses and all draft reports.”
Fed.R.Civ.P. 26, Advisory Committee Notes to 2010 Amendments. The 2010
amendments addressed that issue by “[providing] work-product protection
against discovery regarding draft expert disclosures or reports and—with
three specific exceptions—communications between expert witnesses and
counsel.” Id.
[¶16] Robertson serves dual roles in this action. First, she is a representative
of the client, Troubadour, under N.D.R.Ev. 502(a)(4). As the client
representative, Robertson is capable of asserting the attorney-client privilege,
can send and receive confidential communications from Troubadour’s attorney,
and can receive work product from counsel. Communications from
6
Troubadour’s attorney to Robertson as Troubadour’s representative that
include the attorney’s “mental impressions, conclusions, opinions, or legal
theories . . . concerning the litigation” are protected work product under
N.D.R.Civ.P. 26(b)(3)(B). Unless waived, the attorney-client privilege and work
product doctrine apply to Troubadour’s attorney and Robertson as
Troubadour’s representative.
[¶17] Second, Robertson was disclosed as a testifying expert under
N.D.R.Civ.P. 26(b)(4)(A). To discover information from Robertson in her role as
an expert witness, Northern Oil must comply with N.D.R.Civ.P. 26(b)(4)
because the work product provisions of N.D.R.Civ.P. 26(b)(3) do not apply to
the discovery of expert information. Polum, 450 N.W.2d at 763. Under
N.D.R.Civ.P. 26(b)(4)(A), “[d]iscovery of facts known and opinions held by
experts . . . may be obtained only” through interrogatories and depositions.
[¶18] Rule 26 provides three areas of discoverable information from an expert:
(1) the subject matter of the expert’s testimony; (2) the substance of the facts
and opinions on which the expert is expected to testify; and (3) a summary of
the grounds for each opinion. N.D.R.Civ.P. 26(b)(4)(A)(i). However, Rule 26 does
not address what is discoverable within those three areas. Therefore, all of an
expert’s information related to the three areas of N.D.R.Civ.P. 26(b)(4)(A)(i) is
discoverable through interrogatories and depositions if otherwise within the
scope of permissible discovery. In addition, because the work product
provisions of N.D.R.Civ.P. 26(b)(3) do not apply to an expert, information
related to N.D.R.Civ.P. 26(b)(4)(A)(i) is discoverable if provided to an expert by
a party’s attorney and not another source. See Knoff v. American Crystal Sugar
Co., 380 N.W.2d 313, 320 (N.D. 1986) (overruled on other grounds) (“The
attorney-client privilege should be applied only to protect communications, not
facts. Experts’ reports are communications which may fall within the scope of
the privilege. But the experts’ observations and conclusions themselves,
whether or not contained within a report, and even if based to some extent on
communications of the client, are facts which, if relevant, constitute evidence.”)
(quoting Friedenthal, Discovery and Use of an Adverse Party’s Expert
Information, 14 Stan.L.Rev. 455, 468-469 (1962)).
7
[¶19] Northern Oil has not directed us to any North Dakota rule stating
Troubadour waived the attorney-client privilege or the work product doctrine
by simply disclosing Robertson as its expert witness. Nor has Northern Oil
pointed to any facts in the record, aside from Troubadour’s expert disclosure,
demonstrating the work product and attorney-client privileges were waived.
Robertson is Troubadour’s client representative, and we do not agree
Troubadour made a per se waiver of any privileges by also disclosing her as its
testifying expert.
[¶20] In its order denying Troubadour’s assertion of privilege and requiring
disclosure of all communications between Troubadour’s attorney and
Robertson, the district court did not analyze N.D.R.Civ.P. 26 or N.D.R.Ev. 502
and 510. Instead, the court relied on the current version of Fed.R.Civ.P.
26(a)(2)(B) and federal district court decisions. However, the version of the
federal rule relied on by the district court has not been adopted in North
Dakota. Rather, the federal rule cited and quoted by the court, Fed.R.Civ.P.
26(a)(2)(B), requires that experts submit a written report. The federal court
cases discuss the 2010 amendments to Fed.R.Civ.P. 26, which also have not
been adopted in this state. See Davies v. United States EPA, 2020 WL 2736576
(D. Mont. 2020); Cooper v. Meritor, Inc., 2018 WL 10467776, *5 (N.D. Miss.
2018); Garcia v. Patton, 2015 WL 13613521, *3 (D. Colo. 2015); PacifiCorp v.
Northwest Pipeline GP, 879 F. Supp. 2d 1171, 1212-13 (D. Ore. 2012); U.S. v.
Sierra Pac. Indus., 2011 WL 2119078 (E.D. Cal. 2011). The court’s reliance on
Fed.R.Civ.P. 26(a)(2)(B) and federal cases construing discovery provisions not
adopted in this state is a misapplication of law and an abuse of discretion. We
therefore reverse that part of the district court’s March 10, 2022 discovery
order requiring Troubadour to disclose “all communications between
Troubadour’s counsel and Ms. Robertson.”
[¶21] The district court’s order compelling discovery mentions what the district
court described as the parties’ stipulation to exchange expert files. Other than
a stipulation for entry of a Rule 16 scheduling order containing the dates on
which the parties would disclose experts, a stipulation to exchange expert files
is not in the record. Neither the court’s order nor the parties’ briefs discussed
or defined “expert file” and we therefore have no basis for concluding the
8
parties agreed to deviate from provisions of the North Dakota rules of evidence
and the rules of civil procedure.
[¶22] Troubadour also requests this Court vacate the district court’s award of
attorney’s fees to Northern Oil. We vacate the attorney’s fees award and
remand for reconsideration of the amount because the order compelling
discovery encompassed more than the communications between Troubadour’s
counsel and Robertson.
IV
[¶23] We grant Troubadour’s petition and vacate that portion of the district
court’s March 10, 2022 discovery order requiring disclosure of all
communications between Troubadour’s counsel and Robertson. We also vacate
the court’s award of attorney’s fees and remand for reconsideration.
[¶24] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
9 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489474/ | MEMORANDUM
CLIVE W. BARE, Bankruptcy Judge.
Cross motions for summary judgment have been filed in this dischargeability action. Plaintiffs contend a judgment in favor of John Harrison Hill and against Theodore Wesley Hill, the debtor, initially obtained on July 21, 1950, and timely renewed as required by statute,1 should be excepted from discharge pursuant to § 523(a)(2)(A) of the Bankruptcy Code. Plaintiffs allege that the indebtedness represented by the judgment was incurred by false pretenses, a false representation, and fraud and that a previous state court decision is res judicata2 as to the question of *53dischargeability. The debtor disputes the applicability of the res judicata doctrine and contends the plaintiff law firm of Amb-rose, Wilson and Grimm does not have standing to challenge his discharge because the firm is not his creditor.
I
The debtor’s voluntary chapter 7 petition was filed on June 25,1982. Schedule A-3— Creditors Having Unsecured Claims Without Priority — of the debtor’s petition identifies the following parties as creditors for the amounts stated:
No other creditors were listed in the debt- or’s schedules. It is assumed by the court that the individual creditors are the heirs of the estate of John H. Hill. None of them have requested that the judgment in question be excepted from the debtor’s discharge.
The only proof of claim which has been filed to date identifies Ambrose, Wilson & Grimm and David Benner, Administrator Ad Litem for Estate of John H. Hill, as creditors having a claim for $50,933.25. The proof of claim is dated and filed on July 22, 1982, and signed by Samuel W. Rutherford, an associate of the law firm of Ambrose, Wilson and Grimm.
On August 23, 1982, a complaint to determine dischargeability was filed in which the plaintiffs are identified as the law firm of Ambrose, Wilson and Grimm and David R. Brenner, Administrator Ad Litem for the Estate of John H. Hill.
R. David Benner, not David R. Brenner, was the administrator ad litem for the estate of John H. Hill in the most recent action to renew the judgment which is the subject of this action against the debtor. Benner was advised that Ambrose, Wilson and Grimm intended to commence the instant dischargeability action, but he considered his appointment as administrator ad litem concluded with the entry of the March 17, 1982, Final Decree renewing the judgment. According to Benner’s affidavit, he has not had any contact with the heirs of the estate of John H. Hill nor has he been asked to take any action for the defendant’s estate. Thus, the Ambrose law firm is really the only plaintiff seeking to except the judgment from discharge.
II
Preliminarily, the court must determine whether the plaintiff is a creditor of the debtor. If not, the court must decide whether plaintiff may request that a debt owed to a third party be excepted from the debtor’s discharge.
A Final Decree, entered on July 21,1950, by the Knox County Chancery Court provides that John Harrison Hill is entitled to recover from T. Wesley Hill, the debtor, “Seven Thousand Dollars ($7,000.00), together with interest thereon ... plus Attorneys’ fees of fifteen per cent (15%), which in the amount of $1,306.06 the Court finds reasonable in this cause .... ” This decree was confirmed by an order of the Court of Appeals of Tennessee dated January 10, 1951.3 The appellate court order recites in part: “On motion of Ambrose & Wilson, Attorneys for John Harrison Hill, a *54lien on the above recovery for their reasonable attorneys’ fee is hereby declared and allowed.”
On January 7,1952, a Debtor’s Petition in Bankruptcy was filed by Theodore Wesley Hill in the Eastern District of Tennessee. The bankrupt scheduled three debts — a $10,000.00 judgment (the progenitor of the judgment at issue), an unsecured debt in the amount of $100.00 to Park National Bank, and a priority debt of $125.00 owed to the municipality of Knoxville. Plaintiff was not listed as a creditor in the bankrupt’s schedules. A Discharge of Bankrupt was entered on April 30, 1952.
John H. Hill filed a complaint on March 5, 1960, to renew his judgment against the debtor, his brother. The debtor answered by specifically pleading the previous entry of his bankruptcy discharge. The Knox County Chancellor concluded that the judgment was nondischargeable, as evidenced by a Final Decree dated April 18, 1962. This decree was affirmed by the Court of Appeals of Tennessee. The order of affirmance recites in part: “A lien is hereby declared and allowed Ambrose, Wilson and Saulpaw, attorneys of record, for their reasonable attorney fee on above recovery.”
The judgment in question was renewed again at the instance of John H. Hill on September 9, 1971. Although John H. Hill died on a date undisclosed in the record, the judgment was renewed for the third time on behalf of his estate when another Final Decree was entered on March 17, 1982, in the Knox County Chancery Court.
None of the decrees in this case provide that the debtor is indebted to the plaintiff. Two separate decrees of the Court of Appeals of Tennessee explicitly provide for imposition of a lien on behalf of the plaintiff against the judgment at issue. An attorney who commences a suit is indeed entitled to a lien upon his client’s cause of action. Tenn.Code Ann. § 23-2-102 (1980). But, an attorney’s lien against either his client’s cause of action or judgment is not the functional equivalent of an indebtedness owing to the attorney by the client’s obligor. Tenn.Code Ann. § 23-2-102 (1980) does not obligate a defendant to pay the plaintiff’s attorney fees. Illinois Cent. R.R. v. Wells, 104 Tenn. 706, 59 S.W. 1041 (1900).
Although plaintiff is not a creditor of the debtor, may it nevertheless seek a dischargeability determination of an obligation of the debtor to a third party? This question must be answered in the negative. Rules Bankr.Proc.Rule 409, 11 U.S.C.A. recites in part:
(a) Proceeding to Determine Discharge-ability
(1) Persons Entitled to File Complaint; Time for Filing in Ordinary Case. A bankrupt or any creditor [4] may file a complaint with the court to obtain a determination of the dischargeability of any debt.
Interim Rule 4003 provides that Bankruptcy Rule 409(a) continues to be applicable in chapter 7 cases. Rule 409(a) is not inconsistent with § 523(c) of the Bankruptcy Code, which enacts:
[T]he debtor shall be discharged from a debt specified in paragraph (2) ... of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2) ... of subsection (a) of this section, (emphasis added)
*55Bankruptcy Rule 409(a) and § 523(c) of the Bankruptcy Code require that any party, other than the debtor, seeking a dis-chargeability determination must be a creditor of the debtor. Otherwise, a party does not have standing to challenge the dis-chargeability of an obligation.5
The holding of the court, which is clearly supported by the legislative history6 of § 523(c) of the Code, obviates the necessity of reaching the question of the applicability of the res judicata doctrine.
The motion for summary judgment of the plaintiff is denied, and the debtor’s motion for summary judgment is granted.
. Tenn.Code Ann. § 28-3-110 (1980) enacts in pertinent part: “The following actions shall be commenced within ten (10) years after the cause of action accrued: ... (2) Actions on judgments and decrees of courts of record of this or any other state or government . .. . ”
. Specifically, plaintiffs submit that the debtor is precluded from relitigating the issue of dis-*53chargeability by “the doctrine of Res Judicata and/or Collateral Estoppel.”
. The opinion of the court of appeals is reported, Hill v. Hill, 34 Tenn.App. 617, 241 S.W.2d 865 (1951).
. It has been observed that the language of this rule is very broad and that it should be applied with some limitation. “It [the rule] states that the bankrupt or any creditor may file a complaint to determine the dischargeability of any debt. This obviously was not intended to mean that a creditor could file a complaint to determine the dischargeability of a debt not held by him but owned by another creditor. Creditors should have standing to file the complaint under Rule 409(a)(1) only with respect to their own debts.” 1A Collier on Bankruptcy ¶ 17.-28A[2] (14th ed. 1973).
. The court’s decision does not conflict with the decision of the Second Circuit Court of Appeals in In re Spong, 661 F.2d 6 (2d Cir.1981). In Spong the debtor had agreed to pay a portion of his former wife’s legal fees incurred in their contested divorce proceeding. The debtor’s agreement was incorporated in the final judgment of divorce. The bankruptcy court declined to except the attorney’s fee from the debtor’s discharge on the basis that, although the payment was actually in the nature of alimony, maintenance or support, it was not payable to a spouse, former spouse, or child. The bankruptcy court’s decision, which was affirmed by the district court, further provided that the attorney did not have standing to challenge the dischargeability of the obligation to him. The court of appeals disagreed, finding that the debtor’s promise to pay a portion of his former wife’s attorney fee created “a paradigmatic third party beneficiary contract.” Id. at 10.
In contradistinction to the facts in Spong, the debtor in the case before this court never promised nor undertook to pay any attorney fee owing to the plaintiff.
. “The Rules of Bankruptcy Procedure will specify, as they do today, who may request determination of dischargeability, subject, of course, to proposed 11 U.S.C. § 523(c) .... Subsection (c) requires a creditor who is owed a debt that may be excepted from discharge under paragraph (2) ... to initiate proceedings in the bankruptcy court for an exception to discharge. If the creditor does not act, the debt is discharged.” (emphasis added) S.Rep. No. 989, 95th Cong., 2d Sess. 77, 80, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5863, 5865-66.
“Subsection (c) requires a creditor who is owed a debt that may be excepted from discharge under paragraph (2) ... to initiate proceedings in the bankruptcy court for an exception to discharge. If the creditor does not act, the debt is discharged.” (emphasis added) H.Rep. No. 595, 95th Cong. 2d Sess. 365, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6321. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489475/ | FINDINGS OF FACT, CONCLUSIONS OF LAW, MEMORANDUM OPINION AND FINAL JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 11 case and the matter under consideration is a two count complaint filed by James P. Shafer (the Plaintiff). Count I of the complaint seeks modification of the automatic stay, or in the alternative, adequate protection, pursuant to § 362(d)(1) of the Bankruptcy Code. The Plaintiff also seeks a determination of non-dischargeability of debt under § 523(a)(2)(A) of the Code. However, only Count I of the Complaint is under consideration at this time.
The facts upon which this matter may be resolved as adduced at trial can be summarized as follows:
The Plaintiff was the original owner of certain undeveloped land located in Braden-ton, Florida. In 1976, he acquired construction financing from First City Federal Savings and Loan Association (First City) in order to build two triplexes on the subject property. To secure the financing he granted to First City first and second mortgage liens, on which there is a current outstanding principal balance of approximately $42,500. That obligation presently accrues at $521 per month of which $450 constitutes interest. On March 22, 1979, while the Debtor was President of Crown Realty of Manatee, Inc. (Crown), the Plaintiff sold the property to Crown, taking a note and purchase money mortgage on the property in the face amount of $29,878.45. The principal balance on the note is presently $28,000. The Plaintiff also remained personally liable on the first and second mortgages held by First City.
Contemporaneously with the purchase, Crown obtained a loan from Exchange National Bank of Manatee County in the original principal amount of $44,550 and gave in return a mortgage and note. The current balance is approximately $44,030. Exchange recorded the mortgage on the following day, but the Plaintiff did not record his mortgage for approximately one week. On November 17, 1981, Crown transferred the property to the Debtor by quit-claim deed.
The property consists of two lots on which are situated two triplexes, each being 2,220 square feet in size. The Plaintiff alleges that the property is zoned only for duplexes; however, the record is devoid of any evidence to substantiate that allegation. It is the contention of the Plaintiff that there is no equity in the property and that it is not needed for reorganization. The Debtor, of course, disputes both contentions.
The appraisals of the property from each party were widely divergent, ranging from $102,000 to $171,000. The comparables upon which each party based his appraisals were too far removed from the present case: the comparable being consid*57erably different in size or location than the property in question and the time and sales remote. As such, the Plaintiff failed to carry the burden of proof of lack of equity, as required by § 362(g).
Even assuming that there is a lack of equity, the Court is satisfied that the property is needed for reorganization. Being rental property, the income constitutes an asset valuable to the Debtor in his efforts to reorganize. In any case, the Debt- or has filed a Disclosure Statement and a Plan of Reorganization, the approval of which is pending at this time. Therefore, the Court is satisfied that the Debtor should be allowed an opportunity to obtain approval of the Statement and the Plan and to effectuate the Plan of Reorganization.
This leaves for consideration the question of adequate protection which the Plaintiff alternatively requested in his Complaint. The Court previously entered an Order directing the Debtor to make the monthly contractual payments to the Plaintiff plus interest on all arrearages at the rate of 15% per annum. The Plaintiff contends that he is entitled to receive $1,300 per month from the Debtor, that amount being the total amount of monthly debt which accrues to the Plaintiff’s detriment. The Debtor contends that he should be required to pay only the amount previously ordered by the Court, plus the amount of monthly interest which accrues on the obligation to First City since the Plaintiff remains personally liable on that obligation.
Having considered all relevant facts and surrounding circumstances, the Court is satisfied that the Debtor should pay the amount of $1300.00 to the Plaintiff as adequate protection. Should the Debtor default, the Plaintiff may apply to the Court, ex parte, upon short notice for a lifting of the automatic stay.
Having disposed of Count I of the Plaintiff’s Complaint, there remains for adjudication Count II by which the Plaintiff seeks a determination of non-dischargeability of debt. This matter shall be set for a pretrial conference, at which time all pending motions shall be heard.
In accordance with the foregoing, it is
ORDERED, ADJUDGED AND DECREED that final judgment with respect to Count I of the Complaint be, and the same hereby is, entered in favor of the Debtor and against the Plaintiff; provided, however, that the Debtor shall make monthly payments to the Plaintiff of $1300.00, such payments to be due on the 10th of each month. It is further
ORDERED, ADJUDGED AND DECREED that upon default of the Debtor, the Plaintiff may apply to the Court, ex parte, upon short notice for a lifting of the automatic stay. It is further
ORDERED, ADJUDGED AND DECREED that a pretrial conference with respect to Count II of the complaint shall be held on February 14 at 10:45 a.m. in Room 703, 700 Twiggs St., Tampa, Florida. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489476/ | DECISION AND ORDER ON PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTION.
BURTON PERLMAN, Bankruptcy Judge.
We write a single decision because the complaints in each of the adversary proceedings in which plaintiff has filed the motions with which we are here concerned are identical. The underlying bankruptcy cases for the two adversary proceedings above captioned are Chapter 11 filings. The two debtors own and administer certain rental real estate. According to the allegations of the complaints plaintiff is *97mortgagee with respect to certain real estate of the two debtors and also has an assignment of rents and leases relating to the real estate. In its complaints, plaintiff seeks to have the § 362 automatic stay lifted since the debtors are in default and plaintiff wishes to proceed with foreclosure in the state courts. The complaints also seek enforcement of the assignment of rents and leases. Plaintiff has filed the present motions for preliminary injunction to compel defendants-debtors to perform their obligations under the assignment of rents and leases. The motions came on for hearing. The evidentiary record presented consisted of a written Stipulation of Facts which incorporates certain documents. Counsel offered arguments at the hearing, submitted memoranda, and at the conclusion of the hearing we reserved decision.
Mobil Corp. v. Marathon Oil Co. 669 F.2d 366 (6th Cir., 1981) sets out the factors to be considered in deciding whether or not to grant a preliminary injunction:
1) Whether the plaintiff has shown a strong or substantial likelihood or probability of success on the merits;
2) Whether the plaintiff has shown irreparable injury;
3) Whether the issuance of a preliminary injunction will cause substantial harm to others; and
4) Whether the public interests would be served by issuing the preliminary injunction.
With this before us we turn to the facts.
The evidence presented depicts a total situation of which what is before this Court is but a part. That is, the two debtors and also a third entity, Marvin R. Guttman as an individual (Guttman has not filed a petition in this Court), each holds title to certain rental real estate. All of the real estate is managed by a fourth entity, NCPM Inc. which collects the rents and pays the bills incidental to maintaining and administering the real estate. The Stipulation of Facts informs us that all of the stock of NCPM Inc. is owned by Guttman, and Guttman is also president and sole shareholder of debtor Mr. D Realty Company, and the sole general partner of debtor S & M Associates.
Three properties are involved in the two complaints, Chestnut Hill, Victory Arms Apartments and Paddock Center. Other real estate is owned by Guttman individually and by the two debtors. Rental income from the three above named properties in which plaintiff has a mortgage interest, and also rental income from the other properties to which we have just referred are all collected and commingled in the accounts of NCPM Inc. It is undisputed that payments to plaintiff mortgagee by defendants are in default.
An Assignment of Rents is part of the record before us and provides:
“NOW, THEREFORE, to induce said As-signee to make or purchase the aforesaid loan and to further secure the payment of said note and the performance of all the terms of said Mortgage Deed, ... the undersigned [Debtors] does hereby assign and transfer to Assignee, its successors and assigns, all of the rents, issues and profits now due or which may hereafter become due under or by virtue of all leases, ... provided, however, that, except for the collection of rents in advance of the time when they become due, the undersigned may collect all rents and other amounts due it under said leases as if this instrument had not been made until a default occurs either in the payment of principal or interest provided to be paid under the terms of said note . .. ”.
The Stipulation of Facts also informs us that there are mortgage liens on the real estate here involved which are senior to the interests of plaintiff. At the hearing it developed that an assignment of rents is present in connection with some or all of such senior liens.
Plaintiff filed suit in the Common Pleas Court for the appointment of a receiver to collect the rents from real estate of defendants (before the Common Pleas Court) Mr. D Realty Company, S & M Associates, and Marvin R. Guttman. An Order was entered September 30, 1982 in that case ordering *98defendants to continue to collect and fully account for all rents income and other proceeds received from their real estate and to hold such monies, making no payments or distributions therefrom. The case in which that order issued has been removed to this Court.
In approaching the question which we have to decide, whether or not a preliminary injunction should issue, it has to be kept at the forefront that debtors have resorted to the Chapter 11 mechanism available in this court as provided by statute for purposes of rehabilitating themselves. It is asserted by debtors that the revenue from property in which plaintiff has a mortgage interest is necessary for their continued operation until a plan is proposed and beyond. Rental funds are obviously necessary in such an enterprise for paying the expenses, utilities, taxes, maintenance etc. inherent in such an enterprise. Debtors-defendants argue that to grant the relief sought by plaintiff will end any hope of Chapter 11 relief because these funds are vital to that effort. We find this proposition compelling and for this reason deny the preliminary injunction sought by plaintiff.
We do not find this inconsistent with the criteria to be applied according to the Mobil case, supra. As to the first factor derived from Mobil, likelihood of success on the merits, plaintiff argues: 1) that it has a clear contractual right to have the rent from the mortgaged property segregated, 2) rents are cash collateral in which plaintiff has a security interest by reason of assignment, and no authority has been obtained from the Court as required by § 363(c)(2) to use such cash collateral, and 3) there is an order of the Common Pleas Court requiring segregation of rent from the mortgaged property, and 28 U.S.C. § 1479(c) requires this Court to enforce that Order. Plaintiff is mistaken in the direction it has taken in its argument regarding likelihood of success in the Common Pleas Court. Instead, it is the likelihood of success in persuading this Court to lift the § 362 stay which is relevant. The considerations in the two suits are quite different, for the state court proceeding is not at all concerned with adequate protection, nor does it concern itself with the mechanism provided by 11 U.S.C. § 1124(2) for the curing of defaults. The record here does not persuade us that plaintiff will necessarily or even probably succeed on the merits on final hearing in the adversary proceedings before this Court. While defendants vigorously contest it, we conclude that the rents here in question are cash collateral and we conclude further that plaintiff has an interest in it. It is true that debtors should have proceeded under § 363(c)(2) before using it, but on the showing on which this decision turns, that such cash collateral is necessary to maintain debtors afloat pending their reorganization efforts, we hold that the requirements of § 363(c)(2) are satisfied at least sufficiently to withstand the present motion. The existence of the order of the Common Pleas Court likewise cannot lead to a different conclusion, particularly since that case has been removed to this court.
The second ground in Mobil, irreparable injury to plaintiff, is said to be the most significant of the four factors required for preliminary injunction. Friendship Materials, Inc. v. Michigan Brick Inc., 679 F.2d 100 (6th Cir., 1982). Plaintiff argues that it is being irreparably injured by the collection of rents of the three properties in which it has a mortgage interest and, as it views it, the dissipation of those funds in supporting real estate other than that in which it has an interest. This money, says plaintiff, is gone forever. But there is no contention that debtors are not maintaining out of the proceeds of the funds collected and dispensed by NCPM Inc. the real estate in which plaintiff has a mortgage interest. While plaintiff argues that all it seeks to do is maintain the status quo by securing control of rents on its properties, this argument strikes us as a perversion of the term status quo. As best we can tell, denial of the motion is more calculated to continue the status quo pending final hearing.
Another factor influencing us on the question of irreparability of injury to plaintiff is that there are senior mortgages on the real estate in which plaintiff has its *99interests, and such senior lienors also have provided for assignment of rents. While we are not taken with the argument of defendants that this invalidates plaintiff’s assignment of rents, it does suggest to us that assignment of rents was not a terribly consequential right in motivating plaintiff to make the loans secured by its mortgages. It is just fortuitous that no senior lienor has sought to enforce its assignment of rents.
The third point in Mobil is whether substantial harm to others, including defendants would result from issuance of the preliminary injunction. It will be apparent from our pivitol holding above, that loss of the rents here sought by plaintiffs could jeopardize efforts of defendants for Chapter 11 rehabilitation, that we believe that substantial harm to debtors could result if we were to grant the motion. Against this, plaintiff argues that other funds for continued operation of the business of debtors is available. To the point that use of these funds for these business purposes is prohibited by an Order of the Domestic Relations Court, plaintiff asserts that this obstacle could be overcome if Guttman were to pay approximately $22,000.00 in back support and alimony. We decline to inquire into the validity of this contention. For present purposes we will look no further than the existence of such an order limiting the use of Guttman’s funds.
Finally, the last factor of the Mobil test is whether the public interest will be served by issuance of the preliminary injunction. It is our belief that it will not. The public interest with which we are here concerned is that expressed in the remedies provided in Chapter 11 of the Bankruptcy Code. To grant the motion could well frustrate the societal objectives inherent in that legislation.
Plaintiff’s motion is denied.
SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489478/ | MEMORANDUM AND ORDER
KEITH M. LUNDIN, Bankruptcy Judge.
This matter is before the court on the debtors’ motion to amend schedule B-4 to *114claim as exempt a joint federal income tax refund in the amount of $1,760. For the reasons stated below, this court concludes that debtors’ motion to amend their exemption schedules should be DENIED.
The facts are undisputed. The debtors, John Leroy Edmonds and Esther Carmen Edmonds, filed a voluntary Chapter 7 petition on December 14, 1981. In their statement of affairs, the debtors noted that they had received an income tax refund in the amount of $1,806.06 in 1980 and they estimated their 1981 tax refund to be approximately $1,500. The debtors, however, failed to claim any exemption in their estimated tax refund on schedule B-4.
The debtors’ meeting of creditors was held on January 6, 1982. The order and notice issued for the debtors’ meeting of creditors specifically stated that “unless the court extends the time, any objections to the claims of the debtor of exempt property must be filed no later than 15 days after the meeting of creditors.”
The trustee submitted a no asset report on January 25, 1982 and the debtors were granted a discharge on February 24, 1982. The court approved the trustee’s report of no assets and closed the case on April 29, 1982.
The debtors filed their 1981 tax return on March 30, 1982 calculating a tax refund of $1,760. The debtors did not inform either their attorney or the trustee of the refund. The trustee subsequently received the refund check from the IRS. On June 7,1982, the trustee filed an application to reopen the case in order to administer the proceeds of the refund check. The court granted the trustee’s application on June 17, 1982. On June 11, 1982, the debtors’ attorney filed a motion to amend schedule B-4 to claim one-half of the refund check exempt to the extent that Esther Edmonds had sufficient unused exemptions. Debtors’ attorney subsequently filed a motion on June 24, 1982 seeking to claim the entire amount of the check exempt. The trustee objected to debtors’ motion to amend as untimely filed.
This matter is controlled by the court’s recent decision in In re Williams, Case No. 380-02747 (Bankr.M.D.Tenn. Nov. 23, 1982). In Williams, the court reiterated its previous holding that the court’s order and notice issued for each debtor’s meeting of creditors requires a debtor to file any amendment to his exemption schedule within 15 days after the meeting of creditors, with a limited exception that an amendment to exempt “newly discovered” assets will be allowed without leave of court pursuant to Bankruptcy Rule 110. See In re Brewer, 17 B.R. 186, 188-189 (Bkrtcy.M.D.Tenn.), aff’d. 22 B.R. 983 (M.D.Tenn.1982).
We have noted, however, that the 15 day time limitation is not absolute. As the court explained:
The debtor in this case could make a motion to extend this time pursuant to Rule 906(b)(2) of the Federal Rules of Bankruptcy Procedure . .. Rule 906(b)(2) permits the court to grant such an extension after the deadline for filing has passed if the requesting party’s failure to timely file was the result of ‘excusable neglect.’. . .
The decision whether to allow an extension of time under Rule 906(b)(2) is a matter vested within the sound discretion of the court ... Such an extension should only be granted in exceptional circumstances. The court must consider all relevant criteria in determining whether to grant an extension of time, including. (1) the length of the delay in requesting an amendment, (2) any actual prejudice to the trustee or creditors caused by the debtor’s failure to timely claim an exemption, (3) the debtor’s perception of the claimed exemption at the time of the filing of his original schedules, (4) if the debtor was represented by counsel, whether an attorney experienced in the practice of bankruptcy law would have claimed the exemption at the time of filing of the petition, (5) the detrimental effect on the debtor’s fresh start if the amendment is disallowed and (6) whether any party in interest raises an objection to the debtor’s motion for an extension of time . .. The debtor bears the ultimate burden of proof to demonstrate that the *115circumstances merit an extension of the 15 day time period, (citations and footnotes omitted).
In re Williams, Case No. 380-02747, slip op. at 6-7.
The debtors have failed to prove excusable neglect under the standards articulated in Williams.1 The debtors have presented no compelling reason as to why they failed to comply with the amendment deadline. The debtors had sufficient knowledge of their tax refund to timely schedule an exemption. The debtors acknowledged in their statement of affairs that they had received a substantial tax refund in 1980 and estimated a 1981 tax refund of approximately $1,500. This knowledge should have caused both the debtors and their attorney to anticipate the need to schedule the refund as an exemption. The attorney could have utilized the debtors’ remaining exemptions to exempt any forthcoming tax refund.
Counsel argues that the debtors’ failure to include the exemption should be excused because the exact amount of their refund was unknown at the time their petition was filed. Although the inability to precisely ascertain the amount of an exemption will not excuse the failure to schedule a reasonable estimate of the amount, counsel’s argument is particularly unpersuasive in the instant case where counsel carefully scheduled exemptions in “any equity” and “any property covered by Tenn.Code Ann. § 26-2-103.” Counsel was obviously aware that mathematical certainty is not required to effectuate an exemption. Furthermore, the debtors had still clearer knowledge of the refund on March 30, the date their return was filed. The debtors, however, took no action to inform their attorney or the trustee of any potential assets. The debtors instead waited until the trustee had expended time and effort to reopen the estate and at least three creditors incurred expense in filing proofs of claim before soliciting an amendment to their exemption schedules. Such actions do not support a finding of excusable neglect.
The strict application of the excusable neglect standard will have an important impact on bankruptcy planning and practice. This court receives a constant barrage of requests to amend exemption schedules to add income tax refunds in cases long since closed. The strict enforcement of time limitations is “necessary to insure the efficient and orderly administration of the estate.” In re Brewer, 17 B.R. at 189; Redmond v. Tuttle, 16 B.R. 470, 472 (D.Kan.1981); In re Eldridge, 15 B.R. 594, 595 (Bkrtcy.S.D.N.Y.1981). Both the bankruptcy trustee and creditors rely on the debtors’ exemption election in determining a course of action during the pendency of the bankruptcy case. The Bankruptcy Code places an affirmative obligation on the debtors to bring themselves within the protections offered by the federal bankruptcy law. In re Williams, Case No. 380-02747 slip op. at 7. The court need not compromise the efficiency of the bankruptcy system when debtors have negligently failed to avail themselves of benefits under the Code. Therefore, attorneys practicing in bankruptcy must be particularly sensitive to the potential availability of income tax refunds and solicit all possible information from their clients, lest important exemptions be forever lost.
Accordingly, debtors’ application to amend their exemption schedules is DENIED.
IT IS SO ORDERED.
. For the purposes of this decision, the court will treat the debtors’ application as a motion for an extension of time pursuant to Rule 906(b)(2) of the Federal Rules of Bankruptcy Procedure. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489479/ | MEMORANDUM AND ORDER
CHARLES J. MARRO, Bankruptcy Judge.
The Motion of the Defendant to set aside a default judgment entered against the Defendant by this Court in the sum of $7,030.42 plus interest and costs on June 9, 1982 came on for hearing, after notice. This Motion is predicated on Rule 60 of the Federal Rules of Civil Procedure which is made applicable in Bankruptcy Court cases by Bankruptcy Rule 924. See In Re Texlon Corp. (1979 CA N.Y.) 596 F.2d 1092. Specifically, the Defendant relied on subpara-graph (b)(1) of Rule 60 which provides that the court may relieve a party or his legal representative from a final judgment, order or proceeding for mistake, inadvertence, surprise or excusable neglect. The Defendant is relying on “excusable neglect.”
The facts appear to be undisputed. On October 20, 1981 the Plaintiff instituted an adversary proceeding against the Defend*255ant to recover an alleged preference resulting from the transfer by the Plaintiff as Debtor to the Defendant of the sum of $7,030.42 in payment for an antecedent debt. A Summons and Notice of Trial was issued by this Court on October 29,1981 and on November 2, 1981 the Plaintiff made service on the Defendant of the Complaint and Summons by mailing copies, registered mail return receipt requested, to the Defendant’s address, 4648 Western Avenue, Lisle, Illinois. The Defendant never responded to this service of process. In view of this, the Attorney for the Plaintiff contacted the office of the Secretary of State of Illinois to determine the legal status of the Defendant & to ascertain who its officers and registered agent were. He learned that the Defendant, Listronics, Inc., was involuntarily dissolved on December 1,1980 and there were no records of the present officers or agents appointed to accept service.
On March 22, 1982 the Attorney for the Plaintiff again forwarded to the Defendant by certified mail return receipt requested a copy of the Summons and Complaint with a cover letter reading as follows:
“Please be advised that International Coins & Currency, Inc. will be forced to file a request for default judgment if Listronics, Inc. does not respond to the enclosed complaint and summons.
“If you wish to discuss the matter, please do not hesitate to give me a call.”
The Defendant failed to file a responsive pleading or answer and, upon the Motion for Default Judgment filed by the Plaintiff on June 4, 1982 supported by an Affidavit of Service the Court entered Judgment in favor of the Plaintiff against the Defendant in the sum of $7,030.42 plus legal interest and costs.
The Defendant’s Motion to Set Aside the Default Judgment is supported by an Affidavit of James Camenos, the president of the Defendant, which tends to establish that it has a meritorious defense to the action and also by his Affidavit which alleges that he had personal knowledge of all of the transactions having taken place between the Defendant and the Plaintiff; that the Defendant Corporation has been reinstated as Illinois corporation fully qualified under the laws of the State of Illinois with its registered agent being Patrick C. Keeley; that neither the Defendant nor any of its officers or agents have been personally served with any Complaint, Summons or other document concerning the Debtor excepting a certain document entitled “Motion for Default Judgment” which was received by the affiant on June 9, 1982 and that over the past seven months the Defendant has had a turnover in management, specifically resulting in the termination of its manager of operations, who was in charge of receiving and reviewing all mail. The Defendant is attempting to justify its failure to answer the Summons and Complaint upon the internal problems caused in its management by the termination of its manager of operations who was responsible for processing the mail.
This seems to be the basis for “excusable neglect” upon which the Defendant is relying to set aside the Default Judgment. If the Defendant is to be successful under Rule 60(b)(1), it must demonstrate the existence of mistake, inadvertence, surprise or excusable neglect and that it has a meritorious defense. Marshall v. Monroe and Sons, Inc. (1980 CA 6) 615 F.2d 1156; Usery v. Weiner Bros., Inc. (1976 DC Conn.) 70 F.R.D. 615; Central Operating Co. v. Utility Workers of America (1974 CA 4 W.V.) 491 F.2d 245. Likewise in United States v. Williams (1952 DC Ark.) 109 F.Supp. 456, it was held that a Motion to Set Aside a Judgment will not be considered until the Court has determined that the movant has a meritorious defense.
It appears from the Affidavits supporting the Motion to Vacate the Judgment that it in fact may have a meritorious defense to the action. Therefore, the only issue for determination is whether the Defendant has established “excusable neglect.” In this respect it must be recognized that Rule 60(b) is to be liberally construed to carry out the purpose of avoiding the enforcement of an erroneous judgment. Blanchard *256v. St. Paul Fire and Marine Ins. Co. (1965 CA 5 Fla.) 341 F.2d 351, cert. den. 382 U.S. 829, 86 S.Ct. 67, 15 L.Ed.2d 74; Reid v. Liberty Consumer Discount Co. (1980 E.D.Pa.) 484 F.Supp. 435; Diversified Utilities Sales, Inc. v. Monte Fusco Excavating Contracting Co., Inc. (1976 DC Pa.) 71 F.R.D. 661.
Even though 60(b) should be liberally construed in favor of the Defendant, its preoccupation with its other business affairs cannot justify or excuse its failure to plead or respond in any manner before default judgment is entered against it. Usury v. Weiner Bros., Inc., supra, 70 F.R.D. 615. Likewise, it has been held that relief is not warranted under this rule for mere carelessness on the part of the litigant or his attorney. United States v. McDonald (1980 N.D.Ill.) 86 F.R.D. 204.
In the instant case the Defendant was indeed guilty of carelessness by permitting its corporate existence to be involuntarily dissolved and in not making available an officer or agent upon whom process could be served. As a result, the Plaintiff was frustrated in its attempt to make service of the Complaint and Summons in the first instance. A second attempt at service on March 22, 1982 did in fact result in the delivery of the Summons and Complaint to the Defendant’s office without any response from the Defendant. However, it seeks to justify its failure to respond by a turnover in management which resulted in the termination of its manager of operations who processed the mail. Such a failure does not constitute excusable neglect which would entitle the Defendant to a vacation of the default judgment. Greenspun v. Bogan (1974 CA 1st Cir.) 492 F.2d 375. In this case the Court recognized that Rule 60(b) is a remedial rule which normally receives a liberal construction but at the same time it pointed out that relief should not be given to a defendant where its own internal procedures are at fault. See page 382 of opinion as follows:
“Rule 60(b) of the F.R.Civ.P. is a remedial rule which normally receives a liaberal construction from courts concerned that cases not be decided by default against parties who are inadvertently absent. Tolson v. Hodge, 411 F.2d 123, 130 (4th Cir.1969); Nicholas v. Allied Chemical Corp., 200 F.Supp. 206, 207 (E.D.Pa.1961) But the liberality construction is usually reserved for instances where error is due to failure of attorneys or other agents to act on behalf of their clients, not where the client’s own internal procedures are at fault. Supermarkets General Corp. v. Grinnell Corp., 59 F.R.D. 512, 514 (S.D.N.Y.1973).”
The Court is satisfied that the Defendant failed to plead or otherwise defend this action without sufficient excuse and that the Court properly entered Judgment by Default pursuant to 755 of the Rules of Bankruptcy Procedure.
ORDER
Now, therefore, upon the foregoing,
IT IS ORDERED that the Defendant’s Motion to Set Aside the Default Judgment entered June 9, 1982 is DENIED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489480/ | MEMORANDUM DECISION
THOMAS C. BRITTON, Bankruptcy Judge.
This chapter 11 debtor seeks avoidance of five Option Agreements (Ex. 7) given by the debtor’s ex-wife to her mother on December 18, 1981. The options relate to condominiums in St. Lucie and Martin Counties in which the debtor had and has a major equitable interest. (C.P. No. 1). The wife and the mother have each answered. (C.P. No. 18 and 26). The matter was tried on September 21 and October 5.
The debtor’s petition was filed in April, 1981. Two months later, the debtor’s wife filed an adversary complaint (No. 81-0288) seeking leave to continue her pending 1980 Ohio divorce proceeding against the debtor. The central issue there wa.s the disposition of 15 Florida properties including six condominiums held in the wife’s name, five of which are in issue here. The debtor opposed the wife’s complaint and urged that this court take jurisdiction of the entire divorce proceeding under 28 U.S.C. § 1478.
On July 10, 1981 I agreed with the wife in an Order (C.P. No. 4), which provided:
“. .. the automatic stay is modified to permit the Ohio court to proceed forthwith to determine all issues pending between the parties in the divorce action.”
In a subsequent Order on Motion for Rehearing (C.P. No. 8) I further provided:
“... if, in the judgment of the Ohio court, this court’s facilities or jurisdiction may be employed usefully to further the objectives sought by that court, jurisdiction is retained and will be exercised for that purpose.”
On December 15, 1981 the Ohio court wrote counsel that he would order the 15 Florida properties sold with 90.1% of the net proceeds to be paid to the debtor (and the remaining 9.9% to the wife) until the debtor receives a total of $227,341. Thereafter, each would receive half the net proceeds. This letter was subsequently confirmed by the entry of a formal decree and findings on January 6, 1982. Among the latter is a finding that:
“. .. all of the Florida Properties are found to be marital property and joint assets of the parties.”
The wife appealed the Ohio decision. She sought a stay in that court pending her appeal. The stay was denied. The appeal remains pending.
By an earlier order of November 6, the Ohio court invited this court to enforce the order of the Ohio court. On February 24, this court’s Order Invoking Court’s Jurisdiction, which was unopposed by the wife, provided:
“... the Court does accept jurisdiction over the property annexed hereto as Exhibit A, and deems said property to be assets of the estate of John R. Clark, Debtor
The debtor then sought leave to sell two units, one of which (Unit 1-12) served as the wife’s residence. By an order entered April 23 (C.P. No. 27), I deferred sale of the residence upon the wife’s then expressed willingness to cooperate actively in the sale of the remaining condominiums. The sale of two other units was confirmed in July and August. (C.P. Nos. 76 and 86 in the main file).
The instant proceeding was filed in August when, presumably, the debtor discovered that three days after the Ohio court’s *265letter decision, the wife had given her mother 10 year options to buy five of the six condominiums titled in the wife’s name. These options were recorded a few days later, effectively preventing sale of each of the units. The existence of these options was not disclosed during the April hearing when the wife professed willingness to help sell all the condominiums including these five, if sale of the most valuable unit, the one she occupied, was deferred.
The defendant’s threshold defense is that the five units are not a part of the debtor’s estate, because § 541(a)(5)(B) expressly includes, as property of the estate, any property that the debtor acquires within 180 days after bankruptcy as a result of a divorce decree. Defendant argues that this express inclusion implies that property acquired through a divorce decree after 180 days (as may have happened here) is not a part of the bankruptcy estate.
I reject this defense because the provision in question is for the benefit of the debtor, not creditors. Its obvious purpose is to exclude from the estate and, therefore, from the claims of creditors, certain property acquired by the debtor after bankruptcy. It forms no basis for limiting this court’s jurisdiction to protect property interests asserted by the debtor. Although this debtor could advance this argument to shield these assets from the claims of his creditors, he has not done so. In fact, these assets are essential to the plan which he has proposed in this proceeding. He is now estopped to argue that the property in question is beyond the reach of this court or his creditors.
Secondly, this court is implementing the Ohio court’s decree. In doing so this court also has that court’s duty and power, under 28 U.S.C. § 1471 and 11 U.S.C. § 105(a), to hear the debtor’s complaint that the defendants fraudulently encumbered the title of the properties which the Ohio court has ordered to be sold.
At this point, though it has not been argued, I digress to note that the Supreme Court’s extension on October 4 of the effective date of its decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., - U.S. -, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) shields this court’s present orders from challenge under that authority. The Court said:
“This limited stay will afford Congress an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication, without impairing the interim administration of the bankruptcy laws.”
Unless the effect of the stay is to confirm the exercise of this court’s jurisdiction until the expiration of the stay, every interim act of this court would be suspect and subject to jurisdictional challenge after the stay, the precise impairment which the Court was at pains to avoid.
The debtor is proceeding under § 726.01 Florida Statutes. He has carried his burden of proving these five options to be voidable fraudulent conveyances under that statute. The statute provides that any conveyance of real property is fraudulent when it is:
“... made or executed, contrived or devised of fraud, covin, collusion or guile, to the end, purpose or intent to delay, hinder or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, demands, penalties or forfeitures. . . ”.
I find that both the wife and her mother intended by the execution and recordation of these options to delay, hinder and defraud the debtor’s effort to sell these properties and recover his major equitable interest in these marital properties. I do not believe that the mother had invested any time or money in any of these properties, other than the services for which she had already been paid by the debtor. There was, therefore, no consideration for the options. The wife retained possession of the most valuable unit and retained effective control of all the properties. The options were merely a device for the wife to retain control of the property. Although the wife did not see the letter decision before these options were dated, I am confident she either knew of or anticipated the judge’s *266adverse decision when she recorded the options. The giving of the options was effectively concealed from the debtor and this court. In short, nearly all the classic badges of fraud are present here. Cleveland Trust Co. v. Foster, Fla.1957, 93 So.2d 112, 114.
By a separate judgment, as is required by § 921(a), each of the options will be declared fraudulent and, therefore, a nullity. Costs will be taxed on motion.
The trustee is authorized and directed to proceed without further delay to sell all of the Florida condominiums including the unit occupied by the wife, disregarding this court’s earlier instruction to defer the sale of that unit to the last. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489481/ | *320OPINION
EMIL P. GOLDHABER, Bankruptcy Judge:
The action before us, unique in a bankruptcy case, arises out of a claim for damages allegedly suffered by the husband-debtor (“the debtor”) as a result of an automobile accident. When his insurance company terminated the benefits he was receiving, the debtor commenced an adversary proceeding in this court against the company.
The issues before us are: (1) whether the debtor’s alleged post-concussion syndrome and the symptoms related thereto are causally related to an accident so as to warrant coverage under the debtor’s insurance policy; (2) whether the insurance company overpaid work loss benefits to the debtor between April 5, 1981, and May 19, 1981; (3) whether the debtor was entitled to any work loss benefits after May 19, 1981; and (4) whether the debtor’s claim for no-fault benefits was so excessive and fraudulent as to justify the awarding of attorney’s fees to the insurance company. We conclude that the debtor has not proven by unequivocal medical testimony that the alleged post-concussion syndrome was causally connected to the accident in question or that the physical therapy received after August 24, 1981, was for a condition caused by the accident. We further conclude that the debtor was entitled to work loss benefits for the injuries originally diagnosed after the accident up until May 19, 1981, but that the insurance company overpaid the debtor during that period in the amount of $148.62. In addition, we find that the debtor was not disabled after May 19,1981, and that, therefore, the debtor must return the $3,000.00 paid to him by the insurance company for work loss after May 19, 1981. Finally, we conclude that neither the insurance company nor the debtor are entitled to attorneys’ fees.
The facts of the instant case are as follows: 1 On November 17, 1981, Karl Heinz Dobrowsky (“the debtor”), individually and t/a the Alster Tool Company, together with his wife, filed a petition for reorganization under chapter 11 of the Bankruptcy Code. Prior thereto, on March 23, 1981, the debtor was involved in an automobile accident wherein he suffered personal injuries. At the time of said accident, the debtor was insured under an automobile insurance policy issued by The Hanover Insurance Company (“Hanover”), the defendant herein. Hanover paid all of the debtor’s medical expenses from March 23, 1981, until August 24, 1981, and furnished work loss benefits to the debtor from April 5, 1981, through August 21, 1981. However, on September 30, 1981, Hanover informed the debtor that it would no longer honor claims for no-fault benefits after August 19, 1981, because it had concluded that medical treatment was no longer necessary. Consequently, on February 5, 1982, the debtor filed the instant complaint to recover benefits under the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act (“the No-Fault Act”) alleging that: (1) he has had to continue medical treatment as a result of the March 23, 1981, accident and that, as a result of said treatment, he has incurred medical expenses in the amount of $5,252.00 for which Hanover is liable under the terms of the insurance policy and the No-Fault Act; and (2) he was unable to work, as a result of the aforesaid accident, through December 31, 1981, and that, therefore, he was entitled to work loss benefits from Hanover in the amount of $4,294.00.
It is well established under Pennsylvania law that when there is no obvious causal connection between the occurrence of the accident and the injury complained of, unequivocal medical testimony is necessary to establish the requisite causal relationship. The Superior Court of Pennsylvania has stated that:
“Where there is no obvious causal relationship, unequivocal medical testimony is *321necessary to establish the causal connection” ... But where “the disability complained of is the natural and probable result of the injuries, the fact-finding body may be permitted to so find, even in the absence of expert opinion.” . .. The two must be “so closely connected and so readily apparent that a layman could diagnose (except by guessing) the causal connection.” ... (citations omitted) (emphasis in original).
McArdle v. Panzek, 262 Pa.Super. 88, 92, 396 A.2d 658, 660 (1978) citing Smith v. German, 434 Pa. 47, 50-51, 253 A.2d 107, 109 (1969). See also Florig v. Sears, Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957); Menarde v. Philadelphia Transp. Co., 376 Pa. 497, 103 A.2d 681 (1954); Anderson v. Baxter, 285 Pa. 443, 132 A. 358 (1926); Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977); Heffer v. GAF Corp., 29 Pa.Cmwlth. 365, 370 A.2d 1254 (1977). In Pagan v. Dewitt P. Henry Company, 27 Pa.Cmwlth. 495, 365 A.2d 463 (1976), the court held that “ ‘the medical witness must testify, not that the injury or condition might have, or even possibly did, come from the assigned cause, but that in his professional opinion the result in question did come from the assigned cause.’ ” Pagan, supra, 27 Pa.Cmwlth. at 497, 365 A.2d at 464 quoting Washko v. Ruckno, Inc., 180 Pa.Super. 606, 609, 121 A.2d 456, 457 (1956).
In the case sub judice, the debtor alleges that he developed a post-concussion syndrome six (6) months after the accident and that symptoms, including chronic fatigue, depression, loss of ambition, lack of sexual drive, clumsiness, loss of appetite and excessive sleep were all a result of the aforesaid syndrome. Hanover, on the other hand, contends that the abovementioned maladies of which the debtor complains are not, as required by Pennsylvania law under the present facts, unequivocally related to the automobile accident of March 23, 1981, and that, therefore, it was justified in cutting off the debtor’s no-fault benefits on August 24, 1981. Nevertheless, the debtor continued to seek medical treatment after August 24, 1981, and incurred medical expenses of $5,252.00 which sum, the debtor maintains, is recoverable from Hanover under the no-fault provisions of the insurance policy.
Shortly after the accident in question, the debtor was diagnosed by his treating physicians as suffering from a cervical strain and sprain and a right inguinal hernia. As to the debtor’s contention that he developed post-concussion syndrome as a result of the accident, we find it dispositive that the debtor’s own treating physicians, Dr. Harvey Lisgar and Dr. Gilbert Kasirsky, never diagnosed the debtor as having post-concussion syndrome despite the fact that they saw the debtor approximately sixty-seven (67) times between the date of accident and August 24, 1982. Drs. Lisgar and Kasirsky submitted three (3) attending physician’s reports to Hanover none of which indicated a diagnosis other than a cervical strain and sprain and a right inguinal hernia. The debtor acknowledges that no treating physician had, in the six (6) months immediately following the accident, diagnosed that the debtor was suffering from post-concussion syndrome.2 Dr. Lisgar testified that neither he nor anyone connected with his office ever made a diagnosis that the debtor had post-concussion syndrome prior to August 24, 1981 (N.T. 5/10/82 at 203). Dr. Arnold Sadwin, who was called by the debtor, was the only doctor who testified that the debtor was suffering from post-concussion syndrome and this diagnosis was made six (6) months after the accident. To the contrary, Mr. Albert Levitt, a psychologist and Dr. Kenneth A. Kool, both of whom were called by Hanover, testified that a concussion or post-concussion syndrome usually clears up within the six months following the original injury rather than first manifesting itself six months after the accident (N.T. 5/11/82 at 46, 113). In addition, Dr. Leonard Klinghoffer testified that he would not expect the first symptoms or the first manifestations of a concussion to develop six months after the original injury (N.T. 5/11/82 at 158, 59), In any event, Dr. Sadwin testified *322on cross-examination that the debtor’s present maladies could be related to other factors such as the debtor’s declining business (N.T. 5/10/82 at 69). After carefully reviewing the medical testimony, we cannot conclude, as we must under Pennsylvania law, that the debtor’s present injuries were directly related to the accident in question. On the contrary, the record indicates that there are other equally possible causes of the debtor’s current injuries, such as the debtor’s failing business and the debtor’s pre-existing degenerative arthritis. In short, the debtor has not met his burden of proving, by unequivocal medical evidence, that his alleged post-concussion syndrome and accompanying symptoms were caused by the March 23, 1981, accident, especially in light of the fact that there is, in the instant case as there was in McArdle, supra, a significant time lag between the accident the injury claimed.
As to the debtor’s contention that physical therapy treatments were necessary after August 24, 1981, we note that Dr. Klinghoffer, who was also called by Hanover, testified that the physical therapy the debtor was receiving after August 24, 1981, from Drs. Lisgar and Kasirsky should have been discontinued because, in his opinion, no further physical benefit could have been expected from additional therapy given the fact that the debtor made approximately sixty-seven (67) visits to Drs. Lisgar and Kasirsky and received physical therapy on all or most of those visits (N.T. 5/11/82 at 153-56). Dr. Klinghoffer further testified that additional physical therapy at this point would be “like whipping a dead horse” (N.T. 5/11/82 at 160). Furthermore, the debtor admits that the physical therapy provided by Drs. Kasirsky and Lisgar after the time Hanover terminated the benefits, provide little, if any, benefit from an orthopedic standpoint.3 Therefore, based on the debtor’s own admission and the testimony of Dr. Klinghoffer, we conclude that the aforesaid treatments provide the debtor with psychological, rather than physical, relief. This being so, we cannot conclude, based on the medical testimony presented, that the psychological benefit the debtor receives from continued physical therapy reflects treatment for an accident-related injury rather than treatment for the physical and psychological maladies caused by independent factors such as the debtor’s pre-existing degenerative arthritis and the debtor’s failing business. In other words, the debtor has not proven to our satisfaction that whatever restoration of “physical, psychological, social, and vocational functioning”4 he receives from the continued physical therapy is restoration of physical, psychological, social, and vocational functioning lost as a result of the March 23, 1981, accident. Consequently, we will deny the debtor’s claims for medical expenses.
Because we have concluded that the debt- or’s post-concussion syndrome and the symptoms related thereto are not accident-related and that there was no need for physical therapy after August 24, 1981, we need not consider the issue of whether the debtor had to submit the necessary bills for those injuries to Hanover.
Section 205 of the No-Fault Act provides for the calculation of work loss as follows:
(a) Regularly employed. — The work loss of a victim whose income prior to the injury was realized in regular increments shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, the victim sustains loss of income during the accrual period.
* ^ * * * *
*323(d) Definitions. — As used in this section:
“Probable annual income” means, absent a showing that it is or would be some other amount, the following:
(A) twelve times the monthly gross income earned by the victim from work in the month preceding the month in which the accident resulting in injury occurs, or the average annual income earned by the victim from work during the years, not to exceed three, preceding the years in which the accident resulting in injury occurs, whichever is greater, for a victim regularly employed at the time of the accident;
(B) the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year to which the accident resulting in injury occurs, for a victim seasonally employed or not employed at the time of the accident; or
(C) the average annual gross income of a production or non-supervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in injury occurs, for a victim who has not previously earned income from work.
“Work week” means the number of days an individual normally works in a seven-day period: “weekly income” means income earned during a work week.
40 P.S. § 1009.205.5
Pursuant to the aforesaid section, we conclude that the debtor’s probable annual income should be calculated by averaging his gross annual income for the years 1978, 1979 and 1980, the three years preceding the year in which the accident occurred. 40 P.S. § 1009.205(a). Consequently, the debt- or’s probable annual income would be $15,-676.66.6 Dividing this amount by a factor of fifty-two (52), as required by section 205(a)(1) supra, the debtor’s probable weekly income is $301.47. Eighty (80) percent of this probable weekly income is $241.17.7 Therefore, Hanover’s contention that it overpaid work loss benefits to the debtor on account of the debtor’s submission of an incorrect tax return is well-founded because the calculation of the debtor’s probable weekly income made above was calculated from the corrected tax return and the debt- or’s monthly income, based on that calculation, does exceed the maximum amount payable for work loss under the No-Fault Act. Section 202(b)(1)(A) provides:
******
(b) Work loss limits. — Work loss, as defined in section 103 shall be provided:
(1) up to a monthly maximum of:
(A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capital income in the United States, according to the latest available United States Department of Commerce figures; or
******
40 P.S. § 1009.202(b)(1)(A).
However, the Pennsylvania Insurance Commissioner has determined that the monthly maximum in section 202(b)(1)(A) above is $976.00. See Pennsylvania Bulletin, Vol. *32410, No. 43 (10/26/80). In any event, the debtor’s probable monthly income, based on the corrected tax returns, does exceed the monthly maximum and therefore, Hanover was only obligated to pay the debtor the maximum of $225.23 per week.8
Hanover also contends that the work loss benefits paid to the debtor after May 19, 1981, were not warranted because the debtor was able to return to work after that date and that, therefore, the debtor should remit to Hanover all work loss benefits paid to him after May 19, 1981. We agree. The reports of the debtor’s attending physicians all indicate that the debtor was able to return to work after May 19, 1981.9 Nevertheless, Hanover continued work loss payments through August 21, 1981. The present record is devoid of any evidence indicating that the debtor was unable to work after May 19, 1981, especially in light of the fact that all of the aforesaid attending physicians’ reports, the last of which was submitted on August 18, 1981, indicate that the debtor was not disabled after May 19, 1981. Consequently, we conclude that the debtor must remit to Hanover all work loss benefits received after May 19, 1981. We further conclude that although Hanover was obliged to pay the debtor $241.17 per week for work loss benefits until May 19, 1981, it should not have paid the debtor $250.00 per week and that, therefore, the debtor must remit to Hanover the amount overpaid for work loss benefits between April 5, 1981, and May 17, 1981, ($8.83 per week).
Finally, Hanover contends that it should be awarded attorney’s fees in the instant matter under section 107 of the No-Fault Act which provides:
* SfC * * # %
(2) If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the claim or any significant part thereof is fraudulent or so excessive as to have no reasonable foundation, the court may award the obli-gor’s attorney a reasonable fee based upon actual time expended. The court, in such case, may direct that the fee shall be paid by the claimant or that the fee may be treated in whole or in part as an offset against any benefits due or to become due to the claimant.
(3) If, any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.
40 P.S. § 1009.107.
We conclude that Hanover is not entitled to attorney’s fees because we do not find the debtor’s claim herein to be in any way “fraudulent or so excessive as to have no reasonable foundation” within the meaning of section 107(2) supra. Likewise, we conclude that the debtor is not entitled to attorney’s fees under the No-Fault Act since we find that Hanover’s denial of the debtor’s claims for no-fault benefits was not only reasonable under the facts of this case but also legally justifiable under Pennsylvania law and the provisions of the No-Fault Act. See Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981); 40 P.S. § 1009.107(3).
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. See plaintiffs proposed findings of fact, ¶ 11.
. Id., ¶ 16.
. Section 103 of the No-Fault Act provides:
“Medical and vocational rehabilitation services” means services necessary to reduce disability and to restore the physical, psychological, social, and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, . ..
40 P.S. 1009.103.
. Hanover’s quotation of § 205(d)(A) in its trial memorandum is misleading in that it does not contain the second prong of the disjunctive standard set forth in § 205(d)(A).
. 1980 (net profit) $ 6,071.00
1979 (net profit) $19,841.00
1978 (net profit) $21,118.00
. Section 206(b) of the No-Fault Act provides:
* * * * * *
(b) Tax deduction. — If a benefit or advantage received to compensate for loss of income because of injury, whether from no-fault benefits or from any source of benefits or advantages subtracted under subsection (a) of this section, is not taxable income, the income tax saving that is attributable to such loss of income because of injury is subtracted in calculating net loss for work loss. Subtraction may not exceed twenty per cent (20%) of the loss of income and shall be in such lesser amount as the insurer reasonably determines is appropriate based on a lower value of the income tax advantage.
40 P.S. § 1009.206(b).
. $976.00 (monthly maximum) $11,712.00 (annual maximum)
x 12 (months in a year) — 52 (weeks in a year)
$11,712.00 $ 225.23 (weekly maximum)
. See Exh. D-3(a), D-3(b) and D-3(c). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489483/ | CHARLES A. ANDERSON, Bankruptcy Judge.
FINDINGS OF FACT
This matter is before the Court upon “Complaint to Remove Stay” filed on 23 September 1982. The Court considered the matter at a pretrial conference on 4 November 1982, at which time the parties agreed to submit the matter to the Court for decision based upon the record without the necessity of oral argument. The parties subsequently submitted “Stipulated Facts” and memoranda of law, upon which this decision is based.
The facts as stipulated by the parties are as follows:
1.Defendant assumed a Mortgage Note due Plaintiff on July 17, 1979.
2. The Plaintiff, Winters National Bank & Trust Company, on March 23, 1982, filed a foreclosure complaint in the Common Pleas Court of Montgomery County, Ohio, under Case No. 82-833. The Defendant, Katherine Mae Simpson, was served with a copy of said Complaint on March 25, 1982. With the completion of service, the Defendant was notified of the Plaintiff’s intent to foreclose the 12-month delinquent mortgage lien on her property described as follows:
Situated in the Township of Harrison County of Montgomery, State of Ohio; And being Lot Numbered Three Hundred Ninety-Six (396) Ft. McKinley Plat, as is recorded in Plat Book “H”, Page 63 of the Plat Records of Montgomery County, Ohio.
Said mortgage was recorded in Microfiche 78-1566-A08 and was assumed by the Defendant herein on July 17, 1979.
3. The Defendant, Katherine Mae Simpson, failed to file an answer or other appropriate pleadings; and on May 3, 1982, a judgment entry of foreclosure was filed awarding judgment to the Plaintiff in the sum of $16,098.38 plus interest at a rate of 9.5% from March 1, 1982.
4. The Plaintiff filed its Order of Sale on May 12, 1982. Said property was duly advertised in the Daily Court Reporter with a sale date of July 30,1982. Said property was appraised at $9,900 and could not sell for less than two-thirds of the appraisement.
5. The Plaintiff on the day of the sale was the successful bidder for the sum of $6,600. On the day of sale the outstanding debt to the Plaintiff was $18,-722.19. The proceeds of the sale was applied leaving a new balance due of $8,653.74.
6. On August 11, 1982, the Motion to Confirm Sale, Assignment of Bid to the Secretary of Housing and Urban Development and the Entry Confirming Sale were filed. The Sheriff of Montgomery County signed the Deed to the pur*353chaser of said Sheriff’s sale on August 12, 1982.
7. On August 20, 1982, the Plaintiff filed a Writ of Restitution requesting the purchaser be placed in possession of the premises described in the Complaint.
8. The mortgage assumed by the Debt- or, Katherine Mae Simpson, is a mortgage insured under the provisions of the National Housing Act; and the protection granted in Section 362 does not apply.
9. Defendant filed Chapter 13 proceedings on August 16, 1982, and notice of the Plan was mailed to Plaintiff and H.U.D. on September 13,1982 (Exhibit “A”).
10. The Debtor’s 341 hearing was held on September 28, 1982, and the confirmation hearing held on October 5,1982, all without objection to Debtor’s Plan. Such Plan clearly set forth the position of Debtor in recovering the real estate and proposing for payment of such real estate.
11. On October 13, 1982, an Order was entered upon the record confirming Debtor’s Chapter 13 Plan and no appeal was taken from such Order.
12. Debtor has tendered the regular monthly payment due on the original Note, but Plaintiff has refused to accept such payment since the confirmation of the Plan.
13. Plaintiff filed its Complaint for relief of stay on September 23, 1982 to which Defendant has answered on October 25, 1982, and the parties have agreed to submit the issues to the Court for decision by way of stipulation and briefs due by November 19, 1982, without an evidentiary hearing.
The pertinent provisions in Debtor’s Chapter 13 Plan are as follows:
The default on the obligation due Winters and assigned to H.U.D. shall be cured by payments of the arrearage of approximately $3,268 in existence as of 8-30-82 and the title to the real estate at 2637 Fairport Ave., Dayton, OH 45406, in Debtor’s name on 7-29-82 plus the note and mortgage relating to said real estate shall be reinstated as of 7-29-82 and regular monthly payments on such reinstated loan and mortgage shall be made outside the Plan. In the event the title, note and mortgage cannot be reinstated, Debtor shall have the right to redeem the real estate by payment of no less than $372 per month into the Plan of which no less than $330 per month shall be paid to H.U.D. to redeem the property and if not fully redeemed at the end of 60 months, Debtor shall obtain other financing to redeem the property in full for the remaining balance.
It is undisputed that Plaintiff, as a scheduled creditor, duly received notice of the Plan and that Plaintiff did not object to the Plan confirmation herein.
The Complaint essentially requests Court approval for Plaintiff to pursue its prepetition Writ of Restitution in state court. Debtor argues against Plaintiff’s request on the basis that the Plan confirmation is res judicata in regard to disposition of the subject property.
DECISION AND ORDER
The instant prepetition sale by order of the state court effected a termination of Debtor’s right of redemption under Ohio law. O.R.C. § 2329.33; See also this Court’s opinion in, The Lomas and Nettleton Company v. Smith, 24 B.R. 403 (Bkrtcy., Ohio 1982) defining the limits of Percy Wilson Mortgage and Finance Corp. v. McCurdy, 21 B.R. 535, 9 B.C.D. 330 (Bkrtcy., Ohio 1982), conformably to Ohio Revised Code § 2329.33. The basic legal issue, therefore, is whether a Debtor may bind a creditor through a Chapter 13 plan to revive a debt- or’s title to property which ceased to be property of the debtor prior to the debtor’s petition filing. A complication in the case sub judice is that the unsecured creditor herein bound by the Plan, (11 U.S.C. § 1327(a)), is also the good faith purchaser at the judicial sale divesting Debtor of title to the property.
*354It is the determination of the Court that a Chapter 13 plan may not provide for disposition of property which is not property of the estate as defined in 11 U.S.C. § 541. The fact of plan confirmation cannot bind a property owner to a plan provision disposing of his property when such property is not within the Court’s vested jurisdiction. Assuming, arguendo, that some principle of state law would permit the divestiture of the title to the real property duly acquired from the Sheriff of Montgomery County, an adversarial action would be necessary, with all of the protections of due process of law. Note 28 U.S.C. § 1471.
It is the opinion of this Court that the fact that the owner of the subject property is also a duly notified creditor herein (based upon a claim for the unsecured portion of the claim not paid through the judicial sale) does not alter the scope of the Court’s Chapter 13 jurisdiction to affect property which is not “property of the estate.” Arrangements such as the questioned Plan provision are properly regulated by private contract law, and a “meeting of the minds,” as is impliedly alleged, cannot be forced upon Plaintiff by application of res judicata principles to an order confirming provisions not capable of proper administration within the Chapter 13 process.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the instant Complaint is accordingly GRANTED because the Chapter 13 Plan provisions providing for disposition of the subject property is hereby deemed unenforceable. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489486/ | MEMORANDUM OPINION
EUGENE J. RAPHAEL, Bankruptcy Judge.
On July 29, 1981, Maudine Virginia Strickland, debtor, filed her voluntary petition in bankruptcy under chapter 7 of the 1978 Bankruptcy Code. Schedule A-2 of said chapter 7 petition indicates, inter alia, that plaintiff in this adversary proceeding is a creditor holding security, such security being described as “household goods”. The amount of creditor’s claim is shown as $7,275.96. Under Schedule B-4 of said chapter 7 petition debtor claimed as exempt pursuant to 11 U.S.C., section 522(d) certain personalty said to be located in the home of debtor and described in said Schedule B^l, a copy of which is exhibited to this memorandum opinion as Exhibit “1”.
On September 19, 1981, plaintiff, First State Bank of Carrollton, filed its complaint praying for the abandonment of the following described personal property; to wit:
1 — 25” Zenith color television;
1 — living room suite — sofa and chair;
1 — green chair;
1 — Magic Chef range;
1 — cedar wardrobe;
2 — lamps;
2 — chain lamps;
1 — book case;
all other household goods.
The record shows that a summons was served by first-class, postage-prepaid mail on each of the defendants, Maudine Virginia Strickland and Jacob C. Pongetti, trustee, on September 21, 1981. On September 28, 1981, defendant Maudine Virginia Strickland filed her separate answer, affirmative defenses and counterclaim. On the same date plaintiff filed its reply to debtor’s counterclaim. The due date for a motion or an answer to the complaint by defendant Jacob C. Pongetti, trustee, was October 19, 1981, but defendant trustee has not answered or otherwise defended against said complaint.
On October 13, 1981, debtor filed her motion for summary judgment, and on October 28, 1981, plaintiff filed its motion for summary judgment. A hearing on the two motions for summary judgment was scheduled for January 27, 1982. Plaintiff appeared at such hearing by its attorney. Neither debtor nor her attorney appeared *375at the hearing; nor did the trustee appear or take part in the hearing on the motions for summary judgment. The court heard plaintiff’s argument in support of its motion for summary judgment. At the time of such hearing the uncontradicted facts before the court indicated that the disposi-tive legal issue would be controlled by the then prospective decision of the Supreme Court of the United States in the case of United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108, in which case the United States Supreme Court had noted probable jurisdiction on December 14, 1981. Accordingly, this court reserved its decision on the competing motions for summary judgment pending the decision of the United States Supreme Court in United States v. Security Industrial Bank, supra.
The complaint and answer reflect the un-contradicted facts in this case. The first three numbered paragraphs of the complaint, which were expressly admitted by defendant Strickland and were not answered by defendant trustee, state:
“I
That on or about January 23, 1978, the debtor, Maudine Virginia Strickland, who was on January 23, 1978, known as Mau-dine Butler, executed a promissory note payable to the plaintiff, and to secure the payment of said promissory note, executed a security agreement in which the debtor granted unto the plaintiff a security interest in the following described personal property, to wit:
1 — 25" Zenith Color television;
1 — living room suite — sofa and chair;
1 — green chair;
1 — Magic Chef range;
1 — cedar wardrobe;
2 — lamps;
2 — chain lamps;
1 — book case;
all other household goods.
A copy of said security agreement is attached hereto as Exhibit “A” and made a part hereof the same as if fully recopied herein.
ii
Thereafter, on March 26th, 1981, the debtor executed a promissory note in continuation and renewal of the promissory note of January 23,1978, under the provisions of which the debtor promised to pay to the plaintiff the sum of $7,275.96. A copy of said promissory note is attached hereto as Exhibit “B” and made a part hereof.
Ill
That the debtor is in default under the terms and provisions of the said promissory note of March 26, 1981, and there remains due and owing thereunder the sum of $5,545.34.”
Paragraph “V” of the complaint alleges that 11 U.S.C., section 522, insofar as said statute applies to security interests granted prior to November 6, 1978, is violative of the Fifth Amendment to the United States Constitution as a deprivation of property without due process of law.
Under the procedural posture of this adversary proceeding, plaintiff is entitled to a judgment by default insofar as its prayer for relief against defendant Jacob C. Pon-getti, trustee, is concerned.
Insofar as defendant Maudine Virginia Strickland is concerned, consideration of the aforementioned uncontradicted facts deducible from the pleadings leads this court to the conclusion that the only question for the court to decide is a legal question; namely; “Is section 522(f)(2) of the 1978 Bankruptcy Code, which permits debtors to avoid non-possessory, non-purchase money liens on certain exempt property, applicable to those liens which were established before the enactment date of the Bankruptcy Reform Act of 1978?” The dispositive answer to this question is found in the decision of the United States Supreme Court in United States v. Security Industrial Bank, 454 U.S. 1122, 102 S.Ct. 969, 71 L.Ed.2d 108 (1982) during the pendency of the instant adversary proceeding. In that case the United *376States Supreme Court refused to abrogate creditors’ property rights established before the enactment date of the 1978 Bankruptcy Reform Act (Bankruptcy Code) “. .. in the absence of a clear expression of Congress’ intent to apply section 522(f)(2) to property rights established before the enactment date ... ”. The issue of whether retrospective application of section 522(f) would violate the creditors’ Fifth Amendment due process rights was not reached. Rather, the court applied the principle that when a statute raises constitutional doubts, a determination will be made as to whether, as a matter of statutory construction, the constitutional question may be avoided. Since there was an absence of a clear expression of congressional intent, to apply section 522(f)(2) to pre-enactment property rights, the law was construed to be inapplicable to those rights.
Furthermore, in footnote number 11 to the court’s opinion the following statement appeared:
“Because all of the liens at issue in this case were established before the enactment date we have no occasion to consider whether section 522(f)(2) should be applied to liens established after Congress passed the Act, but before it became effective.”
Under the uncontradicted facts the lien of plaintiff was established prior to the November 6, 1978, enactment date of the Bankruptcy Reform Act of 1978. The holding in United States v. Security Industrial Bank, supra, clearly controls the legal issue in the instant proceeding.
Accordingly, the order which will be entered by this court will grant a default judgment for abandonment of the herein-above described personalty as to defendant Jacob C. Pongetti, trustee; will grant plaintiff’s motion for summary judgment for abandonment of said personalty as against defendant Maudine Virginia Strickland; will deny defendant Maudine Virginia Strickland’s motion for summary judgment against plaintiff; and will dismiss with prejudice defendant Maudine Virginia Strickland’s counterclaim.
The foregoing memorandum opinion sets forth my findings of fact and conclusions of law. A proposed judgment is submitted herewith for signature by a United States District Judge.
EXHIBIT 1
*377 | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489488/ | DECISION AND ORDER
CHARLES A. ANDERSON, Bankruptcy Judge.
FINDINGS OF FACT
This matter is before the court upon the pleadings and the evidence adduced at a hearing on January 5, 1982. The trial brief in behalf of Plaintiff was submitted within rule on January 13. Defendant has submitted no trial brief on or before January 19, within rule.
A.K. Fiberglastics, Inc. (Debtor) filed on 31 August 1982 its petition for an order of *550relief under Chapter 11 of the Bankruptcy Code. Prior, thereto, Plaintiff Huntington National Bank (Bank) had on 26 January 1981 instituted foreclosure proceedings on the business real estate occupied by the Debtor, in the Common Pleas Court of Clark County, Ohio. Mildred J. Riggins and Kenneth E. Riggins, founders of Fiberglas-tics, had been killed in a car-train accident in September, 1981. The estate of Kenneth E. Riggins, deceased, who was President of Debtor, now owns 100% of the common stock. Judgments were granted by the state court against the Administrators of the decedents’ estates; and, on 17 August 1982 an order of sale was issued to the Sheriff of Clark County. The appraised value on the order of sale was $100,000.00.
The last payment on the Bank loan was by the estate of Mildred Riggins in December, 1981; and the balance due and owing on one promissory note dated December 2, 1977 is in the amount of $78,268.49 ($71,-169.55 principal and $7,099.14 accrued interest); and, one promissory note dated August 2,1979, the amount of $77,749.91 ($68,-174.15 principal and $9,575.81 accrued interest). The total arrearages in payments on both notes as of January 6, 1983, is in the amount of $39,865.67 and interest accrues at the rate of $45.81 per day. Real estate taxes are delinquent in an amount in excess of $5,000.00.
Alma L. Riggins, Administratrix of the estate of Kenneth E. Riggins, now serves as President of Fiberglastics. Neither she nor Janet Riggins, serving as Vice President, have had either extensive business experience in managing a business, or any experience whatever in the particular industry of Debtor. Since their management of the business, the business has shown inadequate improvement in profits and no operating cash has been developed. There are no adequate accounting records, profit and loss statements, or other necessary operating statistics. Consequently, Fiberglastics has filed no financial statements whatsoever for the Court records, as required by the standing court superintendency orders applicable in Chapter 11 cases. The only evidence submitted in behalf of Debtor as to business operations and financial conditions was the testimony of Alma Riggins, who had no documentation and answered all pertinent financial questions put to her (by her own admission) only “from memory.” The real property and other assets have not been covered by insurance by the present management of Debtor. The only source of operating cash is from accounts receivable, and management is not certain of the status of such accounts or the net proceeds after payment of operating expenses because of the lack of cost accounting data. There was no testimony or other evidence adduced to demonstrate any possibility of, or even negotiations for, bank financing or any contribution of operating capital.
No plan of reorganization has been submitted and an application filed 5 January 1983 for an extension of the time for filing a plan has been set for hearing on 31 January 1983. The reason given for such an extension is, “That the Debtor will need additional time to produce the financial statements.” It is further alleged “. . . that accounts [sic] recently retained by Debtor have discovered errors in previous financial statements.”
On the positive side, there is testimony as to $85,000.00 per month gross sales and guessimates of $65,000-$67,000 in operating expenses. These undocumented figures contain no contingency funds for either mortgage loan amortization, or even debt service charges.
Extensive testimony was submitted in behalf of both Plaintiff and Defendant by qualified and experienced professional real property appraisers. The expert testimony as to fair market value of the premises is widely divergent, ranging from a low of $125,000.00 for the Bank to a high of $400,-000 for Debtor. The testimony in behalf of Defendant Debtor was based upon more exhaustive research and field exploration than the testimony in behalf of Plaintiff and should be given considerable weight. On the other hand, even though not as thoroughly researched, the lower valuation is based primarily on two previous sales of *551the same property in 1974 and 1977 at $118,000 and $110,000 respectively with only minimum attention to reproduction costs.
The Defendant’s expert also researched the County Auditor’s tax appraisal records and testified to a tax appraisal of $268,-284.00. It is important to note, nevertheless, that the expert who appraised the property for the Debtor also acknowledged that the possibility of finding a buyer for the property at its true intrinsic market value is problematical under current area economic conditions.
I
Both state court decrees bear equal weight and are equally entitled to full faith and credit in the federal courts. They are res judicata to the extent of their respective jurisdictions. The effect of each court’s judgment in the respective state courts is not at issue herein, even though this Court might concur that the jurisdiction obtained in the earlier Common Pleas Court litigation would preempt the rights of the parties in the later Probate Court litigation by the doctrines of iis pendens. Hence, the effect of the automatic stay of 11 U.S.C. § 362 in the bankruptcy court is not necessarily controlled or preempted by the definition of property interests in the state courts, and the thrust of the bankruptcy court jurisdiction would reach the effects of either one or both state court proceedings independently.
The definition and scope of property in the bankruptcy estate, therefore, is a federal question. If relief from the stay is dictated by applicable economic factors, thus to permit consummation of the foreclosure case, the question of delivery of good and merchantable title to a purchaser in the foreclosure suit should then be litigated in the Common Pleas Court.
This Court, therefore, should not reflect upon the finding of the Probate Court in its decree to the extent that court “... holds that the intention of Mr. and Mrs. Riggins [decedents] was for each to own an equal interest in the corporate assets, and therefore finds a resulting trust in the real estate to A.K. Fiberglastics, Inc., with Mr. and Mrs. Riggins each owing 50% of the corporate stock at the time of their respective deaths.”
Looking to federal law, title and/or possession is no longer controlling as to what is the bankruptcy estate. The Bankruptcy Code provides that the commencement of a case creates an estate composed of all legal and equitable interests of a debtor in property. 11 U.S.C. § 541. The Congress then implemented this expanded concept of estate property by automatically staying all suits and lien enforcements against either the debtor or the debtors’ estate. 11 U.S.C. § 362. The bankruptcy court, in addition to historical factors, has exclusive jurisdiction over the debtor and the estate without reliance upon either the terms of 28 U.S.C. § 1471 or the Rules adopted by district courts pursuant to the boilerplate Orders adopted by the Circuit Judicial Councils (by the Sixth Circuit on December 21, 1982). See the decision by this Court in Grose v. Johnson, 26 B.R. 530 (Bkrtcy.S.D.Ohio 1983).
Furthermore, the district courts would no doubt have “federal question” jurisdiction conferred by statutory provisions not encompassed in 28 U.S.C. § 1471, declared unconstitutional in Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982), — U.S. —, 102 S.Ct. 2858, 73 L.Ed.2d 598, 6 C.B.C.2d 785, 9 B.C.D. 67, assuming such can be delegated to the independent bankruptcy courts, as “adjuncts.”
Hence, this Court must conclude that the resulting trust equitable interest of Debtor (as found by the Probate Court) would be a part of the bankruptcy estate even though the Common Pleas Court does not have (if needed) jurisdiction over the Debtor. The crucial issue, therefore, is whether the automatic stay should be lifted to enable the state court foreclosure suit to proceed inasmuch as the equitable interest of Debtor in the property would be affected.
Even though the Debtor may not be a necessary party in the foreclosure suit because the doctrines of lis pendens preempt the jurisdiction of the Probate Court, 11 *552U.S.C. § 362 stays also enforcement of a judgment against property of the estate and any act to obtain possession of property of the estate. See 11 U.S.C. § 362(a)(2) and (3).
II
The Plaintiff argues that the Bank’s interest in the premises “is not adequately protected,” that “there is a lack of prospects for the effective reorganization,” and that Defendant “has failed to take steps toward an effective reorganization.”
The facts give considerable credence to these propositions, particularly to the extent there has been demonstrated no improvement in company financial conditions or any possibility of meeting debt service charges, now in arrears since December, 1981. Only the original principal obligations are provisionally protected by the most pessimistic appraisals of the encumbered property. There is a projected “equity cushion” under the more optimistic appraisals by Defendant’s expert.
However, the optimistic “equity cushion” must be discounted because of the economic market conditions, and the demonstrated failure of Piberglastics to show any ability whatever to even meet debt service charges. A theoretical “equity cushion” is only one factor to be weighed and the importance thereof must be diminished in inverse ratio to the likelihood of a consummation of a successful reorganization. Since the foreclosure action has been pending now for two years, not only is the “equity cushion” being depleted as collateral for secured debts, but equitable considerations must contemplate the futile waste of economic resources available to other classes of creditors if leave is granted to conclude the foreclosure sale.
The deficiencies in management capabilities and the deplorable accounting records cast considerable doubt on improved net profit projections, particularly in light of current national economic conditions.
The Court is constrained to hold, therefore, that both principal and accrued debt service charges are not adequately protected by either the mortgage collateral or the prospects of turning the business operations and losses into a possible reorganization, absent an immediate influx of operating capital. The results of business operation since the Chapter 11 case was instituted on 31 August 1982 offer scant reason for optimism in this regard, despite the sincere and dedicated efforts by current management.
Consequently, it must be concluded that the necessity of adequate protection is now at a critical stage, and relief from the statutory stay of the state court foreclosure proceedings must be granted unless at least $30,000.00 is paid to Plaintiff on or before the date a plan of reorganization is filed, and then debt service charges are paid monthly to Plaintiff thereafter. The time limitations for the filing of a plan of reorganization and the date for tendering adequate protection will be fixed by the Court at the January 31 hearing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482953/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 192
Robert Williamson, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20220186
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
REVERSED AND REMANDED.
Per Curiam.
Scott O. Diamond, Fargo, ND, for petitioner and appellant; submitted on brief.
Julie A. Lawyer, State’s Attorney, Bismarck, ND, for respondent and appellee;
submitted on brief.
Williamson v. State
No. 20220186
Per Curiam.
[¶1] Robert Williamson appeals from an order denying his application for
post-conviction relief. Williamson argues the district court erred by dismissing
his application, on its own motion, after the State filed an answer. We conclude
the district court erred by denying Williamson’s application because the
procedure required under N.D.C.C. § 29-32.1-09 for summary disposition in
post-conviction relief cases was not followed. See Chase v. State, 2021 ND 206,
¶¶ 8-11, 966 N.W.2d 557 (holding a motion for summary disposition in post-
conviction relief proceedings must be made consistent with the rules for motion
practice and the district court may not order summary disposition in response
to a request in a pleading); State v. Vogt, 2019 ND 236, ¶ 8, 933 N.W.2d 916
(stating the district court may only summarily dismiss an application for post-
conviction relief on its own motion under N.D.C.C. § 29-32.1-09(1) before the
State responds, and after the State responds there must be a motion by either
party under N.D.C.C. § 29-32.1-09(3) for the court to grant summary
disposition). We summarily reverse under N.D.R.App.P. 35.1(b) and remand
for further proceedings.
[¶2] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
1 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482958/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 196
State of North Dakota, Plaintiff and Appellee
v.
Cole Lee Peters, Defendant and Appellant
Nos. 20220074 & 20220075
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Joshua B. Rustad, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Nathan K. Madden, Assistant State’s Attorney, Williston, N.D., for plaintiff
and appellee.
Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.
State v. Peters
Nos. 20220074 & 20220075
Tufte, Justice.
[¶1] Cole Lee Peters appeals from criminal judgments for terrorizing, two
counts of gross sexual imposition, attempted murder, and felonious restraint.
Peters argues on appeal that the State violated his right to a speedy trial, that
the district court erred when it failed to exclude duplicate photographs of B.C.,
the victim, and that the court should have given a curative instruction to the
jury on the duplicate pictures. We affirm the judgments.
I
[¶2] Peters physically and sexually assaulted B.C. at a hotel on the evening
of December 27, 2019. Police officers arrested Peters on December 28, and on
December 31 the court entered a scheduling order setting a criminal jury trial
for May 4, 2020. Consistent with this Court’s Administrative Order 25
suspending jury trials during the COVID-19 pandemic, the trial was
rescheduled to June 29, 2020, and again to August 24, 2020. Later, the court
granted the State’s motion to reschedule, resetting the trial for October 19,
2020. Peters then made two motions which delayed the trial to February 8,
2021, and then the parties stipulated to reschedule the trial for April 5, 2021.
COVID-19 protocols prevented an expert witness, the DNA analyst assigned to
Peters’ case, from being able to travel to North Dakota and testify at his trial.
The court rescheduled the trial to June 28, 2021, in response to the State’s
motion. On June 10, 2021, the parties again stipulated to reschedule the trial
for a date after July 31, 2021, because the North Dakota State Crime
Laboratory’s biological screener who was assigned to Peters’ case was out on
maternity leave. At this point, Peters had not yet asserted his speedy trial
right, nor had he objected to any of the delays. A trial was held on August 23,
2021, but it ended in a mistrial. On September 3, 2021, Peters moved to dismiss
for violations of his speedy trial right, and the court denied the motion. Peters’
second trial began on September 20, 2021. This trial was delayed because a
member of the jury panel tested positive for COVID-19. During this delay,
Peters again moved to dismiss for violation of his speedy trial right, and the
1
court denied the motion. The trial resumed on October 13, 2021, and the jury
found Peters guilty of all charges.
[¶3] On the night of the incident, B.C. was admitted to the hospital for
treatment of her injuries. Police officers obtained photographs of B.C.’s injuries
taken the night of the incident and days later after the swelling of B.C.’s
injuries had subsided. At trial, the court admitted these photographs over
Peters’ objection. On appeal Peters argues that the State violated his right to
speedy trial, that the photographs admitted by the district court were
cumulative in violation of N.D.R.Ev. 403, and that the court erred in not issuing
a curative instruction relating to the photographs.
II
[¶4] Peters argues his constitutional right to a speedy trial was violated.
[¶5] A criminal defendant’s right to speedy trial is protected by the Sixth
Amendment to the United States Constitution and N.D. Const. art. I, § 12.
State v. Wayland, 2020 ND 106, ¶ 7, 942 N.W.2d 841. We conduct a de novo
review of the district court’s overall assessment, but review the court’s factual
findings for clear error. Id. at ¶ 8; United States v. Sims, 847 F.3d 630, 634 (8th
Cir. 2017). The district court must analyze four factors to evaluate a speedy
trial claim: “length of the delay, reason for the delay, proper assertion of the
right, and actual prejudice to the accused.” Koenig v. State, 2018 ND 59, ¶ 20,
907 N.W.2d 344 (citing State v. Hall, 2017 ND 124, ¶ 11, 894 N.W.2d 836). The
factors are related, none is dispositive, and they must be considered together
along with other circumstances. State v. Hamre, 2019 ND 86, ¶ 11, 924 N.W.2d
776.
A
[¶6] The length of delay is the time between either the arrest or indictment,
whichever is first, and the beginning of the trial. State v. Borland, 2021 ND 52,
¶ 14, 956 N.W. 2d 412; Sims, 847 F.3d at 634. Under the first factor, “a delay of
one year or more is ‘presumptively prejudicial’ and triggers an analysis of the
other speedy trial factors.” Hamre, 2019 ND 86, ¶ 11. Peters’ trial began on
2
September 20, 2021, almost twenty-one months after his arrest. This delay is
presumptively prejudicial and triggers analysis of the other speedy trial
factors.
B
[¶7] The reason-for-delay factor weighs heavily against the State if the State
deliberately delays trial to obstruct the defense. Borland, 2021 ND 52, ¶ 16. A
lack of diligence in prosecution or docket overcrowding weighs less heavily
against the State. Id. “A valid reason for delay, such as a missing witness, will
not be weighed against the State.” Id. (citing Barker v. Wingo, 407 U.S. 514,
531 (1972)). A trial delay caused by the unavailability of the State’s main
witness or a crime lab analyst is not attributable to the State. State v.
Bergstrom, 2004 ND 48, ¶ 18, 676 N.W.2d 83. Delays caused by the defendant
weigh against the defendant. Borland, at ¶ 16. We have held that trial
continuances caused by COVID-19 and Administrative Order 25 do not weigh
against the State. State v. Lafromboise, 2021 ND 80, ¶ 21, 959 N.W.2d 596; see
also State v. Paige, 977 N.W.2d 829, 838-40 (Minn. 2022); United States v.
Smith, 494 F. Supp. 3d 772, 783 (E.D. Cal. 2020).
[¶8] Here, the district court rescheduled Peters’ trial eight times and delayed
his September 20, 2021 trial approximately three weeks. There is no evidence
that the State ever deliberately delayed or obstructed the trial. The trial was
delayed by this Court’s Administrative Order 25 suspending jury trials as a
result of the COVID-19 pandemic, Peters’ motions requesting evaluations, the
temporary unavailability of two expert witnesses, Peters’ stipulations to
continuances, and compliance with Centers for Disease Control guidance when
a juror contracted COVID-19. The court rescheduled and proceeded with trial
promptly in each instance. The reasons for delay do not weigh against the
State.
C
[¶9] Failure to assert the speedy trial right makes it difficult for a defendant
to prove a violation of that right. State v. Moran, 2006 ND 62, ¶ 15, 711 N.W.
2d 915; Barker, 407 U.S. at 532. Courts have weighed the frequency and force
3
of a defendant’s assertion. Sims, 847 F. 3d at 636. In Borland, this factor
weighed against a defendant who waited for almost two years after he was
charged to assert his speedy trial right; it was less than two months before his
third trial, and there were no subsequent delays after his demand. 2021 ND
52, ¶ 20. Similarly, the first time Peters asserted his speedy trial right was
twenty-one months after his arrest and seventeen days before the next
scheduled trial when he moved to dismiss the trial for violation of his speedy
trial right. After he asserted his speedy trial right, there was a delay
proceeding with the second trial, but this COVID-19 delay did not weigh
against the State. This factor does not weigh in favor of Peters because he first
asserted his speedy trial right after his first trial and no significant delays
occurred after that point.
D
[¶10] The final factor we must consider is whether there was any prejudice to
the defendant as the result of a delay. Peters must show actual prejudice
because there is no evidence that the State intentionally or negligently delayed
the proceedings. Borland, 2021 ND 52, ¶¶ 22-23. He must therefore link his
“loss of liberty with any specific prejudice … to a fair trial” by showing
oppressive pretrial incarceration, anxiety of the accused, and possibility that
the defense was impaired. Hall, 2017 ND 124, ¶ 14 (citing Barker, 407 U.S. at
532-33). For “impaired defense,” a defendant must show that evidence that
would have been helpful to his defense was lost because of the delays. Moran,
2006 ND 62, ¶ 20. In Sims, a twenty-two-and-a-half month pre-trial
incarceration was not sufficient to alleviate the defendant’s burden of showing
actual prejudice. 847 F.3d at 636. Here, Peters was incarcerated for almost
twenty-one months before his trial, and he claims that his pre-trial
incarceration caused anxiety. However, Peters failed to show actual prejudice
or any evidence the State acted in bad faith. This factor does not weigh against
the State.
4
E
[¶11] None of the four speedy-trial-right factors weigh against the State.
Therefore, we conclude Peters has not demonstrated the State violated his
right to a speedy trial.
III
[¶12] Peters argues the district court erred in admitting the photographs.
[¶13] All relevant evidence is generally admissible, but “the court may exclude
relevant evidence if its probative value is substantially outweighed by …
needlessly presenting cumulative evidence.” N.D.R.Ev. 402, 403. Courts should
sparingly exclude evidence under Rule 403, and lower courts have “broad
discretion when deciding the admissibility of a photograph” under Rule 403.
State v. Klein, 1999 ND 76, ¶ 5, 593 N.W.2d 325. We review a district court’s
evidentiary ruling for abuse of discretion and reverse a court’s decision to admit
or exclude evidence only when the court “acts arbitrarily, capriciously, or
unreasonably.” State v. Leavitt, 2015 ND 146, ¶ 13, 864 N.W.2d 472. In State v.
Ohnstad, this Court concluded that the trial court did not abuse its discretion
in admitting multiple photographs of a victim’s skull because an expert witness
testified that they would make it easier for the jury to arrive at a “fair
understanding” of the extent of the injury. 359 N.W.2d 827, 839-40 (N.D. 1984);
see also State v. Erdman, 422 N.W.2d 808, 812-13 (N.D. 1988); State v. Owens,
2002 S.D. 42, ¶ 91, 643 N.W.2d 735.
[¶14] Here, the district court found that all the photographs had probative
value relating to the elements of the offense. The court considered each
photograph individually and explained that each photograph captured some
aspect of B.C.’s wounds that the others did not. The photos were taken from
different angles, showed different injuries, some were close-up views while
others indicated scale. Some similar photos were taken at different times and
showed different stages of B.C.’s bruises and injuries as she healed. The court
concluded that the danger of unfair prejudice did not “substantially outweigh”
the probative value. The district court properly weighed whether the photos
may be needlessly cumulative against their probative value and concluded the
5
probative value was not substantially outweighed by needlessly presenting
cumulative evidence. Accordingly, it did not abuse its discretion.
[¶15] Peters also argued that the district court erred when it did not issue a
limiting instruction for the photographs. Peters failed to request a jury
instruction relating to the duplicate photographs. This Court reviews for
obvious error when a party fails to request a jury instruction and only in rare
circumstances when the defendant has suffered serious injustice. State v.
Wallitsch, 2020 ND 15, ¶¶ 3-4, 937 N.W.2d 529. The appellant must show “(1)
error, (2) that is plain, and (3) that affects substantial rights.” Id. at ¶ 4.
Because there was no abuse of discretion in admitting the photographs, there
is no obvious error in failing to provide a limiting instruction to the jury.
IV
[¶16] We conclude the State did not violate Peters’ Sixth Amendment speedy
trial right and the district court did not abuse its discretion in admitting the
photographs. We affirm the district court judgments.
[¶17] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
6 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482987/ | Matter of Mota Reyes (American Paraprofessional Sys. of NYC, Inc.--Commissioner of Labor) (2022 NY Slip Op 06303)
Matter of Mota Reyes (American Paraprofessional Sys. of NYC, Inc.--Commissioner of Labor)
2022 NY Slip Op 06303
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
532995 532997 532999
[*1]In the Matter of the Claim of Andris Y. Mota Reyes, Respondent. American Paraprofessional Systems of NYC, Inc., Appellant. Commissioner of Labor, Respondent. (Claim No. 1.)
In the Matter of the Claim of Maureen O'Mara, Respondent. American Paraprofessional Systems of NYC, Inc., Appellant. Commissioner of Labor, Respondent. (Claim No. 2.) (And Another Related Proceeding.)
Calendar Date:October 18, 2022
Before:Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.
Nixon Peabody LLP, Jericho (Tara E. Daub of counsel), for appellant.
David E. Woodin, Catskill, for Andris Y. Mota Reyes and another, respondents.
Letitia James, Attorney General, New York City (Linda D. Joseph of counsel), for Workers' Compensation Board, respondent.
Lynch, J.
Appeals (1) from two decisions of the Unemployment Insurance Appeal Board, filed January 15, 2021, which ruled, among other things, that American Paraprofessional Systems of NYC, Inc. is liable for unemployment insurance contributions on remuneration paid to claimant Andris Y. Mota Reyes and others similarly situated, (2) from two decisions of said Board, filed January 15, 2021, which ruled, among other things, that American Paraprofessional Systems of NYC, Inc. is liable for unemployment insurance contributions on remuneration paid to claimant Maureen O'Mara and others similarly situated, and (3) from a decision of said Board, filed January 15, 2021, which assessed American Paraprofessional Systems of NYC, Inc. for additional unemployment insurance contributions.
American Paraprofessional Systems of NYC, Inc. (hereinafter APP) is engaged in the business of providing medical information and laboratory results to approximately 400 insurance companies to assist them in underwriting various types of life insurance. To provide these services, APP recruited and maintained a database of mobile paramedical examiners (hereinafter examiners),[FN1] who APP arranged to conduct examinations of life insurance applicants at each applicant's home or office. Following an audit of APP, the Department of Labor issued an initial determination finding that certain examiners that APP engaged were employees for purposes of unemployment insurance contributions and assessing APP with additional unemployment insurance contributions based upon remuneration paid to the subject examiners for the period January 1, 2011 through December 31, 2015. In a January 15, 2021 decision, the Unemployment Insurance Appeal Board sustained the Department's initial determination assessing APP $74,086.28 in additional contributions due for the period January 1, 2011 through December 31, 2015 based upon renumeration paid to the subject examiners during the audit period.
From 2017 to 2018, claimant Andris Y. Mota Reyes, a phlebotomist and certified EKG technician, and claimant Maureen O'Mara, a certified medical technician, provided services to APP as examiners. Following the provision of claimants' services to APP, claimants each applied for unemployment insurance benefits. The Department of Labor subsequently issued initial determinations finding that claimants were employees of APP and that APP was liable for unemployment insurance contributions based upon remuneration paid to claimants and others similarly situated effective January 1, 2016. In four decisions of the Board, filed January 15, 2021, the Board sustained the Department's initial determinations with respect to claimants and others similarly situated. APP separately appeals from the five decisions of the Board filed on January 15, 2021, and these appeals were consolidated by this Court.
We affirm. "Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor [*2]is determinative and the determination of the Board, if supported by substantial evidence on the record as a whole, is beyond further judicial review" (Matter of Eisenberg [CenseoHealth LLC-Commissioner of Labor], 205 AD3d 1185, 1185 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Brown [Plannernet, Inc.-Commissioner of Labor], 195 AD3d 1329, 1330 [3d Dept 2021]). "Substantial evidence is a minimal standard that demands only such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Blomstrom [Katz-Commissioner of Labor], 200 AD3d 1232, 1233 [3d Dept 2021] [internal quotation marks and citations omitted]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). When medical professionals are involved, the pertinent inquiry is whether the purported employer retained "control over important aspects of the services performed other than results or means" (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; see Matter of DeRoberts Plastic Surgery [Commissioner of Labor], 198 AD3d 1033, 1034 [3d Dept 2021]; Matter of Lawlor [ExamOne World Wide Inc.-Commissioner of Labor], 130 AD3d 1345, 1346 [3d Dept 2015]). "Further, an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship" (Matter of DeRoberts Plastic Surgery [Commissioner of Labor], 198 AD3d at 1034 [internal quotation marks and citations omitted]; see Matter of Millennium Med. Care, P.C. [Commissioner of Labor], 175 AD3d 755, 757 [3d Dept 2019]; Matter of Kliman [Genesee Region Home Care Assn., Inc.-Commissioner of Labor], 141 AD3d 1049, 1050 [3d Dept 2016]).
The evidence in these three appeals reflected that APP recruited, screened and maintained a database of examiners that it retained from which it would select an examiner and offer assigned examinations to the examiners. Before retaining an examiner, APP verified their skill set and obtained proof of their professional licenses and/or certificates. Once retained, APP conducted an orientation session for new examiners during which it reviewed, among other things, the fees for the respective service types as well as the different insurance forms that the examiners were expected to fill out during an examination. Regarding payment, APP paid the examiners, based upon the type and scope of the examination conducted, a set rate according to APP's fee schedule and paid the examiners in their individual capacity. If an examiner, using APP's website, declined an assignment, APP offered the assignment to another examiner that it selected from its database. Similarly, if an examiner could not complete an assigned examination, APP managed the reassignment of that examination to another examiner. APP acquired and provided, without charge to the examiners, the requisite number of laboratory [*3]kits needed for the examinations as well as the necessary forms. APP also provided the examiner with the details needed to attend the examination at the applicant's home or business.
Upon completing an examination, the examiner was directed to submit the completed insurance forms to APP so that it could review those forms for completeness prior to submission of those forms to the insurance companies, and APP required the examiner to make corrections if necessary. APP managed the billing and collecting of fees by billing the insurance companies directly and rendering payment for examinations directly to the examiners on a weekly basis. APP maintained a general liability insurance policy that also covered the examiners. APP prohibited examiners from providing medical advice or opinions of any kind to insurance applicants. APP mandated that the examiners keep any and all information confidential. If an examiner wanted to provide a substitute, APP controlled such practice by requiring that the substitute be preapproved. If there were complaints regarding an examination or the laboratory kit sent by the examiner, APP discussed those complaints with the examiner, required the examiner to redo the examination if necessary and maintained ultimate responsibility for accurate completion of the examinations and forms. Notwithstanding other proof in the record that could support a contrary result, the foregoing constitutes substantial evidence supporting the conclusion that APP retained sufficient overall control over important aspects of the work of claimants and other similarly situated examiners to be considered their employer (see Matter of Armbruster [Summit Health, Inc.-Commissioner of Labor], 138 AD3d 1367, 1368-1369 [3d Dept 2016], lv dismissed 28 NY3d 946 [2016]; Matter of Walker [ExamOne World Wide, Inc.-Commissioner of Labor], 137 AD3d 1401, 1401 [3d Dept 2016] [collecting cases]; see also Matter of Eisenberg [CenseoHealth LLC-Commissioner of Labor], 205 AD3d at 1186-1187; Matter of Williams [Summit Health, Inc.-Commissioner of Labor], 146 AD3d 1210, 1210-1211 [3d Dept 2017]). To the extent that APP's remaining contentions are not rendered academic by our decision, they have been considered and found to be lacking in merit.
Garry, P.J., Reynolds Fitzgerald, Ceresia and McShan, JJ., concur.
ORDERED that the decisions are affirmed, without costs.
Footnotes
Footnote 1: The examiners consisted of various medical professionals including physicians, registered nurses and licensed practical nurses. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482959/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 195
State of North Dakota, Plaintiff and Appellee
v.
Eldrey Marchone Lane, Defendant and Appellant
No. 20220164
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.
AFFIRMED.
Per Curiam.
Ashlei A. Neufeld, Assistant State’s Attorney, Grand Forks, ND, for plaintiff
and appellee; submitted on brief.
Laura C. Ringsak, Bismarck, ND, for defendant and appellant; submitted on
brief.
State v. Lane
No. 20220164
Per Curiam.
[¶1] Eldrey Marchone Lane appeals from a criminal judgment entered after
a jury convicted him of driving under suspension. Lane argues the evidence
presented at trial was insufficient to support the jury’s verdict. Viewing the
evidence in the light most favorable to the verdict, we conclude sufficient
evidence exists that could allow a jury to draw a reasonable inference in favor
of conviction. We summarily affirm under N.D.R.App.P. 35.1(a)(3).
[¶2] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
1 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482957/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
IN THE SUPREME COURT NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
STATE OF NORTH DAKOTA
2022 ND 197
State of North Dakota, Plaintiff and Appellee
v.
Michael Anthony Sapa, Defendant and Appellant
No. 20220072
Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Kari M. Agotness, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Rebecca L. Flanders, State’s Attorney, Cavalier, ND, for plaintiff and appellee.
Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.
State v. Sapa
No. 20220072
Crothers, Justice.
[¶1] Michael Sapa appeals from an amended judgment entered after a jury
found him guilty of gross sexual imposition. He argues the district court erred
by excluding evidence about the victim’s age. He claims two statutes, N.D.C.C.
§§ 12.1-20-01 and 14-10-01, create competing and confusing definitions of
“minors.” He also argues N.D.C.C. § 12.1-20-01 is unconstitutionally vague.
The State claims Sapa’s appeal is untimely. We affirm.
I
[¶2] In February 2021, Jane Doe’s parents contacted law enforcement about
inappropriate sexual contact concerning their fourteen-year-old daughter.
After interviewing Jane Doe, law enforcement identified Sapa as a suspect.
During an interview with law enforcement, Sapa admitted to having sexual
intercourse with Jane Doe. Sapa was arrested and charged with gross sexual
imposition under N.D.C.C. § 12.1-20-03, victim less than fifteen, and defendant
at least twenty-two.
[¶3] Before trial, the State moved to exclude evidence related to Sapa’s
knowledge of the victim’s age because gross sexual imposition with a victim
under the age of fifteen is a strict liability offense. The district court granted
the State’s motion and excluded evidence related to Sapa’s knowledge of the
victim’s age.
[¶4] The jury found Sapa guilty. The district court entered judgment on
January 12, 2022. The judgment granted the State 30 days to file a restitution
affidavit of loss. On January 31, 2022, a victim witness coordinator filed an
affidavit of loss on behalf of the victim’s parents. On February 22, 2022, the
court entered an amended judgment incorporating the amount of restitution.
Sapa appealed from the amended judgment on March 3, 2022.
1
II
[¶5] The State argues Sapa’s appeal is untimely. The State claims Sapa
should have appealed from the January 2022 judgment because he did not
challenge the amount of restitution included in the amended judgment.
[¶6] Under N.D.R.App.P. 4(b)(1)(A), an appeal in a criminal case “must be
filed with the clerk of the supreme court within 30 days after the entry of the
judgment or order being appealed.” Here, the district court entered judgment
on January 12, 2022, and provided the State 30 days to file a restitution
affidavit of loss. The judgment gave Sapa 10 days to seek a hearing if he
disagreed with the amount of restitution, and if Sapa did not request a hearing,
the restitution “will be incorporated into the Judgment and Sentence.” After
the State filed an affidavit of loss, and Sapa did not request a hearing, the court
entered an amended judgment incorporating restitution on February 22, 2022.
Sapa appealed from the amended judgment on March 3, 2022.
[¶7] In State v. Chyle, 297 N.W.2d 409, 410-11 (N.D. 1980), this Court
addressed an analogous situation when the defendant appealed from the
judgment incorporating restitution instead of appealing from the original
judgment:
“In the present case, Chyle does not claim that he is entitled
to any exception for an extension of the time for appeal. He claims
only that the 10-day notice of appeal time limit 1 should not begin
to run from the time the original judgment was filed, February 29,
1980, but rather from the time the amended judgment was filed,
March 5, 1980.
“While the original judgment did not address the issue of
restitution, the amended judgment filed on March 5, 1980,
contained a provision relating to restitution as authorized by
Section 12.1-32-07(2)(e), N.D.C.C. A provision for restitution in a
sentence to probation should, where appropriate, be encouraged
1When Chyle was decided, N.D.R.App.P. 4(b) provided 10 days to appeal a
criminal judgment.
2
and we do not criticize the trial court for including the provision in
an amended judgment.
“In light of the fact that the amended judgment in this case
did not go to the essence of Chyle’s conviction, it would appear that
he may have been the beneficiary of several extra days in which to
decide whether or not to file an appeal. However, to strictly
interpret Rule 4(b), N.D.R.App.P., and its counterpart, Rule 37(b),
N.D.R.Crim.P., as applying to an original judgment, rather than a
final judgment, could have the effect of working an injustice on a
potential appellant where the subsequent amended judgment
proved particularly onerous or came at a time beyond 10 days after
the original judgment had been filed. These possibilities, linked
with the fact that Chyle specifically stated that he was appealing
‘from the judgment of the above named Court entered on March 5,
1980, . . .’ lead us to deny the State’s motion to dismiss the appeal.”
See also State v. Neigum, 369 N.W.2d 375, 376-77 (N.D. 1985) (discussing State
v. Chyle).
[¶8] The January 12, 2022 judgment allowed the State to file a restitution
affidavit of loss. Similar to Chyle, Sapa’s notice of appeal stated he was
appealing the “Criminal Judgment Entered on February 22, 2022.” Sapa’s
appeal was timely because he appealed within 30 days after entry of the
amended judgment.
III
[¶9] Sapa claims the district court’s exclusion of evidence about the victim’s
age limited Sapa’s right to attack the essential element of age. “A district court
has broad discretion in evidentiary matters, and we will not overturn a district
court’s decision to admit or exclude evidence unless the court abused its
discretion.” State v. Vandermeer, 2014 ND 46, ¶ 6, 843 N.W.2d 686.
[¶10] The State charged Sapa with gross sexual imposition under N.D.C.C. §
12.1-20-03, victim less than fifteen, and defendant at least twenty-two. “[T]he
crime of gross sexual imposition with a child under the age of fifteen is a strict
liability offense.” Vandermeer, 2014 ND 46, ¶ 19. “When the criminality of
conduct depends on a child’s being below the age of fifteen, it is no defense that
3
the actor did not know the child’s age, or reasonably believed the child to be
older than fourteen.” N.D.C.C. § 12.1-20-01(1).
[¶11] Before trial, the district court excluded evidence related to Sapa’s
knowledge of the victim’s age. Citing Vandermeer, the court recognized Sapa
was charged with a strict liability offense and it was no defense that he did not
know the victim’s age. The court concluded, “To allow evidence and testimony
of what [Sapa] thought the victim’s age is would only confuse and mislead the
jury as to the essential elements, not to mention the delay it would cause on
an otherwise, straightforward element.”
[¶12] At trial, the victim testified to her age and birthdate. Deputy Matthew
Wright testified he met with the victim’s father and saw the victim’s birth
certificate showing her birthdate. Wright testified the victim was fourteen at
the time of the sexual act. During cross-examination, Sapa asked the victim
about two different birthdates listed on separate Facebook accounts. The
victim admitted she posted a different birthdate on Facebook. Evidence about
the victim’s actual age is admissible because it directly relates to an element
of the crime—that she was younger than fifteen. However, evidence about
Sapa’s belief or perception of the victim’s age is not admissible because the
crime is strict liability, and the evidence would violate the plain words of
N.D.C.C. § 12.1-20-01(1).
[¶13] The State introduced evidence the victim was less than fifteen at the
time of the offense. Sapa introduced evidence from Facebook showing the
victim represented herself to be older than fourteen. The district court barred
Sapa from introducing additional evidence regarding the victim’s age. The
court did not abuse its discretion by excluding additional evidence of the
victim’s age because it related to Sapa’s belief of her age, rather than proving
or disproving her actual age.
IV
[¶14] Sapa argues two statues, N.D.C.C. §§ 12.1-20-01 and 14-10-01, create
competing definitions of “minors.” He contends the application of these two
4
definitions of minors creates confusion, and produces highly subjective and
arbitrary outcomes.
[¶15] Section 14-10-01, N.D.C.C., provides, “Minors are persons under
eighteen years of age. In this code, unless otherwise specified, the term ‘child’
means ‘minor’”. Under N.D.C.C. § 12.1-20-01(1), in the context of sexual
offenses against minors, the legislature specified if the child is less than fifteen,
there can be no mistake of age defense. A specific statute controls over a
general statute. Kittleson v. Grynberg Petroleum Co., 2016 ND 44, ¶ 33, 876
N.W.2d 443.
[¶16] Sapa claims that in N.D.C.C. § 12.1-20-01, the legislature created a new
class of “child” by arbitrarily drawing a line at fifteen without any explanation
or justification. By making this argument, Sapa ignores that, within
constitutional bounds, the legislature has a broad power to make
classifications. Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741, 758 (N.D. 1978);
Johnson v. Hassett, 217 N.W.2d 771, 776-77 (N.D. 1974). Here, Sapa does not
argue N.D.C.C. §§ 12.1-20-01 and 14-10-01 create an unconstitutional
classification. Nor does he explain how this statutory protection of children
fourteen and younger requires a reversal of his conviction. “This Court has
acknowledged the legislature is better suited than the courts for setting the
public policy in North Dakota.” Vandermeer, 2014 ND 46, ¶ 19 (citing Meyer v.
Hawkinson, 2001 ND 78, ¶ 28, 626 N.W.2d 262). We are not persuaded by
Sapa’s argument and decline to address it further.
V
[¶17] Sapa argues N.D.C.C. § 12.1-20-01(1) is unconstitutionally vague.
Section 12.1-20-01(1), N.D.C.C., provides, “When the criminality of conduct
depends on a child’s being below the age of fifteen, it is no defense that the
actor did not know the child’s age, or reasonably believed the child to be older
than fourteen.” Sapa claims the statute is confusing because it references two
ages, fifteen and fourteen.
[¶18] “Statutes carry a strong presumption of constitutionality.” State v.
Holbach, 2009 ND 37, ¶ 23, 763 N.W.2d 761. The due process clauses of the
5
state and federal constitutions require criminal statutes give sufficient
warning of the proscribed conduct and mark boundaries sufficiently distinct
for judges and juries to fairly administer the law. Id. at ¶ 24. “A statute is not
unconstitutionally vague if the challenged language, when measured by
common understanding and practice, gives adequate warning of the conduct
proscribed and marks boundaries sufficiently distinct for fair administration
of the law.” Id. Whether a statute is unconstitutional is a question of law, fully
reviewable on appeal. Id. at ¶ 23.
[¶19] The “legislature specifically determined that the crime of gross sexual
imposition with a child under the age of fifteen is a strict liability offense.”
Vandermeer, 2014 ND 46, ¶ 19. That statute is not vague. Under N.D.C.C. §
12.1-20-01(1), a person of ordinary intelligence would understand a violation
occurs if the victim of a sexual crime is less than fifteen years old.
VI
[¶20] We have considered Sapa’s remaining arguments and conclude they are
either without merit or not necessary to our decision. The amended judgment
is affirmed.
[¶21] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
6 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482977/ | People v McGregor (2022 NY Slip Op 06292)
People v McGregor
2022 NY Slip Op 06292
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
111304
[*1]The People of the State of New York, Respondent,
vShawn L. McGregor, Appellant.
Calendar Date:October 20, 2022
Before:Egan Jr., J.P., Lynch, Aarons, Pritzker and McShan, JJ.
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Aarons, J.
Appeal from a judgment of the County Court of St. Lawrence County (Jerome J. Richards, J.), rendered January 3, 2019, convicting defendant upon his plea of guilty of the crimes of grand larceny in the third degree and burglary in the second degree.
Defendant pleaded guilty to a superior court information charging him with grand larceny in the third degree, stemming from stealing money from the victim's safe, and agreed to waive his right to appeal. In exchange, defendant was given the opportunity to participate in a judicial diversion program. Ultimately, defendant was discharged from the judicial diversion program for violating certain conditions, and his participation therein was terminated.
Thereafter, defendant was charged with, and pleaded guilty to, burglary in the second degree in connection with the same incident of stealing money from the victim's safe and, as a condition of that plea, agreed to waive his right to appeal. In accordance with the terms of the plea agreements, defendant was sentenced, as a second felony offender, to a prison term and a period of postrelease supervision. Defendant appeals.
To the extent that defendant's brief can be read as challenging the validity of his waivers of the right to appeal, such challenge is without merit. Defendant was aware that the appeal waivers were a condition of the plea agreements. County Court, in each instance, explained the separate and distinct nature of the right to appeal and specified those appellate rights that survived such waivers, all of which defendant acknowledged he understood. Defendant also executed comprehensive written appeal waivers in open court after conferring with counsel and confirmed to the court that he had read them, understood their content and had no questions with regard thereto. As such, the record establishes that defendant knowingly, voluntarily and intelligently waived his right to appeal from both convictions (see People v Wiggins, 207 AD3d 947, 948 [3d Dept 2022]; People v LaPage, 207 AD3d 950, 951 [3d Dept 2022]).
Given the validity of the appeal waivers, defendant's contention that his convictions were in violation of the statutory prohibition against double jeopardy is foreclosed (see People v Muniz, 91 NY2d 570, 574-575 [1998]; People v Dale, 142 AD3d 1287, 1290 [4th Dept 2016], lv denied 28 NY3d 1144 [2017]), as is his challenge to the factual sufficiency of the plea allocution with respect to the burglary conviction (see People v Sims, 207 AD3d 882, 883-884 [3d Dept 2022]; People v Washington, 206 AD3d 1278, 1280 [3d Dept 2022]). Even if the appeal waivers were invalid, neither the statutory double jeopardy claim (see People v Dodson, 48 NY2d 36, 38 [1979]) nor the challenge to the factual sufficiency of the burglary plea (see People v Greene, 207 AD3d 804, 805 [3d Dept 2022], lv denied 38 NY3d 1150 [2022]) has been preserved for our review.
Egan Jr., J.P., Lynch, Pritzker and McShan, JJ., concur.
ORDERED that the judgment is affirmed[*2]. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482972/ | People v Ripley (2022 NY Slip Op 06293)
People v Ripley
2022 NY Slip Op 06293
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
111616
[*1]The People of the State of New York, Respondent,
vDamon Ripley, Appellant.
Calendar Date:October 12, 2022
Before:Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Fisher, J.
Appeal from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered November 28, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.
Defendant was indicted on one count of criminal possession of a weapon in the second degree, stemming from his possession of a loaded semi-automatic pistol found on his person during a traffic stop. During pre-trial hearings, defendant accepted a plea offer pursuant to which he pleaded guilty to the indictment, as reduced on the People's motion, to attempted criminal possession of a weapon in the second degree. As a condition of the reduction and plea agreement, defendant was required to waive his right to appeal and executed a written waiver of appeal. The agreement contemplated a prison sentence of seven years, to be followed by three years of postrelease supervision (hereinafter PRS); County Court indicated its intent to impose the maximum permissible sentence, and the parties appeared to believe that this was the maximum sentence that could be imposed on the reduced charge. At sentencing, when the court announced that it would impose a prison term of seven years with five years of PRS, defense counsel apprised the court that the contemplated period of PRS had been three years; the court reiterated that it had expressed its intent to impose the maximum permitted sentence and, after offering defendant an opportunity to withdraw his guilty plea, which he declined, imposed a prison term of seven years to be followed by five years of PRS, as a second felony offender. Defendant appeals.
We affirm. Regardless of the validity of the appeal waiver (see People v Drayton, 189 AD3d 1892, 1893 [3d Dept 2020]), defendant's challenge to the voluntariness of his guilty plea, premised upon County Court's imposition of a five-year period of PRS rather than the three-year period contemplated by the plea agreement, is unpreserved for our review in the absence of an appropriate postallocution motion (see CPL 220.60 [3]; People v Guerrero, 194 AD3d 1258, 1260 [3d Dept 2021], lv denied 37 NY3d 992 [2021]). Moreover, County Court expressly afforded defendant an opportunity to confer with counsel at sentencing when the issue arose, and advised him of the right to move to withdraw his guilty plea and return to the preplea stage, which defendant declined, expressly accepting the sentence (see People v Thompson-Goggins, 182 AD3d 916, 918 [3d Dept 2020]; see also People v Burnham, 206 AD3d 1368, 1369 [3d Dept 2022], lv denied ___ NY3d ___ [Sept. 30, 2022]; People v Sheckton, 239 AD2d 617, 618 [3d Dept 1997]; compare People v Drayton, 189 AD3d at 1894-1895). "The court . . . retains discretion in fixing an appropriate sentence up until the time of the sentencing" (People v Schultz, 73 NY2d 757, 758 [1988] [citation omitted]; see People v Augustine, 265 AD2d 671, 673 [3d Dept 1999]). Having been afforded ample opportunity in which to [*2]move to withdraw his guilty plea, and having declined, preservation of this claim to the validity of the guilty plea was required, and defendant waived any challenge to the court's imposition of a period of PRS greater than set forth during the plea proceedings (see People v Williams, 27 NY3d 212, 220-222, 224 [2016]; People v Mills, 146 AD3d 1173, 1174 [3d Dept 2017]; see also People v Delorbe, 35 NY3d 112, 119-120 [2020]; cf. People v Hoeltzel, 290 AD2d 587, 588-589 [3d Dept 2002]).
We agree with defendant's contention that the waiver of appeal is invalid (see People v Thomas, 34 NY3d 545, 566 [2019]). To that end, although County Court made clear that a waiver was a condition of the plea, it mischaracterized the scope of the appellate rights being relinquished by the waiver, stating, in overly broad language, that the right to appeal would be "gone forever" and that defendant "can never have it back" (see People v Carney, 207 AD3d 1000, 1000 [3d Dept 2022]; People v Goodwalt, 205 AD3d 1070, 1071 [3d Dept 2022], lv denied 38 NY3d 1071 [2022]). As this mischaracterization was not cured by the written waiver of appeal, which also contained some overly broad language (see People v Hawkins, 207 AD3d 814, 815 [3d Dept 2022]), "we cannot say that defendant[] comprehended the nature and consequences of the waiver of appellate rights" so as to render it knowing, voluntary and intelligent (People v Bisono, 36 NY3d 1013, 1018 [2020] [internal quotation marks, brackets and citations omitted]; see People v Moore, 201 AD3d 1209, 1210 [3d Dept 2022]). Accordingly, defendant is not precluded from challenging the imposed sentence as harsh and excessive (see People v Lopez, 6 NY3d 248, 256 [2006]). Nevertheless, the record fails to disclose that the sentence imposed was "unduly harsh or severe" (CPL 470.15 [6] [b]). Although the maximum period of imprisonment and PRS were imposed for this class D violent felony (see Penal Law §§ 70.06 [6] [c]; 70.45 [2]), defendant has an extensive criminal history dating back to 1991 that includes drug distribution, weapons trafficking and money laundering, and he committed this crime while he was on federal probation. Moreover, the agreement permitted defendant to enter a guilty plea to a reduced felony and avoid a 15-year sentence on the indicted charge (see Penal Law § 70.06 [6] [b]) and potential persistent felony offender sentencing of life in prison (see Penal Law §§ 70.00 [2] [a]; 70.08 [2]; 70.10). We have examined defendant's remaining contentions and find that they lack merit.
Lynch, J.P., Aarons, Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgment is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482975/ | People v McQuilla (2022 NY Slip Op 06288)
People v McQuilla
2022 NY Slip Op 06288
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
110213
[*1]The People of the State of New York, Respondent,
vRaymond K. McQuilla, Appellant.
Calendar Date:October 19, 2022
Before:Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.
Robert C. Kilmer, Binghamton, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Benjamin E. Holwitt of counsel), for respondent.
Reynolds Fitzgerald, J.
Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley Jr., J.), rendered December 15, 2017, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.
In September 2017, defendant was charged, by superior court information, with burglary in the third degree (see Penal Law § 140.20). Following waiver of indictment, defendant waived the right to appeal and pleaded guilty to this singular count with the understanding that he would be placed on interim probation and, upon successful completion thereof, would be sentenced to a five-year period of probation. If defendant did not successfully complete this period of interim probation, he faced a sentence of up to four years in prison. Defendant was subsequently arrested, and his interim probation was revoked because of the charges that stemmed therefrom. Defendant then consented to an indeterminate term of 1 to 3 years as to his present conviction in satisfaction of both this and the new charges, which would be dismissed. Following adjournments of sentencing for completion of the presentence investigation report, defendant was so sentenced. Defendant appeals.
Defendant's challenge to the voluntariness of the plea — premised upon his admission during the presentence investigation that he was under the influence of drugs and alcohol at the time of the commission of the crime — is unpreserved for review as defendant failed to make an appropriate postallocution motion despite having the opportunity to do so (see People v Greene, 207 AD3d 804, 805 [3d Dept 2022], lv denied 38 NY3d 1150 [2022]; People v Loya, 204 AD3d 1255, 1256 [3d Dept 2022], lv denied 38 NY3d 1072 [2022]). Despite these statements, "the narrow exception to the preservation rule is inapplicable because defendant failed to avail himself of the 'opportunity to seek relief from the sentencing court by moving to withdraw his plea based on his alleged intoxication defense'" (People v Fauntleroy, 206 AD3d 1347, 1347-1348 [3d Dept 2022] [brackets omitted], quoting People v Pastor, 28 NY3d 1089, 1090 [2016]; see People v Stafford, 195 AD3d 1466, 1467 [4th Dept 2021], lv denied 37 NY3d 1029 [2021]). Nor did these statements obligate County Court to sua sponte conduct an inquiry into the possibility of such a defense (see People v Fauntleroy, 206 AD3d at 1348; People v Lorenzo-Perez, 203 AD3d 847, 848 [2d Dept 2022], lv denied 38 NY3d 1034 [2022]; People v Bailey, 158 AD3d 948, 949 [3d Dept 2018]). Moreover, defendant's ineffective assistance of counsel claim, based upon trial counsel's failure to raise an issue with these statements at sentencing, does not implicate the voluntariness of his plea and is, therefore, foreclosed by his unchallenged waiver of the right to appeal (see People v Murray, 197 AD3d 1355, 1356 [3d Dept 2021], lv denied 38 NY3d 929 [2022]; People v Golden, 171 AD3d 1357, 1357 [3d Dept 2019]). To the extent defendant's allegations that trial counsel failed to investigate [*2]an intoxication defense can be said to implicate the voluntariness of his plea, such are similarly unpreserved in the absence of an appropriate postallocution motion (see People v Silva, 205 AD3d 1226, 1227 [3d Dept 2022], lv denied 38 NY3d 1074 [2022]; People v Lende, 204 AD3d 1224, 1225 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]).
Egan Jr., J.P., Clark, Pritzker and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482981/ | People v Bolster (2022 NY Slip Op 06297)
People v Bolster
2022 NY Slip Op 06297
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
112953
[*1]The People of the State of New York, Respondent,
vCody A. Bolster, Appellant.
Calendar Date:October 18, 2022
Before:Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.
Joseph E. Ermeti, Public Defender, Delhi (George V. Collins III of counsel), for appellant.
John L. Hubbard, District Attorney, Delhi (Shawn J. Smith of counsel), for respondent.
McShan, J.
Appeal from a judgment of the County Court of Delaware County (Gary A. Rosa, J.), rendered March 29, 2021, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.
Defendant was charged in a superior court information with burglary in the third degree, petit larceny and criminal possession of stolen property in the fifth degree. In full satisfaction thereof, defendant agreed to plead guilty to burglary in the third degree with the understanding that he would be placed on interim probation for a period of no more than 12 months subject to various terms and conditions, including — as relevant here — that he successfully complete the Delaware County Adult Treatment Court Program. If successful, defendant would be permitted to withdraw his plea and plead guilty to petit larceny, whereupon he would be sentenced to an additional two years of probation supervision. If unsuccessful, defendant would be sentenced to a prison term of 2⅓ to 7 years. The plea agreement also required defendant to waive his right to appeal, to execute a treatment court contract and to abide by various terms and conditions of his interim probation. Defendant pleaded guilty in conformity with the agreement in November 2019, and County Court (Northrup Jr., J.) placed him on interim probation.
In January 2020, defendant was sanctioned for his failure to report for urinalysis drug screens as required and, between July 2020 and August 2020, twice was charged with violating his probation by, among other things, failing to attend recommended treatment programs. On both occasions, the violation petitions were withdrawn, various sanctions were imposed and defendant's interim probation was continued. Thereafter, in January 2021, defendant again was charged with violating the terms and conditions of his probation by failing to abide by his curfew and refrain from consorting with disreputable individuals. Following a hearing, County Court (Rosa, J.) sustained the curfew violation and thereafter revoked defendant's interim probation and imposed the contemplated prison term. This appeal ensued.
Preliminarily, we agree with defendant that his waiver of the right to appeal is invalid. County Court (Northrup Jr., J.) did not explain that defendant's waiver of the right to appeal was separate and distinct from the trial-related rights that defendant would be forfeiting by pleading guilty, and the court's oral colloquy otherwise failed to establish that defendant appreciated the nature and ramifications of the appellate rights being relinquished (see People v Rodriguez, 206 AD3d 1383, 1384 [3d Dept 2022]; People v Boyd, 206 AD3d 1350, 1351 [3d Dept 2022], lv denied 38 NY3d 1149 [2022]). Additionally, the written waiver of appeal and the waiver provision embodied in defendant's treatment court contract purport to either effectuate a waiver of "any and all rights to appeal from the judgment of conviction" or encompass "all issues arising from [the] criminal proceeding[*2]." Given the overbroad language contained in the written waiver of appeal, which County Court did not ascertain defendant had read or understood (see People v Harper, 207 AD3d 965, 965-966 [3d Dept 2022]), and the noted deficiencies in the court's oral colloquy, we cannot say that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Ellithorpe, 207 AD3d 1001, 1001-1002 [3d Dept 2022]; People v Gotham, 202 AD3d 1157, 1157 [3d Dept 2022], lv denied 38 NY3d 950 [2022]; compare People v Andino, 185 AD3d 1218, 1218-1219 [3d Dept 2020], lv denied 35 NY3d 1110 [2020]).
In light of the invalid appeal waiver, defendant's challenge to the perceived severity of his sentence is not precluded (see People v Carney, 207 AD3d 1000, 1001 [3d Dept 2022]). That said, given defendant's documented lack of success on interim probation and his established violation of the terms and conditions thereof, we do not find that the contemplated term of imprisonment imposed was unduly harsh or severe (see CPL 470.15 [6] [b]). Defendant's related assertion — that County Court (Rosa, J.) impermissibly enhanced his sentence based upon probation violations that had not in fact been established — is equally unpersuasive. As defense counsel acknowledged at the time of sentencing, relevant sentencing considerations included, among other things, the facts established at the violation hearing, the history contained in the presentence investigation report and the conclusions that reasonably could be drawn therefrom. In this regard, although County Court indeed referenced the unsustained probation violation (consorting with disreputable individuals), the court also acknowledged that the sentence to be imposed could not "be based upon other things [that defendant had] done." As the information contained in the presentence investigation report, including defendant's demonstrated lack of success on interim probation, fully supports County Court's decision to impose the contemplated term of imprisonment, we discern no basis upon which to disturb it (see generally People v Mays, 181 AD3d 874, 875 [2d Dept 2020], lv denied 36 NY3d 1058 [2021]; compare People v Murdock, 175 AD3d 1560, 1563 [2d Dept 2019]).
We also reject defendant's assertions that he was denied due process at sentencing. Following initial remarks from the District Attorney and defense counsel at the sentencing proceeding, defendant was afforded an opportunity to speak, which he declined. An additional discussion between the District Attorney, defense counsel and County Court ensued, at the conclusion of which the court imposed sentence. The fact that defendant was not afforded a second opportunity to speak at the conclusion of the foregoing colloquy does not, in our view, give rise to a due process violation. Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Lynch, Reynolds Fitzgerald and Ceresia[*3], JJ. concur.
ORDERED that the judgment is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482974/ | People v Merritt (2022 NY Slip Op 06299)
People v Merritt
2022 NY Slip Op 06299
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
113072
[*1]The People of the State of New York, Respondent,
vStephan Merritt, Appellant.
Calendar Date:October 19, 2022
Before:Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.
Lisa A. Burgess, Indian Lake, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Vivian Y. Joo of counsel), for respondent.
Ceresia, J.
Appeal from a judgment of the County Court of Clinton County (William A. Favreau, J.), rendered January 8, 2021, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant was indicted and charged with one count each of promoting prison contraband in the first degree and criminal possession of a weapon in the third degree. The charges stemmed from an incident wherein defendant was found to be in possession of a shank-type weapon while incarcerated at Clinton Correctional Facility. In full satisfaction of that indictment, defendant agreed to plead guilty to one count of attempted promoting prison contraband in the first degree with the understanding that he would be sentenced as a second felony offender to a prison term of 1½ to 3 years — said sentence to be served consecutively to the prison term he then was serving. The plea agreement also required defendant to waive his right to appeal and contemplated that a fine — in an amount to be determined by County Court — would be imposed. Defendant, appearing virtually, pleaded guilty in conformity with the plea agreement, and the matter was adjourned for sentencing. Prior thereto, defendant executed a written waiver of the right to appeal. County Court subsequently sentenced defendant to the agreed-upon prison term and, as relevant here, imposed a fine in the amount of $2,500. This appeal ensued.
We affirm. Initially, for the reasons set forth below, we need not address defendant's claim that his waiver of the right to appeal is unenforceable. As for defendant's challenge to the voluntariness of his plea, which survives even a valid appeal waiver (see People v Guerrero, 194 AD3d 1258, 1260 [3d Dept 2021], lv denied 37 NY3d 992 [2021]), this issue is unpreserved for our review in the absence of a postallocution motion (see People v Greene, 207 AD3d 804, 805 [3d Dept 2022], lv denied 38 NY3d 1150 [2022]; People v Rubert, 206 AD3d 1378, 1380 [3d Dept 2022]). Contrary to defendant's assertion, the narrow exception to the preservation requirement was not triggered here as defendant did not make any statements during the plea colloquy or at sentencing that negated an element of the charged crime, were inconsistent with his guilt or otherwise called into question the voluntariness of his plea (see People v Sims, 207 AD3d 882, 884 [3d Dept 2022]; People v See, 206 AD3d 1153, 1155 [3d Dept 2022]). To the extent that defendant stated during the course of his presentence investigation interview that "another [incarcerated individual] asked him to hold a spoon for him and [defendant] put it in his waistband not realizing that it was a weapon," such statement was both inconsistent with defendant's sworn plea allocution (see People v Pittman, 166 AD3d 1243, 1245 [3d Dept 2018], lv denied 32 NY3d 1176 [2019]) and insufficient to impose a duty of further inquiry upon County Court (see People v Ospina, 175 AD3d 513, 514 [2d Dept 2019], lv denied [*2]34 NY3d 983 [2019]; cf. People v Fauntleroy, 206 AD3d 1347, 1347-1348 [3d Dept 2022]).
As to the fine imposed, because the amount of the fine was left to County Court's discretion and, hence, "was not included in the terms of the plea bargain," defendant's challenge to the perceived severity thereof also survives even a valid appeal waiver (People v Sequin, 201 AD3d 1252, 1253 [3d Dept 2022] [internal quotation marks and citation omitted]). However, inasmuch as defendant did not object to the amount of the fine imposed at sentencing, his argument is unpreserved for our review (see id. at 1253). To be sure, defendant expressed concern at the time of his plea regarding his ability to pay the applicable "surcharge," whereupon County Court advised him that any issues regarding the fine or surcharge to be imposed could be addressed at sentencing. That said, defendant made no argument on this point prior to the imposition of sentence, nor did he object to the amount of the fine ultimately imposed. Accordingly, this issue is not properly before us.
Egan Jr., J.P., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482983/ | Matter of Yang (2022 NY Slip Op 06308)
Matter of Yang
2022 NY Slip Op 06308
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
PM-187-22
[*1]In the Matter of Wenxuan Yang, a Resigned Attorney. (Attorney Registration No. 5740618.)
Calendar Date:September 26, 2022
Before:Garry, P.J., Egan Jr., Aarons, Pritzker and Fisher, JJ.
Wenxuan Yang, Bellevue, Washington, respondent pro se.
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for Attorney Grievance Committee for the Third Judicial Department.
Per Curiam.
Wenxuan Yang was admitted to practice by this Court in November 2019 and resides in Washington State, although he is not admitted there, or in any other jurisdiction. In June 2021, Yang applied for leave to resign from the New York bar, citing the fact that he was not practicing in any jurisdiction and intended to return to school; this Court granted the application by August 2021 order (197 AD3d 816 [3d Dept 2021]).
Yang now seeks his reinstatement by affidavit with exhibits sworn to August 5, 2022 (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.22 [b]). The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) advises, by September 22, 2022 correspondence, that it has no objection to the relief requested.
An applicant seeking reinstatement from nondisciplinary resignation must "establish both the requisite legal education or experience and the necessary character and fitness as would be required of an applicant for admission in the first instance" (Matter of Weiss, 166 AD3d 1159, 1160 [3d Dept 2018]; see Matter of Gaudioso, 159 AD3d 1217, 1218 [3d Dept 2018]). In disposing of such an application, we have wide discretion to either grant the application, with or without any conditions deemed appropriate, or to deny the application with leave to renew upon the completion of the Multistate Professional Responsibility Examination, additional continuing legal education (hereinafter CLE) or even a new administration of the New York Bar Examination (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.22 [b]; see generally Matter of Tuve, 171 AD3d 1392, 1393 [3d Dept 2019]).[FN1]
We have determined, based upon our review of Yang's application for reinstatement and AGC's response thereto, that the matter presents no cause for character and fitness concerns. However, we observe that Yang has been completely attenuated from the practice of law for more than a year and has not engaged in any CLE during that period.[FN2] While we do not conclude that the circumstances require Yang to successfully complete the Uniform Bar Examination anew as a prerequisite to his reinstatement, we are of the view that Yang's completion of certain CLE accreditation is appropriate (see Matter of Tuve, 171 AD3d at 1393-1394). Accordingly, we grant Yang's application for reinstatement, but condition such reinstatement upon his completion, within two years of the date of this order, of CLE accreditation commensurate with that required of all newly-admitted attorneys in New York (see Rules of App Div, All Depts [22 NYCRR] § 1500.12 [a]).
Garry, P.J., Egan Jr., Aarons, Pritzker and Fisher, JJ., concur.
ORDERED that Wenxuan Yang's application for reinstatement is granted; and it is further
ORDERED that Wenxuan Yang's name is hereby restored to the roll of attorneys and counselors-at-law of the State of New York, effective immediately; and it is further
ORDERED that Wenxuan Yang shall, within 30 days of the date of this decision[*2], file an attorney registration statement with the Chief Administrator of the Courts pursuant to Judiciary Law § 468—a and Rules of the Chief Administrator of the Courts (22 NYCRR) § 118.1; and it is further
ORDERED that Wenxuan Yang shall submit documentation to the Attorney Grievance Committee for the Third Judicial Department establishing his satisfaction of continuing legal education accreditation equivalent to that required by Rules of the Appellate Division, All Departments (22 NYCRR) § 1500.12 (a), on or before November 10, 2024.
Footnotes
Footnote 1: We note that certain amendments to this Court's Rules impose CLE prerequisites upon all reinstatement applicants who have been resigned for more than two years (see Rules of App Div, 3d Dept [22 NYCRR] § 806.22 [b] [2]). The instant application was filed prior to the effective date of such amendments.
Footnote 2: Since Yang was granted leave to resign prior to completing his biennial registration obligations in 2021 (see Rules of App Div, All Depts [22 NYCRR] § 1500.13 [b]), Office of Court Administration records also provide no indication that Yang completed any CLE prior to his resignation. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482979/ | People v DeJesus (2022 NY Slip Op 06291)
People v DeJesus
2022 NY Slip Op 06291
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
110954
[*1]The People of the State of New York, Respondent,
vLuis DeJesus, Appellant.
Calendar Date:October 19, 2022
Before:Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.
Barrett D. Mack, Albany, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), for respondent.
Reynolds Fitzgerald, J.
Appeal from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered April 15, 2018, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
In August 2017 defendant and a codefendant were charged in a five-count superseding indictment with two counts of robbery in the first degree, robbery in the second degree and two counts of burglary in the first degree based upon allegations that they, with another, forcibly broke into the victims' home and stole certain property. In satisfaction of the foregoing, as well as unindicted charges stemming from a subsequent arrest, defendant pleaded guilty to count 2, robbery in the first degree, and waived his right to appeal. County Court sentenced defendant, in accord with the terms of the plea agreement, to a prison term of 12 years to be followed by five years of postrelease supervision. Defendant appeals. We affirm.
Despite indicating that he wished to withdraw his plea as a result of the length of the bargained for sentence, upon conferring with counsel, defendant did not do so. Thus, while defendant's attack on the voluntariness of his plea survives his unchallenged appeal waiver, it is unpreserved for our review given his failure to make an appropriate postallocution motion despite the opportunity to do so (see People v Reese, 206 AD3d 1461, 1463 [3d Dept 2022]; People v Parkinson, 199 AD3d 1243, 1243 [3d Dept 2021], lv denied 37 NY3d 1163 [2022]). The narrow exception to the preservation requirement does not apply here as "defendant did not make any statements during the plea colloquy [or at sentencing] that were inconsistent with his guilt, negated an essential element of the charged crime or otherwise called into question the voluntariness of his plea" (People v Silva, 205 AD3d 1226, 1227 [3d Dept 2022] [internal quotation marks and citation omitted], lv denied 38 NY3d 1074 [2022]). Moreover, defendant's postplea claim of innocence, articulated during his presentence investigation interview, "did not obligate County Court to conduct a further inquiry" (People v Duckett, 205 AD3d 1229, 1230 [3d Dept 2022]; see People v Bailey, 158 AD3d 948, 949 [3d Dept 2018]).
Defendant's challenge to the severity of his sentence is foreclosed by his unchallenged appeal waiver (see People v Agueda, 202 AD3d 1153, 1154 [3d Dept 2022], lv denied 38 NY3d 1031 [2022]). To the extent that defendant's claim that he received ineffective assistance of counsel impacts the voluntariness of his plea, such claim survives his appeal waiver but is similarly unpreserved in light of his failure to make an appropriate postallocution motion (see People v Lende, 204 AD3d 1224, 1225 [3d Dept 2022], lv denied 38 NY3d 1151 [2022]; People v Deans, 202 AD3d 1161, 1161-1162 [3d Dept 2022]). Defendant's pro se contention that the People have failed to abide by their promise to return certain property at the close of codefendant's case is more properly the subject of a CPLR article [*2]78 proceeding seeking the return of such property (see generally Matter of Khoshneviss v Property Clerk of N.Y. City Police Dept., 123 AD3d 929, 929 [2d Dept 2014], lv denied 25 NY3d 903 [2015]; Matter of James v Cattaraugus County, 101 AD3d 1674, 1674-1675 [4th Dept 2012]) and his related contention that this failure impacted the voluntariness of his plea is unpreserved (see People v Reese, 206 AD3d at 1462). We have reviewed defendant's remaining contentions and find them to be lacking in merit.
Egan Jr., J.P., Clark, Pritzker and Ceresia, JJ., concur.
ordered that the judgment is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482976/ | People v McNeil (2022 NY Slip Op 06294)
People v McNeil
2022 NY Slip Op 06294
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
111754
[*1]The People of the State of New York, Respondent,
vRicky McNeil, Appellant.
Calendar Date:October 11, 2022
Before:Garry, P.J., Clark, Aarons, Pritzker and Fisher, JJ.
Eric K. Schillinger, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Aarons, J.
Appeal from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered May 10, 2019, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.
In 2018, a vehicle was reported driving erratically on I-87 and ultimately drove off the road into a ditch in the Town of Saugerties, Ulster County. Defendant was observed at the scene, questioned, and failed a chemical breath test — establishing that his blood alcohol level was .10% — resulting in his arrest. Defendant had three prior convictions for driving while intoxicated (hereinafter DWI) within the preceding 15 years and required the use of an ignition interlock system and, consequently, was charged by indictment with DWI, aggravated unlicensed operation of a motor vehicle in the first degree and circumvention of an interlock device. In full satisfaction of the indictment, defendant pleaded guilty to count 1 charging him with DWI with the understanding that he would be sentenced to a prison term of 1½ to 4½ years. Pursuant to this plea agreement, defendant purportedly waived his right to appeal both orally and in writing. County Court then imposed the agreed-upon prison term. Defendant appeals.
We affirm. As defendant contends, his waiver of the right to appeal is invalid. County Court utilized overbroad language in its oral colloquy while explaining defendant's right to appeal by stating that once defendant waived this right, it was "gone forever" (see People v Carney, 207 AD3d 1000, 1000 [3d Dept 2022]; People v Hawkins, 207 AD3d 814, 815 [3d Dept 2022]; People v Goodwalt, 205 AD3d 1070, 1071 [3d Dept 2022], lv denied 38 NY3d 1071 [2022]). Further, the written waiver executed by defendant claimed to be "a complete and final disposition of th[e] case." Because the court mischaracterized the rights to be waived and also "failed to ensure that defendant understood the distinction that some appellate review survived the appeal waiver" (People v Carney, 207 AD3d at 1000 [internal quotation marks and citations omitted]; see People v Streater, 207 AD3d 952, 953-954 [3d Dept 2022]), the appeal waiver is not valid.
Although defendant's challenge to the factual sufficiency of the plea allocution is not foreclosed, it is nevertheless unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v Linear, 200 AD3d 1498, 1499 [3d Dept 2021], lv denied 38 NY3d 951 [2022]). The narrow exception to the preservation rule is inapplicable as it "applies only where a recitation of facts casts significant doubt on a defendant's guilt and not, as here, where the sufficiency of the articulation of the element is challenged" (People v Greene, 207 AD3d 804, 805 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 NY3d 1150 [2022]). In any event, defendant "was not required to recite the elements of his crime or engage in a factual exposition, as his affirmative and unequivocal responses [*2]to the inquiries posed to him were sufficient to establish his guilt" (People v Ridge, 201 AD3d 1205, 1207 [3d Dept 2022] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 38 NY3d 1153 [2022]; see People v Rubert, 206 AD3d 1378, 1380 [3d Dept 2022]). Nor are we persuaded that County Court lacked geographic jurisdiction. Although not waived by his guilty plea (see People v Kellerman, 102 AD2d 629, 630-631 [3d Dept 1984]), the location of defendant's criminal conduct was established by the record to be within Ulster County and was sufficiently set forth in the indictment to which defendant pleaded guilty (see CPL 20.40 [1] [a]; People v Decker, 139 AD3d 1113, 1115 n 1 [3d Dept 2016], lv denied 28 NY3d 928 [2016]; People v White, 104 AD3d 1056, 1057 [3d Dept 2013], lv denied 21 NY3d 1021 [2013]).
Garry, P.J., Clark, Pritzker and Fisher, JJ., concur.
ORDERED that the judgment is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482978/ | People v Dye (2022 NY Slip Op 06289)
People v Dye
2022 NY Slip Op 06289
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
110394B
[*1]The People of the State of New York, Respondent,
vMichael Dye, Appellant.
Calendar Date:October 14, 2022
Before:Garry, P.J., Egan Jr., Clark, Ceresia and Fisher, JJ.
Erin C. Morigerato, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Garry, P.J.
Appeal from a judgment of the County Court of Albany County (William A. Carter, J.), rendered March 29, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
In satisfaction of multiple pending indictments, defendant pleaded guilty to criminal possession of a weapon in the second degree and purported to waive his right to appeal. County Court sentenced defendant to a prison term of 10 years followed by five years of postrelease supervision. Defendant appeals.[FN1]
Initially, the People concede, and our review of the record confirms, that defendant's appeal waiver is invalid given County Court's terse and inadequate explanation of the nature of the appeal waiver as well as its failure to ascertain — either during the plea colloquy or after defendant executed a written waiver — whether defendant understood the ramifications thereof (see People v Rodriguez, 206 AD3d 1383, 1384 [3d Dept 2022]; People v Boyd, 206 AD3d 1350, 1351 [3d Dept 2022], lv denied 38 NY3d 1149 [2022]).
Defendant contends that his plea was not knowing, voluntary and intelligent because County Court, among other things, did not ensure that defendant understood the consequences of pleading guilty and because his plea was the result of pressure and coercion. Defendant's challenge to the voluntariness of the plea is not preserved for our review as the record does not reflect that he made an appropriate postallocution motion, despite having an opportunity to do so (see People v Sims, 207 AD3d 882, 884 [3d Dept 2022]; People v Huebsch, 199 AD3d 1174, 1175 [3d Dept 2021], lv denied 37 NY3d 1161 [2022]). Further, upon review of the record, we are unpersuaded by defendant's assertion that the narrow exception to the preservation requirement is applicable (see People v Hawkins, 207 AD3d 814, 815 [3d Dept 2022]; People v Loya, 204 AD3d 1255, 1256 [3d Dept 2022], lv denied 38 NY3d 1072 [2022]). Were we to consider such challenge to his plea, we would find it to be without merit as the record reflects that defendant was apprised of the trial-related rights he was forfeiting by pleading guilty, and he assured the court that he had sufficient time to speak with and was satisfied with counsel, that he understood the consequences of pleading guilty and that he was pleading guilty voluntarily (see People v Hawkins, 207 AD3d at 815-816; People v Huebsch, 199 AD3d at 1175-1176). Further, County Court advising defendant of the maximum potential sentencing exposure does not indicate bias, coercion or threat by the court (see People v Hawkins, 207 AD3d at 816; People v Loya, 204 AD3d at 1256).
Defendant's ineffective assistance of counsel claim, to the extent that it impacts the voluntariness of the plea, is similarly unpreserved for our review (see People v Elawar, 204 AD3d 1247, 1249 [3d Dept 2022], lv denied 38 NY3d 1133 [2022]). To the extent that defendant contends that counsel failed to adequately investigate, advise and zealously [*2]advocate for a more favorable plea agreement, such issues involve matters outside the record and are more appropriately addressed in a CPL article 440 motion (see People v Williams, 203 AD3d 1398, 1400 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]; People v Huebsch, 199 AD3d at 1176).
Finally, we discern no basis upon which to disturb the sentence imposed (see CPL 470.15 [6] [b]). Defendant's remaining contentions, to the extent not specifically addressed, have been reviewed and found to be without merit.
Egan Jr., Clark, Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.
Footnotes
Footnote 1: This Court previously granted defense counsel's application to withdraw and assigned new counsel to represent defendant on appeal (197 AD3d 1436 [3d Dept 2021]). | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482980/ | People v Curry (2022 NY Slip Op 06296)
People v Curry
2022 NY Slip Op 06296
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
112233
[*1]The People of the State of New York, Respondent,
vAaron M. Curry, Appellant.
Calendar Date:October 19, 2022
Before:Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.
Erin C. Morigerato, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Kerianne Morrissey of counsel), for respondent.
Clark, J.
Appeal from a judgment of the County Court of Clinton County (Timothy J. Lawliss, J.), rendered December 18, 2019, which revoked defendant's probation and imposed a sentence of imprisonment.
In April 2018, upon his plea of guilty of the crimes of grand larceny in the third degree and grand larceny in the fourth degree, defendant was sentenced to concurrent six-month jail terms to be followed by five years of probation.[FN1] In September 2019, defendant was charged with violating several terms of his probation. On the day scheduled for a hearing on the violation petition, following an off-the-record conference, defendant admitted to willfully violating two conditions of probation, namely, failing to report to his probation officer and failing to report for an alcohol test as directed. County Court made no sentencing promises but advised defendant of the maximum potential resentence that could be imposed on the convictions. The court thereafter found that defendant had willfully violated the terms of his probation and, consequently, revoked his probation and resentenced him to concurrent prison terms of 2 to 6 years on the grand larceny in the third degree conviction and 1⅓ to 4 years on the grand larceny in the fourth degree conviction. Defendant appeals.
We affirm. Defendant's challenge to the voluntariness of his admission to the probation violations is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion (see CPL 220.60 [3]; People v Purdie, 205 AD3d 1225, 1225 [3d Dept 2022], lv denied 38 NY3d 1135 [2022]; People v Feltz, 190 AD3d 1027, 1028 [3d Dept 2021]), despite ample time to do so during the month following his admission, prior to sentencing (see People v Williams, 27 NY3d 212, 214 [2016]; People v Conceicao, 26 NY3d 375, 381-382 [2015]; compare People v Miazga, 171 AD3d 1358, 1359 [3d Dept 2019]). Were we to review this claim, we would find that defendant was advised of the consequences of his admissions and the maximum potential sentence, and that his sworn admissions were knowing, voluntary and intelligent (see People v Miazga, 171 AD3d at 1359). Moreover, defendant was advised that, if he admitted the allegations, he would be forgoing an evidentiary hearing and the rights associated with a hearing, all of which were explained and which he waived (see People v McMillan, 166 AD3d 1231, 1232 [3d Dept 2018]; see also CPL 410.70).
Defendant argues that defense counsel did not provide the effective assistance of counsel. Notably, the substance of the off-the-record conference held just prior to defendant's admissions is unknown, and defendant consented to not being present. Defendant's assertions as to what counsel investigated or what counsel advised or failed to advise him regarding making admissions, waiving a hearing, possible defenses to the violation petition and the strength of the People's case are outside of the record on direct appeal and, as such, are more properly raised [*2]in a motion to vacate pursuant to CPL article 440, in conjunction with his record-based claims (see People v Taylor, 135 AD3d 1237, 1238 [3d Dept 2016], lv denied 27 NY3d 1075 [2016]; see e.g. People v Goodwalt, 205 AD3d 1070, 1072-1073 [3d Dept 2022], lv denied 38 NY3d 1071 [2022]; People v Johnson, 194 AD3d 1267, 1269 [3d Dept 2021]). Sentencing was left to the discretion of County Court and defense counsel argued, albeit unsuccessfully, the relevant mitigating factors in favor of probation or jail time instead of prison. Although the court ultimately imposed a lengthy prison sentence — one which was below the maximum permitted for the grand larceny in the third degree conviction (see Penal Law § 70.00 [2] [d]; [3] [b]) — counsel's strategy did not render the representation ineffective (see People v Benevento, 91 NY2d 708, 713-714 [1998]; People v Ballard, 200 AD3d 1476, 1478 [3d Dept 2021], lv denied 38 NY3d 925 [2022]). Finally, upon consideration of the relevant factors and underlying conduct, we are not persuaded by defendant's contention that the sentence was "unduly harsh or severe" (CPL 470.15 [6] [b]) given his significant criminal history.[FN2] Defendant's remaining claims have been considered and found to be without merit.
Egan Jr., J.P., Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed.
Footnotes
Footnote 1: Defendant also pleaded guilty to four misdemeanors, for which fines were imposed.
Footnote 2: Defendant's arguments regarding a waiver of appeal are misplaced as no oral or written waiver was contemplated or executed with regard to these admissions. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482984/ | Matter of Wolff (Industrial Medicine Assoc., P.C.--Commissioner of Labor) (2022 NY Slip Op 06304)
Matter of Wolff (Industrial Medicine Assoc., P.C.--Commissioner of Labor)
2022 NY Slip Op 06304
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
533585
[*1]In the Matter of the Claim of Edward Wolff, Respondent. Industrial Medicine Associates, P.C., Appellant, Commissioner of Labor, Respondent.
Calendar Date:October 19, 2022
Before:Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.
Harter Secrest & Emery LLP, Buffalo (Robert C. Weissflach of counsel), for appellant.
Catherine A. Barber, Guilderland, for Edward Wolff, respondent.
Letitia James, Attorney General, New York City (Marjorie S. Leff of counsel), for Commissioner of Labor, respondent.
Egan Jr., J.P.
Appeal from two decisions of the Unemployment Insurance Appeal Board, filed December 4, 2020, which ruled, among other things, that Industrial Medicine Associates, P.C. was liable for unemployment insurance contributions on remuneration paid to claimant and others similarly situated.
Industrial Medicine Associates, P.C. (hereinafter IMA) is a disability evaluation company that assesses individuals seeking disability benefits and provides that information to government entities. To provide these services, IMA recruits and retains the services of medical evaluators, some of whom IMA considers independent contractors and all of whom are licensed physicians. Claimant, a physician and board-certified internist, applied to IMA to work as a medical evaluator and subsequently entered into an independent contractor agreement with IMA to perform services as a medical evaluator from May 2017 to September 2017. Following the provision of his services, claimant applied for unemployment insurance benefits. The Department of Labor subsequently issued an initial determination finding that claimant was an employee of IMA and that IMA was liable for unemployment insurance contributions based upon remuneration paid to claimant and others similarly situated. IMA objected on the ground that claimant was an independent contractor. Following hearings, an Administrative Law Judge sustained the initial determination, and, upon administrative appeal, the Unemployment Insurance Appeal Board affirmed. IMA appeals.
We affirm. "Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the Board, if supported by substantial evidence on the record as a whole, is beyond further judicial review" (Matter of Eisenberg [CenseoHealth LLC-Commissioner of Labor], 205 AD3d 1185, 1185 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Brown [Plannernet, Inc.-Commissioner of Labor], 195 AD3d 1329, 1331 [3d Dept 2021]). "Substantial evidence is a minimal standard that demands only such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Blomstrom [Katz-Commissioner of Labor], 200 AD3d 1232, 1233 [3d Dept 2021] [internal quotation marks and citations omitted]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). "Where, as here, the work of medical professionals is involved, the pertinent inquiry is whether the purported employer retained overall control over the work performed" (Matter of DeRoberts Plastic Surgery [Commissioner of Labor], 198 AD3d 1033, 1034 [3d Dept 2021] [internal quotation marks and citations omitted]; Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736-737 [1983]; see Matter of Lawlor [ExamOne World Wide Inc.-Commissioner of Labor], 130 AD3d 1345, 1346 [3d Dept 2015]). "Further, an organization which screens the services [*2]of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship" (Matter of DeRoberts Plastic Surgery [Commissioner of Labor], 198 AD3d at 1034 [internal quotation marks and citations omitted]; accord Matter of Millennium Med. Care, P.C. [Commissioner of Labor], 175 AD3d 755, 757 [3d Dept 2019]; Matter of Kliman [Genesee Region Home Care Assn., Inc.-Commissioner of Labor], 141 AD3d 1049, 1050 [3d Dept 2016]).
The record demonstrates that IMA utilized a recruitment department that placed advertisements seeking physicians who would be interested in being retained by IMA as medical evaluators. IMA screened potential candidates by, among other things, checking or verifying licensure and interviewing the potential candidates by telephone or in person. Once retained, IMA scheduled the patients to be seen by claimant and set the office hours during which the evaluations would take place. IMA required claimant to meet with a mentor physician who would review with claimant the elements of the evaluation and report, as well as the requirements of the agency, and IMA's quality assurance department also ensured that claimant's reports conformed to any requirements imposed by the agency. To that end, all reports written by new medical evaluators were submitted to IMA's quality assurance department, and IMA could and would require claimant or any other medical evaluator to make corrections to the reports, which did not result in additional compensation. Although a medical evaluator could be taken off the quality assurance review process once they were deemed by IMA to be experienced enough, claimant was not taken off the quality assurance review process. Moreover, experienced medical evaluators were still randomly subject to having their reports reviewed by IMA's quality assurance department. Similarly, if any quality assurance issues arose during a case, claimant could contact his mentor to discuss the case. IMA required claimant to dictate all reports by the end of the day and, on the second day, review and sign all reports. If any complaints were lodged about claimant's services, IMA would handle those complaints.
IMA also provided training, the physical location/offices, a support staff, tools and certain supplies to claimant. With regard to training, claimant was trained on how to perform evaluations by the director of medical service and also received additional training. Claimant was required to notify IMA of any absences or days that he was not available, and, if claimant was absent from work, IMA assigned someone else to perform claimant's duties, as claimant was not permitted to find his own substitute. If a medical evaluator did not carry their own medical malpractice insurance — and claimant did not — IMA would cover that individual under its own blanket malpractice policy. Claimant would still be paid regardless of whether IMA received payment from a client for [*3]an evaluation conducted. Claimant was also prohibited from soliciting IMA's clients to be his own patients. Notwithstanding proof in the record that might support a contrary conclusion, we find that the foregoing constitutes substantial evidence to support the Board's decisions that IMA, while not directly supervising the evaluative services that claimant provided, retained sufficient overall control over the work performed by claimant and those similarly situated to establish an employer-employee relationship (see Matter of DeRoberts Plastic Surgery [Commissioner of Labor], 198 AD3d at 1035; Matter of Millennium Med. Care, P.C. [Commissioner of Labor], 175 AD3d at 757-758; Matter of Williams [Summit Health, Inc.-Commissioner of Labor], 146 AD3d 1210, 1210-1211 [3d Dept 2017]; Matter of O'Shea [Cayuga Emergency Physicians, LLP-Commissioner of Labor], 140 AD3d 1358, 1359 [3d Dept 2016]). To the extent that we have not addressed IMA's remaining contentions, they have been considered and found to be without merit.
Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ., concur.
ORDERED that the decisions are affirmed, without costs. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482964/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 193
Ordahl, LLC, Plaintiff and Appellant
v.
Arlene Lykken, Bruce Lykken,
Paul Lykken, and Sandra Teske, Defendants and Appellees
No. 20220115
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Jensen, Chief Justice.
Kasey D. McNary, Fargo, ND, for plaintiff and appellant.
Andrew D. Cook, West Fargo, ND, for defendants and appellees.
Ordahl v. Lykken
No. 20220115
Jensen, Chief Justice.
[¶1] Ordahl LLC (“Ordahl”) appeals from a district court order granting
Arlene Lykken, Bruce Lykken, Paul Lykken, and Sandra Teske’s (“the
Lykkens”) motion for summary judgment and denying Ordahl’s motion for
summary judgment. We conclude the court erred in determining the purchase
agreement required Ordahl to terminate the agreement and limited Ordahl to
a recovery of its earnest money. We reverse and remand this case for
consideration of whether Ordahl should prevail on its equitable claim to
enforce the terms of the parties’ agreement through specific performance and,
if necessary, consider the Lykkens’s request for reformation of the agreement.
I
[¶2] Ordahl and the Lykkens executed a purchase agreement for the sale of
12 acres of land and an easement on adjacent property to the north of the
parcel. Under the terms of the purchase agreement, Ordahl was required to
provide a $10,000 earnest money payment.
[¶3] After the purchase agreement was signed, the Lykkens anticipatorily
breached the agreement. Ordahl brought suit seeking a declaratory judgment
declaring that Ordahl’s relief was not limited to the return of its earnest money.
Ordahl claimed it was not required to terminate the parties’ agreement and
was entitled to enforce the terms of the agreement through the equitable
doctrine of specific performance. The Lykkens counterclaimed seeking
reformation of the purchase agreement.
[¶4] Both parties moved for summary judgment. The district court focused on
the interpretation of Section 12 of the parties’ agreement which provides as
follows:
12. Remedies. If Buyer defaults under this Agreement, Seller shall
have the right to terminate this Agreement by giving written
notice thereof to Buyer. If Buyer fails to cure such default within
thirty (30) days after notice of cancellation, then this Agreement
1
will terminate, and upon such termination Seller will be entitled
to receive and retain the Earnest Money as liquidated damages, as
its sole and exclusive remedy and Buyer expressly waives and
releases any and all claims for incidental or consequential
damages, time being of the essence of this Agreement. If Seller
defaults under this Agreement, Buyer may terminate this
Agreement and recover the Earnest Money as its sole and exclusive
remedy and Buyer expressly waives and releases any and all claims
for incidental or consequential damages.
(Emphasis added.) The court found the phrase “sole and exclusive
remedy” to be unambiguous and held Ordahl was limited to termination
of the agreement and the recovery of its earnest money. The court
granted the Lykkens’s motion for summary judgment and dismissed
Ordahl’s claims. Having dismissed Ordahl’s claims it was unnecessary
for the court to resolve the Lykkens’s counterclaim for reformation.
II
[¶5] The standard for reviewing summary judgment is well established:
Summary judgment is a procedural device under N.D.R.Civ.P.
56(c) for promptly resolving a controversy on the merits without a
trial if there are no genuine issues of material fact or inferences
that can reasonably be drawn from undisputed facts, or if the only
issues to be resolved are questions of law. The party seeking
summary judgment must demonstrate there are no genuine issues
of material fact and the case is appropriate for judgment as a
matter of law. In deciding whether the district court appropriately
granted summary judgment, we view the evidence in the light
most favorable to the opposing party, giving that party the benefit
of all favorable inferences which can reasonably be drawn from the
record. A party opposing a motion for summary judgment cannot
simply rely on the pleadings or on unsupported conclusory
allegations. Rather, a party opposing a summary judgment motion
must present competent admissible evidence by affidavit or other
comparable means that raises an issue of material fact and must,
if appropriate, draw the court’s attention to relevant evidence in
the record raising an issue of material fact. When reasonable
persons can reach only one conclusion from the evidence, a
question of fact may become a matter of law for the court to decide.
2
A district court’s decision on summary judgment is a question of
law that we review de novo on the record.
Solberg v. McKennett, 2021 ND 44, ¶ 6, 956 N.W.2d 767 (quoting Aftem Lake
Dev., Inc. v. Riverview Homeowners Ass’n, 2020 ND 26, ¶ 8, 938 N.W.2d 159).
[¶6] “Interpretation of a contract is a question of law if the intent of the
parties can be ascertained from the agreement alone.” Airport Inn Enters., Inc.
v. Ramage, 2004 ND 92, ¶ 10, 679 N.W.2d 269. A trial court’s finding regarding
the legal effect of terms of a contract is a question of law, which is fully
reviewable on appeal. Northstar Founders, LLC v. Hayden Capital USA, LLC,
2014 ND 200, ¶ 45, 855 N.W.2d 614. “On appeal, this Court will independently
review a contract to determine whether the district court erred in its
interpretation of it.” Airport Inn, at ¶ 10. “We construe contracts to give effect
to the parties’ mutual intent at the time the contract was formed.” Northstar,
at ¶ 45. If possible, we will look to the language of the contract alone to
determine the parties’ intent. N.D.C.C. § 9-07-04. Words are given their
ordinary and popular meaning unless the words are used in a technical sense
or given a special meaning. Myaer v. Nodak Mut. Ins. Co., 2012 ND 21, ¶ 10,
812 N.W.2d 345. When interpreting a contract, we will read the contract as a
whole to give effect to each provision. N.D.C.C. § 9-07-06. Whether a contract
is ambiguous is a question of law. Northstar, at ¶ 47.
[¶7] We conclude the purchase agreement is clear and unambiguous. The
relevant clause of Section 12 provides: “If Seller defaults under this
Agreement, Buyer may terminate this Agreement and recover the Earnest
Money as its sole and exclusive remedy and Buyer expressly waives and
releases any and all claims for incidental or consequential damages.” The plain
meaning of the terms within Section 12 provide as follows: 1) in the event of a
breach by the Lykkens, Ordahl may choose to terminate the contract, and 2) if
Ordahl chooses to terminate the agreement, Ordahl’s relief is limited to a
recovery of its earnest money.
[¶8] The district court found no ambiguity in the purchase agreement, but
concluded the purchase agreement required Ordahl to terminate the
agreement and limited Ordahl to the return of its earnest money. The court
3
further found the agreement precluded Ordahl from pursuing the equitable
action of specific performance, summarizing as follows: “Ordahl may walk
away from the agreement with or without the recovery of the earnest money.”
[¶9] While we agree the purchase agreement is unambiguous, we conclude
the district court’s interpretation of Section 12 is incorrect. The court ignored
the first clause of the provision which provides Ordahl with the option to
terminate the agreement and, instead, found the phrase “sole and exclusive
remedy” to be determinative, limiting Ordahl to a return of the earnest money.
While the phrase “sole and exclusive remedy” is intended to limit Ordahl’s
recovery if Ordahl were to choose to terminate the agreement, we interpret
contracts as a whole to give effect to each provision. N.D.C.C. § 9-07-06. As
discussed in the following paragraph, giving effect to each provision provides
Ordahl with the choice of whether or not the contract is terminated, followed
by the limitation of the post-termination remedy if termination is chosen by
Ordahl.
[¶10] Before the phrase “sole and exclusive remedy” is the phrase “may
terminate.” The words “may” and “terminate” in the clause are essential to the
interpretation of Section 12. The district court found “[t]he term ‘may’ does not
alter the remaining provisions of the Purchase Agreement” or allow Ordahl the
option not to terminate the agreement. This is contrary to the plain meaning
of the language. “The word ‘may’ is, when used in its ordinary meaning,
permissive rather than compulsory.” Harding v. City of Dickinson, 33 N.W.2d
626, 632 (N.D. 1948). We have held that the use of the word “may” in a
statutory scheme is ordinarily understood as permissive rather than
mandatory. Midthun v. N.D. Workforce Safety & Ins., 2009 ND 22, ¶ 12, 761
N.W.2d 572 (quoting In re Adoption of K.S.H., 442 N.W.2d 417, 420 (N.D.
1989)). We will only construe the word “may” as “must” where the context of
the subject matter compels that construction. Id. at ¶ 13. The context here does
not compel the construction of “may” as mandatory. Giving words their
ordinary and popular meaning, we conclude the term “may” is permissive in
this instance. Myaer, 2012 ND 21, ¶ 10. Ordahl may choose to terminate the
purchase agreement or Ordahl may choose not to terminate the purchase
agreement.
4
[¶11] The district court’s interpretation was premised on the assumption that
Ordahl’s only option was to terminate the contract, seek a legal remedy as
provided in the contract, and that specific performance is precluded because it
is a remedy imposed following the termination of an agreement. We disagree.
Our case law provides that specific performance is used to compel the
performance of the obligations under the agreement, not a remedy following
an early termination of an agreement.
[¶12] In Jonmil, Inc. v. McMerty, 265 N.W.2d 257, 261 (N.D. 1978) we
recognized the plaintiff could not both “cancel the contract and at the same
time sue for its specific performance.” We have also recognized the following
with regard to specific performance:
[1] Specific performance is an equitable action, the
purpose of which is to compel parties to agreements to
perform what they have contracted to do. 81 C.J.S. Specific
Performance § 1b, p. 408.
[2] The remedy of specific performance is purely
equitable, and is available to a party who is injured or
damaged by a breach of an agreement or contract. Though it
is an equitable action, it is available to enforce agreements
even though the injured party may have a legal remedy for
damages, because in many cases an action for damages
would not afford adequate relief. In such cases, equity
permits the specific performance of the agreement of the
parties on the theory that the most just termination of any
contract is its complete performance by all parties in
accordance with its terms. When parties enter into an
agreement, each expects to receive certain benefits
therefrom, and they never can be fully compensated unless
such parties perform in accordance with the terms and
provisions of their agreement.
Larson v. Larson, 129 N.W.2d 566, 567 (N.D. 1964). Recently, we recognized
that specific performance was an equitable action “available to enforce
agreements . . . .” Dale Expl., LLC v. Hiepler, 2018 ND 271, ¶ 9, 920 N.W.2d
750 (quoting Larson, at 567). We have also noted “[s]pecific performance would
5
require the parties to perform their respective contractual promises.” Huber v.
Oliver Cty., 529 N.W.2d 179, 183 (N.D. 1995) (citing 71 Am.Jur.2d. Specific
Performance § 211 (1973)).
[¶13] Because specific performance requires parties to perform their
contractual promises, specific performance is inconsistent with termination of
the agreement. See RESTATEMENT (SECOND) OF CONTRACTS § 378 cmt. d (1981)
(“The remedy of specific performance or an injunction and that of restitution
are also inconsistent.”). See also 18 Wash. Prac., Real Estate § 21.26 (2d ed.)
(2022) (“Forfeiture and specific performance are totally inconsistent remedies,
one supposing the contract to be terminated and the other supposing it to be
subsisting.”). See also 28A C.J.S. Election of Remedies § 15 (2022) (“As a general
rule, a remedy based on the theory of the affirmance of a contract or other
transaction is inconsistent with a remedy arising out of the same facts and
based on the theory of its disaffirmance, or rescission[.]”). Other courts have
similarly held specific performance is distinct from termination of the
agreement. In reviewing a claim for specific performance, the Eastern Division
of the United States District Court of Illinois noted “[t]ermination, like
rescission, extinguishes the parties’ remaining obligations, such that there is
nothing to perform, making specific performance entirely inconsistent with the
self-help termination remedy under the contract.” 12 Corbin on Contracts §
66.9 (2022) (quoting Lone Star-Cardinal Motorcycle Ventures VIII, LLC v. BFC
Worldwide Holdings, Inc., 2016 WL 3671504, *3 (N.D. Ill. 2016)).
[¶14] By seeking specific performance, Ordahl chose not to terminate the
contract, an option consistent with the phrase “may terminate.” Therefore, the
district court’s finding that under the contract Ordahl’s only option was to
terminate the agreement was incorrect. The court’s interpretation would
render meaningless the phrase “may terminate” and require Ordahl, upon a
breach by the Lykkens, to terminate the agreement and recover its earnest
money. The court’s interpretation modifies the phrase from the permissive
“may terminate” to the mandatory “shall terminate.” When reading the entire
phrase as a whole, it is clear Ordahl has the option to terminate the parties’
agreement and, if the agreement is terminated, Ordahl’s legal remedy would
only be limited to return of its earnest money. Alternatively, Ordahl has the
6
option not to terminate the purchase agreement and may instead seek specific
enforcement of the agreement. The court’s interpretation fails to recognize that
specific performance is an equitable remedy enforcing the terms of an
agreement, not a remedy following the termination of an agreement. We
further note that specific performance is not an absolute right, but is an
equitable remedy, and the district court will need to follow equitable principles
to determine if it is appropriate in this case. Wolf v. Anderson, 334 N.W.2d 212,
215 (N.D. 1983).
III
[¶15] We conclude the unambiguous language of the purchase agreement
allowed Ordahl the option to terminate the purchase agreement upon breach
by the Lykkens with the sole and exclusive legal remedy of a return of its
earnest money. However, Ordahl chose not to terminate the agreement and
instead sought the equitable relief of specific performance to enforce the
parties’ obligations under the terms of the agreement. We reverse the district
court’s grant of summary judgment in favor of the Lykkens, reverse the finding
that Ordahl is limited to return of its earnest money, and remand for findings
on whether Ordahl is entitled to specific performance and, if necessary,
consideration of the Lykkens’s reformation claims.
[¶16] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482990/ | Matter of Attorneys in Violation of Judiciary Law § 468-a (Pavlovic) (2022 NY Slip Op 06309)
Matter of Attorneys in Violation of Judiciary Law § 468-a (Pavlovic)
2022 NY Slip Op 06309
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
PM-188-22
[*1]In the Matter of Attorneys in Violation of Judiciary Law § 468-a. Attorney Grievance Committee for the Third Judicial Department, Appellant; Nevenka Pavlovic, Respondent. (Attorney Registration No. 4617403.)
Calendar Date:August 29, 2022
Before:Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Fisher, JJ.
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for Attorney Grievance Committee for the Third Judicial Department.
Tesser, Ryan & Rochman, LLP, White Plains (Randall Tesser of counsel), for respondent.
Per Curiam.
Respondent was admitted to practice by this Court in 2008 and resides in Ohio, where she is also admitted to practice law. She is currently employed as in-house counsel for a company where she represents creditors in collection matters. Respondent was suspended from practice in New York by May 2019 order of this Court for conduct prejudicial to the administration of justice arising from her failure to comply with her biennial registration obligations beginning in 2010 (Matter of Attorneys in Violation of Judiciary Law § 468-a,172 AD3d 1706, 1746 [3d Dept 2019]). She cured her registration delinquency in April 2022, has since remained current in her registration obligations, and now seeks reinstatement, as well as a waiver of the Multistate Professional Responsibility Exam (hereinafter MPRE) requirement by motion made returnable August 29, 2022. The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) has responded to the motion by August 24, 2022 correspondence. While AGC notes certain deficiencies in respondent's application, it does not object to her reinstatement, but rather defers to our discretion on respondent's application.[FN1]
An attorney seeking reinstatement from suspension must satisfy certain procedural requirements and those requirements vary based on the length of the attorney's suspension (see Matter of Attorneys in Violation of Judiciary Law § 468-a [Nenninger], 180 AD3d 1317, 1318 [3d Dept 2020]; Matter of Jing Tan, 164 AD3d 1515, 1517 [3d Dept 2018]).[FN2] As of the date of her motion, respondent has been suspended for approximately three years; she thus appropriately prepared an affidavit and accompanying exhibits pursuant to Rules for Attorney Disciplinary Matters (22 NYCRR) part 1240, appendix C (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [b]; compare Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [d]). As to respondent's request for a waiver of the MPRE requirement, an attorney must establish good cause for same by assuring "this Court that additional MPRE testing would be unnecessary under the circumstances" (Matter of Attorneys in Violation of Judiciary Law § 468-a [Alimanova], 156 AD3d 1223, 1224 [3d Dept 2017]). As we have previously observed, "proof of analogous professional responsibility course work or retraining in the attorney's home jurisdiction might, under the proper circumstances, justify a waiver" (id.).
Here, respondent's affidavit and accompanying exhibits demonstrate that respondent is current with her continuing legal education (hereinafter CLE) requirements in Ohio in the area of "professional conduct," completing hours in excess of the required amount. Moreover, the basis of respondent's suspension in New York rests solely on her failure to comply with New York's registration requirement (see Matter of Attorneys in Violation of Judiciary Law §468-a, 172 AD3d at 1746) — a delinquency which she has now cured — and she has not been subject to discipline [*2]in any other jurisdiction. Under the facts and circumstances presented, respondent has provided sufficient assurances warranting a waiver of the MPRE requirement (see Matter of Attorneys in Violation of Judiciary Law § 468-a [Callier], 192 AD3d 1375, 1376 [3d Dept 2021]; compare Matter of Attorneys in Violation of Judiciary Law § 468-a [Alimanova], 156 AD3d at 1224). Inasmuch as respondent has therefore satisfied the procedural requirements, we turn our attention to the substantive aspects of respondent's application.
An attorney seeking reinstatement following disciplinary suspension must satisfy, by clear and convincing evidence, a three-prong test in order to establish entitlement to reinstatement (see Matter of Jing Tan, 164 AD3d at 1517; Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [a]). First, the attorney must demonstrate that he or she has complied with the order of suspension and all applicable Court rules (see Matter of Sommer, 150 AD3d 1530, 1530 [3d Dept 2017]). Here, respondent's submissions to this Court indicate that she has not been practicing in New York in violation of this Court's order of suspension, and AGC raises no concern in this regard. Significantly, respondent has remained compliant with her attorney registration requirements since curing the delinquency giving rise to her suspension. Moreover, her application notes that, as an attorney who does not practice law in New York, she is exempt from its CLE requirement (see Rules of App Div, All Depts [22 NYCRR] § 1500.5 [b] [1]). While respondent did not file the affidavit of compliance required under Rules for Attorney Discipline (22 NYCRR) § 1240.15 (f) within 45 days of her suspension, we find that respondent's submission of the affidavit of compliance contemporaneous with her application for reinstatement has cured this defect (see Matter of Attorneys in Violation of Judiciary Law § 468-a [Lawrence], 193 AD3d 1318, 1319 [3d Dept 2021]). As such, respondent has established her compliance with the Court's rules as to suspended attorneys and its suspension order (see id.; Matter of Attorneys in Violation of Judiciary Law § 468-a [Wilson], 186 AD3d 1874, 1875 [3d Dept 2020]).
As to prongs two and three, the attorney must also demonstrate his or her character and fitness for the practice of law (see Matter of Edelstein, 150 AD3d 1531, 1531 [3d Dept 2017]) and that his or her reinstatement would be in the public interest, which latter prong requires the attorney to "provide assurances that no detriment would inure to the public by reason of the attorney's return to practice, and that his or her reinstatement would be of some tangible benefit to the public" (Matter of Sullivan, 153 AD3d 1484, 1484 [3d Dept 2017]). Here, respondent's submitted materials, combined with the nature of the misconduct giving rise to respondent's suspension, demonstrate that she possesses the requisite character and fitness for the practice of law and that it would be in the public's [*3]interest to reinstate her (see Matter of Attorneys in Violation of Judiciary Law § 468-a [Callier], 192 AD3d at 1377; Matter of Attorneys in Violation of Judiciary Law § 468-a [D'Allesandro], 177 AD3d 1243, 1245 [3d Dept 2019]). Accordingly, having determined that respondent has satisfied her burden in every respect, we grant her application for reinstatement.
Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that respondent's motion is granted; and it is further
ORDERED that respondent is reinstated as an attorney and counselor-at-law in the State of New York, effective immediately.
Footnotes
Footnote 1: The Lawyers' Fund for Client Protection has indicated in correspondence dated May 31, 2022 that there are no open claims against respondent and similarly did not object to respondent's motion.
Footnote 2: We take the opportunity to remind the bar that the Court's procedural rules have been amended for all applications filed after September 1, 2022 where the respondent is seeking reinstatement from a suspension arising solely from his or her violation of Judiciary Law § 468-a. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482988/ | Matter of Lenci v DiNapoli (2022 NY Slip Op 06306)
Matter of Lenci v DiNapoli
2022 NY Slip Op 06306
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
534768
[*1]In the Matter of Marc Lenci, Petitioner,
vThomas P. DiNapoli, as State Comptroller, Respondent.
Calendar Date:October 11, 2022
Before:Garry, P.J., Clark, Aarons, Pritzker and Fisher, JJ.
Schwab & Gasparini, PLLC, White Plains (Warren Roth of counsel), for petitioner.
Letitia James, Attorney General, Albany (Sarah L. Rosenbluth of counsel), for respondent.
Pritzker, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's applications for accidental disability retirement benefits and disability retirement benefits.
In 2013, petitioner, a police officer, filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries sustained at work on September 6, 2012, February 17, 2013 and May 8, 2013. In a November 2014 determination, the New York State and Local Police and Fire Retirement System denied petitioner's application, finding that, although petitioner is incapacitated and unable to perform his duties, his disability is not the natural and proximate result of the alleged accidents sustained in service and, moreover, that the incidents of September 2012 and May 2013 did not constitute accidents within the meaning of Retirement and Social Security Law § 363. In 2015, petitioner filed a second application for accidental disability retirement benefits alleging that he was permanently disabled as a result of an alleged accident that occurred at work on December 15, 2013. The Retirement System denied petitioner's second application, finding once again that, although petitioner is incapacitated from the performance of his duties, his disability is not the natural and proximate result of an accident sustained in service.
At the requested hearings and redetermination that followed, petitioner withdrew the September 2012 incident from consideration, and the Retirement System conceded that the February 2013 and December 2013 incidents constituted accidents. Thus, the sole issues at the hearing distilled to whether the May 2013 incident qualified as an accident, whether petitioner's permanent and disabling right knee injury was the natural and proximate result of an accident sustained while in service and whether petitioner's cervical spine injury was permanently incapacitating and, if so, whether it was caused by an accident sustained while in service. Following the hearings, the Hearing Officer upheld the denial of petitioner's applications, finding that petitioner failed to establish that the May 2013 incident was an accident, that his disabling right knee injury was the natural and proximate result of the February 2013 or December 2013 accidents and that he was permanently incapacitated as a result of his neck injury. Respondent adopted the Hearing Officer's findings and conclusions, and this CPLR article 78 proceeding ensued.
As an initial matter, respondent concedes that the May 2013 incident constitutes an accident within the meaning of the Retirement and Social Security Law. Inasmuch as respondent did not reach the issue of whether petitioner's permanent disability to his right knee was the natural and proximate result of the May 2013 accident, we remit the matter for that purpose (cf. Matter of Arroyo v DiNapoli, 195 [*2]AD3d 1290, 1292 [3d Dept 2021]).
Turning to the balance of the issues raised on appeal, there is no dispute that the February 2013 and December 2013 incidents constituted accidents within the meaning of the Retirement and Social Security Law and that petitioner is permanently incapacitated from the performance of his duties as a result of his disabling right knee condition. "Nevertheless, to be eligible for accidental disability retirement benefits, petitioner's incapacitation must be the natural and proximate result of an accident sustained while in service" (Matter of Whipple v New York State & Local Retirement Sys., 126 AD3d 1282, 1283 [3d Dept 2015] [internal quotation marks, brackets and citations omitted], lv denied 26 NY3d 912 [2015]; see Retirement and Social Security Law § 363 [a] [1]). Thus, petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of either the February 2013 or December 2013 accident (see Matter of Somuk v DiNapoli, 145 AD3d 1339, 1341 [3d Dept 2016]; Matter of Ripp v New York State & Local Police & Fire Retirement Sys., 136 AD3d 1143, 1144 [3d Dept 2016]). "Where substantial evidence supports respondent's decision, it will not be disturbed" (Matter of Whipple v New York State & Local Retirement Sys., 126 AD3d at 1283 [citations omitted]; see Matter of Messina v New York State & Local Employees' Retirement Sys., 102 AD3d 1068, 1068 [3d Dept 2013], lv denied 21 NY3d 855 [2013]). "Where, as here, the evidence from the medical experts is conflicting, respondent has the authority to resolve such conflicts and to credit one expert's opinion over that of another, so long as the credited expert articulates a rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records" (Matter of Amedio v Hevesi, 45 AD3d 1004, 1005 [3d Dept 2007] [internal quotation marks, brackets, ellipsis and citations omitted], appeal dismissed 10 NY3d 744 [2008]; see Matter of Mazzei v Hevesi, 45 AD3d 1103, 1104 [3d Dept 2007]).
Petitioner testified that, during his tenure as a police officer from 1998 to 2014, he was injured on approximately 10 occasions and that he had surgery on his right knee in 1998 and 1999. He also acknowledged that he previously injured his neck in April 2005 during a motor vehicle accident and that he subsequently sought treatment for his neck including treatment from a chiropractor. At the time of the February 2013 accident, petitioner, while ascending basement stairs during an investigation of a suspected burglary, sustained injuries to, among other things, his right knee and neck when the basement door suddenly sprung open and hit him in the back of his head, resulting in petitioner being pushed down a couple of stairs. As for the December 2013 accident, petitioner testified that he sustained injuries to, among other things, his right knee and neck when he slipped and fell on black ice. Petitioner [*3]explained that, as a result of these accidents and the resulting disabling injuries to his right knee and neck, he is unable to perform the duties of a police officer.
Mack Sullivan, a physician who has treated claimant since 2007 and who has also treated claimant's right knee and cervical spine, found that claimant's disabling right knee and neck injuries were both caused by the February 2013 accident and then exacerbated by the May 2013 and December 2013 accidents. Sullivan further opined that petitioner's neck injury renders him permanently incapacitated from performing his duties as a police officer because petitioner experiences numbness and tingling, and has considerable strength deficits, in his upper extremities. Sullivan admitted, however, that he previously treated claimant's neck in March 2012 when petitioner struck a telephone pole with his police cruiser and that he previously treated petitioner's right knee since as early as July 2008 following surgery to repair microfractures in petitioner's right knee.
In contrast to Sullivan's findings, John Killian, a board-certified orthopedic surgeon who, on behalf of the Retirement System, conducted an orthopedic examination of petitioner in July 2014 and reviewed petitioner's extensive medical history and related records, concluded that neither the February 2013 nor the December 2013 accident was the natural and proximate cause of claimant's impairment of his right knee. In support of his conclusions, Killian noted that his review of diagnostic imaging studies of petitioner's right knee dating back to 2008 revealed the presence of osteoarthritis and a tear in petitioner's meniscus as well as evidence of significant degenerative arthritis in the right knee predating the accidents in question. Killian also noted that petitioner has had three arthroscopic surgical procedures performed on his right knee including the removal of articular cartilage.
Killian further opined that petitioner's neck injury was not permanently incapacitating because his physical examination of petitioner revealed no restriction of petitioner's cervical range of motion or palpable muscle spasms, and petitioner reported no complaints of pain associated with normal cervical motions. Killian also noted that his review of a number of diagnostic imaging studies of petitioner's neck reflected that there was no significant nerve compression. Moreover, as found by the Hearing Officer, the record, including petitioner's testimony, reflects that, following the February 2013 accident, petitioner finished the workday and returned to working full time with additional overtime hours in the weeks following the incident (see Matter of Somuk v DiNapoli, 145 AD3d at 1341). Furthermore, following the December 2013 accident, petitioner missed only two days of work prior to resuming his duties as a police officer (see id.). In view of the foregoing, substantial evidence supports respondent's determination that petitioner failed to demonstrate [*4]that the permanent incapacity to his right knee was the natural and proximate result of the February 2013 or December 2013 accidents and that he is permanently incapacitated due to an injury to his cervical spine (see Matter of Ripp v New York State & Local Police & Fire Retirement Sys., 136 AD3d at 1144; Matter of Mazzei v Hevesi, 45 AD3d at 1104; Matter of Steinmann v Hevesi, 18 AD3d 1011, 1011-1012 [3d Dept 2005], lv denied 5 NY3d 710 [2005]). Although Sullivan's medical testimony and findings could support a contrary determination, respondent was entitled to credit the findings of Killian, who presented a rational and fact-based medical opinion based upon his extensive review of petitioner's medical records, an examination of petitioner and a review of petitioner's work history and related documentation (see Matter of Whipple v New York State & Local Retirement Sys., 126 AD3d at 1283). Accordingly, we find no reason to disturb respondent's determination.
Garry, P.J., Clark, Aarons and Fisher, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as denied petitioner's application for accidental disability retirement benefits with respect to the May 2013 incident; matter remitted to respondent for further proceedings not inconsistent with this Court's decision; and, as so modified, confirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482948/ | 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 22-0626
DA 22-0626
r, L. . L., _)
STATE OF MONTANA, NOV 0 9 2322
Bowen Greer • 'Dod
of .rer Court
S.ete
Plaintiff and Appellee, kilooaria
v. ORDER
JAMES WILLIAM WALKER,
Defendant and Appellant.
James William Walker moves this Court for appointment of counsel. He states that
this is a "step in the criminal case" pursuant to a 1954 decision from the United States
Supreme Court. Walker provides that he filed a "Motion in the Nature of Writ of Error
Coram Nobis Including Brief' in the Gallatin County District Court. He states that he
appeals the court's denial on October 25, 2022, but he does not provide a copy.
We secured a copy of the court's register of actions. The District Court sentenced
Walker on July 20, 2017. The court's order, issued on October 25, 2022, disrnissed his
request for postconviction relief.
Walker is not entitled to appointment of counsel. There is no right to the
appointrnent of counsel in a postconviction proceeding for relief, although a court may
order the assignment of counsel under the circumstances outlined in § 46-8-104, MCA.
Walker represented himself in his proceeding before the District Court. He has not
demonstrated the existence of extraordinary circumstances to justify appointment of
counsel, pursuant to § 46-8-104(3), MCA.
Therefore,
IT IS ORDERED that Walker's Motion for Appointment of Counsel is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
James Williarn Walker along with a copy of this Court's Appellate Handbook.
-1-1-,
DATED this - day of November, 2022.
For the Court,
Chief Justice
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482989/ | Matter of Kahn (2022 NY Slip Op 06310)
Matter of Kahn
2022 NY Slip Op 06310
Decided on November 10, 2022
Appellate Division, Third 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 and Entered:November 10, 2022
PM-189-22
[*1]In the Matter of Alexander Elliott Kahn, a Suspended Attorney. (Attorney Registration No. 3968518.)
Calendar Date:July 18, 2022
Before:Egan Jr., J.P., Clark, Pritzker, Fisher and McShan JJ.
Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Michael K. Creaser of counsel), for Attorney Grievance Committee for the Third Judicial Department.
Per Curiam
Respondent was admitted to practice by this Court in 2001. The following year, he was admitted in Georgia, where he most recently listed a business address with the Office of Court Administration. In January 2014, respondent was suspended by this Court for conduct prejudicial to the administration of justice arising from his noncompliance with this state's attorney registration requirements beginning in 2009 (Matter of Attorneys in Violation of Judiciary Law § 468-a, 113 AD3d 1020, 1037 [3d Dept 2014]). Respondent remains suspended to date, and is currently delinquent in his statutory registration obligations for seven consecutive biennial periods (see Judiciary Law § 468-a [5]; Rules of the Chief Administrator of the Courts [22 NYCRR] § 118.1).
In June 2019, the Supreme Court of Georgia disbarred respondent from the practice of law in that state based upon undisputed and substantiated allegations that he had engaged in a scheme spanning multiple years to defraud a client of funds through deceitful misrepresentations, neglected the matters for which he had been hired and improperly withdrew from representation of that client, among other misconduct. Significantly, respondent failed to report the foregoing to either this Court or the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) as required by Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.13 (d). AGC now moves to impose discipline upon respondent in this state pursuant to Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.13 (a) and Rules of the Appellate Division, Third Department (22 NYCRR) § 806.13 as a consequence of his undisputed Georgia misconduct.
Pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.13 (c), this Court may impose discipline upon an attorney for "misconduct committed in [a] foreign jurisdiction." As noted by AGC, the misconduct that respondent was disciplined for in Georgia would also constitute misconduct in this state in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rules 1.3, 1.5, 1.8 (a), 1.15 (a)-(b), 1.16, and 8.4 (c). As respondent has not responded to the motion, we find that he has waived his available defenses and that his misconduct is accordingly established (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.13 [b]; Matter of Moses, 206 AD3d 1440, 1441 [3d Dept 2022]; Matter of Christenson, 200 AD3d 1472, 1473 [3d Dept 2021]).
In considering the appropriate disciplinary sanction for respondent's misconduct, we are mindful that "the misappropriation of client funds is one of the most serious violations of an attorney's ethical duties" (Matter of Cresci, 175 AD3d 1670, 1672 [3d Dept 2019]; see Matter of Anderson, 206 AD3d 1431, 1433 [3d Dept 2022]; Matter of Castillo, 157 AD3d 1158, 1159 [3d Dept 2018], lv denied 31 NY3d 906 [2018]). Given respondent's failure to participate in these proceedings, he has presented no mitigating factors for our consideration ([*2]see Matter of Park, 188 AD3d 1550, 1551 [3d Dept 2020]; Matter of Ndi, 186 AD3d 916, 917 [3d Dept 2020]). On the other hand, respondent's misconduct is further aggravated by, among other factors, his extant suspension in this state stemming from his longstanding and uncured registration delinquency, as well as his failure to provide proper notice of his Georgia misconduct (see Matter of Christenson, 200 AD3d at 1474; Matter of Ndi, 186 AD3dat 917). These considerations likewise demonstrate respondent's disregard for his fate as an attorney in New York (see Matter of Park, 188 AD3d at 1551; Matter of Berglund, 183 AD3d 1178, 1179 [3d Dept 2020]). In view of the egregious nature of respondent's misconduct, and in order "to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct," we conclude that respondent should be disbarred from the practice of law in this state (Matter of Cresci, 175 AD3d at 1672; see Matter of Ndi, 186 AD3d at 917-918; Matter of Patel, 166 AD3d 1463, 1464 [3d Dept 2018]; Matter of Friedman, 166 AD3d 1208, 1209 [3d Dept 2018]; Matter of Castillo, 157 AD3d at 1159).
Egan Jr., J.P., Clark, Pritzker, Fisher and McShan, JJ., concur.
ORDERED that the motion of the Attorney Grievance Committee for the Third Judicial Department is granted; and it is further
ORDERED that respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law of the State of New York, effective immediately; and it is further
ORDERED that respondent is commanded to desist and refrain from the practice of law in any form in the State of New York, either as principal or as agent, clerk or employee of another; and respondent is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto, or to hold himself out in any way as an attorney and counselor-at-law in this State; and it is further
ORDERED that respondent shall comply with the provisions of the Rules for Attorney Disciplinary Matters regulating the conduct of disbarred attorneys and shall duly certify to the same in his affidavit of compliance (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.15). | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482994/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1310
___________________________
United States of America
Plaintiff - Appellee
v.
Jacob Dylan Ness
Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Eastern
____________
Submitted: September 19, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
After Jacob Ness violated the conditions of probation by using methamphetamine,
the district court1 varied upward and gave him a 27-month prison sentence. See 18
U.S.C. § 3565(a). Although he argues that the sentence is too long, we affirm.
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
We conclude that the sentence is substantively reasonable. See United States v.
Michael, 12 F.4th 858, 860 (8th Cir. 2021) (stating that a within-Guidelines sentence is
presumed reasonable). The record establishes that the district court sufficiently
considered the statutory sentencing factors, 18 U.S.C. § 3553(a), and did not rely on an
improper factor or commit a clear error of judgment, see United States v. Leonard, 785
F.3d 303, 306–07 (8th Cir. 2015) (per curiam). In its view, Ness presented a “clear
danger to the community” based on his “outrageous criminal behavior,” even though he
was “trying to remain sober.” Cf. Michael, 12 F.4th at 860–61 (affirming an upward
departure based on the district court’s decision “to give greater weight to the risk to the
public”). Just because Ness believes the court should have weighed these factors
differently does not mean the court abused its discretion. See United States v.
Holdsworth, 830 F.3d 779, 786 (8th Cir. 2016).
We accordingly affirm the judgment of the district court.
______________________________
-2- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482991/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2267
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Victor Alberto Elias-Rodriguez
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Eastern
____________
Submitted: November 7, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before LOKEN, MELLOY, and STRAS, Circuit Judges.
____________
PER CURIAM.
Victor Elias-Rodriguez appeals the sentence imposed by the district court1 after
he pleaded guilty to production of child pornography. His counsel has moved to
1
The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.
withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
challenging the substantive reasonableness of the sentence.
Upon careful review, we conclude that the sentence is not substantively
unreasonable, as the court did not commit a clear error of judgment in weighing the
appropriate sentencing factors, see United States v. Garcia, 946 F.3d 413, 419 (8th
Cir. 2019); and the sentence is below the Guidelines range, see United States v.
Moore, 581 F.3d 681, 684 (8th Cir. 2009) (per curiam). We have also independently
reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no
non-frivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw
and affirm.
______________________________
-2- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482992/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1222
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Patrick Derone James
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
____________
Submitted: September 23, 2022
Filed: November 10, 2022
____________
Before LOKEN, BENTON, and KOBES, Circuit Judges.
____________
LOKEN, Circuit Judge.
Reserving the right to appeal denial of his motion to suppress, Patrick Derone
James conditionally pleaded guilty to being a felon in possession of a firearm -- a
loaded Glock 43 with an obliterated serial number found during a stop of a vehicle
in which he was riding. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He appeals the
judgment of conviction, arguing the district court1 wrongfully denied his motion to
suppress the firearm and marijuana seized during the stop, his statements during the
stop, and statements he made during the following custodial interview. Reviewing
the district court’s findings of fact for clear error and its conclusions of law de novo,
we conclude the stop was supported at least by reasonable suspicion, if not by
probable cause, and therefore affirm. See United States v. Saddler, 19 F.4th 1035,
1037 (8th Cir. 2021) (standard of review).
I. Background
Cedar Rapids, Iowa Police Officer Michael Merritt testified at length at the
suppression hearing. His testimony, consistent with his Incident Report prepared the
day after the stop at issue, is reflected in the Magistrate Judge’s findings of fact, to
which there was no objection. It included the following: On March 9, 2020, Cedar
Rapids Police Officer Emily Machula received a stolen vehicle report from Robin
Cooper. Mr. Cooper reported that he rented a gray 2019 Dodge Grand Caravan from
Enterprise rental car, that he lent it to a man known as “Pacman” who did not return
it on March 2, when the rental agreement expired, and that Enterprise told him to
report the vehicle as stolen. Officer Machula entered the vehicle as stolen in the
National Crime Information Center (“NCIC”) computer system, reporting an Iowa
license plate number and the vehicle identification number (“VIN”).
On March 21, Officer Michael Merritt reviewed the still-active report and
recognized the name Pacman and his physical description as identifying Patrick
Derone James. Officer Merritt drove to James’s last known address and saw a vehicle
with Texas license plates in the driveway that matched the description of the stolen
1
The Honorable C.J. Williams, United States District Judge for the District of
Northern District of Iowa, adopting as modified the Report and Recommendation of
the Honorable Mark A. Roberts, United States Magistrate Judge for the Northern
District of Iowa.
-2-
vehicle. He “ran” the Texas plate and learned it was registered to a gray 2019 Dodge
Grand Caravan with the same VIN as the stolen vehicle. Though the Iowa and Texas
license plates were registered to the same vehicle, the stolen vehicle report only listed
the Iowa plate number. After unsuccessfully attempting to call Enterprise, Officer
Merritt noticed the vehicle had left the driveway. He quickly located the vehicle and
initiated a stop based solely on the stolen vehicle report. Approaching the vehicle,
Officer Merritt noted a strong odor of marijuana. A search of the vehicle then
uncovered marijuana and a loaded Glock 43 with an obliterated serial number. James
was charged with possession of a controlled substance and possession of a firearm by
a felon.
James’s motion to suppress argued that the stop violated his Fourth
Amendment rights because Officer Merritt did not have probable cause or reasonable
suspicion to stop the vehicle and that any mistake of law in stopping the vehicle was
objectively unreasonable. Magistrate Judge Roberts recommended that the motion
be denied because the stop was supported by reasonable suspicion. District Judge
Williams adopted the Report and Recommendation as to reasonable suspicion,
modified the Report to find that the stop was supported by probable cause, and denied
the motion to suppress.
II. Discussion
A police officer may initiate what is known as a Terry stop if he has
“reasonable suspicion” of criminal activity. A person who is reasonably suspected
of “operat[ing] a stolen truck” falls within the universe of persons who may be
subjected to a brief Terry stop. See United States v. Davison, 808 F.3d 325, 329 (8th
Cir. 2015). “Reasonable suspicion exists when an officer is aware of particularized,
objective facts which, taken together with rational inferences from those facts,
reasonably warrant suspicion that a crime is being committed.” United States v.
Tamayo-Baez, 820 F.3d 308, 312 (8th Cir. 2016) (cleaned up). Probable cause is
-3-
present when “there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” United States v. Shackleford, 830 F.3d 751, 753 (8th
Cir. 2016) (cleaned up). The district court concluded that Officer Merritt had both
reasonable suspicion and probable cause to support the stop.
As Magistrate Judge Roberts found, at the time Officer Merritt initiated the
stop, he knew that: (i) a 2019 gray Dodge Grand Caravan with Iowa license plates
was listed on the NCIC stolen vehicles report after the vehicle’s owner instructed the
renter, Robin Cooper, to report the vehicle stolen by “Pacman,” which Merritt knew
was a commonly known alias of James, who had a prior criminal history; (ii) Merritt
observed a gray Dodge Grand Caravan matching the description of the stolen vehicle
in the driveway at James’s last known address; (iii) the Texas license plate attached
to that vehicle was registered to the same VIN as the Iowa license plate on the stolen
vehicle report; (iv) the vehicle left the driveway while Officer Merritt was running
the license plate and attempting to contact Enterprise.
We agree with the district court that these particularized, objective facts gave
Officer Merritt reasonable suspicion to believe that the driver of the Dodge Grand
Caravan, likely James, was operating a stolen vehicle in violation of Iowa criminal
law. Therefore, Officer Merritt did not violate James’s Fourth Amendment rights
when he stopped the vehicle. See United States v. Smart, 393 F.3d 767, 770-71 (8th
Cir. 2005).
James argues that “[t]he stop of the vehicle was improper because Officer
Merritt made a mistake of law that the vehicle was stolen” under applicable Iowa law.
Officer Merritt had no evidence “that Mr. James had any intent to deprive Mr. Cooper
or Enterprise of the vehicle.” We disagree. There was no “mistake” here, like the
officer’s misreading of stolen report “hot sheets” in United States v. Williams, 929
F.3d 539, 542 (8th Cir. 2019). The gray Dodge Grand Caravan Merritt observed was
in fact the car on the NCIC stolen vehicle report. Investigation might determine that
-4-
the car was not in fact stolen, but it is well established that “[m]istakes of law or fact,
if objectively reasonable, may still justify a valid stop.” Id. (quotation omitted).
Reasonable suspicion to initiate a Terry stop, like probable cause to arrest or search,
“does not require officers to establish the elements of the offense with a level of
certainty as though trial level proof must exist at the side of the road.” United States
v. Brooks, 982 F.3d 1177, 1180 (8th Cir. 2020). Here, Officer Merritt testified that
he knew the situation was unusual, unique in his experience, because dual license
plates were registered to the same VIN and James was initially loaned the car by
Cooper. So he initiated a stop, not a “felony stop,” to investigate the stolen vehicle
issue. We agree with the district court that this decision was based on reasonable
suspicion and was objectively reasonable.
Because the vehicle stop was constitutional, we need not address James’s
additional argument that his subsequent statements are fruit of a poisonous tree. The
judgment of the district court is affirmed.
______________________________
-5- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482993/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2287
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Michael Gray,
lllllllllllllllllllllDefendant - Appellant.
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: October 31, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before COLLOTON, MELLOY, and KOBES, Circuit Judges.
____________
PER CURIAM.
Michael Gray appeals a sentence imposed by the district court1 after Gray
pleaded guilty to a child pornography offense. His counsel has moved to withdraw
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
and has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the
reasonableness of the sentence.
We conclude that Gray’s sentence was not unreasonable, as there is no
indication that the district court overlooked a relevant factor, gave significant weight
to an improper or irrelevant factor, or committed a clear error of judgment in
weighing the relevant factors, see United States v. Pickar, 666 F.3d 1167, 1169 (8th
Cir. 2012), and the court made an individualized assessment based on the facts
presented in its consideration of the 18 U.S.C. § 3553(a) factors, see United States v.
Mangum, 625 F.3d 466, 470 (8th Cir. 2010).
We have also independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we
affirm, and we grant counsel’s motion to withdraw.
______________________________
-2- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483017/ | People v Morales (2022 NY Slip Op 06328)
People v Morales
2022 NY Slip Op 06328
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Ind. No. 3309/16 Appeal No. 16625 Case No. 2017-2546
[*1]The People of the State of New York, Respondent,
vReinaldo Morales, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Whitney Elliott of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Emily Gault of counsel), for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered November 17, 2016, convicting defendant, upon his plea of guilty, of burglary in the third degree, and sentencing him to a term of six months, unanimously affirmed.
Defendant's challenge to his guilty plea is unpreserved (see People v Conceicao, 26 NY3d 375, 382 [2015]), and we decline to review it in the interest of justice. As an alternative holding, we find that the record as a whole establishes that the plea was knowingly, intelligently, and voluntarily made (see Boykin v Alabama, 395 US 238 [1969]; People v Sougou, 26 NY3d 1052 [2015]).
In any event, defendant requests either dismissal of the indictment or reduction of his conviction to petit larceny (which, we note, is not a lesser included offense of burglary) rather than vacatur of the plea, and he expressly requests this Court to affirm the conviction if it does not grant one of his requested remedies. Since we do not find that either remedy would be appropriate, we affirm on this independent basis as well (see e.g. People v Teron, 139 AD3d 450 [1st Dept 2016]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483005/ | 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
KELLY SARBER,
Plaintiff/Appellant,
v.
LA PAZ COUNTY,
Defendant/Appellee.
No. 1 CA-CV 22-0045
FILED 11-10-2022
Appeal from the Superior Court in Maricopa County
No. CV2019-006977
The Honorable Timothy J. Thomason, Judge
AFFIRMED
COUNSEL
Dalimonte Rueb Stoller, LLP, Phoenix
By Paul L. Stoller, Ashley Carrington Crowell
Counsel for Plaintiff/Appellant
Gust Rosenfeld, PLC, Phoenix
By Charles W. Wirken
Counsel for Defendant/Appellee
SARBER v. LA PAZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Randall M. Howe and Judge D. Steven Williams joined.
W E I N Z W E I G, Judge:
¶1 Kelly Sarber appeals the superior court’s grant of La Paz
County’s motion for summary judgment. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Landfill Project
¶2 Ms. Sarber is a business consultant, doing business as
Strategic Management Group. On September 17, 2012, during an open
meeting, the La Paz County Board of Supervisors unanimously authorized
County Administrator Dan Field “to enter into a consulting agreement with
[Sarber] for preparation of the Request for Proposals for the operation of
the La Paz County Landfill, to manage the bidder meetings and inquiries,
[and] to assist the County with negotiation of a Landfill host agreement and
marketing economic development opportunities on contiguous Landfill
lands.”
¶3 Sarber contends she and the County entered a consulting
agreement (“2012 Agreement”) after the vote, but the County contends she
never signed or returned the agreement. At any rate, the 2012 Agreement
defined the scope of engagement:
ENGAGEMENT AND SCOPE. La Paz County hereby
retains [Sarber] to provide the advice and services related to
the development, operation and management of the 160-acre
permitted Subtitle D La Paz County Landfill (“Landfill”) and
the contiguous land 480 acres of land owned by the County
(“Additional Land”) and to provide for on-going consulting
services with the goal of optimizing the economic value of the
Landfill and the Additional Land to the County.
¶4 The 2012 Agreement contained a merger clause. The
“compensation” section provided: “For services rendered by Consultant
under the Agreement, the County will require that the Operator [of the
2
SARBER v. LA PAZ
Decision of the Court
landfill] pay the Consultant an amount equal to 10% of all fees, royalties,
rents or similar amounts payable to the County under the Operating
Agreement, for the term of the Operating Agreement.” But this section was
unfinished, using a placeholder to “[ADD FEE LANGUAGE].”
¶5 After a few months, Sarber asked Administrator Field to
change her compensation from commission to monthly fees. She and the
County thus entered a second consulting agreement in February 2013,
(“2013 Agreement”), which restated much of the 2012 Agreement, adding
that Sarber would be paid $12,500 per month “for each calendar month
during the term of this Agreement.” Six months later, Sarber and the
County entered a third agreement, the “Fee Agreement,” which explained
the County would pay Sarber a percentage of fees received under a landfill
operation agreement.
Solar Energy Project
¶6 Four years after the 2012 Agreement, Sarber pitched a new
project to the Board of Supervisors involving a solar energy development.
She explained that the Bureau of Land Management (BLM) was close to
approving an interstate electric power transmission line that would cross
from California into the County. And so, she advised the County to buy
federal land near the power line on which to build a solar energy project,
and to then retain a solar energy developer to build and operate the solar
energy project. The Board of Supervisors told Sarber to “move forward”
with the land purchase in November 2016.
¶7 As she continued to work on this project in 2017, Sarber asked
the County to enter into a new consulting agreement that would cover the
solar energy project. The County refused.
¶8 The Board of Supervisors later approved the solar energy
project, awarding the development to a solar energy developer in
December 2017. The solar energy project was built about 26 miles away
from the landfill. Sarber expects the solar energy project to generate more
than $500 million for the County.
This Lawsuit
¶9 Sarber sued the County for a declaratory judgment that
Sarber and the County had an oral agreement, formed in 2013, for Sarber to
receive a 10% commission on the solar energy project. Sarber twice
amended her complaint, pointing each time to the oral agreement.
3
SARBER v. LA PAZ
Decision of the Court
¶10 The County eventually moved for summary judgment,
arguing the alleged oral agreement was unenforceable because it was never
approved in an open meeting under Arizona law. At that point, for the first
time, Sarber claimed she sued under the 2012 Agreement, which did meet
the open meeting laws. On reply, the County argued that summary
judgment was still appropriate under the plain and unambiguous terms of
the 2012 Agreement, which was limited to Sarber’s consulting services on
the landfill “and the contiguous land 480 acres.” Only then, after the briefs
were in, did Sarber supply the newly minted declaration of Administrator
Field, who said that “contiguous” meant “not contiguous,” and his
definition would include “all County-owned land other than the other
encumbered properties then owned by the County on which development
was not feasible.”
¶11 The superior court granted summary judgment to County
based in part on the plain and unambiguous terms of the 2012 Agreement,
which limited consulting services to “the landfill or the contiguous 480
acres,” and “[t]he renewable energy project has nothing to do with landfill
operations.” The court considered Administrator Field’s belated
declaration and rejected it, recognizing it contradicted the 2012
Agreement’s plain language and Field’s prior sworn testimony.
¶12 Just days later, Sarber moved for reconsideration, offering
new theories and her own new affidavit. The superior court denied the
motion upon a careful and detailed analysis, recognizing that Sarber’s
argument had changed from “the County promised to sign an agreement
to compensate Sarber for the [solar project] and failed to do so,” to the
County breached the 2012 Agreement. The court then reiterated but refined
the issue:
Despite all of the rhetoric, the case comes down to one simple
premise. In order for plaintiff to prevail, the Court would
conclude that “contiguous” does not mean “contiguous.” The
2012 Consulting Agreement is not reasonably susceptible to
plaintiff’s interpretation. The Consulting Agreement does
not, under any reasonable interpretation, entitle plaintiff to
compensation for a project located many miles away from the
Landfill and the contiguous parcel. Indeed, plaintiff’s own
position during the bulk of this case acknowledged that there
was no written agreement that entitled her to compensation.
¶13 Sarber appeals. We have jurisdiction. See A.R.S. § 12-
2101(A)(1).
4
SARBER v. LA PAZ
Decision of the Court
DISCUSSION
¶14 Sarber argues the superior court erroneously granted
summary judgment to the County because the 2012 Agreement required
the County to compensate her for consulting services on the solar energy
project, and the 2012 Agreement complied with Arizona’s open meeting
laws. Because we hold that the 2012 Agreement does not promise
compensation for consulting services on the solar energy project, we do not
reach the open meeting issue. See Rancho Pescado, Inc. v. Nw. Mut. Life Ins.
Co., 140 Ariz. 174, 178 (App. 1984) (appellate court need not decide other
issues if it can resolve the case on the first issue).
¶15 We review de novo the superior court’s grant of summary
judgment, Jackson v. Eagle KMC LLC, 245 Ariz. 544, 545, ¶ 7 (2019),
construing the facts in the light most favorable to the non-moving party,
Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 14 (App. 2012).
Summary judgment is appropriate when “the moving party shows that
there is no genuine dispute as to any material fact and [it] is entitled to
judgment as a matter of law.” Ariz. R. Civ. P. 56(a).
¶16 Contract interpretation is a question of law we review de
novo. Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9 (App.
2009). We construe a contract to determine and enforce the parties’ intent.
Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 152 (1993). Arizona
courts consider “the plain meaning of the words” of a contract in the context
of the whole contract to determine the meaning of the document. Terrell v.
Torres, 248 Ariz. 47, 49-50 (2020).
¶17 Sarber waived most of her arguments by first raising them on
a motion for reconsideration before the superior court. See Evans
Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, 240, ¶ 15 (App. 2006)
(“Generally we do not consider arguments on appeal that were raised for
the first time at the trial court in a motion for reconsideration.”). Even when
considered, however, Sarber’s arguments fail under the 2012 Agreement’s
plain language.
¶18 Sarber contends the 2012 Agreement included her consulting
services for the solar energy project. Her arguments cannot withstand the
plain and unambiguous scope of the 2012 Agreement, which does not
envision or contemplate the solar energy project. According to the first
paragraph of the 2012 Agreement, the County hired Sarber to provide
consulting services on the “[l]andfill” and “contiguous 480 acres of land
5
SARBER v. LA PAZ
Decision of the Court
owned by the County.” The solar energy project is not located or operated
on the landfill or the contiguous 480 acres.
¶19 Given that language, Sarber relies on extrinsic evidence of the
parties’ intent to contradict the 2012 Agreement. But that evidence is
inadmissible under Arizona law, which has adopted a two-part test to
determine the admissibility of extrinsic evidence that would vary or
contradict the meaning of a contract’s written words.
¶20 The superior court must “first consider the allegations made
by the proponent of the extrinsic evidence as to the appropriate
interpretation of the writing in light of the extrinsic evidence alleged.” Long
v. City of Glendale, 208 Ariz. 319, 328, ¶ 28 (App. 2004). Here, like Humpty
Dumpty, Sarber insists: “When I use a word, it means just what I choose it
to mean—neither more nor less.” Lewis Carroll, Alice’s Adventures in
Wonderland & Through the Looking Glass 124-25 (N.Y., The MacMillan Co.
1897). She offered Field’s declaration as external evidence that
“contiguous” meant “not contiguous” in the 2012 Agreement, and the
parties instead intended the word to subsume “all County-owned land
other than the other encumbered properties then owned by the County on
which development was not feasible.”
¶21 Next, the court must decide if the contract’s language is
“reasonably susceptible to the interpretation suggested by the proponent of
the extrinsic evidence.” Long, 208 Ariz. at ¶ 28. If yes, “the court should
admit the extrinsic evidence,” but if not, “the court must preclude
admission of any extrinsic evidence or argument.” Id. at ¶ 29.
¶22 The 2012 Agreement is not reasonably susceptible to Sarber’s
interpretation, which reimagines the word “contiguous land” to capture an
unknown universe of land that might or might not be acquired in the future.
“Contiguous” is defined in Black’s Law Dictionary as “[t]ouching at a point
or along a boundary.” Contiguous, Black’s Law Dictionary (11th ed. 2019).
And the record shows the solar energy project was not built on or aside the
landfill and contiguous 480 acres. And as the superior court noted, “[the
solar] energy project has nothing to do with landfill operations.” Because
the 2012 Agreement is not reasonably susceptible to Sarber’s interpretation,
we do not consider her external evidence.
6
SARBER v. LA PAZ
Decision of the Court
CONCLUSION
¶23 We affirm. We grant the County’s request for attorney fees as
the prevailing party on appeal under A.R.S. § 12-341.01. We also grant the
County its costs upon compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483007/ | 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
MARCOS G., BRANDON B., Appellants,
v.
DEPARTMENT OF CHILD SAFETY, B.G., M.G., Appellees.
No. 1 CA-JV 22-0133
FILED 11-10-2022
Appeal from the Superior Court in Maricopa County
No. JD40133
The Honorable Todd F. Lang, Judge
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Jamie R. Heller
Counsel for Appellant Marcos G.
Czop Law Firm PLLC, Higley
By Steven Czop
Counsel for Appellant Brandon B.
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Department of Child Safety
MARCOS G. et al. v. DCS et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
F U R U Y A, Judge:
¶1 Marcos G. and Brandon B., biological fathers, appeal from an
order terminating their parental rights to minor children M.G. and B.G.,
respectively.1 For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 After receiving an emergency custody order on October 28,
2020, the Department of Child Safety (“DCS”) took B.G. into custody on
November 2, 2020, filed a dependency petition on November 4, 2020, took
M.G. into custody on December 11, 2020, and moved to terminate both
fathers’ parental rights on December 7, 2021.2 The juvenile court held a
termination hearing on May 2, 2022.
I. Marcos G.
¶3 Marcos G., father of M.G., has a long history of substance
abuse, beginning when he was 15 and continuing through the day of the
termination trial, as he admitted to using Fentanyl that morning. He has
conceded that his substance abuse impedes his ability to care for M.G. and
that it has caused him to “leav[e] stuff around that shouldn’t be around.”
At times during the dependency proceedings, he also struggled with
homelessness, mental health issues, and he once attempted suicide.
1 Both Children share the same mother, who is not a party to this
appeal.
2 The juvenile court relied on an erroneous entry in Garcia’s Exhibit 2
saying M.G. was taken into DCS custody on February 11, 2020, but the rest
of the record indicates he was taken into DCS custody on December 11,
2020. See Garcia’s Exhibit 2 at 4; 3 at 2, 4; 4 at 2, 5; 5 at 2, 5; 6 at 2, 5. Either
date satisfies the nine-months’ time-in-care grounds that form part of the
basis of this appeal.
2
MARCOS G. et al. v. DCS et al.
Decision of the Court
¶4 Marcos G. was referred for drug testing, substance-abuse
assessment and treatment through TERROS, supervised visitation, and
mental health assessment and services, provided he first demonstrated 30
days of sobriety. However, he never demonstrated the requisite period of
sobriety, failed to participate in TERROS services beyond initial screenings,
only took two drug tests, and tested positive for cocaine in July of 2021. He
was also unable to conduct many visits with M.G., partly due to his work
schedule and homelessness.
¶5 At the termination hearing, an assigned DCS caseworker
testified that Marcos G. could not reunify with M.G. because he was not
sober, had not addressed his mental health issues, and had only recently
obtained housing through family members. The court found this testimony
credible.
II. Brandon B.
¶6 Brandon B., father of B.G., testified at the termination hearing
that he was on Seriously Mentally Ill (“SMI”) probation and has “anger
issues and . . . ADHD,” and “emotional regulation issues” regarding
parenting of B.G. His probation began in 2019 after a domestic violence
incident involving Marcos G. and M.G.’s and B.G.’s mother, and he
demonstrated anger and behavioral issues throughout the proceedings. He
refused to provide a urinalysis sample in front of another person,
threatened to assault testing staff and kill the DCS case worker, and has
made other violent threats. He was also convicted of solicitation to commit
abduction from a state agency after abducting B.G. from her grandfather’s
home. The grandfather later reported B.G. had nightmares about the
kidnapping and Brandon B.’s subsequent arrest.
¶7 Brandon B. was referred to TERROS for assessment and
treatment, PSI testing, psychological consult and evaluation, supervised
visitation, Family Connections services, parent aide services, case
management services, domestic violence counseling at SAGE, and
transportation services. He tested positive for methamphetamine and
amphetamine in early 2021, did not participate in TERROS assessment or
treatment, did not test at PSI after July of 2021, missed four psychological
evaluations because they were in the morning, missed SAGE domestic
violence sessions, and had conflicts with the SAGE staff. He has also
admitted grabbing B.G. and leaving bruises on her arms.
¶8 At trial, the assigned DCS caseworker testified that Brandon
B. could not reunify with B.G. because of ongoing substance abuse, lack of
3
MARCOS G. et al. v. DCS et al.
Decision of the Court
stable housing, and untreated “significant” mental health issues. The court
found this testimony credible and noted Brandon B. had not provided
credible evidence of financial support for B.G.
III. Grounds for Termination and Jurisdiction.
¶9 On May 13, 2022, the court terminated both fathers’ parental
rights based on the nine-months’ time-in-care ground and finding
termination was in the children’s best interests. The court also terminated
Marcos G.’s parental rights on an alternative ground of abandonment.
¶10 Both fathers timely appealed, and we have jurisdiction
pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona
Revised Statutes (“A.R.S.”) §§ 8-235(A), 12-120.21(A), and 12-2101(A).
DISCUSSION
I. Standard of Review.
¶11 To terminate parental rights, the juvenile court must find clear
and convincing evidence that at least one statutory ground articulated in
A.R.S. § 8–533(B) has been proven and must find by a preponderance of the
evidence that termination is in the best interests of the child. Kent K. v. Bobby
M., 210 Ariz. 279, 280 ¶ 1, 288 ¶ 41 (2005). Because the court “is in the best
position to weigh the evidence, observe the parties, judge the credibility of
witnesses, and resolve disputed facts,” we will affirm an order terminating
parental rights as long as it is supported by reasonable evidence. Jordan C.
v. Ariz. Dep’t of Econ. Sec., 223 Ariz. 86, 93 ¶ 18 (App. 2009) (citation omitted);
see Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151 ¶ 18 (2018).
II. Nine-Months’ Time-in-Care.
¶12 The court may terminate parental rights if—despite DCS’
diligent reunification efforts—the child has spent at least nine cumulative
months in a court-ordered out-of-home placement and “the parent has
substantially neglected or willfully refused to remedy the circumstances
that cause the child to be in an out-of-home placement.”3 A.R.S. § 8-
533(B)(8)(a). Parental rights may be terminated despite “sporadic . . .
attempts to remedy” such circumstances. See Maricopa Cnty. Juv. Action No.
3 Neither father challenges the court’s finding that the children were
in an out-of-home placement for nine months or longer, and they have
therefore conceded its accuracy. See Britz v. Kinsvater, 87 Ariz. 385, 388
(1960).
4
MARCOS G. et al. v. DCS et al.
Decision of the Court
JS-501568, 177 Ariz. 571, 576 (App. 1994). Moreover, DCS need not “provide
every conceivable service or . . . ensure that a parent participates in each
service it offers.” Maricopa Cnty. Juv. Action No. JS-501904, 180 Ariz. 348, 353
(App. 1994).
¶13 Marcos G. argues that the record does not support the court’s
findings that DCS made diligent and reasonable efforts to provide
appropriate reunification services and that he failed to remedy the
circumstances causing M.G.’s placement. However, DCS offered him
numerous services, including services intended to help him with his
substance abuse and mental health issues. Despite this, he tested positive
for cocaine in July of 2021, was never able to participate in mental health
services because he did not demonstrate sufficient sobriety, and missed
visits with M.G. Marcos G. essentially asks that we reweigh the evidence
because DCS did not provide him with a parent support partner, inpatient
treatment, housing, or mental health treatment; because for certain periods
DCS and TERROS had inaccurate contact information for him; and because
the court focused on his lack of success in remedying the placement
circumstances instead of his efforts. But we will not disturb the court’s
findings where, as here, the court relied on reasonable evidence to find DCS
offered sufficient services and Marcos G.’s efforts were sporadic, thwarted
in large part by his disengagement or inattention, and inadequate. See Alma
S., 245 Ariz. at 151 ¶ 18.
¶14 Marcos G. also appeals the court’s alternative ground for
termination of his parental rights based on the abandonment ground.
However, we need not address this argument because we conclude that
sufficient evidence supports the court’s termination on nine-months’ time-
in-care ground. Jesus M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 280 ¶ 3
(App. 2002).
¶15 Brandon B. contends the court erred by considering whether
he successfully remedied the circumstances causing B.G.’s placement
instead of focusing solely on his efforts to remedy the circumstances.
However, reasonable evidence supports the court’s findings that he failed
to put forth enough effort to remedy his mental health, anger, and sobriety
issues. He failed to show up for mental health services, missed his
psychological evaluations, missed several domestic violence counseling
sessions and classes, tested positive for illegal substances, missed most of
his urinalyses and oral swabs, and consistently demonstrated anger and
threatened violence throughout the proceedings. Brandon B.’s critique
invites us to reevaluate the evidence in light of his condition and efforts.
5
MARCOS G. et al. v. DCS et al.
Decision of the Court
But reasonable evidence supports the court’s findings, and we must decline
to reweigh that evidence. See Alma S., 245 Ariz. at 151 ¶ 18.
¶16 Brandon B. further argues his efforts to remedy the
circumstances causing B.G.’s placement were satisfactory, given his SMI
diagnosis, and that he was doing “the best he could.” However, since
Brandon B. was not found incompetent and the court was aware of his SMI
status, it is the province of the juvenile court to determine whether his
efforts were sufficient. See id. Because reasonable evidence supports the
court’s findings that his efforts were unsatisfactory, we must again decline
to reweigh the evidence. See id.
III. Best Interests.
¶17 After finding statutory grounds support termination of
parental rights, the court must consider whether termination is in the
child’s best interests under the totality of the circumstances. Id. at 149–50
¶¶ 8–9, 13; A.R.S. § 8-533. “The child’s interest in stability and security must
be the court’s primary concern.” Alma S., 245 Ariz. at 150 ¶ 12. The court
must find either that the child would benefit from termination of the
parent’s rights or that the child would be harmed by continuing a
relationship with the parent. Maricopa Cnty. Juv. Action No. JS-500274, 167
Ariz. 1, 5 (1990); see also Alma S., 245 Ariz. at 150 ¶ 13.
¶18 Here, Marcos G. contends the court abused its discretion by
failing to make findings concerning the totality of the circumstances
regarding him and M.G., and by finding termination was in M.G.’s best
interests when he had housing and employment by the date of the
termination hearing. However, the court did consider the totality of the
circumstances. And it relied on reasonable evidence to find adoption was
in both children’s best interests. The court found that both children were
bonded with their grandfather, he was meeting their needs, they were
thriving and enjoying the stability and security from living with him, and
they could have a sibling relationship with each other. The court also found
maintaining a parent-child relationship would be detrimental to the
children because of Marcos G.’s substance abuse and Brandon B.’s mental
health and anger issues. We will not disturb the court’s findings because
the evidence supports them. See Alma S., 245 Ariz. at 151 ¶ 18.
IV. Ineffective Assistance of Counsel.
¶19 Brandon B. further seeks reversal of the termination of his
parental rights due to ineffective assistance of counsel. To prevail under
such an argument, he must prove his counsel was deficient in a specific
6
MARCOS G. et al. v. DCS et al.
Decision of the Court
manner that caused “fundamental unfairness” or that “shocks the
conscience.” See Royce C. v. Dep’t of Child Safety, 252 Ariz. 129, 137–38 ¶¶ 24–
25 (App. 2021). Because the right to counsel in termination proceedings is
not constitutional but rather provided by A.R.S. § 8-221, it is not
synonymous with the constitutional right to counsel in criminal
proceedings. As such, relief because of ineffective assistance of counsel in
parental rights cases is “an extraordinary remedy, unavailable in all but the
most egregious cases.” Id. ¶¶ 24–26.
¶20 Here, Brandon B. argues his counsel was ineffective by failing
to: “speak on his . . . behalf at the review hearings [and] request . . .
accommodations for a client diagnosed as SMI”; “object to reasonable
efforts under a nine month time-in-care ground”; inform the court he
engaged in services; and “assert [his] bond with B.G.” However, Brandon
B. failed to specify what additional accommodations his counsel should
have requested. Further, the court listed numerous efforts DCS undertook
to accommodate Brandon B., in which he failed to engage fully. Our review
of the record does not substantiate any egregious deficiencies on the part of
Brandon B.’s counsel, that his counsel caused fundamental unfairness, or
that his counsel acted in a way that shocks the conscience. Accordingly,
Brandon B.’s ineffective assistance of counsel claim fails.
CONCLUSION
¶21 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483001/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3083
___________________________
Nyamuoch Thomas Duoth
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: September 23, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
Nyamuoch Duoth wants to remain in the country, but the Board of
Immigration Appeals denied her request for asylum and withholding of removal.
She sought asylum even though she “intentionally, knowingly, or recklessly cause[d]
bodily injury” to a police officer. Neb. Rev. Stat. § 28-931(1)(a). And she thought
withholding of removal was available because she would allegedly face ethnic
persecution if she returned to South Sudan. We deny her petition for review.
Duoth’s prior conviction makes her ineligible for asylum unless the version
of the crime she committed required only reckless conduct. See 8 U.S.C.
§ 1158(b)(2)(A)–(B); see also United States v. Garcia-Longoria, 819 F.3d 1063,
1067 (8th Cir. 2016) (holding that “the mens rea alternatives in Neb. Rev. Stat. § 28-
931(1) are ‘alternative element[s] in a divisible statute’” (citation omitted)). Even
assuming we can consider the police report describing the crime, it says that she
“ma[de] threats to kill,” “attempt[ed] to punch” officers, and “kicked at” one of them
before “spit[ting] in [her] face.” These acts are at least as likely to have been
committed intentionally or knowingly as recklessly. See Pereida v. Wilkinson, 141
S. Ct. 754, 763 (2021) (explaining that when, “as here, the alien bears the burden of
proof and was convicted under a divisible statute containing some crimes that [bar
relief], the alien must prove that his actual, historical offense of conviction isn’t
among them”). So asylum is off the table.
The same goes for withholding of removal. To receive this type of relief,
Duoth needed to establish a “clear probability” of ethnic persecution. Ming Ming
Wijono v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006) (reviewing for substantial
evidence). The record, however, supports what the agency found: violence in South
Sudan affects everyone regardless of ethnicity, opposing factions have entered into
a peace agreement, members of Duoth’s ethnic group hold top government jobs, and
her mother visited the country safely. On these facts, it was reasonable for the Board
to conclude that Duoth was not entitled to withholding of removal. See id.; Supangat
v. Holder, 735 F.3d 792, 796 (8th Cir. 2013) (per curiam).
We accordingly deny the petition for review.
______________________________
-2- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483000/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3794
___________________________
Rachael Danker; Jesse Johnson; Samantha Johnson
Plaintiffs - Appellants
Stephanie Nelson
Plaintiff
Aubrey Wilhite
Plaintiff - Appellant
Don Williams; Julie Williams
Plaintiffs
v.
The City of Council Bluffs, Iowa
Defendant - Appellee
____________
Appeal from United States District Court
for the Southern District of Iowa - Western
____________
Submitted: September 22, 2022
Filed: November 10, 2022
____________
Before LOKEN, BENTON, and KOBES, Circuit Judges.
____________
BENTON, Circuit Judge.
Several dog owners—including Rachel Danker, Jesse Johnson, Samantha
Johnson, and Aubrey Wilhite—sued the City of Council Bluffs challenging the
constitutionality of an ordinance prohibiting “pit bulls.” The district court 1 granted
summary judgment to the City. The dog owners appeal. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
After an increase in dog bites during the early 2000s, the City enacted
Municipal Code § 4.20.112. This Ordinance, effective January 1, 2005, prohibited
“any person to own, possess, keep, exercise control over, maintain, harbor, transport,
or sell within the city of Council Bluffs, Iowa, any pit bull.” A “pit bull” was defined
as
Any dog that is an American Pit Bull Terrier, American
Staffordshire Terrier, Staffordshire Bull Terrier, or any
dog displaying the majority of physical traits of any one
(1) or more of the above breeds (more so than any other
breed), or any dog exhibiting those distinguishing
characteristics which substantially conform to the
standards established by the American Kennel Club or
United Kennel Club for any of the above breeds.
The dog owners sued the City for injunctive and declaratory relief, arguing
the Ordinance violated their constitutional rights under 42 U.S.C. § 1983. They
claimed the ordinance was unconstitutionally vague and violated their right to
substantive due process, equal protection, and procedural due process. The City
moved for summary judgment on all counts. The district court granted its motion
on all grounds, concluding that “the pit bull ordinance had the required rational
1
The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.
-2-
relationship to the health, safety, and public welfare interests of the city to survive
rational basis review.” Danker v. City of Council Bluffs, 569 F. Supp. 3d 866, 881
(S.D. Iowa 2021). The dog owners appeal only the equal protection and substantive
due process claims. This court reviews de novo the grant of summary judgment.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when “a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On summary judgment, this court
views all evidence and reasonable inferences most favorably to the non-moving
party. Meier v. St. Louis, 934 F.3d 824, 827 (8th Cir. 2019). Deciding a motion for
summary judgment, courts cannot weigh evidence or make credibility
determinations. Anderson, 477 U.S. at 255.
The dog owners argue the Ordinance is not rationally related to the City’s
legitimate government interest. A classification “that neither proceeds along suspect
lines nor infringes fundamental constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508
U.S. 307, 313 (1993). “On rational-basis review, a classification . . . comes to us
bearing a strong presumption of validity, and those attacking the rationality of the
legislative classification have the burden ‘to negative every conceivable basis that
might support it.’” Id. at 314-15, quoting Lehnhausen v. Lake Shore Auto Parts
Co., 410 U.S. 356, 364 (1973). “[A] legislative choice is not subject to courtroom
fact-finding and may be based on rational speculation unsupported by evidence or
empirical data.” Id. at 315. “A law supported by some rational basis does not offend
the constitution merely because it is imperfect, mathematically imprecise, or results
in some inequality.” Birchansky v. Clabaugh, 955 F.3d 751, 758 (8th Cir. 2020).
When the legislature has to engage in line drawing, “the precise coordinates of the
resulting legislative judgment [are] virtually unreviewable, since the legislature must
-3-
be allowed leeway to approach a perceived problem incrementally.” Beach
Commc’ns, 508 U.S. at 316.
On appeal, the parties agree the ordinance is subject to rational basis review
because it does not infringe a fundamental right nor involve a suspect classification.
See id. at 313. They further agree dog bites are a public health issue, so the
Ordinance promotes the legitimate government interest of protecting the health and
safety of the community.
The dog owners argue that their evidence negates every conceivable basis for
the Ordinance’s rational relationship. They presented evidence from canine
behavior experts and recent scientific studies about predicting a dog’s propensity to
bite based on its breed. According to the dog owners, this evidence, viewed most
favorably to them, negates every conceivable basis for the Ordinance by
establishing: “(1) Pit Bull type dogs are no more or less dangerous than other breeds
of dogs; (2) neither breed nor physical characteristics are predictive of a dog’s
aggressiveness or propensity to bite; and (3) the city’s method of identifying dogs as
Pit Bulls is inherently unreliable.”
As for dangerousness, the dog owners argue that experts in canine genetics
and behavior currently acknowledge that pit bulls are no more or less dangerous than
similarly sized dogs of other breeds. The City counters with findings from the
Council Bluff Animal Patrol showing pit bulls accounted for a disproportionate
number of dog bites in Council Bluffs during 2003 and 2004. After the Ordinance
was enacted, from 2007 through 2020, the number of reported dog bites in Council
Bluffs generally declined and remained 25 percent lower than in the years before the
Ordinance.
As for the relationship between a dog’s breed or physical characteristics and
its behavior, the dog owners’ evidence not only fails to negate every conceivable
basis, but actually supports some connection. The dog owners say, “It is well
accepted among canine geneticists that environment has a greater effect on
-4-
determining behavioral differences between dogs than genetics does.” The dog
owners admit that behavior—to some extent—is heritable by stating, “While
physical traits like coat color may be 100% heritable in a particular breed . . .
heritability of behavioral traits is much lower.” The dog owners further
acknowledge some connection: “The mere existence of some connection between
genetics and behavior is irrelevant when that connection has no predictive value.”
As for the City’s method of visually identifying a dog’s breed, the dog owners
argue that it is unreliable to determine the breed. Again, the dog owners’ own
evidence contradicts their argument. According to a study by the dog owners’
animal behavior expert, a dog’s predominant breed could be accurately identified
using visual identification for 3 of 20 dogs—15 percent of the time. This study
affirms that visual identifications can, however imperfectly, identify a dog’s breed.
While the City’s decision to ban all pit bulls may result in “some inequalities,” this
does not make the Ordinance irrational. See Birchansky, 955 F.3d at 758.
The record here does not negate every conceivable basis for the Ordinance’s
rationality.
The dog owners stress Planned Parenthood of Minnesota, where this court
held that Planned Parenthood refuted every justification offered by the state to
support its funding reduction. Planned Parenthood of Minn. v. State of Minn., 612
F.2d 359, 363 (8th Cir.), aff’d, 448 U.S. 901 (1980). The present case is
distinguishable from Planned Parenthood because, on de novo review, the dog
owners’ evidence does not negate every conceivable basis for the Ordinance.
The dog owners also emphasize that district courts are divided on the
constitutionality of pit bull bans (though appellate courts have not ruled on the merits
of the precise issue here). See generally Frost v. Sioux City, 920 F.3d 1158, 1161
(8th Cir. 2019) (dismissing plaintiff’s constitutional challenge of the city’s pit bull
ban for lack of standing). The dog owners focus on Dias v. City and County of
Denver as authority that pit bull bans are unconstitutional. Dias v. City and County
-5-
of Denver, 567 F.3d 1169, 1183 (10th Cir. 2009). The present case is different from
Dias. The Dias case was decided on a motion to dismiss, not summary judgment
like here. The Tenth Circuit stressed that “the district court could not conclude at
this early stage in the case that the Ordinance was rational as a matter of law” and
the Tenth Circuit was “constrained to deciding if the complaint alleges facts
sufficient to state a claim for relief.” Id. at 1184. The Tenth Circuit expressly
declined to rule on the merits stating that “whether the plaintiffs can marshal enough
evidence to prevail on the merits of their claim that the Ordinance is irrational is a
different matter entirely.” Id. This court now decides the issue the Tenth Circuit
avoided.
The City had a conceivable basis to believe banning pit bulls would promote
the health and safety of Council Bluff citizens. After reports that a disproportionate
number of dog bites were attributed to pit bulls, the City exercised its police power
to regulate the ownership of dogs. See Nicchia v. New York, 254 U.S. 228, 230
(1920); Lunon v. Botsford, 946 F.3d 425, 430 (8th Cir. 2019). The City had to
decide where to draw the line on which breeds to ban. While the resulting ordinance
may be an imperfect fit, this court cannot second guess or judge the fairness of
legislative choices on rational basis review. See Beach Commc’ns, 508 U.S. at 313;
Gallagher v. City of Clayton, 699 F.3d 1013, 1020 (8th Cir. 2012) (holding the
legislature’s decision to draw a line and prohibit public smoking while allowing
other harmful air pollutants satisfied rational basis). The equal protection analysis
“is not a license for courts to judge the wisdom, fairness, or logic of legislative
choices.” Beach Commc’ns, 508 U.S. at 313. “[T]he Equal Protection Clause does
not require that a State must choose between attacking every aspect of a problem or
not attacking the problem at all.” Dandridge v. Williams, 397 U.S. 471, 486-87
(1970). “A rational basis that survives equal protection scrutiny also satisfies
substantive due process analysis.” Exec. Air Taxi Corp. v. City of Bismarck, 518
F.3d 562, 569 (8th Cir. 2008), citing Minn. v. Clover Leaf Creamery Co., 449 U.S.
456, 470 n. 12 (1981). Because the dog owners failed to negate every conceivable
basis for the Ordinance’s rationality, the Ordinance satisfies rational basis review
and substantive due process analysis.
-6-
*******
The judgment is affirmed.
______________________________
-7- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483002/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1659
___________________________
Miguel Velasquez-Guico; Liz Velasquez-Gutierrez; Tomas Velasquez-Gutierrez
Petitioners
v.
Merrick B. Garland, Attorney General of the United States
Respondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: November 7, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before BENTON, ERICKSON, and KOBES, Circuit Judges.
____________
PER CURIAM.
Guatemalan citizens Miguel Velasquez-Guico, and Liz and Tomas
Velasquez-Gutierrez (collectively, the Velasquezes), petition for review of an order
of the Board of Immigration Appeals affirming the decision of an immigration judge
(IJ) denying them asylum and withholding of removal.1 Having jurisdiction under
8 U.S.C. § 1252, this court denies the petition.
This court finds no error in the determination that the Velasquezes’ proposed
particular social group (PSG) was not cognizable. See Rosales-Reyes v. Garland, 7
F.4th 755, 759 (8th Cir. 2021) (whether group qualifies as PSG is a question of law,
reviewed de novo, and turns on whether group is (1) composed of members who
share a common immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question); cf. Tojin-Tiu v. Garland, 33 F.4th
1020, 1024 (8th Cir. 2022) (PSG of “‘young, Guatemalan men who refuse to
cooperate with gang members’ is not cognizable under our established precedent”);
Rivas v. Sessions, 899 F.3d 537, 541 (8th Cir. 2018) (proposed group of “women
who are targeted to become gang girlfriends” was not particular, as particularity
requires that the social group be defined by characteristics that provide a clear
benchmark for determining who falls within the group; and it was not socially
distinct, as persecutory conduct alone cannot define a group).
Even if the proposed PSG were cognizable, substantial evidence supports the
IJ’s conclusion that the Velasquez family failed to show the harms they feared were
because of their membership in the group rather than based on general country
violence. See Garcia-Moctezuma v. Sessions, 879 F.3d 863, 869 (8th Cir. 2018)
(standard of review; this court will reverse only if it determines that a reasonable
factfinder “would have to conclude” that the petitioner’s proposed protected ground
“actually and sufficiently motivated his persecutors’ actions”). As either of these
conclusions is sufficient to doom their claims for relief from removal, the court
declines to consider the Velasquezes’ remaining challenges to the denial of relief.
See Tino v. Garland, 13 F.4th 708, 710 (8th Cir. 2021) (where substantial evidence
1
The denial of relief under the Convention Against Torture is not before this
panel. See Agha v. Holder, 743 F.3d 609, 616 (8th Cir. 2014) (noncitizens may
appeal only issues exhausted at administrative level); Chay-Velasquez v. Ashcroft,
367 F.3d 751, 756 (8th Cir. 2004) (claim not raised in opening brief is waived).
-2-
supported determination that noncitizen failed to demonstrate nexus between
persecution and PSG, failure was dispositive of asylum claim); Miranda v. Sessions,
892 F.3d 940, 944 (8th Cir. 2018) (noncitizen necessarily could not show any past
or future persecution would be on account of a protected ground where PSG was not
cognizable); see also Martin Martin v. Barr, 916 F.3d 1141, 1145 (8th Cir. 2019)
(noncitizen who cannot establish eligibility for asylum necessarily cannot meet the
more rigorous standard of proof for withholding of removal).
The petition is denied. See 8th Cir. R. 47B. The request for oral argument is
denied as moot.
______________________________
-3- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483008/ | 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
SUE ELLEN EL ASALI, Petitioner Employee,
v.
THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent,
CAVEO SVC, Respondent Employer,
AMERICAN LIBERTY INSURANCE CO, Respondent Insurance Carrier.
No. 1 CA-IC 21-0050
FILED 11-10-2022
Special Action - Industrial Commission
ICA Claim No. 20180640038
Carrier Claim No. 6671077
The Honorable Michelle Bodi, Administrative Law Judge
AFFIRMED
COUNSEL
Sue Ellen El Asali, Phoenix
Petitioner
Industrial Commission of Arizona, Phoenix
By Gaetano J. Testini
Counsel for Respondent
Norton & Brozina PC, Phoenix
By Kevin E. Karges
Counsel for Respondent Employer and Insurance Carrier
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 This case presents the question of whether Sue Ellen El Asali
("El Asali") filed a timely request for administrative review of the Industrial
Commission of Arizona's ("ICA") decision that she was not excused for
filing a late request for hearing. The administrative law judge ("ALJ") found
that she did not have reasonable cause for missing the deadline for filing
for review. Because the record supports that finding, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 El Asali was injured in 2017 while working for Caveo
Services, LLC, whose workers are insured by American Liberty Insurance
Company. She filed a claim and received benefits. On March 28, 2019,
American issued a Notice of Claim closing the claim with no permanent
disability. Over 580 days later, on October 28, 2020, El Asali filed a request
for a hearing challenging the closure of her claim. American raised the
affirmative defense of untimely filing, and the ICA held a hearing solely on
the issue of the cause for El Asali's untimely filing.
¶3 At the hearing, El Asali agreed that the closure notice had
been sent to the correct mailing address but noted that she was not living
at that address at that time. El Asali testified that her hearing request was
filed beyond the 90-day deadline because she was experiencing severe
health problems during that time. From March 2019 until October 2020, she
did not check her mail at the address to which the notice was sent. She
learned of the closure of her claim for the first time when she checked her
mail in October 2020. She admitted that she had prioritized her health
concerns and neglected other personal duties during that time. As soon as
she learned of the closure in October 2020, she filed her hearing request.
2
EL ASALI v. CAVEO/AMERICAN
Decision of the Court
¶4 The ALJ issued an award finding that El Asali failed to prove
any of the three reasons for excusal under A.R.S. § 23-947(B), which include
reliance on a statement from the ICA that causes a late filing, mental
incapacity or legal incompetence at the time the notice is issued, and lack of
receipt of the notice. Therefore, the ALJ did not excuse her from the 90-day
deadline. The ALJ made no findings regarding A.R.S. § 23-947(C), which
requires a worker seeking excusal of a deadline under any of the three
statutory excuses to show that she exercised reasonable care and diligence.
The award found that the closure notice was final. The award notified El
Asali that she had 30 days from when the award was mailed to file a request
for administrative review. The award was mailed on July 2, 2021.
¶5 El Asali filed a request for review on September 23, 2021,
stating that the "letter" she received said that she had 90 days to seek review.
Upon review of the award, the ALJ affirmed her decision because she found
that El Asali had missed the deadline for filing a timely request for review
and did not have reasonable cause for doing so. The ALJ found that the
award had notified El Asali that she needed to file any review request
within 30 days, not 90 days. El Asali then filed a timely statutory special
action petition for review with this Court.
DISCUSSION
¶6 An ICA award is final unless one of the parties files a request
for review within 30 days of service of the award. A.R.S. § 23-942(D). Here,
the award was served to the parties by mail on July 2, 2021, giving El Asali
until August 2, 2021, to file a review request. She did not do so. Instead, El
Asali filed a request for review on September 23, 2021. Knowing it might
be considered late, she stated in the request her belief that she had 90 days
to file it.
¶7 When a request for review is filed beyond the statutory
deadline, the ICA must determine whether (1) the filer "appears to have a
meritorious position," (2) the delay was excessive, and (3) the delay
prejudiced the other party in some way. Janis v. Indus. Comm'n, 111 Ariz.
362, 363 (1974).1 If all three of these factors are present, the untimeliness
should be waived. Id.
1 The ALJ's finding that she "ha[d] no jurisdiction to consider the late-
filed Request for Review" is inconsistent with the Arizona Supreme Court's
3
EL ASALI v. CAVEO/AMERICAN
Decision of the Court
¶8 The record supports the ALJ's conclusion that a waiver of the
30-day deadline was inappropriate. Although the delay was not excessive,
and there was no apparent prejudice against the carrier, El Asali's position
had no obvious merit. She had received clear notice of the 30-day deadline
in the award. El Asali's mistaken belief that she had 90 days to file for
review does not provide a meritorious foundation for a waiver in this
circumstance.2 Accordingly, the ALJ correctly affirmed the award.
¶9 Although we conclude that the record supports the ALJ's
finding that El Asali's request for review was filed past the 30-day deadline
without excuse, we note that if the person who missed a deadline
nevertheless failed to act with reasonable care and diligence, the inquiry is
over, and no review of the three statutory reasons for excusal is necessary.
See A.R.S. § 23-947.
¶10 Following a Notice of Claim Status, a claimant has 90 days to
request a hearing. A.R.S. § 23-947(A). Upon failure to file a timely request,
the notice becomes final. A.R.S. § 23-947(B). The statute provides three
excuses for missing the 90-day deadline: (1) the claimant justifiably relied
on a statement from the employer, carrier, or ICA; (2) the claimant suffered
from insanity or legal incompetence or incapacity, including minority,
when the notice was issued; or (3) the claimant did not receive the notice,
proven by clear and convincing evidence. A.R.S. § 23-947(B)(1)-(3).
However, none of these excuses apply if the claimant did not exercise
reasonable care and diligence such that she would have known about the
notice during the 90 days. A.R.S. § 23-947(C).
¶11 Although the ALJ did not make findings, uncontested
evidence supports the ALJ's conclusion that El Asali did not act with
reasonable care and diligence during the 90 days following the closure
notice. Accordingly, she was not excused from the 90-day time limit.
decision in Janis in which it rejected the ICA's belief that it lacked
jurisdiction over a late-filed "protest" of an award. 111 Ariz. at 363.
2 Neither was there any reason to hold further hearing on the cause of
the delay because El Asali stated that the delay was caused by her
misunderstanding of the timeframe.
4
EL ASALI v. CAVEO/AMERICAN
Decision of the Court
CONCLUSION
¶12 Because El Asali did not file a timely request for review, the
ICA award finding her hearing request untimely became final.
Accordingly, we affirm the award.
AMY M. WOOD • Clerk of the Court
FILED: AA
5 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482999/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1497
___________________________
Stephen Klick
lllllllllllllllllllllPlaintiff - Appellant
v.
Kilolo Kijakazi, Acting Commissioner of Social Security
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: November 7, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before COLLOTON, MELLOY, and KOBES, Circuit Judges.
____________
PER CURIAM.
Stephen Klick appeals the district court’s1 order affirming the denial of
disability insurance benefits. We find that substantial evidence in the record as a
1
The Honorable David T. Schultz, United States Magistrate Judge for the
District of Minnesota, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
whole supports the adverse decision. See Galloway v. Kijakazi, 46 F.4th 686, 689
(8th Cir. 2022) (standard of review). Specifically, the ALJ’s determination that Klick
did not have the medically determinable impairment of post-traumatic stress disorder
(PTSD) during the relevant period was supported. See Gallus v. Callahan, 117 F.3d
1061, 1064-65 (8th Cir. 1997) (substantial evidence supported ALJ’s finding that
claimant did not have medically determinable mental impairment; while one provider
had assigned diagnosis, it was not supported by record, and other providers had
concluded claimant did not have impairment). While the evidence showed that
Klick’s psychologist diagnosed “other trauma- and stressor-related disorder” in 2019,
we conclude that the ALJ’s failure to include this diagnosis among Klick’s severe
impairments was harmless error, as the ALJ thoroughly evaluated all of the medical
evidence relating to his mental impairments in determining his residual functional
capacity (RFC), and as Klick has not identified any symptoms or limitations arising
from this condition that the ALJ did not consider. See Warburton v. Apfel, 188 F.3d
1047, 1050-51 (8th Cir. 1999) (finding ALJ’s decision adequate where, although
record did not contain precise diagnosis of claimant’s mental impairment, ALJ
adequately captured effects of impairment in RFC determination); Trenary v. Bowen,
898 F.2d 1361, 1364 (8th Cir. 1990) (critical question in disability claim is not
diagnosis, but rather functional limitations imposed by impairment). We also find no
merit to Klick’s argument that the district court erred in declining to consider his new
evidence. See Baker v. Barnhart, 457 F.3d 882, 891 (8th Cir. 2006) (upon judicial
review of Commissioner’s decision denying disability benefits, evidence outside
administrative record is generally precluded from consideration by court).
The judgment is affirmed.
______________________________
-2- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482996/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3987
___________________________
United States of America
Plaintiff - Appellee
v.
Amy Jurisic
Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Eastern
____________
Submitted: September 19, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before COLLOTON, WOLLMAN, and STRAS, Circuit Judges.
____________
PER CURIAM.
Amy Jurisic used her job as a postal worker to steal checks from the mail.
Although she claims that the district court’s 1 intended-loss calculation is too high,
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
see U.S.S.G. § 2B1.1(b), and that she should pay less in restitution, see 18 U.S.C.
§§ 3663A, 3664, we affirm.
I.
The Dubuque post office started receiving complaints about stolen checks.
The most frequent victim of the scheme was Flexsteel, a Dubuque-based furniture
company. An anonymous tipster pointed the finger at Jurisic, who would snatch
business envelopes and sell the checks inside.
Once her customers started cashing the checks, the investigation picked up
steam. Investigators discovered that she had “numerous conversations with different
individuals discussing checks and/or stealing mail (checks and credit cards)” on
Facebook. One time she even asked a potential customer whether he “could do
anything with a business-to-business check.”
After investigators connected Jurisic to the stolen checks, she pleaded guilty
to mail theft. See 18 U.S.C. § 1709. The district court held her responsible for
stealing dozens of checks valued at more than $550,000. They became the basis for
the intended-loss calculation, which was a key ingredient in the court’s decision to
give her a 33-month prison sentence. See U.S.S.G. § 2B1.1(b)(1) (specifying
increases to the offense level of theft crimes based on the amount of the loss).
Meanwhile, the value of the checks cashed provided the restitution amount, which
was $62,456.33. See 18 U.S.C. §§ 3663A, 3664.
II.
Jurisic takes aim at both calculations. See United States v. Smith, 929 F.3d
545, 547–48 (8th Cir. 2019) (reviewing both for clear error). In her view, “anyone
could have stolen and cashed” the missing checks. Based on the record, however,
the district court concluded otherwise. See id. at 547 (explaining that, under clear-
-2-
error review, courts reverse only “with a firm and definite conviction that a mistake
has been made”).
A.
For theft crimes like this one, the recommended sentencing range depends on
the scheme’s financial impact. The district court relied on the grand total of the
checks, including those that were never cashed and are still missing, to measure “the
pecuniary harm [Jurisic] purposely sought to inflict.” U.S.S.G. § 2B1.1 cmt.
n.3(A)(ii) (defining “[i]ntended loss”); see United States v. Killen, 761 F.3d 945, 950
(8th Cir. 2014) (explaining that intended loss includes “expected” loss because “a
person is presumed to have intended the natural and probable consequences of his
or her actions” (quotation marks omitted)). Our task is to determine whether the
district court’s finding that the intended loss was greater than $550,000 was clearly
erroneous. See Killen, 761 F.3d at 948.
We conclude it was not. It was fair to infer from the evidence that Jurisic stole
the missing checks. After all, she marketed the checks on Facebook, sent
photographs of them to a potential customer, told the customer that she had “more”
available, and had a connection to a house where investigators discovered a stash of
them. There was little chance, as the district court noted, that two postal workers
were stealing checks from the same post office at the same time. Based on these
findings, the intended-loss calculation stands.
B.
So does the restitution award. Restitution is available “only to the extent
sufficient evidence has proven [a victim’s] ultimate loss.” See United States v.
Adejumo, 848 F.3d 868, 870 (8th Cir. 2017). If the district court “reasonably
estimated the loss, we will affirm.” Smith, 929 F.3d at 548 (quotation marks and
brackets omitted).
-3-
The district court’s estimate was a reasonable one. Like the intended-loss
calculation, the restitution award reflected the well-supported finding that Jurisic
stole the checks herself. For that reason, we cannot say that the district court clearly
erred when it ordered restitution based on the total value of the checks cashed. See
id. (explaining that the actual copies of checks and testimony by those familiar with
the fraud can guide a district court’s restitution calculation).
III.
We accordingly affirm the judgment of the district court.
______________________________
-4- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483004/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3376
___________________________
Christopher Thompson
Plaintiff - Appellant
v.
University of Arkansas Board of Trustees and Raymond Ottman
Defendant – Appellee
____________
Appeal from United States District Court
for the Western District of Arkansas
____________
Submitted: September 22, 2022
Filed: November 10, 2022
____________
Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Christopher Thompson sued the University of Arkansas Board of Trustees and
campus police chief Raymond Ottman, raising employment discrimination related
claims, including retaliation. The district court1 granted Ottman summary judgment.
We affirm.
I.
Thompson is African-American. He began working for the University of
Arkansas at Fort Smith Police Department (“UAFS PD”) in 2012. Ottman is
Caucasian. He was hired as UAFS PD Chief in 2015. Thompson alleges that Ottman
discriminated against him and mistreated him. On one occasion, Ottman remarked
that Thompson resembled George Jefferson, an African-American character from
the 1970s and 1980s television shows All in the Family and The Jeffersons. Other
incidents included Ottman insinuating that Thompson should resign and try to get a
job with the local police department (as opposed to the campus police department),
Ottman refusing to give Thompson holidays off, and Ottman repeatedly placing
Thompson on night shifts despite his requests for greater flexibility. Thompson
verbally raised these issues in an August 28, 2017 meeting with Ottman’s supervisor,
Brad Sheriff. Sheriff notified Ottman that Thompson had complained of scheduling
issues and unfair treatment during a regularly scheduled meeting that day. Sheriff
did not characterize Thompson’s complaints as related to discrimination or
specifically raise Thompson’s complaint about the George Jefferson remark.
On August 24, a few days before Thompson’s meeting with Sheriff,
Thompson responded to a call from a resident assistant reporting an intoxicated man
in a dormitory room who was passed out and foaming at the mouth. Two female
students were also in the room. Thompson proceeded to question the students
outside the room for about twenty minutes. Thompson never attempted to check the
man’s vital signs, position his body in a manner that minimized choking risk, or
administer other first aid. At one point, the resident assistant asked if Thompson
was going to attend to the man. Thompson simply responded that paramedics were
1
The Honorable P.K. Holmes III, United States District Judge for the Western
District of Arkansas.
-2-
on the way. The paramedics eventually arrived and transported the man to a local
hospital.
A few days later, on August 29, the resident assistant met with Ottman to
express concerns about Thompson’s response to the incident. Ottman reviewed
Thompson’s body-camera footage and determined that Thompson’s response
warranted termination of his employment. Sheriff and Thompson’s direct
supervisor, Lieutenant Tiffany Johnson, also reviewed the video. Johnson was
alarmed by Thompson’s failure to follow proper first-responder procedures. Sheriff
agreed with Ottman that dismissal was warranted. On September 1, 2017,
Thompson was dismissed for cause. The dismissal letter focused on the August 24
incident, noting that Thompson “failed to approach or attend to the victim,” “check
for a medical alert ID,” “check vital signs,” and “provide first aid.”
Thompson believes he was terminated wrongfully. Thompson sued the Board
of Trustees and Ottman in September 2020. He asserted claims of race
discrimination, retaliation, hostile work environment, and age discrimination against
both defendants. The district court dismissed all claims except for the claims of race
discrimination, hostile work environment, and retaliation against Ottman brought
under 42 U.S.C. § 1981. Ottman later moved for summary judgment on these
outstanding claims. The district court granted his motion. Thompson appeals.
II.
Thompson argues only that the district court erred by granting summary
judgment on his retaliation claim. We review the grant of summary judgment de
novo, viewing the evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in his favor. Onyiah v. St. Cloud State Univ., 5
F.4th 926, 930 (8th Cir. 2021). We affirm because there are no genuine disputes of
material fact that would allow a reasonable jury to find in favor of Thompson. See
Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
-3-
We analyze § 1981 retaliation claims under the same McDonnell Douglas
burden-shifting framework used for Title VII claims. Lake v. Yellow Transp., Inc.,
596 F.3d 871, 873 n.2 (8th Cir. 2010). If the plaintiff establishes a prima facie case
of retaliation, the burden shifts to the defendant to identify a legitimate, non-
retaliatory reason for the dismissal (or other adverse employment action). Onyiah,
5 F.4th at 930. If the defendant identifies a legitimate reason, then the burden shifts
back to the plaintiff to show that this supposedly legitimate reason was in fact
pretextual. Id. “There are at least two routes for demonstrating a material question
of fact as to pretext: first, a plaintiff may succeed indirectly by showing the proffered
explanation has no basis in fact; or, second, a plaintiff can directly persuade the court
that a prohibited reason more likely motivated the employer.” Gibson v. Geithner,
776 F.3d 536, 540 (8th Cir. 2015). “In either case, the plaintiff must point to enough
admissible evidence to raise genuine doubt as to the legitimacy of the defendant’s
motive.” Fiero v. CSG Sys., Inc., 759 F.3d 874, 878 (8th Cir. 2014) (internal
quotation marks omitted).
The district court assumed without deciding that Thompson established a
prima facie case. Nevertheless, the district court found that Ottman’s reasons for
Thompson’s dismissal were legitimate and non-pretextual. We agree.
Thompson argues that several facts raise a genuine dispute as to whether the
August 24 incident was a legitimate, non-retaliatory ground for dismissal. He
identifies the following facts: (1) his discharge occurred only a few days after his
complaint to Sheriff; (2) his conduct did not violate industry or university standards;
(3) Ottman did not conduct a thorough investigation before dismissing him; (4) other
employees were fired by Ottman for more serious misconduct; and (5) Ottman
invoked changing reasons to justify his dismissal. Thompson, however, does not
dispute the key facts about the August 24 incident. He does not contest that the man
had vomited, passed out, and was foaming at the mouth. Nor does Thompson dispute
the key facts regarding his own conduct, namely that he did not provide first aid,
check vital signs, reposition, or continually observe the intoxicated man.
-4-
Thompson fails to raise a genuine doubt as to whether the August 24 incident
was a legitimate basis for his dismissal. Regarding Thompson’s argument that his
dismissal occurred shortly after his complaint, Ottman was never informed that
racial discrimination was one of Thompson’s complaints, and Thompson’s dismissal
also took place shortly after the August 24 incident. Therefore, the proximity
between the complaint and the discharge does not support an inference of pretext.
See Gibson, 776 F.3d at 541 (holding that temporal proximity alone is insufficient
to establish a genuine issue as to pretext). As to the University’s disciplinary policy,
that policy grants managers “a great deal of discretion” and notes that strict penalties
may be warranted based on serious grounds not listed in the policy. Here, Thompson
failed to adhere to his responsibilities as a first responder, putting the intoxicated
man at risk of death or severe injury. He need not have violated an enumerated
ground or specific law-enforcement standard to be fired under the policy. See
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 904 (8th Cir. 2015) (holding
that an employer’s failure to adhere strictly to its disciplinary policy did not create a
genuine dispute as to pretext when the employee did not identify evidence
connecting the employer’s decision to act outside of the express policy terms to
discriminatory animus).
Thompson’s arguments about the University’s investigation, comparator
employees, and Ottman’s changing reasons for dismissal fare no better. The brevity
of the University’s investigation does not constitute evidence of pretext because the
seriousness of Thompson’s conduct was apparent from the body-camera footage.
See Schaffhauser, 794 F.3d at 904; McCullough v. Univ. of Ark., 559 F.3d 855, 863
(8th Cir. 2009) (noting that “the appropriate scope of investigation is a business
judgment, and shortcomings in an investigation do not by themselves support an
inference of discrimination.”). Regarding comparators, Thompson points to no other
employees who engaged in similarly dangerous conduct and were not fired. See
Ebersole v. Novo Nordisk, Inc., 758 F.3d 917, 925 (8th Cir. 2015) (noting that
comparators can support an inference of discrimination only when they “were
engaged in the same conduct without any mitigating or distinguishing
circumstances”). Lastly, as to Ottman’s shifting reasons for dismissal, Thompson
-5-
reads too much into slight differences in Ottman’s explanations. Specifically,
Thompson notes that the dismissal letter criticized his questioning of the students in
the hallway and his failure to assist paramedics, in addition to emphasizing the risks
that his conduct posed to the intoxicated man. By contrast, in response to an
interrogatory requesting all reasons for Thompson’s dismissal, Ottman referred only
to the risks to the intoxicated man. Thompson’s argument is unconvincing because
the differences between the dismissal letter and Ottman’s interrogatory response are
minor. Like Ottman’s interrogatory response, the dismissal letter primarily focuses
on the risks to the intoxicated man. See Smith v. Allen Health Sys., Inc., 302 F.3d
827, 835 (8th Cir. 2002) (noting that an employer’s “slight elaboration” that “did not
back off from the original explanation” for dismissal was not probative of pretext).
In sum, viewing the evidence in Thompson’s favor, no reasonable jury could
find that the August 24 incident was a pretextual ground for Ottman’s dismissal.
III.
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to Ottman on Thompson’s § 1981 retaliation claim.
______________________________
-6- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483010/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
NADINE BEAUMONT, Petitioner/Appellant/Cross-Appellee,
v.
DAVID BEAUMONT, Respondent/Appellee/Cross-Appellant.
No. 1 CA-CV 21-0426 FC
No. 1 CA-CV 21-0642 FC
(Consolidated)
FILED 11-10-2022
Appeal from the Superior Court in Mohave County
No. L8015DO201907142
The Honorable Kenneth Gregory, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART AND REMANDED
COUNSEL
Silk Law Office, Lake Havasu City
By Melinda Silk
Counsel for Petitioner/Appellant/Cross-Appellee
Law Office of Heather C. Wellborn PC, Lake Havasu City
By Heather C. Wellborn, Alyssa N. Oubre
Counsel for Respondent/Appellee/Cross-Appellant
BEAUMONT v. BEAUMONT
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 Nadine Beaumont ("Wife") and David Beaumont ("Husband")
challenge several rulings in the decree dissolving their marriage. We vacate
the finding that the stocks in a joint trust account are community property,
the spousal-maintenance award, the expert-witness-fee award, and the
child-support order. We remand for reconsideration of these issues but
affirm all other rulings.
FACTS AND PROCEDURAL BACKGROUND
¶2 The parties married in 2003 in Pennsylvania and have one
minor child, born in 2004. Wife petitioned for dissolution of marriage in
2019 and the superior court held a two-day trial in 2020.
¶3 Before the marriage, Husband acquired two parcels of real
property in Pennsylvania that he later deeded to a community property
trust. There are oil and gas leases on these parcels that pay monthly
royalties in varying amounts. For the 17 months before the trial, the
royalties paid an average of $5,000 a month. The superior court concluded
that the Pennsylvania properties and the royalties they generated were
community property. Finding no competent evidence of their value, the
court ordered the parties to hold the parcels as tenants in common and
share equally in any royalties.
¶4 At the time of the trial, Wife was 60 years old. She requested
spousal maintenance in the form of half the royalties for life, but if her share
of the royalties was less than $3,500 in any given month, Wife asked for
Husband to make up the difference. Husband, on the other hand, opposed
any award of spousal maintenance. The superior court awarded Wife
spousal maintenance of $1,000 per month until May 2025, when she will be
65. The court also entered a current child support order and ordered
Husband to pay past child support.
¶5 The community owned three businesses: Wise Steward, Back
to Basics, and Complete Accounting and Tax, Inc. During the two-day trial,
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each party called an expert to testify to the value of the businesses. The
superior court accepted the conclusion of Wife's expert that only Wise
Steward had any value. The court found Wise Steward was worth $264,000
and awarded all three businesses and their assets and liabilities to Husband
with an equalization payment of $132,000 to Wife.
¶6 Wife asked to keep the marital home and pay Husband for his
share of the equity. Husband did not oppose this if Wife could refinance
the mortgage and remove his name from the debt, but the parties could not
agree on the appropriate valuation date for determining Husband's interest
in the equity. The court ordered the home sold and the equity divided
equally. Further, if the parties could not agree to a broker or sales price, the
court ordered them to use Husband's broker and list the home for "at least
$599,900."
¶7 During the marriage, Wife inherited stocks from her father. A
few years later, she transferred some of those stocks into a joint trust
account, while leaving others in trust accounts in her name only. The
parties disputed whether the stocks in the joint trust account were
community or separate property. The superior court found they were
community property because Wife gifted these stocks to the community.
Wife was awarded the joint trust account and ordered to pay Husband an
equalization payment of $151,585, which was 50% of the account value on
the date of service.
¶8 After the superior court made its rulings but before entry of
the final decree, Husband sought to hold Wife in contempt for not
complying with the order to sell the home. The court entered the final
decree and separately set an order to show cause hearing on the contempt
petition. Wife filed a timely notice of appeal. She also moved to stay
execution of the decree, which Husband opposed. Husband then cross-
appealed from the decree. We have jurisdiction under A.R.S. § 12-
2101(A)(1).
¶9 While the appeal and cross-appeal were pending, the parties
disputed the need for a supersedeas bond. Husband filed a second petition
for contempt relating to Wife's alleged transfer of funds from the joint trust
account. The court addressed all these issues at an evidentiary hearing on
September 16, 2021.
¶10 At the hearing, the parties agreed that rather than post a
supersedeas bond, Wife would refinance the mortgage on the marital home
into her name within 90 days. They agreed to hold the house as tenants in
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common until the appeal is resolved. Each party agreed to pay half the
mortgage for 90 days; after that, Wife was responsible for the mortgage
payments. Husband will be reimbursed for the mortgage payments he
made when he receives his share of the equity. After hearing from two real
estate brokers, the court found the fair market value of the marital home on
September 16, 2021, was $689,000, with a mortgage balance of $312,500. The
parties agreed to determine Husband's share of the equity based on these
figures, pending the outcome of the appeal. Neither party appealed from
this post-decree ruling.
DISCUSSION
I. Stocks in the Joint Trust Account.
¶11 The stocks were Wife's separate property when she inherited
them. A.R.S. § 25-213(A). But separate property can be transmuted into
community property by agreement, gift, or commingling. In re Marriage of
Cupp, 152 Ariz. 161, 164 (App. 1986). The superior court found that Wife
intended to gift the stocks to the community when she transferred them
from her separate trust account to a joint trust account. Wife argues the
stocks are her separate property. The classification of property as separate
or community is a question of law we review de novo. Bell-Kilbourn v. Bell-
Kilbourn, 216 Ariz. 521, 523, ¶ 4 (App. 2007).
¶12 When separate funds are placed into a joint account, there is
no presumption that the owner of the funds intended to gift half of the
funds to the other spouse. Stevenson v. Stevenson, 132 Ariz. 44, 46 (1982)
(citing A.R.S. § 14-6103(A), now § 14-6211). Placing separate funds into a
joint account suggests, but does not conclusively prove, an intent to gift.
Grant v. Grant, 119 Ariz. 470, 472 (App. 1978); see also A.R.S. § 14-6211(A)
(noting funds in a joint account "belong[] to the parties in proportion to the
net contribution of each to the sums on deposit unless there is clear and
convincing evidence of a different intent" (emphasis added)).
¶13 The superior court found "it more likely than not" that Wife
intended to gift her separate property stocks to the community by
depositing them into a joint trust account. However, the deposit of separate
funds into a joint account does not indicate a gift absent clear and convincing
evidence of such an intent. Stevenson, 132 Ariz. at 46. The court did not
apply the clear-and-convincing legal standard for finding a gift. Ordinarily,
determining whether a spouse intended a gift is a question of fact subject to
a clearly erroneous standard of review. Bobrow v. Bobrow, 241 Ariz. 592,
595, ¶ 11 (App. 2017). But the court abuses its discretion when it misapplies
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the law or relies on incorrect legal standards. Hammett v. Hammett, 247 Ariz.
556, 559, ¶ 13 (App. 2019). Here, the court applied an incorrect legal
standard. As a result, we vacate the finding that the stocks are community
property and remand for reconsideration.
II. Orders Regarding the Marital Home.
¶14 The decree ordered the parties to sell the marital home and
divide the net proceeds equally. If the parties could not agree on a broker
or listing price, the court ordered the home listed with Husband's broker
for "at least" $599,900. We review the allocation of community property for
an abuse of discretion. Bell-Kilbourn, 216 Ariz. at 523, ¶ 4.
¶15 Wife concedes the superior court had discretion to order the
sale of the home. She argues the court abused its discretion here because
Husband agreed she could have the home as long as he was paid his share
of the equity and taken off the mortgage. Contrary to Wife's assertion, the
parties did not reach an enforceable agreement. At the time of trial, Wife
had not yet refinanced the home; nor did she offer conclusive evidence that
she could do so. Based on this speculative evidence, and absent an
enforceable agreement, the court was within its discretion to order the
parties to sell the home and divide the proceeds equally.
¶16 Although Wife apparently refinanced the mortgage after the
decree, that was not the situation at the time of trial. We review the superior
court's ruling based on the record at the time of trial. See GM Dev. Corp. v.
Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4 (App. 1990) (noting appellate court
review is "limited to the record before the trial court"). When the superior
court made its ruling, there was no evidence showing that Wife had
refinanced the home or demonstrating her ability to do so. Moreover, Wife
waived any argument related to refinancing by raising it for the first time
in her reply brief. See Johnson v. Provoyeur, 245 Ariz. 239, 243, ¶13 n.5 (App.
2018) (noting that issues first raised in a reply brief are generally considered
waived).
¶17 Wife also argues the superior court ignored the effect of
selling the marital home on the child. Any harm to the child from the sale
of the home was for the court to weigh against the parties' property
interests. See Dole v. Blair, 248 Ariz. 629, 633, ¶ 14 (App. 2020) (noting courts
may consider the children in deciding which party should be awarded a
piece of property, but "may not impinge on either party's property
interests"). We will not reweigh these considerations on appeal. Hurd v.
Hurd, 223 Ariz. 48, 52, ¶ 16 (App. 2009).
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¶18 The superior court's under advisement ruling ordered the
parties to list the home for $599,900. Wife contends the court improperly
changed that ruling when it added that the home should be listed for "at
least" $599,900 in the final decree. The addition of this language in the final
decree was not improper. It is reasonable to infer that the court added this
language so that the parties could benefit from any subsequent market
increase. Indeed, Husband provided two market analyses showing the
home's value had increased nearly $75,000 between September 2019 and
November 2020. Wife did not refute this evidence. The language is
equitable because the court ordered the parties to pay the mortgage using
funds in a community bank account so they will share equally in any
increase in value. Because there was no agreement for Wife to buy out
Husband's interest at a certain price, the court did not abuse its discretion
by ordering the home sold for at least $599,900.
¶19 The superior court was also within its discretion to order the
parties to use Husband's broker absent an agreement. Husband's broker
provided the only comparative market analysis. Wife did not provide an
alternative broker or method of selecting among competing brokers. We
find no abuse of discretion.
III. Post-Decree Ruling on the Marital Home.
¶20 In post-decree proceedings, the parties reached several
agreements about the home. They agreed to hold title as tenants in common
pending appeal and in lieu of Wife posting a supersedeas bond. Consistent
with this agreement, Wife refinanced the mortgage into her name. The
superior court incorporated this agreement into a post-decree order. After
hearing from both parties' real estate brokers, the court found the home's
value was $689,000 on September 16, 2021.
¶21 Wife cannot rely on these post-decree events to argue that the
order to sell the home was an abuse of discretion. See supra ¶ 15. At the
time of trial, there was no such agreement, and Wife had not refinanced the
mortgage. And neither party appealed from the post-decree order finding
the home was worth $689,000 on September 16, 2021. The superior court
issued that order in response to post-decree agreements, which do not
impact the issues raised in this appeal. For this reason, we do not address
the "issue presented for review on consolidated appeal."
IV. Business Valuation.
¶22 The superior court accepted the opinion of Wife's expert and
found that only one of the community businesses—Wise Steward—had any
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value. The court found that Wise Steward had a value of $264,000 as of
March 31, 2020. The court awarded Husband the three businesses and all
business bank accounts, assets, and liabilities; and awarded Wife an
equalization payment of $132,000.
¶23 The valuation of assets is a factual determination. See In re
Marriage of Molloy, 181 Ariz. 146, 150 (App. 1994). We will affirm the
superior court's determination if reasonable evidence supports it. Id. at 152.
The record supports the finding that Wife's expert provided a reasonable
valuation and sufficiently refuted the issues raised by the opposing expert.
¶24 On cross-appeal, Husband argues the superior court's
valuation improperly included a "bad debt" Back to Basics owed Wise
Steward. Husband's expert would deduct this "bad debt" from Wise
Steward's receivables, thereby lowering its value. According to Wife's
expert, this would not affect the overall valuation of both businesses. As
Wife's expert explained, if the "bad debt" was deducted from Wise
Steward's accounting, it would have to be added back to the accounting for
Back to Basics. The court was within its discretion to weigh these
competing expert opinions. See Hurd, 223 Ariz. at 52, ¶ 16 (noting that
appellate courts do not reweigh conflicting evidence).
¶25 Husband also argues that the court abused its discretion by
not ordering the business sold as he proposed. Because Husband cited no
authority or facts to support this argument, it is waived. See ARCAP
13(a)(7); In re Aubuchon, 233 Ariz. 62, 64-65, ¶ 6 (2013). Similarly, Wife
argues, without citations to the record, that the court did not address two
bank accounts related to Complete Accounting and Tax, Inc. This argument
is also waived. Id.
V. Bank Accounts and the $10,000 Equalization Payment.
¶26 There were two community personal bank accounts at Wells
Fargo: a checking account and a money market account. The superior court
ordered the parties to close the checking account and equally divide the
$1,300 remaining on deposit. The funds in the money market account came
from the monthly oil and gas royalties. The court ordered the parties to
continue paying the mortgage from the money market account until they
sold the home or the funds were depleted.
¶27 There was also a BBVA account Husband opened in his name
after the date of service. The only bank statement related to this account
showed a balance of $28,500 as of October 2020. The court awarded the
BBVA account to Husband. To equalize the various bank accounts, the
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court ordered Husband to pay Wife $10,000, finding this amount was
equitable because Wife had exclusive use of the marital home during the
proceedings, and the mortgage was paid with community funds (the
royalties) during that time.
¶28 Wife argues the $10,000 equalization payment is inequitable;
conversely, Husband argues Wife was not entitled to any equalization
payment. We will affirm the allocation of community property absent an
abuse of discretion. Bell-Kilbourn, 216 Ariz. at 523, ¶ 4.
¶29 Since the date of service, both parties paid their personal
expenses from the community royalties. Husband also ran personal
expenses through the businesses. According to Wife, this resulted in
Husband spending more than his share of the community income during
the proceedings. Wife also argues that Husband kept all the business
revenue and did not pay any spousal maintenance or child support during
the proceedings. In contrast, Husband argues Wife deserved no
equalization payment because she spent more than her share of the royalty
income.
¶30 Earnings paid to a spouse after service of the petition are that
spouse's separate property. See A.R.S. § 25-213(B) (property acquired after
service of a petition for dissolution is that party's separate property). The
evidence showed that the funds with BBVA were Husband's post-service
earnings.
¶31 Nonetheless, the businesses were community property, so
Wife may have been entitled to any profits the businesses generated in
excess of Husband's reasonable compensation. See Schickner v. Schickner,
237 Ariz. 194, 199, 201, ¶¶ 22, 30 (App. 2015). There was, however, no
evidence showing such additional profits. Thus, the record does not show
that Husband improperly retained any community business revenue above
his reasonable compensation.
¶32 Wife argues it is impossible to determine the business
revenues because Husband did not disclose all the relevant bank
statements. Yet Wife relied on her expert's business valuation opinion
despite his admissions that some statements were missing and not every
personal expense Husband ran through the business was calculated. Wife
cannot complain about these limitations on one hand but ignore them on
the other. We find this issue waived.
¶33 Husband contends Wife was not entitled to $10,000 because
his calculations show she spent more than he did from the community
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account. However, his calculations did not include any supporting
documentation. He also attributed the mortgage and some of the child's
expenses to Wife which skewed her spending. And Husband will receive
his share of the community funds that were spent on the mortgage when
he is paid his share of the equity.
¶34 On this record, we cannot find the allocation of the bank
accounts and $10,000 equalization payment was inequitable. When viewed
as a whole and in the light most favorable to upholding the decree, we find
$10,000 was reasonable. There is no evidence that Husband improperly
retained business revenues. And Wife did not prove exactly how much
more community funds Husband spent during the proceedings than she
spent. Therefore, Wife cannot fault the court for estimating an equitable
equalization payment based on the record presented. We affirm the
allocation of the community and business bank accounts and the equitable
equalization payment.
VI. Spousal Maintenance.
¶35 The superior court awarded Wife $1,000 a month in spousal
maintenance from May 1, 2021, until she turns 65 in May 2025. Husband
argues that Wife was not entitled to any spousal maintenance. Wife
contends she was entitled to spousal maintenance from the start of the
proceedings in June 2019, and that the amount is insufficient. We review
an award of spousal maintenance for an abuse of discretion and will affirm
if there is any reasonable evidence to support the award. Helland v. Helland,
236 Ariz. 197, 202, ¶ 22 (App. 2014).
A. Spousal Maintenance Eligibility.
¶36 A party is eligible for an award of spousal maintenance if she
qualifies under any one of the five factors listed in A.R.S. § 25-319(A). In re
Marriage of Cotter, 245 Ariz. 82, 86, ¶ 10 (App. 2018). The superior court
found Wife eligible for spousal maintenance based on two factors: (1) the
parties had a marriage of long duration and Wife is of an age that may
preclude employment at a level of self-sufficiency, A.R.S. § 25-319(A)(5),
and (2) Wife significantly reduced her income or career opportunities for
Husband's benefit, A.R.S. § 25-319(A)(4).
¶37 The evidence supports the finding that Wife significantly
reduced her income or career opportunities for Husband's benefit. See
A.R.S. § 25-319(A)(4). Wife was 60 years old at trial and last worked as a
massage therapist in 2009. When the parties moved to Arizona, she left the
workforce to care for the family while Husband traveled extensively for
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work. Nothing in the record showed that Wife could obtain adequate
employment given her health or the time gap since she last worked.
¶38 Because the record supports the finding that Wife qualified
for spousal maintenance under § 25-319(A)(4), we affirm the conclusion that
Wife was eligible for spousal maintenance. Cotter, 245 Ariz. at 86, ¶ 10
(noting a party need only qualify under one factor to be eligible for spousal
maintenance).
B. Amount and Start Date of the Award.
¶39 Because we vacated the ruling that the joint trust account is
community property and remanded for reconsideration of this significant
asset, the superior court must reconsider the amount and duration, if any,
of the spousal maintenance award. Although we express no opinion on the
merits of this question, the court should reconsider the factors in § 25-319(B)
on remand. Accordingly, we do not address the arguments as to those
factors. We vacate the award of spousal maintenance and order the
superior court to reconsider the appropriate spousal maintenance award, if
any, on remand.
VII. Wife's Expert Witness Fees.
¶40 The superior court ordered Husband to pay $8,000 of Wife's
business valuation expert fees because Wife prevailed on this issue. The
court also found Husband's position on the business valuation was
unreasonable and not supported by an independent and certified business
appraisal. Although the court did not cite a statute, we presume it relied
on A.R.S. § 25-324, which authorizes an award of "the costs and expenses of
maintaining or defending" a dissolution or custody proceeding. We review
this award for an abuse of discretion. See Breitbart-Napp v. Napp, 216 Ariz.
74, 83, ¶ 35 (App. 2007).
¶41 The fact that Wife prevailed on the business valuation does
not support the award of expert witness fees. "[Section] 25-324 does not
establish a prevailing party standard for awarding fees and costs." Id. at 84,
¶ 39. Because the superior court relied on an incorrect legal standard, we
vacate the order. On remand, the superior court may reinstate the fee
award if it determines that Husband's position was unreasonable
independent of Husband's decision not to obtain an independent and
certified business appraisal.
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VIII. Past Child Support.
¶42 In addition to a prospective child support order, the superior
court ordered Husband to pay past child support from July 1, 2019, to April
30, 2021. Husband argues this was an abuse of discretion because Wife used
community property royalties for the child's expenses. We review child
support awards for an abuse of discretion and accept the findings of fact
unless clearly erroneous. Engel v. Landman, 221 Ariz. 504, 510, ¶ 21 (App.
2009).
¶43 Under A.R.S. § 25-320(B), the court must order retroactive
child support if it finds, as here, (1) there is no previous order for child
support, and (2) a current child support order is appropriate. Simpson v.
Simpson, 224 Ariz. 224, 225-26, ¶¶ 7, 9 (App. 2010). Thus, the court was
required by § 25-320(B) to order past child support.
¶44 In determining the amount of the past child support order,
the court could consider any amount Husband paid for temporary or
voluntary support. A.R.S. § 25-320(B). Husband did not pay any temporary
or voluntary support directly to Wife. Nevertheless, Husband argues that
past child support is not warranted because the parties used the community
royalties for their living expenses during the proceedings. According to
Husband, he effectively paid voluntary support because Wife spent more
than her half of the royalty income. Even if we make the rather tenuous
assumption that this constitutes a "voluntary payment" of child support by
Husband, it is not clear that Wife spent more than her share of the
community funds. See supra ¶ 32. Given the conflicting evidence, we
cannot say the court abused its discretion in finding that Husband was not
entitled to credit for any "voluntary support."
¶45 Because we are vacating and remanding for the superior court
to reconsider the appropriate spousal-maintenance award, we also vacate
and remand the child-support award to allow the court to recalculate child
support to account for any change in spousal maintenance. See Guidelines
§ XVII(A) (2022).
IX. Attorney Fees On Appeal.
¶46 Both parties request attorney fees and costs on appeal under
A.R.S. § 25-324. After considering the relevant factors, we decline to award
attorney fees without prejudice. The superior court may consider any
requests for fees on remand, including fees incurred on appeal, pending the
outcome of this litigation. The award of costs on appeal under A.R.S. § 12-
342 shall also be determined pending the result on remand.
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CONCLUSION
¶47 We vacate the ruling that the joint trust account is community
property and the award of Wife's expert witness fees and remand for
reconsideration. We also vacate the award of spousal maintenance but
affirm that Wife is eligible for support under § 25-319(A)(5). The court shall
reconsider an appropriate spousal maintenance award and recalculate
child support on remand. All other rulings in the decree of dissolution are
affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
12 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483006/ | 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
NORCHELLE R., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, L.N., Appellees.
No. 1 CA-JV 22-0147
FILED 11-10-2022
Appeal from the Superior Court in Maricopa County
No. JD38841
The Honorable Julie Ann Mata, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee
NORCHELLE R. v. DCS, L.N.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
F U R U Y A, Judge:
¶1 Norchelle R. (“Mother”) appeals from a superior court order
terminating her parental rights to her child, L.N. For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In December 2019, the Department of Child Safety (“DCS”)
took custody of six-year-old L.N. and filed a dependency petition alleging
Mother failed to protect him from his father’s physical and sexual abuse,
Mother was engaging in domestic violence with Father, and Mother had
untreated mental-health issues. The court adjudicated L.N. dependent after
Mother pled no contest to the petition.
¶3 Mother received services during the dependency
proceedings, including substance-abuse testing and a treatment
assessment, a psychological evaluation, a psychiatric evaluation,
medication management, therapy, and visitation. However, she
participated in services inconsistently and failed to stabilize her mental
health. Mother’s evaluating psychologist diagnosed her with depression
and posttraumatic stress disorder and noted that Mother’s “hold on reality
at times is rather precarious.”
¶4 About two years into the dependency proceeding, DCS
moved to terminate Mother’s parental rights under the fifteen-month out-
of-home placement ground. Arizona Revised Statutes (“A.R.S.”) § 8-
533(B)(8)(c). She then failed to appear at the pretrial conference, and the
court proceeded with the termination trial. It terminated Mother’s parental
rights on the ground alleged, and she appealed. Mother moved to set aside
the termination order, contending she had good cause for her failure to
appear, but eventually withdrew that motion. We have jurisdiction under
A.R.S. § 8-235(A).
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DISCUSSION
¶5 Mother first argues the court erred by not making an express
finding that her failure to appear was without good cause. We review the
sufficiency of the juvenile court’s findings de novo as a mixed question of
fact and law. Francine C. v. Dep’t of Child Safety, 249 Ariz. 289, 296 ¶ 14 (App.
2020).
¶6 Here, the court’s finding that Mother lacked good cause for
her absence from the pretrial conference is implicit in the record. See Mary
Lou C. v. Ariz. Dep’t of Econ. Sec., 207 Ariz. 43, 50 ¶ 17 (App. 2004) (“[W]e
will presume that the juvenile court made every finding necessary to
support the severance order if reasonable evidence supports the order.”).
DCS asked to proceed in absentia when Mother did not appear. The court
then inquired about Mother’s whereabouts and whether she had any reason
for her absence. None of the parties had recent contact with her, even
though she was no longer staying in an inpatient facility. Based on this
conversation, the court found that Mother had received the notice and an
admonition and that, “[h]aving failed to appear,” she had waived her rights
and admitted the petition’s allegations. The court’s findings are consistent
with an implicit finding that Mother lacked good cause for her absence.
¶7 Regardless, even if the court was required to make an express
finding, Mother failed to object to DCS’s proposed order or move to amend
the order for insufficient findings. Mother must therefore demonstrate
prejudice, see Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, 94 ¶ 25 (App.
2005) (fundamental error requires showing prejudice), but she has not done
so. Indeed, Mother moved to set aside the termination order alleging she
had good cause for her absence. Although Mother later withdrew the
motion, its filing shows she acknowledged the court’s implicit finding and
had an opportunity to address it.
¶8 Mother next argues the court “failed to make a single finding
of fact regarding its conclusion of law that there existed a substantial
likelihood that [she] would not be capable of exercising proper and effective
parental care and control in the near future” and that “[n]one of [its]
findings of fact support [such a] conclusion.” See A.R.S. § 8-533(B)(8)(c).
¶9 In a termination order, the juvenile court must make findings
that enable a reviewing court “to determine exactly which issues were
decided and whether the lower court correctly applied the law.” Ruben M.
v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 236, 240 ¶ 24 (App. 2012). To that end,
the juvenile court must make specific findings regarding the “ultimate
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facts,” and its findings must be “sufficiently specific to enable the appellate
court to provide effective review.” Id. at 241 ¶ 25. For each conclusion of
law, the juvenile court must “specify at least one [supportive] factual
finding.” Id. at 240 ¶ 22. When the grounds for the court’s judgment are
complicated, the court must make more detailed findings, but when they
are simple and straightforward, more summary findings are sufficient. Id.
at 241 ¶¶ 26–27.
¶10 Here, the court found that:
Mother was not parenting the child at the beginning of the
case. Mother has struggled with her mental health, substance
use, lack of housing, domestic violence history, and
instability. Mother was recently released from custody for
criminal charges including aggravated assault. Mother has
not consistently participated in services and has been unable
to demonstrate stability. The child has refused to speak or
visit with Mother. Mother is not able to parent the child and
is not likely to be able to parent in the near future.
¶11 The court’s findings establish that in over two years, Mother
failed to progress in reunification services and demonstrated instability and
aggression. These findings are more than sufficient to support its legal
conclusion that there existed a substantial likelihood that she would be
incapable of exercising proper and effective parental care and control in the
near future. Alma S. v. Dep’t of Child Safety, 245 Ariz. 146, 151 ¶ 18 (2018)
(“We accept the juvenile court’s findings of fact if reasonable evidence and
inferences support them.”).
CONCLUSION
¶12 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
4 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483079/ | Filed 11/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
FRANCISCO RAMIREZ et al.,
Plaintiffs and Appellants,
A162593
v.
PK I PLAZA 580 SC LP et al., (Alameda County
Super. Ct. No. RG19002904)
Defendants and Respondents.
Francisco Ramirez, a self-employed contractor, was hired by a shopping
center’s tenant to remove an exterior sign after the tenant vacated its space.
While searching for the sign’s electrical box, he entered a cupola on the
shopping center’s roof and fell through an opening built into the cupola’s
floor, sustaining serious injuries.
Ramirez and his wife (collectively, plaintiffs) filed a tort action against
defendants Kimco Realty Corporation and its subsidiary, PK 1 Plaza 580 SC,
LP (collectively, Kimco), who own and operate the shopping center. The trial
court granted summary judgment in Kimco’s favor based on the Privette
doctrine, which creates “a strong presumption under California law that a
hirer of an independent contractor delegates to the contractor all
responsibility for workplace safety[,] . . . mean[ing] that a hirer is typically
not liable for injuries sustained by an independent contractor or its workers
while on the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37–38
(Gonzalez), citing Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).)
1
On appeal, plaintiffs contend that summary judgment was improperly
granted because the Privette doctrine does not apply. We agree. Kimco did
not hire its tenant or Ramirez to perform the work. Thus, Kimco did not
delegate its own responsibility for the roof’s condition to Ramirez through an
employment relationship, as contemplated by Privette. Nor did Kimco
delegate such responsibility by virtue of its landlord-tenant relationship.
Since Kimco neither sought summary judgment nor argues for affirmance on
any basis other than the Privette doctrine, we must reverse and remand for
further proceedings. In doing so, however, we recognize the strong possibility
that Kimco will prevail under general principles of premises liability.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Kimco owns a Livermore shopping center. Freeway Insurance Services,
Inc. (Freeway) leased an office suite in the center from Kimco. In
October 2017, Freeway vacated the suite. Under the lease, Freeway thus
became responsible for removing an exterior sign from the suite. Kimco
offered to handle the removal and bill the cost to Freeway, but Freeway
elected to hire Ramirez, a self-employed contractor, to perform the work.
On the afternoon of November 6, 2017, Ramirez arrived at Freeway’s
suite to remove the sign. Although Kimco had arranged for someone to be
present to let Ramirez inside, no one was there when he arrived. While
waiting to access the suite, he confirmed that the sign was powered by a low
voltage electrical source that needed to be disconnected before he could
complete the job.
In his deposition, Ramirez testified that after he waited outside for
20 minutes, a woman from Kimco’s office arrived and gave him the keys to
2
Freeway’s suite.1 He asked her if a security guard or maintenance worker
was onsite, since they usually had “all the keys including for the attic access.”
The woman responded that she did not know anything about it, asked him to
call her half an hour before he finished the job, and left. Ramirez denied
telling the woman he might need to go onto the roof, and it is undisputed that
Kimco did not provide any directions to him about how to perform his job.
Once inside the suite, Ramirez searched for the electrical box, which
would usually be in the suspended ceiling behind the sign. Not finding the
box there, he decided to look for it on the roof.2 He went to the rear of the
building and used his own ladder to climb onto the roof.
On the roof, Ramirez saw a cupola that had an unlocked and open
access door. Believing the electrical box might be in the cupola, he fully
opened the access door and used a flashlight to look inside. He saw a “big
opening” in the drywall where he thought the electrical box might be.
Ramirez climbed into the cupola through the access door. Nine feet
from the access door, the cupola’s floor “transitions to an opening with [two
foot by six foot] joists,” which are two feet apart from each other.3 After
travelling 12 feet into the cupola, Ramirez fell through the opening and the
1Kimco disputed that any of its representatives gave Ramirez the keys
in person, pointing to email evidence that the code to a key lockbox was
provided to him. The parties agreed this discrepancy was not material to the
motion for summary judgment.
2As it turned out, the sign’s electrical source was in a room on the
building’s ground floor.
3Kimco presented evidence that the cupola houses the fire sprinkler
system and the opening is related to that system. Although implicitly
conceding that the opening is related to the sprinkler system, plaintiffs
disputed that the opening is necessary to the system’s functioning or that it
could not be made safer.
3
drywall of the ceiling below. He landed on the sidewalk, sustaining serious
injuries.
Ramirez and his wife sued Kimco in January 2019. In the operative
complaint, Ramirez brought causes of action for general negligence, premises
liability, negligence per se, and negligent infliction of emotional distress. His
wife also brought separate causes of action for negligent infliction of
emotional distress, based on the allegation that she witnessed Ramirez’s fall,
and loss of consortium.
Kimco moved for summary judgment, claiming it did not owe a duty of
care to plaintiffs. Kimco argued that the roof’s “opening was neither a
concealed condition nor . . . unascertainable to Ramirez,” and its duty to
“tak[e] proper precautions to protect against obvious hazards in the
workplace . . . was delegated to [him] under the Privette doctrine.” Plaintiffs
responded that the Privette doctrine did not apply because, among other
reasons, there was no employment relationship between Ramirez and Kimco.
The trial court granted Kimco’s motion for summary judgment. The
court concluded that Kimco “had no duty to ensure [Ramirez’s] safety,”
because the Privette doctrine applied even though Kimco did not directly hire
Ramirez. The court also found there was no triable issue of material fact as
to whether an exception to the doctrine applied. Accordingly, it entered
judgment in Kimco’s favor in April 2021.
II.
DISCUSSION
A. Standard of Review
Summary judgment is properly granted if “there is no triable issue as
to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A defendant seeking
summary judgment must show that the plaintiff cannot establish at least one
4
element of the cause of action.” (Regents of University of California v.
Superior Court (2018) 4 Cal.5th 607, 618; see Code Civ. Proc., § 437c,
subd. (p)(2).) If the defendant meets this burden, “the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c,
subd. (p)(2).)
On appeal, we independently review an order granting summary
judgment, “ ‘ “ ‘considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.’ ”
[Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.’ ” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc.
(2014) 59 Cal.4th 277, 286.) “We must affirm a summary judgment if it is
correct on any of the grounds asserted in the trial court, regardless of the
trial court’s stated reasons. [Citation.] Even if the grounds entitling the
moving party to a summary judgment were not asserted in the trial court, we
must affirm if the parties have had an adequate opportunity to address those
grounds on appeal.” (Garrett v. Howmedica Osteonics Corp. (2013)
214 Cal.App.4th 173, 181.)
B. General Legal Standards
The existence of Kimco’s legal duty to Ramirez is essential to all of
plaintiffs’ claims. “The elements of a negligence claim and a premises
liability claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” (Kesner v. Superior Court (2016)
1 Cal.5th 1132, 1158.) Claims of negligent infliction of emotional distress are
generally premised not on a breach of a duty to avoid causing emotional
distress but on the breach of some other duty that proximately causes
5
emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th
965, 985.) Similarly, a spouse’s claim for loss of consortium is premised on
the success of the other spouse’s claims against the defendant. (Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1315–1316.) “[T]he existence and
scope of a duty are questions of law.” (Staats v. Vintner’s Golf Club, LLC
(2018) 25 Cal.App.5th 826, 832.)
1. A landowner’s general duty of care
Civil Code section 1714 (section 1714) establishes this state’s “ ‘basic
policy . . . that [one] is responsible for an injury caused to another by [one’s]
want of ordinary care or skill in the management of [one’s] property . . . . The
proper test to be applied to the liability of the possessor of land in accordance
with [the statute] is whether in the management of [one’s] property [one] has
acted as a reasonable [person] in view of the probability of injury to others.’ ”
(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672 (Kinsman).) “As a
consequence of this general duty, those who own or occupy property have a
duty to maintain their premises in a reasonably safe condition. [Citations.]
To comply with this duty, a person who controls property must ‘ “ ‘ “inspect
[the premises] or take other proper means to ascertain their condition” ’ ” ’
and, if a dangerous condition exists that would have been discovered by the
exercise of reasonable care, has a duty to give adequate warning of or remedy
it.” (Staats v. Vintner’s Golf Club, LLC, supra, 25 Cal.App.5th at p. 833,
fn. omitted.)
In contrast, “ ‘if a danger is so obvious that a person could reasonably
be expected to see it,’ ” then generally “ ‘the condition itself serves as a
warning, and the landowner is under no further duty to remedy or warn of
the condition. [Citation.] However, this is not true in all cases. “[I]t is
foreseeable that even an obvious danger may cause injury, if the practical
6
necessity of encountering the danger, when weighed against the apparent
risk involved, is such that under the circumstances, a person might choose to
encounter the danger.” ’ ” (Kinsman, supra, 37 Cal.4th at p. 673.)
“ ‘[I]n the absence of a statutory provision establishing an exception to
the general rule of . . . section 1714, courts should create one only where
“clearly supported by public policy.” ’ ” (Kesner v. Superior Court, supra,
1 Cal.5th at p. 1143.) Under Rowland v. Christian (1968) 69 Cal.2d 108
(Rowland), the primary factors a court evaluates “[i]n determining whether
policy considerations weigh in favor of such an exception . . . are ‘the
foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the availability,
cost, and prevalence of insurance for the risk involved.’ ” (Kesner, at p. 1143,
quoting Rowland, at p. 113.)
2. The Privette doctrine
“At common law, a person who hired an independent contractor
generally was not liable to third parties for injuries caused by the contractor’s
negligence in performing the work.” (Privette, supra, 5 Cal.4th at p. 693;
Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269 (Sandoval).)
This rule was based on the presumption that when one hires an independent
contractor, one “delegates to the contractor the responsibility to do the work
safely. [Citations.] This presumption is grounded in two major principles:
first, that independent contractors by definition ordinarily control the
manner of their own work; and second, that hirers typically hire independent
7
contractors precisely for their greater ability to perform the contracted work
safely and successfully.” (Sandoval, at p. 269.)
Over time, courts created several exceptions to the common law rule,
including the peculiar risk doctrine. (Privette, supra, 5 Cal.4th at p. 693.)
Under that doctrine, a landowner who hires an independent contractor “to do
inherently dangerous work on the land” is liable to “innocent third parties
injured by the negligence of [the] independent contractor” in performing that
work. (Id. at pp. 694–695.) Thus, “liability imposed under the peculiar risk
doctrine is vicarious, meaning that the liability of a person hiring a
contractor to perform inherently dangerous work derives not from any
negligence by the hirer but from the injury-causing negligence of the hired
contractor.” (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 525
(Tverberg).)
Privette declined to extend the peculiar risk doctrine to cover injured
employees of an independent contractor performing inherently dangerous
work. (Tverberg, supra, 49 Cal.4th at p. 525; Privette, supra, 5 Cal.4th at
p. 702.) Thus, when an independent contractor or its employee is hurt on the
job, the Privette doctrine limits the liability of the contractor’s hirers,
including landowner-hirers. (Kinsman, supra, 37 Cal.4th at p. 664.) The
Supreme Court’s initial rationale for limiting the liability of the hirer of an
independent contractor was based on the availability of workers’
compensation. The Supreme Court reasoned that “[b]ecause workers’
compensation is the exclusive remedy for an employee’s workplace injuries,
thus barring recovery from the employer, so too an independent contractor’s
employee should not be allowed to recover damages from the contractor’s
hirer, who ‘is indirectly paying for the cost of [workers’ compensation]
8
coverage, which the [hired] contractor presumably has calculated into the
contract price.’ ” (Tverberg, at p. 525, quoting Privette, at p. 699.)
Later, the Supreme Court “recast [its] primary rationale for the Privette
doctrine in terms of delegation rather than workers’ compensation.”
(Sandoval, supra, 12 Cal.5th at p. 270.) Since “the hirer presumptively
delegates to the independent contractor the authority to determine the
manner in which the work is to be performed, the contractor also assumes the
responsibility to ensure that the worksite is safe, and the work is performed
safely.” (Gonzalez, supra, 12 Cal.5th at p. 41.) In addition, the doctrine
“promotes workplace safety through ‘clear rules about who’s responsible for
avoiding harms to workers when contractors are hired.’ (Sandoval[,] . . . [at
p.] 264.) Because of these types of considerations, [the Supreme Court] has
‘endorsed a “strong policy” of presuming that a hirer delegates all control over
the contracted work, and with it all concomitant tort duties, by entrusting
work to a contractor.’ ” (McCullar v. SMC Contracting, Inc. (2022)
83 Cal.App.5th 1005, 1013, quoting Sandoval, at p. 270.)
Accordingly, in Tverberg, the Supreme Court held that the peculiar risk
doctrine did not authorize an independent contractor hired by a
subcontractor, who in turn had been hired by a general contractor, to “seek[]
to hold the general contractor vicariously liable for [the independent
contractor’s] injuries arising from risks inherent in the nature or the location
of the hired work over which the independent contractor ha[d], through the
chain of delegation, been granted control.” (Tverberg, supra, 49 Cal.4th at
pp. 528–529.) Even though the “plaintiff independent contractor was not
subject to mandatory workers’ compensation coverage,” the Privette doctrine
barred him from suing the general contractor under a theory of vicarious
9
liability.4 (Tverberg, at p. 529; Sandoval, supra, 12 Cal.5th at pp. 270–271.)
Thus, the Privette doctrine applies if the injured party is the employee of an
independent contractor or the independent contractor itself, so long as the
duty to provide a safe workplace has been delegated to the contractor. (See
Sandoval, at p. 270, fn. 2; Gonzalez, supra, 12 Cal.5th at pp. 37–38.)
The Privette doctrine has two primary exceptions, under which a hirer
may nonetheless be liable to an independent contractor or the contractor’s
employee because the “hirer has failed to effectively delegate all
responsibility for workplace safety to the independent contractor.” (Gonzalez,
supra, 12 Cal.5th at pp. 38, 42.) First, under Hooker, “a hirer may be liable
when it retains control over any part of the independent contractor’s work
and negligently exercises that retained control in a manner that affirmatively
contributes to the worker’s [or contractor’s] injury.” (Gonzalez, at p. 38, citing
Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202.)
Second, under Kinsman, “a landowner who hires an independent contractor
may be liable if the landowner knew, or should have known, of a concealed
hazard on the property that the contractor did not know of and could not
have reasonably discovered, and the landowner failed to warn the contractor
of the hazard.” (Gonzalez, at p. 38, citing Kinsman, supra, 37 Cal.4th at
p. 664.)
4 Although peculiar risk liability is essentially vicarious, not direct, “the
distinction between the two sorts of liability” in this context is not “neat.”
(Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 205.) Thus,
the Supreme Court has extended the Privette doctrine to bar causes of action
against hirers of independent contractors on liability theories that could be
characterized as direct, such as negligent hiring. (See Hooker, at pp. 201–
202.) At base, these theories are still derivative because the hired contractor,
not the hirer, is “ ‘ “the one primarily responsible for the worker’s on-the-job
injuries.” ’ ” (Id. at pp. 205–206.)
10
C. The Privette Doctrine Does Not Shield Kimco from Liability.
Plaintiffs claim that “Privette is inapplicable” because it established
“the general rule . . . that a non-negligent hirer cannot be held liable for
injuries of an independent contractor,” and there was no employment
relationship between Ramirez and Kimco. (Emphasis changed.) We agree
that the Privette doctrine does not apply, and summary judgment was
therefore improperly granted.
1. The scope of this opinion
Initially, we note that the only issue presented for our review is
whether Kimco was entitled to summary judgment under the Privette
doctrine. Kimco has never claimed, below or on appeal, that it had no duty to
Ramirez even if the doctrine is inapplicable. We therefore do not decide
whether summary judgment would have been proper under general
principles of premises liability, including the Rowland factors. (Cf. Garrett v.
Howmedica Osteonics Corp., supra, 214 Cal.App.4th at p. 181.)
Because we conclude that the Privette doctrine does not apply, we
refrain from deciding plaintiffs’ claim that the trial court erred by concluding
that the cupola’s opening was obvious. In ruling that the Kinsman exception
to the doctrine was inapplicable, the court stated that the opening was “not a
‘concealed’ hazard as defined in Kinsman” because it was “discoverable by a
reasonable contractor using a flashlight to inspect where [the contractor was]
going to walk in a dark enclosed cupola.” We do not view these statements as
a standalone ruling that the opening was obvious under general principles of
premises liability. The court made the statements only after erroneously
determining the Privette doctrine applied, and since the doctrine does not
apply it was unnecessary to decide whether the standard discussed in
11
Kinsman was met.5 Thus, the parties are not precluded from litigating on
remand whether the danger was obvious. Nonetheless, we recognize there is
strong evidence that it was, as the dissent’s discussion of the Kinsman
exception suggests, and the parties are also not precluded from litigating
whether Kimco has other valid defenses that shield it from liability.
2. The Privette doctrine does not apply.
We now turn to the determinative issue, whether the Privette doctrine
applies. As discussed above, Privette is grounded on the presumption that
“the hirer [of an independent contractor] generally delegates to the contractor
responsibility for supervising the job, including responsibility for looking
after employee safety.” (Kinsman, supra, 37 Cal.4th at pp. 670, 673.) In the
premises-liability context, “[w]hen the hirer is also a landowner, part of that
delegation includes taking proper precautions to protect against obvious
hazards in the workplace” or against concealed hazards of which the
independent contractor is or should be aware. (Id. at pp. 673–675, 677–678.)
But here, Kimco did not hire either Ramirez or Freeway. Thus, Kimco did
not delegate a responsibility for ensuring the worksite’s safety, either directly
or “through the chain of delegation.” (Tverberg, supra, 49 Cal.4th at pp. 528–
529.) Accordingly, the bedrock presumption of the Privette doctrine is absent
in this case. (See Sandoval, supra, 12 Cal.5th at p. 269.)
Kimco argues that it nonetheless delegated to Freeway a duty involving
the roof’s condition by virtue of (1) their landlord-tenant relationship
5 In any event, whether the hazard was not a concealed hazard because
it was “discoverable by a reasonable contractor using a flashlight” does not
necessarily determine whether the hazard was “so obvious that a person
could reasonably be expected to see it” under general principles of premises
liability. (Kinsman, supra, 37 Cal.4th at p. 673.)
12
generally and (2) the lease’s particular terms making Freeway responsible for
the sign’s removal. We disagree.
a. Kimco did not delegate to Freeway a duty involving
the roof’s condition merely by virtue of their landlord-
tenant relationship.
Citing Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649 (Laico),
Kimco primarily claims, as it did below, that “a landowner/occupier implicitly
delegates to its tenant the responsibility and duty to ensure that the tenant’s
employees are given a safe place to work.” The trial court apparently
accepted this argument, but we do not. Laico did not involve a landlord-
tenant relationship, and the decision applied general principles of premises
liability, not the Privette doctrine, to conclude that a landowner owed no duty
to the plaintiffs.
One of the Laico plaintiffs worked for Chevron Research and
Technology Company (CRTC), which operated “engine laboratory facilities”
on property owned by defendant Chevron U.S.A., Inc. (Chevron). (Laico,
supra, 123 Cal.App.4th at p. 654.) He was exposed to benzene while working
around gasoline as a lab technician. (Id. at pp. 654–655.) After he developed
a blood disorder that can result from such exposure, he and his wife sued
Chevron for premises liability. (Id. at pp. 655–656.) A jury agreed that
Chevron negligently managed the property, and the trial court denied
Chevron’s motion for judgment notwithstanding the verdict. (Id. at p. 658.)
The Sixth District Court of Appeal reversed, holding that Chevron
“owed no duty as a landowner to protect [the primary plaintiff] from injuries
arising from his employment at the facility that occupied the premises.”
(Laico, supra, 123 Cal.App.4th at p. 654.) After applying the Rowland factors
to “determin[e] whether public policy require[d] a departure from the general
rule of . . . section 1714,” the appellate court answered in the affirmative and
13
found no basis for imposing premises liability on Chevron. (Laico, at pp. 659–
660, 670.) While Chevron might have been aware that CRTC was conducting
gasoline testing, there was no evidence it “knew that CRTC employees were
handling gasoline without taking protective measures against benzene
exposure,” a hazard that was not “a dangerous condition of land owned by
[Chevron] or under its control.” (Id. at pp. 661, 670.) In addition, “there [was]
no evidence defining the relationship between [Chevron] and CRTC, whether
landlord-tenant or otherwise.” (Id. at p. 664, italics added.) Thus, the
plaintiffs “failed to establish [Chevron’s] knowledge of the danger, the right to
inspect, or the ability to discover and remedy hazards of the workplace.” (Id.
at p. 670.) As a result, to impose a duty on Chevron would “amount[] to an
assignment of vicarious or derivative liability for acts or omissions associated
with [the primary plaintiff’s] employment at CRTC, contrary to the policies
expressed in Privette and its progeny.” (Ibid.)
As a subsequent decision observed, Laico “was applying rules of law
governing premises liability and was not applying the Privette doctrine.”
(Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 992.)
Although in Laico the Sixth District observed that the Privette line of cases
“provide[d] a useful analogy to the issues presented,” it applied section 1714
and the Rowland factors to reach its holding. (Laico, supra, 123 Cal.App.4th
at pp. 659–660, 665–666, 668.) Indeed, Laico “agree[d] with [the] plaintiffs
that CRTC was not functioning as an independent contractor, as it was not
hired by [Chevron],” and “[t]he relationship between the two entities thus
[did] not evoke the policy reasons underlying the peculiar risk doctrine—that
is, to spread the risk of loss to one who benefits from the work by including
the cost of workers’ compensation insurance in the contract price.” (Id. at
p. 668.) Accordingly, Laico falls far short of establishing that the Privette
14
doctrine immunizes a landowner from liability because the owner necessarily
delegates duties to the land’s occupier.6
Kimco also relies on Lopez v. University Partners (1997) 54 Cal.App.4th
1117, in which the Fourth District Court of Appeal affirmed summary
judgment in favor of a landowner and its tenant in a suit brought by the
employee of an independent contractor hired by the tenant. (Id. at pp. 1120–
1121.) The landowner and tenant successfully moved for summary judgment
“on the ground workers’ compensation provided the exclusive remedy for [the
plaintiff’s] injuries under Privette” (id. at p. 1121), and the Fourth District
rejected the plaintiff’s arguments that the landowner was nonetheless liable
because (1) it was acting as a general contractor when he was injured and
(2) it owed a nondelegable duty to provide him with a safe workplace. (Id. at
pp. 1123–1126.)
Although Lopez is factually similar to this case because the landowner
had no employment relationship with its tenant or the independent
contractor, the decision did not explain why the Privette doctrine protected
the landowner. Lopez was issued before the Supreme Court emphasized that
delegation, not the availability of workers’ compensation, is the primary
rationale for the doctrine, and the Fourth District did not address whether
the landowner delegated any duty to its tenant. Thus, Lopez does not
support Kimco’s position that it delegated any duty involving the roof to
6We need not address whether Laico supports the conclusion that
Kimco owed no duty to Ramirez even if Privette is inapplicable, because
Kimco does make this claim. In any case, Laico is factually distinguishable
in ways that affect the Rowland analysis. Chief among these is that the
dangerous condition in Laico was created by “the functioning of the business
that operated on the premises,” and was not, as here, “a danger existing on
the land independently of the occupant’s activity.” (Laico, supra,
123 Cal.App.4th at p. 660.)
15
Freeway, as “ ‘it is axiomatic that cases are not authority for propositions not
considered.’ ” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109,
1160.)
Kimco also cites Zamudio v. City & County of San Francisco (1999)
70 Cal.App.4th 445 for the proposition that “courts have expanded the
application of Privette to owners and occupiers of premises.” In Zamudio,
Division Five of this court held that a landowner that hired a construction
manager, which in turn hired a subcontractor, was not liable for injuries to
the subcontractor’s employees. (Id. at pp. 447–448.) But in that case, the
landowner delegated its duty to provide a safe workplace through its
employment contract with the construction manager, not through a landlord-
tenant relationship. (See id. at pp. 448, 450.) Although the Privette doctrine
undoubtedly can protect landowners from liability, Zamudio is merely an
example of how this occurs through a hiring-based chain of delegation.
Zamudio does not hold that Privette applies whenever an independent
contractor is hired to work on a landowner’s property, regardless of the
landowner’s status as a hirer.
b. The lease’s terms do not establish that Kimco delegated to
Freeway a duty involving the roof’s condition.
Having concluded that a landlord does not delegate to its tenant a duty
to provide a safe workplace for any independent contractor the tenant may
hire simply by virtue of the fact they are in a landlord-tenant relationship, we
turn to whether Kimco delegated such a duty to Freeway based on the lease’s
terms. We conclude it did not. Kimco did not effectively “hire” Freeway to
install and remove the sign, and the Privette doctrine is therefore
inapplicable.
To begin with, no aspect of the lease establishes that Kimco delegated a
duty involving the roof’s condition to Freeway. The lease provided that
16
Freeway would “have the non-exclusive right to use the Common Area,”
which was defined to include the shopping center’s “roofs.” Kimco “reserve[d]
to itself the exclusive right at any time to use the roof, foundation[,] or
exterior walls (other than [Freeway’s] storefront) for placing of signs or
equipment, including utility equipment, or for purpose of additional
construction.” In addition, Freeway was responsible for paying “as Common
Area Rent, one-twelfth (1/12th) of [its] annual share of Yearly Common Area
Costs,” which was defined as “all costs and expenses incurred by [Kimco]
during each twelve (12) month period selected by [Kimco] for repair,
replacement, maintenance, insurance, protection[,] and operation of the
Common Area, and for compensation to management and service personnel.”
Since under the lease Kimco retained possession and control of the roof,
including responsibility for maintenance, it did not delegate to Freeway a
general duty of reasonable care with regard to dangerous conditions on the
roof.7 (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158; Johnston v. De La
Guerra Properties, Inc. (1946) 28 Cal.2d 394, 399; Stone v. Center Trust Retail
Properties, Inc. (2008) 163 Cal.App.4th 608, 612; Rest.3d Torts, Liability for
Physical and Emotional Harm (2012) § 53 & com. c; see also Srithong v. Total
Investment Co. (1994) 23 Cal.App.4th 721, 726 [landlord’s duty to “maintain
property in a safe condition” cannot be delegated to independent contractor].)
7 The dissent responds to this observation by stating that whether
Kimco “delegated any responsibility for the maintenance of the roof here is,
under Privette, irrelevant.” (Dis. opn. at p. 7.) But we make the observation
only to negate any argument that Privette should somehow apply on the
theory that the lease, although not employment-related, expressly delegated
responsibility for the roof’s condition to Freeway. Naturally, if Kimco had
actually hired Freeway to remove the sign, the Privette doctrine would still
shield Kimco from liability even though Kimco generally retained control and
possession of the roof.
17
Nor did Kimco delegate to Freeway a duty to ensure the safety of the
site where Ramirez performed his work. Privette delegation is project-
specific, meaning it involves a duty limited not only to the contracted-for
work but also to the place where that work occurs. At oral argument, Kimco
claimed that in requiring Freeway to remove the sign, the lease necessarily
delegated to Freeway the duty to ensure the safety of the area where that
work was performed. Even assuming, without deciding, that the roof was
reasonably included in that area, we reject the notion that a landowner may
absolve itself of liability for conditions in a space over which it retains
possession and control merely by assigning its tenant a task that could
involve that space.8
Application of the Privette doctrine is also not justified on a theory that
Kimco and Freeway’s relationship with regard to the sign removal was
analogous to an employer-independent contractor relationship. True, Kimco
purported to “control[] [only] the results of [the sign removal] and not the
means by which it [was] accomplished” (Kim v. Sumitomo Bank (1993)
17 Cal.App.4th 974, 983), which might otherwise suggest that Freeway
functioned like an independent contractor. But Freeway had no special
“ability to perform the contracted work safely and successfully” compared to
8 Although Freeway delegated to Ramirez any duty it had to ensure the
worksite’s safety, there is no rule against different parties holding
overlapping duties. The fact that Ramirez implicitly assumed a duty to take
precautions for his own safety when removing the sign might affect the
overall analysis of whether Kimco is liable, but it does not establish that
Kimco lacked a duty involving the worksite’s condition under Privette
specifically. If the law were otherwise, third-party tortfeasors with no
relationship to the contracted-for work could rely on Privette to avoid liability
merely because the injured party happened to be an independent contractor
or its employee.
18
Kimco, and such an ability is a “major principle” that underlies the
presumption that a hirer delegates responsibility for workplace safety to an
independent contractor. (Sandoval, supra, 12 Cal.5th at p. 269.) Nor was
Freeway in any business—whether as a general contractor, project manager,
or otherwise—that had anything to do with the work Ramirez was hired to
perform.9 Thus, even if an employer-independent contractor relationship can
coexist with a lessor-lessee relationship, one of the main “hallmarks of an
employer-independent contractor relationship”—that “the [lessor] hired [the
lessee] to perform work”—is missing. (Bostrom v. County of San Bernardino
(1995) 35 Cal.App.4th 1654, 1668–1669.)
More fundamentally, the sign benefited Freeway more than it did
Kimco, and Kimco did not directly or indirectly pay Freeway to install or
remove it. The lease explicitly provided that the sign’s installation would be
“at [Freeway’s] sole cost and expense” and that its removal was “the
responsibility of [Freeway].” It would be completely speculative to suppose
that the rent was nonetheless discounted to account for Freeway’s sign-
related expenses, much less that any such discount amounted to Kimco’s
indirect offsetting of the cost Freeway might incur should a worker be injured
while installing or removing the sign. (See Privette, supra, 5 Cal.4th at
p. 699.) Thus, Kimco did not effectively “hire” Freeway to perform the work
at issue.
The dissent disagrees, taking the view that “the signage provisions in
the lease are in substance a contract for the work, giving rise to presumptive
9The dissent cites a series of cases in which Privette applied where
there was a “contracting intermediary” between the original hirer and the
independent contractor. (Dis. opn. at pp. 5–6.) Unlike Freeway, the
intermediaries in those cases were hired by the original party to perform
services they were normally in the business of providing.
19
delegation, ultimately to the independent contractor [Ramirez], of the duty to
provide a safe workplace.” (Dis. opn. at p. 9.) But whether a lease or some
other non-work-specific agreement is “in substance” a contract to perform
work is an amorphous standard, and one that would create significant
uncertainty in an area where “clear rules about who’s responsible for
avoiding harm to workers” are needed. (Sandoval, supra, 12 Cal.5th at
p. 264.) Left unanswered is whether, for example, lease provisions like those
here that require tenants to keep the premises pest-free, maintain the
premises in “good and safe condition,” and “make all repairs, replacements
and alterations” necessary would be in substance contracts to perform work
for purposes of applying Privette. Despite addressing the Privette doctrine
numerous times, our state Supreme Court has never suggested that it applies
to a non-hirer, much less on the theory the dissent suggests.
Finally, Kimco claims that “it would be ‘illogical and unfair’ to subject
[it] to significant liability simply because Freeway chose to handle the [sign]
removal itself instead of letting Kimco take care of it.” (Quoting Laico, supra,
123 Cal.App.4th at p. 668.) The dissent echoes this concern, perceiving “no
reason why the result should be different” based on whether the lease
requires a tenant to be responsible for work that an independent contractor
will do or whether the landlord hires the independent contractor itself. (Dis.
opn. at p. 14.) But the unfairness the Privette doctrine was originally
designed to avoid is “impos[ing] liability on [one entity] for an injury
attributable to [another entity], whose liability is limited by workers’
compensation insurance.” (Laico, at p. 668; Toland v. Sunland Housing
Group, Inc. (1998) 18 Cal.4th 253, 256; see Ruiz v. Herman Weissker, Inc.
(2005) 130 Cal.App.4th 52, 62 [policy aim is to ensure “the ultimate
responsibility for the injury will be borne by the person whose fault caused
20
that injury or, failing that, by the person who benefited from the work”].)
Here, Kimco retained possession and control of the roof, and if any entity
acted negligently with regard to the roof’s condition, it was Kimco, not
Freeway. Because Kimco did not delegate a duty involving the roof, the
Privette doctrine does not shield it from direct liability for any tortious breach
of that duty.
In closing, we reiterate that the Privette doctrine is not the only path by
which Kimco may ultimately avoid liability, or even the only path by which it
may be deemed to have owed no duty to Ramirez. We hold only that Kimco
cannot prevail based on this particular doctrine, which has never been
applied in circumstances such as these. If the doctrine is to be expanded as
the dissent contemplates, it should be the Supreme Court, not us, that does
so.
III.
DISPOSITION
The judgment is reversed, and the matter is remanded for further
proceedings consistent with this opinion. Appellants are entitled to their
costs on appeal.
21
_________________________
Humes, P.J.
I CONCUR:
_________________________
Wiss, J.*
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
Ramirez v. PK I Plaza 580 SC LP A162593
22
DISSENTING OPINION OF BANKE, J.
In my view this is a more complex case than the majority opinion
suggests, and I reach a different conclusion as to the applicability of the
Privette doctrine.1 I also conclude no triable issue exists as to whether the
Kinsman exception2 to the doctrine applies, and I therefore would affirm the
summary judgment.
In the “nearly three decades since” our Supreme Court “decided Privette,”
it has “repeatedly reaffirmed the basic rule that a hirer is typically not liable
for injuries sustained by an independent contractor or its workers while on
the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 41 (Gonzalez).) This rule,
commonly referred to as the Privette doctrine, applies to any person or entity
in the hiring chain. (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th
256, 270, fn. 2 (Sandoval); Tverberg v. Fillner Construction, Inc. (2010)
49 Cal.4th 518, 528 (Tverberg).) Thus, an injured independent contractor, or
an injured employee of, or consultant to, an independent contractor, no
matter how far down the contracting chain, typically cannot sue either the
contractor that let the subcontract or hired the consultant, or the person or
entity for whom the work is being done. (Tverberg, at p. 528.)
With respect to injured employees of independent contractors, the
Supreme Court has grounded the Privette doctrine on the availability of
worker’s compensation. As the court explained in SeaBright Ins. Co. v. U.S.
Airways, Inc. (2011) 52 Cal.4th 590, 598–599 (SeaBright), “[i]n light of [the
workers’ compensation] limitation on the independent contractor’s liability to
1 Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).
2 Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman).
1
its injured employee, Privette concluded that it would be unfair to permit the
injured employee to obtain full tort damages from the hirer of the
independent contractor. That was especially so because (1) the hirer likely
paid indirectly for the workers’ compensation insurance as a component of
the contract price [citations], (2) the hirer has no right to reimbursement
from the contractor even if the latter was primarily at fault [citations], and
(3) those workers who happen to work for an independent contractor should
not enjoy a tort damages windfall that is unavailable to other workers
[citations].”
With respect to injured independent contractors or consultants,
themselves, the court has reached the same result but employed a different
rationale. (Tverberg, supra, 49 Cal.4th at pp. 527–529 [observing Privette
does not apply directly to independent contractors]; see Gonzales, supra,
12 Cal.5th at p. 42 [same result as “to a solo independent contractor who has
no employees and who has declined to obtain workers’ compensation
insurance”].) “Unlike a mere employee, an independent contractor, by virtue
of the contract, has authority to determine the manner in which . . . [the]
work is to be performed, and thus assumes legal responsibility for carrying
out the contracted work, including the taking of workplace safety
precautions.” (Tverberg, at p. 522.)
Thus, as the court observed in Gonzalez, supra, 12 Cal.5th at page 41, its
more recent cases “emphasize delegation as the key principle underlying [the
Privette doctrine]: Because the hirer presumptively delegates to the
independent contractor the authority to determine the manner in which the
work is performed, the contractor also assumes the responsibility to ensure
that the worksite is safe, and the work is performed safely.” This
“presumptive delegation” of the duty to provide a safe workplace (Sandoval,
2
supra, 12 Cal.5th at p. 271), in turn, insulates all those in the hiring chain
from tort liability for workplace injuries suffered by an independent
contractor or an employee thereof or consultant thereto. (Id. at p. 270, fn. 2;
Tverberg, supra, 49 Cal.4th at p. 528.)
The high court has identified only “two limited circumstances” in which
the presumption of delegation is overcome. (Gonzales, supra, 12 Cal.5th at
p. 38.)
The first was articulated in Kinsman, wherein the court held that a
landowner/hirer can be liable to an injured independent contractor or its
employees if the landowner (a) “ ‘knew, or should have known, of a latent or
concealed preexisting hazardous condition on its property,’ ” (b) “ ‘the
contractor did not know and could not have reasonably discovered this
hazardous condition,’ ” and (c) “ ‘the landowner failed to warn the contractor
about this condition.’ ” (Gonzalez, supra, 12 Cal.5th at p. 43, quoting
Kinsman, supra, 37 Cal.4th at p. 664.) This is a different, and more rigorous,
standard than is otherwise applicable in the context of a landowner’s common
law tort liability to third parties. (Id. at p. 674 [“the usual rules about
landowner liability must be modified, after Privette, as they apply to a hirer’s
duty to the employees of independent contractors”]; see Gonzalez, supra,
12 Cal.5th at p. 50 [refusing to impose on landowner, in Privette context,
common law tort duty to remedy obvious hazards on property].)
Thus, under the Privette doctrine as explicated in cases such as Kinsman
and Gonzales, a landowner has no obligation to remedy a latent or concealed
hazardous condition, but must simply provide sufficient warning of it. It is
then up to the independent contractor to decide how best to do the contracted
work in light of the warned of condition or decide not to proceed with the
work. (Gonzalez, supra, 12 Cal.5th at pp. pp. 51–52, 54; Kinsman, supra,
3
37 Cal.4th at p. 673 [having been warned, it is up to contractor to take
precautions]; McCullar v. SMC Contracting, Inc. (2022) 83 Cal.App.5th 197,
208 (McCullar); see Hooker v. Department of Transportation (2002)
27 Cal.4th 198, 215 (Hooker) [under Privette doctrine, hirer is not liable for
merely permitting a dangerous work condition or practice to exist].)
The landowner/hirer, likewise, has no obligation with respect to a
hazardous condition of which an independent contractor is aware, including a
condition the contractor “cannot remedy or protect against through the
adoption of reasonable safety measures.” (Gonzales, supra, 12 Cal.5th at
pp. 39, 45–51.) Again, it is up to the contractor to devise a means to do the
contracted work safely or refuse to perform it. (Id. at pp. 50–51, 54–55.)
Nor does the landowner/hirer have an obligation to warn of a hazardous
condition of which the contractor reasonably should have been aware. “[T]he
responsibility for job safety delegated to independent contractors may and
generally does include explicitly or implicitly a limited duty to inspect the
premises as well.” (Kinsman, supra, 37 Cal.4th at p. 677.)
The second exception was articulated in Hooker, wherein the high court
“held that a hirer will be liable where it exercises retained control over any
part of the contractor’s work in a manner that affirmatively contributes to
the worker’s injuries.” (Gonzalez, supra, 12 Cal.5th at p. 42.) Retained
control over the safety conditions of the worksite, in and of itself, is
insufficient to establish liability. (Ibid.) “[U]nless a landowner retains
control over any part of the contractor’s work and negligently exercises that
retained control in a manner that affirmatively contributes to the injury
[citation], it will not be liable to an independent contractor or its workers.”
(Id. at p. 38, italics added; accord, Sandoval, supra, 12 Cal.5th at pp. 274–279
4
[discussing Hooker exception in further detail]; McCullar, supra,
83 Cal.App.5th at pp. 205–207 [same].)
Thus, “this exception to Privette is not met solely because a hirer is aware
that there is an unsafe condition on the worksite or knows that the contractor
is engaging in an unsafe work practice. [Citation.] Something more is
required, such as ‘ “inducing injurious action or inaction through actual
direction” ’ [citation]; directing ‘ “the contracted work be done by use of a
certain mode” ’ [citation]; or interfering with ‘ “the means and methods by
which the work is accomplished.” ’ ” (Gonzales, supra, 12 Cal.5th at p. 42;
Sandoval, supra, 12 Cal.5th at p. 276 [“Contract workers must prove that the
hirer both retained control [of the contracted work] and actually exercised
that retained control in such a way as to affirmatively contribute to the
injury.”]; see McCullar, supra, 83 Cal.App.5th at pp. 205–207.) Accordingly,
merely providing plans and specifications to a contractor does not trigger the
application of Hooker and Sandoval.
There is no question in the instant case that had the landowner/lessor
hired the plaintiff, an independent electrical contractor, to remove the
departing lessee’s sign, the Privette doctrine, as it has been developed with
respect to independent contractors who are, themselves, injured, would apply.
I also think there is little doubt that would be the case had the
landowner/lessor entered into a separate contract with the lessee for removal
of the sign, with the lessee thus becoming the contracting intermediary
between the landowner/lessor and the independent contractor. (See
Sandoval, supra, 12 Cal.5th at pp. 265–266 [landowner hired electrical
engineering service, which, in turn, hired specialist consultant]; Tverberg,
supra, 49 Cal.4th at pp. 528–529 [general contractor hired subcontractor,
which, in turn, hired independent contractor]; Ruiz v. Herman Weissker, Inc.
5
(2005) 130 Cal.App.4th 52, 56, 62 (Ruiz) [landowner’s “contract
administrator” not in direct hiring chain and responsible for monitoring work
for safety and contract compliance not liable to injured employee of
independent contractor; “the policies enunciated in Privette . . . are equally
applicable in determining the liability of the hirer’s agent”]; Zamudio v. City
and County of San Francisco (1999) 70 Cal.App.4th 445, 447, 451 (Zamudio)
[landowner hired construction manager, which, in turn, hired specialty
subcontractor; “principles of Privette and Toland . . . are crafted to insulate
an owner and general manager from tort liability arising from a
subcontractor’s acts which caused injury to its employee”].) Upon entering
into a separate contract with the lessee for the work, the landowner/lessor
would presumptively delegates its duty to provide a safe workplace for that
work to the lessee, and the lessee, in turn, could, and likely would, hire a
specialty independent contractor to perform the work, as the lessee did here.
In fact, the lease in question expressly contemplated the lessee would hire a
contractor to do the work of installing and removing the signage.
I also cannot agree with the majority’s statement that “[e]ven assuming”
the roof and unlocked cupola were, in this case, “reasonably included” in “the
area where [the] work was performed,” the landowner/lessor cannot “absolve
itself of liability for conditions in a space over which it retains possession and
control merely by assigning its tenant a task that could involve the space.”
(Maj. opn. ante, at p. 18.) If the landowner/lessor had contracted directly
with the electrical contractor or if, as is my view, the landowner/lessor and
lessee had entered into a separate contract for the work, whether the
property owner “retained possession and control” over the roof would, under
Privette, be immaterial.
6
In fact, that was the situation in Gonzalez, where an independent
contractor hired to clean skylights on the homeowner’s roof slipped and fell
on an allegedly unsafe, poorly maintained part of the roof. (Gonzalez, supra,
12 Cal.5th at p. 40.) The owner clearly “retained control” of the roof, but that
was immaterial since workplace safety had presumptively been delegated to
the contractor. It was therefore the contractor’s responsibility to determine
how to perform the work safely in light of the hazardous condition of the roof,
or to refuse to do the work. (Gonzalez, at pp. 51–52, 54; see Gravelin v.
Satterfield (2011) 200 Cal.App.4th 1209, 1212–1213 (Gravelin) [property
owner not liable for injuries sustained by employee of contractor hired by
satellite company to install satellite dish who attempted to access roof by
using a small roof extension that collapsed; owner clearly retained possession
and control of the roof and extension, but it was the contractor’s
responsibility to determine how to safely do the contracted work].)
Further, the court in Gonzales expressly rejected the independent
contractor’s argument that the owner had never delegated to him the owner’s
“duty to maintain the roof in a reasonably safe condition.” (Gonzales, supra,
12 Cal.5th at p. 54.) The court explained that “while [the owner] may not
have delegated any duty to repair the roof or make other structural changes
to it, [the owner] did delegate to [the independent contractor] a duty to
provide a safe workplace to his workers and to perform the work for which he
was retained in a safe manner.” (Ibid.) “This encompassed a duty on [the
contractor’s] part to assess whether he and his workers could clean the
skylight safely despite the existence of the known hazardous conditions on
the roof.” (Ibid.) Accordingly, whether or not the landowner/lessor delegated
any responsibility for the maintenance of the roof here is, under Privette,
irrelevant.
7
In my view the salient inquiry in this case is whether the fact that the
request that the lessee both install and remove the electrical signage
(through the anticipated hiring of an independent contractor to perform the
work) was included in the lease, rather set forth in a separate contract,
removes this case from the ambit of the Privette doctrine. The lease
provisions in this regard are detailed and set forth in several paragraphs of
“Rider B” and a three-page “Exhibit C” that collectively set forth a variety of
detailed specifications and approval requirements pertinent to the work.3 It
seems too simple to say that because the parties are denominated “lessor”
and “lessee,” this forecloses any other legal relationship. (See Bostrom v.
County of San Bernardino (1995) 35 Cal.App.4th 1654, 1668 [presuming a
lessor-lessee relationship and an employer-independent contractor
relationship “are not mutually exclusive” and that “a lease could give rise to
an employer-independent contractor relationship”].)
If in substance the provisions of a lease call for the lessee to do work that
will be performed by a specialized independent contractor, it would seem to
be the height of form over substance to say the Privette doctrine does not
apply and the independent contractor can sue the landowner/lessor under
common law premises liability principles, which, of course, the contractor
could not do if the landowner/lessor, rather than the lessee, hired the
contractor directly or if the landowner/lessor entered into a separate contract
with the lessee for the work.
3 Thus, I cannot agree with the majority that the landowner had “no
relationship to the contracted-for work.” (Maj. opn. ante, at p. 18, fn. 8.) To
the contrary, the landowner/lessor requested that the work be performed and
provided the specifications for it.
8
The Supreme Court has consistently pointed out in reaffirming and
refusing to constrict the Privette doctrine, that if it did not apply, it would
lead to the anomalous result that the plaintiff contractor/employee would be
able to seek a tort recovery, while other contractors/employees performing the
same work, could not. (E.g., Gonzalez, supra, 12 Cal.5th at p. 51 [court’s
holding that independent contractor cannot sue landowner/hirer “avoids the
unfair ‘tort damages windfall’ that would result from adopting a rule that
allows independent contractors and their workers to obtain tort damages
from the landowner while the landowner’s own employees are limited to
workers’ compensation”]; Seabright, supra, 52 Cal.4th at p. 603 [“it would be
unfair to permit the injured employee to obtain full tort damages from the
hirer of the independent contractor—damages that would be unavailable to
employees who did not happen to work for a hired contractor”]; Tverberg,
supra, 49 Cal.4th at p. 528 [“[i]t would be anomalous to allow an independent
contractor to whom responsibility over the hired work has been delegated to
recover against the hirer on a peculiar risk theory while denying such
recovery to an independent contractor’s employee, a person who lacks any
authority over the hired work”]4.)
So, as I see it the question here is whether the signage provisions in the
lease are in substance a contract for the work, giving rise to presumptive
delegation, ultimately to the independent contractor, of the duty to provide a
safe workplace. Were there a provision that the lessee was to be paid,
credited, or reimbursed for this work (as there is for other work the lessee
4Thus, the majority’s suggestion that the existence of workers’
compensation for workplace injuries is no longer of concern to the Supreme
Court in applying the Privette doctrine (see maj. opn. ante, at pp. 9, 15),
appears unwarranted.
9
might do), it would seem evident that the request that the work be done
would in substance be a contract for the work.
However, as the majority opinion points out, the lease states the signage
is to be constructed and installed at the tenant’s expense. Should this make
a difference?
This is a perplexing question given that the Privette doctrine,
particularly as applied to independent contractors, themselves, is grounded
on presumptive delegation, which is not tied to any contractual relationship
between the landowner that requests the work and the contractor that
ultimately performs it. Otherwise, the doctrine would not apply where there
are intermediaries, no matter how long the string, between the landowner
requesting the work and the independent contractor performing it. Nor
would it apply in cases such as Ruiz, where the defendant was not in the
contracting chain at all, but instead was considered the “agent” of the
landowner in seeing that the work was done per contract specifications.
In this case, the landowner/lessor specified (in considerable detail) the
work, and the lessee was responsible for having it done. I see no reason why
the result here should be different than where a property manager or
contract administrator sees to it that requested work is performed.
Similarly, if in Gravelin, for example, the defendant that purchased the
residential satellite service had been a renter, rather than the homeowner,
should that difference have enabled the injured employee of the independent
contractor hired by the satellite company to install the satellite dish, to sue
the landowner/lessor for damages? If so, that would result in a profound
difference in terms of recovery based on a happenstance of which the
independent contractor likely was wholly unaware—the work, the conditions,
10
and the independent contractor’s responsibility for workplace safety
otherwise being identical.
Moreover, regardless of whether a landowner pays the first link in the
chain of presumptive delegation for the specified work, the specialty
contractor that actually performs the work is paid and thus “is not, in the
words of Privette . . . , a ‘hapless victim’ of someone else’s misconduct. In that
situation, the reason for imposing vicarious liability on a hirer—
compensating an innocent third party for injury caused by the risks inherent
in the hired work—is missing.” (Tverberg, supra, 49 Cal.4th at p. 528.) Here,
too, the electrical contractor was not an “innocent third party.” Rather,
having contracted with the lessee to perform the requested work, he was
delegated, and, in turn, assumed, the responsibility for workplace safety and,
absent an exception to the Privette doctrine, had to decide how to safely
perform the contracted work or, if he determined that was not feasible, to
decline to do the work. (See Gonzalez, supra, 12 Cal.5th at pp. 50–51, 54;
Kinsman, supra, 37 Cal.4th at pp. 673–674.)
Additionally, nearly all of the other of the policy reasons the court has
articulated with respect to Privette’s application to independent contractors
focus on the independent contractor, not the entity or person who asks that
the work be done. Independent contractors “can typically factor the cost of
[any] added safety precautions or any increased safety risks into [their]
contract price.” (Gonzalez, supra, 12 Cal.5th at p. 51.) “They [independent
contractors] can also purchase worker’s compensation to cover any injuries
sustained while on the job.” (Ibid., italics added.) “[A]n independent
contractor, by virtue of the contract, has authority to determine the manner
in which . . . [the] work is to be performed, and thus assumes legal
responsibility for carrying out the contracted work.” (Tverberg, 49 Cal.4th at
11
p. 522, italics added.) And, applying the Privette doctrine “avoids the unfair
‘tort damages windfall’ ” that would inure to the independent contractor solely
because of the manner in which the landowner requested the work, while had
the work been done by the landowner’s own employees, any workplace injury
would be compensated through the workers’ compensation system. (Ibid.)
It is true that in Privette, the court also observed that the “hirer”
indirectly pays into the workers’ compensation system. (Privette, supra,
5 Cal.4th at pp. 698–699; see SeaBright, supra, 52 Cal.4th at p. 599, citing to
Privette.) However, this point is scarcely mentioned in the court’s more
recent cases focusing on the presumptive delegation of workplace safety.
Understandably. The hirer only pays indirectly if the independent contractor
includes this in the contract price. So whether, and the extent to which, the
hirer may indirectly pay is not a matter as to which the hirer has any
obligation or control. Further, presumptive delegation may extend down a
long line of contractors, subcontractors, and consultants. Thus, any “indirect”
payment by the initial hirer may be of infinitesimal consequence to the
contractor or consultant who ultimately performs the work.
I agree with the majority (maj. opn. ante, at p. 20) that our Supreme
Court has never decided—in fact, never considered—whether Privette applies
in a situation like that presented here, where a lease obligates a lessee to
have work done on the property and expressly contemplates that work will be
performed by an independent contractor.
The majority acknowledges, however, that in Lopez v. University
Partners (1997) 54 Cal.App.4th 1117 (Lopez), the Court of Appeal, on similar
facts, held Privette applied. (Maj. opn. ante, at p. 15.) In that case, an
employee of an independent contractor sued the University (the
landowner/lessor) and its lessee for injuries sustained while doing work
12
pursuant to a contract between the lessee and his employer. (Id. at p. 1120.)
The trial court granted summary judgment to the University and its lessee
on the basis of Privette. (Ibid.)
On appeal, the employee maintained Privette did not apply to the lessee
because it did not hire his employer “as an ‘owner’ of the subject construction
site,” but rather, hired his employer as a “general contractor” that assertedly
was not entitled to the protection of Privette. (Lopez, supra, 54 Cal.App.4th
at pp. 1122–1123.) The appellate court disagreed, stating a person who hires
a contractor “could be an owner, a lessee or a general contractor.” (Id. at
p. 1123.) Furthermore, there was no evidence the lessee was acting as a
“general contractor.” (Ibid.) The employee made a similar, unsupported
claim that the University was acting as a “general contractor,” which the
appellate court also rejected. (Id. at pp. 1124–1125.) And, indeed, as the
Supreme Court has since made clear, any entity or person in the contracting
chain, including a general contractor, comes within Privette. The employee
further maintained the University and its lessee owed him nondelegable
duties to provide a safe workplace. The appellate court again disagreed,
stating an owner or general contractor may be liable for injuries to an
employee of a subcontractor where the owner or general contractor “retain[s]
sufficient control over the subcontractor’s work,” but there was no evidence
the University or its lessee did so. (Id. at pp. 1125–1126.) As the Supreme
Court has, again, made clear, such control must be both extensive and
actually exercised.
The majority dismisses Lopez on two grounds—the appellate court did
“not explain” why Privette applied to the University (the landowner/lessor),
and the opinion “was issued before the Supreme Court emphasized that
delegation, not the availability of workers’ compensation, is the primary
13
rationale for the doctrine.” (Maj. opn. ante, at p. 15.) As to the first ground, I
suggest the Lopez court shared the same pragmatic views I have articulated.
As to the second ground, Lopez was a quintessential Privette case because the
plaintiff was an employee of an independent contractor and therefore
Privette’s workers’ compensation rationale squarely applied. It was not until
our high court concluded the same outcome should apply to an injured
independent contractor that the court turned to a delegation rationale. Thus,
Lopez cannot be discounted because it predates application of the Privette
doctrine to injured independent contractors.
I am ultimately persuaded Privette should apply here since nearly every
policy reason on which the high court has relied applies, and given the court’s
emphasis on the unfairness of the disparity in outcomes if the Privette
doctrine does not apply. I see no reason why the result should be different
where, as here, a lease requires the lessee to do work on the property that the
parties contemplate will be done by an independent contractor, than where
the landowner/lessor, itself, hires the independent contractor or enters into a
separate contract with the lessee to arrange for the work to be done by an
independent contractor. In each of these scenarios, the independent
contractor has been presumptively delegated the duty for workplace safety
and it is up to the independent contractor to make a reasonable inspection of
the portions of the property that will be accessed in performing the work and
either take precautions in light of those conditions or elect not to do the work.
The majority says applying the Privette doctrine in cases like this one
would result in “significant uncertainty” in the application of the doctrine.
(Maj. opn. ante, at p. 20.) However, I fail to see why there should be any
difficulty in determining whether a lease, like the lease here, is the first link
in a “contracting chain” that contemplates, and results in, the hiring of an
14
independent contractor to do the work. The court had no difficulty, for
example, in Ruiz in determining that a “contract administrator”—that was
not even in the hiring or contracting chain—came within the Privette
doctrine. (Ruiz, supra, 130 Cal.App.4th at pp. 56, 62; see Zamudio, supra,
70 Cal.App.4th at p. 447 [construction manager came within doctrine].)
Because the majority concludes the Privette doctrine does not apply, it
does not consider whether the Kinsman exception applies. As recited above,
this exception requires the plaintiff to prove that the landowner (a) “ ‘knew,
or should have known, of a latent or concealed preexisting hazardous
condition on its property,’ ” (b) “ ‘the contractor did not know and could not
have reasonably discovered this hazardous condition,’ ” and (c) “ ‘the
landowner failed to warn the contractor about this condition.’ ” (Gonzalez,
supra, 12 Cal.5th at p. 43, quoting Kinsman, supra, 37 Cal.4th at p. 664.)
Plaintiff’s case indisputably falters as to the second requirement—that
he did not know or could not have known of the allegedly hazardous
condition. Plaintiff opened the cupola access door and entered the area. Nine
feet from the access door, the cupola’s floor “transitions to an opening with
[two foot by six foot] joists,” which are two feet apart from one another.
Plaintiff traveled twelve feet into the cupola before he fell between the joists
and through the floor. Therefore, he plainly was aware of the assertedly
hazardous condition. As Kinsman and Gonzalez make clear, once plaintiff
became aware of the allegedly hazardous condition, even if it could not be
rectified, it was his responsibility to take steps to complete the work safely in
light of the hazardous condition, or to refuse to do the work. (Gonzales,
supra, 12 Cal.5th at pp. 39, 45–51, 54; see Gravelin, supra, 200 Cal.App.4th
at pp. 1216–1217 [roof extension that contractor stepped on and fell through
15
was not a concealed hazard; its flimsiness and lack of structural strength
were obvious].)
I would therefore affirm the summary judgment.
16
I dissent:
_________________________
Banke, J.
Ramirez v. PK I Plaza 580 SC LP A162593
17
Trial Court:
Superior Court of the County of Alameda
Trial Judge:
Hon. Evelio M. Grillo
Counsel for Plaintiffs and Appellants:
Michael Alder, Samantha Hernandez-Ortega, Alder Law, P.C.; Brooke
L. Bove, Bove Law Group
Counsel for Defendants and Respondents:
W. Eric Blumhardt, Jessica Pliner, Lewis Brisbois Bisgaard & Smith
LLP
Ramirez v. PK I Plaza 580 SC LP A162593
1 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483081/ | Filed 11/9/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LA VONYA PRICE,
Plaintiff and Appellant, E076784
v. (Super. Ct. No. CIVDS1900178)
VICTOR VALLEY UNION HIGH OPINION
SCHOOL DISTRICT,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster,
Judge. Affirmed in part, reversed in part.
Taylor Labor Law, Christopher W. Taylor, Parham Barkhordar, Taylor H. White
and Philip Horlacher, for Plaintiff and Appellant.
Walsh & Associates, Dennis J. Walsh and Wendy K. Marcus, for Defendant and
Respondent.
1
I.
INTRODUCTION
La Vonya Price worked intermittently as a part-time substitute special education
aide at the Victor Valley Unified School District (the District) before applying for a full-
time position. She received an offer for a full-time position that was contingent on
passing a physical exam. When she failed the physical exam for not being “medically
suitable for the position,” the District rescinded the offer, terminated her as a substitute,
and disqualified her from any future employment with the District.
Price sued the District for retaliation and various disability-related claims, but the
trial court granted summary judgment to the District. Price appeals, and we affirm in part
and reverse in part.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Price suffered a serious stroke in 2003 that initially left her paralyzed. After years
of treatment, she eventually regained the use of her body and relearned how to speak,
stand, and walk, yet she did not fully recover. Price suffered some permanent paralysis,
which limited her ability to walk and the use of her left foot. Throughout 2005 and 2006,
Price had to use a walker and a wheelchair because of her limited mobility. By 2007,
Price’s condition had improved, but she still struggled with grasping and holding items,
although she could hold small items without them falling.
2
Price first worked part-time for the District between August 2006 and September
2006 as a substitute para-educator for special needs students. She was not required to
take or pass a physical examination for the position, and she did not tell the District she
had a disability or any medical restrictions.
In the fall of 2007, Price worked for the District on a long-term substitute
assignment (about eight hours for 35 days). She left the position because of problems
with swelling in her knee, which required her to wear a brace full-time. Price, however,
did not tell anyone at the District about her disability or medical restrictions.
Price worked for a different school district in 2013 as a substitute para-educator
for special needs students. She was not required to take a physical examination for the
position and, again, she did not tell anyone at that school district about her disability or
medical restrictions.
Price did not work for the District again until February 2018, when she was hired
as a substitute Instructional Assistant for special education students. Price was assigned
to work one-on-one with an autistic student, who would sometimes run away from
1
teachers and aides, including Price.
Although she considered herself disabled, Price stated in her application that she
did not have a disability that needed accommodations because she believed she did not
need any at the time. Price again did not tell anyone at the District that she had a
1
The parties informally refer to students who have a tendency to run away from
people as “runners.”
3
disability or needed an accommodation, even though at the time she could only lift a few
pounds with her left hand, she could fall if she had to jog without holding onto
something, and she could work only 20 to 25 hours per week because of her medical
issues. Because she applied for a substitute position, Price did not have to pass a physical
examination.
In July or August 2018, Price applied and interviewed for a full-time position as
an Instructional Assistant for special needs students. In her application, she stated that
she left her job in 2010 because of a “disability,” but she also stated that she did not have
a current disability that required accommodations. Price was offered the position
conditioned on certain screening procedures, including passing a physical examination,
which is required for all new full-time hires at the District.
An independent physician’s office conducted Price’s physical examination. The
District provided the physician with a description of the position Price had been offered
to determine whether she was qualified to perform its physical requirements. Physician’s
assistant Johnathan Luna administered Price’s physical examination.
During the examination, Price told Luna that she had a disability and told him
about her medical history, including that she had suffered a stroke. Luna then
administered a lifting test and balance test.
After the examination, Luna prepared a two-page report. On the first page, Luna
stated that Price passed the “lift & carry” test, but failed the “physical” test. Luna
indicated that Price had a “balance deficit, strength deficit in R leg.” In the section on the
4
second page concerning the items “performed and results reviewed,” Luna wrote,
“Deficit in RLC, balance, ↑ fall risk.” Based on the examination, Luna determined that
Price was “NOT medically suitable for the position.”
Luna sent his report to the District. The District’s Director of Classified
Personnel, DeShawn Dickinson, read Luna’s report. After reading the report, Dickinson
decided to rescind Price’s job offer because the District will not hire anyone who fails
either of the tests administered during the physical examination. If someone who has
received an offer contingent on passing the physical examination fails either test, the
offer is automatically withdrawn.
Dickinson met with Price later that week. Dickinson told Price that the District
had rescinded her job offer because she failed the physical test. He made it “very clear”
that Price could not challenge the decision.
Price asked Dickinson for more information on why Luna determined she failed
the physical test. Dickinson replied, “‘I don’t know that because I’m not the doctor. You
would need to contact them.’” Price told Dickinson that she disagreed with Luna’s
report, noted that she had successfully performed the job as a substitute, and that she
could consult her own doctor about whether she was medically qualified for the job.
Dickinson said he would not consider information from Price’s doctor and told her, “[you
are] a liability.” When Price asked him to explain what he meant by that, Dickinson
repeated three times that Price was “a liability.”
5
Dickinson then gave Price a letter that explained the District rescinded her job
offer because she failed the physical examination. The letter also explained that Price’s
failing the physical examination disqualified her from her current position as a substitute
and any future positions with the District.
B. Procedural History
Price first sued the District for seven claims under the Fair Employment and
2
Housing Act (FEHA; Gov. Code § 12940 et seq. ). After the District’s successful
demurrers (which Price does not challenge on appeal), only five of Price’s FEHA claims
remained: (1) disability discrimination; (2) failure to accommodate a disability; (3)
failure to engage in the interactive process; (4) retaliation; and (5) failure to prevent
discrimination and retaliation. The trial court granted the District’s motion for summary
judgment and entered judgment for the District. Price timely appealed.
III.
DISCUSSION
Price contends the trial court erroneously granted summary judgment to the
District because there are triable issues of fact concerning all of her claims. We agree as
to her first claim for disability discrimination, but disagree as to the rest of her claims.
A. Standard of Review
“A party moving for summary judgment bears the burden of persuasion there is no
triable issue of material fact and is entitled to judgment as a matter of law. A defendant
2
All further statutory references are to the Government Code.
6
satisfies this burden by showing one or more elements of the cause of action in question
cannot be established or there is a complete defense to that cause of action. If the
defendant meets this initial burden, the opposing party must then make a prima facie
showing of the existence of a triable issue of material fact. [Citation.] [¶] We review the
denial of a motion for summary judgment de novo. [Citation.] We strictly construe the
moving party’s affidavits and liberally construe the opposing party’s affidavits. We
accept as undisputed facts only those portions of the moving party’s evidence that are not
contradicted by the opposing party’s evidence.” (City of San Diego v. Superior Court
(2006) 137 Cal.App.4th 21, 25.) Thus, “[w]hen deciding whether to grant summary
judgment, the court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all reasonable
inferences that may be drawn from that evidence, in the light most favorable to the party
opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467.)
B. Disability Discrimination
FEHA prohibits an employer from refusing to hire an applicant based on the
applicant’s actual or perceived physical disability. (§ 12940, subd. (a).) To assess
Price’s FEHA discrimination claim, we use the McDonnell Douglas burden-shifting
3
framework. (See McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802; Guz v.
3
Price argues for the first time on appeal that we should not use the McDonnell
Douglas test here because she has presented “direct evidence” of the District’s
discriminatory reasons for rescinding her job offer. (See Wallace v. County of Stanislaus
[footnote continued on next page]
7
Bechtel Nat. Inc. (200) 24 Cal.4th 317, 354.) To succeed on her claim under that
framework, Price has the initial burden of establishing a prima facie case of disability
discrimination. (Moore v. Regents of University of California (2016) 248 Cal.App.4th
216, 234-235 (Moore).) If Price satisfies her burden, the burden shifts to the District to
prove that it had a legitimate, nondiscriminatory reason for subjecting Price to an adverse
employment action. (Id. at p. 235.) If the District satisfies its burden, the burden shifts
back to Price to prove that the District’s stated reason for the action was pretextual and
that its actual reason was discriminatory. (Id. at p. 236.)
1. Prima Facie Case
Under the McDonnell Douglas test, Price has the initial burden of establishing a
prima facie case of disability discrimination by showing that she “(1) suffered from a
disability or was regarded as suffering from a disability, (2) could perform the essential
duties of a job with or without reasonable accommodations, and (3) was subjected to an
adverse employment action because of the disability or perceived disability.” (Glynn v.
Superior Court (2019) 42 Cal.App.5th 47, 53, fn. 1.) To meet her burden, Price only had
to offer sufficient circumstantial evidence that raises a reasonable inference of
(2016) 245 Cal.App.4th 109, 123, fn. omitted [“The three-stage [McDonnell Douglas]
framework and the many principles adopted to guide its application do not apply in
discrimination cases where, like here, the plaintiff presented direct evidence of the
employer’s motivation for the adverse employment action.”].) The District contends Price
forfeited the argument by not raising it in the trial court. We need not decide whether the
“direct evidence” principle supplants the McDonnell Douglas test here or whether Price
forfeited the argument because triable issues of fact exist that preclude summary
judgment under the McDonnell Douglas test.
8
discrimination. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,
1002.) We conclude triable issues of material fact exist as to all three elements.
2. Disability
FEHA protects job applicants and employees from “discrimination due to an
actual or perceived physical or mental impairment that is disabling, potentially disabling,
or perceived as disabling or potentially disabling.” (§ 12926.1, subd. (b).) Thus, “the
first essential element of a claim for unlawful disability discrimination is that the plaintiff
is disabled or regarded as disabled” or potentially disabled by the employer. (Diffey v.
Riverside County Sheriff’s Dept. (2000) 84 Cal.App.4th 1031, 1034, disapproved on other
grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn.
6, italics added; Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th
1092, 1104.)
Price contends, and we agree, that a jury could reasonably conclude that the
District regarded her as disabled. Price failed the “physical” test during her physical
examination, and Luna noted that she had balance and strength deficits in her right leg,
which placed her at an increased risk of falling. Luna thus concluded that Price was not
“medically suitable for the position.” Based on Luna’s report, Dickinson rescinded
Price’s job offer. From this evidence, a jury could reasonably conclude that the District
regarded Price as having or potentially having a physical disability that affected her
balance, caused weakness in her right leg, and limited her work-related abilities. Thus, a
9
triable issue of fact exists as to whether the District regarded Price as disabled or
potentially disabled.
3. Essential Functions
A triable issue of fact also exists as to whether Price could perform the essential
functions of the position she was offered without reasonable accommodation. Relying
on Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472 (Quinn), Hastings v.
Department of Corrections (2003) 110 Cal.App.4th 963 (Hastings), and Anthony v. Trax
International Corporation (9th Cir. 2020) 955 F.3d 1123, the District asserts the fact that
Price failed her physical examination means that she was not qualified to perform the job.
We disagree.
Anthony v. Trax International Corporation, supra, 955 F.3d 1123, did not involve
an employee who failed a physical examination. The employer in that case discovered
during litigation, long after any alleged discrimination, that the employee lacked a
required degree for his position, so he was indisputably unqualified. (Id. at p. 1128.)
The issue on appeal was therefore whether such after-acquired evidence that an employee
does not satisfy the prerequisites for the position, including educational background,
renders the employee ineligible for relief. (Ibid.)
In Hastings, it was “undisputed that [the plaintiff] was unable” to do the job with
or without accommodations. (Hastings, supra, 110 Cal.App.4th at p. 971.) In fact, his
own physician found he was physically incapable of performing the required duties. (Id.
at p. 971, fn. 11.)
10
In Quinn, “there was no conflict in the evidence” the plaintiff-police officer was
not qualified for the position because he failed a “sound localization test” due to a
hearing impairment. (Quinn, supra, 84 Cal.App.4th at pp.482, 476.) “The ability to
localize sound is particularly significant to police officers in split second, life-threatening
situations when an officer cannot clearly see.” (Id. at p. 476.) The physician who
administered the test therefore concluded that the plaintiff’s inability to localize “sounds
in a split second or in a life threatening situation . . . represented an imminent and serious
hazard” to himself, other officers, and the public. (Ibid.) Despite failing the test, the Los
Angeles Police Department (LAPD) accidentally hired the plaintiff due to a clerical error,
but his hearing impairment interfered with his ability to hear the police radio and his
partner’s instructions so significantly that he was reassigned to a desk job before being
terminated. (Id. at pp. 476-477.) The Quinn court held that the plaintiff’s termination
was lawful because he “was never initially qualified for the position” as a matter of law.
(Id. at p. 483.)
The District reads Quinn to stand for the broad proposition that an employer may
always impose physical requirements as a condition of employment and thus may always
refuse to hire someone who does not meet those requirements. We disagree. Although
the Quinn court noted that the LAPD had the discretion “to set physical criteria for the
hiring process” and that the plaintiff “failed to meet one of those basic criteria,” the court
did not hold that employers have unfettered discretion to deny employment to anyone
who fails any physical test, as the District suggests. (Quinn, supra, 84 Cal.App.4th at p.
11
482.) Rather, the Quinn court recognized only the “fundamental principle” that
employers may deny a position to an applicant who cannot safely perform the essential
functions of the job due to a medical condition. (Id. at p. 482, fn. 5.) There was no
genuine dispute that the Quinn plaintiff could not do so. (Id. at p. 482.) Indeed, he did
not “challenge . . . LAPD’s requirement that an applicant pass the sound localization test”
and “did not contend that [LAPD] lacked authority to set such basic criteria.” (Id. at p.
484.)
In short, it was undisputed that the plaintiffs in Hastings and Quinn could not
perform the essential functions of their positions because of a physical disability. That is
not the case here.
“Evidence of whether a particular function is essential includes, but is not limited
to, the following: [¶] (A) The employer’s judgment as to which functions are essential.
[¶] (B) Written job descriptions prepared before advertising or interviewing applicants
for the job. [¶] (C) The amount of time spent on the job performing the function. [¶]
(D) The consequences of not requiring the incumbent to perform the function. [¶] (E)
The terms of a collective bargaining agreement. [¶] (F) The work experiences of past
incumbents in the job. [¶] (G) The current work experience of incumbents in similar
jobs.” (§ 12926, subd. (f)(2).) Because the determination of essential job functions is a
“‘highly fact-specific inquiry,’” it is usually an issue of fact for the jury to decide. (Lui v.
City and County of San Francisco (2012) 211 Cal.App.4th 962, 971; Hastings, supra,
110 Cal.App.4th at p. 967, fn. 6.)
12
The District argues Price could not perform the essential functions of a special
education Instructional Assistant because of her medical restrictions. In particular, the
District contends the job had physical demands that Price could not meet, namely,
4
running after students. Even if true, Price has raised a triable issue of fact as to whether
this was an essential function of a full-time Instructional Assistant.
As the District notes, the part-time and full-time Instructional Assistant positions
have the same duties and responsibilities. As a part-time Instructional Assistant, Price
was assigned to a one-on-one position with a “runner,” and she successfully performed
that position before being offered the full-time position, even though she frequently had
to run after students. When Price told the District that her student habitually ran out of
the classroom, the District instructed her to try to keep the student on task and redirect
her behavior. If Price could not catch the student when she ran away, she notified
security, who would monitor the student until Price caught-up with her and reoriented
her. Price, however, could keep up with the student enough so that Price could keep an
eye on her and ensure that she was not harming anyone.
In our view, these facts alone create a triable issue of material fact about whether
running after students is an essential function of a full-time Instructional Assistant, like
4
In its recitation of the facts in its respondent’s brief, the District notes that
special education Instructional Aides like Price may have to lift students out of
wheelchairs and help change students’ diapers. But in the argument section of its brief,
the District does not contend that these were essential functions of the job. The District
also notes in the argument section of its brief that Price had to be on her feet for about 60
percent of the day and stand for 30-minute periods and walk for 45-minute periods, but
the District does not argue she could not meet these requirements.
13
the District insists. To begin with, Price successfully performed the position in a part-
time capacity before being offered a full-time position, and both positions have the same
duties. The District presumably would not have hired her for that position if it thought
she had not successfully performed as a part-time Instructional Assistant. Second, there
is a genuine dispute as to whether Price would need to chase after students or whether she
could successfully use other, non-physical techniques to stop students from running
away. Third, there is a genuine dispute as to whether Price could rely on other District
employees, such as security guards or counselors, to run after students if needed.
More importantly, there is a genuine dispute of material fact as to whether Price
could have worked in a setting without physical demands that she could not meet. Price
notes that special education Instructional Assistants like her are placed in one of five
Special Needs Settings: (1) Severely Handicapped; (2) Emotionally Disturbed; (3)
Special Day Class (SDC); (4) Autistic; and (5) Resource Specialist. An Instructional
Assistant’s responsibilities vary from classroom to classroom, in part because a special
education teacher might have up to seven Instructional Assistants in a classroom.
Because each Special Needs Setting is based on the students’ particularized needs, the
“most important” duties of an Instructional Assistant differ depending on the Setting.
For instance, Instructional Aides in the Severely Handicapped classroom might
work with students in wheelchairs who need to be diapered and moved in and out of their
wheelchairs. Students in the Emotionally Disturbed classroom may be “runners,” while
students in the SDC generally only need help with their academic assignments because
14
they may have “some behavioral problems and are low academically.” The duties vary in
SDC because there are “different levels of SDC kids,” some of whom are “high-
functioning” while some are “low-functioning.” Similarly, some students in the Autistic
setting may not need one-on-one supervision or physical assistance and may only need
academic help. Students in the Resource Specialist setting, however, are generally the
highest functioning of special needs students and usually only need assistance with
academic issues.
In other words, Price possibly could have been placed in three Special Needs
Settings (SDC, Autistic, or Resource Specialist) where students do not require any
physical assistance or physical supervision. This shows that at least some Instructional
Assistant positions and Special Education Settings may not require that every
Instructional Assistant be able to run after students (because the students are not
“runners”), lift students in and out of wheelchairs (because no student is wheelchair-
bound), or change students’ diapers (because no student wears them). A triable issue of
fact thus exists as to whether Price could have successfully performed as an Instructional
Assistant in one of the five Special Needs Settings despite her physical limitations.
15
4. Adverse Employment Action
The third and final element of the prima facie case of disability discrimination that
Price must establish is that her disability was a substantial motivating reason for the
District’s decision to subject her to an adverse employment action. (Yanowitz v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1043.) The parties agree that the revocation of Price’s
5
job offer was an adverse employment action. (See ibid.) We conclude there is a triable
issue of fact as to whether her disability was a substantial motivating reason for the
District’s decision to rescind the offer.
It is undisputed that Dickinson decided to rescind Price’s job offer because of
Luna’s report, which stated that Price was “NOT medically suitable for the position”
because of the strength and balance deficits in her right leg. According to Price, when
she asked for more of an explanation about his decision, Dickinson told her at least four
times, “you are a liability.” Taken together, a reasonable jury could find that the District
rescinded Price’s job offer because of an actual or perceived disability or potential
disability. A triable issue of tact thus exists as to whether Price’s actual or perceived
disability was a substantial motivating reason for the adverse employment action she
suffered. As a result, we conclude Price has satisfied her initial burden of establishing a
prima facie case of disability discrimination.
5
Price also contends the District’s decision to terminate her substitute position
was an adverse employment action. We need not consider the issue because there is no
dispute revocation of her offer was an adverse employment action.
16
5. Pretext
We assume without deciding that the District satisfied its burden at the second
stage of the McDonnell Douglas analysis by showing that it had a legitimate,
nondiscriminatory reason for rescinding Price’s job offer. We skip to the third stage
because Price can survive summary judgment by raising a triable issue of fact as to
whether the District’s proffered reason for rescinding the Price’s job offer—that she
failed the physical examination—was pretextual. (Moore, supra, 248 Cal.App.4th at p.
250.) We conclude that she has done so.
At the third stage of the McDonnell Douglass test, Price had to produce substantial
evidence that the District’s proffered reasons for subjecting her to an adverse
employment action “were untrue or pretextual, or that the [District] acted with a
discriminatory animus, such that a reasonable trier of fact could conclude that the
employer engaged in intentional discrimination or other unlawful action.’” (Serri v.
Santa Clara University (2014) 226 Cal.App.4th 830, 861, second italics added.) Price
satisfied this burden with direct or circumstantial evidence. (Ibid.)
Price emphasizes her testimony that Dickinson told her “you are a liability” at
least four times during their meeting when he informed her that he was rescinding her job
offer because she failed the physical examination. She contends this testimony, without
more, created a triable issue of material fact as to whether the District’s stated reasons for
rescinding the job offer were pretextual under Moore. We agree.
17
In Moore, the plaintiff told her supervisor about her heart condition when she
began wearing an external defibrillator to work. (Moore, supra, 248 Cal.App.4th at p.
240.) She claimed that when she told her supervisor that she no longer needed to wear
the device, the supervisor responded that she had already asked human resources “‘how
to handle [the plaintiff] as a liability to the department.’” (Id. at p. 241.) The plaintiff
was terminated and sued for disability discrimination under FEHA. (Ibid.) The Moore
court held that the jury could reasonably find that the supervisor’s reference to the
plaintiff being a “liability” was evidence of a discriminatory animus toward the plaintiff
based on her perceived disability. (Ibid.) As a result, the Moore court reversed the
summary judgment for the employer because a reasonable jury could find that the
employer’s stated legitimate, nondiscriminatory reasons for terminating the plaintiff were
pretextual. (Ibid.)
We agree with Price that Moore directly applies here, and we find it persuasive.
Like the supervisor in Moore who called the plaintiff a “liability,” Price contends that
Dickinson told her four times, “you are a liability” while telling her that he was
rescinding her job offer because she failed the physical examination. A reasonable jury
could find that Dickinson “believed that [Price] was a ‘liability’ . . . as a result of her
[medical] condition, and, based on that conclusion, could infer that the proffered reasons
for [Price’s] termination were not the real reasons for the termination.” (Moore, supra,
248 Cal.App.4th at p. 241.)
18
As a result, Price satisfied her burden of showing a triable issue of fact exists at
the third stage of the McDonnell Douglas test. We therefore reverse the judgment and
direct the trial court to enter an order denying the District’s motion for summary
adjudication of Price’s first cause of action for disability discrimination.
6. Failure to Engage in the Interactive Process
Price contends the District failed to engage in the interactive process before
rescinding her job offer. We conclude the District was under no obligation to do so under
FEHA.
FEHA requires employers to reasonably accommodate an employee’s disability
unless doing so would impose an undue hardship on the employer. (§ 12940, subd. (m).)
The employer also must “engage in a timely, good faith, interactive process with the
employee . . . to determine effective reasonable accommodations.” (§ 12940, subd. (n).)
“Two principles underlie a cause of action for failure to provide a reasonable
accommodation. First, the employee must request an accommodation. [Citation.]
Second, the parties must engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the failure rests with the party
who failed to participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140
Cal.App.4th 34, 54 (Gelfo).)
A corollary to these rules is that “[u]nless a disability is obvious, it is the
employee’s burden to initiate the interactive process.” (Kao v. University of San
Francisco (2014) 229 Cal.App.4th 437, 450 (Kao), italics added.) “‘Where the disability,
19
resulting limitations, and necessary reasonable accommodations, are not open, obvious,
and apparent to the employer, . . . the initial burden rests primarily upon the
employee . . . to specifically identify the disability and resulting limitations, and to
suggest the reasonable accommodations.’” (Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1013, italics added.) And “[w]hen a disability is not obvious, the
employee must submit ‘reasonable medical documentation confirm[ing] [its] existence.’”
(Kao, supra, at p. 450.)
Price does not argue that her disability, resulting limitations, and necessary
reasonable accommodations should have been obvious to the District. Nor can she. Price
cannot “plausibly claim it should have been obvious to [the District] that [s]he was
disabled because [s]he never admitted any disability in the workplace.” (Kao, supra, 229
Cal.App.4th at p. 450.) Instead, Price stated on her application for the full-time
Instructional Assistant position that she did not have any disabilities or limitations and
did not need any accommodations.
Because Price’s disability, resulting limitations, and necessary reasonable
accommodations were not open and obvious, she had the initial burden to initiate the
interactive process. (Kao, supra, 229 Cal.App.4th at p. 450.) She did not meet that
burden because she never told the District she had a disability, did not seek an
accommodation for one, and did not tell the District of her physical limitations. (Ibid.)
Rather, she told the District on her application for the full-time Instructional Assistant
position that she did not have a disability and did not need accommodations. She also did
20
not submit any medical documentation confirming the existence of a non-obvious
disability, as FEHA requires. (Kao, supra, 229 Cal.App.4th at p. 450.) The trial court
therefore properly granted summary adjudication to the District on Price’s claim for
failure to engage in the interactive process. (Ibid.)
Price disagrees, arguing that Dickinson “obstructed” her attempts to engage in the
interactive process in good faith. She notes that she disagreed with Luna’s report, offered
to get a second opinion from her physician, and contacted Dickinson several times after
their meeting to discuss Luna’s findings. But because Price’s disability was not obvious,
it was incumbent on her to tell the District of her disability, resulting limitations, and
reasonable accommodations. (Scotch v. Art Institute of California, supra, 173
Cal.App.4th at p. 1013.) She did not do so, and instead denied having any disability or
limitation that needed to be accommodated. She therefore cannot succeed on her claim
for failure to engage in the interactive process. (See Kao, supra, 229 Cal.App.4th at p.
450 [“The requirement for an interactive process was not implicated here because Kao
never acknowledged having a disability or sought any accommodation for one.”].)
Price contends that Gelfo shows that the District violated its duty to engage in the
interactive process, but that case is distinguishable. There, the plaintiff suffered a
workplace back injury that left him with physical limitations. (Gelfo, supra, 140
Cal.App.4th at p. 40.) As part of his workers’ compensation claim, he was determined to
be “‘permanent and stationary,’” “‘permanently disabled,’” and precluded from “‘heavy
work.’” (Ibid.) About a year later, however, he successfully completed a 10-week
21
training program with his employer during which he performed all of the regular physical
duties of a fabricator “without adverse consequences to his back.” (Id. at p. 41.)
The plaintiff was offered a fabricator position, but it was revoked two days later
because “a review of his file revealed medical restrictions imposed by his physician that
were incompatible with the physical demands of the fabricator position.” (Gelfo, supra,
140 Cal.App.4th at p. 42.) He told his employer that he had no limitations because his
back was no longer bothering him and his physician said the restrictions were
unnecessary. (Ibid.) His employer responded that it could accommodate some, but not
all of his restrictions. (Id. at p. 43.) The plaintiff asked his employer to reconsider its
decision because it was “misinformed about his medical restrictions.” (Ibid.) The
employer responded by acknowledging that it had mistakenly relied on an outdated list of
the plaintiff’s limitations, but nonetheless concluded he had a physical limitation that
could not be accommodated given his physicians’ reports and deposition testimony in the
workers’ compensation case. (Ibid.)
The plaintiff sued for various FEHA claims, including one for his employer’s
alleged failure to engage in the interactive process. (Gelfo, supra, 140 Cal.App.4th at p.
44.) After a jury trial, the trial court entered a directed verdict on the claim because the
plaintiff “did not have an ‘actual’ disability.” (Ibid.) The trial court thus found the
employer “had no legal duty to provide a reasonable accommodation to [the plaintiff] or
to engage in an interactive dialogue with him.” (Ibid.)
22
The Gelfo court reversed. (Gelfo, supra, 140 Cal.App.4th at pp. 55-60.) The court
held that employers not only have a duty under FEHA to engage in the interactive
process with employees who are actually disabled, but also with employees who they
regard as disabled, such as the plaintiff. (Ibid.) The trial court thus erred in granting a
directed verdict for the employer because (1) it erroneously ruled that the employer had
no duty to engage in the interactive process with the plaintiff, who was not “actually
disabled,” and (2) questions of fact existed as to whether the parties engaged in the
interactive process in good faith because the evidence of the parties’ interactive efforts
and good faith was “conflicting.” (Id. at p. 62, fn. 23.)
Gelfo thus does not support Price’s position that the District violated its duty to
engage in the interactive process. There was no dispute that in Gelfo (1) the employer
knew that the plaintiff had medically-documented disabilities and restrictions at one
point, (2) the parties engaged in the interactive process, and (3) the employer tried to
accommodate the plaintiff based on his documented disabilities and restrictions, but
concluded they could not accommodate all of his restrictions. More importantly, the trial
court directed a verdict for the employer based solely on its “mistaken determination
FEHA does not impose on an employer a duty to engage in discussions with an applicant
or employee who is not actually disabled.” (Gelfo, supra, 140 Cal.App.4th at p. 62.)
Here, however, Price denied having a disability or limitations, did not provide the
District with any medical documentation of a disability, and did not request any
accommodations. And unlike the Gelfo trial court, the trial court here did not rule for the
23
District because of an erroneous legal conclusion that the District had no duty to engage
in the interactive process with Price because she was not actually disabled. Because any
disability Price had was not obvious, she had the burden to tell the District that she had a
disability and/or limitation that required accommodations. (Scotch v. Art Institute of
California, supra, 173 Cal.App.4th at p. 1013; Kao, supra, 229 Cal.App.4th at p. 450.)
She failed to satisfy that burden. Gelfo does not change that conclusion.
7. Failure to Accommodate
FEHA requires employers to provide a reasonable accommodations for an
applicant’s or employee’s known disability. (§ 12940, subds. (a), (m).) “Two principles
underlie a cause of action for failure to provide a reasonable accommodation. First, the
employee must request an accommodation. [Citation.] Second, the parties must engage
in an interactive process regarding the requested accommodation and, if the process fails,
responsibility for the failure rests with the party who failed to participate in good faith.”
(Moore, supra, 248 Cal.App.4th at p. 242; accord, Doe v. Department of Corrections &
Rehabilitation (2019) 43 Cal.App.5th 721, 738.)
Price acknowledges that she never requested an accommodation from the District.
For this reason alone, her failure to accommodate claim fails. (Moore, supra, 248
Cal.App.4th at p. 242.)
Price contends that, because the District was on notice of her disability, she did not
have to request an accommodation under Prilliman v. United States Airlines, Inc. (1997)
53 Cal.App.4th 935. We disagree. In Prilliman, there was no dispute that the employee
24
sought accommodation for a disability. (See Id. at p. 954.) The parties instead disputed
whether the employer reasonably accommodated the employee simply by offering him
insured disability leave without exploring any other potential accommodations. (Ibid.)
The Prilliman court found a triable issue of fact existed as to whether the employer could
have reasonably accommodated the plaintiff by other means, such as by following its
own “policy of attempting to find alternative positions for its employees” who develop a
need for accommodations. (Id. at pp. 953-954.) Prilliman thus does not support Price’s
position that she did not have the initial burden of requesting an accommodation to
succeed on her failure to accommodate claim.
8. Retaliation
The McDonnell Douglas burden-shifting framework applies to FEHA retaliation
claims. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) “To establish a
prima facie case of retaliation [under FEHA], the plaintiff must show (1) he or she
engaged in a protected activity; (2) the employer subjected the employee to an adverse
employment action; and (3) a causal link between the protected activity and the
employer’s action.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)
Price bears the initial burden of proving a prima facie case of retaliation. (Ibid.) The
retaliatory motive underlying retaliation claims “is ‘proved by showing that plaintiff
engaged in protected activities, that [their] employer was aware of the protected
activities, and that the adverse action followed within a relatively short time thereafter.’”
(Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615, italics added.)
25
In other words, Price must show that the District took an adverse employment action
against her because she engaged in protected activity. (Morgan v. Regents of University
of California (2000) 88 Cal.App.4th 52, 70.)
Price fails to do so. She argues that she engaged in protected activity by asking
Dickinson questions about his decision and why he considered her a liability, by offering
to consult her personal physician, and by calling Dickinson several times after their
meeting to ask how she could provide information from her medical provider about her
ability to work.
But, as Price emphasizes, Dickinson decided to “immediately terminate [her] after
reading Luna’s report” and made it “very clear” during their meeting that she could not
challenge that decision. Thus, according to Price, Dickinson decided to terminate her
before the meeting, in which she allegedly engaged in protected activity and told her that
he would not reconsider his position.
In other words, Price implicitly concedes that she engaged in protected activity
only after Dickinson told her that he was rescinding her job offer, terminating her
substitute position, and disqualifying her from any future positions because she failed the
physical exam. Price thus cannot show the requisite causal link between her protected
activity and any adverse employment activity. (See Akers v. County of San Diego, supra,
95 Cal.App.4th at p. 1453.) We therefore conclude the trial court properly granted the
District summary adjudication on Price’s retaliation claim.
26
9. Failure to Prevent Discrimination and Retaliation
Price does not mention her fifth cause of action for failure to prevent
discrimination and retaliation in her opening brief. We therefore decline to address it and
must affirm the trial court’s order granting of summary adjudication of the claim. (Aptos
Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not
raised in the appellant’s opening brief are deemed waived or abandoned”]; Bianco v.
California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125 [appellant bears burden of
proving prejudicial error].)
At oral argument, Price’s counsel argued that we should address the claim because
she sought (and our tentative opinion intended to grant) reversal of the judgment, which
necessarily includes reversal of the trial court’s order granting summary adjudication on
her failure-to-prevent claim. We disagree. Again, Price’s opening brief does not mention
the claim and provides no argument as to why the trial court’s order summarily
adjudicating the claim should be reversed. By failing to do so without good cause, Price
forfeited any argument concerning her failure-to-prevent claim. (See Foxen v. Carpenter
(2016) 6 Cal.App.5th 284, 295.)
IV.
DISPOSITION
The judgment is reversed. The trial court is directed to enter an order denying the
District’s motion for summary judgment, denying summary adjudication of Price’s first
cause of action for disability discrimination, and granting the District summary
27
adjudication of Price’s remaining claims. The parties shall bear their own costs on
appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
28 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483080/ | Filed 10/14/22; Modified and Certified for Pub. 11/10/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SALVADOR FAJARDO, B314031
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 19STCV28455)
CYNTHIA A. DAILEY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Edward B. Moreton, Daniel M. Crowley,
Judges. Reversed.
Raymond Ghermezian and Coralia Lesin for Plaintiff and
Appellant.
Demler, Armstrong & Rowland, John R. Brydon and David
A. Ring for Defendant and Respondent.
INTRODUCTION
Salvador Fajardo filed this negligence action against
Cynthia Dailey after he tripped and fell on an asphalt patch
between two adjacent sidewalk slabs in front of Dailey’s property.
The trial court granted Dailey’s motion for summary judgment,
ruling the condition of the sidewalk was a trivial defect. Because
Dailey did not meet her burden on summary judgment of showing
the defect was trivial as a matter of law, and because Fajardo
submitted admissible evidence creating a triable issue of material
fact, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Fajardo Files This Action Against Dailey
One morning in December 2018 Fajardo went for a walk in
his neighborhood. Fajardo was wearing shorts and “tennies.” As
he ran to reach an intersection before the traffic light turned red,
he caught his foot on a lift in the sidewalk in front of Dailey’s
home and fell, hitting his hands and knee on the ground.
Fajardo filed this action in August 2019 against Dailey, the
City of Monrovia, and the County of Los Angeles. In his
operative, first amended complaint, he alleged causes of action
against Dailey for premises liability and “negligence and property
damage.” Fajardo alleged Dailey “negligently, carelessly and
recklessly owned, maintained, controlled, possessed, repaired,
inspected, operated, designed, built, managed and cleaned” the
property “in a dangerous condition, so as [to] cause [him] to trip
and fall on the sidewalk surface.”
2
B. The Trial Court Grants Dailey’s Motion for Summary
Judgment
Dailey moved for summary judgment on the ground “the
dangerous condition that [Fajardo] alleges caused injury
amounted to nothing more than a trivial defect.” Dailey
submitted Fajardo’s deposition testimony that, after he fell, he
measured the height differential with his key and described it as
“a little over one inch.” Fajardo also testified that the weather
was sunny, that he had lived nearby for 13 years, and that he
had previously walked on the sidewalk in front of Dailey’s house.
Dailey also submitted the declaration of an architect,
Thomas Parco, who stated the sidewalk complied with applicable
codes, statutes, and regulations and presented “no unreasonable
safety hazard.” Parco stated that the displacement in the
concrete slabs where Fajardo fell created a rise of less than one
inch and that the defect was trivial. Parco opined that the black
asphalt patch made the displacement clearly visible and that,
because Fajardo was traveling down the slope rather than up, it
was less likely someone like him would trip. Several photographs
attached to Parco’s declaration of a tape measure someone placed
on the sidewalk suggested the differential was between 10/16 and
13/16 of an inch. The trial court, however, sustained Fajardo’s
objections to these (unauthenticated) photographs and to Parco’s
(legal) conclusion the defect was trivial.
In opposition to the motion, Fajardo disputed Parco’s
measurement of the height differential and argued the height of
the displacement, combined with other aggravating factors, made
the sidewalk defect nontrivial. Fajardo submitted the declaration
of a forensic analyst, Eris J. Barillas, who stated that she visited
the site in February 2021 and that, although the asphalt patch
3
had been removed and replaced with concrete, she measured the
height differential as approximately one and three-sixteenths
inches. Barillas opined that the sidewalk defect had a vertical
height differential between one and three-sixteenths and one and
one-half inches in December 2018 when Fajardo fell and that the
asphalt patch was at least 11 years old. Barillas stated “low
lying height differentials often go unnoticed by pedestrians and
are likely to pose a significant tripping hazard.” She also stated
that a photograph Fajardo took two days after his fall showed the
asphalt patch was “substantially defective and deteriorated and
contains jagged, uneven, and irregularly shaped edges, cracks
and loose pieces of asphalt.” Barillas opined the asphalt patch
was a “tripping hazard” and “not a trivial defect.”
The court acknowledged that the parties disputed the size
of the height differential, but concluded that Fajardo’s evidence
the lift was one and three-sixteenths to one and one-half inches
high “does not create a triable issue of material fact, considering
courts have found height differentials as big as 1 1/2 inches high
to be trivial.” The court also rejected Fajardo’s contention “jagged
edges and irregular breaks” in the asphalt patch were
aggravating circumstances that precluded summary judgment.
The court found the “obvious and distinctive nature of the asphalt
patch,” rather than making the sidewalk defect more dangerous,
was “consistent with a determination that the condition of the
sidewalk was a trivial defect.” The court granted Dailey’s motion
for summary judgment, and Fajardo timely appealed from the
ensuing judgment.
4
DISCUSSION
A. Applicable Law and Standard of Review
A court may grant a motion for summary judgment “‘only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”’” (Doe v. Roman Catholic
Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 668; see
Code Civ. Proc, § 437c, subd. (c); Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618.)
“A defendant seeking summary judgment must show that the
plaintiff cannot establish at least one element of the cause of
action.” (Regents, at p. 618; see Mattei v. Corporate Management
Solutions, Inc. (2020) 52 Cal.App.5th 116, 122.) “Only after the
defendant carries that initial burden does the burden shift to the
plaintiff ‘to show that a triable issue of one or more material facts
exists as to the cause of action . . . .’” (Luebke v. Automobile Club
of Southern California (2020) 59 Cal.App.5th 694, 703.)
“‘We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.’” (Doe v. Roman Catholic Archbishop, supra, 70 Cal.App.5th
at p. 669; see Luebke v. Automobile Club of Southern California,
supra, 59 Cal.App.5th at p. 703.) We “liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”
(Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103
(Huckey).)
5
B. Trivial Defects
Property owners are required “‘to maintain land in their
possession and control in a reasonably safe condition’ [citations]
and to use due care to eliminate dangerous conditions on their
property.” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943-
944.) But “‘a property owner is not liable for damages caused by
a minor, trivial, or insignificant defect’ on its property.” (Nunez
v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757; see
Cadam v. Somerset Gardens Townhouse HOA (2011)
200 Cal.App.4th 383, 388.) The so-called “trivial defect doctrine”
recognizes that “‘persons who maintain walkways, whether
public or private, are not required to maintain them in an
absolutely perfect condition. The duty of care imposed on a
property owner, even one with actual notice, does not require the
repair of minor defects.’” (Kasparian v. AvalonBay Communities,
Inc. (2007) 156 Cal.App.4th 11, 26-27 (Kasparian); see Cadam, at
p. 389.)
In limited circumstances a court may determine a walkway
defect is trivial as a matter of law. (Huckey, supra,
37 Cal.App.5th at p. 1104; Stathoulis v. City of Montebello (2008)
164 Cal.App.4th 559, 567 (Stathoulis).) “Where reasonable minds
can reach only one conclusion—that there was no substantial risk
of injury—the issue is a question of law, properly resolved by way
of summary judgment.” (Stathoulis, at p. 567; see Kasparian,
supra, 156 Cal.App.4th at p. 28.) But where “sufficient evidence
has been presented so that reasonable minds may differ as to
whether the defect is dangerous,” summary judgment is
inappropriate. (Kasparian, at p. 28.)
“In the sidewalk-walkway context, ‘[t]he decision whether
the defect is dangerous as a matter of law does not rest solely on
6
the size of the crack in the walkway, since a tape measure alone
cannot be used to determine whether the defect was trivial.’”
(Nunez v. City of Redondo Beach, supra, 81 Cal.App.5th at p. 757;
see Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)
Although a defect’s size “‘may be one of the most relevant factors’
to the court’s decision” (Huckey, supra, 37 Cal.App.5th at
p. 1105), the court also must consider “all of the circumstances
surrounding the accident that might make the defect more
dangerous than its size alone would suggest,” including “whether
the walkway had any broken pieces or jagged edges.” (Caloroso,
at p. 927.)
C. Dailey Did Not Meet Her Burden on Summary
Judgment To Show the Defect Was Trivial as a
Matter of Law
In her motion Dailey asserted the sidewalk differential was
less than one inch. In his supporting declaration, Parco stated:
“The displacement in the concrete slabs at an expansion joint, the
location reported to be the course [sic] of [Fajardo’s] trip, created
a vertical rise of less than 1 inch.” Parco, however, did not state
how or why he knew this. He did not say he measured the
displacement, nor did he give any other basis for his conclusion.
Therefore, it had no evidentiary value and could not support
summary judgment. (See McAlpine v. Norman (2020)
51 Cal.App.5th 933, 939 [a “‘moving party’s burden . . . cannot be
satisfied by an expert declaration consisting of ultimate facts and
conclusions that are unsupported by factual detail and reasoned
explanation’”]; Doe v. Good Samaritan Hospital (2018)
23 Cal.App.5th 653, 662 [expert’s “‘opinion unsupported by
reasons or explanations does not establish the absence of a
material fact issue for trial, as required for summary judgment’”];
7
Sanchez v. Kern Emergency Medical Transportation Corp.
(2017) 8 Cal.App.5th 146, 155 [“‘when an expert’s opinion is
purely conclusory because unaccompanied by a reasoned
explanation connecting the factual predicates to the ultimate
conclusion, that opinion has no evidentiary value because an
“expert opinion is worth no more than the reasons upon which it
rests”’”].) The closest Parco came to providing a factual basis for
his statement the rise was less than one inch was his reference to
10 photographs (one of which was an image from an internet
search engine function that provides interactive panoramas from
positions on public streets) attached to his declaration. But Parco
did not say he took the photographs, or even who did. Nor did he
state that he based his less-than-one-inch opinion on the
photographs or that the photographs showed the displacement
was less than one inch. And the trial court sustained Fajardo’s
objection to the admissibility of those photographs.1
Moreover, “size alone is not determinative of whether a rut
presents a dangerous condition.” (Stathoulis, supra,
164 Cal.App.4th at p. 568; see Kasparian, supra, 156 Cal.App.4th
at p. 28, fn. 38 [“‘application of a strict tape measure approach to
determine whether a defect is trivial as a matter of law,
disregards the fact that other factors and circumstances involved
in a particular case could very well result in an entirely different
conclusion from one arrived at by simply measuring the size of a
defect’”].) The court must also consider whether the
circumstances surrounding the accident made the sidewalk
1 Dailey also cited Fajardo’s deposition testimony that he
measured the displacement with his key and that it measured a
“little over one inch.” A little over one inch, however, is not the
same as “less than one inch.”
8
displacement more dangerous than a one-and-one-half-inch
sidewalk lift otherwise would be. (Caloroso v. Hathaway, supra,
122 Cal.App.4th at p. 927; Fielder v. City of Glendale (1977)
71 Cal.App.3d 719, 734.) In her motion for summary judgment,
the only evidence Dailey presented on the condition of the asphalt
patch was Parco’s statement that a “black asphalt patch at the
displacement provided a distinct color contrast to the
surrounding grey concrete making it clearly visible.” But neither
Dailey nor Parco submitted a photograph or other evidence of the
condition of the asphalt patch at the time of the accident. Parco
attached to his declaration a copy of an image from the internet
of Dailey’s address from 2012, but as discussed the trial court
sustained Fajardo’s objection to that image, which in any event
was taken from too far away to show any detail and did not show
the condition of the asphalt patch at the time of the accident.
D. In Any Event, Fajardo Created Triable Issues of
Material Fact That Precluded Summary Judgment
Even if Dailey had met her moving burden on summary
judgment, Fajardo submitted evidence creating triable issues of
material fact on the height differential. Barillas stated that, in
her opinion, the displacement was one and three-sixteenths to
one and one-half inches and that the width of the defect was
approximately 30 inches. And unlike Parco, Barillas provided
the basis for her conclusion. She stated she “visited the site”
after the asphalt patch was removed and replaced with concrete,
was “able to take height measurements,” and found “a height
differential of approximately 1-3/16 inches.” She attached
photographs of the site taken by her company the day she visited
showing the height differential was between 13/16 and one and
9
three-sixteenths inches.2 Thus, there was a factual issue about
the size of the defect.3
Fajardo also submitted evidence creating a triable issue of
material fact on whether circumstances or factors other than the
height of the differential increased the danger. Fajardo
submitted the only photograph in the record that showed the
asphalt patch in any detail: a black and white photograph he took
approximately two days after he fell. Although the copy quality
is not the best, the dark-colored asphalt patch is clearly visible
and appears to have a rough texture, an uneven surface, and a
jagged edge where it meets the concrete. A few dark spots near
the patch appear to be pieces of asphalt that have broken off from
the patch.4
2 Although Barillas did not provide the basis for her
conclusion the height differential may have been as high as one
and one-half inches at the time Fajardo fell, Dailey did not object
to this portion of Barillas’s declaration.
3 The trial court ruled that, even accepting Fajardo’s
evidence the height differential was as high as one and one-half
inches, the dispute did not create a triable issue of material fact.
The trial court cited this sentence from the court’s opinion in
Stathoulis, supra, 164 Cal.App.4th at page 568: “Several
decisions have found height differentials of up to one and one-half
inches trivial as a matter of law.” The court in Stathoulis went
on to state, however: “[I]t is also true that as ‘the size of the
depression begins to stretch beyond one inch the courts have been
reluctant to find that the defect is not dangerous as a matter of
law.’” (Ibid.; see Fielder v. City of Glendale, supra, 71 Cal.App.3d
at p. 726.)
4 For the first time on appeal, Dailey argues Fajardo’s
deposition testimony contradicted his position that the asphalt
10
The trial court compared the area where Fajardo fell to the
“irregular and jagged” sidewalk in Gentekos v. City and County of
San Francisco (1958) 163 Cal.App.2d 691 (Gentekos), which
included a “hollowed out space” and a “broken piece” that
“projected about two inches above the bottom of the depression.”
(Id. at p. 695.) The trial court concluded Fajardo had “not
introduced any evidence showing aggravating circumstances
rising to the level of the defect described in Gentekos that would
create a triable issue regarding whether the defect is trivial.”
But neither Gentekos nor any other case establishes a minimum
level of irregularity or jaggedness required to defeat summary
judgment. (See, e.g., Barone v. City of San Jose (1978)
79 Cal.App.3d 284, 291 [photographs showing an “irregular and
jagged break” in the sidewalk with a one-inch difference in
elevation precluded a finding of a trivial defect as a matter of
law]; cf. Huckey, supra, 37 Cal.App.5th at p. 1108 [defect was
trivial where there were “no broken concrete pieces or jagged
concrete edges in the height differential”].) It all depends on the
nature of the defect, which in this case, based on the evidence
submitted in connection with the motion for summary judgment,
was not trivial as a matter of law. Because reasonable minds
could differ about whether the condition of the asphalt patch,
combined with the one and one-half inch height differential,
patch created a dangerous condition. In his deposition Fajardo
testified that the “black area” he tripped over had no “jagged
edges,” that there were no “loose rocks,” and that he did not know
any other reason the sidewalk was dangerous other than its
“height.” By not making this argument in the trial court, Dailey
forfeited it. (See Doe v. Roman Catholic Archbishop of Los
Angeles, supra, 70 Cal.App.5th at p. 672.)
11
“presented a substantial risk of injury” (Stathoulis, supra,
164 Cal.App.4th at p. 570), the trial court erred in granting
Dailey’s motion for summary judgment. (See Huckey, at p. 1105
[if “reasonable minds may differ as to whether the defect presents
a substantial risk of injury, the court may not conclude that the
defect is trivial as a matter of law”].)
DISPOSITION
The judgment is reversed. Fajardo is to recover his costs on
appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
12
Filed 11/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SALVADOR FAJARDO, B314031
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV28455)
v. ORDER MODIFYING AND
CERTIFYING OPINION FOR
PUBLICATION; NO CHANGE IN
CYNTHIA A. DAILEY,
APPELLATE JUDGMENT
Defendant and Respondent.
THE COURT:
The opinion filed on October 14, 2022 and not certified for publication is
modified as follows:
On page 10, line 2 of footnote 3, the word “high” is replaced with
“great,” so that the sentence reads:
The trial court ruled that, even accepting Fajardo’s evidence the
height differential was as great as one and one-half inches, the
dispute did not create a triable issue of material fact.
The opinion in this case filed October 14, 2022 was not certified for
publication. Because the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the non-party’s request
for publication under California Rules of Court, rule 8.1120(a), is granted.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the opinion be published in the Official Reports.
This order does not change the appellate judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483082/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WANDA S. CLARK, )
)
Appellant, )
)
v. ) Id. No. 1803020096
)
STATE OF DELAWARE )
)
)
Appellee. )
ORDER
Submitted: August 15, 2022
Decided: November 10, 2022
Upon Appellee’s Motion to Affirm – Notice to Show Cause Shall Issue
Before this Court is a motion by the State of Delaware (hereinafter the “State”)
to affirm the conviction in the Court of Common Pleas (hereinafter the “CCP”) of
Wanda S. Clark (hereinafter “Appellant”) for the offense of Driving Under the
Influence. For the reasons set forth below, the Court finds sua sponte that
Appellant’s appeal should be dismissed as untimely.
I. Background
1. On September 22, 2021, Appellant was convicted in the CCP of the
offense of Driving Under the Influence of Alcohol,1 and was sentenced to one year
of level 5 incarceration, suspended for one year at level 2 probation, and ordered to
complete a DUI course and to pay costs.2
1
CCP Record, Tab 19.
2
CCP Record, Tab 20.
1
2. Appellant appealed her conviction to this Court on October 21, 2021.3
That filing was incomplete but was accepted by the Court to preserve the appeal
date.4 On November 15, 2021, Appellant filed the necessary service copies for the
CCP and the Department of Justice (hereinafter the “DOJ”).5 The CCP was
successfully served on November 26, 2021,6 and filed the complete record with this
Court on December 3, 2021.7 However, return of service for the DOJ was not
received by this Court until April 7, 2022.8
3. In a pleading styled as “Appellant’s Opening Brief” and dated
November 15, 2021, Appellant argues that she received ineffective assistance of
counsel because her trial counsel failed to file a motion to suppress evidence
obtained during the traffic stop leading to her DUI arrest. Appellant’s brief argues
that the stop was extended without reasonable suspicion and includes a copy of the
police report.
4. On April 13, 2022, this Court issued a briefing schedule, specifying that
Appellant’s Opening Brief would be due on April 27, 2022, and that the State’s
Answering Brief would be due on May 17, 2022.9 However, no new filings were
made by either party by the deadlines in the briefing schedule.
5. On August 5, 2022, the State filed this motion to affirm Appellant’s
conviction, responding to the arguments raised in the November 15, 2021, opening
brief. The State argues that this appeal is controlled by settled Delaware case law,
holding that ineffective assistance of counsel claims cannot be heard on direct
appeal, and that the appeal should therefore be summarily dismissed. The State
3
D.I. 1.
4
D.I. 2.
5
D.I. 3.
6
D.I. 5.
7
D.I. 7.
8
D.I. 11.
9
D.I. 12.
2
further asserts that the motion to affirm is timely because the State was never served
with an opening brief, and that even if the motion is held to be untimely, this Court
has the authority to dismiss, sua sponte, a meritless appeal.
6. The appeal was submitted to this Court on August 15, 2022. This Court
has jurisdiction to hear criminal appeals on the record from the CCP.10
II. Analysis
7. At the outset, the Court is not persuaded that a motion to affirm a
conviction is a proper pleading in an appeal from the CCP to Superior Court.
Criminal appeals to this Court are governed by Superior Court Criminal Rule 39. 11
Prior to the year 2000, a Motion to Affirm could be brought in this Court in an appeal
from the CCP pursuant to Delaware Superior Court Criminal Rule 39(c), which
incorporates Superior Court Civil Rules 72 and 72.1.12 However, Superior Court
Civil Rule 72.1, which provided for motions to affirm when, inter alia, the appeal
was “clearly controlled by settled Delaware law,”13 was deleted effective July 1,
2000.14 Both the Rules of the Delaware Supreme Court and the Rules of the CCP
provide for motions to affirm in some criminal cases as a form of expedited
procedure,15 but the Court has identified no current provision in the rules providing
10
Del. Const. art. 4, § 28 (“[T]here shall be an appeal to the Superior Court in all cases in which
the sentence shall be imprisonment exceeding one (1) month, or a fine exceeding One Hundred
Dollars ($100.00).”); 11 Del. C. § 5301(c) (“From any order, rule, decision, judgment or sentence
of the [CCP] in a criminal action, the accused shall have the right of appeal to the Superior Court
in and for the county wherein the information was filed as provided in § 28, article IV of the
Constitution of the State. Such appeal to the Superior Court shall be reviewed on the record and
shall not be tried de novo.”).
11
The State’s motion to affirm appears to rely instead on Superior Court Criminal Rule 37, which
governs appeals from the Superior Court to the Delaware Supreme Court.
12
See e.g. Steelman v. State, 1999 WL 1846455, at *1–2 (Del. Super. Nov. 30, 1999) (discussing
the requirements for a motion to affirm a conviction pursuant to Superior Court Civil Rule 72.1).
13
Super. Ct. Civ. R. 72.1 (2000).
14
See Delaware Rules Annotated, June 2000 Supplement to the 2000 Edition, Volume 1, Reviser’s
Note to Super. Ct. Civ. R. 72.1 (“Rule 72.1 was deleted in its entirety by an order of the Superior
Court dated March 16, 2000, and effective July 1, 2000.”).
15
See Supr. Ct. R. 25(a) (“Motions to affirm in certain criminal cases. Motions to affirm may
3
for a motion to affirm in criminal appeals from the CCP to Superior Court.
8. Nonetheless, irrespective of the State’s Motion to Affirm, the Court
concludes that the appeal was untimely filed. Superior Court Criminal Rule 39
provides that “[a]ll appeals to Superior Court shall be taken within 15 days from the
date of sentence, unless otherwise provided by statute” and that “[a]n appeal may be
dismissed for lack of jurisdiction or for failure to comply with a statutory
requirement or rule or order of this court.”16 The statutory grant of jurisdiction to
this Court to hear appeals from the CCP, 11 Del. C. § 5301, does not enlarge the
time allowed to appeal, so the 15-day limit in the court rule controls. Appellant was
sentenced on September 22, 2021; therefore, the deadline to appeal was 15 days
later, i.e., by October 7, 2021. The appeal in this Court was not filed until October
21, 2021, and is thus untimely. The Court lacks jurisdiction to hear an untimely
appeal on its merits, and the appeal should therefore be dismissed.17
9. Pursuant to Superior Court Criminal Rule 39(c) and Superior Court
be filed in appeals of criminal matters other than direct appeals of convictions after trial and timely
first motions for postconviction relief under Superior Court Criminal Rule 61 when there was a
conviction after trial.”); Ct. Com. Pl. Civ. R. 72.2(b) (“Motion to Affirm. Within 10 days after
receipt of appellant’s opening brief, appellee may, in lieu of a brief, serve and file a motion to
affirm the order, award, determination, or decree or part thereof appealed from.”). Similar to
Superior Court Criminal Rule 39(c), Court of Common Pleas Criminal Rule 39(c) incorporates
specific civil rules, Court of Common Pleas Civil Rules 72.1 and 72.2, for on-the-record criminal
appeals.
16
Super. Ct. Crim. R. 39(a) and (h); see also Maniscalco v. State, 124 A.3d 583, 2015 WL
5440229, at *1 (Del. 2015) (TABLE) (“The appellant’s notice of appeal should have been filed in
the Superior Court within fifteen days of his sentencing.”).
17
See Jarrell v. State, 2015 WL 5765483, at *1 (Del. Super. Sept. 28, 2015) (“When an appeal is
untimely, the Court lacks jurisdiction to hear the appeal on its merits and the appeal should be
dismissed.”); Kostyshyn v. State, 3 A.3d 1097, 2010 WL 3398942, at *1 n.6 (Del. 2010) (TABLE)
(“[T]he timely filing of a notice of appeal, whether in the Supreme Court or the Superior Court, is
mandatory and jurisdictional.”); cf. Augusiewicz v. State, 2009 WL 2852554, at *6 (Del. Super.
Aug. 31, 2009) (explaining that the Superior Court has the “power to limit its appellate
jurisdiction” through procedural rules and concluding that “[b]y requiring the filing of the notice
of appeal within 15 days of the date of sentence, [Rule 39] necessarily excludes appeals from
interlocutory orders in cases in which no sentence has been imposed.”).
4
Civil Rule 72(i), the Court concludes sua sponte that dismissal is appropriate. As
required by Rule 72(i), the Prothonotary “shall forward to the appellant a notice
directing that [s]he show cause why the appeal should not be dismissed” as
untimely.18
WHEREFORE, for the reasons stated above, the Court finds that the appeal
was untimely filed. The Prothonotary will forward a notice to the Appellant pursuant
to Rule 72(i) directing her to show cause, within 10 days of receipt of the notice,
why the appeal should not be dismissed. Should she fail to respond within 10 days,
the Court will dismiss her appeal.
IT IS SO ORDERED.
NEP/tls
oc: Prothonotary
cc: Wanda S. Clark, Pro Se - Via U.S.P.S Mail
Stephen R. Welch, Jr., Esquire, Deputy Attorney General - Via Email
18
Super Ct. Civ. R. 72(i).
5 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483020/ | NYCTL 1998-2 Trust v Bethelite Community Baptist Church (2022 NY Slip Op 06325)
NYCTL 1998-2 Trust v Bethelite Community Baptist Church
2022 NY Slip Op 06325
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, JJ.
Index No. 113197/09 Appeal No. 16626 Case No. 2022-00626
[*1]NYCTL 1998-2 Trust, et al., Plaintiffs-Respondents,
vBethelite Community Baptist Church Also Known as Bethelite Community Church, Inc. et al., Defendants-Appellants. Atlah worldwide Missionary Church, et al., Defendants.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant.
Phillips Lytle LLP, Rochester (Tara M. Ward of counsel), for respondents.
Order, Supreme Court, New York County (Francis Kahn, III, J.), entered on or about February 4, 2022, which denied defendant Bethelite Community Baptist Church a/k/a Bethelite Community Church, Inc.'s motion to vacate an order and judgment of foreclosure and sale of the same court (Arlene P. Bluth, J.), entered February 19, 2020, which granted plaintiffs' motion for summary judgment against defendant, confirmed the Referee's report with respect to the amount owed, and granted a judgment of foreclosure and sale, unanimously affirmed, without costs.
The court correctly concluded that CPLR 5015(a)(1) was inapplicable because defendant never defaulted in appearance, even if it believed its attorney's work was sub-par. Defendant further failed to meet its heavy burden to demonstrate that vacatur was proper pursuant to CPLR 5015(a)(2). To the extent defendant relies on New York City Council resolutions and the Administrative Code as potentially newly discovered evidence, the legislative materials, which are matters of public record, are not, in general, deemed new evidence which could not have been discovered with due diligence (see generally Felix v Law Offs. of Thomas F. Liotti, 129 AD3d 773 [2d Dept 2015], lv dismissed 26 NY3d 1096 [2016]).
Defendant also does not directly address how the foreclosure judgment was the result of fraud, mistake, inadvertence, surprise, or excusable neglect as the basis for vacatur (see Long Is. Light. Co. v Century Indem. Co., 52 AD3d 383, 384 [1st Dept 2008]). Moreover, defendant's contention that it was denied due process because it was unable to challenge the interest rate charged on the lien at a hearing before a referee was rejected in NYCTL 1998-2 Trust v Bethelite Community Baptist Church (192 AD3d 429, 430 [1st Dept 2021], lv denied 37 NY3d 906 [2021]), and defendant is barred by the law of the case doctrine from relitigating this issue (see Matter of Brodsky v New York City Campaign Fin. Bd., 107 AD3d 544, 545-546 [1st Dept 2013]). Even if we were to review defendant's argument, we would find that the motion court providently exercised its
discretion in denying defendant's motion to vacate the foreclosure judgment on equitable grounds because the equities here do not favor defendant.
We have considered defendant's remaining arguments and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483022/ | Mercedes v 680 SN LLC (2022 NY Slip Op 06323)
Mercedes v 680 SN LLC
2022 NY Slip Op 06323
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Index No. 150668/17, 595058/20 Appeal No. 16624 Case No. 2021-02887
[*1]Irene Mercedes, Plaintiff-Respondent,
v680 SN LLC, Defendant-Appellant, 356 Lucky Grocery And Deli Inc., Defendant. [And A Third-Party Action.]
McGaw & Alventosa, Jericho (Mary Azzaretto of counsel), for appellant.
Mitchell Dranow, Sea Cliff, for respondent.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered July 23, 2021, which, to the extent appealed from as limited by the briefs, denied defendant 680 SN LLC's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Plaintiff testified that she was injured in January 2014 when she slipped or tripped and fell in a hole in the sidewalk in front of 680 SN LLC's property. According to plaintiff, the hole was filled with water from either rain or melted snow, and she believed that the water had likely been on the ground for some time because it had an odor. Although a photograph provided to defendants by plaintiff's counsel showed no cracks or defects in the sidewalk, plaintiff testified that the photo did not accurately show the sidewalk's condition at the time of the accident because it did not show the broken part that caused her to fall.
680 SN LLC sustained its initial burden of showing that its alleged negligence did not cause or contribute to plaintiff's accident, as its building manager testified at his deposition that he was familiar with the sidewalk and that it bore no cracks or defects in January 2014, as shown in the photo provided by plaintiff's counsel (see Ceron v Yeshiva Univ., 126 AD3d 630, 632 [1st Dept 2015]; Garcia v City of New York, 99 AD3d 491, 492 [1st Dept 2012]).
However, plaintiff raised an issue of fact through her deposition testimony that the photo did not accurately depict the sidewalk at the time of her accident and that the sidewalk shown in the photo appeared to have been repaired. Plaintiff also testified that a different photo, which showed broken portions of the sidewalk, was a more accurate representation of the condition of the sidewalk at the time of the accident. Furthermore, 680 SN LLC had a nondelegable duty to maintain the sidewalk abutting its premises, regardless of the provisions of its lease with a commercial tenant (Administrative Code of the City of New York § 7-210; Collado v Cruz, 81 AD3d 542, 542 [1st Dept 2011]).
Supreme Court properly disregarded Google Maps photos that defendant submitted in reply, purportedly taken months before the accident. 680 SN LLC submitted no affidavit by a person with knowledge about the photos' origins, or knowledge about whether they fairly and accurately portrayed the sidewalk at the time of plaintiff's accident (see Williams v Laura Livery Corp., 173 AD3d 497, 498 [1st Dept 2019]).
We have considered 80 SN LLC's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483027/ | Little Cherry, LLC v Cherry St. Owner, LLC (2022 NY Slip Op 06322)
Little Cherry, LLC v Cherry St. Owner, LLC
2022 NY Slip Op 06322
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Singh, Kennedy, Mendez, JJ.
Index No. 654136/16 Appeal No. 16622 Case No. 2021-03852
[*1]Little Cherry, LLC, et al., Plaintiffs-Respondents,
vCherry Street Owner, LLC, et al., Defendants-Appellants.
Kasowitz Benson Torres LLP, New York (Paul M. O'Connor, III of counsel), for appellants.
Herrick, Feinstein LLP, New York (Scott E. Mollen of counsel), for Little Cherry LLC, respondent.
Cullen and Dykman LLP, New York (Samit G. Patel of counsel), for New York Community Bank, respondent.
Order, Supreme Court, New York County (Andrea Masley, J.), entered April 9, 2021, which granted plaintiff Little Cherry, LLC's (Little Cherry) and plaintiff-intervenor New York Community Bank's (NYCB) motions for summary judgment on their causes of actions for a declaration that defendants cannot proceed as a matter of law with their development project without their consent as parties-in-interest, and an injunction to enjoin the development project from proceeding without their consent, unanimously affirmed, with costs.
The doctrine of law of the case precludes defendants from relitigating the issue whether Little Cherry and NYCB are "parties-in-interest" who must consent to the zoning lot merger (see Macmillan, Inc v CF Lex Assoc., 56 NY2d 386, 391 [1982]; Sea Trade Mar. Corp. v Hellenic Mut. War Risks Assn. [Bermuda] Ltd., 79 AD3d 601, 602 [1st Dept 2010], lv dismissed in part, denied in part 17 NY3d 783 [2011]). This Court affirmed the IAS court's previous determination that they were parties-in-interest (Little Cherry, LLC v Cherry St. Owner LLC, 174 AD3d 445 [1st Dept 2019]).
The IAS court correctly concluded that plaintiffs did not waive their rights to consent to future enlargements of the Combined Zoning Lot. The 2008 Waivers clearly manifested plaintiffs' intent to relinquish only their rights with respect to the merger of Lots 15 and 76, and did not waive any right to object to future zoning lot mergers (see DLJ Mtge. Capital Corp., Inc. v Fairmont Funding, Ltd., 81 AD3d 563 [1st Dept 2011]).
Nor did Recital B of the 2008 Zoning Lot and Development Agreement (ZLDA) waive plaintiffs' consent rights. The Recitals of the 2008 ZLDA were not binding on any party, particularly plaintiffs, who were not even parties to that agreement (see Grand Manor Health Related Facility, Inc. v Hamilton Equities Inc., 65 AD3d 445, 447 [1st Dept 2009]). In any event, Recital B simply noted that Lot 76 may be expanded, and did not refer to the possibility of a future zoning lot merger.
Contrary to defendants' contention, the injunction is not overbroad. The amended complaint, defendants' pre-application statement submitted to the Department of City Planning, and their own admissions make clear that the "Stern Development" is a project through which defendants would acquire property and development rights to develop an 80-story building on Lot 70, which would "cantilever" over the Combined Zoning Lot, requiring an expansion of the existing Combined Zoning Lot to include Lot 70. Thus, defendants' contention that the injunction bars all development or construction projects on Lot 76 and the adjoining property is unavailing. Rather, defendants may still proceed with their construction and development projects, as long as they do not require a further zoning lot merger or otherwise affect plaintiffs' property rights.
We have reviewed defendants' remaining contentions and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE [*2]SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483034/ | Alvarez v Bracchitta (2022 NY Slip Op 06313)
Alvarez v Bracchitta
2022 NY Slip Op 06313
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Index No. 34274/19E Appeal No. 16619 Case No. 2022-00241
[*1]Maryann Alvarez et al., Plaintiffs-Appellants,
vRobert Bracchitta, Defendant, Edgar J. Fernandez et al., Defendants-Respondents.
Saracino Morris Law Group PLLC, Harrison (Peter John Morris of counsel), for appellants.
Law Offices of Jennifer S. Adams, Yonkers (Ryan Mainhardt of counsel), for Edgar J. Fernandez, respondent.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Andrew Thebaud of counsel), for Medley Pharmacy Inc., respondent.
Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about January 13, 2022, which, to the extent appealed from, denied plaintiffs' motion for summary judgment on liability as against defendant Edgar J. Fernandez, denied their cross motion for summary judgment on liability against defendant Medley Pharmacy Inc., and granted Fernandez's cross motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.
A rear-end collision with a stopped vehicle, or one slowing down, establishes a prima facie case of negligence by the operator of the rear-ending vehicle, unless he or she gives an adequate nonnegligent explanation for the accident (see Bajrami v Twinkle Cab Corp., 147 AD3d 649 [1st Dept 2017]). Fernandez established prima facie entitlement to summary judgment, as he testified at his deposition that he had come to a stop before defendant Robert Bracchitta's vehicle struck him from behind, thus causing Fernandez's vehicle to hit the rear of plaintiffs' vehicle. This testimony provides an adequate nonnegligent explanation for Fernandez's part in the accident (see Holmberg v Bevcon Group Inc., 187 AD3d 592, 593 [1st Dept 2020]). Because the complaint was properly dismissed as against Fernandez, Medley Pharmacy, which was Fernandez's employer, bears no vicarious liability.
In opposition, plaintiffs failed to raise an issue of fact. Bracchitta's testimony that Fernandez stopped short is insufficient by itself to raise an issue of fact as to Fernandez's negligence, because Bracchitta never explained why he did not maintain a safe distance between his vehicle and Fernandez's (see Leandry v City of New York, 127 AD3d 520, 520-521 [1st Dept 2015]). This conclusion holds especially true given Bracchitta's testimony that they were in stop and go traffic and that Fernandez was in front of him for several minutes before the accident (see Vehicle and Traffic Law § 1129[a]; Kalair v Fajerman, 202 AD3d 625, 626 [1st Dept 2022]).
Plaintiffs failed to show that Fernandez's actions in losing the recorded accident footage raises a triable issue of fact as to his credibility. The record contains no evidence that plaintiff's asked Fernandez to preserve the footage before it was overwritten or that the destruction of the footage was done with a culpable state of mind; on the contrary, Fernandez testified at his deposition that the loss occurred accidentally when his car turned off after the collision (see Duluc v AC & L Food Corp., 119 AD3d 450, 451 [1st Dept 2014], lv denied 24 NY3d 908 [2014]. In any event, plaintiffs presented no evidence that the footage would have supported their claim that Fernandez's vehicle proximately caused the accident (id.).
We have considered plaintiffs' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483042/ | [Cite as State v. Irving, 2022-Ohio-4019.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-22-009
Appellee Trial Court No. 2021CR0389
v.
David A. Irving DECISION AND JUDGMENT
Appellant Decided: November 10, 2022
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, David A. Irving, appeals from a judgment entered by the Wood
County Court of Common Pleas, sentencing him to serve an aggregate term of three years
in prison. For the reasons that follow, we affirm the judgment of the trial court. The
matter is remanded to the trial court for the sole purpose of issuing a nunc pro tunc
sentencing entry that reflects the postrelease control sentence of, “up to three years, but
not less than one year” that the trial court imposed at the sentencing hearing.
Statement of the Case and Facts
{¶ 2} On August 5, 2021, appellant was indicted on one count of intimidation of
an attorney, victim, or witness in a criminal case, a felony of the third degree; one count
of menacing by stalking, a felony of the fourth degree; one count of theft, a felony of the
fifth degree; one count of unauthorized use of a motor vehicle, a misdemeanor of the first
degree; and seven counts of violating a protection order, all misdemeanors of the first
degree.
{¶ 3} Appellant entered into a negotiated plea agreement whereby he would enter
pleas of guilty to three of the eleven counts, with the remaining counts to be dismissed at
sentencing. The specific offenses to which he would plead guilty were intimidation of an
attorney, victim, or witness in a criminal case, in violation of R.C. 2921.04(B)(1) and
(D), a felony of the third degree; menacing by stalking, in violation of R.C.
2903.211(A)(1) and (B)(2)(b), a felony of the fourth degree; and violation of a protection
order, in violation of R.C.2919.27(A)(1), a misdemeanor of the first degree.
{¶ 4} Included in the plea agreement was the following paragraph:
K. Post Release Control. In addition, a period of supervision by the Adult
Parole Authority after release from prison is XXXX optional or ____
mandatory in this case. If I am sentenced to prison for this offense, after my
prison release I ____ will or XXXX may have up to Two (2) years of
control under conditions determined by the Parole Board.
2.
Thus, the plea agreement indicated that appellant, if sentenced to prison, could be
subjected to a period of “up to” two years of postrelease control. At the plea hearing,
however, the trial court advised appellant during its colloquy that “[b]ecause the charge
of intimidation of an attorney, victim, or witness in a criminal case] is a felony of the
third degree, you could have up to three years but not less than one year of post release
control.” The trial court echoed this admonition at sentencing, stating, “Having been
convicted of a felony of the third degree, the defendant will be subject, once he is
released from prison, of up to three years but not less than one year of post release control
through the Adult Parole Authority.” On appeal, appellant takes issue with the trial
court’s imposition of postrelease control.
Assignment of Error
{¶ 5} Appellant asserts the following assignments of error on appeal:
I. Appellant’s sentence for his third degree felony offense is contrary to
law and constitutes plain error.
II. Appellant received ineffective assistance of counsel.
Analysis
{¶ 6} This court reviews sentencing challenges under R.C. 2953.08(G)(2). State v.
Villarreal, 6th Dist. Sandusky No. S-17-020, 2018-Ohio-888, ¶ 15. That statute permits
an appellate court to increase, reduce, or otherwise modify a sentence or vacate the
sentence and remand the matter for resentencing only if it clearly and convincingly finds
3.
either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is contrary to law.
Id.; R.C. 2953.08(G)(2). Appellant does not challenge the trial court’s compliance with
any of the sentencing statutes identified in R.C. 2953.08(G)(2)(a). Rather, he claims in
his first assignment of error that his sentence is contrary to law because his “sentencing
entry subjects him to up to three years of postrelease control, but the law limits
postrelease control for nonviolent third degree felonies to two years.”
{¶ 7} As indicated above, appellant pleaded guilty to intimidation of an attorney,
victim or witness in a criminal case, in violation of R.C. 2921.04(B)(1) and (D), which
was a felony of the third degree. In addition, R.C. 2901.01(A)(9)(a) lists R.C. 2921.04 as
an offense of violence. Accord State v. Dahms, 3d Dist. Seneca No. 13-16-16, 2017-
Ohio-4221, ¶ 127; State v. A.G., 8th Dist. Cuyahoga No. 110132, 2021-Ohio-4428, ¶ 20.
{¶ 8} R.C. 2967.28(B)(4) provides that the period of post-release control that is
required “[f]or a felony of the third degree that is an offense of violence and is not a
felony sex offense, [is] up to three years, but not less than one year.” The trial court
specifically informed appellant of this statutorily mandated period of post-release control,
both at appellant’s plea hearing and at his sentencing hearing.
4.
{¶ 9} Unfortunately, the trial court’s January 13, 2022 judgment entry inaccurately
provides, “As part of this sentence the Defendant is advised that upon the completion of
the prison term, the Defendant MAY be subject to such further discretionary period of
supervision under POST RELEASE CONTROL of up to THREE YEARS as authorized
by law * * *.” (Emphasis in original.)
{¶ 10} In State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶
1, the Supreme Court of Ohio held that “to validly impose postrelease control when the
court orally provides all the required advisements at the sentencing hearing, the
sentencing entry must contain the following information: (1) whether postrelease control
is discretionary or mandatory, (2) the duration of the postrelease-control period, and (3) a
statement to the effect that the Adult Parole Authority (“APA”) will administer the
postrelease control pursuant to R.C. 2967.28 and that any violation by the offender of the
conditions of postrelease control will subject the offender to the consequences set forth in
that statute.” In this case, although the trial court orally provided all of the required
advisements at the sentencing hearing, the trial court’s judgment entry fails to validly
impose postrelease control, because it incompletely advises appellant that he may be
subject to a period of postrelease control of up to three years, without mention of the
mandatory portion of the sentence, requiring a one-year period of postrelease control.
{¶ 11} In reaching this conclusion, we are mindful that if, as here, “the trial court
gives the proper notice during the sentencing hearing, but fails to include proper notice in
its sentencing judgment entry, the trial court can enter a nunc pro tunc judgment to
5.
correct the clerical error pursuant to Crim.R. 36 and need not provide a resentencing
hearing pursuant to R.C. 2929.191. State v. Murray, 2012-Ohio-4996, 979 N.E.2d 831, ¶
23 (6th Dist.), citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d
718, ¶26. Accordingly, appellant’s first assignment of error is found not well-taken, but
the matter will be remanded to the trial court for a nunc pro tunc entry reflecting the
imposition of postrelease control as explained by the trial court at appellant’s sentencing
hearing.
{¶ 12} Appellant argues in his second assignment of error that he received
ineffective assistance of counsel, because his trial counsel failed to object to the period of
postrelease control that was imposed by the trial court.
{¶ 13} The law is clear that “[a]n attorney is not ineffective for failing to raise an
objection which would have been denied.” State v. Draper, 10th Dist. Franklin No.
02AP-1371, 2003-Ohio-3751, ¶ 29, citing State v. Gibson, 69 Ohio App.2d 91, 95, 430
N.E.2d 954 (8th Dist.1980). As explained above, the trial court imposed postrelease
control in this case in accordance with the law. Had trial counsel objected to this
imposition of postrelease control, the objection would have been properly denied.
Therefore, trial counsel, in failing to raise such an objection, was clearly not ineffective.
Appellant’s second assignment of error is found not well-taken.
{¶ 14} For all of the foregoing reasons, the judgment of the Wood County Court
of Common Pleas is affirmed. This matter is remanded to the trial court for the sole
purpose of issuing a nunc pro tunc sentencing entry that reflects the postrelease control
6.
sentence that was imposed by the trial court at appellant’s sentencing hearing. Appellant
is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
7. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483048/ | [Cite as In re So.P., 2022-Ohio-4015.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE SO.P., ET AL. :
Minor Children :
No. 111468
[Appeal by M.P., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Court Division
Case Nos. AD-19912540, AD-19912541, AD-19912542,
and AD-19912543
Appearances:
Edward F. Borkowski, Jr., for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
SEAN C. GALLAGHER, A.J.:
Appellant M.P. (“mother”) appeals the decisions of the Cuyahoga
County Court of Common Pleas, Juvenile Division, that awarded legal custody of her
four minor children, So.P., J.P., Sp.P., and C.P., to their paternal aunt and uncle.
Upon review, we affirm the judgment of the juvenile court in each child’s case.
I. Procedural and Factual Background
In October 2019, the Cuyahoga County Division of Children and
Family Services (“CCDCFS” or “the agency”) filed a complaint that alleged the four
children, who were born between 2007 and 2015, were abused, neglected, and
dependent. The children were committed to the emergency custody of CCDCFS on
October 16, 2019. At the adjudicatory hearing held on December 9, 2019, mother
stipulated to an amended complaint that alleged in part that mother and the
children’s maternal grandmother had engaged in a physical altercation in the
presence of the children, mother has a substance-abuse issue related to alcohol,
mother relapsed after completing treatment, mother was then in residential
treatment and not able to care for the children, mother needed to address a mental-
health issue in order for her to provide for the children, mother was previously
convicted of disorderly conduct after engaging in domestic violence, and the
children’s father was incarcerated in Arizona for a manslaughter conviction. After
adjudicating the children abused, neglected, and dependent, the juvenile court
committed the children to the temporary custody of CCDCFS in judgment entries
dated between January 2 and 7, 2020.
The juvenile court ordered two extensions of temporary custody by
agreement of the parties. On August 10, 2021, mother filed a motion for legal
custody to herself. On December 2, 2021, CCDCFS filed a motion to amend an
earlier dispositional request for permanent custody to legal custody to the children’s
paternal aunt and uncle. A dispositional hearing was held before a magistrate on
February 28, 2022, at which time the children had been in the temporary custody of
CCDCFS for over two years.
The record reflects that at the time the children were removed from
mother’s custody, mother had an extensive history of alcohol abuse. In 2015,
mother and the children’s father, now her ex-husband, were involved in a car
accident resulting in another person’s death and the children’s father’s
incarceration. According to mother, “[her] entire family fell apart.” Mother
acknowledged she “was an emotional mess,” her behavior was “out of control,” and
her children had witnessed her “in some conditions * * * they shouldn’t have.”
The four children were initially placed with their maternal
grandparents in Ohio, but they were eventually placed with their paternal aunt and
uncle in Indiana and have remained there since February 2021. The children are
doing very well in their placement and are bonded with their paternal aunt and
uncle. Their basic needs are being met, they have appropriate housing, they attend
school, and they are engaged in counseling.
Mother’s case plan objectives included addressing her substance-
abuse issues and mental health. Mother was already involved in treatment when the
agency became involved. From October 2019 through February 2021, Mother
completed substance-abuse treatment programs, but she relapsed several times.
However, mother eventually made progress. At the time of the dispositional
hearing, mother had been sober for a year, she was involved in mental health
counseling, she was employed, she had appropriate housing, and she was involved
with Sober Living Homes, Ohio, where she had achieved enough sobriety to be
trusted as a house manager to drug test other residents.
The agency recognized mother’s progress, but it still had concern
because the children had been out of her custody for two years and there were “still
a lot of trust issues that [need] to be resolved” and there were concerns for the
children’s emotional well-being. It was observed that the children did not view
mother as an authority figure and did not really listen to her. The social worker of
record stated, “the children have witnessed mother physically fighting with their
grandmother and they have experienced a lot of yelling, a lot of screaming, a lot of
negative behavior.” So.P., who is the oldest child, “felt blamed for everything,
anything negative that happened was her fault. A lot of responsibility is put on her.”
A visitation schedule was in place, with weekly phone calls or
FaceTime and monthly in-person visits. Mother participated in all the visits. But
mother had not had visitation with or spoken to So.P. since late 2020/early 2021
because So.P. did not wish to have visitation with her mother. Mother was “trying
to just respect [So.P.’s] wishes * * * and giving [So.P.] time until she’s ready.”
Mother had some in-person visits with her other children, but the visitation was
supervised by the accompanying maternal grandmother. The social worker
indicated that the other children had shared wanting to be back in Ohio with their
grandmother, but with mom being there, and that “there’s still hesitation that mom
might not be able to take care of them * * *.” So.P. believed all the children should
remain together.
Mother’s testimony reflects that she engaged in treatment, was
receiving counseling, and had “learned a lot of good coping mechanisms and tools.”
She acknowledged that “it took [her] a while to get it right.” She recognized issues
that would need to be addressed if reunited with the children. Mother expressed
remorse for her prior behavior and stated she was “willing to do whatever anyone
deems necessary to build those relationships back and make [the children] trust
me.” She also indicated that she had the support of the maternal grandparents who
live close to her. Mother stated she would like So.P. to return to her, but also
recognized that So.P. wanted to be in the legal custody of the paternal aunt and
uncle. Mother indicated that she had no issues with the paternal aunt and uncle and
that if the children were committed to their legal custody, she would desire as much
access and visitation as possible.
The social worker believed it was in the best interest of the children
to remain in the paternal aunt and uncle’s home. Family counseling had not taken
place between mother and the children. The agency was concerned that the children
had not been in mother’s care for over two years and there were “a lot of trust issues
that [needed] to be resolved.” The social worker felt that it is important for the
children to have the opportunity to build a relationship back with their mother,
rather than just “throwing them back home without any opportunity for transition,
without any opportunity to rebuild the trust.”
The guardian ad litem (“GAL”) for the children recommended legal
custody to the paternal aunt and uncle and opined this would be in the children’s
best interest. The GAL recognized the progress mother has made, but she was
concerned that So.P. had not visited with mother in some time and mother only had
eight or nine in-person visits with the other children over the past year. The GAL
did not believe the children should be separated, and the GAL opined that returning
the children to Ohio would disrupt the progress they had made.
Counsel for the children indicated that So.P. did not want to be
reunified with mother and did not want any access or visitation with mother.
Counsel indicated the other children had each stated a desire to be reunified with
their mother.
The paternal aunt and uncle had executed a statement of
understanding for legal custody. They affirmed their intention to become the legal
custodians of the children and acknowledged their understanding of the effect of the
custodianship.
In timely judgment entries journalized March 25-28, 2022, the
juvenile court, upon independent review, adopted the magistrate’s decision and
granted legal custody of each child to the paternal aunt and uncle. The juvenile court
made findings that are supported by the record and found that each child’s current
placement was appropriate, that the child’s “return to the home of Mother, at this
time, will be contrary to the child’s best interest[,]” and that an award of legal
custody to the paternal aunt and uncle was “necessary to serve the best interests of
the child.” In the case of So.P., the juvenile court ordered “Mother shall have no
visitation with So.P. Supervised visitation may resume as agreed upon [by] the
parties, when the child wishes to engage in visitation with her mother.” In each of
the other children’s cases, the juvenile court ordered “reasonable parenting time” as
agreed by the parties. The juvenile court had informed mother at the dispositional
hearing that if the children were placed in the legal custody of the paternal aunt and
uncle, mother would have certain residual rights.
Mother has appealed the judgment of the juvenile court in each
child’s case.
II. Law and Analysis
Mother raises two assignments of error for our review. Under her
first assignment of error, mother claims that the juvenile court abused its discretion
by granting the agency’s motion for legal custody to relatives and that the decision
was against the manifest weight of the evidence. Under her second assignment of
error, mother claims the juvenile court abused its discretion by denying her motion
for legal custody.
Pursuant to R.C. 2151.353(A)(3), a juvenile court may award legal
custody of a child who has been adjudicated abused, neglected, or dependent “to
either parent or to any other person who, prior to the dispositional hearing, files a
motion requesting legal custody of the child or is identified as a proposed legal
custodian in a complaint or motion filed prior to the dispositional hearing by any
party to the proceedings.”
“Legal custody” is defined as
a legal status that vests in the custodian the right to have physical care
and control of the child and to determine where and with whom the
child shall live, and the right and duty to protect, train, and discipline
the child and to provide the child with food, shelter, education, and
medical care, all subject to any residual parental rights, privileges, and
responsibilities.
R.C. 2151.011(B)(21).
Legal custody is significantly different than the termination of
parental rights. Unlike an award of permanent custody that divests the natural
parents of all parental rights, an award of legal custody vests in the custodian the
physical care and control of the child while the natural parents retain residual
parental rights, privileges, and responsibilities. In re E.M.B.T., 8th Dist. Cuyahoga
No. 109479, 2020-Ohio-4308, ¶ 24, citing R.C. 2151.011(B)(21), 2151.011(B)(31),
and 2151.353(A)(3)(c); see also In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843
N.E.2d 1188, ¶ 15, 17. Also, “‘[u]nlike permanent custody, granting legal custody
does not terminate the parent-child relationship.’” In re E.M.B.T. at ¶ 24, quoting
In re M.M., 12th Dist. Fayette No. CA2010-12-034, 2011-Ohio-3913, ¶ 7.
“A trial court must determine the appropriateness of legal custody in
accordance with the best interest of the child as supported by the preponderance of
the evidence.” In re J.W., 8th Dist. Cuyahoga No. 108139, 2019-Ohio-3666, ¶ 15,
citing In re G.W., 8th Dist. Cuyahoga No. 103706, 2016-Ohio-5242, ¶ 21.
“‘Preponderance of the evidence’ means ‘evidence that’s more probable, more
persuasive, or of greater probative value.’” In re C.V.M., 8th Dist. Cuyahoga No.
98340, 2012-Ohio-5514, ¶ 7, quoting In re D.P., 10th Dist. Franklin No. 05AP-117,
2005-Ohio-5097, ¶ 52.
“[T]he best interests of the child are paramount in any custody case,”
and courts are to liberally interpret the statutes under R.C. Chapter 2151 “to provide
for the care and protection of the child * * *.” In re A.B., 110 Ohio St.3d 230, 2006-
Ohio-4359, 852 N.E.2d 1187, ¶ 32, citing R.C. 2151.01(A). The factors listed under
R.C. 2151.414(D) may be instructive when determining the child’s best interest in a
legal custody case. In re V.P., 8th Dist. Cuyahoga No. 109649, 2020-Ohio-5626,
¶ 32, citing In re G.M., 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, ¶ 16. Those
factors include the following: the interaction and interrelationship of the child with
the child’s parents, relatives, and caregivers; the wishes of the child; the custodial
history of the child; and the child’s need for a legally secure placement. R.C.
2151.414(D). In custody matters, a juvenile court has broad discretion in making
dispositional orders in the best interest of the child. See Reynolds v. Goll, 75 Ohio
St.3d 121, 124-125, 661 N.E.2d 1008 (1996). Ultimately, the natural rights of a
parent are always subject to the ultimate welfare of the child, which is the controlling
principle to be observed. In re B.C., 141 Ohio St. 3d 55, 2014-Ohio-4558, 21 N.E.3d
308, ¶ 20, citing In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
In this case, the record demonstrates that despite her initial relapses,
mother has made progress with her sobriety and mental health. However, concerns
remained for the emotional welfare of the children, who experienced a lot on account
of mother’s past behavior and have a father who is incarcerated. So.P. has not
wanted any contact with mother. Although the other children have had positive
interactions with mother and their counsel expressed their desire to be reunified
with her, the social worker observed that the children do not view mother as an
authority figure, they do not really listen to her, and they had hesitation that mom
might not be able to take care of them. Also, mother’s visitation with the children in
Indiana has been supervised by the maternal grandmother and family counseling
had not taken place. As expressed by the social worker, “the concern is the
relationship [between the children and mother] and without having that being
addressed, it’s highly likely that it will increase trouble for both the kids and for the
mother.” Mother acknowledged that she still needs to build trust with the children
and that there is still a need for family counseling. At the time of the dispositional
hearing, the children had not been in mother’s custody for two years. The children
have stability in the paternal aunt and uncle’s home, and the GAL believed returning
the children to Ohio would disrupt the progress they had made.
The juvenile court reviewed the testimony provided and included
factual findings in its decisions. The juvenile court recognized that mother has made
progress, has appropriate housing, is employed, and can meet the basic needs of the
children. However, the juvenile court also recognized that mother had not engaged
in family counseling with the children and that over the past year, So.P. refuses to
visit with mother, and mother has had limited, supervised visits with the other
children. The juvenile court further recognized that the children were placed
together with their paternal aunt and uncle, they are bonded with these relatives,
they are enrolled in school, they are receiving counseling, and they are doing well.
The juvenile court considered the expressed wishes of the children, as well as the
recommendation of the guardian ad litem, who recommended the children remain
together in the legal custody of their paternal aunt and uncle.
Despite mother’s progress, the focus must remain on the welfare of
the children. In each child’s case, the juvenile court independently reviewed the
matter, considered relevant best-interest factors, made findings that are supported
by the record, and concluded the child’s return to mother’s home, at this time, would
be contrary to the child’s best interest and that an award of legal custody to the
paternal aunt and uncle would serve the best interest of the child. Upon careful
review, we find that the juvenile court did not abuse its discretion and that the
judgment in each child’s case was supported by the preponderance of the evidence.
We are not persuaded by mother’s arguments otherwise.
We also recognize that the juvenile court ordered reasonable
parenting time with J.P., Sp.P., and C.P. and allowed supervised visitation to resume
with So.P. when the child so wishes. Because this is an award of legal custody,
mother retains residual parental rights, privileges, and responsibilities. We
commend mother for the positive steps she has taken and strongly encourage that
she engage in family counseling with the children. An award of legal custody does
not permanently foreclose a parent’s right to regain custody in accordance with the
law in the future. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188,
at ¶ 23, citing R.C. 2151.42.
The assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
__________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
CORNELIUS J. O’SULLIVAN, JR., J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE OPINION
CORNELIUS J. O’SULLIVAN, JR., J., CONCURRING IN PART AND
DISSENTING IN PART:
Respectfully, I concur in part and dissent in part. I concur in part
with the majority’s judgment as it relates to So.P. — that legal custody of her should
be granted to the paternal aunt and uncle. I dissent as to the majority’s judgment
that legal custody of the other three children, J.P., Sp.P., and C.P., should be granted
to the aunt and uncle.
The juvenile court has exclusive jurisdiction to determine the custody
of any child not a ward of another court of this state. R.C. 2151.23(A)(2). “It is well
recognized that the right to raise a child is an ‘essential’ and ‘basic’ civil right.”
In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), citing In re Murray,
52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). Thus, “the overriding principle in
custody cases between a parent and nonparent is that [biological] parents have a
fundamental liberty interest in the care, custody, and management of their
children.” In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971,
¶ 16, citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982). “This interest is protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and by Section 16, Article I of the Ohio
Constitution.” In re Hockstok at id., citing Santosky at id., and In re Shaeffer
Children, 85 Ohio App.3d 683, 689-690, 621 N.E.2d 426 (3d Dist.1993). “Since
parents have constitutional custodial rights, any action by the state that affects this
parental right, such as granting custody of a child to a nonparent, must be conducted
pursuant to procedures that are fundamentally fair.” In re Hockstok at id., citing
Santosky at 754, and In re Adoption of Mays, 30 Ohio App.3d 195, 198, 507 N.E.2d
453 (1st Dist.1986).
The juvenile court found that appellant had made “some progress” on
her case plan, but that “progress has not been made in alleviating the cause for the
removal of the child[ren] from the home.” I disagree.
Mother’s underlying issue in this case was alcohol abuse that was
brought on by the trauma associated with her husband killing a person while driving
intoxicated and subsequently being imprisoned. Appellant acknowledged that her
life spiraled out of control in the aftermath of these events.
However, she did what was required of her to address her alcohol
abuse. The juvenile court noted that she “completed on her own inpatient and
outpatient treatment”1 and that, at the time of trial, she had been sober for over one
year. Further, she was employed, had appropriate housing, and was involved with
Sober Living Homes, Ohio. The owner of Sober Living Homes, Ohio testified that
appellant was singularly focused on getting sober so that she could regain custody
of her children. Appellant “excelled” in the program, and the owner made her
“house mother” because she was so effective on keeping the participants in the
program “on track.” The juvenile court also found that appellant was able to meet
the basic needs of the children.
Appellant testified that she learned coping skills and tools through
counseling and expressed remorse for her prior behavior. She testified that she is
“willing to do whatever anyone deems necessary to build * * * relationships back
[with her children]” and gain their trust. So.P. did not want to be reunified with
appellant, but the other children did.
Part of the juvenile court’s reasoning in denying appellant’s request
for legal custody was that she had not engaged in family counseling with the
children. The record demonstrates that appellant was willing to engage in family
1 The record demonstrates that CCDCFS did not refer appellant for substance
abuse services because at the time it became involved with her she had already been
engaged in services on her own accord.
counseling — indeed she repeatedly requested it — but CCDCFS never arranged it.
I believe a significant roadblock to arranging that was, and will be going forward,
the physical distance between appellant, who is in Ohio, and the children, who are
in Indiana.
The denial was also based on the court’s determination that the
children were bonded to their aunt and uncle and doing well in their placement at
their home. I believe that using that determination to deny appellant custody
amounts to the court using the initial award of custody against appellant. See In re
C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 29 (Pfeifer, J.,
dissenting) (“[T]he magistrate used the initial award of custody against [appellant
father] when he stated that [the child] ‘could face confusion and/or loss of security
and stability [if legal custody were taken from the [custodians] and awarded to
[father]].’”) In my opinion, that reasoning ignores appellant’s constitutional rights
to custody of her biological children and demonstrates that her rights have not been
appropriately considered at any stage of the proceedings.
The record demonstrates that the children were bonded with
appellant prior to the tragic set of circumstances at play here and the three younger
ones expressed their desire to be reunited with her. The agency’s failure to put a
“preferred” program in place should not work to keep the family apart.
For the reasons discussed above, I concur in part and I dissent in part.
I would affirm the juvenile court’s decision as it relates to So.P. and would overrule
it as it relates to J.P., Sp.P., and C.P. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483050/ | [Cite as Costaras v. Gilson, 2022-Ohio-4011.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JANICE COSTARAS, :
Plaintiff-Appellant, :
No. 111225
v. :
THOMAS P. GILSON, ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-933064
Appearances:
Dean DePeiro and Kelly Zacharias, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jillian Eckart, Assistant Prosecuting
Attorney, for appellees.
LISA B. FORBES, J.:
I. Facts and Procedural History
On January 14, 2020, Dr. George Costaras (“Dr. Costaras” or
“George”) was found deceased on the ground beneath the Brookpark Road bridge in
the Cleveland Metroparks in Fairview Park, Ohio. Dr. Elizabeth Mooney, a
pathologist at the Cuyahoga County Medical Examiner’s Office (collectively the
“Medical Examiner”), conducted an autopsy the next day and issued a report on
February 12, 2020, determining that Dr. Costaras “jumped from the Brookpark
bridge to the ground below, where he then collapsed and subsequently expired.” The
Medical Examiner’s verdict listed the cause of death as “blunt force injuries” and the
manner of death as “SUICIDE.”
Dr. Costaras’s wife, Janice Costaras (“Janice”), individually and as
executor of the Estate of Dr. Costaras, filed a complaint against the Medical
Examiner challenging the Medical Examiner’s verdict regarding the cause and
manner of Dr. Costaras’s death pursuant to R.C. 313.19. Specifically, the complaint
states that Janice is “seeking a judicial order directing the Medical Examiner of
Cuyahoga County to change the cause of death set forth in the Certificate of Death
and Supplementary Medical Examiner’s Verdict from ‘Blunt force injuries —
SUICIDE’ to ‘Blunt force injuries — UNDETERMINED.’”
On October 5, 2021, the court held a bench trial, and after Janice
rested her case, the Medical Examiner moved to dismiss pursuant to Civ.R. 41(B)(2).
The court granted the motion to dismiss. On January 20, 2022, the court issued
findings of fact and conclusions of law, which stated in pertinent part that
the Medical Examiner’s ruling on the cause and manner of death for
* * *Dr. * * * Costaras as “blunt force injuries” — suicide is based upon
substantial evidence. * * * [Janice] cannot meet her burden of proof by
simply arguing that [the Medical Examiner] should have pursued
additional avenues of investigation regarding the manner of death.
[Janice] failed to provide any credible evidence at Trial that would
support any other manner of death ruling.
It is from this order that Janice appeals. After reviewing the facts of
the case and pertinent law, we affirm the lower court’s judgment.
II. Stipulations
At the outset, the parties stipulated to three depositions. Dr. Othman
A. Shemisa (“Dr. Shemisa”) testified that he is a primary care physician and most
recently worked at University Hospitals until he retired in September 2019. He was
George’s primary care physician for “at least 10 years.” Dr. Shemisa treated George
for hypertension, hyperlipidemia, and elevated blood sugar. In April 2016, George
saw Dr. Shemisa for anxiety and feeling “stressed out.” Dr. Shemisa prescribed
Alprazolam after George decided against counseling. Dr. Shemisa noted that
George’s mood was “slightly anxious” and his affect was “slightly nervous.” Dr.
Shemisa diagnosed George with “direct anxiety, social anxiety, situational anxiety.”
Additionally, at an October 2018 appointment, George complained about not being
able to sleep.
George’s Alprazolam prescription continued through his final
appointment with Dr. Shemisa, which was in April 2019. Additionally, Dr. Shemisa
refilled the prescription on August 30, 2019, prior to his retirement. Dr. Shemisa
testified that it was “surprising, truly” to learn that the Medical Examiner
determined that George committed suicide, because his records “don’t indicate a
person who was severely depressed * * *.”
Dr. James Thomas Kelly, Jr. (“Dr. Kelly”) testified that he is a
“primary care provider, family practice doctor” at University Hospitals, Olmsted
Falls Family Practice Clinic. Dr. Kelly testified from his notes regarding the only
patient visit he had with George, on November 18, 2019, because he did not recall
the specifics of the appointment. According to Dr. Kelly’s notes, he saw George for
the following reasons: hypertension, depression with anxiety, high cholesterol, and
hyperglycemia. Dr. Kelly prescribed George Wellbutrin and renewed his
Alprazolam prescription because of “a great deal of stress that he was under.” He
noted that George was “not homicidal, * * * not suicidal, but would like to possibly
go on something.” Dr. Kelly recommended that George make a follow-up
appointment with him in four-to-six weeks, to see how he was tolerating the
Wellbutrin.
Dr. Sandra Lynn Darling (“Dr. Darling”) testified that she is a doctor
of osteopathy at the Cleveland Clinic Wellness and Preventative Medicine
Department. Dr. Darling met with George on January 7, 2020. Janice also attended
this appointment. According to Dr. Darling, the chief complaint was George’s stress.
George was not sleeping well, and he said to her, “that he’s been under a lot of stress
for the past two to three months related to his business” and “[d]ue to finances.” Dr.
Darling testified that George “had anxiety a couple years ago” and “took Alprazolam
once in awhile.” George also told Dr. Darling that he lost 10-15 pounds in the last
six weeks because he had no appetite, and he stopped exercising because he was
“afraid exercise will cause more weight loss, and also doesn’t want to take the time
to do it.”
Dr. Darling also testified that George had been prescribed Wellbutrin
approximately six weeks prior to his appointment with her. She “assumed it was
because he was experiencing depression, stress, and anxiety.” George further
reported to Dr. Darling that he “wasn’t able to sleep at all while on Prozac a few years
ago” and that “he was seeing a therapist in the past and stated it was helpful.” Dr.
Darling asked George if he was depressed, and he said, “Yes.” She also asked him if
he suffered from anxiety, and he said, “Yes.”
Dr. Darling asked George “what he had done in the past to treat his
anxiety and depression and what he’s willing to do.” George answered that he “really
didn’t want to do anything” because he was worried about losing his medical license
“if he receives treatment for mental health.” Dr. Darling diagnosed George with
“hypertension, uncontrolled due to high stress”; sleep difficulties, for which she
prescribed him Trazodone; and anxiety and depression. She also recommended
meditation, acupuncture, herbal supplements, essential oils, mind-body therapy,
and gentle physical therapy.
Dr. Darling testified that George did not “make any statements about
wanting to end his life[,] suicidal thoughts[,] or wanting to harm himself in any way.”
After she met with him on January 7, 2020, she did not have “any concern that that
would be something that he might do at some point.” Dr. Darling testified that,
although it is not her area of expertise, “based on [George’s] symptoms, he was
exhibiting signs of depression.”
III. Hearing Testimony
Janice testified that she married George in 1978 and they were
married 41 and one-half years at the time of his death. George had a healthy lifestyle,
watching what he ate and working out. In December 2019, he cut back his workouts.
According to Janice, George lost “10 to 15 pounds in the past eight weeks because he
ha[d] no appetite.”
Janice testified that George was under a doctor’s care for high blood
pressure and sleep apnea. Asked what she knew about George’s diagnosis of
depression, Janice said, “You know, depression is not a word that’s in our
environment. * * * We are not depressed.”
Janice testified that George saw Dr. Darling for his sleep apnea.
Janice further testified that she was surprised to learn that Dr. Shemisa diagnosed
George with situational anxiety and prescribed him Alprazolam in 2016.
According to Janice, George’s podiatry business was “down” but the
insurance “reimbursements have been down since we were married.” Asked if
George seemed “stressed out” about this, Janice testified as follows: “I wouldn’t use
the word stress. I would use the word nervous, worried. Because it just — I guess it
just didn’t seem fair. Do more, get paid less.” Janice testified that they had no
mortgage on their home in Westlake, and their net worth was estimated at $2.5
million at the time of George’s death. They purchased a new car on December 31,
2019, and it was the largest debt the couple had at the time of George’s death.
Janice and George had plans to spend the day together on Tuesday,
January 14, 2020. Janice called George’s office and asked to have George’s
appointments for that day cancelled or rearranged. George usually worked late on
Mondays, until “6 or 7.” However, on Monday January 13, 2020, he stayed at work
until after 10:00 p.m. According to Janice, George “wanted to get all the paperwork
done because he was not coming in the next day, and he wanted to make sure he was
fresh with what he had to write down for the patients.”
Janice spoke to George at 11:00 p.m. that night after he left his office.
George went to the gas station and the bank to make a deposit of that day’s income.
He told Janice he would see her in ten minutes. At midnight, George was not home
and Janice began to worry. She called the police and drove around looking for him.
She came back home, unsuccessful in her attempts to locate George. At about
2:00 a.m., two Westlake police officers came to her house and told her that her
“husband jumped off a bridge and committed suicide.”
Janice testified that, in the weeks leading up to January 13, 2020, the
only thing “unusual” about George was that “he was worried because he was in his
60s, he knew he should retire, but the fact is he really didn’t want to. And so that —
that bothered him that he wasn’t aligned with a lot of our friends.” Asked if he
seemed depressed, Janice answered, “No. No, no, no.”
Nicholas Costaras (“Nicholas”) testified that George was his father
and they had a close relationship. The two would often work out together, talk on
the phone, and spend time with family. Asked if his father ever discussed suicide
with him “in the context of religion,” Nicholas answered, “In the context of religion,
maybe I recall over the years it was just a no, like it doesn’t compute in our faith.
And if we do it, then it would not allow us to get into heaven; and therefore, it was
not a possibility.”
Nicholas testified that he “took over the managerial elements” of his
father’s business. In “the years or so leading up to his passing,” he and his father
talked about “preparing to make the [podiatry] practice attractive for his retirement,
which from the conversations we had, he was anticipating one to three years at that
time.” According to Nicholas, the “business was very strong,” although the “patients
were up and the insurance reimbursements were dropping slightly.”
According to Nicholas, on January 14, 2020, he got a call from his
mother “sometime after 2:00 a.m. and I just had that sinking feeling that something
was wrong. * * * I could barely make out what she was saying. She said come home.
And I asked is everything okay or what’s wrong. She wouldn’t say. And then I asked
if my father was alive and she said no.”
According to Nicholas, he went to his parents’ house and the police
were already there. Nicholas testified that a detective was asking “questions to kind
of find the justification of, I guess, what he was making it seem like was a foregone
conclusion * * * that my father had jumped.”
Asked if his father had any change in his behavior prior to his death,
Nicholas answered, “Nothing seemed odd, nothing that I can recall seemed any
different than normal.” His father “never” said anything about being depressed or
wanting to end his life. Nicholas knew that his father “sought the services of a
wellness counselor about a week before he passed away.”
Asked on cross-examination if he was aware that his father took the
anti-anxiety and antidepressant medications Wellbutrin, Alprazolam, and Prozac
“over the course of the past several years,” Nicholas answered, “At the time I was not
aware of that.” Asked if he knew his father had been diagnosed with situational
anxiety and depression, Nicholas said, “I did not know that * * * That’s news to me.”
Margaret Costaras (“Margaret”) testified that she has a “very close”
relationship with her family and had a “fantastic” relationship with her father
George before he passed. Asked if she noticed any changes in her father’s behavior
prior to his death, Margaret answered as follows: “I did not notice any changes in
those behaviors. We got together quite frequently because it was the holidays,
including my birthday. He did vocalize to needing a nap during Christmas, that he
wasn’t sleeping through the night, so he seemed a little quieter because he was tired,
but nothing drastically different from how long I have known him.” Asked, “in the
weeks to days leading up to his death, did he ever tell you he was depressed or sad,”
Margaret answered, “No, he never used that word.”
Margaret testified that she did not know that her father had been
diagnosed with anxiety and depression or that he was on medication for these
conditions. In the early morning hours of January 14, 2020, Margaret received a
call from her mother, who whispered into the phone, “Come now.” When she
arrived at her parents’ house, the police were there and an officer told her that her
father was dead. According to Margaret, she said, “I don’t understand.” One of the
police officers told her that her father “jumped from a bridge.” Margaret testified
that, at that time, she “had no reason to disbelieve the police.” Asked if her father
“ever [made] any statements that would give you alarm that he may try to harm
himself,” Margaret answered, “No, never.”
Margaret testified that, a few days after her father’s death, she “was
very concerned [about] the area that [he] was last in. * * * I am very aware of the
violent crimes that were occurring.” She and her family called one of the detectives
and expressed their concerns. “[H]is response to us was that the ME’s Office had
closed the case and that his hands were tied and we had to pursue it further with
them and to inquire with them about our concerns.”
Paul Baeppler (“Baeppler”) testified that he is a licensed private
investigator and a lieutenant with the Cleveland Division of Police. The Costaras
family hired him to “take a look at the suicide. Alleged suicide.” He has been
involved in “well over a hundred” suicide investigations in his career. As part of the
investigation in the case at hand, Baeppler reviewed the police report, including a
diagram or drawing of the scene, the Medical Examiner investigator’s report, and
George’s toxicology report from the Medical Examiner. He also went to the scene,
interviewed the detective, and interviewed Janice.
Baeppler testified about what he believed should have been, but was
not, looked into regarding this investigation. According to Baeppler, he would have
searched for “possible surveillance video cameras in the area that may have had a
line of sight either directly or indirectly of where the incident happened * * *.”
Baeppler clarified that he did not have the “subpoena power” to investigate whether
any cameras “were pointed and in what direction, if they were operational, what the
zoom capabilities of them were.” Baeppler identified several different cameras in
the area that may have captured “activity that happened on the bridge” that night.
Additionally, Baeppler testified that it would have been “potentially”
valuable for the police to contact the “motorist who called the Fairview Police
Department to report an inoperable vehicle on the bridge” that night. “It would be
one of those leads or clues that I think that I would want my officers or myself to
follow-up on, follow it up to its ultimate conclusion, whatever it could be. It may
lead to something, it may not.”
Baeppler also opined that he would have done “forensic investigation
or network investigation” on Dr. Costaras’s cell phone, home computer, and work
computer “to see if he had been having communications with any persons * * * in
the time period * * * before this. You would want to know if anybody had made any
threats to him.” He also would have been “interested in any kind of searches [Dr.
Costaras] may have done on the internet * * *.” According to Baeppler, there might
have been information on Dr. Costaras’s phone regarding “if he was in distress
* * *[,] if he was having personal problems, marital problems, * * * if he was having
legal problems, financial problems.”
Baeppler testified in summary as follows: “From what I know and
from what my experience is as a police officer, I think that there were a few steps
that could have possibly been missed. * * * I don’t think that they ran down every
lead to its ultimate conclusion.” Baeppler testified that it was “my guess or my
opinion” that the police assumed it was a suicide from the beginning.
On cross-examination, Baeppler testified that he did not conduct a
forensic analysis of any of Dr. Costaras’s electronic devices. He informed the
Costaras family that these options were available, but “it wasn’t something that they
wanted investigated.” Baeppler further testified that he did not know if the video
cameras he identified in the area were there on January 14, 2020, he did not inquire
whether any of the cameras were operational, and he did not request any footage
from that night.
Baeppler testified that he had no evidence that Dr. Costaras’s death
involved “foul play,” that it was a homicide or accident, or that George died of natural
causes. Asked if he had “any evidence that suggested any other manner of death
other than suicide,” Baeppler answered as follows: “No, I don’t have any direct
evidence that there was anything other than that. But I do believe that an
investigator has an obligation to rule those other issues out or the fact that this
wasn’t staged in some way. I think that that would be part of — a lot of the part of
the investigation.”
After Janice rested her case, the state moved for dismissal under
Civ.R. 41(B)(2), arguing that she did not provide “the preponderance of evidence she
needs to provide competent, credible evidence that the law requires in order to
overturn the medical examiner’s ruling.” In granting this motion, the court found
that “speculation as to what could have been done in the law enforcement
investigation does not rise to the burden of proof required to rebut the presumption
of the validity of a coroner’s report.”
IV. Law and Analysis
A. R.C. 313.19 Coroner’s Verdict
R.C. 313.19, which is entitled “Coroner’s verdict the legally accepted
cause of death,” states as follows:
The cause of death and the manner and mode in which the death
occurred, as delivered by the coroner and incorporated in the coroner’s
verdict and in the death certificate filed with the division of vital
statistics, shall be the legally accepted manner and mode in which such
death occurred, and the legally accepted cause of death, unless the
court of common pleas of the county in which the death occurred, after
a hearing, directs the coroner to change his decision as to such cause
and manner and mode of death.
In Vargo v. Travelers Ins. Co., 34 Ohio St.3d 27, 30, 516 N.E.2d 226
(1987), the Ohio Supreme Court held that “the coroner’s factual determinations
concerning the manner, mode and cause of the decedent’s death, as expressed in the
coroner’s report and death certificate, create a non-binding, rebuttable presumption
concerning such facts in the absence of competent, credible evidence to the
contrary.”
B. Civ.R. 41(B)(2) Dismissal
Civ.R. 41(B)(2) governs involuntary dismissals in nonjury actions,
and states, in part, as follows:
After the plaintiff, in an action tried by the court without a jury, has
completed the presentation of the plaintiff’s evidence, the defendant,
without waiving the right to offer evidence in the event the motion is
not granted, may move for a dismissal on the ground that upon the facts
and law the plaintiff has shown no right to relief.
C. Standard of Review
This court has recently set forth the trial court’s role in ruling on a
Civ.R. 41(B)(2) motion to dismiss:
“to weigh the evidence, resolve any conflicts therein, and render
judgment for the defendant if the plaintiff has shown no right to relief.”
* * * Under Civ.R. 41(B)(2), the trial court does not view the evidence
in the light move favorable to the plaintiff. * * * The trial court’s only
consideration in ruling on a motion for involuntary dismissal is
“‘whether [the] plaintiff has made out [her] case by a preponderance of
the evidence.’”
Holliday v. Calanni Enters., 2021-Ohio-2266, 175 N.E.3d 663 ¶ 18 (8th Dist.),
quoting Bank One, Dayton, N.A. v. Doughman, 59 Ohio App.3d 60, 63, fn. 4, 571
N.E.2d 442 (1st Dist.1988); and Pacher v. Invisible Fence of Dayton, 154 Ohio
App.3d 744, 2003-Ohio-5333, 798 N.E.2d 1121 ¶ 29 (2d Dist.), quoting L.W.
Shoemaker, M.D., Inc. v. Connor, 81 Ohio App.3d 748, 752, 612 N.E.2d 369 (10th
Dist.1992).
The Holliday Court further held that a “reviewing court may set aside
a trial court’s decision under Civ.R. 41(B)(2) ‘only if it is erroneous as a matter of law
or against the manifest weight of the evidence.’” Id. at ¶ 19, quoting Osborne, Inc.
v. H&R Purchasing, Inc., 11th Dist. Lake No. 2003-L-051, 2004-Ohio-3503, ¶ 9.
D. Analysis
1. Presumption Against Suicide
In Janice’s first assignment of error, she argues that the trial court
“erred by finding that the presumption against suicide is inapplicable.”
“Ohio has recognized the legal presumption that in the absence of
sufficient evidence to the contrary, a person is presumed not to have taken his own
life.” Evans v. Natl. Life & Accident Ins. Co., 22 Ohio St.3d 87, 488 N.E.3d 1247,
1249 (1986). See also Shepherd v. Midland Mut. Life Ins. Co., 152 Ohio St. 6, 15, 87
N.E.2d 156 (1949) (“[W]here it is shown that death resulted from bodily injury
caused by violent and external means without a showing as to how the injury was in
fact sustained, there is a presumption that death did not result from suicide, self-
infliction of injury, criminal assault of another * * *.”).
Ohio courts have held that this presumption is rebuttable and
“disappears or is extinguished upon the production of substantial evidence to the
contrary to counterbalance it.” Mohn v. Ashland Cty. Chief Med. Examiner, 5th
Dist. Ashland No. 14-COA-031, 2015-Ohio-1985, ¶ 31.
Upon review, we find no error in the court’s handling of the
presumption against suicide. Here, the Medical Examiner found, after its
investigation, that the manner of death was suicide. Under R.C. 313.19, the
coroner’s finding “shall be the legally accepted manner and mode in which such
death occurred * * *.” As discussed in our analysis of Janice’s fourth assignment of
error, Janice did not present competent and credible evidence to rebut the
presumption that the Medical Examiner’s verdict is the legally accepted cause of
death. All evidence pointed toward the conclusion that Dr. Costaras jumped from
the bridge. His car was parked on the bridge, there was no evidence of foul play, and
he was found on the ground below the bridge.
There is an absence of “competent, credible evidence” to contradict
the Medical Examiner’s findings. Accordingly, we overrule Janice’s first assignment
of error.
2. Medical Expert
In Janice’s third assignment of error, she argues that the trial court
erred “by finding that [she] needed a medical expert to present competent, credible
evidence to rebut the coroner’s report.”
Our review of the trial court’s findings of facts and conclusions of law
shows that it did not make a finding that Janice “needed a medical expert” to rebut
the Medical Examiner’s report. Rather, the trial court stated the following:
Plaintiff cannot meet her burden of proof by simply arguing that
Defendants should have pursued additional avenues of investigation
regarding the manner of death. Plaintiff failed to provide any credible
evidence at Trial that would support any other manner of death ruling.
Plaintiff did not present a medical expert to rebut the Medical
Examiner’s verdict, thus failing to present competent, credible
evidence to the contrary, that the coroner’s opinion was inaccurate.
The Ohio Supreme Court has held that a “coroner’s verdict as to the
cause of death and the manner and mode in which the death occurred is entitled to
much weight.” State v. Manago, 38 Ohio St.2d 223, 227, 313 N.E.2d 10 (1974),
citing R.C. 313.19. Ohio’s highest court has further held that the “coroner is a
medical expert rendering an expert opinion on a medical question. Therefore, to
rebut the coroner’s determination, as expressed in the coroner’s report and the
death certificate, competent, credible evidence must be presented.” Vargo, 34 Ohio
St.3d at 30, 516 N.E.2d 226.
Accordingly, Janice’s third assignment of error is overruled.
3. Sufficiency and Manifest Weight of the Evidence
Janice’s second and fourth assignments of error will be discussed
together. In Janice’s second assignment of error, she argues that the trial court
“erred in sustaining [the Medical Examiner’s] motion for a directed verdict1 at the
close of [her] case because there was sufficient evidence offered by [her] to allow
that reasonable minds could come to more than one conclusion on the
determinative issue.”
In Janice’s fourth and final assignment of error, she argues that the
trial court’s “refusal to direct the coroner to change his decision as to the mode of
death from suicide to undetermined [is] against the manifest weight of the
evidence.”
A manifest weight of the evidence challenge “addresses the evidence’s
effect of inducing belief. * * * In other words, a reviewing court asks whose evidence
is more persuasive — the state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the
evidence, the appellate court * * * disagrees with the factfinder’s resolution of the
conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 54
1 We note that there was no directed verdict in the case at hand, as suggested in
Janice’s second assignment of error. Here, the court granted the Medical Examiner’s
Civ.R. 41(B)(2) motion for dismissal, which concerns the trial court’s weighing the
evidence.
(1997). Reversing a conviction under a manifest weight theory “should be exercised
only in the exceptional case in which the evidence weighs heavily against the
conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
The Ohio Supreme Court has held that the manifest weight of the
evidence standard of review “set forth in Thompkins also applies in civil cases.”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17
(“neither the constitution nor statutes nor rules of procedure treat civil cases
differently from criminal cases with regard to appellate review on the issues of
sufficiency and manifest weight”).
Upon review, we find that Janice has not rebutted the presumption
that the Medical Examiner’s determinations are correct with competent, credible
evidence to the contrary. We agree with the trial court that Janice did not “meet her
burden of proof by simply arguing that [the Medical Examiner] should have pursued
additional avenues of investigation regarding the manner of death.”
“Circumstantial evidence and direct evidence inherently possess the
same probative value.” Brook Park v. Gannon, 2019-Ohio-2224, 137 N.E.3d 701,
¶ 25 (8th Dist.). “Circumstantial evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than direct evidence.” Michalic v. Cleveland
Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
Janice’s evidence is consistent with the determination that the
manner of Dr. Costaras’s death was suicide. Although there is no direct evidence of
suicide, such as a note or a witness, circumstantial evidence of suicide was presented
at trial. For example, evidence of Dr. Costaras’s mental health, recent weight loss
and disinterest in exercise, and trouble sleeping are indicative of depression.
Furthermore, his car was found at the top of the bridge, and he was found on the
ground below the bridge. There was no evidence of foul play. As such, this is not
the exceptional case in which the evidence weighs heavily against the trial court’s
judgment.
Accordingly, Janice’s second and fourth assignments of error are
overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
LISA B. FORBES, JUDGE
ANITA LASTER MAYS, P.J., and
EMANUELLA D. GROVES, J., CONCUR | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483032/ | City of Warwick Mun. Empls. Pension Fund v Restaurant Brands Intl. Inc. (2022 NY Slip Op 06315)
City of Warwick Mun. Empls. Pension Fund v Restaurant Brands Intl. Inc.
2022 NY Slip Op 06315
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Manzanet-Daniels, J.P., Mazzarelli, Moulton, Kennedy, Pitt, JJ.
Index No. 655686/20 Appeal No. 16341 Case No. 2022-02336
[*1]City of Warwick Municipal Employees Pension Fund, Plaintiff-Respondent,
vRestaurant Brands International Inc., et al., Defendants-Appellants.
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Audra J. Soloway of counsel), for appellants.
Labaton Sucharow LLP, New York (Alfred L. Fatale III of counsel), for respondent.
Order, Supreme Court, New York County (Andrew S. Borrok, J.), entered May 2, 2022, which denied defendants' motion to dismiss the amended complaint alleging violations of sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (15 USC §§ 77k; 77l[a][2]; 77o), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint. Plaintiff, a shareholder of defendant Restaurant Brands International, Inc. (RBI), commenced this putative securities class action for violations of sections 11, 12(a)(2), and 15 of the Securities Act of 1933. RBI is the sole general partner of Restaurant Brands International Limited Partnership, which is the parent of the companies that own and operate the chains Tim Hortons, Burger King and Popeyes. The other defendants are RBI executives and board members, RBI shareholders 3G Capital Partners, Ltd. and 3G Restaurant Brands Holdings LP, and the underwriter Morgan Stanley & Co. LLC.
In its complaint, plaintiff alleges that it was induced to purchase RBI stock in 2019 secondary offerings based on an RBI registration statement that contained materially false or misleading statements.
The RBI registration statement, which incorporates by reference an earlier filed 10-K, includes the following statements:
"We believe we have created a financially strong company built upon a foundation of three thriving, independent brands with significant global growth potential."
"New product development is a key driver of the long-term success of our brands. We believe the development of new products can drive traffic by expanding our customer base."
"We face intense competition in our markets, which could negatively impact our
business. . . Our ability to compete will depend on the success of our plans to
improve existing products, to develop and roll-out new products, [and] to
effectively respond to consumer preferences."
Plaintiff's theory of the case centers on two long-term growth initiatives for Tim Hortons: the "Winning Together" plan and the loyalty program "Tims Rewards." The initiatives were not disclosed in the registration statement or the 10-K, but they were disclosed in other public communications. Plaintiff maintains that the registration statement became misleading by omission because RBI failed to disclose that Tim Hortons' sales had not grown and were negatively impacted by the two initiatives, as evidenced by RBI's announcement of a 1.4% decline in Tim Hortons' "same-store sales" for its third quarter as compared to the same quarter the previous year.
Contrary to Supreme Court's conclusion, the statements were nonactionable immaterial puffery and/or nonactionable opinion (see Matter of Sundial Growers, Inc. Sec. Litig., 191 AD3d 543, 544 [1st Dept 2021] [statements that the defendant produced "high quality" and "premium" cannabis were nonactionable puffery or nonactionable opinion]; Freedman v Value Health, Inc., 34 Fed Appx 408, [*2]411 [2d Cir 2002] [description of a business as "thriving" was "at worst non-actionable puffery"]; In re Nevsun Resources Ltd., 2013 WL 6017402, *9-10, 2013 US Dist LEXIS 162048, *24-26 [SD NY Sept. 27, 2013, No. 12-Civ-1845] [description of a business as "well positioned" for "growth" was puffery]).
The statements did not become misleading by omission as a result of a failure to disclose a slight decline in "same-store sales" for a single quarter's sales for one of RPI's three brands (see Sundial Growers, 191 AD3d at 543 [offering materials adequately stated potential risks and were not rendered misleading for failing to mention a product returns constituting 10% of the defendant's sales for a single quarter]; Jianming Lyu v Ruhnn Holdings Ltd., 189 AD3d 441, 441 [1st Dept 2020], lv denied 36 NY3d 912 [2021] [omission of data from the period immediately preceding the issuance of the final prospectus showing that there had already been a reduction in the full service segment of the company was not misleading]; Stadnick v Vivint Solar, Inc., 861 F3d 31, 38-39 [2d Cir 2017] [omission relating to income and earnings per share for a third quarter was not misleading]).
Unlike Erie County Employees' Retirement Sys. v NN, Inc. (205 AD3d 644, 645 [1st Dept 2022]), where the defendant failed to disclose an existing "sharp decline" of its mobile solutions business in China, here early real time data concerning Tim Hortons' decline in sales did not constitute knowledge of a precipitous loss of a major revenue stream requiring disclosure.
The complaint also fails to state a cause of action for violations of Items 105 and 303 of SEC Regulation S-K. A limited number of months of sales data does not constitute a known material trend that existed at the time of the offerings, and RBI's risk disclosures foreclose any claimed violation of Items 105 and 303 (see e.g. Kohl v Loma Negra Cia. Indus. Argentina S.A., 195 AD3d 414, 417 [1st Dept 2021]). Absent a violation of sections 11 or 12, the claims against the individuals (under section 15) must also be dismissed (see Lyu, 189 AD3d at 442).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483039/ | [Cite as Cobia v. Goode, 2022-Ohio-4002.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
RAY COBIA :
:
Petitioner-Appellant : Appellate Case No. 29557
:
v. : Trial Court Case No. 2022-CV-02746
:
SAMUEL GOODE : (Civil Appeal from
: Common Pleas Court)
Respondent-Appellee :
:
...........
OPINION
Rendered on the 10th day of November, 2022.
...........
RAY COBIA, Atty. Reg. No. 0069384, 4746 Germantown Pike, Dayton, Ohio 45417
Petitioner-Appellant, Pro Se
SAMUEL GOODE, 435 Anna Street, Dayton, Ohio 45420
Respondent-Appellee, Pro Se
.............
TUCKER, P.J.
-2-
{¶ 1} Petitioner-appellant Ray Cobia appeals from the judgment of the
Montgomery County Court of Common Pleas denying his petition for a civil stalking
protection order. For the reasons set forth below, we affirm.
I. Facts and Procedural Background
{¶ 2} In June 2022, Cobia filed a petition seeking a civil stalking protection order
against Samuel Goode. In the petition, Cobia made the following statement in support
of his request for a protection order, which we have set forth as written:
Jan 2022 threats made to us because wife would not allow Nerissa Elijah
(my wife mother) to claim her on taxes Samuel sent a picture stating he was
going to post pictures around about me being a predetor/June 2022 pictures
was posted as indicated in the text.
{¶ 3} A full hearing was conducted on July 19, 2022, after which the magistrate
denied the petition. Cobia did not file any objections, and the trial court adopted the
magistrate’s decision.
{¶ 4} Cobia appeals.
II. Analysis
{¶ 5} We begin by noting that Cobia has failed to comply with numerous provisions
of App.R. 16 regarding appellate briefs. Importantly, he fails to set forth “a statement of
the assignments of error presented for review, with reference to the place in the record
-3-
where each error is reflected.” App.R. 16(A)(3). Further, we cannot discern the basis
for this appeal based upon the content of the document submitted by Cobia as his
appellate brief. Because the document arguably contests the decision to deny the
petition for a protection order, we will construe it as presenting a claim that the decision
was not supported by the evidence.
{¶ 6} When assessing whether a civil stalking protection order should have been
issued, the reviewing court must determine whether the petitioner proved by a
preponderance of the evidence that the respondent engaged in conduct constituting
menacing by stalking. Lane v. Brewster, 12th Dist. Clermont No. CA2011-08-060,
2012 Ohio-1290, ¶ 50; Olenik v. Huff, 5th Dist. Ashland No. 02-COA-058, 2003-Ohio-
4621, ¶ 16-18. Whether the evidence presented is legally sufficient to sustain a verdict
is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 7} Menacing by stalking is defined as “engaging in a pattern of conduct” that
knowingly “cause[s] another to believe that the offender will cause serious physical harm
to the other person or cause mental distress to the other person.” R.C. 2903.211(A)(1).
To establish a pattern of conduct, there only need to be two or more actions closely
related in time. R.C. 2903.211(D)(1).
{¶ 8} As noted, the hearing in this case was conducted by a magistrate, who
denied the protection order. The magistrate concluded that the facts did not demonstrate
a pattern of conduct. Cobia failed to file objections to this decision as required by Civ.R.
53. That rule states, in pertinent part:
Except for a claim of plain error, a party shall not assign as error on appeal
-4-
the court's adoption of any factual finding or legal conclusion, whether or
not specifically designated as a finding of fact or conclusion of law under
Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).
Civ.R. 53(D)(3)(b)(iv).
{¶ 9} In accordance with this rule, we have refused to consider issues that parties
fail to raise in objections to a magistrate's decision unless plain error is demonstrated.
See Maier v. Shields, 2d Dist. Miami No. 2007-CA-21, 2008-Ohio-3874, ¶ 50. Because
the plain error doctrine is not favored in civil appeals, it “may be applied only in the
extremely rare case involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity, or
public reputation of the judicial process, thereby challenging the legitimacy of the
underlying judicial process itself.” (Citations omitted.) Goldfuss v. Davidson, 79 Ohio
St.3d 116, 679 N.E.2d 1099 (1997), syllabus.
{¶ 10} Cobia has not shown the existence of any exceptional circumstances in the
case before us. Furthermore, we cannot conclude that the magistrate’s decision was not
supported by the evidence. Indeed, we are unable to review the propriety of the
magistrate’s findings and the trial court’s adoption of those findings because Cobia has
not filed a transcript of the evidentiary hearing. Absent a transcript, we must presume
regularity below. Frodyma v. Frodyma, 2d Dist. Greene No. 2013-CA-40, 2014-Ohio-
953, ¶ 22. Therefore, we accept the magistrate's factual findings as having been
established, and we agree that the issuance of a civil protection order was not warranted.
-5-
{¶ 11} Cobia’s assignment of error is overruled.
III. Conclusion
{¶ 12} The assignment of error being overruled, the judgment of the trial court is
affirmed.
.............
DONOVAN, J. and LEWIS, J., concur.
Copies sent to:
Ray Cobia
Samuel Goode
Hon. Richard S. Skelton | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483029/ | Georgia Malone & Co., Inc. v E&M Assoc. (2022 NY Slip Op 06320)
Georgia Malone & Co., Inc. v E&M Assoc.
2022 NY Slip Op 06320
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Kennedy, Mendez, JJ.
Index No. 150660/14 Appeal No. 16628 Case No. 2021-04026
[*1]Georgia Malone & Company, Inc., Plaintiff-Respondent-Appellant,
vE&M Associates, et al., Defendants-Appellants-Respondents.
Sadis & Goldberg, LLP, New York (Douglas R. Hirsch of counsel), for E & M Associates, Irving Langer, Scott Katz, Chaya Lederman, Aryeh Ginzberg, Lia MM LLC, Zaidys Manhattanville LLC, LL Manhattanville LLC, AZG Manhattanville LLC, Manhattanville Holdings LLC, AZG II Manhattanville LLC, Manhattanville Member II LLC, Manhattanville Member LLC, Manhattanville Mezz LLC, 120-126 West 112 LLC, 138-140 West 112 LLC, 131-133 West 112 LLC, 302 West 112 LLC, 306-310 West 112 LLC, 143 West 111 LLC, 146 West 111 LLC, 303-305 West 111 LLC, 301 West 111-2051 8 LLC, 2059 8 LLC, 311 West 111 LLC, 1829-1835 7 LLC, 2010 7-201 West 120 LLC, 2099 8-301 West 113 LLC, 306-310 West 112 LLC, 143 West 111 LLC, 146 West 111 LLC, 303-305 West 111 LLC, 301 West 111-2051 8 LLC, 2059 8 LLC, 311 West 111 LLC, 1829-1835 7 LLC, 2010 7-201 West 120 LLC, 2099 8-301 West 113 LLC, 345 Manhattan Holdings LLC, 17-25 St Nicholas LLC, 6 Morningside LLC, 65-67 Lenox LLC, 105-109 West 113 LLC, 113-115 West 113 LLC, 140 West 113 LLC, 305-309 West 113 LLC, 300 West 114-2107 8 LLC, 350 West 115 LLC, 117-129 West 116 LLC, 133-135 West 116 LLC, 141 West 116 LLC, 230 West 116 LLC, 153-157 Lenox Holdings LLC, 243 West 116 LLC, 239-241 West 115 LLC, 247-253 West 116 LLC, 255-259 West 116 LLC, 337 West 138 Holdings LLC, 161-171 Morningside LLC, 373 West 126 LLC, 35 Morningside Holdings LLC, 370-372 West 127 LLC, 376 West 127 LLC, 510 West 146 LLC, 617 West 143 Holdings LLC, 164-172 West 141 Holdings LLC, 638 West 160 Holdings LLC, 655 West 160 Holdings LLC, 145-153 Edgecombe Holdings LLC, 610-620 West 141 Holdings LLC, 557-561 West 149 Holdings LLC, 1728-1730 Amsterdam LLC, 707 St. Nicholas LLC and 770 St. Nicholas LLC, AZG Manhattanville LLC, Manhattanville Holdings LLC, appellants-respondents.
Tatko Law Firm, PLLC, New York (Travis Tatko of counsel), for Michael Langer, appellant-respondent.
Claude Castro, New York, for respondent-appellant.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered on or about October 4, 2021, which, insofar as appealed from, denied plaintiff's motion for summary judgment dismissing defendants' first, second, and third counterclaims, and thirteenth affirmative defense, and directed that plaintiff is judicially estopped from raising certain arguments about the relevant agreements and transaction, and denied defendants' motion for partial summary judgment on their first, second, and third counterclaims, and for sanctions, unanimously modified, on the law, to grant dismissal of the third counterclaim, for fraud upon the court, and otherwise affirmed, without costs.
Nonparty Baruch Singer, owner of 87 buildings in Upper Manhattan, who was facing foreclosure on those properties upon the maturation of certain senior mortgages, engaged plaintiff Malone, pursuant to a series of agreements entered into May 2013, to broker a termination/unwind of a purchase option held by one of Singer's lenders. On November 14, 2013, the unwind transaction was completed following, and as a result of, the closing of a sale of the properties to defendant real estate syndicate, and, in connection with that, Singer paid plaintiff a $2.45 million broker's commission.
In this action, plaintiff Malone, who in August 2012 entered into an agreement with defendant E&M Associates pursuant to which E&M would pay a broker's commission in connection with its purchase of the Singer properties, seeks to collect a commission in the amount of $3.5 million. Defendants have asserted a first counterclaim alleging that the $2.45 million commission Singer paid plaintiff constituted, in part, a broker's commission for Malone's brokerage work on behalf of Singer in selling the properties, and by acting as a dual agent representing both defendants as buyers and Singer as seller in connection with the sale of the properties, Malone breached its fiduciary duty to defendants and forfeited its right to be paid the commission the buyers had agreed to pay. Defendants' second counterclaim alleged that plaintiff fraudulently induced defendants to enter into the E&M commission agreement by failing to disclose that it was working as broker for the owner on the sale of the properties. Furthermore, defendants' third counterclaim, for fraud upon the court, alleged that contrary to statements Malone's principal made in a separate action (Galanter v Georgia Malone, et al, Index No 650734/2014), the $2.45 million commission Singer paid plaintiff was exclusively for its work negotiating the unwind transaction and not based in any part on work performed as Singer's broker on the sale of the properties, which Malone denies performing.
Plaintiff argues it is entitled to summary judgment dismissing the counterclaims because the plain language of the relevant agreements, as confirmed by the record evidence, establishes that plaintiff was paid a commission by Singer for work negotiating the unwind transaction [*2]and that it did not act as Singer's broker on the related sale of the properties and was not paid any commission as such. Defendants argue that the agreements are ambiguous and that the record, including the relevant statements previously made by Malone that she is judicially estopped from contradicting, establishes, as a matter of law, that she acted as Singer's broker and was paid a commission as such. We find that even if plaintiff is judicially estopped from contradicting Malone's prior statement that the unwind and the sale were a single transaction, her prior statements, including that one, did not, in fact, constitute a clear admission that the commission paid by Singer was based, in any part, on work plaintiff performed as his broker on the sale of the properties. Unresolved issues of fact exist with respect to whether plaintiff, in connection with the property sale that allowed for the completion of the unwind transaction, was ever retained by Singer to act, or otherwise performed actions that resulted in acting, as broker on the sale, and as to whether the commission paid to plaintiff by Singer was paid exclusively for plaintiff's work in negotiating the unwind agreements and not based on any brokerage work performed in connection with the related sale.
Accordingly, the court properly declined to dismiss or grant summary judgment on the first and second counterclaims, and its judicial estoppel ruling does not preclude plaintiff from arguing that the commission agreement with Singer and the commission paid by Singer was specific to plaintiff's negotiating the unwind agreements and transactions, and not based on any brokerage work performed in connection with the sale that completed the unwind. However, defendants' third counterclaim, for fraud upon the court, should have been dismissed, as the statements made by plaintiff in this action that defendants allege are in complete contradiction with sworn testimony in the Galanter action are not perjurious, intentionally false, or completely contradictory, and do not provide a prima facie basis for this counterclaim (see CDR Creances S.A.S. v Cohen, 23 NY3d 307 [2014]).
We have considered the remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483031/ | Duque v 50 Clinton Prop. Owner LLC (2022 NY Slip Op 06317)
Duque v 50 Clinton Prop. Owner LLC
2022 NY Slip Op 06317
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Index No. 150450/18 Appeal No. 16618 Case No. 2021-04733
[*1]Maria Duque, Plaintiff-Appellant,
v50 Clinton Property Owner LLC, Defendant-Respondent, Flintlock Construction Services, LLC, Defendant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Gregory Freedman of counsel), for appellant.
Gallo Vitucci Klar LLP, New York (Shanna Torgerson of counsel), for respondent.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about December 1, 2021, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of Labor Law § 240(1) and granted defendant's motion for summary judgment dismissing that claim, unanimously affirmed, without costs.
Plaintiff was employed by a cleaning company, hired by defendant owner to perform cleaning of newly constructed apartments before they were turned over to tenants. Plaintiff played no role in the construction. On the day of the accident, she was cleaning a refrigerator that had been left on its delivery dolly when it fell upon her, causing her injury. In applying the factors set forth in Soto v J. Crew Inc. (21 NY3d 562, 568-569 [2013]), the motion court properly concluded that plaintiff was not engaging in "cleaning" within the meaning of Labor Law § 240 (1) at the time of her accident (see also Morales v Avalon Bay Communities, Inc., 140 AD3d 533 [1st Dept 2016], lv denied 28 NY3d 907 [2016]).THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483043/ | [Cite as State v. Cervantes, 2022-Ohio-4018.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-22-004
Appellee Trial Court No. 2020CR0375
v.
Raymond Cervantes DECISION AND JUDGMENT
Appellant Decided: November 10, 2022
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Raymond Cervantes, appeals the January 14, 2022
judgment of the Wood County Court of Common Pleas denying his motion to dismiss.
For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} Raymond Cervantes was indicted in Wood County on the following charges:
(1) tampering with evidence, a violation of R.C. 2921.12(A)(1) and (B), a third-degree
felony; (2) escape, a violation of R.C. 2921.34(A)(1) and (C)(2)(b), a third-degree felony;
(3) attempted murder, a violation of R.C. 2923.02(A), 2903.02(D), and 2929.02(B), a
first-degree felony; (4) felonious assault, a violation of R.C. 2903.11(A)(1) and (D)(1)(a);
a second-degree felony; (5) felonious assault, a violation of R.C. 2903.11(A)(2) and
(D)(1)(a); a second-degree felony; (6) disrupting public services, a violation of R.C.
2909.04(A)(3) and (C), a fourth-degree felony; and (7) kidnapping, a violation of R.C.
2905.01(A)(3) and (C)(1), a first-degree felony. Cervantes had already been tried and
convicted in Henry County of felonious assault and attempted murder. The Wood
County charges and the Henry County convictions arose from the following events, as
summarized by the Third District in State v. Cervantes, 3d Dist. Henry No. 7-21-06,
2022-Ohio-2536, ¶ 2-4:
On August 16, 2020, D.L., Cervantes’s estranged wife, drove to
Cervantes’s Wood County residence at Cervantes’s invitation to collect
money for damage he previously inflicted on D.L.’s property and residence.
When D.L. arrived at the residence, Cervantes gave her a sum of money
and then requested that she follow him to the garage where the remainder of
the money was supposedly located. According to the victim, upon entering
2.
the garage, Cervantes attacked her by punching her, hitting her in the head
with a c-clamp, and strangling her. At some point during the struggle,
D.L., who was using a knife to protect herself, stabbed Cervantes in the leg,
broke free from his grip, fled the garage, and entered her vehicle. However,
Cervantes forced himself into the driver side of the vehicle and left the
residence with D.L. in the passenger seat.
D.L. testified that, as Cervantes was driving out of the driveway, his
sister came out of the residence. D.L. made eye contact with Cervantes’s
sister in an effort to show her the injuries. Shortly thereafter, Cervantes’s
sister contacted law enforcement to report the incident. However, law
enforcement was unable to immediately locate Cervantes and D.L.
Cervantes drove D.L. to multiple locations along the Maumee River
before arriving at a remote location in Henry County where he strangled her
and repeatedly hit her on the head with a piece of driftwood. Eventually,
D.L. convinced Cervantes to take her to the hospital for medical treatment
by telling Cervantes that she would not disclose to the hospital staff who
caused her injuries. Shortly after D.L. arrived at the hospital, law
enforcement located and arrested Cervantes.1
1
Although not included in the Third District’s factual summary, there was evidence at
trial that Cervantes was on electronic monitoring and removed his ankle monitor, giving
3.
{¶ 3} Cervantes moved in Wood County to dismiss the kidnapping, felonious
assault, and attempted murder charges on double jeopardy grounds. In a judgment
journalized on January 14, 2022, the trial court denied Cervantes’s motion. In a nunc pro
tunc judgment journalized on January 18, 2022, the court ordered that there was no just
cause for delay. Cervantes appealed and assigns the following error for our review:
The trial court erred when it denied Mr. Cervantes[’s] motion to
dismiss the Kidnapping, Felonious Assault and Attempted Murder counts in
Wood County as those charges were barred by the Due process and Double
Jeopardy provisions of the Ohio and United States Constitutions.
II. Law and Analysis
{¶ 4} In his sole assignment of error, Cervantes challenges the trial court’s denial
of his motion to dismiss on double jeopardy grounds.2 He argues that because the events
at issue constituted a continuing course of conduct, the state could not separate them into
separate charges in separate jurisdictions—the charges needed to be brought together in
one county. He also claims that under Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180,
76 L.Ed. 306 (1932), Wood County is precluded from prosecuting him for felonious
rise to Counts 1 and 2 in the Wood County indictment, and he smashed D.L.’s phone so
she could not call for help, giving rise to Count 6 in the Wood County indictment.
2
See State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 26 (“We
hold that the denial of a motion to dismiss on double-jeopardy grounds is a final,
appealable order.”); State v. Hodges, 2018-Ohio-447, 105 N.E.3d 543, ¶ 13 (7th Dist.);
State v. Smith, 2018-Ohio-1756, 111 N.E.3d 752, ¶ 8 (8th Dist.).
4.
assault and attempted murder because the offenses are statutorily identical, and the
kidnapping charge is an allied offense of similar import for which he may not be
prosecuted.
A. Standard of Review
{¶ 5} The Double Jeopardy Clause of the Fifth Amendment to the U.S.
Constitution, applicable to the state through the Fourteenth Amendment, provides that no
person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. The Double
Jeopardy Clause protects against three abuses: “(1) ‘a second prosecution for the same
offense after acquittal,’ (2) ‘a second prosecution for the same offense after conviction,’
and (3) ‘multiple punishments for the same offense.’” Id., quoting North Carolina v.
Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other
grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).
Cervantes’s claims implicate the second, and arguably, the third abuses. Because his
claim involves a purely legal question, we review de novo the trial court’s judgment
denying his motion to dismiss the indictment on double-jeopardy grounds. State v.
Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 13.
{¶ 6} Section 10 of Article I of the Ohio Constitution fixes venue as the “county in
which the offense is alleged to have been committed.” Under Crim.R. 18(A), the venue
of a criminal case is to be determined by law. R.C. 2901.12(A) states, in pertinent part,
5.
that “[t]he trial of a criminal case in this state shall be held in a court having jurisdiction
of the subject matter, and * * * in the territory of which the offense or any element of the
offense was committed.” Under R.C. 2901.12(H), “[w]hen an offender, as part of a
course of criminal conduct, commits offenses in different jurisdictions, the offender may
be tried for all of those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred.” “The following is prima-facie evidence of a
course of criminal conduct”: “(1) The offenses involved the same victim * * *; (3) The
offenses were committed as part of the same transaction or chain of events * * *; (5) The
offenses involved the same or a similar modus operandi.” R.C. 2901.12(H)(1)-(5).
B. The Parties’ Positions
{¶ 7} Despite this language that an offender “may” (not “must”) be tried in one
jurisdiction where he commits offenses in different jurisdictions as part of a course of
criminal conduct, Cervantes maintains that “the State is most certainly prohibited from
prosecuting offenses that are part of a continuing course of conduct, ‘taking place in each
particular county by separate indictment and trial.’” Cervantes contends that under Sixth
District case law, prosecution may be pursued in two different counties “only for separate
and distinct acts committed on different dates.” State v. McFarland, 6th Dist. Erie No. E-
11-048, 2012-Ohio-1991, ¶ 10. He claims that the felonious assault and attempted
murder counts do not involve separate and distinct acts. Cervantes bases this claim on
6.
the Henry County prosecutor’s argument in response to his Crim.R. 29 motion, which the
Henry County Court denied.3
{¶ 8} In the Henry County trial, Cervantes moved for acquittal on the felonious
assault charge “without argument.” But with respect to the attempted murder charge, he
argued that the evidence showed an abandonment of his attempt to murder D.L. because
in Wood County, he stopped beating D.L., drove her to Henry County, began beating her
again, but then voluntarily stopped, even allowing D.L. to go to the hospital. The state
responded by stating that with respect to the felonious assault charge, there was evidence
that Cervantes beat D.L. with a c-clamp and a piece of wood. Concerning the attempted
murder charge, the state insisted that Cervantes strangling D.L. and beating her with a
piece of wood in Henry County—if successful—could have resulted in her death and his
intent to cause her death was demonstrated by his conduct and by comments that he made
indicating that she would not be going home, would not be able to leave, and would not
be seeing her children.
{¶ 9} Cervantes maintains that the Henry County prosecutor’s argument—and the
fact that she admitted into evidence the c-clamp used to beat D.L. in Wood County—is
contrary to the state’s claim that the acts were separate and distinct. He also emphasizes
that the Henry County court merged the felonious assault and attempted murder counts
3
The transcript of the Henry County trial was made part of the Wood County record on
April 19, 2022.
7.
for purposes of sentencing, and he points to questions posed by the Henry County jury
and responses provided to it by the court.
{¶ 10} Specifically, the jury asked the following questions: (1) “was there or will
there be a trial in Wood County or is it all just in Henry County,” and (2) “the c-clamp
was in Wood County, but do we take it into account for Henry County charges”? The
court responded, first, that “in your deliberations you are not to consider whether there
may or may not be a trial in another county.” Secondly, it responded that “you can
consider all the evidence you received in this trial in making your decision.” Cervantes
claims that because venue is not an element of the crime, conviction for a crime in one
county may be based on conduct that occurred in a different county where the conduct is
part of a continuing course of conduct—which is how he describes the conduct here—
even where the state does not use the phrase “continuing course of conduct.” He claims
that Cervantes is alleged to have attacked “the same victim” “in the same capacity” as
part of “the same chain of events” in “an interconnected manner” using the “same
allegedly abusive modus operandi” along his “line of travel.” As such, he claims, the
Wood County charges—including the kidnapping charge—cannot be tried separately
because they are barred by Double Jeopardy.
{¶ 11} Turning to Blockburger, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306,
Cervantes maintains that where the same act or transaction violates two distinct statutory
provisions, the test for determining whether there are two offenses or only one requires
8.
the court to consider whether each provision requires proof of a fact that the other does
not. He claims that the felonious assault and attempted murder charges in Wood County
are statutorily identical to those in Henry County, so a second prosecution is barred.
{¶ 12} Finally, Cervantes argues that the kidnapping charge was required to be
prosecuted in Henry County because it would merge into the felonious assault and
attempted murder convictions for purposes of sentencing because it was committed as
part of an “ongoing violent encounter” for which there was no separate animus and no
separately identifiable harm. He characterizes the kidnapping as only “incidental to the
alleged plan to seclude the alleged victim to facilitate the murder”—there was “no
discernible break in the alleged behavior.”
{¶ 13} In sum, Cervantes insists that (1) the events at issue constituted a
continuing course of conduct, and the state could not separate them into separate charges
to be prosecuted in separate jurisdictions; (2) under Blockburger, Wood County cannot
prosecute him for felonious assault and attempted murder because those offenses are
statutorily identical to the Henry County convictions; and (3) the kidnapping charge is an
allied offense of similar import.
{¶ 14} The state responds that separate jurisdictions may separately prosecute an
offender “where a course of criminal conduct transpired over multiple jurisdictions and
separate, distinct criminal acts are committed during the course of conduct.” State v.
Collins, 12th Dist. Clermont No. CA2007-01-010, 2007-Ohio-5392, ¶ 14. The state
9.
insists that under R.C. 2901.12(H), it could have prosecuted Cervantes in only one
jurisdiction, but it was not required to do so. It points out that OJI contains an instruction
that may be given where R.C. 2901.12(G) or (H) applies—see 2 OJI-CR 413.07—and
this instruction was not given in this case.
{¶ 15} Acknowledging that the c-clamp was discussed in the Henry County trial
and was admitted into evidence, the state explains that the jury was instructed that to find
Cervantes guilty, it needed to find that the offenses were committed in Henry County,
and it must be presumed that it followed those instructions. It maintains that the
questions the jury posed demonstrated its understanding that the c-clamp was used as a
weapon in Wood County—not in Henry County. It characterizes the evidence about the
c-clamp as proper Evid.R. 404(B) evidence of other crimes, wrongs, or acts. The state
insists that the felonious assault conviction in Henry County was premised on
Cervantes’s use of the driftwood, not the c-clamp.
{¶ 16} As to the Blockburger test, the state contends that the Henry County and
Wood County charges are factually different from one another, committed at different
times, in different places, and in different ways. It distinguishes McFarland, 6th Dist.
Erie No. E-11-048, 2012-Ohio-1991—cited by Cervantes—and emphasizes that the
holding in that case was specifically limited to its facts and further limited by another
case from our district, State v. Bolding, 6th Dist. Huron No. H-19-002, 2020-Ohio-514.
10.
{¶ 17} In McFarland, the defendant entered a no contest plea in Maumee
Municipal Court to charges of attempted disseminating matter harmful to juveniles and
attempted importuning. Erie County then attempted to prosecute him on six counts of
pandering obscenity involving a minor and six counts of pandering sexually oriented
matter involving a minor. We found that defendant had pled no contest in reliance on his
plea agreement in Maumee for crimes connected with his use of the computer to commit
sex crimes against minors—he had no notice that any other charges were lingering
connected to the use of his computer for child sex offenses. We determined that “[u]nder
the limited facts of this case, any successive prosecution for additional child sex crimes
related to the seizure of his computer, which could have been brought in the Lucas
County case but were not, frustrates the purpose and intent of the plea agreement and
sentencing in the Lucas County case and is unduly prejudicial to appellee.” Id. at ¶ 16.
{¶ 18} In Bolding, the defendant was prosecuted in Huron County after he sold
methamphetamine to a confidential informant during a controlled drug buy. Based upon
this drug transaction, police executed a search warrant at the defendant’s residence, at
which time additional drugs were discovered. That discovery led to additional charges in
Erie County. The trial court rejected defendant’s claim that the prosecution in Huron
County violated double jeopardy. We affirmed. We concluded that the Huron and Erie
County cases involved separate and distinct quantities of methamphetamines recovered
on separate dates. The state maintains that Bolding controls here because like the illegal
11.
drugs in Bolding, the deadly weapons used in Wood County and Henry County were
different.
C. Resolution of Cervantes’s Double Jeopardy Claim
{¶ 19} “The guarantees against double jeopardy set forth in the Fifth Amendment
to the United States Constitution, and Section 10, Article I of the Ohio Constitution, bar
additional punishment and successive prosecution for the same criminal offense.” State
v. Mayne, 1st Dist. Hamilton No. C-950765, 1996 WL 473283, *2 (Aug. 21, 1996).
Cervantes’s claim of double jeopardy rests on several incorrect assumptions, all of which
evidence his mistaken belief that he is being prosecuted for offenses of which he has
already been convicted.
{¶ 20} First, Cervantes assumes that the Wood County felonious assault and
attempted murder charges were based on the same conduct as the Henry County
convictions for felonious assault and attempted murder. They were not. Two distinct
assaults occurred. The first one occurred in Wood County when Cervantes beat D.L.
with a c-clamp and tried to strangle her. D.L. broke free and escaped to her vehicle. At
that point, the conduct giving rise to the Wood County felonious assault and attempted
murder charges was complete.
{¶ 21} The second assault occurred in Henry County when Cervantes again tried
to strangle D.L. and beat her with a piece of driftwood. The second assault was removed
in time from the first one, was committed in an entirely different location, and involved a
12.
completely different weapon. For this reason, Blockburger is inapplicable. Blockburger
considered whether a defendant may be charged with multiple offenses where a single act
violates more than one statutory provision. The court clarified: “where the same act or
transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at
304, 52 S.Ct. 180, 76 L.Ed. 306. This case does not involve one act that violates multiple
statutory provisions—it involves two acts that violate the same statutory provision and
form the basis for separate counts in separate jurisdictions. See State v. Wagerman, 12th
Dist. Warren No. CA2006-05-054, 2007-Ohio-2299, ¶ 32 (“The ‘course of conduct’ in
this case was the result of multiple criminal acts by appellant through multiple
jurisdictions which resulted in separate criminal charges. Appellant was not charged
twice for the same offense.”). Blockburger does not apply.
{¶ 22} This case is also different than other cases where multiple felonious assault
convictions involving a single victim merged for sentencing. For instance, in State v.
Lanier, 192 Ohio App.3d 762, 2011-Ohio-898, 950 N.E.2d 600 (1st Dist.), the defendant
repeatedly shot at the victim; after the victim yelled that he had been shot, the defendant
continued to fire shots until his gun jammed. The defendant was charged with one count
of attempted murder and two counts of felonious assault. The court concluded that the
three convictions should have merged for purposes of sentencing. It recognized that “‘a
13.
perpetrator’s discharge of gunshots in rapid succession either constitutes a single,
continuous act or is evidence of a single animus to harm the victim with some of the
attacker’s shots achieving his purpose and some striking wide of the mark.’” Id. at ¶ 21,
quoting State v. Jackson, 1st Dist. Hamilton No. C–090414, 2010-Ohio-4312, ¶ 25. The
court observed, in particular, that the defendant had not paused or reloaded the gun.
{¶ 23} The present case, while it may have been part of the same chain of events
that gave rise to the Henry County convictions, did not involve a “single, continuous act.”
One beating occurred with one weapon in one county, then, after a long car ride with
multiple stops along the road to the final location, another beating occurred with a
different weapon in a different county. The second assault was not merely a continuation
of the first assault. It was a new assault.
{¶ 24} Next, Cervantes assumes that the state was required to prosecute all
offenses arising from the August 16-17, 2020 incident at the same time in the same
jurisdiction. To the contrary, R.C. 2901.12(H) states that “[w]hen an offender, as part of
a course of criminal conduct, commits offenses in different jurisdictions, the offender
may be tried for all of those offenses in any jurisdiction in which one of those offenses or
any element of one of those offenses occurred.” (Emphasis added.) “May” is
permissive, not mandatory. See Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102,
271 N.E.2d 834 (1971), paragraph one of the syllabus (“In statutory construction, the
word ‘may’ shall be construed as permissive and the word ‘shall’ shall be construed as
14.
mandatory unless there appears a clear and unequivocal legislative intent that they
receive a construction other than their ordinary usage.”). Accordingly, the state could,
but was not required to, prosecute the offenses—committed in different jurisdictions as
part of the same chain of events—together. See also, Mayne, 1st Dist. Hamilton No. C-
950765, 1996 WL 473283, at *2 (“R.C. 2901.12(H) permits the state to bring all charges
arising from a course of criminal conduct in a single jurisdiction; nothing in the statute
requires that procedure.”).
{¶ 25} Finally, Cervantes assumes that the alleged kidnapping was not a separate
event, was merely “incidental to the alleged plan to seclude the alleged victim to facilitate
the murder,” was required to be prosecuted in Henry County, and would have merged
with the Henry County convictions.
{¶ 26} This court has recognized that with respect to merger of kidnapping
convictions, “[g]enerally speaking, the farther the movement or the longer the duration of
the restraint, the more likely it is that a kidnapping resulted in harm that is ‘separate and
identifiable’ from another offense.” State v. Dean, 2018-Ohio-1740, 112 N.E.3d 32, ¶ 63
(6th Dist.). In Dean, the defendant moved the victim several city blocks at gunpoint,
confined her for over an hour in a secretive location, and raped her. We found that this
evidence demonstrated that the kidnapping was committed separately and with separate
animus, and was not merely incidental to the rapes.
15.
{¶ 27} Here, after her initial assault in Wood County, D.L. tried to leave in her car,
but Cervantes got in and commandeered her vehicle. He drove her from place to place,
before selecting the spot in Henry County at which he would commit a second assault
and attempt at murdering her. During this car ride, D.L. begged to be set free so that she
could seek medical treatment. Also during this time, Cervantes spoke on the phone to the
father of D.L.’s children and told him he would be having sex with D.L. “one more
time.” The restraint of D.L.’s liberty lasted into the nighttime and caused fear and terror
separate from that which she experienced during the assaults. We reject Cervantes’s
position that the kidnapping was merely incidental to his assault of D.L. and that he could
not be separately convicted of—and sentenced for—kidnapping her. See also State v.
Freeman, 7th Dist. Mahoning No. 12 MA 112, 2014-Ohio-1013, ¶ 22 (finding separate
sentence for kidnapping lawful where defendant surprised his victim from behind, held
an object to her back, forced her into a car, restrained her within the car for over three
hours, and transported her across county lines against her will and in fear for her life).
{¶ 28} Accordingly, we find Cervantes’s sole assignment of error not well-taken.
III. Conclusion
{¶ 29} We find Cervantes’s assignment of error not well-taken. Double jeopardy
did not bar the state from prosecuting Cervantes in Wood County for felonious assault
and attempted murder where those offenses occurred separately from the felonious
assault and attempted murder charges of which he was convicted in Henry County; the
16.
offenses were separated in time and were committed in different locations with different
weapons. While R.C. 2901.12(H) would have permitted the state to prosecute all the
offenses together, it did not require the state to do so. The Blockburger test is
inapplicable because this was not a case involving a single act that violated two separate
statutory provisions—Cervantes committed multiple acts supporting multiple counts.
Cervantes’s kidnapping of the victim was not merely incidental to his assault of the
victim. It resulted in separate, identifiable harm.
{¶ 30} We affirm the January 14, 2022 judgment of the Wood County Court of
Common Pleas. Cervantes is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
17. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483049/ | [Cite as In re E.E.D., 2022-Ohio-4014.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE E.E.D., :
: No. 111352
Minor Child :
:
[Appeal by J.L.T.] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD19914310
Appearances:
Carolyn Kaye Ranke, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Rachel Eisenberg and Joseph C. Young,
Assistant Prosecuting Attorneys, for appellee.
EILEEN A. GALLAGHER, P.J.:
Appellant J.L.T., maternal great-aunt and former legal custodian of
E.E.D., appeals from the decision of the Cuyahoga County Court of Common Pleas,
Juvenile Division (the “juvenile court”), that terminated her rights as legal custodian
of E.E.D., terminated the parental rights of E.L., mother of E.E.D. (“Mother”), and
J.F., father of E.E.D. (“Father”), and granted permanent custody of E.E.D. to
appellee the Cuyahoga County Division of Children and Family Services (“CCDCFS”
or “the agency”). For the reasons that follow, we affirm.
Factual Background and Procedural History
On August 18, 2010, J.L.T. was granted legal custody of her great-
niece, E.E.D. (d.o.b. September 3, 2006), after the child’s parents abandoned her.
See Cuyahoga J.C. No. CU09118219. E.E.D. had been living with J.L.T. since April
2009.
On November 26, 2019, E.E.D., who was then 13, was removed from
the home she shared with J.L.T. following a domestic violence incident involving
J.L.T. and E.E.D. The following day, CCDCFS filed a complaint for dependency and
temporary custody of E.E.D. along with a motion for predispositional temporary
custody. The complaint alleged that E.E.D. had mental health needs that required
medication and therapy, that J.L.T. was unable to ensure that those mental health
needs were being met and that J.L.T. was unable to “safely maintain” E.E.D. in the
home due to “significant conflict in the home” between E.E.D. and J.L.T. The
complaint further alleged, as to Mother and Father, that E.E.D. had been “judicially
determined to be abandoned” by her parents in 2010, that Father had not contacted
or visited E.E.D. in over a year and that Mother resided out-of-state, had not
contacted E.E.D. for two months and had not visited with E.E.D. in over a year.
J.L.T. denied the allegations of the complaint. On November 27,
2019, the magistrate granted the agency’s motion for predispositional temporary
custody and committed E.E.D. to the emergency temporary custody of the agency.
On December 18, 2019, a Cuyahoga County Grand Jury indicted
J.L.T. on three counts of endangering children and one count of domestic violence
in connection with the November 2019 domestic violence incident involving E.E.D.
(the “criminal case”). As a condition of her bond, J.L.T. was ordered to have no
contact with E.E.D. The no-contact order was in place from until January 3, 2020
until October 6, 2020 when the trial court handling the criminal case “lifted” it.
A temporary custody hearing was held on February 18, 2020. J.L.T.
and Mother did not attend the hearing, but Father attended the hearing. The agency
was granted leave to file an amended complaint at that time and with no objection.
As it relates to J.L.T., the amended complaint alleged:
1. The child has been in the legal custody of [J.L.T.] since 2010. See
Case CU09118219.
2. The child has mental health needs that require medication and
therapy. Legal custodian has been unable to manage the child’s
mental health needs.
3. There is significant conflict in the home between legal custodian
and the child. As a result, legal custodian cannot currently
maintain the child in the home.
***
Reasonable efforts were made by the Cuyahoga County Division of
Children and Family Services to prevent the removal of the child from
the home and removal is in the best interest of the child.
At the conclusion of the hearing, the juvenile court found that the
allegations of the amended complaint had been proven by clear and convincing
evidence and adjudicated E.E.D. to be dependent. The parties agreed to proceed
immediately to disposition. The juvenile court found that E.E.D.’s continued
residence in, or return to, the home of her parents or legal custodian would be
contrary to her best interest and committed her to the temporary custody of the
agency.
The agency submitted a case plan which the juvenile court approved.
As it relates to J.L.T., the case plan required J.L.T. to attend, and actively participate
in, family therapy with E.E.D., that J.L.T. learn different parenting techniques from
family therapy services and that J.L.T. demonstrate better coping skills while
parenting E.E.D. As it relates to Father, the case plan required Father to develop
and maintain a relationship with his daughter and to maintain sobriety, submit to
random drug screens and undergo a drug and alcohol assessment and treatment, if
necessary. Mother was not included in the case plan. The stated permanency goal
of the case plan was reunification with J.L.T.
On October 5, 2020, the state filed a motion for a first extension of
temporary custody. The state indicated that E.E.D. had completed an assessment
and was engaged in counseling services. The state further indicated that J.L.T. had,
at that time, been unable to participate in counseling services with E.E.D. due to the
no-contact order in the criminal case, but that it was anticipated that the criminal
case would be resolved within the next six months and that E.E.D. could be reunified
with J.L.T. if J.L.T. “achieve[d] the remaining objectives of the case plan.” The state
indicated that Father had started to develop a relationship with E.E.D. but that he
had relapsed and, thereafter, had not been visiting with E.E.D. or engaging in
services. The juvenile court granted the motion for extension of temporary custody.
On October 6, 2020, J.L.T. pled guilty to an amended count of
domestic violence in violation of R.C. 2919.25(A), a first-degree misdemeanor, and
an amended count of endangering children in violation of R.C. 2919.22(A), a first-
degree misdemeanor, in connection with the November 2019 domestic violence
incident against E.E.D. The trial court sentenced J.L.T. to one year of probation and
lifted the no-contact order.
On May 13, 2021, the agency filed a motion to modify temporary
custody to permanent custody pursuant to R.C. 21512.414(B)(1)(a)-(b), (d), (D)(1)
and (E). On January 19, 2022, the juvenile court held a hearing on the agency’s
motion (the “permanent custody hearing”).
The agency argued that it should be awarded permanent custody of
E.E.D. because she had been in the custody of the agency since November 2019, her
parents and J.L.T. had failed to complete the objectives of the case plan, E.E.D. could
not or should not be placed with her parents or J.L.T. within a reasonable time,
alternative relative placement had been investigated and there were no adequate,
willing and able relatives with whom to place E.E.D. and permanent custody was in
E.E.D.’s best interest due to her need for permanency and stability.
J.L.T. argued that the juvenile court should deny the agency’s motion
for permanent custody because she had been E.E.D.’s legal custodian for most of
E.E.D.’s life and wanted E.E.D. to return home. Although acknowledging that there
had been a break in communication due to E.E.D.’s mental health issues and that,
at times, their interaction had been “difficult and aggressive,” J.L.T. asserted that
the agency had made no effort to engage E.E.D. and J.L.T. in family counseling to
address the issues needed for reunification and had only partly addressed E.E.D.’s
multiple mental health issues. J.L.T. maintained that E.E.D. could be appropriately
returned to her care and custody “if actual services to address these concerns were
put in place” and asserted that the fact that E.E.D. did not wish to return home
should not control in determining what was in her best interest. At the time of the
hearing, E.E.D. was 15 years old.
Charlene Hill (“Hill”), a CCDCFS childcare specialist, Hannah Shaeb
(“Shaeb”), a Community Risk Manager and Network Advocate for Grace Haven, and
J.L.T. testified at the hearing.
Hill was assigned to the case in August 2021. She testified regarding
the circumstances that led to E.E.D.’s placement with J.L.T. in 2010, the removal of
E.E.D. from J.L.T.’s care following the November 2019 domestic violence incident1
1 Although there was no testimony regarding the specific facts that led to E.E.D.’s
removal from her home in November 2019, on cross-examination, J.L.T.’s counsel
questioned Hill regarding a CCDCFS activity log, which described the incident as follows
and which Hill confirmed was the “starting point” for the agency’s involvement in
November 2019:
and J.L.T.’s subsequent criminal convictions for domestic violence and child
endangering. Hill testified that when J.L.T. was charged in November 2019, the
agency learned (based on allegations set forth in the indictment in the criminal case)
that J.L.T. had been previously convicted of assault with domestic violence in
Kentucky in 2015.2
Hill testified that since November 2019, E.E.D. had been in three
placements. At first, E.E.D. was placed in a foster home in Toledo. Hill stated that
E.E.D. “went AWOL” from that foster home and that there was a concern that, while
The current allegations state that they were arguing with [sic] the girl’s cell
phone, and she was acting up at school. Aunt became upset and began
choking her. [E.E.D.] had scratches on her neck. The aunt said they argued
and [E.E.D.] flinched at her, and aunt attempted to hit her, but [E.E.D.]
covered herself up, then went into the kitchen and got a paper towel and
called 911. Aunt called her son to intervene. The uncle stated the girl is
known to scratch herself to make it look like someone else did it. [E.E.D.] has
also called DCFS before. There are ongoing issues. [E.E.D.] also said the
aunt said that she was going to kill her. During the investigation, it was
founded [sic] that there is a lot of conflict between the child and her maternal
great-aunt. The child has a lot of unruly behaviors that include fights at
school and multiple school suspensions. The child attends Walton
Elementary and is in the eighth grade. She does not have an IEP. The child
also does not comply with mental health services. She’s been diagnosed with
bi-polar in the past but does not comply with medication. The child is
currently not taking any medication or participating in any services. Child
reports that her aunt did grab her by the neck and she did choke her. The
aunt denies that she physically assaulted the child however, there is a pending
DV investigation. A staffing was held on November 26th and [emergency
custody] was the decision. During the staffing both [J.L.T.] and the child
reported being fearful of each other. * * *
2 It is unclear from the record exactly what led to this alleged prior conviction.
J.L.T. testified that there was an incident at her son’s home involving E.E.D., a
granddaughter and another child in which a “little bag” was placed in the child’s mouth.
J.L.T. stated that she “was not declared guilty of anything” in connection with the incident
and that she simply paid a fine because “the neighbors around there heard the noises and
they called the police.”
AWOL, E.E.D. had been exposed to “trafficking.” Hill testified that in March 2021,
E.E.D. attempted suicide and was then placed in the Village Network, a residential
facility for children with severe mental health or behavioral issues. Hill stated that
while she was at the Village Network, E.E.D. attempted suicide a second time after
a telephone call with J.L.T. In October 2021, E.E.D. was placed in her current
placement, another foster home.
Hill stated that she was unaware if E.E.D. had any specific mental
health diagnoses before entering the Village Network but noted that there were
“definitely mental health concerns” with E.E.D. before she was placed in temporary
custody of the agency. She stated that, while in temporary custody, E.E.D. received
treatment for mental health issues both at the Village Network and through Grace
Haven, which provides counseling services for children who have been exposed to
trafficking. Hill could not recall E.E.D.’s current diagnoses but believed that they
included diagnoses for anxiety and depression.
Hill testified that the agency became involved in this case due to
concerns of abuse, concerns regarding E.E.D.’s safety and concerns for E.E.D.’s
mental health. Hill stated that, initially, the goal was to reunify E.E.D. with J.L.T.
and that the case plan included family counseling so that J.L.T. could get a better
understanding of E.E.D.’s mental health and improve their relationship. Hill
testified that, despite the case plan, J.L.T. had been unable to participate in family
counseling with E.E.D., at first, because of the no-contact order and later because
neither E.E.D. nor her counselor felt E.E.D. was “ready” to engage in family
counseling with J.L.T. Hill stated that whenever the issue of family counseling was
raised with E.E.D., E.E.D. would become “very emotional,” cry and state that “she
does not want to do that” and did not want to be in J.L.T.’s care. Based on
information she obtained through therapy reports, Hill stated that it was her
understanding that E.E.D. had experienced “many difficulties throughout her life
due to [J.L.T.’s] physical discipline,” that E.E.D. was “struggling to deal with that”
and that she was not “mentally prepared to address these concerns that she has with
[J.L.T.].” Hill indicated that domestic violence services to address J.L.T.’s behavior
were not part of the case plan.
Hill testified that, to her knowledge, there had been no in-person
visitation between J.L.T. and E.E.D. until October 2021, but that, since at least
August 2021, J.L.T. and E.E.D. had had regular telephone conversations. Hill stated
that there had been difficulties in scheduling visits due to repeated COVID
exposures and COVID-related restrictions the Village Network placed on outside
visitors and concerns regarding E.E.D.’s mental health.
Hill recounted a visit that occurred in October 2021 at the Village
Network, observing that it “did not go well.” Hill stated that J.L.T. and her son had
arrived early for the visit and that by the time Hill arrived, E.E.D. was “very upset”
and crying and was walking with one of the facility’s staff “to help calm herself
down.” Hill testified that the Village Network staff informed her that J.L.T. and her
son had blamed E.E.D. and E.E.D.’s behavior for being in residential placement and
told E.E.D. that “if she would just behave herself, she could come home.” According
to Hill, E.E.D. told her that she was upset because J.L.T. kept telling her she needed
to come home and she was concerned she would be placed with J.L.T. again and did
not want to return to J.L.T.’s care. Hill stated that the visit terminated shortly
thereafter when E.E.D. asked them to leave.3
Hill testified that she believed E.E.D. and J.L.T. spoke regularly on
the telephone and that, in December 2021, E.E.D. and J.L.T. arranged to meet at the
McDonald’s restaurant where E.E.D. worked. Hill stated that she did not attend the
visit but that she understood it went well. She stated that she believed plans had
been made for another meeting in January 2022 but that she did not know if that
occurred.
When asked to describe their relationship, Hill testified that when
E.E.D. and J.L.T. are together “in public,” “with the visits being supervised,” they
have a “good relationship” and “get along well” but that when J.L.T. “has access” to
E.E.D. unsupervised, she becomes “verbally aggressive” with E.E.D. and “blames her
for all the things that are going on.”
Hill stated that she had spoken with J.L.T. regarding E.E.D.’s mental
health needs and noted that J.L.T. was not understanding of those needs and “felt
the child just needed to be with her family.” Hill acknowledged that she had never
personally witnessed J.L.T. being verbally aggressive with E.E.D.
3 Hill also testified that, at this visit, Mother was on the telephone and told E.E.D.
that she had cancer and was dying. It is unclear from the record what, if any, impact that
had on E.E.D. and her emotional state that day.
Hill testified that J.L.T. spoke little English and that, at times,
communication with her could be “[a] little bit” difficult due to the language barrier.
Hill acknowledged that J.L.T. had attended staffing meetings, that J.L.T. had
remained in touch with the agency throughout the case and that J.L.T. had stated
on multiple occasions that she wanted E.E.D. back and wanted to engage in family
counseling with E.E.D., but that no services had been offered to J.L.T. to accomplish
those goals. Hill stated that it was the agency’s position that, due to E.E.D.’s mental
health, family counseling was “not possible.”
Hill testified that E.E.D. had made significant progress since being
placed in her current foster home in October 2021 and that the change in her
behavior was like “[n]ight and day.” Hill stated that E.E.D. had an IEP for writing
and that, previously, there were concerns regarding E.E.D.’s education because she
would “miss a lot of school” and was fighting, running away and “causing problems
at school.” Hill indicated that E.E.D. was now doing “extremely well.” She was going
to school every day, was getting excellent grades and had no disciplinary issues. Hill
stated that E.E.D. now has a job, a savings account and a “good relationship” with
both her foster parents and other children in the home — which had not been the
case in prior placements. Hill stated that E.E.D. was enrolled in counseling through
Grace Haven and was also seeing a doctor for medication related to her mental
health issues. Hill stated that if E.E.D. were to be returned to J.L.T., she would be
concerned that E.E.D. “would not continue to grow” due to J.L.T.’s denial of E.E.D.’s
mental health needs.
With respect to E.E.D.’s wishes, Hill testified that E.E.D. had
informed her that she wants to continue having a relationship with J.L.T. but
“absolutely does not want to live with her” and wants to remain in her current foster
home. Hill stated that there had been reports of ongoing incidents between E.E.D.
at J.L.T. “for some time” prior to agency involvement4 and that E.E.D. had explained
to her that she is “scared” and “doesn’t feel safe” in J.L.T.’s home. Hill stated that
E.E.D. was “happy” and “very stable” in her current placement and that E.E.D. had
told her that she feels safe in her foster home. Hill testified that E.E.D.’s current
foster family was interested in providing permanency for E.E.D., i.e., having E.E.D.
stay with them until she was 18, but that it was not a foster-to-adopt placement.
With respect to E.E.D.’s parents, Hill testified that it was her
understanding that Mother resided somewhere in Boston. Hill indicated that
Mother was not on the case plan because the agency was unable to locate her and
was, therefore, unable to assess her for services. She stated that, to her knowledge,
Mother had not been engaged with the agency in any way since November 2019 and
that Mother’s last contact with E.E.D. was a telephone call in October 2021.
Hill testified that Father had established paternity but had a history
of substance abuse. She stated that the agency had referred Father for a substance
abuse assessment and requested that he submit to random drug screens, but that
Father did not complete the assessment and did not comply with requested drug
4 Hill testified that she had no documentation of any incidents of abuse of E.E.D.
by J.L.T. other than the November 2019 incident.
screens. She stated that at some point in 2021, Father began an intensive drug
treatment program but left without completing the program. Hill stated that she
had interacted with Father once in August 2021 and noted that, at that time, Father
had appropriate housing but thereafter lost contact with Father. Hill stated that, to
her knowledge, Father was “not engaged with the child at all” and had never
indicated that he wanted to regain custody of E.E.D.
Hill testified that J.L.T.’s son (E.E.D.’s maternal uncle) and his
girlfriend were the only other family members who had been actively involved in
E.E.D.’s life. Hill stated that they had been investigated by the agency as a possible
placement for E.E.D. that but were determined not to be appropriate due to a
domestic violence incident in their home.
Shaeb testified that she began working with E.D.D. in February 2021,
following concerns that E.E.D. had been exposed to trafficking when she ran away
from her then-foster home in Toledo. Shaeb stated that she met with E.E.D.
approximately once a week and that as she slowly earned E.E.D.’s trust, E.E.D.
began “opening up to [her] about all sorts of things in life.” Shaeb indicated that
their sessions focused on issues related to trafficking, ways E.E.D. could protect
herself and stay safe, coping skills and tools E.E.D. could use to address anxiety and
express her emotions in a healthy way. Shaeb emphasized the importance of being
surrounded by “safe adults” and explained that in circumstances like those involving
E.E.D., “when there’s been a lot of moving around, a lot of adults coming and going
out of their life, it’s really important to have interaction for a youth to recognize who
is trustworthy and to decide that for their own, and definitely making sure that they
feel safe physically, emotionally, socially, mentally, all the way around.” Shaeb
testified that E.E.D. told her that she wanted to remain in contact with her biological
family but that she did not want to live with her biological family. Shaeb indicated
that E.E.D. said she feels “safe” in her current foster home and but did not feel safe
when living with J.L.T.
J.L.T. testified that E.E.D. was placed in her custody when E.E.D. was
two years old. J.L.T. stated that, at that time, she made a commitment to take E.E.D.
for at least a couple of years so that if Mother, J.L.T.’s niece, changed her mind, she
could get E.E.D. back. J.L.T. testified that although she encouraged E.E.D.’s parents
to visit her, they saw her, at most, a handful of times.
J.L.T. stated that she first noticed something was wrong with E.E.D.
when E.E.D. was three or four years old and she did not provide appropriate
responses during conversations. J.L.T. stated that she brought E.E.D. to
MetroHealth Medical Center for treatment and that E.E.D. was thereafter referred
to a psychologist, then a psychiatrist. J.L.T. testified that E.E.D. was diagnosed as
bipolar and that she was first prescribed medication when she was approximately
ten years old. She stated that E.E.D. resisted taking her medication but that she
required her to do so.
J.L.T. testified that around age 13, E.E.D. began having “many
problems” at school, e.g., skipping school, refusing to wear her uniform, fighting,
aggressive behavior and school suspensions. J.L.T. stated that, at times, she
disciplined E.E.D. due to her behavior and that she had asked for help with E.E.D.
from Father and the school. J.L.T. testified that she loved and counseled E.E.D. and
gave E.E.D. what she needed.
J.L.T. acknowledged that there was increasing conflict between her
and E.E.D. as E.E.D. got older and for which she sought treatment for E.E.D. She
stated that E.E.D. “would call the police all the time” and “would just open the door
and say help, help, help.” J.L.T. denied that she “got physical” with E.E.D. but stated
that when she was angry or frustrated with E.E.D., “[i]t’s just some things I do say
verbally.”
J.L.T. testified that after E.E.D. was removed from her care, J.L.T.
had no contact with E.E.D. for 13 months. She stated that after the no-contact order
was lifted, she had three visits and three telephone calls with E.D.D. J.L.T. testified
that she repeatedly requested that she be permitted to engage in family counseling
with E.E.D. but that the agency denied her requests. J.L.T. indicated that she was
not promptly informed that E.E.D. had run away from her foster placement and had
been potentially exposed to trafficking and that although she knows E.E.D. has
“some mental issues” for which she takes medication, she had not been permitted to
communicate with E.E.D.’s doctors or counselors to obtain specific information
regarding E.E.D.’s condition. J.L.T. testified that she was worried about E.E.D.’s
well-being given that she had previously escaped from foster placements. She stated
that she wanted “to have the opportunity to have [E.E.D.] back in my home” and
that she believed that “with professional help we could work through this.”
J.L.T. testified that her recent communications with E.E.D. had been
going well, that E.E.D. calls her and they talk about school and other things and they
have “started to have the same kind of good relationship we had before, the trust we
have for each other.” J.L.T. stated that she believed their relationship would grow if
she was able to maintain contact with E.E.D. She stated that E.E.D. called her in
December 2021 and that they had arranged to meet at the McDonald’s where E.E.D.
worked. J.L.T. indicated that they met for approximately half an hour and that
E.E.D. seemed “happy” and “talkative,” “[l]ike she has worked things through.”
The Guardian Ad Litem’s Report and Recommendation
On November 10, 2021, the guardian ad litem filed a written report
and recommendation in which he recommended that E.E.D. be placed in the
permanent custody of the agency. The guardian ad litem reported that his
recommendation was based on meetings or interviews with E.E.D., J.L.T., CCDCFS
social workers, Father, E.E.D.’s aunt, E.E.D.’s foster family and staff members at the
Village Network. At the permanent custody hearing, the guardian ad litem informed
the juvenile court that there was nothing he had learned since the time he filed his
report to alter his permanent custody recommendation.
The guardian ad litem reported that E.E.D. has been “very clear” that
she does not want to be reunified with J.L.T. or any other family members and that
she wishes to continue in the care of the agency.
The guardian ad litem reported that E.E.D. was currently on
medication for anxiety, depression and PTSD and was taking her medication. He
further reported that E.E.D. was doing well in her current foster placement, e.g., she
was going to school every day, had made some friends, had gotten a job and was
following the rules of the foster home and getting along with other children in the
home. the guardian ad litem stated that although E.E.D. had a history of self-harm,
that there were no current reports of such behavior. The guardian ad litem indicated
that E.E.D. appeared “happier now than at any time during this case.”
The guardian ad litem acknowledged that J.L.T. was never given an
opportunity to engage in family therapy with E.E.D. due to the “unique situations”
in the case, including the no-contact order, COVID restrictions and E.E.D.’s mental
health issues. He further acknowledged that, for these reasons, he was unable to
observe any interaction between J.L.T. and E.E.D.
The guardian ad litem reported that J.L.T.’s home was appropriate
and that he believed J.L.T. “truly cares” for E.E.D. and wanted to maintain legal
custody of her, but that the relationship between J.L.T. and E.E.D. had “never
progressed” to a point where a return to J.L.T.’s care could be reasonably
considered. He stated that it was unknown whether J.L.T. would be able to manage
E.E.D.’s mental health and behavior issues or if she had learned more effective ways
to redirect E.E.D.’s behavior.
The Juvenile Court’s Decision to Grant Permanent Custody of
E.E.D. to CCDCFS
Following consideration of the evidence presented at the permanent
custody hearing and the recommendation of the guardian ad litem, the juvenile
court granted the agency’s motion for permanent custody, terminated the parental
rights of Mother and Father and terminated the rights of J.L.T. as legal custodian.
On February 14, 2022, the juvenile court issued a written journal
entry, setting forth its findings (the “permanent custody order”). The juvenile court
found, by clear and convincing evidence, that E.E.D. had been in the temporary
custody of the agency for 12 or more months of a consecutive 22-month period, that
pursuant to R.C. 2151.414(E)(1), (4) and (10), E.E.D. could not be placed with either
parent within a reasonable time or should not be placed with either parent and that
it was E.E.D’s best interest that permanent custody be granted to the agency.
As it relates to J.L.T. and her request to maintain legal custody of
E.E.D., the juvenile court found:
[E.E.D.] is fifteen years old. She was the victim of criminal charges
perpetrated against her by her legal custodian. * * * [T]he legal
custodian was convicted of domestic violence and endangering
children. See CCDCFS Exhibit 4.
A no-contact order was in place for [E.E.D.], the victim, from January
to October of 2020. See, CCDCFS Exhibits 3 and 4.
When the no contact order was lifted by the judge presiding over the
legal custodian’s criminal case, an in-person visit was attempted by the
agency. The visit did not go well. When the social worker arrived, the
child was crying and walking outside the building where the visit was
to occur. The visit was essentially over before it could even get started.
The agency has not been able to implement any family counseling
because both the child and her counselor have been very clear that the
child is not ready for family counseling, and it would not be in her best
interest. See, Legal Custodian’s Exhibit A.
The argument of the legal custodian is that the child should have been,
or should be, forced to undergo family counseling with the person who
was convicted of hurting her. The legal custodian was convicted of
domestic violence and child endangering against [E.E.D.]. The Court
finds that it is not in the child’s best interest for her to be able to dictate
the terms of a relationship with her victim, [E.E.D.], against that
victim’s will and against the advice of [E.E.D.’s] mental health provider.
The Court notes that the testimony of the legal custodian in response
to certain questions was concerning. Moreover, pursuant to R.C.
2151.414(C), the Court shall not consider the effect the granting of
permanent custody would have upon the parent, or in this case, the
legal custodian.
The child’s GAL is also her attorney. He strongly recommends
permanent custody as being in the child’s best interest and that there
is no conflict between his recommendation and [E.E.D.’s] wishes.
Over the course of this case, the child has had many struggles. She has
been in residential treatment for severe mental health problems and
was absent without leave placing her at risk of further criminal
victimization.
Now, [E.E.D.] is doing well. She has a job, a savings account, good
grades, and is comfortable with her foster family. She has had contact
with her legal custodian and is interested in having a relationship with
other members of her biological family. But the testimony clearly and
convincingly established that she needs to be able to set the terms of
that contact from a safe place for her.
[E.E.D.] has been in the custody of CCDCFS for over two years. The
child, her GAL and CCDCFS are all asking for permanency in this
matter. The Court cannot order immediate reunification with the legal
custodian without upending the child’s progress and gravely risking her
mental and emotional health, and further extensions of temporary
custody are not in the child’s best interest.
The issue before the court is not whether fifteen-year-old [E.E.D.] will
have a relationship with her biological family as she is clearly capable
of reaching out to them, and has begun so doing. The issue before the
court is her legal status with the agency, and whether she will be able
to continue to grow into a healthy adulthood in her current situation in
which she is making so much progress.
J.L.T. appealed,5 raising the following two assignments of error for
review:
First Assignment of Error
The trial court’s order granting permanent custody is against the
manifest weight of the evidence.
Second Assignment of Error
The trial court erred in denying the legal custodian’s motion for legal
custody and finding that the termination of parental rights are in the
best interest of the minor child.
Law and Analysis
Standing
Before we consider the merits of this appeal, the state has raised an
issue of standing. “Standing to appeal is a jurisdictional prerequisite and
only aggrieved parties have standing to appeal.” In re An.M., 8th Dist. Cuyahoga
No. 111368, 2022-Ohio-2873, ¶ 23, citing Goodman v. Hanseman, 132 Ohio St.3d
23, 2012-Ohio-1587, 967 N.E.2d 1217, 1218, ¶ 1. ‘“Generally, a party cannot appeal
an alleged violation of another party’s rights.’” In re Th.W., 8th Dist. Cuyahoga Nos.
85241 and 85278, 2005-Ohio-2852, ¶ 13, quoting In re Mourey, 4th Dist. Athens
No. 02CA48, 2003-Ohio-1870, ¶ 20.
5 Mother and Father have not appealed the termination of their parental rights.
The state asserts that because J.L.T. is not a parent of E.E.D., she
lacks standing to appeal the juvenile court’s February 14, 2022 permanent custody
order and her appeal should, therefore, be dismissed. We disagree.
J.L.T. was granted legal custody of E.E.D. by court order in 2010. R.C.
2151.011(B)(21) defines “[l]egal custody” as “a legal status that vests in the custodian
the right to have physical care and control of the child and to determine where and
with whom the child shall live, and the right and duty to protect, train, and discipline
the child and to provide the child with food, shelter, education, and medical care, all
subject to any residual parental rights, privileges, and responsibilities.” Thus, as
E.E.D.’s legal custodian, J.L.T. had rights as the child’s legally recognized caretaker,
which were subject only to the residual rights of E.E.D.’s parents. Legal custody is
intended to be permanent. See R.C. 2151.42(B) (“An order of disposition issued
under [R.C. 2151.353(A)(3), R.C. 2151.415(A)(3), or R.C. 2151.417] granting legal
custody of a child to a person is intended to be permanent in nature.”); see also In
re A.P., 9th Dist. Medina No. 12CA0022-M, 2012-Ohio-3873, ¶ 17-35 (where agency
did not seek to terminate or modify prior legal custody order under R.C. 2151.42(B),
grandmother did not lose her status as child’s “custodian” as it related to
reunification and case plan efforts when the juvenile court later placed the child in
the temporary custody of the agency).
The juvenile court’s February 14, 2022 permanent custody order not
only terminated Mother’s and Father’s parental rights but also expressly terminated
J.L.T.’s rights as legal custodian of E.E.D., denying her the right to maintain legal
custody of E.E.D. Although J.L.T., as a nonparent former legal custodian, lacks
standing to challenge the juvenile court’s permanent custody order to the extent it
terminates Mother’s and Father’s parental rights, see, e.g., In re Ez.D., 8th Dist.
Cuyahoga No. 110447, 2021-Ohio-3041, ¶ 16-17, J.L.T. has standing to challenge the
permanent custody order as it relates to her request to maintain legal custody of
E.E.D. and the termination of her rights as legal custodian. See, e.g., In re C & C, 1st
Dist. Hamilton No. C-220358, 2022-Ohio-3751, ¶ 21, citing In re T.M., 1st Dist.
Hamilton No. C-210480, 2021 Ohio App. LEXIS 4454, 7 (Dec. 22, 2021).
Accordingly, our review of the permanent custody order is limited to the denial of
J.L.T.’s request to maintain legal custody of E.E.D. and the termination of her rights
as legal custodian.
Failure to Comply with R.C. 2151.414
In her first assignment of error, J.L.T. argues that the trial court failed
to comply with R.C. 2151.414 in granting permanent custody to CCDCFS because its
factual findings are not supported by clear and convincing evidence.
Once an agency has filed a motion requesting permanent custody of
a child pursuant to R.C. 2151.413(A), “‘R.C. 2151.414 sets forth the procedures a
juvenile court must follow and the findings it must make before granting [the]
motion.’” In re CF., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22,
quoting In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 9.
R.C. 2151.414(B)(1) establishes a two-part test for courts to apply
when determining whether to grant a motion for permanent custody. A juvenile
court may grant a public child services agency’s motion for permanent custody if it
determines, by clear and convincing evidence, that (1) permanent custody is in the
best interest of the child and (2) any of the following applies:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period if, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state, and the
child cannot be placed with either of the child’s parents within a
reasonable time or should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve
or more months of a consecutive twenty-two-month period, or the child
has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been adjudicated
an abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
Here the trial court found that R.C. 2151.414(B)(1)(d) applied. J.L.T.
does not dispute that the juvenile court made the requisite findings under R.C.
2151.414(B)(1). Rather, she contends that the juvenile court violated R.C. 2151.414
in granting permanent custody to the agency because its factual findings were not
supported by clear and convincing evidence. She also contends — without citation
to any supporting authority — that although “mathematically” speaking, the juvenile
court “correctly determined” that E.E.D. had been in agency custody “for the magical
12 out of 22 months,” this “mathematical determination” did not take into account
the “lack of progress” and “delays in referral for services” caused by the pandemic
and that, therefore, “the meeting of the statutory timeframe should not be given the
weight typically associated in a review of the factors set forth in R.C.
2151.414(B)(1)(a)-(e)” when “determining whether the first prong of the statutory
factors were met.”
“R.C. 2151.414 outlines the procedures that protect the interests of
parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.
Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re B.C.,
141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 26. It applies to parents and
identifies the circumstances in which parents may be permanently divested of their
parental rights. In re M.C., 5th Dist. Stark No. 2020CA00049, 2020-Ohio-4372,
¶ 36. J.L.T. is not E.E.D.’s parent. She is E.E.D.’s great-aunt and former legal
custodian. As such, she is not entitled to the same protections as E.E.D.’s parents.
See, e.g., In re M.H., 5th Dist. Muskingum No. CT2015-0061, 2016-Ohio-1509, ¶ 31
(“Relatives seeking custody of a child are not afforded the same presumptive legal
rights that a parent receives.”); In re L & M Children, 1st Dist. Hamilton Nos. C-
180598, C-180628 and C-180629, 2019 Ohio App. LEXIS 689, 21 (Feb. 22, 2019)
(“Relatives seeking custody of a child do not have the same rights as natural
parents.”), citing In re C.H., 8th Dist. Cuyahoga No. 103171, 2016-Ohio-26, ¶ 27.
Although J.L.T. asserts in her appellate brief that “parents,” as used
in R.C. 2151.414, “would include any relative from whom custody was removed,” she,
once again, cites no legal authority in support of this proposition. However, as the
Fifth District explained in In re M.C.:
R.C. 2151.414 applies to parents and the prospect of permanently
divesting parents of their parental rights. Appellant is not [the child’s]s
parent, but rather his maternal grandmother and was his legal
custodian. * * *
Once legal custody is granted, the child’s home is the home of the legal
custodian. * * * “While there has been some modern trend to liberally
define family and to bestow certain rights to extended family, see, e.g.,
Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d
1165 (grandparent visitation), we have found no authority * * * which
grants to an unrelated individual the unique status occupied by
biological parents or their legal equivalent, adoptive parents. It is only
these upon whom constitutional protection is invested and, in Ohio, the
strictures of R.C. 2151.414 adhere.”
In re M.C. at ¶ 36-37, quoting In the matter of Kenny B., Jr., 6th Dist. Lucas No. L-
05-1227, 2006-Ohio-968, ¶ 15, 17-18 (rejecting argument by child’s prior legal
custodian that he “should be afforded the same procedural protection as a natural
parent, including satisfaction of the R.C. 2151.414 requirements for termination of
parental rights”); see also In re Benavides, 8th Dist. Cuyahoga No. 78204, 2001
Ohio App. LEXIS 2002, 14 (May 3, 2001) (noting that although “the court should
look to R.C. 2151.414 (E) for guidance when considering a grandparent’s desire to
retain custody of grandchildren, * * * the trial court is not required to make its
determination based upon the standard of clear and convincing evidence”).
Accordingly, we overrule J.L.T.’s first assignment of error.
Best-Interest Determination
J.L.T. also challenges the juvenile court’s best-interest determination.
She argues that the juvenile court abused its discretion in determining that
permanent custody was in E.E.D.’s best interest “without credible and competent
[evidence] to support [that] decision.”
Although J.L.T.’s second assignment of error is phrased as
challenging both the trial court’s decision on legal custody6 and its termination of
Mother’s and Father’s parental rights, in her brief, J.L.T. presents arguments
addressing the juvenile court’s best-interest determination only as it relates to the
termination of Mother’s and Father’s parental rights, not as it relates to the juvenile
6 In her second assignment of error, J.L.T. asserts that “[t]he trial court erred in
denying the legal custodian’s motion for legal custody and finding that the termination
of parental rights are in the best interest of the minor child.” (Emphasis added.) J.L.T.,
however, did not file a motion for legal custody in this case. Citing R.C. 2151.353(A)(3),
the agency argues that because J.L.T. did not file a motion for legal custody in this case,
she failed to preserve her right to maintain legal custody of E.E.D. and the juvenile court
was precluded, as a matter of law, from granting her request for continued legal custody
of E.E.D. However, as noted above, J.L.T. was granted legal custody of E.E.D. in 2010 in
Cuyahoga C.P. Juv. No. CU09118219. There is nothing in the record to suggest that, prior
to the juvenile court’s February 14, 2022 permanent custody — which explicitly
terminated J.L.T.’s rights as legal custodian of E.E.D. — J.L.T. had permanently lost her
status as E.E.D.’s legal custodian. The agency did not file a motion under R.C.
2151.353(F)(2) or 2151.42(B) to modify or terminate J.L.T.’s legal custody of E.E.D.
Although the record in Cuyahoga C.P. Juv. No. CU09118219 is not part of the record in
this case, given that R.C. 2151.353(A)(3) requires that a person to whom legal custody is
awarded file a motion requesting legal custody and/or sign a statement of understanding
for legal custody, presumably J.L.T. complied with that requirement before being
awarded legal custody of E.E.D. in Cuyahoga C.P. Juv. No. CU09118219 in 2010. Under
the circumstances, it seems illogical that J.L.T., as legal custodian, would need to file
another motion for legal custody to preserve her right to continue as E.E.D.’s legal
custodian in this case. Nevertheless, because the issue is not determinative, we need not
resolve it here.
court’s ruling on legal custody. See, e.g., Appellant’s Br. at 15 (“The determination
that the child’s best interest were served by a termination of parental rights is herein
challenged.”). In her brief, J.L.T. does not identify the standard applicable to
decisions regarding legal custody and does not cite any legal authority relating to
such decisions. This distinction is significant because, as stated above, although
J.L.T. has standing to challenge the juvenile court’s termination of her rights as legal
custodian of E.E.D., she has no standing to challenge the termination of Mother’s
and Father’s parental rights. See, e.g., In re Ez.D., 2021-Ohio-3041, at ¶ 16-17
(grandmother who was former legal custodian lacked standing to challenge
permanent custody order terminating parents’ parental rights); In re C & C, 2022-
Ohio-3751, at ¶ 21 (although grandmother had no standing to appeal the juvenile
court’s award of permanent custody, she had standing to appeal the denial of her
request for legal custody). Accordingly, for this reason alone we could overrule
J.L.T.’s second assignment of error. See App.R. 12(A)(2) (“The court may disregard
an assignment of error presented for review if the party raising it fails * * * to argue
the assignment separately in the brief, as required under App.R. 16(A).”); App.R.
16(A)(7) (“The appellant shall include in its brief * * * [a]n argument containing the
contentions of the appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies.”).
We acknowledge, however, where, as here, a juvenile court’s decision
involves rulings on both legal custody and permanent custody, its best-interest
determinations are often intertwined. See, e.g., In re C.T., 8th Dist. Cuyahoga No.
110303, 2021-Ohio-2274, ¶ 82 (‘“[I]f permanent custody to the agency is in [a
child’s] best interest, legal custody to [a relative] necessarily is not.’”), quoting In re
V.C., 8th Dist. Cuyahoga Nos. 102903, 103061 and 103367, 2015-Ohio-4991, ¶ 61;
In re T.M., 9th Dist. Wayne No. 13CA0043, 2014-Ohio-1131, ¶ 17 (“Because the trial
court’s decision to deny Grandmother’s motion for legal custody hinges on the best
interest of the child, this Court ‘typically conducts a single “best interest” review of
the trial court’s decision to place the child in the permanent custody of the agency
rather than in the legal custody to a relative.’”), quoting In re I.A., 9th Dist. Summit
No. 26642, 2013-Ohio-360, ¶ 10.
Even if we were to construe J.L.T.’s challenge to the juvenile court’s
best-interest determination as a challenge to the trial court’s ruling on legal custody
as opposed to a challenge to the juvenile court’s termination of Mother’s and
Father’s parental rights, we would find no reversible error here.
Legal Custody
The touchstone of a decision regarding legal custody is the best
interest of the child. See, e.g., In re C.S, 3d Dist. Paulding No. 11-21-07, 2022-Ohio-
2451, ¶ 20 (“At a dispositional hearing involving a request for legal custody, the focus
is on the best interest of the child.”); In re A.P., 9th Dist. Summit No. 30056, 2022-
Ohio-276, ¶ 7 (‘“Following an adjudication of neglect, dependency, or abuse, the
juvenile court’s determination of whether to place a child in the legal custody of a
parent or a relative is based solely on the best interest of the child.’”), quoting In re
K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330, ¶ 12; In re A.C., 8th Dist.
Cuyahoga No. 108442, 2019-Ohio-5127, ¶ 15 (‘“[W]hen a juvenile court awards legal
custody following an adjudication of abuse, neglect, or dependency, it does so by
examining what would be in the best interest of the child based on preponderance
of the evidence.’”), quoting In re T.R., 8th Dist. Cuyahoga No. 102071, 2015-Ohio-
4177, ¶ 44; see also R.C. 2151.42(B) (“A court shall not modify or terminate an order
granting legal custody of a child unless it finds, based on facts that have arisen since
the order was issued or that were unknown to the court at that time, that a change
has occurred in the circumstances of the child or the person who was granted legal
custody, and that modification or termination of the order is necessary to serve the
best interest of the child.”).7
When considering legal custody as a dispositional alternative
following an adjudication of abuse, neglect or dependency, there is no “specific test
or set of criteria” that must be applied to determine what is in a child’s best interest.
In re S.G., 8th Dist. Cuyahoga No. 108711, 2020-Ohio-4060, ¶ 24; In re C.D.Y., 8th
Dist. Cuyahoga No. 108355, 2019-Ohio-4987, ¶ 10. Nevertheless, best-interest
7 The parties do not address R.C. 2151.42(B) in their appellate briefs. Because
J.L.T. has not argued on appeal that the juvenile court was required to comply, and failed
to comply, with R.C. 2151.42(B) in terminating her rights as legal custodian of E.E.D., we
do not address that issue here. But see In re C.D.Y., 8th Dist. Cuyahoga No. 108355, 2019-
Ohio-4987, ¶ 26, fn. 2 (“Legal custody may be modified or terminated only by following
the procedures identified in R.C. 2151.42.”); In re L.H., 8th Dist. Cuyahoga No. 97977,
2012-Ohio-4062, ¶ 14-21 (“In the absence of compliance with R.C. 2151.42(B), * * * the
trial court abused its discretion by adopting the magistrate’s decision that purported to
terminate [appellant’s] legal custodianship and remove her as a party.”).
factors relating to permanent custody set forth in R.C. 2151.414(D)(1) may be
“instructive” in making that determination. See, e.g., In re V.P., 8th Dist. Cuyahoga
No. 109649, 2020-Ohio-5626, ¶ 32; see also In re B.D., 8th Dist. Cuyahoga No.
105650, 2017-Ohio-8663, ¶ 26 (“In determining the best interest of the child in a
legal custody case, the juvenile court should consider all relevant factors, and may
look to the factors listed under R.C. 2151.414(D) * * * for guidance.”), citing In re
M.B., 8th Dist. Cuyahoga No. 105168, 2017-Ohio-7481, ¶ 11. These factors include:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through
the child’s guardian ad litem, with due regard for the maturity of the
child;
(c) The custody history of the child * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
A court may also look to the best-interest factors set forth in R.C.
3109.04(F)(1) in determining what is in a child’s best interest for purposes of a legal
custody determination. In re C.D.Y. at ¶ 12. Relevant to the issues in this appeal,
those factors include:
(c) The child’s interaction and interrelationship with the child’s
parents, siblings, and any other person who may significantly affect the
child's best interest;
(d) The child’s adjustment to the child’s home, school, and community;
(e) The mental and physical health of all persons involved in the
situation[.]
R.C. 3109.04(F)(1).
Appellate courts review a dispositional order that awards, modifies or
terminates legal custody for abuse of discretion. See, e.g., In re C.D.Y. at ¶ 8; In re
T.J., 10th Dist. Franklin Nos. 10AP-201 and 10AP-202, 2010-Ohio-4191, ¶ 14. An
abuse of discretion occurs when a juvenile court’s decision is unreasonable, arbitrary
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983). A decision is unreasonable if there is ‘“no sound reasoning process that
would support that decision.’” In re C.D.Y. at ¶ 8, quoting Baxter v. Thomas, 8th
Dist. Cuyahoga No. 101186, 2015-Ohio-2148, ¶ 21. A decision is arbitrary if it is
made ‘“without consideration of or regard for facts [or] circumstances.’” In re C.D.Y.
at ¶ 8, quoting Black’s Law Dictionary 125 (10th Ed.2014). Thus, a juvenile court
abuses its discretion if competent, credible evidence does not support the juvenile
court's decision regarding the child’s best interest. See, e.g., In re E.R.M., 1st Dist.
Hamilton No. C-190391, 2020-Ohio-2806, ¶ 12.
J.L.T. argues that “a review of the testimony and evidence at trial do
not support” the juvenile court’s determination that permanent custody was in
E.E.D.’s best interest. She asserts that “[i]n the absence of evidence of ongoing abuse
or neglect, safety concerns for the minor child or other facts that make reunification
impossible, every effort to keep children and their families together should be
made.” She contends that the juvenile court abused its discretion in determining
that permanent custody was in E.E.D.’s best interest because it gave undue weight
to the wishes of “a mentally ill minor child who has needed years of past counseling
and services” and “ignored” certain other facts, including J.L.T.’s “genuine desire”
to have E.E.D. returned to her care, her “repeated efforts to participate in services,”
her “wish to engage in counseling to address the past conflict” and the agency’s
denial of services and visitation, in determining what was in E.E.D’s best interest.
J.LT.’s arguments are meritless.
A child’s “best interests are served by the child being placed in a
permanent situation that fosters growth, stability, and security.” In re M.S., 8th
Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 11, citing In re Adoption
of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991). The record reflects
that the juvenile court considered each of the relevant best-interest factors set forth
in R.C. 2151.414(D)(1)(a)-(d) and 3109.04(F)(1)(c)-(e) (as well as other relevant
factors) in determining what was in E.E.D.’s best interest. As detailed above, the
juvenile court set forth specific findings explaining its evaluation of each of these
factors and its conclusion that an award of permanent custody to the agency, rather
than a continuation of legal custody with J.L.T., was in E.E.D.’s best interest. While
under J.L.T.’s care, E.E.D. was struggling with mental health issues, was missing
school and there was significant conflict in the home, ultimately leading to J.L.T.’s
convictions for domestic abuse and child endangering. In her current placement,
E.E.D. feels safe, is doing well in school, has a job, is behaving appropriately at
school and at home and her mental health issues are managed with the assistance
of counseling and medication.
At the time of the permanent custody hearing, E.E.D. was 15. Based
on the evidence presented at the hearing and the report of the guardian ad litem,
E.E.D. demonstrated sufficient maturity to meaningfully express her wishes
regarding placement. The record reflects that E.E.D. had repeatedly and
consistently stated — to the CCDCFS caseworker, to her counselor, to her guardian
ad litem and to J.L.T. — that although she wished to maintain a relationship with
J.L.T. and other members of her biological family, she did not want to live with them
and, instead, wanted to be placed in the permanent custody of the agency. The
witnesses testified that E.E.D. had indicated that she desired to be placed in
permanent custody because she felt comfortable and safe in her current placement
and did not feel safe when living with J.L.T. E.E.D.’s wishes were consistent with
the recommendation of her guardian ad litem.
Although J.L.T. was not given the opportunity to participate in family
counseling with E.E.D. to attempt to complete her case plan objectives, the juvenile
court reasonably determined that where, as here, the child’s legal custodian was
convicted of committing domestic violence and child endangering against the child
and both the child and her counselor had been very clear that the child is not ready
for family counseling, E.E.D. should not have been forced to undergo family
counseling with J.L.T. against her will and against the advice of her mental health
provider. The juvenile court likewise reasonably determined that permanency for
E.E.D. should not be further delayed in the hope that, at some time in the future,
E.E.D. might be ready to engage in counseling with J.L.T.
Despite J.L.T.’s assertions to the contrary, a juvenile court is not
required to favor legal custody with a relative if, after considering the relevant
factors, it is in the child’s best interest for the agency to be granted permanent
custody. See, e.g., In re M.S., 2015-Ohio-1028, at ¶ 11, citing In the Matter of B.H.,
5th Dist. Fairfield No. 14-CA-53, 2014-Ohio-5790, ¶ 72; see also In re T.M., 1st Dist.
Hamilton No. C-210480, 2021 Ohio App. LEXIS 4454, 13 (Dec. 22, 2001) (in
determining what was in child’s best interest, “juvenile court was not required to
place preference on grandmother’s familial relationship and award her legal
custody” of child); In re V.C., 2015-Ohio-4991, at ¶ 61 (“The willingness of a relative
to care for a child does not alter what a court considers in determining whether to
grant permanent custody.”).
Although J.L.T. and E.E.D. appear to share a genuine affection for one
another, we cannot say, based on the record before us, that the juvenile court abused
its discretion in determining that it was in E.E.D.’s best interest that she not be
returned to the legal custody of J.L.T. The juvenile court’s decision was well
reasoned, was not arbitrary or unconscionable and the juvenile court’s findings are
supported by ample, competent and credible evidence in the record.
Accordingly, we overrule J.L.T.’s second assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the Cuyahoga
County Common Pleas Court, Juvenile Division, to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483040/ | [Cite as State v. Peacock, 2022-Ohio-4021.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1235
Appellee Trial Court No. CR0202002050
v.
Franklin Peacock DECISION AND JUDGMENT
Appellant Decided: November 10, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett and Lorrie J. Rendle, Assistant Prosecuting
Attorneys, for appellee.
Adam H. Houser, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Franklin Peacock, appeals the October 27, 2021 judgment of the
Lucas County Court of Common Pleas, which found him guilty of sexual battery, and
sentenced him to 54 months in prison and lifetime registry as a sex offender. For the
following reasons, we affirm the trial court’s judgment.
I. Background and Facts
{¶ 2} On September 1, 2020, Peacock was indicted on two counts, one count of
rape in violation of R.C. 2907.02(A), a first-degree felony, and one count of sexual
battery in violation of R.C. 2907.03(A)(2), a third-degree felony.
{¶ 3} The case was tried to a jury in September 2021. At trial, the state presented
the testimony of the victim, V.F.; her daughter, Katie Fuller; Toledo Police Department
(“TPD”) officer Tim Sturtz; TPD special victims unit (“SVU”) detective Israel Garrett
and sergeant Diane Kozlaker; sexual assault nurse examiner (“SANE”), Cara Coberly;
and Ohio Bureau of Criminal Investigation (“BCI”) forensic scientist, Christine
Hammett. The following facts were established at trial.
{¶ 4} The charges arose from an incident in August 2019, involving Peacock’s
neighbor, V.F. At trial, V.F. testified that at the time of the incident, she was in a
compromised state from alcohol and drug use after a late night celebrating her daughter’s
21st birthday that continued well into the next morning.
{¶ 5} In the early morning of August 22, V.F., Fuller, and their neighbor, Connie,
decided to celebrate Fuller’s 21st birthday by going “bar hopping.” The trio arrived at
the first bar around 12:45 a.m., and they started drinking “very fast” at the bar. V.F.
recalls drinking five rounds of drinks and shots within the one and one-half hours before
“last call.” When the bar closed at 2:30 a.m., the group got a ride home, returning to
V.F.’s house around 3:00 a.m.
{¶ 6} When V.F. arrived home, she discovered that—although her adult son,
Chase, who has special needs, and two-year-old grandson were home sleeping all night—
their house had been burglarized while they were out. Several valuable items were taken
from their living room, including a television, a Kindle, a PlayStation 3, and a laptop.
They also believed that their rent money had been stolen, but Fuller later found most of
the missing cash in her laundry. V.F. testified that she decided not to call the police
immediately because she was “so drunk” that she did not think that she could make a
police report.
{¶ 7} The women’s distress over the burglary contributed to their decision to
continue drinking; they “hung out” on V.F.’s front porch, drank more liquor, and, over
time, they were joined by a couple neighbors. Additionally, V.F. admitted that sometime
that morning she did two lines of poor-quality cocaine, and got into a physical altercation
with someone named Jacqueline.
{¶ 8} V.F. estimated that the drinking and birthday celebration continued past 7:00
a.m. because she saw “kids [] walking to the school bus.” Around that time, she recalled
that Peacock walked by her house smoking a “blunt.” V.F. called out to him to share it
with them for her daughter’s birthday; he obliged, and everyone on the porch smoked.
During this time, Fuller grew increasingly upset about the burglary, and was sobbing.
When Peacock asked what was wrong, V.F. and Fuller told him that their home was
burglarized while they were at the bar. V.F. did so hoping that Peacock “would deal with
it.”
{¶ 9} Soon after, Chase and V.F.’s grandson awoke and came out to the porch,
leaving the house empty.1 At that point, V.F. claimed that Peacock asked her to show
him what had been taken from her home. V.F.’s grandson was crying for his “blankie,”
so V.F. took him inside with her and Peacock. Her grandson ran ahead into the bedroom
to look for his blanket. As V.F. followed him into her bedroom, Peacock suddenly came
up behind her, pushed her onto the bed, and held her hands down. V.F. recalled crying
and asking Peacock not to do anything because her grandson was in the room. But
Peacock held her down on her stomach, pulled her pants down, and forced his penis
inside her vagina. V.F. said that she did not want to fight too much because she was
concerned her grandson might get hurt. During the assault, V.F. recalled that her
grandson was crying for her and smacking Peacock on the leg, trying to make him stop.
{¶ 10} Despite her repeated pleas for him to stop, Peacock asserted that “he was
almost done or it was almost over,” and he continued until he ejaculated. After Peacock
finished, he got off of V.F. right away, and promptly left the house through the front
door. V.F. remained in the bedroom and tried to console her grandson, but she was
distressed and in shock.
1
There was a discrepancy between V.F.’s testimony and Fuller’s testimony about
whether Chase was awake and on the porch at the time of the assault. V.F. testified that
Chase came out onto the porch at the same time as her grandson, and that the inside of
the house was empty. Fuller testified that Chase was still sleeping inside the home, and
that only her toddler came out onto the porch.
{¶ 11} When Peacock came back out to the porch, Fuller thought he “seemed
pretty normal,” but also “like he was rushing to leave,” because he would usually hang
out and talk, but he did not that morning. Fuller testified that, on his way out, Peacock
told her, “you don’t owe me that ten anymore. Don’t worry about it, something like that,”
in reference to money she previously owed him for marijuana.
{¶ 12} Sometime after the assault, V.F.’s 15-year-old neighbor stopped by after
missing the bus to school and found V.F. crying in the bedroom with her grandson.
When the neighbor came in to check on her, V.F. handed her grandson to him.
{¶ 13} After Peacock left, V.F. resumed drinking heavily, and became
increasingly hysterical. According to Fuller, at some point, V.F. came out to the front
porch and they had a brief conversation. Fuller recalled that V.F. “looked a mess” and
that “she was inconsolable.” Fuller saw V.F. walk down the street “in [a] daze,” and sit
down in a puddle while “hysterical[ly]” crying. The next thing V.F. remembers is sitting
on the grass, crying and talking with the police.
{¶ 14} Around 9:00 a.m., two TPD officers were dispatched to V.F.’s block to
perform a wellness check. When they arrived at V.F.’s home, they found V.F. sitting on
the grass crying. The state submitted footage from officer Sturtz’s body camera as an
exhibit at trial. The video shows V.F. sitting on the walkway to her home, visibly
distressed and sporadically sobbing. V.F. tells the officers that she is drunk, her voice is
trembling, she is rocking back and forth, she keeps repeating herself, and her recall is
scattered. She explains to them that “Frank Peacock” raped her while her grandson was
watching and crying for her, and that she “begged him to stop,” but when she did, he
“shoved her face” further into the bed. V.F. also reported the burglary, listed the stolen
items, and claimed that Peacock was “going to help” her with the burglary. When the
officers asked V.F. what Peacock was wearing, she said, “I wish I could tell you, but I
had a blackout moment in there.” She also said several times that she “went to high
school” with Peacock, but this was not true.
{¶ 15} When the officers discovered that V.F. had been sexually assaulted, they
called in detectives from the SVU. When detectives Kozlaker and Garrett arrived, they
confirmed that V.F. had not changed her clothes or bathed, Peacock had not used
protection, and the bedsheets had not been changed.
{¶ 16} The officers took V.F. to St. Charles Hospital, where Coberly, the SANE,
conducted a sexual assault exam and collected a rape kit. During her testimony, Coberly
explained that, when a victim comes into the ER, she takes their vitals, performs a
physical and pelvic exam, asks for medical history, and makes an assessment. During her
examination of a victim, Coberly collects samples for the rape kit, including mouth,
fingernail, and pelvic swabs, and collects the victim’s clothing. Coberly confirmed that
she examined V.F. at St. Charles on August 22, 2019. She described V.F. as “extremely
tearful” with “bouts of crying” and “appear[ing] slightly disheveled.”
{¶ 17} During the exam, V.F. recalled complaining of pain in her vaginal area and
buttocks. Coberly confirmed that V.F. complained of vaginal pain and dryness, and
added that V.F. reported pain on the back of her neck and a small bruise on her right
hand. V.F. admitted that the bruise could have come from other activities. Coberly did
not find any visible bruising or observe any acute injuries during the pelvic exam.
However, she noted that bruising may not appear right away, and that bruising (or lack
thereof) is not determinative of pain. Although V.F. consented to Coberly taking
photographs during the exam, Coberly ultimately did not take any photos because V.F.
did not have any visible injuries for her to photograph.
{¶ 18} Hammett, the forensic scientist from BCI, testified that she conducted
DNA analysis on the items that police seized as evidence in this case, V.F.’s rape kit, and
Peacock’s DNA standard sample, and prepared a report of her findings. Her analysis of
the rape kit confirmed that DNA consistent with Peacock’s was found in the rape kit.
V.F.’s vaginal samples contained contributions from Peacock, but her oral samples did
not contain any foreign DNA. Hammett explained that, as the time between the sexual
contact and the time of taking an oral sample increases, the likelihood of the oral sample
containing foreign DNA decreases. However, she said that a person ejaculating into the
oral orifice would increase the likelihood of foreign DNA being present.
{¶ 19} Regarding the TPD’s investigation, Kozlaker testified that V.F.’s distraught
and scattered behavior on the scene was consistent with someone who had experienced
trauma. Garrett explained that trauma affects individuals differently, and that a person
might not communicate all of the information about an assault at one time because they
might be hysterical, or they might not remember certain things at certain times.
Ultimately, V.F’s inebriated condition limited the officers’ ability to conduct an on-site
interview. As a result, the detectives scheduled another interview with V.F. several
weeks after the assault to obtain her official statement.
{¶ 20} V.F. testified that she obtained a protection order soon after the incident,
but that Peacock continued to walk, bike, and drive past her home. Although V.F. and
Peacock live in the same neighborhood, their houses are near different intersections, so
she said it was possible for Peacock to respect the order. Despite that, V.F. claimed that
Peacock continued to travel past her home, which intimidated her and made her fear for
her safety.
{¶ 21} During the investigation, Peacock voluntarily cooperated with law
enforcement. He gave a statement and voluntarily provided a DNA sample to the
detectives on August 22, 2019. During the interview, Peacock told the detectives that he
and V.F. had a consensual sexual relationship several years earlier for approximately one
month. Peacock initially denied having sexual contact with V.F. the morning of the
assault, but later characterized their interaction as consensual sex.
{¶ 22} According to the version of events that Peacock told the detectives, V.F.
approached him on the street as he was walking home from his mother’s house; she was
not coming from her home, but was walking toward him from across the street. V.F. was
grabbing at him and crying about Fuller losing the rent money. He thought that V.F.
wanted him to beat up whoever stole their rent money, but he was not interested and
dismissed her. Peacock confirmed that V.F. was noticeably drunk, that he was not
intoxicated, and that he “could smell [alcohol] on her breath.” After V.F. approached
him, Fuller called out to him to share his “blunt.” So, he joined the group on the porch
and they smoked the blunt.
{¶ 23} At Connie’s behest, Peacock went into the house, and after walking around,
he sat in a chair in the dining room, which was adjacent to V.F.’s bedroom. At this point,
Peacock claimed that V.F. sat in his lap, rubbed his head (which he referred to as “his
spot”), and then got on her knees, pulled out his penis, and attempted to perform oral sex
on him.
{¶ 24} Peacock told V.F. that he was not interested in sex, and he got up to leave,
but V.F. pushed him into the bedroom. In the bedroom, Peacock sat in an armchair by
the bed. V.F. “got naked herself,” jumped on the bed, and said “you don’t want
this/me?” He said that he did not and moved toward the door, but she pulled him by the
back of his shirt and he fell onto the bed. Peacock claimed that V.F. did the rest: she got
on top of him, pulled his pants down, and began vaginal intercourse. He said that no one
else was in the bedroom at the time, and that V.F.’s grandson was sitting on the couch in
the living room. Peacock claimed that, at some point, V.F. said, “I can’t get one off, so
you might as well finish/hit me from the back,” and then he did. Peacock insisted that
V.F. never said “stop” or “no,” and that the sex lasted about ten minutes. He claimed that
V.F.’s grandson only came into the bedroom when Peacock left the room, after they had
sex. Afterward, Peacock went out to the front porch, asked for a cigarette, and told Fuller
that her mom was in bed. Then Peacock left because his friend was waiting for him.
{¶ 25} The detectives testified to several inconsistencies in Peacock’s statement
about the type of sexual contact he had with V.F. As Garrett observed in his testimony:
[I]n the beginning he would say that he didn’t get hard. He didn’t
want it. And then he was saying he was sitting in the chair. He didn’t get
hard. That changed to he did get hard, and then not only did he get hard[,]
she gave him a blow job. It changed from him being pushed into the room,
that he followed her to the room. It changed from when he was sitting in
the chair she pulled him in the bed. She got on top of him, and he wasn’t
hard[,] to he was hard. And it also changed to the point where he was
saying well, he started hitting it from the back and he pulled her hair * * *.
Another thing that was changed * * * he talked about pre-cum, and then he
went to he nutted.
Further, Peacock first claimed that he never grabbed V.F. by her hair, pushed her head
down, or choked her, but later, he admitted that when he was engaging in sex from
behind, he grabbed her by the hair and shoved her into the bed.
{¶ 26} Kozlaker noticed similar inconsistencies in Peacock’s story, along with
other behavioral indicators:
[His] statement was ever changing. At first * * * he never had an
erection. He never ejaculated inside of [V.F.] He then changed it to she
then performed oral sex on him, even at once biting him. She pulled him
by the back of the shirt into the bedroom, and then it became she * * * led
him around the kitchen and through the other door into the bedroom so that
he was not sitting on the chair as he first stated. His actions during that
interview, also, pulling his arms into his shirt, stating that he’s willing to
help old ladies cross the street. He could get any woman that he wanted to.
Those are all red flags * * * he would always try to change the direction of
the questioning with those statements.
By comparison, Kozlaker characterized V.F.’s statements as “consistent throughout.” As
Kozlaker described it, V.F. will be the first to tell you that she’s not perfect and she
admitted to drug use, but she is a “straight shooter.”
{¶ 27} Peacock did not call any witnesses.
{¶ 28} During closing arguments, Peacock questioned the quality and length of the
police investigation, characterizing it as “far more by way of duration than intensity.” He
also asserted that the time between the start of the investigation and his arrest—376
days—was improper and that Kozlaker took too long—200 days—to file her final
supplemental report.
{¶ 29} In the state’s rebuttal argument, to address Peacock’s insinuations, the
prosecutor said:
Ladies and gentlemen, the State representative is standing here in a
mask in front of you. You are all sitting here in a mask. The Judge is in a
mask. Everybody is in a mask because we are in COVID. Everything shut
down. Courthouses, T.V. show production stopped. Movie theaters.
Nobody was going anywhere and noting [sic] was getting done. That is a
big reason for the delay in anything happening.
{¶ 30} Peacock objected to this comment on the basis that the state was asking the
jury to consider information not in evidence and was implying that COVID-19 was the
cause of prosecutorial delays without introducing any evidence to prove this point. The
court overruled this objection, finding that the pandemic was common knowledge, and
that pandemic-related delays and shutdowns were widely known and regularly broadcast
in the news.
{¶ 31} Based on this evidence, the jury found Peacock guilty of sexual battery and
not guilty of rape. Shortly thereafter, the court sentenced Peacock to 54 months in prison
and lifetime registry as a sex offender.
{¶ 32} Peacock timely appeals and asserts the following errors for our review:
1. The Finding of Guilt was Against the Manifest Weight of
Evidence For the Jury to Convict Appellant of Sexual Battery as the State
Did Not Prove the Victim was Substantially Impaired Beyond a Reasonable
Doubt[.]
2. The Trial Court Made Reversable [sic] Error when it Allowed
Prosecutor to reference facts not in evidence during closing.
II. Law and Analysis
A. Peacock’s conviction is supported by the manifest weight of the evidence.
{¶ 33} Peacock’s first assignment of error asserts that his conviction of sexual
battery was against the manifest weight of evidence because the state did not prove that
V.F. was substantially impaired beyond a reasonable doubt. Peacock argues that (1) V.F.
was upset about the burglary—not intoxicated to the point that she was substantially
impaired—the morning of the incident, and (2) he did not know that V.F. was
substantially impaired because he did not know that she had been drinking and using
drugs.
{¶ 34} The state responds that it presented ample evidence showing that V.F. was
substantially impaired and that Peacock knew of her impairment. The state points out
that V.F., her daughter, an officer, and two detectives all testified that V.F. was
intoxicated, that V.F. and her daughter testified to drinking and using drugs for hours
before the assault, and Peacock himself admitted to smoking marijuana with V.F. shortly
before the assault. The state contends that this shows that Peacock knew that V.F. was, in
fact, substantially impaired, or alternatively, that there was a high probability of her
impairment.
{¶ 35} In criminal appeals challenging the jury’s verdict on manifest-weight
grounds, the issue is whether the state met its burden of persuasion. State v. Thompkins,
78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring). “Weight is not a
question of mathematics, but depends on its effect in inducing belief.” (Emphasis sic and
internal quotation omitted.) Id. at 387. When an appellate court reviews a claim that a
verdict is against the manifest weight of the evidence, we must “examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether the jury ‘“clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.”’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81,
quoting Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). We do not view the evidence in a light most favorable to the
prosecution. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s
resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No. L-10-
1369, 2012-Ohio-6068, ¶ 15, quoting Thompkins at 387.
{¶ 36} Although we consider the credibility of witnesses under a manifest-weight
standard, we extend special deference to the jury’s credibility determinations, given that
it is the jury that has the benefit of seeing the witnesses testify, observing their facial
expressions and body language, hearing their voice inflections, and discerning qualities
such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist. Lucas No. L-10-
1162, 2012-Ohio-616, ¶ 14. Reversal on manifest weight grounds is reserved for “‘the
exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
{¶ 37} In relevant part, R.C. 2907.03(A)(2) specifies that a person commits sexual
battery when he “engage[s] in sexual conduct with another, not the spouse of the offender
* * *” if “[t]he offender knows that the other person’s ability to appraise the nature of or
control the other person’s own conduct is substantially impaired.” The threshold issues
presented by this statute are (1) whether the victim was “substantially impaired” when the
defendant engaged in sexual conduct with her, and (2) whether the defendant knew of the
victim’s impairment at the time of the sexual act.
{¶ 38} Although the phrase “substantially impaired” is not defined in the Revised
Code, the Ohio Supreme Court has determined that “substantial impairment must be
established by demonstrating a present reduction, diminution or decrease in the victim’s
ability, either to appraise the nature of [her] conduct or to control [her] conduct.” State v.
Zeh, 31 Ohio St.3d 99, 103-104, 509 N.E.2d 414 (1987); State v. Hovatter, 6th Dist.
Sandusky No. S-21-006, 2022-Ohio-33, ¶ 17. Of course, not every instance of alcohol
consumption or intoxication will rise to the level of substantial impairment. State v.
Harris, 9th Dist. Summit No. 29583, 2020-Ohio-4365, ¶ 7, citing State v. Hansing, 2019-
Ohio-739, 132 N.E.3d 252, ¶ 13 (9th Dist.). However, it is generally sufficient for the
state to establish substantial impairment by showing a “‘reduction or decrease in the
victim’s ability to act or think.’” Hovatter at ¶ 17, quoting State v. Freeman, 8th Dist.
Cuyahoga No. 95511, 2011-Ohio-2663, ¶ 15. Further, the victim’s testimony, standing
alone, is sufficient to prove substantial impairment. State v. Franklin, 9th Dist. Summit
No. 29071, 2019-Ohio-1513, ¶ 8.
{¶ 39} Under the definition of “knowingly” in R.C. 2901.22(B), a defendant “has
knowledge of circumstances when [he] is aware that such circumstances probably exist.”
A defendant’s knowledge of a fact is established as an element of an offense when the
state shows that he “subjectively believes that there is a high probability of [the fact’s]
existence and fails to make inquiry or acts with a conscious purpose to avoid learning the
fact.” Id. In sexual battery cases, a defendant’s knowledge of the victim’s substantial
impairment is established when the defendant sees signs of the victim’s overwhelming
impairment—e.g., slurring words, stumbling, incontinence, or passing out—or is aware
of the victim’s activities contributing to her impairment—e.g., consuming alcohol with
the victim or learning that the victim recently left a bar. See State v. Holsey, 8th Dist.
Cuyahoga No. 96094, 2011-Ohio-4506, ¶ 11; State v. Jarvis, 9th Dist. Summit No.
25481, 2011-Ohio-4491, ¶ 11.
{¶ 40} Peacock first argues that the state failed to show that V.F. was substantially
impaired. He points to evidence that V.F. was able to tell police what happened, and that
the police did not think that V.F. was so intoxicated that they found her accusations
unbelievable because they began their investigation of him that day, before V.F. provided
her official statement. However, the record includes ample evidence showing that V.F.
was substantially impaired.
{¶ 41} First, V.F. and Fuller both testified that V.F. was significantly impaired
after consuming alcohol, marijuana, and cocaine over the span of a few hours that
morning. They each said that V.F. consumed several drinks rapidly at the bar, and then
continued drinking throughout the morning, to the point that V.F. was drunk. V.F.
testified, and Fuller confirmed, that V.F. also did two lines of poor-quality cocaine and
smoked marijuana with Peacock.
{¶ 42} Second, the testimony and bodycam footage from the police, who arrived at
the house shortly after the assault, confirmed V.F.’s level of intoxication, which was so
significant that they could not take her official statement. For example, Garrett and
Kozlaker described V.F.’s demeanor as “frantic,” “hysterical,” “noticeably intoxicated,”
“in disarray,” and “just rambling about,” and found the usefulness of their initial
interview with V.F. to be “very limited due to her condition.” Further, the bodycam
footage shows that V.F. is visibly distressed, she says that she is drunk, and her behavior
seems consistent with intoxication, as her recall is very scattered and she keeps repeating
herself. The officers are heard repeating questions several times attempting to get clear
answers from her.
{¶ 43} Finally, Peacock’s statements to the police established that V.F. was highly
intoxicated. Peacock admitted to smoking marijuana with V.F. immediately before the
assault, declared several times in his statement that V.F. was intoxicated, said that V.F.
was noticeably drunk, and said that he “could smell [alcohol] on her breath.” He also
said that he was not drunk.
{¶ 44} A victim’s testimony—standing alone—is sufficient to prove substantial
impairment. See State v. Acosta, 6th Dist. Lucas No. L-09-1120, 2010-Ohio-5166
(upholding defendant’s conviction for sexual battery because the victim testified that she
was intoxicated to the point of substantial impairment, despite defendant’s claim that
some of the conduct did not occur, because it was within the jury’s province to determine
issues of credibility). Of course, a victim’s testimony supported by corroborating
testimony is even more persuasive. See State v. Schwamberger, 6th Dist. Lucas No. L-
13-1236, 2014-Ohio-4733 (the victim’s testimony, along with testimony from the
victim’s friends, who witnessed the victim’s behavior and physical condition, was
sufficient to support a conviction of sexual battery); State v. Clyde, 6th Dist. Erie No. E-
14-006, 2015-Ohio-1859 (sufficient evidence supported sexual battery charge because the
victim testified that defendant had sexual intercourse with her several times, and the
victim’s testimony was corroborated by her former girlfriend and defendant’s former
brother-in-law). Here, the state produced ample testimony to establish that V.F. was
intoxicated to the point of having “a present reduction, diminution or decrease in [her]
ability, either to appraise the nature of [her] conduct or to control [her] conduct”; the
victim, her daughter, the police officers, and detectives—as well as Peacock himself—all
confirmed that V.F. was under the influence of multiple intoxicating substances before
the assault. Zeh, 31 Ohio St.3d at 103-104, 509 N.E.2d 414.
{¶ 45} Peacock also argues that he could not have known that V.F. was
substantially impaired. We disagree. Indeed, Peacock’s own words belie his claim. In
his interview, Peacock described V.F.’s condition as “drunk,” he admitted that he could
smell alcohol on her breath, and he repeatedly said that V.F. was intoxicated. Peacock
also conceded that he shared his “blunt” with V.F. right before the sexual conduct
occurred, so he knew that V.F. also smoked marijuana immediately before the assault.
{¶ 46} Taken together, this evidence shows that Peacock knowingly engaged in
sexual conduct with V.F. while V.F. was substantially impaired.
{¶ 47} In sum, Peacock’s case is not an exceptional case in which the evidence
weighs heavily against the conviction, and the jury did not lose its way or create a
manifest miscarriage of justice by convicting Peacock of sexual battery. Thompkins, 78
Ohio St.3d at 387, 678 N.E.2d 541. Therefore, Peacock’s first assignment of error is not
well-taken.
B. The prosecutor did not engage in misconduct during closing arguments.
{¶ 48} In Peacock’s second assignment of error, he argues that he was denied his
right to a fair trial due to prosecutorial misconduct during closing argument. Peacock
asserts that the prosecutor’s reference to COVID-19 as the reason for procedural delays
was an improper and reversible error.
{¶ 49} The state responds that the prosecutor has wide latitude during closing
arguments, the prosecutor’s statements in rebuttal were in response to Peacock’s
allegations of improper delays in the investigation, and the statements were not central to
the case. The state contends that the prosecutor “merely ‘reminded’” the jury of the
pandemic and its detrimental effect on government institutions.
{¶ 50} To succeed on a prosecutorial misconduct claim, the defendant must prove
that the prosecutor’s conduct was improper and that it “prejudicially affected the
defendant’s substantial rights.” State v. Walker, 1st Dist. Hamilton No. C-060910, 2007-
Ohio-6337, ¶ 45, citing State v. Smith, 130 Ohio App.3d 360, 366, 720 N.E.2d 149 (1st
Dist.1998). “Generally, prosecutors are entitled to considerable latitude in opening and
closing arguments.” State v. Boles, 190 Ohio App.3d 431, 2010-Ohio-5503, 942 N.E.2d
417, ¶ 50 (6th Dist.), citing State v. Ballew, 76 Ohio St.3d 244, 255, 667 N.E.2d 369
(1996). During closing, a prosecutor may comment on what the evidence has shown and
what reasonable inferences may be drawn from the evidence. Id. “‘[I]solated incidents
of prosecutorial misconduct are harmless, [thus] the closing argument must be viewed in
its entirety to determine whether the defendant has been prejudiced.” Id., quoting State v.
Stevens, 2d Dist. Montgomery No. 19572, 2003-Ohio-6249, ¶ 34.
{¶ 51} “[A] reversal for prosecutorial misconduct will not occur unless it is clear
that the outcome of the trial would have been different but for the misconduct.” Boles at
¶ 50, citing State v. Smith, 14 Ohio St.3d 13, 15, 470 N.E.2d 883 (1984). In other words,
the defendant must show that, absent the prosecutor’s comments, the jury would have
found the defendant not guilty. “Important considerations are whether the misconduct
was an isolated incident or a protracted series of improper arguments, whether the
defendant objected, whether curative instructions were given, and whether the evidence
of guilt was overwhelming.” State v. Oviedo, 6th Dist. Lucas No. L-95-287, 1997 WL
525087, *2 (Aug. 15, 1997), citing State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d
203 (1993). This remedy is typically reserved for egregious and flagrant misconduct, for
instance, where a prosecutor “express[es] his personal belief or opinion as to the
credibility of a witness or as to the guilt of the accused[,] * * * make[s] unfair or
derogatory personal reference to opposing counsel[,]” or draws inferences from facts not
in evidence. (Internal quotation omitted.) Smith at 14.
{¶ 52} Throughout the trial, Peacock speculated about delays in the investigation
and his arrest. Specifically, in his closing argument, Peacock implied that the police
acted nefariously by taking too long—376 days and 200 days, respectively—to arrest him
after his interview with them and to file their final supplemental report. In rebuttal, the
prosecutor said:
Ladies and gentlemen, the State representative is standing here in a
mask in front of you. You are all sitting here in a mask. The Judge is in a
mask. Everybody is in a mask because we are in COVID. Everything shut
down. Courthouses, T.V. show production stopped. Movie theaters.
Nobody was going anywhere and noting [sic] was getting done. That is a
big reason for the delay in anything happening.
In overruling Peacock’s objection to the prosecutor’s statements, the court emphasized
that the COVID pandemic was common, worldwide knowledge, the pandemic was
widely broadcast in news media, and citizens were well aware of pandemic-related
shutdowns.
{¶ 53} In our review, we recognize that this trial took place during the COVID-19
pandemic, and the trial court directly addressed the jury several times on COVID-19
safety procedures. In fact, the trial judge gave a lengthy explanation of the court’s
COVID-19 procedures, including masking and social distancing, and screened jurors for
potential COVID-19 exposure during voir dire. Thus, we agree that COVID-19 was a
matter of common knowledge, and we find no error in the prosecutor calling attention to
its impact.
{¶ 54} Assuming that the prosecutor’s comments were improper, Peacock must
show that the comments were outcome-determinative—i.e., absent the prosecutor’s
comments, the jury would have found him not guilty—and Peacock does not attempt to
argue that he was prejudiced by the prosecutor’s comment. Boles, 190 Ohio App.3d 431,
2010-Ohio-5503, 942 N.E.2d 417, at ¶ 50. Further, the prosecutor’s comments about
COVID-19 causing delays were not crucial to the case. Assessing the prosecutor’s
closing argument in its entirety, it is clear that this was an isolated incident, and
notwithstanding this comment, the evidence of Peacock’s guilt was substantial.
Therefore, we find that Peacock’s second assignment of error is not well-taken.
IV. Conclusion
{¶ 55} Considering the persuasiveness of the evidence presented at trial, we
cannot say that the jury clearly lost its way or created a manifest miscarriage of justice by
finding Peacock guilty of sexual battery. Nor can we say that the prosecutor’s comments
about COVID-19 delays during closing argument were consequential enough to be
injurious or outcome-determinative, and Peacock does not argue that he was prejudiced
by the prosecutor’s comments. Accordingly, we find that Peacock was not prejudiced or
prevented from having a fair trial, and we affirm the October 27, 2021 judgment of the
Lucas County Court of Common Pleas. Peacock is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483037/ | [Cite as State v. Midkiff, 2022-Ohio-4004.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2021-CA-39
:
v. : Trial Court Case No. 2021-CR-214
:
MICHAEL MIDKIFF : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 10th day of November, 2022.
...........
IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 46½ North Sandusky Street, Delaware,
Ohio 43015
Attorney for Defendant-Appellant
.............
-2-
EPLEY, J.
{¶ 1} Defendant-Appellant Michael Midkiff appeals from his conviction after he was
found guilty of felonious assault by a jury and sentenced to 7 to 10½ years in prison. For
the reasons that follow, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} Midkiff and Rachel Skabla were long-time family friends and, from time-to-
time, roommates. Midkiff was several decades Skabla’s senior and tried to look out for
her well-being, especially considering Skabla’s admitted substance abuse issues.
Despite obvious affection for each other as expressed by their trial testimony, Skabla told
the jury that at times Midkiff was “dangerously obsessed” with her and that it would
sometimes manifest as jealousy. Midkiff himself admitted that he would have liked the
relationship to be more than platonic but ultimately wanted what was best for Skabla.
{¶ 3} One of the people Midkiff was jealous of was Matthew Hiestand, an ex-
boyfriend of Skabla. On March 27, 2021, Hiestand called Skabla and asked her to come
over and clean his house. She agreed and testified that she “let it slip to [Midkiff] and he
started going off like he was ranting and raving[.] * * * [S]o I had Matt pick me up, not on
our corner, but at the corner down, so that there would be no interaction between [them].”
Trial Tr. at 117.
{¶ 4} Skabla left the house to meet Hiestand; Midkiff followed on his bike, armed
with two railroad spikes. He told the jury that he followed Skabla because he was
concerned that she was going to use drugs and overdose. He claimed the spikes were
for protection.
-3-
{¶ 5} Once Skabla got into Hiestand’s truck, Midkiff began threatening Hiestand.
Midkiff told Hiestand “if you let her in that truck, I’m gonna throw this railroad spike through
your windshield.” Trial Tr. at 160. Skabla testified that Midkiff told Hiestand that he wanted
to fight, and Hiestand got out of the driver’s seat to oblige. Before he could get the door
closed, however, “[Midkiff] starting stabbing [Hiestand] with a railroad spike, like he didn’t
give him a chance to defend himself or nothing.” Trial Tr. at 118.
{¶ 6} Despite the initial attack by Midkiff, Hiestand was able to turn around and
fight back, eventually pinning Midkiff to the ground. Hiestand recounted that he tried to
disarm Midkiff, but because he was covered in blood and was slippery, he was
unsuccessful. Heistand called for help from a bystander, but the man would not come to
Hiestand’s aid, and he was forced to let Midkiff up. Midkiff rode away on his bike, leaving
Hiestand bloodied on the sidewalk.
{¶ 7} Skabla called 911, and Hiestand was taken to the hospital; it took nine
staples to close the wounds to his head. He testified that he now suffers from chronic
migraines and that there are spots on his head where the hair will not grow back.
{¶ 8} Midkiff was charged with two counts of felonious assault, and the case
proceeded to trial on June 14, 2021. The jury heard testimony from six witnesses for the
State, including Skabla and Hiestand. The State also presented photos of Hiestand’s
injuries and the audio of the 911 call. Midkiff testified on his own behalf. Prior to the trial’s
conclusion, Midkiff’s attorney asked for and was granted a self-defense instruction. The
trial court, however, stated that it “included a duty to retreat because this happened March
27th. I believe that [the stand your ground] law came in effect April 6th.” Trial Tr. at 165.
-4-
Defense counsel agreed with the court’s assessment.
{¶ 9} After deliberating for approximately an hour, the jury returned with guilty
verdicts; three days later, Midkiff was sentenced to 7 to 10½ years in prison. This appeal
followed. Midkiff raises four assignments of error.
II. Stand Your Ground Instructions
{¶ 10} In his first assignment of error, Midkiff argues that the trial court erred by not
instructing the jury that he had no duty to retreat before acting in self-defense after the
legislature changed the law prior to trial.
{¶ 11} It first must be noted that Midkiff did not object to the jury instructions at trial,
and as a result, our review is limited to plain error. Plain error arises only when “but for
the error, the outcome of the trial clearly would have been otherwise.” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. “Notice of plain
error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph
three of the syllabus.
{¶ 12} Ohio’s self-defense laws have been in a state of change over the last
several years. In 2019, S.B. 228 came into effect, altering R.C. 2901.05 and making self-
defense no longer an affirmative defense. Instead, the burden was shifted “from the
defendant to the state to prove beyond a reasonable doubt that the accused did not use
force in self-defense.” State v. Brooks, Ohio Slip Opinion No. 2022-Ohio-2478, __ N.E.3d
__, ¶ 6. Then, in April 2021, S.B. 175 took effect, amending R.C. 2901.09 to indicate that
“a person has no duty to retreat before using self-defense * * * if that person is in a place
-5-
in which the person lawfully has a right to be.” R.C. 2901.09(B). It further states that “[a]
trier of fact shall not consider the possibility of retreat as a factor in determining whether
or not a person who used force in self-defense * * * reasonably believed that the force
was necessary to prevent injury, loss, or risk of life or safety.” R.C. 2901.09(C). Simply
put, the new “stand your ground” law removes, in most cases, the duty to retreat before
using self-defense.
{¶ 13} Recently, in State v. Degahson, 2d Dist. Clark No. 2021-CA-35, 2022-Ohio-
2972, this Court held that the “stand your ground” law’s changes to R.C. 2901.09 do not
apply retroactively to a defendant who committed his or her offense prior to April 6, 2021,
but whose trial was held after that date. Hence, such a defendant is not entitled to a “stand
your ground” jury instruction. Id. at ¶ 16-24. We reasoned that the amended language of
R.C. 2901.09 was not and could not be made retroactive due to its substantive nature. Id.
at ¶ 18-20. We further determined that R.C. 1.58 compelled the application of the old
version of R.C. 2901.09. Id. at ¶ 22. Accord State v. Dixon, 2d Dist. Greene No. 2021-
CA-29, 2022-Ohio-3157; State v. Hurt, 8th Dist. Cuyahoga No. 110732, 2022-Ohio-2039.
{¶ 14} The same analysis applies here. Midkiff attacked Hiestand on March 27,
2021, prior to the effective date of the new law. Accordingly, the old version of R.C.
2901.09 applied, and the trial court did not err by instructing the jury on the previous duty
to retreat. Midkiff’s first assignment of error is overruled.
III. Self-Defense Instructions
{¶ 15} In his second and third assignments of error, Midkiff avers that the trial
court’s self-defense instructions were faulty, conflicting, and confusing. We will address
-6-
these related claims together.
{¶ 16} A person may act in self-defense, defense of another, or defense of that
person’s home. R.C. 2901.05(B)(1). To warrant an instruction of self-defense, there must
be evidence presented that supports the conclusion that the defendant used force to
defend himself or herself. Id. If the defendant puts forth evidence that he or she acted in
self-defense, the prosecution must prove beyond a reasonable doubt that the accused
did not use the force in self-defense. R.C. 2901.05(B)(1); State v. Lovett, 2d Dist.
Montgomery No. 29240, 2022-Ohio-1693, ¶ 40.
{¶ 17} To establish self-defense, a defendant must introduce evidence showing
that: (1) he or she was not at fault in creating the violent situation; (2) he or she had a
bona fide belief that he or she was in imminent danger of bodily harm; and (3) he or she
did not violate any duty to retreat or avoid the danger. Id. at ¶ 41, citing State v. Brown,
2017-Ohio-7424, 96 N.E.3d 1128, ¶ 24 (2d Dist.).
{¶ 18} In this case, the trial court instructed the jury:
The defendant is asserting the affirmative defense known as self-defense.
While he is asserting it, he does not bear the burden of proving it. The
burden remains upon the State to prove beyond a reasonable doubt each
and every element of the offense and that the defendant’s actions were not
made in self-defense.
Trial Tr. at 183. As the State points out, it appears that Midkiff opposes the trial court’s
use of the word “and” to combine the explanations of what the State must prove in the
case. According to the statute, the prosecution must prove every element of the
-7-
underlying crime beyond a reasonable doubt. R.C. 2901.05(A). Similarly, it must prove
beyond a reasonable doubt that the accused did not act in self-defense. R.C.
2901.05(B)(1). By using the word “and,” the trial court linked R.C. 2901.05(A) and
2901.05(B)(1) without using the exact wording of each statutory section. In our reading of
the instruction, it is evident that the State had to prove – beyond a reasonable doubt –
both the elements of the underlying crime and that Midkiff did not act in self-defense. It
expressed the meanings of the different statutory sections by simply linking them together
into one sentence. This was an accurate description of the law.
{¶ 19} Midkiff also argues that the trial court incorrectly instructed the jury on the
State’s burden of proof as to verdicts. Here, the court used the same approach of
combining R.C. 2901.05(A) and R.C. 2901.05 (B)(1) by using the conjunction “and.” It
stated:
If you find that the State proved beyond a reasonable doubt all the essential
elements of felonious assault and that the actions of the defendant were not
made in self-defense, then your verdict must be guilty.
Trial Tr. at 185. Conversely, when describing what the jury must find to reach a not guilty
verdict, the court substituted the term “or” for “and.” This, too, was a correct statement of
law.
{¶ 20} Midkiff makes essentially the same arguments when contending, in his third
assignment of error, that the jury instructions were conflicting and confusing. For the
reasons just articulated, we find his argument to be unavailing.
{¶ 21} Finally, because Midkiff did not object to the jury instructions at trial, our
-8-
review is limited to plain error. We cannot say that the outcome of the trial would have
been different had Midkiff’s preferred instructions been given. The second and third
assignments of error are overruled.
IV. Ineffective Assistance of Counsel
{¶ 22} In his fourth and final assignment of error, Midkiff contends that his trial
counsel was ineffective because she failed to object to the jury instructions or verdict
forms.
{¶ 23} To prevail on an ineffective assistance of counsel claim, Midkiff must prove
that his attorney was ineffective under the standard test from Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test has two parts. First,
the defendant must show that counsel’s performance was deficient. Id. at 687. “This
requires showing that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense.” Id.
{¶ 24} As to the first prong, much deference is given to trial counsel. “[A] court must
indulge in a strong presumption that the challenged action might be considered sound
trial strategy. Thus, judicial scrutiny of counsel’s performance must be highly deferential.”
State v. Bird, 81 Ohio St.3d 582, 585, 692 N.E.2d 1013 (1998).
{¶ 25} To demonstrate prejudice in the second prong, “the defendant must prove
that there exists a reasonable probability that, were it not for counsel’s errors, the result
of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1998), first paragraph of the syllabus.
-9-
{¶ 26} As to the argument that Midkiff’s trial counsel was ineffective for failing to
object to the jury instructions, we have already stated that there were no errors in the
instructions, so this argument fails. Midkiff, however, raises an additional argument – that
his trial counsel was ineffective for failing to object to the verdict form because, he argues,
there should have been a separate form on the issue of self-defense. The problem with
that argument, however, is that there is no rule that states there must be a separate
finding or form for self-defense. See State v. Jones, 8th Dist. Cuyahoga No. 108371,
2020-Ohio-3367, ¶ 94 (“Jones has provided no legal authority that a jury must reject an
affirmative defense of self-defense on a verdict form.”); State v. McClain, 5th Dist.
Guernsey No. 10-CA-10,2011-Ohio-1623, ¶ 40 (appellant provided no authority for the
claim that a jury must reject an affirmative defense on a verdict form and the court found
no law requiring it); State v. Hobbs, 5th Dist. Richland No. 2007-CA-0115, 2008-Ohio-
4658, ¶ 18 (finding nothing that requires an affirmative defense to be set forth on verdict
form); State v. Reeds, 11th Dist. Lake No. 2007-L-120, 2008-Ohio-1781, ¶ 62.
{¶ 27} Because there was no error on the part of Midkiff’s trial attorney, his
ineffective assistance of counsel claim must fail. The fourth assignment of error is
overruled.
V. Conclusion
{¶ 28} The judgment of the trial court will be affirmed.
.............
TUCKER, P.J. and LEWIS, J., concur.
-10-
Copies sent to:
Ian A. Richardson
April F. Campbell
Hon. Douglas M. Rastatter | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483024/ | Matter of Five Star Elec. Corp. v Metropolitan Tr. Auth. (2022 NY Slip Op 06319)
Matter of Five Star Elec. Corp. v Metropolitan Tr. Auth.
2022 NY Slip Op 06319
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Index No. 151287/21 Appeal No. 16623 Case No. 2022-00134
[*1]In the Matter of Five Star Electric Corp., Petitioner-Appellant,
vMetropolitan Transit Authority et al., Respondents-Respondents.
Hinckley, Allen, & Snyder, LLP, Albany (James J. Barriere of counsel), for appellant.
Evan Eisland, New York (Lily Abramchayeva of counsel), for respondents.
Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered September 1, 2021, which denied the petition seeking to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated October 8, 2020, denying petitioner's claim under a contract with respondent New York City Transit Authority, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
CDRB had a rational basis for finding that petitioner failed to present evidence warranting the application of any exception to the general rule that no-damages-for-delay clauses are enforceable (see generally Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297, 309 [1986]). Delays caused by the Transit Authority's diversion of certain services in the aftermath of Superstorm Sandy were not uncontemplated by the parties, since such circumstances were "specifically mentioned in the [C]ontract" as "[p]ossible causes for delay" (LoDuca Assoc., Inc. v PMS Constr. Mgt. Corp., 91 AD3d 485, 485 [1st Dept 2012]). CDRB also had a rational basis for finding that petitioner failed to establish a "breach of a fundamental, affirmative obligation the agreement expressly imposes on the contractee" (Corinno, 67 NY2d at 313). In addition, CDRB had a rational basis for rejecting petitioner's argument that the Transit Authority breached the implied covenant of good faith and fair dealing in the course of contract performance, which does not impose "obligation[s] that would be inconsistent with other terms of the contractual relationship" (Dalton v Educ. Testing Serv., 87 NY2d 384, 389 [1995]). We have considered and rejected all of petitioner's remaining arguments, including its arguments based on alleged misrepresentations (see Glenn Partition vTrustees of Columbia Univ. in City of N.Y., 169 AD2d 488 [1st Dept 1991]) and design revisions (see e.g. LoDuca, 91 AD3d at 485-486).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483028/ | HH Trinity Apex Invs. LLC v Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. (2022 NY Slip Op 06321)
HH Trinity Apex Invs. LLC v Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.
2022 NY Slip Op 06321
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Index No. 156013/20 Appeal No. 16620-16620A Case No. 2021-02730, 2022-00249
[*1]HH Trinity Apex Investments LLC et al., Plaintiffs-Appellants,
vSmith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., et al., Defendants-Respondents.
Kagen Caspersen & Bogart PLLC, New York (Stuart Kagen of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Evan Krinick of counsel), for Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. and Lacy Reaves, respondents.
Conway, Donovan & Manley, PLLC, Albany (Ryan T. Donovan of counsel), for Charlotte Mitchell, respondent.
Judgment, Supreme Court, New York County (Arlene P. Bluth, J.), entered August 12, 2021, dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 25, 2021, which granted defendants' motions to dismiss for lack of personal jurisdiction, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The motion court correctly determined that plaintiffs failed to make a prima facie showing of personal jurisdiction over the out-of-state defendants (see Copp v Ramirez, 62 AD3d 23 [1st Dept 2009], lv denied, 12 NY3d 711 [2009]). Plaintiffs contend that defendants, their former North Carolina lawyers, are subject to New York jurisdiction because they conspired with plaintiffs' former business partner, nonparty C. Thomas Hendrickson, whose conduct, they claim, meets the requirements of CPLR 302(a)(1), (2), and (3) (e.g. Bluewaters Communications Holdings, LLC v Ecclestone, 122 AD3d 426 [1st Dept 2014]). However, plaintiffs did not adequately allege facts to support conspiracy jurisdiction under any of these CPLR 302(a) subsections.
Plaintiffs' arguments in support of CPLR 302(a)(1) jurisdiction are unavailing, as they do not show that Hendrickson transacted the requisite business within the state or contracted anywhere to supply goods or services in the state. Plaintiffs cite Hendrickson's communications and meetings with them in New York, that he sent drafts of a sustainable development plan to them here for review, that he negotiated contracts with them in New York, and that he received payments they sent to him from New York. However, these activities do not provide a jurisdictional foundation, as plaintiffs do not articulate the requisite nexus between these activities and their claims (see McGowan v Smith, 52 NY2d 268, 272-273 [1981]).
Nor do plaintiffs show any reason to revisit the court's determination that the alleged acts from which their claims do arise — the surreptitious drafting and inclusion of a "lock-in" provision, certain lobbying activities, and other alleged interference with plaintiffs' efforts to remove Hendrickson and his entity from the position of "responsible person" — did not occur in New York, but in North Carolina, and thus cannot support conspiracy jurisdiction grounded in CPLR 302(a)(2) (see Best Cellars Inc. v Grape Finds at Dupont, Inc., 90 F Supp2d 431, 445 [SD NY 2000]). To the extent plaintiffs rely on Hendrickson's alleged extortion of them in New York to support conspiracy jurisdiction, this too is unavailing, as plaintiffs fail to allege any facts to show that defendants benefitted from this alleged financial extortion on Hendrickson's part (see Lawati v Montague Morgan Slade Ltd., 102 AD3d 427, 428 [1st Dept 2013]).
Plaintiffs' reliance on the alleged extortion as a basis for CPLR 302(a)(3) jurisdiction is also misplaced, because their having felt economic injury in New York, alone, is insufficient to confer jurisdiction under [*2]that subsection. "[T]he situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred" (USA Sevens LLC v World Rugby Ltd, 191 AD3d 620-621 [1st Dept 2021][internal quotation marks omitted]). The original critical events here are actions allegedly taken by Hendrickson, with defendants' assistance, to entrench himself and his entities as the responsible person since, without having done so, there could have been no basis for the attempted extortion. As those events took place in North Carolina, plaintiffs do not show jurisdiction under this subsection.
We have considered plaintiffs' remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483046/ | [Cite as State v. Coleman, 2022-Ohio-4013.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111332
v. :
BRIAN COLEMAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-660631-A, CR-21-661531-A, CR-21-661538-A, CR-21-661539-A,
and CR-21-661739-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah J. Denney, Assistant Prosecuting
Attorney, for appellee.
Mary Catherine Corrigan, for appellant.
SEAN C. GALLAGHER, A.J.:
Brian Coleman appeals multiple convictions arising from a series of
unrelated felonies occurring over several months while Coleman was already serving
community-control sanctions in two earlier felony cases. Coleman’s conduct led to
five separate indictments including a total of 31 counts along with multiple
specifications attendant to those underlying counts. The maximum aggregate
potential sentence of imprisonment for all five cases ranged to over 125 years.
Accepting the terms of a negotiated plea deal between Coleman and the state, the
trial court imposed a 14-year aggregate term of imprisonment resolving all five
cases. For the following reasons, we affirm.
In the first case under review, Coleman burgled his former, live-in
girlfriend’s apartment and attacked her in the process. Coleman scaled a ladder to
access the second-story apartment, used a firearm to shoot through the bedroom
door, and then dragged the victim outside into the alley before she was able to
escape. In the second case, Coleman attacked another victim with a firearm and
stole her vehicle, a necklace, a cellphone, and a bank card. The victim identified
Coleman from a lineup. In the third case, Coleman stole a motor vehicle from a
family friend, totaled the vehicle, and then set it ablaze. The fourth case involved
police officers attempting to stop a suspected stolen vehicle that Coleman was
driving and that was procured through an aggravated robbery. Coleman fled after
striking an unmarked vehicle occupied by two police officers. A short pursuit was
called off, but officers found the vehicle after Coleman had driven it into a utility
pole. Police stopped two suspects fleeing the scene who admitted to being in the car
and identified Coleman as the driver. And finally, in the fifth case, officers attempted
to execute an arrest warrant on Coleman, who fled into a neighboring apartment
and briefly held those occupants hostage. Coleman fled to the basement where a
K-9 unit found him hiding under a stack of clothing.
Coleman and the state entered into a negotiated plea agreement,
limiting his aggregate sentencing exposure for all five cases to a 9- to 15-year term
of imprisonment in exchange for the state dismissing numerous counts. After
pleading guilty, Coleman became unsatisfied with his counsel of record. He filed a
motion to withdraw the guilty plea, but after new counsel entered an appearance on
his behalf, Coleman agreed to voluntarily withdraw that motion and to adhere to the
terms of the plea agreement. The sentencing proceeded with the trial court
imposing an aggregate sentence within the jointly recommended sentencing range:
a 14-year aggregate term of imprisonment to resolve all five cases. This appeal
followed.
In the first and third assignments of error, Coleman claims that his
guilty pleas were not knowingly, voluntarily, and intelligently entered because either
the trial court improperly coerced him into accepting the negotiated plea agreement
by candidly disclosing the maximum potential term of imprisonment Coleman faced
should he be convicted at trial of all counts, or the trial court failed to adequately
notify Coleman of the maximum term of imprisonment he faced in one case. Neither
claim has merit.
“A defendant's guilty plea ‘is constitutionally valid only if it is entered
knowingly, voluntarily, and intelligently.’” State v. Jacobs, 1st Dist. Hamilton No.
C-190154, 2020-Ohio-895, ¶ 2, quoting State v. Foster, 2018-Ohio-4006, 121
N.E.3d 76, ¶ 13 (1st Dist.), and State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d
450 (1996). “A plea without those hallmarks is constitutionally unenforceable under
both the United States Constitution and the Ohio Constitution.” Id., citing Engle at
id. A guilty plea is considered knowingly, voluntarily, and intelligently entered when
a trial court complies with the requirements of Crim.R. 11. Id. at ¶ 3. However, some
courts have noted that other factors must be considered under a totality of the
circumstances.
For example, offenders are permitted to challenge the trial court’s
purported involvement in the plea process without respect to the requirements of
Crim.R. 11. Id. at ¶ 4; see also State v. Heard, 2017-Ohio-8310, 87 N.E.3d 245, ¶ 16
(8th Dist.). A trial court’s participation in the plea-bargaining process is not
prohibited under Crim.R. 11 per se, but there are limitations. State v. White, 2017-
Ohio-287, 81 N.E.3d 958, ¶ 6 (8th Dist.). “[T]he Ohio Supreme Court has cautioned
that ‘the judge’s position in the criminal justice system presents a great potential for
coerced guilty pleas and can easily compromise the impartial position a trial judge
should assume.’” Id., quoting State v. Byrd, 63 Ohio St.2d 288, 292, 407 N.E.2d
1384 (1980). The “ultimate inquiry” with respect to judicial coercion is whether the
trial court’s conduct could have led the defendant to believe he could not get a fair
trial, or sentence after trial, and whether the judicial participation undermined the
voluntariness of the plea. Heard at ¶ 18, citing State v. Sawyer, 183 Ohio App.3d
65, 2009-Ohio-3097, 915 N.E.2d 715, ¶ 54 (1st Dist.).
In memorializing the final plea deal negotiated by the state and
Coleman’s attorney of record, the trial court noted the potential for a term of
imprisonment to exceed 100 years should Coleman be found guilty of each and every
count and attendant specification at trial. It was during that time that the court
referred to that potential, a de facto life sentence, as a “boatload of time.” Coleman
claims that the trial court’s candid description of the potential maximum aggregate
sentence amounted to improper coercion into the guilty plea that included a jointly
recommended sentencing range of 9-15 years to resolve all five cases. Thus,
Coleman rests his entire appellate argument on the trial court’s frank assessment
articulating the gravity of the situation Coleman faced by rejecting his negotiated
plea deal. On this point, Coleman solely relies on the panel decision in Heard.
As other panels from this court have recognized, Heard involved a
unique, but narrow fact pattern. In Heard, the trial court
created and presented the plea offer; the prosecutor had no input
regarding the plea. The judge’s comments clearly indicated he had
determined Heard’s guilt before any evidence was presented. The
judge made reference to the potential sentencing not in terms of
possible minimum and maximum sentences if the case proceeded to
trial but based upon the sentence the judge would impose because he
had already determined what Heard deserved. The judge also failed to
provide Heard with sufficient time to consider the offered plea. This
court found the judge’s participation in the plea process could have led
Heard to believe he could not get a fair trial or fair sentence after trial.
State v. Jones, 8th Dist. Cuyahoga No. 107561, 2019-Ohio-2571, ¶ 18. Ultimately,
the Jones panel concluded that Heard does not apply in cases in which “the plea
offer was created and presented by the prosecutor; the judge identified the potential
minimum and maximum sentencing”; and a defendant has notice and a prior
opportunity to consider the offer. Id.
There is little similarity between the factual background of Heard,
2017-Ohio-8310, 87 N.E.3d 245, and this case. Coleman’s situation is more akin to
the situation presented in Jones in which the panel rejected the coercion argument.
Coleman does not dispute the fact that his defense counsel negotiated the plea offer
directly with the prosecutor or that the state communicated that offer to the court
on the record. The trial court did not present its own plea offer for Coleman’s
consideration, and like in Jones, Coleman had time to consider the negotiated plea
deal before trial.
Moreover, the trial court conducted a hearing to place Coleman’s
anticipated rejection of the offer on the record and memorialized the culmination of
the state and Coleman’s negotiations. It was in this context that the trial court
simply identified what all parties should have objectively understood: that the
jointly recommended sentencing range presented a favorable opportunity to avoid
facing the possibility of a de facto life sentence from the maximum potential term.
A trial court’s candid description of that potential penalty does not amount to
impermissible coercion, especially when the defendant and the state actively
negotiated the proposed plea deal. See, e.g., State v. Lane, 10th Dist. Franklin Nos.
18AP-88, 18AP-89, 18AP-90, and 18AP-91, 2018-Ohio-5250, ¶ 11 (trial court’s
description of the potential maximum term as being “substantially greater” than the
jointly recommended sentence did not amount to undue coercion). Coleman’s
limited argument as presented in the first assignment of error is overruled.
Coleman’s second argument with respect to the knowing, voluntary,
and intelligent nature of his guilty plea rests with his claim that the trial court
advised Coleman that the first-degree felonious assault in Cuyahoga C.P.
No. CR-21-661531, to which Coleman pleaded guilty, was subject to the second-
degree felony sentencing range, but in actuality, Coleman had agreed to plead guilty
to a first-degree felonious assault. At the change-of-plea colloquy, the trial court
notified Coleman that the offense carried a maximum penalty of eight years in
prison consistent with the belief that Coleman pleaded guilty to a second-degree
felony offense. The trial court imposed a five-year term of imprisonment in that
case, to be served concurrent with all other sentences imposed.
It is not clear from what error Coleman is seeking relief. According to
the sentencing entry for CR-21-661531, Coleman pleaded guilty to and was
sentenced for a violation of R.C. 2903.11(A)(2) as a second-degree felony offense.
Coleman concedes that the trial court advised him of the potential eight-year term
under R.C. 2929.14(A)(2) corresponding to that degree level of the offense.
Even if Coleman should have been convicted of a first-degree offense
according to the plea deal, Ohio’s black letter law stands in direct contrast to
Coleman’s argument. Pursuant to Crim.R. 11(C)(2)(a), before accepting a plea of
guilty in a felony case, the trial court must address the defendant personally and
determine “that the defendant is making the plea voluntarily, with understanding of
the nature of the charges and of the maximum penalty involved * * *.” Crim.R.
11(C)(2)(a) and (b) identify the nonconstitutional rights that must be addressed
before accepting a plea of guilty. Appellate review is based on whether the trial court
substantially complied with Crim.R. 11(C)(2)(a) and (b) when advising the
defendant of those rights. “A plea is in substantial compliance with Crim.R. 11 when
it can be inferred from the totality of the circumstances that the defendant
understands the charges against him.” State v. Walker, 8th Dist. Cuyahoga No.
65794, 1994 Ohio App. LEXIS 4450, 4 (Sept. 29, 1994). Most important as it
pertains to appealing the advisement of nonconstitutional rights, a defendant must
show a prejudicial effect; in other words, the “test is whether the plea would
otherwise have been made.” State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d
1163 (1977); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
¶ 32; State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 56.
Coleman altogether failed to address the prejudice prong of this analysis.
App.R. 16(A)(7).
Nevertheless, although the trial court misadvised Coleman of the
maximum penalty related to that particular case by stating the felonious assault at
issue was subject to the sentencing range of a felony of the second degree, and not
one of the first degree as the plea offer anticipated (and the trial court explained
during the memorialization of the plea agreement between Coleman and the state),
the term of imprisonment actually imposed was still within the sentencing range
that the trial court inadvertently advised Coleman of during the plea colloquy and
within the degree level of the offense as actually imposed.
The trial court notified Coleman the maximum sentence would be
eight years but only imposed a five-year term of imprisonment for the first-degree
felony offense. Thus, nothing in this record demonstrates that Coleman would have
not pleaded guilty had he been apprised of the longer potential term or the more
severe offense during the plea colloquy. The sentence imposed was within the range
of potential penalties discussed in the advisement, and therefore, Coleman was not
prejudiced by the alleged mistake, although he did profit from it by receiving a
conviction for a less severe offense than to that which he had agreed. See State v.
Malenda, 8th Dist. Cuyahoga Nos. 104736 and 104829, 2017-Ohio-5574, ¶ 6 (the
incorrect advisement of the maximum term of imprisonment was not prejudicial
because the final sentence was still shorter than the erroneously provided
description at the change-of-plea colloquy); State v. Davis, 8th Dist. Cuyahoga No.
101338, 2015-Ohio-178, ¶ 11; State v. Haislip, 12th Dist. Clinton Nos. CA2021-06-
017, and CA2021-06-018, 2021-Ohio-4543, ¶ 14. The third assignment of error is
overruled.
In the second assignment of error, and the final argument advanced
in this appeal, Coleman claims that the trial court erred by imposing consecutive
sentences without engaging in the required analysis under R.C. 2929.14(C)(4) or by
failing to incorporate those findings into the final entry of conviction. The trial court
imposed a jointly recommended sentence as a product of Coleman and the state’s
plea negotiations that reduced Coleman’s overall sentencing exposure from over 100
years to the definite 9- to 15-year agreed sentencing range to resolve all five cases.
Tr. 7:8-12. Despite the fact that both parties recognized the jointly recommended
nature of the imposed sentence, neither has addressed R.C. 2953.08(D)(1), which
governs appellate review of felony sentences.
A defendant’s right to appeal a sentence is solely derived from R.C.
2953.08. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
¶ 10. R.C. 2953.08(D)(1) is “a statutory limit on a court of appeals’ jurisdiction to
hear an appeal.” State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d
1095, ¶ 22; State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169,
¶ 9, fn. 1. Under R.C. 2953.08(D)(1), a “sentence imposed upon a defendant is not
subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” Further, “‘[t]hat appellant agreed to a sentencing
range or sentencing cap, as opposed to a specific sentence, is immaterial.’” State v.
Andrews, 8th Dist. Cuyahoga No. 110047, 2021-Ohio-1719, ¶ 10, quoting State v.
Grant, 2018-Ohio-1759, 111 N.E.3d 791, ¶ 23 (8th Dist.).
The trial court’s imposition of an aggregate term of imprisonment
within a jointly recommended sentencing range precludes appellate review of the
imposed sentence. There is no dispute that the parties jointly recommended the
sentencing range that was accepted by the trial court, and there is no dispute that
the trial court did not make the consecutive sentence findings under
R.C. 2929.14(C)(4). Thus, the only question is whether the lack of consecutive
sentence findings renders the imposed sentence to be unauthorized by law as
contemplated under R.C. 2953.08(D)(1) for the purposes of enabling appellate
review.
The answer to that question is resoundingly in the negative. In the
context of a jointly recommended sentence that includes nonmandatory consecutive
sentences, a trial court is not required to make the consecutive sentence findings
under R.C. 2929.14(C)(4) or include those in the sentencing entry. State v. Sergent,
148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 43; accord State v. Singleton,
1st Dist. Hamilton No. C-200365, 2021-Ohio-4271, ¶ 38; State v. Campbell, 2d Dist.
Clark No. 2020-CA-11, 2021-Ohio-2053, ¶ 29; State v. Summit, 3d Dist. Hardin No.
6-21-06, 2021-Ohio-4562, ¶ 22; State v. Payton, 4th Dist. Scioto No. 17CA3793,
2018-Ohio-1376, ¶ 13; State v. Ramsey, 5th Dist. Licking No. 16-CA-91, 2017-Ohio-
4398, ¶ 15; State v. Thomas, 6th Dist. Williams No. WM-18-005, 2019-Ohio-2654,
¶ 17; State v. Barnhart, 7th Dist. Mahoning No. 20 MA 0119, 2022-Ohio-2338, ¶ 7;
Andrews at ¶ 14; State v. Long, 9th Dist. Summit No. 28214, 2017-Ohio-4421, ¶ 7;
State v. McBride, 10th Dist. Franklin No. 04AP-282, 2004-Ohio-6257, ¶ 7
(predating Sergent but reaching the same conclusion); State v. Mitchell, 11th Dist.
Trumbull No. 2017-T-0053, 2017-Ohio-9103, ¶ 14; State v. Sutton, 12th Dist.
Madison No. CA2019-08-024, 2020-Ohio-3604, ¶ 15. When a trial judge imposes
a jointly recommended sentence, which contemplated consecutive sentences,
without making the R.C. 2929.14(C)(4) findings, the sentence is nonetheless
considered to be “authorized by law” and is not reviewable on appeal pursuant to
R.C. 2953.08(D)(1).
Appellate review of the sentences imposed in the underlying cases is
expressly precluded under R.C. 2953.08(D)(1), and this includes the consecutive
sentence findings under R.C. 2929.14(C)(4). The second assignment of error is
overruled.
Coleman’s convictions are affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for further proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
CORNELIUS J. O’SULLIVAN, JR., J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE OPINION
KATHLEEN ANN KEOUGH, J., CONCURRING IN PART AND DISSENTING IN
PART WITH SEPARATE OPINION:
Respectfully, I concur in part and dissent in part. I concur with the
majority’s resolution of the first and third assignments of error.
I dissent, however, from the majority’s conclusion regarding the
second assignment of error that review of the trial court’s imposition of consecutive
sentences is precluded because appellant agreed to a jointly recommended
sentencing range. The majority finds that where a defendant agrees to a jointly
recommended sentencing range, the trial court is permitted to impose consecutive
sentences, even where the defendant did not agree to consecutive sentences, and any
review of the consecutive sentences is prohibited by R.C. 2953.08(D)(1).
My dissent in State v. Grant, 2018-Ohio-1759, 111 N.E.3d 791 (8th
Dist.), sets forth my reasons for disagreeing with this proposition of law. Grant at
¶ 49-52. I find that where a defendant agrees to a sentencing range but does not
expressly agree to the imposition of nonmandatory consecutive sentences, the
sentence is not an agreed-upon sentence and review of the sentence is not prohibited
by R.C. 2953.08(D)(1).
Appellant agreed to a sentencing range; there was no agreement to
consecutive sentences. Accordingly, I would review appellant’s second assignment
of error, which asserts that the trial court did not engage in the required analysis
under R.C. 2929.14(C) for imposing consecutive sentences and did not incorporate
the statutory findings into its sentencing entry.
The record reflects that the trial court made the requisite findings for
imposing consecutive sentences. (Tr. 73.) Although appellant contends that the
court merely stated the R.C. 2929.14(C) requirements without engaging in any
“meaningful analysis” of the factors, I would find the court’s recitation at the
sentencing hearing of the R.C. 2929.14(C) factors regarding CR-21-660631-A and its
incorporation of those findings with respect to CR-21-661538-A and CR-21-
661539-A sufficient to impose consecutive sentences. “A trial court is not required
to give reasons supporting its decision to impose consecutive sentences.” State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27.
Nevertheless, I would remand for the court to enter nunc pro tunc
entries in those three cases because the trial court did not “incorporate its statutory
findings into the sentencing entries” as required by Bonnell. Id. at ¶ 29. Instead, in
each sentencing entry the court merely stated, “[c]ourt states reasons for
consecutive sentences ORC 2929.14.” Such a statement does not meet the
requirements of Bonnell that to impose consecutive sentences, the trial court must
both make the statutory findings under R.C. 2929.14(C) and incorporate those
findings into its sentencing entry. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483026/ | Matter of 865 First LLC v New York State Div. of Hous. & Community Renewal (2022 NY Slip Op 06312)
Matter of 865 First LLC v New York State Div. of Hous. & Community Renewal
2022 NY Slip Op 06312
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Index No. 160031/20 Appeal No. 16632 Case No. 2021-02853
[*1]In the Matter of 865 First LLC, Petitioner-Appellant,
vNew York State Division of Housing and Community Renewal, et al., Respondents-Respondents.
The Law Offices of Jordan M. Hyman, PLLC, Rockville Centre (Jordan M. Hyman of counsel), for appellant.
Mark Palomino, Office of Legal Affairs, New York (Russell Cirincione of counsel), for New York State Division of Housing and Community Renewal, respondent.
McLaughlin & Stern, LLP, Garden City (Andrew J. Luskin of counsel), for Tarajia Morrell, respondent.
Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about June 21, 2021, denying the petition brought pursuant to CPLR article 78 to annul a determination of respondent New York State Division of Housing and Community Renewal (DHCR), dated October 1, 2020, which denied landlord's petition for administrative review (PAR) and affirmed an order of the Rent Administrator, dated June 22, 2020, determining that respondent Tarajia Morrell was entitled to rent-stabilized succession rights to the apartment formerly occupied by her parents, unanimously affirmed, without costs.
Morrell moved into the apartment in or about September 2016. She lived there with the tenants of record, her parents, for over three years. During this period, Morrell's parents commuted between the apartment and a house in Dutchess County. On August 5, 2019, Morrell's parents wrote to petitioner that they intended to vacate the apartment and for Morrell to succeed. On August 11, 2019, they sent to petitioner a copy of the form they had submitted to DHCR regarding Morrell's succession. In response, on August 23, 2019, petitioner served a notice of lease non-renewal on Morrell's parents. The parents vacated the apartment on November 30, 2019. Shortly thereafter, on December 5, 2019, Morrell filed a complaint with DHCR asserting succession rights. On December 7, 2019, petitioner filed a holdover petition in Civil Court against Morrell and her parents, asserting that the apartment was not the primary residence of the tenants of record. On January 13, 2020, petitioner answered Morrell's complaint only by submitting a copy of its holdover petition.
On June 22, 2020, the DHCR Rent Administrator determined that Morrell had resided with the tenants of record for two years preceding the date they vacated the apartment and, therefore, was entitled to a lease in her own name. Petitioner sought administrative review — arguing, inter alia, that the Covid-19 pandemic prevented it from supplementing its original answer — which was denied. It then commenced the instant article 78 proceeding. Supreme Court denied the petition and dismissed the proceeding, finding that DHCR's decision was not arbitrary and capricious.
DHCR's determination of Morrell's succession claim, while a holdover proceeding raising the same claim was pending before the Housing Court, was not made in violation of lawful procedure and did not violate petitioner's due process rights. DHCR and the courts have concurrent jurisdiction to consider succession claims (Matter of RSL 53-55 E. 95th LLC v New York State Div. of Hous. & Community Renewal, 137 AD3d 572, 573 [1st Dept 2016]; Cox v J.D. Realty Assoc., 217 AD2d 179, 181 [1st Dept 1995]), and DHCR properly exercised jurisdiction over the claim here, as Morrell filed her DHCR complaint before petitioner commenced its holdover proceeding (see RSL 53-55 E. 95th LLC, 137 AD3d at 573). Contrary to petitioner's contention, the holdover [*2]proceeding was not commenced by petitioner's service of its notice of nonrenewal upon the tenants of record in August 2019, but rather, by its filing of the holdover petition and notice of petition in Housing Court in December 2019 (see Real Property Actions and Proceedings Law § 731 [1]; Rent Stabilization Code [RSC] § 2524.4 [c]). Petitioner cannot argue that its due process rights were violated by DHCR's determination of the succession claim without first permitting petitioner to proceed with discovery in the holdover proceeding where petitioner never sought a stay of the DHCR proceeding. Further, due process requires only that "reasonable notice be afforded to the parties to a proceeding and that they have an opportunity to present their objection" (Matter of Greenwich Leasing, LLC v Division of Hous. & Community Renewal, 91 AD3d 949, 950 [2d Dept 2012] [internal quotation marks omitted]). Here, petitioner was afforded notice of Morrell's succession claim and an opportunity to object, but failed to submit any evidence to refute the claim, despite having over six months to do so.
DHCR's denial of the PAR and affirmance of the Rent Administrator's determination that Morrell was entitled to rent-stabilized succession rights to the subject apartment was neither arbitrary nor capricious. Morrell demonstrated her succession rights to the apartment by submitting (among other things) her tax returns, driver's license, and voter records. Petitioner did not proffer any evidence to refute Morrell's succession claim in response. The submitted records established that Morrell "resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years . . . immediately prior to the permanent vacating of the housing accommodation by the tenant" (RSC 2523.5 [b] [1]; see also § 2520.6 [u]).
The fact that Morrell's parents maintained a home in Dutchess County was immaterial, as the evidence established that Morrell resided with them during their time in the apartment. The statutory text requires only that the succession applicant must reside in the apartment as a primary residence (see Mexico Leasing, LLC v Jones, 45 Misc 3d 127[A], 2014 NY Slip Op 51456[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Third Lenox Terrace Assoc. v Edwards (91 AD3d 532 [1st Dept 2012]) is factually inapposite, because in that case, the tenant ceased to reside with the succession applicant more than the two years before permanently vacating the premises. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483052/ | J-S27033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KIMBERLY M. HAMILTON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT E. HAMILTON :
:
Appellant : No. 1219 EDA 2022
Appeal from the Order Entered April 11, 2022
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2018-FC-0679
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED NOVEMBER 10, 2022
Scott E. Hamilton (“Father”) appeals from the order denying his petition
for shared physical custody of the parties’ minor son, D.H. (“Child”), born in
2014. We affirm.
The underlying custody matter commenced in May 2018, following the
marital separation of Father and Kimberly M. Hamilton (“Mother”). In 2018,
the trial court awarded shared legal custody of Child, with primary physical
custody to Mother, and partial physical custody to Father on alternating
weekends and alternating Tuesdays overnight. Since 2018, the parties have
repeatedly filed petitions to modify custody. However, despite numerous
custody orders, Mother has retained primary physical custody of Child
throughout these proceedings.
Father is a pediatric nurse anesthetist at Lehigh Valley Hospital who
works three eight-hour shifts per week from 7:00 a.m. to 3:30 p.m., and two
J-S27033-22
twelve-hour shifts per week from 7:00 a.m. to 7:30 p.m. See N.T., 4/8/22,
at 6-7. Mother works weekdays from 7:30 a.m. to 4 p.m. She works in the
office three days per week and works from home two days per week. Id. at
97. After their separation, Father moved to and currently lives in
Coopersburg, Pennsylvania, which is a driving distance of twenty-three
minutes from the school Child attends. Id. at 4-6. Mother lives in the marital
home in Breinigsville, Pennsylvania, which is approximately one mile from the
school Child attends. Id. at 96-97, 103. Since Child’s birth, Mother has been
the primary caregiver. Id. at 111-12.
On March 4, 2020, Father filed a petition for modification of the existing
custody order. On August 27, 2020, a conciliator conducted a conference on
the petition and prepared a proposed order which provided the following
partial custody award:
a. Father shall have alternating weekends with [Child] from
4:00 p.m. on Friday until 7:00 p.m. on Sunday during the
school year. During the summer when school is not in
session, the return of [Child] shall be at 9:00 p.m.
b. During the school year, Father shall have dinner visits with
[Child] on Tuesday and Thursday from after school until
8:00 p.m. Father shall be responsible for providing the
transportation.
c. Since Father has indicated he is unable to exercise his
weekday physical custody during the summer, the schedule
during the summer shall be as follows:
i. Father shall have [Child] each Tuesday from 4:00
p.m. or after daycare or camp, overnight, until
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J-S27033-22
Wednesday at 9:00 a.m. when [Child] returns to
Mother or daycare/camp. This will be based on when
daycare or camp or Mother’s work begins.
ii. Additionally, Father shall have a Thursday Dinner visit
from 4:00 p.m. until 8:00 p.m. on alternating
Thursday, before his weekends, and on alternating
Thursday (before Mother’s weekends) from 4:00 p.m.
on Thursday, overnight, until 9:00 a.m. on Friday.
d. Father may have additional time as the parties agree.
Proposed Custody Order, 8/27/20, at ¶3. Mother filed exceptions to the
proposed order. On February 8, 2021, the trial court issued an order denying
Mother’s exceptions and adopting the August 27, 2020 proposed custody
order.
On August 11, 2021, Father filed a petition for modification of the
February 8, 2021 custody order, wherein he requested equally shared physical
custody. Specifically, he requested that he and Mother be awarded custody
on an alternating weekly basis or, alternatively, that the current custodial
periods he exercises in the evenings for dinner with Child be changed to
overnights. Mother filed an answer and counterclaim for modification of the
February 8, 2021 custody order. In her counterclaim, Mother sought minor
alterations regarding when vacation time may be used, including that Mother
has Child during his winter recess on even years and Father has Child during
the recess on odd years (excluding holiday times), and that the non-custodial
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parent is limited to one phone call per day, and that phone calls only occur on
the weekend.
The trial court held hearings on April 7 and 8, 2022. Father and Mother
testified during the hearing. Additionally, Father presented two witnesses: Jo
Hamilton, Child’s paternal grandmother; and Maura Dougherty, Father’s
girlfriend with whom he lives. Mother presented four witnesses: David and
Deborah Hinkel, husband and wife who are Mother’s neighbors; and Lance and
Terri Fredericks, Child’s maternal grandparents. Child, who was then seven
years old and in second grade, was not interviewed.
The testimonial and documentary evidence revealed that during the
pendency of the custody proceedings Child has experienced various behavioral
and educational issues. See N.T., 4/8/22, at 25-32; Father’s Exhibits F7-F9.
Child has displayed violent behaviors towards other students, intentionally
urinated in the corner of the classroom, and made suicidal comments at
school. Id. Furthermore, Child’s academic performance has been declining.
Id. In first grade, Child was in the twenty-fifth percentile for reading;
however, Child dropped to the tenth percentile in second grade. Id. at 26-
27. To address these concerns, Child began seeing a play therapist, Kathleen
Hancock. Id. at 107. Recently, Father and Mother have been considering
other potential therapy options for Child. Id. at 28, 111.
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On April 11, 2022, the trial court entered an order denying Father’s
petition for equally shared physical custody. The order granted Mother’s
request for a provision to be added that vacation time with Child is during
Child’s time off from school, that the non-custodial parent may only have one
telephone call per day with Child on weekends and denied her remaining
requests.1 The order awarded Father partial physical custody as follows:
a. During the school year, on alternating weekends from Friday
at 4:00 PM until Sunday at 7:00 PM and on every Tuesday
and Thursday from after school until 8:00 PM. Father shall
provide all transportation for these periods of partial
physical custody.
b. During the summer when school is not in session, on
alternating weekends Friday at 4:00 PM until Sunday at
9:00 PM and on every Tuesday and Thursday from 4:00 PM
or after daycare/camp until 8:00 PM.
Order, 4/11/22, at ¶3.
Father timely filed a notice of appeal and a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). The
trial court filed its Rule 1925(a) opinion directing this Court to its rationale set
forth in its opinion accompanying the April 11, 2022 order.2
____________________________________________
1 Father does not challenge the trial court’s decision to grant in part and, deny
in part, Mother’s petition. Rather, Father’s issues pertain solely to the trial
court’s decision to deny his request for shared physical custody.
2 In its Rule 1925(a) opinion, the trial court mistakenly references the date of
the order as October 24, 2013. As referenced supra, the custody order that
Father appeals from is dated April 11, 2022.
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J-S27033-22
Father presents the following questions for our review:
1. Whether the lower court committed an error of law and
abuse of discretion awarding Mother primary physical
custody and denying Father shared physical custody
because it failed to appropriately weigh Mother’s conduct in
purposely limiting Father’s custodial time in performing the
parental duties as required by 23 Pa.C.S.A. § 5328(a)(3) in
light of the facts and evidence of record.
2. Whether the lower court committed an error of law and
abuse of discretion awarding Mother primary physical
custody and denying Father shared physical custody
because it focused on Father’s prior conduct but identified
no nexus to [Child’s] present best interest and therefore
failed to appropriately weigh the need for stability and
continuity as required by 23 Pa.C.S.A. § 5328(a)(4) in light
of the facts and evidence of record.
3. Whether the lower court committed an error of law and
abuse of discretion awarding Mother primary physical
custody and denying Father shared physical custody
because it did not properly weigh Mother’s refusal to share
information with Father and therefore failed to appropriately
weigh which parent is more likely to attend to the needs of
[Child] as required by 23 Pa.C.S.A. § 5328(a)(10) in light of
the facts and evidence of record.
Father’s Brief at 8.
We address Father’s claims in accordance with the following scope and
standard of review:
In reviewing a custody order, our scope is of the broadest
type and our standard is abuse of discretion. We must accept
findings of the trial court that are supported by competent
evidence of record, as our role does not include making
independent factual determinations. In addition, with regard to
issues of credibility and weight of the evidence, we must defer to
the presiding trial judge who viewed and assessed the witnesses
first-hand. However, we are not bound by the trial court’s
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deductions or inferences from its factual findings. Ultimately, the
test is whether the trial court’s conclusions are unreasonable as
shown by the evidence of record. We may reject the conclusions
of the trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial court.
S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018) (citation omitted).
Further:
[O]n issues of credibility and weight of the evidence, we
defer to the findings of the trial [court] who has had the
opportunity to observe the proceedings and demeanor of
the witnesses.
The parties cannot dictate the amount of weight the trial
court places on evidence. Rather, the paramount concern
of the trial court is the best interest of the child. Appellate
interference is unwarranted if the trial court’s consideration
of the best interest of the child was careful and thorough,
and we are unable to find any abuse of discretion.
The test is whether the evidence of record supports the
trial court’s conclusions.
A.V. v. S.T., 87 A.3d 818, 820 (Pa. Super. 2014) (internal citations
omitted).
The primary concern in any custody case is the best interests of the
child. “The best-interests standard, decided on a case-by-case basis,
considers all factors that legitimately have an effect upon the child’s physical,
intellectual, moral, and spiritual wellbeing.” Saintz v. Rinker, 902 A.2d 509,
512 (Pa. Super. 2006) (quoting Arnold v. Arnold, 847 A.2d 674, 677 (Pa.
Super. 2004)).
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Child custody actions are governed by the Child Custody Act (“Act”), 23
Pa.C.S.A. §§ 5321-5340. Trial courts are required to consider “[a]ll of the
factors listed in section 5328(a) . . . when entering a custody order.” J.R.M.
v. J.E.A., 33 A.3d 647, 652 (Pa. Super. 2011) (emphasis in original). This
statutory section provides as follows.
§ 5328. Factors to consider when awarding custody.
(a) Factors. – In ordering any form of custody, the court
shall determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical safeguards
and supervision of the child.
(2.1) The information set forth in section 5329.1(a)(1) and
(2) (relating to consideration of child abuse and involvement
with protective services).
(3) The parental duties performed by each party on behalf of
the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
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(7) The well-reasoned preference of the child, based on the
child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child adequate
for the child's emotional needs.
(10) Which party is more likely to attend to the daily physical,
emotional, developmental, educational and special needs of
the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to
make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability to
cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or member
of a party’s household.
(16) Any other relevant factor.
23 Pa.C.S.A. § 5328(a).
We have further explained:
Section 5323(d) provides that a trial court “shall delineate
the reasons for its decision on the record in open court or in a
written opinion or order.” 23 Pa.C.S.A. § 5323(d). Additionally,
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“section 5323(d) requires the trial court to set forth its mandatory
assessment of the sixteen [section 5328 custody] factors prior to
the deadline by which a litigant must file a notice of appeal.” C.B.
v. J.B., 65 A.3d 946, 955 (Pa. Super. 2013), appeal denied, 70
A.3d 808 (Pa. 2013). . . ..
In expressing the reasons for its decision, “there is no
required amount of detail for the trial court’s explanation; all that
is required is that the enumerated factors are considered and that
the custody decision is based on those considerations.” M.J.M. v.
M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013), appeal denied, [620
Pa. 710], 68 A.3d 909 ([Pa.] 2013). A court’s explanation of
reasons for its decision, which adequately addresses the relevant
factors, complies with Section 5323(d). Id.
A.V., 87 A.3d at 822-23.
In his first issue, Father challenges the trial court’s ruling with respect
to section 5328(a)(3), which required the court to consider the parental duties
performed by each party on behalf of Child.
Father argues that Mother purposely limited Father’s custodial time with
Child and attempted to marginalize his role in Child’s life. Father references
Mother’s counterclaim which requested the court to limit Father’s custodial
time with Child, and his telephone calls with Child to once per day on his
noncustodial weekends. Father also argues that Mother obstructs Father’s
attempts to obtain additional time with Child, schedule vacations with Child,
and participate in planning Child’s birthday party. Father states that Mother
argues and degrades Father in Child’s presence, and that Mother is “rigid,
inflexible, and uncooperative. . . ..” Father’s Brief at 18.
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The trial court considered Father’s first issue and explained that section
5328(a)(3) favored Mother because “Mother has been the primary caretaker
of [Child] for years.” Trial Court Opinion, 4/11/22, at 3.
Our review of the record reveals that Mother has been exceedingly
flexible with Father and encourages contact between Father and Child. Mother
testified to various instances where she worked with Father to alter the
custody schedule and ensure that Father spends time with Child. For example,
Mother testified that, in June 2021, Father contacted her because Father’s
schedule did not allow him to accommodate his custodial time periods under
the existing custody order. See N.T., 4/8/22, at 129-30. Mother proposed a
solution where during the summer every Tuesday night would be an overnight
and the Thursdays preceding Mother’s weekend would be an overnight, thus
accommodating Father’s inability to follow the specific provisions of the
custody order, while still maintaining the general integrity of the order. Id.
at 130-32. At the hearing, Father agreed that Mother accommodated him
during this time:
Q: You would agree with me that just prior to June of – or during
June of 2021, which was eight months later after your schedule
became fixed, you reached out to mom and said, “I can’t do the
court order as it is.” Do you recall that?
A: I believe we were going back and forth for court prior to that.
And that’s when the final petition was made, yes.
Q: Okay. You recall that you told mom you couldn’t do the
schedule; right?
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A: Correct.
****
Q: Okay. And did [Mother] agree to change the schedule?
A: Correct.
Q: Okay. So [Mother] accommodated your request for a change?
A: Correct.
Id. at 74-75. Furthermore, Father’s vacation plans with Child were disrupted
in 2020 because Child’s school moved its start date to a week before Labor
Day. Id. at 128-29. Mother testified, “I didn’t want [Father] to lose out on
the time” with Child, so Mother permitted Father to carry over that week of
time with Child into the following year. Id.
Similarly, Mother testified that, since March 2020, there were at least
ten occasions where Father was unable to timely pick Child up following his
workday. Id. at 102-03. In those instances, Mother retrieved Child and had
him ready when Father arrived. Id. Mother also testified that, on occasion,
Child accompanies her to retrieve prescriptions from the hospital where Father
works, and she will “reach out to him” to see if he is available to see Child.
Id. at 125-26. Nothing in the record indicates that Mother has attempted to
isolate Father from Child. Father’s argument that Mother seeks to limit his
custodial time by seeking a more restrictive custody order is unpersuasive
because both parents have filed petitions that would limit the other’s time. As
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we discern no abuse of discretion by the trial court in determining that section
5328(a)(3) weighs in Mother’s favor, Father’s first issue merits no relief.
In his second issue, Father challenges the trial court’s ruling with respect
to section 5328(a)(4), which requires the court to consider the need for
stability and continuity in the child’s education, family life, and community life.
Father argues that this factor should favor him because the trial court
focused on events that occurred immediately before their marital separation
and did not address the evidence of Child’s current struggles which have
developed while Mother was the primary custodian. Father argues that Child’s
“conduct has deteriorated” and “Mother refuses to seek help other than play
therapy.” Id. at 23. In essence, Father contends that the trial court “focused
on Father’s past without analyzing [his] current conduct and [Child’s]
struggles.” Id. at 24. Father asserts that the court improperly weighed this
factor in favor of Mother “despite a custodial arrangement which has failed
[Child] and his best interests.” Id.
The trial court considered Father’s second issue and explained that
section 5328(a)(4) favored Mother because:
Mother has been consistently providing stability and
continuity for [Child]. Some of the things to which Mother
testified, such as Father leaving for indefinite periods of time
without communicating with her about where he was going or
when he was returning, suggest that he is somewhat less reliable
than Mother.
Trial Court Opinion, 4/11/22, at 3.
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Based on our review, we discern no abuse of discretion by the trial court
in determining that section 5328(a)(4) favored Mother. Mother testified that
she has a flexible schedule, and she has the ability to work from home two
days a week. See N.T., 4/8/22, at 97-98. Similarly, during the pandemic she
was able to work from home five days per week and provided Child with a
workspace to learn remotely. Id. 101-02. Father’s schedule is not nearly as
flexible. As explained above, Mother testified to at least ten instances where
Father could not timely retrieve Child following his workday. Id. at 45-46,
102-03. Additionally, Mother has encouraged play therapy, but also testified
that at the time of trial, Mother and Father were attempting to schedule a
meeting with another mental health expert for Child. Id. at 178-79.
Mother also lives in the same home that Child has known since his birth,
and the home is approximately one mile away from the school he attends. Id.
at 103-05. In addition, Mother’s witnesses all testified that Child enjoys his
time at Mother’s home, that Child has lots of friends in the neighborhood, and
that Child has a wonderful relationship with Mother. See N.T. (Morning
Session), 4/7/22, at 30-31, 45-46; N.T. (Afternoon Session), 4/7/22, at 5-6;
10.
Overall, the record reveals that Mother has provided a consistent and
stable environment for Child. Although Father argues that the trial court did
not consider Child’s ongoing behavioral concerns and academic challenges,
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nothing in the record indicates that Child’s issues are related to Mother having
primary physical custody. Therefore, as the record supports the trial court’s
determination, we conclude that Father’s second issue is without merit.3
In his third issue, Father challenges the trial court’s ruling with respect
to section 5328(a)(10), which required the court to consider which party is
more likely to attend to the daily physical, emotional, developmental,
educational, and special needs of the child.
Father argues that this factor should favor him because Mother refuses
to cooperate with him in making appointments and sharing information about
Child. Father states that he has scheduled doctor’s appointments for Child,
that Mother does not communicate with him regarding dates and times of
appointments, and Mother does not communicate with him regarding medical
and educational decisions for Child. Father claims that Mother did not
communicate with him regarding Child’s bedwetting and Child returning to in-
person schooling full-time for the 2020-2021 school year. Father contends
that Mother’s “continuous failure to cooperate, or even consult, with Father
regarding [Child’s] medical and educational decisions . . . when intertwined
____________________________________________
3 To the extent that Father challenges the trial court’s lack of analysis
regarding section 5328(a)(4), the trial court was not required to provide an
extensive explanation. See A.V., 87 A.3d at 822-23 (holding that “there is
no required amount of detail for the trial court’s explanation; all that is
required is that the enumerated factors are considered and that the custody
decision is based on those considerations”).
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J-S27033-22
with Mother’s attempts to limit Father’s time with [Child] . . . points to an
effort to limit Father’s parenting to [Child’s] detriment.” Father’s Brief at 26.
The trial court considered Father’s third issue and explained that section
5328(a)(10) favored Mother because:
Mother testified that she sets up all the doctor appointments and
Father participates to some degree but does not respond to her
communications about these things.
Trial Court Opinion, 4/11/22, at 3.
Our review of the record reveals that Mother has cooperated with Father
and informs Father of the needs and appointments for Child. See Mother’s
Exhibits 3-11, 13-17. Mother testified, “I understand [Father] wants to be
included and I want him to be there, but his schedule is such that it’s difficult
to arrange an appointment at a time where we can both be there.” N.T.,
4/8/22, at 120. Mother explained that she therefore schedules an
appointment to secure the date and time, and then informs Father of the
appointment. Id. According to Mother, if Father has any issues, “we’ll change
it. That’s fine.” Id. Mother provided an email exchange between her and
Father that clearly demonstrates that she communicated with Father
regarding Child returning to in-person schooling full-time for the 2020-2021
school year. See Mother’s Exhibit 5. The parties discussed the plan, and in
his final email on the topic Father states, “I thought I responded that I was in
agreement,” and confirmed the previously discussed arrangement for Child’s
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return to in-person schooling. Id. Mother also provided communications to
Father regarding Child’s bedwetting which directly contradicts Father’s
position. See Mother’s Exhibit 4. The record also shows that Mother
continuously provides for Child’s physical, emotional, developmental,
educational, and special needs, and regularly attempts to include Father.
Thus, as the record supports the trial court’s determination regarding section
5328(a)(10), Father’s final issue merits no relief.
In sum, Father’s arguments essentially ask this Court to override the
credibility determinations of the trial court, reassess the evidence to credit
Father’s position, and re-weigh the factors to arrive at a different outcome.
This we cannot do. It is axiomatic that the trial court is the arbiter of
credibility, and this Court cannot interfere with the trial court’s careful and
thorough consideration of the best interests of children with findings that are
supported by the record. See A.V., 87 A.3d at 820. As the testimonial and
documentary evidence support the trial court’s determinations regarding the
custody factors, we affirm its custody order.
Order affirmed.
Judge Stabile joins in this decision.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2022
- 18 - | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483051/ | [Cite as Cleveland v. Figueroa, 2022-Ohio-4012.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 111267
v. :
ISABEL FIGUEROA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2022
Criminal Appeal from the Cleveland Municipal Court
Case No. 2021 CRB 008738
Appearances:
Mark Griffin, City of Cleveland Law Director, and Matt
Bezbatchenko, Assistant City Prosecutor, for appellee.
Wargo Law, LLC, and Leslie E. Wargo, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Isabel Figueroa appeals from the municipal
court’s judgment entry of conviction ordering her to pay the victim $1,800 in
restitution for scratching the victim’s car with an object. For the reasons that follow,
we affirm.
In August 2021, Figueroa was charged with criminal damaging, a
second-degree misdemeanor violation of Cleveland Codified Ordinances 623.02. As
part of a plea deal with the city, she pleaded guilty to an amended charge of
attempted criminal damaging, a third-degree misdemeanor. Following Figueroa’s
guilty plea, the city prosecutor advised the court that the city was not requesting any
jail sentence or fine, but requesting that Figueroa pay restitution to the victim. The
trial court continued the case for sentencing for the purposes of determining the
amount of restitution.
On January 5, 2022, the trial court considered the matter for
sentencing. At the hearing, the city presented an itemized written estimate in the
amount of $3,692.09 that represented the victim’s request for restitution. Figueroa
objected to the restitution amount contending that the victim did not actually pay
anything out of pocket, and the estimate included repairs to damages not caused as
a direct result of Figueroa’s conduct. The trial court continued the matter again for
a restitution hearing.
On January 12, 2022, the trial court conducted a hearing on
restitution. At this hearing, the city presented another written estimate provided by
the victim in the amount of $1,800 — only representing the costs to repair the
damages to the victim’s car as a direct result of Figueroa’s conduct. The prosecutor
advised the court that the victim has “full coverage” car insurance, with a deductible
of $500, but that the victim did not make an insurance claim to cover the damages.
Figueroa again objected to the amount of restitution contending that
restitution is based on the victim’s economic loss, and in this case, the victim’s
economic loss would be her total expenses, less any payments by her insurance
company. (Tr. 4.) When the trial court noted that the victim had not received any
payments from her insurance company to offset any restitution amount, Figueroa
requested the court to consider the victim’s insurance coverage as a factor in
determining the victim’s economic loss. (Tr. 4.) She also asked that the trial court
to consider her ability to pay restitution, noting her monthly income.
Following a victim impact statement and Figueroa’s allocution, the
trial court sentenced Figueroa to sixty days in jail, with the days suspended, and
ordered her to serve one year of active probation, have no contact with the victim,
and pay the victim $1,800 in restitution.
Figueroa now appeals, contending in her sole assignment of error that
the trial court committed error with its order of restitution because the amount was
not supported by competent and credible evidence.
We review misdemeanor restitution orders for an abuse of discretion.
Strongsville v. Kane, 8th Dist. Cuyahoga No. 97765, 2012-Ohio-3372, ¶ 8. An abuse
of discretion “‘implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” State v. Montgomery, Slip Opinion No. 2022-Ohio-2211, ¶ 135,
quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
An abuse of discretion occurs when “a court exercise[es] it’s judgment, in an
unwarranted way[.]” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304,
187 N.E.3d 463, ¶ 35. However, “a court does not have discretion to misapply the
law.” Id. at ¶ 38 (courts apply a de novo standard when reviewing an issue of law).
R.C. 2929.28(A)(1) provides a statutory mechanism for ordering
restitution in misdemeanor cases, allowing a court to impose financial sanctions on
a criminal offender that include “‘restitution by the offender to the victim of the
offender’s crime * * * in an amount based on the victim’s economic loss.’”
Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 19,
quoting R.C. 2929.28(A)(1). In determining the appropriate amount of restitution,
“the court may base the amount of restitution it orders on an amount recommended
by the victim, the offender, a presentence investigation report, estimates or receipts
indicating the cost of repairing or replacing property, and other information[.]”
R.C. 2929.28(A)(1); see also State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093,
994 N.E.2d 423, paragraphs one and two of the syllabus. The ordered amount,
however, cannot “exceed the amount of economic loss suffered by the victim as a
direct and proximate result of the commission of the offense.” R.C. 2929.28(A)(1).
Moreover, the amount of the restitution imposed “‘must be supported by competent,
credible evidence from which the court can discern the amount of the restitution to
a reasonable degree of certainty.’” State v. Johnson, 2018-Ohio-3670, 119 N.E.3d
914, ¶ 55 (8th Dist.), quoting State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d
683 (6th Dist.1999).
Figueroa contends that the restitution amount is unsupported by
competent and credible evidence because the city did not create a foundation to
support the written estimate that depicted the cost to repair the damages to the
victim’s vehicle. She claims that the city provided no testimony by the victim
regarding her actual economic loss, out-of-pocket expenses paid or incurred, or the
estimate she obtained. Additionally, she claims that the trial court failed to consider
any offset that may have been available as a result of insurance coverage. According
to Figueroa, “the record is devoid of any evidence regarding the value of the
economic loss suffered.”
We find no merit to Figueroa’s contention that the city failed to set
forth any evidentiary foundation to support the written estimate provided. Pursuant
to Evid.R. 101(C), the Rules of Evidence do not apply in sentencing proceedings.
State v. Cook, 83 Ohio St.3d 404, 425, 700 N.E.2d 570 (1998). “‘A hearing to
determine restitution is part of sentencing. Consequently, an ordering court is not
restricted by the Rules of Evidence in determining the amount of a restitution
order.’” Kane, 8th Dist. Cuyahoga No. 97765, 2012-Ohio-3372, ¶ 5, quoting State v.
Tuemler, 12th Dist. Warren No. CA2004-06-068, 2005-Ohio-1240, ¶ 17.
Accordingly, the city was not required to set forth any evidentiary foundation before
presenting the written estimate to the trial court for its consideration of the amount
of restitution. See also R.C. 2929.28(A)(1) (setting forth the sources that the trial
court may base its order of restitution — “amount recommended by the victim,
offender, presentence investigation report, estimates or receipts, or other
information”).
We also find no merit to Figueroa’s contention that the city or the
victim failed to present any evidence to support her restitution request. The record
reveals that the victim produced two different estimates to the trial court for
consideration — one at the January 2, 2022 hearing for $3,692.09 and another at
the January 12, 2022 hearing for $1,800. During the initial restitution hearing on
January 2, Figueroa objected to the written estimate the city presented, contending
that it contained repairs for damages not directly related to the damages caused by
Figueroa’s conduct. At the subsequent January 12 hearing on restitution, Figueroa
made no objection to the validity or detail of the new estimate or that it contained
repairs to damages beyond what she admitted she caused. She only requested that
the court consider her ability to pay, and that the victim had car insurance to offset
the restitution amount.
This case is similar to this court’s decision in Cleveland v. Gosier, 8th
Dist. Cuyahoga No. 103919, 2016-Ohio-7961, wherein this court upheld an award of
restitution where the trial court based its award on a written estimate provided by
the victim from an autobody shop. In Gosier, this court reviewed the case for plain
error, noting that the defendant did not challenge the estimate or the amount of
restitution. Much like in Grosier, Figueroa did not challenge the estimate itself, but
merely challenged that the victim’s insurance should offset any restitution.
Figueroa contends that Grosier is distinguishable, however, because
the estimate in Grosier broke “down into minute detail the cost of the repair and
replacement of various components of the victim’s vehicle, including paint and
labor.” Id. at ¶ 15. Figueroa maintains that the written estimate provided to the trial
court is less clear. Although this may be true, Figueroa did not challenge the content
of the estimate with the trial court, accordingly, she has waived this argument on
appeal. Nevertheless, pursuant to the plain language of R.C. 2929.28, the estimate
is a permissible source for the trial court to base its order of restitution.
Accordingly, Grosier is instructive and we find that the estimate that
the victim provided to the city was competent and credible evidence supporting the
value of the economic loss suffered by the victim, and the trial court did not abuse
its discretion in relying on the estimate in its award of restitution.
Finally, we find no merit to Figueroa’s contention that the trial court
failed to consider the victim’s car insurance in determining the amount of
restitution. During the hearing, the city advised the trial court that the victim had
full coverage car insurance, with a $500 deductible, but that the victim did not
submit any claim to her insurance company for coverage of the repairs.
Figueroa has presented no legal authority to this court that requires a
trial court to offset any restitution award by any potential insurance coverage.
Indeed, if the victim chooses to submit a claim to her insurance company regarding
the damages, her insurance company may seek subrogation or reimbursement for
any covered amounts. Our review of the relevant law, however, does not require a
trial court to offset restitution merely because of a potential insurance claim.
Compare R.C. 2929.28(A)(1) (recovery in a civil action offsets restitution
payments); R.C. 2743.51(B) (identifies collateral sources offsetting reparation
awards to victims of crime). Accordingly, the record demonstrates that the trial
court was aware of the victim’s insurance coverage, but also that no claim was made
under that coverage. The record supports that the trial court did in fact consider the
victim’s car insurance coverage in determining the amount of restitution.
Based on the foregoing, we find that the trial court did not abuse its
discretion in ordering Figueroa to pay the victim $1,800 in restitution. The
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cleveland Municipal Court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, A.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483025/ | Matter of Clark v Boyle (2022 NY Slip Op 06316)
Matter of Clark v Boyle
2022 NY Slip Op 06316
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Acosta, P.J., Mazzarelli, Gesmer, Pitt, JJ.
Index No. 70324/22 Appeal No. 16310-M-2177 Case No. 2022-02281
[*1]In the Matter of Darcel D. Clark, etc., Petitioner,
vHon. Denis J. Boyle, etc., et al., Respondents.
Darcel D. Clark, District Attorney, Bronx (David M. Cohn of counsel), for petitioner.
The Bronx Defenders, Bronx (Steven Benathen of counsel), for B.G., respondent.
Petition pursuant to CPLR article 78 to prohibit the enforcement of an order, Supreme Court, Bronx County (Denis J. Boyle, J.), entered on or about January 28, 2022, which ordered the prosecution of an adolescent offender to proceed in accordance with CPL 722.23(1), and an order, same court (Naita A. Semaj, J.), entered on or about March 21, 2022, which denied petitioner's motion to prevent removal of the prosecution to Family Court pursuant to CPL 722.23(1), and seeking a declaratory judgment interpreting CPL 722.23(2)(c)(i), unanimously denied, and the proceeding dismissed, without costs.
In 2017 the legislature enacted the "Raise the Age Law," which defined a 16- or 17-year-old who was charged with a felony committed on or after October 1, 2018, or October 1, 2019, respectively, as an "adolescent offender" (CPL 1.20[44]; Penal Law § 30.00[1], [3][a]). The Raise the Age Law created a youth part of Supreme Court, presided over by Family Court judges with specialized training, to decide on the proper forum for such prosecutions (CPL 722.10[1]). As relevant here, when an adolescent offender (AO) is charged with a class A (non-drug) felony or a violent felony, the justice presiding over the youth part must determine at a hearing held within six days of arraignment whether the People have established by a preponderance of the evidence that "the defendant caused significant physical injury to a person other than a participant in the offense," or "displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense," or committed one of several enumerated sexual offenses (CPL 722.23[2][c]). If the court does not make such a determination, it must send the case to Family Court, but the People can then move to prevent removal to Family Court upon a showing "that extraordinary circumstances exist that should prevent the transfer of the action to family court" (CPL 722.23[1][d]).
The facts that we will now apply to the framework outlined above are particularly tragic. Not even three hours into 2022, several youths encountered a man in the Fordham Road subway station who was celebrating the new year by blowing a party horn. One of the youths, respondent BG, was 17 years old at the time. Apparently irritated by the noise, one or more members of the group told the man to stop blowing the horn. An argument ensued, and as two members of the group approached the man, he grabbed a fanny pack containing his wallet, credit cards, hundreds of dollars in cash, and wireless headphones, because, as he told the police, he was worried the group would steal his property. One of the members of BG's group gave a statement claiming that, after the man grabbed the pack, he appeared to be brandishing an object that looked like a firearm. However, he was unarmed. BG and another one of the youths approached the man and tried to pull the fanny pack, and a third member of the group, who was holding a knife, approached the man. The man [*2]attempted to run away, but the group chased him and then surrounded him, while one person pulled on his fanny pack. Another person tripped the man, who fell to the floor. Then, as captured on surveillance video, BG grabbed the man's neck, tackled him, punched him, and kicked his head. While the man was in a fetal position on the floor, BG and four others repeatedly punched and kicked him in the head and body, as captured on a separate video. The first video showed BG pulling the fanny pack, and one of his codefendants later admitted to taking it.
A third video showed that, after BG rummaged through the man's pockets, BG threw him onto the subway tracks. BG then jumped down onto the tracks and moved the motionless man slightly away from the tracks, toward the edge closer to the platform. At that point a bystander, Ronald Hueston, jumped onto the tracks, tried to assist the man, and told BG's group to "get out of here." BG's group left. Within about a minute, a southbound D train approached the station. Hueston approached the train waving his arms, and then unsuccessfully attempted to go back onto the platform. The train operator turned off the train's electrical power supply, causing the train to stop after sliding forward at a decreasing speed. Nevertheless, the train struck Hueston and killed him. An autopsy determined that Hueston died by being crushed between the train and the platform. After the train stopped about one foot away from the man who Hueston tried to save, he regained consciousness while still on the tracks, and was taken to a hospital, where he received surgery for an arm fracture.
Respondent Hon. Denis J. Boyle, the judge assigned to the youth part, determined after the retention hearing that BG was not subject to trial there, and transferred the case to Family Court. Noting that the term "significant physical injury" is not defined in the statute, Justice Boyle turned to the legislative history. He observed that the Assembly member "with primary responsibility for explaining the statute to his fellow legislators stated . . . that the statute contemplated a 'hybrid . . . somewhere between the requirement of a physical injury and serious physical injury,'" and that he further described it as 'something more than a bruise but less serious than disfigurement." Noting the death of Hueston and the surviving victim's fractured arm, Justice Boyle concluded that the significant injury prong of the statute had been satisfied (while also finding that swelling and bruising on the surviving victim's face and other parts of his body were not significant).
Justice Boyle then turned to the question whether the preponderance of the evidence established that defendant "caused" the significant injuries. The court stated that "[t]he necessary analysis requires an appreciation that the provisions of the Raise the Age statute distinguish principles of accomplice liability and even of causation as relevant to the Penal Law as compared to responsibility [*3]of a defendant for purposes of the application of Criminal Procedure Law section 722.23(2)(c)." The court cited two cases decided by a Judge of the Nassau County Court, People v J.H. (66 Misc 3d 779 [County Ct, Nassau County 2020]) and People v E.B.M. (63 Misc 3d 576 [County Ct, Nassau County 2019]). In the former case the court found that the matter qualified for removal to Family Court because the adolescent offender did not "directly cause" the victim's injuries, since the allegation against him was that he did not stab or beat the victim, but rather stopped the victim's friends from coming to the victim's aid. The court quoted one of the Assembly members who participated in the debate over the Raise the Age legislation, who stated that " 'the caused significant physical injury' factor is intended to disqualify 'the sole actor who causes the conduct outlined in this test' and to disqualify 'the [AO] who directly caused the injury, who displayed the weapon in his or [her] own hand.' " (66 Misc 3d at 783). In People v E.B.M., the court retained the matter in the Youth Part, because, even though the felony complaint accused the defendant of gang assault and acting in concert with several other individuals in punching, kicking and stomping the victim, "each AO codefendant was personally responsible for directly causing" the victim's injuries (63 Misc 3d at 584). The court relied on statements from the same legislator quoted in People v J.H., who observed that prosecution in the Youth Part was not intended for a defendant "who was 'just present or nearby'" during an assault, but rather "an individual who directly caused the significant injury." (id.).
Applying the principles identified in those two cases to the matter before it, Justice Boyle found that, while BG "caused" the surviving victim to fall onto the tracks, he did not cause Hueston's death for purposes of the Raise the Age Act, since Hueston's heroic actions and the appearance of the train that struck him constituted "intervening events." The court also found that BG did not "cause" the surviving victim's arm fracture for purposes of the Act, because the evidence showed that different assailants meted out a variety of blows to the victim, at different points during the attack, and that, as a result, "[i]t cannot be determined from this record when in the course of this assault the significant physical injury, that being the injury to the surviving victim's arm, was sustained, or how or by whom among the assailants." Justice Boyle distinguished People v J.H. on the basis that the injury was not "the result of a cumulative effort on the part of the defendant together with others" but rather a "discrete one which, on this record, could be attributed to a number of different type blows inflicted by various participants."
The People moved under CPL 722.23 (1) (d) to prevent removal to Family Court. Respondent Justice Naita A. Semaj denied the motion, concluding that the case did not involve [*4]"extraordinary circumstances." The court interpreted that phrase to reflect "a very high standard," implicated only as "an extremely rare occurrence," "limited" to cases where there has been "a truly violent felony." Justice Semaj cited to the Assembly record, in which a member commented that "[t]ransfer to the family court should be denied only when highly unusual and heinous facts are proven and there is a strong proof that the young person is not amenable or would not benefit in any way from the heightened services in family court." Applying that standard, the court concluded that the People failed to demonstrate extraordinary circumstances, since "[i]n a time where guns and shootings have become normalized, and in a train station with minimal space to run or hide, [BG]'s reaction to [the surviving victim] reaching in his bag, during an argument cannot be said to be extraordinary, regardless of whether it was reasonable or assumptive."
Justice Semaj rejected the People's argument that BG engaged in "heinous" conduct by pushing the surviving victim onto the tracks and leaving him there unconscious, observing that this argument was "rebutted by the video footage offered by the People," which showed that the surviving victim "was conscious at the time he was pushed on to the tracks and even if he became unconscious once on the tracks, [BG] and another young person are seen going into the tracks and seemingly moving [him], possibly inadvertently, but . . . out of harm's way." The court further noted that Hueston chose to jump onto the train tracks, and that BG left after he "was told to leave by [Hueston]."
The District Attorney of Bronx County now brings this original petition pursuant to CPLR 506(b)(1) and 7804(b), seeking a writ of prohibition of these two orders, which if granted would result in BG being tried in Supreme Court rather than Family Court. Petitioner maintains that the initial decision declining to retain the case in the Youth Part, to the extent it found that BG did not cause the surviving victim's fractured arm or Hueston's death, within the meaning of CPL 722.23(2)(c)(i), so exceeded the court's authority and disregarded settled legal principles to warrant issuance of the writ. Petitioner argues the same with respect to the order denying the People's motion to preclude removal, disagreeing with the court's conclusions that the circumstances were not "extraordinary."
"A writ of prohibition against a judge may be issued only when a court acts or threatens to act without jurisdiction in a matter of which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (Matter of Oglesby v McKinney, 7 NY3d 561, 565 [2006] [internal quotation marks and ellipses omitted]). "Prohibition cannot be used merely to correct errors of law, however egregious and however unreviewable" (id. [internal quotation marks omitted]). The Court of Appeals has stressed that, in the context [*5]of criminal proceedings, the writ should be issued "only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county's geographic jurisdiction" (Matter of Rush v Mordue, 68 NY2d 348, 353 [1986]). "Although the distinction between legal errors and actions in excess of power is not always easily made, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself" (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988] [internal citation omitted]).
Petitioner argues that, in interpreting the Raise the Age Act, the retention hearing court's "departure from the statutory text and from precedent is so manifest as to constitute an unauthorized exercise of discretion." For example, she asserts that the court "exceeded its authority" by reading into the causation requirement for significant injury the word "direct," which does not appear in that section of the statute, and which led the court to conclude that BG was insulated by the assistance of others in the assault on the surviving victim and by Hueston's decision to go to his aid. With respect to the decision denying petitioner's motion to block the removal on grounds of "extraordinary circumstances," petitioner claims that, since it "was based on factual findings that lack record support, her ruling constitutes an improper exercise of judicial authority." We find that these protestations are a routine disagreement with the way in which the two courts, in deciding to remove the matter to Family Court and then rejecting petitioner's motion to preclude that removal, applied and interpreted the relevant law and the facts before them. These are things courts do each and every day, and saying that they constitute an excess of the court's authority does not make it rise to the level where a writ of prohibition may issue. Certainly in this case petitioner has not identified anything in the two decisions that "implicate[d] the legality of the entire proceeding" (Matter of Rush v Mordue, 68 NY2d at 353).
Nor should a writ be issued on the basis that the People have no right to take a direct appeal from the underlying orders (see CPL 450.20). It must be presumed that the legislature purposefully declined to provide an avenue for the People to review the decision by a Justice in the Youth Part to remove the case to Family Court. Further, the Court of Appeals has determined that, it would be "neither civilized nor even rational" in criminal cases to permit collateral review of decisions based solely on the basis of nonreviewability, and "would make speedy trial a legal impossibility" (Matter of State of New York v King, 36 NY2d 59, 63-64 [1975]).
The People ask us to issue a declaratory judgment as to the meaning of "cause" in CPL 722.23(2)(c)(i) and to find that the motion judge abused its discretion in interpreting [*6]"extraordinary circumstances" as used in CPL 722.23(1)(d). Our decision not to issue the writ is not to say that we agree with respondent justices' interpretation and application of those terms in the underlying decisions. Indeed, one could question the first judge's basis for concluding that BG did not "cause" the surviving victim's fractured arm or Hueston's death. As petitioner argues, causation in criminal matters is ordinarily dependent upon whether a person set in motion the events that led to harm to the victim, or materially contributed to those events; there is no requirement that the person be the "sole" cause (see People v Li, 34 NY3d 357, 369 [2019]). The word "cause" in the statute at issue is nowhere qualified by the word "direct," and respondent provides no basis for his conclusion that it should be afforded a different meaning in the context of determining jurisdiction as opposed to criminal liability. It is true, as respondents note, that the discussion in the Assembly included a comment from the member who introduced the legislation that the defendant had to be the "sole actor," for the action to proceed in Supreme Court. However, that statement was a direct answer to a question about whether defendants would be disqualified from removal to Family Court if they were "just present or nearby during the alleged offense or occurrence." That was not the case with BG, who, if not the "sole actor," was far from a bystander and in fact appears to have been at the center of the assault against the surviving victim. Further, it could be argued that one who deliberately throws a person on subway tracks should foresee that a good samaritan will place themselves in harm's way to go to their aid. With respect to the second decision, one could question what set of facts would need to be presented to constitute "extraordinary circumstances," if the present scenario, involving a brutal gang assault and deliberate placement of a person on the subway tracks, does not qualify.
Nonetheless, for the reasons discussed above, we decline to grant petitioner's request to issue a declaratory judgment. Since we have concluded that a writ should not issue under the circumstances, any declaratory relief would amount to an advisory opinion since it would not have an "immediate practical effect on the conduct of the parties" (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 530 [1977]). M-2177 — Darcel D. Clark, etc. v Hon. Denis J. Boyle, etc., et ano.
Motion for a stay, denied.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483055/ | J-S31043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAKIM JORDAN :
:
Appellant : No. 2158 EDA 2021
Appeal from the Judgment of Sentence Entered July 19, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005580-2019
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 10, 2022
Rakim Jordan appeals from the July 19, 2021 aggregate judgment of
sentence of 93 to 186 months’ imprisonment imposed after he pled guilty to
robbery, criminal conspiracy, possessing instruments of crime (“PIC”),
firearms not to be carried without a license, and persons not to possess, use,
manufacture, control, sell or transfer firearms.1 After careful review, we
affirm.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows: On April 14, 2019, Appellant and his co-
conspirator, Dennis Pressley, entered a Boost Mobile store in Delaware
____________________________________________
* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a), 907(b), 6106(a)(1), and 6105(a)(1),
respectively.
J-S31043-22
County, Pennsylvania, pointed a firearm at the store’s employee, and stole
$995.00 from the register and $384.00 dollars’ worth of merchandise. See
Criminal Complaint – Affidavit of Probable Cause, 5/6/19 at 1-2.
On July 19, 2021, Appellant entered an open guilty plea to robbery,
criminal conspiracy, PIC, and multiple firearms offenses in connection with this
incident. As noted, the trial court sentenced Appellant to an aggregate term
of 93 to 186 months’ imprisonment that same day. On July 28, 2021,
Appellant filed a timely post-sentence motion seeking to withdraw his guilty
plea on the grounds that he was coerced into pleading guilty because Pressley
had threatened him if Appellant insisted on calling him to testify at trial. See
Post-Sentence Motion to Withdraw Guilty Plea, 7/28/21 at ¶ 5; Notes of
testimony, 9/3/21 at 13-14.
On September 3, 2021, the trial court held a hearing on Appellant’s
post-sentence motion. Following the hearing, the trial court denied
Appellant’s motion on September 22, 2021, concluding that Appellant had
failed to demonstrate “manifest injustice.” This timely appeal followed.
On October 20, 2021, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal, in accordance with Pa.R.A.P.
1925(b). Appellant filed a timely Rule 1925(b) statement on October 25,
2021. Thereafter, on April 11, 2022, the trial court filed its Rule 1925(a)
opinion concluding that Appellant’s guilty plea was knowing, voluntary, and
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J-S31043-22
intelligent and that his post-sentence motion to withdraw his guilty plea was
properly denied. See trial court opinion, 4/11/22 at 2-5.
Appellant raises the following issue for our review:
1. [Whether] Appellant filed a timely post sentence
motion to withdraw his guilty plea and averred
in his motion that his plea was not willing and
voluntary because he was threatened to do
so[?]
Appellant’s brief at 3.
The decision to allow a defendant to withdraw their guilty plea post-
sentence is a matter that rests within the sound discretion of the trial court.
See Commonwealth v. Muhammad, 794 A.2d 378, 382-383 (Pa.Super.
2002).
It is well settled in this Commonwealth that the entry of a guilty plea
constitutes a waiver of “all non-jurisdictional defects except the legality of the
sentence and the validity of the plea.” Commonwealth v. Lincoln, 72 A.3d
606, 609 (Pa.Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014). When
a defendant seeks to withdraw a plea after sentencing, as is the case here, he
must demonstrate “prejudice on the order of manifest injustice before
withdrawal is justified.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046
(Pa.Super. 2011) (citation omitted). “A plea rises to the level of manifest
injustice when it was entered into involuntarily, unknowingly, or
unintelligently.” Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.
1999), appeal denied, 764 A.2d 1068 (Pa. 2000).
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J-S31043-22
“The law does not require that appellant be pleased with the outcome
of his decision to enter a plea of guilty[; a]ll that is required is that
[appellant’s] decision to plead guilty be knowingly, voluntarily, and
intelligently made.” Commonwealth v. Diaz, 913 A.2d 871, 873 (Pa.Super.
2006) (citation and internal quotation marks omitted), appeal denied, 931
A.2d 656 (Pa. 2007). In order to ensure a voluntary, knowing, and intelligent
plea, trial courts are required make the following inquires in the guilty plea
colloquy:
(1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) he is
giving up his right to trial by jury; (4) and the
presumption of innocence; (5) he is aware of the
permissible ranges of sentences and fines possible;
and (6) the court is not bound by the terms of the
agreement unless the court accepts the plea.
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.Super. 2016) (citation
omitted); see also Pa.R.Crim.P. 590.
“Pennsylvania law presumes a defendant who entered a guilty plea was
aware of what he was doing, and the defendant bears the burden of proving
otherwise.” Kpou, 153 A.3d at 1024 (citation omitted).
Here, a review of the certified record supports the trial court’s conclusion
that Appellant was not entitled to withdraw his plea. On the contrary,
Appellant’s contention that his open guilty plea was involuntary and the result
of coercion is belied by the record. On July 19, 2021, Appellant executed a
written guilty plea colloquy wherein he acknowledged, inter alia, that no
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J-S31043-22
promises or threats were made to him with regard to his guilty plea and that
he was pleading guilty of his own free will. See “Guilty Plea Statement,”
7/19/21 at 3, ¶ 28. That same day, the trial court conducted an on the record
colloquy, as mandated by Rule 590. The transcript of the guilty plea colloquy
demonstrates that the trial court inquired at great length with regard to
Appellant’s decision to plead guilty.
Specifically, Appellant indicated during this hearing that he understood
his right to a jury trial and that he was considered innocent until proven guilty.
Appellant further acknowledged that he was not under the influence of alcohol
or drugs; that he understood the elements of the charges he was pleading
guilty to; and was informed of the permissible ranges of sentences for each
count. The record indicates that Appellant was given a factual basis for the
plea. The trial court also provided Appellant with an explanation of his
appellate rights, and Appellant indicated that he understood them. Notes of
testimony, 7/19/21 at 10-23.
Moreover, Appellant was directly asked during the oral colloquy, “Are
you being pressured, coerced or threatened into take [sic] a plea here today?”
and Appellant responded, “No.” Id. at 20.
This court has long recognized that “[a] person who elects to plead guilty
is bound by the statements he makes in open court while under oath and he
may not later assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.” Commonwealth v. Turetsky,
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J-S31043-22
925 A.2d 876, 881 (Pa.Super. 2007) (citation omitted), appeal denied, 940
A.2d 365 (Pa. 2007). Based on the foregoing, we find that Appellant is bound
by the statements he made during his plea colloquy, and his claim that the
guilty plea was a product of coercion is meritless.
Accordingly, we discern no abuse of discretion on the part of the trial
court in denying Appellant’s post-sentence motion to withdraw his guilty plea
and affirm the July 19, 2021 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2022
-6- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483012/ | IN THE SUPREME COURT OF THE STATE OF DELAWARE
IN THE MATTER OF THE §
PETITION OF ALTON § No. 331, 2022
CANNON FOR A WRIT OF §
HABEAS CORPUS §
Submitted: October 26, 2022
Decided: November 9, 2022
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
After careful consideration of the notice to show cause and the appellant’s
response, it appears to the Court that:
(1) On September 13, 2022, the appellant, Alton Cannon, filed in this Court
a petition for a writ of habeas corpus, seeking to be removed from the Delaware Sex
Offender Registry. The Senior Court Clerk issued a notice directing Cannon to show
cause why his petition should not be dismissed for this Court’s lack of original
jurisdiction to issue a writ of habeas corpus. Cannon has filed a response to the
notice to show cause but does not address the jurisdictional issue raised in the notice.
(2) It is well-settled that this Court has no original jurisdiction to issue a
writ of habeas corpus.1 Accordingly, Cannon’s petition manifestly fails on its face
to invoke the original jurisdiction of the Court, and it must be dismissed.
1
In re Cantrell, 678 A.2d 525, 526 (Del. 1996); 10 Del. C. § 6901.
NOW, THEREFORE, IT IS HEREBY ORDERED, under Supreme Court
Rule 29(b), that the petition for a writ of habeas corpus is DISMISSED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483038/ | [Cite as State v. Donley, 2022-Ohio-4003.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29429
:
v. : Trial Court Case No. 2014-CR-1142
:
ISREAL DONLEY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 10th day of November, 2022.
...........
MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ISREAL DONLEY, Inmate No. 714-135, Marion Correctional Institution, P.O. Box 57,
Marion, Ohio 43301
Defendant-Appellant, Pro Se
.............
WELBAUM, J.
-2-
{¶ 1} Defendant-appellant, Isreal Donley, appeals pro se from a judgment of the
Montgomery County Court of Common Pleas overruling his petition for post-conviction
relief. Because the trial court lacked jurisdiction to consider on Donley’s untimely
petition, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} In February 2015, Donley was tried by a jury and found guilty of one count of
possession of cocaine and one count of having weapons while under disability. The jury
reached its verdict after the State presented the following evidence at Donley’s trial.
{¶ 3} On March 26, 2014, Detective Patrick O’Connell of the Montgomery County
R.A.N.G.E. Task Force observed a suspected drug transaction between the resident of a
home occupied by a known drug dealer and the driver of a white GMC Yukon, who was
later identified as Donley. Det. O’Connell informed his fellow task force member, Deputy
Frederick Zollers, of the transaction and advised Dep. Zollers that the Yukon had very
dark window tint. After the Yukon left the residence, Dep. Zollers initiated a traffic stop
based on the window tint and ran Donley’s identification information through his computer
system. In doing so, Dep. Zollers learned that the vehicle was registered to Donley’s
wife, Alma, and that Donley had an outstanding warrant from the juvenile court for a child
support issue. Dep. Zollers thereafter arrested Donley pursuant to the warrant and
called for a canine unit to do a sniff of the vehicle.
{¶ 4} Within a few minutes, Deputy Joseph Caito arrived at the scene with his
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canine. Dep. Caito walked his canine around the vehicle and the canine alerted to the
odor of drugs at the area between the front and rear driver-side doors of the vehicle.
Thereafter, Dep. Caito terminated the drug sniff, returned his canine to his cruiser, and
assisted Dep. Zollers with searching the interior of the vehicle. The search, however, did
not yield any drugs.
{¶ 5} Because Donley had been arrested and was the sole occupant of the vehicle,
Dep. Zollers had Donley’s vehicle towed. Before the tow truck driver drove away with
the vehicle, a man who identified himself as Donley’s brother asked if he could get
something out of the vehicle. Because the vehicle was being impounded by the police,
the tow truck driver did not let the man retrieve anything out of the vehicle.
{¶ 6} At the tow yard, the tow truck driver attempted to start Donley’s vehicle so
that he could put it in a parking spot, but the vehicle would not start. The tow truck driver
then looked under the hood of the vehicle to see if there was a mechanical problem. In
doing so, the tow truck driver found a gun and a magazine inside a brown, wool-knit hat
that was lying on top of the vehicle’s battery. The tow truck driver also discovered that
the battery had a loose connection.
{¶ 7} After finding the gun and the magazine, the tow truck driver contacted the
sheriff’s office. The sheriff’s office then sent an evidence technician to the tow yard.
While the evidence technician was collecting evidence related to the gun, a tow yard
employee, “out of curiosity,” flipped open the vehicle’s gas tank lid and observed a pair of
brown jersey gloves wadded up on top of the gas cap. The evidence technician told the
employee not to touch the gloves and then removed the gloves himself. In doing so, the
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evidence technician found inside one of the gloves a baggie containing a white powdery
substance that tested positive for cocaine.
{¶ 8} The baggie of drugs and the gun were swabbed for DNA and tested by a
forensic scientist at the Miami Valley Regional Crime Lab. No testing could be performed
on the swabs taken from the gun due to there being insufficient DNA to analyze. The
test results from the baggie, however, excluded Donley as a possible DNA contributor.
{¶ 9} On July 8, 2014, officers searched other vehicles registered to Donley’s wife
that Donley used. During the search of a white Cadillac located in front of Donley’s
residence, officers found brown gloves underneath the hood in the engine compartment.
The brown gloves were similar to the garments that were found under the hood of the
Yukon at the tow yard.
{¶ 10} As noted above, the jury considered the foregoing information and found
Donley guilty of possession of cocaine and having weapons while under disability. The
trial court then held a joint sentencing hearing during which it sentenced Donley for the
aforementioned offenses and for offenses in Montgomery C.P. Nos. 2014-CR-2391 and
2014-CR-3312. The trial court imposed a ten-year prison term for possession of cocaine
and a concurrent three-year prison term for having weapons while under disability. The
trial court ordered the resulting ten-year prison term to be served concurrently to a 36-
month prison term imposed in Case No. 2014-CR-2391 and consecutively to a 36-month
prison term imposed in Case No. 2014-CR-3312. Donley was therefore sentenced to an
aggregate term of 13 years in prison.
{¶ 11} Donley appealed from his convictions. In doing so, Donley raised several
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assignments of error, including that his convictions for possession of cocaine and having
weapons while under disability were not supported by sufficient evidence and were
against the manifest weight of the evidence. On February 17, 2017, this court affirmed
Donley’s conviction for possession of cocaine but vacated his conviction for having
weapons while under disability on grounds that there was insufficient evidence to
establish that Donley knowingly possessed the gun that was discovered in his vehicle.
State v. Donley, 2017-Ohio-562, 85 N.E.3d 324, ¶ 60-66 (2d Dist.).
{¶ 12} Over two years later, on May 10, 2019, Donley filed a “Motion for Final
Appealable Order” wherein he challenged the post-release control sanctions imposed by
the trial court at his joint sentencing hearing. The trial court denied the motion and
Donley appealed. On appeal, we found that the trial court had misstated the post-
release control sanctions imposed in Case Nos. 2014-CR-2391 and 2014-CR-3312, but
we found no error in the post-release control sanction imposed in the instant case. State
v. Donley, 2d Dist. Montgomery No. 28461, 2020-Ohio-391, ¶ 10-11, 20. Accordingly,
we affirmed the judgment of the trial court in this case. Id. at ¶ 21. Donley thereafter
appealed to the Supreme Court of Ohio, which declined to accept jurisdiction over the
matter. State v. Donley, 159 Ohio St.3d 1408, 2020-Ohio-3174, 146 N.E.3d 587.
{¶ 13} On August 12, 2021, more than six years after his conviction, Donley filed
a petition for post-conviction relief pursuant to R.C. 2953.21. In the petition, Donley
argued that he was denied his constitutional rights to a fair trial and confrontation because
he had been unable to confront and attack the credibility of one of the State’s trial
witnesses, Dep. Caito, using certain criminal activity and misconduct in which Dep. Caito
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had engaged near the time of Donley’s trial. The criminal activity Donley referred to was
a fourth-degree-felony conviction for grand theft that Dep. Caito acquired in 2017 for
stealing money from a local police union between 2014 and 2016. Donley also referred
to a “Letter of Caution” that the Montgomery County Sheriff’s Office issued to Dep. Caito
on April 2, 2014. The “Letter of Caution,” which Donley attached to his petition,
reprimanded Dep. Caito for purposely turning off his “In-Car Recording body microphone”
and making a threatening remark to a citizen detained in the back seat of his cruiser.
Petition (Aug. 12, 2021), Ex. C-1.
{¶ 14} Donley argued in his petition that evidence of Dep. Caito’s criminal activity
and the “Letter of Caution” would have been admissible at trial for purposes of attacking
the veracity and credibility of Dep. Caito’s testimony. Donley claimed that this evidence
would have “shifted the balance of justice” in his favor had it been presented to the jury.
Petition, p. 4. While Donley acknowledged that Dep. Caito’s criminal activity had not
been discovered until after his trial, he nevertheless argued that he should not be deprived
of his right to confront a witness “simply because police were slow to discover the thefts
from their very own police union that were taking place prior to and during [his] trial.”
Reply to State’s Memo in Opposition (Oct. 14, 2021), p. 4-5.
{¶ 15} Donley conceded that his petition for post-conviction relief was untimely, but
he argued that his delay in filing the petition was excusable under R.C. 2953.23(A)(1)
because he was unavoidably prevented from discovering the facts on which his petition
was based. Specifically, Donley argued that he became aware of Dep. Caito’s criminal
activity only because his uncle inadvertently discovered a Dayton Daily News article from
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April 10, 2017, that reported on Dep. Caito’s grand theft conviction. Donley claimed that
his uncle provided him with the article in August or September 2020, and that he could
not have obtained it any earlier due to his being in prison and having no access to the
internet or news outlets.
{¶ 16} Donley also claimed that he and his family had no reason to investigate
Dep. Caito until after they learned of his conviction and that it was not until such
investigation that they were able to discover the “Letter of Caution.” Donley further
argued that he was unavoidably prevented from discovering the facts and evidence upon
which his petition was based because the authorities did not discover Dep. Caito’s
criminal activity until after his trial.
{¶ 17} In ruling on Donley’s petition, the trial court did not address whether the trial
court had jurisdiction to review the untimely petition as permitted by R.C. 2953.23(A)(1).
The trial court also did not address the portion of Donley’s argument pertaining to Dep.
Caito’s criminal activity. Instead, the trial court focused on Donley’s argument that he
was denied his rights to a fair trial and confrontation due to being deprived of the ability
to confront and challenge Dep. Caito’s credibility using the “Letter of Caution.”
{¶ 18} In considering Donley’s “Letter of Caution,” the trial court found that the
letter constituted extrinsic evidence of a specific instance of conduct that, pursuant to
Evid.R. 608(B), would not have been admissible to attack Dep. Caito’s character for
truthfulness at trial. Although the trial court recognized that Evid.R. 404(B) allows for
evidence of prior bad acts to be admitted for certain permissible purposes, the trial court
determined that Donley would not have used the “Letter of Caution” for any of the
-8-
permitted purposes. Instead, the trial court found that Donley proposed that he would
have used the “Letter of Caution” to attack Dep. Caito’s character, which was prohibited.
Therefore, the trial court determined that the “Letter of Caution” would not have been
admissible at trial. Because of this, the trial court concluded that Donley failed to
establish a sufficient basis for post-conviction relief and overruled his petition.
{¶ 19} Donley now appeals from the trial court’s judgment overruling his petition
for post-conviction relief and raises a single assignment of error for review.
Assignment of Error
{¶ 20} Under his assignment of error, Donley raises the same arguments that he
raised in his petition for post-conviction relief, i.e., that he was denied his rights to a fair
trial and confrontation because he was unable to confront and challenge Dep. Caito’s
credibility at trial using his criminal activity and the “Letter of Caution.” Upon review, we
find that the trial court properly overruled Donley’s petition for post-conviction relief, as
the trial court lacked jurisdiction to review Donley’s untimely petition.
{¶ 21} Except as otherwise provided by R.C. 2953.23, petitions for postconviction
relief must “be filed no later than three hundred sixty-five days after the date on which the
trial transcript is filed in the court of appeals in the direct appeal of the judgment of
conviction or adjudication[.]” R.C. 2953.21(A)(2)(a). A trial court lacks jurisdiction to
consider an untimely petition for postconviction relief unless otherwise permitted by R.C.
2953.23. State v. Morris, 2d Dist. Montgomery No. 27875, 2018-Ohio-4527, ¶ 16.
{¶ 22} R.C. 2953.23(A)(1)(a) allows a trial court to consider an untimely petition if
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the petitioner shows that: (1) he was unavoidably prevented from discovering the facts
upon which he relies to present his claim for relief; or (2) the United States Supreme Court
recognized a new federal or state right that applies retroactively to his situation, and his
petition asserts a claim based on that right. State v. Baker, 2d Dist. Montgomery No.
27596, 2017-Ohio-8602, ¶ 13, citing R.C. 2953.23(A)(1)(a). “The petitioner must also
show by clear and convincing evidence that, if not for the constitutional error from which
he suffered, no reasonable factfinder would have found him guilty.” Id., citing R.C.
2953.23(A)(1)(b).
{¶ 23} In this case, there is no dispute that Donley’s petition for post-conviction
relief was untimely. Accordingly, for the trial court to have had jurisdiction to review
Donley’s petition, Donley first had to show that he had been unavoidably prevented from
discovering the facts upon which he relied to present the claims in his petition or that the
claims in his petition were based on a new federal or state right that applied retroactively
to his situation. As previously discussed, Donley claims that the untimeliness of his
petition should be excused because he was unavoidably prevented from discovering Dep.
Caito’s criminal activity and the “Letter of Caution”—not because of a new federal or state
right.
{¶ 24} Upon review, we find that even if this court were to conclude that Donley
had been unavoidably prevented from discovering Dep. Caito’s criminal activity and the
“Letter of Caution,” Donley did not satisfy the second requirement under R.C.
2953.23(A)(1)(b). Again, that section of the statute required Donley to prove by clear
and convincing evidence that no reasonable factfinder would have found him guilty but
-10-
for the constitutional error on which his petition was based. To satisfy this requirement,
“it is not enough for [Donley] to claim to have acquired new evidence that is somehow
relevant to his case; [Donley] must prove by clear and convincing evidence that an
outcome-determinative constitutional error occurred at trial.” State v. Kraus, 6th Dist.
Ottawa No. OT-18-014, 2018-Ohio-5283, ¶ 21.
{¶ 25} The constitutional error on which Donley’s petition is based was that he had
been denied his rights to a fair trial and confrontation because he was unable to confront
and challenge Dep. Caito’s credibility at trial using his criminal activity and the “Letter of
Caution.” However, it has been recognized that “ ‘[[a] witness] credibility challenge is
insufficient to demonstrate, by clear and convincing evidence, that “no reasonable
factfinder would have found the petitioner guilty of the offense of which the petitioner was
convicted.” ’ ” Id., quoting State v. Sprenz, 9th Dist. Summit No. 22433, 2005-Ohio-1491,
¶ 11, quoting 2953.32(A)(1)(b). This is because “the burden of clear and convincing
[evidence] cannot be satisfied by mere conjecture or speculation.” Middletown v.
McGee, 39 Ohio St.3d 284, 286, 530 N.E.2d 902 (1988).
{¶ 26} Here, Donley’s claim that the jury’s verdict would have shifted in his favor
had he been able to challenge Dep. Caito’s credibility using the criminal activity in
question and the “Letter of Caution” was purely speculative. Because his claim was
based on speculation and conjecture, it was insufficient to satisfy the clear and convincing
evidence requirement in R.C. 2952.23(A)(1)(b). See State v. Carter, 2d Dist. Clark No.
2003-CA-11, 2003-Ohio-4838, ¶ 15; State v. Greathouse, 2d Dist. Montgomery No.
23259, 2010-Ohio-1617, ¶ 30; State v. Gray, 8th Dist. Cuyahoga No. 106589, 2018-Ohio-
-11-
3678, ¶ 37-38.
{¶ 27} In so holding, we note that Dep. Caito had a very limited role in this case,
as he simply responded to a traffic stop for purposes of conducting a canine sniff.
Although Dep. Caito helped Dep. Zollers conduct a search of Donley’s vehicle after his
canine alerted to drugs, the record indicates that the deputies did not find any drugs during
the search. In addition, the record indicates that Dep. Caito left the scene of the traffic
stop before the search of the vehicle was completed because he had to conduct a canine
sniff at another location. It is also clear that Dep. Caito was not present when the drugs
were later found in the vehicle’s gas cap at the tow yard. Given Dep. Caito’s limited role
in the case, we fail to see how attacking his credibility in the manner proposed by Donley
would have affected the jury’s verdict.
{¶ 28} In an effort to establish otherwise, Donley noted that the sheriff’s office
erased the cruiser video footage of his traffic stop and suggested that Dep. Caito’s
criminal activity and his act of improperly turning off his body microphone as described in
the “Letter of Caution” supported the notion that Dep. Caito possibly destroyed the cruiser
video in order to cover up wrongful activity by the officers. Based on this assertion,
Donley argued that knowledge of Dep. Caito’s criminal activity and the “Letter of Caution”
would have shifted the jury’s verdict in his favor.
{¶ 29} Again, this claim was purely speculative and insufficient to satisfy the clear
and convincing evidence requirement in R.C. 2953.23(A)(1)(b). Also, in Donley’s direct
appeal, this court determined that there was no indication that the cruiser video had been
destroyed by the sheriff’s office in bad faith. Donley, 2017-Ohio-562, 85 N.E.3d 324, at
-12-
¶ 72. Specifically, Dep. Zollers testified that since the gun and drugs were not found
during the traffic stop, the cruiser video was categorized as a traffic stop and destroyed
within 30 days of the incident in accordance with the retention policy of the sheriff’s office.
Id. We also note that the record establishes that Donley had the opportunity to cross-
examine Dep. Caito and the other officers regarding the destruction of the cruiser video,
as Donley knew about the destruction of the video at the time of trial and challenged it on
appeal.
{¶ 30} Because the claims in Donley’s petition for post-conviction relief concerned
a witness-credibility challenge and were purely speculative, they did not satisfy the
requirement under R.C. 2953.23(A)(1)(b). For this reason, the trial court lacked
jurisdiction to review Donley’s untimely petition. Although the trial court did not reach
this conclusion in its decision, the fact remains that the trial court correctly overruled
Donley’s petition, albeit for a different reason. See State v. Hall, 2d Dist. Miami No. 1997-
CA-22, 1997 WL 691509, *1 (Oct. 24, 1997), citing Newcomb v. Dredge, 105 Ohio App.
417, 152 N.E.2d 801 (2d Dist.1957) (“[i]f a trial court has stated an erroneous basis for its
judgment, an appellate court will affirm the judgment if it is legally correct on other
grounds, that is, when it achieves the right result for the wrong reasons”).
{¶ 31} For all the foregoing reasons, Donley’s assignment of error is overruled.
Conclusion
{¶ 32} Having overruled Donley’s sole assignment of error, the judgment of the
trial court is affirmed.
-13-
.............
DONOVAN, J. and LEWIS, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Elizabeth A. Ellis
Isreal Donley
Hon. Dennis J. Adkins | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483003/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1453
___________________________
LaRonda Phox
lllllllllllllllllllllPlaintiff - Appellant
v.
21c Management LLC
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: November 4, 2022
Filed: November 10, 2022
[Unpublished]
____________
Before COLLOTON, MELLOY, and KOBES, Circuit Judges.
____________
PER CURIAM.
LaRonda Phox appeals following the district court’s1 adverse grant of summary
judgment in her pro se employment action. After careful review of the record and the
1
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
parties’ arguments on appeal, we conclude that the district court properly dismissed
Phox’s breach-of-fiduciary-duty claim, and properly granted summary judgment as
to her remaining claims. See Waters v. Madson, 921 F.3d 725, 734 (8th Cir. 2019)
(dismissal for failure to state claim is reviewed de novo); Banks v. John Deere & Co.,
829 F.3d 661, 665 (8th Cir. 2016) (grant of summary judgment is reviewed de novo).
We also find no abuse of discretion in the district court’s ruling on Phox’s request for
an on-site inspection in connection with her request for production. See Life Plus
Int’l v. Brown, 317 F.3d 799, 806 (8th Cir. 2003) (district court’s decisions
concerning its management of discovery process are reviewed for abuse of
discretion). Finally, Phox’s argument that 21c Management LLC’s answer was
untimely is not properly before us, as she raised the argument for the first time in
post-judgment motions and did not file a new or amended notice of appeal (NOA)
after the district court denied those motions. See Fed. R. App. P. 4(a)(4)(B)(ii) (party
intending to challenge order disposing of certain post-judgment motions must timely
file NOA or amended NOA); Miles v. Gen. Motors Corp., 262 F.3d 720, 722-23 &
n.3 (8th Cir. 2001) (appellate court lacks jurisdiction over order denying post-
judgment motion without amended NOA).
Accordingly, we affirm. See 8th Cir. R. 47B. We also deny the pending
motion for appointment of counsel as moot.
______________________________
-2- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483057/ | J-S35033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERICA LYNN FINNERAN :
:
Appellant : No. 885 MDA 2022
Appeal from the Judgment of Sentence Entered June 3, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003056-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 10, 2022
Appellant Erica Lynn Finneran appeals from the judgment of sentence
entered by the Court of Common Pleas of Dauphin County after Appellant was
convicted of Driving while Under the Influence of a Controlled Substance in
violation of 75 Pa.C.S.A. § 3802(d)(1)(i). Counsel has filed a petition to
withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d
349 (2009) (hereinafter “Anders brief”). We affirm the judgment of sentence
and grant counsel’s petition to withdraw.
On March 29, 2020, Pennsylvania State Police Corporal Darren Mordorf
seized Appellant’s vehicle, after finding Appellant had stopped in the travel
lane of State Route 225 in the area of Bastian Road. Notes of Testimony (N.T.),
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S35033-22
Trial, 4/1/22, at 5-8. Thereafter, at approximately 8:50 p.m., Trooper Kyle
Kinney was summoned to the scene to provide assistance and he approached
the driver side of Appellant’s vehicle. N.T. at 7.
Trooper Kinney immediately observed an odor of marijuana emanating
from the vehicle and noticed that Appellant was speaking very quickly and her
eyes were bloodshot with dilated pupils. N.T. at 7. Based on these
observations, Trooper Kinney required Appellant to exit her vehicle to perform
field sobriety testing such as the horizontal gaze nystagmus test, the walk and
turn test, the one-leg stand test, and the lack of convergence test. N.T. at 9-
10. After Appellant exhibited multiple signs of impairment during field sobriety
testing, she admitted that she had smoked marijuana earlier that day and had
been taking a prescription amphetamine. N.T. at 11.
At that point, Trooper Kinney placed Appellant under arrest for suspicion
of DUI and transported her for a blood draw at the state police barracks. N.T.
at 11-13. Appellant consented to the blood test, which was performed at 9:44
p.m. and showed the presence of Delta-9 THC, the active ingredient for
marijuana, as well as amphetamines. N.T. at 12-14.
After Appellant was placed under arrest and charged with DUI, Appellant
filed no pretrial motions. While initially Appellant was scheduled to enter a
guilty plea, she ultimately decided to proceed to a bench trial. Trooper Kinney
testified for the prosecution and Appellant testified on her own behalf, claiming
she has been prescribed medical marijuana.
-2-
J-S35033-22
On April 1, 2022, the trial court found Appellant guilty of DUI and
ordered the preparation of a pre-sentence investigation report (PSI). On June
3, 2022, the trial court sentenced Appellant to six months’ restrictive
probation with the first 72 hours on electronic monitoring/house arrest and
also imposed a fine and costs. Appellant did not file a post-sentence motion.
On June 15, 2022, Appellant filed this notice of appeal.
On June 20, 2022, the trial court ordered Appellant to file a Concise
Statement of Errors on Appeal pursuant to Pa.R.A.P. 1925(b). Thereafter, on
July 6, 2022, counsel filed notice of his intent to file an Anders brief in lieu of
a concise statement. As such, the trial court did not prepare a responsive
Pa.R.A.P. 1925(a) opinion.
We must first evaluate counsel's request to withdraw before reaching
the merits of the case. Commonwealth v. Washington, 63 A.3d 797, 800
(Pa.Super. 2013); see also Commonwealth v. Rojas, 874 A.2d 638, 639
(Pa.Super. 2005) (stating, “[w]hen faced with a purported Anders brief, this
Court may not review the merits of the underlying issues without first passing
on the request to withdraw”) (citation omitted).
There are procedural and briefing requirements imposed upon an
attorney who seeks to withdraw on appeal pursuant to which counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court's
attention.
-3-
J-S35033-22
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). We further review counsel's Anders brief for
compliance with the requirements set forth in the Supreme Court’s decision in
Santiago:
[W]e hold that in the Anders brief that accompanies court-
appointed counsel's petition to withdraw, counsel must: (1)
provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel's conclusion that the appeal is frivolous; and (4) state
counsel's reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 602 Pa. at 178-79, 978 A.2d at 361.
The Supreme Court in Santiago clarified that Anders does not
“require[] that counsel's brief provide an argument of any sort, let alone the
type of argument that counsel develops in a merits brief. [W]hat the brief
must provide under Anders are references to anything in the record that
might arguably support the appeal.” Id. at 176, 978 A.2d at 359-360.
Moreover, counsel must provide a copy of the Anders brief to his client.
“Attending the brief must be a letter that advises the client of his right to: ‘(1)
retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the court’s attention in
addition to the points raised by counsel in the Anders brief.’”
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa.Super. 2014) (quoting
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super. 2007)).
-4-
J-S35033-22
In this case, counsel filed an Anders brief with his application to
withdraw as counsel, in which he states that he made a conscientious
examination of the record and determined there are no non-frivolous grounds
for the appeal. We find counsel’s brief and petition substantially comply with
the technical requirements of Anders and Santiago.
Moreover, counsel provided this Court with a copy of the letter which he
sent to Appellant advising her of her right to retain new counsel or to proceed
pro se to raise any points that she deems worthy of this Court's attention. See
Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005). Therefore, we
proceed to examine the issue counsel identified in the Anders brief and then
conduct “a full examination of all the proceedings, to decide whether the case
is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1195
(Pa.Super. 2018) (en banc) (quotation omitted).
As noted above, in response to the trial court’s 1925(b) order, counsel
filed a statement of his intent to file an Anders brief and noted that Appellant
wished to challenge the sufficiency of the evidence supporting her DUI
conviction. Counsel also noted that Appellant had not preserved any other
claims in the lower court for appeal.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
When reviewing a challenge to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the
Commonwealth as verdict winner, giving it the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751
-5-
J-S35033-22
(2000). “Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Lynch, 72 A.3d 706, 708 (Pa.Super.
2013) (en banc) (citation omitted). Any doubt about the
defendant's guilt is to be resolved by the fact-finder unless the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined circumstances.
See Commonwealth v. DiStefano, 782 A.2d 574, 582
(Pa.Super. 2001). Additionally, the Commonwealth may sustain
its burden solely by means of circumstantial evidence. Lynch, 72
A.3d at 708.
Commonwealth v. Lake, 281 A.3d 341, 345–46 (Pa.Super. 2022).
Appellant was charged with DUI under Section § 3802(d)(1) of the
Vehicle Code, which provides that:
[a]n individual may not drive, operate or be in actual physical
control of the movement of a vehicle under any of the following
circumstances:
(i) Schedule I controlled substance, as defined in the act of April
14, 1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device, and Cosmetic Act [(“CSA”)];
(ii) Schedule II or Schedule III controlled substance, as defined in
[the CSA], which has not been medically prescribed for the
individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
75 Pa.C.S.A. § 3802(d)(1).
Thus, Section 3802(d)(1) prohibits an individual from driving after using
a Schedule I controlled substance. To sustain a conviction under this Section
3802(d)(1) on this basis, the Commonwealth must provide that the defendant,
at the time of driving, had in his blood either (1) the active compound of a
Schedule I drug or (2) a metabolite of a Schedule I drug. Commonwealth v.
Given, 244 A.3d 508, 511 (Pa.Super. 2020). The CSA classifies marijuana or
-6-
J-S35033-22
“marihuana” as a Schedule I controlled substance. 35 P.S. § 780-104(1)(iv).
This Court has noted that Delta-9-THC is the active compound in marijuana.
Given, 244 A.3d at 509. It is also important to recognize that under Section
3802(d)(1), proof of actual impairment is not required. Commonwealth v.
Dabney, 274 A.3d 1283, 1288 (Pa.Super. 2022) (citations omitted).
The record contains ample evidence to support Appellant’s conviction
under Section 3802(d)(i). Troopers found Appellant in physical control of her
vehicle, which was blocking the travel lane of SR225. As Appellant
demonstrated indicators of impairment, failed sobriety testing and admitted
to smoking marijuana earlier that day, the troopers placed Appellant under
arrest and requested that she submit to a blood draw. Appellant consented to
the blood draw, which showed that her blood contained Delta 9-THC, the
active ingredient in marijuana, at the time she had been driving.
We acknowledge that Appellant had claimed at trial that she had been
prescribed medical marijuana. However, the Vehicle Code provides that “[t]he
fact that a person charged with [DUI] is or has been legally entitled to use
alcohol or controlled substances is not a defense to a charge of [DUI].” 75
Pa.C.S.A. § 3810. In a recent en banc decision, Commonwealth v. Stone,
273 A.3d 1163 (Pa.Super. 2022) (en banc), this Court concluded that as
“marijuana remains a Schedule I controlled substance under current
Pennsylvania law[,] … the Commonwealth is not required to prove that the
marijuana in an individual’s bloodstream is non-medical marijuana for
purposes of proving DUI.” Id. at 1174.
-7-
J-S35033-22
Therefore, we agree with the trial court that there was sufficient
evidence to support Appellant’s conviction for DUI under Section 3802(d)(1).
and agree with counsel’s assessment that this argument is wholly frivolous.
“Furthermore, after conducting a full examination of all the proceedings as
required pursuant to Anders, we discern no non-frivolous issues to be raised
on appeal.” Yorgey, 188 A.3d at 1195.
Accordingly, we affirm Appellant's judgment of sentence and grant
counsel's petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2022
-8- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483053/ | J-S35035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON ROSS SNYDER :
:
Appellant : No. 633 MDA 2022
Appeal from the PCRA Order Entered April 20, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001511-2017
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 10, 2022
Appellant Brandon Ross Snyder files this pro se appeal from the order
of the Court of Common Pleas of Schuylkill County denying Appellant’s second
petition pursuant to the Post-Conviction Relief Act (PCRA).1 We affirm this
order on different grounds than those set forth by the PCRA court.
In July 2017, Appellant was charged with aggravated assault of a police
officer, simple assault, resisting arrest, harassment, and summary offenses.
Appellant waived his right to counsel and represented himself at his April 2019
jury trial with the assistance of standby counsel, Adam Weaver, Esq.
At the conclusion of the trial, the jury convicted Appellant of the
aforementioned charges and the trial court found Appellant guilty of the
summary charges. On May 17, 2019, the trial court sentenced Appellant to
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
J-S35035-22
an aggregate term of three to six years’ imprisonment. Appellant filed a timely
post-sentence motion which the trial court denied on May 24, 2019. Appellant
did not file a direct appeal.2
On June 27, 2019, Appellant filed his first pro se PCRA petition, raising
claims of the ineffective assistance of his standby counsel, as well as his claim
that he did not have the opportunity to cross-examine a witness and his
characterization of himself as the victim.
After the PCRA court appointed Hank J. Clarke, Esq. as Appellant’s
counsel on collateral review, the PCRA court held an evidentiary hearing on
November 5, 2020 and dismissed the petition on December 30, 2020.
On August 17, 2021, this Court affirmed the PCRA court’s order
dismissing Appellant’s first PCRA petition and granted counsel permission to
withdraw. Commonwealth v. Snyder, 136 MDA 2021, 2021 WL 3629952
(Pa.Super. filed Aug. 17, 2021) (unpublished memorandum).3 Appellant did
not file a petition for allowance of appeal with the Supreme Court.
____________________________________________
2 There was some confusion when the trial court later mistakenly determined
that Appellant’s post-sentence motion was still pending. This procedural
history was explained in this Court’s prior decision in Commonwealth v.
Snyder, 1420 MDA 2019, 2020 WL 1245129 (Pa.Super. filed Mar. 16, 2020)
(unpublished memorandum). However, as this procedural history does not
have any effect on the instant case, we need not discuss it again.
3 With respect to Appellant’s claims of ineffective assistance of counsel, this
Court noted that as Appellant waived his right to counsel and chose to
represent himself at trial, he was not entitled to collateral relief in raising
claims of the ineffective assistance of standby counsel. Id. (citing
Commonwealth v. Williams, 196 A.3d 1021, 1027 (Pa. 2018) (clarifying
that “[w]e will not consider any ineffectiveness claims that arise from the
period of self-representation”).
-2-
J-S35035-22
On September 7, 2021, Appellant filed a second PCRA petition, alleging
Atty. Clarke, his collateral counsel, deprived him of the right to appeal. On
January 18, 2022, Appellant filed another PCRA petition, repeating his claims
from his second petition that Atty. Clarke interfered with his appeal rights and
also adding claims that Appellant was the true victim and did not have proper
opportunity to cross-examine witnesses.
Although not directly stated on the record, it appears that the PCRA
court treated Appellant’s January 18, 2022 petition as an amendment to his
September 7, 2021 petition. See Pa.R.Crim.P. 905 (“[t]he judge may grant
leave to amend or withdraw a petition for post-conviction collateral relief at
any time. Amendment shall be freely allowed to achieve substantial justice”).
We also note that Appellant sent countless pro se filings to the trial court after
being repeatedly advised to send filings to the clerk of court.
While Appellant’s petition was still pending, on February 2, 2022,
Appellant filed a notice of appeal, purporting to appeal from the denial of the
September 7, 2021 petition, which Appellant alleged had been denied “by
operation of law.” This appeal was docketed at 192 MDA 2022.
On April 14, 2022, this Court entered a per curiam order, quashing the
appeal at 192 MDA 2022 as Appellant’s September 7, 2021 petition still
remained pending before the PCRA court. See McCutcheon v. Philadelphia
Electric Co., 788 A.2d 345 (Pa. 2002) (providing that an appeal only lies from
a final order unless otherwise permitted by rule or statute); Commonwealth
-3-
J-S35035-22
v. Perry, 716 A.2d 1259 (Pa.Super. 1998) (noting that in a PCRA proceeding,
the final, appealable order is the grant or denial of relief).
Meanwhile, on March 21, 2022, the PCRA court had issued notice
pursuant to Pa.R.Crim.P. 907 indicating that it intended to deny Appellant’s
PCRA petition. On April 13, 2022, Appellant filed a pro se response to the
PCRA court’s Rule 907 notice.
On April 20, 2022, the PCRA court entered an order and opinion
dismissing Appellant’s January 18, 2022 PCRA petition. The PCRA court found
Appellant had raised claims that were previously litigated in Appellant’s first
PCRA petition and indicated that this Court had properly allowed Atty. Clarke
to withdraw on collateral appeal. This timely appeal followed.
As an initial matter, we must determine whether Appellant’s PCRA
petition was timely filed. “[E]ven where the PCRA court does not address the
applicability of the PCRA timing mandate, this Court will consider the issue sua
sponte, as it is a threshold question implicating our subject matter jurisdiction
and ability to grant the requested relief.” Commonwealth v. Beatty, 207
A.3d 957, 961 (Pa.Super. 2019) (citation omitted). It is well-established that
“the PCRA's timeliness requirements are jurisdictional in nature and must be
strictly construed; courts may not address the merits of the issues raised in a
petition if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589,
591 (Pa.Super. 2016) (citations omitted).
Generally, a PCRA petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment of sentence becomes
-4-
J-S35035-22
final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review. 42 Pa.C.S.A. § 9545(b)(3).
However, Pennsylvania courts may consider an untimely PCRA petition
if the petitioner explicitly pleads and proves one of the three exceptions
enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability
to raise a claim as a result of governmental interference; (2) the discovery of
previously unknown facts or evidence that would have supported a claim; or
(3) a newly-recognized constitutional right that has been held to apply
retroactively by the Supreme Court of the United States or the Supreme Court
of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Any petition invoking a timeliness exception must be filed within one
year of the date the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2). “We emphasize that it is the petitioner who bears the burden to
allege and prove that one of the timeliness exceptions applies.”
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation
omitted).
In this case, Appellant filed a timely post-sentence motion which the
trial court denied on May 24, 2019. Appellant had until June 24, 2019 to file
a direct appeal and did not do so. See Pa.R.Crim.P. 720(A)(2) (if defendant
files timely post-sentence motion, notice of appeal shall be filed within 30 days
of order deciding motion). As a result, the judgment of sentence became final
on June 24, 2019 and Appellant was required to file a timely petition within
-5-
J-S35035-22
one year of that date. Both of Appellant’s petitions, including his second
petition filed in September 2021 and the amended petition filed in June 2022,
are facially untimely.
Appellant does not specifically claim that he is entitled to invoke any of
the PCRA timeliness exceptions. Our courts have emphasized that a petitioner
must specifically plead and prove that one of the PCRA timeliness exceptions
applies to the untimely petition in order to avoid the PCRA time bar.
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
Thus, as Appellant has not pled or proven that one of the PCRA
timeliness exceptions applies to this petition, we conclude that the PCRA court
did not err in dismissing his petition. Accordingly, we affirm the denial of relief
on different grounds than the PCRA court. See Beatty, 207 A.3d at 964 (citing
Commonwealth v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en banc)
(stating appellate court may affirm on any basis as long as ultimate decision
is correct)).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2022
-6- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483077/ | Case: 22-60118 Document: 00516541256 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 10, 2022
No. 22-60118
Lyle W. Cayce
Summary Calendar Clerk
Alejandro Rufino Escorza-Ruiz,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 425 075
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Alejandro Rufino Escorza-Ruiz, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
his appeal from an order of the Immigration Judge (IJ) denying his application
for cancellation of removal under 8 U.S.C. § 1229b. He claims the BIA erred
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-60118 Document: 00516541256 Page: 2 Date Filed: 11/10/2022
No. 22-60118
by: determining he failed to show removal would cause the requisite
exceptional and extremely unusual hardship for his children; and refusing to
consider his eligibility for voluntary departure. (The IJ noted Escorza
asserted he would seek voluntary departure at one point, but ultimately did
not request it; the BIA agreed he failed to do so.)
Our court lacks jurisdiction to review denial of discretionary relief
under § 1229b, except with respect to constitutional claims or questions of
law. 8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct. 1614, 1622–
23 (2022). Jurisdiction is, of course, reviewed de novo. Nehme v. INS, 252
F.3d 415, 420 (5th Cir. 2001).
Escorza’s contention that removal would cause exceptional and
extremely unusual hardship is a “discretionary and authoritative decision”
barred from review by our court. Castillo-Gutierrez v. Garland, 43 F.4th 477,
481 (5th Cir. 2022); 8 U.S.C. § 1252(a)(2)(B).
His assertion that the BIA erred in finding he did not request voluntary
departure before the IJ is unexhausted because he did not challenge this
determination in his brief to the BIA, nor in a motion to reconsider. Martinez-
Guevara v. Garland, 27 F.4th 353, 360–61 (5th Cir. 2022) (no jurisdiction
over claims BIA “never had a chance to consider” (citation omitted)).
Accordingly, our court lacks jurisdiction to consider Escorza’s claims.
DISMISSED.
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489490/ | MEMORANDUM OPINION
MARK B. McFEELEY, Bankruptcy Judge.
This matter is before the Court on the motion of GMAC for a stay pending appeal of the order entered by this Court on January 28,1983. The Court finds that the considerations set out in Hadley v. Victory Construction Co., Inc., et al. (In re Victory Construction Co., Inc.), 7 B.C.D. 407, 9 B.R. 570 (Bkrtcy.C.D.Cal.1981), are the appropriate considerations to determine whether the Court should grant a stay pending appeal. The considerations are:
1. Which party would be most harmed — the movant by denial of the stay or other parties by the granting of the stay;
2. Significance of issues on appeal;
3. Prospect of success on appeal; and,
*5934. Which side will be the least harmed by a ruling adverse to its position with respect to the stay.
It should first be noted that after the issuance of the Court’s ruling, GMAC, the party requesting the stay pending appeal, moved to dismiss the proceeding for lack of subject matter jurisdiction. If a stay is not granted pending appeal, GMAC stands to lose interest, if the debtor is totally unsuccessful, in an amount in excess of $10,000.00 a month. However, this Court has provided that in the event that interest is not brought current within 30 days of the date on which the vehicles ordered returned are returned, GMAC is entitled to repossess its vehicles and to have the automatic stay lifted so as to allow it to proceed to liquidate its collateral. It should be noted at this point that GMAC has not asked this Court for relief from the automatic stay and that any proceeding seeking such relief would take approximately 30 days to be heard and decided. Thus it appears that GMAC would not suffer any additional harm by the denial of a stay pending appeal.
On the other hand, it has been represented that if the debtor does not obtain possession of the vehicles within a relatively short period of time, any chance of a successful reorganization would be greatly diminished if not made totally impossible.
The possible issues on appeal appear to be two: (a) the factual question of whether or not GMAC is adequately protected and (b) whether or not this Court can determine what it considers to be adequate protection and authorize turnover subject to the debt- or’s compliance with that determination. Neither of these issues appear to be significant to this Court.
While it is somewhat strange for this Court to make a determination of the likelihood of success on appeal (that is, in many cases a finding of likelihood of success on appeal would seemingly be an admission by the judge that his decision in the first instance was incorrect), based on the information before it, this Court must find that GMAC has little, if any, likelihood of success on appeal.
It is abundantly clear that GMAC would be least harmed by a denial of the stay and for that reason this Court will deny GMAC’s motion for a stay pending appeal.
To the extent necessary, this Court grants GMAC leave to appeal from this interlocutory order. See In re Form-Eze Systems, Inc., 25 B.R. 590 (Bkrtcy.D.N.M.1982).
An appropriate order shall enter. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483016/ | People v Smalls (2022 NY Slip Op 06329)
People v Smalls
2022 NY Slip Op 06329
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Renwick, J.P., Oing, Singh, Kennedy, Mendez, JJ.
Ind. No. 1610/15 Appeal No. 16621 Case No. 2018-126
[*1]The People of the State of New York, Respondent,
vCarl Smalls, Defendant-Appellant.
Twyla Carter, The Legal Aid Society, New York (Dalourny Nemorin of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Catherine Marotta of counsel), for respondent.
An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, New York County (Laura A. Ward, J.), rendered May 15, 2017,
Said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive,
It is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022
Counsel for appellant is referred to
§ 606.5, Rules of the Appellate Division,
First Department. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483033/ | Bahar v Sanieoff (2022 NY Slip Op 06314)
Bahar v Sanieoff
2022 NY Slip Op 06314
Decided on November 10, 2022
Appellate Division, First 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 and Entered: November 10, 2022
Before: Gische, J.P., Friedman, Scarpulla, Rodriguez, Higgitt, JJ.
Index No. 150328/18 Appeal No. 16315 Case No. 2021-04196
[*1]Alice Bahar, Plaintiff-Appellant,
vAbraham Sanieoff et al., Defendants-Respondents.
DeLince Law PLLC, New York (Alyssa Feldman of counsel), for appellant.
Sills Cummis & Gross P.C., New York (Joseph L. Buckley of counsel), for Abraham Sanieoff, Charlet Sanieoff, Eliza Sabetfard, Leor Sabetfard and Matthew Sabetfard and Rubin and Rudman LLP, New York (Michael A. Burkett of counsel), for 25 Grove Street LLC, respondents.
Order, Supreme Court, New York County (W. Franc Perry, J.), entered on or about May 4, 2021, which, to the extent appealed from as limited by the briefs, upon granting defendants' motion to hold plaintiff in contempt and to dismiss her amended complaint, severed and continued defendants Abraham Sanieoff, The Sani Group a/k/a 25 Grove Street LLC, and Charlet Sanieoff's counterclaims, unanimously affirmed, on the law.
Supreme Court had the discretion to dispense with the requirement that defendants file a new answer with counterclaims, and to sua sponte amend its previous order dismissing the complaint to reflect that the counterclaims had been severed and were to continue.
Generally, a defendant is required to file a new answer in response to an amended complaint (CPLR 3025[d]; MTGL. Invs., L.P. v Shay, 190 AD3d 527, 528 [1st Dept 2021]). Nonetheless, a trial court has discretion to vary or dispense with the answer requirement (CPLR 3025[d]; Supplemental Practice Commentaries C:3025:21 [2021]["The court may vary this requirement as it pleases, as the opening clause of CPLR 3025(d) manifests."]; 6B Carmody-Wait 2d § 39:155 ["the court has the discretionary power to dispense with responses to amended pleadings."]). This discretion may be exercised without a formal request from the parties.
Factors that may justify dispensing with the new answer requirement include: (1) no new factual allegations were asserted in the amended complaint; (2) changes in the amended complaint had no bearing on the counterclaims asserted in the original answer; and (3) plaintiff had notice of the counterclaims being asserted (" (Stephanie R. Cooper, P.C. v. Robert, 78 AD3d 572, 573 [1st Dept 2010]; see also Cortes v. Jing Jeng Hang, 143 AD3d 854, 855 [2d Dept 2016]).
Here, requiring defendants to file a new answer to preserve their counterclaims would have been a waste of time and judicial resources. First, the amended complaint contained no new facts or causes of action. Second, the changes in the amended complaint had no bearing on the counterclaims because the amended complaint simply removed unviable causes of action. Third, the plaintiff had notice of the counterclaims, as they were actively litigated. Thus, the trial court was soundly within its discretion to
effectively dispense with the new answer requirement in its amended order sanctioning plaintiff, dismissing the amended complaint, and severing and continuing the counterclaims. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 10, 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483045/ | [Cite as State v. Mills, 2022-Ohio-4010.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110893
v. :
KENNETH V. MILLS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 10, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-645266-A
Appearances:
David Yost, Ohio Attorney General and Special Prosecutor
for Cuyahoga County, Matthew E. Meyer, Linda Majeska
Powers, and Daniel Kasaris, Assistant Attorneys General,
for appellee.
Flowers & Grube, Louis E. Grube, and Paul W. Flowers;
Kevin M. Spellacy, and Erin E. Hanson, for appellant.
CORNELIUS J. O’SULLIVAN, JR., J.:
{¶ 1} Defendant-appellant, Kenneth Mills, appeals his misdemeanor
convictions after a jury convicted him of two counts of falsification and two counts
of dereliction of duty. On appeal, he challenges the sufficiency of the evidence, the
trial court’s admission of evidence of inmate deaths, the jury instructions, and the
consecutive nature of his sentence. After a thorough review of the record and the
law, we reverse and remand for a new trial, finding that the trial court erred when it
allowed into evidence a photograph of a dying inmate and testimony about inmate
deaths at the Cuyahoga County jail.
I. Procedural History and Facts
{¶ 2} In October 2019, appellant was charged in a five-count indictment with
the following: Count 1: tampering with records, a third-degree felony, in violation
of R.C. 2913.42(A)(1) and (B)(4); Count 2: falsification, a first-degree misdemeanor,
in violation of R.C. 2921.13 (A)(1); Count 3: falsification, a first-degree
misdemeanor, in violation of R.C. 2921.13(A)(3); Count 4: dereliction of duty, a
second-degree misdemeanor, in violation of R.C. 2921.44(C)(2); and Count 5:
dereliction of duty, a second-degree misdemeanor, in violation of R.C.
2921.44(C)(5).
{¶ 3} In August 2021, the matter proceeded to a jury trial where over the
course of three weeks, the jurors heard testimony from 30 witnesses and over 250
exhibits were admitted into evidence. The jury returned a verdict of not guilty as to
the sole felony count in the indictment, Count 1, and guilty verdicts on the remaining
counts. The trial court merged Count 2 into Count 3, and Count 4 into Count 5 and
sentenced appellant to a consecutive nine-month jail sentence.
{¶ 4} In November 2009 (effective January 1, 2011), Cuyahoga County voters
approved a charter amendment creating a county council and county executive;
Cuyahoga County became one of two out of 88 counties in Ohio not governed by a
three-member commission. Following implementation of the county’s charter
amendment, many formerly elected positions became appointed positions,
including that of county sheriff. Armond Budish (“Budish”) was elected county
executive for a term commencing in January 2015. At the start of his term, Budish
directed every department to cut costs by ten percent and decided to regionalize the
jails by accepting municipal prisoners into county custody.
{¶ 5} In early 2015, Budish appointed Clifford Pinkney (“Pinkney” or “Sheriff
Pinkney”) to the position of Cuyahoga County Sheriff. Shortly thereafter, in
February 2015, Budish appointed appellant to a newly created position titled
“Director of Regional Corrections.” Appellant was to report to Chief Deputy Sheriff
George Taylor, who reported to Pinkney.
{¶ 6} Appellant was hired with the mandate to regionalize the county jail.1
Budish explained appellant’s appointment in a press release:
As Regional Director of Corrections, Mills will oversee emerging
collaborations and potential consolidations with jails county-wide. He
will also direct the operations of the Sheriff’s Department County Jail
after a long-term transition with the current, part-time County Jail
Wardens. The Regional Director of Corrections position will become a
self-sustaining position, with its salary offset over time by the revenue
generated from jail regionalization. As Regional Director of
Corrections, Mills will also ensure compliance with departmental
policy and standards and assist with developing and managing the
budget, among other responsibilities.
1 Appellant replaced Kenneth Kochevar, who was a longtime county employee and
the county’s “Jail Director.”
{¶ 7} Victor McArthur, former associate warden at the jail, testified that
“[j]ail regionalization is when one jail, like the county jail, becomes the hub for all of
the jails and all of the jails feed into county jail so inmates are processed one time
instead of in every jail that they visit.” Part of this plan, known as the “Cleveland
Project,” was designed to be a revenue generating plan where the county would
house inmates from the city of Cleveland at the county jail for a daily fee of $99 per
inmate.
{¶ 8} Appellant had a military background; he served in the Coast Guard.
After retiring from the Coast Guard, he was hired by the county as director of public
safety. As the director of public safety, appellant was the head of a medium-sized
department that included 9-1-1 operators, a witness-victim program, and county
emergency preparedness. Appellant did not, however, have any experience in
corrections or law enforcement. Philip Angelo, who was a special assistant with the
Cuyahoga County Sheriff’s Office, testified that he was involved in appellant’s
interview process and reviewed his resume. According to Angelo, it “did not seem”
like appellant had the training or qualifications to run a large jail, and Angelo ended
up not recommending him for the position of regional director. Sheriff Pinkney also
testified that he would not have hired appellant because he did not have law
enforcement or correctional experience.
{¶ 9} On paper, the director of regional corrections reported to the sheriff,
who in turn reported to the executive. Although appellant was to report to the
sheriff, the testimony reveals that appellant considered himself the sole overseer of
the county’s jails.
{¶ 10} It is undisputed that there have been ongoing problems with the
county jail that predate appellant’s employment. Two major issues central to this
case were overcrowding and staffing. The county jail’s capacity is approximately
1,765 inmates. Kochevar, appellant’s predecessor, testified that the county jail has
been overcrowded “[f]orever.” Joel Commins (“Commins”), who has been
employed as a jail inspector for the Ohio Department of Rehabilitation and
Correction’s Bureau of Adult Detention since 1998, has never “found the capacity to
be under 1765.” Former Cuyahoga County Jail Warden Eric Ivey testified that
overcrowding and staffing had been issues “since I started back in 1990.”
{¶ 11} The reasons for staffing issues were multi-faceted. Problems with
staffing corrections officers were the result of high turnover and, in later years, a
substantial number of call-offs every shift; Commins testified as many as 30-60
corrections officers would call off every shift. When a corrections officer called off
his or her shift, the corrections officer still on duty would be made to work an
additional four hours of overtime, which would lead that officer to call off his or her
next shift. Cuyahoga County Deputy Inspector General Sicily Woods testified that
turnover for corrections officers under appellant’s leadership increased 118 percent
between 2015 and 2018. She also testified that corrections officers made $15 per
hour, one of the lowest paid hourly wages for corrections officers in the state of Ohio.
{¶ 12} The short staffing led to the practice of “red zoning,” which, according
to FBI Special Agent Daniel Eyer, is the locking down of inmates within their cells,
at times for up to 20 hours a day. In these instances, one corrections officer would
be responsible for supervising two to four housing pods, or as many as 192 inmates,
instead of the 48 inmates in one pod that would be assigned to that officer under
ideal operating conditions. According to the agent, “the forced lockdown of inmates
into their cells had increased significantly after [appellant] had taken over.”
{¶ 13} The staffing issues were not limited to corrections officers. Multiple
witnesses testified that the jail never had enough nurses on staff. Earl Leiken,
Cuyahoga County Chief of Staff from 2018-2019, testified that Margaret Keenan,
director of the Cuyahoga County Office of Budget and Management (“OBM”),
emailed him to request an increase in wages for nursing staff. Keenan explained
that a nurse would make $28 per hour at the jail while the “industry standard” was
$38 per hour. When the county hired temporary nurses to fill the gaps in the
nursing staff, those nurses made the industry standard, which caused a “morale
issue” among the permanent nursing staff. MetroHealth Hospital Executive Vice
President of Administration and Chief of Staff Jane Platten explained at a May 22,
2018, Cuyahoga County Council Public Safety Committee Meeting that while
MetroHealth staffed most of the medical positions at the county jail, the county
alone controlled the staffing of nurses.
{¶ 14} Dr. Thomas Tallman was the county jail’s medical director pursuant
to a medical services contract between the county and MetroHealth. He testified
that he “constantly worked with [human resources]” in an effort to hire more nurses
and raised the issue at monthly staff meetings.
{¶ 15} In late 2015 and early 2016, an issue arose with the provision of
medical care to inmates at the county-run Euclid satellite jail. Dr. Tallman testified
that the facility, which currently did not have medical staff, required a full-time
nurse. Appellant told him that the current budget could not accommodate this
change and corrections officers could do medical screenings, even though they were
not trained to do so.
{¶ 16} On March 14, 2017, Dr. Tallman filled out a personnel request form
for two full-time nurses at the Euclid jail, explaining that the additional staffing was
mission critical based on the Regional Director of Corrections’ request
to maintain full inmate capacity at said facility. Furthermore, there
have been several inmates identified with serious medical needs that
were not immediately evaluated upon arrival to the jail facility.
{¶ 17} The personnel request form required the signatures of the department
director, OBM, agency chief, and human resources. On March 21, 2017, Sheriff
Pinkney signed off as the department director. Appellant, whose signature was not
required on the form, discovered the personnel request form and emailed Dr.
Tallman and OBM Director Keenan:
[ ] just informed me that you have submitted a request for an RN at
Euclid. Since you’re aware that is not in the budget, nor do I deem an
operational requirement, if you are transferring one of your current RN
positions or vacancies, that’s up to you, but there is no funding for any
additional staff.
Maggie [Keenan], * * * you always have the last say but I do not approve
nor have the funding for this.
{¶ 18} Keenan responded that she would not approve the personnel request
if a “director,” meaning appellant, did not approve the request, even though
appellant’s superior, Sheriff Pinkney, had already signed off on the request. Dr.
Tallman responded to Keenan’s denial of funding as follows, in an email dated
March 27, 2017:
I am the Medical DIRECTOR [sic] and I did review this. Your response
is disappointing but not a total surprise. My top priority is the health
and safety of the inmates including those at Euclid. Now I have an e-
mail that documents that funding was denied and I will reference this
in the future, especially if there’s a significant untoward event involving
patient care at the Euclid Jail.
{¶ 19} The involved parties met to discuss the issue on March 30, 2017, after
which Dr. Tallman sent an email to appellant, Sheriff Pinkney, Public Safety Chief
Frank Bova, and Keenan, that stated: “In regards to Euclid, moving forward, [s]ince
the Sheriff has the final word, as he stated, and he did sign off on the request for 2
RN’s at Euclid, I anticipate this is moving forward.” Appellant responded that there
was no money in the budget to hire nurses and they could not hire nurses until the
county started housing Cleveland inmates.
{¶ 20} In the agreement negotiated between the city of Cleveland and county
administration, the county jail would accept “fresh arrests” from the city in return
for $99 per day of confinement and a one-time payment of $5.6 million. County
council considered and enacted the deal as a “revenue generating agreement,” which
took effect on September 26, 2017. It appears, however, that the county jail facilities
were not ready to accept the additional intake responsibilities of as many as 40
additional fresh arrests a day, including intoxicated and violent people, and those
with medical and mental health issues. Dr. Tallman informed appellant that “all
necessary additional staff” needed to be “hired and in place before we assume
responsibilities for healthcare operations” for the city of Cleveland. Appellant told
Dr. Tallman that the jail needed to generate revenue from the inmates before the
additional medical staff would be hired.
{¶ 21} The county also opened a satellite jail in Bedford Heights, commonly
known as the Bedford jail, in May 2018. Testimony and email exchanges that were
entered into evidence reveal that the medical staff was likewise concerned that there
was not proper staffing of the Bedford jail.
{¶ 22} Conditions at the county jail worsened starting in March and April of
2018 as the fresh arrests from Cleveland overwhelmed the facility. Keenan testified
“[i]n April 2018 there was absolutely no denying that we were in crisis.” She
explained:
The temporary nurses were making much, much more than our nurses
and so our nurses were quitting at an increased rate because they said
you can pay [the temporary nurses] but you can’t pay [the permanent
nurses]. And we were just bleeding staff. And also meanwhile the
population in the jail was going up, up, up. And they were Cleveland
prisoners. And I mean, that’s fine. But the Cleveland inmates come in
with a host of problems that we had never seen before. So we can’t
afford to be short staffed when we are bringing in Cleveland inmates.
{¶ 23} When asked whose job it was to have planned for the new inmates,
Keenan responded, “Ken Mills.” Nursing Supervisor Gary Brack testified that at one
point medical staff had not performed the required 14-day medical screenings on
800 out of 2,200 county jail inmates solely because they lacked the medical staff to
complete the screenings.
{¶ 24} In May 2018, the Cuyahoga County Board of Control flagged a request
for funding for temporary nurses and referred the matter to the Cuyahoga County
Council’s Justice Affairs Committee. Apparently concerned, County
Councilmember Michael Gallagher invited members of the Sheriff’s Department
and “anyone that had anything to do with the medical [issues] in the jail” to attend
the May 22, 2018 Cuyahoga County Council Public Safety Committee meeting. The
meeting was recorded, played for the jury, and entered into evidence.
{¶ 25} During the meeting, Gallagher asked appellant if he had been the
“blockade” to hiring nurses and whether hiring requests had gone across appellant’s
desk and stopped. Appellant replied, “That’s not true, they don’t come to me, that
is absolutely not true. Hire requests do not come through me. They go through the
Sheriff, and I can’t overturn anything the Sheriff signs.” Gallagher repeated: “So you
have not blocked anything?” Appellant stated, “No, sir. I’ve never blocked hiring
nurses to come into the jail.”
{¶ 26} Conditions at the county jail continued to decline through 2018, and
several inmates died by overdose or suicide. Finally, Budish asked the United States
Marshals Service to investigate the county jail. On November 14, 2018, Budish met
with appellant in advance of the release of the U.S. Marshal’s report. Budish
terminated appellant from his position as regional director of corrections.
{¶ 27} In 2020, the county closed both the Euclid and Bedford satellite jails
and those inmates were transferred to the main jail.
II. Assignments of Error
I. The trial court erred by failing to grant the Motion for Judgment of
Acquittal as to the crimes of falsification and dereliction of duty
because the State presented insufficient evidence to sustain a guilty
verdict.
II. The trial court erred by permitting introduction of substantial
evidence of other wrongs and bad acts in violation of Evid.R. 403(A)
and 404(B).
III: The trial court erred by denying a request for a jury instruction
requiring jurors to render unanimous verdicts.
IV: The trial court erred by deleting statutory language from a jury
instruction explaining the offense of derogation of duty and permitting
jurors to decide what the law required
V: The trial court erred by ordering the defendant to serve his
misdemeanor sentences consecutively.
III. Law and Analysis
A. Sufficiency of the Evidence
{¶ 28} In the first assignment of error, appellant contends that there was
insufficient evidence to support his convictions for dereliction of duty and
falsification.
{¶ 29} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). We examine the
evidence in the light most favorable to the state and determine whether any rational
trier of fact could have found that the state proved, beyond a reasonable doubt, all
the essential elements of the crime. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991). In reviewing the sufficiency of the evidence, this court must not ‘“disturb
the verdict unless [the court] determine[s] that reasonable minds could not arrive
at the conclusion reached by the trier of fact.’” State v. Dixon, 8th Dist. Cuyahoga
No. 110972, 2022-Ohio-2582, ¶ 20, quoting State v. Saleh, 10th Dist. Franklin No.
07AP-431, 2009-Ohio-1542, ¶ 81. “Reviewing courts do not evaluate witness
credibility when reviewing the sufficiency of the evidence.” Dixon at id. citing Saleh
at id.
1. Dereliction of Duty – Appellant was an “Officer” Under the Statute
{¶ 30} Count 4 and Count 5 charged dereliction of duty under R.C.
2921.44(C)(2) and (C)(5), respectively. R.C. 2921.44(C) states:
(C) No officer, having charge of a detention facility, shall negligently do
any of the following:
(2) Fail to provide persons confined in the detention facility with
adequate food, clothing, bedding, shelter, and medical attention;
(5) Fail to observe any lawful and reasonable regulation for the
management of the detention facility.
{¶ 31} Appellant contends that the state failed to prove that he was an
“officer”; therefore, he could not be convicted of dereliction of duty. Appellant does
not dispute that he was in charge of jail; the record is replete with references to
appellant’s authority over the jail. Moreover, appellant stated in his brief on appeal
that the sole issue of the dereliction-of-duty convictions is whether appellant is an
officer. Thus, we must determine whether the state provided sufficient evidence that
appellant was an “officer” under the statute. We answer that question in the
affirmative.
{¶ 32} Appellant contends that the term “officer” is akin to that of a law
enforcement officer, one who has been appointed by the sheriff, has arrest powers,
or has taken a sworn oath. The term “officer” is not defined in the statute. R.C.
2921.44(A) and (B), prohibit certain actions by “law enforcement officers,” but
appellant was charged under subsection (C), where the state legislature chose to use
the more general term “officer.”
{¶ 33} “In the absence of a definition of a word or phrase used in a statute,
words are to be given their common, ordinary, and accepted meaning.” State v.
Nelson, 162 Ohio St.3d 338, 2020-Ohio-3690, 165 N.E.3d 1110, ¶ 18, quoting State
v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 39. To this end, we
observe that Black’s Law Dictionary defines “officer” as “[s]omeone who holds an
office of trust, authority or command.” Black’s Law Dictionary 1307 (11th Ed.2019).
Because the term “officer” is not defined in the statute, we must utilize its plain and
ordinary meaning to decide whether the state provided sufficient evidence that
appellant held an office of trust, authority, or command.2
2 We can also find guidance in R.C. 2921.37, which provides that “the person in charge of a
detention facility has the same power as a peace officer to arrest a person who illegally
conveys weapons or other prohibited items onto the grounds of specified governmental
facility.” Additionally, while the Ohio Administrative Code also does not define an “officer”
as it relates to R.C. 2921.44; the “Glossary of Terms” in Chapter 5120:1-7 Bureau of Adult
Detention provides:
{¶ 34} Appellant was appointed by Budish to the position of director of
regional corrections. The government at the county level in Cuyahoga County is
governed by a charter, which provides that the position of sheriff is appointed and
the county executive has the power to “appoint, suspend, discipline and remove all
county personnel.” Cuyahoga County Charter Article XIV, Section 16.01, and Article
II, Section 2.03(1). The county executive, through the human resources department,
oversees the employment of the county’s 550 civilian corrections officers — not the
sheriff. Budish appointed appellant to “oversee emerging collaborations and
potential consolidations with jails county-wide,” “direct the operations of the
Sheriff’s Department County Jail,” “ensure compliance with departmental policy
and standards,” and “assist with developing and managing the budget.”
{¶ 35} Sheriff Pinkney testified that appellant was the “jail administrator.”
According to Pinkney, he began to have problems with appellant sometime in 2015
when appellant questioned why Pinkney was physically inside the county jail.
Appellant went so far as to change the locks so Pinkney could not access the jail.
Pinkney testified:
(B) As used in rules * * * 5120:1-8-01 to 5120:1-12-18 of the Administrative
Code, the following terms have the meanings indicated in this rule:
(1) “Administrators and supervisors”: Persons who have managerial
responsibility for a full-service jail or who supervise employee security
assignments or activities in the jail.
Ohio Adm.Code 5120:1-7-02(B)(1).
[Appellant] wanted to control the jail budget, which was 70 percent of
the overall sheriff’s office budget and he wanted to control that portion
of the budget because he ran the jail.
{¶ 36} Pinkney testified that appellant was trying to separate his department
from that of the county sheriff, so that he (appellant) could have total autonomy over
the jail without interference from the sheriff. Pinkney did not feel as though he had
authority to direct or discipline appellant, even though he was appellant’s superior.
{¶ 37} Donna Kaleal, the county fiscal director, testified that appellant “was
in charge of the county jail. * * * He was in charge of regionalizing some of the other
jails within the city like the Bedford jail or the Euclid jail so he would be in charge of
those jails. * * * [H]e was in charge of the inmates and the corrections center.”
Kaleal further testified that appellant “took over the entire budgeting process for the
Cleveland Project.”
{¶ 38} Considering the significant evidence that appellant had a position of
trust, authority, or command over the Cuyahoga County jail, we find that the state
provided sufficient evidence that appellant was an officer under the statute.
2. Falsification – Sufficient Evidence that Appellant Lied to County
Council
{¶ 39} Next, appellant argues that the state failed to provide sufficient
evidence that he made a false statement to county council. The crime of falsification
requires:
(A) No person shall knowingly make a false statement, or knowingly
swear or affirm the truth of a false statement previously made, when
any of the following applies:
(1) The statement is made in any official proceeding.
(3) The statement is made with purpose to mislead a public official in
performing the public official’s official function.
R.C. 2921.13(A)(1), (3).
{¶ 40} During the May 22, 2018 Cuyahoga County Council Public Safety
Committee meeting, Councilmember Gallagher asked appellant if he had been the
“blockade” to hiring nurses and whether hiring requests had gone across appellant’s
desk and stopped. Appellant replied: “That’s not true, they don’t come to me, that
is absolutely not true. Hire requests do not come through me, they go through the
Sheriff, and I can’t overturn anything the Sheriff signs.” Gallagher repeated, “So you
have not blocked anything?” Appellant stated, “No, sir. I’ve never blocked hiring
nurses to come into the jail.”
{¶ 41} Roughly a year earlier, however, on March 14, 2017, Dr. Tallman filled
out a personnel request form for two full-time nurses at the Euclid jail, explaining
that the additional staffing was
mission critical based on the Regional Director of Corrections request
to maintain full inmate capacity at said facility. Furthermore, there
have been several inmates identified with serious medical needs that
were not immediately evaluated upon arrival to the jail facility.
{¶ 42} The personnel request form did not require appellant’s signature and
Sheriff Pinkney signed off as the department director. When appellant found out
about the personnel request form, he emailed the involved parties and stated:
[Y]ou have submitted a request for an RN at Euclid. Since you’re aware
that is not in the budget, nor do I deem an operational requirement, if
you are transferring one of your current RN positions or vacancies,
that’s up to you, but there is no funding for any additional staff.
Maggie [Keenan], * * * you always have the last say but I do not approve
nor have the funding for this.
{¶ 43} Keenan replied to Dr. Tallman a short time later, telling him that she
could not support staff requests that lacked appellant’s approval. The parties
eventually met, after which Dr. Tallman again emailed stating that it was his
understanding that Sheriff Pinkney signed off on the request for nurses. Appellant
disagreed, stating that that there was no money in the budget to hire nurses and they
could not hire nurses until the county started housing Cleveland inmates.
{¶ 44} At trial, Keenan testified that she worked closely with appellant and
allowed appellant to circumvent Sheriff Pinkney and go directly to her on issues that
would “cut spending or raise revenue.” When asked if appellant interfered with the
hiring of nurses in any of the jail facilities, Euclid, Bedford, or the main jail, Keenan
testified, “Yes.”
{¶ 45} Sheriff Pinkney also testified that appellant interfered with the hiring
of nurses at county jail. He testified that “once [appellant] was made aware that the
request was made to hire nurses he didn’t feel that there [were] nurses needed so he
contacted OBM telling OBM not to hire the nurses, to deny this request.”
{¶ 46} Appellant points to an April 2017 email Sheriff Pinkney sent stating
that “we should hold off [on the hiring of nurses] until the Cleveland Project is done”
as support for his position that Sheriff Pinkney made the hiring decisions and
appellant had no authority to block the hiring of nurses. MetroHealth’s Jane Platten
testified, however, that appellant “blocked the hiring of nurses” and the email was
Sheriff Pinkney “agreeing [with appellant] to hold off” hiring the nurses. Platten
testified:
Q. Dr. Tallman reports to whom?
A. Chief Deputy George Taylor.
Q. And the chief reports to whom?
A. Clifford E. Pinkney.
Q. So Dr. Tallman fills out a personnel request form?
A. Yes.
Q. The sheriff approves it?
A. Yes.
Q. Is Ken Mills in that particular chain of command?
A. No.
Q. But what does Ken Mills do on March 23rd, 2017?
A. He sends an e-mail saying there’s no money in the budget and there’s
not a need for it.
{¶ 47} Brack testified he was employed from 2015-2018 with MetroHealth as
a nursing supervisor working directly with the county jail. Brack testified that based
on his personal knowledge, appellant “blocked the hiring of nurses.” According to
Brack, appellant contacted Keenan and told her “not to approve positions, not to
fund those positions.” He testified that appellant was the roadblock by “obstructing
and not allowing us to hire” nurses.
{¶ 48} Finally, Dr. Tallman testified that he and Brack prepared a bullet
pointed statement for county council. Dr. Tallman read the statement and it was
entered into evidence as exhibit No. 117:
MetroHealth Correctional Health Program v. Ken Mills
For the past 2 years, Mills obstructed all attempts to increase staffing
or improve operations, yet operational demands have increased
exponentially.
Despite staffing shortages in the medical department, adding Euclid
Jail, City Jail, and now Bedford Jail has further increased staffing
demands. At no time has the medical department been a part of the
meeting to plan and prepare for these additional demands.
In March 2017, Dr. Tallman submitted emergency staffing requests for
two RN’s to staff Euclid Jail, which the Sheriff signed off. Ken Mills and
Maggie Keenan blocked it and refused to pay for it. To this day we have
never had nursing staff devoted to the Euclid Jail and yet the inmate
population is maintained at 60 - 70. This includes fresh arrests and
inmates on medications: a huge liability.
When presented with data that supports the fact that altercations in the
jail have increased in 2018, Mills refutes the facts. Frequent “red
zoning” contributes to this increase in injuries sustained due to
altercations.
Since Mills took over as regional director, he has redistributed
correctional officers while subtracting the number of officers dedicated
to the 6th floor dispensary.
The recent addition of inmates from the city jail has led to an intake
increase > 100 percent, but we were provided zero additional staff to
deal with this increase. Intake area is frequently overcrowded and
unsafe.
The Bedford Jail recently came online without proper healthcare
staffing in place. Go live dates were known for months in advance but
never shared with the medical department. Healthcare staffing
estimates initially submitted over 2 years ago, but completely ignored
while at the same time, additional correctional officers were hired.
The medical department was told that there would be almost no
perceived impact on healthcare operations when we started taking on
city jail inmates. On the contrary, we have seen as many as 80 - 90
intakes coming in after 7 p.m. and not 1 additional RN was hired (as
requested) in anticipation of this workload increase.
Decisions that impact the medical department including policies and
procedures are constantly made and put into effect by Mills with no
input from healthcare management.
{¶ 49} Looking at the evidence in a light most favorable to the state, there
was sufficient evidence that appellant was not truthful when he told county council
that he never blocked the hiring of nurses for the Cuyahoga County jails. Even
disregarding what could be considered other witnesses’ opinion of whether
appellant told the truth at the meeting, the evidence shows that appellant
consistently refused to allow the hiring of nurses while he told county council that
he did not block said hiring. Thus, there was sufficient evidence to support
appellant’s conviction for falsification.
{¶ 50} The first assignment of error is overruled.
B. Improper Admission of Evidence Regarding Deaths in the County
Jail
{¶ 51} In the second assignment of error, appellant argues that the trial court
improperly admitted evidence in contravention of Evid.R. 403(A) and 404(B).
{¶ 52} Evid.R. 403(A) provides that “[a]lthough relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R 404(B)
provides:
(B) Other crimes, wrongs or acts.
(1) Prohibited uses. Evidence of any other crime, wrong or act is not
admissible to prove the person’s character in order to show that on a
particular occasion the person acted in accordance with the character.
{¶ 53} “[T]rial court decisions regarding the admissibility of other-acts
evidence under Evid.R. 404(B) are evidentiary determinations that rest within the
sound discretion of the trial court.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-
2407, 972 N.E.2d 528, ¶ 22. “Appeals of such decisions are considered by an
appellate court under an abuse-of-discretion standard of review.” Id. Likewise,
when reviewing a trial court’s decision to admit evidence pursuant to Evid.R.
403(A), “[t]he appropriate standard of review is the abuse of discretion standard.”
State v. Wright, 8th Dist. Cuyahoga No. 108026, 2019-Ohio-4460, ¶ 49. ‘“[T]he
trial court has broad discretion in the admission * * * of evidence and unless it has
clearly abused its discretion and the defendant has been materially prejudiced
thereby, this court should be slow to interfere.’” Id., quoting State v. Maurer, 15
Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). “In order for the evidence to be deemed
inadmissible, its probative value must be minimal and its prejudicial effect great
[when] viewed in a light most favorable to the proponent of the evidence[.]”
(Citations omitted.) Wright at ¶ 50.
{¶ 54} An abuse of discretion occurs when a court exercises its judgment in
an unwarranted way regarding a matter over which it has discretionary
authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d
463, ¶ 35. Such an abuse “‘“implies that the court’s attitude is unreasonable,
arbitrary or unconscionable.’”” State v. Montgomery, Slip Opinion No. 2022-Ohio-
2211, ¶ 135, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
See also State v. Acosta, 8th Dist. Cuyahoga No. 111110, 2022-Ohio-3327, ¶ 43; State
v. Parker, 8th Dist. Cuyahoga No. 110563, 2022-Ohio-377, ¶ 11.
{¶ 55} Appellant argues that the trial court (1) improperly allowed evidence
that inmates died in the jail under appellant’s leadership, and (2) improperly
allowed evidence that appellant made negative personal comments about and
treated jail medical corrections staff poorly.
1. Admitted Evidence of Inmate Deaths
a. State’s Opening Statement
{¶ 56} From the first lines of the state’s opening argument, the state
discussed the deaths in the county jail. After briefly thanking the jury and explaining
the purpose of opening arguments, the state launched into a lengthy story about the
untimely death of Joseph Arquillo, who was only 48 years old when he died within
the first eight hours of being booked into the county jail in August 2018. As told by
the state:
[A]t 3:00 a.m. in the morning of August 28th, 2018, sheriff’s deputies
booked a 48 year-old gentleman named Joseph Arquillo into the
Cuyahoga County Jail. Like a lot of people in our society Mr. Arquillo
was addicted to drugs. He was a Navy veteran who had been hooked
on painkillers and when he was arrested, and we don’t know exactly
when, but sometime near his arrest he ingested a quantity of opiates
that would eventually cause him to overdose and die.
He was taken to a place in the jail known as the sally port. And you are
going to see evidence in this case of what the jail looked like in 2018.
What I’m showing you is where Mr. Arquillo ended up. It was an area
of the jail known as the 3-G pod.
Now, Mr. Arquillo’s overdose was not like what you see on TV. He
suffered a slow-motion kind of death that lingered over eight hours
where it was difficult for him to breathe. He was brought through the
intake process, and he was never seen by a medical person. No one ever
checked his blood pressure, no one ever asked for his medical history,
no one asked if he was thinking of harming himself, no one asked if he
had taken something that might hurt him.
He was taken up to that 3-G pod and left there and ignored where about
eight hours later he died. * * *
Mr. Arquillo never got screened by a medical person. He bypassed that
process entirely, went right up to the pod and he eventually died,
ignored and alone, in this area of the jail where inmates — there were
so many inmates, it was so overcrowded that people were sleeping on
the floors.
So, what happened to Mr. Arquillo, how a routine probation violation
arrest turned into a death sentence was part of an overall breakdown in
safety conditions of 2018 that culminated in the deaths of the six people
between June and December of 2018. You are going to hear testimony
that deaths do occur in the jail. It’s a tragic reality of operating a jail. It
does happen. But you’re also going to hear that they are relatively
rare[,] and no one has ever seen[,] before or since[,] anything like the
number of deaths that occurred in this jail between June and December
of 2018.
As tragic as those deaths were though, many people who worked in the
jail had predicted that they would happen. They also said the jail
should have been able to prevent those deaths. They had warned the
jails head administrator, a man named Ken Mills, the defendant in this
case, who had the title of Director of Regional Corrections, that the
things he was doing to manage the jail would get people hurt or killed.
{¶ 57} During opening argument, the state also mentioned the death of well-
known Cleveland native rhythm & blues singer Sean Levert, who died in the
Cuyahoga County jail in 2008, ten years prior to appellant’s appointment as
Regional Director. Levert’s death is mentioned by witnesses numerous times
throughout trial.
b. Deputy Inspector General’s Testimony
{¶ 58} Deputy Inspector General Woods testified that the Cuyahoga County
Inspector General initiated an investigation into the conditions in the jail due to the
multiple deaths occurring in the jail and assigned Woods to be the lead investigator.
Woods testified from her report:
In 2018 eight citizens died after entering the Cuyahoga County
Correctional Center or CCCC. In September, 2018 in response to the
first four deaths the Agency of Inspector General, AIG, initiated an
investigation into the conditions of the county jail. Later that month
after the deaths of two more detainees, the county executive, as
required by County Code section 204.01, the AIG suspended its
investigation in order to avoid any interference with the federal review.
c. County Councilmember’s Testimony
{¶ 59} As to the deaths in the jail, Councilmember Gallagher testified:
Q. And ha[d] events occurred in the Cuyahoga County Jail between
June of 2018 and December of 2018 that could render the county
liable?
A. If I’m correct, I think we have a death.
Q. How many?
A. I remember the first one. It was soon after this meeting. And might
have been two up until that time. Unfortunately, they run together.
Q. Do you remember about six or eight of them?
A. That was a string I think over a period of time.
d. OBM Director’s Testimony
{¶ 60} OBM Director Keenan testified regarding the 2008 death of Sean
Levert:
A. * * * A shortage of nurses creates risk. The county settles a lot of
medical-related lawsuits, the most significant of course was the Levert
death. * * * Sean Levert was an inmate in the county jail and he passed
away in the county jail from — I believe it was withdrawal and the
county settled — so the county was sued for wrongful death and the
county settled that lawsuit.
Q. How much did it cost the taxpayers[,] if you know?
A. $5 million.
e. Sergeant’s Testimony
{¶ 61} Cuyahoga County Sheriff’s Sergeant Mark Thevenin identified exhibit
No. 165; a picture taken from the jail’s security camera in the 3-G pod; the picture
was entered into evidence. One of the men in the picture is Arquillo, who was sitting
on the ground bent over, but still alive. Sgt. Thevenin testified as follows:
Q: I’m going to show you a picture which we’ve marked as Exhibit 165
* * *.
A. That would be the third floor.
Q. Okay. So that is what exactly? Do you recognize that image?
A. This is Arquillo * * *.
Q. Is that an inmate?
A. That is Arquillo. I believe this is the day he passed away. He pretty
much [overdosed] down there. * * * So when he’s down here passing
away, if you’re not making the round or moving through here you’ll
never know because you can’t see him there. * * *
Q. So on August 28th of 2018 did you respond to this scene in the 3-G
dorm?
A. Yeah. There was a medical emergency called in that area. So I was
the — I say, I was the admin sergeant in Jail 1. I responded with other
corporals and sergeants. * * *
Q. Did the jail security camera record the date and time the image
would have been recorded?
A. Yes, sir.
Q. Can you just read the date and time?
A. 8-28-2018. Says, 11:34 a.m.
f. Brandon Kiekisz
{¶ 62} Brandon Kiekisz died by suicide in the Cuyahoga County jail on
December 27, 2018, after appellant was terminated from his position. Although no
one mentioned Kiekisz by name as an inmate who had died in the jail, Corrections
Officer Rob Marsh testified that Kiekisz was not screened by the medical staff. Dr.
Tallman also testified Kiekisz was not screened by medical staff and that “after the
event with Kiekisz,” he decided to move medical intake from the seventh floor back
down to the sally port where inmate intake occurred.
g. Exhibit No. 165
{¶ 63} Exhibit no. 165 was an image taken from the county jail’s security
camera, that showed Joseph Arquillo sitting on the floor, folded over his mattress,
shortly before he died.
2. State’s Justification for Admitting Evidence of Inmate Deaths
{¶ 64} The state argues that the evidence of jail deaths had “direct and
probative value” to the dereliction-of-duty charges and were part of the “background
evidence inextricably linked with the breakdown in jail conditions that led to the
dereliction of duty charges.” Appellee’s brief, p. 20. The evidence of inmate deaths,
the state posits, was also admissible to show the background of the crimes with
which appellant was charged, or because the other acts were “inextricably related to
those crimes.” Id., citing State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616
(1994).
{¶ 65} The state further argues that (1) appellant separated medical
screening from the booking process, believing that corrections officers — not nurses
— should perform the medical screenings, which caused the jail to overlook injured
and highly disturbed inmates during booking; (2) appellant had been warned that
inmates would die without adequate medical staff or medical care; and (3) the direct
byproduct of appellant’s decisions led to the jail’s failure to medically care for
inmates like Arquillo, who were experiencing life-threatening problems during
intake. Thus, according to the state, the jail deaths were highly probative to
demonstrate the consequences of appellant’s interference with jail medical
decisions, which in turn directly went to the issue of whether appellant negligently
failed to provide inmates with adequate medical care. Finally, the state argues that
the 2018 jail deaths explained why the county asked the U.S. Marshals Service to
investigate the jail, and why appellant was the “public official most responsible for
the resulting outcome.”
3. Admission of Prejudicial Evidence Deprived Appellant of a Fair Trial
{¶ 66} The admissibility of other acts evidence is carefully limited because of
the substantial danger a jury will convict a defendant solely because it assumes the
defendant has a propensity to commit criminal acts or deserves punishment
regardless of whether he or she committed the crime charged in the indictment.
State v. Hernandez, 8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, ¶ 37. The
dissent contends that Evid.R. 404(B) is inapplicable to this case. Even if we were to
assume without accepting that Evid.R. 404(B) does not apply, Evid.R. 403 excludes
relevant evidence if its probative value is substantially outweighed by the danger of
unfair prejudice. We find that any evidence of inmate deaths, whether admitted
pursuant to Evid.R. 403 or 404(B), was inadmissible.
{¶ 67} Having found that the trial court erred in allowing the evidence of
inmate deaths, we must determine whether that error is harmless. Crim.R. 52(A)
provides that “[a]ny error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” Under the harmless-error standard of
review, the state “bears the burden of demonstrating that the error did not affect the
substantial rights of the defendant.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-
297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993). In most cases, in order to be viewed as “affecting
substantial rights,” “‘the error must have been prejudicial[.]’” (Emphasis deleted.)
State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting
Olano at 734. Accordingly, Crim.R. 52(A) requires a determination of whether the
rights affected are “substantial” and, if so, whether a defendant has suffered any
prejudice as a result. State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24
N.E.3d 1153, ¶ 24-25.
{¶ 68} In State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d
1256, the Ohio Supreme Court reiterated the three-part analysis established
previously in Morris to guide appellate courts in determining whether the erroneous
admission of evidence affected the defendant’s substantial rights so as to require a
new trial or whether the admission of that evidence was harmless error under
Crim.R. 52(A):
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. * * *
Second, it must be determined whether the error was not harmless
beyond a reasonable doubt. * * * Lastly, once the prejudicial evidence
is excised, the remaining evidence is weighed to determine whether it
establishes the defendant’s guilt beyond a reasonable doubt.
Harris at ¶ 37, citing Morris at ¶ 27-29. Thus, we look at whether these multiple,
combined errors had an impact on appellant’s guilty verdicts, whether those errors
were not harmless beyond a reasonable doubt, and, once the prejudicial evidence is
taken out, is there overwhelming evidence of appellant’s guilt?
{¶ 69} During opening argument, the state told the jury that appellant was
warned that “people were going to die” in the jail. Defense counsel objected and the
court overruled the objection, telling the jury, “Mr. Mills is not charged with causing
any specific death or injury to any specific inmate.” Before the state’s 11th witness,
Sgt. Thevenin, took the stand, the court determined that it would allow testimony of
inmate deaths “on a limited basis” to show that some inmates had not been
medically screened when they entered the jail. Although the court instructed the
state to be cautious, the court still allowed the state to enter into evidence an image
showing Arquillo, bent over on the ground, shortly before he died (State’s exhibit
No. 165). The court also allowed a significant number of witnesses to provide
testimony about inmate deaths that occurred both while appellant was regional
director and while he was not even employed by the county.
{¶ 70} Only after 14 of the state’s witnesses had testified, did the court finally
decide that it would no longer allow witnesses to utter the word “death” or testify
that inmates died while in the county jail. At this juncture, the trial court issued a
limiting instruction to the jury that appellant was not charged with causing the death
of any inmate:
Kenneth Mills is not charged with causing the death of any particular
inmate. There were policy changes that he made that the evidence has
shown already in terms of screenings done or not done. But that does
not transfer to, because a screening was done or not done that that was
the cause of the inmate’s death. That inmate may have died anyway.
So he’s not charged with any death as a result that happened in the jail.
So I want to reemphasize that point to you and I’m instructing you to
consider that also in light of the testimony.
{¶ 71} “In a case where the evidence is of a particularly inflammatory nature,
a curative instruction may be insufficient to cure the prejudicial effect.” Hernandez,
8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, at ¶ 37, citing State v. Patterson,
5th Dist. Stark No. 2017CA00022, 2017-Ohio-8970. The above instruction alone
leaves open the suggestion that appellant is not “charged” with any particular death
but is responsible for all of them.
{¶ 72} From opening statement through the testimony of several witnesses,
the state was able to introduce significant prejudicial testimony and evidence of
multiple inmate deaths, even though appellant was not charged with any crime in
connection with their deaths. We find the security camera image of Arquillo to be a
most egregious and prejudicial piece of evidence and the state’s reason for its
admission incredible. Sgt. Thevenin testified that Arquillo was still alive when the
security camera captured the image the state entered into evidence as state’s exhibit
No. 165. In opening arguments, the state said that Arquillo died approximately eight
hours after being taken into custody at 3:00 a.m. on August 28, 2018. According to
Sgt. Thevenin, the time stamp on the image is 11:34 a.m., eight and one-half hours
after Arquillo was booked into the jail. Thus, while Arquillo may have still been alive
while the image was taken, the image was captured very close in time to when he
passed away.
{¶ 73} Despite this, the state argues that the image was “highly probative
evidence both of overcrowding conditions and the lack of proper medical care,” and
the dereliction-of-duty charges “accused [appellant] of negligently failing to provide
inmates with adequate bedding, shelter[,] and medical attention.” “Images from the
Arquillo incident showed the profound levels of overcrowding that caused inmates
to have to sleep on the floor.” Appellee’s brief, p. 20.
{¶ 74} The state’s argument that it introduced the security camera image into
evidence to show jail overcrowding lacks credibility. The image shows a rather large
space with three men, including Arquillo, on mattresses on the floor, and a small
group of other men in another area of the room. If the state wanted to show that the
jail was overcrowded, there was ample other testimony to support its argument.
Nursing Supervisor Brack testified that state’s exhibit No. 170 showed the third-floor
housing unit, where he observed mats and inmates on the floor. Deputy Inspector
General Woods testified that in the same housing unit, inmates would have to sleep
with their head or feet under toilets because the jail was so crowded. She further
testified that in other areas of the jail, a single occupancy cell would have two
inmates in it and these inmates were often locked in their cells for 20 hours a day
due to staffing issues. As to the state’s proposition that the image was probative to
show the lack of proper medical care, the trial was replete with testimony that
inmates did not receive proper medical care due to the shortage of medical staff,
namely nurses.
{¶ 75} State’s exhibit No. 165 had little to no probative value; it was used
solely to inflame and improperly influence the jury — the fact that it showed a dying
inmate and witnesses testified about this inmate’s death was decidedly prejudicial
and we cannot say beyond a reasonable doubt that the error was harmless.
{¶ 76} Considering the testimony about Brandon Kiekisz, although the
testimony may not have been in and of itself reversible error, we do not consider the
testimony about him in a vacuum. We consider the testimony in light of the other
inadmissible testimony and evidence admitted at trial. In doing so, we also cannot
find beyond a reasonable doubt that the testimony cited above, and the statements
given by the state in opening arguments regarding inmate deaths, were not harmless
beyond a reasonable doubt.
{¶ 77} Next, we consider whether the remaining evidence provided
overwhelming evidence of guilt and if the prejudice to appellant was so
overwhelming as to outweigh the evidence against him. Although the evidence as to
the dereliction of duty counts was strong, especially in light of the fact that appellant
only contested whether he should be considered an “officer,” we find that the
evidence supporting the falsification counts was less so.
{¶ 78} The dissent focuses on the third prong of Harris and finds that the
evidence of appellant’s guilt is “so overwhelming” and the prejudicial effect of the
inmate deaths is “so insignificant” by comparison that, coupled with the court’s
limiting instructions, any error was harmless. There may have been sufficient
evidence to support appellant’s convictions, but the evidence was not “so
overwhelming” as to overcome the pervasive and highly prejudicial testimony of
inmate deaths. From the first minutes of trial until the court finally realized, 14
witnesses into the case, that the state was tainting the jury, the court allowed the
state to dramatically describe deaths of inmates before, during, and after appellant’s
tenure as regional director of corrections.
{¶ 79} There is no dispute the conditions of the Cuyahoga County jail were
deplorable, and that “red zoning” was used. The state’s case, however, centered
around the inmate deaths. Contrary to the dissent’s position that the state entered
evidence of three inmate deaths, the state entered evidence of at least nine inmate
deaths. The state began its opening argument discussing, in length, the death of
inmate Arquillo. The state informed the jury “you’re also going to hear that [inmate
deaths] are relatively rare[,] and no one has ever seen[,] before or since[,] anything
like the number of deaths that occurred in this jail between June and December of
2018.” (Emphasis added.) While only three inmates were referred to by name,
Deputy Inspector General Woods testified that eight inmates died in the jail in 2018.
Councilmember Gallagher testified that there was a string of deaths from June to
December 2018. Multiple witnesses mentioned the 2008 death of Sean Levert.
Thus, the number of inmate deaths the jury heard about was at least nine.
{¶ 80} Although the trial court gave minimal limiting instructions, the
inherently prejudicial nature of the state’s opening argument, witness testimony,
and the photograph cannot be cured by a limiting instruction. See State v. Creech,
150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, ¶ 39 (noting that a limiting
instruction was insufficient to overcome the prejudice of the improperly admitted
evidence); State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 50
(French, J., concurring in judgment only) (explaining that a limiting instruction
does not guarantee admissibility when the danger of unfair prejudice substantially
outweighs the evidence’s probative value).
{¶ 81} Finally, we note that the conduct of the prosecutor “may combine with
an evidentiary error to cause greater impact.” Morris, 141 Ohio St.3d 399, 2014-
Ohio-5052, 24 N.E.3d 1153, at ¶ 31 (finding state’s use of gruesome slides during the
penalty phase appealed to the jury’s emotions and prejudiced the defendant).
“[B]latent prejudice may override even a strong case and require a new trial.” Id. at
¶ 32. See also State v. Ferricci, 8th Dist. Cuyahoga No. 110208, 2022-Ohio-1393
(finding that the state’s repeated statements in closing arguments that its expert had
been previously retained by the defense unduly prejudiced the defendant). In this
case, the state’s repeated mentions of inmate deaths and use of witness testimony
and exhibits to bolster its case under a theory of supporting its dereliction-of-duty
charges was prejudicial to appellant.
{¶ 82} In sum, the discounted probative value of the state’s evidence was
substantially outweighed by the danger of unfair prejudice and the minimal limiting
instructions the trial court gave to the jury were insufficient to overcome the
admission of inadmissible evidence of inmate deaths. See Creech at id.
{¶ 83} Even though we find that there was sufficient evidence that appellant
knowingly made a false statement to county council and made that false statement
with purpose to mislead the council, after a thorough review of all the evidence in
this case, this court concludes that there is at least a “reasonable possibility” that the
improper evidence admitted at trial contributed to appellant’s conviction. See
Morris at ¶ 28; see also Ferricci at ¶ 88.
C. Witness Testimony Regarding Appellant’s Attitude
{¶ 84} Finally, appellant contends that the trial court abused its discretion
when it allowed in the following testimony: (1) appellant hated a particular nurse
and was glad when he resigned; (2) Deputy General Inspector Woods’s testimony
that there was a “hostile work environment and a culture of disrespect” in the jail;
(3) appellant once said a “monkey could do the job” of a corrections officer; (4)
Sheriff Pinkney’s testimony that appellant once ignored a corrections officer’s
morning greeting.
{¶ 85} We have reviewed the challenged testimony and find that any error in
admitting it was harmless beyond a reasonable doubt.
{¶ 86} We therefore sustain the second assignment of error and reverse and
remand for a new trial.
D. Conclusion and Remaining Assignments of Error are Moot
{¶ 87} The trial court abused its discretion by allowing into evidence
substantial argument, witness testimony, and photographic evidence regarding
multiple deaths in the Cuyahoga County jail that occurred before, after, and while
appellant was the regional director of corrections. The admission of the evidence
was not harmless but was prejudicial to appellant and we conclude that there is a
reasonable possibility that the improper evidence contributed to his conviction;
therefore, the error was not harmless. Even if the remaining evidence established
appellant’s guilt beyond a reasonable doubt, the blatant prejudice to appellant
warrants a new trial.
{¶ 88} We therefore sustain the second assignment of error and reverse and
remand for a new trial.
{¶ 89} Based on our sustaining the second assignment of error, the third and
fourth assignments of error, which challenge the jury instructions, and the fifth
assignment of error, in which appellant challenges the consecutive nature of his
sentence, are moot. See App.R. 12(1)(a)(c).
{¶ 90} Judgment reversed; case remanded for a new trial.
{¶ 91} It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
CORNELIUS J. O’SULLIVAN, JR., JUDGE
EMANUELLA D. GROVES, J., CONCURS;
LISA B. FORBES, P.J., DISSENTS IN PART AND CONCURS IN PART (WITH
SEPARATE ATTACHED OPINION)
LISA B. FORBES, J., DISSENTING IN PART AND CONCURRING IN PART:
{¶ 92} I respectfully dissent from the majority opinion sustaining Mills’s
second assignment of error and would find that the trial court acted within its
discretion by admitting evidence of inmate deaths pursuant to Evid.R. 403(A).
{¶ 93} As noted by the majority, appellate courts review the admissibility of
evidence for an abuse of discretion. See State v. Bethel, 110 Ohio St.3d 416, 2006-
Ohio-4853, 854 N.E.2d 150, ¶ 171. The Ohio Supreme Court recently clarified the
abuse of discretion standard of review in Abdullah, 166 Ohio St.3d 427, 2021-Ohio-
3304, 187 N.E.3d 463, ¶ 33-41, explaining that, when a trial court abuses its
discretion, “the trial court’s attitude, in reaching its decision, was arbitrary,
unreasonable, or unconscionable.” (Citations omitted.)
{¶ 94} First, I would find that Evid.R. 404(B) is inapplicable to the case at
hand. The Ohio Supreme Court has stated that Evid.R. 404(B) “prohibits the use of
evidence related to other acts of the defendant to show his character or propensity
to commit crimes * * *.” (Emphasis added.) State v. Smith, 162 Ohio St.3d 353,
2020-Ohio-4441, 165 N.E.3d 1123, ¶ 3. The fact that inmates died is not other acts
evidence as envisioned by Evid.R. 404(B). See, e.g., State v. Heineman, 2016-Ohio-
3058, 65 N.E.3d 287, ¶ 76 (8th Dist.), quoting State v. Patton, 74 Ohio App.3d 224,
229, 598 N.E.2d 777 (3d Dist.1991) (defining the word “act” in the context of
Evid.R. 404(B) as ‘“[t]he process of doing something; action: * * * something that is
done or performed; deed * * *’”). In the case at hand, there is no evidence of an “act,”
let alone an “act” by Mills, that would implicate Evid.R. 404(B).
{¶ 95} Turning to Evid.R. 403(A), I would find that the evidence presented
to the jury relating to inmate deaths is relevant to whether Mills violated
R.C. 2921.44(C), which governs dereliction of duty. See also Evid.R. 401.
Furthermore, the probative value of this evidence outweighs “the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.” Evid.R. 403(A).
{¶ 96} Notably, “[t]he exclusion of relevant evidence under Evid.R. 403(A)
requires more than mere prejudice, because anything adverse to a party’s case could
be deemed prejudicial to that party.” State v. Worley, 164 Ohio St.3d 589, 2021-
Ohio-2207, 174 N.E.3d 754, ¶ 125. “[O]nly evidence that is unfairly prejudicial is
excludable.” (Emphasis sic.) State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550,
820 N.E.2d 302, ¶ 23. ‘“Unfair prejudice,’ as used in Rule 403, does not mean the
damage to the [party’s] case that results from the legitimate probative force of the
evidence; rather, it refers to evidence which tends to suggest decision on an
improper basis.” U.S. v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986). ‘“Unfair
prejudice is that quality of evidence which might result in an improper basis for a
jury decision.’” Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d
890 (2001), quoting Weissenberger’s Ohio Evidence, Section 403.3, 85-87 (2000).
Evidence may be unfairly prejudicial, ‘“if the evidence arouses the jury’s emotional
sympathies, invokes a sense of horror, or appeals to an instinct to punish * * *.”’ Id.
{¶ 97} In its effort to prove Mills committed dereliction of duty under
R.C. 2921.44(C)(2) and (5),3 the state presented an abundance of evidence over an
11-day trial, including 28 witnesses and over 200 exhibits. A small part of this
evidence concerned inmate deaths. In particular, three inmates who died were
mentioned by name. One death occurred before Mills was appointed, one occurred
during his tenure, and one occurred soon after he was terminated.
{¶ 98} According to the state, evidence of the death that occurred prior to
Mills’s tenure was presented to demonstrate that the jail began its partnership with
MetroHealth for medical services to help prevent drug overdoses at the jail and
provide better medical care to the inmates. In my opinion, this evidence is relevant
background information to understand jail operations.
{¶ 99} According to the state, evidence of the deaths that occurred during
and immediately after Mills’s tenure was presented to demonstrate that Mills “was
derelict in his duty” under R.C. 2921.44(C). Specifically, the state argued that
inmates missed medical intake screenings as
a result of * * * Mills bringing in the Cleveland inmates and
overwhelming the intake process without increasing the staffing
medical and officers, corrections officers. And number two, the result
of backlog that resulted in people missing those [medical] intakes and
going right to the housing unit with the conditions that lead to their
deaths.
3Dereliction of duty is defined, in part, as the failure “to provide persons confined
in the detention facility with adequate food, clothing, bedding, shelter, and medical
attention” or the failure “to observe any lawful and reasonable regulation for the
management of the detention facility.” R.C. 2921.44(C)(2) and (5).
In my opinion, this evidence is relevant to whether Mills failed in his duties as the
director of regional corrections to provide jail inmates with, among other things,
adequate “medical attention.”
{¶ 100} Furthermore, I would find that this evidence is not so unfairly
prejudicial as to result in an improper basis for a jury decision. The state’s evidence
regarding inmate deaths, including comments made during opening statements, did
not result in an improper basis for a jury decision because of the overwhelming
evidence that Mills failed in his duties as the director of regional corrections. See
Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (“In
some cases the properly admitted evidence of guilt is so overwhelming, and the
prejudicial effect of the [improperly admitted evidence] is so insignificant by
comparison, that it is clear beyond a reasonable doubt that the improper * * *
admission was harmless error.”).
{¶ 101} For example, as noted by the majority opinion, “the trial was replete
with testimony that inmates did not receive proper medical care due to the shortage
of medical staff, namely nurses.” Additionally, the state presented testimony that
the jail was “[d]irty, no running water, the inmates had to drink out of Igloo jugs. A
lot of them slept on the table, on the floor. It was not clean at all.” Testimony showed
that, according to jail standards, “for every 12 inmates there has to be one shower
and that shower has to be working * * *.” The state presented testimony regarding
the third floor of the jail, colloquially referred to as the “dungeon,” was where all of
the “fresh arrests” were placed, so that “all inmates would go immediately to * * * be
housed there.” However, the plumbing was not working on the third-floor housing
unit of the jail, so “there’s no availability to take a shower,” and the toilets would not
flush. Testimony showed that conditions on the third floor, were “horrific,” and
“[n]o one should have been down there.”
{¶ 102} A jail inspector for the state of Ohio testified to the following: when
he inspected the Cuyahoga County jail between 2015 and 2018, he worked with
Mills, who was the “jail administrator”; inmates were being isolated up to 20 hours
per day; nonviolent and violent offenders were not being properly separated; and
the jail was “exceeding [its] bureau recommended capacity by bunking additional
inmates in single occupancy cells, double occupancy [c]ells, triple and quadruple
occupancy cells.” The inspector further testified that the term “red zoning” was
developed by the Cuyahoga County jail, and he was not aware of any other jail in
Ohio using this draconian method. “Red zoning” refers to locking inmates in their
cells for extended periods of time because of understaffing. He further testified that,
although “red zoning” did not meet basic jail standards, Mills’s position was that the
jail was “in compliance with all related Ohio Revised Code requirements.” The
inspector testified that he did not agree with Mills’s position.
{¶ 103} Furthermore, the trial court was acutely aware of the possibility of
unfair prejudice that could result from the “inference” that the inmates died because
they were not medically screened. As a result, initially, the trial court limited the
state’s use of the evidence of inmate deaths to whether the medical screenings were
“missed because of the change in policies and procedures that [Mills] caused.” The
court informed the jury during the state’s opening statement that “Mills is not
charged with causing any specific death or injury to any specific inmate.” The court
instructed the jury that “whether * * * [the inmates] got screened or not they may or
may not have died anyway.”
{¶ 104} Approximately halfway through trial, the court clarified, out of the
jury’s presence, that it would not permit testimony that would raise an inference that
the inmate died because the inmate did not get medically screened under Mills’s
change in procedure. Before resuming witness testimony, the court reminded the
jury that “Mills [was] not charged with causing the death of any particular inmate.”
The court stated that Mills made policy changes regarding medical screenings, but
whether an inmate was medically screened or not, “[t]hat inmate may have died
anyway.” No additional evidence related to inmate deaths at the jail was admitted
at trial.
{¶ 105} Therefore, in my opinion, the admission of the inmate death
evidence, coupled with the court limiting its use and issuing limiting instructions to
the jury, was not unfairly prejudicial to Mills.
{¶ 106} In light of the overwhelming evidence against Mills and the
limitations put in place by the trial court, I would find the court did not abuse its
discretion when it permitted evidence related to inmate deaths. Therefore, I would
overrule Mills’s second assignment of error and proceed to analyze assignments of
error Nos. 3 through 5. Otherwise, I concur with the remainder of the majority’s
opinion. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483070/ | [Cite as Johnson v. Kandel, 2022-Ohio-4025.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUSTIN LAMAR JOHNSON JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022CA00024
STEPHEN KANDEL
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2021CV01151
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 10, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JUSTIN LAMAR JOHNSON NO APPEARANCE
PRO SE
1004 8th Street, NE
Canton, Ohio 44704
Stark County, Case No. 2022CA00024 2
Wise, J.
{¶1} Plaintiff-Appellant Justin Jordan appeals from the December 15, 2021,
Judgment Entry by the Stark County Court of Common Pleas granting Appellee’s Motion
to Dismiss. Defendant-Appellee is Stephen Kandel. The relevant facts leading to this
appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} In 2016, Appellant was indicted in the Stark County Court of Common Pleas
for discharging a firearm on or near a prohibited premise, felonious assault, and having a
weapon under disability. Appellee, then counsel for Appellant, requested the trial court
bifurcate the proceedings and permit the first two charges to be tried by a jury and have
the weapon-disability charge tried to the bench.
{¶3} On March 24, 2016, the jury acquitted Appellant of the first two charges, but
the trial court found him guilty of having a weapon under disability and sentenced him to
twenty-four months of imprisonment.
{¶4} This Court reversed and remanded his conviction holding, in part, the trial
court failed to follow R.C. §2945.05 and Crim.R. 23(A) by failing to obtain his written
consent to a waiver of his right to a jury trial. State v. Johnson, 5th Dist. Stark No.
2016CA00119, 2017-Ohio-1251, ¶18. The case was never retried, and his conviction was
expunged.
{¶5} In May of 2018, Appellant filed a complaint against Stark County Common
Pleas Court Judge Joseph Gibson in Federal Court, arguing the judge violated his right
to trial by jury. The United States District Court for the Northern District of Ohio dismissed
the complaint, holding that Judge Gibson was entitled to absolute judicial immunity.
Stark County, Case No. 2022CA00024 3
{¶6} In October of 2019, Appellant filed another complaint in Federal Court
against Judge Gibson, the Ohio Attorney General, Stark County Prosecutor, Assistance
Prosecutors, and criminal defense attorneys, including Appellee. Appellant claimed the
defendants violated his due-process rights by conspiring to convict him without obtaining
a written waiver of his right to a jury trial.
{¶7} The United States District Court for the Northern District of Ohio dismissed
the complaint sua sponte as the complaint is barred by res judicata, and Appellant failed
to state a claim upon which relief could be granted.
{¶8} On July 22, 2020, the United States Court of Appeals for the Sixth Circuit
affirmed the Northern District of Ohio.
{¶9} On August 13, 2021, Appellant filed the Complaint in the Stark County Court
of Common Pleas alleging Appellee violated his right to a jury trial stemming from the
bench trial of his 2016 case for Having a Weapon While Under Disability.
{¶10} On September 17, 2021, Appellant filed an Amended Complaint.
{¶11} On September 24, 2021, Appellant filed a Second Amended Complaint.
{¶12} On October 12, 2021, Appellant filed a Third Amended Complaint. In his
Third Amended Complaint, Appellant alleged that in March of 2016, Appellee, through his
legal malpractice and fraud, deprived him of effective legal counsel, put him twice in
jeopardy, deprived him of the right to be free from slavery and involuntary servitude as
well as his right to liberty without due process, and led to his wrongful conviction.
{¶13} On December 15, 2021, Appellee filed a Motion to Dismiss based upon the
Statute of Limitations.
Stark County, Case No. 2022CA00024 4
{¶14} On December 20, 2021, Appellant filed a Memo in Opposition to
Defendant’s Motion to Dismiss.
{¶15} On January 31, 2021, the trial court granted Appellee’s Motion to Dismiss.
ASSIGNMENTS OF ERROR
{¶16} Appellant filed a timely notice of appeal and herein raises the following four
Assignments of Error:
{¶17} “I. ON JANUARY 31ST OF 2022, IN THE JUDGMENT ENTRY IN
CONSIDERATION OF THE APPELLANTS [sic] COMPLAINT, THE TRIAL COURT
ERRED BY DISMISSING THE APPELLANT’S COMPLAINT BY RULING THAT IT
APPEARS TO BE MAKING LEGAL MALPRACTICE CLAIMS PREVIOUSLY RAISED IN
THE DISTRICT COURT.
{¶18} “II. ON JANUARY 31ST OF 2022, IN THE JUDGMENT ENTRY IN
CONSIDERATION OF THE APPELLANTS [sic] COMPLAINT, THE TRIAL COURT
ERRED BY RULING THAT THE APPELLANT’S CLAIM WAS BARRED BECAUSE IT
PRESENTED THE SAME FACTUAL ALLEGATIONS AGAINST THE APPELLEE AS
THE PREVIOUS COMPLAINT.
{¶19} “III. ON JANUARY 31ST OF 2022, IN THE JUDGMENT ENTRY IN
CONSIDERATION OF THE APPELLANTS [sic] COMPLAINT, THE TRIAL COURT
ERRED BY RULING THAT THE APPELLANT’S COMPLAINT WAS BROUGHT AFTER
THE STATUTE OF LIMITATIONS FOR LEGAL MALPRACTICE, CIVIL FRAUD,
CONSTRUCTIVE FRAUD, AND FRAUDULENT MISREPRESENTATION.
{¶20} “IV. ON JANUARY 31ST OF 2022, IN THE JUDGMENT ENTRY IN
CONSIDERATION OF THE APPELLANT’S MOTION FOR SUMMARY JUDGEMENT
Stark County, Case No. 2022CA00024 5
[sic], THE TRIAL COURT ERRED BY DENYING THE APPELLANT’S MOTION FOR
SUMMARY JUDGEMENT [sic].”
{¶21} For the purpose of judicial economy, we will address Appellant’s
assignments of error out of order.
III.
{¶22} In Appellant’s third Assignment of Error, Appellant argues the trial court
erred by granting Appellee’s Motion to Dismiss was filed beyond the Statute of
Limitations. We disagree.
{¶23} Our standard of review on a Civ.R. 12(B)(6) Motion to Dismiss is de novo.
Battersby v. Avatar, Inc., 1st Dist. No C-030774, 157 Ohio App.3d 648, 2004-Ohio-3324,
813 N.E.2d 46, ¶5. “A motion to dismiss for failure to state a claim upon which relief can
be granted is procedural and tests the sufficiency of the complaint.” State ex rel. Hanson
v. Guernsey Cty. Bd. Of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A
Civ.R. 12 (B)(6) motion to dismiss should be granted only when a plaintiff can prove no
set of facts that would entitle him or her to relief. O’Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. Under a de novo
analysis, we must accept all factual allegations of the complaint as true and all reasonable
inferences must be drawn in favor of the nonmoving party. Byrd v. Faber, 57 Ohio St.3d
56, 565 N.E.2d 584 (1991).
{¶24} The trial court dismissed Appellant’s claim of fraud and legal malpractice
because they were barred by the statute of limitations. Under Ohio law, claims of legal
malpractice are governed by a one-year statute of limitations. R.C. §2305.11(A). The
cause of “action for legal malpractice accrues and the statute of limitations begins to run
Stark County, Case No. 2022CA00024 6
when there is a cognizable event whereby the client discovers or should have discovered
that his injury was related to his attorney’s act or non-act and the client is put on notice of
a need to pursue his possible remedies against the attorney[.]” Zimmie v. Calfee, Halter
& Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d 398, 401 (1989).
{¶25} The applicable statute of limitations for fraud is four years. R.C.
§2305.09(D).
{¶26} In the case sub judice, we find that the cognizable event whereby Appellant
should have discovered he was injured by Appellee’s alleged actions and was put on
notice of his need to pursue possible remedies against Appellee was on March 24, 2016
when the jury trial for Counts One and Two were bifurcated from the bench trial for Count
Three, the jury found Appellant not guilty on Counts One and Two, and the judge found
Appellant guilty on Count Three. At this time, Appellant should have realized he did not
waive his right to a jury trial on Count Three.
{¶27} Under R.C. §2305.11(A), a legal malpractice action must be brought within
a year after the cause of action accrued, and under R.C. §2305.09(D) a fraud action must
be brought within four years after the cause of action accrued. Since this complaint was
filed on August 13, 2021, more than five years after March 24, 2016, the fraud and legal
malpractice action is barred by Ohio’s statute of limitations.
{¶28} Accordingly, Appellant’s third Assignment of Error is overruled.
Stark County, Case No. 2022CA00024 7
I., II., IV.
{¶29} Due to our disposition in the third Assignment of Error, we refrain from
analyzing Assignments of Error one, two, and four.
{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
JWW/br 1103 | 01-04-2023 | 11-10-2022 |
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