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https://www.courtlistener.com/api/rest/v3/opinions/8483167/ | People v Moore (2022 NY Slip Op 06402)
People v Moore
2022 NY Slip Op 06402
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: CURRAN, J.P., SMITH, LINDLEY, BANNISTER, AND MONTOUR, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (722/20) KA 16-01161.
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vROBERT L. MOORE, II, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for writ of error coram nobis denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483204/ | Matter of Boldt v New York State Off. of Temporary & Disability Assistance (2022 NY Slip Op 06344)
Matter of Boldt v New York State Off. of Temporary & Disability Assistance
2022 NY Slip Op 06344
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
671
TP 22-00275
&em;
[*1]IN THE MATTER OF THE APPLICATION OF LINDA J. BOLDT, AS VOLUNTARY ADMINISTRATOR
OF THE ESTATE OF DOREEN BARR, DECEASED,
PETITIONER,
MEMORANDUM AND ORDER
vNEW YORK STATE OFFICE OF TEMPORARY AND
DISABILITY ASSISTANCE AND NEW YORK STATE
DEPARTMENT OF HEALTH, RESPONDENTS.
STAMM LAW FIRM, WILLIAMSVILLE (BRADLEY J. STAMM OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENTS.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Timothy J. Walker, A.J.], entered February 23, 2022) to review a determination of respondents. The determination adjudged that Doreen Barr was not Medicaid-eligible for nursing facility services for a period of approximately nine months.
It is hereby ORDERED that the determination is unanimously annulled on the law without costs, the amended petition is granted, and the matter is remitted to respondent New York State Office of Temporary and Disability Assistance for further proceedings in accordance with the following memorandum: Petitioner, as voluntary administrator of the estate of her deceased mother, Doreen Barr (decedent), commenced this CPLR article 78 proceeding, which was transferred to this Court pursuant to CPLR 7804 (g), seeking to annul the determination that decedent was not Medicaid-eligible for nursing facility services for a period of approximately nine months on the ground that decedent had made uncompensated transfers during the
60-month look-back period (see Social Services Law § 366 [5] [a], [e] [1] [vi]). The determination of respondent New York State Office of Temporary and Disability Assistance (OTDA) that decedent was not eligible for those services was affirmed by respondent New York State Department of Health.
Pursuant to a personal service agreement (PSA) between petitioner, petitioner's husband and decedent, petitioner and her husband agreed to provide decedent with personal care services, including cooking, cleaning, washing, shopping and driving decedent to outside appointments, such as doctors' visits. In exchange for those services, petitioner and her husband would be paid $2,500 per month, a sum that the PSA noted was commensurate with the approximate number of hours per month that would be necessary to provide the care at a rate of $20 per hour. While the agreement appeared to contemplate that monthly payments would be made, it also recognized that decedent would be permitted to make payments for the care in advance inasmuch as the PSA contained a clause providing that any prepaid monies must be returned if not earned prior to decedent's death.
From October 2015 until January 2019, when decedent entered a nursing facility, she resided with petitioner and petitioner's husband. Decedent made only one monthly payment to petitioner and her husband in accordance with the PSA. However, as relevant here, in 2015 decedent made four transfers to petitioner totaling more than $40,000 after decedent received cash value for certain insurance policies she owned. Just prior to decedent moving into the [*2]nursing home facility, she applied for Medicaid. OTDA approved the application but imposed a penalty period of 8.81477 months based upon the determination that decedent made uncompensated transfers, including the cashed insurance policy transfers, within the look-back period. After a fair hearing, the Administrative Law Judge (ALJ) upheld OTDA's determination. The ALJ noted that the PSA provided for services to be paid on a monthly basis, and found that no credible documentation was provided concerning the daily hours of services actually rendered to decedent.
"In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services" for a certain penalty period (Social Services Law § 366 [5] [d] [3]). The look-back period is the "[60]-month period[] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance" (§ 366 [5] [d] [1] [vi]). When such a transfer has occurred, a presumption arises that the transfer "was motivated, in part if not in whole, by . . . anticipation of a future need to qualify for medical assistance," and it is the applicant's burden to establish his or her eligibility for Medicaid by rebutting the presumption (Matter of Mallery v Shah, 93 AD3d 936, 937 [3d Dept 2012] [internal quotation marks omitted]). As pertinent here, "an applicant may do so by demonstrating that he or she intended to receive fair consideration for the transfers or that the transfers were made exclusively for purposes other than qualifying for Medicaid" (Matter of Wellner v Jablonka, 160 AD3d 1261, 1262 [3d Dept 2018]; see § 366 [5] [e] [4] [i], [ii]).
Here, petitioner submitted documentary proof of the PSA, which was entered into in 2015, more than three years before decedent entered the nursing home. As noted above, while the PSA contemplated monthly payments for the personal care services, it also contemplated that decedent may make payments in advance. In addition, petitioner submitted bank statements demonstrating that decedent did not have money to pay for the services until after she received cash value for the insurance policies. Petitioner also submitted a monthly calendar that documented the care provided to decedent during the relevant time period. While the calendar did not provide the number of hours spent on each task, "a daily log of hours worked and services rendered is not necessarily required" (Matter of Kerner v Monroe County Dept. of Human Servs., 75 AD3d 1085, 1087 [4th Dept 2010]). Moreover, the PSA was based on a monthly, not hourly, payment schedule, and the monthly amount was commensurate with fair market value for the type of services performed. On this record, we conclude that the determination that the disputed transfers of the cashed-in insurance policies to petitioner were uncompensated transfers is not supported by substantial evidence.
We therefore annul the determination, grant the amended petition, and remit the matter to OTDA to determine decedent's eligibility for medical assistance benefits following recalculation of the period set forth in Social Services Law § 366 (5).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483185/ | Matter of Xavier S.-S. (Ricardo S.) (2022 NY Slip Op 06341)
Matter of Xavier S.-S. (Ricardo S.)
2022 NY Slip Op 06341
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
659 CAF 21-00141
[*1]IN THE MATTER OF XAVIER S.-S. GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; RICARDO S., RESPONDENT-APPELLANT. (APPEAL NO. 6.)
LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR RESPONDENT-APPELLANT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-RESPONDENT.
DAVID J. PAJAK, ALDEN, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Genesee County (Thomas M. DiMillo, A.J.), entered December 23, 2020 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred respondent's guardianship and custody rights with respect to the subject child to petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Matter of Briana S.-S. (Emily S.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483184/ | Medlock Crossing Shopping Ctr. Duluth, Ga. Ltd. Partnership v TT Medlock Crossing, LLC (2022 NY Slip Op 06391)
Medlock Crossing Shopping Ctr. Duluth, Ga. Ltd. Partnership v TT Medlock Crossing, LLC
2022 NY Slip Op 06391
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND WINSLOW, JJ.
827 CA 21-01194
[*1]MEDLOCK CROSSING SHOPPING CENTER DULUTH, GA. LIMITED PARTNERSHIP, PLAINTIFF-RESPONDENT,
vTT MEDLOCK CROSSING, LLC, ET AL., DEFENDANTS, AND WILLIAM P. ALLEN, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
THE LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
BOND, SCHOENECK & KING, PLLC, ROCHESTER (CURTIS A. JOHNSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (William K. Taylor, J.), entered July 22, 2021. The order and judgment, inter alia, granted the motion of plaintiff for summary judgment against defendant William P. Allen.
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: In 2010, plaintiff leased its premises to defendant TT Medlock Crossing, LLC (TT Medlock) for the purpose of opening a restaurant. Defendants Gavin H. Abadi and William P. Allen signed a personal guarantee of the lease. Among other things, the guarantee rendered Abadi and Allen jointly and severally liable, and extended their obligation to any subsequent modifications, extensions, and assignments of the lease. In 2018, TT Medlock extended the term of the lease and assigned its interest thereunder to another entity, defendant MK Ameritaco Corp., which undisputedly proceeded to breach the lease by failing to pay rent pursuant to its terms. Plaintiff commenced this action seeking damages for breach of a written lease against a number of defendants, including TT Medlock, MK Ameritaco Corp., Abadi, and Allen, although only Allen filed an answer.
Plaintiff thereafter moved for summary judgment against Allen as to both liability and damages. In appeal No. 1, Allen appeals from an order and judgment granting plaintiff's motion and awarding damages and attorneys' fees. Allen subsequently moved pursuant to CPLR 2221 for leave to renew and reargue his opposition to plaintiff's motion, and submitted an affidavit that he contended constituted new evidence establishing that his signature appearing on the 2018 lease extension and assignment was a forgery. Supreme Court determined that Allen's motion was in reality only a motion to reargue, and it denied the motion. In appeal No. 2, Allen appeals from the order denying his motion.
In appeal No. 1, Allen does not dispute that plaintiff met its initial burden on its summary judgment motion, and contrary to Allen's contention, we conclude that he failed to raise an issue of fact in opposition (see generally Buffalo & Erie County Regional Dev. Corp. v World Auto Parts, 306 AD2d 857, 858 [4th Dept 2003]). A written guarantee " 'that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' " (Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v Navarro, 25 NY3d 485, 493 [2015], quoting Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). Here, the terms of the 2010 guarantee that Allen undisputedly signed unambiguously extended his responsibility to the 2018 lease extension and assignment (see generally Boulevard Mall v Knight, 300 AD2d 1017, 1019 [4th Dept 2002]). Although Allen claims that a portion of [*2]the language appearing on the 2010 guarantee submitted by plaintiff was not present on the document that he signed, that disputed provision, by its limited terms, is irrelevant to the present circumstances and has no bearing on the extent of Allen's obligations under the guarantee as related to the 2018 lease extension and assignment. Allen on appeal does not otherwise contend that the 2010 guarantee is unenforceable. Contrary to Allen's further contention, even assuming, arguendo, that he did not sign the 2018 lease extension and assignment as an "original guarantor," we conclude that the 2010 guarantee, standing alone, was sufficient to establish a guarantee of the subsequent extension and assignment (see id.).
Contrary to Allen's contention in appeal No. 2, the court properly deemed Allen's motion to be one for only reargument and no appeal lies from an order denying leave to reargue (see Autry v Children's Hosp. of Buffalo, 270 AD2d 845, 846 [4th Dept 2000]; see generally Corter-Longwell v Juliano, 200 AD3d 1578, 1579 [4th Dept 2021]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483173/ | People v Davis (2022 NY Slip Op 06374)
People v Davis
2022 NY Slip Op 06374
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
796 KA 18-02279
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vBRANDON DAVIS, DEFENDANT-APPELLANT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered October 1, 2018. The judgment convicted defendant, upon a plea of guilty, of criminal possession of a weapon in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Although we agree with defendant that, as the People correctly concede, he did not validly waive his right to appeal (see People v Thomas, 34 NY3d 545, 564-566 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]), we nevertheless conclude that the sentence is not unduly harsh or severe.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483164/ | People v Ramos (2022 NY Slip Op 06394)
People v Ramos
2022 NY Slip Op 06394
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, AND BANNISTER, JJ.
849 KA 17-00835
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vGREGORY RAMOS, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered April 26, 2017. The appeal was held by this Court by order entered June 12, 2020, decision was reserved and the matter was remitted to Supreme Court, Erie County, for further proceedings (184 AD3d 1203 [4th Dept 2020]). The proceedings were held and completed.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of strangulation in the second degree (Penal Law § 121.12). We previously held the case, reserved decision, and remitted the matter to Supreme Court to afford defendant a reasonable opportunity to present contentions in support of his motion to withdraw his plea (People v Ramos, 184 AD3d 1203, 1204 [4th Dept 2020]). Upon remittal, the court again denied defendant's motion to withdraw his plea, but defendant now withdraws his contention of error with respect to the court's denial of that motion.
We reject defendant's contention that the court erred in failing to apprehend the extent of its discretion in imposing the period of postrelease supervision. We conclude that the court's statements at the plea proceeding regarding the imposition of a three-year period of postrelease supervision "do[ ] not, without more, indicate that the court erroneously believed that it lacked discretion to impose a shorter period" (People v Porter, 9 AD3d 887, 887 [4th Dept 2004], lv denied 3 NY3d 710 [2004]).
Even assuming, arguendo, that defendant is correct that his waiver of the right to appeal is invalid, and thus does not preclude our review of his challenge to the severity of his sentence (see People v Seay, 201 AD3d 1361, 1361-1362 [4th Dept 2022]), we nevertheless conclude that the sentence is not unduly harsh or severe. However, as defendant contends and the People correctly concede, to the extent that statements made by the court at the proceeding upon remittal were an attempt by the court to modify defendant's sentence to run the sentence consecutively to a sentence on defendant's federal conviction, the court was without authority to do so (see CPL 430.10; People v Richardson, 100 NY2d 847, 853 [2003]; Matter of Budelmann v Leone, 48 AD3d 1206, 1207 [4th Dept 2008]).
Defendant's remaining contention concerning the order of protection in favor of his children extends beyond the scope of the remittal and was not raised by defendant prior to remittal (see People v Pressley, 170 AD3d 1645, 1645 [4th Dept 2019], lv denied 33 NY3d 1072 [2019]; People v Butler, 75 AD3d 1105, 1105 [4th Dept 2010], lv denied 15 NY3d 919 [2010]). Even assuming, arguendo, that the contention is properly before us, we would conclude that it is without merit.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483170/ | People v Howard (2022 NY Slip Op 06333)
People v Howard
2022 NY Slip Op 06333
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
626 KA 17-00492
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vRANDY T. HOWARD, DEFENDANT-APPELLANT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), rendered December 7, 2016. The judgment convicted defendant upon his plea of guilty of manslaughter in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [1]), defendant contends that the written waiver of the right to appeal is invalid because it contained overbroad advisements suggesting that it was "an absolute bar to the taking of a direct appeal" (People v Thomas, 34 NY3d 545, 565 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]), and that the oral waiver of the right to appeal did not cure the deficiencies in the written waiver. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of any of defendant's contentions, we nevertheless affirm the judgment.
Defendant contends that Supreme Court erred in refusing to suppress evidence obtained as a result of an allegedly unlawful arrest without conducting a hearing with respect to the legality of that arrest. A court is required to grant a suppression hearing "if the defendant 'raise[s] a factual dispute on a material point which must be resolved before the court can decide the legal issue' of whether evidence was obtained in a constitutionally permissible manner" (People v Burton, 6 NY3d 584, 587 [2006]; see People v Mendoza, 82 NY2d 415, 426 [1993]). The "factual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and defendant's access to information" (Mendoza, 82 NY2d at 422; see People v Battle, 109 AD3d 1155, 1157 [4th Dept 2013], lv denied 22 NY3d 1038 [2013]).
We reject defendant's contention that a hearing was warranted based on an alleged violation of CPL 140.15 (2). CPL 140.15 (2) provides that, when arresting a person without a warrant, "[t]he arresting police officer must inform such person of his [or her] authority and purpose and of the reason for such arrest unless he [or she] encounters physical resistence, flight or other factors rendering such procedure impractical." Any violation of CPL 140.15 (2) is "a statutory, as opposed to a constitutional, violation" and "does not itself trigger suppression" (People v Henry, 185 AD2d 1, 3 n [1st Dept 1992], lv denied 81 NY2d 887 [1993]) or render the arrest unlawful (see People v Battest, 168 AD2d 958, 959 [4th Dept 1990], lv denied 77 NY2d 958 [1991]; see also People v Hampton, 44 AD3d 1071, 1072 [2d Dept 2007], lv denied 10 NY3d 840 [2008]).
We further reject defendant's contention that a hearing was warranted based on his allegation that he was arrested without probable cause. It is well settled that a police officer may arrest a person without a warrant when he or she has probable cause to believe that such person has committed a crime (see People v Johnson, 66 NY2d 398, 402 [1985]). The search warrant [*2]application used to secure a search warrant for the premises in which defendant was arrested was before the court, and that application "was sufficient to establish probable cause to believe that defendant had committed [a crime]" (People v Carlton, 26 AD3d 738, 739 [4th Dept 2006]; see People v Snagg, 35 AD3d 1287, 1288 [4th Dept 2006], lv denied 8 NY3d 950 [2007]; see generally People v Parker, 160 AD3d 989, 990 [2d Dept 2018]). In support of his motion, defendant "failed to raise factual issues sufficient to require a hearing" (People v Caldwell, 78 AD3d 1562, 1563 [4th Dept 2010], lv denied 16 NY3d 796 [2011]; see Mendoza, 82 NY2d at 426).
Defendant further contends that the court erred in denying defense counsel's request for an adjournment of sentencing in order to, inter alia, submit a motion on defendant's behalf. It is well settled that the determination whether to grant an adjournment of sentencing rests within the sound discretion of the court and should not be disturbed unless there is a clear abuse of that discretion (see People v Hernandez, 192 AD3d 1528, 1532 [4th Dept 2021], lv denied 37 NY3d 957 [2021]; see generally People v Spears, 24 NY3d 1057, 1059-1060 [2014]). Defense counsel sought an adjournment to review the plea minutes and prepare a motion to withdraw the plea, and to investigate possible newly discovered evidence. The court noted that the plea was entered knowingly and voluntarily and advised defendant that it would entertain any postconviction motion based on newly discovered evidence. Under the circumstances, we conclude that the court did not abuse its discretion in denying the request for an adjournment (see People v Shanley, 189 AD3d 2108, 2108 [4th Dept 2020], lv denied 36 NY3d 1100 [2021]; People v Ippolito, 242 AD2d 880, 880-881 [4th Dept 1997], lv denied 91 NY2d 874 [1997]; see also People v Rivera, 34 AD3d 240, 240-241 [1st Dept 2006], lv denied 8 NY3d 926 [2007]; People v Vucetovic, 258 AD2d 335, 335 [1st Dept 1999], lv denied 93 NY2d 930 [1999]).
We have considered defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483174/ | People v Clinkscales (2022 NY Slip Op 06375)
People v Clinkscales
2022 NY Slip Op 06375
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
798 KA 16-02334
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vJULIAN CLINKSCALES, DEFENDANT-APPELLANT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair, J.), rendered December 6, 2016. The judgment convicted defendant upon a jury verdict of attempted murder in the second degree and assault in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and assault in the first degree (§ 120.10 [1]) in connection with an incident during which defendant hit the victim—his mother—in the head with a hammer. We affirm.
Defendant contends that Supreme Court erred in permitting the victim to testify about certain prior bad acts by defendant (see generally People v Molineux, 168 NY 264, 293-294 [1901]). Specifically, he contends that the court erred in admitting testimony about a prior incident where he had engaged in domestic violence against the victim, and testimony that, in the month before the attack, he frequently argued with the victim about how she had sent him to a juvenile detention facility following the prior incident of domestic violence. We reject that contention. The court properly admitted the testimony in question "to complete the narrative of the events charged in the indictment . . . , and [to] provide[] necessary background information" (People v Feliciano, 196 AD3d 1030, 1031 [4th Dept 2021], lv denied 37 NY3d 1059 [2021] [internal quotation marks omitted]; see People v Nieves-Cruz, 200 AD3d 1588, 1590-1591 [4th Dept 2021], lv denied — NY3d — [2022]). The court also properly admitted that testimony to establish defendant's motive to attack the victim (People v Resto, 147 AD3d 1331, 1332-1333 [4th Dept 2017], lv denied 29 NY3d 1000 [2017], reconsideration denied 29 NY3d 1094 [2017]). Contrary to defendant's contention, the court did not abuse its discretion in determining that the probative value of the challenged Molineux testimony outweighed its potential for prejudice (see generally People v Cass, 18 NY3d 553, 560 [2012]) and, moreover, "the court's prompt limiting instruction[s] ameliorated any prejudice" (People v Emmons, 192 AD3d 1658, 1659 [4th Dept 2021], lv denied 37 NY3d 992 [2021]; see People v Holmes, 104 AD3d 1288, 1289 [4th Dept 2013], lv denied 22 NY3d 1041 [2013]).
Finally, the sentence is not unduly harsh or severe.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483159/ | People v Smith (2022 NY Slip Op 06365)
People v Smith
2022 NY Slip Op 06365
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
776 KA 19-02105
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vKEVIN L. SMITH, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLISON V. MCMAHON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (Kristina Karle, J.), rendered June 19, 2019. The judgment convicted defendant upon his plea of guilty of criminal sale of a controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendant contends that his waiver of the right to appeal is invalid and thus does not foreclose his challenge to the severity of the negotiated sentence. The People correctly concede that the waiver of the right to appeal is invalid because County Court's "oral waiver colloquy and the written waiver signed by defendant together 'mischaracterized the nature of the right that defendant was being asked to cede, portraying the waiver as an absolute bar to defendant taking an appeal . . . , and there is no clarifying language in either the oral or written waiver indicating that appellate review remained available for certain issues' " (People v Johnson, 192 AD3d 1494, 1495 [4th Dept 2021], lv denied 37 NY3d 965 [2021]; see People v Shanks, 37 NY3d 244, 252-253 [2021]; People v Thomas, 34 NY3d 545, 565 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Dozier, 179 AD3d 1447, 1447 [4th Dept 2020], lv denied 35 NY3d 941 [2020]). Nevertheless, considering defendant's extensive criminal record, which includes five prior felony convictions, we conclude that the negotiated sentence is not unduly harsh or severe.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483172/ | People v Fulton (2022 NY Slip Op 06376)
People v Fulton
2022 NY Slip Op 06376
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
800 KA 18-00564
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vFRANK D. FULTON, DEFENDANT-APPELLANT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), rendered February 9, 2018. The judgment convicted defendant upon a jury verdict of grand larceny in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of grand larceny in the fourth degree (Penal Law
§ 155.30 [1]). Contrary to defendant's contention, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), and affording them the benefit of every favorable inference (see People v Bleakley, 69 NY2d 490, 495 [1987]), we conclude that the evidence is legally sufficient to establish that defendant acted in concert with his two codefendants to steal property. Specifically, based on the evidence that defendant watched the initial stages of the theft and appeared to be acting as a lookout, accompanied a codefendant who left the store with the stolen property, assisted that codefendant in loading the property into a car, and was apprehended in that car with the codefendants and the stolen property, "[t]he jury could reasonably have inferred that, by reason of his conduct, defendant had the requisite intent to commit a larceny" (People v Farmer, 156 AD2d 1003, 1004 [4th Dept 1989], lv denied 75 NY2d 868 [1990]; see People v Strauss, 155 AD3d 1317, 1318 [3d Dept 2017], lv denied 31 NY3d 1122 [2018]; People v Middleton, 151 AD3d 491, 492 [1st Dept 2017], lv denied 29 NY3d 1131 [2017]). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's additional contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve his contention that County Court should have precluded a mall security guard's testimony under the best evidence rule (see People v Steinhilber, 133 AD3d 798, 799 [2d Dept 2015], lv denied 27 NY3d 1155 [2016]). In any event, that contention lacks merit. The evidence at trial established that the security cameras that the guard used to observe defendant in the parking lot also recorded the incident, but the system later failed, causing the loss of the video that the system made of the event. Thus, because the People introduced the security guard's testimony to establish the events that he observed, which are facts "existing independently of the . . . recording, 'the best evidence rule was inapplicable and the [events] could be testified to by anyone who' " observed them (People v Vernay, 174 AD3d 1485, 1486 [4th Dept 2019]; see People v Lofton, 226 AD2d 1082, 1082 [4th Dept 1996], lv denied 88 NY2d 938 [1996], reconsideration denied 88 NY2d 1022 [1996]).
We reject defendant's further contention that the court erred in refusing to substitute counsel in place of his assigned attorney. A court's duty to consider a motion to substitute counsel is invoked only when a defendant makes a "seemingly serious request[]" for new counsel [*2](People v Porto, 16 NY3d 93, 100 [2010] [internal quotation marks omitted]; see People v Sides, 75 NY2d 822, 824 [1990]). Only where a defendant makes "specific factual allegations of serious complaints about counsel" must the court make a "minimal inquiry" into "the nature of the disagreement or its potential for resolution" (Porto, 16 NY3d at 100 [internal quotation marks omitted]; see People v Gibson, 126 AD3d 1300, 1301-1302 [4th Dept 2015]), and the court is required to substitute counsel only where good cause is shown (see Porto, 16 NY3d at 100; Sides, 75 NY2d at 824; Gibson, 126 AD3d at 1302).
Here, even assuming, arguendo, that defendant made "specific factual allegations of serious complaints about counsel" (People v White, 202 AD3d 1481, 1482 [4th Dept 2022], lv denied 38 NY3d 1036 [2022] [internal quotation marks omitted]), we conclude that the court "conducted the requisite 'minimal inquiry' to determine whether substitution of counsel was warranted" (People v Chess, 162 AD3d 1577, 1579 [4th Dept 2018], lv denied 32 NY3d 936 [2018], quoting Sides, 75 NY2d at 825). The record establishes that the court on several occasions "allowed defendant to air his concerns about defense counsel, and . . . reasonably concluded that defendant's vague and generic objections had no merit or substance" (People v Linares, 2 NY3d 507, 511 [2004]), and "properly concluded that defense counsel was 'reasonably likely to afford . . . defendant effective assistance' of counsel" (People v Bradford, 118 AD3d 1254, 1255 [4th Dept 2014], lv denied 24 NY3d 1082 [2014], quoting People v Medina, 44 NY2d 199, 208 [1978]; see Chess, 162 AD3d at 1579).
Defendant contends that the court was required to replace a juror during deliberations because the juror sent a note to the court and made statements that, according to defendant, suggested that she might have been prejudiced against him. Because "defendant never requested that the juror[] in question be discharged . . . , his current contention in this regard has not been preserved for appellate review" (People v Fernandez, 269 AD2d 167, 167 [1st Dept 2000], lv denied 95 NY2d 796 [2000]; cf. People v Spencer, 29 NY3d 302, 311 n 2 [2017], rearg denied 31 NY3d 1074 [2018]). In any event, there was no basis upon which the court was required to dismiss the sworn juror as "grossly unqualified to serve in the case" (CPL 270.35 [1]). Although the juror initially expressed some concern over her well being, she ultimately assured the court in unequivocal terms that she would be fair and impartial and would follow the court's instructions (see generally People v Buford, 69 NY2d 290, 297-299 [1987]; People v Buchholz, 23 AD3d 1093, 1094 [4th Dept 2005], lv denied 6 NY3d 846 [2006]).
Defendant's contention that he was denied effective assistance of counsel lacks merit. With respect to defendant's claim that defense counsel was ineffective in failing to move to replace the sworn juror in question, defendant " 'failed to establish that defense counsel lacked a legitimate strategy in choosing not to challenge th[e] . . . juror[]' " (People v Carpenter, 187 AD3d 1556, 1557 [4th Dept 2020], lv denied 36 NY3d 970 [2020]; see also People v Maffei, 35 NY3d 264, 273 [2020]). In addition, it is well settled that "[t]here can be no denial of effective assistance of . . . counsel arising from [defense] counsel's failure to 'make a motion or argument that has little or no chance of success' " (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]) and, for the reasons discussed above, such a motion would have been subject to denial. For the same reason, we reject defendant's claim that counsel was ineffective in failing to move to preclude the security guard's testimony pursuant to the best evidence rule. With respect to defendant's remaining allegations of ineffective assistance of counsel, the record, viewed as a whole, demonstrates that defense counsel provided meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483166/ | People v Muhammad (2022 NY Slip Op 06404)
People v Muhammad
2022 NY Slip Op 06404
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: LINDLEY, J.P., PERADOTTO, CURRAN, WINSLOW, AND BANNISTER, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (202/22) KA 18-01853.
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vHANZA MUHAMMAD, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for reargument denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483168/ | People v Mitchell (2022 NY Slip Op 06359)
People v Mitchell
2022 NY Slip Op 06359
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
757 KA 18-01372
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vCEDRICK L. MITCHELL, DEFENDANT-APPELLANT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN C. PORTER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Christopher S. Ciaccio, J.), rendered May 16, 2018. The judgment convicted defendant after a nonjury trial of grand larceny in the fourth degree, unauthorized use of a vehicle in the third degree, unlawful imprisonment in the second degree and assault in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of unauthorized use of a vehicle in the third degree and dismissing count two of the indictment, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of grand larceny in the fourth degree (Penal Law § 155.30 [8]), unauthorized use of a vehicle in the third degree
(§ 165.05 [1]), unlawful imprisonment in the second degree (§ 135.05), and assault in the third degree (§ 120.00 [1]). Contrary to defendant's contention, his conviction of grand larceny in the fourth degree is based upon sufficient evidence inasmuch as there is a "valid line of reasoning and permissible inferences" that could lead a rational person to conclude, beyond a reasonable doubt (People v Delamota, 18 NY3d 107, 113 [2011]), that when defendant took the vehicle from the victim, he " 'did so with the intent to deprive the [victim] of [her] vehicle within the meaning of Penal Law § 155.00 (3)' " (People v Hickey, 171 AD3d 1465, 1466 [4th Dept 2019], lv denied 33 NY3d 1105 [2019]).
Contrary to defendant's remaining contention, the People met their burden of establishing the amount of restitution, by a preponderance of the evidence, through the victim's testimony at the restitution hearing and supporting documentation (see People v Pugliese, 113 AD3d 1112, 1112-1113 [4th Dept 2014], lv denied 23 NY3d 1066 [2014]).
We note, however, that the part of the judgment convicting defendant of unauthorized use of a vehicle in the third degree must be reversed and count two of the indictment dismissed because that offense is a lesser inclusory concurrent count of count one, grand larceny in the fourth degree (see Hickey, 171 AD3d at 1466-1467; see generally People v McDonald, 189 AD3d 2162, 2163 [4th Dept 2020], lv denied 36 NY3d 1099 [2021]). We therefore modify the judgment accordingly.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483171/ | People v Hemingway (2022 NY Slip Op 06356)
People v Hemingway
2022 NY Slip Op 06356
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND NEMOYER, JJ.
739 KA 21-00506
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vBRANDON HEMINGWAY, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), rendered October 21, 2019. The judgment convicted defendant upon his plea of guilty of criminal sexual act in the first degree.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: Defendant was previously convicted upon his plea of guilty of criminal sexual act in the first degree (Penal Law § 130.50 [1]). On a prior appeal, we reversed the judgment of conviction and vacated his plea because County Court failed to advise him that his sentence would include a period of postrelease supervision (PRS) (People v Hemingway, 166 AD3d 1524, 1525 [4th Dept 2018]). We remitted the matter to County Court for further proceedings on the indictment. Upon remittal, defendant again pleaded guilty to criminal sexual act in the first degree, and was sentenced to 15 years of incarceration plus five years of PRS. Defendant now appeals from the judgment of conviction rendered as a result of that plea.
As defendant contends and the People correctly concede, his waiver of the right to appeal is unenforceable (see People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied 140 S Ct 2634, — US — [2020]) and the court failed to determine whether defendant should be afforded youthful offender treatment (see generally People v Middlebrooks, 25 NY3d 516, 525-527 [2015]; People v Rudolph, 21 NY3d 497, 499-501 [2013]).
We further agree with defendant that defense counsel improperly took a position adverse to defendant on his pro se motion to withdraw his plea and provided him with inaccurate advice about the legal consequences of our prior ruling. Several months after defendant's plea was entered, while waiting for his mitigation report to be completed, defendant submitted a pro se motion seeking to withdraw his plea. Defense counsel refused to adopt defendant's pro se motion and, in response to questioning by the court, explained that the reason therefor was that he did not see any grounds for the motion. Defendant ultimately withdrew his motion and the court imposed sentence.
"It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea" (People v Deliser, 21 NY3d 964, 966 [2013]). Although defense counsel has no duty to support the pro se motion of a defendant to withdraw a plea of guilty, defense counsel deprives a defendant of effective assistance of counsel by taking a position adverse to defendant (see People v Lewis, 286 AD2d 934, 934 [4th Dept 2001]). Defense counsel "takes a position adverse to his [or her] client when stating that the defendant's motion lacks merit . . . , or that the defendant, who is challenging the voluntariness of [the] guilty plea, 'made a knowing plea . . . [that] was in his best interest' " (People v Washington, 25 NY3d 1091, 1095 [2015], quoting People v Deliser, 21 NY3d 964, 966 [2013]). When defense counsel takes a position adverse to his or her client, "a conflict of interest arises, and the court must [*2]assign a new attorney to represent the defendant on the motion" (Deliser, 21 NY3d at 967).
Here, by stating that there were no grounds for defendant's pro se motion, defense counsel essentially said that it lacked merit, which constitutes taking a position adverse to defendant (see People v Faulkner, 168 AD3d 1317, 1318-1319 [3d Dept 2019]; see also People v Lee, 188 AD3d 1685, 1685-1686 [4th Dept 2020]; People v Colson, 160 AD3d 579, 579-580 [1st Dept 2018]).
We also agree with defendant that his attorney gave him erroneous information about the effect of our prior ruling. It appears from the record that defense counsel advised defendant that the issues raised by defendant in his pro se motion to withdraw his plea had already been decided against him in the prior appeal. The court agreed with defense counsel's interpretation of our ruling. Both defense counsel and the court were incorrect. In the prior appeal, defendant did not raise, and we did not address, any of the contentions advanced by defendant in his pro se motion to withdraw his plea. Although defendant at sentencing withdrew his pro se motion to withdraw his plea, we cannot conclude from the record that his decision to do so was not likely affected by the inaccurate advice he received from counsel.
We therefore hold the case, reserve decision, and remit the matter to County Court for assignment of counsel, a de novo determination of defendant's pro se motion to withdraw his plea and, if necessary, to make and state for the record a determination of whether defendant should be afforded youthful offender status (see Lewis, 286 AD2d at 934; see generally People v Polanco, 186 AD3d 1109,
1109 [4th Dept 2020]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483182/ | Merchants Preferred Ins. Co. v Campbell (2022 NY Slip Op 06370)
Merchants Preferred Ins. Co. v Campbell
2022 NY Slip Op 06370
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
792 CA 22-00245
[*1]MERCHANTS PREFERRED INSURANCE COMPANY, PLAINTIFF-APPELLANT,
vJUNIOR M. CAMPBELL, DOING BUSINESS AS JMC QUALITY AIR, ET AL., DEFENDANTS, AND ROSE CHARLEUS, DEFENDANT-RESPONDENT.
HURWITZ & FINE, P.C., BUFFALO (BRIAN D. BARNAS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
JAMES I. MYERS, PLLC, WILLIAMSVILLE (JAMES I. MYERS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Catherine R. Nugent Panepinto, J.), entered February 15, 2022. The order granted in part the motion of defendant Rose Charleus to compel the production of certain documents and, in effect, denied the cross motion of plaintiff for a protective order.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in its entirety and granting the cross motion, and as modified the order is affirmed without costs.
Memorandum: Defendant Rose Charleus was injured in an automobile accident when her vehicle collided with a vehicle that was covered by a policy of insurance issued by plaintiff. After Charleus commenced a personal injury action arising from that collision, plaintiff commenced the instant action seeking to disclaim coverage due to the non-cooperation of its insured. In response to Charleus's first notice for discovery and production of documents in this action, plaintiff disclosed certain materials but withheld portions of its insurance claim file relating to the personal injury action on the ground that the documents were material prepared in anticipation of litigation, were protected by attorney client privilege, and were otherwise not relevant to the action to disclaim coverage. Charleus moved to compel production of the withheld documents, and plaintiff cross-moved for a protective order. After reviewing the withheld materials in camera, Supreme Court granted the motion in part by ordering plaintiff to disclose certain withheld portions of its claim file and, in effect, denied the cross motion. Plaintiff appeals.
"[A]n insurance company's claim file is conditionally exempt from disclosure as material prepared in anticipation of litigation" (Litvinov v Hodson, 74 AD3d 1884, 1886 [4th Dept 2010]; see CPLR 3101 [d] [2]). Nevertheless, material prepared in anticipation of litigation may be subject to disclosure upon "a party's showing that he or she is in substantial need of the material and is unable to obtain the substantial equivalent of the material by other means without undue hardship" (Teran v Ast, 164 AD3d 1496, 1498 [2d Dept 2018]; see Litvinov, 74 AD3d at 1886). Here, we conclude that the materials sought by Charleus and ordered by the court to be disclosed following its in camera review constitute material prepared in anticipation of litigation (see Lamberson v Village of Allegany, 158 AD2d 943, 943 [4th Dept 1990]) and were prepared at a time after plaintiff had already determined to reject and defend against the claim made by Charleus (cf. Advanced Chimney, Inc. v Graziano, 153 AD3d 478, 480 [2d Dept 2017]).
Because the materials sought by Charleus and ordered to be disclosed by the court's order were prepared in anticipation of litigation and because Charleus has not made a showing [*2]justifying disclosure (see generally Teran, 164 AD3d at 1499; Lamberson, 158 AD2d at 944), we modify the order by denying the motion in its entirety and granting the cross motion.
In light of our determination, we need not reach plaintiff's remaining contentions.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483193/ | Matter of Kennedy v Monetgari (2022 NY Slip Op 06373)
Matter of Kennedy v Monetgari
2022 NY Slip Op 06373
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
795 TP 22-00675
[*1]IN THE MATTER OF TROY LEE KENNEDY, PETITIONER,
AvLFRED P. MONETGARI, ACTING SUPERINTENDENT, RESPONDENT.
TROY LEE KENNEDY, PETITIONER PRO SE.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Oneida County [David A. Murad, J.], entered March 31, 2022) to review a determination of respondent. The determination found after a tier II hearing that petitioner had violated an inmate rule.
It is hereby ORDERED that said proceeding is unanimously dismissed without costs as moot (see Matter of Free v Coombe , 234 AD2d 996, 996 [4th Dept 1996]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483181/ | People v Andrews (2022 NY Slip Op 06366)
People v Andrews
2022 NY Slip Op 06366
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
777 KA 18-00892
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vMARQUIS D. ANDREWS, DEFENDANT-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered October 30, 2017. The judgment convicted defendant upon a jury verdict of sexual abuse in the first degree (two counts) and sexual abuse in the second degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of sexual abuse in the first degree (Penal Law § 130.65 [1], [4]) and two counts of sexual abuse in the second degree (§ 130.60 [2]). Defendant failed to preserve for our review his contentions that the indictment was duplicitous (see People v Allen, 24 NY3d 441, 449-450 [2014]; People v Riley, 182 AD3d 1017, 1017 [4th Dept 2020], lv denied 35 NY3d 1069 [2020]) and that the indictment, as amplified by the bill of particulars, was insufficiently specific (see generally People v Waldron, 162 AD2d 485, 486 [2d Dept 1990]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice.
To the extent defendant has preserved the issue for our review (see generally People v Gray, 86 NY2d 10, 19 [1995]; People v Ferguson, 177 AD3d 1247, 1248 [4th Dept 2019]) and viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we reject defendant's contention that the evidence is legally insufficient to support his conviction (see People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we likewise reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495; People v Goodson, 144 AD3d 1515, 1515 [4th Dept 2016], lv denied 29 NY3d 949 [2017]).
We agree with defendant, however, that County Court erred in precluding him from calling a witness who would testify that the complainant offered to make a false allegation of abuse against the witness's boyfriend. "Questioning concerning prior false allegations of rape or sexual abuse is not always precluded . . . , and the determination whether to allow such questioning rests within the discretion of the trial court" (People v Bridgeland, 19 AD3d 1122, 1123 [4th Dept 2005] [internal quotation marks omitted]). Evidence of a complainant's prior false allegations of rape or sexual abuse is admissible to impeach the complainant's credibility where a "defendant establishe[s] that the [prior] allegation may have been false[, and] . . . that the particulars of the complaints, the circumstances or manner of the alleged assaults, or the currency of the complaints were such as to suggest a pattern casting substantial doubt on the validity of the charges made by the complainant" (People v Diaz, 85 AD3d 1047, 1050 [2d Dept 2011], affd 20 NY3d 569 [2013] [internal quotation marks omitted]; see People v Halmond, 52 AD3d 1278, 1278-1279 [4th Dept 2008], lv denied 11 NY3d 737 [2008]). Here, based on the proffer made at trial, defendant's proposed witness would have testified that the complainant offered to [*2]knowingly make a false allegation against the witness's boyfriend and that this conduct took place around the same time as the first incident alleged against defendant and just months before the second such incident. Further, per defense counsel's proffer, the nature and circumstances of the allegations against defendant and the offered allegation against the witness's boyfriend were sufficiently similar to "suggest a pattern casting substantial doubt on the validity of the charges" (Diaz, 20 NY3d at 576).
At trial, the evidence against defendant was not overwhelming, the conviction rested largely—if not entirely—on the testimony of the complainant, and the proposed witness precluded by the court was the sole witness defendant sought to call. Under these circumstances, we conclude that the court abused its discretion in precluding the defendant from calling that witness (see Bridgeland, 19 AD3d at 1123), that the error was not harmless, and that a new trial must be granted (see Diaz, 20 NY3d at 576).
In light of our determination, we do not reach defendant's remaining contentions.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483187/ | Matter of New York Civ. Liberties Union v City of Syracuse (2022 NY Slip Op 06348)
Matter of New York Civ. Liberties Union v City of Syracuse
2022 NY Slip Op 06348
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
690 CA 21-00796
[*1]IN THE MATTER OF NEW YORK CIVIL LIBERTIES UNION, PETITIONER-APPELLANT,
vCITY OF SYRACUSE AND SYRACUSE POLICE DEPARTMENT, RESPONDENTS-RESPONDENTS.
NEW YORK CIVIL LIBERTIES UNION FOUNDATION, NEW YORK CITY (ROBERT HODGSON OF COUNSEL), AND LATHAM & WATKINS LLP, FOR PETITIONER-APPELLANT.
HANCOCK & ESTABROOK, LLP, SYRACUSE (MARY L. D'AGOSTINO OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (Gerard J. Neri, J.), entered May 5, 2021 in a proceeding pursuant to CPLR article 78. The judgment granted the motion of respondents to dismiss the petition.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by denying the motion in part, reinstating the petition insofar as it seeks disclosure of law enforcement disciplinary records, subject to redaction pursuant to particularized and specific justification under Public Officers Law
§ 87 (2), and granting the petition to that extent, and as modified the judgment is affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondents, City of Syracuse and Syracuse Police Department (SPD), to disclose, pursuant to the Freedom of Information Law ([FOIL] Public Officers Law § 84 et seq.), certain law enforcement disciplinary records. As relevant here, petitioner seeks law enforcement disciplinary records concerning open complaints, i.e., those in which an investigation had commenced but the law enforcement disciplinary proceeding had not yet reached a final disposition, and law enforcement disciplinary records concerning closed but unsubstantiated complaints, i.e., those in which it was determined that the allegations of SPD officer misconduct were unfounded or without merit. In opposition, respondents moved to dismiss the petition on the basis that the records sought were categorically exempt from disclosure pursuant to the "personal privacy" exemption under Public Officers Law § 87 (2) (b). Petitioner now appeals from a judgment granting respondents' motion to dismiss the petition. We agree with petitioner that Supreme Court erred in determining that the records sought are categorically exempt from disclosure and may be withheld in their entirety.
At the outset, we reject respondents' contention that petitioner failed to exhaust its administrative remedies with respect to its contentions on appeal (see Matter of Exoneration Initiative v New York City Police Dept., 114 AD3d 436, 437 [1st Dept 2014]; Council of Regulated Adult Liq. Licensees v City of N.Y. Police Dept., 300 AD2d 17, 18-19 [1st Dept 2002]).
It is well settled that, under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law § 87 (2)" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 274-275 [1996]; see Matter of Abdur-Rashid v New York City Police Dept., 31 NY3d 217, 225 [2018], rearg denied 31 NY3d 1125 [2018]), that exemptions are to be " 'narrowly construed' " [*2](Gould, 89 NY2d at 275; see Matter of Hawley v Village of Penn Yan, 35 AD3d 1270, 1271 [4th Dept 2006], amended on rearg 38 AD3d 1371 [4th Dept 2007]), that government agencies have the burden to demonstrate that " 'the material requested falls squarely within the ambit of [one] of the exemptions' " (Abdur-Rashid, 31 NY3d at 225; see Matter of National Lawyers Guild, Buffalo Ch. v Erie County Sheriff's Off., 196 AD3d 1195, 1196 [4th Dept 2021]), and that those agencies "must articulate 'particularized and specific justification' for not disclosing requested documents" (Gould, 89 NY2d at 275; see Matter of Nix v New York State Div. of Criminal Justice Servs., 167 AD3d 1524, 1525 [4th Dept 2018], lv denied 33 NY3d 908 [2019]).
Under Public Officers Law § 87 (2) (a), agencies shall disclose records unless they are "specifically exempted from disclosure by state or federal statute." For decades, law enforcement personnel records were wholly and categorically exempt from disclosure inasmuch as a state statute provided that such records "[were] considered confidential and not subject to inspection or review without the express written consent of such [law enforcement] officer . . . except as may be mandated by lawful court order" (former Civil Rights Law
§ 50-a [1]; see Matter of New York Civ. Liberties Union v New York City Police Dept., 32 NY3d 556, 560 [2018]; Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26, 29 [1988]). Effective June 12, 2020, the New York State Legislature fully repealed former Civil Rights Law § 50-a (see L 2020 ch 96, § 1). Thus, the statutory exemption under Public Officers Law § 87 (2) (a) no longer applies to law enforcement personnel records.
The bill repealing former Civil Rights Law § 50-a also made several amendments to FOIL concerning disciplinary records of law enforcement agencies (see L 2020, ch 96, §§ 2-4). Of particular relevance here, Public Officers Law § 86 was amended by adding subdivisions (6) and (7), defining " '[l]aw enforcement disciplinary records' " and a " '[l]aw enforcement disciplinary proceeding.' "
We agree with petitioner that the court erred in determining that the personal privacy exemption under Public Officers Law § 87 (2) (b) allows respondents to categorically withhold the law enforcement disciplinary records at issue. Public Officers Law § 87 (2) (b) provides that an "agency may deny access to records or portions thereof that . . . if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of [section 89 (2)]." The personal privacy exemption "allows agencies and their employees to protect sensitive matters in which there is little or no public interest, like personal information or unsubstantiated allegations, from public disclosure" (Matter of New York Times Co. v City of New York Off. of the Mayor, 194 AD3d 157, 165 [1st Dept 2021], lv denied 37 NY3d 913 [2021]). The personal privacy exemption "is qualified" by Public Officers Law § 89 (2) (c) (i) (Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 160 [1st Dept 2010]; see e.g. Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294, 298 [1985]; Matter of Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 145 AD3d 1391, 1392-1393 [3d Dept 2016]; Matter of Obiajulu v City of Rochester, 213 AD2d 1055, 1056 [4th Dept 1995]), which provides that "disclosure shall not be construed to constitute an unwarranted invasion of personal privacy . . . when identifying details are deleted" (§ 89 [2] [c] [i]). An agency invoking the personal privacy exemption must "establish that the identifying details [of a record] could not be redacted so as to not constitute an unwarranted invasion of personal privacy" if the record was disclosed (Matter of Aron Law, PLLC v New York City Fire Dept., 191 AD3d 664, 666 [2d Dept 2021]; see Police Benevolent Assn. of N.Y. State, Inc., 145 AD3d at 1392-1393).
Contrary to respondents' contention, the personal privacy exemption "does not . . . categorically exempt . . . documents from disclosure" (Police Benevolent Assn. of N.Y. State, Inc., 145 AD3d at 1392; see Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 497 [1st Dept 2013]; Matter of Johnson v New York City Police Dept., 257 AD2d 343, 348-349 [1st Dept 1999], lv dismissed 94 NY2d 791 [1999]; see generally Matter of Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc. v Mills, 18 NY3d 42, 46 [2011]), even in the case where a FOIL request concerns release of unsubstantiated allegations or complaints of professional misconduct (see e.g. Matter of Western Suffolk Bd. of Coop. Educ. Servs. v Bay Shore Union Free School Dist., 250 AD2d 772, 772-773 [2d Dept 1998]; Matter of LaRocca v Board of Educ. of Jericho Union Free School Dist., 220 AD2d 424, 427 [2d Dept 1995]). In order to invoke the personal privacy exemption here, respondents must review each record [*3]responsive to petitioner's FOIL request and determine whether any portion of the specific record is exempt as an invasion of personal privacy and, to the extent that any portion of a law enforcement disciplinary record concerning an open or unsubstantiated complaint of SPD officer misconduct can be disclosed without resulting in an unwarranted invasion of personal privacy, respondents must release the non-exempt, i.e., properly redacted, portion of the record to petitioner (see Matter of Sell v New York City Dept. of Educ., 135 AD3d 594, 594 [1st Dept 2016]; see generally Schenectady County Socy. for the Prevention of Cruelty to Animals, Inc., 18 NY3d at 46; Matter of Data Tree, LLC v Romaine, 9 NY3d 454, 464 [2007]).
Inasmuch as respondents withheld the requested law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct in their entirety and did not articulate any particularized and specific justification for withholding any of the records, we conclude that respondents did not meet their burden of establishing that the personal privacy exemption applies (see Aron Law, PLLC, 191 AD3d at 666; Police Benevolent Assn. of N.Y. State, Inc., 145 AD3d at 1393; Matter of Livson v Town of Greenburgh, 141 AD3d 658, 661 [2d Dept 2016]). Respondents further failed to establish that "identifying details" in the law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct "could not be redacted so as to not constitute an unwarranted invasion of personal privacy" (Aron Law, PLLC, 191 AD3d at 666; see Police Benevolent Assn. of N.Y. State, Inc., 145 AD3d at 1393). Thus, the court erred in granting that part of respondents' motion seeking to dismiss petitioner's request for law enforcement disciplinary records concerning open or unsubstantiated claims of SPD officer misconduct in reliance on the personal privacy exemption under Public Officers Law § 87 (2) (b).
Further, we agree with petitioner that, in the administrative proceeding, respondents did not invoke the exemption under Public Officers Law § 87 (2) (e), and we therefore conclude the court erred in relying on that subdivision in granting respondents' motion with respect to petitioner's request for law enforcement disciplinary records concerning open claims of SPD officer misconduct (see Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, 74-75 [2017]; Matter of McFadden v McDonald, 204 AD3d 672, 675 [2d Dept 2022]). "[J]udicial review of an administrative determination is limited to the grounds invoked by the agency and the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" (Madeiros, 30 NY3d at 74 [internal quotation marks omitted]). Consequently, the court erred in relying on Public Officers Law § 87 (2) (e) and we make no determination whether respondents may rely on section 87 (2) (e) to withhold law enforcement disciplinary records.
Although we reject petitioner's contention that in the administrative proceeding respondents failed to invoke the exemption under Public Officers Law § 87 (2) (g) (iii), which applies to
inter-agency or intra-agency materials that are not final agency policy or determinations, inasmuch as respondents cited it multiple times in their denial of petitioner's administrative appeal, we nonetheless agree with petitioner that the court erred in relying on that exemption as a categorical basis to grant respondents' motion with respect to petitioner's request for law enforcement disciplinary records concerning open claims of SPD officer misconduct. Respondents failed to meet their burden of establishing that the exemption applies inasmuch as they failed to establish whether law enforcement disciplinary records concerning open claims of SPD officer misconduct "fall[] wholly or only partially within that exemption" (Matter of Gedan v Town of Mamaroneck [N.Y.], 170 AD3d 833, 834 [2d Dept 2019]; see Matter of New York 1 News v Office of President of Borough of Staten Is., 231 AD2d 524, 525 [2d Dept 1996]; cf. Matter of Sawma v Collins, 93 AD3d 1248, 1248-1249 [4th Dept 2012]; Matter of Miller v New York State Dept. of Transp., 58 AD3d 981, 984 [3d Dept 2009], lv denied 12 NY3d 712 [2009]).
Further, we agree with petitioner that the court erred in relying upon the statute regarding the confidentiality of materials related to the conduct or discipline of attorneys (see Judiciary Law § 90 [10]) and case law regarding the confidentiality of investigations into judicial conduct or discipline (see Matter of Nichols v Gamso, 35 NY2d 35, 38 [1974]). Those rules are not applicable to the interpretation of FOIL or its application to disclosure of law enforcement disciplinary records concerning complaints of SPD officer misconduct.
We reject petitioner's contention that the court erred in granting respondents' motion with [*4]respect to petitioner's request for attorneys' fees and costs. Inasmuch as this proceeding at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme, it cannot be said that respondents "had no reasonable basis for denying access" to the records at issue (Public Officers Law § 89 [4] [c]; cf. New York Times Co., 194 AD3d at 166; see generally Matter of Jewish Press, Inc. v New York City Police Dept., 190 AD3d 490, 491 [1st Dept 2021], lv denied 37 NY3d 906 [2021]).
We therefore modify the judgment by denying respondents' motion in part, reinstating the petition insofar as it seeks disclosure of law enforcement disciplinary records, subject to redaction pursuant to a particularized and specific justification under Public Officers Law § 87 (2) and granting the petition to that extent. Respondents are directed to review the requested law enforcement disciplinary records concerning open and unsubstantiated claims of SPD officer misconduct, identify those law enforcement disciplinary records or portions thereof that may be redacted or withheld as exempt, and provide the requested law enforcement disciplinary records to petitioner subject to any redactions or exemptions pursuant to a particularized and specific justification for exempting each record or portion thereof. Any claimed redactions and exemptions from disclosure are to be documented in a manner that allows for review by a court (see Matter of Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 152 AD3d 1218, 1219-1220 [4th Dept 2017], lv denied 31 NY3d 904 [2018]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483201/ | Matter of Briana S.-S. (Ricardo S.) (2022 NY Slip Op 06340)
Matter of Briana S.-S. (Ricardo S.)
2022 NY Slip Op 06340
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
658 CAF 21-00140
[*1]IN THE MATTER OF BRIANA S.-S. GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; RICARDO S., RESPONDENT-APPELLANT. (APPEAL NO. 5.)
LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR RESPONDENT-APPELLANT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-RESPONDENT.
VERA A. VENKOVA, BUFFALO, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Genesee County (Thomas M. DiMillo, A.J.), entered December 23, 2020 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred respondent's guardianship and custody rights with respect to the subject child to petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Matter of Briana S.-S. (Emily S.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483186/ | Matter of Xavier S.-S. (Emily S.) (2022 NY Slip Op 06338)
Matter of Xavier S.-S. (Emily S.)
2022 NY Slip Op 06338
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
656 CAF 21-00076
[*1]IN THE MATTER OF XAVIER S.-S. GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; EMILY S., RESPONDENT-APPELLANT. (APPEAL NO. 3.)
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-RESPONDENT.
DAVID J. PAJAK, ALDEN, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Genesee County (Thomas M. DiMillo, A.J.), entered December 23, 2020 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred respondent's guardianship and custody rights with respect to the subject child to petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Matter of Briana S.-S. (Emily S.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483191/ | Matter of Mea V. (Brandon V.) (2022 NY Slip Op 06351)
Matter of Mea V. (Brandon V.)
2022 NY Slip Op 06351
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
705 CAF 21-00720
[*1]IN THE MATTER OF MEA. ORLEANS COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; BRANDON V., RESPONDENT-APPELLANT. (APPEAL NO. 2.)
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
DANA A. GRABER, ALBION, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Orleans County (Sanford A. Church, J.), entered April 15, 2021 in a proceeding pursuant to Family Court Act article 10. The order, inter alia, continued the placement of the subject child with petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent mother and respondent father each appeal in appeal No. 1 from an order entered after a fact-finding hearing which found, inter alia, that respondents abused and neglected the subject child. In appeal No. 2, the father appeals from an order of disposition with respect to him that continued the child's placement with petitioner. As a preliminary matter, respondents' right of direct appeal from the fact-finding order in appeal No. 1 terminated with the subsequent entry of the orders of disposition, and we therefore dismiss appeal No. 1 (see Matter of Anthony W. [Anthony W.], 200 AD3d 1596, 1596 [4th Dept 2021]). The father's appeal from the order of disposition in appeal No. 2 brings up for review the propriety of the order in appeal No. 1 (see Matter of Bryleigh E.N. [Derek G.], 187 AD3d 1685, 1685 [4th Dept 2020]; Matter of Lisa E. [appeal No. 1], 207 AD2d 983, 983 [4th Dept 1994]). We exercise our discretion to treat the mother's notice of appeal from the fact-finding order in appeal No. 1 as a valid notice of appeal from the order of disposition pertaining to her in appeal No. 3 (see generally CPLR 5520 [c]; Matter of Threet v Threet, 79 AD3d 1743, 1743 [4th Dept 2010]).
Respondents contend that they rebutted the presumption of parental culpability and that petitioner thus failed to meet its burden of showing that respondents abused or neglected the subject child. A prima facie case of child abuse or neglect may be established by evidence that a child sustained an injury that would ordinarily not occur absent an act or omission of respondents and that respondents were the caretakers of the child at the time the injury occurred (see Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 NY2d 238, 243 [1993]). Although the burden of proof rests with the petitioner, once the petitioner "has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability" (Philip M., 82 NY2d at 244). To rebut the presumption of parental culpability, the respondents may present evidence to "(1) establish that during the time period when the child was injured, the child was not in respondent[s'] care
. . . ; (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omission of respondent[s] . . . ; or (3) counter the evidence that the child had the condition which was the basis for the finding of injury" (id. at 244-245). In determining whether to rely on the presumption, "the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the [*2]injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker[s'] explanation in light of all the circumstances" (id. at 246).
Here, respondents do not dispute they were exclusively responsible for the child's care at all relevant times, but they contend that they rebutted the presumption of parental culpability by providing a reasonable explanation for how the child's injuries could have occurred without any act or omission on their part. We reject that contention. Respondents originally claimed to the pediatrician and the Child Protective Services caseworker that the child's injuries, which included 28 rib fractures and an injured lung, were accidental, but none of the medical evidence supported that claim. We conclude that Family Court properly rejected respondents' subsequent claim at trial that the injuries were due to an underlying medical condition: the testimony of respondents' expert witnesses was incredible and their conclusions were not consistent with the other evidence (see Matter of Peter R., 8 AD3d 576, 579-580 [2d Dept 2004], lv dismissed 4 NY3d 739 [2004]). We reject the mother's contention on her appeal that the court accorded too much weight to the testimony of petitioner's three experts and improperly discredited respondents' experts. The record supports the court's determination that the testimony of petitioner's three expert medical witnesses was based on credible evidence despite the fact that the testimony differed from that of respondents' medical experts. We therefore see no basis to disturb the court's assessment of the expert testimony (see Matter of Charity M. [Warren M.] [appeal No. 2], 145 AD3d 1615, 1616-1617 [4th Dept 2016]; see also Matter of Robert A. [Kelly K.], 109 AD3d 611, 613 [2d Dept 2013]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483190/ | Matter of Mea V. (Jessica F.) (2022 NY Slip Op 06349)
Matter of Mea V. (Jessica F.)
2022 NY Slip Op 06349
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
704 CAF 21-00594
[*1]IN THE MATTER OF MEA. ORLEANS COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; JESSICA F., RESPONDENT, AND BRANDON V., RESPONDENT-APPELLANT. (APPEAL NO. 1.)
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
DANA A. GRABER, ALBION, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Orleans County (Sanford A. Church, J.), entered March 4, 2021 in a proceeding pursuant to Family Court Act article 10. The order determined that respondents had abused and neglected the subject child.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Same memorandum as in Matter of Mea V. (Brandon V.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490301/ | MEMORANDUM OPINION INCLUDING FINDINGS
ROBERT E. WOODWARD, Chief Judge.
William John Doyle and Margaret Doyle, creditors of the above-named debtors filed a motion to extend time within which to object to the dischargeability of the debtors’ obligation to them. The Doyles also filed a motion to dismiss the Chapter 7 case, No. 282-00254. The parties stipulated to the facts, filed memos and the case was submitted to . the Court.
The Doyles filed a complaint in the State Court against the debtor, June 21, 1981. Debtors filed a personal Chapter 11, December 30,1981. The Meeting of Creditors was held February 12, 1982, and the case was converted to Chapter 7, November 15, 1982, with the Chapter 7 meeting of creditors being set for January 6, 1983 and the last day to file complaints being set for February 7, 1983.
The Hedricks also filed a business Chapter 11, January 22, 1982, with the meeting of creditors being set for March 26, 1982. The case was converted to Chapter 7, August 25, 1982, with the Chapter 7 meeting of creditors being set for October 7, 1982, and the last day for filing complaints being set for November 8, 1982.
October 12, 1982, the deposition of debt- or Joseph C. Hedrick, Jr., was taken and at which Margaret Doyle and the attorney for the Doyles participated. During the deposition of Joseph Hedrick in answer to questions by the attorney representing the Doyles he stated he had filed bankruptcy proceedings both personally and as a business.
Two major questions are presented to the Court:
1) Is the time within which to file proofs of claim and proceedings concerning objections to the discharge of the debtor and or the discharge of specific obligations where a Chapter 11 case has been filed and later converted to a Chapter 7 calculated solely from the date of the meeting of creditors under the provisions of Chapter 11, or, after conversion is the time calculated from *1004the date of the 341 meeting of creditors under the provisions of Chapter 7?
There is a divergence of opinion concerning whether or not a new time or additional time for the filing of claims, objections to discharge and dischargeability matters based upon the date of the conversion to Chapter 7 should be set. Rational arguments exist for either having only one time limit or for treating the conversion as tantamount to a separate filing of different chapters of the Code.
It has been the opinion of this court that two entirely different theories are presented in considering the factors involved when contemplating the effects a case promising possible reorganization would have on both the philosophical and factual thought processes of a creditor where there is a hope of recovery. On the other hand, liquidation under the provisions of Chapter 7 of the Code could easily result in a creditor acting or not acting with respect to the filing of a proof of claim and objection to the debtor’s discharge and/or the question of the dis-chargeability of the debtor’s obligation to the creditor.
After the conversion of a Chapter 11 case to that under the provisions of Chapter 7 this court believes and it has been its practice to have the notice setting the time and place of the Chapter 7 341 meeting include the time within which creditors may file proofs of claims and a time within which creditors may object to the debtor’s discharge or to have a question of the dischargeability of a particular obligation determined by the Court. The case of In re Hall 51 B.R. 326 (Bkrtcy. Utah 1985) goes into detail why a second opportunity to file claims after a case has been converted to Chapter 7 should be granted. It appears that this opportunity is a fair, equitable and logical reading of the Code and a practical approach.
The Court therefore finds that the Doyles had a reasonable time to protect their interests if the information given by debtor Joseph Hedrick concerning his bankruptcy filings at his deposition can be considered as “notice”.
2) Was the information learned at the debtor, Joseph Hedrick’s deposition, such actual notice to the Doyles of debtors’ bankruptcy proceedings when made in the presence of Mrs. Doyle and the Doyle’s attorney sufficient notice that would enable the Doyles to seek information concerning the status of debtors’ bankruptcy and to timely protect their interest?
The Court is of the opinion and finds that when the Doyles learned of the debtors’ bankruptcy at the deposition there was actual notice. The Doyles should have acted accordingly. The attorney for the Doyles could have asked debtor, Joseph Hedrick or his attorney (who filed debtors’ bankruptcy cases) questions concerning the status of the cases or checked debtors’ files in the bankruptcy clerk’s office.
The deposition took place, October 12, 1982, in the same city in which both the state court action and bankruptcy court proceedings have been filed. Concerning the debtors’ business filing, the last day for filing complaints was November 8, 1982, and the last day for filing complaints in the debtors’ personal bankruptcy was February 7, 1983. It thus appears and the Court so finds that there was adequate time to participate in the debtors’ bankruptcy proceedings.
The Court concludes that the Motion to dismiss debtors’ Chapter 7 proceedings should be denied and that the motion to extend the time to file claims and complaint to determine the dischargeability of their obligation should be denied.
This Memorandum Opinion is to serve as the Court’s Findings of Fact and Conclusions of Law. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490302/ | ORDER DENYING MOTION TO DISQUALIFY
ELIZABETH L. PERRIS, Bankruptcy Judge.
Central Pacific Freight Lines, Inc. (“Debtor”) moved to disqualify the law firm of Hall, McGrory & Buell from further representation of creditors OK Delivery Systems, Inc., Mount Trailer Company, and DSU, Inc., in this proceeding.
The Debtor bases its motion on the fact that the Hall law firm represented Central Pacific Freight Lines in the case of Ahern, et al. v. Gaussoin, et al, 611 F.Supp. 1465 (1985) in the United States District Court for the District of Oregon and obtained confidential information during that representation. The Hall firm contends that it represented Diana Schlegel, dba Central Pacific Freight Lines, not the Debtor, in the Ahern litigation. The Hall firm’s position is consistent with the schedules originally filed in this proceeding which do not list as an asset the claim asserted in the Ahem litigation and the information which the Debt- or gave Michael Williams, its original attorney in these proceedings. The Hall firm further contends that since the Ahem litigation is not significantly related to the matter before this Court, it did not obtain confidential information in the Ahem litigation which would be useful in these proceedings.
This Court has the authority, and indeed the responsibility, to disqualify attorneys whose conduct falls below the standards set by the legal profession. Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322 (9th Cir.) cert. denied 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976). Rule 110-3 of the Local Rules of the United States District Court for the District of Oregon requires that all attorneys practicing in this district comply with the standards of professional conduct required of members of the Oregon State Bar. The President of the Debtor raised the allegations which form the basis of the motion before this Court in a complaint which she filed against Mr. Hall with the Oregon State Bar. The State Professional Responsibility Board of the Oregon State Bar (“SPRB”) dismissed the complaint because it “did not find a basis for concluding that Mr. Hall should be formally charged by the Bar with disciplinary rule violations.” (Letter from George Riemer to Henry Kane dated May 30, 1986).
This Court concurs with the SPRB. The Debtor has failed to meet its *9burden of proving that the Hall firm has a conflict of interest under the standard set forth in the case of In re Brandsness, 299 Or. 420, 702 P.2d 1098 (1985). The Debtor has failed to prove that it, rather than Diana Schlegel dba Central Pacific Freight Lines, had an attorney-client relationship with the Hall firm. Even if such a relationship existed, the Debtor has failed to prove that the matter before this Court is significantly related to the Ahern matter.
For the foregoing reasons, the Debtor’s motion to disqualify the law firm of Hall, McGrory & Buell is denied. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490305/ | OPINION
DAVID W. HOUSTON, III, Bankruptcy Judge.
On consideration of the complaint filed by Medical Center Bank, hereinafter referred to as Plaintiff, seeking to deny the discharge of the Debtor, as well as, alternative relief; answer filed by Sheila Luftig Keller (Robin), hereinafter referred to as Debtor; all parties being represented by their respective attorneys of record; on the presentation of proof, oral argument, and memoranda of law; and the Court having *110heard and considered same, hereby finds as follows, to-wit:
I.
The Court has jurisdiction of the subject matter of and the parties to this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. This is a core proceeding as defined in 28 U.S.C. § 157(b)(2)(H), (J) and (0).
II.
This case essentially involves the validity of an intervivos trust established by the Debtor for her three minor children. The Plaintiff initially advances the proposition that no trust was ever legally created; and secondly, that if the trust was, in fact, effectuated, that it was designed to fraudulently protect or conceal assets actually owned by the Debtor. The Plaintiff further contends that there has been mismanagement of the trust assets during the course of administration, and that these assets should be made available to satisfy the claims of the Debtor’s creditors. Because of this course of conduct, the Plaintiff seeks to deny the Debtor’s discharge in bankruptcy. In the alternative, the Plaintiff requests this Court to order the trustee in this case, Daniel O’Connell, designated as a necessary party defendant, or a successor trustee, to investigate the administration of the trust. The Debtor, of course, takes the position that a valid trust arrangement was legally established, and denies any fraudulent purpose, intent, or conduct in the creation or administration of the trust.
III.
To set this proceeding in a proper perspective, the following factual findings and conclusions of law are set forth:
The Debtor inherited certain properties, real and personal, from her first husband, David L. Luftig, who died, apparently testate in 1978. (The last will and testament of David L. Luftig was not introduced in evidence, although reference is made to same in the Rule 2004 examination of the Debtor. See examination transcript, Volume II, page 12.) The real properties were subsequently liquidated and the proceeds were converted to either negotiable instruments or banking accounts and designated as trust assets for the benefit of the Luf-tigs’ three (3) children.
In 1979, the Debtor was contemplating marriage to Tom Keller, who ultimately became her second husband. Although she had informally taken steps to establish a trust for her children, as set forth herein-above, the corpus being comprised of the inherited properties, after the marriage was solemnized, the Debtor initiated steps to formalize the trust arrangement. Admittedly, all the technical niceties of a duly constituted trust agreement were not always observed. However, the proof is convincing that a trust arrangement was intended and that legally all the basic requirements to establish a trust were met.
At inception, the corpus of the trust was largely comprised of investments in limited partnerships or joint ventures. Under Texas law, these interests would be considered personal property. See Vernon’s Ann. Civ.St. art. 6132b, § 6(1), and art. 6132b, § 26. Also, see Humphrey v. Bullock, 666 S.W.2d 586 (Tex.App. 3 Dist.—1984).
Without contradiction, the Debtor advised all persons and/or entities involved in the limited partnerships and joint venture enterprises that she was establishing a trust for her children. (See Debtor’s Exhibit 9, letter to partners, dated August 16, 1979.) There is also no serious dispute that the Debtor invested and reinvested all proceeds realized from the sales and turnover of properties, including the liquidated assets, into the trust corpus as instruments or accounts denominated as trust assets. Since no real property was vested in the trust corpus, in the opinion of this Court, a legitimate intervivos trust was created pursuant to Tex.Rev.Civ.Stat.Ann. art. 7425b-7 (No. 1), which provides as follows:
“An express trust may be created by one of the following means or methods:
A. A declaration in writing by the owner of property that he holds it as trustee *111for another person, or persons, or for himself and another person or persons.”
Also see Kurtz v. Robinson, 279 S.W.2d 949 (Tex.Civ.App.—1955), and Fred Rizk Const. v. Cousins Mortg. and Equity, 627 S.W.2d 753 (Tex.App.—1982).
All the basic elements of a valid trust were present as a result of the actions of the Debtor, i.e., the trust properties were clearly identified, the trustee was named, and the beneficiaries were designated. Clearly, the Debtor articulated the requisite intent to establish a trust for her children. See Citizens Nat. Bank of Breckenridge v. Allen, 575 S.W.2d 654 (Tex.Civ. App.—1978).
Introduced into evidence as Plaintiffs Exhibit 2, and Debtor’s Exhibit 14, was the formalized trust agreement, dated August 1,1979. This document admittedly was not executed on that date, but steps were initiated by the Debtor, as noted aforesaid, to have this agreement prepared shortly after her marriage in July, 1979, to Tom Keller. Through her second husband, she contacted his attorney, Walter W. Furlong, in Atlanta, Georgia, to reduce the trust arrangement to writing. For reasons that are not perfectly clear, the actual execution of the trust agreement was not completed until late, 1982. (See letter of Walter W. Furlong, dated December 20,1982. Plaintiffs Exhibit 4.) Regardless of the delay, this Court finds that the earlier efforts of the Debtor had already firmly established a bona fide trust arrangement, albeit a revocable such arrangement.
On or about May 26,1981, the Debtor, as president of United Carpet Distributors, Inc., executed and delivered to the Plaintiff a corporate promissory note in the principal amount of $400,000.00. The Debtor executed an individual guaranty agreement applicable to the promissory note, dated January 12, 1981. (No explanation was offered why the guaranty agreement pre-dated the promissory note.) The proceeds of this promissory note were to be utilized to restore the business of United Carpet Distributors, Inc., which had been destroyed by fire. The note was to be repaid from the fire insurance proceeds. The insurance company subsequently denied coverage, and refused to pay the policy proceeds. This issue was litigated unsuccessfully on at least two occasions by the Debtor. Consequently, there were and are no forthcoming insurance funds to repay the obligation to the Plaintiff. In 1983, the Plaintiff obtained a judgment in excess of $380,000.00, against the Debtor because of her execution of the individual guaranty of the unpaid corporate promissory note. Thereafter, the Debtor filed her Chapter 7 bankruptcy case on April 19, 1984.
IV.
In keeping with the factual findings outlined hereinabove, this Court is of the opinion that a valid trust was established by the Debtor. Having reached this conclusion, the Court now addresses the remaining issues raised by the Plaintiff.
On November 30, 1982, Jeffery Scott Luftig was appointed successor trustee to his mother and has continued to serve in said capacity since that time. The Plaintiff seeks to avoid the trust arrangement contending that the Debtor, as well as, Jeffery Luftig, have not properly managed the trust assets. As noted hereinabove, the Plaintiff also contends that the trust was designed for the fraudulent purposes of protecting and concealing assets actually owned by the Debtor. The Plaintiff has raised certain incidents of alleged misconduct in the creation and administration of the trust, all of which will be discussed hereinbelow.
The Plaintiff first advances the proposition that the trust was only an illusory trust because of the somewhat unlimited control exercised by the Debtor during her administration of the trust, as well as, because of the degree of control exercised by the Debtor over her son, Jeffery Luftig, as successor trustee. The Court notes the following language appearing in the trust agreement, to-wit:
“.However, the entire benefit of the trust shall be used by the Trustee for her *112benefit and used until such time as any successor is designated or appointed; furthermore, the use of said trust contained in this sentence shall only inure to the initial Trustee.”
Plaintiffs Exhibit 2, paragraph A, page 1.
This sentence clearly indicates that the Debtor was expressly permitted to exercise complete dominion over the trust assets until her son was appointed as successor trustee on November 30, 1982. This language is also explicit to the effect that a revocable trust was initially contemplated, which would thereafter shift into an irrevocable trust following the appointment of a successor trustee. The Debtor has countered the Plaintiffs argument by citing Westerfield v. Huckaby, 474 S.W.2d 189 (Tex.—1971), a case exclusively involving a revocable trust rather than an irrevocable trust. The Plaintiff argues that this distinction is significant. However, this Court is of the opinion that, insofar as the Plaintiff is postured in this case, that the revocable-irrevocable distinction is meaningless. If the Texas Supreme Court upheld the validity of the revocable trust in Wester-field, then certainly a more restrictive trust, such as that now before this Court, would be considered likewise valid.
The case of Wilkerson v. McClary, 647 S.W.2d 79 (Tex.App. 9 Dist.—1988), counters the Plaintiffs position that the Debtor should have transferred title to the various assets comprising the trust corpus into the official trust name. In fact, the Debtor did this on many occasions when assets were converted or liquidated, and subsequently deposited into trust instruments or accounts. The declaration of trust as to these assets is obvious.
The Plaintiff complains that the trust should not have expended assets to pay off a debt in the sum of $147,016.18, owed by the Debtor and secured by the residence occupied by the Debtor and her three children. The Plaintiff contends that the Debtor exercised undue influence over her son as the successor trustee when this transaction was consummated. However, the testimony was unequivocal that had this debt not been paid, the secured lender, University Savings Association, would have foreclosed its lien encumbering the residence. Thereafter, the Debtor and her children would have been literally “out in the street”. Although the trust may hold under Texas law an invalid lien on the residential property because of the Debtor’s homestead rights, the payment of the debt to University Savings Association to save the family house was the only prudent course of action to take. The Court finds no fraud in this conduct; nor does there appear to be any fraud in the sale of the corporate stock of Jester, Inc., which was formerly a trust asset, inasmuch as the net proceeds from the sale were deposited into a trust banking account.
IV.
In summary, the Court finds that a legally valid revocable trust was established initially by the Debtor for the benefit of her three children, (subsequent to the death of her first husband, David L. Luftig), consisting principally of personal property assets. This existing revocable trust arrangement continued in effect, all of the basic elements of the trust being in existence, until late 1982, when the trust agreement was formally reduced to writing and executed. When Jeffery Scott Luftig was appointed as successor trustee on November 30, 1982, the trust became irrevocable as a result of the language appearing in the agreement. The Court recognizes that the Debtor obviously exercised a degree of influence over her son in his capacity as successor trustee; however, the evidence falls far short in proving that this was, in fact, undue influence or of such a nature as to constitute fraud. To the contrary, although the administration of the trust has not been perfect in every detail, there is simply no evidence to support the allegations of fraud or mismanagement of the trust assets. The course of conduct of the Debtor, insofar as her intentions of maintaining a trust arrangement, have been relatively consistent from the inception of the *113trust in 1979 until the present time. Therefore, the Court finds no fraud proved against the Debtor and/or her son in the management of the trust by the requisite burden of proof and, as such, the Plaintiffs complaint must be dismissed with prejudice.
An Order will be entered consistent with this Opinion. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490306/ | *175ORDER DENYING COMMITTEE’S MOTIONS AND DISMISSING ADVERSARY PROCEEDING
THOMAS C. BRITTON, Chief Judge.
Since August 1985, the active participants in this chapter 11 case have been discussing the possibility of a consensual plan. By April 10, 1986, the discussions had progressed to the point that the major terms of such an agreement appeared to have the support of the lenders group, each of the official creditors’ groups appointed in this case, and at least some of the representatives of the debtors. However, on April 21, 1986, the debtor’s board of directors rejected the proposed consensual plan.
The Committee of Non-Insider Equity Holders, which had supported the consensual plan, has filed this adversary complaint against one of the debtors and its board of directors seeking coercive action by this court compelling acceptance of this consensual plan by the board. The plaintiff/committee has moved for a preliminary injunction under B.R. 7065 or, alternatively, for the appointment of a trustee under 11 U.S.C. § 1104(a) to supplant the board of directors and to approve the terms for the consensual plan on behalf of the defendant/debtor. (C.P. No. 17).
There are two competing plans before the court, one filed by the lenders group and the other by the debtors. A confirmation hearing on both plans will be held June 20. The competing plans, disclosure statements and ballots must be mailed not later than May 12, and preferably earlier. This timetable prompted movant to request and it received an emergency hearing. The matter was heard on May 1.
The evidentiary record before me consists of an affidavit of movant’s attorney (C.P. No. 18), an affidavit of the chairman of the movant committee (Exhibit 1), the deposition of the financial advisor for the combined lenders’ committee, supplemented by that individual’s oral examination during the hearing of May 1. The defendants have objected to consideration of the deposition on the ground that they received inadequate notice. The objection is overruled and I have considered the deposition. In addition, I have also taken judicial notice of all matters which appear from the file of these bankruptcy cases maintained in this court.
Movant has alleged that Victor Pos-ner, who owns or controls 43% of the voting stock of the defendant debtor has coerced a majority of the directors of that corporation to reject the proposed consensual plan to serve his personal interest, disregarding his and the board’s fiduciary duty to act in the interest and for the benefit of all shareholders. This is the only allegation of misconduct which, if established, could justify the interference by this court with the judgment exercised by the duly constituted board of the defendant debtor. It is, of course, movant’s burden to prove this allegation. It has failed to do so.
There is no evidence before me that the board’s decision of April 21 was in fact dominated or coerced by Posner. If it be assumed, however, that he did so, there is no evidence before me from which I could reasonably find or infer that Posner’s decision or that of the majority of the board was reached to serve some private or personal benefit of Posner or any other member of the board. The terms of the proposed consensual plan clearly offer more to shareholders than the lenders’ plan presently before the court. However, the debtors’ plan, also before the court, equally clearly offers more to shareholders than is offered by the proposed consensual plan. The simple fact is that Posner’s rejection of the proposed consensual plan (assuming he caused that rejection) will cause him a far greater loss than will be sustained by any other shareholder and to precisely the same extent with respect to each share he holds. There is no evidence that any special benefit or consideration has been requested at any time for Posner during the negotiations.
*176Movant is persuaded that the debtors’ plan will be rejected by the creditors and cannot lawfully be confirmed by this court. I cannot now make that determination and, even if I could, that determination would not foreclose the possibility that the board believes that it can defeat the lenders’ plan and, therefore, force more advantageous concessions than those available to it on April 10. In either event (and there are other possibilities as well) the decision involved a business judgment which the board and the board alone is presently authorized to make. This court cannot and will not interfere, absent proof of such misconduct as would forfeit the board’s authority to act on behalf of the defendant debtor and its shareholders.
It is also incumbent upon movant to prove that it has no adequate remedy other than the injunctive relief it seeks. Movant has not carried, nor can it carry that burden. The estimated benefit to the non-insider shareholders from the proposed consensual plan can be fixed and could be assessed against the responsible party or parties in a class action after the fact. The inconvenience and difficulties inherent in that remedy are not so overwhelming as to justify injunctive intercession before the fact. There is no evidence before me that Victor Posner could not satisfy any judgment obtained on any such claim and the record of these cases before me suggests that he could. Movant has an adequate legal remedy.
The motion for injunctive relief is denied. The alternative prayer for the appointment of a trustee to effectuate the same relief is similarly denied. No useful purpose would be served by pursuing this adversary complaint, because, as plaintiff has alleged, the relief it seeks must be obtained now before the competing plans go to the creditors and that should occur within the next few days. Furthermore, there has been no suggestion that movant is in a position to offer additional evidence material to the essential issues before me. Accordingly, the adversary proceeding is dismissed with prejudice.
As is required by B.R. 9021(a), a separate judgment will be entered dismissing the adversary complaint with prejudice. Costs may be taxed on motion. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490307/ | MEMORANDUM DECISION AND ORDER RE: APPLICATION FOR REIMBURSEMENT OF ATTORNEYS’ FEES
JON J. CHINEN, Bankruptcy Judge.
On October 24, 1985, the attorneys for Bank of Honolulu (“Applicant”) filed its Application for Reimbursement of Attorneys’ Fees (“Application”) seeking $11,-548.00 in fees, $463.85 in Hawaii excise tax, and expenses of $1,808.09 for a total award of $13,819.94. A memorandum in opposition to the Application was filed by the Trustee on February 12, 1986, and Carolyn Winchester, a creditor of the Debtor, joined in the Trustee’s opposition on February 14, 1986. A supplemental memorandum in support of the Application was filed on February 13,1986 and a second supplemental memorandum in support of the Application was filed on February 14, 1986 by the Applicant.
A hearing was held on February 14, 1986, at which time the Court took the matter under advisement. The Court being advised in the premises, having reviewed the memoranda filed herein, and having heard and considered the arguments of counsel, now renders this memorandum decision and order.
The Trustee’s opposition to the Application can be briefly summarized as follows:
1. The amount of time spent on preparing the fee applications is excessive.
2. The Application includes fees for services at which Bank of Honolulu was not successful, or for services which are not covered by the Agreement of Sale contract with the Debtor which authorizes Bank of Honolulu to recover its reasonable attorney fees in case of default by the Debtor.
3. The Application includes fees for services incurred in connection with Bank of Honolulu’s unsuccessful Motion for Reconsideration.
4. It is premature to award Applicant fees for services in connection with its pending appeals.
Applicant responds by stating that:
1. It was never required before to submit time-sheets in the detail requested by this Court.
2. The amounts expended and requested are commercially reasonable.
3. The services provided were essential in insuring that an estate remains large enough to pay Bank of Honolulu in full.
Where the Debtor’s estate is to pay attorney’s fees, it is the responsibility of the attorney to provide the court with time-sheets that clearly set forth in detail the type of service rendered and the time spent for each service. As was stated in In re Horn & Hardart Baking Co., 30 B.R. 938, 944 (Bkrtcy.E.D.Pa.1983),
[t]he court should not be required to indulge in guesswork, nor undertake extensive labor to justify a fee for an attorney who has not done so himself. We do not find it to be an unbearable burden to require any attorney seeking compensation to enlighten the court as to the nature of his toil and the relation it bears to the matter at hand. Absent such a statement, compensation may not be allowed.
And, in In re Nation Ruskin, Inc., 22 B.R. 207, 210 (Bkrtcy.E.D.Pa.1982) the Court stated:
General statements will not justify fee awards. Lumping-together services and failure to adequately specify how much time has been expended for each individual service is not acceptable for the court’s inspection and evaluation.
The attorney’s time sheet must be adequate to show the amount of time spent and the manner in which it was spent. *208Mere entrance such as “research”, “conference” or “telephone call” is insufficient. And, where there is a block of services without a breakdown of the time for each service rendered, there will be no compensation. In re Four Star Terminals, Inc., 42 B.R. 419, 426-27 (Bkrtcy.Alas.1984).
Duplication of services should not be compensated, and compensation for routine work should be discounted in determining fee awards. Matter of Ferkauf, 42 B.R. 852 (Bkrtcy.S.D.N.Y.1984).
Although the Applicant argues that it did not know (prior to the request of the court to provide further detail) that such detail in its fee application was necessary, it has always been incumbent upon the party seeking reimbursement to clearly set forth the nature of the services performed. As the court in In re NuCorp Energy, Inc., 764 F.2d 655, 658 (9th Cir.1985) stated:
Attorneys are statutorily obligated to submit to the bankruptcy court a detailed accounting of all services rendered to the bankruptcy estate. See 11 U.S.C. § 329(a); Fed.R.Bankr. 2016. Our decisions have consistently recognized that debtors’ counsel are required to maintain and present to the bankruptcy court meticulously accurate time records of all services rendered to the estate as a necessary prerequisite to the recovery of attorneys’ fees under the Bankruptcy Act. See, e.g., Southwestern Media, 708 F.2d [419] at 428 n. 16; In re Beverly Crest Convalescent Hospital, 548 F.2d 817, 820 (9th Cir.1986); York International Building, 527 F.2d [1061] at 1069. The detailed fee applications enable the bankruptcy court to fulfill its obligation to examine carefully the requested compensation in order to ensure that the claimed expenses are justified.
It should further be noted that Applicants are not unfamiliar with the Bankruptcy Court; they have practiced before this Court on numerous occasions, and have submitted fee applications. The court thus finds Applicant’s argument that it did not know that a detailed record of the services provided was necessary to be without merit.
The request by this court for further clarification of the time-sheets was not for the benefit of the estate. Rather it was for Applicant’s benefit since, without the additional detail, this court would not have been able to determine the amount of “reasonable attorney fees”. If the Applicant had not submitted further details, the Court would have been justified in denying all attorney fees.
Because the Bankruptcy Code requires detailed accounting of all services rendered in cases under Bankruptcy Court jurisdiction, Applicant’s expenditure of time to recreate that which should have been already in existence should not be compensated. It should be noted here that Applicant’s time incurred in submitting its first fee application has already been compensated and the court denies reimbursement for the additional time required to provide greater detail in the time-sheets. The Court thus denies the following:
GPC ' 14.20 hours
FY 11.90 hours
Applicant further argues, that some services provided, even if not within those specifically contemplated in the clause of the Agreement of Sale with the Debtor making Debtor liable for certain attorney fees in case of default, were necessary to protect Bank of Honolulu’s interest by insuring that a fund would remain to pay any debt owed to Bank of Honolulu. The weakness of this argument is that it would then allow Bank of Honolulu to contest any matter that would tend to threaten the fund from which it would be paid, without having to expend any funds of its own.
Applicant also cites In re Masnorth Corp., 36 B.R. 335 (Bktcy.Ga.1984) for the proposition that fees should be allowed if a reasonable creditor would have spent the amount of requested attorney’s fees if it had to pay the fees itself to protect its stake. However, as the court found,
*209[w]hile Midland is free to assert all bona fide claims before the Bankruptcy Court, Midland is not necessarily entitled to saddle the debtor with all the attorney’s fees and expenses incurred so as to impede the debtor’s ability to reorganize.
Id. at 339.
Further, it should be noted that the court there found that “a reasonable creditor would [not] have spent $38,000.00 of its own money to “protect” its $450,000.00 stake in real property with an admitted equity cushion in excess of $100,000...” Id. at 339. As noted in previous orders of this court, Bank of Honolulu is an overse-cured creditor with some $400,000.00 in excess over the value of the collateral. All totaled, Applicants have sought over $74,-000.00 in attorney fees and costs. The court further notes that Bank of Honolulu has been paid in full the principal amount of its debt and interest at the contract rate of interest. Although Bank of Honolulu claims that it is entitled to delay damages of approximately $107,000.00, the court concludes that a reasonable creditor would not have expended the amount claimed by the Applicant in protecting its rights.
Accordingly, the court deducts the following items because they were not within the contemplated attorney fees in the Agreement of Sale, and in any event, are not commercially reasonable:
Date Service Provided Hours Atty
1/02/85 Research at court, apptmt of trustee 1.9 ANN
4/05/85 Prep, for hearing, Duca’s fees .7 GPC
4/08/85 Tel. call, Duca’s fees .3 GPC
As to the motion for reconsideration of attorney’s fees, the court recognizes that fees incurred in making such a motion, if made in good faith, and with a reasonable basis, should not be denied solely because it was not successful. The court finds that 9.5 hours were spent in preparing and revising the motion and that this time is reasonable.
Finally, the court notes that it has previously ruled that fees and costs incurred with regards to the Motion for Delay Damages is not compensable, since the Bank of Honolulu was not successful on that Motion. The court thus deducts the following:
Date Service Provided Hours Atty
1/30/85 Review of memoranda .7 GPC
1/31/85 ” ” ” .6
2/01/85 Prep, for hearing .85
2/02/85 ” ” ” 2.60
2/04/85 Prep, for hearing 3.25
2/07/85 Research memorandum .70
2/09/85 Prep, supplemental memorandum 1.0
3/06/85 Prep. POF 1.0
3/06/85 Same 1.35
3/07/85 Same 3.40
3/08/85 Same 4.00
3/09/85 Review Trustee’s POF .15
8/30/85 Research new case law - delay damages .40
Based on the foregoing, the court deducts the following amount from the various individuals:
GPC 35.20 hours at $125.00 per hour $4,400.00
FY 11.90 hours at $45.00 per hour 535.50
ANN 1.90 hours at $46.00 per hour 85.50
$5,021.00
4% excise tax 200.84
$5,221.84
*210From the requested costs of $1,808.09, the court disallows the Sheriff’s fee and witness fee incurred in connection with the Motion for Delay Damages, or $40.00. The court also disallows one-half (V2) of the computer research charge, or $695.62, for a total disallowance of $735.62. From the total requested of $13,819.94, the court deducts $5,957.46 and awards the balance of $7,862.48.
IT IS HEREBY ORDERED that the Trustee shall pay to Applicant $7,862.48 for services incurred as attorneys for Bank of Honolulu, chargeable to the estate under terms of the Agreement of Sale between Bank of Honolulu and the Debtor. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490308/ | MEMORANDUM DECISION
THOMAS C. BRITTON, Chief Judge.
Four judgment creditors seek exception from discharge of their judgments under 11 U.S.C. § 523(a)(2)(A) or (6). There is no evidence in the record before me to support the allegation under § 523(a)(6). Alternatively, plaintiffs have opposed the debtor’s discharge with general allegations under § 727(a), but at trial plaintiffs acknowledged that they had no basis to oppose the debtor’s discharge under § 727. The debt- or has answered and the matter was tried on May 8.
Plaintiffs rely exclusively upon the collateral estoppel effect of their Missouri “judgment” in a civil action for conspiracy to defraud brought against this debtor and several other defendants. The claims of the four plaintiffs wbo are before me are asserted as the first four counts in that action, which was tried to a jury in November 1983. The records of the Missouri court do not reflect the entry of any separate judgment upon the jury verdict, but plaintiffs represent that the court’s docket sheet reflecting the jury verdict constitutes a judgment. This representation, which is not disputed by the debtor is accepted by me.
The docket of the Missouri court, pages 14 through 20, reflects an award of $455,-000 in favor of the plaintiff M.P. Industries, Inc., an award of $11,500 in favor of the plaintiff Midwest Precision Castings Co., an award of $23,500 in favor of the plaintiff Midwest Alloys, Inc., and an award of $800 in favor of the plaintiff Midco Industries, Inc., or an aggregate of $490,800 against this debtor. This record does not reveal what part, if any, of thesé four awards has been satisfied by payment either from this debtor or the other judgment debtors.
The debtor denies that he was ever properly served with process and argues that the Missouri court did not have jurisdiction over his person. The debtor also denies that the claims of these four creditors fall within the provisions of § 523(a)(2)(A).
It was settled in Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), that the principles of res judicata do not preclude relitigation in this court of the question of dischargeability of a debt in bankruptcy. However, the Supreme Court noted that it was not required to and, therefore, did not decide whether in a dis-chargeability action collateral estoppel effect should be given to a prior State judgment so as to bar the relitigation of those questions actually and necessarily decided in the prior suit. Id. at 139 n. 10, 99 S.Ct. at 2213 n. 10. The doctrine of collateral estoppel has since been recognized as applicable in this context. Miller v. Held (In re Held), 734 F.2d 628, 629 (11th Cir.1984). The court said:
The doctrine of collateral estoppel bars relitigation of an issue if three requirements are met:
(1) that the issue at stake be identical to the one involved in the prior litigation; (2) that the issue have been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation have been a critical and necessary part of the judgment in that earlier action.
The issue at stake in the Missouri litigation was identical to the issue asserted as a basis for exception from discharge here *220under § 523(a)(2)(A). The determination of that issue in the Missouri litigation was a critical and necessary part of the judgment of the Missouri court. The debtor’s avoidance of the impact of that adjudication is focused on his contention that the issue was not “actually litigated” in Missouri.
I find that the debtor through counsel •filed an answer to the third amended petition in the Missouri litigation on January 25, 1983. Three days later, that court permitted the debtor’s attorney to withdraw. Four days later, a new attorney appeared on behalf of the debtor and six days thereafter, the debtor was deposed by the plaintiff. Eleven days after the deposition, the debtor’s second attorney was permitted to withdraw.
Four months later, plaintiff filed a fourth amended petition. The debtor did not appear at a pretrial conference held August 26, 1983 and there is no record that he appeared at the jury trial or thereafter.
I find that the Missouri court had jurisdiction over his person and reject the debtor’s argument that he was not properly served, that he was improperly represented, that he did not know that he was being sued and that he thought he was assisting a criminal prosecution against someone else. I reject these defenses not only because the debtor through counsel filed an answer waiving any objection to service, but also because in a subsequent levy of execution of this judgment in Missouri upon the debtor’s real property, this debtor attacked the judgment on the same ground he asserts here. That contention was rejected by that court and that order which was not appealed has become final. It is res judicata as to this defense.
In Continental Can Co., U.S.A. v. Marshall, 603 F.2d 590, 596 (7th Cir.1979), the court said:
The requirement of collateral estoppel that the issue be “actually litigated” does not require that the issue be thoroughly litigated. Collateral estoppel may apply “no matter how slight was the evidence on which a determination was made, in the first suit, of the issue to be collaterally concluded.” ... This requirement is generally satisfied if the parties to the original action disputed the issue and the trier of fact resolved it.... Any other result would permit a litigant to avoid the conclusive effect of collateral estop-pel, by design or by inadvertence, by denoting as irrelevant an issue clearly raised by his opponent and by refusing to introduce evidence on the issue. We do not condone such tactics whether used by a private litigant or by the Government.
This debtor’s pattern of conduct in the Missouri litigation was continued in this court. On the eve of the trial of this matter, he requested the withdrawal of his attorney on the ground that he was unable to pay her. I denied counsel leave to withdraw. I do not find credible this debtor’s testimony that he did not know he had been sued in Missouri and that his Missouri attorneys were either incompetent or betrayed him. I do not know why the debtor failed to participate with his co-defendants in the defense of the Missouri action, but I am convinced that he did so by design rather than by ignorance or inability to pay his counsel.
In United States Life Title Insurance Co. v. Dohm, (In re Dohm), 19 B.R. 134, 138 (N.D.Ill.1982), the district court affirmed a bankruptcy court’s finding of exception from discharge which gave collateral estoppel effect to a state court judgment. The court said:
Dohm, in addition, argues that he was without counsel in the state court proceeding and that the trial judge denied him a fair trial. The argument, however, does not disturb the estoppel effect. The state court’s adjudication was a final judgment. If Dohm believed the adjudication was unfair in any way, his remedy was to appeal.
I am satisfied that the issue of this debt- or’s actions constituting fraud against the four plaintiffs was actually litigated and resolved against him by the jury in Missouri. In order that this record be complete, I received testimony from the debtor deny*221ing plaintiffs’ charges of fraud. However, I find no basis to deny the Missouri judgment effect as collateral estoppel of that issue.
I find, therefore, that the debt fixed by the Missouri court to the four plaintiffs is for money obtained by false pretenses, a false representation, or actual fraud on the debtor’s part and each such debt is, therefore, excepted from discharge under § 523(a)(2)(A).
As is required by B.R. 9021(a), a separate judgment will be entered in accordance herewith. Costs may be taxed on motion. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490310/ | ORDER ON DEBTOR’S MOTION TO REOPEN CASE, PETITION FOR CONTEMPT AND PETITION TO SET ASIDE SALE OF PROPERTY
ALEXANDER L. PASKAY, Chief Judge.
THIS CAUSE came on for consideration upon the Debtor’s Motion to Reopen Case, “Petition” for Contempt and “Petition” (sic) to Set Aside Sale of Property. The Motion was filed by Joseph M. Eways, a Debtor who was involved in this closed Chapter 11 case. As noted, in addition to reopening the case, the Debtor also seeks a contempt citation against the creditor, Georgia Railroad Bank and Trust Company (Bank), on the ground that the Bank is currently attempting to execute upon property of the Debtor based on a pre-confirmation judgment obtained by the Bank against the Debtor, a debt which the Debt- or claims has been discharged in his Chapter 11 case. It is the contention of the Debtor that the Bank should have proceeded to seek a default of the Plan of Reorganization confirmed by this Court on November 2, 1981 and not to proceed in a non-bankruptcy forum. The Motion also seeks an order nullifying and setting aside the sheriff’s sale of the Debtor’s properties scheduled in the state court proceeding.
The Court heard argument of counsel, took judicial notice of the record, and finds as follows: On November 2, 1981, this Court entered an order confirming the Plan of Reorganization of the Debtor. The Plan provided that the creditors in Class I, including the Bank, inter alia, were to receive promissory notes evidencing the full amount of their approved and allowed claims. The notes bearing interest at the rate of 15% per annum on the unpaid balance were to be paid in four (4) equal annual installments with interest. The first installment under the note was due one year from the date of confirmation. The creditors placed in Class I, according to the confirmed Plan, retained the lien securing their respective claims to the extent of the allowed amount of their claims. A subsequent order, entered January 25, 1982, confirmed a modification of the Plan after confirmation. Neither order was appealed and a final decree was entered on September 29, 1982 closing the case.
On January 25, 1982, the Debtor executed a promissory note in favor of the Bank, purportedly in compliance with the provisions of the confirmed Plan. It appears that the principal amount of the note issued was improper. For this reason, the Bank refused to accept the promissory note in the incorrect amount. There was no new note issued in the correct amount. The record further reveals that the first payment made by the Debtor, pursuant to the terms of the Plan, was made substantially after the due date and, in any event, was less than the amount of the allowed claims.
On January 31, 1983, the Bank moved to reopen the Chapter 11 case in order to either dismiss or to have the case converted to a Chapter 7 cáse. In the alternative, the Bank sought an order from this Court to compel the Debtor to execute a promissory *618note in compliance with the modified Plan of Reorganization in the correct amount. On March 30, 1983, the Debtor filed its objection to the proof of claim of the Bank. The objection was heard in due course and was overruled by this Court on March 26, 1984 and the claim of the Bank was allowed as filed. The Motion to Dismiss or Convert was denied and the Chapter 11 case was again closed on August 29, 1984.
On April 19, 1985, the Debtor filed a complaint in the District Court for the Southern District of Georgia, Case. No. CV185-85, naming the Bank and a co-obli-gor on the pre-petition obligation to the Bank. The complaint demanded a preliminary injunction against the Bank to enjoin it from taking further action against property of the Debtor. There were a number of other remedies which are not relevant here. The Bank counterclaimed, demanding attorney’s fees and expenses arising from the suit by the Debtor. On September 16, 1985, the District Court, finding that the Debtor had defaulted on the counterclaim entered an order awarding the Bank $157,913.82 in attorney’s fees and expenses to the Bank; appointing a receiver to marshall the property of the Debtor in aid of execution; finding that the Debtor was indebted to the Bank in the sum of $546,865.72 based upon its pre-petition judgment and upon the judgment liens it retained under the Plan of Reorganization; and enjoining the Debtor and anyone on his behalf from directly or indirectly taking any action to interfere with the receiver or with the Bank in its efforts to realize upon its judgment lien.
In the meantime, the Bank proceeded to foreclose the pre-petition judgment lien retained under the provisions of the Plan, by means of a judgment execution sale of real property by the Sheriff of Rutherford County, North Carolina. Before the sale was consummated, the Debtor filed a Chapter 11 Petition in the United States Bankruptcy Court for the Western District of North Carolina, Shelby Division, Case No. SH-B-85-3. In its order of September 30, 1985, that Court noted the long and litiguous history involving the Debtor and the Bank and dismissed the Chapter 11 as a bad faith filing.
Having failed to obtain the desired result from those two forums, the Debtor turns once again to this Court with its present Motion to Reopen the Case and Petition for Contempt and Petition to Set Aside Sale of Property. This Court is satisfied that the Debtor’s refusal to execute a note in the appropriate amount pursuant to the terms of the Plan should not preclude the Bank from enforcing its pre-petition claim, particularly in light of the specific provision in the Plan which clearly preserved the Bank’s judgment lien. Moreover, this Court will not revisit the decision made by the District Court for the Southern District of Georgia, therefore the Debtor’s Petition (sic) to Set Aside Sale of Property authorized by that Court will not be disturbed.
For this reason, it is evident that it would serve no useful purpose to reopen this closed Chapter 11 case and it is equally clear that there is no order which has been violated by the Bank which, in turn, would warrant a finding that the Bank is in contempt and should be pjmished.
In addition, this Court is satisfied that the Debtor has stated no legal or equitable ground for reopening a case to cure a material default by the Debtor which occurred more than four years ago and which as been extensively addressed in other forums.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Debtor’s Motion to Reopen Case, “Petition” for Contempt and “Petition” to Set Aside Sale of Property be, and the same is hereby, denied in its entirety. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490311/ | OPINION
EMIL F. GOLDHABER, Chief Judge:
The issue for resolution in this case is whether the recording of two judgment notes given by the debtors to close relatives, one year prior to bankruptcy, may be set aside under Pennsylvania’s Fraudulent Conveyance Act, Pa.Stat.Ann. tit. 39, § 357 (Purdon 1954), on the basis that the transfers were made with intent to defraud. For the reasons set forth herein, we conclude that the transfers may be set aside.
The facts of this case are as follows:1 Margaret N. Cole (“the wife-debtor”) is the daughter of the instant plaintiff, Margaret R. Noone (“Noone”) and John Noone. Timothy Cole (“the husband-debtor”) is the son of Percy Cole and Madelaine Cole, the defendants. The debtors have four adult children.
Shortly prior to his death, John Noone gave a power of attorney to the debtors. After his demise, his widow, Noone, individually and as administratrix of her late husband’s estate, commenced suit against the debtors in the United States District Court for the Eastern District of Pennsylvania, alleging the debtors’ misappropriation of assets from Noone and the decedent through, inter alia, the use of the power of attorney.
During the pendency of the suit in the District Court, before The Honorable Donald W. VanArtsdalen, the debtors transferred a parcel of property owned by them, known as the C. Horse Farm, to their adult children for the consideration of $1.00. The debtors also owned shares of stock in the business operating on the realty under the name of C. Horse Farm, Inc. The debtors contemporaneously transferred all their stock to their children for an additional $1.00. Shortly thereafter the children conveyed the realty to C. Horse Farm, Inc. These conveyances were the subject of another suit by Noone in the United States District Court for the Eastern District of Pennsylvania before Judge VanArtsdalen. In holding in favor of Noone in both actions before him, Judge VanArtsdalen set aside the conveyances as fraudulent.
We expressly find that the debtors and Percy and Madelaine Cole effected the rec-ordation of the judgment notes with actual intent to defraud Noone. We likewise find that the testimony of Percy and Madelaine Cole was devoid of credibility.
Pa.Stat.Ann. tit. 39, § 357 (Purdon 1954), provides as follows:
§ 357. Conveyance made with intent to defraud.
Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.
Pa.Stat.Ann. tit. 39, § 357 (Purdon 1954). Proof of fair consideration or solvency of the transferors is necessary under other sections of the Pennsylvania Fraudulent Conveyance Act such as Pa.Stat.Ann. tit. 39, §§ 354, 355. Nonetheless, under § 357 a transfer may be set aside on clear and convincing proof of fraudulent intent as to either present or future creditors. Hence, the transfer will be held fraudulent. U.S. v. Gleneagles Investment Co., Inc., 565 *676F.Supp. 556, 580 (M.D.Pa.1983) (emphasis added).
In this case the evidence clearly and convincingly indicates that the debtors and Percy and Madelaine Cole effected the rec-ordation of the notes with intent to defraud Noone. Consequently, the recordation is avoidable under § 357. We will accordingly enter an order setting aside the rec-ordation of the notes.
. This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490312/ | FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THE MATTER before the Court in this Chapter 11 case is an adversary proceeding which was initiated by a Complaint, filed by Bob Rigby, Inc. (Debtor) against Eagle Crusher Company, Inc. (Eagle), alleging breach of implied warranty, breach of express warranty, and negligent design of a portable rock crushing machine (machine).
In due course, Eagle filed its answer in which it generally denied all the allegations set forth in the Complaint relating to warranties, express and implied. In addition, it also set forth several affirmative defenses which are as follows: First, Eagle contended that the Debtor not only had ample opportunity to inspect the machine it purchased, but used the same prior to the acceptance and prior to its consent to finance the purchase price of the machine two months after actual delivery; second, that the Debtor failed to notify Eagle of any defect in the machine within a reasonable period of time; third, that the failure to function was the result of the Debtor’s own failure to properly use, maintain, service or otherwise care for the machine; fourth, that the Debtor’s damages, in any event, are speculative and not subject to proof; fifth, that the written warranty agreement which accompanied the machine is controlling and, under the terms of the “product warranty”, granted by Eagle, the claims of the Debtor have been waived; and, sixth, that the Debtor is collaterally estopped from asserting any claims against Eagle because it suffered an adverse judgment in its suit against Linder Industrial Machinery Company (Linder), the distributor for Eagle who, in fact, sold the machine to the Debtor.
In due course, the matter was tried and the facts germane to the resolution of the issues raised by the respective contentions of the parties, as appear from the record, are as follows:
Since approximately 1966 Bob Rigby, operating as a sole proprietor, doing business as Bob Rigby Trucking, was engaged in mining and selling fill dirt and shell material, primarily to be used for road construction. During the summer of 1980, Rigby was in the process of forming Bob Rigby, Inc. to carry on the same business through the corporation. Rigby, as “promoter” of the corporation, began conferring with representatives of Eagle, a manufacturer of industrial machines and with representatives of Linder, the distributor of machines manufactured by Eagle. The discussions with the representatives of Eagle and Lin-der culminated in the execution of an agreement to purchase from Linder a rock crushing machine to be manufactured by Eagle. Bob Rigby, Inc. was actually formed on August 8, 1980 and it is without dispute that Bob Rigby subsequently ratified and assumed the agreement to purchase the machine which was originally entered into by Rigby individually (Plaintiff’s Exh. # 2). It is equally without dispute that Linder clearly understood that it was dealing with a corporate purchaser and *903not with Bob Rigby individually (Plaintiffs Exh. # 22). On August 26, 1980, Linder submitted a quotation to the Debtor which was accepted by Rigby as president of the Debtor on November 7, 1980. The quotation was also signed by Ben Scales, an employee of Linder, on behalf of Linder.
The evidence leaves no doubt that throughout the negotiations Rigby, Cox, an Eagle representative, and Scales extensively discussed the expected capacity of the machine and it was understood that Rigby expected that the machine should produce 300 tons per hour (TPH) of minus two-inch material. It is clear that Cox and Scales visited the airport site, one of the sites at which the Debtor was to operate the machine eventually; that the material stored at the site had been mined and stockpiled on the banks of the pit to permit the material to be air-dried.
There is ample evidence in this record to support the finding that Rigby was told from the beginning that if the machine was to reach the desired capacity, it would have to process relatively dry material. At-hough Cox, the Eagle representative, took handfuls of the dry, stockpiled material when he visited the airport site, Rigby was told that it was necessary to have a “run of mine,” a sample which would have provided Eagle with an accurate specimen of the materials which would be handled by the machine, in order to assure that the machine was designed properly. The record reflects that no “run of mine” sample was ever provided to Eagle. There is conflicting evidence as to whose responsibility it was to provide a “run of mine” sample and it is in dispute the reason for the failure to provide it to Eagle.
Negotiations were ultimately concluded and Linder provided a final quotation describing the machine in some detail including the provision that the machine was to produce 300 TPH of minus two-inch product. On November 11, 1980, Rigby accepted the quotation submitted by Linder. On November 19, 1980, Linder forwarded a purchase order to Eagle. The purchase order contained the same product description and, in addition, also included a warranty which provided that Eagle warranted that the machine would produce a total of 300 TPH of minus two or three-inch product. (Defendant’s Exh. #30). Upon receipt of the purchase order, Eagle promptly advised Linder that the 300 TPH capacity could not be warranted because the production capability of the machine was dependent first on the size of the material it was to handle and second on its moisture content and some other factors. Eagle also stated that the capacity of the machine might be less under various conditions. Rigby was promptly advised by phone of Eagle’s response. This communication was later confirmed in writing. (Defendant’s Exh. # 31 and # 32). Linder wired a confirmation of its phone conversation with Eagle and advised Eagle to disregard the portion of the purchase order regarding the warranty by Eagle of the capacity stated in the original specification and in the purchase order. Linder acknowledged that it was to provide Eagle with sample material or a breakdown on particle size of material being fed into the machine before its estimated capacity and the ultimate product size could be determined. As noted, no “run of mine” was ever provided by the Debtor to Linder or by Linder to Eagle. It cannot seriously be questioned from the evidence presented that such information was requested of Rigby by Eagle on at least two occasions and that Rigby was advised that Eagle could not warrant 300 TPH unless it had an adequate sample of the material which was to be fed to the machine.
The record further reveals that, during the negotiations, Rigby consulted with Mr. Maloney, a representative of Empire Equipment Company (Empire), and ultimately leased a Hewitt Robbins rock crushing plant from Empire. Maloney advised Rig-by that a rock crusher was a high maintenance item and that the hammerheads, an integral part of the rock crushing mechanism required almost daily welding. It further appears that Rigby was also advised of the hammerhead maintenance problem by Cox, the Eagle representative, and was *904promised that an extra set would be shipped with the machine when it was delivered. There is no credible evidence in this record to substantiate Rigby’s contention that Eagle represented to Rigby that the hammerhead of the machine would last at least six months.
On February 24, 1981, the machine manufactured by Eagle was delivered to Rig-by’s mining site known as the airport pit. Shortly thereafter, Phillips, a Linder employee, delivered the operating manual for the machine together with a product warranty. The warranty was a limited 90 day warranty covering only parts of the machine against defects. It specifically excluded defects if the machine had been “subjected to misuse, misapplication, neglect (including but not limited to improper maintenance and storage), accident, ... any and all modifications unless authorized by Eagle ... adjustment and repair_” The warranty further provided that all warranty claims must be submitted to Eagle within 30 days of the discovery of the defect within the warranty period. In addition, it also recited the following language:
THE FOREGOING OBLIGATIONS ARE IN LIEU OF ALL OTHER OBLIGATIONS AND LIABILITIES INCLUDING NEGLIGENCE AND ALL WARRANTIES, OF MERCHANTABILITY OR OTHERWISE, EXPRESSED OR IMPLIED, IN FACT OR BY LAW, AND STATE OUR ENTIRE AND EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CLAIM OF DAMAGES IN CONNECTION WITH THE SALE OR FURNISHING OF GOODS OR PARTS, THEIR DESIGN, SUITABILITY FOR USE, INSTALLATION OR OPERATION.
After delivery of the machine, it was determined that the “grizzly” (grate) through which the raw materials were to be fed initially into the machine should be modified so that it would be inclined and not flat in order to permit usable materials to fall into the hopper and oversized materials to roll off. In order to accomplish this, the grizzly was removed from the machine and taken by Rigby to Brown’s machine Shop located in Ft. Myers. It is without dispute that Eagle authorized the modification of the grizzly. However, in addition to the modification described earlier, the grizzly was further modified in the machine shop by enlarging the openings to permit larger materials to enter the hopper. The evidence is unclear as to who directed this additional modification. It is in dispute whether Eagle representatives objected to the modifications but it is clear that Eagle ultimately approved the modifications and paid the invoice submitted by Brown itemizing both modifications.
Upon completion of the modification, the machine was promptly set up for operation but immediately ran into difficulties. The testimony discloses that all understood that there will be some technical problems during the initial shakedown stage of the machine common to all newly manufactured and transported heavy equipment. The purchase order issued by Linder and sent to Eagle provided for a “field start-up service” pursuant to the terms of which an Eagle service representative would be provided for a period of three days or until the machine was performing to its specifications. In this case the start-up period lasted about one month, during which Eagle representatives and Linder representatives were frequently at the airport pit and, after March 6, 1981, at a second pit operated by the Debtor known as the Jones Loop Pit.
Near the end of March, 1981, Phillips, a representative of Linder, explained to Rig-by that the machine would have to be accepted or rejected within a 30 day period and if accepted, the balance of the down payment must be paid and arrangements would have to be made to finance the balance of the purchase price. Rigby was also told that if he was not satisfied with the performance of the machine, he could reject the machine and his initial deposit of $16,504 would be returned. By the end of April, 1981 the machine was performing satisfactorily. On April 29, 1981, Rigby accepted the machine, paid the balance of *905the down payment, and signed the financing papers with Allis-Chalmers who agreed to finance the balance of the purchase price.
On May 6, 1981, Eagle’s president, Colby, visited the Jones Loop Pit and observed the machine in operation. On this occasion, he gave Rigby his business card and encouraged Rigby to call on him at any time if he had any problems with the machine.
The record reveals that no additional problems were experienced with the machine until after June 16, 1981. On that date, the machine was placed near an embankment of the pit from which materials were being taken when the ground gave way and the machine tumbled down the embankment, toppled over and sustained substantial damage. Rigby failed to notify Eagle of the accident and instructed his employees to make the repairs themselves. Although Rigby continued to use the machine until December of 1981, the record reflects that the machine never functioned satisfactorily after the accident.
Prior to the accident, the machine functioned substantially in accordance with its specifications when used to process dry material of the type stockpiled and air-dried at the airport pit which was the originally intended location of the machine’s use, and the site of the mining operation indicated by Rigby at the initial meetings.
There is no question that the material fed into the machine at the Jones Loop Pit was not dry stockpiled materials but was material scooped by dragline from the Pit and placed directly into the machine. For this reason, the material fed into the machine was moist and high in clay content and both of those characteristics substantially reduced the production capacity of the machine and caused inordinant and unusually frequent maintenance problems. There is no evidence of any complaints by Rigby concerning the operation of the machine from the period of Rigby’s acceptance of the machine in late April, 1981 up to December of 1981 at which time Rigby stopped using the machine.
On February 14, 1982, almost one year after delivery of the machine to the airport pit, Rigby notified Linder that the machine failed to perform as represented by Eagle and Linder. (Plaintiff’s Exh. # 5).
In September of 1982, after a substantial period of default by the Debtor in its financing contract, Allis-Chalmers repossessed the machine pursuant to the terms of the security agreement executed by the Debtor in connection with the purchase of the machine. In 1982, the Debtor filed suit in the Circuit Court for Sarasota County, Florida against Linder and Eagle seeking money damages on several theories including the theories of express and implied warranties. On the eve of trial, the Debtor took a voluntary non-suit on its claim against Eagle and the trial proceeded only on the claims against Linder. The case was submitted to the jury after full scale trial on the express and implied warranty claims and the jury returned a verdict in favor of Linder and the Debtor’s complaint against Linder was dismissed with prejudice. On July 21, 1983, the Debtor filed its Chapter 11 case and shortly thereafter filed this adversary proceeding against Eagle.
These are the facts against which the three claims asserted by the Debtor, i.e. breach of express warranty, breach of implied warranty, and negligent design, must be tested.
It should be stated at the outset that the law is clear that before the. Debtor can recover on any of the three theories advanced in support of its claim for recovery, the burden is on the Debtor to establish with clear and convincing evidence that the facts developed in this record, in fact, support the claim asserted on these various theories. Considering these claims ad seri-atim, this Court is satisfied that the claim of the Debtor based on breach of an express warranty by Eagle has not been established with the requisite degree of proof and must be rejected for the following reasons:
First, the transaction under consideration is governed by Article 2 of the *906Uniform Commercial Code as adopted by Fla. Stat. § 672.101 et seq., the Statute which governs the sale of goods in this State. Second, while Eagle was not the actual seller of the machine, this is without significance. Fla. Stat. § 672.313 does not limit express warranty to the actual seller in spite of the fact that a literal reading of the Section might so indicate, but also extends the same to the manufacturer of the goods if, in fact, an express warranty arose by virtue of other means described in the Statute. Mobile Chemical Company v. Hawkins, 440 So.2d 378, pet. for rev. den., 449 So.2d 264 (Fla.1984); Monsanto Agricultural Products Company v. Edenfield, 426 So.2d 574 (Fla. 1st DCA 1982); Sheppard v. Revlon, Inc., 267 So.2d 662 (Fla. 3d DCA 1972).
This leads to the ultimate issue to be resolved which is the viability of the Debt- or’s claim set forth in Count I of the Complaint which is that there was an express warranty running from Eagle to the Debt- or and that the same was breached. The express warranty asserted by the Debtor relates to the capacity of the machine to produce 300 TPH of a specific size end-product, and to an alleged warranty as to the useful life of the hammerheads, an essential part of the machine.
It should be stated at the outset that it is evident from this record that while the Debtor intended to purchase a machine capable of processing mined material suitable to be used in road construction and stated its desire to Linder to purchase a machine with a capability of producing 300 TPH of specific size end-product, it is equally without doubt that Eagle made it clear that without the benefit of a “run of mine” sample material, it would not be able to guarantee a specific rate of production. There is no doubt that this was expressly communicated to the Debtor at least twice, long before the Debtor actually purchased the machine.
Neither would this record justify the finding that Eagle warranted any specific uséful life of the hammerheads. On the contrary, the record is clear that the Debtor knew that the machine was a high maintenance item and the hammerheads had a relatively short lifespan. Even if there was a statement made by a representative of Eagle that the hammerheads would have a useful life without maintenance of at least six months or more, Rigby was not entitled to rely on any such statement in light of the uncontradicted fact that he was told by Mr. Maloney of Empire that the hammerheads had a relatively short lifespan and that they are a high maintenance item. The requirement that a statement be a basis of the bargain is essentially a reliance requirement and is a significant factor in the determination as to whether specific language consitutued an express warranty. The absence of reliance will negate the existence of an express warranty. Royal Typewriter Company, a division of Litton Business Systems, Inc. v. Xerographic Supplies Corp., 719 F.2d 1092, 1101 (11th Cir.1983), construing Fla. Stat. § 672.313(1)(a).
Even if Rigby had met its burden of establishing an express warranty, it would have had to give proper notice to Eagle of a breach of warranty in order to recover. The Statute governing the requirement to give notice reads as follows:
Fla. Stat. § 672.607 Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over
(2) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the non-conformity would be seasonably cured but acceptance does not of itself impair any other remedy provided by this chapter for nonconformity.
(3) Where a tender has been accepted:
(a) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.
*907(4)The burden is on the buyer to establish any breach with respect to the goods accepted.
It is contended by the Debtor that it was led to believe that the non-conformity of the machine would be cured; therefore, it was not required to notify Eagle that the machine failed to produce at the rate required by the Debtor, relying on Fla. Stat. § 672.607(2). The only act which would have been considered to be a revocation of the acceptance was a rejection letter which was not sent by Rigby to Linder until February 12, 1982, or almost one year after delivery of the machine. This certainly cannot be accepted as reasonable notice which would meet the requirement of the Statute.
There is an additional reason why the Debtor cannot recover on its claim of express warranty. It is without dispute and is clear from this record that in April of 1981, prior to the actual purchase of the machine, the Debtor was offered an option either to refuse to purchase the machine, return the same and recover all monies paid as part of the down payment and cancel the entire transaction, or proceed and complete the transaction and purchase the machine. The Debtor elected to accept the machine, paid the balance of the down payment and entered into a financing arrangement with Allis-Chalmers for the purpose of financing the balance of the purchase price. It is evident that once a buyer of goods is given an opportunity to rescind the transaction after the discovery of any defects in the machine and fails to do so, it ill behooves the buyer to complain later that the machine was not performing as it was warranted by the seller of the goods or, in this case the manufacturer, or that it is not fit for the purpose of the intended use.
Based on the foregoing, there is no doubt that, first, there was no express warranty running from Eagle to the Debtor, thus, none could be breached; and, second, even if there was one, the Debtor never effectively revoked its acceptance of the machine and, therefore, cannot recover on the breach of an express warranty.
The claim asserted in Count II by the Debtor is based on a breach of an implied warranty of merchantability and of fitness of the machine for a particular purpose. The Debtor contends that the machine in question was not merchantable because it failed to produce finished product at the rate of 300 TPH as quoted. To be merchantable, the goods must be fit for the ordinary purpose for which such goods are used. Fla. Stat. § 672.314; Pennington Grain and Seed, Inc. v. Tuten, 422 So.2d 948 (Fla. 1st DCA 1982). The Statute in question basically deals with two concepts; it deals with merchantability of goods sold and the concept of implied warranty of fitness for the intended purpose. It is unclear whether the legislature intended to use these two concepts interchangeably. The Statute defines the concept of merchantability in the following manner:
Fla. Stat. § 672.314
(2) Goods to be merchantable must be at least such as:
(a) Pass without objection in the trade under the contract description; and
(c) Are fit for the ordinary purpose for which such goods are used; and....
The crucial words in this definition are contained in the phrase which requires that the goods must be fit for an ordinary purpose. To translate this requirement to the facts in this case, this Court is satisfied that this machine was fit for the ordinary purpose for which these machines are generally used, that is, to crush raw, solid material, to wit rocks, and reduce them to a specific size. Thus, even assuming, and there is authority for the proposition, Rehurek v. Chrysler Credit Corp., 262 So.2d 452 (Fla. 2d DCA 1972), that this type of warranty runs to the manufacturer even though there was no privity between the manufacturer and the ultimate purchaser of the machine, i.e. between Eagle and the Debtor, the machine was certainly fit for the ordinary purpose for which it was intended.
*908As noted above, the machine was designed to process dry, free-flowing material such as that stockpiled at the airport pit. It is uncontested that the materials actually fed to the machine were of a high moisture and clay content. The fact that the machine did not function as well when used in a manner other than that for which it was designed does not support the Debtor’s action for breach of merchantability. Crawford v. Gold Kist, Inc., 614 F.Supp. 682 (M.D. Fla. 1985).
Rigby also contends that failure of the machine to produce satisfactorily constitutes a breach of an implied warranty for fitness for a particular purpose. An implied warranty of fitness for a particular purpose arises when the seller knows of the particular purpose for which a particular item was required and knows that the buyer is relying on the seller’s skill or judgment to select or furnish the item suitable for that purpose. Fla. Stat. § 672.315. There is no doubt that, under Florida law, a manufacturer as well as a seller can be held liable on an implied warranty when the manufacturer’s agent has dealt directly with the ultimate buyer, as in this case. Cedars of Lebanon Hosp. Corp. v. European X-Ray Distributors of America, Inc., 444 So.2d 1068 (Fla. 3d DCA 1984). It is clear that the machine delivered to Rigby by Eagle was not designed for the use in which it was actually employed. There is absolutely no evidence in this record that Eagle knew how the machine would ultimately be used, although it knew the purpose of its initially intended use. As noted above, Cox was taken to the airport pit and was shown dry, free-flowing stockpiled materials during the negotiations. Eagle was never informed that the machine would be taken to a completely different site and fed materials high in moisture and clay content. Moreover, the “run of mine”, sample Eagle required in order to determine the particular purpose for which the machine was required was never provided, although the record is clear that Rigby was aware that the sample was necessary in order for Eagle to determine the capacity of the machine.
Based on the foregoing, this Court is satisfied that the implied warranty of merchantability was not breached and the implied warranty of fitness for a particular purpose never came into existence. Moreover, even if an implied warranty of fitness for a particular purpose had arisen, Rigby is barred from any remedy for that breach because of its failure to notify Eagle within a reasonable time of its claim of breach on the ground that the machinery did not conform with the specifications for use provided to the manufacturer. As noted earlier, after accepting the machinery in April, 1981, Rigby continued to use the machine and did not pursue any breach of warranty claim until the letter sent to Linder by Rigby’s attorney almost one year after delivery, raising the spector of breach for the first time. This cannot be accepted as notice within a reasonable time within the meaning of Fla. Stat. § 672.2-607(2).
This leaves for consideration the Defendant’s claim that the machine was negligently designed by Eagle in that Eagle was aware that the design requirements were dependent on analysis of a “run of mine” sample and, therefore, Eagle owed a duty to the Debtor to obtain samples and analyze them before designing and manufacturing the machine. This duty was breached, so contends Rigby, by its failure to conduct a “run of mine” analysis before manufacture. The “run of mine” sample, according to Rigby, would have disclosed that the machine ultimately manufactured and sold to the Debtor was not suited for the use intended. In support of this contention, the Debtor relies on a memo from Ray Lynn, an Eagle troubleshooter, sent to Eagle in which Lynn recommended that “before any order is accepted, it must be cleared by a factory representative in regard to production (TPH), type of material, material gradation, silica content, moisture and stickiness of material.” (Plaintiff’s Exh. # 3). Eagle contends that an action will not lie based on negligence when, as must be conceded here, there is no claim for personal injury or injury to property *909but merely a claim which is limited to economic and pecuniary damages.
The claim based on negligence was presented earlier in this case by a Motion for Summary Judgment filed by Eagle. In considering Eagle’s Motion, this Court, relying on Monsanto Agricultural Products Co. v. Edenfield, 426 So.2d 574 (Fla. 1st DCA 1982), held that in Florida a cause of action would not lie for the negligent manufacture of goods where the resulting loss is only economic as distinguished from injury to persons or property.
On a Motion for Rehearing filed by the Debtor, this Court reconsidered its Order on Motion for Summary Judgment in light of the Florida Supreme Court decision in First American Title Insurance Co. v. First Title Service Co. of the Florida Keyes, Inc., 457 So.2d 467 (Fla. 1984). In that case, the Supreme Court held that an abstract company, with knowledge that the buyer of real property would rely on the abstract, would be liable to the buyer for negligent preparation of the abstract furnished to the seller even though the buyer’s loss was only economic. Based on the First American decision, this Court reversed its ruling and denied Eagle’ Motion for Summary Judgment on March 4, 1985.
Before revisiting this issue, it should be noted that just prior to the Florida Supreme Court’s decision in First American, the Supreme Court had the opportunity to review the Third DCA’s decision in GAF Corp. v. The Zack Co. which followed the Florida line of cases holding that no tort remedy existed to permit recovery of purely economical losses, but chose to deny the petition for review. GAF Corp. v. The Zack Co., 445 So.2d 350 (Fla. 3d DCA 1984), pet. for rev. den., 453 So.2d 45 (Fla.1984). The GAF Corp. case involved the sale of goods, a transaction clearly within Article 2 of the UCC, a transaction identical to the transaction involved in the instant case and distinguishable from the First American case which dealt with negligence in performing a professional service and not sale of goods. In GAF Corp., the Third DCA held that the contractor had no cause of action in negligence against the manufacturer of roofing material when no one was personally injured and no property damage was sustained by reason of the defective materials. The Court held that a negligence action could not lie because no cognizable tort damages were sustained by the Plaintiff, citing W. Prosser, LAW OF TORTS, § 30 at 143 (4th ed. 1971). As noted, the Supreme Court refused to disturb the holding of the Third DCA. While a denial of a petition for certiorari is not legally an affirmance, the distinction between the facts in GAF and First American, the sale of goods in GAF and the sale of services in First American, is persuasive.
More important is the case of L.C. Crawford v. Gold Kist, Inc., 614 F. Supp. 682 (M.D. Fla.1985), where the district court, construing Florida law, held that a seed dealer’s duty to furnish a buyer with an economically effective product, as opposed to a safe one, could arise only when expressly agreed to by the parties or when implied by law. The duty, if there was one, must arise under the law of contract, not based on tort law.
There is nothing in this record to substantiate the finding that Eagle contractually assumed the duty to design a machine that would produce material at the rate of 300 TPH under any and all conditions, regardless of the type of raw material Rigby chose to feed into the machine. Having found no duty to exist, there can be no breach which would support a claim based on negligence.
Based on the foregoing, this Court is satisfied that the Debtor is not entitled to the relief it seeks on any of the theories asserted in Counts I, II and III of its Complaint.
A separate final judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490314/ | MEMORANDUM
CLIVE W. BARE, Bankruptcy Judge.
I
An involuntary chapter 7 case was commenced against the debtor Jacob F. Butcher on June 29, 1983. This court entered an *31order for relief on August 22, 1983. Following the debtor’s failure to timely file a list of exemptions, the debtor’s wife Sonya W. Butcher filed a list of assertedly exempt property on his behalf pursuant to Bankruptcy Rule 4003(a).
The schedule of asserted exemptions reads as follows:
I. The following property is being claimed as exempt under 11 U.S.C. § 522(b)(2)(B) to the extent that the property is immune from execution under applicable state law as property held by Sonya W. Butcher and her husband, Jake Butcher, as tenants by the entirety:
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II. The following property is being claimed by Sonya W. Butcher, Individually, and on behalf of Jason and Brad Butcher, as comprising the family’s present marital homestead:
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Schedule of “Property Claimed as Exempt on Behalf of Debtor by Dependents of Debtor” (filed October 6, 1983).
The debtor’s trustee in bankruptcy, Mercantile National Bank at Dallas and Shaw-mut Bank of Boston have objected to the exemptions claimed by the debtor’s wife on behalf of the debtor.
The parties have stipulated the following: (1) the Anderson County, Tennessee, residence and the Sailfish Point condominiums in Stuart, Florida, were owned by the debt- or and his wife as tenants by the entirety *32on the date of the filing of the petition; (2) the Seminole County, Florida, residence (acquired by deed dated May 23, 1983, and recorded June 2, 1983) was owned on the date of the petition by the debtor and his wife as tenants by the entirety as to an undivided one-half interest, and by the debtor’s wife, as trustee for her children, as to the remaining undivided one-half interest; (3) the debtor was domiciled in Tennessee for the greater part of 180 days prior to the filing of the petition; and (4) there are joint creditors of the debtor and his wife.1
II
As noted, the exemptions asserted with respect to the various property held as tenants by the entirety are based upon 11 U.S.C.A. § 522(b)(2)(B) (West 1979).2
However, the exemption claim, objections, briefs and arguments of the parties were all submitted prior to the rendering of the Sixth Circuit’s decision in Liberty State Bank and Trust v. Grosslight (In re Grosslight ),, 757 F.2d 773 (6th Cir.1985). The holding in Grosslight is clearly disposi-tive here. In Grosslight the court concluded that, where state law permitted joint creditors of a husband and wife to reach entireties property, an individual debtor husband’s interest in entireties property was not exempt under § 522(b)(2)(B) in his individual case from claims asserted in his case by creditors who were joint creditors of both the debtor and his non-filing spouse. Under Tennessee law joint creditors of both spouses can reach property held as tenants by the entirety. United States v. Ragsdale, 206 F.Supp. 613 (W.D.Tenn.1962).
Accordingly, the exemptions claimed by Sonya W. Butcher on behalf of Jacob P. Butcher will be denied insofar as they purport under § 522(b)(2)(B) to exempt from the claims of joint creditors the debtor’s interest in property held as a tenant by the entirety with his wife.
Ill
With respect to the question of a homestead exemption, the parties have stipulated, as noted, that the debtor was domiciled in Tennessee for the greater part of 180 days prior to the filing of the involuntary petition. Clearly, then, Tennessee state law governs his right to a homestead exemption. 11 U.S.C.A. § 522(b)(2)(A) (West 1979).3 The debtor is not entitled to a homestead exemption under Florida law. The attempt of the debtor’s wife to assert on the debtor’s behalf a homestead exemption in the Florida property under Florida law will be denied.4
. Involuntary chapter 7 proceedings were commenced against the debtor’s wife on September 9, 1983. This court entered an order for relief on March 28, 1984. On April 10, 1984, Sonya Butcher filed a statement of conversion to a chapter 11 case, and on April 12, 1984, this court entered an order for relief in the chapter 11 case. On August 15, 1985, upon motion of the Federal Deposit Insurance Corporation, Sonya Butcher’s case was converted back to a chapter 7 case.
. This section provides:
(b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate ...
(2)(A) ...
(B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law.
11 U.S.C.A. § 522(b)(2)(B) (West 1979).
. This section provides:
(b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate ...
(2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place....
11 U.S.C.A. § 522(b)(2)(A) (West 1979).
. Neither the debtor nor the debtor’s wife has asserted a homestead exemption on the debtor’s behalf under Tennessee law. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490315/ | ORDER ON MOTION SEEKING ORDER CITING MALKA ISAAK FOR CONTEMPT AND MOTION TO SUSPEND EFFECT OF ORDER ON MOTION TO LIFT STAY, AND MOTION TO IMPOSE SANCTIONS AGAINST DEBTOR AND DEBTOR’S COUNSEL AND MOTION TO DISMISS
ALEXANDER L. PASKAY, Chief Judge.
THE MATTER under consideration in this Chapter 11 case is a Motion Seeking Order Citing Malka Isaak for Contempt. The Motion is filed by Joseph L. Cabella, a creditor in the above-captioned cause. The facts relevant to this matter, as appear from the record, are undisputed and are as follows:
On December 27, 1985, this Court entered an Order on Motion to Lift Stay and Motion to Impose Sanctions Against Debt- or and Debtor’s Counsel and on a Motion to Dismiss, 56 B.R. 159. In that Order, the Court, first, lifted the automatic stay in order to enable Joseph Cabella to proceed with his foreclosure sale, and second, pursuant to Bankruptcy Rule 9011, imposed sanctions against the Debtor’s attorney, Malka Isaak, because of Ms. Isaak's repeated disregard “not only of specific orders of this Court, but of the most basic procedural requirements of the Bankruptcy Code and of the Bankruptcy Rules.” The Order directed Ms. Isaak to pay Joseph Cabella the sum of $500 within five days of the date of the order; however, the Court later extended the time within which Ms. Isaak could pay the money to Mr. Cabella to January 9, 1986. No appeal was taken from this Order entered on December 27, 1985.
On January 6, 1986, the Debtor, through Ms. Isaak, moved for a rehearing of the matters contained in the December 27 Order. Upon rehearing, this Court, while reinstating the automatic stay, reiterated its previous conclusion that because of the repeated disregard of specific orders and the most basic procedural requirements of the Bankruptcy Code, the imposition of sanctions on Ms. Isaak was proper. Accordingly, this Court entered an order and reaffirmed its December 27 Order directing Ms. Isaak to pay Mr. Cabella. On January 31,1986, Ms. Isaak filed a Notice of Appeal from the Order entered on the Motion for Rehearing.
The matter now before the Court, presented by Mr. Cabella, seeks an order from this Court requesting the United States District Court to punish Ms. Isaak for her failure to pay the sanctions imposed on her by the Order of December 27, 1985.
Based on the record and the arguments of counsel, this Court is satisfied that the December 27, 1985, Order which imposed sanctions on Ms. Isaak is a Final Order from which no appeal has been taken, and Ms. Isaak is in contempt of this Court for her willful refusal to comply with that Order. Accordingly, it is proper that this Court order Ms. Isaak to appear before the United States District Court and show cause why she should not be punished for contempt based on her willful failure to abide by this Court’s Order of December 27, 1985.
On April 23, 1986, in an apparent attempt to escape the consequences of non*46compliance, Ms. Isaak filed a Motion to Suspend Effect of Order on Motion to Lift Stay and Motion to Impose Sanctions Against Debtor and Debtor’s Counsel and Motion to Dismiss. If this Motion is to be treated as a Motion for relief from the original Order entered December 27, it is obviously untimely and cannot be considered. If this Motion is to be treated as a Motion to stay pending appeal, it is equally without merit and cannot favorably be considered. It appears, however, that after the conclusion of the hearing on the matter now before the Court, Ms. Isaak paid the $500 to Mr. Cabella, ostensibly under protest by stating that the payment shall not be deemed to have any effect on the pending appeal. Be that as it may, it is the considered opinion of this Court, that while the belated payment may not have any effect on the pending appeal, neither does it purge Ms. Isaak of over four months of contemptuous conduct by her willful noncompliance with this Court’s valid Order entered on December 27, 1985. Accordingly, it is
ORDERED, ADJUDGED and DECREED that the Motion Seeking Order Citing Malka Isaak for Contempt be, and the same is hereby granted and this Court hereby certifies to the United States District Court that Malka Isaak is in contempt of this Court. It is further
ORDERED, ADJUDGED and DECREED that Ms. Isaak be and she is hereby ordered to appear before the United States District Court, Chief Judge William Terrell Hodges, on a date to be set by further order, and show cause, if she has any, why she should not be punished for being in contempt of this Court. It is further
ORDERED, ADJUDGED and DECREED that this matter be, and the same is hereby transferred to the United States District Court for such action as is deemed to be appropriate, and that the Clerk shall forthwith transfer the entire record relevant to this matter for disposition. It is further
ORDERED, ADJUDGED and DECREED that the Motion to Suspend Effect of Order on Motion to Lift Stay and Motion to Impose Sanctions Against Debtor and Debtor’s Counsel and Motion to Dismiss be, and the same is hereby denied. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490316/ | OPINION
EMIL F. GOLDHABER, Chief Judge:
The predominant question is whether under the Bankruptcy Act of 1898, wages earned by a debtor’s employees after confirmation of a chapter XI plan but prior to *108conversion to a liquidation proceeding have priority over prepetition wages. For the reasons expressed below, we conclude that the wages do not have priority, but rather share ratably with prepetition wages.
We summarize the facts of this case as follows:1 The debtor filed a petition for the arrangement of its debts under chapter XI of the Bankruptcy Act of 1898 (“the 1898 Act”). A chapter XI plan was proposed and confirmed, and for a time following confirmation, the debtor’s employees duly executed their duties. Numerous employees instructed the debtor to deduct from their wages, union dues, support payments or credit union payments, and the debtor made such deductions. Some time later the debtor was unable to fulfill the terms of the plan and the debtor was adjudicated a bankrupt. The case was thereby converted to a liquidation proceeding and a trustee was appointed.
The employees filed proofs of claim2 for unpaid wages and they also claimed entitlement to portions of their unpaid wages which they had formerly assigned as union dues, credit union payments and support payments. On the proofs of claim the claimants asserted that they were entitled to priority status over general, unsecured creditors. The trustee filed objections to many of these claims, challenging the claimants alleged status as administrative claimants. The trustee also assailed the employees’ right to claim union dues, credit union payments and support payments which the employees authorized but which were never made by the debtor.
The former employees claim priority under § 64 of the 1898 Act on the basis that the wages were earned after the filing of the petition. § 64 of the 1898 Act, former 11 U.S.C. § 104 (1976) (debts having priority). This section stated as follows:
SECTION SIXTY-FOUR (11 U.S.C. § 104)
§ 64. Debts Which Have Priority, a. The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment shall be (1) the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition;
* * * # sfc *
Where an order is entered in a proceeding under any chapter of this Act directing that bankruptcy be proceeded with, the costs and expenses of administration incurred in the ensuing bankruptcy proceeding, including expenses necessarily incurred by a debtor in possession, receiver, or trustee in preparing the schedule and statement required to be filed by sections 238, 378, or 483, shall have priority in advance of payment of the unpaid costs and expenses of administration, including the allowances provided for in such chapter, incurred in the superseded proceeding and in the suspended bankruptcy proceeding, if any; (2) wages and commissions, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; and for the purposes of this clause, the term “traveling or city salesman” shall include all such salesmen, whether or not they are independent contractors selling the products or services of the bankrupt on a commission basis, with or without a drawing account or formal contract;
* * * * * *
§ 64 of the 1898 Act, former 11 U.S.C. § 104(a) (1976). The employees contend that their postconfirmation wages are a cost of administration. This position would have been more clearly supportable prior to *109the repeal of § 64(b) of the 1898 Act in 1952. See, Pub.L. No. 456, ch. 579, 66 Stat. 420, 426, July 7, 1952. Section 64(b) stated as follows:
Debts contracted while a discharge is in force or after the confirmation of an arrangement shall, in the event of a revocation of the discharge or setting aside of the confirmation, have priority and be paid in full in advance of the payment of the debts which were provable in the bankruptcy or arrangement proceeding, as the case may be.
§ 64(b) of 1898 Act, former 11 U.S.C. § 104(b) (1946). Congress repealed this section and contemporaneously enacted several other provisions which determine the priority of debts incurred after confirmation of a plan which ultimately fails. See, § 381 of Chapter XI, former 11 U.S.C. § 781 (1976); § 486 of Chapter XII, former 11 U.S.C. § 886 (1976); and § 669 of Chapter XIII, former 11 U.S.C. § 1069 (1976).
In this case § 381 is applicable. In pertinent part that section states as follows:
Sec. 381. Where, after the confirmation of an arrangement, the court shall enter an order directing that bankruptcy be proceeded with—
(1) * * *
(2)the unsecured debts incurred by the debtor after the confirmation of the arrangement and before the date of the entry of the final order directing that bankruptcy be proceeded with shall, unless and except as otherwise provided in the arrangement or in the order confirming the arrangement, share on a parity with the prior unsecured debts of the same classes, provable in the ensuing bankruptcy proceeding, and for such purpose the prior unsecured debts of the same classes, provable in the ensuing bankruptcy proceeding, and for such purpose the prior unsecured debts shall be deemed to be reduced to the amounts respectively provided for them in the arrangement or in the order confirming the arrangement, less any payment made thereunder; and
(3)the provisions of chapters I to VII inclusive, of this Act, shall, insofar as they are not inconsistent or in conflict with the provisions of this section, apply to the rights, duties, and liabilities of the creditors holding debts incurred by the debtor after the confirmation of the arrangement and before the date of the final order directing that bankruptcy be proceeded with, and of all persons with respect to the property of the debtor, and for the purposes of such application, the date of bankruptcy shall be taken to be the date of the entry of the order directing that bankruptcy be proceeded with.
§ 381 of the 1898 Act, former 11 U.S.C. § 781 (1976). Section 381(2) states the general rule that obligations incurred after confirmation but before adjudication are entitled to the same priority as prepetition debts. Debts incurred during this period are not administrative debts as is indicated by the legislative history of § 381.3 H.R. Rep. No. 2320, 82nd Cong., 2d Sess. 434 (952), reprinted in 1952 U.S.Code Cong. & Admin.News 1960, 1971. As applied to the case under scrutiny, the wages earned after confirmation but prior to adjudication are not administrative obligations. These claims share on a par with prepetition *110wages, except that the prepetition claims are deemed reduced by the amounts provided in the plan of arrangement. Consequently, the wage claimants are entitled to a total wage priority of no more than $600.00 per claimant rather than an administrative priority for each entire claim. § 64(a) of the 1898 Act, former 11 U.S.C. § 104(a) (1976).4
The second issue confronting us is whether the wage claimants are entitled to claim union dues, support payments or credit union payments, which were not deducted from the claimants’ salaries notwithstanding their directions contrariwise. The claimants cite case law holding that assigned claims generally have the same priority in the hands of the assignee as they did while in the possession of the assignor. Shropshire, Woodliff and Co. v. Bush, 204 U.S. 186, 27 S.Ct. 178, 51 L.Ed. 436 (1907). The trustee contends that since it appears that the wages have, in fact, been assigned, the wage claimants have no standing to request disbursement of the funds. We conclude that the trustee is correct. The claimants have no standing to assert a claim for wages they assigned. The assignees are the proper parties to assert the claims.
We will accordingly enter an order sustaining the trustee’s objection to the asserted status of certain wage claims as administrative claims. We will also sustain the trustee’s objection to those portions of certain wage claims which request payment of assigned wages.
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. The claims were assigned claim numbers 155, 157-162, 165, 167-171, 173, 175-219 and 230-231.
. The legislative history of § 381 in 1952 states that:
Accordingly, the new sections deal with the rights, duties, and liabilities of the creditors holding unsecured debts incurred by the debt- or after confirmation of the arrangement or plan and before entry of the order directing bankruptcy, and also established the basis for sharing the ensuing bankruptcy liquidation between the new and the old provable unsecured debts. As to the debts incurred by a receiver or trustee, or by a debtor in possession, during the proceeding and before the debtor takes over the property upon confirmation of the arrangement or plan, such debts are already adequately cared for as administration costs and, thus, require here no special or further treatment.
H.R.Rep. No. 2320, 82nd Cong., 2d Sess. (1952), reprinted in 1952, U.S.Code Cong. & Admin. News 1960, 1971; see also, 9 Collier on Bankruptcy ¶[ 10.19 (14th ed. 1978).
. In arguing against this result the employees cite three cases, the first of which is Wil-Low Cafeterias, Inc., 111 F.2d 429 (2d Cir.1940). This case is inapposite to the issue at hand since (1) the case was decided prior to the 1952 amendments to the 1898 Act and (2) no con-firmable plan of arrangement was presented. The second case, In Re Capital Service, Inc., 136 F.Supp. 430 (S.D.Cal.1955), differs from the case at bench in that no chapter XI plan of arrangement was ever confirmed. The third case, In Re W.T. Grant Co., 17 Collier Bankr.Cas. (MB) 687 (Bankr.S.D.N.Y. June 7, 1978), we find unpersuasive since no mention is made of § 781, which is the controlling provision at issue in our case. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490317/ | OPINION
EMIL F. GOLDHABER, Chief Judge:
A resolution of this case hinges on whether funds, deposited by prospective purchasers of the debtor’s assets into a bank account opened in the name of the debtor, are property of the estate. In reviewing applicable law, we conclude that an additional evidentiary hearing should be held in order to adjudicate the rights of the parties as to the bank account.
The facts of this dispute are as follows:1 In October of 1983, Thomas Mahoney (“Ma-honey”) and Marvin Greenberg (“Green-berg”) conditionally agreed to purchase the stock of the debtor for the sum of $1.00 and an assumption of its liabilities. The sale was contingent on the success of Ma-honey and Greenberg in negotiating reductions in the claims of the debtor’s obligees.
To facilitate the conditional purchase, Mahoney and Greenberg opened a savings account and a checking account a month later at First Pennsylvania Bank with funds provided by Mahoney with the consent of the debtor. Apparently in an effort to minimize any disruption between the debtor and its trade creditors during the intended change of ownership, the accounts were opened in the name of the debtor. Mahoney and Greenberg were authorized to sign checks, and did so in order to pay some of the debtor’s current bills. The parties agreed that funds disbursed from the account to satisfy the debtor’s obligations, represented funds advanced by Mahoney and Greenberg to the debtor. In addition, an officer and sole shareholder of the debtor occasionally deposited into the account checks payable to the debtor.
One month later Mahoney and Green-berg discovered that the debtor had substantially understated its liabilities and consequently the purchase agreement disintegrated. Mahoney and Greenberg then withdrew all of the funds remaining in the bank accounts. In short order the debtor filed a petition for relief under chapter 7 of the Bankruptcy Code (“the Code”) and we appointed a trustee to administer the case.
The trustee then commenced the instant adversary proceeding in order to recover the sum of $8,767.48, withdrawn by Maho-ney and Greenberg from the accounts. The trustee argues that the funds were property of the estate and that their withdrawal constituted a preferential transfer which is avoidable under 11 U.S.C. § 547(b).2
The law in Pennsylvania is that funds deposited in a bank account presumptively belong to the party named on the account. Egbert v. Payne, 99 Pa. 239 (1882). A party seeking to oyercome this presumption must bear the burden of proof on that issue. Id.
As applied to the case at bench, it is clear that Mahoney and Greenberg have over*115come the presumption enunciated in Egbert v. Payne by establishing that the funds in the bank accounts were initially theirs. The clarity of this view is blurred on consideration of the fact that funds belonging to the debtor were deposited into the account by the debtor. The evidence introduced at the hearing was insufficient for us to determine the amount of money deposited by Mahoney and Greenberg and the amount deposited by the debtor, as well as the amount and the application of money disbursed from the accounts.
We believe justice will best be served by holding another hearing on the matter to determine these essential facts, rather than resolve the case at this point by applying the burden of proof. We will accordingly fix a hearing date.
. This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052.
. 11 U.S.C. § 547(b) provides as follows:
§ 547. Preferences
(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
*115(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider;
(5)that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490318/ | MEMORANDUM OPINION
WILLIAM A. KING, Jr., Bankruptcy Judge.
The defendant in this adversary proceeding has filed a motion for abstention or dismissal. For the reasons stated herein, the motion will be denied.
The relevant facts are;
An involuntary petition under Chapter 7 of the Bankruptcy Code (“Code”) was filed against Windsor Communications Group, Inc. t/a Norcross-Rust Craft Greeting Card Publishers (“Windsor”) on August 5, 1982. Windsor converted the case to a case under Chapter 11 on August 25, 1982.
On February 9, 1984, Windsor commenced the instant adversary proceeding against Philadelphia Electric Company (“PECO”). The complaint alleges that a series of preferential transfers were made to PECO. Recovery of these alleged preferential payments is sought pursuant to 11 U.S.C. § 547. The complaint also seeks to avoid certain post-petition transfers pursuant to 11 U.S.C. § 549.1
*128The motion to abstain or dismiss the complaint was filed by PECO on April 2, 1984.
The first issue presented is whether we should abstain from hearing the instant proceeding. In its motion, PECO argues that we should abstain from exercising jurisdiction because to do so would invade the province of a predominant state interest in regulating rates and procedures governing utilities. We are not persuaded by PECO’s argument because we do not believe that the prosecution of a preference action will have an effect on the state’s regulation of its utilities. Rather, the basic goal of the preference provision is to secure the equal distribution of the debt- or’s assets among its creditors. Cohen v. Kern (in re Kennesaw Mint, Inc.), 32 B.R. 799 (Bankr.N.D.Ga.1983). A preference action allows a debtor or trustee to recover assets for the benefit of all of the estate’s creditors, thereby ensuring that no one creditor is put in a better position than another creditor of the same class based uklpon the date when it received the transfer. The application of federal bankruptcy law in this limited context does not interfere with the state’s right to regulate rates, billing procedures, or the activities of its utility companies.
Our jurisdiction over this action is predicated upon 28 U.S.C. §§ 1334 and 157(b)(1) (1984), and 11 U.S.C. § 547 and 549. Section 1334 provides that the district courts shall have original and exclusive jurisdiction of all cases under title 11, and original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11. Under 28 U.S.C. § 157, each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 shall be referred to the bankruptcy judges for that district. By Referral Order of July 25, 1984, the United States District Court for the Eastern District of Pennsylvania referred all cases and all proceedings arising under title 11 in this District, with the exception of personal injury tort and wrongful death claims, to the bankruptcy judges for this District.
Bankruptcy judges may hear and enter final orders on all “core” proceedings. 28 U.S.C. § 157(b)(1). “Core” proceedings include, but are not limited to, proceedings to determine, avoid, or recover preferences. 28 U.S.C. § 157(b)(2)(F). Therefore, this Court is the exclusive forum in which the debtor may bring this action. Because the Bankruptcy Court is the exclusive forum, abstention is clearly inappropriate.2 To deny a hearing on this complaint would preclude the debtor from availing itself of a right provided by federal law. Accordingly, PECO’s request for abstention will be denied.
The second issue for consideration is whether the complaint states a claim upon which relief may be granted.
For the purposes of ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), applicable to this proceeding through Bankruptcy *129Rule 7012 (b), the court is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. Barr v. Freedman (In re Alstead Automotive Warehouse, Inc.) 24 B.R. 131, 132 (Bankr.E.D.N.Y.1982). Furthermore, all allegations of the complaint are deemed admitted. Dampskibsselskabet AF 1912 v. Black & Geddes, Inc. (In re Black & Geddes, Inc.), 16 B.R. 148, 151 (Bankr.S.D.N.Y.1981).
The general rule is that the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The factual allegations must be viewed in the light most favorable to the plaintiff. Hishon v. King & Spalding, 464 U.S. 959, 104 S.Ct. 2229, 2233, 78 L.Ed.2d 334 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); 2A Moore’s Federal Practice ¶ 12.-08 (2d ed. 1982).
Here, the complaint alleges that payments in the amount of $125,509.13 to PECO constitute preferences which may be avoided under § 547 of the Code. The complaint also alleges that transfers in the amount of $27,708.98 to PECO are subject to avoidance under § 549 of the Code. In moving for dismissal of the complaint on the basis of failure to state a claim, PECO does not challenge the sufficiency of the allegations made; rather, PECO argues that § 547 does not apply to state-regulated utilities.3
The issue of whether state-regulated utilities are subject to preference actions has already been decided in this District. See Brooks Shoe Manufacturing Company, Inc. v. Metropolitan Edison Co. (In re Naudain, Inc.), 32 B.R. 871 (Bankr.E.D.Pa.1983).4 In Naudain, our colleague, Chief Judge Goldhaber, held that two (2) payments to the defendant, Metropolitan Edison Company, could be avoided by the debt- or pursuant to § 547 (b) of the Code.
Furthermore, the legislative history of § 547 evinces a clear Congressional intent to include utilities within the class of creditors subject to the provisions of § 547, rather than exclude them. In addressing the various defenses available to creditors under § 548 (c), Congress noted that one of the statutory exceptions to the trustee’s avoidance power was enacted to protect “such non-business activities as payment of monthly utility bills.” See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 373-374 (1977); S.Rep. No. 95-989, 95th Cong., 2d Sess. 88 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5874, 6329.
PECO’s argument that utilities should be exempt from the preference provisions of the Code is apparently based on PECO's belief that the defense of § 547(c)(2)5 is unavailable to it due to the Naudain decision. However, it seems inappropriate to *130address PECO's arguments vis-a-vis § 547(c)(2) on a motion to dismiss for failure to state a claim; therefore, we will allow PECO to raise this issue at trial. All that need be decided at the present time is whether a utility is subject to the provisions of § 547(b). Having determined that it is, we find that the complaint states a valid cause of action under § 547(b).
The third issue is whether Count II of the complaint should be dismissed for failure to state a valid cause of action. Count II alleges that the debtor made transfers in the amount of $27,709.96 to PECO during the gap period between the filing of the involuntary petition and the entry of the Order for Relief, which may be avoided under § 549.
Although PECO’s motion was brought pursuant to Fed.R.Civ.P. 12(b)(6), PECO has presented factual evidence to the Court to prove that it advanced “new value” to the debtor. Clearly, this evidence should not be considered by the Court in ruling on a Rule 12(b)(6) motion. Although Rule 12(c) of the Federal Rules of Civil Procedure provides that a motion for judgment on the pleadings may, when accompanied by matters outside the pleadings, be treated as a motion for summary judgment, sufficient material facts are in dispute here to preclude the Court from treating the instant motion as a summary judgment motion.
As stated previously, the material allegations of a complaint must be deemed admitted, and the facts must be viewed in the light most favorable to the plaintiff, when ruling on a Rule 12(b)(6) motion. Black & Geddes, Inc., 16 B.R. at 148. If the plaintiff has alleged sufficient facts, which, if proven, would warrant the granting of some relief, then the complaint is adequate and will withstand a Rule 12(b)(6) challenge. In accordance with this standard, we find that sufficient facts have been pled by Windsor to set forth a cause of action under § 549. We cannot state with any degree of certainty that Windsor would not be entitled to any relief on the basis of the facts alleged. Accordingly, PECO’s request for dismissal of Count II of the complaint will be denied.
The fourth issue before the Court is whether this action should be dismissed for failure to join the Commonwealth of Pennsylvania as an indispensable party.
The term “indispensable party” is a term of art. Rule 19 of the Federal Rules of Civil Procedure, made applicable to this proceeding through Bankruptcy Rule 7019, provides that the court shall order the join-der of a party if:
(1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.
Fed.R.Civ.P. 19(a). If the party cannot be joined, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should it be dismissed, the absent person thus being regarded as indispensable.” Fed.R.Civ.P. 19(b).
Although no prescribed formula exists for determining whether a person is an indispensable party, the concept includes elements of prejudice, equity, and good conscience. An indispensable party possesses a material interest in the controversy. Lang v. Windsor Mount Joy Mutual Inc. Co., 487 F.Supp. 1303, 1307 (E.D.Pa.), aff'd, 636 F.2d 1209 (3d Cir.1980).
PECO claims that it has paid six percent (6%) of the value of the transfers it received from Windsor to the Commonwealth of Pennsylvania as sales tax. Therefore, PECO requests the Court to determine that the Commonwealth is an indispensable party, which has not been joined, and that the failure to join the Com*131monwealth warrants dismissal of this action.
We cannot accept PECO’s argument for two (2) reasons. First, it does not appear that the Commonwealth is a necessary party to this action. There are no allegations that the Commonwealth will be prejudiced if this action is continued, or that PECO cannot maintain a separate action against the Commonwealth to recover the sales tax if Windsor prevails in this action. On the other hand, Windsor would be substantially prejudiced by its dismissal. Second, even if this Court should determine that the Commonwealth is a necessary party and should be joined, joinder is feasible. Therefore, we conclude that the complaint should not be dismissed for failure to join an indispensable party.
The final issue raised by PECO is whether the complaint should be dismissed due to illegality. PECO’s assertion of illegality is premised upon 66 Pa.Cons.Stat. Ann. §§ 1303 and 1304 (Purdon 1976). According to PECO, these provisions prohibit it from varying the rates charged for utility service between customers.
Once again, we reiterate our view that a preference action under the Bankruptcy Code does not implicate the rates charged to customers by utility services. Congress has determined that a creditor, who would be unsecured but for the receipt of a payment within a 90-day period preceding the filing of the bankruptcy petition, must return that payment to the debtor’s estate for distribution in accordance with the provisions of the bankruptcy laws. This federal policy in no way directs the utility companies to charge different rates for customers who file for protection under the bankruptcy laws than for customers who do not file for such protections. Thus, PECO’s argument that the complaint requests relief which constitutes a prima facie violation of state law is without merit. Accordingly, the motion to dismiss on the basis of illegality will be denied.
. § 547. Preferences.
(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider;
(5)that enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
*128(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
§ 549. Postpetition transactions.
(a) Except as provided in subsections (b) or (c) of this section, the trustee may avoid a transfer of property of the estate—
(1) made after the commencement of the case; and
(2)(A) that is authorized only under section 303(f) or 542(c) of this title; or
(B) that is not authorized under this title or by the court.
§ 303. Involuntary cases.
(f) Notwithstanding section 363 of this title, except to the extent that the court orders otherwise, and until an order for relief in the case, any business of the debtor may continue to operate, and the debtor may continue to use, acquire, or dispose of property as if an involuntary case concerning the debtor had not been commenced.
. The legislative history to former 28 U.S.C. § 1471(d) (repealed 1984) indicated that:
The bankruptcy courts will not abstain, however, when no other court, Federal, State, or local, has jurisdiction over the proceeding in question. That clearly would not be in the interest of justice.
H.R.Rep. No. 595, 95th Cong., 1st Sess. 446 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6401; see also 1 Collier on Bankruptcy ¶ 3.01[l][f] (15th ed. 1984).
. This section of PECO’s motion related only to Count I of the complaint which seeks recovery of a preferential transfer pursuant to § 547 of the Code. PECO has not specifically addressed the applicability of § 549 to state-regulated utilities. Nevertheless, by analogy, the reasoning advanced by the Court on the applicability of § 547 to utilities is also applicable to § 549.
. For other cases holding that utilities are subject to § 547 (b), see Keydata Corporation v. Boston Edison Company (In re Keydata Corp.), 37 B.R. 324 (Bankr.D.Mass.1983) and Thomas W. Garland, Inc. v. Union Electric Company (In re Thomas W. Garland Inc.) 19 B.R. 920 (Bankr.E.D.Mo.1982).
. Section 547(c)(2) provides:
(c) The trustee may not avoid under this section a transfer—
(1) to the extent that such transfer was—
(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and
(B) in fact a substantially contemporaneous exchange;
(2) to the extent that such transfer was—
(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms; | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490319/ | OPINION
WILLIAM H. GINDIN, Bankruptcy Judge.
This matter arises from cross-motions for summary judgment. (Bankr.R. 7056, F.R.Civ.P. 56) The plaintiff/debtor Nami Brothers, Inc., (hereinafter referred to as “Nami”), brought suit to recover a preference in the amount of $9,604.91 paid to Pat Pavers, Inc., (hereinafter referred to as “Pat Pavers”), in violation of § 547(b) of the Bankruptcy Code 11 U.S.C. § 547(b).
Nami was a general contractor for the performance of site work on a building located in Princeton, New Jersey. The general contractor was John S. McQuade of Philadelphia (hereinafter referred to as “McQuade”). Certain paving work was subcontracted by Nami to Pat Pavers. On May 9, 1983, Pat Pavers submitted a bill to Nami in the total amount of $10,672.00. Shortly thereafter, Nami submitted a bill to McQuade which included the amount claimed of $10,672.12, less a 10% holdback of $1,067.21, for a net claim of $9,604.91. Nami then added claims of its own of $3,397.00, claiming the total amount of $13,001.91 as the balance due.
On July 22, 1983, Nami received a check from McQuade in the amount of $12,009.60. No evidence was presented indicating the exact manner in which McQuade calculated the $12,009.60. On the same day that Nami received the check from McQuade, it paid Pat Pavers the sum $9,604.91. On September 19, 1983, less than 90 days thereafter, Nami filed a petition for relief under Chapter 11 of the Bankruptcy Code.
Section 547(b) of the Bankruptcy Code provides:
Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property—
(1) to or for the benefit of a creditor;
*161(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made—
(A) on or within 90 days before the date of filing of the petition; or
(B) between 90 days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider;
(5) That enables such creditor to receive more than such creditor would receive if—
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
Subsection (f) of § 547 provides:
For the purpose of the section, the debt- or is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition.
In the instant case, all of the elements of a preference have been met. The transfer was to or for the benefit of Pat Pavers, and was for a debt which was owed at least before May 9, 1983. The debtor is presumed to have been insolvent and it was made within 90 days before the date of filing. It is conceded that Pat Pavers would receive more if allowed to retain the funds than it would have received on liquidation had the transfer not been made.
Thus, the only basis upon which the finding of a preference can be avoided is if it had been made in the ordinary course of business under § 547(e) or pursuant to some kind of trust fund theory. While the Code, § 547(c), as amended in 1984 simply makes an exception for the ordinary course of business, the Code as it read at the time of the transactions under scrutiny here required that in order to be considered in the ordinary course of business, transfer had to have taken place “not later than 45 days after such debt was incurred.”
Pat Pavers relies on a theory that the monies transferred to it were in fact identifiable trust funds received by Nami from McQuade and earmarked for Pat Pavers. They rely essentially on an argument set forth in Selby v. Ford Motor Co., 590 F.2d 642 (6th Cir.1979). Essentially, that case held that a Michigan statute specifically defining funds in the hands of a general contractor paid by “any person” to that contractor were to be considered trust funds. Mich.Comp.Laws Ann. § 570.151 (1967). Furthermore, Circuit Judge Merritt, by way of dicta, suggested “an equitable assignment or an equitable lien.” 590 F.2d 642, 648. The cases relied upon by Judge Merritt, however, do not support the factual pattern in the instant case. In Johnson v. Root Mfg. Co., 241 U.S. 160, 36 S.Ct. 520, 60 L.Ed. 934 (1914), Justice Holmes interpreted the written agreement in that particular case to be one which created an equitable lien.
The case of American Service Co. v. Henderson, 120 F.2d 525 (4th Cir.1941) involved the tracing of funds which had been held pursuant to an express trust and had been unlawfully distributed. In the case of Keenan Pipe and Supply Co. v. Shields, 241 F.2d 486 (9th Cir.1956), the court was dealing with an express intent to create a trust fund evidenced by the issuance of a check payable both to the subcontractor and a materialman. Furthermore, that case involved a public works project governed by the establishment of a trust fund for public works projects. Similarly, in In re J.V. Gleason Co., 452 F.2d 1219 (8th Cir.1971), the court dealt with equitable subrogation as a claim by a surety which in fact had completed performance on contracts, paid claims, and sought to obtain the retainage specifically held back for those particular subcontractors and materi-alman. Circuit Judge Gibson denied an equitable lien claim while accepting the equitable subrogation reasoning.
Even in the case of Carrier Corp. v. J.E. Schecter Corp., 347 F.2d 153 (2nd Cir.*1621965), where the Court was dealing with New Jersey law, the basic reliance was not upon the equitable principles set forth in the opinion. The Court there, through Circuit Judge Swan, impressed the funds with a trust based upon N.J.S.A. 2A:102-11, dealing with a request by subcontractor to impress a trust. Judge Swan read into that section a civil remedy and to some extent avoided the question of whether the statute was essentially criminal in nature. The amendment of the criminal laws of the State of New Jersey has codified that section in N.J.S.A. 2C:20-9 and defines a failure to make “specified payment” as theft.
In the instant case, the facts are such that no finding of failure to make specified payment can be made. An examination of the figures involved leaves merely confusion. Pat Pavers urges that it is due the $9,604.91. The bill submitted was apparently for $13,001.91, and the amount received was for $12,009.61. If McQuade held back 10% of the full amount, the check which would have been remitted would have been $11,701.72. If, on the other hand, it recognized that Nami had already exercised the 10% retainage on the Pat Pavers claim and only reduced Nami’s other claims by 10%, it would have remitted $12,662.21. Thus, by no mathematical formula can the amount received by Nami be made to come out to the specific amount due pursuant to the submission to McQuade of $9,604.91, plus $3397.00. In the absence of specific proofs which are apparently unavailable, there can be no tracing of the funds.
On the other hand, the purposes of the bankruptcy law as outlined in support of the Nami position must be controlling. Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966) broadly defines “property” and leaves to the interpretation of the bankruptcy law itself (and by inference the Bankruptcy Code), a definition of any given transaction. In In re Shore Air Conditioning, 18 B.R. 643 (D.N.J.1982), Judge Stark, in this District, denied the right of a subcontractor to claim a trust fund in the hands of a contractor for the payment of materialmen. In a situation the exact reverse of the instant one, the Court held that allowance of the claim of the subcontractor would be “detrimental to other creditors and the entire distribution of the estate”. 18 B.R. 643, 647. Colliers sets forth in detail the requirement the claimant must meet:
When property of the estate is alleged to be held in trust, the burden rests upon the claimant to establish the original trust relationship. He must prove his title, identify the trust fund or property, and where the fund or property has been mingled with the general property of the debtor, the claimant must sufficiently trace the property. However, if it cannot first be shown that a trust has been created, there is no necessity for inquiry as to whether or not the property can be identified or traced. 4 Collier on Bankruptcy, 541-71 II 541.13 (15th ed.)
Finally, the particular position of Pat Pavers was specifically rejected by Circuit Justice Tate in Georgia Pacific Corp. v. Sigma Service Corp., 712 F.2d 962 (5th Cir.1983). Absent actual proof of a trust fund, same does not exist and there is no authority to impose it within the framework of the Bankruptcy Code.
Based upon the foregoing, this Court concludes that the plaintiff/debtor Nami Brothers, Inc. is entitled to summary judgment and has this day executed the order previously submitted by Nami granting summary judgment in favor of the plaintiff and against the defendant in the amount of $9,604.91. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490321/ | MEMORANDUM
CLIVE W. BARE, Bankruptcy Judge.
As in Associates Capital Corp. v. Cookeville Production Credit Ass’n, 569 S.W.2d 474 (Tenn.Ct.App.1978), the issue in this case is whether a mobile home that has had its wheels removed and has been affixed to realty is subject to the Tennessee Motor Vehicle Title and Registration Law, Title 55 of the Tennessee Code. If so, the security interest of Transouth Financial Corporation (Transouth), noted on a certificate of title to the home, is perfected and takes priority over the deed of trust of First National Bank and Trust Company (Bank), whose lien is not noted on the certificate. On the other hand, if Title 55 is not applicable the Bank’s deed of trust and security agreement entitle it to priority. Resolution of this issue will determine which creditor’s claim will be allowed as a secured claim in this Chapter 13 case.
In 1984 the Bank financed the purchase of a used mobile home for the debtors. On April 25, 1984, the debtors executed a trust deed to secure the Bank in the sum of $17,400.00. (This amount apparently includes precomputed interest.) The debtors *567conveyed in trust to the Bank a tract of 3.26 acres and a 20' right of way. Further, the deed of trust recites: “There is also conveyed herewith a 1980 Classic Mobile Home, 75 x 14 feet, Serial Number 8931 ... with the hereditaments and appurtenances thereto appertaining....”1
The deed of trust was recorded in the Roane County Register’s Office on May 9, 1984. As stated heretofore the Bank did not cause its lien to be noted on the certificate of title.
In July 1985, the debtors approached Transouth for a loan on the mobile home, furnishing them with a “clear” certificate of title. Transouth inspected the mobile home and on July 22, 1985, made a loan to the debtors in the amount of $6,015.28. The debtors executed a note and security agreement pledging the mobile home as collateral for the loan. The debtor, Jimmy Lee Miller, testified he advised Transouth of the prior loan by the Bank. Transouth disputes this statement. On August 12, 1985, Transouth caused its lien to be noted on the certificate of title as “First Lienholder.”
The wheels were removed from the mobile home when it was placed on the debtors’ property. The wheels apparently belonged to the seller and were used only to move the mobile home from the dealer’s lot to the debtors’ property. The mobile home was set on blocks, “tied-down,” and connected to a septic tank and utility outlets. Central heat and air conditioning was installed. Also, a back porch was built.
II
The facts in this case are almost identical to those in Associates Capital Corp. v. Cookeville Production Credit Ass’n, supra. Associates involved a 12' x 65' mobile home. To secure a purchase-money loan of $51,286.00 from the Cookeville PCA, Gaw and Adams executed a deed of trust conveying certain realty “together with all buildings and improvements thereon or hereafter erected thereon and all rights and appurtenances thereto belonging. ...” The deed was properly recorded in the Jackson County Register’s Office. Subsequently, Gaw borrowed $5,256.00 from Associates Capital Corporation. In a note and security agreement dated April 12, 1974, Gaw and his wife granted Associates a security interest in a 1971 Capella mobile home to secure payment of the note. The security agreement contained the Gaws’ warranty that the collateral was free of all security interests, liens and encumbrances. Associates entered its name as “1st lienholder” on a motor vehicle certificate of title, which was certified by the Commissioner of the Department of Revenue on May 31, 1974.
The central issue before the court was whether the Capella mobile home was subject to the certificate of title provisions of chapters 1 and 3 of former Title 59 of the Tennessee Code.2 The Tennessee Court of Appeals, in an opinion of Judge Drowota (now Justice Drowota), held that it was not. After discussing former Title 59, the court stated:
We conclude that the above described provisions of Title 59 did not apply to the Capella home at the time the deed of trust to defendant was executed and recorded, because the home did not qualify at that time as a “mobile home” under the definition given in § 59-105(d). In October of 1973, the home in the instant case was not “designed for travel upon the public highways,” nor was it so designed when Gaw and Associates executed their security agreement on April 12, 1974. The quoted phrase necessarily implies that a “mobile home” under the statute is either one that is in a condition to act as a conveyance over the public highways or one that may, with a relatively reasonable amount of effort, be reconverted into such a condition. The *568Capella home in the instant case does not meet that description.
Our decision that the Capella home was not “designed for travel upon the public highways” in October of 1973 and April of 1974 is the product of several factors, no one of which is conclusive in and of itself. First the Chancellor found that the home was legally a fixture to the realty, a finding supported by the evidence and by the authority defining fixtures in Tennessee. See Dudzick v. Lewis, 175 Tenn. 246, 133 S.W.2d 496 (1939); Fuson v. Whitaker, 28 Tenn.App. 338, 190 S.W.2d 305 (1945). In addition, all of the evidence on the nature and extent of the home’s affixation to the realty, summarized above, is a factor supporting the conclusion that the home was not “designed for travel upon the public highways.” Another very important factor is the size of the home, sixty-five feet long by twelve feet wide. Also, although there were once wheels on the home, these were removed and disposed of by the owner subsequent to installation. The only reason for ever having wheels on the home at all was so that it could be transported to its place of affi-xation. These are the primary elements that lead us to conclude that the home was not “designed for travel upon the public highways” under § 59-105(d) during October of 1973 or April of 1974.
Associates, 569 S.W.2d at 477-78.
The decision of the Tennessee Court of Appeals in Associates controls the dispute between the Bank and Transouth. It therefore follows:
(1) That the First National Bank and Trust Company, by reason of its properly recorded deed of trust, holds a perfected lien against the mobile home involved in this dispute; and
(2) That Transouth Financial Corporation holds an unperfected lien against the mobile home, subordinate to the rights of the trustee in bankruptcy. 11 U.S.C.A. § 544(a) (West Supp.1986).
This Memorandum constitutes findings of fact and conclusions of law, Bankruptcy Rule 7052.
. The debtors also executed a security agreement to the Bank pledging the mobile home as security for the debt.
. The Tennessee Motor Vehicle and Registration Law has been recodified as Title 55 since the Associates case was decided. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490322/ | DECISION AND ORDER RE RIGHT TO ARBITRATE
BURTON PERLMAN, Bankruptcy Judge.
In this Chapter 11 case, a hearing was held pursuant to our Decision and Order entered December 10, 1985. 58 B.R. 6. That Decision and Order dealt with Union’s Application to Lift Stay to permit it to arbitrate six grievances specified in the Application. In our aforementioned Decision and Order, we denied Union’s application to lift the stay pending a final hearing to determine whether the employees asserting grievances had complied with the contractual procedures set forth in the collective bargaining agreement for invoking arbitration. This was the agenda for the present hearing. The original Application set forth grievances as to six employees. In the Joint Pretrial Statement filed by the parties in advance of the hearing, the parties stipulated that Union’s application for relief was withdrawn as to Sandra Christ-man, Jackie Lanier and Billie Lykins. At the hearing itself, the parties orally stipulated that the application for relief was withdrawn also as to employee Randy De-board. The grievances of two individuals remain the subject of the present proceeding, Ernie Rice and Rita Porter. The parties further stipulated that with respect to the two remaining grievants, steps 1 and 2 of the grievance procedure were complied with.
There was in effect at the time of the occurrences which are the subjects of grievance, a collective bargaining agreement containing the following:
ARTICLE XVI
GRIEVANCE PROCEDURE
Section 1. A grievance is defined as a dispute an Employee or the Union may have with the Company relating to the interpretation, application or violation of the express terms of this Agreement. Should the Union or the Employee have a grievance, an earnest effort shall be made to adjust such grievance promptly and in the following manner:
Step 1. The Aggrieved Employee, or the Chief Steward, or Shift Steward involved, if the grievance is to be filed on behalf of the Union, shall within three (3) working days after the event has occurred giving rise to the grievance, orally discuss the grievance with the Employee’s immediate Supervisor. If'the matter is not settled within two (2) working days after the discussion, the grievance may orally be presented to the Plant Manager under Step 2.
Step 2. The Chief Steward shall orally discuss the grievance with the Plant Manager within two (2) working days, if possible, but in no event later *647than four (4) working days from the date the grievance was denied under Step 1. If the matter is not satisfactorily resolved within two (2) working days after said discussion the grievance shall be reduced in (sic) writing, signed and dated, and referred to Step 3.
Step 3. Within two (2) working days after the denial of the grievance by the plant manager in Step 2, the grievance, which has now been reduced to writing, shall be filed with the Company officer or his official representative. The Company, or its official representative, shall arrange for a conference among the Company Representative, the Chief Steward, Shift Steward involved, aggrieved Employee and the Business Manager. The Business Manager may, if he desires, request the presence of the Union Committee member involved. The conference shall be held within five (5) working days after the written grievance has been filed with the Company officer and it shall be held during the hours specified in this Agreement. The Company shall render a written decision within two (2) working days after the above conference meeting. In the event Step 3 fails to satisfactorily settle the grievance, the Union may submit the grievance to Arbitration by serving written notice of its intention to arbitrate on the Employer within ten (10) days from the date of the Company’s decision in Step 3.
Section 2. All grievances, answers and notices, when required to be in writing shall be prepared in duplicate, one for the Employer and one for the Union. Either party to this Agreement shall be permitted to call Employee witnesses at each and every step of the Grievance Procedure.
Section 3. Any Grievance or answer, which has not been presented under the Grievance Procedure within the time period for the presentation or answer or grievance which is not appealed to the next Step of the specified herein, shall be considered as settled, unless one of the parties is not present on the Company’s premises. This provision shall apply to the grievances by Employees and the Union and to the Employer’s answers to grievances.
Section 4. In reducing a grievance to writing, the following information shall be stated with reasonable clearness:
The exact nature of the Grievance, the act or acts complained of and when they occurred, the identity of the. Employee or Employees who claim to be aggrieved, the provisions, if any, of this Agreement that the Employee claims the Employer has violated, and remedy they seek.
Section 5. All time limits specified in this Article XV exclude Saturdays, Sundays, observed Holidays and scheduled days off for the parties involved. Any of these time limits may be extended for a reasonable and specified time by request of either party to the other party, prior to the expiration of the time limit.
As we have already said, the parties stipulated that Steps 1 and 2 of the grievance procedure were complied with. That is, there was an oral discussion of the grievance between the employee or a steward with the employee’s immediate supervisor, within three (3) working days after the occurrence grieved. In addition, timely oral discussion of the grievance was held between the chief steward and the plant manager. These steps did not resolve the grievances. The evidence established that each of the grievances was reduced to writing, signed and dated, and was filed with the appropriate company officer. The issue here is whether these respective filings were timely.
In respect to Ernie Rice, the writing prepared pursuant to Step 2 of the grievance procedure states that the date that the grievance occurred was February 28,1985. The writing is dated March 1, 1985. (The writing indicates that Rice was classified as a maintenance worker and that the nature of his grievance was that he was unjustifiably discharged.) There are spaces at the *648bottom of the page to record “Foreman’s Answer” and “Plant Manager’s Answer”. In Rice’s case, neither of these portions of the form is filled out.
The grievance of Rita Porter was also the subject of a writing which states that the grievance occurred on March 1, 1985. The writing is dated March 1, 1985. The writing indicates that the nature of the grievance is unjust discharge. In the case of this grievance, the portion of the sheet at the bottom of the page bears the response of the plant manager to the grievance. In this instance, he states that the discharge was justifiable for habitual absenteeism. The date, March 1, 1985, appears here as well.
By a separate writing dated March 5, 1985 in respect to the Rice grievance, Porter, on behalf of the employer, responded that the company believed that the discharge was for just cause.
In accordance with the Step 3 provision of the grievance procedure section of the collective bargaining agreement, we note that if a grievance is not satisfactorily settled in accordance with the preceding portions of Step 3, which call for the company finally to render a written decision after a conference, the Union may have the grievance submitted to arbitration by serving a written notice of an intention to arbitrate within ten (10) days from the date of the company’s decision, i.e., in writing, in accordance with Step 3. We see that with respect to Porter, the employer’s Step 3 response is dated March 1,1985. In regard to Rice, the employer’s Step 3 response is dated March 5, 1985. The Union, then, in conformity with the last sentence of Step 3, served a written notice of its intention to arbitrate by means of a letter which was dated March 12,1985. The letter, however, was received by the employer in an envelope bearing a postmark including the date March 20, 1985. Attached to the letter were three forms headed “Federal Mediation and Conciliation Service — Request for Arbitration Panel”. The information on each of the three forms was written in. That for Porter was dated March 16, 1985, while that for Rice was dated March 12, 1985.
We find as a fact, based upon this evidence, particularly the postmark date, that the Union failed to comply with Step 3 of the grievance procedure regarding invoking arbitration. This was not done “within ten (10) days from the date of the Company’s decision in Step 3.”
It is the contention of the Union that even if the notice to the employer regarding arbitration was late, and thereby the collective bargaining agreement was not complied with, that there was a custom and practice of not abiding by the time limitations of the contract grievance procedure, and that the custom and practice was acquiesced in by both employer and Union. In support of this proposition, the Union relies upon the testimony of its representative that this debtor had never refused any matter regarding grievance on the grounds that the time limit had not been met. Ralph Kinsworthy, on behalf of the debtor, to the contrary, testified that the time periods regarding grievances have always been abided by during his time of ownership.
We find it unnecessary to resolve this conflict in the testimony. It is a well-established proposition in the law that “... an express written contract ... cannot be varied by evidence of usage or custom which either expressly or by necessary implication contradicts the terms of such contract ...”. 21 Am.Jur.2d, § 25 at p. 747. Here, the parties bargained for the detailed and very specific grievance procedure. To have the advantage of the grievance procedure contained in the contract, the Union had to comply with that procedure. It cannot avoid the contract grievance procedure by a claim that there was a custom to ignore that procedure.
Accordingly, we have reached the conclusion that the Union, not having complied with the steps of the collective bargaining agreement necessary to demand arbitration of the Rice and Porter claims, may not proceed to arbitration, and its application to *649lift the automatic stay to permit it to do so, will be denied.
So Ordered. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490323/ | MEMORANDUM OF OPINION
JOHN C. AKARD, Bankruptcy Judge.
MONTY CARROLL RODGERS and wife, CHERI LE RODGERS (the Debtors), filed for relief under Chapter 7 of the Bankruptcy Code on April 11, 1986. On Schedule B-4 of their Petition and Schedules, the Debtors claimed as exempt the following farm equipment:
32' flat trailer
Shop made Rod weeder
1974 880 John Deere Swather
Graham chisel Plow
283 John Deere Stripper
Pop up hayloader
Round Hole trailer
Shop Equipment Welder, Torch
Panels, Water Tubs, Wire
100 rolls hay baled on halves
Sam Stevens markers
The Debtors stated that the equipment had a value of $11,900.00.
An Objection to the claim of exemptions was filed by Texas American Bank/Lev-*688elland (Bank). A hearing on the Bank’s Objections was held on July 31, 1986. At that hearing, the following items were stipulated.
a. The list of exemptions on Schedule B-4 listed Cash on Hand without any value. The Debtors stipulated that this was in error and that they were not making any exemption claim to cash on hand.
b. The Bank had objected to the Debtors’ claim of exemption to two pickup trucks. The Bank withdrew its Objection to that exemption.
c. Mr. Rodgers executed a Security Agreement to the Bank dated March 29, 1985 covering “All farm equipment, machinery, etc. now owned or hereafter acquired including all additions or substitutions.” Appropriate Financing Statements were filed on April 1, 1985 in the County Clerk’s Office of Hockley County, Texas (the county of the Debtors’ residence and the county in which the Debtors’ farm is located) and on April 2, 1985, in the Office of the Secretary of State of Texas.
d. The total value of the personal property claimed as exempt by the Debtors is less than $30,000.00.
e. The Debtors are farmers.
f. The lien held by the Bank is a non-possessory nonpurchase-money security interest and is not a judicial lien.
The Bank claims that the farming equipment cannot be claimed as exempt because it is not exempt under the Texas statutes. The Bank relies on the wording of TEX. PROP.CODE ANN. § 42.001(a) (Vernon 1984) which provides that property “is exempt from attachment, execution, and seizure for the satisfaction of debts, except for encumbrances properly fixed on the property.” The Bank points to the decision of the United States Court of Appeals for the Fifth Circuit on February 21, 1984, Allen v. Hale County State Bank (In re Allen), 725 F.2d 290 (5th Cir.1984) as holding that the Texas statute does not allow a claim of exemption in property upon which there is a valid lien.
The Debtors assert that the listed equipment is exempt under § 42.002(3) of the Texas Property Code which allows an exemption for farming implements and tools, equipment, and apparatus used in a trade or profession if reasonably necessary for the family. The Debtors further assert that they may avoid the fixing of the Bank’s lien on these items pursuant to 11 U.S.C. § 522(f).1
The Debtors cite In re Thompson, 59 B.R. 690 (Bankr.W.D.Tex.1986) wherein Bankruptcy Judge R. Glen Ayers, Jr. argues that the Allen decision is incorrect.
The United States Court of Appeals for the Eighth Circuit has concluded that 11 U.S.C. § 522(f) allows the Debtor to avoid liens on property which would otherwise be considered as exempt, even though the State statute can be read as not allowing an exemption in property upon which there is a lien. Hall v. Finance One of Georgia, Inc. (In re Hall), 752 F.2d 582 (11th Cir.1985).
The trial Judge in the Allen case was the Honorable Bill H. Brister, who was the Judge of this Court until his resignation on September 1, 1985. It was Judge Brister’s opinion in Allen which was affirmed by the *689Fifth Circuit. Subsequently, Judge Brister concluded that the 1984 Amendments of the Bankruptcy Code caused a significant change which should lead to a contrary result in the Allen fact situation. See Bris-ter, “Exemptions — A New Battleground” at p. C-22, Advanced Consumer Bankruptcy Course of the State Bar of Texas, September, 1985.
At the time of the Allen decision Debtors in bankruptcy proceedings in Texas were entitled to “stack” exemptions; that is, one spouse could take the Federal exemptions described in 11 U.S.C. § 522(d) and the other spouse could take the Texas exemptions and other non-bankruptcy Federal exemptions under 11 U.S.C. § 522(b)(2). Cannaday v. Wilson (In re Cannaday), 653 F.2d 210 (5th Cir.1981). Thus, it was a relatively easy matter of planning for one spouse to claim as exempt under the Federal exemptions the items upon which there were liens which could be avoided under 11 U.S.C. § 522(f).
The amendments to 11 U.S.C. § 522(b) in 1984 eliminated this “stacking” and stated that in joint cases, both debtors must take either the Federal or the State exemptions. If the Allen decision is followed, the effect of this statutory change would be to allow debtors who are resident in Texas to take advantage of 11 U.S.C. § 522(f) if they take the Federal exemptions, but to deny them the benefits of that section if they take the Texas exemptions. Such a result would be contrary to Texas’ long history of liberal construction of exemptions.
For these reasons, this Court respectfully declines to follow the reasoning in Allen and adopts instead the opinion of Judge Ayers in Thompson.
The list of “farm equipment” submitted by the Debtor includes “100 rolls of hay baled on halves.” This obviously is neither farm implements or tools of the trade. The Debtors, however, have claimed as exempt five cows, one bull, and two horses. The cows and bull are allowed as exempt under § 42.002(5) of the Texas Property Code. Although the Court has some question about the two horses, no objection to their exemption has been filed. The exemption for animals includes “forage on hand reasonably necessary for their consumption.” The Court concludes that the hay which is claimed as exempt by the Debtors constitutes such reasonable forage.
Order accordingly.2
. (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
(1) a judicial lien; or
(2) a nonpossessory, nonpurchase-money security interest in any—
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
(B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
(C) professionally prescribed health aids for the debtor or a dependent of the debtor.
. This Memorandum shall constitute Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 9014. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490663/ | MEMORANDUM OF OPINION AND ORDER
RANDOLPH BAXTER, Bankruptcy Judge.
This matter is before the Court upon the Trustee’s objection to a claim filed by the Ohio Edison Company (Edison). Upon a hearing with notice being given to all entitled parties, the following constitutes the Court’s findings and conclusions pursuant to Rule 7052, Bankr. Rules:
This is a core matter under provisions of 28 U.S.C. § 157(b)(2)(B), with jurisdiction further conferred under 28 U.S.C. § 1334 and General Order No. 84 of this District. Herein, Edison caused to be filed its amended claim in an amount of $1,760.25 for which it seeks treatment as a priority administrative expense under § 503(b)(1) and § 507(a)(1) [11 U.S.C. §§ 503(b)(1) and 507(a)(1) ]. The Trustee contends that the entire claim should be allowed as a general unsecured claim and not be accorded priority status. The Trustee’s motion provides no supporting rationale or authority in support of that contention. On review of the record, however, it is noted that the Debt- or’s case was initially filed as a proceeding under Chapter 13 on November 29, 1983. Subsequently, on June 17, 1987, the case was converted for liquidation under Chapter 7. It is unrefuted that the Debtor, postpetition, incurred liabilities to Edison during the course of both the Chapter 13 and Chapter 7 cases. Edison caused to be filed its initial proof of claim on July 20, *4601984 in a total amount of $1,672.08.1 That amount accounted for utility services provided the Debtor from September 2, 1983 through June 26, 1984. On March 3, 1987, Edison caused to be filed its amended Proof of Claim.2 That claim, as amended, seeks a total allowance of $1,760.25 as an administrative priority claim under §§ 503(b)(1) and 507(a)(1). As indicated above, the Debtor initially sought relief under Chapter 13, and a substantial portion of the utility service provided the Debtor occurred during the Chapter 13 case. Section 1305 of the Code addresses the filing and allowance of postpetition claims under Chapter 13. Therein, it is observed:
§ 1305(a): A proof of claim may be filed by any entity that holds a claim against the debtor—
(2) that is a consumer debt, that arises after the date of the order for relief under this chapter, and that is for property or services necessary for the debtor’s performance under the plan. [11 U.S.C. 1305(a)(2)].
The legislative history of § 1305(a)(2) amplifies its effect by stating that postpetition credit extended to a Chapter 13 debtor is to be treated the same as a prepetition claim for purposes of allowance, distribution, etc. (See, H.Rept. No. 95-595, to accompany H.R. 8200, 95th Cong., 1st Sess. (1977) pp. 427, 428, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6382-6384). Thusly, it is to be treated as a general unsecured claim. Further, pursuant to § 1327(b), upon confirmation of a Chapter 13 plan, a debtor is revested with its assets and, consequently, there remains no estate to preserve that would give rise to an allowance of administrative expenses under § 503(b)(1)(A). See, In re Severson, 53 B.R. 8, 13 B.C.D. 736 Bankr.D.Ore.1985). As reflected on Edison’s amended proof of claim, an amount of $92.82 was owed by the Debtor for post-conversion utility service. In pertinent part, § 503(b) of the Code provides the following:
After notice and a hearing, there shall be allowed administrative expenses ... including—
(1)(A) the actual, necessary costs and expenses of preserving the estate.... [11 U.S.C. 503(b)(1)(A)].
It is uncontested that the post-conversion utility service was beneficial to the Debt- or’s estate. In fact, the utility service extended during the Chapter 7 case preserved the estate for the benefit of the Debtor and his creditors.
Accordingly, the amount of $92.82 is hereby allowed as an administrative priority expense pursuant to § 503(b)(1) and § 507(a)(1). The remainder of Edison’s claim is to be treated as a general unsecured claim pursuant to § 1305(a)(2) of the Code.
IT IS SO ORDERED.
. See, Proof of Claim No. 12.
. See, Amended Proof of Claim No. 16. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490664/ | MEMORANDUM OPINION
HENRY L. HESS, Jr., Chief Judge.
At the hearing upon confirmation of the debtor’s plan in this Chapter 13 case, the debtor appeared by her attorney William J. Claussen, of Portland, Oregon, and the Oregon State Scholarship Commission appeared by its attorney Paul J. Garrick, Assistant Attorney General, of Salem, Oregon.
The Chapter 13 Statement filed by the debtor lists no secured debts, no priority debt and $11,002.38 in general unsecured debts consisting entirely of student loans. The budget shows that the debtor has one 13 year old daughter, that she receives no support, that the debtor is and has been for two years employed as a groundskeeper, that she has monthly take home pay of $900, that her monthly expenses total $850 and that her net disposable earnings are $50 per month. The debtor’s plan provides that she will pay to the trustee the sum of $50 per month for a period of 36 months. The payments are expected to return a dividend upon general unsecured claims of approximately 10%.
The debtor agreed that the plan be amended to require the debtor to file quarterly reports with the trustee of current income and expenses. The Scholarship Commission acknowledges that the present budget is reasonable and does not overstate the current monthly expenses. If the monthly income of the debtor increases during the life of the plan it will be appropriate for the Commission to file a modified plan under § 1329 calling for larger monthly payments to the trustee, which will result in a larger dividend upon unsecured claims. It appears that if the estate of the debtor were liquidated under Chapter 7 there would be no dividend to creditors.
The Commission objects to confirmation of the plan. The objections are based solely upon the provisions of § 1325(a)(3) which requires that “the plan has been proposed in good faith and not by any means forbidden by law.” The grounds asserted are threefold: (a) all of the debt consists of obligations on student loans which might not be dischargeable in a Chapter 7 case; (2) the dividend to creditors is minimal; and (3) it can be expected that the debtor’s earnings will increase in the future.
This court recently considered the question of good faith where student loans constituted part of the debts included in a chapter 13 plan in the case of In re Ada-mu, 82 B.R. 128 (Bkrtcy.D.Or.1988). In that case the student loan obligations constituted approximately 60% of the unsecured debts. In the present case all of the debt represents obligations upon student loans. Under the reasoning in Adamu, it should make no difference whether 10%, 50%, 75%, or 100% of the total debt is comprised of student loans. If this court were to adopt some percentage test to be used in determining bad faith, it would be a completely arbitrary test not provided for by Congress. Such a test could vary from court to court or from judge to judge. If a percentage test which varied from case to case were to be used by a court, such a test would be even more arbitrary.
The fact that the plan in this case is expected to return a dividend of only approximately 10% upon unsecured claims does not render the plan one not filed in good faith. Since the plan commits all of the debtor’s net disposable earnings to pay*568ment of claims, it is filed in good faith. See Adamu, supra for its discussion of the relevance of the amount to be received by creditors to the question of whether a plan is filed in good faith.
The last ground of objection is that the debtor’s earnings may increase in the future. This objection is met by the amendment to the plan requiring the debtor to file quarterly reports of current income and expenses and the right of the Commission to file a modified plan should the debt- or’s net disposable earnings increase in the future.
Counsel for the Commission suggests that even if (a) the attempt to discharge a student loan obligation may not show bad faith; and (b) the fact that the dividend to creditors will be small may not show bad faith, combining both in a single plan demonstrates bad faith. The court finds this argument unconvincing.
An order confirming the debtor’s plan as amended at the confirmation hearing will be entered. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490665/ | FINDINGS AND CONCLUSIONS OF LAW
L. CHANDLER WATSON, Jr., Bankruptcy Judge.
Introduction—
The above-styled adversary proceeding was commenced by a former spouse of David Roy Brazier, a debtor in the above-styled case, to determine the dischargeability of a debt alleged by the former spouse to be for support of a child of the debtor and, therefore, nondischargeable under 11 U.S.C. § 523(a)(5). The plaintiff has moved for summary judgment. Upon taking judicial notice of the clerk’s file and there being no dispute as to any other fact, the Court finds the facts as follows:
1. The debtors, David Roy Brazier and Sharon Alice Brazier, filed a petition in bankruptcy under chapter 7 of title 11, United States Code, on October 22, 1986, commencing this case, which remains pending under said chapter 7;
2. A final judgment was rendered in the Circuit Court of Talladega County, Alabama, on December 11, 1986, in the case of Brazier v. Brazier, DR-80-106.02, which provided in part the following:
That the Defendant [defendant here] owes the Plaintiff [plaintiff here] the sum of $2,000.00 for past due child support payments. That the Plaintiff is entitled to recover a reasonable attorney fee *602for the collection of same which the Court finds to be the sum of $400.00. That since the prior decree of this Court fixing the amount of child support payments, the Defendant has suffered financial adversity as well as partial physical disability. His income has diminished from the sum of $14.50 per hour to $5.00 per hour amounting to a 66% loss in income. The Court finds that under the circumstances it would be unjust to find that the Defendant willfully and contemptuously failed and refused to abide by the orders of the Court. That the Defendant’s child support payments should be reduced, and the Plaintiff should be allowed to claim the minor child as a dependent for income tax purposes.
That the cost be taxed against the Defendant.
3. On February 6, 1987, the debtors filed an amendment to their bankruptcy petition, adding the plaintiff as a creditor having an unsecured claim in the amount of $460.00, said sum representing the attorney’s fees and costs mentioned in the state court judgment.
Conclusions of Law—
■ Debts for maintenance or support of a child of a debtor are not dischargeable in bankruptcy under 11 U.S.C. § 523(a)(5). The issue in this proceeding is whether the attorney’s fees and costs awarded to the plaintiff in the Circuit Court of Talladega County, Alabama, are child maintenance or support and, therefore, nondischargeable in bankruptcy. This Court, in In re Haney, 33 B.R. 6, 8-9 (Bankr.N.D.Al.1983) stated as follows:
Throughout the history of United States bankruptcy law, family support obligations have been excepted from discharge in bankruptcy. 1 Norton, Bankr. Law & Practice § 27.56 (1981). In Bankruptcy Code § 523(a)(5) the current embodiment of this earlier policy, that debtors should support their dependents, is balanced against the avowed purpose of the Code to provide the debtor with the possibility of a fresh start. In re Foss, 20 B.R. 598, 601 (Bkrtcy.Iowa 1982)_
The burden of proof that a debt falls within a statutory exception to discharge is on the party objecting to dischargeability of the particular debt. Matter of Cross, 666 F.2d 873, 880 (C.A. 5, 1982); Matter of Vande Zande, 22 B.R. 328, 330 (Bkrtcy.W.D.Wis.1982); In re Voss, supra.
The question of whether a debt is alimony is a federal, not a state law, question. In re Cartner, 9 B.R. 543, 546 (Bkrtcy.M.D.Ala.1981); H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 363 (1977). This Court is not bound by the classifications placed on the debts in the divorce decree, but must attempt instead to effectuate the parties’ and the divorce court’s intent in determining whether an obligation created in a divorce decree is dischargeable in bankruptcy.
Attorney’s fees to be paid to counsel for a former spouse in a divorce proceeding have been held to constitute a “debt ... for alimony to, maintenance for, or support ...” and, therefore, nondischargeable under 11 U.S.C. § 523(a)(5). In re Delaine, 56 B.R. 460, 469 (Bankr.N.D.Al.1985).1
Defendant’s attorney argues that the burden of proof which rests upon plaintiff has not been met for that it is incongruous to interpret the state court’s decree as at once awarding additional maintenance or support and reducing the same. Counsel’s argument, however, overlooks that the awards are with respect to past-due support payments, while the reduction in periodic support payments is entirely prospective. Thus, the debtor’s child is awarded additional support in regard to the period elapsed, when payments by the defendant were not made (which necessitated legal action to collect his arrearage), but the future payments are reduced to bring them in line with his reduced income. The fact that the support payments referred to would be made to the plaintiff, rather than the child beneficiary of the payments, is immaterial.
*603One further aspect of the plaintiff’s claim requires mentioning. The state court judgment of December 11, 1986, bears a date after the October 22,1986, date of the filing of the debtors’ bankruptcy petition. In a chapter 7 case a discharge order “discharges the debtor from all debts that arose before the date of the order for relief under this chapter.”2 [Emphasis added.] Except as provided in 11 United States Code § 502 — provisions not applicable to the plaintiffs type of claims — debts arising postpetition are not discharged.3 In 11 United States Code § 301, it is provided that a voluntary case under a chapter of title 11 is commenced by the filing of a debtor’s petition under such chapter and that “[t]he commencement of a voluntary case under a chapter of this title constitutes an order for relief under such chapter.” [Emphasis added.]
It may thus be that the plaintiff’s claims are not within the general reach of an order of discharge in this case, whether excepted from such a discharge or not under 11 United States Code § 523. Admittedly, however, an argument can be made that the plaintiff’s claims 4 arose during the protracted default of the defendant in paying child support payments prepetition or mostly prepetition; but, before entry of the state court judgment the claims for an attorney’s fee and for court costs have an ethereal look.
Based upon the foregoing facts, the Court concludes that the attorney’s fees and costs of plaintiff’s award in the Circuit Court of Talladega County, Alabama, are part and parcel of the support granted for defendant’s child and are incapable of separation therefrom.
A judgment for the plaintiff, adjudging said debts nondischargeable in this case, will be entered.
. See also cases there cited. 56 B.R. at 469.
. 11 U.S.C. § 727(b). In 11 United States Code § 523, certain types of debts, of course, are excepted from the broad sweep of the words "all debts” used in section 727(b).
. 11 U.S.C. § 727(b).
. A "claim” is defined in 11 United States Code § 101(4), where it is given a very broad meaning. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490666/ | MEMORANDUM OPINION AND ORDER
LEWIS M. KILLIAN, Jr., Bankruptcy Judge.
THIS MATTER came on to be heard upon the objection of the creditor Deer-wood Club, Incorporated, (Deerwood), to the debtor’s application/notice pursuant to 11 U.S.C. § 363(b) of auction sale of real property of the estate. This application and objection have proceeded as a contested matter herein with discovery having been taken, and this Court does not find it necessary at this time to proceed in an adversarial context. The Court having considered the record, evidence, and argument of counsel herein, and otherwise being fully advised in the premises, makes the following findings of fact and conclusions of law:
Deerwood holds a first mortgage on the property which the debtor, OHFLA, Inc., proposes to sell, to wit: Tract XIX of the Estates of Deerwood, Phase Two. Deer-wood is also the successor to Stockton, Whatley & Davin Company, the original developer of the Estates of Deerwood. The debtor proposes to sell the subject tract free and clear of the lien of Deerwood by subdividing the 16 acre tract into four *620lots and then selling these lots at an auction sale. Deerwood objected to this application and notice of sale, contending that the debtor’s proposed method of subdividing the land would violate the covenants and restrictions applicable to the subject Deerwood Estates tract. The covenant and restrictions applicable to this estate tract prohibit subdivision of the tracts unless the prior written approval of the developer Deerwood is obtained. The restrictions further provide that the subdivision must produce building plots which form an integral unit of land suitable for use as a single family residential building site.
An initial hearing was held on the debt- or’s application to sell on July 80,1987, and was continued in order to allow the debtor time to submit to Deerwood a proposed site plan for Deerwood’s review and hopeful written approval in accordance with the procedure mandated by the applicable covenants and restrictions. The debtor in accordance therewith submitted to Deerwood an initial site plan for its proposed subdivision. The plan was rejected by Deerwood by letter setting forth the specific problems and inviting an alternate plan from the debtor eliminating said problems. Deer-wood objected in particular to the debtor’s location of a residential building site in a wetlands portion of the property. The debtor submitted its revised plan to Deer-wood correcting several of the related problems but failing to omit the wetlands residence from its proposal. This alternative site plan was thus likewise rejected by Deerwood. The second hearing in this matter then ensued.
The debtor seeks this Court’s approval of its application to subdivide and sell the tract over the objection of Deerwood. Deerwood contends that the subject covenants and restrictions reserve absolute power in the developer to approve or disapprove proposed subdivisions. The parties agree, and Florida case law supports the conclusion that covenants and restrictions such as these are entirely valid so long as the exercise of the discretionary power by the developer is not arbitrary or unreasonable. Engvalson v. Webster, 74 So.2d 113 (Fla.1954); Young v. Tortoise Island Homeowner’s Association, Inc., 511 So.2d 381 (Fla. 5th DCA 1987); Voight v. Harbour Heights Improvement Association, 218 So.2d 803 (Fla. 4th DCA 1969).
It is the debtor’s contention that Deer-wood is arbitrarily and unreasonably exercising its power in that the basis for its rejection of the site plan, to wit, that the debtor proposes a residential building site in the wetlands, is not specifically delineated in the covenants and restrictions as a proper basis for the developer’s rejection of a site plan. The debtor cites the case of Voight, supra, in support of this proposition. In Voight, the subdivision improvement association which had sole and uncontrolled discretion to approve or disapprove proposed plans and specifications submitted to it for development, denied a specific request for allowance of two seven-story apartment buildings within the tract of land subject to the deed restrictions and building code requirements. The subject property was located in an area where mul-ti-family residences including duplexes, apartments, and hotels, were permitted. The main reason that the association rejected the proposal was that the buildings differed greatly in height, mass, occupant density, and structural appearance from the other structures in the subdivision. The lower court upheld the right of the association to reject the proposal. However, on appeal, the Court noted that the deed restrictions placed no specific height limitation on the buildings. It found that the basis for the association’s rejection of the proposal was that the structures were out of keeping with the general plan of construction and development followed in the subdivision. The Court then concluded that the discretionary clause in the deed restriction did not permit the association to arbitrarily establish height and size limitations more restrictive than those set forth in the deed, and then lawfully exercise its right of disapproval for the failure to meet the more restrictive requirements established by it. The debtor contends that this is precisely what the developer Deerwood is attempting to do in the instant case.
*621This Court, upon reviewing the Voight case, distinguishes it on the following grounds: in Voight, the particular type and use of structures was specifically contemplated and authorized by the deed restrictions. The structures in the plan submitted to the association were in keeping with this designated type and use restriction. The association objected to the size of the proposed structures, which was not addressed in the restrictions and thus an improper basis for the association’s rejection of the plan. In the case sub judice, Deerwood did not contemplate a subdivision in Phase Two of its scheme, it just did not absolutely prohibit it. The developer was given broad discretion in any subdivision approval process. Specific standards were set forth in the covenants and restrictions regarding setbacks and minimum acreage. These, however, are not criteria against which to measure a proposed site plan, but rather absolute minimum standards which must be met in order to obtain the developer’s approval. The covenants and restrictions provide for subdivision of tracts into lots which “will form an integral unit of land suitable for use as a single-family residential building site.” Deerwood states that the debtor’s proposed subdivision, in particular, Lot 4 thereof which lies in the wetlands, conflicts with the overall design and plan of development for all of the Estate lots; that construction in that wetlands area would destroy the existing nature preserve; that construction in that area would likewise adversely affect drainage; and that the configuration of the lots, backed against the power line easement, and stretching into “fingers” of land, was devised by the debtor merely to meet the three acre minimum requirement and not in keeping with the construction of an estate-type residence with a value comparable to the other Deerwood homes in that phase. Deerwood has in the past rejected a proposed site plan which it believed contained wetland lots upon which estate-type homes could not be built. The debtor’s comparison of these tract XIX lots with others in phase three is unconvincing; the phase three lots which were back-filled were not located in the wetlands and were a higher elevation than the tract XIX lots. Likewise, the debtor’s emphasis on other small acreage lots within the development is unpersuasive in that the land upon which those lots are located is dissimilar to tract XIX.
Based on the factors articulated by Deer-wood for its rejection of the debtor’s proposal this Court finds that its decision was not arbitrary or unreasonable. Deerwood has the discretion to prohibit erection of a residence which is not in harmony with the surrounding neighborhood and existing structures. (Estates of Deerwood Phase Two Covenants and Restrictions, paragraph 10). The testimony before this Court was that it would be “almost inconceivable that you could build an estate-type home” on Lot 4, configurated as it is and approximately one hundred (100) feet wide. (Testimony of Nicholas Cassala). The proposed subdivision thus does not produce areas of land “suitable for use as single-family residential building sites” in conformity with the Deerwood Estates concept.
Restrictive covenants serve a valid public purpose in enabling purchasers of property to control the development and use of property in the surrounding environment. Wood v. Dozier, 464 So.2d 1168, 1170 (Fla.1985). All residents of Deerwood are represented by the association and are entitled to have these covenants enforced to preserve the character of the area in which they purchased their homesites. It is accordingly,
ORDERED AND ADJUDGED that the objection by Deerwood Club, Inc. to the debtor’s application/notice to sell real property of the estate at public auction be, and it hereby is, sustained. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490667/ | ORDER GRANTING STAY RELIEF
THOMAS C. BRITTON, Chief Judge.
The motion (CP 8) of the debtor’s mortgagees for stay relief was heard February 4. For the reasons stated below, the motion is granted retroactively to January 5.
Before bankruptcy, movants obtained a foreclosure judgment, the property was sold by the clerk, and a Certificate of Sale was issued December 7, 1987. The *632debtor then filed an objection to the sale. Several hours before the State court overruled the objection on January 5, 1988 and immediate issuance of a Certificate of Title by the State court Clerk, the debtor filed this chapter 7 petition. These last two acts are voidable in view of the bankruptcy statutory stay. 11 U.S.C. § 362(a).
It is movants’ position that only the debtor’s right of redemption remains, only the trustee may exercise that right, and the trustee has no interest in doing so. I agree.
The burden is on those who would oppose this motion.1 The trustee has neither responded nor appeared. I presume, therefore, that she does not oppose the motion.
The debtor’s only response is an offer to provide adequate protection. However, the trustee is immediately vested with all right, title and interest to the debtor’s property upon the filing of the petition. 11 U.S.C. §§ 541 and 542. In chapter 7, the debtor has no interest in the estate except as to exempt property. This corporate debtor has no exempt property and therefore no remaining interest in this property.
An offer of adequate protection would be relevant only if a party would have the right in bankruptcy to cure the mortgage default and reinstate the mortgage loan. § 361. In this chapter 7 case, the debtor has no such right. There is, therefore, no merit in the debtor’s opposition. For this reason, movants are entitled to immediate stay relief.
Failure to make the stay relief retroactive to January 5 would accomplish nothing other than to require the State court to reissue its Order and Certificate and thus extend the period of redemption about 30 days (from January 5 to the State court’s repetition of its acts of January 5). The trustee has shown no interest in redemption. There is, therefore, no purpose to be served by requiring the State court to act again.
The debtor has considered the possibility of converting this case to chapter 11 under § 706(a). If this case were presently in chapter 11, movants would still be entitled to stay relief, because the right to cure and reinstate a defaulted mortgage expires when the mortgaged property is sold and this property was sold December 7, 1987, 29 days before bankruptcy. In re Glenn, 760 F.2d 1428, 1442 (6th Cir.), cert. denied, 474 U.S. 849, 106 S.Ct. 144, 88 L.Ed.2d 119 (1985).2
After a foreclosure sale, only the right of redemption remains. It expires in Florida upon the issuance of the Certificate of Title. The certificate was issued here after the filing of bankruptcy; therefore, the right of redemption existed on the date of bankruptcy.
Under § 108(b) the trustee has at least a 60-day grace period after bankruptcy to cure a default by redemption and, under § 1107(a), a chapter 11 debtor also has that grace period. That 60-day period would continue until March 5 but for the stay relief I have granted in this Order. However, neither the chapter 7 trustee nor the debtor has any intention of redeeming this property, which would require the payment of at least $130,592.
If my assumption is incorrect and if either the debtor or the trustee has the means and intention to redeem by March 5, a timely motion for rehearing could persuade me to eliminate the retroactive timing of this order and thus enable either party to redeem the title to this property.
. § 362(g). Movant has the burden of proof only with respect to the debtor’s equity in the property. That issue is not essential to the disposition of this motion.
. Although Glenn was in chapter 13, the issues and the holding are equally applicable here. I have recently discussed Glenn at some length in In re Campbell, 82 B.R. 614, Order Modifying Order of Dismissal (1-27-88). That discussion is adopted here by this reference. As stated by the court in In re Taddeo, 685 F.2d 24, 29 (2nd Cir.1982):
"‘curing a default’ in Chapter 11 means the same thing as it does in Chapters 7 or 13: the event of default is remedied and the consequences are nullified." | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490669/ | MEMORANDUM DECISION AND FINAL JUDGMENT
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE having come before the Court upon the complaint of Amerifirst Federal Savings and Loan Association (“Amerifirst”) to determine the discharge-ability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel finds as follows:
Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 167(a, b) and 1334(b), and the district court’s general order of reference. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I), and brought as an adversary proceeding to determine the dischargeability of a debt pursuant to Bankr.R. 7001(6) and 4007(a), and 11 U.S.C. § 523(c).
Sometime before 1987, the debtor obtained a revolving line of credit under a Visa credit card issued by Amerifirst. On June 9, 1987 a letter was mailed to the debtor at the address reflected on her account statements advising her that her authorization to use her credit card had been revoked, and directing her to destroy the card. The debtor, after June 9, 1987 but prior to the filing of her bankruptcy petition, used the credit card to charge purchases totalling $1,699.37.
An indebtedness that is incurred by the use of a credit card will be excepted from discharge pursuant to 11 U.S.C. § 523(aX2)(A) after the creditor has communicated to the debtor the unconditional revocation of the debtor’s privilege to use or possess the card. In re Roddenberry (First National Bank of Mobile v. Roddenberry), 701 F.2d 927 (11th Cir.1983) and In re Fisher (Chase Manhattan Bank v. Fisher), 74 B.R. 633 (Bankr.S.D.Fla.1987). The Court finds that the debtor was noticed of the unconditional revocation of her credit card privileges on June 9, 1987 and all charges incurred subsequent to that date are excepted from discharge.
The debtor argues that she never received notice of the revocation. However, the notice of revocation was mailed by Am-erifirst according to the daily computer report of standard notices mailed to Ameri-first Visa cardholders. Although the debt- or denied having ever received the notices, such testimony denying receipt does not rebut the presumption of receipt created by the proof of mailing. Simpson v. Jefferson Standard Life Insurance Co., 465 F.2d 1320 (6th Cir.1972) and Fisher, 74 B.R. at 635.
The debtor testified that her address changed and the notice never reached her new apartment. However, the debtor moved three to four months prior to the revocation notice being mailed yet the debt- or never notified Amerifirst of her new apartment within the same building despite a conspicuous notation printed on each account statement requesting address change notification. Additionally, the debtor did not have the post office forward her mail to her new apartment and she admitted to receiving monthly account statements after changing apartments. Therefore, the Court finds that Amerifirst gave effective notice of revocation when it caused the notice to be mailed to her address of record with Amerifirst.
WHEREUPON, it is
ORDERED AND ADJUDGED that the debtor’s indebtedness to Amerifirst, to the extent incurred by the debtor’s use of the Amerifirst Visa credit card after June 9, 1987, is excepted from discharge under 11 U.S.C. § 523(a)(2)(A). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490670/ | ORDER ON FEE APPLICATION OF S.E. KREISBERG
THOMAS C. BRITTON, Chief Judge.
The application (CP 233) of Steven E. Kreisberg for $2,000 as an administrative expense under 11 U.S.C. § 507(a)(1) and § 503(b)(1)(A) was heard on March 21. The application, which is for compensation for legal services rendered to the debtor corporation in a criminal proceeding in the district court, is denied.
Counsel was appointed by a Magistrate under the Criminal Justice Act, 18 U.S.C. § 3006A, and his fee of $2,000 for 52.5 hours was subsequently approved by the presiding judge in the criminal case. The Administrative Office of the United States Courts refused to pay the court-approved fee as unauthorized by the statute.
The applicant, who now turns to this estate for payment, concedes that:
“this attorney had been appointed specifically by the District Court for that purpose ... counsel did accept the appoint*893ment [by a United States Magistrate] with the view that compensation would be provided only at the Criminal Justice Act rate.”
He also concedes that he did not seek the prior approval of the bankruptcy court under 11 U.S.C. § 327(a) and B.R. 2014 before such legal services were rendered. (CP 233 pp. 2, 13-14). He was appointed on February 21, 1986 (nunc pro tunc as of February 10, 1986), during the pendency of the bankruptcy case.
This chapter 11 case has had a confirmed plan since July 21,1986, under the administration of a Liquidating Committee. The criminal matters which plagued this debtor and its principals were never the concern of the bankruptcy administration. In fact, debtor’s bankruptcy counsel specifically refused to appear on the debtor’s behalf in the criminal proceeding.
The issue of retention of special criminal counsel by a debtor-in-possession at the expense of the bankruptcy estate was considered in In re Duque, 48 B.R. 965 (S.D.Fla.1984). In concluding that the debtor-in-possession should not have been authorized by the bankruptcy court to retain special criminal counsel, the District Court, through Judge Hastings, stated that:
“the propriety of employing counsel must be gauged by the needs of the estate and directly related to the trustee’s or the debtor-in-possession’s performance of the duties and responsibilities imposed by the Bankruptcy Code.” Id. at 975.
The District Court found that criminal investigations and prosecutions for pre-filing activity are matters which solely concern the debtor, not this bankruptcy estate. The District Court held that estate funds in a chapter 11 case may not be used to pay criminal counsel in connection with a federal investigation and potential defense of criminal charges against the debtor arising out of pre-bankruptcy activities.
I have not overlooked the cases cited by applicant. However, they have no direct bearing on this issue, and I must deny the application for the reasons discussed at length in Duque, supra. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483195/ | Matter of Kaylee S.-S. (Ricardo S.) (2022 NY Slip Op 06342)
Matter of Kaylee S.-S. (Ricardo S.)
2022 NY Slip Op 06342
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
660 CAF 21-00142
[*1]IN THE MATTER OF KAYLEE S.-S. GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; RICARDO S., RESPONDENT-APPELLANT. (APPEAL NO. 7.)
LAW OFFICE OF MARK A. YOUNG, ROCHESTER (BRIDGET L. FIELD OF COUNSEL), FOR RESPONDENT-APPELLANT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-RESPONDENT.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Genesee County (Thomas M. DiMillo, A.J.), entered December 23, 2020 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred respondent's guardianship and custody rights with respect to the subject child to petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Matter of Briana S.-S. (Emily S.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483196/ | Matter of Kaylee S.-S. (Emily S.) (2022 NY Slip Op 06339)
Matter of Kaylee S.-S. (Emily S.)
2022 NY Slip Op 06339
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
657 CAF 21-00077
[*1]IN THE MATTER OF KAYLEE S.-S. GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; EMILY S., RESPONDENT-APPELLANT. (APPEAL NO. 4.)
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-RESPONDENT.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Genesee County (Thomas M. DiMillo, A.J.), entered December 23, 2020 in a proceeding pursuant to Social Services Law § 384-b. The order, among other things, transferred respondent's guardianship and custody rights with respect to the subject child to petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Matter of Briana S.-S. (Emily S.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483205/ | Matter of 315 Ship Canal Parkway, LLC v Buffalo Urban Dev. Corp. (2022 NY Slip Op 06343)
Matter of 315 Ship Canal Parkway, LLC v Buffalo Urban Dev. Corp.
2022 NY Slip Op 06343
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
665 CA 21-01228
[*1]IN THE MATTER OF 315 SHIP CANAL PARKWAY, LLC, AND SONWIL DISTRIBUTION CENTER, INC., PETITIONERS-APPELLANTS,
vBUFFALO URBAN DEVELOPMENT CORPORATION AND UNILAND DEVELOPMENT COMPANY, RESPONDENTS-RESPONDENTS.
ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF COUNSEL), FOR PETITIONERS-APPELLANTS.
HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR RESPONDENT-RESPONDENT BUFFALO URBAN DEVELOPMENT CORPORATION.
WOODS OVIATT GILMAN LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR RESPONDENT-RESPONDENT UNILAND DEVELOPMENT COMPANY.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Dennis E. Ward, J.), entered August 19, 2021 in a proceeding pursuant to CPLR article 78. The judgment dismissed the amended petition.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: This matter involves the sale of real property by respondent Buffalo Urban Development Corporation (BUDC) to respondent Uniland Development Company (Uniland). In December 2020, BUDC and Uniland executed a third amendment to their land sale agreement (LSA) approving the expansion of the term "Project" under the LSA to include a ground-mounted photovoltaic solar energy system in lieu of an office or warehouse. Petitioners commenced this CPLR article 78 proceeding seeking to annul BUDC's determination with respect to the LSA use modification and proposed disposition of the property. Petitioners now appeal from a judgment that dismissed their amended petition for lack of standing.
We agree with respondents that the appeal should be dismissed as moot (see generally Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727, 728-729 [2004]; Matter of Sierra Club v New York State Dept. of Envtl. Conservation, 169 AD3d 1485, 1486 [4th Dept 2019]). "Litigation over construction is rendered moot when the progress of the work constitutes a change in circumstances that would prevent the court from rendering a decision that would effectively determine an actual controversy" (Sierra Club, 169 AD3d at 1486 [internal quotation marks omitted]). When evaluating claims of mootness, courts consider several factors and "[c]hief among [those factors] has been a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation" (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d 165, 173 [2002]). "Factors weighing against mootness may include whether a party proceeded in bad faith and without authority," whether "novel issues or public interests such as environmental concerns warrant continuing review," and whether "a challenged modification is readily undone, without undue hardship" (id. [internal citations omitted]). Here, petitioners never moved for a preliminary injunction, or otherwise sought to preserve the status quo, pending the outcome of the proceeding (see Citineighbors Coalition of Historic Carnegie Hill, 2 NY3d at 729; [*2]Dreikausen, 98 NY2d at 173; Sierra Club, 169 AD3d at 1486-1487; cf. Town of N. Elba v Grimditch, 131 AD3d 150, 157 [3d Dept 2015], lv denied 26 NY3d 903 [2015]), "nonfeasance that they chalk up to . . . the unlikelihood of success" (Citineighbors Coalition of Historic Carnegie Hill, 2 NY3d at 729). Moreover, Uniland has established that construction of the solar energy field, which is nearly complete, was not performed in bad faith or without authority (see id.; Sierra Club, 169 AD3d at 1487; cf. Town of N. Elba, 131 AD3d at 157), and that the work cannot readily be undone without substantial hardship (see Sierra Club, 169 AD3d at 1487). Finally, the exception to the mootness doctrine does not apply here (see Citineighbors Coalition of Historic Carnegie Hill, 2 NY3d at 730).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483199/ | Matter of Elizabeth F. (Nicole F.) (2022 NY Slip Op 06397)
Matter of Elizabeth F. (Nicole F.)
2022 NY Slip Op 06397
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
899 CAF 21-00712
[*1]IN THE MATTER OF ELIZABETH F. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; NICOLE F., RESPONDENT-APPELLANT. (APPEAL NO. 1.)
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
ANAISS RIJO LELONEK, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (RUSSELL E. FOX OF COUNSEL), ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, J.), entered September 22, 2020 in a proceeding pursuant to Family Court Act article 10. The order, inter alia, found that respondent had neglected the subject child.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Family Court.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483209/ | Hopkins v Morreale (2022 NY Slip Op 06371)
Hopkins v Morreale
2022 NY Slip Op 06371
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
793 CA 22-00067
[*1]TODD HOPKINS, PLAINTIFF-RESPONDENT,
vROBERT C. MORREALE AND 2121 LOCKPORT ROAD, LLC, DEFENDANTS-APPELLANTS.
GERBER CIANO KELLY BRADY, LLP, BUFFALO (ARLOW LINTON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
HUTCHESON, AFFRONTI & DEISINGER, P.C., NIAGARA FALLS (MARK R. AFFRONTI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered October 15, 2021. The order, insofar as appealed from, denied the motion of defendants for summary judgment.
Now, upon reading and filing the stipulation of discontinuance signed by the attorneys for the parties on October 5, 2022,
It is hereby ORDERED that said appeal is unanimously dismissed without costs upon stipulation.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483210/ | Hoganwillig, PLLC v Swormville Fire Co., Inc. (2022 NY Slip Op 06331)
Hoganwillig, PLLC v Swormville Fire Co., Inc.
2022 NY Slip Op 06331
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND NEMOYER, JJ.
596 CA 21-00765
[*1]HOGANWILLIG, PLLC, PLAINTIFF-APPELLANT,
vSWORMVILLE FIRE CO., INC., DEFENDANT-RESPONDENT.
HOGANWILLIG, PLLC, AMHERST (JEFFREY B. NOVAK OF COUNSEL), FOR PLAINTIFF-APPELLANT.
WEBSTER SZANYI LLP, BUFFALO (D. CHARLES ROBERTS, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Henry J. Nowak, J.), entered April 28, 2021. The order, insofar as appealed from, granted that part of defendant's motion seeking disqualification of HoganWillig, PLLC.
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, and that part of the motion seeking disqualification of HoganWillig, PLLC is denied.
Memorandum: Plaintiff HoganWillig, PLLC (HoganWillig) appeals from an order that, inter alia, prohibited the law firm from serving as legal counsel for itself in its action against defendant Swormville Fire Co., Inc. (SFC). HoganWillig had represented SFC, a volunteer fire company, in its longstanding litigation against the architectural firm and the contractor involved in the design and construction of SFC's fire station. In the years following commencement of that litigation, the parties twice modified the governing retainer agreements in response to SFC's concerns about its litigation costs. During a meeting between HoganWillig attorneys and SFC representatives held more than eight years into the litigation, HoganWillig's owner (owner) gave SFC an estimate of trial readiness that prompted questions from SFC about HoganWillig's diligence given the amount of time and money already devoted to the litigation. The meeting apparently became acrimonious and, although the parties dispute whether HoganWillig withdrew from representation unilaterally without cause or due to an irretrievable breakdown of the attorney-client relationship induced by SFC, it is undisputed that the owner told SFC that " 'We're done. Go get another law firm.' " A few weeks after the meeting, the owner sent SFC a letter providing an overview of the litigation to date and promising to cooperate with SFC's new counsel. SFC thereafter retained new counsel and settled the litigation less than two years later.
HoganWillig commenced the present action seeking, inter alia, to recover payment for legal services provided to SFC. SFC, as relevant here, answered and interposed counterclaims, including for declarations that the retainer agreements were unenforceable and that HoganWillig forfeited legal fees by unilaterally terminating its representation and abandoning SFC as a client. SFC thereafter moved to disqualify HoganWillig from representing itself in the action. SFC contended that the attorneys who attended the meeting should be disqualified under the advocate-witness rule contained in rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0) because they were likely to be witnesses on a significant issue of fact in the litigation and for other reasons related to their roles in billing and statements about the representation, and that the disqualification of those attorneys required disqualification of the entire law firm as well.
Supreme Court determined that the owner and two other HoganWillig attorneys who attended the meeting could not serve as advocates in a matter in which they would also be witnesses, but that the law firm itself should not be disqualified because the court was not [*2]convinced that the testimony of the disqualified attorneys "will be prejudicial" to HoganWillig. The court further reasoned that, if HoganWillig concluded it was the best strategy to allow other attorneys from the firm to represent it in the action, HoganWillig was entitled to make that decision without judicial interference. The court thus granted the motion in part by disqualifying the aforementioned attorneys but denied the motion with respect to the remainder of the law firm.
SFC moved for leave to reargue its original motion, and the court, upon considering the reargument motion, determined that it had previously misapplied the law because the standard was whether the testimony of the disqualified attorneys "may" be prejudicial to HoganWillig, not whether it "will" be prejudicial. The court thus granted leave to reargue. On reargument, the court determined that SFC met the standard of establishing that prejudice may result and, on that basis alone, concluded that HoganWillig should be disqualified. The court emphasized that it would provide sufficient time for HoganWillig to obtain new counsel. As limited by its brief, HoganWillig contends on appeal that the court erred in granting SFC's reargument motion to the extent that it sought to disqualify the law firm.
Preliminarily, SFC contends that the appeal should be dismissed on the ground that HoganWillig was not permitted to represent itself and yet it filed a notice of appeal in violation of the order appealed from, thereby rendering the notice of appeal null and void. SFC further contends that the court's subsequent order granting HoganWillig permission to represent itself on appeal is not effective nunc pro tunc. We reject those contentions. The notice of appeal was timely filed by HoganWillig on its own behalf before the date by which it was required, under the order appealed from, to substitute new counsel, a deadline that fell beyond the time by which HoganWillig had to take an appeal (see CPLR 5513 [a]) and, in any event, the court's subsequent order granting HoganWillig permission to represent itself on appeal, of which we take judicial notice (see NY St Cts Elec Filing [NYSCEF] Doc No. 145 at 1-2), effectively authorized HoganWillig, nunc pro tunc, to file the notice of appeal (see generally Gradl v Saulpaugh, 268 App Div 787, 787 [2d Dept 1944]).
With respect to the merits, the advocate-witness rule embodied in rule 3.7 of the Rules of Professional Conduct provides, as relevant here, that "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless . . . the testimony relates solely to an uncontested issue . . . [or] the testimony relates solely to the nature and value of legal services rendered in the matter" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [a] [1], [2]). The rule further contemplates disqualification of a law firm under certain circumstances insofar as "[a] lawyer may not act as advocate before a tribunal in a matter if . . . another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [b] [1]).
Critically, however, "[t]he advocate-witness disqualification rules . . . provide guidance, not binding authority, for courts in determining whether a party's law firm, at its adversary's instance, should be disqualified during litigation" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440 [1987]). "Courts must, in addition, consider such factors as the party's valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation" (id.). Indeed, "[d]isqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants" (id. at 443). "Disqualification denies a party's right to representation by the attorney of its choice" (id.). "The right to counsel of choice is not absolute and may be overridden where necessary—for example, to protect a compelling public interest—but it is a valued right and any restrictions must be carefully scrutinized" (id.). "Moreover, [courts] cannot ignore that where the [Rules of Professional Conduct are] invoked not in a disciplinary proceeding to punish a lawyer's own transgression, but in the context of an ongoing lawsuit, disqualification of a [litigant's] law firm can stall and derail the proceedings, redounding to the strategic advantage of one party over another" (id.). In sum, "[c]onsidering all the significant interests to be balanced, it is particularly important that the [Rules of Professional Conduct] not be mechanically applied when disqualification is raised in litigation"; instead, the rules must be employed to provide "guidance for the courts in determining whether a case would be tainted by the participation of an attorney or a firm" (id. at 444-445 [internal quotation marks omitted]).
The party seeking disqualification of a law firm or an attorney bears the "burden of making 'a clear showing that disqualification is warranted' " (Lake v Kaleida Health, 60 AD3d 1469, 1470 [4th Dept 2009]; see S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 445; Jozefik v Jozefik, 89 AD3d 1489, 1490 [4th Dept 2011]), and a trial court's decision to disqualify a law firm or an attorney shall be reviewed on appeal for abuse of discretion (see Jozefik, 89 AD3d at 1490; Lake, 60 AD3d at 1470). In this case, we conclude for the reasons that follow that the court erred in granting that part of SFC's reargument motion with respect to disqualification of HoganWillig.
First, we agree with HoganWillig that SFC failed to establish that "it is apparent that the testimony [of the disqualified attorneys] may be prejudicial to [HoganWillig]" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [b] [1]; see e.g. S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 446; Matter of Bodkin [appeal No. 3], 128 AD3d 1526, 1527 [4th Dept 2015]). "The word 'apparent' means that prejudice to the client must be visible, as opposed to merely speculative, conceivable, or imaginable," i.e., the prejudice "has to be a real possibility, not just a theoretical possibility" (Simon's NY Rules of Prof. Conduct § 3.7:22 [Dec 2021 Update]). Consistent therewith, a movant's "vague and conclusory" assertions are insufficient to establish that an attorney's testimony may be prejudicial to the client (S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 446 [internal quotation marks omitted]).
Here, the record reveals nothing more than a speculative or theoretical possibility that the testimony of the disqualified attorneys may be prejudicial to HoganWillig. The letter and affidavits of the owner are clear that he will testify that HoganWillig engaged in extensive efforts on behalf of SFC during the litigation and will testify that HoganWillig did not, contrary to SFC's allegations, abruptly withdraw without cause, but instead ended its representation only after SFC's actions and relentless criticisms caused an irretrievable breakdown of the attorney-client relationship. SFC's conclusory and speculative suggestion that testimony by the owner about his statement during the meeting may be prejudicial to HoganWillig is insufficient because, in context, the owner's statement shows no more than that HoganWillig ended its representation of SFC, which is already an undisputed fact and consistent with HoganWillig's position that SFC caused the breakdown of the relationship (cf. Hitzig v Borough-Tel Serv., 108 AD2d 677, 678 [1st Dept 1985], appeal dismissed 65 NY2d 784 [1985]; see generally NY Kids Club 125 5th Ave., LLC v Three Kings, LLC, 133 AD3d 580, 581 [2d Dept 2015]). Similarly, as HoganWillig further contends, the owner's statements regarding trial preparation and billings to SFC, considered in the context of the owner's likely overall testimony, only support HoganWillig's position that the underlying litigation was complex and that it made significant efforts to maintain the attorney-client relationship, and thus SFC made no showing that the owner's testimony on those topics may be prejudicial to HoganWillig's case (see Advanced Chimney, Inc. v Graziano, 153 AD3d 478, 481 [2d Dept 2017]; NY Kids Club 125 5th Ave., LLC, 133 AD3d at 581; Bodkin, 128 AD3d at 1527).
Additionally, SFC claimed in support of its motion, and reiterates in its respondent's brief, that the owner and one of the other disqualified attorneys, who were involved in negotiating and drafting the retainer agreements, will provide testimony prejudicial to HoganWillig by establishing that the retainer agreements are unenforceable. Those claims constitute "vague and conclusory" assertions that are insufficient to establish that testimony about the retainer agreements may be prejudicial to HoganWillig (S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 446 [internal quotation marks omitted]; see Cathedral Ct. Assoc., L.P. v Cathedral Props. Corp., 116 AD3d 649, 651 [2d Dept 2014], lv denied in part and dismissed in part 24 NY3d 941 [2014]). Indeed, "aside from conclusory assertions," SFC has provided no basis upon which to conclude that the owner and the other disqualified attorneys are likely to testify that they drafted the retainer agreements in an unenforceable manner (Cathedral Ct. Assoc., L.P., 116 AD3d at 651; cf. Zagari v Zagari, 295 AD2d 891, 891 [4th Dept 2002]).
Consequently, we conclude that "there was no showing [by SFC] that [the disqualified attorneys'] testimony may be prejudicial to [HoganWillig's] case" (Advanced Chimney, Inc., 153 AD3d at 481; see S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 446; NY Kids Club 125 5th Ave., LLC, 133 AD3d at 581; Bodkin, 128 AD3d at 1527; Cathedral Ct. Assoc., L.P., 116 AD3d at 651).
Second, after determining—incorrectly—that SFC had shown that it was apparent that the [*3]testimony of the disqualified attorneys may prejudice HoganWillig, the court "then simply imposed disqualification of the firm as the mandated consequence" of the Rules of Professional Conduct (S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 443). That too was error (see id.).
Here, the court erred in failing to "consider such factors as [HoganWillig's] valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification" (id. at 440). "Disqualification denies a party's right to representation by the attorney of its choice," and we conclude under the circumstances of this case that depriving HoganWillig of its right to represent itself in the present action is particularly unwarranted given that counsel and client are one and the same (id. at 443). As the court properly determined when it first considered the original motion, whether HoganWillig thinks it is desirable, despite the disqualification of three of its attorneys, to continue representing itself is a strategic decision that should be left to HoganWillig. If the representation proves difficult, HoganWillig's decision will have hurt only its own interests rather than those of a separate client that the ethical rule is designed in part to protect (see id. at 444). Additionally, we agree with HoganWillig that its disqualification from representing itself, thereby requiring it to retain outside counsel that would have to wade through the complicated and lengthy attorney-client relationship and billing issues, will further "stall and derail the proceedings, redounding to the strategic advantage of [SFC]" (id. at 443). Considering all of the circumstances, SFC has failed to establish any "taint or unfairness" in allowing HoganWillig to continue representing itself in this action (id. at 445).
Based on the foregoing, we conclude that SFC "failed to meet [its] burden of making 'a clear showing that disqualification is warranted,' " and thus the court abused its discretion in granting that part of SFC's reargument motion seeking disqualification of HoganWillig (Lake, 60 AD3d at 1470). In light of our determination, we do not address HoganWillig's remaining contention.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483215/ | Dutton v Young Men's Christian Assn. of Buffalo Niagara (2022 NY Slip Op 06405)
Dutton v Young Men's Christian Assn. of Buffalo Niagara
2022 NY Slip Op 06405
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (206/22) CA 21-00512.
[*1]ROGER DUTTON, PLAINTIFF-APPELLANT,
vYOUNG MEN'S CHRISTIAN ASSOCIATION OF BUFFALO NIAGARA, DEFENDANT-RESPONDENT.
MEMORANDUM AND ORDER Motion for leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483214/ | Dybalski v The Cortright Family Irrevocable Trust Dated July 12, 2007, Judith Varga, Individually & As Trustee of The Cortright Family Irrevocable Trust Dated July 12, 2007 (2022 NY Slip Op 06354)
Dybalski v The Cortright Family Irrevocable Trust Dated July 12, 2007, Judith Varga, Individually & As Trustee of The Cortright Family Irrevocable Trust Dated July 12, 2007
2022 NY Slip Op 06354
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
725 CA 21-00893
[*1]CHRISTY LEE DYBALSKI, PLAINTIFF-RESPONDENT,
vTHE CORTRIGHT FAMILY IRREVOCABLE TRUST DATED JULY 12, 2007, JUDITH VARGA, INDIVIDUALLY AND AS TRUSTEE OF THE CORTRIGHT FAMILY IRREVOCABLE TRUST DATED JULY 12, 2007, ROGER BROWN, DIANNE BROWN, DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS.
LIPPES MATHIAS LLP, BUFFALO (THOMAS J. GAFFNEY OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (FRANK J. JACOBSON OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Paul Wojtaszek, J.), entered June 11, 2021. The order denied the motion of defendants-appellants to dismiss plaintiff's complaint against them.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this action seeking, inter alia, a judgment declaring the beneficial interests in The Cortright Family Irrevocable Trust dated July 12, 2007 (Trust), defendants-appellants (defendants) appeal from an order denying their motion to dismiss the complaint against them pursuant to CPLR 3211 (a) (1). We affirm.
Contrary to defendants' contention, we conclude that Supreme Court properly denied the motion. On a motion to dismiss pursuant to CPLR 3211, the court must "liberally construe the complaint . . . , and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion . . . [The court must] also accord plaintiff[] the benefit of every possible inference . . . Dismissal under CPLR 3211 (a) (1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002] [internal quotation marks omitted]).
Defendants moved to dismiss the complaint against them on the grounds that plaintiff violated the in terrorem clause of the Trust Agreement, thereby forfeiting her interest in the Trust property, and that plaintiff's claims are defeated by Section 3.06 of the Trust Agreement. Although "in terrorem clauses are enforceable, they are not favored and [must be] strictly construed" (Matter of Singer, 13 NY3d 447, 451 [2009], rearg denied 14 NY3d 795 [2010] [internal quotation marks omitted]; see Matter of Neva M. Strom Irrevocable Trust III, 203 AD3d 1255, 1256 [3d Dept 2022]). "The paramount consideration in construing these types of clauses is to effectuate the intent of the decedent[s] or grantor[s] and the purpose of the trust" (Neva M. Strom Irrevocable Trust III, 203 AD3d at 1256 [internal quotation marks omitted]; see Singer, 13 NY3d at 451). "[T]he trust instrument is to be construed as written and the [settlors'] intention determined solely from the unambiguous language of the instrument itself" (Golden Gate Yacht Club v Société Nautique de Genève, 12 NY3d 248, 255 [2009] [internal quotation marks omitted]; see Massey-Hughes v Massey, 200 AD3d 1684, 1686 [4th Dept 2021]). Here, defendants have not established that plaintiff violated the in terrorem clause of the Trust [*2]Agreement, because, contrary to defendants' contention, "plaintiff's action does not assert any interest in the [T]rust other than provided by the express terms thereof and does not contest, dispute, or call into question the validity of the [T]rust [A]greement" (Boles v Lanham, 55 AD3d 647, 647 [2d Dept 2008]). To the contrary, plaintiff's action seeks enforcement of paragraph one of Section 3.06 of the Trust Agreement, which limits the grantors' "power to appoint all or any portion of the principal and undistributed income" to the grantors' lineal descendants alone. We reject defendants' contrary interpretation of Section 3.06 (see generally Cece & Co. Ltd. v U.S. Bank N.A., 153 AD3d 275, 281 [1st Dept 2017]). We conclude that defendants failed to conclusively establish that the language of the Trust Agreement was a complete defense to plaintiff's claims as a matter of law.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483216/ | Counsel Fin. Holdings LLC v Sullivan Law, L.L.C. (2022 NY Slip Op 06413)
Counsel Fin. Holdings LLC v Sullivan Law, L.L.C.
2022 NY Slip Op 06413
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (501/22) CA 21-00891.
[*1]COUNSEL FINANCIAL HOLDINGS LLC, PLAINTIFF-RESPONDENT,
vSULLIVAN LAW, L.L.C., ROBERT C. SULLIVAN, BIANCA T. SULLIVAN, JOHN R. BONDON, PARROT PROPERTIES, INC., ROBBA PROPERTIES, L.L.C., AND SOUTH SIDE INVESTMENT COMPANY, DEFENDANTS-APPELLANTS. (APPEAL NO. 2.)
MEMORANDUM AND ORDER
Motion for reargument or leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483134/ | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0235p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
DANIEL HILS; CHARLES KNAPP; KEN BYRNE;
│
ADARRYL BURCH,
│
Plaintiffs-Appellants, │
│
v. > No. 22-3224
│
│
GABRIEL DAVIS, Director, City of Cincinnati Citizen │
Complaint Authority and IKECHUKWU EKEKE, │
Investigator, City of Cincinnati Citizen Complaint │
Authority, in their official and individual capacities; │
CITY OF CINCINNATI, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:21-cv-00475—Michael R. Barrett, District Judge.
Argued: October 25, 2022
Decided and Filed: November 7, 2022
Before: SUTTON, Chief Judge; DONALD and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills,
Kentucky, for Appellants. Scott M. Heenan, CITY OF CINCINNATI, Cincinnati, Ohio, for
Appellees. ON BRIEF: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview
Hills, Kentucky, Thomas Bruns, BRUNS CONNELL VOLMAR ARMSTRONG, Cincinnati,
Ohio, Zachary Gottesman, GOTTESMAN & ASSOCIATES, LLC, Cincinnati, Ohio, for
Appellants. Scott M. Heenan, Lauren Creditt Mai, CITY OF CINCINNATI, Cincinnati, Ohio, for
Appellees.
No. 22-3224 Hils, et al. v. Davis, et al. Page 2
_________________
OPINION
_________________
SUTTON, Chief Judge. Does the First (and Fourteenth) Amendment give police officers
and their union representatives the right to record or videotape interviews conducted in the course
of a city’s investigation into police misconduct? No, as the district court correctly concluded.
I.
If residents of Cincinnati witness police misconduct, they may lodge complaints with the
City’s Citizen Complaint Authority. The Authority consists of a team of investigators, an
executive director appointed by the city manager, and a seven-person Board appointed by the
mayor. Cincinnati Municipal Code art. XXVII, § 2. In response to a complaint, the Authority
conducts an investigation that usually includes interviews of the relevant officers, any
complainants, and any other witnesses. See id. §§ 2, 2-B, 3-A, 3-B, 3-F. The officers, as a
condition of employment, are required to participate in such investigations and to “provide truthful
and accurate information” to the Authority. R.1 ¶ 11. If the Authority interviews an officer, he or
she may bring a representative from the union—in this case Sergeant Daniel Hils, the President of
Fraternal Order of Police Lodge 69—to the interview. The Authority video records the interviews.
After the Authority finishes the investigation, it prepares findings and recommendations for the
Board’s review. The Board then holds a hearing and approves or rejects the findings and
recommendations. See Cincinnati Municipal Code art. XXVII, §§ 3-C, 3-D. The report later
becomes available to the public. Id. §§ 3-E, 3-F, 5.
In the summer of 2021, Hils claims that he observed troubling behavior with respect to
some of the Authority’s investigations. He alleges that Investigator Ikechukwu Ekeke, in
recording an officer’s interview during an investigation, selectively turned off the recording when
the officer made exculpatory statements. Another time, he alleges, Ekeke “threatened” an officer
before the interview. R.1 ¶ 14.
Hils decided to make his own recordings of the interviews, which he planned to keep and,
if appropriate, share with others. In July 2021, he tried to record an interview of Officer Charles
No. 22-3224 Hils, et al. v. Davis, et al. Page 3
Knapp, whom he represented. The Authority investigator asked Hils to stop, Officer Knapp
refused, and the investigator ended the interview. A day later, Ekeke, along with the Director of
the Authority, Gabriel Davis, formally put in place a policy that prohibits officers or their
representatives from recording the interviews. If an officer refuses to stop the recording, the
Authority reserves the right to end the interview and, if need be, to complete the investigation
without it. The Authority enforced the policy that same day when Hils tried to record interviews
of two officers he represented, Ken Byrne and Adarryl Burch.
Hils and three affected officers sued Ekeke, Davis, and the City of Cincinnati for violating
their free-speech rights. Hils and the officers sought damages and declaratory and injunctive relief
under § 1983. The Fraternal Order of Police Lodge 69, meanwhile, filed an unfair labor practices
charge against the City arising from the same conduct. This charge led to a partial settlement
agreement, in which the City agreed to record all interviews all of the time going forward.
The district court eventually rejected all of the federal claims as a matter of law. It reasoned
that the settlement agreement mooted the selective-recording claims. As to the no-private-
recording policy still in place, the court ruled that the First Amendment does not include a right to
record a government investigation. Hils and the affected officers appeal.
II.
One question dominates all others in this case. Does the First (and Fourteenth) Amendment
give police officers and their representatives a right to record internal interviews of them during a
governmental investigation into alleged police misconduct? We think not. While there are many
potential ways to think about this claim, none of them provides a cognizable basis for relief.
Start with the text of the First Amendment. The relevant language—guaranteeing
“freedom of speech, or of the press”—does not by itself cover this conduct. U.S. Const. amend. I.
A prohibition on recording speech is not a prohibition on speaking. The union representative, Hils,
indeed freely spoke about the City’s recording policy and made some headway in changing it.
Based on his objections as well as the unfair labor practices charge, the City of Cincinnati changed
part of its policy, requiring investigators to record all of the interviews, not bits and pieces of them.
Nor may Hils or the officers seek protection, at least as a textual matter, as members of the press,
No. 22-3224 Hils, et al. v. Davis, et al. Page 4
or as individuals engaged in any such activity. They have not shown that they operate a “press,”
that they engage in such activity, or that they otherwise fall within any special Press Clause
protections.
History and tradition do not help the claimants either. See McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 341–42 (1995) (relying on history and tradition to determine the contours
of the free-speech guarantee); Press-Enter. Co. v. Superior Ct. (Press-Enter. II), 478 U.S. 1, 8–9
(1986) (same); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 605–06 (1982) (same); cf.
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 446 (2015) (similar). We know of no American
tradition, whether under federal or state law, by which the subjects of a governmental investigation
have a right to record all interviews and other fact-gathering efforts in the course of pending
investigations of their alleged misconduct—or, for that matter, the corollary right to make the
recordings or videotapes public before the investigation ends.
Hils and the officers do not identify any tradition of opening similar investigations to the
public—through releases of videotapes of interviews—in the midst of an investigation. If
anything, our traditions cut the other way. Plenty of areas of government factfinding and
deliberation—grand juries, jury and court deliberations, police and FBI interviews of subjects of
interest—do not allow private recordings of the events. We customarily look to the elected
branches—and the state or federal ballot boxes—to permit such access. Over the last several
decades, notably, these venues have not been reluctant to permit some access to government
information. A brief survey of the public-record statutes of the States in our circuit alone shows
plenty of access-enabling laws. E.g., Ky. Rev. Stat. Ann. § 61.872; Mich. Comp. Laws § 15.231
et seq.; Ohio Rev. Code Ann. § 149.43; Tenn. Code Ann. § 10-7-506. But those laws do not apply
here and do not help the claimants in the context of an ongoing investigation.
One risk of permitting the release of, say, a videotaped interview in the midst of an
investigation ought to resonate with the claimants. It’s the risk that only part of the interview will
be shared with the media or that the media will use only part of the video during the nightly news.
If it is unfair to an officer charged with misconduct to turn a recording on and off during an
interview of him, it is equally unfair to the integrity of the investigation and the objective of public
No. 22-3224 Hils, et al. v. Davis, et al. Page 5
confidence in it to share bits and pieces of the investigation with the public before the full
investigation ends.
Precedent does not support this claim either. As is often the case, however, the explanation
requires more elaboration. Several features of the case law in this area deserve note, one partly
helpful to the claimants in broadening protection, the rest not helpful to them.
The helpful point is that the Supreme Court has construed the freedom of the press to
include a right of access to information and has extended this right to non-journalists in a few
settings. “[W]ithout some protection for seeking out the news,” the Supreme Court has said,
“freedom of the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681 (1972); see
Pell v. Procunier, 417 U.S. 817, 834 (1974). At least seven justices in Houchins v. KQED agreed
that the First Amendment protects the “right to gather news ‘from any source by means within the
law.’” 438 U.S. 1, 11 (1978) (quoting Branzburg, 408 U.S. at 681–82); id. at 16 (Stewart, J.,
concurring); id. at 30–32 (Stevens, J., dissenting). The Court’s cases about the right to access
public criminal proceedings, hearings, and trials, moreover, frequently refer to the “press and
public,” not just the right of the press. E.g., Waller v. Georgia, 467 U.S. 39, 44 (1984) (“In several
recent cases, the Court found that the press and public have a qualified First Amendment right to
attend a criminal trial.”); Press-Enter. II, 478 U.S. at 7 (“[T]he right asserted here [to access a
preliminary criminal hearing] is that of the public under the First Amendment.”). Consistent with
these cases, our court has recognized a general First Amendment right to gather information in
public settings. Boddie v. Am. Broad. Cos., Inc., 881 F.2d 267, 271 (6th Cir. 1989); cf. S.H.A.R.K.
v. Metro Parks Serving Summit Cnty., 499 F.3d 553, 560–63 (6th Cir. 2007) (rejecting First
Amendment right to hide cameras in a public park after hours to record a deer-culling operation).
Helpful though this principle may be to the claimants in the abstract, it does not help them
in the concrete given the limited settings in which it applies. A right to gather information does
not require others to give it away or require governments to open up all ongoing proceedings to
the public. The First Amendment does not guarantee “the press a constitutional right of special
access to information not available to the public generally.” Branzburg, 408 U.S. at 684; see also
Pell, 417 U.S. at 833. The Constitution simply does not impose a duty on governments to provide
sources of information not available to members of the public. Pell, 417 U.S. at 834; Branzburg,
No. 22-3224 Hils, et al. v. Davis, et al. Page 6
408 U.S. at 684. A modest exception exists when the government excludes the people from a
space historically open to them, and that space has “play[ed] a particularly significant role in the
functioning of the judicial process and the government as a whole.” Globe Newspaper, 457 U.S.
at 605–06 (right to access criminal trials); see also Press-Enter. II, 478 U.S. at 8–9.
More specifically and less generally, the Supreme Court in case after case has recognized
the power of federal and state governments to close and open doors to sensitive information within
their control. The Court upheld government restrictions on the right to travel to Cuba despite its
effect on the flow of information about U.S. government policies abroad. Zemel v. Rusk, 381 U.S.
1, 16–17 (1965). It upheld a California law barring the press and media from interviews with
specific inmates. Pell, 417 U.S. at 819, 835. And it held that a county sheriff could restrict
newspaper access to a county jail in areas that he had not opened up to public view. Houchins,
438 U.S. at 3–4, 16 (plurality); id. at 18 (Stewart, J., concurring). The Houchins plurality saw “no
basis for reading into the Constitution a right of the public or the media to enter these institutions,
with camera equipment, and take moving and still pictures of inmates for broadcast purposes.” Id.
at 9. So too for the concurrence: “The Constitution does no more than assure the public and the
press equal access once government has opened its doors.” Id. at 16 (Stewart, J., concurring).
That explains why the free-speech and free-press guarantees do not override access restrictions to
the White House, Zemel, 381 U.S. at 17, or to Supreme Court conferences, grand jury
investigations, official governmental meetings, or crime scenes, Branzburg, 408 U.S. at 684–85.
When all is said and done, the First Amendment right to gather information from the government
usually extends as far as the government has opened its doors to the public and press. It thus
includes a right to collect information within government control that is currently public or,
perhaps in discrete settings not shown here, that the government has made public historically.
That leads to another way to think about this claim—that the officers’ appearance at the
interviews amounts to a legitimate condition of employment. The claimants acknowledge that the
officers’ “official duties” include an obligation to participate in investigations by the Authority of
alleged police misconduct. Appellants’ Br. 38. That makes the interviews, whether from the
perspective of the Authority or the officer, a function of government—and the government’s
speech, not the officers’ speech. Garcetti v. Ceballos teaches that governments may impose limits
No. 22-3224 Hils, et al. v. Davis, et al. Page 7
on the way employees carry out their official duties without violating the First Amendment.
547 U.S. 410, 420–22 (2006). So long as the employee is performing an official duty, the
government may direct and control his or her speech. Id. at 421. For First Amendment purposes,
as opposed to, say, Fifth Amendment purposes, the government may not only control the message
of its administration but also may control what employees can and cannot say on the job. Id. at
421–22. “When government speaks, it is not barred by the Free Speech Clause from determining
the content of what it says.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S.
200, 207 (2015). Thus, if the speech at issue is government speech, all we ask is whether the no-
recording policy rationally furthers a legitimate government interest. Cf. Neinast v. Bd. of Trs. of
Columbus Metro. Libr., 346 F.3d 585, 592 (6th Cir. 2003).
That leaves one last possibility—that we should look at this claim through the lens of
whether the Authority’s investigation occurs in a public forum or nonpublic forum. At stake is
whether the “[p]ublic property” is or is “not by tradition or designation a forum for public
communication.” Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983). In
“places which by long tradition or by government fiat have been devoted to assembly and debate,”
such as “streets and parks,” the government “may not prohibit all communicative activity.” Id. at
45. If the speech occurs in a nonpublic forum, by contrast, we ask only whether any restrictions
on speech are reasonable, allowing both speaker-based and subject matter restrictions so long as
the restriction is viewpoint neutral. Id. at 49; Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 806 (1985). The claimants offer no argument that a government investigation—or
more precisely a government investigation room—amounts to a public forum, if indeed it amounts
to a forum at all. Just as the government reserves the polling place for the limited purpose of
voting, Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885–86 (2018), the City restricts access to
these interviews for investigatory purposes. One thoughtful scholar, for what it is worth, views
the government-speech approach of Garcetti as “a doctrinal island” and would assess public
employee speech cases primarily under the public or nonpublic forum analysis. See Randy J.
Kozel, Government Employee Speech and Forum Analysis, 1 J. Free Speech L. 579, 599 (2022).
No. 22-3224 Hils, et al. v. Davis, et al. Page 8
Gauged by these principles, possibilities, and illustrations, the claimants’ argument fails.
The City’s desire to prevent recordings of government investigations during an ongoing
investigation does not violate the First Amendment. In the case of an interview of a police officer,
the City of Cincinnati permits only a few interested parties into the Authority’s investigative
interviews: the Authority’s members, the police officer, and his or her union representative. It
has decided, quite fairly, not to open these interviews into allegations of police misconduct to the
public, and one would expect the officers and their union representative to appreciate why. Hils
and the officers may wish to record the interviews for “posterity” and “possibly” to “release” them
“to conventional and non-conventional media.” R.1 ¶ 15. But the premise of permitting recordings
is that they are public proceedings—and it is the rare governmental entity that conducts the
investigative stage of a civil or criminal matter in public. The reasons need not always turn on
secrecy; they can turn on maintaining operational order too. Take this case, in which Hils and the
officers seek not just to obtain audio recordings, but video recordings as well. It’s not hard to
envision problems that could arise from giving subjects of an investigation the same rights as the
investigators. Perhaps indeed better rights. Admonitions about pictures and words apply tenfold
to videotapes—and considerably more to partial video clips. Yet under the claimants’ view, they
would have the right to release favorable video clips on the evening news or social media sites, all
before the investigation ends. That is not a recipe for a productive and fair investigation into police
misconduct.
The City’s policy also satisfies rational-basis review. Neinast, 346 F.3d at 592. The
Authority has legitimate interests in maintaining order and fairness during its interviews by
ensuring the ongoing interviews are not selectively broadcasted, by ensuring the integrity of the
investigation, by protecting the subjects of the investigation from unfair and precipitous public
criticism, and by trying to prevent other subjects of the investigation from knowing all that was
said in prior interviews. Limiting each officer’s ability to record the interview is rationally related
to achieving those interests.
It is true that a union representative, such as Hils, is not an employee of the City. But that
does not matter. In this setting, he, like an attorney, would be an agent of the employee and thus
limited by any restrictions imposed on the principal, the officer. Because the First Amendment
No. 22-3224 Hils, et al. v. Davis, et al. Page 9
does not give the employees the right to record these interviews, they cannot sidestep this
restriction merely by bringing a union representative or an attorney to the interview.
Hils and the officers challenge this conclusion in several ways, but each comes up short.
They claim that cases from our sister circuits come out differently. But that overstates.
Not one of the cases concerns a right to record internal government proceedings or to compel
public and media access to information during an ongoing investigation. See Blackston v.
Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (per curiam) (right to record public committee
meeting); Glik v. Cunniffe, 655 F.3d 78, 79, 82–83 (1st Cir. 2011) (right to record public actions
of police); ACLU v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (same); Turner v. Lieutenant
Driver, 848 F.3d 678, 688–90 (5th Cir. 2017) (same); Fields v. City of Philadelphia, 862 F.3d 353,
360 (3d Cir. 2017) (same); see also Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203–05
(9th Cir. 2018) (striking down a law that prohibited recordings of private agricultural production
facilities as an impermissible content-based regulation); Chestnut v. Wallace, 947 F.3d 1085, 1090
(8th Cir. 2020) (right to observe police in public).
What about the reality, the claimants point out, that they would have the right to record a
police officer who enters their home during the execution of a warrant and that would be true even
if the public did not have an equivalent right? The question answers itself. Homeowners have a
right to be in their home. Other individuals do not. What a citizen may do under his roof does not
tell us what he may do under the government’s roof or indeed what he is permitted to do once
there. Just as the public does not have a right to accompany the police when they question a suspect
at the local police station, they do not have a right to accompany the police when they execute a
warrant at an individual’s home.
Butterworth v. Smith does not help the claimants either. 494 U.S. 624 (1990). A Florida
statute prohibited a grand jury witness from disclosing any of his testimony after the grand jury
ended. Id. at 626. In prohibiting the State from enforcing this prohibition on free speech grounds,
the Court reasoned that, once the investigation had ended, so too did the State’s interests in keeping
information from the targeted individual. At that point, other interests, such as preventing
subornation of the grand jury, could be protected by other state laws. Id. at 632–33. Butterworth
No. 22-3224 Hils, et al. v. Davis, et al. Page 10
is one sizeable step removed from this case. It concerns the rights of an individual to speak after
a secret proceeding has ended, not a right to welcome the public, as there, into the grand jury itself
or to welcome the public, as here, into an investigation room while the proceedings remain closed
to the public.
Because the Authority’s reports and files eventually will become public, the claimants
persist, the City’s only interest in a no-recording policy is to hide doctored recordings. But just
because the reports and files eventually may become public does not mean that the City lacks a
legitimate interest in maintaining control over the interview during the investigation. Other
mechanisms exist for dealing with the risk of doctored interviews after a report becomes public,
most notably the reality that the officer and Hils can say as much and Hils can use his notes to
show as much.
Hils and the officers claim that Ohio law gave them a right to record the interviews. The
source of that authority, they say, is Ohio Revised Code § 2933.52. But the statute criminalizes
interceptions of oral, wire, and electronic communications unless the interceptor “is a party to the
communication or if one of the parties to the communication has given the person prior consent to
the interception.” Id. § 2933.52(B)(4). That Ohio has chosen not to criminalize certain conduct
does not mean that it has permitted it.
We affirm. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483180/ | People v Barber (2022 NY Slip Op 06358)
People v Barber
2022 NY Slip Op 06358
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
755 KA 21-00471
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vKENNETH BARBER, DEFENDANT-APPELLANT. (APPEAL NO. 1.)
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered March 24, 2021. The judgment convicted defendant upon his plea of guilty of criminal possession of a controlled substance in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). Defendant contends that his waiver of the right to appeal is invalid and that the sentence is unduly harsh and severe. Contrary to defendant's contention, the record establishes that he knowingly, intelligently and voluntarily waived his right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), and we note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal (see People v Carr, 207 AD3d 1249, 1250 [4th Dept 2022], lv denied — NY3d — [Sept. 23, 2022]; see generally People v Thomas, 34 NY3d 545, 567 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the bargained-for sentence (see People v Lococo, 92 NY2d 825, 827 [1998]; see also Lopez, 6 NY3d at 255-256).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483219/ | Buczek v Town of Evans (2022 NY Slip Op 06363)
Buczek v Town of Evans
2022 NY Slip Op 06363
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
767 CA 22-00137
[*1]SHANE CHRISTOPHER BUCZEK, PLAINTIFF-APPELLANT,
vTOWN OF EVANS, TOWN OF CHEEKTOWAGA, TOWN OF BRANT, ERNEST P. MASULLO, NATHAN A. MILLER, PETER A. SMITH, GRANT ZAJAS, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS.
SHANE CHRISTOPHER BUCZEK, PLAINTIFF-APPELLANT PRO SE.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (KARL ERICH DANIEL OF COUNSEL), FOR DEFENDANTS-RESPONDENTS TOWN OF EVANS, ERNEST P. MASULLO, NATHAN A. MILLER, PETER A. SMITH AND GRANT ZAJAS.
Appeal from an order of the Supreme Court, Erie County (Daniel Furlong, J.), entered July 2, 2020. The order, among other things, dismissed plaintiff's complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this action for, inter alia, malicious prosecution and violation of plaintiff's civil rights pursuant to 42 USC § 1983, plaintiff appeals from an order that granted the motions of defendants Town of Evans and Town of Brant to dismiss the complaint pursuant to CPLR 3211 and the Town of Cheektowaga's motion for summary judgment dismissing the complaint. We affirm.
As limited by his appellate brief, plaintiff challenges only those parts of the order that granted the motions with respect to his causes of action for malicious prosecution and under 42 USC § 1983. In that brief, however, plaintiff failed to challenge Supreme Court's first and independently dispositive ground for granting those parts of the motions and dismissing those causes of action. Thus, by failing to address the basis for the court's determination, plaintiff effectively abandoned any challenge to the granting of those parts of the motions (see Walton & Willet Stone Block, LLC v City of Oswego Community Dev. Off., 206 AD3d 1688, 1689 [4th Dept 2022]; Haher v Pelusio, 156 AD3d 1381, 1382 [4th Dept 2017]). To the extent that plaintiff attempts to raise new contentions on appeal for the first time in his reply brief, those contentions are not properly before us (see Solvay Bank v Feher Rubbish Removal, Inc., 187 AD3d 1596, 1597 [4th Dept 2020]; Becker-Manning, Inc. v Common Council of City of Utica, 114 AD3d 1143, 1144 [4th Dept 2014]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483221/ | Brioso v City of Buffalo (2022 NY Slip Op 06380)
Brioso v City of Buffalo
2022 NY Slip Op 06380
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, AND WINSLOW, JJ.
810 CA 21-01698
[*1]RAQUEL BRIOSO, PLAINTIFF-APPELLANT,
vCITY OF BUFFALO, ERIE CANAL HARBOR DEVELOPMENT CORP., LECHASE CONSTRUCTION SERVICES, LLC, PINTO CONSTRUCTION SERVICES, INC., AND BE OUR GUEST, LTD., DEFENDANTS-RESPONDENTS. (APPEAL NO. 1.)
HAGERTY & BRADY, BUFFALO (DANIEL J. BRADY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
NASH CONNORS, P.C., BUFFALO (BETHANY RUBIN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS ERIE CANAL HARBOR DEVELOPMENT CORP., LECHASE CONSTRUCTION SERVICES, LLC, AND BE OUR GUEST, LTD.
BARCLAY DAMON LLP, BUFFALO (VINCENT G. SACCOMANDO OF COUNSEL), FOR DEFENDANT-RESPONDENT PINTO CONSTRUCTION SERVICES, INC.
Appeal from an order of the Supreme Court, Erie County (Mark A. Montour, J.), entered October 27, 2021. The order, among other things, denied plaintiff's motion for partial summary judgment and granted defendant Pinto Construction Services, Inc.'s cross motion for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion of defendant Pinto Construction Services, Inc. in part and reinstating the complaint against that defendant insofar as the complaint, as amplified by the bill of particulars, alleges that defendant Pinto Construction Services, Inc. created and had constructive notice of the allegedly dangerous condition and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this negligence action to recover damages for injuries she sustained when she tripped and fell over a construction sign that was lying on a sidewalk across from a museum where construction was taking place. Plaintiff appeals from an order that, inter alia, denied her motion seeking partial summary judgment on the issue of liability against defendants City of Buffalo (City), Erie Canal Harbor Development Corp. (ECHDC), LeChase Construction Services, LLC (LeChase), and Pinto Construction Services, Inc. (Pinto) and dismissing the affirmative defense of comparative negligence raised by all defendants in their answers, and granted Pinto's cross motion seeking, inter alia, summary judgment dismissing the complaint as against it.
Contrary to plaintiff's contention, we conclude that Supreme Court properly denied her motion insofar as it sought summary judgment on the issue of liability against the City, ECHDC, LeChase, and Pinto. Plaintiff failed to establish as a matter of law that those defendants either created or had actual or constructive notice of the construction sign over which she tripped (see generally Hansford v Wellsby, 149 AD3d 1603, 1603 [4th Dept 2017]; Del Carmen Cuque v Amin, 125 AD3d 1490, 1491 [4th Dept 2015]; Dapp v Larson, 240 AD2d 918, 918 [3d Dept 1997]). We also reject plaintiff's contention that the court erred in denying her motion with respect to the affirmative defense of comparative negligence. Plaintiff failed to meet her initial burden on her motion of establishing "a total absence of comparative negligence as a matter of [*2]law" (Dasher v Wegmans Food Mkts., 305 AD2d 1019, 1019 [4th Dept 2003]; see Reichmuth v Family Video Movie Club, Inc., 201 AD3d 1348, 1349 [4th Dept 2022]).
We agree with plaintiff, however, that the court erred in granting those parts of Pinto's cross motion seeking summary judgment dismissing the complaint against it insofar as the complaint, as amplified by the bill of particulars, alleges that it had constructive notice of the allegedly dangerous condition and that it created that condition, and we therefore modify the order accordingly. "To constitute constructive notice, a [dangerous condition] must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Arghittu-Atmekjian v TJX Cos., Inc., 193 AD3d 1395, 1395-1396 [4th Dept 2021]; Salvania v University of Rochester, 137 AD3d 1607, 1609 [4th Dept 2016]). Here, Pinto failed to meet its initial burden on its cross motion with respect to constructive notice because its submissions "failed to establish as a matter of law that the [dangerous] condition [was] not visible and apparent or that [it] had not existed for a sufficient length of time before the accident to permit [Pinto] or [its] employees to discover and remedy [it]" (Chamberlain v Church of the Holy Family, 160 AD3d 1399, 1401 [4th Dept 2018] [internal quotation marks omitted]; see St. John v Westwood-Squibb Pharms., Inc., 138 AD3d 1501, 1503 [4th Dept 2016]). Testimony from Pinto's superintendent that Pinto had a general policy of taking down and storing its construction signs at the end of each workday was insufficient to establish that Pinto lacked constructive notice of the dangerous condition because Pinto failed to establish that it had complied with that general policy prior to the occurrence of the incident in question (see Arghittu-Atmekjian, 193 AD3d at 1396; Farrauto v Bon-Ton Dept. Stores, Inc., 143 AD3d 1292, 1293 [4th Dept 2016]; Salvania, 137 AD3d at 1609).
Pinto also failed to establish as a matter of law that it did not create the allegedly dangerous condition because its own submissions raise triable issues of fact with respect to that issue (see Britt v Northern Dev. II, 199 AD3d 1434, 1436 [4th Dept 2021]). There is no dispute that Pinto's submissions established that the sign plaintiff tripped over belonged to Pinto. Although the deposition testimony from Pinto's superintendent established that, at the time of the accident, Pinto had not been present at the work site for about a week, he did not know how the sign ended up on the ground or how long it had been there, and he only speculated that the sign may have been used by another contractor who failed to properly put it away. Viewed in the light most favorable to plaintiff (see Gronski v County of Monroe, 18 NY3d 374, 381 [2011], rearg denied 19 NY3d 856 [2012]), the aforementioned evidence raises questions of fact whether Pinto was responsible for the sign's presence on the sidewalk. Because Pinto failed to meet its initial burden on the cross motion with respect to constructive notice and the creation of the dangerous condition, the burden never shifted to plaintiff with respect to those issues, and denial of the cross motion with respect to those issues "was required 'regardless of the sufficiency of the opposing papers' " (Scruton v Acro-Fab Ltd., 144 AD3d 1502, 1503 [4th Dept 2016], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483223/ | Bankers Healthcare Group, LLC v Pasumbal (2022 NY Slip Op 06334)
Bankers Healthcare Group, LLC v Pasumbal
2022 NY Slip Op 06334
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
627 CA 22-00190
[*1]BANKERS HEALTHCARE GROUP, LLC, PLAINTIFF-APPELLANT,
vENRIL L. PASUMBAL, DOING BUSINESS AS ENRIL L. PASUMBAL, R.N., AND ENRIL L. PASUMBAL, DEFENDANTS-RESPONDENTS.
BARCLAY DAMON LLP, SYRACUSE (LEE ALCOTT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
Appeal from an order of the Supreme Court, Onondaga County (Robert E. Antonacci, II, J.), entered October 26, 2021. The order denied the motion of plaintiff for summary judgment on the complaint.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion dated August 19, 2021, is granted in part with respect to the issue of liability and the matter is remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this breach of contract action after defendants defaulted on a "financing agreement," also titled a "promissory note/security agreement/personal guaranty" (note). Insofar as relevant to this appeal, the note provided that "[t]he terms of the [note] and all loan documents executed herewith shall be governed by and construed in accordance with the substantive and procedur[al] laws of the State of Florida, exclusive of the principals [sic] of conflict of laws" (emphasis added).
Plaintiff thereafter moved pursuant to CPLR 3212 for summary judgment on the complaint. Although defendants did not oppose the motion, Supreme Court, relying on 2138747 Ontario, Inc. v Samsung C & T Corp. (31 NY3d 372, 377 [2018]), denied the motion on the ground that it was "incumbent for the [p]laintiff to delineate which 'laws of the State of Florida' apply to this action and how the application of those laws entitle[s] the [plaintiff] to summary judgment."
Plaintiff later filed a second motion for summary judgment on the complaint, this time citing Rule 1.510 (a) of the Florida Rules of Civil Procedure as well as case law from the State of Florida. As with the first motion, defendants failed to respond. The court nevertheless denied the second motion, and plaintiff now appeals. The court stated in its decision that, "having elected to have the 'procedur[al] laws of the State of Florida' apply exclusively in this action, the [p]laintiff could not rely on any of the provisions of New York's Civil Practice Law and Rules in prosecuting this action." The court relied on CPLR 101, which the court quoted in its decision as providing, in pertinent part, that " '[t]he civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute' " (emphasis added by the court). The court thus concluded that, due to the perceived conflict between the contractual choice-of-law provisions and CPLR 101, it could not grant the second motion.
We agree with plaintiff that the court erred in denying the second motion. It is well settled that "freedom to contract is an important public policy in New York" (Deutsche Bank Natl. Trust Co. v Flagstar Capital Mkts., 32 NY3d 139, 154 [2018]), and "courts will generally enforce choice-of-law clauses" (Ministers & Missionaries Benefit Bd. v Snow, 26 NY3d 466, 470 [2015], rearg denied 26 NY3d 1136 [2016]). "[T]he fundamental, neutral precept of contract [*2]interpretation [is] that agreements are construed in accord with the parties' intent, and [t]he best evidence of what parties to a written agreement intend is what they say in their writing . . . In addition, it is a deeply rooted principle of New York contract law that parties may . . . contract as they wish . . . in the absence of some violation of law or transgression of a strong public policy" (2138747 Ontario, Inc., 31 NY3d at 377 [internal quotation marks omitted]).
"Contractual '[c]hoice of law provisions typically apply to only substantive issues' " (id., quoting Portfolio Recovery Assoc., LLC v King, 14 NY3d 410, 416 [2010], rearg denied 15 NY3d 833 [2010]), although parties can agree otherwise. Here, the note provides that "[t]he terms" of the documents are to be governed by the substantive and procedural rules of Florida, but that does not establish that the rules of Florida were intended to govern the procedures of the New York State court system, which would effectively preclude any action on the note in New York. Indeed, the note itself provides that venue for any action related to the note may be in either "Onondaga County, New York or Broward County, Florida." Thus, the parties anticipated that New York courts could and would be able to handle a judicial action related to the note (see id.).
Inasmuch as plaintiff established on the second motion that there was a valid contract and a material breach of that contract (see Cincinnati Ins. Co. v GC Works Inc., 2022 WL 787952, *5, 2022 US Dist LEXIS 35332, *13 [SD Fla, Feb. 25, 2022, No. 21-cv-21159-COOKE/DAMIAN], report and recommendation adopted 2022 WL 783285 [SD Fla, Mar. 15, 2022]; Absen, Inc. v LED Capital, LLC, 2020 WL 9065755, *6, 2020 US Dist LEXIS 252667, *13 [MD Fla, Mar. 19, 2020, No. 6:19-cv-905-Orl-40LRH], report and recommendation adopted 2020 WL 9065756 [MD Fla, Apr. 3, 2020]; see also Harvey v Agle, 115 AD3d 1200, 1200 [4th Dept 2014]; Niskayuna Sq., LLC v 81 & 3 of Watertown, Inc., 12 AD3d 1160, 1160 [4th Dept 2004]), and defendants failed to raise a material issue of fact in opposition, we conclude that plaintiff is entitled to partial summary judgment on the issue of liability under either Rule 1.510 (a) of the Florida Rules of Civil Procedure (see generally Sterling Mirror Co., LLC v Jordan Glass Corp., — So 3d &mdash, &mdash, 2022 WL 2231263, *1, 2022 Fla App LEXIS 4307, *1 [Fla Dist Ct App 2022]; Beezley v Deutsche Bank Natl. Trust Co., 336 So 3d 814, 816-817 [Fla Dist Ct App 2022]; Jaffer v Chase Home Fin., LLC, 155 So 3d 1199, 1202-1203 [Fla Dist Ct App 2015]) or CPLR 3212 (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We therefore reverse the order on appeal, grant the second motion in part with respect to the issue of liability and remit the matter to Supreme Court for a determination of damages.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483240/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0550
No. DA 21-0550
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MISTY JUNE MILLER,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 23, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483238/ | 2022 IL App (1st) 211611-U
No. 1-21-1611
Order filed November 10, 2022
Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
MARCUS NORMAN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
)
v. ) No. 21 M1 625316
)
)
CITY OF CHICAGO DEPARTMENT OF )
ADMINISTRATIVE HEARINGS and THE CITY OF )
CHICAGO, ) Honorable
) Leonard Murray,
Defendants-Appellees. ) Judge, presiding
JUSTICE DELORT delivered the judgment of the court.
Justices Cunningham and Mitchell concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s judgment affirming the final decision of the
Department of Administrative Hearings that upheld plaintiff’s fine for an expired
vehicle registration.
¶2 Plaintiff Marcus Norman appeals from an order of the circuit court affirming the final
decision of the City of Chicago Department of Administrative Hearings (DOAH) that upheld a
No. 1-21-1611
fine from the City of Chicago Department of Finance (DOF) for having an expired vehicle
registration. We affirm.
¶3 The record on appeal does not contain a transcript of either the administrative hearing or
the circuit court proceedings. The following facts appear in the common law record, which
contains Norman’s complaint for administrative review; his specification of errors, the City’s
administrative record, including records related to the DOF fine and the DOAH final decision;
and the circuit court’s orders.
¶4 On May 17, 2021, the DOF issued Norman a notice for violation of section 9-76-160(b)
of the Chicago Municipal Code (Chicago Municipal Code § 9-76-160(b) (amended Apr. 21,
2021)) for having an “expired plate or temporary registration,” with a fine of $60. Attached to
the violation notice, which is included in the record on appeal, are two photographs dated May
16, 2021, at 7:41 a.m., depicting Norman’s car with a license plate and a registration sticker with
an expiration date of June 2020.
¶5 On May 21, 2021, Norman requested a hearing with DOAH and submitted documents
including the violation notice with a handwritten notation, “no contract void.” He also provided a
handwritten note that listed the violation number and stated “void no jurisdiction no contract
UCC 1-308,” and a handwritten letter addressed to the Clerk of the City of Chicago asserting that
he was not “engaged in commerce” and was traveling in his “private automobile” at the time of
the violation. Further, he asserted that he did not have any “valid contracts” with the City of
Chicago, nor did he “consent to be subject to City of Chicago laws, statu[t]es, codes, ordinances,
policy, or any corporation contract.” He cited section 1-308 of the Uniform Commercial Code
(810 ILCS 5/1-308 (West 2020)) and concluded, “do not ticket my automobiles. I am exempt.”
-2-
No. 1-21-1611
¶6 On May 27, 2021, after reviewing the evidence submitted, an administrative law judge
for the DOAH entered a final decision finding that Norman did not raise a permissible defense to
the violation of the ordinance and, thus, was responsible for the fine.
¶7 Norman filed a complaint for administrative review in the circuit court of Cook County.
Defendants, the City of Chicago and DOAH, filed their answer, consisting of the administrative
record.
¶8 On November 2, 2021, Norman filed a specification of errors asserting that he was not a
“commercial driver, broker, or carrier,” the “D.O.T. Codes” did not apply to him, and he did not
“consent” to the administrative procedures “forced upon” him. He attached several handwritten
documents, citing federal case law for general principles including an individual’s right to travel
upon a highway.
¶9 On November 16, 2021, the circuit court affirmed the final decision of the DOAH in a
form order. The court found that “[t]he Findings, Decision and Order entered *** will stand and
is a debt due and owing the City of Chicago.”
¶ 10 On appeal, Norman contends, among other things, that the Chicago Municipal Code
provision at issue applies to commercial “motor carriers,” not his personal use of his vehicle and,
further, that he “recinded [sic] [his] license, plates and registration” because, despite being a
Chicago resident, he was not subject to Chicago’s “political boundaries.” Additionally, he argues
the court based its judgment on “hearsay” and presented “no injured party.” He asserts that he
-3-
No. 1-21-1611
was “jailed” and his property was “stolen under color of law.” He asks that this court reverse the
circuit court’s judgment and compensate him for “property damage.”1
¶ 11 First, we note that Norman’s brief fails to comply with the requirements of Illinois
Supreme Court Rule 341 (eff. Oct. 1, 2020), which governs the content of appellate briefs. For
example, his brief does not contain a statement of facts necessary to understanding the case,
stated accurately and fairly without argument or comment. See Ill. S. Ct. R. 341(h)(6) (eff. Oct.
1, 2020). Nor does it contain an argument section containing citations to the record or to legal
authority supporting his claims without lengthy recitation of the evidence. See Ill. S. Ct. R.
341(h)(7) (eff. Oct. 1, 2020). His brief instead consists of lengthy allegations attacking the
fairness of the court, recitation of irrelevant statutes, regulations, federal rules, and case law, and
general assertions as to the inapplicability of the Chicago Municipal Code.
¶ 12 A reviewing court is entitled to have briefs submitted that present an organized and
coherent legal argument in accordance with the supreme court rules. Twardowski v. Holiday
Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001). A party’s status as a self-
represented litigant does not relieve him of the obligation to comply with the applicable appellate
practice rules. Fryzel v. Miller, 2014 IL App (1st) 120597, ¶ 26. The supreme court rules are not
suggestions, and we may strike a brief or dismiss an appeal where the appellant’s brief does not
comply with Rule 341’s requirements. Epstein v. Davis, 2017 IL App (1st) 170605, ¶ 22. In this
case, however, we have the benefit of the City’s cogent brief, and therefore decline to dismiss the
appeal on this basis. See North Community Bank v. 17011 South Park Ave., LLC, 2015 IL App
1
Plaintiff’s notice of appeal improperly identifies the circuit court judge and the Department of
Finance (DOF) of the City of Chicago as defendants.
-4-
No. 1-21-1611
(1st) 133672, ¶ 14 (reviewing merits of the appeal despite appellant’s numerous violations of
Supreme Court Rule 341(h)).
¶ 13 Under the Chicago Municipal Code, a final decision entered by the DOAH regarding a
code violation is subject to judicial review under the Illinois Administrative Review Law.
Chicago Municipal Code § 2-14-102 (added Apr. 29, 1998). Under the Administrative Review
Law, “[t]he findings and conclusions of the administrative agency on questions of fact shall be
held to be prima facie true and correct.” 735 ILCS 5/3-110 (West 2020). We review questions of
law de novo. Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497, 532 (2006). We
also interpret municipal ordinances de novo using the general rules of statutory interpretation and
construction. Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 847-50 (2007).
¶ 14 Here, Norman does not contest that he received a violation notice for an expired
registration sticker, nor that his registration had been expired for almost a year. Instead, he
primarily argues that the Chicago Municipal Code provision requiring a vehicle’s registration
does not apply to him because he is not a commercial motor carrier. Plaintiff also alleges that he
is generally exempt from ordinances requiring a vehicle to be registered.
¶ 15 Under the Chicago Municipal Code, “[e]very vehicle in the City subject to the
registration plates requirements of the Illinois Vehicle Code shall bear registration plates in the
manner required by that Code.” Chicago Municipal Code § 9-76-160(a) (amended Apr. 21,
2021). A violation exists if the vehicle does not clearly display proper registration for the current
period. Chicago Municipal Code § 9-76-160(b) (amended Apr. 21, 2021). Under the Illinois
Vehicle Code, “[e]very motor vehicle *** when driven or moved upon a highway shall be
-5-
No. 1-21-1611
subject to” registration, except under enumerated circumstances. 625 ILCS 5/3-402(A) (West
2020).
¶ 16 A notice of violation “shall be prima facie evidence of the correctness of the facts
specified therein.” Chicago Municipal Code § 9-100-070(c) (amended Oct. 28, 2015). The
Chicago Municipal Code outlines several grounds for contesting a violation, including, among
other things, that the cited individual did not own the vehicle, the vehicle’s registration plates
were stolen at the time of the violation, or that the violation did not exist at the time the notice
was issued. Chicago Municipal Code § 9-100-060(a)(1), (2), (6) (amended Nov. 21, 2017).
¶ 17 Here, the notice specifying that Norman violated the registration requirement, including
the photographs showing the expired registration sticker, was prima facie evidence of the
violation. See Chicago Municipal Code § 9-100-070(c) (amended Oct. 28, 2015). The record
contains no evidence that Norman presented a proper ground for contesting the violation.
Further, his primary asserted “defense” to the violation, that he was not subject to the Chicago
Municipal Code because he was not a commercial carrier or due to some other unspecified
status, is not an exemption to the registration requirement. See 625 ILCS 5/3-402(A) (West
2020) (listing exemptions). Accordingly, the DOAH correctly held that plaintiff was responsible
for the assessed fine.
¶ 18 In so holding, we note that Norman’s defenses are clearly taken straight from the
playbook of so-called “sovereign citizens,” who are persons who clog the court system by
espousing nonsensical legal theories. See generally Parkway Bank and Trust Company v.
Korzen, 2013 IL App (1st) 130380 (imposing a $5,000 sanction against defendants who asserted
“sovereign citizen” theories). These theories have “no conceivable validity in American law.”
-6-
No. 1-21-1611
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990). To provide just a few examples
here: Norman relies on the Uniform Commercial Code, a statute which has absolutely nothing to
do with vehicle registration but which is often cited by sovereign citizens to no avail. He also
claims to be a “flesh and blood living man” who “did not consent” to the City of Chicago, in
which he resides, using its plenary authority to tax and regulate motor vehicles. See James
Erickson Evans, The “Flesh and Blood” Defense, 53 Wm. & Mary L. Rev. 1361, 1363 (2012).
And his argument that the City can only require licenses on commercial vehicles is a well-
recognized, and utterly discredited, sovereign citizen theme. See generally Southern Poverty Law
Center, Sovereign Citizens Movement, available at https://www.splcenter.org/fighting-
hate/extremist-files/ideology/sovereign-citizens-movement (last visited October 31, 2022).
¶ 19 We have reviewed Norman’s other contentions of error and find them to be without
merit. We affirm the judgment of the circuit court of Cook County.
¶ 20 Affirmed.
-7- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483241/ | 11/10/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 3, 2022
IN RE JOSEPH D.
Appeal from the Juvenile Court for Hickman County
No. 21-JV-133 Amy Cook Puckett, Judge
___________________________________
No. M2021-01537-COA-R3-PT
___________________________________
This appeal involves a petition to terminate parental rights. The juvenile court found by
clear and convincing evidence that six grounds for termination existed as to the mother: (1)
abandonment for failure to provide a suitable home; (2) substantial noncompliance with a
permanency plan; (3) persistent conditions; (4) severe child abuse; (5) failure to manifest
an ability and willingness to assume custody or financial responsibility; and (6) mental
incompetence. The juvenile court also found that termination was in the best interests of
the child. The mother appeals. We affirm.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KRISTI M. DAVIS, JJ., joined.
Caleb Thomas, Hohenwald, Tennessee, for the appellant, Nabila L. N.
Herbert H. Slatery, III, Attorney General and Reporter, and Kathryn A. Baker, Senior
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.
Derek K. Burks, Brentwood, Tennessee, Guardian Ad Litem.1
OPINION
I. FACTS & PROCEDURAL HISTORY
Nabila L. N. (“Mother”) is a mother to two children: David and Joseph. This matter
1
On appeal, the guardian ad litem filed a notice that he was adopting the brief filed by the Tennessee
Department of Children’s Services.
only concerns Mother’s second child, Joseph. Nevertheless, there are facts involving her
first child, David, which are necessary to discuss. Additionally, we note that many of the
facts and procedural history in this matter involve Darin L. D. (“Father”), but he voluntarily
surrendered his parental rights to Joseph prior to the commencement of the trial.2
Therefore, this matter only concerns the termination of Mother’s parental rights as to
Joseph.
David was born in Florida in 2014. His father passed away when Mother was five-
months pregnant. Sometime later, Mother moved with David to Nevada, where she
became involved in an abusive relationship with another man. In February 2017, she
decided to move with David to Tennessee to be with Father, who was a friend that she had
reconnected with online. In hindsight, Mother agreed that this was a poor decision because
it put her and David in a bad position. According to Mother, Father had told her that he
had a home and a job, but he had lied to her because he was actually homeless at the time.
She explained that he was a different person than who she thought he was and that she
became angry because he had lied to her. This led to a domestic violence incident where
she threw a beer bottle at him during their first night together in a hotel room. Father stated
that the bottle smashed against the wall and cut his arm. He said he left the room hoping
that Mother would calm down, but when he returned, his things were thrown all over the
room. He also had to clean up the broken glass which had scattered across the room into
his luggage and on one of the beds. Mother admitted that her actions not only risked
Father’s safety during this incident, but she also risked David’s safety because he was in
the room with them.
Despite this incident, they continued to reside together and “jumped” from hotel to
hotel until Father could obtain employment. Mother stated that some weeks were great but
others were horrible because the domestic violence between them continued. She said that
Father was an alcoholic and would often choke her when she would not give him money
for beer. According to Father, however, Mother’s behavior became worse as they
continued their relationship. He believed that she had an anger problem due to a past health
issue that affected her brain function. He said that there was a total of seven domestic
violence incidents between them and that he was injured in six of them. For instance, she
broke his glasses; punched him in the face; scratched him with her fingernails; broke items
around their house; hit him in the head with an ashtray; and broke his column shifter in his
vehicle. Father stated that he had scars from his injuries and that David witnessed some of
these incidents. He described his time with Mother as “traumatizing.” He also maintained
that he did not instigate any of the domestic violence between them and that Mother was
the aggressor.
2
Father later testified at the trial that he was happy with where Joseph was placed. He stated that
he knew that Joseph would be better off with his foster parents. While he thought that Mother loved Joseph,
he felt that it would not be safe for Joseph to live with her.
-2-
In July 2017, the Tennessee Department of Children’s Services (“DCS”) became
involved when it received a referral alleging physical abuse. According to the referral, a
witness observed Mother throwing two-and-half-year-old David around “like a rag doll”
at a laundromat and reported that she “threw him on the ground,” “punched him in his
head,” and “hit [him] in the face with a baseball cap.” When law enforcement arrived and
questioned Mother, she denied punching David but admitted that she may have slapped
him on his head. Law enforcement observed bumps on David’s head consistent with a
punch to the head, as well as numerous cuts, scrapes, and bruises. Mother reported that the
injuries were from David falling all the time. That same day, a child protective services
investigator (“CPSI”) and an officer met with Mother at her home. David, who was just a
toddler at the time, was observed to have bruises and scratches on his body and knots on
the top of his head. Mother reported that the injuries were from David falling out of a
wagon in the gravel driveway a week prior. She denied that she punched David but
admitted that she had slapped him. The CPSI and Mother then went to a clinic, where
Mother again reported to the medical staff that David’s injuries were from playing in the
gravel. The medical staff had major concerns and reported that the injuries were not
consistent with Mother’s story. Thus, Mother was arrested the following day and
incarcerated for ten days on charges of child abuse.
DCS then filed a petition in the Humphreys County Juvenile Court, in which it
alleged that David was dependent and neglected and was a victim of severe abuse. The
juvenile court then entered a protective custody order awarding temporary legal custody to
DCS and finding probable cause to believe that David was dependent and neglected. The
court removed David from Mother’s legal custody and placed David in the legal custody
of DCS. Ultimately, after an adjudicatory hearing, the juvenile court entered an order in
November 2017 finding clear and convincing evidence that David was dependent and
neglected and was a victim of severe abuse.3 Mother later testified about this particular
incident at the laundromat, stating that David “became irate” and was “screaming his head
off.” She explained that she then took his wrist, she slapped him on his rear end, and
apparently someone driving by the laundromat saw this and called the police. She admitted
that she was angry that day because she had a lot going on and was overwhelmed. At first,
she testified that she did not hit him too hard, although she admitted to leaving spank marks
on him. However, she eventually admitted that she hit him too hard.
While Mother was incarcerated for child abuse, she discovered that she was
pregnant with her second child. After her release, she continued to live with Father while
she was pregnant, and her second child, Joseph, was born in February 2018. In July 2018,
DCS received a referral which stated that law enforcement became involved in a domestic
violence incident between Mother and Father. The referral reported that Mother had a knot
3
In September 2018, the juvenile court entered an order discharging David from DCS custody and
awarding legal custody of David to his paternal relatives who had cared for him since February 2018. The
juvenile court entered a final order in David’s case in March 2019.
-3-
on her head and Father had two black eyes. According to the referral, Mother admitted to
hitting Father but reported that he responded in kind. However, Father denied hitting
Mother and reported that Joseph was in Mother’s arms when she hit him. Mother and
Father were both arrested and incarcerated. A CPSI interviewed both Mother and Father
while they were incarcerated and learned that domestic violence was common between
them. A child and family team meeting (“CFTM”) was held a few days later in order to
discuss concerns and services needed. During that meeting, Mother admitted that she had
anger issues which led to her oldest child, David, being removed from her care for severe
abuse. She also reported that she was participating in services but continued to have “anger
outbursts.” Upon further investigation, the CPSI discovered that Mother was substantiated
for the allegation of severe abuse against David. The CPSI contacted the family service
worker (“the FSW”) in David’s case to gather more information about Mother. The FSW
reported that Mother had “extreme anger issues” and that she had concerns about Mother’s
ability to parent by herself. Furthermore, the FSW was concerned because services had
been in place for a while, but Mother’s issues were still occurring.
Mother and Father later testified about their domestic violence incident and told two
different stories. According to Father, Mother swung at him and broke his glasses in an
argument between them. He said that Mother became violent with him when he told her
he wanted to take Joseph with him because he had safety concerns. When she became
violent, Father said that he began to pack his things into his vehicle and that he called law
enforcement. He reiterated that Mother was holding Joseph in her arms while she was
hitting him. Therefore, he said the only thing he did was hold her from hitting him. He
also said that he was bleeding from his injuries that she inflicted. When law enforcement
arrived, he stated that they were not going to arrest him at first, but Mother had a knot on
her head and had claimed that he had punched her. Father claimed that the knot on
Mother’s head came from her intentionally hitting her head against the wall. He maintained
that he did not punch her and had never hit a woman before. Father said that law
enforcement apparently examined his handprint and determined that the punch was self-
inflicted.
Mother, however, testified that they had a horrible fight the night before Joseph was
removed. She stated that Father was on drugs, threatened to take Joseph, cussed at her,
and called her a whore. At one point, she stated that she could not remember what
specifically happened but the bottom line was that he wanted to take Joseph from her. She
said she did not call law enforcement that night because she was “frozen” and “paralyzed”
with fear. Father slept on the couch that night while she and Joseph slept in the bedroom.
The following morning, Father allegedly yelled at her saying “give me my son” and
threatened to grab Joseph while she was holding him in her arms. Mother explained that
she pushed Father in his chest to go out the door and “that’s when all hell broke loose.”
She claimed that she was scared and screaming because he was choking her, kicking her,
and pulling her hair. She denied that she punched him in the face stating that it was not
possible while she was holding Joseph. Yet, she admitted that she pushed him while she
-4-
was holding Joseph. Contrary to Father’s testimony, she said that she was the one who
called law enforcement. Additionally, she stated that she and Father separated at this time.
Following this incident in July 2018, four-month-old Joseph was removed from the
home and placed in the care of paternal family members. DCS filed a petition in the
Hickman County Juvenile Court, in which it alleged that Joseph was dependent and
neglected. The Hickman County Juvenile Court entered an ex parte protective custody
order finding probable cause to believe that Joseph was dependent and neglected. The
court further found that it was reasonable for DCS to make no effort to maintain Joseph in
the home under the circumstances. Therefore, the court removed Joseph from Mother’s
legal custody and awarded legal custody of Joseph to DCS. Several days later, the court
entered an order transferring jurisdiction to the Humphreys County Juvenile Court due to
David’s case being in that court.
The first permanency plan was developed in August 2018 and ratified in November
2018. Mother’s responsibilities from that plan are summarized as the following:
1. Refrain from incurring any other legal charges and resolve all current legal charges,
make good peer choices, and refrain from associating with people who are using or
selling illegal substances;
2. Continue attending therapy as recommended by her mental health intake and take
medication as prescribed;
3. Submit to random pill counts and random drug screens;
4. Participate in and complete family violence/domestic violence counseling and
utilize the skills learned in order to interact appropriately when discussing Joseph’s
well-being;
5. Begin therapeutic supervised visitation with Joseph, visit with Joseph consistently
and as scheduled, bring and provide necessary items to Joseph during the visits,
interact with Joseph in an appropriate manner, and supervise Joseph well during the
visits;
6. Obtain and maintain a regular means of transportation;
7. Maintain a legal means of income in order to provide for Joseph and apply for low-
income housing to free up more income to provide for other family needs;
8. Continue working with Healthier Beginnings; and
9. Work to develop a positive support system to assist her with the care of Joseph if
needed.
Mother also signed the form setting forth the criteria and procedures for termination of
parental rights. Soon after Mother began exercising visitation with Joseph, there was a
verbal altercation between her and the therapeutic supervisor with Health Connect who
was supervising visitation at the time. Joseph had been sick with a fever which resulted in
a cancelled visit. At the next visit, Mother expected the cancelled visit to be made up and
became frustrated when the supervisor said that would not happen. The supervisor reported
-5-
that Mother called her a “b***h.” As a result of this altercation, Mother requested a new
supervisor for visitation, and a new supervisor took the case. There was also an incident
involving an acquaintance of Mother who was reported to have made threats toward Father.
Father had text messages in which the acquaintance threatened to kill him. Mother denied
that the acquaintance was her boyfriend, but the FSW at the time was concerned that this
acquaintance had obtained Father’s contact information. Afterward, Mother apparently
ended things with the acquaintance because there was no other indication that they were
involved with each other.
After an adjudicatory hearing, the Humphreys County Juvenile Court entered an
order in December 2018 finding clear and convincing evidence that Joseph was dependent
and neglected. The court noted in its order that Mother was participating in services, but
DCS had reported “the original issues that brought this case to light [we]re still present and
[we]re a concern.” In January 2019, Joseph was removed from his paternal relatives and
placed in his current foster home. Around this time, Mother began a relationship with a
new paramour. The permanency plan was revised in January 2019 and ratified in May
2019. In addition to her previous responsibilities, Mother was required to do the following:
1. Continue to address domestic violence and anger management through her
counseling at Centerstone;
2. Work with providers to schedule visits and ensure that the FSW and providers have
a current phone number;
3. Complete a neuropsychological evaluation to help identify areas of organic damage
and to provide recommendations of how she can parent Joseph more effectively;
4. Attend all court hearings and meetings regarding Joseph;
5. Obtain and maintain housing and utilities consistently which were appropriate for
Joseph, provide a current address to the FSW, and update a change in phone number
within 48 hours to ensure consistent access to visits and services; and
6. Answer calls, return texts, and communicate with providers consistently.
The plan noted that Mother had completed family violence services at the time. Again,
Mother signed the form setting forth the criteria and procedures for termination of parental
rights. Mother also filed a motion to transfer the case back to Hickman County noting that
it was originally transferred to Humphreys County so that the case could be combined with
David’s case. However, David’s case had been closed and only Joseph’s case remained.
As a result, the Humphreys County Juvenile Court entered an order transferring Joseph’s
case back to the Hickman County Juvenile Court.
The permanency plan was revised again in July 2019 and ratified in September
2019. In addition to her previous responsibilities, Mother was required to do the following:
1. Complete a parenting assessment to help identify the areas that needed to improve
so that she could effectively parent Joseph in her home;
-6-
2. Continue to follow recommendations from her psychological evaluation;
3. Obtain all prescription printouts from her pharmacy to see if her medications were
accidentally filled twice in the same month;
4. Continue working with Early Intervention through the Health Department during
visits;
5. Obtain her permit, practice driving, and take her driver’s license test again;
6. Provide proof of income to the FSW; and
7. Change shirts if she has been smoking cigarettes prior to a visit.
Furthermore, Mother’s paramour was required to complete a mental health assessment and
appropriate services. The plan noted that Mother completed a psychological evaluation
with a parenting component in April 2019 and was following the recommendations from
that evaluation.4 However, the plan also noted that she was having difficulty retaining
information in counseling. Again, Mother signed the form setting forth the criteria and
procedures for termination of parental rights.
In September 2019, Mother and her paramour were involved in a domestic violence
incident. Mother later testified about the incident stating that she pushed or hit her
paramour beneath the shoulder during an argument because he was trying to leave her. She
said that he responded by pushing her, hitting her, and choking her. At first, she testified
that she could not remember where he hit her. Yet, when she was later asked how many
times he hit her, she said, “I know once in the face. Just once that I remember.” Regardless,
she stated that it was bad enough that she had to call the police for help because she was
scared. Her paramour admitted to hitting her, but he denied that he ever choked her.
Although her paramour left after this incident, he later returned to live with Mother and
was ultimately arrested in February 2020 for the incident. According to the FSW at the
time, Mother did not disclose the incident; instead, she lied to DCS by stating that her
paramour had left Tennessee to take care of his mother.
The permanency plan was revised again in June 2020 and ratified in September
2020. Mother’s paramour was added to the plan because they were engaged at this point.
In addition to her previous responsibilities, Mother was required to complete family
violence counseling with her paramour through Health Connect. Her paramour was
required to complete family violence counseling with Mother through Health Connect,
participate in random drug screens, and submit to a background check. In October 2020,
Mother and her paramour were involved in another domestic violence incident. Law
enforcement responded to the incident and spoke with both Mother and her paramour. An
officer who spoke with Mother testified that she was not consistent in what she told him
and that what she told him was “jumbled” and “difficult to discern.” Mother informed the
4
Mother had already completed a psychological evaluation in David’s case. Thus, she was
following the recommendations of that evaluation, such as therapy, before she completed this psychological
evaluation in Joseph’s case.
-7-
officer that she grabbed her paramour’s arms and that he then placed her on the floor at
some point and began choking her. The officer observed a mark on Mother’s lip and red
streak running down her chin. The officer then spoke with the paramour who explained
that he had enough of their relationship and began packing his things after a heated
argument between them. He further explained to the officer that Mother grabbed him, bit
his wrist, and jumped on his back. The officer observed a bite mark on the paramour’s
wrist and scratches on his back and neck, which were consistent with the injuries he said
she inflicted. Mother was arrested for domestic assault as a result of this incident. Mother
later admitted that she was the aggressor in this incident.
Following this incident, the permanency plan was revised again in October 2020
and ratified in February 2021. In addition to her previous responsibilities, Mother was
required to follow all court orders and refrain from obtaining any new legal charges;
complete a mental health intake with Camelot, be truthful regarding her anxieties and
traumas, and follow all recommendations for services; and show proof of her lease and
utilities and her payments for a minimum of four months. Additionally, the plan stated that
her paramour was no longer allowed back in her home. The juvenile court entered an order
stating that her paramour could not reside with Mother if Joseph returned to her home and
that he could not participate in any visitation with Joseph. Mother signed the form setting
forth the criteria and procedures for termination of parental rights in December 2020, but
she refused to sign the same form in January 2021 without permission from her attorney.
Despite the plan’s requirement and the court’s order, Mother continued to allow her
paramour to reside in her home until October 2021. In February 2021, Mother’s paramour
contacted the FSW at the time and informed her that Mother had attempted suicide. After
becoming upset, Mother had taken a kitchen knife and cut her left wrist. As a result of the
attempted suicide, she was hospitalized for approximately two weeks. Mother later
testified about the attempted suicide and explained that she did not want to kill herself that
day. Rather, she just wanted to cut herself to stop the emotional pain. Therefore, she
disagreed that it was an attempted suicide, but she said she took responsibility for her
actions. In April 2021, DCS filed a petition to terminate the parental rights of Mother
alleging six grounds against her: (1) abandonment for failure to provide a suitable home;
(2) substantial noncompliance with a permanency plan; (3) persistent conditions; (4) severe
child abuse; (5) failure to manifest an ability and willingness to assume custody or financial
responsibility; and (6) mental incompetence. DCS also alleged that termination was in the
best interests of the child.
In June 2021, there was yet another incident at a visit that resulted in law
enforcement being called due to safety concerns. The visit was occurring outside Mother’s
home when a therapeutic supervisor reminded Mother to change Joseph’s diaper, which
was something she would do regularly throughout visitation because Mother had asked her
for such reminders. Mother immediately became upset, and the situation escalated.
Mother told the supervisor to “shut the f**k up.” When the supervisor informed Mother
-8-
that the visit would be ending, Mother called her a “b***h.” Mother later admitted to
calling the supervisor a “b***h” in front of Joseph, but she denied cursing further. After
this verbal altercation, Mother picked Joseph up and took him inside to attempt to change
his diaper. She was visibly upset and was attempting to get the supervisor not to end the
visit. At some point when they were inside, Joseph ran back to his bedroom to lay on his
bed and Mother followed him. The supervisor attempted to remove Joseph from the
situation, but Mother had knelt down and put her arms over him to prevent her from doing
so. According to Mother, she did not want him to leave so she put her arms around him.
Joseph appeared to be confused and upset and covered his face with his hands. Therefore,
the supervisor became concerned and called law enforcement to intervene. When law
enforcement arrived, an officer spoke with Mother to deescalate the situation and
convinced her to let the supervisor take Joseph out of the home. According to the
supervisor, Joseph appeared to be relieved after he was removed from the situation. Mother
then came outside and apologized to the supervisor for the incident. Following this
incident, the guardian ad litem filed a motion to suspend Mother’s visitation and contact
with Joseph. The juvenile court entered an order suspending Mother’s in-person parenting
time with Joseph but allowed her parenting time to continue via video. In October 2021,
Mother filed an answer to DCS’s petition. Among other things, she raised the affirmative
defense of willfulness “to all grounds of abandonment.” The juvenile court then held a
two-day trial.
The court heard testimony from Ms. Daphne Baer, who was the FSW from July
2018 until October 2019. She ultimately did not feel that Mother had the ability to parent
without assistance. She had several concerns regarding Mother: her behavior during
visitation; her ability to care for Joseph unsupervised; her honesty; her compliance with
medication; her ability to retain information; and her issues with domestic violence. Based
on these concerns, she explained that DCS never reached the point where it felt that it could
leave Joseph unsupervised with Mother while she had the case. As such, she never
recommended for Mother to have unsupervised visitation stating that it would not have
been wise. For instance, she explained that Mother had difficulty remembering things,
which might lead to her giving Joseph too much medicine or formula. She also felt that
Mother’s mental health issues allowed her to be taken advantage of by men. She explained
that the psychological evaluations identified that Mother had a phobia of being left alone
which made her more accepting of men who did not treat her well. Additionally, if Mother
was still with her paramour, she would be afraid to put Joseph back in the home based on
the domestic violence issues and some of the paramour’s traits.
Ms. Baer had some positive things to say about Mother. She testified that Mother
maintained regular contact with her and that visitation was important to Mother. While
she had the case, she stated that Mother completed a mental health intake and psychological
evaluations, attended therapy, obtained employment, signed releases of information,
completed classes, and participated in a parenting component in addition to her visitations.
She even credited Mother for reading to Joseph in a way that kept him engaged at visits
-9-
and stated that she had never met a mother who could read so animatedly to a child. She
testified that Mother worked hard to comply with the requirements of her permanency plan
but was unable to retain information. Therefore, while Mother had been cooperative and
completed services, the issue was that she failed to comprehend the information that was
given to her and did not retain the information in order to change her behaviors. She felt
that Mother could possibly overcome the issues in this case but explained that DCS also
had to consider the question of how long it would wait for that to occur while it kept Joseph
without stability and permanency.
Ms. Baer felt that she tried hard to help Mother as much as she could. Therefore,
she did not feel that there was anything more she could have offered or done differently to
assist Mother. She said she returned Mother’s calls and text messages within a reasonable
time. She went over the responsibilities of the permanency plan with her, helped her with
services, and visited her regularly. She provided transportation for her to meetings, to
court, to psychological evaluations, and to get job applications. She encouraged her to
apply for low-income housing so that she would have more money available to purchase
things she needed. She also felt that DCS considered Mother’s limitations when providing
services. She stated that Mother’s case received much more attention than other cases
because it was needed. For instance, some services such as domestic violence classes were
provided more than once, and redirection on the same issues was provided several times.
Thus, she said this case had lingered on a little longer than normal, but it was because
Mother could not get to the point where she needed to be.
Ms. Baer testified that there were two prevalent themes while she had the case:
Mother’s obsession with David and her ability to anger easily. She stated that Mother
seemed to think that if she could get Joseph back then she could get David back. This
concerned Ms. Baer because it sounded like Joseph was just a tool to get David back. She
knew that Mother loved Joseph, but stated that these repeated statements by Mother were
odd and concerning. She further stated that Mother sometimes became frustrated and
would raise her voice. She would have to intervene to calm Mother down and was unsure
if Mother could calm down on her own.
Ms. Baer explained that sometimes loving a child is not enough if the parent cannot
meet the child’s needs consistently. She thought that DCS made reasonable efforts to try
to help Mother make the changes she needed to make, but the case had been dragged out
by Mother’s actions. She explained that the case could have been resolved a lot sooner if
there had not been anymore domestic violence, had there been more honesty, and had there
been more progress with the mental health issues. She further explained that Mother put
herself back in the same situation time and time again by not making better choices. As
such, she believed that Mother had failed to demonstrate continuity and stability as
evidenced by her continuing relationship with her paramour, her mental health issues, and
the domestic violence incidents.
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Ms. Brittany Rose was the FSW from November 2019 until March 2020. Like Ms.
Baer, she felt that she did everything she could to assist Mother in the time she had the
case. She stated that the biggest step on Mother’s permanency plan at the time was her
neuropsychological evaluation and that she helped Mother ensure that the evaluation was
completed. She also attempted to conduct an unannounced home visit in December 2019.
When she arrived at the home, Mother was getting ready to leave with some friends. She
gave Mother the choice of completing the home visit but Mother chose instead to go with
her friends. While discussing the situation, she said that Mother kind of became a little
rude and said that this case was “ridiculous.” In February 2020, she conducted a home
visit, talked to Mother about the case at that visit, and said that Mother became hostile and
yelled at her. She could not recommend that Joseph be unsupervised with Mother because
she felt that he would not be safe with her. She had concerns about Joseph being in the
home with Mother because of the domestic violence issues and Mother’s paramour was
still involved in her life. She thought that if Mother was willing to let her paramour stay
after experiencing domestic violence, then she would allow him to stay if there was another
incident in the future. As such, she did not think Mother’s home was a safe place for
Joseph.
Ms. Allison Goldman was the FSW from July 2020 until April 2021. She felt that
progress was being made while she had the case. She explained that Mother was compliant
with mental health services and her medication, was working, consistently participated in
visitation, and wanted to see her son. She said that Mother even had the opportunity to
participate in some unsupervised visits from September 2020 until October 2020.
However, visitation reverted back to supervised visits after the domestic violence incident
occurred in October 2020. Ms. Goldman found out about the incident because she had
called Mother to participate in a meeting, but Mother was involved with law enforcement
at the time. Despite the services offered to Mother, she felt that there were still issues such
as a continuing theme of domestic violence in Mother’s life. Additionally, she explained
that Mother had agreed at one point that her paramour would no longer be in the home, but
there came a time when Mother allowed him to reside with her again. She thought that
Mother would continue to struggle with the mental health and domestic violence issues.
She described these issues as a “cycle” and as “reoccurring.” Given that Mother had just
had a mental health crisis with the attempted suicide and that her paramour was still
involved in her life, she did not feel that Joseph would be safe with Mother.
Ms. Irina Nance was the active FSW who was assigned the case in April 2021. She
explained that Mother provided proof of employment and an appropriate home,
participated in home studies, and provided proof of payment of her lease and utilities.
However, she still had several concerns regarding Mother: her attempted suicide and
history of domestic violence; her impulse-control and anger issues; her history of severe
abuse; her changes in mental health providers; and her paramour’s involvement in her life.
She stated that Mother’s mental health treatment had been “sporadic” because of the
changes in mental health providers. She also stated that there were times when Mother had
- 11 -
been hostile toward her, talked over her, and raised her voice. She did not believe that
Joseph would be safe in the home with Mother unsupervised. She also did not believe that
Mother had the ability to parent Joseph safely and appropriately. She felt that Joseph had
been in DCS custody too long as it is and that he could receive permanency and stability
with his foster parents, which was something he could not receive with Mother at the time.
As such, she concluded that it was in Joseph’s best interests for Mother’s parental rights to
be terminated and for him to be adopted by his foster parents.
Some of the therapeutic supervisors from Health Connect testified about several
instances where they observed Mother exhibit concerning behavior. There was one
instance where Mother took a razor and began shaving her legs during a visit. Mother also
left her hot coffee on the floor during the same visit and it was spilled, but fortunately it
did not spill on Joseph. There was the visit in June 2021 where Mother cursed the
supervisor and law enforcement had to be called to intervene. After some of the video
visits, Mother would send emails blaming others because the visits did not go well. There
was an instance where Mother had someone else in the room at the beginning of a video
visit although no one else was supposed to be present. Initially, Mother denied that there
was someone else in the room and then became irate and raised her voice when the
supervisor asked her to turn the computer angle so that the remainder of the room was
visible. After this visit, Mother called the supervisor and stated that she could have
whoever she wanted in her home. There was also a visit where Mother became upset and
was disrespectful toward the foster mother.
Both of the foster parents testified about Joseph’s time in their home. Joseph had
lived with them since January 2019. He referred to them as “mommy” and “daddy” of his
own volition. He had a great relationship with them, his two foster siblings in the home,
and the relatives on both sides of their family. They stated that he seemed happy and well-
integrated in their home. The foster parents had taken Joseph on vacations and had engaged
him in sports, family gatherings, and other activities. They testified that they were willing
and able to adopt him.
Mother’s paramour testified that he had been Mother’s fiancé in the past. However,
he explained that they were now just “extremely good friends” and did not currently live
together. He wanted to be in a romantic relationship with Mother, but she had made it clear
that could not happen at the time. He understood that she was putting Joseph above having
a relationship with him. He was willing to respect that and wanted the best for her. Despite
the history of domestic violence between them, he felt that they had a safe relationship and
that children would be safe in the home with them if they were together.
Mother testified about her past health issues. She explained that her father was
emotionally abusive and cold which had caused her to develop anorexia and self-harming
behaviors. According to Mother, in 2008, she went into a coma for three-and-one-half
months because she weighed only 55 pounds due to her eating disorder. She said she
- 12 -
survived the coma miraculously, but she sustained a speech impediment, physical
impairments, and memory issues due to the incident. She also explained that she suffered
from depression and anxiety and was prescribed medication for those diagnoses. She
admitted that she struggled with abandonment issues. She also admitted that she found it
difficult to control her anger due to the trauma she had experienced in the past. Otherwise,
she stated that she was kind, loving, happy-go-lucky person who had a good heart. She
also stated that she was getting better and better at controlling her temper.
Mother completed anger management services, domestic violence services, and
mental health assessments as required by her permanency plan. There were also
recommendations for her to receive treatment after her mental health assessments, which
she followed up on. She started her mental health treatment at Centerstone, but she said
they changed her therapist repeatedly. She had three different therapists at Centerstone
over the course of a year-and-one-half period. She felt like the changes in therapists was a
setback to her progress. She also said at one point her sessions were shortened and her in-
person sessions went to online sessions in March 2020 because of COVID. She said the
online sessions did not work because no connection was established. She informed the
FSW that the online sessions were not helping her as much. She asked DCS to assist her
in rearranging her therapists so that she could be in-person or do something that she felt
was more beneficial to her. She felt that there were some setbacks to her mental health
state because of COVID. At one point she said that DCS’s efforts were “half-assed”
because the services she was receiving were not sufficient. However, she felt that the
FSWs helped her as much as they could. Mother participated in and completed classes in
order to address her domestic violence issues. However, she admitted that she had a pattern
of behavior from going from one domestic violence situation to another: the man in
Nevada, Father, and then her recent paramour. Therefore, she could see why the domestic
violence in her life was a concern.
There were times during Mother’s testimony where her anger issues became
apparent. At one point, Mother stated that counsel for DCS was giving her looks that were
“weird,” “nasty,” “funny,” and “threatening.” At another point, Mother stated as follows:
Yeah. Want to know the truth, I get angered when I’m being threatened by
people so [you] can probably save all of your other questions cause people
look at me like trash, she was in a coma, she’s a piece of crap, she’s trash.
(indiscernible) looks down on me as if I’m trash and I feel like I want to be
respected once in my life, just once. My mother loves me as a mother should
and I would just like for one I’m a mother in life, have respect. I appreciate
that greatly.
Counsel for DCS then asked if there was a way she could phrase her questions differently
for Mother to feel respected. Mother responded, “That would be great if you could respect
me . . . . I would appreciate that.” She also stated, “I’m sure you can find a way [be]cause
- 13 -
you come across as a nice woman in general.” When asked if she was arrested for the
domestic violence incident in July 2018, Mother responded, “Yes. Finally. Yeah. There
you go. Are you happy now? Yes, I was arrested.” Further in Mother’s testimony, counsel
for DCS asked Mother if she was getting angry again. Mother stated, “No. Because it
made me more of a smart aleck because you’re giving me the attitude. I’d appreciate
calming it down.” She then said, “I’m not angry.” Counsel for DCS responded, “Okay.
So, you’re good.” Mother then stated, “That’s how you perceive it. DCS has their own
perception.” Mother then continued to speak when counsel for DCS attempted to interject
by saying “Let’s go back.” Mother then said, “Well, I’m not going to because . . . this is
pertinent.” After some discussion between the parties’ counsels, the judge, and the
guardian ad litem, Mother apologized and stated that she was just emotional.
Mother stated that the primary reason she and her paramour were no longer together
was because DCS would not allow them to be together. She explained that Joseph came
first in her life and he was her primary focus. Therefore, she testified that she would not
allow her paramour to reside with her from this point forward. At the time of the trial, she
said that they were just friends, that they could not be in a relationship, and that they were
no longer residing together. At one point in her testimony, however, she admitted that they
were still romantically involved; they were just no longer engaged. Yet, she admitted that
the two of them could not raise a child together because of the domestic violence between
them. In regard to Joseph, she believed that he was safe and happy with the foster parents.
She appreciated the fact that the foster parents had done things for Joseph that she was
unable to do at the time. She had nothing bad to say about them, respected them, and even
said that she loved them. She said that they were “wonderful people” and “good foster
parents.” However, she wanted Joseph at home with her. She wanted a parent-child
relationship with Joseph and would take that over anything. In conclusion, she stated that
she loved Joseph unconditionally and that she would not give up on him.
In November 2021, the juvenile court entered an order terminating Mother’s
parental rights as to Joseph.5 The court noted in its order that Mother’s testimony lacked
credibility at times. The court found clear and convincing evidence that six grounds for
termination existed: (1) abandonment for failure to provide a suitable home; (2) substantial
noncompliance with a permanency plan; (3) persistent conditions; (4) severe child abuse;
(5) failure to manifest an ability and willingness to assume custody or financial
responsibility; and (6) mental incompetence. Additionally, the court found that termination
was in the best interests of the child. Thereafter, Mother timely filed an appeal.
II. ISSUES PRESENTED
1. Whether the juvenile court erred in finding that Mother failed to provide a suitable
5
Two days after this order was entered, the juvenile court entered an amended order to make a
slight correction to one of its statements.
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home for the child;
2. Whether the juvenile court erred in finding that Mother failed to substantially
comply with a permanency plan;
3. Whether the juvenile court erred in finding that the conditions which led to the
removal of the child still persist at this time;
4. Whether the juvenile court erred in finding that Mother failed to manifest a
willingness to personally assume legal and physical custody or financial
responsibility of the child;
5. Whether the juvenile court erred in finding that Mother was mentally incompetent;
and
6. Whether the juvenile court erred in finding that it was in the best interests of the
child for the parental rights of Mother to be terminated.
For the following reasons, we affirm the decision of the juvenile court.
III. STANDARDS APPLICABLE TO TERMINATION CASES
“A parent’s right to the care and custody of her child is among the oldest of the
judicially recognized fundamental liberty interests protected by the Due Process Clauses
of the federal and state constitutions.” In re Neveah M., 614 S.W.3d 659, 674 (Tenn. 2020)
(quoting In re Carrington H., 483 S.W.3d 507, 521 (Tenn. 2016)). “Parental rights have
been described as ‘far more precious than any property right.’” Id. (quoting In re
Carrington H., 483 S.W.3d at 522). “No civil action carries with it graver consequences
than a petition to sever family ties irretrievably and forever.” In re Kaliyah S., 455 S.W.3d
533, 556 (Tenn. 2015). Nevertheless, parental rights are not absolute. In re Carrington
H., 483 S.W.3d at 522.
Tennessee Code Annotated section 36-1-113 “sets forth the grounds and procedures
for terminating the parental rights of a biological parent.” In re Kaliyah S., 455 S.W.3d at
546. Pursuant to this statute, the petitioner seeking termination of parental rights must
prove two elements. Id. at 552. First, the petitioner must prove the existence of at least
one of the statutory grounds for termination set forth in Tennessee Code Annotated section
36-1-113(g). Id. Second, the petitioner must prove that termination of parental rights is in
the best interests of the children under the factors set forth in Tennessee Code Annotated
section 36-1-113(i). Id. Due to the constitutional dimension of the rights at stake, the
petitioner seeking termination must prove both elements by clear and convincing evidence.
In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); see Tenn. Code Ann. § 36-1-113(c).
“Clear and convincing evidence enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005), and eliminates any serious or substantial doubt about the correctness of these factual
findings.” Id. (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); State, Dep’t of
Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447 (Tenn. Ct. App. 2008)).
- 15 -
Because of the heightened burden of proof applicable in parental termination cases,
we adapt our customary standard of review on appeal. In re Audrey S., 182 S.W.3d at 861.
We review a court’s factual findings de novo in accordance with Rule 13(d) of the
Tennessee Rules of Appellate Procedure, presuming each factual finding to be correct
unless the evidence preponderates otherwise. In re Carrington H., 483 S.W.3d at 524. We
then make our own determination regarding “whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, amount to clear and convincing
evidence of the elements necessary to terminate parental rights.” Id. (citing In re Bernard
T., 319 S.W.3d at 596-97). As for conclusions of law, “[t]he trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion of law, which
appellate courts review de novo with no presumption of correctness.” Id. (citing In re
M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)).
IV. DISCUSSION
On appeal, Mother presents issues concerning both the grounds for termination and
the best interests of the child. However, she challenges only five of the six grounds found
against her by the juvenile court. She does not present an issue challenging the juvenile
court’s finding for the ground of severe child abuse. Regardless, we must “review the trial
court’s findings as to each ground for termination and as to whether termination is in the
child’s best interests, regardless of whether the parent challenges these findings on appeal.”
In re Carrington H., 483 S.W.3d at 525-26. Therefore, we review each of the six grounds
for termination found against Mother and whether termination was in the child’s best
interests.
A. Grounds for Termination
1. Severe Child Abuse
A parent’s rights may be terminated when “[t]he parent . . . has been found to have
committed severe child abuse, as defined § 37-1-102, under any prior order of a court or is
found by the court hearing the petition to terminate parental rights . . . to have committed
severe child abuse against any child.” Tenn. Code Ann. § 36-1-113(g)(4). As previously
discussed, Mother is the mother of both David and Joseph. David was removed from
Mother’s custody by court order in July 2017 after DCS received a referral alleging
physical abuse. In November 2017, the Humphreys County Juvenile Court entered an
order finding clear and convincing evidence that David was dependent and neglected and
was a victim of severe abuse “at the hands of [Mother].” As this Court has explained, “a
trial court may rely on a prior court order finding severe child abuse and is not required to
re-litigate the issue of severe abuse during the termination trial.” In re Alexis S., No.
M2018-00296-COA-R3-PT, 2018 WL 6267180, at *10 (Tenn. Ct. App. Nov. 30, 2018);
see In re Samaria S., 347 S.W.3d 188, 201 (Tenn. Ct. App. 2011); State, Dep’t of
Children’s Servs. v. M.S., No. M2003-01670-COA-R3-CV, 2005 WL 549141, at *10
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(Tenn. Ct. App. Mar. 8, 2005). Therefore, we conclude that the juvenile court did not err
in finding that DCS met its burden of proof on the ground of severe child abuse.
2. Abandonment for Failure to Provide a Suitable Home6
Another ground for termination of parental rights exists if abandonment by the
parent has occurred. Tenn. Code Ann. § 36-1-113(g)(1). Under Tennessee Code
Annotated section 36-1-102(1)(A), there are several alternative definitions of
“abandonment.” See Tenn. Code Ann. § 36-1-102(1)(A). One definition of abandonment
is summarized as the failure to provide a suitable home. See Tenn. Code Ann. § 36-1-
102(1)(A)(ii)(c). Tennessee Code Annotated section 36-1-102(1)(A) defines abandonment
for this ground as the following:
(ii)(a) The child has been removed from the home or the physical or legal
custody of a parent or parents . . . by a court order at any stage of proceedings
in which a petition has been filed in the juvenile court alleging that a child is
a dependent and neglected child, and the child was placed in the custody of
the department or a licensed child-placing agency;
(b) The juvenile court found . . . that the department or a licensed child-
placing agency made reasonable efforts to prevent removal of the child or
that the circumstances of the child’s situation prevented reasonable efforts
from being made prior to the child’s removal; and
(c) For a period of four (4) months following the physical removal, the
department or agency made reasonable efforts to assist the parent or parents
. . . to establish a suitable home for the child, but that the parent or parents .
. . have not made reciprocal reasonable efforts to provide a suitable home and
have demonstrated a lack of concern for the child to such a degree that it
appears unlikely that they will be able to provide a suitable home for the child
at an early date. The efforts of the department or agency to assist a parent . .
. in establishing a suitable home for the child shall be found to be reasonable
if such efforts equal or exceed the efforts of the parent . . . toward the same
goal, when the parent . . . is aware that the child is in the custody of the
department[.]
Tenn. Code Ann. § 36-1-102(1)(A)(ii). DCS must make “reasonable efforts” by utilizing
its superior resources to help the parent find a suitable home. In re Rahjada W., No. E2019-
01798-COA-R3-PT, 2020 WL 2893434, at *5 (Tenn. Ct. App. June 3, 2020). To establish
abandonment for failure to provide a suitable home, DCS must make these “reasonable
6
In her answer, Mother raised the affirmative defense of willfulness “to all grounds of
abandonment.” However, the particular ground at issue in this case “does not contain a provision relating
to willfulness.” In re River L., No. M2019-02049-COA-R3-PT, 2021 WL 830006, at *8 (Tenn. Ct. App.
Mar. 4, 2021); see Tenn. Code Ann. § 36-1-102(1)(A). Furthermore, the word “willful” or “willfulness”
does not appear in the transcript from the trial, and there was no testimony presented concerning this issue.
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efforts” during a four-month period following the removal of the child. Tenn. Code Ann.
§ 36-1-102(1)(A)(ii)(c); In re Rahjada W., 2020 WL 2893434, at *5. We note that “the
establishment of a suitable home entails considerations as to whether ‘[a]ppropriate care
and attention’ are given to the child at issue.” In re Dominic B., No. E2020-01102-COA-
R3-PT, 2021 WL 774185, at *6 (Tenn. Ct. App. March 1, 2021) (quoting In re Matthew
T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at *7 (Tenn. Ct. App. Apr. 20,
2016)). Furthermore, “the proof necessary to support termination under this ground need
not be limited to any particular four-month period after removal. As long as the proof
relates to ‘a period of four (4) months following the removal, . . . the ground may be
established.’” In re Jakob O., No. M2016-00391-COA-R3-PT, 2016 WL 7243674, at *13
(Tenn. Ct. App. Dec. 15, 2016) (quoting Tenn. Code Ann. § 36-1-102(1)(A)(ii)). Thus,
our inquiry is not limited “to a period of four months immediately following the [child’s]
removal.” Id.
In July 2018, DCS filed a petition in juvenile court alleging that Joseph was
dependent and neglected. The juvenile court then entered an ex parte protective custody
order finding probable cause to believe that Joseph was dependent and neglected and
awarding temporary legal custody of Joseph to DCS. Therefore, Joseph was removed from
Mother’s legal custody and placed in the legal custody of DCS by a court order, which was
the result of a petition filed in the juvenile court alleging dependency and neglect. Tenn.
Code Ann. § 36-1-102(1)(A)(ii)(a). Additionally, the court found that it was reasonable
for DCS to make no effort to maintain Joseph in Mother’s home under the circumstances.
Tenn. Code Ann. § 36-1-102(1)(A)(ii)(b).
In regard to reasonable efforts made by DCS, Ms. Baer felt that she tried hard to
help Mother as much as she could and that there was nothing more she could have offered
or done differently to assist Mother. Permanency plans were developed and CFTMs were
held for Mother. Ms. Baer went over the responsibilities of the permanency plan with her,
helped her with services, visited her regularly, and returned her calls and text messages
within a reasonable time. She provided transportation for her to meetings, to court, to
psychological evaluations, and to get job applications. She encouraged her to apply for
low-income housing so that she would have more money available to purchase things she
needed. Ms. Baer said she went “above and beyond” because she genuinely wanted Mother
to succeed.
DCS also accounted for Mother’s limitations when providing services. Some
services such as domestic violence classes were provided more than once, and redirection
on the same issues was provided several times. Like Ms. Baer, Ms. Rose felt that she did
everything she could to assist Mother in the time she had the case. She attempted two
home visits in December 2019 and February 2020 and completed the latter one. She stated
that Mother was rude to her and chose to leave with friends instead of completing the home
visit during the attempted home visit in December 2019. During the home visit in February
2020, she talked to Mother about the case, but Mother became hostile and yelled at her.
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Ms. Goldman felt that issues continued to occur throughout the case despite the services
offered to Mother. Ms. Nance stated that there were times when Mother had been hostile
toward her, talked over her, and raised her voice.
Moreover, Ms. Baer did not think it was appropriate that Mother allowed her
paramour back in her home after the domestic violence incident in September 2019.
Therefore, she had a conversation with Mother explaining that she had to make a choice
between her paramour or her child. She said that Mother told her she would choose Joseph
over anything, but Mother allowed her paramour to remain in her home until just a few
weeks before the trial. Mother even allowed her paramour to remain in her home despite
a court order in February 2021 stating that he could not reside with her if Joseph returned
to her home. The domestic violence between them was also a concern if Joseph was to
return to her home. Her attempts to overcome the issues in this case, such as the domestic
violence, were described as a “cycle” and as “reoccurring.” Although Mother said that
DCS’s efforts were “half-assed” and her services were insufficient, she testified that the
FSWs helped her as much as they could.
We find that DCS made reasonable efforts to assist Mother to establish a suitable
home for Joseph for well over four months following his removal. Tenn. Code Ann. § 36-
1-102(1)(A)(ii)(c); see In re Amber R., No. W2019-01521-COA-R3-PT, 2020 WL
7861247, at *5 n.6 (Tenn. Ct. App. Dec. 29, 2020) (“Here, DCS made reasonable efforts
to assist Mother well beyond the required four-month period, giving her more time to
demonstrate that she could establish a suitable home.”). At the time of the trial, DCS had
been involved for more than three years. Despite DCS’s efforts over that three-year period,
Mother failed to make reciprocal reasonable efforts to provide a suitable home and
demonstrated a lack of concern for the child to such a degree that it appears unlikely that
she will be able to provide a suitable home for the child at an early date. Tenn. Code Ann.
§ 36-1-102(1)(A)(ii)(c).
While Mother had an appropriate “physical living location,” the environment of her
home remained unsuitable for Joseph. In re Navada N., 498 S.W.3d 579, 595 (Tenn. Ct.
App. 2016) (citations omitted). A suitable home “requires that the home be free of drugs
and domestic violence.” Id. (citation omitted). In the case at bar, there was fortunately no
issue with the use of illegal drugs in the home. However, there were still concerns about
domestic violence within Mother’s home. As such, we conclude that the juvenile court did
not err in finding that DCS met its burden of proof on the ground of abandonment for
failure to provide a suitable home.
3. Substantial Noncompliance with a Permanency Plan
The third ground for termination at issue on appeal exists based on a parent’s
substantial noncompliance with the statement of responsibilities in a permanency plan.
Tenn. Code Ann. § 36-1-113(g)(2). In order to terminate a parent’s parental rights under
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this ground, the parent’s noncompliance with the plan must be substantial and the
requirements must be “reasonable and related to remedying the conditions which
necessitate[d] foster care placement.” In re Valentine, 79 S.W.3d at 547. When analyzing
the requirements of the permanency plan, “noncompliance should be measured by both the
degree of noncompliance and the weight assigned to that requirement.” Id. at 548.
Determining whether a parent has sufficiently complied with a permanency plan “involves
more than merely counting up the tasks in the plan to determine whether a certain number
have been completed[.]” In re Carrington H., 483 S.W.3d at 537.
There were several permanency plans developed throughout DCS’s involvement.
Early on, Mother worked hard to comply with her initial permanency plan. However,
according to Ms. Baer, Mother’s efforts were more like “check[ing] the boxes” because the
services were not working. Ms. Baer explained that although Mother’s intent was not just
to check the box, that ended up being the end result because Mother failed to actually
change her behavior. She felt like Mother was doing what she needed to do, but Mother
did not recognize that she was not getting what she needed from her services, which created
a barrier to progress. Nevertheless, we have recognized “that when analyzing this ground,
‘[o]ur concern is with the parent’s efforts to comply with the plan, not the achievement of
the desired outcomes.’” In re Jaylan J., No. W2019-02025-COA-R3-PT, 2020 WL
7861378, at *14 (Tenn. Ct. App. Dec. 22, 2020) (citations omitted) (emphasis in original).
Stated differently, “‘outcome achievement is not the measure of compliance.’” Id.
(citations omitted).
In sum, Mother completed many requirements of these permanency plans. She
consistently attended therapy for the most part. She completed a mental health intake,
psychological evaluations, and a neuropsychological evaluation. She was compliant with
mental health services and followed recommendations. She signed releases to provide
information to DCS. She submitted to random pill counts and random drug screens. While
there were times she was not compliant with her medication, there were times when she
was, especially after the excess in her pill counts was addressed. She participated in family
violence, domestic violence, and anger management services. She also completed services
with her paramour when he was added to the plan. She participated in visitation with
Joseph consistently. She recently bought a vehicle, thereby obtaining transportation for
herself, and made the payments on the vehicle herself. She was employed at the time of
the trial and had provided proof of her employment to DCS. She had a support system
through her involvement with her church and Celebrate Recovery. She had a home that
was an appropriate physical location. She paid her lease and utilities and provided proof
that those were in her name. She maintained regular contact with the FSW. She
participated in a parenting component in addition to her visitation. She also resolved her
severe abuse charge by completing her three-year probation in October 2021.
In contrast, Mother did not make good peer choices by continuing her relationship
with her paramour despite the domestic violence incidents and continuing to allow him to
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reside in her home. This was in conflict with both the permanency plan and a court order.
Although her paramour moved out a few weeks before trial, we agree with the juvenile
court in that this was “too little and too late.” She was required to refrain from incurring
any other legal charges, but she was arrested after the domestic violence incident in October
2020. There were times she either lied or failed to disclose pertinent information such as
the domestic violence incidents or her attempted suicide. There were times when she was
inappropriate at visitation because she became frustrated or used profanities in front of
Joseph. During her last in-person visit, law enforcement was called and had to intervene.
There were times she did not take her medication as prescribed because there was an excess
in her medication. After this, she was required to obtain a prescription printout to prove
that her medications were accidentally filled twice in the same month, but that was never
done.
We find that the requirements of the permanency plans were reasonable and related
to addressing issues such as Mother’s domestic violence and mental health issues.
Furthermore, while Mother ultimately failed to change her behavior, she participated in
services and completed many of the requirements of the permanency plans. As previously
discussed, “‘outcome achievement is not the measure of compliance.’”7 Id. (citations
omitted). If we were to merely count up the tasks in the plan, then this Court would be
inclined to hold that Mother’s efforts, or lack thereof, did not rise to the level of substantial
noncompliance. Yet, as the juvenile court noted, Mother “resisted a key responsibility in
the permanency plan and at a key point in the life [of] her child . . . .” Given the degree of
her noncompliance and the weight assigned to requirements related to domestic violence
issues, which was the very thing that led to Joseph’s removal, we find that Mother was
substantially noncompliant with the permanency plan. As such, we conclude that the
juvenile court did not err in finding that DCS met its burden of proof on the ground of
substantial noncompliance with a permanency plan.
4. Persistent Conditions
The fourth ground for termination at issue on appeal is commonly known as
“persistent conditions.” This ground for termination applies when:
(3)(A) The child has been removed from the home or the physical or legal
custody of a parent . . . for a period of six (6) months by a court order entered
at any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and:
7
“While [the parent’s] efforts are part of our analysis on substantial noncompliance with the
permanency plan, the ground of persistent conditions focuses on whether the parent’s efforts have been
fruitful[.]” In re Edward R., No. M2019-01263-COA-R3-PT, 2020 WL 6538819, at *17 (Tenn. Ct. App.
Nov. 6, 2020) (quoting In re Abigail F.K., No. E2012-00016-COA-R3-JV, 2012 WL 4038526, at *20
(Tenn. Ct. App. Sept. 14, 2012)).
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(i) The conditions that led to the child’s removal still persist, preventing the
child’s safe return to the care of the parent . . . , or other conditions exist that,
in all reasonable probability, would cause the child to be subjected to further
abuse or neglect, preventing the child’s safe return to the care of the parent .
..;
(ii) There is little likelihood that these conditions will be remedied at an early
date so that the child can be safely returned to the parent . . . in the near future;
and
(iii) The continuation of the parent . . . and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable, and
permanent home;
(B) The six (6) months must accrue on or before the first date the termination
of parental rights petition is set to be heard[.]
Tenn. Code Ann. § 36-1-113(g)(3). Each element for this ground must be proven by clear
and convincing evidence. In re Valentine, 79 S.W.3d at 550.
This Court has explained that “[t]he necessary order of removal is ‘the threshold
consideration’ for this ground.” In re Lucas S., No. M2019-01969-COA-R3-PT, 2021 WL
710841, at *4 (Tenn. Ct. App. Feb. 24, 2021) (quoting In re Alleyanna C., No. E2014-
02343-COA-R3-PT, 2015 WL 4773313, at *14 (Tenn. Ct. App. Aug. 10, 2015)). As
previously stated, in July 2018, DCS filed a petition in juvenile court alleging that Joseph
was dependent and neglected. The juvenile court then entered an ex parte protective
custody order finding probable cause to believe that Joseph was dependent and neglected.
The court removed Joseph from Mother’s legal custody and awarded legal custody of
Joseph to DCS. DCS filed its petition to terminate the parental rights of Mother in April
2021, and the court held a trial in October 2021. Therefore, more than three years had
passed from the time Joseph was removed from Mother’s custody until the time the trial
was held, which well exceeded the period of six months necessary for this ground and
clearly accrued before the petition for termination was set to be heard. Tenn. Code Ann. §
36-1-113(g)(3).
The chief condition that led to Joseph’s removal was domestic violence. In July
2018, DCS received a referral which stated that law enforcement became involved in a
domestic violence incident between Mother and Father. Both Mother and Father were
arrested and incarcerated. Before this particular incident, there were numerous other
domestic violence incidents between Mother and Father. After Joseph’s removal, Mother
and her paramour were involved in domestic violence incidents in September 2019 and
October 2020. Mother was arrested for the incident in October 2020. She admitted that
she had a pattern of behavior going from one domestic violence situation to another and
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could see why the domestic violence was still a concern at the time of the trial.
In addition to the domestic violence, there were concerns about Mother’s mental
health, namely her anger issues and her ability to parent by herself. Her anger issues were
a prevalent theme throughout this case. At visitation, she called two different therapeutic
supervisors a “b***h” and told one to “shut the f**k up.” As previously discussed, law
enforcement had to intervene at one of these visits. At another visit, Mother became irate
and proceeded to raise her voice when the therapeutic supervisor at the time asked Mother
to show her around the room with the computer because of a concern that someone else
was in the room. There was one visit where she became upset and was disrespectful toward
the foster mother. There were also times during her testimony where she appeared to lose
her composure and become angry at counsel for DCS. Mother admitted that she found it
difficult to control her anger due to the trauma she had experienced in the past. She also
had memory issues due to a coma she suffered in 2008. Ms. Baer explained that Mother
had difficulty remembering things because of this impairment, which was a safety concern.
None of the FSWs who testified felt that Joseph would be safe with Mother. Mother also
suffered from depression and anxiety and had attempted suicide in February 2021 because
she was “depressed and losing it.”
Mother was provided and participated in services in order to address her issues with
domestic violence, family violence, and anger management. For some of these services,
she participated in more than the normal amount that DCS usually provided. Ms. Baer
even stated that Mother’s case received much more attention than other cases because it
was needed. However, Mother could not get to the point where she needed to be. We
reiterate that Mother continued to put herself back in the same situation time and time again
by not making better choices. For the foregoing reasons, we find that the conditions that
led to Joseph’s removal still exist preventing his safe return to Mother’s care. Tenn. Code
Ann. § 36-1-113(g)(3)(A)(i). Additionally, we find that there is little likelihood that these
conditions will be remedied at an early date so that Joseph can be safely returned to Mother
in the near future. See Tenn. Code Ann. § 36-1-113(g)(3)(A)(ii).
More than three years had passed from the time Joseph was removed in July 2018
until the time of the trial in October 2021. Joseph had been in DCS custody for the majority
of his life and had been in his current foster home since January 2019. The bonds he had
formed with his foster parents and foster siblings were essentially all he knew. He referred
to his foster parents as “mommy” and “daddy.” He was cared for, happy, well-integrated,
and comfortable in his foster home. Additionally, the foster parents were willing and able
to adopt Joseph. Mother even agreed that Joseph looked to his foster parents as his actual
parents because he had been there for so long. Given that more than three years had passed
since Joseph’s removal and that the conditions discussed above still persisted, we find that
the continuation of the parent-child relationship would greatly diminish Joseph’s chances
of early integration into a safe, stable, and permanent home. Tenn. Code Ann. § 36-1-
113(g)(3)(A)(iii). As such, we conclude that the juvenile court did not err in finding that
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DCS met its burden of proof on the ground of persistent conditions.
5. Failure to Manifest an Ability and Willingness
The fifth ground for termination at issue on appeal exists when “[a] parent . . . has
failed to manifest, by act or omission, an ability and willingness to personally assume legal
and physical custody or financial responsibility of the child, and placing the child in the
person’s legal and physical custody would pose a risk of substantial harm to the physical
or psychological welfare of the child[.]” Tenn. Code Ann. § 36-1-113(g)(14). There are
two prongs that must be proven by clear and convincing evidence to terminate parental
rights under this ground: “(1) the parent . . . failed to manifest an ability and willingness to
personally assume legal and physical custody or financial responsibility of the child; and
(2) placing the child in the parent’s legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child.” In re Neveah M.,
614 S.W.3d at 674.
Our Supreme Court has explained that the first prong “places a conjunctive
obligation on a parent . . . to manifest both an ability and willingness to personally assume
legal and physical custody or financial responsibility for the child.” Id. at 677. As such,
“clear and convincing proof that a parent . . . has failed to manifest either ability or
willingness” satisfies the first prong of this ground. Id. (citing In re Amynn K., No. E2017-
01866-COA-R3-PT, 2018 WL 3058280, at *13 (Tenn. Ct. App. June 20, 2018)). “A parent
demonstrates willingness ‘by attempting to overcome the obstacles that prevent [him] from
assuming custody or financial responsibility for the child.’” In re Sylvia H., No. E2020-
01009-COA-R3-PT, 2021 WL 1098630, at *6 (Tenn. Ct. App. Mar. 23, 2021) (quoting In
re Jonathan M., No. E2018-00484-COA-R3-PT, 2018 WL 5310750, at *5 (Tenn. Ct. App.
Oct. 26, 2018)). “In determining whether a parent has manifested an ability to parent the
child, a court ‘focuses on the parent’s lifestyle and circumstances.’” Id. (quoting In re
Jonathan M., 2018 WL 5310750, at *5).
As for the second prong, a court “examines the effect that placing the child in the
parent’s custody would have on the child—namely, whether the parent’s assumption of
custody would present ‘a risk of substantial harm to the physical or psychological welfare
of the child.’” Id. at *7 (quoting Tenn. Code Ann. § 36-1-113(g)(14)). To rise to the level
of “substantial,” we have held that the harm must present “‘a real hazard or danger.’” Id.
(quoting In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *8 (Tenn.
Ct. App. Apr. 4, 2018)). Additionally, the harm must be “‘sufficiently probable to prompt
a reasonable person to believe that the harm will occur more likely than not.’” Id. (quoting
In re Maya R., 2018 WL 1629930, at *8).
Mother continued to maintain a relationship with her paramour despite knowing that
she could not have Joseph in her home if her paramour was still residing with her. Ms.
Baer had a conversation with Mother explaining that she had to make a choice between her
- 24 -
paramour or her child. She said that Mother told her she would choose Joseph over
anything, but Mother still allowed her paramour to remain in her home up until just a few
weeks before the trial. Mother even allowed her paramour to remain in her home despite
a court order in February 2021 which stated that he could not reside with her if Joseph
returned to her home. This alone raised serious concerns about Mother’s willingness to
assume custody of Joseph.
In the same vein, Mother continued to maintain a relationship with her paramour
despite the domestic violence between them. There were concerns about Joseph being in
the home with Mother because of the domestic violence issues and Mother’s paramour was
still involved in her life. If Mother was willing to let her paramour stay after experiencing
domestic violence, then she might allow him to stay if there was another incident in the
future. Mother even said at one point during her testimony that she and her paramour had
plans to see each other after the trial. She stated that they were no longer engaged but
admitted that they were still romantically involved. Her continued involvement in
domestic violence incidents and her inability to separate herself from her relationship with
her paramour were circumstances that demonstrated Mother did not have the ability to
assume custody of Joseph. Placing Joseph in Mother’s custody while she continued such
a lifestyle would pose a risk of substantial harm to him. Tenn. Code Ann. § 36-1-
113(g)(14). For these reasons, it was reasonable to believe that harm to Joseph’s welfare,
such as witnessing a domestic violence incident, would occur again if he was placed in
Mother’s home. Therefore, we conclude that the juvenile court did not err in finding that
DCS met its burden of proof on this ground.
6. Mental Incompetence
The final ground for termination at issue on appeal is mental incompetence. This
ground for termination applies when:
(8)(A) The chancery and circuit courts shall have jurisdiction in an adoption
proceeding, and the chancery, circuit, and juvenile courts shall have
jurisdiction in a separate, independent proceeding conducted prior to an
adoption proceeding to determine if the parent . . . is mentally incompetent
to provide for the further care and supervision of the child, and to terminate
that parent’s . . . rights to the child;
(B) The court may terminate the parental . . . rights of that person if it
determines on the basis of clear and convincing evidence that:
(i) The parent . . . of the child is incompetent to adequately provide for the
further care and supervision of the child because the parent’s . . . mental
condition is presently so impaired and is so likely to remain so that it is
unlikely that the parent . . . will be able to assume or resume the care of and
responsibility for the child in the near future; and
(ii) That termination of parental . . . rights is in the best interest of the child;
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(C) In the circumstances described under subdivisions (8)(A) and (B), no
willfulness in the failure of the parent . . . to establish the parent’s . . . ability
to care for the child need be shown to establish that the parental . . . rights
should be terminated[.]
Tenn. Code Ann. § 36-1-113(g)(8) (emphasis added). We have explained in prior cases
that:
[t]he standard for this issue has been described as inquiring as to whether “by
clear and convincing evidence [ ] the parent of the child is incompetent to
adequately provide care and supervision because the parent’s mental
condition is so impaired and likely to remain so that it is unlikely that the
parent will be able to assume care and responsibility for the child in the
future.” State Dept. of Children’s Services v. Whaley, No. E2001-00765-
COA-R3-CV, 2002 WL 1116430, at *14 (Tenn. Ct. App. May 30, 2002), no
appl. perm. appeal filed. This Court has affirmed this ground, in one
instance, where the parent “functioned in such a low range that no amount of
training, education, or counseling ‘could bring him up to the level where he
could parent these children.’” State, Dept. of Children’s Services v. Mims,
285 S.W.3d 435, 449 (Tenn. Ct. App. 2008).
In re Jayda J., No. M2020-01309-COA-R3-PT, 2021 WL 3076770, at *6 (Tenn. Ct. App.
July 21, 2021) (quoting In re Lorenda B., No. M2016-01841-COA-R3-PT, 2017 WL
1416858, at *9 (Tenn. Ct. App. Apr. 19, 2017)). To meet the burden for this ground, DCS
must “demonstrate two essential facts: (1) that Mother is presently unable to care for the
subject children and (2) that Mother is unlikely to be able to care for the children in the
near future.” In re David J.B., No. M2010-00236-COA-R3-PT, 2010 WL 2889265, at *7
(Tenn. Ct. App. July 23, 2010) (citing Tenn. Code Ann. § 36-1-113(g)(8) (2010) (emphasis
added)).
We have already discussed that Mother sustained memory issues due to a coma she
suffered in 2008. There were safety concerns that her memory issues might lead to some
sort of harm to Joseph. For instance, Mother needed reminders to change Joseph’s diaper
at visitation. Another concern was her attempted suicide in February 2021. Mother had
taken a kitchen knife and cut her left wrist and was hospitalized as a result. She had a
history of self-harming behavior and had cut her wrists before the incident with the kitchen
knife. Mother completed psychological evaluations and a neuropsychological evaluation
during DCS’s involvement.8 One of the evaluations revealed that Mother had generalized
anxiety disorder, major depressive disorder, and post-traumatic stress disorder. Mother
testified that she suffered from depression and anxiety and was prescribed medication for
those diagnoses. While Mother was prescribed medication for these diagnoses, there were
times during this case when she was not taking the medication as prescribed because she
8
The results of Mother’s evaluations were not entered as exhibits.
- 26 -
had an excess in her medication. Furthermore, there was a secondary diagnosis that
determined she had a mood disorder. Mother admitted that she found it difficult to control
her anger. She had committed severe child abuse against her oldest child in July 2017,
which she said occurred because she had “a lot going on” and was “overwhelmed.” Her
psychological evaluations also noted that she had an extreme fear of abandonment and
would go to extreme limits not to be alone. There were concerns that this allowed her to
be taken advantage of by men. Mother admitted that she struggled with abandonment
issues. This was apparent given her continued involvement with her paramour even after
the domestic violence between them.
Mother consistently participated in therapy in order to address some of these issues,
but her therapist felt like “she was kind of butting her head against the wall” because
progress was not being made. Mother completed other services related to her mental
health, but those services did not change her behavior. Throughout this case, the FSWs
and therapeutic supervisors had to deal with Mother’s constant irate behavior, yelling, and
profanities. Mother even demonstrated issues with controlling her anger at the time of the
trial because she became frustrated several times with counsel for DCS. Ms. Baer opined
that Mother would continue to be in the same position until she received some therapy that
actually worked. Therefore, it seemed that Mother’s mental health was presently so
impaired and was so likely to remain so that it was unlikely she would be able to care of
Joseph in the near future. Tenn. Code Ann. § 36-1-113(g)(8)(B)(i).
Like the juvenile court, we hope that Mother will continue to seek help through
therapy in order to improve her mental health issues. However, Mother admitted having
mental health issues for many years. She continued to struggle with her mental health from
the time Joseph was removed from her care through the time of the final hearing, which
was a period of more than three years. Despite the services provided to her, her mental
health issues were no closer to being resolved than when Joseph was removed from her
custody. As such, due to these mental health issues, we find that Mother was presently
unable to care for Joseph and that she likely will be unable to care for Joseph in the near
future. We conclude that the juvenile court did not err in finding that DCS met its burden
of proof on the ground of mental incompetence.
B. Best Interests of the Child
We now address the issue of whether termination of Mother’s parental rights was in
the best interests of the child.9 “Effective April 22, 2021, the General Assembly [ ]
9
In its order terminating Mother’s parental rights, the juvenile court considered both the prior best-
interests factors, which included just nine factors, and the amended best-interests factors, which now
includes a total of twenty factors. The court did so presumably out of caution because the amendment to
the statute which modified these factors went into effect just five days before the petition for termination
was filed in this case. See 2021 Tenn. Pub. Acts, Ch. 190 § 1 (S.B. 205). However, the amended best-
interests factors are applicable here because they apply “to petitions for termination filed on or after April
- 27 -
amended Tennessee Code Annotated § 36-1-113(i) by deleting the previous subsection in
its entirety and substituting a new subsection providing, inter alia, twenty factors to be
considered in determining a child’s best interest in a case involving termination of parental
rights.” In re Caroline R., No. E2021-00245-COA-R3-PT, 2022 WL 702392, at *12 n.7
(Tenn. Ct. App. Mar. 9, 2022) (citing 2021 Tenn. Pub. Acts, Ch. 190 (S.B. 205)). In
considering these factors, “[t]he relevancy and weight to be given each factor depends on
the unique facts of each case.” In re Audrey S., 182 S.W.3d at 878. Consequently,
“depending upon the circumstances of a particular child and a particular parent, the
consideration of one factor may very well dictate the outcome of the analysis.” Id. We
view the child’s best interests from the child’s perspective rather than the parent’s
perspective. Id. Finally, we “must consider all of the statutory factors, as well as any other
relevant proof any party offers.” In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017).
However, “a finding on each factor is not required.” In re Kaylene J., No. E2019-02122-
COA-R3-PT, 2021 WL 2135954, at *18 (Tenn. Ct. App. May 26, 2021). The applicable
best-interests factors are itemized as the following:
(A) The effect a termination of parental rights will have on the child’s critical
need for stability and continuity of placement throughout the child’s
minority;
(B) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological, and medical condition;
(C) Whether the parent has demonstrated continuity and stability in meeting
the child’s basic material, educational, housing, and safety needs;
(D) Whether the parent and child have a secure and healthy parental
attachment, and if not, whether there is a reasonable expectation that the
parent can create such attachment;
(E) Whether the parent has maintained regular visitation or other contact with
the child and used the visitation or other contact to cultivate a positive
relationship with the child;
(F) Whether the child is fearful of living in the parent’s home;
(G) Whether the parent, parent’s home, or others in the parent’s household
trigger or exacerbate the child’s experience of trauma or post-traumatic
22, 2021.” In re C.T., No. E2021-01336-COA-R3-PT, 2022 WL 2236147, at *8 (Tenn. Ct. App. June 22,
2022) (quoting In re Riley S., No. M2020-01602-COA-R3-PT, 2022 WL 128482, at *14 n.10 (Tenn. Ct.
App. Jan. 14, 2022)). Therefore, we only consider the amended best-interests factors that were in effect at
the time the petition was filed.
- 28 -
symptoms;
(H) Whether the child has created a healthy parental attachment with another
person or persons in the absence of the parent;
(I) Whether the child has emotionally significant relationships with persons
other than parents and caregivers, including biological or foster siblings, and
the likely impact of various available outcomes on these relationships and
the child’s access to information about the child’s heritage;
(J) Whether the parent has demonstrated such a lasting adjustment of
circumstances, conduct, or conditions to make it safe and beneficial for the
child to be in the home of the parent, including consideration of whether there
is criminal activity in the home or by the parent, or the use of alcohol,
controlled substances, or controlled substance analogues which may render
the parent unable to consistently care for the child in a safe and stable
manner;
(K) Whether the parent has taken advantage of available programs, services,
or community resources to assist in making a lasting adjustment of
circumstances, conduct, or conditions;
(L) Whether the department has made reasonable efforts to assist the parent
in making a lasting adjustment in cases where the child is in the custody of
the department;
(M) Whether the parent has demonstrated a sense of urgency in establishing
paternity of the child, seeking custody of the child, or addressing the
circumstance, conduct, or conditions that made an award of custody unsafe
and not in the child’s best interest;
(N) Whether the parent, or other person residing with or frequenting the
home of the parent, has shown brutality or physical, sexual, emotional, or
psychological abuse or neglect toward the child or any other child or adult;
(O) Whether the parent has ever provided safe and stable care for the child
or any other child;
(P) Whether the parent has demonstrated an understanding of the basic and
specific needs required for the child to thrive;
(Q) Whether the parent has demonstrated the ability and commitment to
creating and maintaining a home that meets the child’s basic and specific
- 29 -
needs and in which the child can thrive;
(R) Whether the physical environment of the parent’s home is healthy and
safe for the child;
(S) Whether the parent has consistently provided more than token financial
support for the child; and
(T) Whether the mental or emotional fitness of the parent would be
detrimental to the child or prevent the parent from consistently and
effectively providing safe and stable care and supervision of the child.
Tenn. Code Ann. § 36-1-113(i)(1). In analyzing these factors, the juvenile court found that
all but three factors weighed in favor of termination. The court found that the remaining
three factors, factors (F), (G), and (S), were inapplicable.
We first address those interrelated factors concerning the child’s critical need for
stability and continuity of placement, the effect a potential change of caretakers and
physical environment would have on the child, and the child’s parental attachments and
emotionally significant relationships with persons other than parents and caregivers. Tenn.
Code Ann. § 36-1-113(i)(1)(A), (B), (H), and (I). Joseph has lived with his foster parents
since January 2019. The proof showed that he was cared for, happy, well-integrated, and
comfortable in his foster home. He had a good relationship with the foster parents, his two
foster siblings in the foster home, and the relatives on both sides of the foster parents’
family. The foster parents were willing and able to adopt Joseph. Mother agreed that
Joseph looked to his foster parents as his actual parents because he had been there for a
majority of his life. Although she loved Joseph and did not want to give up on him, she
understood that Joseph was not really familiar with her at this point. Based upon the proof,
we agree that factors (A), (B), (H), and (I) weigh in favor of termination.
Mother has failed to demonstrate continuity and stability in meeting Joseph’s needs.
Tenn. Code Ann. § 36-1-113(i)(1)(C). Mother demonstrated this by her continuing
relationship with her paramour, her mental health issues, and the domestic violence
incidents. She also had a mental health crisis when she attempted suicide in February 2021.
Mother lacked stability in her own life and, most importantly, failed to put Joseph’s needs
first by continuing to allow her paramour to live in her home. We agree that factor (C)
weighs in favor of termination.
Mother and Joseph did not have a secure and healthy parental attachment, and there
was no reasonable expectation that she could create such attachment. Tenn. Code Ann. §
36-1-113(i)(1)(D). There was little, if any, attachment between Joseph and Mother, at least
on Joseph’s end. Visitation was important to Mother, but it was difficult to keep Joseph
engaged at visitation due to his age. Furthermore, Joseph never talked about Mother or
- 30 -
brought her up outside of visitation. He associated the computer with visitation and would
ask if there was a visit when the foster parents opened up the computer. Sometimes he
would run the other way when the foster parents would open up the computer. His
relationship with the foster parents was more like a parent-child attachment compared to
his relationship with Mother. He has not been able to form a bond with Mother like a
young child usually does with a parent. Therefore, we agree that factor (D) weighs in favor
of termination.
Mother consistently participated in visitation, but she did not cultivate a positive
relationship with Joseph. Tenn. Code Ann. § 36-1-113(i)(1)(E). She took advice on how
she could do better at visitation. She was even credited with keeping Joseph engaged at
times, but she struggled to keep him engaged overall. Joseph’s lack of engagement in
visitation was somewhat understandable due to his age. Yet, Mother’s efforts were offset
by some of her inappropriate behavior during visitations, such as her anger, frustration, and
use of profanities in front of Joseph. Additionally, we reiterate that Joseph never talked
about Mother or brought her up outside of visitation. We agree that factor (E) factor weighs
in favor of termination.
The proof shows that Mother failed to demonstrate a lasting adjustment of her
circumstances to make it safe for Joseph to be in her home and failed to take advantage of
available programs and services in order to make such a lasting adjustment. Tenn. Code
Ann. § 36-1-113(i)(1)(J) and (K). Mother cycled through the same issues time and time
again and failed to change her behavior. She continued to involve herself in domestic
violence situations. She continued to allow her paramour to be involved in her life despite
the domestic violence between them. She continued to exhibit concerning behavior at
visitation. She participated in services but failed to demonstrate any lasting adjustment as
a result of those services. Her failure to demonstrate a lasting adjustment was in spite of
DCS’s efforts. Tenn. Code Ann. § 36-1-113(i)(1)(L). Her case received much more
attention than other cases. Services and redirection on the same issues were provided
multiple times. Her case had lingered on longer than normal because she could not get to
the point where she needed to be. Mother admitted that the problems that drug out this
case were her fault. We agree that factors (J), (K), and (L) weigh in favor of termination.
Mother also failed to demonstrate a sense of urgency in gaining custody of Joseph
or addressing the conditions that make it unsafe for Joseph to be in her custody. Tenn.
Code Ann. § 36-1-113(i)(1)(M). Joseph had been in foster care for three years. Mother
allowed her paramour to remain in her home despite the requirement of the permanency
plan, a court order, and the domestic violence incidents between them. She failed to
demonstrate any sense of urgency with this particular situation because he did not move
out of her home until just weeks before the trial. She clearly understood that Joseph could
not be in the home with her if her paramour was there; yet, she was reluctant to separate
herself from her paramour. We agree that factor (M) weighs in favor of termination.
- 31 -
In regard to factor (N), Mother physically abused David, her older child, and
engaged in domestic violence with both Father and her paramour. Tenn. Code Ann. § 36-
1-113(i)(1)(N). The Humphreys County Juvenile Court found by clear and convincing
evidence that David was a victim of severe abuse “at the hands of [Mother].” Furthermore,
Mother was arrested as a result of the domestic violence incident in October 2020. We
agree that factor (N) weighs in favor of termination. Additionally, we point out that Joseph
was only in Mother’s care for approximately four months of his life before he was removed
because of domestic violence. At that time, David had already been removed from
Mother’s care because of severe abuse. Mother did not provide a safe and stable care for
either David or Joseph. Tenn. Code Ann. § 36-1-113(i)(1)(O). Therefore, we also agree
that factor (O) weighs in favor of termination.
Mother failed to demonstrate an understanding of Joseph’s needs, the ability and
commitment to creating and maintaining a home that met Joseph’s needs, and did not have
a physical environment in her home that was healthy and safe for Joseph. Tenn. Code Ann.
§ 36-1-113(i)(1)(P), (Q), and (R). Domestic violence was the reason Joseph entered DCS
custody. Even after losing custody of Joseph, Mother continued to allow her paramour to
remain in the home with her despite the domestic violence between them. She was
involved in two domestic violence incidents with her paramour while Joseph was in DCS
custody. Joseph, at the very least, needed a home free of domestic violence. Mother’s
home would not be safe and healthy for Joseph due to this continuing problem. We agree
that factors (P), (Q), and (R) weigh in favor of termination.
It is evident that Mother’s mental and emotional condition would be detrimental to
Joseph and prevent her from parenting effectively. Tenn. Code Ann. § 36-1-113(i)(1)(T).
As previously discussed, Mother had memory issues that raised concerns about her ability
to parent Joseph; she was diagnosed with a mood disorder; she suffered from depression
and anxiety and sometimes did not take her medication as prescribed; she had anger issues
and abandonment issues; she had committed severe child abuse against her oldest child;
and she had attempted suicide. We agree that factor (T) weighs in favor of termination.
Like the juvenile court, we find that factors (F), (G), and (S) are inapplicable. There
was only one incident at an in-person visit at Mother’s home which resulted in Joseph
becoming confused and upset. There was no evidence that Joseph would fear living in
Mother’s home or that her home would trigger or exacerbate his experience of trauma or
post-traumatic symptoms. Tenn. Code Ann. § 36-1-113(i)(1)(F) and (G). Additionally,
Mother was under a child support order, but there was no indication in the record of
whether she was current on her payments. Therefore, we do not consider factors (F), (G),
and (S).
We have reviewed the best-interests factors and agree that it is in the best interests
of Joseph for Mother’s parental rights to be terminated. Accordingly, we conclude that the
juvenile court did not err in finding that termination was in the best interests of Joseph.
- 32 -
V. CONCLUSION
For the aforementioned reasons, we affirm the decision of the juvenile court. Costs
of this appeal are taxed to the appellant, Nabila L. N., for which execution may issue if
necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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https://www.courtlistener.com/api/rest/v3/opinions/8483237/ | 2022 IL App (1st) 201341-U
No. 1-20-1341
Order filed November 10, 2022
FIFTH DIVISION
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 13771
)
RICHARD KUPFERSCHMIDT, ) Honorable
) Arthur F. Hill Jr.,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MITCHELL delivered the judgment of the court.
Justice Cunningham and Justice Delort concurred in the judgment.
ORDER
¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is affirmed
where defendant did not raise an arguable claim of actual innocence.
¶2 Defendant Richard Kupferschmidt appeals from the summary dismissal of his pro se
petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)).1
Kupferschmidt contends that he raised an arguably meritorious claim of actual innocence based
1
Defendant’s surname was spelled “Kuperschmidt” in a prior order. In this order, we adopt the
spelling used throughout the record.
No. 1-20-1341
on the affidavit of his mother, a co-offender, who attested that Kupferschmidt acted with an
innocent state of mind. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 Kupferschmidt, his mother Janet Yurus, and two others planned to steal money from and
kill Henry Wrobel, Yurus’s elderly uncle. Pursuant to the plan, Kupferschmidt went to Wrobel’s
house with Ricardo Pabon, Israel Munoz-Gallardo, and Saul Ayala. Kupferschmidt called Wrobel
outside and engaged him in a conversation while Pabon and Munoz-Gallardo snuck into Wrobel’s
house. When Wrobel went back into the house, Pabon and Munoz-Gallardo murdered him.
¶5 Yurus was convicted of first degree murder after a jury trial in 2010. People v. Yurus, 2012
IL App (1st) 110235-U, ¶ 2. Our order affirming her conviction on direct appeal reflects that she
gave police a statement admitting that she planned to steal Wrobel’s money with Kupferschmidt.
Id. ¶¶ 17-18. Witnesses stated to police that Yurus and Kupferschmidt met to discuss plans to kill
and to rob Wrobel. Id. ¶¶ 9, 19. However, at trial, the witnesses recanted their statements, and
Yurus denied that she admitted to police that she wanted to rob Wrobel. Id. ¶ 20. Yurus was
sentenced to 32 years of imprisonment.
¶6 After his mother’s conviction, Kupferschmidt pleaded guilty to first degree murder with a
dangerous weapon in exchange for a 25-year sentence. The court accepted the above factual
account as the basis for Kupferschmidt’s guilty plea. Kupferschmidt never filed a motion to
withdraw his plea. 2
2
In 2013, Kupferschmidt filed a pro se motion for leave to file a late notice of appeal in this court.
We denied the motion due to lack of jurisdiction. People v. Kuperschmidt, No. 1-13-2446 (2013)
(disposition order).
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No. 1-20-1341
¶7 Nine years after pleading guilty, Kupferschmidt filed the instant pro se postconviction
petition, setting forth a different version of facts regarding Wrobel’s murder and subsequent
investigation: On May 2, 2001, Yurus asked him to go to Wrobel’s house because she could not
reach Wrobel by telephone. Ayala drove him, and Pabon and Munoz-Gallardo joined them on the
way.
¶8 At Wrobel’s house, Pabon and Munoz-Gallardo left the vehicle and went next door.
Kupferschmidt called Wrobel outside and asked to fix Wrobel’s phone because Yurus was trying
to contact Wrobel. Wrobel said “O.K.” and walked back into the house. Several minutes later,
Pabon and Munoz-Gallardo returned and repeatedly said, “Your mom lied, there was no fucking
money.” From those words, Kupferschmidt assumed that Pabon and Munoz-Gallardo attempted
to rob Wrobel. When they all returned home, Munoz-Gallardo told Kupferschmidt that he “better
not tell anyone.” The following day, Kupferschmidt and his mother went to Wrobel’s house, and
there, he first discovered that Wrobel was dead.
¶9 In early 2005, the police interviewed Kupferschmidt, and he denied any involvement in
Wrobel’s murder. Kupferschmidt took a lie detector test, and it indicated he was truthful. In May
2005, Kupferschmidt was arrested again. The police told him that they had new information from
Pabon and that if Kupferschmidt did not confess, Yurus would receive the death penalty or life
imprisonment. To “save” Yurus, Kupferschmidt “made up” a confession from information he
previously learned from Pabon. In support of his petition, Kupferschmidt avers that he was not
involved in planning or carrying out Wrobel’s murder and lacked prior knowledge of the plan.
-3-
No. 1-20-1341
¶ 10 Yurus avers that Kupferschmidt did not know “the true intent or activity that occurred
inside” Wrobel’s home and that he confessed “in hopes of freeing” her although he was not
involved in the crime. Yurus states that she “accepts responsibility” for what happened.
¶ 11 On October 30, 2020, the circuit court summarily dismissed Kupferschmidt’s petition in a
written order, finding the issues frivolous and patently without merit. Kupferschmidt timely
appealed. Ill. S. Ct. Rs. 606, 651 (eff. July 1, 2017).
¶ 12 ANALYSIS
¶ 13 Kupferschmidt argues that the circuit court erred in summarily dismissing his
postconviction petition because he stated an arguable claim of actual innocence based on the
affidavit from Yurus. Yurus, who previously denied involvement in the crime, now avers that she
was responsible for the murder scheme and that Kupferschmidt had no knowledge of the scheme.
Kupferschmidt contends that her affidavit casts a “different light” on the evidence presented at the
plea hearing, and therefore, his petition should advance to the second stage.
¶ 14 The Post-Conviction Hearing Act provides a three-stage mechanism for imprisoned
persons to collaterally challenge convictions for violations of federal or state constitutional rights.
725 ILCS 5/122-1 et seq. (West 2020); People v. LaPointe, 227 Ill. 2d 39, 43 (2007). At the first
stage of postconviction proceedings, the circuit court must independently review the petition,
taking the allegations as true, and determine whether “the petition is frivolous or is patently without
merit.” 725 ILCS 5/122-2.1(a)(2) (West 2020); People v. Edwards, 197 Ill. 2d 239, 244 (2001). A
petition is frivolous or patently without merit if it has no arguable basis in law or in fact and,
instead, is based on a meritless legal theory or fanciful factual allegations. People v. Hodges, 234
Ill. 2d 1, 11-13, 16 (2009).
-4-
No. 1-20-1341
¶ 15 “At the pleading stage of postconviction proceedings, all well-pleaded allegations in the
petition and supporting affidavits that are not positively rebutted by the trial record are to be taken
as true.” People v. Robinson, 2020 IL 123849, ¶ 45. In deciding the sufficiency of a petition, “the
court is precluded from making factual and credibility determinations.” Id. Our review of the
summary dismissal of defendant’s petition is de novo. Hodges, 234 Ill. 2d at 9.
¶ 16 To state a claim of actual innocence in postconviction proceedings following a guilty plea,
a defendant must provide “new, material, noncumulative evidence that clearly and convincingly
demonstrates that a trial would probably result in acquittal.” People v. Reed, 2020 IL 124940, ¶ 49.
“This is a comprehensive approach where the court must determine whether the new evidence
places the evidence presented in the underlying proceedings in a different light and ‘undercuts the
court’s confidence in the factual correctness’ of the conviction.” Id. ¶ 49 (quoting People v.
Coleman, 2013 IL 113307, ¶ 97).
¶ 17 Here, Yurus avers in her affidavit that “at no time did [Kupferschmidt] know the true intent
or activity that occurred inside my uncle’s home” and that he had “zero” involvement in the crime.
How does Yurus know this? We have no idea based on her affidavit. It is axiomatic that an affidavit
must be based upon the affiant’s personal knowledge upon which she could competently testify.
People v. Brown, 2014 IL App (1st) 122549, ¶ 56 (“An affidavit ‘should consist of factual
propositions to which the affiant could testify in an evidentiary hearing.’”). Significantly, Yurus
was not present when Wrobel was murdered, so it is unclear how she could competently testify as
to what occurred in the house during the murder. The same is true of her naked assertions as to her
son’s state of mind.
-5-
No. 1-20-1341
¶ 18 An affidavit must contain a factual basis sufficient to show the petition’s allegations are
capable of objective or independent corroboration and must identify with reasonable certainty the
sources, character, and availability of the alleged evidence supporting the allegations. People v.
Delton, 227 Ill. 2d 247, 254 (2008); see also 725 ILCS 5/122-2 (West 2018). Yurus’s affidavit, at
most, offers her conjecture as to Kupferschmidt’s knowledge with respect to the murder and
contains no factual basis to corroborate her claim. Even when liberally construed, it fails to meet
the threshold requirements for a section 122-2 affidavit. 725 ILCS 5/122-2 (West 2018).
¶ 19 Nor does Yurus’s affidavit clearly and convincingly demonstrate that a trial would
probably result in acquittal. See Reed, 2020 IL 124940, ¶ 49 (the evidence must “clearly and
convincingly demonstrate[] that a trial would probably result in acquittal). Her affidavit does
nothing more than create a conflict with the prosecution’s case against defendant. See People v.
Mabrey, 2016 IL App (1st) 141359, ¶ 30 (where an affidavit merely conflicted with the defendant’s
confession and eyewitness testimony, it did not arguably exonerate the defendant). With such
defects, it can hardly be said that the petition supported by Yurus’s affidavit presents an arguable
claim of actual innocence in the face of Kupferschmidt’s guilty plea.
¶ 20 While the appeal as framed is limited to Yurus’s affidavit, it is worth noting that
Kupferschmidt’s affidavit, too, does not support an arguable claim of actual innocence.
Kupferschmidt avers that he was “not involved in the planning or carrying out” of the murder, had
no prior knowledge of it, and pled guilty “in order to save [his] mother *** from spending a lot of
time in prison.” Such a self-serving affidavit is not capable of objective or independent
corroboration as required under section 122-2 of the Post-Conviction Hearing Act. See People v.
Perry, 2017 IL App (1st) 150587, ¶ 39 (where counsel withdrew a codefendant’s affidavit, the
-6-
No. 1-20-1341
defendant’s claim of actual innocence could not stand with only the defendant’s “self-serving
affidavit” asserting his innocence of all charges). Indeed, the acts that constitute Kupferschmidt’s
involvement in the murder are wholly unchallenged: Kupferschmidt travelled to Wrobel’s house
with the co-schemers, and Kupferschmidt lured Wrobel out of the house while the co-schemers
secretly entered for the purpose of murdering Wrobel.
¶ 21 A guilty plea is “a grave act that is not reversible at the defendant’s whim.” Reed, 2020 IL
124940, ¶ 47. Having reviewed the petition and the supporting affidavits in totality,
Kupferschmidt’s actual innocence claim does not provide “new, material, noncumulative evidence
that clearly and convincingly demonstrates that a trial would probably result in acquittal.” Id. ¶ 49.
The summary dismissal of his postconviction petition was proper.
¶ 22 CONCLUSION
¶ 23 The judgment of the circuit court of Cook County is affirmed.
¶ 24 Affirmed.
-7- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483239/ | 2022 IL App (1st) 211369-U
FIFTH DIVISION
November 10, 2022
No. 1-21-1369
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
GORIANA ALEXANDER and CHRISTOPHER ) Appeal from the
ALEXANDER, individuals and derivatively on ) Circuit Court of
behalf of JEFFERSON & MONROE, LLC, ) Cook County.
)
Plaintiffs and Counterdefendants, )
)
(Goriana Alexander and Christopher Alexander, )
Plaintiffs and Counterdefendants-Appellees), )
)
v. )
) No. 11 L 7515
CANDELARIO MARTINEZ, PATRICIA )
MARTINEZ, individually, and JEFFERSON & )
MONROE, LLC as a nominal defendant, )
)
Defendants and Counterplaintiffs )
)
(JEFFERSON & MONROE, LLC, Defendant and ) Honorable Patrick J. Heneghan,
Counterplaintiff-Appellant). ) Judge Presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the court.
Justices Cunningham and Delort concurred in the judgment.
ORDER
¶1 Held: Creditor’s full credit bid at a foreclosure sale precluded its later request for
additional statutory interest; affirmed.
No. 1-21-1369
¶2 Defendant and counterplaintiff, Jefferson & Monroe, LLC (Jefferson & Monroe), appeals
an order of the circuit court that found that a judgment against one of the plaintiffs and
counterdefendants, Goriana Alexander, was satisfied by a full credit bid at a foreclosure sale. On
appeal, Jefferson & Monroe contends that the circuit court should not have released the judgment
because Alexander still owed Jefferson & Monroe over $130,000 in statutory interest.
¶3 I. BACKGROUND
¶4 In January 2017, after a bench trial for a commercial dispute, Alexander was ordered to
pay $473,072.95 in damages to Jefferson & Monroe. This court affirmed the circuit court’s
judgment on April 20, 2018. Alexander on behalf of Jefferson & Monroe, LLC v. Martinez, 2018
IL App (1st) 171167-U. Jefferson & Monroe engaged in supplementary proceedings in the law
division of the circuit court of Cook County to enforce its judgment, issuing citations to discover
assets to Alexander and several third parties. Under a settlement agreement, Alexander paid
Jefferson & Monroe $30,000 against the balance of the judgment.
¶5 In an effort to collect on the rest of the judgment, in November 2017, Jefferson & Monroe
recorded its judgment against a nonowner occupied residential condominium owned by Alexander
and her husband. On February 21, 2019, Jefferson & Monroe filed a verified amended complaint
in the chancery division of the circuit court of Cook County to foreclose the judgment lien on the
condominium under section 12-101 of the Code of Civil Procedure (Code) (735 ILCS 5/12-101
(West 2018)), which Jefferson & Monroe refers to as the lien of judgment statute, and the Illinois
Mortgage Foreclosure Law (Foreclosure Law) (735 ILCS 5/15-1101 et seq. (West 2018)). The
complaint stated that $439,147.94 of the judgment was unpaid, and interest accrued at the statutory
rate of 9%. Through December 28, 2018, the judgment had accrued $79,532.58 in interest. The
-2-
No. 1-21-1369
complaint also noted that a predecessor to PNC Bank had a mortgage on the condominium that
was recorded on June 19, 2003. We will refer to the court that presided over the foreclosure
proceedings as the foreclosure court.
¶6 On July 19, 2019, the foreclosure court entered a judgment of foreclosure and sale. In part,
the court found that Jefferson & Monroe had a valid lien on the property that included the following
amounts:
Principal Balance $473,072.95
Less Payments Made $ 39,276.37
Judgment Balance Due $433,796.58
Statutory Interest to July 1, 2019 $ 12,194.58
Total Due $445,991.16
Including costs and expenses, the total amount due as of July 1, 2019, was $449,175.30. The order
was prepared by counsel for Jefferson & Monroe.
¶7 A report of sale and distribution, also prepared by counsel for Jefferson & Monroe and
dated October 21, 2019, stated that Jefferson & Monroe was the highest bidder at the sale with a
bid of $460,035.01. The proceeds of the sale would be disbursed as follows:
“To the plaintiff:
1. The amount due under judgment $449,175.30
2. Interest thereon (excluding $9,934.71
attorney’s fees) from date of
judgment (7/19/2019) to date of
sale (10/21/19) at 9.00% per
annum
3. Publication costs $575.00
__________________
Subtotal $459,685.01
To the selling officer, as commission $350.00
___________________
Total Amount Due to Plaintiff $460,035.01
Successful Bid Amount $460,035.01
No Surplus or Deficiency $0.00”
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¶8 The record also contains a stipulation that was signed by representatives of PNC Bank and
Jefferson & Monroe on October 24 and 25, 2019. The stipulation stated in part that Jefferson &
Monroe’s judgment lien was inferior to the PNC Bank’s mortgage. The judgment of foreclosure
and sale on the condominium was amended nunc pro tunc to July 19, 2019, to indicate the superior
status of PNC Bank’s mortgage.
¶9 At a hearing related to the foreclosure on November 27, 2019, counsel for Jefferson &
Monroe noted that, because of PNC Bank’s mortgage, the judgment lien would only be satisfied
“to about $90,000, not $460,000.” The foreclosure court stated that there was no deficiency on the
sale of the condominium, but only part of the judgment lien was extinguished. The foreclosure
court also stated that it was not dealing with the judgment lien and was only involved with the sale
of the property. The foreclosure court added, “The totality of what you are seeking in your
judgment lien is not in front of me.”
¶ 10 Jefferson & Monroe submitted a proposed order for the order approving the report of sale
and distribution. The order ultimately entered struck the following two paragraphs of Jefferson &
Monroe’s proposed order:
“That this Order shall in no way extinguish Plaintiff’s judgment
against Goriana Alexander entered January 25, 2017[,] or impair Plaintiff’s
rights to foreclose upon or liquidate other assets in which Goriana
Alexander may have an interest as a means of satisfying said judgment.
***
“Plaintiff is seeking an in personam deficiency judgment against
Goriana Alexander because the [judgment] dated January 25, 2017[,] in
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No. 1-21-1369
the amount of $473,072.95 will not be fully satisfied by sale and
application of the sale proceeds of the real property.”
¶ 11 On December 5, 2019, Alexander filed a motion in the law division to release the 2017
judgment, asserting in part that the judgment was paid in full by Jefferson & Monroe’s full credit
bid at the foreclosure sale. In response, Jefferson & Monroe stated in part that it could both
foreclose on the condominium and levy Alexander’s personal property because the condominium
was encumbered by PNC Bank’s mortgage for approximately $350,000.
¶ 12 After a hearing on Alexander’s motion, the court allowed the parties to submit
supplemental briefs. In part, Jefferson & Monroe stated in its brief that even if the underlying
judgment was satisfied in the amount of the credit bid at the foreclosure sale, the proceedings
would not be over. “Further proceedings, including an accounting of accrued interest and a petition
for fees, would need to occur (and be satisfied) before it would be appropriate to deem the
judgment satisfied and discharge the proceedings.” Attached to Jefferson & Monroe’s
supplemental brief was a postjudgment settlement statement that included entries for statutory
interest on the allegedly unsatisfied portion of the 2017 judgment.
¶ 13 On February 4, 2021, the court granted Alexander’s motion to release the judgment. In a
written ruling, the court found that Jefferson & Monroe’s full credit bid extinguished Alexander’s
debt and further stated as follows. Jefferson & Monroe chose to pursue a judgment foreclosure.
Section 12-101 of the Code (735 ILCS 5/12-101 (West 2018)) states that a judgment lien is
foreclosed “in the same manner as a mortgage of real property.” So, Jefferson & Monroe operated
within the statutory framework of the Foreclosure Law. When a creditor at a foreclosure sale bids
the full amount of the debt, and the creditor’s bid is the highest bid, the creditor takes the property,
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No. 1-21-1369
and the underlying judgment is deemed satisfied. The court entered a satisfaction and release of
the 2017 judgment and dismissed all supplementary proceedings with prejudice.
¶ 14 On March 5, 2021, Jefferson & Monroe filed a motion for rehearing, modification and
stay—in essence, a motion to reconsider. Jefferson & Monroe stated that its bid at the foreclosure
sale did not satisfy the entire 2017 judgment because of the remaining statutory interest that was
owed. As of March 5, 2021, the underlying judgment with accrued interest, less the credit bid, was
$188,012.94. Further, taking into account statutory interest, Jefferson & Monroe did not bid the
whole amount that was due on the 2017 judgment. The report of sale from the foreclosure only
included interest from March 4, 2019, until July 1, 2019. Jefferson & Monroe also asserted that
because the accrual of interest is mandatory, it did not have to seek interest on the 2017 judgment
in the foreclosure case.
¶ 15 In response, Alexander asserted in part that Jefferson & Monroe never contended that the
judgment exceeded $460,035.01 or that the credit bid only partially satisfied the judgment.
Jefferson & Monroe only asserted that the value of the condominium was insufficient to satisfy
the judgment, and repeatedly conceded that the judgment was approximately $460,000. If
Jefferson & Monroe disagreed with the judgment balance or lack of deficiency in the foreclosure
case, it should have set aside the sale or appealed the order approving the sale. Jefferson & Monroe
was solely at fault for any mistakes in calculating the judgment balance in the foreclosure case.
¶ 16 After a hearing, the court denied Jefferson & Monroe’s motion to reconsider. In a written
ruling, the court stated that though Jefferson & Monroe made only superficial and passing
references to the statutory interest issue before filing the motion to reconsider, the court would still
address the matter. The court further stated as follows. Jefferson & Monroe did not dispute the
amount of postjudgment interest that was included in the foreclosure judgment and moved to
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No. 1-21-1369
confirm the results of the sheriff’s sale, which included only $12,194.58 in postjudgment interest.
Jefferson & Monroe also did not seek to modify or vacate the confirmation of the sheriff’s sale or
appeal any of the foreclosure court’s orders, rulings, or calculations. Further, when a creditor bids
the full amount of the outstanding debt at a foreclosure sale, as Jefferson & Monroe did, then the
debt and any related damages or costs are deemed satisfied. The court could not fix what Jefferson
& Monroe may have realized were mistakes—bidding the full amount of its judgment, with full
knowledge of PNC Bank’s superior lien, and affirmatively seeking and securing a foreclosure
judgment and confirmation of the sale that did not include all of the postjudgment interest that had
accrued since January 2017.
¶ 17 Jefferson & Monroe subsequently appealed.
¶ 18 II. ANALYSIS
¶ 19 Jefferson & Monroe contends that its 2017 judgment is not satisfied because Alexander
still owes accrued statutory interest. Jefferson & Monroe states that for a judgment to be deemed
satisfied, the debtor must tender to the creditor the full amount of the underlying judgment and
accrued interest. According to Jefferson & Monroe, its full credit bid on the condominium did not
extinguish the 2017 judgment because the foreclosure judgment did not reflect over $130,000 in
statutory interest that was still owed. Jefferson & Monroe asserts that the Foreclosure Law is
directed at mortgagees and not judgment creditors. Because it already had a judgment, Jefferson
& Monroe was not required under the Foreclosure Law to include all accrued statutory interest in
the foreclosure judgment. Jefferson & Monroe states that the foreclosure court agreed with its
interpretation of the Foreclosure Law as applied to judgment creditors.
¶ 20 Initially, Alexander asserts that Jefferson & Monroe forfeited its argument that it is entitled
to additional statutory interest because the matter was raised for the first time in a motion to
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reconsider. A motion to reconsider “is not the place to raise a new legal theory or factual
argument.” Liceaga v. Baez, 2019 IL App (1st) 181170, ¶ 25. The purpose of such a motion is to
bring to a court’s attention newly discovered evidence, changes in the law, or errors in the court’s
previous application of existing law. Id. Jefferson & Monroe broadly referred to “an accounting of
accrued interest” in a supplemental brief after a hearing on the motion to release the judgment. An
attached postjudgment settlement statement listed entries for statutory interest. Later, Jefferson &
Monroe fully developed its statutory interest argument in a motion to reconsider.
¶ 21 Even if Jefferson & Monroe did not timely raise the statutory interest issue, we will still
consider it. A reviewing court may consider an argument that was untimely raised where “the issue
is one of law and is fully briefed by the parties on appeal.” Lake County Grading Co. v. Forever
Construction Co., 2017 IL App (2d) 160359, ¶ 42. We turn to the merits.
¶ 22 The parties dispute the standard of review. Jefferson & Monroe contends that our review
is de novo, which is the standard that applies to a circuit court’s decision to deny a motion to
reconsider that was based on the application or misapplication of existing law. Spencer v. Wayne,
2017 IL App (2d) 160801, ¶ 25. Alexander states that whether a party has proved a release or
satisfaction of a judgment is reviewed for an abuse of discretion. Meyer v. First American Title
Insurance Agency of Mohave, Inc., 285 Ill. App. 3d 330, 336 (1996). The abuse-of-discretion
standard of review also applies to motions to reconsider that were based on new matters, such as
additional facts or new legal theories. Liceaga, 2019 IL App (1st) 181170, ¶ 26. Under either
standard of review, our conclusion is the same: the circuit court properly found that Alexander
satisfied the January 2017 judgment, and Jefferson & Monroe cannot collect additional statutory
interest.
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¶ 23 Alexander filed her motion to release the 2017 judgment under section 12-183 of the Code
(735 ILCS 5/12-183 (West 2018)). A proceeding under that section “determines whether all money
due has been paid and the judgment has been satisfied.” Otto Baum, Co. v. Süd Family Ltd.
Partnership, 2020 IL App (3d) 190054, ¶ 20. Once a judgment is paid in full by a defendant, the
defendant is statutorily entitled to receive a release of the judgment. Id. ¶ 21.
¶ 24 Jefferson & Monroe sought to satisfy its 2017 judgment by foreclosing on the
condominium, though it maintains that the foreclosure did not fully satisfy the judgment. Section
12-101 of the Code states that a judgment lien
“may be foreclosed by an action brought in the name of the judgment creditor or its
assignee of record under Article XV in the same manner as a mortgage of real property,
except that the redemption period shall be 6 months from the date of sale and the real estate
homestead exemption under section 12-901 shall apply.” 735 ILCS 5/12-101 (West 2018).
Jefferson & Monroe asserts that, in spite of the explicit reference in section 12-101 to the
Foreclosure Law, a judgment creditor is not actually subject to the Foreclosure Law when the
creditor forecloses on property to satisfy a judgment. To assess this argument, we interpret section
12-101 of the Code. Our primary goal is to ascertain the legislature’s intent, and the best indicator
of that intent is the statute’s language, given its plain and ordinary meaning. Tillman v. Pritzker,
2021 IL 126387, ¶ 17. Statutory language that is clear and unambiguous is given effect as written
without using other aids of statutory interpretation. State ex rel. Leibowitz v. Family Vision Care,
LLC, 2020 IL 124754, ¶ 34.
¶ 25 Based on the plain language of section 12-101 of the Code, when a judgment creditor
forecloses on real property, the process occurs “in the same manner” as a mortgage foreclosure
under the Foreclosure Law. A judgment creditor must thus follow the provisions of the Foreclosure
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No. 1-21-1369
Law, except for differences relating to a redemption period and a homestead exemption. We will
not read into the statute an additional exception for Jefferson & Monroe’s request for statutory
interest that was not collected during the foreclosure. See Accettura v. Vacationland, Inc., 2019 IL
124285, ¶ 11 (a court will not depart from the plain language of a statute by reading into it
exceptions, limitations, or conditions that conflict with the expressed intent). Jefferson & Monroe’s
assertion that the Foreclosure Law is only directed at mortgagees and not judgment creditors is
contradicted by the plain language of section 12-101 of the Code. The provisions of the Foreclosure
Law applied to Jefferson & Monroe’s foreclosure of the condominium.
¶ 26 The rules that apply to lenders at foreclosure sales preclude Jefferson & Monroe from now
adding more statutory interest to its foreclosure judgment. Under section 15-1504(e)(1) of the
Foreclosure Law, a request for a foreclosure is a request that the court make an accounting of the
amounts due and owing. 735 ILCS 5/15-1504(e)(1) (West 2018). Here, the condominium was sold
to satisfy the amount due to Jefferson & Monroe “as set forth in the judgment, together with the
interest thereon at the statutory judgment rate from the date of the judgment[.]” Id. § 15-1504(e)(3).
When a foreclosing lender bids on a property, the lender has made a credit bid. Freedom Mortgage
Corp. v. Burnham Mortgage, Inc., 720 F. Supp. 2d 978, 1006 (N.D. Ill. 2010). Here, by bidding
the full amount of Alexander’s existing debt, Jefferson & Monroe made a full credit bid. See id.
(a full credit bid “equals the unpaid principal and interest of the mortgage debt”).
¶ 27 A full credit bid carries significant consequences. “ ‘Most states, including Illinois, hold
that a lender is deemed to have received repayment of a loan in full if, at a foreclosure, it
successfully bids the full amount of the loan (the “Full Credit Bid Rule”).’ ” Id. (quoting Freedom
Mortgage Corp. v. Burnham Mortgage Inc., No. 03 C 6508, 2006 WL 695467, at *6 (N.D. Ill.
Mar. 13, 2006)). See also Gaskin v. Smith, 375 Ill. 59, 67 (1940) (“the mortgagee under whose
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No. 1-21-1369
decree the mortgaged property is sold, in the absence of all irregularity and unfairness in the sale,
must be conclusively held to the price bid as a full equivalent and satisfaction of his lien”); Partel,
Inc. v. Harris Trust & Savings Bank, 106 Ill. App. 3d 962, 965-66 (1982) (bidding in of the debt
to purchase a mortgaged property, thus cutting off other lower bidders, is a satisfaction of the debt);
Benj. Harris & Co. v. Western Smelting & Refining Co., 322 Ill. App. 609, 642 (1944) (“ ‘[i]f the
judgment creditor himself becomes the purchaser at the sale, the judgment is satisfied in full if he
bids the whole amount due him, otherwise, pro tanto’ ” (quoting 34 Corpus Juris, Judgments,
¶ 1105, at 719)).
¶ 28 Placing a full credit bid also means that Jefferson & Monroe cannot seek additional
recovery from Alexander for the debt. The full credit bid rule precludes creditors from asserting
that the foreclosure judgment was insufficient to satisfy the debt. In BMO Harris Bank, N.A. v.
Wolverine Properties, LLC, 2015 IL App (2d) 140921, ¶ 1, a bank placed a full credit bid for a
property and later sought a deficiency judgment for a prejudgment tax payment. The court denied
the bank’s request, stating that “a plaintiff must seek to include in the judgment of foreclosure all
debts sought; that is a definitive purpose of the judgment of foreclosure.” Id. ¶ 29. The bank
presented “no reason, other than its own inadvertence or mistake, why it could not have sought to
include the tax payment in the original judgment of foreclosure.” Id. ¶ 27. In LOL Finance Co. v.
Easy Money Catfish Co., 842 F. Supp. 2d 1019, 1020 (N.D. Miss. 2012) 1, a creditor who submitted
a full credit bid could not later seek a deficiency judgment when the foreclosed property turned
out to be worth much less than the bid. The court noted that the creditor’s decision to make a full
credit bid “was a conscious decision which it made in consultation with counsel.” Id. at 1021.
1
Lower federal court decisions are not binding, but we may look to them as persuasive authority.
People v. Kent, 2017 IL App (2d) 140917, ¶ 88.
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¶ 29 Jefferson & Monroe seems to contend that the full credit bid rule does not apply to it.
Jefferson & Monroe asserts that a judgment is not satisfied until a debtor has paid the entire amount
of statutory interest, which here would include interest accrued since 2017. Jefferson & Monroe
notes that for a court to release a judgment, a debtor must pay “all such sums of money are really
due.” 735 ILCS 5/12-183(a) (West 2018). Jefferson & Monroe also states that a debtor must pay
the entire amount of statutory interest that has accrued on an underlying judgment. See In re
Liquidation of Pine Top Insurance Co., 322 Ill. App. 3d 693, 698 (2001). Jefferson & Monroe may
have indeed been owed the additional statutory interest it now seeks. Yet, the time to have
requested that additional amount was during the foreclosure proceedings. Counsel for Jefferson &
Monroe prepared the order of foreclosure and the report of sale, both of which listed the amount
of statutory interest that was due. It is unclear why only some of the statutory interest due was
included. As the circuit court noted, Jefferson & Monroe did not seek to modify or vacate the
confirmation of the sale, or appeal any of the foreclosure court’s orders, rulings, or calculations.
The foreclosure court’s oral comments about whether Jefferson & Monroe’s lien was fully
extinguished are not binding on this court. The foreclosure court stated that it was not involved in
Jefferson & Monroe’s judgment lien, and was only concerned with the sale of the condominium.
Jefferson & Monroe does not cite any authority that found that a creditor could later seek statutory
interest after placing a full credit bid at a foreclosure sale. The full credit bid rule applies to
Jefferson & Monroe’s request for additional statutory interest.
¶ 30 Jefferson & Monroe could have placed a lower bid at the foreclosure sale, which would
have given it more options to satisfy the 2017 judgment. Lenders who seek to foreclose on
judgment liens “ ‘can make a rational choice: bid in the full debt and let the matter rest, or bid a
lesser amount and preserve any rights that may exist to seek a deficiency judgment’ ” or pursue
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other damages. LOL Finance Co, 842 F. Supp. 2d at 1022 (quoting M & I Bank, FSB v. Coughlin,
805 F. Supp. 2d 858, 866 (D. Ariz. 2011)). See also Cornelison v. Kornbluth, 15 Cal.3d 590, 607
(Cal. 1975) (many creditors enter low credit bids to provide access to additional security or funds).
As it stands, it is too late for Jefferson & Monroe to recover more statutory interest. We need not
resolve whether judgment creditors must comply with every provision of the Foreclosure Law.
The operative point here is that Jefferson & Monroe’s full credit bid precludes its request for
additional statutory interest.
¶ 31 Our conclusion is further confirmed by Jefferson & Monroe’s citations to two out-of-state
cases—Titan Loan Investment Fund, L.P. v. Marion Hotel Partners, LLC, 891 N.E.2d 74 (Ind.
App. Ct. 2008), and Fairfield Plumbing & Heating Supply Corp. v. Kosa, 600 A.2d 1 (Conn. 1991).
In Titan Loan, 891 N.E.2d at 76-77, the court found that the full credit bid rule precluded a creditor
from making a full credit bid and then claiming that the property was actually worth less than the
bid. Kosa did not involve the full credit bid rule. There, the court considered whether a deficiency
judgment was available to a judgment creditor who pursued a strict foreclosure, rather than a
foreclosure by sale. 600 A.2d at 2-3. Finding that a deficiency judgment was indeed available, the
court stated that “[e]very aspect of a mortgage foreclosure applies equally to a foreclosure of a
judgment lien.” Id. at 5.
¶ 32 As stated above, Jefferson & Monroe could have bid differently or raised the statutory
interest issue in the foreclosure case. Jefferson & Monroe’s full credit bid precludes it from seeking
additional statutory interest now. The circuit court correctly found that the full credit bid satisfied
the 2017 judgment and correctly denied the motion to reconsider.
¶ 33 III. CONCLUSION
¶ 34 For the foregoing reasons, the judgment of the circuit court is affirmed.
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¶ 35 Affirmed.
-14- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483249/ | Filed 11/10/22 N.R. v. San Bernardino County Children and Family Services CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
N.R., A MINOR, etc.,
Plaintiff and Appellant, E074418
v. (Super.Ct.No. CIVDS1416377)
SAN BERNARDINO COUNTY OPINION
CHILDREN AND FAMILY SERVICES,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan F. Foster,
Judge. Affirmed.1
The Ehrlich Law Firm and Jefffrey I. Ehrlich; The Vartazarian Law Firm, Steven
R. Vartazarian and Matthew J. Whibley for Plaintiff and Appellant.
1 We dismiss the cross-appeal as moot.
1
Michelle D. Blakemore, County Counsel and Blakney A. Boggs, Deputy County
Counsel; Dolen, Tucker, Tierney & Abraham and Raymond F. Dolen; Greines, Martin,
Stein & Richland and Timothy T. Coates for Defendant and Appellant.
After investigating a referral for possible child abuse, a social worker for the San
Bernardino County Child and Family Services (the County or CFS) determined the
allegations were unfounded due to lack of current evidence of abuse, but recommended
parenting classes for Christopher R., the father, and Hannah T., his girlfriend, to avoid a
risk of potential harm to the child, N., because they had admitted to using corporal
punishment on the child in the past. Six months later, the child suffered a catastrophic
head injury at the hands of the girlfriend which left the child severely disabled. The child
was removed from the father and placed in the custody of his mother, Laurel R.,2 who
sued the County for breach of a mandatory duty to open a case file and investigate
collateral contacts. Following trial, a jury found the County was 85 percent liable for the
injuries to the child. The County filed a motion for judgment notwithstanding the verdict
(JNOV) and, alternatively for a new trial. The court granted both motions. Plaintiff, as
guardian ad litem for the child, appealed. The County cross-appealed from the original
judgment in favor of plaintiff.
On appeal, plaintiff argues that the trial court erred in granting the motion for
JNOV by (a) relying on an erroneous construction of the County’s legal duties and (b)
2 Plaintiff’s mother’s first name is variously spelled “Laurell,” as in the plaintiffs’
pleadings, and “Laurel” in the record (the trial court’s rulings, and plaintiffs’ Notice of
Appeal). Because plaintiffs’ counsel filed the notice of appeal with the spelling,
“Laurel,” we will use that spelling for convenience.
2
improperly resolving factual issues in the County’s favor. The County argues by way of
cross-appeal that if the orders are procedurally defective, the County is entitled to a new
trial. We affirm the trial court’s grant of defendant’s motions and dismiss defendant’s
appeal.
BACKGROUND
Laurel R. was previously married to Christopher R., and the couple had a child,
N., who was born in 2008, while the couple lived in North Carolina where Christopher, a
Marine, was stationed. The couple subsequently divorced and Christopher assumed
physical custody of N. When Christopher was transferred to Twentynine Palms, N.
moved with him, as well as his girlfriend Hannah T. Christopher was an air traffic
controller for the Marines and had been transferred to San Bernardino County.
On September 2, 2013, an ex-roommate of Christopher and Hannah’s made a
report of abuse and neglect of N. on the San Bernardino County Child and Family
Services (CFS or County) Child Abuse Hotline. The report indicated that Hannah locked
N. in his room all day causing him to defecate and urinate in the room and that N. was
fed only vegetables, but his food would be taken away as punishment. The door to N.’s
room locked from the outside so N. could not exit the room. When he defecated on
himself, he was given a cold shower. The caller also indicated he was verbally abused,
had dark circles around his eyes, and that Hannah used a drumstick to beat N.
In response to this report, Luz Campas investigated the allegations on September
2, 2013. Campas found no prior history, and, when she examined N. during an
3
unannounced visit, he appeared well-nourished and groomed, his room was appropriate,
and no feces were found. Her report also noted that the house was adequate, there was
more than ample furniture and food in the home, N. appeared to be comfortable with his
parents and did not fear them. There were no visible marks or bruises on N. and his skin
was fair. Social worker Campas concluded the allegations were unfounded.
After this experience with child welfare authorities, Hannah’s mother, Rachel K.,
arranged for Hannah and N. to visit her in Oregon on the same day that Campas and
Deputy Hess did their investigation because Hannah was overwhelmed. While in
Oregon, Hannah’s mother, Rachel, observed that the relationship between Hannah and N.
was troubling, that Hannah was overly harsh and critical of N., and that she was too
controlling. Rachel also observed bruising on N. from head to toe.
In addition, Rachel’s son informed Rachel he had seen Hannah hose down N.
outside and beat him with a wooden spoon. Rachel contacted Christopher by phone to
express her concern about N.’s treatment. Rachel also spoke with Hannah,
recommending that N. stay with Rachel and that Hannah get mental health care.
However, Hannah became upset and left her mother’s home several days earlier than
planned.
On September 27, 2013, Rachel telephoned the Yucca Valley police department
because she worried nothing would be done to protect N. She reported observing Hannah
take N.’s food away and that N. appeared severely underweight. Deputy Bailey
responded to that call and went to the home to interview and examine N. N. informed
4
Deputy Bailey that when he peed or pooped in this diaper, Hannah hit him in the head
and face and beat him with a drumstick on his butt and face, even pointing to the
drumstick that Hannah used, and then gave him a cold bath. He also indicated she beat
him up and it hurt everywhere. N. also informed the deputy that Hannah took away his
food as punishment because he picked up his hotdog with his hand.3 Deputy Bailey
reported to the Hotline that Hannah hit N. with spoons, hangers, and a spatula all over his
body and that Christopher allowed his son to stay at home alone with Hannah.
In response to this second referral, social worker Karen Perry went to the home on
October 1, 2013, but did not meet with Christopher or Hannah until October 6, 2013.4
During the interview, N. told Perry he felt safe at home and denied anything scary
happened to him. Perry found N. to be “bright in affect and thin” with “good skin
pal[l]or,” except under his eyes. Hannah and Christopher were also interviewed, and
denied withholding food, but informed Perry that N. behaved strangely, urinating on his
toys, defecating and smearing his feces. Both Christopher and Hannah admitted Hannah
had occasionally used corporal punishment with N. by using a drum stick to spank him
on the buttocks, and on one occasion they observed a bruise from such a spanking.
3 In her deposition testimony (which was introduced at trial), Hannah admitted
that N. was clearly malnourished and was so skinny they did not want to take him to the
store, even.
4 Perry’s first attempt to have a face-to-face meeting was on October 1, 2013, but
a roommate informed Perry that Christopher was not at home and Hannah was in bed.
She left her card and Christopher telephoned Perry the next day, when a home visit was
arranged.
5
Thereafter, they stopped using corporal punishment, and, instead, disciplined N. with
time-outs.
Perry physically examined N.’s body but found no signs of bruising or trauma.5
The house was above minimal standards and there were no signs of abuse or neglect. N.
denied anything scary, indicated he felt safe at home and that he was punished by being
made to sit against the wall in time out. However, she thought parenting classes might be
helpful to the couple because they acknowledged corporal punishment had been used
until a few weeks prior to Perry’s visit, when Christopher indicated he had seen a bruise
and had not realized N. bruised easily. As a result, the couple currently used time outs of
5 minutes in duration. Because the couple had used physical punishment in the past,
Perry provided them with some brochures about parenting classes, but did not mandate
that they attend. Because there was no current evidence of abuse or neglect, Perry
determined that the allegations were unfounded, and closed the file.
In the meantime, N. was examined in December 2013 and January 2014 by a
doctor, who is a mandated reporter, in connection with N.’s circumcision, and the doctor
did not indicate any signs of malnutrition or abuse.
On May 18, 2014, more than six months after Perry’s home inspection, N. was
admitted to the hospital with a large acute subdural hematoma and was in a coma. He
was also diagnosed with nonorganic failure to thrive when admitted to the hospital.
5 In February of 2014, plaintiff came to California to see N. and observed no signs
of abuse or neglect, either.
6
Hannah severely injured N. while Christopher was not present in the home.6 His face
and body were covered with bruises, but Hannah told her mother he fell off a stool and
hit his head on the floor. N. suffered catastrophic permanent injuries as a result of the
beating, for which Hannah was arrested for violating Penal Code section 273a,
subdivision (a), leading to her conviction and sentence of 15 years in prison. Christopher
was charged and pled guilty to a misdemeanor charge of violating Penal Code section
273a, subdivision (a).7
Physical custody of N. was awarded to Laurel, who then filed her lawsuit against
the County for recovery for injuries sustained by N. after the County allegedly failed to
perform mandatory duties set forth in the Child Welfare Services Manual of Policies and
Procedures, sections 31-101.5 and 31-125.5. Following trial, the jury returned a special
verdict in favor of plaintiffs: The special verdict awarded $602,625.66 for past economic
damages; $9,900,000.00 for future economic loss, $2,900,000.00 for future loss of
earning capacity, $15,000,000.00 for past noneconomic loss, and $85,000,000.00 for
future noneconomic loss. The jury assessed fault as follows: the County was 85 percent
6 The agency of the injuries is unknown because statements attributed to Hannah
regarding the abuse on this occasion were not included in the excerpt of the deposition
testimony introduced at trial.
7 There is nothing in the record supporting the statement about this conviction; the
only “evidence” we have of Christopher’s conviction is a vague statement by Hannah
about his arrest during her deposition testimony, and counsel’s opening statement. This
fact appears to be undisputed so we refer to it here, but it is actually a matter outside the
record on appeal where no competent evidence of the conviction appears in the record.
7
at fault, Christopher was 10 percent at fault, and Hannah was 5 percent at fault.
Judgment was entered accordingly.
On September 6, 2019, the County made motions for judgment notwithstanding
the verdict and, alternatively, for a new trial. Plaintiff opposed the motions. On October
30, 2019, the trial court issued its rulings granting both motions. Specifically, the court
found that there was no substantial evidence that the closure of the referral by Perry fell
outside the her discretion or that it was a violation of her mandatory duty where she
determined the allegations were unfounded. It also concluded that the evidence showed
Perry’s full compliance with the mandatory duties, such that there was no substantial
evidence to support the jury’s finding of a violation of mandatory duties.
As for the motion for new trial, the court granted the motion because the jury’s
apportionment of 85 percent of the fault to the County was unreasonable and punitive,
and because there was insufficient evidence that Perry violated a mandatory duty where,
in the exercise of a social worker’s discretion, she determined the allegations were
unfounded. Plaintiff timely appealed and defendant cross-appealed from the original
judgment.
DISCUSSION
A. Plaintiff’s Appeal.
1. The Trial Court Properly Granted the Motion for JNOV.
Plaintiff argues that the court erred in granting the County’s motion for JNOV
because the trial court relied on an erroneous construction of the county’s legal duties and
8
improperly resolved disputed factual issues in the County’s favor. Regarding the claim
of erroneous construction of the mandatory duties, plaintiff alleges that (a) Perry’s
designation of the allegations she investigated as “unfounded,” was not entitled to
weight; (b) the trial court applied the wrong standard in concluding that Perry complied
with mandatory duties; and (c) even if Perry’s “unfounded” determination is credited,
that did not excuse her failure to open a case plan. We disagree.
a. General Principles Governing Motions for JNOV.
A motion for JNOV may be granted only if a motion for a directed verdict should
have been granted. (Code Civ. Proc., § 629, subd. (a)). “A motion for judgment
notwithstanding the verdict may be granted only if it appears from the evidence, viewed
in the light most favorable to the party securing the verdict, that there is no substantial
evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th
62, 68, citing Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110.)
“The power of the court to direct a verdict is subject to the same limitations as its
power to grant a nonsuit.” (Reynolds v. Willson (1958) 51 Cal.2d 94, 99, citing Pellett v.
Sonotone Corp. (1945) 26 Cal.2d 705, 708 [overruled on a different point in Leung v.
Verdugo Hills Hospital (2012) 55 Cal.4th 291, 302].) A nonsuit may be granted only
where, disregarding conflicting evidence on behalf of the defendants, and giving to
plaintiff’s evidence all the value to which it is legally entitled, therein indulging in every
legitimate inference which may be drawn from that evidence, the result is a determination
9
that there is no evidence of sufficient substantiality to support a verdict in favor of the
plaintiff.
“‘“The granting of a motion for nonsuit is warranted when, disregarding
conflicting evidence, giving plaintiff’s evidence all the value to which it is legally
entitled, and indulging in every legitimate inference that may be drawn from the
evidence, the trial court determines that there is no evidence of sufficient substantiality to
support a verdict in favor of plaintiff.” [Citations.] [¶] Plaintiff cannot prevail unless he
can demonstrate substantial evidence in the record to support each claim asserted. Mere
conjecture or nonsensical interpretations of evidence are not sufficient to overturn a
nonsuit.’” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 684, quoting
Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580; see also Ritschel
v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 115.)
Thus, “‘“[a] motion for judgment notwithstanding the verdict may be granted only
if it appears from the evidence, viewed in the light most favorable to the party securing
the verdict, that there is no substantial evidence in support. [Citation.] [¶] . . . As in the
trial court, the standard of review [on appeal] is whether any substantial evidence—
contradicted or uncontradicted—supports the jury’s conclusion.”’” (Webb v. Special
Electric Co., Inc. (2016) 63 Cal.4th 167, 192, quoting Cabral v. Ralphs Grocery Co.
(2011) 51 Cal.4th 764, 770.)
Regarding situations in which motions for JNOV and for new trial are both
granted, if the court grants a motion for judgment notwithstanding the verdict and
10
likewise grants the motion for a new trial, the order granting the new trial shall be
effective only if, on appeal, the judgment notwithstanding the verdict is reversed, and the
order granting a new trial is not appealed from or, if appealed from, is affirmed.” (Code
of Civ. Proc., § 629, subd. (d); Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310,
330.) “The obvious import of this quoted language of [Code of Civil Procedure] section
629 is that an order granting the new trial is contingent upon the result of the appeal of
the JNOV; that is, the order is not effective unless and until the JNOV has been reversed
on appeal, and is moot if the JNOV is affirmed on appeal, and several cases have so
held.” (Cobb v. University of So. California (1996) 45 Cal.App.4th 1140, 1146.)
On appeal, we are bound to view the evidence in the light most favorable to the
party securing the verdict, unless our review of the record discloses no evidence nor any
reasonable inference therefrom which supports the jury’s verdict. (See Hauter v. Zogarts
(1975) 14 Cal.3d 104, 111.) “When the issue raised is whether sufficient evidence
supports the jury’s factual findings, appellate courts apply the substantial evidence
standard.” (Cleveland v. Taft Union High School Dist. (2022) 76 Cal.App.5th 776, 802,
citing Hauter v. Zogarts, supra, 14 Cal.3d at p. 110.) “Alternatively, when the appeal
raises purely legal questions, appellate courts apply the independent (i.e., de novo)
standard of review. (Cleveland v. Taft Union High School Dist., supra, at p. 802, citing
Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045 [“all facts essential to issue of
ostensible agency were undisputed; jury’s finding of ostensible agency was contrary to
the law; judgment was reversed”].)
11
In the present matter, facts are not in dispute. The primary issue is whether Perry
violated a mandatory duty specified in the statutes governing duties of child welfare
workers and the regulations and policies and procedures that specify the manner of their
investigations. As matters of statutory construction, we review de novo. (Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1332.)
b. Mandatory Duties of Child Welfare Professionals in Investigating
Allegations of Abuse or Neglect.
Plaintiff argues the trial court erred in granting the JNOV because the jury
properly found that Perry violated mandatory duties, thereby exposing the County to
liability. To properly address this question, we must determine what her mandatory
duties were.
The Child Abuse and Neglect Reporting Act (CANRA; Pen. Code, § 11164 et
seq.) was enacted to protect children from abuse and neglect by increasing the
communication and sharing of information relating to child abuse and neglect among the
agencies responsible for the welfare of children. (Pen. Code, §§ 11166.3, subd. (a),
11164, subd. (b).)
To accomplish this, CANRA designates certain agencies to accept reports of
alleged child abuse or neglect and to cross-report the information contained therein to
other agencies. (Pen. Code, § 11166; B.H. v. County of San Bernardino (2015) 62
Cal.4th 168, 174.)
12
Under CANRA, when an agency receives a report of suspected abuse or neglect
from a mandatory reporter,8 it is required to accept the report (Pen. Code, § 11165.9) and
it is also required to cross-report the allegation to the county welfare or probation
department. (Pen. Code, § 11166, subd. (k).) Once a report is made, responsibilities shift
and other governmental authorities take over. (James W. v. Superior Court (1993) 17
Cal.App.4th 246, 254.) The Act is a reporting scheme to increase the likelihood that
child abuse is identified and reported to authorities for investigation. (Ferraro v.
Chadwick (1990) 221 Cal.App.3d 86, 90.) Other provisions of CANRA specify different
obligations and procedures for the reporting of investigations. (Pen. Code, §§ 11166.3,
subd. (a), 11169, subd. (a).) The child welfare agency for the county is then tasked with
investigating the allegation or report to determine if the child requires protection.
The duty imposed on child welfare service professionals to investigate referrals
pertaining to abuse or neglect involve policies and procedures found in the California
Department of Social Services (DSS) Manual of Policies and Procedures, enacted
pursuant to Welfare and Institutions Code section 16501. The policies and procedures
may therefore qualify as enactments which create a public entity duty. (See Scott v.
County of Los Angeles (1994) 27 Cal.App.4th 125, 134 [breach of mandatory duty found
to exist where social worker visited dependent child in placement only three times in 10
months, rather than on monthly basis as required by DSS Manual of Policies and
8 Hannah’s mother, who initiated the report to the Yucca Police Department, is a
mandatory reporter. Likewise, Deputy Bailey is a mandated reporter, insofar as law
enforcement officers are designated as such under CANRA, and are required to cross-
report to the child welfare agency. (Pen. Code, § 11166, subd. (k); Gov. Code, § 815.6.)
13
Procedures regulation 30-342 (predecessor of reg. 31-320), no investigation was
conducted of allegations of physical abuse, and child was subsequently severely injured
by caregiver].)
Respecting the investigation of allegations, a social worker is required to conduct
an in-person investigation of allegations when a referral is made by a law enforcement
agency. (Man. Policies & Proc., § 31-110.4.) This in-person investigation may be
conducted immediately or within 10 days. (Ibid.) In conducting the investigation, the
social worker shall determine the potential for, or the existence of, any conditions that
place the child at risk and in need of services, and which would cause the child to be a
person described by Welfare and Institutions Code, section 300, subdivisions (a) through
(j). (Man. Policies & Proc., § 31-125.1.)
The social worker shall have in-person contact with all children alleged to have
been abused or at risk of abuse, and at least one person who has information regarding
the allegations. (Man. Policies & Proc., § 31-125.2.) If the social worker determines the
referral (or allegation) is unfounded pursuant to Penal Code section 11165.12, the social
worker shall document that information. (Man. Policies & Proc., § 31-125.21.) If the
social worker does not determine the allegations are unfounded, then the social worker is
required to make necessary collateral contacts. (Man. Policies & Proc., §§ 31-125.22,
31-125.221.)
Plaintiffs assert that Perry’s testimony about the reasons for recommending
parenting classes indicated that she found the allegations inconclusive, rather than
14
unfounded, and thus required contact with collateral sources and a case plan. However,
this assertion is not supported by the record. In plain language, Perry found the
allegations unfounded. Perry stated that she provided brochures about parenting classes
due to the parents’ admission of recent corporal punishment, which Perry felt would
benefit the parents.
The only reasonable interpretation of Perry’s conclusions and her testimony is that
voluntary parenting classes would educate the parents about age-appropriate discipline
and did not indicate there was a risk of physical abuse that might bring the child within
the provisions of Section 300. As Perry herself testified, she recommended the services
to build on their strengths, which had included the decision to no longer use corporal
punishment. In and of itself, age-appropriate discipline, including spanking, is not a
ground for intervention by the social services agency or the court system. (See Welf &
Inst. Code, § 300, subd. (a).) Thus, after Perry contacted N. and his father regarding the
allegations and completed the in-person investigation, she concluded the allegations were
unfounded, but recommended voluntary parenting education due to Hannah’s admission
of past corporal punishment and to prevent abuse, not because there was a current risk of
abuse. The fact Perry recommended voluntary services did not alter her finding that the
allegations were unfounded at the time of her investigation and nothing in the record
supports the inference that she found a risk of abuse. Without such a finding, there was
no mandatory duty to make further or collateral contacts.
15
The social worker’s determination, following an investigation, is key to the
existence of other or further mandatory duties. Penal Code section 11165.12 sets out the
governing definitions pertaining to the results of a child welfare investigation. Based on
the terminology used in the CANRA, an investigation of child abuse may result in a
report with one of three possible findings: unfounded, substantiated or inconclusive. An
“‘[u]nfounded report’ means a report that is determined by the investigator who
conducted the investigation to be false, to be inherently improbable, to involve an
accidental injury, or not to constitute child abuse or neglect . . . .” (Man. Policies &
Proc., §§ 31-125.22, 31-125.221, Pen. Code, § 11165.12, subd. (a).) A “‘[s]ubstantiated
report’ means a report that is determined by the investigator who conducted the
investigation to constitute child abuse or neglect . . . based upon evidence that makes it
more likely than not that child abuse or neglect . . . occurred.” (Id., Pen. Code,
§ 11165.12, subd. (b).) An “‘[i]nconclusive report’ means a report that is determined by
the investigator who conducted the investigation not to be unfounded, but the findings are
inconclusive and there is insufficient evidence to determine whether child abuse or
neglect . . . has occurred.” (Id., Pen. Code, § 11165.12, subd. (c); Saraswati v. County of
San Diego (2011) 202 Cal.App.4th 917, 921.)
While the duty to investigate is mandatory, “the decisions of child welfare agency
employees — regarding determinations of child abuse, the potential risk to a child,
placement of a child, removal of a child, and other resultant actions — are subjective
discretionary ones that are incidental to the employees’ investigations.” (B.H. v. County
16
of San Bernardino, supra, 62 Cal.4th at pp. 191-192, citing Christina C. v. County of
Orange (2013) 220 Cal.App.4th 1371, 1381 [“a public employee is not liable for an
injury resulting from his act or omission [that] was the result of the exercise of the
discretion vested in him, whether or not such discretion be abused”]; Ortega v.
Sacramento County Dept. of Health & Human Services (2008) 161 Cal.App.4th 713, 725,
728, 733 [the immunity applies even to “lousy” decisions in which the worker abuses his
or her discretion, including decisions based on “woefully inadequate information];
Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887, 897 [“The nature of the
investigation to be conducted and the ultimate determination of suitability of adoptive
parents bear the hallmarks of uniquely discretionary activity.”].) Perry’s determination
that the allegations were unfounded, following the discharge of her mandatory duty to
investigate, was a discretionary decision that has historically been recognized as
discretionary.
Plaintiff asserts that Perry had a mandatory duty to make collateral contacts and to
develop a case plan, which she violated and for which the County may be held liable.
However, this assertion assumes that Perry’s investigation found the allegations or the
referral to be either substantiated or inconclusive. The record evidence does not support
this assumption and undermines plaintiff’s argument. Perry’s conclusion was that the
allegations were unfounded. We, like the trial court, are not free to ignore this critical
fact.
17
At oral argument, plaintiff’s counsel asserted we employed the wrong definition of
abuse or neglect under the Penal Code section. However, under the Penal Code, CANRA
recognizes five categories of “child abuse,” two of which are relevant in this case. “The
first, “‘willful harming or injuring of a child,’” is defined as ‘willfully caus[ing] or
permit[ting] any child to suffer, or inflict[ing] thereon, unjustifiable physical pain or
mental suffering.’ [Citation] The second, “‘unlawful corporal punishment or injury,’” is
defined as ‘willfully inflict[ing] upon any child any cruel or inhuman corporal
punishment or injury resulting in a traumatic condition.’ [Citation.]” (Gonzalez v. Santa
Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 85.)
The Penal Code sections comprising CANRA also recognize that spanking a child
with a wooden spoon that leaves bruising is not necessarily child abuse. (Gonzalez v.
Santa Clara County Dept. of Soc. Svcs., supra, 223 Cal.App.4th at pp. 92-93.) CANRA
was aimed at criminal conduct (id., at p. 89), which runs counter to plaintiff’s argument
that it was intended to have a broader meaning than the Welfare and Institutions Code.
While visible bruising demarcates, or at least very nearly approaches, the outer limit for
the quantum of “damage” to be tolerated, it does not necessarily compel a finding of
abuse unless there are grounds to find that the parent intended to inflict bruises, knew his
or her conduct would do so, or should have known that bruises were likely to result from
the amount of force applied and the method of its application. (Id., at p. 93.)
Thus, the social worker’s mandatory duties, based on the Child Welfare Services
Manual and the Manual of Policies and Procedures governing Social Service Standards,
18
are dependent on whether, at a minimum, the parents conduct brings a child within the
definitions under the Welfare and Institutions Code, which contains a broader definition
of abuse, insofar as it does not actually require the infliction of physical harm; rather it
requires only a risk of harm. The standards governing a social worker’s mandatory duties
require a finding that circumstances currently exist which would cause the child to be a
person described by Welfare and Institutions Code, section 300, subdivisions (a) through
(j). (Man. Policies & Proc., § 31-125.1.) Under circumstances where, in the social
worker’s judgment, based on circumstances present at the time of the in-person
investigation, the allegations were unfounded, there was no mandatory duty to make
collateral contacts. Plaintiff’s references to her report as “inconclusive” are therefore not
supported by the evidence. In other words, there is no mandatory duty to contact
collateral sources if the social worker determines the allegations are unfounded.
c. Having Determined the Allegations were “Unfounded,” There was No
Mandatory Duty to Develop a Case Plan.
Plaintiff also argues that Perry had a mandatory duty to create a case plan. This
assertion is likewise misplaced.
If a social worker determines that child welfare services are necessary or that the
child comes within the court’s dependency jurisdiction, the social worker must complete
an assessment and develop a case plan for the child. (Man. Policies & Procedures, §§ 31-
201.1, 31-201.11, 31-201.111.) Of prime importance is the language of the policy
provision which requires the social worker to determine the necessity for child welfare
19
services. As indicated, this determination is a discretionary act by a social worker. (B.H.
v. County of San Bernardino, supra, 62 Cal.4th at pp. 191-192.) The record demonstrates
the social worker determined, based on current circumstances apparent during the in-
person investigation, that the child did not come within the description of a child within
the court’s dependency jurisdiction, and did not find a substantial risk of abuse.
Before jurisdiction is established through a finding that a minor is a person
described by Welfare & Institutions Code section 300, a juvenile court’s authority to
issue orders against a parent is limited and does not include the power to issue orders that
a parent participate in any services. (In re E.E. (2020) 49 Cal.App.5th 195, 202, citing In
re Jody R. (1990) 218 Cal.App.3d 1615, 1622–1623; Welf. & Inst. Code, §§ 319, 323.)
“If a juvenile court determines that drug testing is warranted before jurisdiction, [Welfare
and Institutions Code,] section 319 gives the court authority to order the social services
agency to provide testing referrals. (See Welf. & Inst. Code, § 319, subd. (g) [“If a court
orders a child detained, the court shall . . . order services to be provided as soon as
possible to reunify the child and [his or her] family, if appropriate” (italics added)].)
[Welfare and Institutions Code] section 319 does not, however, authorize the court to
order the parents to make use of those referrals.” (In re E.E., supra, 49 Cal.App.5th at p.
202.)
Thus, unless a child is found to be a person at risk of abuse or neglect by a social
worker following an in-person investigation, and unless a petition is filed and the court
makes jurisdictional findings, the power of the court – and, as its adjunct, the County
20
social services department, cannot require a parent to participate in any child welfare
services.
Nevertheless, the provision of voluntary services is authorized by section 300 of
the Welfare and Institutions Code: “It is the intent of the Legislature that this section not
disrupt the family unnecessarily or intrude inappropriately into family life, prohibit the
use of reasonable methods of parental discipline, or prescribe a particular method of
parenting. Further, this section is not intended to limit the offering of voluntary services
to those families in need of assistance but who do not come within the descriptions of this
section. To the extent that savings accrue to the state from child welfare services funding
obtained as a result of the enactment of the act that enacted this section, those savings
shall be used to promote services which support family maintenance and family
reunification plans, such as client transportation, out-of-home respite care, parenting
training, and the provision of temporary or emergency in-home caretakers and persons
teaching and demonstrating homemaking skills.” (Welf. & Inst. Code, § 300, subd. (j).)
Thus, where a social worker determines that the allegations are unfounded,
voluntary services may be offered, but are not necessary. (Welf. & Inst. Code, § 300;
Man. Policies & Proc., §§ 31-125.21, 31-125.4.)
Plaintiff emphasizes that despite the conclusion that the allegations were
unfounded, the social worker determined there was “some risk” posed by the corporal
discipline that Christopher and Hannah admitted using, and this determination gave rise
to a mandatory duty. However, the social worker’s statement did not import that she
21
believed N. was at risk of meeting the definition of a dependent child pursuant to Welfare
and Institutions Code section 300, such as would result in a finding that the allegation
was substantiated. She expressly found that no such circumstances existed at the time of
the investigation and that child welfare services were not necessary. But, recognizing
that Hannah had admitted spanking N. with a drumstick, which left marks in the past,
Perry recommended parenting classes to Christopher and Hannah as a preventive
measure and to build on the family’s strengths.
Because services were determined to be unnecessary, no case plan was mandated
by either the Welfare and Institutions Code or the Manual of Policies and Procedures.
It is indeed tragic that no signs of abuse or neglect were present when Perry made
her in-person investigative visit. But she followed the protocols and complied with the
mandatory duties set forth in the Welfare and Institutions Code and the Manual of
Policies and Procedures. After conducting her investigation, she concluded the
allegations were unfounded due to lack of current evidence.9 Absent any existing or
potential risk of serious physical harm, her determination that child welfare services were
unnecessary was appropriate. Her conclusion, as provided in all the authorities, was a
9 “Current” evidence of abuse is required because juvenile court dependency
jurisdiction may not be grounded solely on past acts; there must be some basis to
conclude the abuse will continue in the future. And the purpose of the investigation by
the child welfare agency is to determine if the child is in need of protection due to the
existence of or potential for abuse or neglect. “Evidence of past conduct, without more,
is insufficient to support a jurisdictional finding under section 300. There must be some
reason beyond mere speculation to believe the alleged conduct will recur.” (In re James
R. (2009) 176 Cal.App.4th 129, 136, citing In re Savannah M. (2005) 131 Cal.App.4th
1387, 1394.)
22
discretionary act, based on the circumstances presented at the time of her investigation.
Perry did not violate a mandatory duty by not developing a case plan. Indeed, when
allegations are deemed to be unfounded, and child welfare services are determined to be
unnecessary in the discretion of the social worker, there was not even a mandatory duty
to offer voluntary services.
d. Because Perry was Not Under a Mandatory Duty to Further Investigate
Allegations She Determined Were Unfounded, the County is Immune.
Under the Government Claims Act (Gov. Code, § 810 et seq.), governmental tort
liability must be based on statute. “Except as otherwise provided by statute: [¶] . . . [a]
public entity is not liable for an injury, whether such injury arises out of an act or
omission of the public entity or a public employee or any other person.” (Gov. Code,
§ 815, subd. (a)); B.H. v. County of San Bernardino, supra, 62 Cal.4th at p.179, citing
Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 899.)
However, Government Code section 815.6 provides a statutory exception to the
general rule of public entity immunity by providing: “Where a public entity is under a
mandatory duty imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that kind proximately
caused by its failure to discharge the duty unless the public entity establishes that it
exercised reasonable diligence to discharge the duty.” (Gov. Code, § 815.6.)
“Government Code section 815.6 has three elements that must be satisfied to
impose public entity liability: (1) a mandatory duty was imposed on the public entity by
23
an enactment; (2) the enactment was designed to protect against the particular kind of
injury allegedly suffered; and (3) the breach of the mandatory statutory duty proximately
caused the injury.” (B.H. v. County of San Bernardino, supra, 62 Cal.4th at p.179.)
“Even when a duty exists, California has enacted specific immunity statutes that, if
applicable, prevail over liability provisions. [Citation.] The first question always is
whether there is liability for breach of a mandatory duty. [Citation.] If there is no
liability, the issue of immunity never arises.” (Ibid.)
A public entity may be liable for failure to discharge “a mandatory duty imposed
by an enactment that is designed to protect against the risk of a particular kind of
injury . . . unless the public entity establishes that it exercised reasonable diligence to
discharge the duty.” (Gov. Code, § 815.6.) In an action against a public entity, “[o]ne of
essential elements that must be pled is the existence of specific statutory duty.” (Becerra
v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1458.) “[A] negligence per se
claim against a public entity is the same as a breach of mandatory duty cause of action.”
(O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 510, fn. 12.)
In the present case, the social worker discharged her mandatory duties, and,
finding no current evidence of abuse or neglect, concluded the allegations were
unfounded. This determination was a discretionary determination as there exists no
mandatory duty on the part of a social worker to draw any particular conclusion after
conducting an in-person investigation.
24
Because the allegations were unfounded, based on the lack of current evidence of
abuse or neglect, the social worker, in her discretion, determined that child welfare
services were not “necessary.” As such, there was no mandatory duty to develop a case
plan. The trial court correctly determined that Perry did not violate a mandatory duty,
such as would render the County liable.
B. County’s Appeal
The County appeals the original verdict of liability that resulted in a judgment
against it. It argues only that if we were to determine the trial court’s rulings were
procedurally defective, we should order a new trial for defendant. However, the trial
court granted the County’s motion for JNOV, so that verdict and the judgment based
thereon has been vacated. Where the subject order or judgment has been set aside by the
trial court, an appeal must be dismissed as moot. (People v. West Coast Shows, Inc.
(1970) 10 Cal.App.3d 462, 464; see also, El Escorial Owners’ Assn. v. DLS Plastering
Inc. (2007) 154 Cal.App.4th 1337, 1367; Andrisani v. Saugus Colony Ltd. (1992) 8
Cal.App.4th 517, 523.) The County’s appeal is therefore moot.
The trial court already granted the County’s motion for new trial, along with the
JNOV, so there is no need for us to review whether it should be granted. As indicated
above, in the situation where the trial court grants both a JNOV and a new trial, the new
trial “shall be effective only if, on appeal, the judgment notwithstanding the verdict is
reversed, and the order granting a new trial is not appealed from or, if appealed from, is
25
affirmed.” (Code of Civ. Proc., § 629, subd. (d).) Because that issue has been ruled on
previously, it also is moot.
The appeal is moot and subject to dismissal.
DISPOSITION
The judgment is affirmed. The cross-appeal is dismissed. The County is awarded
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
RAPHAEL
J.
26 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483257/ | NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
10-NOV-2022
12:18 PM
Dkt. 68 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
IN THE INTEREST OF QH
APPEAL FROM THE FAMILY COURT OF THE FIRST CIRCUIT
(FC-S NO. 19-00164)
SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)
Appellant Father (Father) appeals from the Order
Terminating Parental Rights, entered on April 4, 2022, in the
Family Court of the First Circuit (Family Court).1/ Father
appears to contend that the Family Court erred in finding that
Father would not be able to provide a safe family home for his
daughter (QH)2/ within a reasonable period of time.3/ Father also
challenges findings of fact (FOFs) 57, 79, 90, 91, and 92, in the
Family Court's May 12, 2002 Findings of Fact and Conclusions of
Law.
1/
The Honorable Andrew T. Park presided.
2/
At the time of trial in March 2022, QH was two years and eight
months old and had entered foster custody ten days after birth.
3/
Father's opening brief fails to comply in material respects with
Rules Expediting Child Protective Appeals Rule 11(a)(3) and Hawai #i Rules of
Appellate Procedure Rule 28(b)(4) and (7). For example, the brief does not
state how the Family Court erred and does not present any argument regarding
the challenged FOFs. Nevertheless, we have "consistently adhered to the
policy of affording litigants the opportunity 'to have their cases heard on
the merits, where possible.'" Morgan v. Planning Dep't Cty. of Kauai, 104
Hawai#i 173, 180-81, 86 P.3d 982, 989-90 (2004) (quoting O'Connor v. Diocese
of Honolulu, 77 Hawai#i 383, 386, 885 P.2d 361, 364 (1994)). We thus address
Father's arguments to the extent discernible.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Father's points of error as follows and affirm.
I.
We review Father's challenges to the Family Court's
FOFs for clear error. In re Doe, 95 Hawai#i 183, 190, 20 P.3d
616, 623 (2001).
A FOF "is clearly erroneous when (1) the record lacks
substantial evidence to support the finding, or (2) despite
substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made." "'Substantial
evidence' is credible evidence which is of sufficient
quality and probative value to enable a person of reasonable
caution to support a conclusion. "
Id. (citations and ellipsis omitted). Unchallenged findings of
fact are binding on appeal. In re Doe, 99 Hawai#i 522, 538, 57
P.3d 447, 463 (2002) (quoting Poe v. Haw. Labor Rels. Bd., 97
Hawai#i 528, 536, 40 P.3d 930, 938 (2002)).
We likewise review conclusions of law that present
mixed questions of fact and law for clear error. See In re JM,
150 Hawai#i 125, 137, 497 P.3d 140, 152 (App. 2021).
Accordingly:
[T]he family court's determinations . . . with respect to
(1) whether a child's parent is willing and able to provide
a safe family home for the child and (2) whether it is
reasonably foreseeable that a child's parent will become
willing and able to provide a safe family home within a
reasonable period of time present mixed questions of law and
fact; . . . they are reviewed on appeal under the clearly
erroneous standard. Likewise, the family court's
determination of what is or is not in a child's best
interests is reviewed on appeal for clear error.
Moreover, the family court is given much leeway in its
examination of the reports concerning a child's care,
custody, and welfare, and its conclusions in this regard, if
supported by the record and not clearly erroneous, must
stand on appeal.
Id. (quoting Doe, 95 Hawai#i at 190, 20 P.3d at 623).
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
II.
Father contests FOFs 57, 79, and 90-92. Each is
addressed below.
A. FOF 57
FOF 57 states:
Father never completely acquired the basic parenting
skills that would keep a child safe. Since the beginning of
this case, Father could not grasp all of a baby's needs like
feeding, consoling, or age-appropriate milestones.
FOF 57 is supported by FOFs 61, 65-78, and 80-83, which
are unchallenged and thus binding on appeal. Specifically, these
unchallenged FOFs provide examples of Father's failures to
acquire basic parenting skills, which include: numerous no-shows
to visitations with QH, failure to bring QH diapers, snacks, and
drinks during visits, and twice leaving QH unsupervised at a
playground.
FOF 57 is also supported by the following testimony of
Department of Human Services (DHS) social worker Bruce Wallace
(Wallace):
Q. So given all of these services and education
given to [Father] . . . why do you still have concerns about
his parenting as a safety issue?
A. Well, just the recent incidents and also the
reports that I have discussed with Dr. Choy, that department
is -- already has exhausted everything that we could give
[Father].
Q. Then given this -- the time that's elapsed and
the services provided, what were your expectations of a
parent who could provide a safe family home at this point?
A. That he would be a parent that asked questions
about his daughter, that innate ability that . . . drives
parents to, one, to understand their child's daily life;
about what is school like; what . . . time does she go to
bed; what is her sleep patterns; what is -- she like to do;
who are her friends; what she likes, what she dislikes.
These are the things that -- innate ability that [Father]
does not possess of being a parent.
Thus, the record contains substantial evidence from
which a reasonable factfinder could have found it highly probable
that FOF 57 was true. See In re JK, 149 Hawai#i 400, 409-10, 491
P.3d 1179, 1188-89 (App. 2021).
3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
B. FOF 79
FOF 79 states:
On March 21, 2022, Father gave [QH] two little balls
during a [Parent-Child Interactive Therapy ( PCIT)] session
against the therapist's advice. [QH] put the balls in her
mouth and almost choked on them. Fortunately, the resource
caregiver noticed [QH]'s distress and intervened.
FOF 79 is supported by substantial evidence in the
record. Specifically, at trial, Wallace testified that the
resource caregiver had reported this incident to him, and that he
(Wallace) had discussed the incident with Father and PCIT staff.
Additionally, Dr. Choy testified that the choking incident
occurred in his office; Dr. Choy's staff told Father not to give
QH anything small that she could choke on; QH got two small
objects from the toy box in the office; and Dr. Choy's staff took
away the objects and made it clear to Father that QH should not
have the small objects on her own. Father also admitted giving
the two balls to QH and that he should not have done it.
Thus, the record contains substantial evidence from
which a reasonable factfinder could have found it highly probable
that FOF 79 was true. See JK, 149 Hawai#i at 409-10, 491 P.3d at
1188-89.
C. FOFs 90-92
FOFs 90-92 state:
90. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
avoid foster placement of [QH] and she has been in the same
placement since she was released from the hospital.
91. Under the circumstances presented by the instant
case, the DHS has exerted reasonable and active efforts to
reunify the Child with [Father] and [Mother] by identifying
necessary, appropriate, and reasonable services to address
their identified safety issues, and making the appropriate
and timely referrals for these services.
92. Under the circumstances presented by the instant
case, the DHS gave Parents every reasonable opportunity to
succeed in remedying the problems which subjected the Child
to substantial risk of being harmed in the family home, and
to reunify with the Child. The DHS actively encouraged
[Father] and [Mother] to participate in necessary and
reasonable services to allow them to reunify with the child.
4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
FOFs 90-92 are also supported by substantial evidence
in the record. Specifically, Father does not contest FOFs 93 and
94, which state:
93. Each of the service plans offered by the DHS and
ordered by the court were fair, appropriate, and
comprehensive.
94. None of the underlying facts and data upon which
the DHS based its opinions, assessments, and recommendations
was shown to be untrustworthy. The DHS' continuing
assessment in this case was conducted in an appropriate
manner.
FOFs 90-92 are also supported by Wallace's trial
testimony. Wallace testified as follows regarding DHS's efforts
to reunify QH and Father:
Q. What types of services has [the] department put
into place to address [parenting] issues?
A. Sure. At . . . the beginning of the case we
have hands-on parenting. We've referred him to hands-on
parenting, Strong Families Home Visiting. He was doing
that. He was inconsistent with that and they closed him
out.
Also, he had the opportunity to do the ABC
Program, which is evidence-based program, which he did not
-- he was inconsistent with that and he was closed out of
that.
We also did parenting education with
[Comprehensive Counseling and Support Services], with
Parents Inc. He did complete that.
We also did another hands-on parenting with
Catholic Charities. We did that. And also we -- right now
currently we are doing PCIT.
Wallace further testified that DHS had exhausted all of its
services that would help Father resolve safety issues; Father had
not shown any improvement on these issues; Father was still not
providing for all of QH's needs during their visits; and, because
of Father's inconsistency, Wallace was concerned that Father "may
forget her at some place, maybe at school[.]" Wallace also
expressed concern that:
[Father] doesn't know his child. He has never asked
about her schooling, . . . her schooling schedule, her sleep
time, her -- what's it like to be at the resource
caregiver's home, who she plays with. That drive that wants
to know everything about your child, or everything that's --
might be wrong about . . . what we're doing wrong, or
anything that he has concerns about during, say, if she went
5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
to a water park and he didn't know about it or something
like that. Or disagreed with something. He . . . has never
asked us anything about that.
Thus, the record contains substantial evidence from
which a reasonable factfinder could have found it highly probable
that FOFs 90-92 were true. See JK, 149 Hawai#i at 409-10, 491
P.3d at 1188-89.
III.
Father's primary contention appears to be that the
Family Court erred in determining that he would not be able to
provide a safe family home for QH within a reasonable period of
time.
HRS § 587A-33(a) (2018) provides, in relevant part:
(a) At a termination of parental rights hearing, the court
shall determine whether there exists clear and convincing
evidence that:
(1) A child's parent whose rights are subject to
termination is not presently willing and able to
provide the parent's child with a safe family
home, even with the assistance of a service
plan; [and]
(2) It is not reasonably foreseeable that the
child's parent whose rights are subject to
termination will become willing and able to
provide the child with a safe family home, even
with the assistance of a service plan, within a
reasonable period of time, which shall not
exceed two years from the child's date of entry
into foster care[.]
HRS § 587A-7(a) (2018) sets forth numerous factors that the
Family Court must consider "when determining whether a child's
family is willing and able to provide the child with a safe
family home[.]"
Here, the Family Court entered extensive findings of
fact related to Father's willingness and ability to provide QH a
safe family home. The FOFs describe, among other things, QH's
age and vulnerability; the reports of harm and threatened harm to
QH; the results of Father's psychological evaluation; Father's
failure to completely acquire the basic parenting skills to keep
a young child safe; Father's inconsistency in demonstrating an
understanding of and involvement in services recommended by DHS
as necessary to provide QH with a safe family home; Father's
6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
failure to resolve safety issues within a reasonable period of
time; and DHS's assessment of Father's ability to provide QH with
a safe family home. In addition, uncontested witness testimony
established that DHS provided Father with reasonable
opportunities to demonstrate his ability to provide a safe family
home for QH, but Father inconsistently participated in
visitations with QH (missing at least thirty-one scheduled
visits), family training courses, and psychiatric sessions, which
ultimately led DHS to seek to terminate Father's parental rights.
Based on the entire record, we conclude that the Family
Court did not clearly err in determining that Father was not
presently willing and able to provide QH with a safe family home,
even with the assistance of a service plan.
IV.
For the reasons discussed above, the Order Terminating
Parental Rights, entered on April 4, 2022, in the Family Court of
the First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, November 10, 2022.
On the briefs:
/s/ Lisa M. Ginoza
Herbert Y. Hamada Chief Judge
for Father-Appellant.
Gay M. Tanaka and /s/ Clyde J. Wadsworth
Julio C. Herrera, Associate Judge
Deputy Attorneys General,
for Petitioner-Appellee.
/s/ Karen T. Nakasone
Associate Judge
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483291/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TERICE BAIYEWU, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 358857
Kalamazoo Circuit Court
SUSAN RADZIEWICZ, LC No. 2020-000200-NZ
Defendant,
and
TRIFOUND HOLDINGS, LLC,
Defendant-Appellee.
Before: SAWYER, P.J., and MARKEY and SWARTZLE JJ.
PER CURIAM.
Plaintiff had an oral lease agreement with TriFound Holdings, LLC, to operate her
massage-therapy business out of its building. After several years, TriFound informed plaintiff that
she could no longer use its building as her place of business. Plaintiff was then locked out of the
building, and away from her business equipment that was stored inside, for two days. Plaintiff
testified that she was sleepless and had delusional episodes that hospitalized her because she was
locked out of her business. She also testified that she lost many clients as a result of her
hospitalization. Plaintiff sued under breach of contract, tortious interference with a business
relationship, and intentional infliction of emotional distress. The trial court granted TriFound
summary disposition under MCR 2.116 (C)(8) and (C)(10).
Plaintiff now appeals, and for the reasons described below, we affirm.
“We review de novo a trial court’s decision to grant or deny a motion for summary
disposition.” Sherman v City of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020)
(citations omitted). “A motion for summary disposition under MCR 2.116(C)(8) tests the legal
sufficiency of a claim by the pleadings alone.” Smith v Stolberg, 231 Mich App 256, 258; 586
-1-
NW2d 103 (1998) (citation omitted). When deciding a motion for summary disposition under
MCR 2.116(C)(10), we consider the evidence submitted in a light most favorable to the nonmoving
party. Payne v Payne, 338 Mich App 265, 274; 979 NW2d 706 (2021). “Summary disposition is
appropriate if there is no genuine issue regarding any material fact and the moving party is entitled
to judgment as a matter of law.” Sherman, 332 Mich App at 632.
Plaintiff first argues that the trial court erred by granting TriFound summary disposition on
her claim for breach of contract. “[A] party claiming a breach must establish (1) that there was a
contract, (2) that the other party breached the contract, and (3) that the party asserting breach of
contract suffered damages as a result of the breach.” Doe v Henry Ford Health Sys, 308 Mich App
592, 601; 865 NW2d 915 (2014). “[D]amages must not be conjectural or speculative in their
nature, or dependent upon the chances of business or other contingencies.” Doe v Henry Ford
Health Sys, 308 Mich App 592, 602; 865 NW2d 915 (2014). “The damages recoverable are those
damages that arise naturally from the breach, or which can reasonably be said to have been in
contemplation of the parties at the time the contract was made.” Kewin v Massachuesetts Mut Life
Ins Co, 409 Mich 401, 419; 395 NW2d 50 (1980). “Absent proof of such contemplation, the
damages recoverable do not include compensation for mental anguish.” Id.
There is no dispute that the parties had entered into a month-to-month tenancy, and that
TriFound informed plaintiff that her lease was terminated less than 30 days before plaintiff was
locked out. “Michigan has codified the common-law rule that a month-month tenancy, under an
oral lease, requires a minimum of thirty days’ notice of termination of either party.” Feister v
Bosack, 198 Mich App 19, 26; 497 NW2d 522 (1993); see MCL 554.134(1). Plaintiff mitigated
the damages from the breach, however, by finding a new location and opening her business for
clients within two days of being locked out of TriFound’s building. Plaintiff did not substantiate
that she lost clients because of the breach of the lease, but rather the breach of the lease caused her
to be hospitalized, which in turn caused her to lose business when clients had to cancel their
appointments. There is no evidence to substantiate that plaintiff’s mental anguish, causing a
hospitalization, was contemplated in their oral lease agreement. Thus, plaintiff’s damages are not
recoverable because those damages were not reasonably contemplated by the parties at the time
the contract was formed.
Next, plaintiff argues that the trial court erred by granting TriFound summary disposition
regarding her claim for intentional infliction of emotional distress. For her claim, plaintiff is
required to show that TriFound’s (1) extreme and outrageous conduct, (2) intentionally or
recklessly, (3) caused (4) the severe emotional distress. Hayley v Allstate Ins Co, 262 Mich App
571, 577; 686 NW2d 273 (2004). Liability from intentional infliction of emotional distress “does
not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”
Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995).
This Court has recently stated that a plaintiff “effectively abandoned her allegation” when
she did not cite any legal authority for her theory of a defendant’s liability for intentional infliction
of emotional distress. Swain v Morse, 332 Mich App 510, 535; 957 NW2d 396 (2020). Similarly,
in this case, plaintiff cites no legal authority for her assertion that a sudden breach of contract that
led to plaintiff being locked out of her office rises to the level of extreme and outrageous behavior
necessary to establish a prima facie case of intentional infliction of emotional distress. Although
TriFound may have breached its contract with plaintiff, the actions were more akin to “insults,
-2-
indignities, threats, annoyances, petty oppressions, or other trivialities.” Furthermore, the evidence
does not substantiate that TriFound intended to, or recklessly caused, plaintiff’s severe emotional
distress.
Lastly, plaintiff argues that the trial court erred in granting summary disposition on her
claim for tortious interference. In Michigan, tortious interference with a business relationship and
tortious interference with a contract are separate claims. Knight Enterprises, Inc v RPF Oil Co,
299 Mich App 275, 279; 829 NW2d 345 (2013). As stated in Knight, “[t]he elements of tortious
interference with a contract are (1) the existence of a contract, (2) a breach of the contract, and (3)
an unjustified instigation of the breach by the defendant.” Id. at 280. “To maintain a cause of
action for tortious interference, the plaintiffs must establish that the defendant was a ‘third party’
to the contract or business relationship.” Reed v Michigan Metro Girl Scout Council, 201 Mich
App 10, 13; 506 NW2d 231 (1993) (cleaned up).
There is no allegation that TriFound, or Radziewicz as an employee of TriFound, was a
third party to the contract or business relationship. TriFound cannot be held liable for toritously
interfering with its own contract, and, therefore, plaintiff failed to state a claim on which relief
could be granted.
Affirmed. TriFound, as the prevailing party, may tax its costs. MCR 7.219(A).
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Brock A. Swartzle
-3- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483292/ | If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TARAYEA SMITH, UNPUBLISHED
November 10, 2022
Plaintiff/Counterdefendant-Appellee,
v No. 358123
Saginaw Circuit Court
MYKING SMITH, Family Division
LC No. 20-042170-DM
Defendant/Counterplaintiff-Appellant.
Before: K. F. KELLY, P.J., and LETICA and RICK, JJ.
PER CURIAM.
Defendant, Myking Smith, appeals as of right the judgment of divorce ending his marriage
to plaintiff, Tarayea Smith. For the reasons stated in this opinion, we affirm the judgment of
divorce in part, but vacate it in part and remand for proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant married on December 6, 2015. They had two children1 together
before they separated in July 2017. In September 2016, defendant committed numerous assaultive
criminal offenses. Later, he was convicted and sentenced to a minimum of 8 years and 10 months’
imprisonment. Defendant’s earliest release date is March 11, 2026, and his maximum release date
is May 11, 2039.
In May 2020, plaintiff, proceeding pro se, filed for divorce. Plaintiff requested the trial
court to award her sole legal and physical custody of the parties’ children, to make determinations
regarding child support, healthcare, and childcare expenses, and to grant any other equitable relief.
In response, defendant, who was represented by counsel, agreed that the trial court should grant a
judgment of divorce, but he requested the trial court to order joint custody of the children,2 to order
1
The children were born on May 13, 2015 and August 11, 2016.
2
Presumably defendant was referring to legal, not physical custody, given his incarceration. See
Merecki v Merecki, 336 Mich App 639, 647 n 3; 971 NW2d 659 (2021).
-1-
child support consistent with this state’s guidelines, to equitably divide the parties’ assets and
debts, and to grant any other equitable relief. Later, defendant identified the issues for trial as
being custody, parenting time, support, property settlement, assets, and debts.
The trial court also entered an order that directed the parties to “participate in a [r]eferee
[c]onference regarding matters of child support, custody, parenting time, and conservation of
assets . . . .” The referee was to “make efforts to resolve the matters of child support, custody,
parenting time, conservation of assets or any other relief sought by either party’s pleadings.” If
the parties failed to “stipulate to an agreement, the [r]eferee . . . [was to] immediately make a
recommendation . . . regarding the unresolved issue of child support, custody, and parenting
time . . . .” The referee’s order was “to become an immediate interim order of the Court subject
to either party filing an objection within twenty-one (21) days of the Order and requesting a
hearing.”3 The parties were further to provide the referee with income information, including a
recent paycheck stub or other verification of income, and prior federal and state tax returns with
copies of W-2 forms.
The referee held a hearing on November 3, 2020,4 and submitted findings of fact to the
trial court. Due to defendant’s incarceration, the referee concluded that plaintiff would have sole
physical and legal custody of the children. Defendant would have visitation either by phone or
video on either Sunday afternoon or Monday evening for ten minutes per child. The referee did
not order any child support given defendant’s incarceration, but required defendant to notify the
Friend of the Court within thirty days of his release.
The trial court entered a temporary order on November 23, 2020, granting plaintiff sole
legal and physical custody of the two minor children, awarding defendant phone or video contact
with the children for 10 minutes per child, and providing no child support while defendant was
incarcerated. As to the conservation of the parties’ assets, the parties and their respective counsel
were to “place any agreements in their final judgment of divorce.” The trial court’s order was to
become final 21 days after it was served on the parties on December 4, 2020, unless a party
objected.
3
See MCL 552.507(4) (“The court shall hold a de novo hearing on any matter that has been the
subject of a referee hearing, upon the written request of either party or upon motion of the court.
The request of a party shall be made within 21 days after the recommendation of the referee is
made available to that party.”); MCR 3.215(E)(4) (“A party may obtain a judicial hearing on any
matter that has been the subject of a referee hearing and that resulted in a statement of findings
and a recommended order by filing a written objection and notice of hearing within 21 days after
the referee’s recommendation for an order is served on the attorneys for the parties, or the parties
if they are not represented by counsel. The objection must include a clear and concise statement
of the specific findings or application of law to which an objection is made. Objections regarding
the accuracy or completeness of the recommendation must state with specificity the inaccuracy or
omission.”).
4
Appellant has not provided the transcript from this hearing.
-2-
On December 1, 2020, plaintiff filed an “[e]mergency [m]otion to [e]xpedite [h]earing”
requesting that all communications between defendant and the children cease. 5 The register of
actions indicates that a hearing on plaintiff’s motion was scheduled for January 2021, and that
defendant was not present at the hearing, even though his attorney was. There is no order6 or
corresponding transcript for that hearing in the record. The register of actions, however, reflects
that the trial court awarded defendant “video parenting time” at defendant’s expense and the call’s
duration was at plaintiff’s discretion. Plaintiff subsequently obtained counsel.
On April 13, 2021, on the date set for trial via remote access technology in light of the
continuing pandemic, plaintiff and her attorney appeared, but defendant was not present and his
attorney was late.7 Defense counsel asserted that he was prepared for trial, but explained that the
parties’ attorneys had discussed the case and he thought that “the vast majority of issues resolved
themselves due to the [defendant’s] incarceration.” Even so, there were “some lingering disputes
about telephone contact and visitation with the children,” i.e., defendant’s parenting time.
Plaintiff’s counsel confirmed defense counsel’s representations. She clarified that defendant had
telephone calls scheduled for a range of times and that the attorneys had discussed arranging them
for Sunday at a specific time so that plaintiff and the children could plan their activities. Moreover,
defendant sought visitation for the children with his family. Plaintiff opposed this due to
molestation allegations within defendant’s family and defendant’s current unavailability to
supervise such visitation. The trial court interjected that it was not inclined to order that type of
visitation. Plaintiff’s counsel added: “Everything else we believe, Your Honor, I believe we have
an agreement on.”
The trial court then inquired about defendant, specifically asking whether defense counsel
was willing to move forward without him. Defense counsel declined, stating “I don’t think that is
5
Whether plaintiff’s in propria persona motion was an objection to the November order that
followed the referee conference is unclear, especially without the transcript. That order was not
served upon plaintiff until after her motion was filed and plaintiff’s motion was not captioned as
an objection although it was apparently prepared two days after the November 23 order was
entered. Plaintiff later refiled her motion with a notice of hearing. If plaintiff’s motion was an
objection to defendant’s parenting time order, the court should have scheduled a de novo hearing.
See Butters v Butters, ___ Mich App ___, ___ NW2d ___ (2022) (Docket No. 359665), slip op at
3-5. If it was not, the referee’s order became a final order. See MCR 3.215(E)(1)(c).
6
The register of actions reflects that defense counsel was to prepare the order. At the April 2021
hearing when the trial court inquired about plaintiff’s motion, defense counsel responded: “I don’t
believe anything came from . . . [it].”
7
No orders were entered requesting “prisoner participation” in the court proceedings held in
January or April 2021. See MCR 2.004. The only order requesting “prisoner participation” in the
record concerned the November 2020 referee conference directing the Michigan Department of
Corrections to allow defendant to participate in the proceeding via telephone. During the
April 2021 hearing, the trial court observed that it did not know why defendant “wasn’t available
today or why you [defense counsel] didn’t take care of that ahead of time . . . .” Even so, lack of
compliance with MCR 2.004 is not an issue raised in this appeal.
-3-
a good idea . . . .” Defense counsel opined that defendant would want to participate primarily
because the phone calls between defendant and the children had “been a train wreck.”
Regarding the parenting time issues, defense counsel volunteered
I don’t know if these issues [the parenting time disputes] merit the trial court’s time.
Because, as I indicated, most of the issues self[-]resolved because of the
[defendant’s] incarceration. Support, parenting time, [and] custody, you know - -
The trial court then observed that plaintiff was going to receive full legal and physical custody.
And defense counsel recognized the earlier order to that effect.
After confirming that no proofs regarding the statutory grounds for divorce had been
presented, the trial court proposed taking proofs “just in case you guys do work it out.” The trial
court indicated its inclination to limit defendant’s visitation to 7:00 to 8:00 p.m. on Sunday. As
defendant’s prison calls were limited to 15 minutes, the trial court opined that defendant could
divide his time between the children.
The trial court again asserted that it would take proofs to save the parties from having to
return. The court added that if the matter resolved, “fine”; if not, “we’ll have to set a new trial
date.”
The trial court then questioned plaintiff, who was under oath, and placed the requisite
statutory grounds for the divorce on the record. Again, the trial court stated it was giving the
parties “a couple of weeks to work out a [j]udgment.” If they could not, “we will have to reset
[this].” At the end of the hearing, the court reiterated:
I expect to see a [j]udgment within the next couple weeks, otherwise we will reset
this. And you need to let my clerk know if you need it reset.
Two weeks later, on April 27, 2021, plaintiff’s counsel e-mailed defense counsel a copy of
a proposed judgment of divorce without response. Pertinent to this appeal, the proposed judgment
of divorce awarded plaintiff sole legal and physical custody of the children, provided that neither
party was awarded support, and forever barred spousal support. After two days without a response,
plaintiff’s counsel e-mailed defense counsel again. This time, defense counsel acknowledged
receiving the proposed divorce judgment, but reported that he had not had time to review it.
On May 17 and 27, plaintiff’s counsel sent follow up e-mails to defense counsel without
response. Concerned over the court’s initial timeline, plaintiff’s counsel contacted the court clerk.
On June 5, 2021, the trial court set a show-cause hearing on July 21, 2021 regarding why the
judgment should not be entered.
On June 24, 2021, plaintiff’s counsel again e-mailed defense counsel to follow up in light
of the trial court’s show-cause order. Defense counsel failed to respond. Plaintiff’s counsel also
left defense counsel a voicemail regarding the show-cause order without response.
On July 19, 2021, plaintiff’s counsel sent defense counsel a final e-mail prior to the show-
cause hearing. Defense counsel’s secretary called back to report that defense counsel had an
-4-
appointment scheduled with defendant the following day and would contact plaintiff’s counsel
thereafter.
The next day, which was the day before the scheduled show-cause hearing, plaintiff’s
attorney filed a written response detailing her efforts to obtain a response from defense counsel.
Defense counsel did not respond in writing to the trial court’s show-cause order.
At the July 21 show-cause hearing, plaintiff’s attorney informed the trial court that defense
counsel had not responded to plaintiff’s proposed divorce judgment until yesterday. At that point,
defense counsel reported that defendant was not in agreement with awarding plaintiff sole custody8
and that he wanted to reserve the issue of spousal support.9
Plaintiff’s counsel maintained that awarding custody to defendant was inappropriate due
to his incarceration, adding that upon defendant’s release, he could petition for custody.
Additionally, the trial court had earlier awarded plaintiff sole legal and physical custody and there
was no change in circumstances warranting modification. Finally, plaintiff’s attorney contended
that defendant gave up his right to put on proofs because he failed to appear on the trial date.10
Plaintiff’s counsel then asked the court to sign the judgment.
In response, defense counsel asserted that defendant had been moved to a “difficult
facility,” which made it arduous for counsel to communicate with him. As a consequence, defense
counsel did not have defendant’s authority to stipulate to the proposed divorce judgment. Defense
counsel again asserted that defendant objected to the proposed custody and spousal support
terms.11 Counsel frankly explained that securing defendant’s consent was more difficult given
plaintiff’s consistent violations of defendant’s court-ordered visitation.
The trial court inquired why defense counsel had not conveyed this information to
plaintiff’s counsel. Defense counsel offered that he had done so in April and in the e-mail stating
that he would not agree to the proposed judgment’s provisions awarding custody to plaintiff and
barring spousal support. The trial court then interjected that defense counsel had not done so until
the day before the scheduled show-cause hearing. Defense counsel agreed, explaining that “[t]hat
was the first time I [had] talked to [defendant] in probably a month . . . .”12 Defense counsel added
that he believed that on the trial date (April 13), the trial court had indicated that if the parties did
8
This was a change from defense counsel’s position at the April 13 hearing.
9
Again, this was a change from defense counsel’s representation at the April 13 hearing.
10
Plaintiff did not advance this argument during the April 13 hearing. Rather the trial court
repeatedly stated it would reset the trial date if the parties did not agree on a judgment.
11
See footnotes 8 and 9.
12
The trial was scheduled for April 13 and the show-cause was heard in July. Moreover, plaintiff’s
counsel repeatedly attempted to contact defense counsel from April 27 through July 20.
-5-
not agree to entry of the divorce judgment, it “would reschedule a trial date.” Defense counsel
ended by stating:
So [plaintiff’s] counsel sent over this take it or leave it Judgment[13] consistently
that I have no authority to enter into and that [defendant] is refusing to enter into.
And if the Court wants to sign it, the Court can sign it. But, it can’t be as a consent
[judgment].
The trial court signed plaintiff’s proposed judgment of divorce, stating that the April trial
date came and went. This appeal followed.
II. ANALYSIS
Defendant argues that the trial court erred and abused its discretion when it failed to hold
a trial or make any findings of fact or law before entering the judgment of divorce. We agree in
part.
We begin by noting that defendant has not provided this Court with the entire transcript as
required by MCR 7.210(B)(1)(a). “The obligation to produce the transcripts applies regardless of
whether the transcript is directly relevant to the issues on appeal . . . [and t]his Court can refuse to
consider issues for which the appellant failed to produce the transcript.” Thompson v Thompson,
261 Mich App 353, 359 n 1; 683 NW2d 250 (2004). When an appellant fails to provide relevant
transcripts, this Court has alternatively held that “[t]he issue is considered abandoned on
appeal,” Taylor v Blue Cross & Blue Shield of Mich, 205 Mich App 644, 654; 517 NW2d 864
(1994), or that “it constitutes a waiver of the issue,” Shinn v Mich Assigned Claims Facility, 314
Mich App 765, 768-769; 887 NW2d 635 (2016). In either event, “this Court will refuse to consider
issues for which the appellant failed to produce the transcript.” PT Today, Inc v Comm’r of Office
of Fin & Ins Servs, 270 Mich App 110, 151-152; 715 NW2d 398 (2006). “However, the Court
may consider an issue if the transcript [is] not relevant to the issue on appeal or if the issue on
appeal is simply one of law.” Kern v Kern-Koskela, 320 Mich App 212, 230; 905 NW2d 453
(2017).
In this case, defendant failed to provide the November 3, 2020 transcript from the court-
ordered referee conference, addressing custody, parenting time, and child support. Defendant also
failed to provide the transcript from the January 4, 2021 hearing on plaintiff’s emergency motion
to expedite hearing, which sought to halt defendant’s parenting time. Because we are presented
with an issue that is a matter of law, however, we will proceed.
We next consider whether defense counsel harbored appellate error given his parting
remark to the trial court at the July hearing. Defense counsel told the trial court that if it was going
to sign the proposed judgment of divorce, it could do so long as it was not captioned a consent
judgment of divorce. See e.g., Loutts v Loutts, 298 Mich App 21, 36; 826 NW2d 152 (2012) (“It
13
The record reflects that plaintiff’s counsel sought either sign off or “any corrections” or “any
changes” or “any additions, deletions, or corrections [defendant] want[ed] made.”
-6-
is unfair to harbor error and use it as an appellate parachute.”); Valentine v Valentine, 277 Mich
App 37, 40; 742 NW2d 627 (2007) (“On numerous occasions, this Court had denied a party the
right to raise an appellate challenge when the party harbored an error as an appellate parachute.”)
(quotation marks omitted). Given the parties’ attorneys’ representations on the April trial date that
they agreed on support, parenting time,14 and custody, the trial court was led to believe that those
matters were settled. See MCR 2.507(G) (“An agreement or consent with the parties or their
attorneys respecting the proceedings in an action is not binding unless it was made in open
court . . . .”). On the other hand, the trial court itself repeatedly recognized that the parties’ failure
to agree upon the divorce judgment necessitated resetting the trial date. It appears that the
proceedings became further muddled when the trial court entered the show-cause order after
plaintiff’s counsel contacted the court’s clerk.15 The show-cause order diverged from what the
court had verbally directed: if the parties did not agree to the terms of the divorce judgment, they
should have informed the clerk so that the trial date would be reset.
Neither attorney, however, is free from fault. As to defense counsel, he failed to timely
communicate with both opposing counsel and the court. Indeed, the record suggests that it is
questionable whether defendant was motivated by a true dispute over the issues of custody and
support, which defense counsel had all but conceded on the date set for trial,16 or whether he was
disgruntled over plaintiff’s alleged interference with defendant’s parenting time, which, in turn,
was limited by his incarceration. Nevertheless, the trial court had repeatedly verbalized its
intention to reschedule the trial if the parties did not agree on the judgment. At the show-cause
hearing, defense counsel voiced both his inability to sign the proposed judgment of divorce and
defendant’s opposition to custody and spousal support being barred.
A court is required to consider an award of joint custody upon a parent’s request and must
“state on the record the reasons for granting or denying” the request. MCL 722.26a. In rendering
its decision, the court must “determine whether joint custody is in the best interest of the child by
considering the” statutory best-interest factors. MCL 722.26a. On the other hand, a trial court’s
decision to award spousal support, bar support, or reserve support is discretionary. See
MCL 552.23 (if the parties’ estate and effects “are insufficient for the suitable support and
maintenance of either party . . . , the court may . . . award” spousal support); McCoy v McCoy, 317
Mich 478, 481; 27 NW2d 62 (1947); Torakis v Torakis, 194 Mich App 201, 202; 486 NW2d 107
14
With the exception of issues pertaining to parenting time that defense counsel discussed on the
record given that parenting time was limited due to defendant’s incarceration.
15
If the parties had reached an agreement, plaintiff’s counsel could have filed a motion to settle
the judgment. See MCR 3.211(F)(1), which requires that the moving party, “[w]ithin 21 days
after . . . the settlement agreement is placed on the record . . . [to] submit a judgment, order, or a
motion to settle the judgment or order, unless the court has granted an extension.”).
16
We do not know what defendant’s position was at the earlier referee conference addressing
custody, parenting time, and support because defendant failed to provide the transcript from that
hearing.
-7-
(1992). The “parties . . . are entitled to individual consideration based on the law and facts
applicable to their case . . . .” Myland v Myland, 290 Mich App 691, 697; 804 NW2d 124 (2010).
“In general, a trial court’s legal determinations are reviewed de novo, any underlying
factual findings are reviewed for clear error, and ultimate discretionary decisions are reviewed for
an abuse of that discretion.” Hein v Hein, 337 Mich App 109, 115; 972 NW2d 337 (2021). A trial
court abuses its discretion when it makes an error of law. Id. at 116. A finding is clearly erroneous
if this Court is “left with a definite and firm conviction that a mistake has been made.”
Cunningham v Cunningham, 289 Mich App 195, 200; 795 NW2d 826 (2010).
The court must “enter a judgment dissolving the bonds of matrimony if evidence is
presented in open court that there has been a breakdown in the marriage relationship to the extent
that the objects of matrimony have been destroyed and there remains no reasonable likelihood that
the marriage can be preserved.” MCL 552.6(3) “In a divorce case, the trial judge performs two
distinct functions. First, the court must find facts on the basis of the evidence presented, and then
the court must exercise its discretion in fashioning a disposition.” Beason v Beason, 435 Mich
791, 798; 460 NW2d 207 (1990). “In its fact-finding role, the trial court must hear the evidence
[and] choose which witnesses to credit when the evidence conflicts . . . .” Id. “[T]he trial court
must make findings of fact and dispositional rulings.” Reed v Reed, 265 Mich App 131, 150; 693
NW2d 825 (2005). Specifically, in an action tried without a jury, the trial court must “find the
facts specially, state separately its conclusions of law, and direct entry of the appropriate
judgment.” MCR 2.517(A)(1); see MCR 3.210(D) (“The court must make findings of fact as
provided in MCR 2.517 . . . .”). “Brief, definite, and pertinent findings and conclusions on the
contested matters are sufficient, without over elaboration of detail or particularization of facts.”
MCR 2.517(A)(2). “The court may state [its] findings and conclusions on the record or include
them in a written opinion.”
In this case, on the date set for trial, the trial court questioned plaintiff, who was under oath,
to establish the statutory basis for the parties’ divorce. The divorce judgment reads:
THIS CAUSE is before the court upon the filing of the complaint by Plaintiff.
Defendant filed an answer and counter complaint for divorce.[17] Proofs have been
presented in court, for which it appears that there has been a breakdown of the
marriage relationship to the extent that the objects of matrimony have been
destroyed and there remains no reasonable likelihood that the marriage can be
preserved. Testimony was taken on the date set for trial . . . . The court has subject
matter jurisdiction over this proceeding and personal jurisdiction over the parties.
IT IS ORDERED:
17
The register of actions does not reflect that defendant filed a countercomplaint for divorce;
instead, in his answer he requested that the court grant a judgment of divorce.
-8-
DIVORCE
The marriage between . . . [the parties] is dissolved, and a divorce from the bonds
of matrimony between the parties is ordered and adjudged.
This was sufficient to satisfy the trial court’s obligations with respect to findings of fact and
conclusions of law in a written opinion as to the parties’ divorce.18 See MCR 2.517(A) and
MCR 3.210(D).
But there were no findings of fact or conclusions of law made at the hearings or prior to
entry of the judgment prepared by plaintiff relating to the specific issues addressed in the judgment
of divorce on the contested matters of custody19 and the barring of future spousal support.
Although the trial court was not required to overelaborate its findings in particularized detail, the
trial court was required to provide at least “[b]rief, definite, and pertinent findings and conclusions
on the contested matters” to support its decision to issue the judgment of divorce.
MCR 2.517(A)(2). Because the trial court failed to provide the bare minimum findings of fact and
conclusions of law, remand is necessary.
Affirmed in part regarding the parties’ divorce, but otherwise vacated and remanded for
further proceedings consistent with this opinion. We do not retain jurisdiction. Neither party
having prevailed in full, we decline to award costs pursuant to MCR 7.219(A).
/s/ Kirsten Frank Kelly
/s/ Anica Letica
/s/ Michelle M. Rick
18
We are mindful that plaintiff has a child from a later relationship.
19
See generally MCR 3.200 et seq., governing domestic relations actions. See also MCR 3.210,
governing hearings and trials. For example, MCR 3.210(C) requires the court to hold a hearing
when custody of a minor child is contested. Although custody was addressed during the referee
conference, as previously mentioned, defendant has not provided that transcript for our review and
this Court has held that a referee errs “in making a custody determination without considering the
best-interest factors,” and a trial court errs “in accepting the referee’s custody recommendation
without satisfying itself that the best-interest factors were considered.” Rivette v Rose-Molina,
278 Mich App 327, 333; 750 NW2d 603 (2008).
-9- | 01-04-2023 | 11-11-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490350/ | MEMORANDUM DECISION AND ORDER
EDWARD J. RYAN, Bankruptcy Judge.
The case sub judice is rara avis. There remain surplus funds after liquidation of the debtor’s assets and after all creditors of the debtor, a joint venture, were paid in full. After distribution, there remain the sum of $314,863.56. Pending are two adversary proceedings involving those entities asserting an interest in the surplus funds.
The debtor, Skyline Condominiums, (“Skyline Condominiums”), was a joint venture formed by and between Fragumar Corporation, N.V. (“Fragumar”), E. Mitchell Smith, Jr. (“Smith”), and Graydon Dunlap (“Dunlap”), pursuant to a written Joint Venture Agreement (“Joint Venture Agreement”) executed on February 1, 1978.
According to the Joint Venture Agreement, Skyline Condominiums’ purpose was to acquire, own, hold, manage, improve, operate, maintain, sell or lease as an investment for the production of income, a tract of the land. One hundred thirty-eight condominium units were to be constructed on the property and sold to the public no later *780than 18 months after the date of the agreement.
Smith’s capital contribution to the joint venture was the conveyance to the venture of the property upon which the improvements were to be made. As an additional contribution, Smith was to donate to the joint venture all plans, specifications, studies, engineering data, loan commitments and contracts made in connection with the development of the property and construction of the improvements thereon.
Fragumar’s contribution was $225,000 in cash. Whatever Dunlap’s contribution was, is not set forth in the Joint Venture Agreement.
The construction of the 138 condominium units did not commence because of adverse market conditions.
On November 6, 1979, an involuntary Chapter 11 petition was filed by Smith and Dunlap against Skyline Condominiums. An order for relief was entered against Skyline Condominiums on February 21, 1980. An order converting the Skyline Condominiums ease from a Chapter 11 case to a Chapter 7 case was signed on December 15, 1981.
In 1981 Federal Deposit Insurance Corporation (“FDIC”), a judgment creditor of Smith, initiated adversary proceeding no. 81-0213 seeking a charging order against Smith’s partnership interest in Skyline Condominiums. Soon thereafter, complaints in intervention were filed in the adversary by two other judgment creditors of Smith, Don R. Mullins (“Mullins”) and MBank, N.A., the successor in interest to Capital Bank, also seeking charging orders against Smith’s partnership interest.1
On April 6, 1984, E. Mitchell Smith personally filed for relief under Chapter 7 of the Code. Daniel E. O’Connell was appointed the Chapter 7 trustee (“Trustee”) for Smith’s estate.
On April 9, 1986, the Skyline Condominiums trustee filed a complaint in interpleader initiating adversary proceeding no. 86-0325, naming as defendants all interested parties in the surplus funds of the Skyline Condominiums proceedings. These funds were deposited into the registry of the Court. An order discharging the trustee from all further liability in the adversary proceeding was signed on May 28, 1986.
FDIC, Mullins, and MBank, N.A.’s application to consolidate the interpleader action filed by the trustee of Skyline Condominiums in adversary, proceeding no. 86-0325, with the charging claimants adversary proceeding no. 81-0213, was granted on June 26, 1986. Trial of the two adversary proceedings was commenced that same day.
The initial issue is: “Who is entitled to the surplus monies from the Skyline Condominiums proceedings?”
FDIC, Mullins, and MBank, N.A., and the Trustee, assert that paragraph 3 of the Joint Venture Agreement sets forth the respective percentages, in the overage that each of the joint venturers is entitled to.
Fragumar, one of the partners in Skyline Condominiums, on the other hand, claims a superior right to the remaining Skyline Condominiums funds pursuant to paragraph VIII of the Joint Venture Agreement. Fragumar argues it is entitled to its initial capital contribution of $225,000.00 pursuant to Section 40 of the Texas Uniform Partnership Act as well as paragraph VIII of the Joint Venture Agreement, before any profits are distributed.
Fragumar argues that Section 40 of the Texas Uniform Partnership Act governs this case. Section 40 mandates that upon dissolution of a partnership, those partners who made capital contributions are to be paid their contribution before the partners can share in profits. Fragumar’s reliance upon Section 40 of the Texas Uniform Partnership Act is misplaced. That section applies only if there is no written agreement between the parties by which a distribution can be made. The parties here *781entered into the Joint Venture Agreement, which contains its own distribution provisions.
Paragraph III of the Joint Venture Agreement follows:
III.
Interest of Venturers
The assets, liabilities, profits and losses, and expenses of the venture shall be shared by the venturers in accordance with the following percentages (referred to herein as the distributive shares):
Venturer Distributive Shares
Fragumar 7.5%
Smith 70.0%
Graydon Dunlap 22.5%
In paragraph VIII the joint venturers agreed:
Distributions, Allocations, Profit, and Losses
“8.1 The term “Available cash” shall mean the amount by which the Venture’s cash on hand and in banks is in excess of the reasonable working capital requirements of the Venture (as determined by the Managing Venturer) to discharge the then current obligations of the Venture. 8.2 Available cash, if any, shall be distributed in the following order:
(a) First, on each of ... there shall be paid, in cash to Fragumar, Five Thousand Six Hundred Twenty Five Dollars ($5,625.00).
(b) Second, on ... there shall also be paid, in cash to Fragumar, One Hundred Fifty Thousand Dollars ($150,000.00).
(c) Third, on ... until all of the Property has been sold or until the total capital contribution of Fragumar has been returned to it was hereafter provided, whichever is the first to occur, there shall be paid, in cash to Fragumar, One Thousand Eight Hundred Seventy Five Dollars ($1,875.00).
(d) Fourth, on ... there shall be paid, in cash to Fragumar, Seventy Five Thousand Dollars ($75,000.00).
(e)After paying the foregoing amounts in full, all remaining Available Cash shall be paid to the Venturers on ... in proportion to their respective Distributive Shares as of the date of distribution until the total amount of net profits derived by the Venture have been distributed; provided, that in addition to Fragumar’s Distributive Share as set out in Section 3, above, Fragumar shall be entitled to receive a further amount of the net profits of the Venture equal to the same proportion of two and one-half percent (2 lk%) as the number of calendar months, rounded to the nearest monthly, after January 31, 1979, that elapse before the payment to Fragumar called for in Section 8.2(d) is made, bears to twelve (12) calendar months, payment of such additional amount to be made proportionately with the other payments called for in this Section 8.2(e); and further provided that Fragumar shall receive not less than Fifty Thousand Dollars ($50,000.00) from the distribution provided for in this Section 8.2(e). The distribution contemplated by this Section 8.2(e) shall be completed by no later than January 31, 1980.
8.3 In the event the Venture has insufficient Available Cash to make the quarterly distributions required under Section 8.2(a) and 8.2(c) when due, or if the Venture has insufficient Available Cash to make the payments provided for in Sections 8.2(b) and 8.2(d) when due, or if the Venture has insufficient Available Cash to make the minimum distribution provided for in Section 8.2(e), then Smith shall make such payments to Fragumar. The obligations of Smith under this Section 8.3 shall constitute a personal liability obligation and shall not be charged to the Venture, directly or indirectly. Such payments shall constitute guaranteed payments under the provisions of Section 707(c) of the Internal Revenue Code and any tax deductions available to the Venture by reason of such payments by Smith shall be allocated exclusively to Smith.
* * * * * *
*7828.5 Except as provided in Section 8.2, all profits and losses of the Venture (including all items of income, gain, expense, loss and deduction), as well as all investment credits for tax purposes, shall be shared by and allocated, credited and charged for all purposes to each Venturer in proportion to such Venturer’s Distributive Share as of the date of such allocation.
8.6 All Available Cash shall be deposited as it becomes available in a separate bank account and shall be used solely for the purpose of making the distributions contemplated in Section 8.2, above.”
As mentioned above, the construction of the 138 condominiums never occurred. Thus the joint venture did not generate any “Available Cash,” as defined in paragraph 8.1 of the Joint Venture Agreement. Due to the lack of “Available Cash,” Skyline Condominiums never made any of the quarterly payments to Fragumar as would have been required by paragraph 8 of the Joint Venture Agreement if “Available Cash” had been generated.
Smith testified at the trial that the intent of the Joint Venture Agreement was to make the quarterly payments a personal obligation of Smith if Skyline Condominiums could not make them. Because Skyline Condominiums was unable to make any payments pursuant to paragraph 8.2, he personally paid any amounts required to be paid pursuant to 8.3. Both Fragumar and Smith intended to and did give effect to the language of paragraph 8.3, which limits Fragumar’s recourse against the joint venture to Smith.
Smith’s personal payment of quarterly distributions to Fragumar was entirely consistent with paragraph 8.3. Since Skyline Condominiums did not generate any “Available Cash” with which to pay Fragumar, the payments, according to paragraph 8.3 of the Joint Venture Agreement, were no longer chargeable to the joint venture, either “directly or indirectly,” but instead were solely the personal responsibility of Smith.
Fragumar’s argument that the language in paragraph 8.3 was intended to make Smith a supplemental guarantor, and not to replace the obligation of the Joint Venture directly with Smith, is without merit. Furthermore, Fragumar’s contention that Skyline Condominiums should also be required to pay Fragumar “off the top” the quarterly distributions called for in paragraph 8.2, would render the provisions of paragraph 8.3 meaningless as paragraph 8.3 clearly limits the liability of Skyline Condominiums to the “Available Cash” generated by the joint venture.
There is no conflict between paragraphs III and VIII in the document at hand. Paragraph III controls. However, even if there were a conflict between the provisions, i.e., if the contract were ambiguous, the contract even then would have to be construed against Fragumar.
Smith testified that the Joint Venture Agreement was drafted by the attorney representing Fragumar and its principal officer, Mr. Gutierrez, at Fragumar’s request.2
Because Skyline Condominiums failed to generate “Available Cash” as defined under paragraph 8.1 rendering paragraph 8.2 meaningless, the funds in dispute are to be distributed to each of the joint venturers in accordance with paragraph 3 of the Joint Venture Agreement.
Fragumar is entitled to receive a 7.5% interest in the funds; Smith, a 70.0% interest in the funds; and Graydon Dunlap, a 22.5% interest in the funds.3
*783Now we address the issue: Who is entitled to Smith’s 70% interest in the surplus monies?
The Trustee contends that Smith’s 70% interest in the surplus monies of the joint venture is property of Smith’s personal bankruptcy estate pursuant to 11 U.S.C. § 541. He argues that an order signed by Judge John R. Blinn on September 30, 1981, in adversary no. 80-01924 invalidates all claims of FDIC, Mullins, and MBank, N.A., against the estate of Skyline Condominiums or the proceeds of the sale of Skyline Condominiums. He invokes res ju-dicata.
We disagree with the Trustee’s interpretation of that order of Judge Blinn’s.
Judge Blinn stated, in pertinent part, at page 3:
“ORDERED, ADJUDGED AND DECREED that, without prejudice to any claims against E. Mitchell Smith, Jr., the claims of ... Capital National Bank, Federal Deposit Insurance Corporation, ... Don R. Mullins ... be, and the same are hereby, disallowed as against this estate or the aforesaid proceeds of sale and the purported liens, claims or encumbrances asserted by such claimants against such proceeds only be, and the same are hereby, invalidated.” (emphasis added)
FDIC, Mullins and MBank, N.A., have since 1981 sought the imposition of charging orders pursuant to Article 6132b, Section 28 of the Texas Partnership Act.5 Claiming they are entitled to the surplus monies, the judgment creditors, FDIC, Mullins, and MBank, N.A., continue to seek charging orders pursuant to Article 6132b, Section 28 of the Texas Partnership Act against Smith’s interest in the proceeds from the Skyline Condominiums bankruptcy.6
FDIC, Mullins, and MBank contend that their request for a charging order in adversary proceeding No. 81-0213 constitutes compliance with the statute prescribing the method for perfecting imposition of a charging order.
They contend that by filing the adversary proceeding in 1981, Smith’s partnership interest in the Skyline Condominiums Joint Venture was, in effect, attached in accordance with Texas partnership law.
All interested parties had actual notice of that fact. Such attachment, they argue, took place over three years prior to the filing of Smith’s personal bankruptcy, and constitutes not only a lien against, but an actual ownership interest in Smith’s partnership interest in this joint venture. As a *784result, the 70% interest owned by Smith in Skyline Condominiums should be distributed pro rata to FDIC, Mullins, and MBank, based on their prior judgments against Smith. The charging claimants request that the charging orders, predicated upon valid abstracted judgments obtained in the state courts, be granted.
The Trustee’s position, to the contrary, is that the “charging order” claimants failed to perfect the lien afforded by Tex.Rev.Civ. Stat.Ann.Art. 6132b Section 28, prior to the filing of Smith’s personal bankruptcy.
The Trustee appointed in Smith’s personal bankruptcy, claims the funds attributable to Smith’s interest in the joint venture belong solely to Smith’s bankruptcy estate as no “charging order” was entered by a court of competent jurisdiction. The Trustee maintains that a bankruptcy court is not a court of competent jurisdiction to enter such a charging order since this proceeding involves a “non-core matter” under 28 U.S.C. Section 157. Thus, before the charging order claimants, FDIC, Mullins, and MBank, N.A., may assert any claim to the Skyline Condominiums monies, they must first prove that a charging order was issued by a “court of competent jurisdiction.”
The Trustee avers that no such order was entered, hence, he argues, these judgment creditors are unsecured creditors of Smith, entitled only to a pro rata share of any distribution from Smith’s estate.
FDIC, Mullins, and MBank, N.A., did seek to obtain a charging order against Smith’s interest in the partnership. The claimants did their best to obtain a trial date and ruling on their request for a charging order. Due to the vast flow of judicial business, the parties seeking the charging order were unable to obtain a trial date until June 26, 1986, some five years after the adversary was filed.
These claimants shall not be penalized because of the heavy docket of this court.
Smith did not file his personal bankruptcy petition until April, 1984, some three years after the adversary proceeding against him was initiated. The bankruptcy court as a court of equity will treat as done that which ought to be done. South Dakota v. North Carolina, 192 U.S. 286, 354, 24 S.Ct. 269, 291, 48 L.Ed. 448 (1904).
Accordingly, the charging claimants’ application for a charging order is granted nunc pro tunc as of the date of the commencement of the adversary proceeding seeking that relief. Smith’s 70% interest in the $314,863.56 is hereby jointly awarded to FDIC, Mullins, and MBank to be divided among them pro rata, based on the amounts of their respective state court judgments.
Let judgment enter accordingly.
. FDIC obtained a judgment against Smith in the principal amount of $163,558.63; Mullins obtained three judgments in the aggregate principal amount of $331,551.52; and MBank, N.A. obtained a judgment in the principal amount of $42,992.62.
. It is only when an ambiguity exists or there is conflict between two or more provisions of a contract, that the rule of contra proferentem may be made so that the contract must be construed most strictly against the party who drafted the agreement and thus was responsible for the language used. Republic National Bank v. Northwest National Bank, 578 S.W.2d 109 (Tex.1978); 14 Tex.Jur.3d Contracts (1983).
. While the charging claimants, FDIC, Mullins, and MBank, agree that Dunlap is legally entitled to 22.5% of the proceeds of Skyline Condominiums, they urge that since he filed no answer in these proceedings, and has made no claim to the *783funds, his 22.5% interest should be distributed among the other parties to these proceedings. It is irrelevant that Dunlap failed to assert an interest in the funds. He is entitled to 22.5% of those funds under the provisions of the Joint Venture Agreement.
. That proceeding was commenced in June, 1980, when the trustee of Skyline Condominiums filed a complaint against various defendants seeking to sell certain real property free and clear of all liens, claims, and encumbrances. The judgment creditors in the case at bar objected to such sale free of all claims.
. This Article prescribes the procedure for levy and attachment by a judgment creditor against the partnership interest of a partner against whom the judgment has been obtained. This remedy is very similar to a garnishment. Unlike attachments of tangible personal property or real property, judgment creditors seeking a charging order cannot take physical possession of, or record a lien against, a partnership interest.
. § 28. Interest in Partnership Subject to Charging Order.
Sec. 28. (1) On due application to a competent court by any judgment creditor of a partner (or of any other owner of an interest in the partnership), the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner (or such other owner) with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner (or such other owner) might have made, or which the circumstances of the case may require.
******
(3) Nothing in this Act shall be held to deprive a partner (or other owner) of his right, if any, under the exemption laws, as regards his interest in the partnership. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490352/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW DISALLOWING CERTAIN MISCELLANEOUS LABOR PROTECTIVE PROVISION CLAIMS
T. GLOVER ROBERTS, Bankruptcy Judge,
Findings of Fact
1.On August 14, 1981 the Civil Aeronautics Board (“CAB”) approved the acquisition of Continental Air Lines, Inc. by Texas International Airlines, Inc., CAB Order No. 81-10-66. As a condition to its approval of the acquisition, the CAB imposed labor protective provisions (“LPPs”) “to provide for compensatory allowances to employees who may be affected by the proposed acquisition.” Order No. 81-10-66. Section 1 of the LPPs states:
The fundamental scope and purpose of the conditions hereinafter specified are to provide for compensatory allowances to employees who may be affected by the proposed acquisition by Texas International Airlines, Inc. (TI) of Continental Air Lines, Inc. approved by the attached order, and it is the intent that such conditions are to be restricted to those changes in employment due to and resulting from such acquisition. Fluctuations, rises and falls, and changes in volume or character or employment brought about by other causes are not covered by or intended to be covered by these provisions.
The LPPs provided three basis types of compensation for changes in employment “due to and resulting from” the acquisition: (1) a displacement allowance for those employees who received lower compensation; (2) a dismissal allowance for those employees whose jobs were abolished; and (3) relocation expenses for those employees who were forced to move.
2. Pursuant to the CAB’s authorization, Texas International consummated its acquisition of Continental on October 12, 1981. During 1982, Continental and Texas International began to integrate their operations. On October 31, 1982, the two carriers implemented a corporate reorganization and an operational merger under the name “Continental.” The employees, routes, flight schedules, and fleets were combined as one operation. The employees in each class were combined under the representation of single unions. In accordance with the LPPs, many employees who lost their jobs or who received reduced wages as a result of the acquisition applied for and received-the prescribed LPP benefits.
3. This Court has previously rejected the claims for labor protective provision benefits filed by ALPA1 and individuals2 based upon the theory that the filing of Chapter 11 proceedings and the subsequent reduction in force entitled employees to LPP recovery. This ruling was based upon the Court’s conclusion that LPPs are designed to protect employees only against consequences flowing directly from a merger or acquisition, not against the consequences of changes in management policy or operations in general.
4. On September 19, 1985, Debtors moved to disallow and estimate at zero value the claims for LPP benefits filed by employees in the following categories:
a. employees hired after October 12, 1981;
b. employees who refused to relocate to maintain their employment;
c. employees who were on strike during all or part of the time period for which they seek LPP benefits.
*864
Conclusions of Law
1. Employees hired after the acquisition date, October 21, 1981, are not entitled to collect benefits under the LPPs ordered by the CAB. The CAB itself has interpreted the term “employee” as used in its standard LPPs to mean those persons who have “important employment rights at the time of the merger ” which is the subject of the Order. American-Trans Caribbean Merger Case, 55 C.A.B. 684, 692 (1970). The language of that case makes clear that LPPs protect individuals who have an existing employment relationship with the carrier at the time of the merger, including employees who are not actively working. For example, furloughees, or employees on military or sick leave, have certain employment rights, such as the right to recall. The CAB has held that in order to be protected these rights must exist “at the time of the transaction in question is consummated.” Application of Delford M. Smith, et al., Docket 28670, Order No. 76-6-25 (June 4, 1976). Accord, Delta-Northeast Merger Case (Petition of Edward Counter), Docket 23315, Order No. 77-7-34 (July 11, 1977); Trans International Airlines, Inc., et al., Docket 26951, Order No. 76-9-15 (September 2, 1976). In the Delta-Northeast case, supra, the CAB restricted its holding even further by denying a moving allowance to an employee who had been on furlough on the LPP trigger date:
The line of important employment rights cases ... were [sic ] not so much concerned with protecting particular individuals affected by a merger as they were with recognizing contractually bargained for rights ... such as the right to recall and seniority status.... Thus, the Board concluded that those employees with contractual recall rights obtained through collective bargaining would be entitled to be included in a post-merger integration of employee seniority lists.... However, this analysis does not lead to the proposition that the Board should in effect extend to employees various rights—such as right to a relocation allowance—which are not included in their contracts.
Thus, and individual who had no employment rights at the time of the merger would not be protected by LPPs. The CAB designed LPPs to protect only those employees who were employed at the time of the transaction that gives rise to the LPPs, and whose employment and attendant contractual rights existing at the time of the merger could be affected adversely by the transaction. This obviously cannot apply to those employees hired after the acquisition date and, consequently, claims by those individuals will be disallowed.
2. The only question presented by oppositions to Debtors’ motion regarding this group of claimants is the date to be used for determining who was hired post-acquisition. The Court here holds that the event to be considered as triggering a cutoff of individuals hired post-acquisition for LPP consideration here is the date the acquisition was consummated. That date is October 30, 1982. This Court therefore concludes that October 30, 1982 is the acquisition date and, hence, is the proper date for identifying the employees protected by LPPs.
3. Employees who refused to relocate following the Chapter 11 filing are not entitled to LPP benefits because of their subsequent termination. Debtors addressed the claims of this group of employees in both its original memorandum and its response to oppositions. Debtors seek disallowance only of those claims by employees who resigned prior to the bankruptcy rather than relocate. Debtors’ motion did not seek to disallow claims by displaced employees or those receiving dismissal allowances on the operative date. As the CAB articulated in United-Capital Merger Case, 33 C.A.B. 307, 329 (1961), LPPs provide ample protection to employees who agree to relocate (by providing for reimbursement of moving expenses) but do not extend such protection to those refusing to relocate. The logic of this policy, as expressed by the CAB, is inescapable: if full LPP benefits were available to every *865employee who decided not to move, the assets of the carrier could be quickly depleted. This rationale is even more pertinent in the bankruptcy context where the assets of the estate must be jealously guarded. The Court concludes that those employees who chose resignation over relocation are not entitled to LPP benefits.
4. Employees who were or are on strike against Debtors are not entitled to LPP benefits for any period of time during which they purposefully withheld their services from Debtors. Section 1 of the LPPs specifically sets forth the purpose of the provisions: to provide for compensatory allowances to employees adversely affected by the acquisition. This Court recognized the well-established labor law principle that striking workers are not entitled to wages or other compensation in disallowing strikers’ claims for contract rejection damages. See Uncontested Facts And Conclusions Of Law Relative To Debtors’ Motion For Summary Judgment With Respect To Contract Rejection Claims Of Strikers (Sept. 10, 1985). The reasoning relied upon in that holding is equally applicable to these LPP claims and dictates a similar conclusion. Because the LPPs clearly state the compensatory nature of the benefits, the court holds that striking employees are not entitled to recover those benefits since they are not entitled to compensation while on strike.
5. Employees asserting valid LPP claims carry a burden of documenting efforts to obtain alternative employment in an attempt to mitigate damages. See, e.g., Pan American Trans World Airlines Route Exchange Agreement, Docket 27114, Order No. 82-12-27 (December 9, 1982). This obligation is a natural outgrowth of the policies discussed above: protection of both employee rights and company assets. The LPPs specifically provide for a reduction in payments equal to unemployment benefits or wages received. See Section 5(h). For the reasons noted here and those set forth in the Pan American decision, all employees or former employees properly claiming LPP benefits must mitigate damages by seeking new employment. Said employees, because they are the only source of knowledge concerning efforts made in this regard, must be prepared to show the court that they diligently sought employment following their termination.
Conclusion
6. For all of the reasons set forth above, the Court finds that Debtors Motion for Summary Judgment disallowing certain labor protective provision claims should be granted subject to the restrictions as created by the Court’s definitions of “acquisition date” of the merger. Such claims are therefore disallowed and estimated at zero value pursuant to 11 U.S.C. § 502(c).
. Order Granting Debtors’ Motion for Summary Judgment on ALPA’s Claim for Labor Protective Provisions (Sept. 10, 1985); Uncontested Facts And Conclusions Of Law With Respect To Order Granting Debtors' Motion For Summary Judgment On ALPA’s Claim For Labor Protective Provisions (Sept. 10, 1985).
. Order [Disallowing Individual Bankruptcy Related LPP Claims] (Oct. 16, 1985); Findings Of Fact And Conclusions Of Law With Respect To Claims By Individual Employees For Labor Protective Provisions (April 11, 1986). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483194/ | Matter of Kelly v New York State Unified Ct. Sys. (2022 NY Slip Op 06378)
Matter of Kelly v New York State Unified Ct. Sys.
2022 NY Slip Op 06378
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
805 CA 21-01603
[*1]IN THE MATTER OF JESSICA KELLY, PETITIONER-PLAINTIFF-APPELLANT,
vNEW YORK STATE UNIFIED COURT SYSTEM, LAWRENCE K. MARKS, AS CHIEF ADMINISTRATIVE JUDGE OF COURTS OF STATE OF NEW YORK, ANDREW B. ISENBERG, AS DISTRICT EXECUTIVE OF EIGHTH JUDICIAL DISTRICT, AND TASHA E. MOORE, AS DEPUTY DISTRICT EXECUTIVE OF EIGHTH JUDICIAL DISTRICT, RESPONDENTS-DEFENDANTS-RESPONDENTS.
DAREN J. RYLEWICZ, CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., ALBANY (THOMAS MORELLI OF COUNSEL), FOR PETITIONER-PLAINTIFF-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ALEXANDRIA TWINEM OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered September 28, 2021 in a proceeding pursuant to CPLR article 78 and declaratory judgment action. The judgment, among other things, dismissed the petition-complaint.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483133/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0451n.06
Case No. 22-5310
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 08, 2022
)
BRIAN E. JOHNSON, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
MIKE DOBBINS, et al., ) TENNESSEE
Defendants-Appellees. )
) OPINION
Before: SILER, NALBANDIAN, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Concerned about the safety and security risks
posed by an inmate’s wrist brace, Williamson County jail officials housed the inmate in a single-
man cell. After his release, the inmate sued several officers and administrators for violating his
rights under the Constitution and the Americans with Disabilities Act by separating him from the
general prison population due to his medical status. Before bringing his grievances to federal
court, however, the inmate failed to avail himself of the grievance process available at the prison.
For that and other reasons, we affirm the district court’s grant of summary judgment to defendants.
I.
Brian Johnson was imprisoned at the Williamson County (Tennessee) jail for drug-related
offenses. He arrived at the jail wearing a wrist brace, which he asked to not be removed. After
examining Johnson, jail officials deemed the brace to pose safety and security risks. So, to allow
Case No. 22-5310, Johnson v. Dobbins, et al.
Johnson to retain the brace, the officials classified him as a medical separation inmate. This meant
Johnson would be kept in a single-man cell up to twenty-three hours per day.
The jail affords its inmates the right to appeal housing classifications through an internal
grievance process. And Johnson, it seems, was no stranger to airing complaints while at the jail.
Over the course of his imprisonment, he filed requests asking prison officials to take a range of
actions, even those as miniscule as bringing back Takis Chips to the commissary. Yet Johnson
never filed a grievance challenging his medical separation status. The closest he came to doing so
was through a series of conversations with a prison nurse. At one point, Johnson inquired about
being moved into the general population, only to later withdraw that request.
Johnson was released after more than 17 months in jail, the bulk of which was spent in
medical separation. Upon his release, he sued various jail officers and administrators, raising
seven different claims for relief. Primarily, Johnson alleged that prison officials violated the
Eighth and Fourteenth Amendments, the ADA, and state law by subjecting him to extended
solitary confinement. The district court granted summary judgment against Johnson. This appeal
followed.
II.
Widely litigated in the district court, Johnson’s case is narrower on appeal. He has
abandoned a host of claims and issues pursued below. See Bard v. Brown County, 970 F.3d 738,
750–51 (6th Cir. 2020). Johnson leaves us just two claims to resolve: whether defendants
(1) denied him notice and an opportunity to be heard on changing his medical separation status in
violation of his Fourteenth Amendment procedural due process rights; and (2) failed to provide
him with a reasonable accommodation as to his disability in violation of the ADA. He identifies
four defendants he believes are culpable for the asserted wrongs—two supervisors and two officers
2
Case No. 22-5310, Johnson v. Dobbins, et al.
that worked at the jail during Johnson’s confinement. We review the district court’s summary
judgment award de novo, viewing the facts and all reasonable inferences in Johnson’s favor.
Groening v. Glen Lake Cmty. Schs., 884 F.3d 626, 630 (6th Cir. 2018). Summary judgment is
appropriate where “the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A.
Begin with Johnson’s procedural due process claim. Among the points of contention
between the parties are the timeliness of Johnson’s claim and whether liability can extend to the
supervisor defendants. But as the case can be resolved on other grounds, we leave those issues
aside.
To overcome summary judgment for his procedural due process claim, Johnson needed to
present evidence raising a genuine dispute of material fact as to whether a violation occurred.
Articulated in the context of Johnson’s legal theory, he was required to show that (1) the state
interfered with his protected liberty interest; and (2) the procedures afforded him were
constitutionally insufficient. Bethel v. Jenkins, 988 F.3d 931, 942 (6th Cir. 2021). Beginning with
the liberty interest at stake, Johnson’s lane is narrow. The lone relevant interest that the Supreme
Court has recognized in this setting is to not be subjected to an “atypical and significant hardship
. . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995). And viewing that right in the circumstance of a decision to segregate an inmate from the
general population, prison officials need only provide an “informal” process: an “inmate must
merely receive some notice” of the prison’s decision and an “opportunity to present his views” on
the matter to the relevant prison official. See Hewitt v. Helms, 459 U.S. 460, 476 (1983), abrogated
on other grounds by Sandin, 515 U.S. at 483–84; see also Wilkinson v. Austin, 545 U.S. 209, 229
3
Case No. 22-5310, Johnson v. Dobbins, et al.
(2005) (recognizing Hewitt’s continued relevance to the question of what process is due to a
prisoner).
Johnson is unable to navigate these narrow legal channels. Assuming for argument’s sake
that his placement on medical separation imposed an atypical and significant hardship, Johnson
was afforded adequate process to challenge any liberty deprivation. He undisputedly received
“some notice” of his housing classification when he was made aware at booking of his placement
on medical separation status. See Hewitt, 459 U.S. at 476. He likewise had the “opportunity to
present his views” to challenge his medical separation status through the grievance process: no
one can claim that Johnson was unfamiliar with that process, having successfully raised other
issues of concern to his jailers. Id. Yet Johnson chose not to formally challenge his housing
assignment, and indeed recanted any interest in being moved to the general population. With
Johnson having “not avail[ed himself]” of the opportunity to be heard on his claim, no due process
violation occurred. Dubuc v. Township of Green Oak, 406 F. App’x 983, 989 (6th Cir. 2011)
(citing Santana v. City of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004)).
Johnson responds by emphasizing that prison officials “refused to provide” him with a
“periodic review” of his housing classification, notwithstanding County policy to the contrary.
But we fail to see how supposed nonadherence to an internal jail policy has any significance with
respect to a procedural due process claim. See Graham v. Chicowski, No. 18-2049, 2019 WL
4381841, at *5 (6th Cir. May 3, 2019) (holding that the “failure to follow . . . applicable state-law
procedures” concerning administrative segregation is not actionable under § 1983) (citing Huron
Valley Hosp., Inc. v. City of Pontiac, 887 F.2d 710, 714 (6th Cir. 1989)). All procedural due
process entitled Johnson to was notice of and an opportunity to be heard concerning a prison
segregation order. See Hewitt, 459 U.S. at 476. We are unaware of any authority that places an
4
Case No. 22-5310, Johnson v. Dobbins, et al.
affirmative, due-process-based obligation on prison officials to proactively review a prisoner’s
housing classification. See Trozzi v. Lake County, 29 F.4th 745, 751–52 (6th Cir. 2022)
(addressing the narrow circumstances in which the Constitution imposes affirmative duties upon
prison officials).
B.
Johnson’s remaining claim arises under Title II of the ADA. He invokes the ADA’s
requirement that “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. We
recognize two types of claims under Title II: intentional discrimination and reasonable
accommodation claims. Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th
Cir. 2004). Johnson pursues the latter. The jail, he says, was required to accommodate his wrist
injury by placing him in the general population.
Reasonable accommodation claims find their genesis in a federal regulation requiring
public entities to “make reasonable modifications in policies, practices, or procedures when [such]
modifications are necessary to avoid discrimination on the basis of disability.” See Madej v.
Maiden, 951 F.3d 364, 372 (6th Cir. 2020) (quoting 28 C.F.R. § 35.130(b)(7)(i)). Reading that
regulation alongside case law borrowed from our interpretation of Title III, it becomes evident that
a public entity is “not liable for failing to make reasonable accommodation if the plaintiff did not
request accommodation or otherwise alert the covered entity to the need for accommodation.”
Marble v. Tennessee, 767 F. App’x 647, 652 (6th Cir. 2019) (citing Gantt v. Wilson Sporting
Goods Co., 143 F.3d 1042, 1046–47 (6th Cir. 1998)); see also Peroli v. Huber, No. 21-3202, 2021
WL 5411215, at *11 (6th Cir. Nov. 19, 2021); Qiu v. Univ. of Cincinnati, 803 F. App’x 831, 837
5
Case No. 22-5310, Johnson v. Dobbins, et al.
(6th Cir. 2020); McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 461 (6th Cir.
1997) (en banc) (recognizing that only an accommodation that “had been brought to the attention”
of a public entity is “available” as the basis for a reasonable accommodation claim under Title II).
Here, the record is bereft of any evidence that Johnson alerted the jail to the need for
accommodation to avoid disability discrimination, let alone made a specific request that he be
placed in the general prison population. At one point, in fact, he told a jail nurse that he was not
interested in moving into the general population. All things considered, Johnson failed to satisfy
his “initial burden” of showing that the jail was on notice as to his need for specific
accommodations. See Marble, 767 F. App’x at 652.
Johnson resists this conclusion on a few fronts. He first contends that Title II did not
require him to request an accommodation. True, as Johnson notes, we have recognized that Title
II, in addition to prohibiting intentional discrimination, also imposes “affirmative obligations on
public entities.” See Ability Ctr. of Greater Toledo, 385 F.3d at 910. Public entities, for example,
must make “reasonable modifications” to “policies, practices, or procedures” to avoid disability
discrimination. See 28 C.F.R. § 35.130(b)(7)(i). But that obligation arises only where the entity
is aware of the needed accommodation. Public officials, after all, are not “clairvoyan[t],” nor does
Title II expect as much. Windham v. Harris County, 875 F.3d 229, 236–37 (5th Cir. 2017)
(citations omitted). A public entity’s responsibility to reasonably accommodate a disability, in
other words, requires both an awareness of a plaintiff’s specific needs as well as the plaintiff
requesting a corresponding accommodation in “direct and specific” terms. Id.
Even if so, says Johnson, he maintains that he requested an accommodation by “verbally
campaign[ing] to be released from solitary confinement.” Save for Johnson’s unadorned
statements that he “campaigned” for release from medical separation status, however, his evidence
6
Case No. 22-5310, Johnson v. Dobbins, et al.
is lacking. He does not explain when the campaign occurred, what it entailed, or to whom it was
directed, benchmarks he must satisfy to avoid summary judgment. See Napier v. Laurel County,
636 F.3d 218, 225 (6th Cir. 2011). Nor, for that matter, has Johnson asserted that the “purpose”
of his request was to “accommodate” a disability, another aspect of his “initial burden” to assert a
reasonable accommodation claim. See Marble, 767 F. App’x at 652 (citing Smith v. Henderson,
376 F.3d 529, 535 (6th Cir. 2004)).
Next, Johnson faults defendants for failing to provide an individualized review of his
confinement conditions in violation of 28 C.F.R. § 35.139(b). At the outset, we note that it is not
entirely clear whether Johnson can rely on Title II’s private cause of action to enforce this
regulation. See Ability Ctr. of Greater Toledo, 385 F.3d at 907–08, 914 (recognizing a cause of
action to enforce an ADA regulation only to the extent that it “effectuates” Title II’s prohibition
on intentional disability discrimination or reasonable accommodations requirement). And even if
he can, jail officials did not violate the implementing regulation. After Johnson alerted the jail of
his interest in continuing to wear his wrist brace, jail officials assessed his needs and allowed him
to wear the brace while imprisoned. Any further individualized “modification[]” of the terms of
Johnson’s confinement, see 28 C.F.R. § 35.139(b), would have required him to alert the jail as to
the need for such a modification, see Marble, 767 F. App’x at 651 (observing that an
“individualized inquiry” is required “in response to a request for accommodation”). Yet Johnson
failed to do so.
As a final salvo, Johnson turns to another ADA implementing regulation, 28 C.F.R.
§ 35.107(a). That regulation requires certain public entities to designate an employee to
“coordinate its efforts to comply with and carry out” Title II’s implementing regulations. Id. Here,
too, we will assume that the ADA provides a cause of action to pursue a violation of this regulation.
7
Case No. 22-5310, Johnson v. Dobbins, et al.
But see Ability Ctr. of Greater Toledo, 385 F.3d at 914 (recognizing that implementing regulations
that create obligations “not necessarily required by” the statute are “not enforceable under Title
II’s private cause of action”). In district court Johnson faulted the jail for not employing a trained
ADA coordinator. But any purported training obligation is beyond 28 C.F.R. § 35.107(a)’s text.
See 28 C.F.R. § 35.107(a) (“A public entity that employs 50 or more persons shall designate at
least one employee to coordinate its efforts to comply with and carry out its responsibilities under
this part . . . .”). Today, Johnson moves away from the training aspect of his argument and instead
maintains, more broadly, that the jail failed to designate anyone as an ADA coordinator. But as
the jail presented evidence to the contrary—facts with which Johnson has created no genuine
dispute—his ADA claim (like his constitutional claim) lacks merit.
* * * * *
We affirm the judgment of the district court.
8 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483145/ | Thomas v North Country Family Health Ctr., Inc. (2022 NY Slip Op 06409)
Thomas v North Country Family Health Ctr., Inc.
2022 NY Slip Op 06409
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND BANNISTER, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (311/22) CA 21-01337.
[*1]SCOTT THOMAS, PLAINTIFF-APPELLANT,
vNORTH COUNTRY FAMILY HEALTH CENTER, INC. AND NORTH COUNTRY CHILDREN'S CLINIC, DEFENDANTS-RESPONDENTS.
MEMORANDUM AND ORDER
Motion for reargument or leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483142/ | Weaver v Deronde Tire Supply, Inc. (2022 NY Slip Op 06412)
Weaver v Deronde Tire Supply, Inc.
2022 NY Slip Op 06412
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (442/22) CA 21-00569.
[*1]RYAN WEAVER, PLAINTIFF-RESPONDENT,
vDERONDE TIRE SUPPLY, INC., DERONDE CASINGS, LTD., DERONDE TIRE COMPANY, DEFENDANTS-APPELLANTS, AND ESTES EXPRESS LINES, DEFENDANT.
MEMORANDUM AND ORDER
Motion for reargument or leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490354/ | MEMORANDUM DECISION
THOMAS C. BRITTON, Chief Judge.
Plaintiff seeks recovery of $756,919, the net proceeds of a loan improperly disbursed by the escrow agent to the debtor after bankruptcy. The creditors’ committee appointed in this case has answered, asserting that the funds belong to the estate. The matter was tried on July 22.
The facts are completely undisputed and, so far as they are essential to this decision, are simple.
On March 24, 1986 (four days before bankruptcy) a closing was held in which plaintiff entrusted the funds in question to an attorney as escrow agent with the instruction that:
These funds are not to be disbursed until you have satisfied all of the requirements listed on your title binder, and are prepared to issue your final policy showing this Institution to be in a first lien position.
The title binder reflected a single mortgage encumbering the property in the original principal amount of $850,000. However, at that moment and at all times relevant to this proceeding, the property was also subject to a separate lien of the same institution on account of a loan made by that lender which was cross-collateralized by the property in question here. It is undisputed that the two liens exceeded the net loan proceeds advanced by plaintiff and the total of both liens appears to exceed $1.5 million.
Plaintiff then had no knowledge of the other lien and the debtor/borrower believed that the other lien holder would release its lien as a part of the transaction negotiated with the plaintiff. However, the other lien holder refused to do so and the escrow holder could not and cannot comply with the conditions for disbursement of the funds entrusted to him.
Four days after bankruptcy (which occurred on March 28) the escrow agent returned the money to the plaintiff with a letter explaining the circumstances which had frustrated the contemplated loan. Instead of accepting and retaining its money, plaintiff returned the check to the escrow agent three days' later, and demanded:
that the Mortgage and all other recordable documents be submitted to the Clerk of the Circuit Court for Martin County for recording and that a final title insurance policy pursuant to the commitment be issued immediately.... The fact that the existing Mortgagee may have “backed out” of arrangements for satisfaction is not a concern of SunPoint.
On April 8, four days after plaintiff had returned the check to the escrow agent, *62and after the escrow agent had once again unsuccessfully attempted to satisfy both liens against the property, the check was deposited in the debtor’s account. It presently remains in the trust account of the debtor’s counsel pending disposition of this matter.
This action seeks the recovery of the funds. The debtor acknowledges possession of the funds and plaintiff’s entitlement to their return. The creditors’ committee and the Bank which holds both liens oppose the plaintiff on the grounds that (1) plaintiff’s return of the check on April 4 constituted a waiver or modification of the agreement eliminating the requirement that it obtain a first lien, (2) the funds cannot be traced to the debtor, (3) plaintiff’s sole remedy is an action against the escrow agent, and (4) if plaintiff receives return of its money, it must cancel the note and satisfy its recorded lien against the debtor’s property. I agree with these defendants with respect to their fourth point. I find no merit in their other contentions.
Plaintiff’s letter of April 4, in light of the history of this transaction, constitutes neither a waiver nor modification of the plaintiff’s insistence that it receive a first lien as security for its loan and that the primacy and validity of that lien be insured by title policy. Plaintiff merely wanted the benefit of its original bargain. It expected, unrealistically perhaps, the escrow agent to eliminate the problem presented by the other lien, but it waived and modified nothing.
I find that plaintiff has clearly traced the net loan proceeds from their deposit on March 25 in the escrow agent’s trust account to their withdrawal on April 8 for the purchase of a cashier’s check on April 8 and the ultimate deposit of that cashier’s check in the debtor’s account. The fact that the trust account involved funds belonging to other parties is of no consequence. Money is, of course, fungible and the account never fell below the amount in question here. The debtor’s admission that it now holds those funds eliminates any question in my mind.
As between the parties to an escrow agreement, it is clear in Florida where this escrow occurred that:
Under the normal escrow situation where the escrow agent defaults prior to performance of the escrow condition, the loss falls upon the depositor, for he is deemed to have retained legal title to the subject matter of the escrow, and is deemed to be entitled to the return of such subject matter, should the other parties fail to perform. Cradock v. Cooper, 123 So.2d 256, 258 (Fla[App.]1960).
In that case the escrow agent, the attorney for the purchaser, stole the money. The court rejected the contention that vendor and purchaser should equally bear the loss and imposed the entire loss on the purchaser/depositor of the escrow. This rule is inapposite here. The escrowed funds, though improperly disbursed by the escrow agent, have not been lost, but are readily recoverable for the benefit of their rightful owner. If the return of this escrow had been sought from the escrow agent, he could have cross-claimed the funds from the debtor and the debtor would be required to satisfy plaintiff. Equity, of course, regards that done which should be done and I reject defendants’ argument that plaintiff’s sole remedy is against the escrow agent.
The parties have debated procedural considerations at length. Defendants argue that no escrow existed because the escrow agent was the debtor/borrower’s attorney, as well as an officer and shareholder of the debtor. This contention was rejected in Cradock.
The parties differ as to whether these funds ever became “property of the estate” as that term is defined in 11 U.S.C. § 541. On the date of bankruptcy, plaintiff held an equitable interest in the escrowed funds, but the title and possession of the funds was in a third party. The money was not then property of the estate. However, the money became property of the estate after bankruptcy when it was disbursed by the escrow agent to the debtor. This analysis does not seem to me to be significant to the *63resolution of this case. There are several alternative theories under which plaintiff is entitled to relief. However, I am aware of none under which plaintiff could get its money back without satisfying the debtor’s note and satisfying the mortgage which remains of record.
As is required by B.R. 9021(a), a separate judgment will be entered in favor of the plaintiff and against the debtor in the amount of $756,919 and plaintiff is ordered, upon receipt of that sum, to surrender the debtor’s note and to satisfy the debtor’s mortgage of record at plaintiff’s expense. Costs may be taxed on motion. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483151/ | Shapiro v Syracuse Univ. (2022 NY Slip Op 06407)
Shapiro v Syracuse Univ.
2022 NY Slip Op 06407
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (301/22) CA 21-00604.
[*1]JOHN SHAPIRO, DAVID SWEET AND A.A., PLAINTIFFS-APPELLANTS-RESPONDENTS,
vSYRACUSE UNIVERSITY, DEFENDANT-APPELLANT, BOARD OF TRUSTEES OF SYRACUSE UNIVERSITY, DEFENDANT, CAMP GREYLOCK FOR BOYS, INC., CAMP GREYLOCK, INC., ALSO KNOWN AS MARHORN, INC., MICHAEL MARCUS, AND LUKAS HORN, DEFENDANTS-RESPONDENTS.
MEMORANDUM AND ORDER
Motion for leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483161/ | People v Shaffer (2022 NY Slip Op 06393)
People v Shaffer
2022 NY Slip Op 06393
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
835 KA 20-01302
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vSEAN SHAFFER, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.), rendered August 26, 2020. The judgment convicted defendant upon a plea of guilty of criminal obstruction of breathing or blood circulation and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal obstruction of breathing or blood circulation (Penal Law § 121.11 [a]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and thus does not preclude our review of his challenge to the severity of the sentence (see People v Seay, 201 AD3d 1361, 1361-1362 [4th Dept 2022]), we conclude that the sentence is not unduly harsh or severe.
We agree with defendant, however, that the uniform sentence and commitment sheet incorrectly states that defendant was sentenced for a felony when in fact he was sentenced for two class A misdemeanors, and fails to reflect that he was sentenced to a split sentence that included three years' probation. Thus, the uniform sentence and commitment sheet must be amended to correct those errors (see generally People v Range, 199 AD3d 1356, 1358 [4th Dept 2021], lv denied 37 NY3d 1164 [2022]; People v Lewis, 185 AD3d 1542, 1543-1544 [4th Dept 2020], lv denied 35 NY3d 1114 [2020]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483206/ | MTGLQ Invs., LP v Zaveri (2022 NY Slip Op 06335)
MTGLQ Invs., LP v Zaveri
2022 NY Slip Op 06335
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.
643 CA 21-01222
[*1]MTGLQ INVESTORS, LP, PLAINTIFF-APPELLANT,
vSEEMA A. ZAVERI, DEFENDANT-RESPONDENT, ET AL., DEFENDANTS.
FRIEDMAN VARTOLO LLP, NEW YORK CITY (VIRGINIA CLAIRE GRAPENSTETER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
WOODS OVIATT GILMAN LLP, ROCHESTER (WARREN B. ROSENBAUM OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order and judgment (one paper) of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered July 19, 2021. The order and judgment, insofar as appealed from, granted the motion of defendant Seema A. Zaveri for summary judgment dismissing the complaint against her and for an award of attorneys' fees and expenses pursuant to Real Property Law § 282.
It is hereby ORDERED that the order and judgment insofar as appealed from is unanimously reversed on the law without costs, the motion of defendant Seema A. Zaveri is denied, and the complaint is reinstated against that defendant.
Memorandum: In this residential foreclosure action, plaintiff appeals, as limited by its brief, from that part of an order and judgment granting the motion of Seema A. Zaveri (defendant) for summary judgment dismissing the complaint against her as time-barred and for an award of attorneys' fees and expenses pursuant to Real Property Law § 282. We reverse the order and judgment insofar as appealed from.
In 2012, plaintiff's predecessor in interest commenced a residential foreclosure action against defendant, among others (2012 action). That action remained dormant and, on March 2, 2016, it was "pre-marked off" Supreme Court's calendar in a clerk's minute entry. On March 2, 2017, pursuant to CPLR 3404, the action was deemed abandoned and dismissed. Plaintiff's predecessor in interest appealed from the denial of its subsequent motion to vacate the dismissal and restore the 2012 action to the calendar, but the appeal was dismissed on November 30, 2018, for failure to perfect (see 22 NYCRR 1250.10 [a]). Plaintiff commenced the instant foreclosure action on April 2, 2019.
It is undisputed that the statute of limitations began to run on April 2, 2012, when plaintiff's predecessor in interest accelerated the debt by commencing the 2012 action (see Federal Natl. Mtge. Assn. v Tortora, 188 AD3d 70, 74 [4th Dept 2020]; U.S. Bank N.A. v Balderston, 163 AD3d 1482, 1483-1484 [4th Dept 2018]). Thus, defendant, as the proponent for summary judgment, met her initial burden on the motion of establishing that the instant action was time-barred inasmuch as it was commenced more than six years beyond the acceleration of the debt (see Bank of N.Y. Mellon v Slavin, 156 AD3d 1073, 1073-1074 [3d Dept 2017], lv dismissed 33 NY3d 1128 [2019]; Schumaker v Boehringer Mannheim Corp./DePuy, 272 AD2d 870, 870 [4th Dept 2000]; see generally CPLR 213 [4]). We agree with plaintiff, however, that the instant action was timely commenced because CPLR 205 (a) applies here to extend the statute of limitations.
"If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal [*2]of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action" (CPLR 205 [a]). We reject defendant's argument that, for purposes of the statute, the 2012 action terminated when it was deemed abandoned and dismissed on March 2, 2017 (see CPLR 3404). Where a plaintiff has sought to appeal as of right from the denial of a motion to vacate the dismissal of its action, the action terminates for purposes of CPLR 205 (a) when the appeal "is truly 'exhausted,' either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned" (Malay v City of Syracuse, 25 NY3d 323, 329 [2015]; see Bank of N.Y. Mellon, 156 AD3d at 1075). Here, the dismissal of the 2012 action "did not constitute a final termination of that action within the meaning of CPLR 205 (a) because plaintiff's predecessor in interest was statutorily authorized to file a motion to vacate [the dismissal] and to appeal from the denial of that motion" (Bank of N.Y. Mellon, 156 AD3d at 1075; see generally Malay, 25 NY3d at 328; Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59, 64 [2000]). The 2012 action thus terminated for purposes of CPLR 205 (a) on November 30, 2018, when this Court dismissed the appeal and plaintiff's predecessor in interest thereby exhausted its right of appeal (see Malay, 25 NY3d at 328-329; Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 519-520 [2005]; Bank of N.Y. Mellon, 156 AD3d at 1074-1075). Inasmuch as the instant action was commenced within six months of November 30, 2018, we conclude that it was timely commenced. That conclusion is "in keeping with the statute's remedial purpose of allowing plaintiffs to avoid the harsh consequences of the statute of limitations and have their claims determined on the merits where, as here, a prior action was commenced within the limitations period, thus putting defendants on notice of the claims" (Malay, 25 NY3d at 329).
We further conclude that "[t]he cases relied upon by [defendant]—Burns v Pace Univ. (25 AD3d 334 [1st Dept 2006], lv denied 7 NY3d 705 [2006]), Haber v Telson (4 AD2d 677 [2d Dept 1957], affd 4 NY2d 687 [1958]) and Jelinek v City of New York (25 AD2d 425 [1st Dept 1966])—are factually distinguishable and inapposite" (Bank of N.Y. Mellon, 156 AD3d at 1075). The two older cases are rooted in the Civil Practice Act, pursuant to which a clerk's "entry of [an] order of dismissal upon the minutes of the clerk" was construed as a "written order of [the] court" (Troiano v Kinney Motors, Inc., 276 App Div 869, 869 [2d Dept 1949]). Under the CPLR, a clerk's entry in the minutes, although denominated an order, is "neither signed nor initialed by [a] judge" and therefore "is not an order which may be the subject of an appeal" (Carter v Castle Elec. Contr. Co., 23 AD2d 768, 768 [2d Dept 1965]; see CPLR 2219). Thus, neither case supports defendant's assertion that the clerk's minute entry "pre-mark[ing]" the case off of the court's calendar is the operative date for determining when the action terminated for purposes of CPLR 205 (a). Burns is factually distinguishable because the plaintiff never moved to vacate the dismissal (25 AD3d at 334). Thus, although the plaintiff "was entitled to rely on the tolling provision in CPLR 205 (a)," there was no later date of termination, and the toll provided by CPLR 205 (a) expired six months after the initial dismissal (Burns, 25 AD3d at 334-335).
The court thus erred in granting defendant's motion for summary judgment dismissing the complaint against her and for an award of attorneys' fees and expenses pursuant to Real Property Law § 282 (see generally U.S. Bank N.A. v Krakoff, 199 AD3d 859, 863 [2d Dept 2021]). In light of our determination, plaintiff's remaining contention is academic.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483212/ | Florence Casket Co. v Iocovozzi (2022 NY Slip Op 06369)
Florence Casket Co. v Iocovozzi
2022 NY Slip Op 06369
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
787 CA 21-01324
[*1]FLORENCE CASKET COMPANY, PLAINTIFF-RESPONDENT,
vVINCENT D. IOCOVOZZI, DEFENDANT, AND .J. IOCOVOZZI FUNERAL HOME, INC., DEFENDANT-APPELLANT.
MICHELE E. DETRAGLIA, UTICA, FOR DEFENDANT-APPELLANT.
KARL E. MANNE, HERKIMER, FOR PLAINTIFF-RESPONDENT.
Appeal from a judgment of the Supreme Court, Herkimer County (Charles C. Merrell, J.), entered July 6, 2021. The judgment awarded plaintiff money damages against defendant V.J. Iocovozzi Funeral Home, Inc.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483203/ | Matter of Briana S.-S. (Emily S.) (2022 NY Slip Op 06336)
Matter of Briana S.-S. (Emily S.)
2022 NY Slip Op 06336
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, WINSLOW, AND BANNISTER, JJ.
654 CAF 20-01597
[*1]IN THE MATTER OF BRIANA S.-S., XAVIER S.-S. AND KAYLEE S.-S. GENESEE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; EMILY S., RESPONDENT-APPELLANT, AND RICARDO S., RESPONDENT. (APPEAL NO. 1.)
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
ADAM H. VANBUSKIRK, AUBURN, FOR PETITIONER-RESPONDENT.
VERA A. VENKOVA, BUFFALO, ATTORNEY FOR THE CHILD.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, ATTORNEY FOR THE CHILD.
Appeal from an order of the Family Court, Genesee County (Thomas M. DiMillo, A.J.), entered December 1, 2020 in proceedings pursuant to Social Services Law § 384-b. The order, among other things, terminated respondents' parental rights with respect to the subject children.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Same memorandum as in Matter of Briana S.-S. (Emily S.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483175/ | People v Clavijo (2022 NY Slip Op 06385)
People v Clavijo
2022 NY Slip Op 06385
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND WINSLOW, JJ.
817 KA 20-00825
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vJOEL CLAVIJO, DEFENDANT-APPELLANT.
DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (HELEN SYME OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered September 12, 2019. The judgment convicted defendant upon a nonjury verdict of kidnapping in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of kidnapping in the second degree (Penal Law
§ 135.20). As defendant correctly concedes, by failing to renew his motion to dismiss the indictment at the close of proof, defendant failed to preserve for our review his contention that the evidence is not legally sufficient to support the conviction (see People v Simmons, 133 AD3d 1275, 1277 [4th Dept 2015], lv denied 27 NY3d 1006 [2016]).
Contrary to defendant's further contention, we conclude that, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Vail, 174 AD3d 1365, 1366-1367 [4th Dept 2019]). Among other things, the proof at trial demonstrated that defendant, while armed with a handgun, led his 17-year-old victim to defendant's recording studio in order to question the victim about another handgun, also belonging to defendant, that had gone missing. In the recording studio, defendant promptly bound the victim's hands behind the victim's back with zip ties, threatened him, questioned him about the missing weapon, and suggested that he would kill the victim if he did not cooperate. Although the victim informed defendant that another man had moved the handgun from its usual location, defendant did not cut the zip ties and allow the victim to leave until several hours had elapsed, and only after law enforcement officers, who had been contacted by the victim's concerned girlfriend, questioned defendant, who lied to officers as to the victim's whereabouts. Contrary to defendant's further contention, the discrepancies in the testimony of the People's witnesses merely presented credibility issues that County Court, as trier of fact, reasonably and justifiably resolved in the People's favor (see generally People v Graves, 163 AD3d 16, 23 [4th Dept 2018], lv denied 35 NY3d 970 [2020]), and nothing about that testimony rendered it incredible as a matter of law (see generally People v O'Neill, 169 AD3d 1515, 1515-1516 [4th Dept 2019]).
Contrary to defendant's final contention, the sentence is not unduly harsh or severe.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483217/ | Clark v Rachfal (2022 NY Slip Op 06410)
Clark v Rachfal
2022 NY Slip Op 06410
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND CURRAN, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (405/22) CA 21-00235.
[*1]GERALDINE CLARK AND MOSES CLARK, PLAINTIFFS-APPELLANTS-RESPONDENTS,
vSTEPHAN J. RACHFAL, M.D., DEFENDANT, JOHN CUCINOTTA, M.D., CROUSE RADIOLOGY ASSOCIATES, LLP, DEFENDANTS-APPELLANTS, CROUSE HOSPITAL EMERGENCY MEDICINE DEPARTMENT, CROUSE HEALTH HOSPITAL, INC. AND KRISTA J. KANDEL, M.D., DEFENDANTS-RESPONDENTS.
MEMORANDUM AND ORDER
Motion for reargument be and the same hereby is granted in part and, upon reargument, the memorandum and order entered July 8, 2022 (207 AD3d 1173 [4th Dept 2022]) is amended by deleting the second and third sentences of the sixth paragraph of the memorandum and substituting the following sentences: "Dr. Kandel permitted plaintiff to leave the hospital while a review of her brain MRI was pending. Plaintiffs' expert opined that discharging plaintiff before a review of the scans was complete constituted a deviation from the standard of care in light of plaintiff's medical history, which indicated a significant stroke risk." | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483231/ | Filed 11/10/22 P. v. Pierson CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074662
v. (Super.Ct.No. RIF101528)
MARIE ELIZABETH PIERSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed with directions.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff
and Respondent.
1
In 2002, a jury convicted Marie Elizabeth Pierson of first degree murder and found
true the robbery-murder special circumstance, which authorizes a sentence of life without
the possibility of parole for “a major participant” in a felony murder who acted with
1
“reckless indifference to human life.” (Pen. Code, § 190.2, subds. (a)(17) & (d).) In
2019, Pierson filed a petition to vacate her murder conviction under section 1172.6
2
(formerly section 1170.95). The trial judge summarily denied the petition on the ground
the special circumstance finding rendered Pierson categorically ineligible for
resentencing. (§ 190.2, subd. (d).)
On appeal, Pierson argued the special circumstance finding did not render her
ineligible as a matter of law because it predated the California Supreme Court’s decisions
in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th
522 (Clark), which clarified what “major participant” and “reckless indifference to
human life” mean for purposes of section 190.2, subdivision (d). In our original opinion,
we disagreed and affirmed the summary denial of her petition.
The California Supreme Court subsequently granted review of our opinion and
deferred action pending its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong),
and it has now transferred the matter back to us with directions to vacate our original
opinion and reconsider Pierson’s appeal in light of its decision. Having done so, we
1 Unlabeled statutory citations refer to the Penal Code.
2Effective June 30, 2022, the Legislature renumbered section 1170.95 as section
1172.6, with no change in text.(Stats. 2022, ch. 58, § 10.) We use section 1172.6 to refer
to whichever of the two statutes was in effect at the relevant time.
2
conclude she has demonstrated a prima facie case for relief and is entitled to an
evidentiary hearing under section 1172.6, subdivision (d). We therefore reverse.
I
FACTS
In 2002, Pierson and Angelo Will committed a home invasion robbery during
which Will stabbed the victim to death. The jury convicted Pierson of first degree murder
(§ 187, subd. (a)) and found true the special circumstance that the murder was committed
during a robbery (§ 190.2, subd. (a)(17)(A)), and the trial judge sentenced her to life
without the possibility of parole. In 2009, we affirmed Pierson’s conviction in our
unpublished decision, People v. Pierson (May 15, 2009, E039621).
In 2015 and 2016, the California Supreme Court decided Banks and Clark,
respectively, which discuss when section 190.2 authorizes a special circumstance life
without parole sentence for a felony-murder defendant convicted as an aider and abettor.
(Banks, supra, 61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those
decisions held that participation in an armed robbery, on its own, is insufficient to support
a finding that the defendant acted with reckless indifference to human life. Instead, the
fact finder must consider “the defendant’s personal role in the crimes leading to the
victim’s death and weigh the defendant’s individual responsibility for the loss of life, not
just his or her vicarious responsibility for the underlying crime.” (Banks, at p. 801.) “The
defendant must be aware of and willingly involved in the violent manner in which the
particular offense is committed,” thereby “demonstrating reckless indifference to the
3
significant risk of death his or her actions create.” (Ibid., italics added.) Banks provided a
nonexhaustive list of factors to consider when determining whether the defendant was a
major participant in the underlying felony, and Clark provided a similar list for
determining whether the defendant acted with reckless indifference to human life.
(Banks, at p. 803; Clark, at pp. 619-623.)
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437), which, among other things, amended the definition of felony murder in section
189 and created a procedure for vacating murder convictions predating the amendment
that could not be sustained under the new law. (Stats. 2018, ch. 1015, § 4.) Following this
procedure, in 2019, Pierson filed a petition to vacate her murder conviction. She alleged
she had been convicted of first degree murder under a felony-murder theory and could
not be convicted of murder under the new law because she was not a major participant in
the felony and did not act with reckless indifference to human life during its commission.
Riverside County Superior Court Judge John D. Molloy summarily denied the
petition. He concluded the special circumstance finding demonstrated as a matter of law
that the jury found Pierson was a major participant in the robbery who acted with reckless
indifference to human life, and as a result, she was categorically ineligible for relief.
4
II
ANALYSIS
A. SB 1437 and Section 1172.6
SB 1437 narrowed the felony-murder rule and eliminated the natural and probable
consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 849.) As relevant here,
SB 1437 amended the felony-murder rule to provide that “[a] participant in the
perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is
liable for murder only if one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer
in the commission of murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e), emphasis added.)
SB 1437 also created a procedure for offenders previously convicted of murder to
seek retroactive relief if they could no longer be convicted of murder under the new law’s
changes to the definition of murder. (Stats. 2018, ch. 1015, § 4.) Under section 1172.6,
such offenders may petition to have their convictions vacated and are entitled to relief if
(1) the complaint or information filed against them allowed the prosecution to proceed
under the felony-murder rule or natural and probable consequences doctrine, (2) they
were “convicted of murder, attempted murder, or manslaughter following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of
5
murder or attempted murder,” and (3) they “could not presently be convicted of murder
or attempted murder because of changes to Section 188 or 189.” (§ 1172.6, subd. (a).) If a
petition makes a prima facie showing the offender is entitled to relief, the judge must
issue an order to show cause and hold “a hearing to determine whether to vacate the
murder, attempted murder, or manslaughter conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same manner as if the petitioner
had not previously been sentenced.” (§ 1172.6, subds. (c), (d)(1).) At that hearing, the
People bear the burden “to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
B. Pierson Is Entitled to a Hearing
In Strong, our Supreme Court held that a true finding on a robbery-murder special
circumstance that predates Banks and Clark does not render a section 1172.6 petitioner
ineligible for relief as a matter of law because the finding was made “under outdated
legal standards.” (Strong, supra, 13 Cal.5th at p. 720.) In addition, Strong also held that a
court’s postconviction determination that substantial evidence supports the finding under
Banks and Clark also does not render the petitioner ineligible as a matter of law because
the determination “would not involve a determination beyond a reasonable doubt that [the
current legal standards] were met.” (Strong, at p. 720.)
Having reconsidered this case under these principles, we conclude Pierson has
established a prima facie case for relief because her special circumstance finding predates
Banks and Clark.
6
III
DISPOSITION
We reverse the order denying the petition. On remand, the trial court shall issue an
order to show cause and conduct an evidentiary hearing in accordance with section
1172.6, subdivision (d).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483189/ | Matter of Mea V. (Jessica F.) (2022 NY Slip Op 06350)
Matter of Mea V. (Jessica F.)
2022 NY Slip Op 06350
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
705.1 CAF 22-01611
[*1]IN THE MATTER OF MEA. ORLEANS COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; JESSICA F., RESPONDENT-APPELLANT, (APPEAL NO. 3.)
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
DANA A. GRABER, ALBION, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Orleans County (Sanford A. Church, J.), entered April 15, 2021 in a proceeding pursuant to Family Court Act article 10. The order, inter alia, continued placement of the subject child with petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Matter of Mea V. (Brandon V.) ([appeal No. 2] — AD3d — [Nov. 10, 2022] [4th Dept 2022]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483169/ | People v McNear (2022 NY Slip Op 06399)
People v Mcnear
2022 NY Slip Op 06399
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (1116/99) KA 99-00063.
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vSAMUEL MCNEAR, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for writ of error coram nobis denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483222/ | Benjamin v Ferrara (2022 NY Slip Op 06390)
Benjamin v Ferrara
2022 NY Slip Op 06390
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND WINSLOW, JJ.
824 CA 21-01498
[*1]RONALD R. BENJAMIN, PLAINTIFF-APPELLANT,
vPAUL G. FERRARA, ESQ., AND COSTELLO, COONEY & FEARON, PLLC, DEFENDANTS-RESPONDENTS.
RONALD R. BENJAMIN, PLAINTIFF-APPELLANT PRO SE.
COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DANIEL R. ROSE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Onondaga County (Gregory R. Gilbert, J.), entered September 7, 2021. The order, insofar as appealed from, granted that part of the motion of defendants seeking to dismiss the complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483233/ | Filed 11/10/22 P. v. Enriquez CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074943
v. (Super.Ct.No. RIF120947)
ERICK MARTINEZ ENRIQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Reversed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Senior Assistant
1
Attorneys General, and Eric A. Swenson, Alan L. Amann, and Felicity Senoski, Deputy
Attorneys General, for Plaintiff and Respondent.
In 2009, petitioner Erick Martinez Enriquez was convicted of (among other things)
first degree murder, on a felony-murder theory, with a felony-murder special
circumstance. In 2019, he filed a petition to vacate the murder conviction under Penal
Code section 1172.6.1 The trial court denied the petition; it ruled that the felony-murder
special circumstance findings conclusively established that he was not eligible for relief.
Petitioner contends that this was error. Under People v. Strong (2022) 13 Cal.5th
698 (Strong) — decided while this appeal was pending — he is correct.
I
DISCUSSION
Under section 1172.6, the trial court must vacate a first-degree murder conviction
that was based on a felony-murder theory, unless the petitioner either (1) was the actual
killer, (2) had the intent to kill and aided and abetted the commission of first-degree
1 All further statutory citations are to the Penal Code.
The petition was actually filed under former section 1170.95. (Enacted by Stats.
2018, ch. 1015, § 4, amended by Stats. 2021, ch. 551, § 2.) While this appeal was
pending, former section 1170.95 was renumbered as section 1172.6, with no change in
text. (Stats. 2022, ch. 58, § 10.) We will use section 1172.6, somewhat
anachronistically, to refer to whichever one of the two statutes was in effect at the
relevant time.
2
murder, or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life.2 (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).)
A felony-murder special circumstance, however, requires that the defendant either
(1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of
first-degree murder, or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 190.2, subds. (a)(17), (b)-(d).)
Accordingly, when first confronted with the question, this court held that a true
finding on a felony-murder special circumstance conclusively established ineligibility for
relief under section 1172.6. (People v. Jones (2020) 270 Cal.Rptr.3d 362, review granted
Jan. 27, 2021, S265854, depublished and transferred with directions Sept. 28, 2022.)
While this appeal was pending, however, Strong held that People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) “substantially
clarified” the requirements of a felony murder special-circumstance finding. (Strong,
supra, 13 Cal.5th at p. 706.) Therefore, a felony murder special-circumstance finding
made before Banks and Clark were decided does not conclusively establish ineligibility
for relief under section 1172.6. (Strong, supra, at pp. 710-720.)
The People concede that, in light of Strong, the trial court erred, and we must
reverse the order appealed from. We agree, and we will do so.
2 Or — we note for completeness, although it is not relevant here — unless
the victim was a police officer killed in the course of his or her duties and the defendant
knew or should have known that. (§ 189, subd. (f).)
3
Petitioner also argues that we should direct the trial court to issue an order to show
cause. (See § 1172.6, subd. (c).) He notes that the prosecutor conceded that he was not
the actual killer. Somewhat unhelpfully, the People do not respond to this argument.
Because the trial court denied the petition based on the felony-murder special
circumstances, it has not yet ruled on whether the petition otherwise stated a prima facie
case. Moreover, the prosecution has not stipulated to this. A prima facie case requires
more than just allegations that the petitioner was convicted on a felony-murder theory
and was not the actual killer. (§ 1172.6, subd. (a)(3), incorporating § 189, subd. (e).) We
decline to review a ruling the trial court did not make. We leave the question of whether
to issue an order to show cause to be decided by the trial court in the first instance.
II
DISPOSITION
The order appealed from is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MENETREZ
J.
4 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483232/ | Filed 11/10/22 P. v. Guerrero CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B319880
(Super. Ct. No. TA149250)
Plaintiff and Respondent, (Los Angeles County)
v.
FELIPE GUERRERO,
Defendant and Appellant.
Felipe Guerrero molested A.A. over a seven-year period.
He touched her breasts and orally copulated her. He made her
touch his penis until he ejaculated. He also inserted his penis
into her vagina on at least five different occasions.
Prosecutors charged Guerrero with three counts of forcible
sexual intercourse with a child (Pen. Code,1 § 288.7, subd. (a)),
one count of oral copulation of a child (id., subd. (b)), and one
count of continuous sexual abuse of a child (§ 288.5, subd. (a)) for
his molestation of A.A. Guerrero pleaded no contest to the
1 Statutory references are to the Penal Code.
continuous sexual abuse charge in exchange for the dismissal of
the remaining four charges. He agreed to serve a 12-year,
middle-term state prison sentence as part of his plea.
We appointed counsel to represent Guerrero in this appeal.
After counsel examined the record, he filed an opening brief that
raises no arguable issues. On September 19, 2022, we advised
Guerrero by mail that he had 30 days within which to submit any
contentions or issues he wished us to consider. We have not
received a response.
We have reviewed the entire record and are satisfied that
Guerrero’s attorney fully complied with his responsibilities and
that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d
436, 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
2
Teresa P. Magno, Judge
Superior Court County of Los Angeles
______________________________
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483234/ | Filed 11/10/22 Los Portales Association v. Fitness International CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
LOS PORTALES ASSOCIATION, LP
Plaintiff, Cross-defendant and E078152
Respondent,
(Super.Ct.No. CVRI2102808)
v.
OPINION
FITNESS INTERNATIONAL, LLC
Defendant, Cross-complainant and
Appellant.
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed.
Dorsey & Whitney, Bryan M. McGarry, Lynnda A. McGlinn and Jessica M.
Leano for Defendant, Cross-complainant and Appellant.
1
Law Offices of Daniel A. Kaplan, Daniel A. Kaplan and Daniel C. Pierce for
Plaintiff, Cross-defendant and Respondent.
In 2015, the predecessor in interest of Los Portales Associates, LP (Los Portales or
plaintiff), leased building space to Fitness International, LLC (Fitness or defendant), for
the commercial purpose of conducting a fitness club and other related business
enterprises. In March 2020, Fitness, like other businesses, was required to cease indoor
operations due to Covid-19 and informed Los Portales of its inability to pay rent. To
address the problem, Los Portales and Fitness entered into three successive letter
agreements modifying the lease to forgive or defer certain nonpayments of rent and
related expenses, while confirming Fitness’s obligation to repay the deferred rent
beginning in 2021. Fitness, which continued to occupy the rental premises throughout
the lease period, failed to repay the unpaid rent amounts and related expenses as agreed.
Los Portales filed a complaint against Fitness for recovery of the unpaid rent to which
Fitness filed a cross-complaint. Los Portales sought a prejudgment writ of attachment to
secure the amounts as yet unpaid, which was granted. Fitness appealed.
On appeal, Fitness argues (a) that the trial court abused its discretion in
considering two declarations which were originally filed (but were corrected prior to the
hearing) without indicating the state in which they were executed; (b) there is insufficient
evidence to support the order granting plaintiff Los Portales’s right to attach (1) due to
Los Portales’s breach of various provisions of the lease agreement; and (2) lack of
evidence Los Portales was likely to prevail on the merits. We affirm.
2
BACKGROUND
In 2015, defendant Fitness entered into a retail lease agreement with the
predecessor in interest of plaintiff Los Portales, to lease certain premises, described in the
agreement, located in a then proposed shopping center at Menifee Lakes Plaza, in
Riverside County, including the right to use common areas. The primary term of the
lease was for 184 months (15 years, 4 months), with options to extend the term for three
consecutive 5-year terms. The rent for the premises comprised a minimum rent of
$886,160.00 per year ($73,846.67 per month), plus a share of the common area expenses,
insurance, and a pro rata portion of the real estate taxes. The primary use of the premises
was for the operation of a health club and fitness facility, along with various ancillary or
incidental uses of a retail nature as well as for other related uses. However, the lease
terms also permitted defendant to change its use of the premises to any alternate legal use
which is not otherwise expressly prohibited by the Lease and is not in conflict with any
exclusive use agreement then in effect.
In 2020, the Covid-19 pandemic interrupted businesses, and on April 6, 2020,
defendant failed to pay rent. As a preemptive matter, defendant emailed correspondence
to the various lessors to which it owed rent, indicating it would discuss lease
modifications. In addition, defendant’s general counsel emailed correspondence taking a
rather more aggressive tactic of asserting that the landlords were responsible for the
business closures by preventing Fitness from operating its business, interfering with
Fitness’s quiet possession and enjoyment of the premises, and for falsely representing
3
that Fitness’s use of the premises would not violate any restrictions on its use. The letter
also asserted that due to the unforeseen occurrence of the pandemic closures, Fitness’s
operation of its business has been made impossible, and that its business purpose has
been frustrated, warranting abatement of all rents.
After engaging in negotiations, plaintiff and defendant executed a series of three
successive letter agreements, amending the lease and reaffirming Fitness’ obligation to
repay deferred rents at a later date. The first such agreement was dated June 9, 2020, and
provided that 50 percent of the rent due for the months of April and May was abated and
forgiven by plaintiff, while 35 percent of the rents for those months would be deferred
until January 2021, when it would be repaid by installments between January 1, 2021 and
June 30, 2022. The amendment further provided that the additional rents due under the
original lease (for common area maintenance and taxes) would also be delayed and
deferred until August 2020.
The second letter agreement was dated August 13, 2020, and further amended the
terms of the original lease and the June 9, 2020 letter agreement by deferring and
delaying the payment of the minimum rent for the month of August 2020 until January
2021, under the same terms as the previously deferred rents, but requiring payment of the
additional rent as provided under the original lease.
On October 9, 2020, a third letter agreement was executed, deferring 100 percent
of the minimum rent due for September 2020, subject to repayment as provided in the
previous letter agreements. No further or later modifications are alleged to have been
4
requested by defendant Fitness. But in January 2021, defendant failed to initiate the
installment payments of the deferred rent.
On June 25, 2021, plaintiff filed a complaint comprising two causes of action: (a)
for rent and damages pursuant to Civil Code section 1951.4, and (b) for rescission based
on fraud in the inducement respecting the execution of the three modifications to the
lease for rent deferral, seeking recovery of $706,186.99 in damages for the first cause of
action, and for restitution of the full monthly rents ($73,846.67 per month as minimum
rent) under the original lease for the second cause of action, along with attorneys’ fees.
On August 6, 2021, plaintiff filed an application for a right to attach order and an
order for issuance of a writ of attachment to secure the amount of $796,232.87 plus costs
in the amount of $1,008.42, and attorneys’ fees in the amount of $89,391.1 Thereafter,
on August 11, 2021, defendant Fitness answered the complaint and filed a cross-
complaint against Los Portales alleging two causes of action for breach of contract
(referring to the force majeure provision and the provision governing the lessor’s
representations, warranties and covenants), three causes of action sounding in common
counts (for money had and received, for money paid by mistake, and monies paid and
expended), and two causes of action for declaratory relief (referring to the closure period
and ongoing restrictions).
1 The application was supported by two declarations which, although executed
within the State of California, omitted to state that the declarations were executed in the
state. Fitness objected to the declarations. Thereafter, plaintiff submitted corrected
declarations, with the same substantive averments, but with the execution in proper form.
The corrected declarations were submitted prior to the hearing, and there is no evidence
in the record that defendant objected to their filing.
5
The hearing on plaintiff’s application for order and issuance of a writ of
attachment took place on October 6, 2021, when it was taken under submission. On
November 4, 2021, the court issued its ruling on the submitted matter, granting plaintiff’s
application for order regarding the writ of attachment subject to an undertaking in the
amount of $10,000. Upon proof of the undertaking, the right to attach order and order for
issuance of writ of attachment were issued. Defendant appealed.
DISCUSSION
Defendant argues that the trial court erred in granting plaintiff’s application for
order and issuance of the writ of attachment because (a) the declarations submitted in
support of plaintiff’s application were not in proper form, lacking the statements that they
were executed under the laws of the State of California pursuant to Code of Civil
Procedure section 2015.5, and (b) there is insufficient evidence to support the finding of
plaintiff’s likelihood of prevailing on the merits in light of the force majeure provision of
the lease and the plaintiff’s breach of various warranties and duty to indemnify. We
disagree.2
2 The parties filed competing requests for judicial notice in this court: On
February 22, 2022, defendant Fitness requested that we take judicial notice of a trial level
decision from a Michigan Circuit court in a case that is wholly inapposite to the issues
involved in the current case. We deny that request for judicial notice.
Thereafter, on April 15, 2022, Los Portales made a request that we take judicial
notice of several documents. One document was Governor Newsome’s Executive Order
N-28-20, which apparently was not submitted to the trial court although the trial court
apparently took notice of several other executive orders. The other documents attached
to Los Portales’s request pertain to trial court orders in other cases involving Fitness,
International, LLC, from other counties, which also were not considered by the trial
court. We deny this request for judicial notice, also.
[footnote continued on next page]
6
First, the argument that the declarations submitted by Los Portales in support of its
application for writ of attachment should have been rejected is a non-issue. Defendant,
who prepared the appendix on appeal, failed to acknowledge that the place of execution
was duly included in corrected declarations, which were submitted prior to the hearing,
and were filed without objection by defendant. We are disappointed by defendant’s
counsel’s act of submitting an incomplete version of the corrected declarations sans
execution pages, where the record demonstrates defendant did receive the complete
versions of the corrected declarations, while arguing that the very portion omitted was
defective. Such conduct, at a very minimum, is disrespectful of the court.
In any event, the corrected declarations fully conform with Code of Civil
Procedure section 2015.5, disposing of this non-issue, so we will not be further
distracted. We turn to the propriety of the trial court’s order granting the requested
prejudgment relief on the merits.
Next, on May 16, 2022, Fitness submitted a supplemental request for judicial
notice in support of its reply brief. We deny this request as moot.
Finally, on May 31, 2022, Los Portales filed a supplemental request for judicial
notice in opposition to Fitness’s supplemental request for judicial notice. We deny this
request as moot, also.
The parties may wish to review the rules governing requests for judicial notice in
the reviewing court. (See, Cal.Rules of Ct., rule 8.252; Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1141, fn. 6, citing Mangini v. R.J. Reynolds Tobacco Co. (1994)
7 Cal.4th 1057, 1064 [overruled on a different point in In re Tobacco Cases II (2007) 41
Cal.4th 1257, 1276; see also, Ross v. Creel Printing & Publishing Co. (2002) 100
Cal.App.4th 736, 743 [judicial notice is limited to the fact of the existence of hearsay
documents, and not the truth of the contents thereof].) Given that decisions of other
inferior courts, especially out-of-state courts, necessarily involve the application of
different legal principles to different facts, as well as the fact none of the decisions
posited for judicial notice is a decision by a reviewing court, their usefulness in this
appeal is nil.
7
a. General Principles Governing Prejudgment Attachments
Code of Civil Procedure section 483.010, subdivision (a), provides that “an
attachment may be issued only in an action on a claim or claims for money, each of
which is based upon a contract, express or implied, where the total amount of the claim or
claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500)
exclusive of costs, interest, and attorney’s fees.” “The term ‘contract’ as used in Code of
Civil Procedure section 483.010, subdivision (a) has been interpreted to include leases of
real or personal property.” (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc.
(2004) 115 Cal.App.4th 537, 540, citing Legis. Com. com., 15A West’s Ann. Code Civ.
Proc. (1974 ed.) foll. § 483.010, p. 47; Stanford Hotel Co. v. M. Schwind Co. (1919) 180
Cal. 348 [realty]; Walker v. Phillips (1962) 205 Cal.App.2d 26 [personal property].)
“‘“‘Attachment is an ancillary or provisional remedy to aid in the collection of a
money demand by seizure of property in advance of trial and judgment.’”’” (Royals v.
Lu (2022) 81 Cal.App.5th 328, 345, quoting Kemp Bros. Construction, Inc. v. Titan
Electric Corp. (2007) 146 Cal.App.4th 1474, 1476, italics omitted.)
“The general requirements for prejudgment attachments include the following:
The action must seek money, be based on a contract, where the total claim is fixed or
readily ascertainable and not less than $500 [citation]; that the claim be unsecured
[citation]; and that the plaintiffs make a showing that they ‘on the facts presented would
be entitled to a judgment on the claim upon which the attachment is based.’ [Citation.]”
(Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80, fn. 1.) “‘A claim has “probable validity”
8
where it is more likely than not that the plaintiff will obtain a judgment against the
defendant on that claim.’ [Citation.]” (Goldstein v. Barak Construction (2008) 164
Cal.App.4th 845, 852.) The contract must also be commercial in nature. (Ibid.)
“Although damages need not be liquidated, they must be measurable by reference to the
contract sued upon, and their basis must be reasonable and certain.” (Kemp Bros.
Construction, Inc. v. Titan Electric Corp., supra, 146 Cal.App.4th at p. 1481, fn. 5.,
citing CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., supra, 115 Cal.App.4th
at p. 540.)
Defendant challenges only the trial court’s finding of probable validity that
plaintiff will prevail in its action. To the extent that this presents a question of fact, we
apply the deferential substantial evidence standard of review. (Crocker National Bank v.
City and County of San Francisco (1989) 49 Cal.3d 881, 888.) “If the trial court resolved
disputed factual issues, the reviewing court should not substitute its judgment for the trial
court’s express or implied findings supported by substantial evidence. [Citations.]”
(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20
Cal.4th 1135, 1143.) “‘[W]e must consider the evidence in the light most favorable to the
prevailing party, giving such party the benefit of every reasonable inference, and
resolving all conflicts in support of the judgment. [Citation.]’ [Citation.]” (Gooch v.
Hendrix (1993) 5 Cal.4th 266, 279.) To the extent, however, that the trial court’s finding
presents a question of law, we review it independently. (Crocker National Bank, supra,
at p. 888.)
9
b. Application of Principles Governing Prejudgment Attachments to this Case.
Defendant challenges plaintiff’s entitlement to a prejudgment attachment on the
ground the trial court erroneously determined its claim had “probable validity,” in light of
the force majeure exception in the lease and its other asserted affirmative defenses
(breaches of covenants, warranties, etc.) to the collection of unpaid rent under the
original, unmodified, lease. We disagree.
“A trial court’s finding on whether a plaintiff established probable validity is
reviewed for substantial evidence.” (Santa Clara Waste Water Co. v. Allied World
National Assurance Co. (2017) 18 Cal.App.5th 881, 885, citing Lorber Industries v.
Turbulence, Inc. (1985) 175 Cal.App.3d 532, 535.) “A claim has ‘probable validity’
where it is more likely than not that the plaintiff will obtain a judgment against the
defendant on that claim.” (Code Civ. Proc., § 481.190.) Here, the original lease, which
included the provisions on which defendant relies, was modified when plaintiff and
defendant entered into negotiated letter agreements to modify the original lease. The
discussions appear to have commenced after defendant notified plaintiff it intended to
rely on defenses to nonpayment of rent spelled out in the original lease, as well as Civil
Code section 1511. These modifications of the original lease support plaintiff’s right to
collect deferred rent and preclude defendant from relying upon the exceptions to the duty
to pay rent.
It is well settled that “[a] contract in writing may be modified by a contract in
writing.” (Civ. Code, § 1698, subd. (a).) Defendant acknowledges executing the three
10
letter agreements by which the original lease was modified so it is estopped from
claiming affirmative defenses under the original lease by which it induced plaintiff to
enter into the negotiations in the first place. (See Dones v. Life Ins. Co. of North America
(2020) 55 Cal.App.5th 665, 678.) “Generally ‘“four elements must be present in order to
apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of
the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the
party asserting the estoppel had a right to believe it was so intended; (3) the other party
must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his
injury.”’” (Ibid., quoting Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th
743, 751; California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (1992) 10
Cal.App.4th 988, 997.)
Defendant does not appear to acknowledge the impact of the modifications to the
lease, and instead asserts that defenses under the original, unmodified, lease excused its
obligation to pay rent. We agree that under the provisions of the original lease, the force
majeure provision might have excused the obligation to pay rent, but instead of vacating
the premises promptly following notice to the lessor of the conditions that would give rise
to that excuse, as required under the force majeure clause, defendant continued in
possession of the leasehold premises, made some payments of rent during the period of
the lockdown, and entered into negotiations by which the lease was modified. In this
respect, any defense under the lease, including alleged violations of covenants or
warranties, were forfeited by defendant’s subsequent agreement to pay the deferred rent.
11
On this basis alone, plaintiff demonstrated probable validity of its claim. Moreover,
defendant’s tactic of repudiating the modifications supports plaintiff’s claim for
rescission and restitution due to fraud, as alleged in its complaint.
Notwithstanding the force majeure provisions of the original lease, as well as the
statutory provisions of Civil Code section 1511, subparagraph (1), governing the
principle of impossibility of performance, defendant and plaintiff entered into three
separate letter agreements by which the original lease was modified. In those letter
agreements, plaintiff forgave a portion of the unpaid rent and agreed to a deferment of its
right to collect monthly payments of rent in return for defendant’s agreement to repay the
deferred rents in monthly installments beginning in 2021.
At this point we note that the sole authorities relied upon by defendant in support
of its force majeure defense are two unpublished trial level decisions from an out-of-state
jurisdiction, involving the same parent company but not involving similar facts. (ROIC
Four Corner Square, LLC v. Fitness International, LLC, Case No. 21-2-04531-9 (Oct. 8,
2020, Wash. Super. Ct., Pierce Cnty; BAI Century LLC v. Fitness International, LLC, No.
2021 L 1322 (Cook Cty, Ill. Sept. 30, 2021.) We take defendant’s reliance on such
decisions to be a concession that its position lacks support under relevant and citable
California authority. While unreported appellate decisions may be considered persuasive
in an appropriate case (Charpentier v. L.A. Rams Football Co. (1999) 75 Cal.App.4th
301, 310, fn. 8, citing People v. Davis (1998) 19 Cal.4th 301, 306, in turn citing State v.
Higgs (Ohio Ct. App., Jan. 12, 1990, No. WD-89-6) 1990 WL 1351), outside the judicial
12
district which gave rise to an unreported trial level decision, such a cited reference has
minimal-to-no precedential value. We are also unpersuaded by out-of-state bankruptcy
opinions from trial level motions which do not involve facts or legal principles relevant to
those presented here. Thus, while defendant may cite the out-of-state authority3, we are
not bound to follow it.
By engaging in these negotiated letter agreements, defendant induced plaintiff to
defer payment of previously due rents that had accrued under the original lease and was
permitted to remain in possession of the leased premises. Defendant intended for
plaintiff to rely on its modified promises, which plaintiff did, ignorant that defendant
would refuse to pay the deferred rent by relying on provisions of the lease in effect prior
to the modifications. This was detrimental to plaintiff. “‘It is well settled that a person
by his conduct may be estopped to rely upon [certain] defenses.’ [Citations.]” (Benner v.
Industrial Acci. Com. (1945) 26 Cal.2d 346, 350, quoting Adams v. California Mut. B. &
L. Assn. (1941)18 Cal.2d 487, 488.) By inviting plaintiff’s participation in the lease
modification discussions, which reaffirmed plaintiff’s right to collect the deferred rents,
Fitness forfeited the right to claim defenses under the original lease by negotiating
3 In support of its reliance on out-of-state trial level decisions, defendant refers us
to California Rules of Court, rule 8.111(a), which is no longer in effect. In its stead is
rule 8.115, which permits the citation of unpublished appellate opinions in appropriate
circumstances. Defendant also cites opinions supporting this assertion, one of which has
been disapproved by the California Supreme Court (without indicating the subsequent
history of the decision), for the propriety of its reliance without recognizing that the cases
cited merely reaffirm the propriety of citing unpublished appellate decisions in certain
circumstance. These cases are inapposite and are not authority for the proposition that
we should consider unpublished out-of-state rulings from inferior tribunals.
13
successive modifications to the original lease. (See Leasequip, Inc. v. Dapeer (2002) 103
Cal.App.4th 394, 403.)
It bears noting that it was defendant who initiated the negotiations which led to the
modifications or amendments to the original lease and transmitted that invitation
concurrently with the emailed letter from defendant’s general counsel, informing plaintiff
that defendant was excused from paying rent under the force majeure provisions, as well
as by plaintiff’s alleged violation of warranties and covenants under the original lease.
The clear import of defendant’s coordinated actions was to threaten to cancel the lease
under the force majeure clause unless plaintiff provided some relief from the duty to pay
rent. It is reasonable to conclude that defendant’s subsequent decision to agree to the
modifications to the lease signaled an intent to abandon those defenses under the lease
during the period of rent deferment in return for retaining possession of the leasehold,
having motivated plaintiff to defer the collection of the rent by its threat of relying on the
lease terms excusing payment.
The modifications to the original lease are the elephant in the room. Because
defendant expressly reaffirmed plaintiff’s entitlement to unpaid and deferred rents in
return for agreements allowing it to retain possession of the premises during the months
in which no rents were paid, plaintiff established its claim was of “probable validity.”
Absent any citation to relevant California authority, the trial court properly rejected
defendant’s arguments that its duty to pay rent was excused.
14
Defendant also asserts the court erred in granting plaintiff’s application due to the
availability of other defenses under the original lease. For instance, it asserts plaintiff
breached the lease provisions governing defendant’s right to quiet enjoyment of the
leased premises when the State of California ordered the shutdowns, as if plaintiff was
responsible for the executive orders issued during the pandemic. Again, defendant relies
on inapposite authority and an improbable premise to make the case that plaintiff is
responsible for the executive orders requiring businesses to shut down in such a way as to
give rise to liability for interfering with defendant’s quiet enjoyment. We reject these
arguments.
First, the argument ignores the legal effect of the three consecutive letter
agreements which defendant executed agreeing to repay the deferred rent, commencing
January 1, 2021. Second, cases cited by defendant involving dangerous conditions of the
premises created by a lessor (ref. Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 423),
are not relevant to the issues presented here where the cessation of business is not due to
a dangerous condition created by plaintiff, or the result of any action on plaintiff’s part.
Similarly, we are unwilling to hold that the plaintiff violated a lease provision
agreeing to indemnify defendant where the condition of business closure was not
attributed to any conduct by plaintiff which may have exposed defendant to liability.
Defendant seeks to evade its obligation by pointing to the dependent nature of its
obligation respecting the covenant for indemnification. The authority cited does not
support the defendant’s premise. In Kulawitz v. Pacific Woodenware & Paper Co.
15
(1944) 25 Cal.2d 664, 669, the court stated: “A covenant not to let other premises in the
lessor’s property or permit their use for certain purposes during the existence of the lease
with the covenantee is binding and a breach thereof entitles the lessee to terminate the
lease. [Citation.] The result in such cases is based on the rule that the condition broken
by the covenantor excuses performance by the covenantee.”
Here, plaintiff did not violate any covenant of the lease and nothing in the
authority cited supports the notion that the plaintiff is responsible for the closure of
defendant’s business pursuant to an executive order issued by the governor. Nor does the
cited authority involve a modification of the lease following the tenant’s breach of the
obligation to pay rent, where the modification reaffirmed the tenant’s rent obligation
despite the circumstances.
Defendant also argues that its duty to pay rent is dependent on its right to operate
its business. Again, the authorities cited are inapposite, because in each case, the lessor
violated an express covenant in the lease, which did not occur here. Defendant relies
heavily on the case of Medico-Dental Bldg. Co of Los Angeles v. Horton & Converse
(1942) 21 Cal. 2d 411, where the lease stated that the lessor was not to lease any other
premises in the building to another entity which operated a drug store. A doctor moved
into the building and signed a lease in which he covenanted he would not operate a drug
store, but soon violated that covenant by operating a drug store in the same building. The
original lessee advised the lessor of the breach of the restrictive covenant not to lease to a
drug store, but the lessor was unable to stop the doctor’s operations, so the lessee vacated
16
before another rent payment was due. The court held that the tenant did not breach his
lease by vacating the premises because the lessor, in failing to abate the competing drug
store, violated the restrictive covenant. (Medico-Dental Bldg., supra, 21 Cal.2d at p.
434.)
The above authority does not support an inference that plaintiff breached a
covenant without some showing that plaintiff was responsible for the closure orders
issued by the State of California. Additionally, the authority cited supports our
conclusion that in order to rely on the affirmative defense of breach of a covenant,
defendant was required to vacate the premises. Further, the authorities relied upon by
defendant do not address the all-important fact in this case regarding defendant’s active
participation in successive letter agreements after the declaration of the state of
emergency, reaffirming its obligation to pay back the deferred rent.
Defendant agreed to pay the deferred rents in 2021, so it cannot argue with a
straight face that its duty to pay rent was dependent on its ability to operate its business.
Nor can it have it both ways: reliance on the excuses for nonpayment of rent under the
original, non-modified provisions of the lease, required defendant to vacate the premises,
which defendant did not do. Instead, defendant sought to have it both ways: avoid the
payment of rent during the shutdown, while also avoiding the need to terminate the lease
based on force majeure or Civil Code section 1511, and vacating the premises.
Further, defendant asserts the trial court misconstrued the purpose of the lease as
being for the occupancy of the premises, as opposed to the operation of a business. We
17
disagree. The trial court correctly concluded that while the lease permitted or authorized
defendant to conduct business as a health club on the premises, it by no means required
defendant to do so, and, in fact, authorized defendant to conduct other types of business
on the premises. In other words, the basic object of the lease was for the right to occupy
certain premises in which defendant was permitted to conduct its business. Of note is the
fact that during the period of the shutdown, defendant continued to occupy the premises,
subject to a modification of the lease permitting it to defer rent payments until 2021.
Further, other provisions of the lease permitted defendant to conduct other forms of
business on the premises, so it was not limited to running a health club. Thus,
defendant’s duty to pay rent was not dependent on its ability to conduct business as a
health club.
To summarize, defendant’s tortured interpretation of plaintiff’s obligations,
warranties and covenants under the lease do not aid its position that plaintiff’s claim was
not of probable validity, where defendant agreed to modifications to the lease which
included a reaffirmation of its obligation to pay deferred rent and affirmance of the
lessor’s right to enforce the same.
18
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
19 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483252/ | Filed 11/10/22 Earnix International Trading v. Zhang CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
EARNIX INTERNATIONAL B316331
TRADING, LTD., (Los Angeles County
Super. Ct. No. 20STCV14346)
Plaintiff and Respondent,
v.
KEVIN ZHANG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Malcom Mackey, Judge. Affirmed.
Law Office of Gene H. Shioda and James Alexander Kim
for Defendant and Appellant.
Cabanday Law Group and Orlando F. Cabanday for
Plaintiff and Respondent.
INTRODUCTION
Plaintiff and Respondent Earnix International Trading Inc.
(Earnix) invested in defendant and appellant Kevin Zhang’s real
estate project. Earnix later filed a complaint against Zhang for
fraud, breach of fiduciary duty, and other related claims.1 After
the clerk entered default judgment, Zhang moved to vacate the
judgment and quash service of the summons, claiming he was
never personally served. The trial court denied Zhang’s motion,
his subsequent motion for reconsideration, and his motion to set
aside/vacate default. Zhang timely appealed.2 Because the trial
court’s order denying Zhang’s motion to quash and vacate the
default judgment was supported by substantial evidence, we
affirm.
BACKGROUND
Earnix filed a request for entry of default judgment on June
5, 2020, based on a June 4, 2020 proof of service in which an
unregistered process server, Michael Patini, swore he personally
served Zhang on April 29, 2020, and Zhang’s failure to respond to
the complaint. The request was rejected by the clerk on June 11,
2020 because the proof of service form used by Patini was not the
correct form for proof of service of a summons and complaint.
1 While the complaint named other defendants as well,
Zhang is the only appellant in this appeal.
2 Zhang appealed only from the entry of the default
judgment, but we will liberally construe the notice of appeal to
include an appeal from the subsequent order denying Zhang’s
motion to quash service of the summons and vacate entry of the
default judgment.
2
Earnix filed a second request for entry of default judgment on
June 16, 2020, based on a new proof of service form filed June 12,
2020. In the new proof of service form, Patini testified he served
Zhang at 2:00 p.m. on April 29, 2020, by personal delivery at an
address in Pomona, California. The clerk entered default
judgment the same day.
Six months later, in December 2020, Zhang moved for an
order vacating default and quashing service of the summons. In
support of his motion, Zhang submitted his own declaration
claiming he was not personally served. Instead, Zhang testified
he was at a meeting in Palos Verdes until approximately
3:00 p.m. on the date of alleged service. Zhang also testified that
the Pomona address where he was allegedly served was the
former residence of his parents, but his parents had moved out of
the home “when the home was listed for sale” before the claimed
date of service. Additionally, Zhang submitted a declaration from
Cong Du, a real estate agent who stated he represented the seller
in the sale of the home. Du declared escrow closed on April 1 or 2,
2020. Moreover, Du stated he “gave the keys and remote to access
the property to escrow for the buyer” on the closing date. Du
indicated Zhang was neither the buyer nor the seller of the home.
Du, however, did not testify he was present at the house on the
date of the alleged service, nor that he was with Zhang on that
date.
In March 2021, the trial court denied Zhang’s motion,
finding the second proof of service was facially valid and raised
the presumption of valid service. Moreover, the trial court found
the dispute was “a ‘he said-she said’ type of evidentiary
situation.” It reasoned the sale of the home did not prevent Zhang
from being at the property on the date of purported service.
3
Later, in March 2021, Zhang filed a motion for
reconsideration, again arguing he was not served. His motion
included the grant deed for the home, reflecting a sale date before
the claimed date of service. Additionally, in April 2021, Zhang
filed a motion to set aside/vacate the default judgment pursuant
to Code of Civil Procedure section 437.5. His motion included a
new declaration from Seung Jun Kim. In this new declaration,
Kim claimed he was with Zhang on the date of purported service
from 9:00 a.m. to approximately 4:00 p.m. and Zhang was not
served during that time. Moreover, Kim claimed Zhang could not
have been in Pomona at 2:00 p.m. because they did not finish
their meeting in Palos Verdes until sometime between 3:30 p.m.
and 4:00 p.m.
In May 2021, after hearing argument from the parties, the
trial court denied Zhang’s motion to set aside/vacate default and
his motion for reconsideration. With respect to Zhang’s motion to
set aside/vacate default, the trial court noted it was within its
discretion to accept a process server declaration, or contradictory
evidence, in deciding whether service of a summons and
complaint was validly accomplished. Additionally, the trial court
noted Zhang’s motion for reconsideration was based on different
grounds and added a new witness declaration that could have
been included with the prior motion to quash service of summons.
In sum, the trial court found Zhang failed to offer new or
different facts, circumstances or law that he could not, with
reasonable diligence, have discovered and presented in the prior
motion to quash. Zhang timely appealed.
DISCUSSION
“A defendant who seeks review of an order denying a
motion to quash must ordinarily petition the appellate court for a
4
writ of mandate. (Code Civ. Proc., § 418.10, subd. (c).)” (American
Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383,
387.) “However, ‘a defendant may reserve his jurisdictional
objection on appeal if, after the denial of his motion to quash, he
makes no general appearance but suffers a default judgment,’” as
happened here. (Ibid., fn. omitted.)
“When a defendant challenges the court’s personal
jurisdiction on the ground of improper service of process ‘the
burden is on the plaintiff to prove the existence of jurisdiction by
proving, inter alia, the facts requisite to an effective service.’”
(Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see
Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2022) 4:421.5.)
We review the trial court’s express or implied factual
findings on a motion to quash service under the substantial
evidence standard. (Vons Companies, Inc. v. Seabest Foods,
Inc. (1996) 14 Cal.4th 434, 449; Sonora Diamond Corp. v.
Superior Court (2000) 83 Cal.App.4th 523, 535; Serafini v.
Superior Court (1998) 68 Cal.App.4th 70, 77.) In doing so, we
resolve all conflicts in the relevant evidence “against the
appellant and in support of the order.” (Wolfe v. City of
Alexandria (1990) 217 Cal.App.3d 541, 546.) Thus, our inquiry
here turns on whether the trial court’s finding that Earnix met
its burden to establish effective service was supported by
substantial evidence.
“Substantial evidence is evidence ‘of ponderable legal
significance, . . . reasonable in nature, credible, and of solid
value.’” (Picerne Construction Corp. v. Castellino Villas (2016)
244 Cal.App.4th 1201, 1208.) “‘Substantial evidence . . . is not
synonymous with “any” evidence.’ Instead, it is ‘“‘substantial’
5
proof of the essentials which the law requires.”’” (Roddenberry v.
Roddenberry (1996) 44 Cal.App.4th 634, 651.) We will not
reweigh the trial court’s credibility determination on appeal. (See
Ramos v. Homeward Residential, Inc., (2014) 223 Cal.App.4th
1434, 1440-1441 (Ramos).)
As a threshold matter, we note Zhang’s arguments
concerning the June 4, 2020 proof of service have no bearing in
this appeal, and therefore we will not address them other than to
repeat that the clerk rejected that proof of service. The default
judgment was entered based on the June 12, 2020 proof of
service.
Zhang contends he presented evidence refuting proper
service and thus he shifted the burden to Earnix to present
evidence showing proper service. But Zhang has at most pointed
to a conflict in the evidence: Patini’s valid second proof of service
indicates Zhang was served. Zhang’s contention he was not
served, however, was supported only by his own declaration. Du’s
declaration stated only that the house where Patini claims to
have effectuated service had been sold before the claimed date of
service. As the trial court pointed out, the sale of the home did
not prevent Zhang from being at the residence.
Alternatively, Zhang argues there was no presumption of
valid service as Patini was not a registered process server. The
filing of a statutorily compliant proof of service may create a
rebuttable presumption that service was proper. (Evid. Code,
§ 647; see Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th
1426, 1441-1442.) The rebuttable presumption applies where the
return is furnished by a registered process server. (Evid. Code,
§ 647.) Here, the proof of service indicates Patini was not a
registered California process server. Thus, he was not entitled to
6
the presumption that service was proper. The fact that Patini
was not a registered process server, however, does not itself
render service invalid nor establish that his proof of service is
not to be considered. “There is no requirement that the person
serving notices or a summons must be a registered process
server . . . . A summons may be served by any person who is at
least 18 years of age and not a party to the action.” (City of
Riverside v. Horspool (2014) 223 Cal.App.4th 670, 680, citing
Code Civ. Proc., § 414.10.)
Patini’s second proof of service, executed under penalty of
perjury, constituted substantial evidence of proper service of the
summons and complaint. Moreover, nothing on the face of the
proof of service suggests it is invalid or should not be credited.
The trial court considered the evidence and impliedly made a
credibility determination, crediting Patini over Zhang. As noted
above, we will not reweigh the trial court’s credibility
determination on appeal. (See Ramos, supra, 223 Cal.App.4th at
pp. 1440-1441.)
Finally, Zhang contends Stafford v. Mach (1988) 64
Cal.App.4th 1174 and Floveyor Internat., Ltd. v. Superior Court
(1997) 59 Cal.App.4th 789, two cases relied upon by the trial
court, support his motion because the cases hold a defendant can
“challenge the requisite facts of proper service by rebutting the
claim of proper service, shifting the burden of proof of valid
service to plaintiff.” As noted above, Zhang is correct that
“plaintiff bears the burden of proof on the validity” of service. (Id.
at p. 793.) Earnix, however, did make a prima facie showing of
the validity of service as the second proof of service complied with
applicable statutory requirements. (Id. at p. 795.)
7
“When evidence presented below is conflicting, an appellate
court must presume that ‘“‘“the [trial] court found every fact
necessary to support its order that the evidence would justify. So
far as it has passed on the weight of evidence or the credibility of
witnesses, its implied findings are conclusive.”’” (Taylor-Rush v.
Multitech Corp. (1990) 217 Cal.App.3d 103, 110, quoting Kulko v.
Superior Court (1977) 19 Cal.3d 514, 519, fn. 1, overruled on
other grounds by Kulko v. California Superior Court (1978) 436
U.S. 84.) ‘“[W]here there is substantial conflict in the facts stated,
a determination of the controverted facts by the trial court will
not be disturbed”’ on appeal.” (Stafford v. Mach, supra, 64
Cal.App.4th at p. 1182.)
Zhang has failed to establish any basis for disturbing the
trial court’s determination that he was properly served with the
summons and complaint.
8
DISPOSITION
The judgment against Zhang is affirmed. The order denying
Zhang’ motion to quash service of summons is also affirmed.
Earnix is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
9 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483207/ | Little v Steelcase, Inc. (2022 NY Slip Op 06406)
Little v Steelcase, Inc.
2022 NY Slip Op 06406
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (253/22) CA 20-01382.
[*1]DEBORAH A. LITTLE, PLAINTIFF-APPELLANT,
vSTEELCASE, INC., DEFENDANT-RESPONDENT, ET AL., DEFENDANT.
MEMORANDUM AND ORDER
Motion for reargument or leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483220/ | Brioso v City of Buffalo (2022 NY Slip Op 06381)
Brioso v City of Buffalo
2022 NY Slip Op 06381
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, AND WINSLOW, JJ.
811 CA 22-00648
[*1]RAQUEL BRIOSO, PLAINTIFF-APPELLANT,
vCITY OF BUFFALO, ERIE CANAL HARBOR DEVELOPMENT CORP., LECHASE CONSTRUCTION SERVICES, LLC, PINTO CONSTRUCTION SERVICES, INC., AND BE OUR GUEST, LTD., DEFENDANTS-RESPONDENTS. (APPEAL NO. 2.)
HAGERTY & BRADY, BUFFALO (DANIEL J. BRADY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
NASH CONNORS, P.C., BUFFALO (BETHANY RUBIN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS ERIE CANAL HARBOR DEVELOPMENT CORP., LECHASE CONSTRUCTION SERVICES, LLC, AND BE OUR GUEST, LTD.
BARCLAY DAMON LLP, BUFFALO (VINCENT G. SACCOMANDO OF COUNSEL), FOR DEFENDANT-RESPONDENT PINTO CONSTRUCTION SERVICES, INC.
Appeal from an order of the Supreme Court, Erie County (Mark A. Montour, J.), entered April 19, 2022. The order, among other things, granted the motion of defendants City of Buffalo, Erie Canal Harbor Development Corp., LeChase Construction Services, LLC, and Be Our Guest, Ltd., for leave to reargue and, upon reargument, granted in part the cross motion of those defendants for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483256/ | Filed 11/10/22 Bazan v. Curry CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARIA BAZAN,
Plaintiff and Appellant, E075075
v. (Super. Ct. No. RIC1610349)
TAROO CURRY et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.
Affirmed.
Jass Law and Jeremy Jass; Law Offices of Eric K. Chen and Samantha Larsen, for
Plaintiff and Appellant.
Disenhouse Law and Bruce E. Disenhouse; Arias & Lockwood and Christopher D.
Lockwood, for Defendants and Respondents.
1
I.
INTRODUCTION
Appellant Maria Bazan called 911 because she was concerned for her daughter,
Natalie Bazan, who did not come home the night before. She told the responding
1
Riverside County Sheriff’s Deputies that she thought Natalie was in danger inside her
ex-boyfriend’s apartment. The deputies repeatedly knocked on the apartment’s door and
windows, but did not see or hear any response. Maria asked the deputies to break into the
apartment, but they declined to do so because they did not believe they could enter the
apartment lawfully. Instead, the deputies continued investigating, sought advice on how
to proceed from their supervisor, repeatedly banged on the door, talked to neighbors and
the property manager, and went into adjacent apartments to listen for sounds from the
boyfriend’s apartment.
The deputies eventually knocked on the apartment’s door nonstop for about five to
10 minutes. The ex-boyfriend answered the door and appeared to have just woken up and
had multiple deep lacerations on his arms. This prompted the deputies to enter the
apartment, where they found Natalie dead. It was later determined that Natalie died of
asphyxiation caused by her ex-boyfriend choking her with his hands.
1
Because appellant and Natalie share the same last name, we refer to them by
their first names for clarity. We mean no disrespect.
2
Maria sued the deputies, their supervisor, and the County of Riverside for various
negligence claims. The trial court granted summary judgment to defendants, and Maria
appeals. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Natalie began dating Miguel Nunez when they were in high school. Their
relationship continued after Natalie graduated in 2014.
In April 2015, Natalie sought a Domestic Violence Restraining Order (DVRO)
against Nunez. In her application for the DVRO, Natalie stated that Nunez had verbally
abused her by calling her names and making threatening statements, threw her phone out
of the car window while driving, and repeatedly contacted her despite her telling him to
stop. He also hacked into her social media accounts, changed the passwords, and
publicized private information about her on her social media pages.
The trial court granted a temporary DVRO, but eventually dismissed the case after
Natalie failed to appear for the hearing on her DVRO request. The temporary DVRO
therefore expired in April 2015.
About four months later, on August 11, 2015, Natalie told her best friend, Jasmin
Velasquez, that she had plans for the day, but did not say what they were. Later that day,
Natalie left her house around 4:00 or 5:00 p.m. without telling Maria where she was
going. Natalie was supposed to pick up Maria around 8:00 p.m., but she did not show up.
Maria called Natalie and it went straight to voicemail.
3
Velasquez tried calling Natalie but she did not pick up. Around 6:00 a.m. the
following morning, Velasquez got a Snapchat message from Natalie that said she was
with a “friend” and was going to a friend’s house in Santa Ana “‘to get away from things
for a bit’” because she had “a lot on her plate.” The message did not make sense to
Velasquez and did not sound like Natalie wrote it, so she drove to Nunez’s apartment.
Velasquez saw Natalie’s car in the apartment complex parking lot. The car looked
normal to Velasquez. Velasquez called Maria and her son, Josue Robledo, and the three
of them went to Nunez’s apartment around 8:00 a.m. They knocked, but there was no
response. Velasquez heard only the sound of an air conditioner running. Maria thought
she heard struggled breathing, but Velasquez did not hear anything other than the air
conditioner.
Robledo called 911. Riverside County Sheriff’s Deputies Taroo Curry and Cesar
Martinez responded to the call and arrived at Nunez’s apartment around 9:00 a.m.
Robledo told Curry that Natalie had previously been in a relationship with Nunez and that
Nunez abused her, although Natalie did not report it to law enforcement.
Velasquez showed the deputies the Snapchat message and explained that she did
not think it was from Natalie. She also told them about the temporary DVRO and that
Natalie had missed the hearing for a longer DVRO. Velasquez left to go to work shortly
afterward.
4
The deputies knocked on the doors and windows of Nunez’s apartment multiple
times without a response. They confirmed with the apartment complex manager that they
were at the right apartment.
By this point, Maria and Robledo began repeatedly asking the deputies to break
into Nunez’s apartment. They declined to do so because they thought they had no legal
grounds to enter the apartment. At one point, Maria told the deputies she heard moaning
or shouting inside the apartment. The deputies, who were standing next to Maria, did not
hear anything.
The deputies asked Maria to go to her car and let them do their job. Maria stayed
in or around her car for the next few hours.
The deputies continued knocking repeatedly on Nunez’s apartment’s door and
windows. They continued to hear only the sound of the air conditioner.
Martinez then spoke with Nunez’s next-door neighbor. The neighbor said she had
not seen Nunez for about two or three days and had not recently heard any sounds
coming from his apartment. The neighbor let Martinez into her apartment so he could
listen for sounds coming from Nunez’s apartment. Again, Martinez did not hear any
sounds, nor did the neighbor.
With the consent of the property manager, the deputies went in to the vacant
apartment on the other side of Nunez’s apartment. They did not hear anything coming
from Nunez’s apartment, even though they placed their ears against the wall.
5
Curry asked dispatch to “ping” Natalie’s cell phone. The cell service provider
reported that the her phone’s last known location was near a cell phone tower about a
mile away from Nunez’s apartment. The exact location of her phone was indeterminable,
however, because it had been off for about three hours and 15 minutes.
During the investigation of Nunez’s apartment, Curry called his supervisor,
Sergeant Deputy George Reyes, multiple times seeking guidance. Reyes told Curry there
was no legal basis to enter the apartment, but suggested additional things to investigate to
determine if there was a legal ground to enter, such as signs of a struggle inside.
Curry and Martinez continued knocking and listening for sounds inside Nunez’s
apartment, but heard nothing. Around 1:45 p.m., nearly five hours after arriving at the
scene, the deputies decided to knock a final time. They pounded on the door and
windows for five to 10 minutes.
Nunez eventually opened the door. He looked like he had just woken up and had
multiple deep lacerations on his arms. The deputies decided the lacerations provided
exigent circumstances to lawfully enter Nunez’s apartment. Martinez entered and found
Natalie dead inside.
Maria sued Curry, Martinez, Reyes, and the County of Riverside (County) for
three causes of action. The trial court sustained defendants’ demurrer to the first two
causes of action without leave to amend. Maria does not challenge that ruling on appeal.
6
Maria’s third cause of action for “neglect of duty” in her operative Second
Amended Complaint (SAC) alleges that the deputies had a duty to Natalie to enter
Nunez’s apartment or leave the area, and they breached that duty. At the direction of
Reyes, however, the deputies declined to enter the apartment while staying at the
premises. Maria alleges that their failure to enter the apartment or leave increased the
risk of harm to Natalie. Maria claims they could have prevented Natalie’s death if they
had either entered or left the premises as opposed to remaining at the scene of the murder.
Instead, the deputies stayed outside the apartment for almost five hours, confining
Nunez and Natalie inside and making Nunez “desperate.” Maria thus asserted the
deputies, at Reyes’s direction, breached a duty they owed Natalie. And because the
officers are County employees, Maria alleged the County is liable for their “neglect of
duty.”
Maria also alleged in her third cause of action that she and Robledo developed a
“special relationship” with Curry and Martinez. Maria claimed that the deputies
“assumed a greater duty than that was generally owed to the public” by making promises
to Maria and Robledo, but they breached that duty by failing to enter Nunez’s apartment
while remaining on the premises.
Defendants moved for summary judgment on Maria’s third and only remaining
cause of action for neglect of duty. The trial court granted the motion and entered
judgment for defendants. Maria timely appealed.
7
III.
DISCUSSION
Maria contends the trial court erroneously granted defendants’ motion for
summary judgment. We disagree.
A. Summary Judgment Principles and 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
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.)
8
B. Evidentiary Issues
In granting summary judgment, the trial court overruled 10 of Maria’s objections
2
while sustaining all of defendants’ objections. Although Maria acknowledges these
rulings in her opening brief, she provides no argument as to why they were incorrect. By
failing to challenge the trial court’s rulings on the objections, she has forfeited any
argument that the rulings were incorrect. (See Roe v. McDonald’s Corp. (2005) 129
Cal.App.4th 1107, 1114.)
We therefore do not consider Maria’s evidence that the trial court excluded by
sustaining defendants’ objections. (Villanueva v. City of Colton (2008) 160 Cal.App.4th
1188, 1196.) We also decline to address Maria’s arguments on the objections raised for
the first time on appeal. (See Cox v. Griffin (2019) 34 Cal.App.5th 440, 454.)
C. Analysis
To succeed on her neglect of duty claim, Maria had to show that defendants owed
her a duty of care. Maria argues that the deputies should have (1) entered Nunez’s
apartment sooner, (2) left the premises in order to deescalate the situation, (3) checked if
Nunez had a warrant out for his arrest, (4) allowed the property manager to enter the
apartment based on a provision in Nunez’s lease that allowed him to enter for
emergencies, and/or (5) applied for a search warrant of Nunez’s apartment. She claims
2
The trial court declined to rule on the first 18 of Maria’s objections because they
concerned her first two causes of action, which defendants unnecessarily addressed in
their motion for summary judgment because they forgot the trial court had sustained their
demurrer to those causes of action without leave to amend.
9
that the deputies “owed a duty of care to perform at least one of the[se] reasonable
options available to them” and breached that duty by failing to perform them.
Maria’s third, fourth, and fifth contentions are not alleged anywhere in the SAC.
Nothing in Maria’s third cause of action suggests that she believed the deputies were
negligent because they did not check if Nunez had an arrest warrant, did not allow the
property manager to enter Nunez’s apartment, and did not apply for a search warrant for
his apartment.
Rather, Maria alleged in her operative SAC that Curry and Martinez’s “negligent
performance of their duty consists of staying around [the apartment] but neither entering
the residence nor leaving the property, which operated to confine” Nunez and Bazan in
the apartment, which drove Nunez desperate. Reyes’s alleged negligence was directing
Curry and Martinez “not to enter the apartment, but [to] remain on the scene.” Reyes
also negligently failed to correctly instruct the deputies on when they may enter a
residence without a warrant due to exigent circumstances. According to Maria, the
circumstances at Nunez’s apartment “were sufficient for the warrantless entry into . . .
[the] apartment” and thus the officers were negligent for refusing to enter.
The third cause of action goes on to repeatedly allege that the deputies’
“affirmative acts of staying around” and their “extended presence near” the apartment
increased Natalie’s risk of harm. Maria then claims that Natalie’s murder “could have
been avoided had [the deputies] acted quickly to enter or leave [] Nunez’s apartment
before [he] grew desperate.” Again, Maria alleges that Curry and Martinez’s “negligent
10
performance of their duty consists of staying around but neither entering the residence
nor leaving the property.”
In short, Maria did not allege in her third cause of action that the deputies should
have checked if Nunez had a warrant out for his arrest, allowed the property manager to
enter, or applied for a search warrant for his apartment. Instead, the claim is based
entirely on Maria’s allegation that the deputies were negligent because they did not enter
Nunez’s apartment, but instead “stay[ed] around” the premises, thereby preventing Maria
and Robledo from entering. We therefore do not consider Maria’s contentions that the
deputies were negligent because they failed to verify whether Nunez had an arrest
3
warrant, precluded the property manager from entering Nunez’s apartment, and failed to
4
apply for a search warrant for his apartment. (See Jacobs v. Coldwell Banker
Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 [considering theory of
negligence alleged in complaint only and declining to address “unpled theory of
liability”].) We will consider only Maria’s allegations in the SAC that the deputies had a
duty to enter Nunez’s apartment or leave the premises.
3
Regardless, the trial court sustained defendants’ objections to the hearsay
evidence Maria relies on to support her contention that the property manager told Curry
and Martinez that he could lawfully enter Nunez’s apartment under the terms of his lease.
Maria does not challenge that ruling on appeal, so there is no competent evidence in the
record supporting her argument that the property manager could have lawfully entered
Nunez’s apartment pursuant to his lease agreement.
4
In any event, as defendants correctly observe, there was no outstanding warrant
for Nunez’s arrest. Although there was a request for an arrest warrant for his failure to
appear at a hearing on a fare evasion citation, there is no evidence that a warrant was ever
issued.
11
Defendants contend that, even if they were negligent for refusing to enter Nunez’s
apartment and staying on the premises, they are immune from liability under Government
5
Code section 820.2 (section 820.2.). We agree.
Section 820.2 reads in full: “Except as otherwise provided by statute, a public
employee is not liable for an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in him, whether or not
such discretion be abused.”
Discretionary decisions that are the result of “‘personal deliberation, decision and
judgment”’ generally are entitled to immunity under section 820.2. (McCorkle v. City of
Los Angeles (1969) 70 Cal.2d 252, 261-262 (McCorkle).) Section 820.2 immunity thus
applies only to “deliberate and considered policy decisions, in which a ‘[conscious]
balancing [of] risks and advantages . . . took place.’” (Caldwell v. Montoya (1995) 10
Cal.4th 972, 981.)
“Discretionary immunity under section 820.2 has been found to apply to many
areas of police work.” (Conway v. County of Tuolumne (2014) 231 Cal.App.4th 1005,
1015 (Conway).) Law enforcement’s discretionary decisions that have received section
820.2 immunity include the decision to pursue a fleeing vehicle, the decision to
5
Maria argues at length that she had a “special relationship” with Curry and
Martinez because of the statements they made at the scene. We need not decide the issue
because we conclude defendants are immune from negligence liability, whatever the
source of any duty they owed Maria.
12
investigate an accident or not, the decision not to make an arrest, and the decision
whether to use official law enforcement authority to resolve a dispute. (Ibid.)
Law enforcement is not immune under section 820.2, however, for conduct that is
6
merely “ministerial.” (Conway, supra, 231 Cal.App.4th at p. 1015.) An act is
ministerial if it amounts “‘only to an obedience to orders, or the performance of a duty in
which the officer is left no choice of his own.’” (McCorkle, supra, 70 Cal.2d at pp. 261-
262.) Ministerial acts thus “merely implement a basic policy already formulated.”
(Caldwell v. Montoya, supra, 10 Cal.4th at p. 981; see also Center for Biological
Diversity v. Department of Forestry & Fire Protection (2014) 232 Cal.App.4th 931, 952
[“‘A ministerial duty is an obligation to perform a specific act in a manner prescribed by
law whenever a given state of facts exists, without regard to any personal judgment as to
the propriety of the act.’”].)
Defendants rely primarily on three cases in which law enforcement’s actions were
held to be discretionary decisions entitled to section 820.2 immunity while Maria relies
mostly on two cases finding officers were not entitled to immunity. We find defendants’
authority more applicable here.
The plaintiffs in Michenfelder v. City of Torrance (1972) 28 Cal.App.3d 202
(Michenfelder) alleged police officers failed “to take appropriate action to protect” the
plaintiffs’ property. The plaintiffs operated a shop on leased property under a franchise
6
Law enforcement may not be immune under section 820.2 if “public policy
dictates against immunity.” (Conway, supra, 231 Cal.App.4th at p. 1015.) Although
Maria acknowledges this principle, she does not argue it applies here.
13
agreement, but the franchisor and other defendants entered the shop, removed a window,
changed the locks, and got rid of the plaintiffs’ goods. (Id. at p. 203.) The plaintiffs
alleged city policy knew about the incident, investigated the scene, yet did nothing and
did not notify the plaintiffs of what had happened. (Id. at p. 204.)
The Michenfelder court held the officers were immune from the plaintiffs’
negligence suit under section 820.2 because their decision not to act was discretionary.
The court rejected the plaintiffs’ argument that “once a city has decided to employ police
and send them to the scene of an occurrence, the action of the officers there is
ministerial.” (Michenfelda, supra, 28 Cal.App.3d at p. 207.) The Michenfelder court
held that the officers’ decision to act (or not) and to use their “official authority on any
particular occasion is peculiarly a matter of judgment and discretion.” (Id. at p. 206.)
The officers’ failure to act while the defendants trespassed on and damaged the plaintiffs’
property was a discretionary decision because the officers “were obliged to exercise their
own discretion after they had observed what was happening and had listened to the
explanation of the persons present.” (Ibid.)
In Watts v. County of Sacramento (1982) 136 Cal.App.3d 232 (Watts), police
officers decided to intervene and resolve a land dispute between the plaintiffs and a
landowner by ordering the plaintiffs off the land. The Court of Appeal held the officers’
conduct was discretionary under section 820.2 because, like the officers in Michenfelder,
“the officers were obliged to exercise their discretion after they had observed what was
14
happening and had listened to the explanation of those present” to settle the dispute.
(Watts, supra, at p. 235.)
The third case defendants mostly rely on is Conway, supra, 231 Cal.App.4th 1005.
There, the defendant-officers used tear gas to carry out an arrest. (Id. at p. 1018.) The
Conway court held they were entitled to section 820.2 immunity because once they
decided to arrest the suspect, “they were vested . . . with discretion to determine the
means by which the arrest should be carried out.” (Id. at p. 1018.) The officers used that
discretion “by observ[ing] and listening” the premises before making the decision to use
tear gas. (Ibid.) This decision required “‘comparisons, choices, judgments, and
evaluations,’” which “‘comprise[] the very essence of the exercise of ‘discretion.’”
(Ibid.)
Maria, on the other hand, relies mostly on McCorkle, supra, 70 Cal.2d 252, and
Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923 (Carpenter). Both are
distinguishable.
In McCorkle, a police officer was summoned to a car accident scene. McCorkle,
supra, 70 Cal.2d at p. 259.) When he arrived, he spoke with the plaintiff, who was
involved in the accident, while standing on the corner of the intersection. (Ibid.) Then,
without taking any precautions, the officer walked into the intersection with the plaintiff
and told the plaintiff to show him the skid marks. (Ibid.) While doing so, she was hit by
a car. (Ibid.)
15
The McCorkle court held that the officer’s acts were ministerial because “asking
the plaintiff . . . to come into the intersection involved no [] deliberation, decision, or
judgment.” (Conway, supra, 231 Cal.App.4th at p. 1019.) Rather, the officer, who had
investigated “‘a few hundred’” accidents, was only implementing established policy,
which directed him to ask the plaintiff to walk into the intersection. (McCorkle, supra,
70 Cal.2d at p. 262.) This ministerial act of following routine, established policy as part
of his investigation caused the plaintiff’s injury, not the officer’s exercise of his
“discretion, if any.” (Ibid.) The officer therefore was not entitled to section 820.2
immunity. (Ibid.)
Carpenter involved the police’s duty to warn a witness that his life was in danger.
After the plaintiff was robbed at gunpoint, he gave a description of the assailant to
Detective Williams and identified the defendant (Jenkins) during a preliminary hearing as
his assailant. (Carpenter, supra, 230 Cal.App.3d at p. 927.) Jenkins approached the
plaintiff after the hearing and made threatening comments. (Ibid.) The plaintiff asked
Williams about Jenkins’s criminal history and whether he should be concerned for his
safety. (Ibid.) Williams told the plaintiff “that he did not have anything to worry about,
that Jenkins was ‘a street punk’ who was ‘basically into’ grand theft auto and small
robberies.” (Ibid.) About two months later, the plaintiff was shot several times by an
unknown assailant. (Ibid.)
16
The plaintiff sued the City of Los Angeles, which argued it was immune under
section 820.2. (Carpenter, supra, 230 Cal.App.3d at p. 935.) The City focused on
Williams’s “statement to [the plaintiff] regarding the danger, or lack thereof, posed by
Jenkins,” and argued that “Williams exercised his discretion when he determined exactly
how much to tell appellant about Jenkins.” (Ibid.) The Carpenter court held that
Williams’s “choice . . . , if any” of what to tell the plaintiff about Jenkins was not a
“‘basic policy decision” entitled to immunity. (Ibid.)
This case falls more in line with Michenfelder, Watts, and Conway than McCorkle
and Carpenter. In both McCorkle and Carpenter, the officers were not entitled to
immunity because their challenged acts did not involve an actual exercise of discretion
that reflected a conscious balancing of risks and advantages. (Caldwell v. Montoya,
supra, 10 Cal.4th at p. 981.) There was no indication the officer in McCorkle deliberated
before walking into the intersection with the plaintiff without imposing any safety
precautions. The detective’s choice, “if any,” about what to tell the Carpenter plaintiff
about his assailant did not reflect a conscious, deliberate weighing of risks and benefits.
(Caldwell v. Montoya, supra, 10 Cal.4th at p. 981.) It was not a “basic policy decision”
subject to the detective’s exercise of his discretion. (Ibid.)
By contrast, the officers in Michelfelder, Watts, and Conway exercised
considerable discretion in acting (or not acting) in the way they did. In all three cases,
the officers made their challenged decisions after investigating, speaking with potential
witnesses and interested parties, evaluating the situation, and then acting (or not). To
17
make these decisions, the officers did not have to “merely implement a basic policy
already established” because they were “left with no choice” but to apply the policy to
the facts at hand. Instead, their decisions required them to gather facts, evaluate their
options, and then proceed according to their professional judgment.
The same is true here. Maria emphasizes that what the officers knew about the
situation showed that there were exigent circumstances. She notes that the officers were
told that Maria, Velasquez, and Robledo were concerned Nunez had hurt Natalie. She
notes that the officers were made aware of Nunez’s past instances of domestic violence,
Natalie’s request for a DVRO, the unusual Snapchat message sent from Natalie’s
account, that Maria thought she heard someone inside (while the officers did not hear
anything), and the fact that Natalie’s phone had been off for several hours but was last
located about a mile away from Nunez’s apartment.
Defendants, for their part, contend there was no exigency until Nunez opened the
door. They emphasize that Curry and Martinez did not hear anything in Nunez’s
apartment for except for an air conditioner running, despite knocking repeatedly and
listening to the apartment from both sides. Defendants note that Curry and Martinez
continuously evaluated the situation with Reyes, who concurred there still were no
grounds for warrantless entry based on his evaluation of the facts as reported to him. As
defendants repeatedly highlight, no one knew whether Nunez or Natalie was inside the
apartment.
18
The evidence the parties respectively emphasize shows that the officers had to
consider a variety of facts in deciding what to do. During their hours-long investigation,
Curry, Martinez, and Reyes spoke with multiple witnesses, used their senses to evaluate
the scene, and used their professional judgment on how to investigate the situation and
for how long to do so. Like the officers in Michelfelder, Watts, and Conway, Curry,
Martinez, and Reyes exercised considerable discretion by making a series of decisions on
how to best proceed based on the information they learned and what they perceived at the
scene. Even if some facts suggested Natalie could be in danger inside Nunez’s
apartment, the lack of any sounds coming from the apartment other than the air
conditioning and the deputies’ repeated unanswered knocks suggested that no one was
inside the apartment. The deputies were required to use “‘personal deliberation, decision,
and judgment’” in determining whether to enter Nunez’s apartment, leave, or conduct
further investigation. (McCorkle, supra, 70 Cal.2d at pp. 260-261.)
Ultimately, Curry, Martinez, and Reyes made a deliberate and considered decision
together not to enter Nunez’s apartment after remaining on the scene for several hours to
investigate by various means. These discretionary decisions are entitled to immunity
under section 820.2. As a result, defendants are immune from liability under section
820.2 for Maria’s third cause of action. And because they are immune, so is the County.
(Gov. Code, § 815.2, subd. (b); O'Toole v. Superior Court (2006) 140 Cal.App.4th 504,
509.) We therefore affirm the trial court’s grant of summary judgment to defendants.
19
IV.
DISPOSITION
The judgment is affirmed. Defendants may recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
20 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483139/ | Zoom Tan, Inc. v Sheridan Plaza, LLC (2022 NY Slip Op 06411)
Zoom Tan, Inc. v Sheridan Plaza, LLC
2022 NY Slip Op 06411
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: WHALEN, P.J., SMITH, CENTRA, LINDLEY, AND CURRAN, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (407/22) CA 21-00665.
[*1]ZOOM TAN, INC., PLAINTIFF-RESPONDENT,
vSHERIDAN PLAZA, LLC, DEFENDANT-APPELLANT.
MEMORANDUM AND ORDER
Motion for leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483165/ | People v Osgood (2022 NY Slip Op 06361)
People v Osgood
2022 NY Slip Op 06361
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
763 KA 21-00549
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vJASON B. OSGOOD, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (Kristina Karle, J.), rendered February 24, 2021. The judgment convicted defendant upon his plea of guilty of burglary in the third degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20), defendant contends that his waiver of the right to appeal is invalid and that the sentence is unduly harsh and severe. Contrary to defendant's contention, the record establishes that he knowingly, intelligently, and voluntarily waived his right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), and we note that County Court used the appropriate model colloquy with respect to the waiver of the right to appeal (see generally People v Thomas, 34 NY3d 545, 567 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; People v Jeffords, 185 AD3d 1417, 1417-1418 [4th Dept 2020], lv denied 35 NY3d 1095 [2020]). The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the bargained-for sentence (see Lopez, 6 NY3d at 255-256).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483225/ |
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https://www.courtlistener.com/api/rest/v3/opinions/8483227/ | USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 1 of 32
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13761
____________________
KELLY B. MATHIS,
an individual,
K.B. MATHIS, PA,
a Florida professional association,
Plaintiffs-Appellants,
versus
DONALD ESLINGER,
an individual,
JAMES “SAMMY” GIBSON,
an individual,
APRIL KIRSHEMAN,
an individual,
PAMELA J. BONDI,
an individual,
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 2 of 32
2 Opinion of the Court 20-13761
NICHOLAS COX,
an individual,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cv-00274-BJD-JRK
____________________
Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
For several years, Florida attorney Kelly Mathis and his law
firm, K.B. Mathis, PA, represented Allied Veterans of the World
and Affiliates, Inc. (“AVW”). AVW and related entities (its “affili-
ates”) operated about 50 internet cafes in Florida where customers
allegedly used computers to engage in illegal slot-machine gam-
bling.
Law enforcement officials investigated AVW’s operations
and ultimately charged approximately 50 people, including Mathis,
with racketeering and other crimes under Florida law. As part of
the investigation, officers searched the law firm’s offices, seized its
records, and froze its bank accounts. Initially, a jury found Mathis
guilty of nearly all the charged offenses. But after a Florida
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 3 of 32
20-13761 Opinion of the Court 3
appellate court vacated his convictions, the State dropped the
charges against Mathis.
Mathis filed this action, bringing claims under 42 U.S.C.
§ 1983 against Donald Eslinger, Seminole County Sheriff; James
Gibson, a Captain with the Seminole County Sheriff’s Department;
April Kirsheman, general counsel to the Seminole County Sheriff’s
Department; Pam Bondi, Florida Attorney General; and Nicholas
Cox, an attorney with the Statewide Prosecutor Office of the At-
torney General. According to the amended complaint, the affidavit
prepared to secure Mathis’s arrest included false statements and
omitted material information. After eliminating the false state-
ments and adding the omitted information, the amended com-
plaint alleged, there was no probable cause for Mathis’s arrest. The
district court dismissed the amended complaint, determining for
each claim that the defendants were entitled to absolute immunity
or qualified immunity. After careful consideration and with the
benefit of oral argument, we affirm.
I. BACKGROUND
This case arises out of actions that Mathis and the law firm
took while providing legal representation to, or lobbying on behalf
of, AVW, its affiliates, and individuals associated with these enti-
ties. In this section, we begin by reviewing how AVW’s internet
cafes operated. Next, we discuss the work that Mathis and the law
firm performed for AVW, its affiliates, and related individuals. We
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 4 of 32
4 Opinion of the Court 20-13761
then discuss the criminal proceedings against Mathis. We conclude
this section by setting forth the procedural history of this case. 1
A. AVW’s Internet Cafes
Beginning in 2007, AVW and its affiliates opened internet
cafes in Florida. Customers would purchase internet time to use at
the cafes’ computers, paying about 20 cents per minute. When a
customer purchased internet time, he received free entries into
promotional sweepstakes.
Customers would play games on the computers to reveal
whether they had a winning sweepstakes entry. The games had
names like Captain Cash, Lucky Shamrocks, Smokin 7’s, and
Money Bunny. Each game displayed “the results of the sweep-
stakes entries by graphic animation that simulated the spinning of
slot machine reels.” Doc. 64 ¶ 14. 2
If the simulated spin revealed that the customer had a win-
ning sweepstakes entry, he would receive credits. The customer
1 The facts recited in this section are taken from the amended complaint,
which is the operative complaint. See Hunt v. Aimco Props., L.P., 814 F.3d
1213, 1218 n.2 (11th Cir. 2016) (“At the motion to dismiss stage, we accept the
well-pleaded allegations in the complaint as true and view them in the light
most favorable to the [non-movant].”). We also consider the content of the
affidavit that was submitted to the state court judge to obtain Mathis’s arrest
warrant because the affidavit was “referred to in the complaint, central to the
plaintiff’s claim[s], and of undisputed authenticity.” Luke v. Gulley (Luke I),
975 F.3d 1140, 1144 (11th Cir. 2020) (internal quotation marks omitted).
2 “Doc.” numbers are the district court’s docket entries.
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20-13761 Opinion of the Court 5
could use the credits to play additional rounds of the games or re-
deem the credits for cash. When a customer used up his credits, he
could purchase more internet time to receive additional sweep-
stakes entries and continue playing the games. Some customers
spent tens of thousands of dollars at the cafes, purchasing more
than 100,000 minutes of internet time to play the sweepstakes
games and try to win cash prizes.
The cafes operated for several years and generated over $300
million in revenue. According to AVW, it paid out approximately
65 percent of the proceeds it received as prizes to customers and
gave more than $5 million to charities supporting veterans.
B. Mathis’s Representation of AVW
Over a six-year period, Mathis and his law firm performed
legal work for AVW and its affiliates. For this work, Mathis and the
law firm earned substantial fees—more than $3 million. The ser-
vices Mathis and the law firm provided included giving legal advice
related to cafe operations; lobbying government officials on
AVW’s behalf; and representing, in civil and criminal litigation,
AVW, its affiliates, and related individuals.
1. Services Related to Cafe Opening and Operations
Mathis and the law firm regularly provided legal advice and
services to AVW and the affiliates about the operation of the cafes.
Before opening any cafes, AVW sought legal advice from
Mathis about whether it could legally operate the cafes under
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 6 of 32
6 Opinion of the Court 20-13761
Florida law. Mathis advised AVW of the parameters under which
it could conduct sweepstakes games.
After receiving this advice, AVW began to open cafes. For
each location, AVW set up a separate affiliate, which was a subsid-
iary of AVW, to operate the cafe. Jerry Bass and Johnny Duncan,
who together controlled AVW, met with Mathis to decide where
each new affiliate would be located. Mathis and his law firm then
would prepare and file the paperwork to create the new affiliate.
Mathis served as the registered agent for AVW and most of the af-
filiates.
Once the cafes began operating, Mathis and the law firm ad-
vised AVW and the affiliates on business issues that arose. When
some of the affiliates’ landlords complained about the cafes’ opera-
tions, Mathis met with Bass and Duncan to come up with a solu-
tion. Together, they created a new policy for AVW and the affili-
ates, which instructed employees to avoid “excessive police calls.”
Doc. 74-4 at 14. AVW and the affiliates relied on the law firm to
communicate the new policy, and they instructed employees at the
cafes to call the law firm if they had any questions.
AVW also relied on Mathis and his law firm to communicate
with third parties who had questions about the sweepstakes. AVW
advised cafe employees to direct any questions from customers or
the media about AVW or how the sweepstakes operated to Mathis
or another attorney at his law firm.
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20-13761 Opinion of the Court 7
In 2009, when customer Jeannette Hinkson had detailed
questions about how the cafes operated, AVW relied on Mathis to
answer her questions. In a single year, Hinkson spent over $66,000
at a cafe. After AVW reported to the Internal Revenue Service
(“IRS”) that Hinkson received over $48,000 in winnings for the
year, the IRS attempted to collect taxes on this amount. Hickson
did not believe that the entire amount should be taxed as income
and requested additional documentation from AVW to support her
position that she suffered a net loss that year from playing sweep-
stakes at the cafes.
Mathis responded to Hickson on AVW’s behalf. He in-
formed her that AVW did not have the additional documentation
she requested. He told her that the company’s only records of the
amount of internet time she had purchased were “the Attorney
General sheets that we report to the Florida Attorney General
every year” and that, to compile this information, the company
would need “to sift through a warehouse” full of documents. Doc.
74-3 at 31. But, in fact, no such sheets or reports were submitted to
the Florida Attorney General. And, contrary to Mathis’s statement
about the need to sift through a warehouse for the information
Hickson requested, the company maintained data on its computer
system showing how much internet time each customer pur-
chased.
2. Lobbying Work
Mathis and his law firm also performed lobbying activities
for AVW and its affiliates. When AVW sought to open cafes in new
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8 Opinion of the Court 20-13761
cities, Mathis would meet with local government officials and law
enforcement officers to persuade them of the legality of AVW’s op-
erations. When Florida’s legislature and local governments consid-
ered laws or ordinances that would have restricted the cafes’ oper-
ations, AVW again relied on Mathis to lobby on its behalf.
In performing these activities, Mathis answered questions
and provided government officials with information about how the
cafes operated. For example, in 2011, when Seminole County con-
sidered an ordinance that would bar the operations of the internet
cafes, Mathis told county commissioners that AVW and its affiliates
were permitted to operate the sweepstakes under Florida law and
that there was neither a statute prohibiting the cafes’ business nor
a decision by a judge saying that AVW was operating illegally.
When someone mentioned that the cafes’ customers included
compulsive gamblers who were losing tens of thousands of dollars
at the cafes, Mathis denied it, saying that customers usually spent
only 20 to 30 dollars at a time. Notably, Mathis made this statement
after he communicated with Hinkson, who told him that she had
lost tens of thousands of dollars.
AVW also relied on Mathis and his law firm to communicate
with local governments to verify that AVW and its affiliates were
complying with ordinances regulating the cafes. A Leon County
ordinance required AVW to place $50,000 in a trust account to
cover any prizes won in sweepstakes operated in that county.
Mathis submitted a sworn affidavit certifying to the county that the
law firm had received a $50,000 deposit from AVW and was
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 9 of 32
20-13761 Opinion of the Court 9
holding the money in its trust account, as required by the ordi-
nance. But records from the law firm’s trust account showed no
such deposit.
3. Representation of AVW, Its Affiliates, and Related In-
dividuals in Criminal and Civil Litigation
Mathis and the law firm also represented AVW, the affili-
ates, and related individuals in civil and criminal litigation.
Mathis and the firm represented AVW and individuals who
worked at the cafes in several criminal cases. In 2008, law enforce-
ment officers in Pinellas County arrested James Michael Hill, who
managed a cafe, and charged him with gambling-related state
crimes. The officers seized more than 60 “slot machines,” which
were the computers customers used at the cafe. In the criminal pro-
ceedings, Mathis represented Hill, who ultimately pled no-contest
to 12 counts of possession of a slot machine. In connection with
Hill’s guilty plea, the court ordered the slot machines destroyed.
Mathis persuaded the court to seal the records from this criminal
case, effectively concealing Hill’s plea from the public.
In 2009, in connection with another investigation into illegal
gambling, law enforcement officers in Jackson County obtained a
search warrant for a cafe and seized its computers. Mathis acted as
AVW’s attorney. He negotiated and signed an agreement in which
AVW agreed to forfeit the computers and close the cafe in ex-
change for no criminal or civil action being taken against it.
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 10 of 32
10 Opinion of the Court 20-13761
The next year, law enforcement officials in Marion County
investigated another AVW internet cafe. Jeaneen Crisante, who
operated the cafe, was charged in state court with gambling-related
crimes. Mathis, who represented Crisante in the criminal case, filed
a motion to dismiss, arguing that the cafe’s business was lawful.
The trial court denied the motion, concluding, for purposes of the
motion to dismiss, that the cafe’s computers qualified as slot ma-
chines under Florida law. A jury found Crisante not guilty, how-
ever.
Mathis also filed several civil lawsuits on behalf of AVW to
challenge government actions regulating the cafes. In 2009, after
law enforcement officials in the city of Longwood shut down an
AVW cafe, Mathis filed on AVW’s behalf a lawsuit challenging the
closure. During discovery, Longwood requested detailed financial
information from AVW, but the company refused to produce it.
When the state court ordered AVW to turn over the records,
Mathis dismissed the suit so that the company would not have to
produce any financial information.
In 2011, after Seminole County passed an ordinance that
banned AVW’s affiliated cafes from operating, Mathis filed on
AVW’s behalf a federal lawsuit challenging the ordinance as uncon-
stitutional. During discovery, Seminole County requested financial
records from AVW, and the district court ordered the company to
produce the records. To keep AVW from having to produce its fi-
nancial records, Mathis filed a motion for voluntary dismissal, stat-
ing that AVW and its affiliates had sold the cafes in Seminole
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 11 of 32
20-13761 Opinion of the Court 11
County to a new owner who no longer wished to pursue the liti-
gation.3 In fact, AVW and the affiliates continued to operate the
cafes. They merely changed the names of some of the cafes to make
it appear that the cafes had been sold to new owners. Both before
and after the name changes, Mathis served as the registered agent
for most of these affiliates.
C. Mathis’s Arrest and Criminal Trial
Law enforcement officials in several Florida counties who
were working with the Florida Department of Law Enforcement
investigated AVW’s operations. Based on the investigation, Gibson
prepared a 441-page probable cause affidavit (“Master Affidavit”)
detailing how more than 50 defendants, including Mathis and the
law firm, allegedly committed hundreds of crimes in connection
with the cafes’ operation.
The Master Affidavit set forth the relationship among AVW
and the affiliates. It identified the individuals tied to each affiliate’s
operations. One section identified the individuals who “own[ed],
operate[d], manage[d], supervise[d], or [were] employees of” each
affiliate. See, e.g., Doc. 74-1 at 61. Mathis was not listed among the
owners, operators, managers, supervisors, or employers for any af-
filiate. However, the Master Affidavit alleged that AVW, Duncan,
Bass, Mathis, the law firm, and other co-defendants “own[ed],
3 Mathis made a similar representation to a Florida state agency, telling it that
AVW had transferred ownership of nearly all the internet cafes to “non-affili-
ated companies” and was “no longer operating the locations.” Doc. 74-3 at 73.
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 12 of 32
12 Opinion of the Court 20-13761
operate[d], manage[d], and/or control[led]” the locations where
the illegal activity had occurred. See, e.g., Doc. 74-4 at 18. Another
section of the Master Affidavit included a chart that listed the “Cor-
porate Officers & Registered Agent” for each affiliate. Doc. 74-1 at
35–37. Because Mathis was the registered agent for most of the af-
filiates, his name was repeatedly listed in this section.
The Master Affidavit alleged that there was a “continuous
ongoing pervasive effort to organize, maintain, protect, expand,
and benefit from the statewide gambling efforts of the assorted en-
terprises of” AVW and its affiliates. Doc. 74-3 at 80. It explained
that to ensure illegal gambling could continue at the cafes, it was
“imperative to . . . conceal[]” information about the “manner in
which the enterprise operate[d]” and to hide information about the
“flow of the illegal proceeds” it generated. Id. The Master Affidavit
alleged that Mathis and the law firm “participated” in these efforts.
Id. It set forth in detail the work that Mathis and the law firm per-
formed for AVW, its affiliates, and related individuals. The Master
Affidavit described the payments the law firm received from AVW
and its affiliates as “proceeds derived . . . from the illegal gambling
operations of [AVW].” Doc. 74-2 at 56.
The Master Affidavit was presented to a state court judge to
obtain arrest warrants for Mathis and others. Mathis was charged
with offenses under Florida law including racketeering, conspiracy
to commit racketeering, possessing a slot machine, conducting an
illegal lottery, keeping a gambling house, and money laundering.
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 13 of 32
20-13761 Opinion of the Court 13
Based on the Master Affidavit, law enforcement officers also seized
documents from the law firm and froze its bank accounts.
At his criminal trial, Mathis claimed that he lacked the req-
uisite mens rea for the charged offenses because he believed that
AVW’s sweepstakes were legal under Florida law. See Mathis v.
State, 208 So. 3d 158, 159–61 (Fla. Dist. Ct. App. 2016). By contrast,
the State argued that Mathis knew AVW’s sweepstakes games
were illegal and that he had engaged in deceptive conduct by mis-
representing to government officials the nature of AVW’s opera-
tions to make it appear as though AVW was running a legal sweep-
stakes. See id. at 161–62. Although the trial court allowed the State
to introduce evidence to show Mathis’s knowledge, it barred
Mathis from introducing evidence to support his position that he
believed the cafes’ operations were legal, ruling such evidence was
irrelevant. See id. at 161.
A jury found Mathis guilty of all the charged offenses except
conspiracy to commit racketeering. He was sentenced to six years’
imprisonment.
Mathis challenged his convictions on appeal, arguing that
the trial court erred in excluding his evidence. A Florida appellate
court concluded that the trial court had improperly barred Mathis
from introducing evidence “to rebut the State’s allegations that he
knowingly assisted [AVW] in violating Florida law.” Id. at 164. The
appellate court reversed his convictions and remanded for a new
trial. On remand, the State dismissed the charges against Mathis.
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 14 of 32
14 Opinion of the Court 20-13761
D. Mathis’s Lawsuit
Mathis filed this civil action in which he brought claims un-
der 42 U.S.C. § 1983 against Eslinger, Gibson, Kirsheman, Bondi,
and Cox. In the amended (operative) complaint, he alleged that the
Master Affidavit included omissions and misrepresentations that, if
corrected, would have defeated probable cause to arrest and detain
him.
The amended complaint raised the following claims:
(1) Mathis was arrested and incarcerated without probable cause,
in violation of the Fourth Amendment (Count II); (2) the defend-
ants engaged in malicious prosecution and conspired to commit
malicious prosecution based on the initiation of criminal proceed-
ings against Mathis without probable cause (Counts III & IV); and
(3) the defendants committed abuse of process based on their mis-
use of the criminal court process for improper motives (Count V).4
4 The amended complaint also included other claims that the district court
dismissed: a claim under 42 U.S.C. § 1983, alleging that the defendants violated
the First Amendment by engaging in a retaliatory investigation and prosecu-
tion, and several state-law claims. The dismissal of these claims is not before
us on appeal. In the argument section of his opening brief on appeal, Mathis
devotes just one paragraph to the dismissal of the First Amendment claim and
one sentence to the dismissal of the state law claims. He provides no citations
to support his position that the district court erred in dismissing these claims.
Because Mathis makes no more than “passing references” to these claims and
“cites no authorities to support [his] conclusory assertions” that the district
court erred in dismissing the claims, we conclude that he abandoned any
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 15 of 32
20-13761 Opinion of the Court 15
The defendants filed motions to dismiss the amended com-
plaint. The prosecutors (Bondi, Cox, and Kirsheman) argued that
they were entitled to absolute immunity. Eslinger and Gibson ar-
gued that they were entitled to qualified immunity.
The magistrate judge recommended that the district court
dismiss the amended complaint with prejudice. First, the magis-
trate judge determined that the prosecutors were entitled to abso-
lute immunity. They were entitled to absolute immunity, the mag-
istrate judge concluded, because the claims against them arose out
of actions they took in their role as advocates for the State in
Mathis’s criminal proceedings.
Second, the magistrate judge concluded that Eslinger and
Gibson were entitled to qualified immunity. The magistrate judge
explained that qualified immunity turned on whether the Master
Affidavit established probable cause to arrest Mathis. The magis-
trate judge rejected Mathis’s contention that if the omissions and
misrepresentations in the Master Affidavit had been corrected,
there would not have been arguable probable cause to arrest him.
Mathis objected to the magistrate judge’s recommendation.
The district court overruled the objections, adopted the magistrate
judge’s recommendation, and granted the defendants’ motions to
dismiss. Regarding arguable probable cause, the district court ex-
plained that the relevant question was whether the “alleged
challenge to the dismissal of these claims; we address them no further.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 679, 682 (11th Cir. 2014).
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16 Opinion of the Court 20-13761
misstatements and omissions negated [arguable] probable cause
that [Mathis was] involved in the subject criminal enterprise.” Doc.
96 at 8. Although the amended complaint alleged that some state-
ments in the Master Affidavits were false, “there [were] no allega-
tions that [other of] the underlying facts attested to in the Master
Affidavit . . . were false.” Id. at 9. Based on the unchallenged state-
ments in the Master Affidavit, the district court concluded that
there was arguable probable to conclude that Mathis was a “know-
ing participant[] in an illegal enterprise,” and thus Eslinger and Gib-
son were entitled to qualified immunity. Id. 5
This is Mathis’s appeal.
II. STANDARD OF REVIEW
We review de novo whether an official is entitled to absolute
immunity or qualified immunity. See Paez v. Mulvey, 915 F.3d
1276, 1284 (11th Cir. 2019); Stevens v. Osuna, 877 F.3d 1293, 1301
(11th Cir. 2017). At the motion to dismiss stage, we “accept[] the
factual allegations in the complaint as true and draw[] all reasona-
ble inferences in the nonmoving party’s favor.” Paez, 915 F.3d at
5 In the amended complaint, the law firm was also a plaintiff, alleging a § 1983
claim based on a Fourth Amendment violation and a state-law abuse-of-pro-
cess claim. The district court dismissed these claims for the same reasons that
it dismissed Mathis’s claims: because the prosecutors were entitled to absolute
immunity and Eslinger and Gibson were entitled to qualified immunity. Alt-
hough we discuss only Mathis’s claims in the text, we affirm the dismissal of
the law firm’s claims for the same reasons.
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20-13761 Opinion of the Court 17
1284 (alteration adopted) (internal quotation marks omitted); see
Stevens, 877 F.3d at 1301 (applying same standard to review grant
of absolute immunity at motion to dismiss stage).
Although we ordinarily liberally construe pro se pleadings,
this rule does not apply when the pro se litigant is a lawyer. See
Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1306 n.1 (11th Cir.
2018).
III. DISCUSSION
On appeal, Mathis challenges the district court’s conclusions
that the prosecutor defendants were entitled to absolute immunity
and that Eslinger and Gibson were entitled to qualified immunity.
We address each challenge in turn.
A. The District Court Did Not Err in Concluding That the
Prosecutors Enjoyed Absolute Immunity.
We begin by considering whether the prosecutors were en-
titled to absolute immunity. “Traditional common-law immunities
for prosecutors apply to civil cases brought under § 1983.” Rehberg
v. Paulk, 611 F.3d 828, 837 (11th Cir. 2010). Prosecutors enjoy “ab-
solute immunity for all activities that are intimately associated with
the judicial phase of the criminal process.” Id. (internal quotation
marks omitted). The purpose of this immunity to “prevent[] har-
assment by unfounded litigation which could cause a deflection of
the prosecutor’s energies from his public duties and limit the pros-
ecutor’s independence of judgment.” Kassa v. Fulton Cnty.,
40 F.4th 1289, 1292 (11th Cir. 2022) (internal quotation marks
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18 Opinion of the Court 20-13761
omitted). “[T]he official seeking absolute immunity bears the bur-
den of showing that such immunity is justified . . . .” Id. (internal
quotation marks omitted).
We apply a “functional approach” to determine whether a
prosecutor is entitled to absolute immunity. Id. at 1293. This “fact-
specific inquiry” requires us to “look[] to the nature of the function
performed, not the identity of the actor who performed it.” Id. at
1292 (internal quotation marks omitted). Under the functional ap-
proach, “a prosecutor is entitled to absolute immunity for acts un-
dertaken in preparing for the initiation of judicial proceedings or
for trial, and which occur in the course of his role as an advocate
for the state.” Id. at 1293 (alterations adopted) (internal quotation
marks omitted). When “a prosecutor functions in a capacity unre-
lated to his role as an advocate for the state, he is not protected by
absolute immunity.” Rehberg, 611 F.3d at 838. Prosecutors are not
entitled to absolute immunity when they “conduct[] investigative
work before an arrest, mak[e] statements to the press, [or]
provid[e] legal advice to police regarding pre-indictment investiga-
tion techniques.” Hart v. Hodges, 587 F.3d 1288, 1296 (11th Cir.
2009) (citations omitted).
In this case, we conclude that the prosecutors were entitled
to absolute immunity because the claims against them arose from
actions they took in performing their role as advocates for the State
when they prepared for the initiation of judicial proceedings
against Mathis and for his trial. See, e.g., Doc. 64 at ¶¶ 75 (alleging
that the defendants were liable because “Mathis’[s] arrest,
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20-13761 Opinion of the Court 19
incarceration, and conviction constituted an unreasonable seizure
and, thus, a violation of his Fourth Amendment rights”); 79 (alleg-
ing that defendants were liable for malicious prosecution because
they “initiated criminal proceedings against Mathis without proba-
ble cause”); 86 (alleging defendants were liable for conspiracy to
commit malicious prosecution because they “initiate[d] criminal
proceedings against Mathis without probable cause”); 93 (alleging
that defendants were liable for abuse of process because they “mis-
used the criminal court process”).
On appeal, Mathis does not dispute that prosecutors gener-
ally are entitled to immunity for actions taken in connection with
an arrest, incarceration, and prosecution. He nevertheless argues
that the prosecutors were not entitled to absolute immunity be-
cause they engaged in misconduct “prior to the arrest” and that the
“arrest, incarceration, and prosecution [were] simply the result of
the misconduct.” Appellants’ Br. at 33. But the well-pled allegations
in the amended complaint do not support this argument.
The thrust of the amended complaint was that the prosecu-
tors were liable because they initiated a criminal case when they
knew there was no probable cause to believe that Mathis had com-
mitted a crime. See Doc. 64 at ¶¶ 34 (alleging that the prosecutors
were liable because they “approved of, and/or directed, the arrest
of Mathis despite the lack of probable cause”); 37 (alleging that the
prosecutors engaged in “the concoction of false charges”). The
amended complaint also alleged that the prosecutors were liable
because of other actions they took in pre-trial proceedings,
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20 Opinion of the Court 20-13761
including decisions they made about Mathis’s bond and how they
conducted plea negotiations. Notably, the amended complaint in-
cluded no well-pled allegation that the prosecutors themselves con-
ducted any investigative work before Mathis’s arrest. See Hart,
587 F.3d at 1295. Because the allegations in the amended complaint
show that the claims against the prosecutors arose solely out of ac-
tions they took in initiating the criminal case and preparing for trial,
we conclude that the prosecutors were entitled to absolute immun-
ity. See Kassa, 40 F.4th at 1293.
B. The District Court Did Not Err in Concluding That
Gibson and Eslinger Were Entitled to Qualified Immun-
ity.
We now turn to whether Eslinger and Gibson were entitled
to qualified immunity. “Qualified immunity shields public officials
from liability for civil damages when their conduct does not violate
a constitutional right that was clearly established at the time of the
challenged action.” Echols v. Lawton, 913 F.3d 1313, 1319 (11th
Cir. 2019) (internal quotation marks omitted). To receive qualified
immunity, a defendant “bears the initial burden to prove that he
acted within his discretionary authority.” Dukes v. Deaton,
852 F.3d 1035, 1041 (11th Cir. 2017). The plaintiff then bears the
burden of proving that “(1) the defendant violated a constitutional
right; and (2) the right was clearly established at the time of the
violation.” Barnes v. Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012).
Because it is undisputed that Eslinger and Gibson were acting
within the scope of their discretionary authority, Mathis had the
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20-13761 Opinion of the Court 21
burden to show that the officers violated a constitutional right and
that the constitutional right was clearly established at the time of
the violation.
Mathis argues that Eslinger and Gibson violated his clearly
established right to be free from an unreasonable seizure resulting
from malicious prosecution. In this section, we begin by explaining
what a plaintiff must prove to establish a constitutional violation
based on malicious prosecution. We then explain why the allega-
tions in the complaint were insufficient to establish that Eslinger
and Gibson violated a clearly established constitutional right.
We recently “simplified our standard for malicious prosecu-
tion into two elements: the plaintiff must prove (1) that the defend-
ant violated his Fourth Amendment right to be free from seizures
pursuant to legal process and (2) that the criminal proceedings
against him terminated in his favor.” Luke v. Gulley (Luke II),
50 F.4th 90, 95 (11th Cir. 2022) (internal quotation marks omitted).
To establish a Fourth Amendment violation, a plaintiff must prove
that “the legal process justifying his seizure was constitutionally in-
firm and that his seizure would not otherwise be justified without
legal process.”6 Id. (internal quotation marks omitted).
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons . . . against unreasonable . . . seizures.”
6 We assume for purposes of this appeal that the criminal proceedings against
Mathis terminated in his favor.
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22 Opinion of the Court 20-13761
U.S. Const. amend. IV. It provides that “no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation.” Id.
Under the Fourth Amendment, “before a warrant for arrest can is-
sue the judicial officer issuing such a warrant must be supplied with
sufficient information to support an independent judgment that
probable cause exists for the warrant.” Luke II, 50 F.4th at 95 (al-
terations adopted) (internal quotation marks omitted). For a mali-
cious prosecution claim, the determination of probable cause turns
on “what the affidavit charging the plaintiff stated.” Williams v.
Aguirre, 965 F.3d 1147, 1163 (11th Cir. 2020) (alterations adopted)
(internal quotation marks omitted). The “warrant affidavit must
set forth particular facts and circumstances underlying the exist-
ence of probable cause.” Franks v. Delaware, 438 U.S. 154, 165
(1978).
Probable cause is established “when the facts and circum-
stances within the officer’s knowledge, of which he or she has rea-
sonably trustworthy information, would cause a prudent person to
believe, under the circumstances shown, that the suspect has com-
mitted, is committing, or is about to commit an offense.” Paez,
915 F.3d at 1285 (internal quotation marks omitted). Probable
cause “is not a high bar”; it “requires only a probability or substan-
tial chance of criminal activity, not an actual showing of such activ-
ity.” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (in-
ternal quotation marks omitted). “So long as it is reasonable to con-
clude from the body of evidence as a whole that a crime was com-
mitted, the presence of some conflicting evidence or a possible
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 23 of 32
20-13761 Opinion of the Court 23
defense will not vitiate a finding of probable cause.” Paez, 915 F.3d
at 1286.
“[A]n arrest warrant is constitutionally infirm when . . . an
official, including an individual who did not apply for the warrant,
intentionally or recklessly made misstatements or omissions neces-
sary to support the warrant.” Luke II, 50 F.4th at 95–96 (internal
quotation marks omitted). 7 We apply a two-part test to determine
whether misstatements or omissions in an officer’s warrant affida-
vit amount to a Fourth Amendment violation. Paez, 915 F.3d at
1287. First, we consider “whether there was an intentional or reck-
less misstatement or omission.” Id. Second, “we examine the ma-
teriality of the information by inquiring whether probable cause
would be negated if the offending statement was removed or the
omitted information included.” Id. If the warrant affidavit (includ-
ing the omitted information or correcting the misstated infor-
mation) “would have demonstrated even arguable probable
cause—that a reasonable officer could have believed an offense was
7 An arrest warrant also is constitutionally infirm when “the officer who ap-
plied for the warrant should have known that his application failed to establish
probable cause.” Luke II, 50 F.4th at 95–96 (internal quotation marks omitted).
Here, Mathis relies solely on the argument that the warrant was constitution-
ally infirm because of omissions or misstatements in the warrant affidavit.
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24 Opinion of the Court 20-13761
committed—then the officers are entitled to qualified immunity.”
Id. at 1288. 8
We now apply this two-part test to determine whether
Mathis’s arrest was constitutionally infirm because Eslinger and
Gibson intentionally or recklessly made misstatements or omis-
sions in the Master Affidavit. Mathis does not dispute that the sub-
stance of the Master Affidavit was sufficient to establish probable
cause that all the other defendants committed the charged crimes.
But after removing the misstatements and adding the material in-
formation that was omitted, he says, the Master Affidavit contained
insufficient information to establish that he “knowingly assisted
[AVW] to commit a crime,” rendering the Master Affidavit consti-
tutionally infirm. Appellants’ Br. at 9 (emphasis omitted). 9 We
8 Mathis brought separate § 1983 claims alleging violations of the Fourth
Amendment, malicious prosecution, conspiracy to commit malicious prose-
cution, and abuse of process. On appeal Mathis appears to have lumped all the
claims together. For all the claims, he treats qualified immunity as turning on
the question of whether, if the alleged misstatements and omissions in the
Master Affidavit had been corrected, there would have been arguable probable
cause for his arrest. We thus limit our analysis to this question.
9 We have previously recognized that the “any-crime rule,” under which an
officer who makes a warrantless arrest is insulated from liability so long as
probable cause existed to arrest the suspect for some crime, does not apply in
the malicious prosecution context. Williams, 965 F.3d at 1162. Accordingly, a
plaintiff who was charged with multiple crimes may establish a claim for ma-
licious prosecution by showing that the officers lacked probable cause to arrest
him for at least one charged crime. Id.
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20-13761 Opinion of the Court 25
disagree. Eslinger and Gibson were entitled to qualified immunity
because they had at least arguable probable cause to believe that
Mathis knowingly assisted AVW in committing a crime. 10
At the first step of our two-part test, we ask “whether there
was an intentional or reckless misstatement or omission” in the
Master Affidavit. Paez, 915 F.3d at 1286. The amended complaint
alleged that the Master Affidavit contained several misstatements
and omissions that Eslinger and Gibson “intentionally” made. Doc.
64 at ¶¶ 39, 41. Because this case is at the motion to dismiss stage,
we accept the amended complaint’s well-pled allegations that
Although Mathis was charged with multiple crimes, he raises a single argu-
ment that applies to each crime, challenging only whether the allegations in
the Master Affidavit were sufficient to establish that he was a knowing partic-
ipant in the criminal scheme. Because he does not tether his intent-based ar-
gument to any of the particular elements required for any of the charged
crimes, we limit our analysis to whether the Master Affidavit established that
there was probable cause that he knowingly assisted AVW in committing a
crime.
10 Mathis also argues that because this case was at the motion to dismiss stage,
it was “premature” for the district court to consider the Master Affidavit. Ap-
pellants’ Br. at 14. We disagree. At the motion to dismiss stage, we may con-
sider the substance of the arrest affidavit to determine whether there would
have been arguable probable cause if the alleged misstatements or omissions
had been corrected. See Paez, 915 F.3d at 1287–88 (reversing denial of qualified
immunity to officers on malicious prosecution claim at the motion to dismiss
stage when, after considering the information that allegedly had been omitted
from the arrest affidavits together with the information in those affidavits, the
officers still would have had probable cause to believe that the plaintiffs had
committed a crime).
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26 Opinion of the Court 20-13761
Eslinger and Gibson intentionally or recklessly omitted the follow-
ing information from the Master Affidavit:
• Florida’s Commissioner of Agriculture had stated that the
internet cafes’ operations were legal;
• The Florida Senate twice investigated the internet cafes and
had not concluded that they were illegal;
• Local governments in Florida had passed municipal ordi-
nances regulating and permitting internet cafes;
• At least three law review articles had opined that the inter-
net cafes were legal; and
• No Florida court had found the internet cafes’ operations il-
legal.
Mathis also alleged that the Master Affidavit misstated that
he “was a corporate officer” for AVW and the affiliates. Id. at ¶ 36.
Even though at the motion to dismiss stage we generally accept the
allegations in a complaint as true, see Paez, 915 F.3d at 1284, we do
not credit this allegation. The amended complaint’s allegation
about the content of the Master Affidavit is directly contradicted by
the Master Affidavit itself. The Master Affidavit identified each of
the corporate officers for AVW but did not list Mathis. Mathis
points out that he was included in a chart that listed the “Corporate
Officers & Registered Agent” for each affiliate. Doc. 74-1 at 35–37.
But the Master Affidavit reflects that Mathis was included in this
chart because he was the registered agent for AVW and many of
USCA11 Case: 20-13761 Date Filed: 11/10/2022 Page: 27 of 32
20-13761 Opinion of the Court 27
the affiliates. (There is no dispute that Mathis was, in fact, the reg-
istered agent.) Because the Master Affidavit never stated that
Mathis was a corporate officer of AVW or any affiliate, we do not
credit the amended complaint’s allegation that the Master Affidavit
included such a statement. See Gill ex rel. K.C.R. v. Judd, 941 F.3d
504, 514 (11th Cir. 2019) (explaining that when a document contra-
dicts the complaint’s allegations “about what the document is or
says,” the document governs (internal quotation marks omitted)).
In the amended complaint, Mathis alleged that the Master
Affidavit contained other “mischaracterizations, false impressions,
false statements, exaggerations, and omissions.” Doc. 64 at ¶ 44.
But because the amended complaint never identified these addi-
tional misstatements and omissions, we disregard this conclusory
allegation. See Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir.
2013) (explaining that a court disregards “conclusory allegations”
because they “fail to apprise defendants of the factual basis of the
plaintiff’s claims”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (explaining that a plaintiff cannot rely on “naked assertions
devoid of further factual enhancement” (alteration adopted) (inter-
nal quotation marks omitted)).
In a previous case in the malicious prosecution context, we
disregarded a similar allegation that an officer made “material mis-
statements and omissions” in an arrest affidavit. Gill, 941 F.3d at
515 (internal quotation marks omitted). We explained that this
type of “general” statement was “so broad that it provides us no
help in determining which statements in the affidavit are material
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28 Opinion of the Court 20-13761
misstatements or what has been omitted.” Id. Consistent with Gill,
we do not consider the amended complaint’s conclusory allegation
that the Master Affidavit contained other, unidentified false state-
ments or omissions.11
Turning to the second step of our two-part test, we conclude
that probable cause would not have been negated if the misstate-
ments or omissions identified in the amended complaint had been
corrected. We assume that the additional information Mathis says
should have been included in the Master Affidavit would have sup-
ported an inference that he did not knowingly assist AVW in com-
mitting a crime. But even with this additional information, a rea-
sonable officer nonetheless could have concluded from the Master
Affidavit that there was probable cause to believe that Mathis
knowingly assisted AVW in committing a crime. See Paez, 915 F.3d
at 1286 (explaining that “the presence of some conflicting evidence
. . . will not vitiate a finding of probable cause”).
From the Master Affidavit, a reasonable officer could have
concluded there was probable cause because the Master Affidavit
11 At oral argument, Mathis asserted that other specific statements in the Mas-
ter Affidavit were false. But the amended complaint did not allege the falsity
of these statements. Parties “are not permitted to simply ‘insert’ new allega-
tions” into their complaints via appellate briefing. Quality Auto Painting Ctr.
of Roselle, Inc. v. State Farm Indem. Co., 917 F.3d 1249, 1262 (11th Cir. 2019)
(en banc); see also Michel v. NYP Holdings, Inc., 816 F.3d 686, 705 (11th Cir.
2016) (explaining that an appellant “cannot [on appeal] use his briefing to add
new allegations and argue that those new assertions support his cause of ac-
tion”).
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20-13761 Opinion of the Court 29
described several incidents in which Mathis participated in the
criminal scheme by helping to conceal and cover up information
about how the internet cafes operated or the flow of the illegal pro-
ceeds.
First, when customer Hickson requested information from
AVW about her winnings in the previous year, Mathis gave her
incorrect information about the company’s recordkeeping prac-
tices when he said that the only way for AVW to determine how
much internet time a customer had purchased was to manually re-
view paper records. In fact, this information was maintained on the
company’s computers or servers. A reasonable officer could have
concluded that Mathis made this false statement to Hickson to pre-
vent AVW from having to turn over detailed records that may have
shown that gambling was occurring at the internet cafes.
Second, when Seminole County was considering an ordi-
nance that would have banned the cafes, Mathis lobbied govern-
ment officials on AVW’s behalf, telling them the cafes’ operations
were permitted under Florida law. Mathis denied that AVW’s cus-
tomers included compulsive gamblers who were losing tens of
thousands of dollars at the cafes and said customers usually spent
only 20 or 30 dollars at a time. Notably, he made this statement
after communicating with Hickson, who told Mathis that she had
spent—and lost—tens of thousands of dollars at the cafes in a single
year. A reasonable officer could conclude that Mathis knowingly
provided the county commissioner with this incorrect information
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30 Opinion of the Court 20-13761
about AVW’s operations to conceal that gambling was occurring
at cafes and to ensure that the cafes could continue operating.
Third, to operate a cafe in Leon County, a local ordinance
required AVW to place $50,000 in a trust account to cover any
prizes won. Mathis submitted an affidavit to Leon County certify-
ing that that AVW had deposited $50,000 into the law firm’s trust
account. But, according to the Master Affidavit, the banking rec-
ords for the law firm’s trust account reflected no such deposit.
From this incident, a reasonable officer could conclude that Mathis
provided false information about AVW to a government official in
an effort to conceal AVW’s failure to comply with the law.
Fourth, to secure dismissal of a lawsuit in which AVW had
been ordered to produce financial records, Mathis told a federal
court that AVW and the affiliates had sold the cafes and no longer
operated them. 12 In fact, the cafes had simply changed names. The
same individuals owned the cafes, the same employees worked at
the cafes, and Mathis remained their registered agent. 13 A
12 Mathis also made a similar statement to a Florida agency.
13 The amended complaint also alleged that the Master Affidavit misrepre-
sented that the law firm “receive[d] proceeds derived . . . from the illegal gam-
bling operations” at the cafes. Doc. 64 at ¶ 46. But the amended complaint
alleged that the law firm received payments from AVW and its affiliates. See
also Appellants’ Br. at 30 (admitting that the law firm “receiv[ed] legal fees on
an hourly basis for legal services actually performed”). Mathis’s allegation that
the Master Affidavit contained a misrepresentation related to the receipt of
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20-13761 Opinion of the Court 31
reasonable officer could conclude that Mathis provided the court
with false information about the cafes’ ownership to ensure that
AVW would not have to produce financial records that would have
revealed the company’s illegal operations and the flow of proceeds
among AVW and the other entities.
Based on the Master Affidavit, a reasonable officer could
have concluded that there was a substantial chance that Mathis
knew that AVW was engaged in illegal activities and actively “par-
ticipated” in the illegal scheme by “concealing the true nature” of
AVW’s business to ensure that the cafes could continue to operate
with their illegal actions undetected. 14 Doc. 74-3 at 80. Indeed,
Mathis concedes that Eslinger and Gibson were entitled to qualified
immunity if there was arguable probable cause to believe that “[he]
knowingly assisted” AVW in committing a crime. Appellants’ Br.
fees boils down to an assertion that the law firm’s receipt of fees was innocent
because he simply performed legal work for AVW and did not assist AVW in
any criminal conduct. But as we explain above, a reasonable officer could have
had probable cause to believe that Mathis was actively assisting AVW in its
criminal scheme by helping to cover up its illegal activities.
14 In the decision reversing Mathis’s criminal convictions, the Florida appel-
late court held that the trial court had improperly excluded Mathis’s evidence
and “effectively prevent[ed] him from arguing that he lacked the requisite
mens rea for his offenses.” Mathis, 208 So. 3d at 159. Even though it remanded
the case for a new trial, the court nevertheless accepted that at trial the State
could rely on evidence showing that Mathis had “knowingly misrepresented”
or concealed information about AVW’s business model to establish that he
acted with the requisite mens rea. Id. at 164.
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32 Opinion of the Court 20-13761
at 9. We agree and thus conclude that Eslinger and Gibson were
entitled to qualified immunity.
IV. CONCLUSION
For the reasons set forth above, we affirm the district court’s
dismissal of the amended complaint.
AFFIRMED. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483230/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
**********************
SHANNON FROGGE, *
* No. 16-1693V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 25, 2022
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Attorney Hourly Rate;
* Expert Hourly Rate
Respondent. *
* * * * * * * * * * * * * * * * * * * ** *
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner;
Mallori B. Openchowski, United States Dep’t of Justice, Washington, DC, for
Respondent.
PUBLISHED DECISION AWARDING ATTORNEYS’ FEES AND COSTS1
Pending before the Court is petitioner Shannon Frogge’s motion for final
attorneys’ fees and costs. She is awarded $65,726.81.
* * *
On December 23, 2016, petitioner filed for compensation under the Nation
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.
Petitioner alleged that the influenza vaccination she received on December 23,
1
Because this published decision contains a reasoned explanation for the action in this
case, the undersigned is required to post it on the United States Court of Federal Claims' website
in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This posting means the
decision will be available to anyone with access to the internet. In accordance with Vaccine Rule
18(b), the parties have 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material from public access.
2013, caused her to develop Guillain-Barré syndrome, paresthesia, and neuropathy.
On October 15, 2018, a fact hearing was held in Salt Lake City, Utah, followed by
more records being identified and filed and post-hearing briefs. The undersigned
issued a Findings of Fact on March 31, 2020, establishing the onset dates of
petitioner’s injuries.
Thereafter, petitioner retained an expert, Dr. Frederick Nahm, to file a report
explaining the diagnosis of GBS and the presentation of symptoms as established
in the Findings of Fact. The undersigned identified multiple problems with Dr.
Nahm’s initial report, such as not adhering to the Findings of Fact and not
identifying and explaining the diagnostic criteria. A revised report was filed on
November 9, 2020 – however, this report still contained many of the same issues.
For example, Dr. Nahm did not identify his basis for concluding petitioner suffered
atypical GBS and introducing the possibility of petitioner suffering from chronic
inflammatory demyelinating polyneuropathy.
A status conference was held on May 26, 2021, in which the undersigned
proposed that moving forward, petitioner may be required to show cause as to why
her cause should proceed based upon the lack of persuasive evidence in this case.
Based upon accumulated experience, the undersigned tentatively found that
petitioner was unlikely to establish entitlement because her diagnosis remained in
question and her expert had failed to persuasively explain why GBS was the proper
diagnosis and also failed to present evidence establishing a five-month interval
between vaccination and first symptoms as causally appropriate. On August 26,
2021, petitioner moved for a decision dismissing her petition. On the same day, the
undersigned issued his decision dismissing the petition for insufficient proof. 2021
WL 4268389.
On February 22, 2022, petitioner filed a motion for final attorneys’ fees and
costs (“Fees App.”). Petitioner requests attorneys’ fees of $58,036.90 and
attorneys’ costs of $20,528.66 for a total request of $78,565.56. Fees App. at 2.
Pursuant to General Order No. 9, petitioner warrants that she has not personally
incurred any costs related to the prosecution of her case. Id. On March 15, 2022,
respondent filed a response to petitioner’s motion. Respondent argues that
“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for
respondent in the resolution of a request by a petitioner for an award of attorneys’
fees and costs.” Response at 1. Respondent adds that he defers to the Court
regarding whether the statutory requirements for an award of attorneys’ fees and
costs are met in this case and, should the Court determine that the requirements
have been met, exercise its discretion and determine a reasonable award. Id. at 4-5.
2
On April 22, 2022, the undersigned filed an order requesting that the parties
submit a filing addressing the reasonable basis of the claim. Petitioner submitted
her filing on June 22, 2022, arguing that reasonable basis existed for the claim to
proceed as it did, and requesting an additional $5,070.00 in attorneys’ fees for time
spent responding to the undersigned’s order, thus bringing the total amount
requested to $83,635.56. Respondent submitted his filing on July 22, 2022,
indicating that “[w]hile the weaknesses of petitioner’s evidence ultimately resulted
in the dismissal of her claim, it appears that petitioner submitted enough evidence
to satisfy the statutory requirement for an award of attorneys’ fees and costs.”
Resp’t’s Response to Memorandum at 7-8.
* * *
Although compensation was denied, petitioners who bring their petitions in
good faith and who have a reasonable basis for their petitions may be awarded
attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, Respondent has
indicated that he is satisfied that good faith and reasonable basis have been
satisfied. Respondent’s position greatly contributes to the finding of reasonable
basis. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“[W]e rely on the
parties to frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present.”) A final award of reasonable attorneys’ fees
and costs is therefore proper in this case and the remaining question is whether the
requested fees and costs are reasonable.
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
§15(e). The Federal Circuit has approved the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step
process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed.
Cir. 2008). First, a court determines an “initial estimate … by ‘multiplying the
number of hours reasonably expended on the litigation times a reasonable hourly
rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Second, the court may make an upward or downward departure from the initial
calculation of the fee award based on specific findings. Id. at 1348. Here, because
the lodestar process yields a reasonable result, no additional adjustments are
required. Instead, the analysis focuses on the elements of the lodestar formula, a
reasonable hourly rate and a reasonable number of hours.
In light of the Secretary’s lack of objection, the undersigned has reviewed
the fee application for its reasonableness. See McIntosh v. Secʼy of Health &
Human Servs., 139 Fed. Cl. 238 (2018)
3
A. Reasonable Hourly Rates
Under the Vaccine Act, special masters, in general, should use the forum
(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349.
There is, however, an exception (the so-called Davis County exception) to this
general rule when the bulk of the work is done outside the District of Columbia
and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid
Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot.
Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work
was done outside of the District of Columbia.
Petitioner requests the following rates of compensation for the work of her
counsel: for Ms. Amy Senerth, $225.00 per hour for work performed in 2018,
$233.00 per hour for work performed in 2018, $250.00 per hour for work
performed in 2019, $275.00 per hour for work performed in 2020, $300.00 per
hour for work performed in 2021, and $325.00 - $350.00 per hour for work
performed in 2022; and for Mr. Max Muller, $275.00 per hour for work performed
in 2016, $300.00 per hour for work performed in 2017, and $400.00 per hour for
work performed in 2022. The undersigned has reviewed the requested rates and
finds them to be reasonable and consistent with what the undersigned has
previously awarded to petitioner’s counsel at Muller Brazil, LLP for her Vaccine
Program work. See, e.g. Viner v. Sec’y of Health & Human Servs., No. 20-357V,
2022 WL 9790765 (Fed. Cl. Spec. Mstr. Sept. 30, 2022); Pavlicek v. Sec’y of
Health & Human Servs., No. 19-1573V, 2022 WL 4115663 (Fed. Cl. Spec. Mstr.
Aug. 12, 2022).
However, the undersigned notes that Ms. Senerth billed her 2022 time at two
different hourly rates. In the original fees motion, she billed at $325.00 per hour,
and for work performed responding to the undersigned’s order, she billed $350.00
per hour. Petitioner has offered no justification for a rate increase in the middle of
the year, and the undersigned finds $325.00 to be a reasonable rate for all work
performed by Ms. Senerth in 2022. Application of this rate results in a reduction of
$242.50.
A larger issue concerns the work of counsel done after the issuance of the
undersigned’s Findings of Fact on March 31, 2020. The record reflects that
counsel’s time was not well-spent advancing petitioner’s cause after that date.
Despite the Findings of Fact placing petitioner’s onset outside of the time frame
typically associated with GBS, petitioner chose to obtain an expert in order to
advance an argument that petitioner’s GBS was atypical. However, the expert’s
work did little to advance petitioner’s cause, and counsel took much longer than
4
typical in obtaining the reports (petitioner ultimately filed five motions for
extension of time to obtain the initial report and supplemental reports from Dr.
Nahm). Dr. Nahm’s reports also were not helpful to petitioner’s cause, as they did
not abide by the Findings of Fact set forth by the undersigned. That Dr. Nahm was
unable to correct these defects even after multiple attempts reflects, at least in part,
poor work by counsel to adequately apprise Dr. Nahm of the requirements set forth
by the undersigned.
When counsel should recognize a claim’s issues but continues to litigate the
claim despite diminishing returns, it is unreasonable to award the full amount of
attorneys’ fees. Austin v. Sec’y of Health & Human Servs., No., 2019 WL
4126538, at *4 (Fed. Cl. Spec. Mstr. Jul. 31, 2019); Anderson v. Sec'y of Health &
Human Servs., No. 02-1314V, 2018 WL 6787880, at *1-2 (Fed. Cl. Spec. Mstr.
Nov. 16, 2018); Pope v. Sec'y of Health & Human Servs., No. 14-078V, 2017 WL
5380926, at *3 (Fed. Cl. Spec. Mstr. Sept. 11, 2017); R.V. v. Sec'y of Health &
Human Servs., No. 08-504V, 2016 WL 7575568, at *4-5 (Fed. Cl. Spec. Mstr.
Nov. 28, 2016).
Ultimately, the undersigned finds it reasonable to compensate Ms. Senerth’s
time expended following the issuance of the Findings of Fact at fifty percent of her
typical hourly rate.2 This results in a reduction of $6,126.25.
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours.
Reasonable hours are not excessive, redundant, or otherwise unnecessary. See
Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993).
The Secretary also did not directly challenge any of the requested hours as
unreasonable.
The undersigned has reviewed the submitted billing entries and finds that an
overall reduction to the requested fees is warranted. First, a small reduction must
be made to account for administrative tasks such as paralegals filing documents
and attorneys billing time to direct their filing. See Guerrero v. Sec’y of Health &
Human Servs., No. 12-689V, 2015 WL 3745354, at *6 (Fed. Cl. Spec. Mstr. May
22, 2015) (citing cases), mot. for rev. den’d in relevant part and granted in non-
relevant part, 124 Fed. Cl. 153, 160 (2015), app. dismissed, No. 2016-1753 (Fed.
2
Alternatively, the number of hours could be reduced by fifty percent and the
mathematical calculation would be the same.
5
Cir. Apr. 22, 2016). The undersigned will reduce the final award of fees by
$1,000.00 to account for these issues.
Petitioner is therefore awarded final attorneys’ fees of $55,738.15.
C. Costs Incurred
Like attorneys’ fees, a request for reimbursement of costs must be
reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed.
Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of
$20,528.66 in attorneys’ costs. Most of this amount ($14,880.00) is attributable to
work performed by Dr. Nahm with the balance comprised of acquiring medical
records, postage, the Court’s filing fee, and travel costs to attend the fact hearing in
Salt Lake City. These costs are reasonable and supported with the necessary
documentation and shall be fully reimbursed. Dr. Nahm’s work, however, requires
additionally discussion.
Dr. Nahm’s invoice reflects 24.8 hours billed at $600.00 per hour. The
undersigned finds that the hours billed are reasonable and similar to the amount of
time expended by Dr. Nahm in reviewing records and preparing multiple reports in
other cases. However, $600.00 per hour for Dr. Nahm’s work is not reasonable. As
a starting point, the undersigned notes that Dr. Nahm’s work has typically been
compensated at $500.00 by the undersigned and other special masters. See, e.g.,
Karapetian v. Sec’y of Health & Human Servs., No. 19-546V, 2022 WL 1865083,
at *3 (Fed. Cl. Spec. Mstr. May 9, 2022). However, Dr. Nahm’s work in this case
does not merit his usual rate. See Frantz. v. Sec’y of Health & Human Servs., 146
Fed. Cl. 137, 146 (2019) (affirming that special masters may reduce the
compensation rate for an expert when that expert’s work was not worth the charged
rate).
Dr. Nahm’s first report did not cite to medical literature to identify the
diagnostic criteria for GBS nor did Dr. Nahm explain how diagnostic criteria
would vary for an atypical presentation of GBS. Further, Dr. Nahm’s report did not
consistently adhere to the factual findings issued by the undersigned related to the
onset of petitioner’s neurologic symptoms on May 15, 2014. Scheduling Order,
issued August 10, 2020, at 1. Given these issues, the undersigned requested that
petitioner obtain a revised report from Dr. Nahm. However, the revised report
suffered from many of the same issues as the first report, namely that Dr. Nahm
had not identified the basis for determining that petitioner suffered from “atypical
GBS.” Scheduling Order, issued December 15, 2020, at 1. Furthermore, Dr.
Nahm’s suggestion that petitioner suffered from CIDP further confused the issues
6
and his discussion of peripheral nerve hyperexcitability syndrome did nothing to
advance petitioner’s claim for compensation. Id. A second supplemental report,
filed on April 5, 2021, also did not clearly explain how fasciculations could be a
manifestation of GBS. Ultimately, none of Dr. Nahm’s work product in this case
served petitioner well. These compounding problems reduce the value of Dr.
Nahm’s contributions to petitioner’s case. The undersigned finds that a reasonable
rate for Dr. Nahm’s work in this case is $175.00 per hour, making a reasonable
total for his work $4,340.00.
Petitioner is therefore awarded final attorneys’ costs of $9,988.66.
D. Conclusion
The Vaccine Act permits an award of reasonable attorney’s fees and costs.
42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $65,726.81 (representing
$55,738.15 in attorneys’ fees and $9,988.66 in attorneys’ costs) as a lump sum in
the form of a check jointly payable to petitioner and petitioner’s counsel, Ms. Amy
Senerth.
In the absence of a motion for review filed pursuant to RCFC Appendix B,
the clerk of the court is directed to enter judgment herewith.3
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a
joint notice renouncing their right to seek review.
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490355/ | MEMORANDUM OPINION AND ORDER
EDWARD B. TOLES, Bankruptcy Judge.
This cause coming on to be heard upon the Motion For Summary Judgment, filed by Plaintiff, WINTERLAND CONCESSIONS COMPANY, represented by SCHUYLER, ROCHE & ZWIRNER, and upon the Response thereto filed by Debtor, ALLAN GOLDZWEIG, represented by BAUMGARTNER & GOLDSTEIN, and the Court, having considered the record in this case and the pleadings on file, and having afforded the parties an opportunity for hearing, and being fully advised in the premises;
The Court Finds:
1. Debtor, ALLAN GOLDZWEIG, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code on March 23, 1982.
2. Plaintiff, WINTERLAND CONCESSIONS COMPANY, is a California corporation, which has its principal place of business in San Francisco, California. Debtor scheduled Plaintiff as an unsecured creditor with a $980,000.00 claim. On September 8, 1982, Plaintiff timely filed a proof of claim in these proceedings in the amount of $920,708.59.
3. On May 20, 1982, Plaintiff timely filed a Complaint to Determine Discharge-ability of its claim pursuant to section 523(a)(6) of the Bankruptcy Code. 11 U.S.C. § 523(a)(6). Debtor answered Plaintiff’s Complaint on June 21, 1982. On October 7, 1983, Plaintiff filed the instant Motion For Summary Judgment. Debtor filed a Response to this Motion on January 9, 1984. Plaintiff filed a Reply Memorandum in support of its Motion on February 3, 1984. After notice and a hearing, the Court took this matter under advisement on May 31, 1984.
4. Plaintiff’s claim against Debtor arises from a civil judgment entered by the United States District Court for the Northern District of Illinois, Eastern Division, on November 16, 1981. In its present Motion for Summary Judgment, Plaintiff asks this Court to accord collateral estoppel effect to the findings of fact and conclusions of law contained in the district court’s November 16, 1981, judgment, to the extent that such findings are relevant to Plaintiff’s May 20, 1982, Complaint to Determine Discharge-ability. Copies of the relevant pleadings and orders respecting the district court suit, are appended as exhibits to Plaintiff’s Motion for Summary Judgment. The facts which underlie the district court litigation and judgment are essentially undisputed.
5. On October 8, 1980, Plaintiff filed a civil action against Debtor and two other defendants in the United States District Court for the Northern District of Illinois, Eastern Division, captioned Winterland Concessions Company v. Creative Screen Design, Ltd., 80 C. 5389. On November 16, 1981, the district court (Honorable Hubert L. Will, District Judge) entered final judgment in favor of Plaintiff and against Debtor in the amount of $825,612.00 plus interest, costs and a $77,140.00 allowance for Plaintiff’s attorney fees.
6. Prior to October 8, 1980, Plaintiff held an exclusive license to market T-shirts *65and jerseys emblazoned with the names, likenesses, logos and symbolic designs of the following musical performers of entertainment groups1:
Journey
REO Speedwagon
Black Sabbath
Bob Seger
Blue Oyster Cult
Grateful Dead
Ted Nugent
Sammy Hagar
Aerosmith
Cheap Trick
Fleetwood Mac
AC/DC
Heart
Doobie Brothers
Bruce Springsteen
Ninety percent of the product manufactured by Plaintiff with reference to these performers is marketed inside concert or entertainment venues, for which privilege, Plaintiff paid $3,000,000.00 in fees to concert hall owners in the year prior to October 8, 1980. In addition, Plaintiff paid royalties aggregating $2,500,000.00 to the above-listed entertainers for its exclusive license to market these products within the United States and Canada.
7. Prior to October 8, 1980, the Debtor, together with ARNOLD GOLDZWEIG and CREATIVE SCREEN DESIGN, LTD., an Illinois corporation owned and controlled by the Goldzweigs, were engaged in the unlicensed manufacture and sale of T-shirts and jerseys bearing the names, likenesses, logos and symbolic designs of various musical groups and performers. In common parlance, this practice is referred to as “bootlegging.” Debtor and the other defendants would sell these bootleg T-shirts and jerseys for resale outside concert venues throughout the country, in direct competition with Plaintiff’s business operations inside those halls.
8. Plaintiff’s October 8, 1980, district court complaint alleged that Debtor and the other named defendants violated the common-law right of publicity of Plaintiff and the 15 plaintiff entertainer or entertainer groups, see Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576, 97 S.Ct. 2849, 2857, 53 L.Ed.2d 965 (1977); that the defendants’ conduct constituted wilful unfair competition in violation of the Illinois Deceptive Trade Practices Act, Ill.Rev.Stat. ch. 121V2, pars. 312, 313 (1979); and that the defendants’ conduct violated section 43(a) of the Lanham Act, 11 U.S.C. § 1125(a). A copy of Plaintiff’s October 8, 1980, complaint is attached as Exhibit A to Plaintiff’s Motion For Summary Judgment.
9. On October 20, 1980, the district court entered a Preliminary Injunction against Debtor and the other defendants in the district court action, restraining them from further manufacture, distribution or sale of products bearing the name, likeness, appearance, symbols, or any colorable variation thereof, of any of the 15 plaintiff entertainers or entertainment groups. A copy of this October 20, 1980, preliminary injunction is attached to Plaintiff’s Motion For Summary Judgment as part of Exhibit B.
10. In the separate Findings of Fact and Conclusions of Law which accompanied its October 20, 1980, Preliminary Injunction, the district court recited that on October 8, 1980, it had entered a Temporary Restraining Order which enjoined the Debt- or and the other defendants from (1) further manufacture or sale of bootleg T-shirts or jerseys; (2) distribution or alteration of their existing manufacturing facilities, raw material, art work, product or business records; and (3) ordered the defendants to comply with Plaintiff’s .discovery requests. The district court further found that Debtor and the other defendants violated the terms of the October 8, 1980, TRO, by their continuing manufacture and sales of bootleg product and by their (unsuccessful) attempt to destroy business records which evidenced these il*66legal sales. A copy of the district court's October 20, 1980, Findings of Fact and Conclusions of Law is attached to Plaintiffs Motion For Summary Judgment as part of Exhibit B.
11. Debtor and the other defendants filed a joint answer to Plaintiff’s district court complaint on January 7, 1981, which Answer denied the material allegations of Plaintiffs complaint. A copy of this January 7, 1981, answer is attached to Plaintiffs Motion For Summary Judgment as Exhibit C.
12. On October 21, 1981, the district court entered findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 56(d), with reference to the issue of the liability of Debtor and the other defendants upon Plaintiffs complaint. The district court found that the defendants had neither sought nor obtained license or permission to manufacture or market T-shirts and jerseys bearing the names of the 15 plaintiff entertainers or entertainment groups involved in that litigation. The district court found that all defendants knew, from the date of the creation of their business enterprise, to the date of issuance of the district court’s Preliminary Injunction, that they “had no legal right, license or permission to produce and sell shirts bearing the names of the groups and entertainers [listed in Plaintiff’s complaint],” and that the defendants knew that their production and sale of these shirts “was contrary to the legal rights of the groups and entertainers.”
13. The district court further found that a codefendant, ARNOLD GOLDZWEIG, owned a corporation named Fanci That Screen Design, which corporation did business as Israel Shirt Company. ARNOLD GOLDZWEIG utilized this company to market bootleg T-shirts and jerseys manufactured by defendant Creative Screen Design, Ltd.
14. The district court found that Fanci That Screen Design sold bootleg T-shirts and jerseys at a Bruce Springsteen concert held on October 10 and 11, 1980, in violation of the district court’s October 8, 1980, TRO. The district court expressly found that ARNOLD GOLDZWEIG knew of the October 10-11, 1980, sales, and that “he made no effort to stop them.” A copy of the district court’s October 23, 1981, Order is attached to Plaintiff’s Motion For Summary Judgment as Exhibit D.
15. On November 16, 1981, the district court entered judgment in favor of Plaintiff and against Debtor and defendant, ARNOLD GOLDZWEIG, jointly and severally, in the amount of $825,612.00, representing Plaintiff’s trebled actual damages. In addition, the district court entered judgment against ARNOLD GOLDZWEIG, individually, in the amount of $62,603.00, representing his profits from the resale of bootleg T-shirts and jerseys through his Fanci That Screen Design business. This judgment also allowed Plaintiff pre-judgment interest, costs, and its attorney fees. A copy of this November 16, 1981, judgment order is attached to Plaintiff’s Motion For Summary Judgment as part of Exhibit E.
16. On November 16, 1981, the district court entered a separate order which permanently enjoined Debtor and ARNOLD GOLDZWEIG, their agents, officers, servants, employees and attorneys, and all persons in active concert and participation with them, from manufacturing, distributing, selling, holding for sale, offering for sale or advertising, without authorization, any T-shirts, jerseys or other upper body garments bearing the name and/or likeness of any of the fifteen entertainers or entertainment groups named in Plaintiff’s complaint. A copy of this November 16, 1981, injunction order is attached to Plaintiff’s Motion For Summary Judgment as part of Exhibit E.
17. The district court issued findings of fact and conclusions of law on November 16, 1981, which accompanied its judgment and injunction orders of that date. The court found that Plaintiff was entitled to recover damages from Debtor and defendant, ARNOLD GOLDZWEIG, for violation of its common law right of publicity and for violation of section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)).
*6718. The district court’s November 16, 1981, findings concluded that Plaintiff was entitled to recover from Debtor and ARNOLD GOLDZWEIG its actual damages of $275,204, and that it had discretion under the Lanham Act to treble those damages upon its finding of wilful and intentional infringement, undertaken by Debtor and ARNOLD GOLDZWEIG, with full knowledge of the rights of Plaintiff and the plaintiff entertainers and entertainment groups which they had violated.
19. The district court’s November 16, 1981, findings of fact and conclusions of law contained the following express finding respecting the mental state of the Debtor in connection with his violation of the Lan-ham Act:
The defendants’ conduct in this case was intentional and wilful; each knew that what they were doing was illegal. Section 35 of the Lanham Act contemplates trebling in such a situation, and the actual damages established here, i.e., the sum of $275,204, will, under the discretion granted this Court by the statute, be trebled. Accordingly, judgment will be entered in favor of the plaintiffs and against Arnold Goldzweig and Allan Goldzweig, jointly and severally as joint tortfeasors, in the amount of $825,612.00.
20. The district court further found, on November 16, 1981, that Plaintiff was entitled to recover from ARNOLD GOLD-ZWEIG, individually, the $62,603.00 profit which he earned in connection with his resale of bootleg T-shirts and jerseys at concert venues respecting the fifteen named entertainers or entertainment groups through the instrumentality of Fan-ci That Screen Design. This allowance respecting ARNOLD GOLDZWEIG’s profits was not trebled by the district court, in light of the trebling of its additional award of Plaintiff’s actual damages.
21. The district court further found, on November 16, 1981, that it had discretion under Section 35 of the Lanham Act to grant an allowance of attorney fees in cases in which the conduct of the defendants could be described as malicious, fraudulent, deliberate and wilful. Pursuant to this section, the district court allowed Plaintiff reasonable attorney fees in the amount of $77,140.00. A copy of the district court’s Findings of Fact.and Conclusions of Law dated November 16, 1981, is attached to Plaintiff’s Motion For Summary Judgment as part of Exhibit E.2
22.The January 9, 1984, Response filed by Debtor with reference to Plaintiff’s Motion For Summary Judgment did not dispute the authenticity of any of the pleadings or orders entered by the district court respecting Plaintiff’s October 8, 1980, complaint, which were attached as exhibits to Plaintiff’s Motion For Summary Judgment.
The Court Concludes and Further Finds:
1. A motion for summary judgment made pursuant to Federal Rule of Civil Procedure 56 should be entered only when the pleadings, depositions, affidavits and admissions show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Crest Auto Supplies, Inc. v. ERO Manufacturing Co., 360 F.2d 896, 899-900 (7th Cir.1966).
2. A debt arising from a wilful and malicious injury by the debtor to another entity or to the property of another entity, if established and prosecuted in timely fashion, is excepted from the discharge afforded debtors in cases under Chapter 7 of the Bankruptcy Code. 11 U.S.C. § 523(a)(6). A malicious injury, for purposes of section 523(a)(6), is one which is wrongful, done without just cause or is excessive. A wilful injury, for purposes of that section, is one which is deliberately or intentionally inflicted. Vessel v. LaBrant (In re LaBrant), 23 B.R. 367, 369 (Bankr.N.D.Ill.1982); Perkins v. Scharffe (In re Scharffe), 40 B.R. 942, 944 (Bankr.E.D.Mich.1984); Morales v. Tanner (In re Tan*68ner), 31 B.R. 338, 339 (Bankr.S.D.Fla.1983).
3. In cases involving the question of dischargeability of debt under section 523(a) of the Bankruptcy Code, courts are permitted to invoke the doctrine of collateral estoppel to preclude the relitigation of relevant questions of fact which were fully and finally adjudicated with reference to a party to the dischargeability complaint, in another court of competent jurisdiction. Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979); United States Life Title Insurance Co. v. Dohm (In re Dohm), 19 B.R. 134, 136-37 (N.D.Ill.1982); U.S. Life Title Insurance Co. v. Wade (In re Wade), 26 B.R. 477, 481-82 (Bankr.N.D.Ill.1983).
4. The party which asserts collateral estoppel must provide the court with a record sufficient to establish the following criteria: (1) whether the issue sought to be concluded is the same as that involved in the prior action; (2) the issue was litigated in the prior action; (3) the issue was in fact judicially determined in the prior action; and (4) that the judgment in the prior action was dependent upon the determination made of the issue. See e.g. Whitley v. Seibel, 676 F.2d 245, 248 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982).
5. The issues sought to be collaterally estopped in the instant case concern (1) the validity and amount of Plaintiff’s claim against the Debtor; and (2) Debtor’s wilful and malicious mental state, with reference to his actions which gave rise to Plaintiff’s claim. See e.g. Vessel v. LaBrant (In re LaBrant), 23 B.R. 367, 369 (Bankr.N.D.Ill.1982).
6. The issue of the validity and amount of Plaintiff’s claim against Debtor was presented in the prior district court litigation. The issue respecting Debtor’s wilful and malicious mental state with reference to his actions which gave rise to Plaintiff’s claim, were presented in the district court litigation with reference to that court’s discretion to impose treble damages, see Boston Professional Hockey Association, Inc. v. Dallas Cap & Emblem Manufacturing, Inc., 597 F.2d 71, 77 (5th Cir.1979) (Lanham Act damages may be trebled in cases involving deliberate and fraudulent infringement), and respecting that court’s allowance of attorney fees, Vuitton et fils, S.A. v. Crown Handbags, 492 F.Supp. 1071, 1078 (S.D.N.Y.1979), aff'd, 622 F.2d 577 (2d Cir.1980) (attorney fees may be allowed under Lanham Act in exceptional cases where the acts of infringement can be characterized as malicious, fraudulent, deliberate or wilful).
7. The issues respecting Plaintiff’s claim against Debtor, and Debtor’s mental state which gave rise to that claim, were litigated by Plaintiff and Debtor in the district court action.
8. The issues respecting Plaintiff’s claim against Debtor, and Debtor’s mental state which gave rise to that claim, were judicially determined by the district court in its November 16, 1981, orders.
As a bankruptcy judge of the United States District Court for the Northern District of Illinois, Eastern Division, the Court has authority to take judicial notice of evi-dentiary facts and proceedings in the district court involving the present parties. In re Silver, 109 F.Supp. 200, 204 (N.D.Ill.1952), aff'd, Reeser v. Silver (In re Silver), 204 F.2d 259 (7th Cir.1953). The Court takes judicial notice of the evidentiary facts in the record and of the proceedings in the case of Winterland Concessions Co. et al. v. Creative Screen Design, Ltd., et al., 80 C 5389. In addition to the evidentiary matters set forth in this Memorandum Opinion and Order, the Court takes judicial notice that Debtor filed notice of appeal from the district court’s November 16, 1981, judgment on November 24, 1981. On April 27, 1982, Debtor’s appeal of that matter was dismissed by the Seventh Circuit Court of Appeals for want of prosecution. The district court’s November 16,1981, orders constituted final orders and the Debtor is bound by the provisions of those orders.
9. The district court’s November 16, 1981, judgment was dependant upon its *69adjudication of the validity of Plaintiff’s claim against Debtor. The district court’s allowance to Plaintiff of treble actual damages and counsel fees under the Lanham Act was expressly dependant upon the court’s finding that Debtor’s violation of Plaintiff’s rights under the Lanham Act, was wilful and malicious.
10. Plaintiff has provided this Court with a sufficient record upon which to accord collateral estoppel effect to the district court’s November 16, 1981, judgment. The application of collateral estoppel bars the relitigation of fact questions respecting the extent and validity of Plaintiff’s claim against Debtor, and respecting Debtor’s mental state which gave rise to this liability. There is no genuine issue of material fact in this record with reference to the factual allegations of Plaintiff’s Complaint to Determine Dischargeability. Plaintiff is entitled to summary judgment upon its dis-chargeability complaint as a matter of law.
11. This cause constitutes a core proceeding. 11 U.S.C. § 157.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion For Summary Judgment filed by Plaintiff, WINTERLAND CONCESSIONS COMPANY, upon its Complaint To Determine Dis-chargeability against Debtor, ALLAN GOLDZWEIG, be, and the same is hereby sustained.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment be, and the same is hereby entered in favor of Plaintiff, WINTERLAND CONCESSIONS COMPANY, and against Debtor, ALLAN GOLDZWEIG, upon Plaintiff’s Complaint To Determine Dischargeability in the amount of $902,752.00 plus the costs and interest allowed in the district court litigation involving these parties captioned Winterland Concessions Co. v. Creative Screen Design, Ltd., 80 C 5389, and costs of the present suit; and that such debt is nondischargeable under sections 727, 1141(d)(2) and 1328(b) of title 11 of the United States Code.
. Plaintiff amended its district court Complaint on October 15, 1980, to include these entertainers or entertainment groups as additional parties plaintiff in that action.
. The district court’s November 16, 1981, Findings of Fact and Conclusions of Law are reported at Winterland Concessions Co. v. Creative Screen Design, Ltd., 214 U.S.P.Q. 188 (N.D.Ill.1981). | 01-04-2023 | 11-22-2022 |
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