url stringlengths 56 59 | text stringlengths 3 913k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/8483426/ | NUMBER 13-22-00480-CV
COURT OF APPEALS THIRTEENTH
DISTRICT OF TEXAS CORPUS
CHRISTI – EDINBURG
IN THE INTEREST OF J.P.S., A CHILD
On appeal from County Court at Law No. 5
of Nueces County, Texas
ORDER
Before Chief Justice Contreras and Justices Benavides and Tijerina
Order Per Curiam
On October 7, 2022, appellant Cayla Payne filed a notice of appeal from a final order
terminating her parental rights. Appeals in parental termination cases are governed by the
rules of appellate procedure for accelerated appeals, which include expedited deadlines
and procedures. See TEX. R. APP. P. 28.4; TEX. R. JUD. ADMIN. 6.2(a). The intermediate
appellate courts are directed to ensure “as far as reasonably possible” that appeals in such
cases are brought to final disposition within 180 days of the date the notice of appeal is
filed. See TEX. R. JUD. ADMIN. 6.2(a).
Under these expedited deadlines, the reporter’s record in this case should have
been filed on October 17, 2022, and Payne’s brief on November 7, 2022. See TEX. R. APP.
P. 26.1(b), 35.1(b), 38.6(a). However, Payne’s appellate counsel failed to request the
reporter’s record until November 2, 2022, causing a significant delay in this accelerated
proceeding. See id. R. 38.6(b)(1) (requiring appellant to request the reporter’s record when
she files her notice of appeal). To date, the Court has not received the reporter’s record or
Payne’s brief.
To ensure the parties comply with the filing deadlines going forward, the Court orders
the court reporter to file the reporter’s record by November 14, 2022. The Court further
orders Payne to file her brief by December 5, 2022, and appellee to file its brief by
December 27, 2022. A request for extension by either party will be disfavored absent
extraordinary circumstances.
PER CURIAM
Delivered and filed on the
8th day of November, 2022.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483430/ | NUMBER 13-22-00459-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUAN YENELL VAZQUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
ORDER
Before Justices Longoria, Hinojosa, and Silva
Order Per Curiam
Appellant, Juan Yenell Vazquez, has filed a notice of appeal with this Court from
his conviction in trial court cause number S-19-3037CR. The trial court’s certification of
the defendant’s right to appeal shows that the defendant does not have the right to
appeal. See TEX. R. APP. P. 25.2(a)(2). The Texas Rules of Appellate Procedure
provide that an appeal must be dismissed if a certification showing that a defendant has
a right of appeal is not made a part of the record. Id. R. 25.2(d); see id. R. 37.1, 44.3,
44.4. The purpose of the certification requirement is to efficiently sort appealable cases
from non-appealable cases so that appealable cases can “move through the system
unhindered while eliminating, at an early stage, the time and expense associated with
non-appealable cases.” Greenwell v. Ct. of Apps. for the Thirteenth Jud. Dist., 159
S.W.3d 645, 649 (Tex. Crim. App. 2005); see Hargesheimer v. State, 182 S.W.3d 906,
912 (Tex. Crim. App. 2006).
Within thirty days of date of this notice, appellant’s lead appellate counsel,
Diamond De Leon, is hereby ORDERED to: 1) review the record; 2) determine whether
appellant has a right to appeal; and 3) forward to this Court, by letter, counsel’s findings
as to whether appellant has a right to appeal and/or advise this Court as to the
existence of any amended certification. If appellant’s counsel determines that appellant
has a right to appeal, counsel is further ORDERED to file a motion with this Court within
thirty days of this notice, identifying and explaining substantive reasons why appellant
has a right to appeal. See TEX. R. APP. P. 44.3, 44.4; Dears v. State, 154 S.W.3d 610,
614–15 (Tex. Crim. App. 2005); see also, e.g., Carroll v. State, 119 S.W.3d 838, 841
(Tex. App.—San Antonio 2003, no pet.) (certification form provided in appendix to
appellate rules may be modified to reflect that defendant has right of appeal under
circumstances not addressed by the form). The motion must include an analysis of the
applicable case law, and any factual allegations therein must be true and supported by
the record. See Dears, 154 S.W.3d at 614–15; cf. Woods v. State, 108 S.W.3d 314,
316 (Tex. Crim. App. 2003) (construing former appellate rule 25.2(b)(3) and holding that
recitations in the notice of appeal must be true and supported by the record). Copies of
record documents necessary to evaluate the alleged error in the certification affecting
2
appellant’s right to appeal shall be attached to the motion. See TEX. R. APP. P. 10.1,
10.2.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on
the 7th day of November, 2022.
3 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483431/ | Affirmed and Memorandum Opinion filed November 10, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00064-CV
THE GORE FAMILY LIMITED PARTNERSHIP, Appellant
V.
WRIGHT GORE, JR., RAYMOND GORE AND GARY GORE, Appellees
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Cause No. 111192-CV
MEMORANDUM OPINION
The Gore Family Limited Partnership (GFLP) appeals a summary judgment
granted in favor of Raymond and Gary Gore.1 In a single issue on appeal GFLP
asserts the trial court erred in finding that res judicata precluded its claims. We
affirm.
1
In GFLP’s original petition it named Wright Gore, Jr. as a defendant but Wright Jr. joined
GFLP’s claims in the petition. Because Wright Jr. was a defendant in the trial court, we include
him as an appellee in this appeal but note that his interests are aligned with GFLP.
BACKGROUND
In 1991, the shareholders of Western Seafood were Wright and Isabel Gore
(the Gore Parents) and their three sons: Wright Gore, Jr., Gary Gore and Raymond
Gore (collectively, the Gore Brothers). A 1991 Stockholders Agreement restricted
the Gores’ ability to transfer any stock. The shareholders agreed that no gift of stock
could be made to anyone except a spouse, child, grandchild or family trust, and no
stock could be conveyed to a third party without the consent of all shareholders. Any
purported transfer of stock in violation of the agreement would be “void and
ineffectual, and shall not operate to transfer any interest or title.”
In 2000, the Gore Parents created GFLP as part of their estate planning. The
Gore Parents attempted to fund GFLP with 11,546 shares of Western Seafood, which
constituted just over 54% of the company. Wright Jr. asserted that the funding of
GFLP with shares in the company did not contravene the Stockholders Agreement
because it should be considered a gift to the family since GFLP would eventually be
owned in equal share by the Gore Brothers.
After the deaths of the Gore Parents, the percentage ownership of Western
Seafood corresponding to each of the Gore Brothers was: Wright Jr. 36%, Raymond
33%, and Gary 31%. Disputes arose among the Gore Brothers over the operations
of Western Seafood. In 2014, Raymond and Gary, as 64% shareholders together,
claimed to constitute the majority ownership of Western Seafood. In response,
Wright Jr. contended the majority owner of Western Seafood was GFLP, which
purportedly held just over 54% of the company. Gary and Raymond challenged this
claim by asserting that the transfer of stock by the Gore Parents to GFLP was in
contravention of the Stockholders Agreement, rendering the transfer void.
The history of the litigation between the parties encompasses two former
actions in two different Brazoria County District Courts.
2
Cause No. 73301
In July 2013, Western Seafood and Wright, Jr. were sued in the 412th District
Court in Brazoria County on a guarantee that Wright, Jr. allegedly entered into in
Western Seafood’s name (Cause no. 73301). See Gore Family Ltd. P’ship, Ltd. v.
Gore, No. 01-17-00165-CV, 2018 WL 3384554, at *1 (Tex. App.—Houston [1st
Dist.] July 12, 2018, no pet.) (mem. op.). Raymond and Gary intervened in that suit
and alleged that the Gore Parents’ attempt to transfer stock to GFLP was void. Id.
On September 18, 2015, Raymond and Gary moved for partial summary
judgment against Wright Jr. on their declaratory judgment claim as to ownership of
Western Seafood. They argued that the stock transfer was void under the
Stockholders Agreement, which prohibited (subject to two inapplicable exceptions)
and declared void the transfer of shares outside the family or a family trust. Id.
On October 12, 2015, Raymond and Gary filed a seventh amended petition in
cause no. 73301 in which they sought declaratory judgment, and temporary and
permanent injunctions. The seventh amended petition named GFLP as a party.
Raymond and Gary asserted claims against Wright Jr. for breach of fiduciary duty
and breach of a settlement agreement. Raymond and Gary further sought a
declaratory judgment to establish the rights of the parties to Western Seafood.
On October 13, 2015, trial commenced on the other claims in the case. Several
days in, all parties except GFLP reached a settlement releasing all claims asserted in
this action, except claims against GFLP. Gore Family Ltd. P’ship, Ltd., 2018 WL
3384554, at *1. On October 29, 2015, the parties filed notice of their settlement
agreement. In the settlement agreement the parties agreed to appoint a “Liquidating
Manager” to “dissolve the above Companies [including Western Seafood] as soon
as practicable[.]” The parties agreed that the Liquidating Manager would distribute
all proceeds of Western Seafood (in addition to other companies) in the following
3
percentages:
• 38% –Wright Gore, Jr.;
• 62% – Raymond and Gary Gore collectively
The settlement agreement further provided for the dismissal of “all causes of
action, claims, counterclaims and cross claims by, between and among them in the
consolidated lawsuit pending under cause no. 73301, Raymond Gore and Gary Gore,
individually and in their derivative capacity on behalf of Western Seafood Company,
Plaintiffs, vs. Western Seafood Company, Wright W Gore, Jr., and Gore Family
Limited Partnership, Defendants[.]” (emphasis added) The trial court subsequently
appointed Lynn Klement as Liquidating Manager for the purpose of winding down
and liquidating Western Seafood.
On January 3, 2017, GFLP filed a motion for entry of judgment and motion
for severance in which it alleged that the trial court’s partial summary judgment
declaring the stock transfer void was not final. GFLP asked the trial court to sever
the issue of the validity of the stock transfer into a separate cause of action to permit
GFLP to appeal the trial court’s ruling. On February 3, 2017, the trial court signed
an “Order of Severance and Final Judgment” in which it noted that Raymond and
Gary’s motion for partial summary judgment was heard on October 12, 2015. The
order stated that the settlement agreement “released all claims asserted in this action
against the other parties to the action except the claims against the Gore Family
Limited Partnership which was not a party to the settlement.” The trial court
“officially granted” partial summary judgment declaring the stock transfer that
created GFLP void. The court further ordered that “the cause of action stated herein
between the Gore Family Limited Partnership and Intervenors be severed from the
remaining cause of action alleged herein and from the issues resolved in the
settlement agreement[.]” The severed claim was given the cause no. 90228.
4
Cause no. 90228
GFLP appealed the partial summary judgment ruling (now final after
severance) to the First Court of Appeals. The First Court of Appeals dismissed
GFLP’s appeal because at the time the summary judgment was granted GFLP was
not a party to the underlying action, nor did Raymond and Gary move for summary
judgment against GFLP. Gore Family Ltd. P’ship, Ltd., 2018 WL 3384554, at *3.
The court held that GFLP lacked standing to pursue an appeal because Raymond and
Gary had not moved for summary judgment against the partnership. Id. The record
does not reflect any further activity in cause no. 90228.
Cause no. 98063
On September 7, 2018, GFLP filed another suit against Lynn Klement,
liquidating manager, Freeport Economic Development Corporation, and Raymond
and Gary Gore. GFLP again alleged it acquired 54.28302% of the shares of Western
Seafood through the stock transfer that had been declared void in cause no. 73301.
Raymond and Gary Gore filed a motion for summary judgment and motion to
expunge notice of lis pendens in that case, which the trial court granted on January
24, 2019.
In a letter to the parties noting the court’s ruling, the trial court explained the
bases of its ruling. The trial court disagreed with the First Court of Appeals and
determined that GFLP was indeed a party at the time the partial summary judgment
in Cause no. 73301 was granted. The trial court further found that GFLP acquiesced
in the settlement agreement understanding that it had no stock interest in Western
Seafood based on the previous court’s summary-judgment ruling. The trial court
found that the issue of the stock transfer had been decided and that res judicata
precluded GFLP from relitigating the claim. The trial court also found that even if
GFLP was not a party to the original cause, GFLP was in privity with a party before
5
the court in Cause no. 73301 and res judicata applied. The trial court determined that
Wright Jr. and GFLP shared an interest in showing the validity of the stock transfer
into the partnership. The trial court therefore granted summary judgment on res
judicata grounds. On February 27, 2019 the claims in Cause no. 98063 were
nonsuited.
Cause no. 111192–the underlying cause on appeal
On December 31, 2020, the trial court signed an order in cause no. 73301
approving plans for final distribution of Western Seafood’s assets.
On January 15, 2021, GFLP filed the underlying suit naming the Gore
Brothers as defendants. GFLP again alleged it owned 54.28302% of Western
Seafood by virtue of the stock transfer from the Gore Parents. GFLP also claimed
the First Court of Appeals, in its opinion dismissing GFLP’s appeal, declared GFLP
the “equitable owner” of Western Seafood. GFLP further filed a notice of lis pendens
in which it sought to quiet the title purported to be conveyed by Lynn Klement.
On October 1, 2021, Raymond and Gary Gore filed a combined motion for
traditional summary judgment and motion to expunge lis pendens in which they
alleged that the doctrine of res judicata prohibited GFLP’s claim because two final
judgments had been rendered declaring the stock transfer void.
GFLP filed a response to the motion for summary judgment in which it alleged
that it was not a party in Cause no. 73301, and, therefore, not bound by the trial
court’s order approving plans for final distribution. GFLP further argued that the
first summary judgment in Cause no. 73301 did not bind GFLP because it was not a
party. GFLP further asserted that the Uniform Declaratory Judgment Act contains a
provision that prevents the application of res judicata to a non-party. GFLP further
asserted that the summary judgment in Cause no. 98063 was not final and did not
6
involve the same issues before the court.
On January 24, 2022, the trial court signed an order granting Raymond and
Gary’s motion for summary judgment and expunging the notice of lis pendens. This
appeal followed.
ANALYSIS
In a single issue on appeal GFLP contends that Raymond and Gary Gore failed
to present summary judgment evidence proving conclusively their claim that GFLP
did not own a majority share of Western Seafood. Because the trial court’s order was
based on Raymond and Gary’s motion for summary judgment alleging res judicata,
we review whether Raymond and Gary conclusively established that res judicata
barred GFLP’s claims.
I. Standard of Review and Applicable Law
We review de novo the trial court’s ruling on a motion for summary judgment.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). In a traditional motion for summary judgment, the movant must establish that
no genuine issue of material fact exists, and the movant is thus entitled to judgment
as a matter of law. Tex. R. Civ. P. 166a(c). When reviewing a summary judgment,
we take as true all evidence favorable to the nonmovant and indulge every reasonable
inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). A genuine issue of material fact exists if
the nonmovant produces more than a scintilla of probative evidence regarding the
challenged element. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.
2004). A defendant moving for traditional summary judgment must conclusively
establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez,
7
941 S.W.2d 910, 911 (Tex. 1997).
Res judicata bars claims that were brought, or could have been brought, in an
earlier lawsuit that resulted in a final judgment on the merits. Igal v. Brightstar Info.
Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008), superseded by statute, Tex. Lab.
Code § 61.051(c). To prevail on the defense, a party must show that (1) in a previous
action, a court of competent jurisdiction rendered a final determination on the merits
of a claim, (2) the parties in the earlier action are identical to, or in privity with, the
present parties, and (3) the pending claim (a) is identical to the prior claim or (b)
arises out of the same subject matter as the prior claim and could have been litigated
in the previous action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.
2010).
Parties are “in privity” with each other for purposes of res judicata if they have
an identity of legal interest in the earlier and present suits. Getty Oil Co. v. Insurance
Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992). We examine the circumstances of
each case to determine if privity exists between the parties. Benson v. Wanda
Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971). The application of res judicata to
suits by those in privity with a prior party exists to “ensure that a defendant is not
twice vexed for the same acts, and to achieve judicial economy by precluding those
who have had a fair trial from relitigating claims.” Amstadt v. U.S. Brass Corp., 919
S.W.2d 644, 653 (Tex. 1996). There are at least three ways in which parties can be
in privity under Texas law: “(1) they can control an action even if they are not parties
to it; (2) their interests can be represented by a party to the action; or (3) they can be
successors in interest, deriving their claims through a party to the prior action.” Id.
The touchstone of the representation-of-interests inquiry is whether “the parties
share an identity of interests in the basic legal right that is the subject of litigation.
To determine whether a prior and later lawsuit involve the same basic subject matter,
8
we focus on the factual basis of the complaint.” Id. (internal citation omitted). Privity
for res judicata purposes will exist under the representation-of-interests when the
circumstances are such as to allow a court to conclude that the non-party had notice
and an opportunity to be heard in the former litigation. See Taylor v. Sturgell, 553
U.S. 880, 894 (2008).
II. The doctrine of res judicata bars GFLP’s claim of majority ownership of
Western Seafood.
GFLP asserts that Raymond and Gary failed to conclusively establish all
elements of res judicata. We address each element in turn.
A. In a previous action, a court of competent jurisdiction rendered a
final determination on the merits of a claim.
The parties agree that, on February 3, 2017, the trial court in the 412th District
Court of Brazoria County, in Cause no. 73301, signed a final judgment stating, inter
alia, “the stock transfer to the Gore Family Limited Partnership is declared to be
void.”
GFLP asserts that Raymond and Gary’s summary judgment proof fell short
because there was no final judgment in Cause no. 98063 or in Cause no. 90228.
While there is room to discuss whether the judgment in Cause no. 98063 was final,
this element does not require final judgments in all litigation between the parties.
This element requires that a court of competent jurisdiction rendered a final
determination on the merits of a claim. See Travelers Ins. Co., 315 S.W.3d at 862.
There is no dispute that the 412th District Court—a court of competent
jurisdiction—rendered a final determination in Cause no. 73301 that the stock
transfer to GFLP was void. This issue was not appealed by any party to the judgment
and, is therefore, final.
9
B. The parties in the earlier action are identical to, or in privity with,
the present parties.
The parties in Cause no. 73301 were not identical to the parties in the
underlying dispute. After the trial court signed a final judgment and a severance
order in Cause no. 73301, GFLP appealed the court’s ruling that the stock power
signed in 2000 did not effect any transfer of Western stock to GFLP. In dismissing
the appeal, the First Court of Appeals held that GFLP lacked standing to appeal the
ruling because no summary judgment was entered against the partnership. See Gore
Family P’ship v. Gore, 2018 WL 3384554, at *3. Raymond and Gary had moved for
summary judgment seeking to declare the stock transfer void only against Wright Jr.
At the time the summary judgment motion was filed, GFLP was not a party to the
action, thought it agreed to become a party, and in fact it filed an appearance in the
action, before the trial court’s summary judgment ruling.2 The court of appeals held
that GFLP had no standing to complain about a summary judgment entered against
Wright Gore, Jr. Further, the court observed that the ruling against Wright Jr. would
not prejudice the right of GFLP to “defend the validity of the stock transfer in its
severed cause of action.” Id. at *3. After the appeal was dismissed, however, GFLP
did not take any action toward defending the validity of the stock transfer in the
severed proceeding. Rather, it filed a new, independent proceeding.
The question, therefore, is whether GFLP was in privity with Wright Jr.
against whom summary judgment was granted in Cause no. 73301. The issue of
privity as it relates to claim preclusion usually arises with respect to plaintiffs; that
is, the question is whether the plaintiff in a subsequent action against a particular
defendant is in privity with the plaintiff in an earlier action against the same
2
In its amended motion for entry of judgment and motion for severance in Cause no. 73301,
GFLP asserted, “it filed an appearance in this case as a Defendant shortly before the granting of
the Partial Summary Judgment in October, 2015.”
10
defendant. See Amstadt, 919 S.W.2d at 653. The doctrine of res judicata is meant “to
ensure that a defendant is not twice vexed for the same acts” and “to achieve judicial
economy by precluding those who have had a fair trial from relitigating claims.” Id.
In other words, res judicata exists both to protect defendants from repetitive
litigation and to limit plaintiffs to one bite at the apple. The latter objective supports
extending res judicata to defendants who are in privity with an original party, and
indeed courts have done so. See, e.g., Samuel v. Fed. Home Loan Mortg. Corp., 434
S.W.3d 230, 234–35 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
In their summary judgment motion, Raymond and Gary invoked the
“adequate representation” basis for privity. “Privity connotes those who are so
connected with a party to the judgment in the law such that the party to the judgment
represented the same legal right.” Id. at 234. In this case, both Wright Jr. and GFLP
assert that GFLP has majority ownership of Western Seafood arising out of the same
stock transaction in which the Gore Parents attempted to transfer over 54% of the
stock in Western Seafood to GFLP. This is exactly the same argument that Wright
Jr. asserted in Cause no. 73301. The final judgment in Cause no. 73301
unequivocally determined that stock transfer to be void. There also exists a
substantive legal relationship between Wright Jr. and GFLP—Wright Jr. is GFLP’s
general partner. While the record indicates that Wright Jr. did not appear in the prior
proceeding in his capacity as GFLP’s general partner, it is true nonetheless that
GFLP’s interest is identical to Wright Jr.’s interest and both of them would benefit
from a ruling that the stock transfer was valid. Moreover, in GFLP’s original petition
in Cause no. 111192, GFLP clearly equates its interest in the issue at hand with
Wright Jr.’s interest: “Wright Gore, Jr. individually and as General Partner of GFLP
supports the contentions expressed in this pleading and confesses judgment to the
claims herein by GFLP.” We also note that GFLP has not advanced any argument
11
in support of the stock transfer’s purported validity that was not advanced by Wright
Jr.; thus, GFLP has not asserted that Wright Jr.’s arguments in the prior proceeding
failed to adequately represent GFLP’s interests. Finally, the ultimate point in this
inquiry is to ensure that the circumstances are such so that we may conclude that the
non-party had notice and an opportunity to be heard in the former litigation. See
Taylor, 553 U.S. at 894. The record before us establishes conclusively that GFLP
received sufficient notice and opportunity as a matter of law. Not only has it
acknowledged that it appeared in Cause no. 73301 before the trial court ruled on the
validity of the stock transfer, it caused the court to enter a final judgment by
severance, it attempted an appeal, and was informed by the court of appeals that it
retained the right to assert the stock transfer’s validity in the severed action. But it
did not do so. Thus, we conclude that GFLP’s sole interest in the stock transfer was
sufficiently represented by Wright Jr. in Cause no. 73301. GFLP is therefore in
privity with Wright Jr. for res judicata purposes. See id. at 235 (parties representing
interests of another party were in privity).
In support of its contention that the principles of res judicata do not apply to
GFLP, GFLP relies on Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 336 (Tex.
Civ. App.—Dallas 1973, no writ). In Valley Oil, the City of Garland sought an
injunction against a gasoline station that was operating in an area prohibited by a
zoning ordinance. Id. at 335. Valley Oil Company defeated Garland’s request for an
injunction. On appeal, the Dallas Court of Appeals reversed and rendered judgment
for Garland, stating that Valley Oil Company was violating the zoning ordinance.
Id. In its request for relief in the court of appeals, Garland did not seek to have the
court issue an injunction against Valley Oil Company. After the court of appeals’
mandate issued, Garland filed a “Petition for Injunction to Enforce the Judgment” in
the trial court. The trial court granted the injunction and Valley Oil Company
12
appealed. Id. Valley Oil Company answered with a plea of res judicata. The Dallas
Court of Appeals determined that the injunction, granted by the trial court after its
mandate had been issued, was not barred but was rather a proper means of giving
the court of appeals’ first judgment full effect. Id. at 336. The court of appeals
determined that the police power to regulate the use of property was appropriate in
that case although it went against the usual rule of res judicata. Id. The court held
that “a judgment granting declaratory relief only does not bar a subsequent
application for supplemental coercive relief unless such application was actually
considered and denied in the original proceeding.” Id. at 335.
GFLP asserts that the decision in Valley Oil defines an exception for res
judicata when the original suit sought only declaratory judgment. We disagree.
Valley Oil addressed the very specific scenario of a political subdivision’s exercise
of coercive orders to enforce its judgment. Id. Neither party here is a political
subdivision with the use of coercive police powers; accordingly, Valley Oil does not
apply to this case.
Because GFLP, through Wright Jr., now seeks to assert the validity of the
stock transfer, which was declared void in prior litigation, we conclude that GFLP
and Wright Jr. are in privity for res judicata purposes.
C. The pending claim is identical to the prior claim or arises out of the
same subject matter as the prior claim and could have been litigated in
the previous action.
“To determine whether a prior and later lawsuit involve the same basic subject
matter, [courts] focus on the factual basis of the complaint.” Amstadt, 919 S.W.2d at
653. Determining the scope of the subject matter or transaction of the prior suit
requires “an analysis of the factual matters that make up the gist of the complaint,
without regard to the form of action.” Barr v. Resolution Trust Corp. ex rel. Sunbelt
13
Fed. Sav., 837 S.W.2d 627, 630 (Tex. 1992). Factors relevant to this determination
include (1) “whether the facts are related in time, space, origin, or motivation,” (2)
“whether they form a convenient trial unit,” and (3) “whether their treatment as a
trial unit conforms to the parties’ expectations or business understanding or usage.”
Id. at 631.
In Cause no. 73301, the trial court stated on the record:
I heard the arguments concerning the motion for summary judgment as
it pertained to the transfer of stock of Western Seafood by Mr. and Mrs.
Gore which purportedly took place sometime in the year 2000. The
Court was asked to find as a matter of law that there was no ambiguity
in a stockholders agreement which was signed on February 2nd, 1991,
and was Exhibit B to the then Intervenors’ motion for summary
judgment.
The Court was asked to find as a matter of law that there is a difference
between a trust and a family limited partnership and the Court was
asked to find as a matter of law that a stock power—
*****
that was Exhibit L to Intervenors’ traditional motion for summary
judgment was itself void.
After hearing the arguments and based upon caselaw that I have found
I will hold that the stock restriction agreement in 1991 is not
ambiguous, that a limited partnership is not a trust. I will not hold the
stock power itself is void. But my ruling is that the effect of the stock
power is void in that the stock power did not affect any transfer, as I
had no evidence before me that there was consent of all of the
shareholders to the transfer of the stock from Mr. and Mrs. Gore to the
Gore Family Limited Partnership.
The trial court later signed a final judgment documenting its ruling that “the stock
transfer to the Gore Family Limited Partnership is declared to be void.”
In GFLP’s live pleading in the underlying action, it sought declaratory
judgment as follows:
14
GFLP seeks declaratory judgment of its rights under the Stock Power
of 2000 in which the parents of the Gore brothers transferred a majority
of the stock in Western to GFLP[.]
In comparing the trial court’s oral ruling and written judgment in Cause no.
73301 to the relief sought by GFLP in the underlying action, we conclude the
pending claim is identical to the claim already adjudicated.
The facts underlying both actions are thus “related in time, space, and origin,”
and the claims in each pertain to the same ultimate question—whether the stock
transfer that created GFLP was void. As a result, we hold that GFLP’s underlying
claim arises from the “same basic subject matter” as Wright Jr.’s claims in Cause
no. 73301.
Having determined that Raymond and Gary conclusively established each
element of res judicata, we overrule GFLP’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
15 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483438/ | Affirmed and Memorandum Opinion filed November 10, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00651-CV
DARRELL DALEN FORD, Appellant
V.
ARACELI P. FORD, Appellee
On Appeal from the County Court at Law
Grimes County, Texas
Trial Court Cause No. 3828
MEMORANDUM OPINION
Darrell Glenn Ford (“Dale”) appeals from the final decree of divorce
dissolving his marriage to Araceli P. Ford. Dale contends that the trial court erred
in its division of the marital estate, particularly in dividing the parties’ sole piece of
real property, and in permitting Araceli to offer evidence despite the prior
imposition of discovery sanctions against her. We affirm.
Background
Dale and Araceli got married in 1995. In 2017, Araceli filed a petition for
divorce and Dale filed a counter-petition. By that time, the couple’s children were
grown, and the couple owned a 50-acre ranch as well as numerous items of
personal property. Prior to trial, Dale filed a motion to compel discovery and a
subsequent motion for discovery sanctions. The trial court granted both motions
and ordered that Araceli would not be allowed to testify as to the value of
community property.1
Regarding the ranch, Dale acknowledged in his testimony that it had been
appraised for tax purposes at $529,280, but he testified that it was actually worth
only $400,000. He further opined that the westernmost ten acres of the ranch had
the richest soil and were the most beautiful. He requested that the trial court award
him the ranch in its entirety, but in the alternative, he suggested Araceli receive the
“richest 10 acres” and he receive the other 40 acres, which included a mobile
home, a barn, a pond, and other improvements.
Prior to Araceli’s testimony, Dale’s attorney offered a blanket objection to
any testimony or other evidence Araceli might offer as to the value of the couple’s
assets. The trial judge then indicated that he would allow Araceli to offer her own
opinion regarding value but he would not allow her to introduce evidence of third-
party valuations. Araceli then testified that she thought the ranch and the mobile
home together were worth one million dollars. The trial court also admitted into
evidence a spreadsheet offered by Araceli showing numerous property items and
1
The appellate record does not contain the trial court’s sanctions order; however, Dale
asserts the order barred Araceli from testifying on value and she does not dispute that
characterization. See generally Tex. R. App. P. 38.1(g) (“In a civil case, the court will accept as
true the facts stated unless another party contradicts them.”). The precise language in the order
would have no bearing on our resolution of the issues in this appeal.
2
the values assigned to those items by both Dale and Araceli. The court also
admitted a spreadsheet offered by Dale listing values.
In the final decree of divorce, the trial court ordered the ranch land to be
divided fairly evenly, with Dale receiving the eastmost 23 acres, including the
mobile home and its contents, the barn and its contents, and the pond, and Aracelli
receiving the western 27 acres, including the “richest 10 acres.” Araceli
additionally received various items of personal property including household
furnishings, clothing, jewelry, and other personal effects in her possession, the
funds on deposit in two bank accounts, a Yukon SUV, two dogs, and some birds.
Dale additionally received various personal property items including
extensive furniture and furnishings, two televisions, clothing, jewelry, other
personal effects, the funds in two other bank accounts, 12 vehicles, four boats, a
tractor, a “fifth wheel” trailer, a gooseneck trailer, four vehicle frames, jet skis, a
four-wheeler, multiple pieces of shop equipment, power tools, riding lawn mowers,
a forklift, the rights in a timeshare, three horses, and a dog. Among the debts
assigned to the parties, each was assigned the taxes and other encumbrances
associated with the property they received, Areceli was assigned five health-related
accounts, and Dale was ordered to pay the couple’s income tax arrears.
Discussion
As mentioned, Dale asserts in a single issue on appeal that the trial court
erred in (1) dividing the marital estate and (2) permitting Araceli to offer evidence
despite the discovery sanctions against her. We will discuss each argument in turn.
Property division. Under his first argument, Dale specifically asserts that
the trial court lacked sufficient evidence to make a just and right division of the
property. In dividing marital property upon divorce, a trial court must order a
3
division in a manner that the court deems just and right, having due regard for the
rights of each party. Tex. Fam. Code § 7.001. The property division need not be
equal, but it must be equitable, and a trial court may consider numerous factors
when exercising its broad discretion to divide the marital property, including the
relative earning capacity and business opportunities of the parties, the parties’
relative financial condition and obligations, the parties’ education, the size of the
separate estates, and the probable need for future support. Murff v. Murff, 615
S.W.2d 696, 699 (Tex. 1981); Marriage of O’Brien, 436 S.W.3d 78, 81 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).
We presume the trial court properly exercised its discretion and will correct
the trial court’s division of marital property only when an abuse of discretion has
been shown. Murff, 615 S.W.2d at 698; O’Brien, 436 S.W.3d at 82. The test for
abuse of discretion is not whether, in the opinion of the reviewing court, the facts
present an appropriate case for the trial court’s action, but rather, whether the court
acted arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985). We indulge every reasonable presumption in
favor of finding the trial court properly exercised its discretion in dividing the
community estate. O’Brien, 436 S.W.3d at 82. To prevail on a complaint about the
division of property, an appellant has the burden of demonstrating, based on
evidence in the record, that the division was so unjust and unfair as to constitute an
abuse of discretion. O’Brien, 436 S.W.3d at 82. Under the abuse of discretion
standard, sufficiency of the evidence is not an independent ground of error but
rather is a relevant factor in assessing whether the trial court abused its discretion.
In re Marriage of Penafiel, 633 S.W.3d 36, 44–45 (Tex. App.—Houston [14th
Dist.] 2021, pet. denied).
Although Dale asserts the trial court had insufficient information on which
4
to base a just and right division of the marital estate, he does not offer a general
analysis regarding the overall value of the estate or the property awarded to each
party. As mentioned above, to prevail on a complaint about the division of
property, an appellant has the burden of demonstrating, based on evidence in the
record, that the division was so unjust and unfair as to constitute an abuse of
discretion. See O’Brien, 436 S.W.3d at 82 (citing cases). Here, the trial court
received valuation testimony by both parties as well as asset value spreadsheets
from both parties, but Dale does not discuss the overall valuation evidence.
Dale instead focuses on the value of the ranch and his testimony that ten
acres of the 50-acre ranch had richer soil than the remaining 40 acres. Dale
suggests that awarding Araceli 27 acres, which included the “richest 10 acres,” and
him only 23 acres of the remaining property resulted in an unjust and unfair
division of the marital estate. Contrary to Dale’s assertion in his brief that the
“richest 10 acres” were worth more than the other 40 acres combined, the
testimony he cites only indicates that the ten acres had the richest soil, was the
most beautiful, and would make the best homestead. He did not testify as to any
comparative value between the ten acres and the rest of the property. Indeed, the
portion of the property Dale received included the mobile home, the barn, the
pond, and other improvements that would seem to add to its value. Additionally, it
is clear that Dale received considerably more of the couple’s personal property
than did Araceli, including numerous vehicles, shop equipment, and a timeshare he
valued at $30,000. Although photographs show that many of the vehicles and boats
Dale was awarded were in a state of disrepair, both sides ascribed value to them.
Ultimately, having not provided an overall analysis of the value of the
property awarded to each party, Dale has not met his burden of demonstrating the
trial court abused its discretion in the division of property in this case. See id.
5
There was certainly sufficient evidence in the record for the trial court to make its
determination.
Araceli’s evidence. In his second argument, Dale asserts that the trial court
erred in permitting Araceli to present valuation evidence in light of earlier
discovery sanctions the trial court imposed on her restricting such evidence. We
begin our analysis of this argument by noting that Dale does not cite any authority
in this section of his brief, either directly supporting the contention he makes or
setting forth any relevant law. This argument is therefore inadequately briefed. See
Tex. R. App. P. 38.1(i) (requiring that appellate briefs “must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record”); see also Nguyen v. Pham, 640 S.W.3d 266, 271 (Tex. App.—
Houston [14th Dist.] 2021, pet. denied).
A trial court has the inherent authority to change, modify, or set aside an
interlocutory order at any time before the expiration of its plenary power. See
Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); see also In re
Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex.
2005); Nguyen v. Aventus Ins. Co., No. 14-19-00607-CV, 2021 WL 4472479, at *2
(Tex. App.—Houston [14th Dist.] Sept. 30, 2021, no pet.) (mem. op.). We further
note that Dale did not request a continuance when the trial court stated Araceli
would be allowed to testify as to value.
In his brief, Dale generally asserts that allowing Areceli to put on valuation
evidence, when he prepared for trial under the impression she would not be
permitted to do so, caused him harm. He offers no explanation, however, for how
the trial court’s action was error or, if it was, how it caused actual rather than
theoretical harm to his case. Dale certainly presented his own evidence of
valuation, and as discussed above, he has offered no analysis regarding how the
6
overall division of property was unjust or unfair. Accordingly, we find no merit in
this second argument.
Having found no merit in either of appellant’s arguments, we overrule his
sole issue. We affirm the trial court’s judgment.
/s/ Frances Bourliot
Justice
Panel consists of Justices Bourliot, Hassan, and Wilson.
7 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483434/ | Order filed November 10, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00564-CV
____________
RAMESH KAPUR, Appellant
V.
NANIK BHAGIA, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2020-12994
ORDER
The clerk’s record was filed September 28, 2022. Our review has determined
that a relevant item has been omitted from the clerk's record. See Tex. R. App. P.
34.5(c). The record does not contain "Notice of Appeal Pending Ruling to
Reinstate" filed May 4, 2022.
The Harris County District Clerk is directed to file a supplemental clerk’s
record on or before November 21, 2022, containing the above listed document.
If the omitted item is not part of the case file, the district clerk is directed to
file a supplemental clerk’s record containing a certified statement that the omitted
item is not a part of the case file.
PER CURIAM
Panel Consists of Justices Zimmerer, Spain, and Hassan. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483435/ | Motion Granted; Order filed November 10, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00473-CV
____________
PRIORITY ARTIFICIAL LIFT SERVICES, LLC AND EP ENERGY E&P
COMPANY, L.P., Appellants
V.
MICHAEL CHILES, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2016-13626
ORDER
The parties have filed an agreed motion to enter a briefing schedule. The
motion is GRANTED. We order:
• The opening brief of Priority Artificial Lift Services is due November
30, 2022, with a word limit of 15,000;
• The opening brief of EP Energy E&P Company is due November 30,
2022, with a word limit of 15,000;
• Chiles’ response to Priority Artificial Lift Services and cross-appellant
brief is due December 30, 2022, with a word limit of 18,000;
• Chiles’ response to EP Energy E&P and cross-appellant brief is due
December 30, 2022, with a word limit of 18,000;
• Priority Artificial Lift Services’ combined reply brief and response to
cross-points is due January 19, 2023, with a word limit of 10,500;
• EP Energy E&P Company’s combined reply brief and response to
cross-points is due January 19, 2023, with a word limit of 10,500;
• Chiles’ reply brief against Priority Artificial Lift Services is due
February 8, 2023, with a word limit of 3,000; and
• Chiles’ reply brief against EP Energy E&P Company is due February
8, 2023, with a word limit of 3,000.
PER CURIAM
Panel Consists of Chief Justice Christopher and Justices Bourliot and Wilson. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483445/ | Order filed November 8, 2022.
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00805-CV
____________
SL GLOBAL INVESTMENTS, LLC (D/B/A SL GLOBAL ENERGY) AND
MAXIMO HERNANDEZ, Appellants
V.
PARKER DRILLING OVERSEAS B.V., Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2021-76903
ORDER
Appellants SL Global Investments, LLC (d/b/a SL Global Energy) and
Maximo Hernandez filed a motion for a temporary order to stay all trial court
proceedings during the pendency of this interlocutory appeal from the trial court’s
October 27, 2022 order denying a motion to compel arbitration.1 Tex. R. App. P.
29.3. After considering the motion, this court stays all proceedings in the underlying
trial court case pending further order of this court. The court requests that any
response from appellee to the motion be filed no later than 7 days from the date of
this order, which should include any potential opposition to the scope of the stay.
PER CURIAM
Panel Consists of Justices Wise, Jewell, and Spain.
1
The certificate of conference reflects that appellant conferred with appellee Parker
Drilling Overseas B.V. on this motion on November 4, 2022. The motion was filed in the afternoon
on November 7, 2022.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483432/ | Motion for Rehearing Denied; Opinion of August 23, 2022 Withdrawn;
Affirmed in Part, Reversed and Rendered in Part, Remanded, and Substitute
Opinion filed November 10, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00604-CV
THE CITY OF HOUSTON, Appellant
V.
DAVID GILBERT, MARINA CHARLES, AS NEXT FRIEND OF E.L., A
MINOR CHILD, CHRISTIAN COLEMAN, INDIVIDUALLY AND AS
NEXT FRIEND OF M.R. AND T.R., MINOR CHILDREN, AND BOBBY
RAY, AS NEXT FRIEND OF M.R. AND T.R., MINOR CHILDREN,
Appellees
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2019-90084A
SUBSTITUTE OPINION
We deny appellant’s motion for rehearing. We withdraw our opinion of
August 23, 2022 and issue the following substitute opinion in its stead.
The City of Houston appeals the denial of its plea to the jurisdiction in this
personal injury suit arising from electrocution injuries suffered by two girls while
practicing little league softball at a city-owned park. Other relatives also asserted
personal injury and bystander claims. The key issues for jurisdictional purposes are
whether the plaintiffs paid for use of the park premises and thus enjoy status as
property invitees rather than licensees,1 and whether the City had actual knowledge
of the alleged unreasonably dangerous condition.
We hold:
(1) regarding plaintiffs/appellees E.L. and M.R., the trial court did not err
in denying the City’s plea because a fact issue exists whether they paid
for use of the premises on the day of the incident;
(2) regarding plaintiff/appellee Gilbert, the trial court erred in denying the
City’s plea because Gilbert’s status as a licensee is established
conclusively, and he failed to raise a fact issue concerning the City’s
actual knowledge or gross negligence; and
(3) regarding the bystander claims, the trial court did not err in denying the
City’s plea because M.R.’s claim, upon which the bystanders rely,
potentially remains viable.
Accordingly, we affirm in part, reverse and render in part, and remand for
further proceedings consistent with this opinion.
Background
On September 11, 2019, appellees E.L. and M.R.—both seven to nine years
old—were participating in little league softball practice organized by the Lindale
1
See Tex. Civ. Prac. & Rem. Code § 101.022(a).
2
Little League at ballfields located in Moody Park, which is owned, operated, and
maintained by the City of Houston. Attending the practice were appellee David
Gilbert (E.L.’s step-grandfather), appellee Christian Coleman (M.R.’s mother), and
appellee T.R. (M.R.’s sister).
Moody Park has two ballfields adjacent to each other. Partially buried in the
ground area between the fields is a concrete electrical “pass-through” box that
houses electrical cables or wires necessary to light the fields at night. The cover of
this box is metal. During a practice break, E.L. made physical contact with the cover,
which was accidentally energized with electricity.2 M.R. attempted to pull E.L.
away from the box, but she was unable to escape the electric current. Witnessing
the incident, Gilbert rushed to help and managed to break the children free, but he
too was injured in the process. According to witnesses, both girls were lying on the
ground and “unresponsive” after the incident but were revived through CPR. E.L.’s
hands were burned, and she was bleeding from her nose and mouth. Both girls were
transported to the hospital in an ambulance. Coleman and T.R. saw these events at
a close distance.
Gilbert sued the City, the League, and various other defendants for personal
injuries based on allegations of negligent activity, premises liability, negligence,
negligence per se, and gross negligence. The other appellees joined the suit later
and asserted similar claims, including bystander liability claims by Coleman and
T.R. As to the City, appellees pleaded that they paid money directly or indirectly to
the City for use of the park premises and for that reason they were invitees on the
City’s property on the day in question, that the City had actual or constructive
2
At this stage of the proceedings, it is believed that an uninsulated, energized wire within
the box came into contact with the cover.
3
knowledge of the dangerous condition, and that the City engaged in willful, wanton,
or grossly negligent conduct.
The City filed a plea to the jurisdiction, asserting that appellees had not shown
a waiver of governmental immunity under the Texas Tort Claims Act (the “TTCA”).
The City argued that: (1) appellees were licensees, not invitees, because they did
not pay a specific fee for entry onto and use of the park; (2) the City had no actual
knowledge of the dangerous condition; and (3) the City did not commit any willful,
wanton, or grossly negligent act. In their response, appellees argued that they were
invitees, rather than licensees, because they paid for use of the park, and thus they
were not required to show that the City had prior actual knowledge of the premises
defect. At a minimum, appellees argued, a fact issue existed regarding their status.
Appellees contended in any event that the City had actual knowledge of the premises
defect even assuming they were licensees. The trial court denied the City’s
jurisdictional plea.
After the court severed the plaintiffs’ claims against the City from the claims
against the other defendants, the City timely filed this interlocutory appeal. See Tex.
Civ. Prac. & Rem. Code § 51.014(a)(8).
Analysis
In a single issue, the City contends the trial court lacked subject matter
jurisdiction over appellees’ claims because they are barred by governmental
immunity. According to the City, appellees have failed to establish a waiver of
governmental immunity for their premises liability claims because appellees were
licensees at the time of their injuries, and the City lacked actual knowledge of the
allegedly dangerous condition. Further, the City contends that appellees failed to
demonstrate gross negligence and otherwise failed to demonstrate a waiver of
immunity for the bystander claims.
4
A. Standard of Review and Analytical Framework
The common law doctrine of governmental immunity protects political
subdivisions of the state from suit when they perform governmental functions.3 See
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).
Governmental units may be sued only when the legislature has waived the unit’s
immunity in clear language. See Tex. Gov’t Code § 311.034; Tex. Parks & Wildlife
Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011). The TTCA waives
governmental units’ immunity from suit in certain areas when the statutory
requirements are met, including, as relevant here, cases arising from alleged
premises defects. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex.
2016); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224-25 (Tex.
2004). The waiver of immunity applies if the employee or governmental unit would
be liable to the claimant according to Texas law. See Tex. Civ. Prac. & Rem. Code
§§ 101.021(1)(B), (2), 101.025.
If a government defendant is immune from suit, the trial court has no subject
matter jurisdiction to hear the case against it, and the defendant may properly
challenge the suit in a plea to the jurisdiction. See Miranda, 133 S.W.3d at 225-26.
We review jurisdictional questions like these de novo. See State v. Holland, 221
S.W.3d 639, 642 (Tex. 2007).
A plaintiff bears the burden of establishing a waiver of immunity under the
TTCA. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).
A governmental unit challenging whether a claimant has met this burden may, by a
plea to the jurisdiction, contest the pleadings, the existence of jurisdictional facts, or
both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018).
3
The governmental functions of municipalities, such as the City of Houston, include
“parks.” Tex. Civ. Prac. & Rem. Code § 101.0215(a)(13).
5
If a plea challenges the pleadings, we determine if the pleader has alleged facts that
“affirmatively demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133
S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff, look to
the pleader’s intent, and accept as true the unchallenged factual jurisdictional
allegations in the pleadings. Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d
14, 23 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citing Miranda, 133 S.W.3d
at 226). If the pleading is sufficient to demonstrate jurisdiction, and if the defendant
does not challenge the plaintiff’s factual allegations with supporting evidence, then
our inquiry ends. Id.; see Miranda, 133 S.W.3d at 227-28; see also City of Jacksboro
v. Two Bush Cmty. Action Grp., No. 03-10-00860-CV, 2012 WL 2509804, at *5
(Tex. App.—Austin June 28, 2012, pet. denied) (mem. op.). Like the jurisdictional
question itself, the sufficiency of a claimant’s pleading to establish a waiver of
immunity is a legal issue we review de novo. Miranda, 133 S.W.3d at 226.
When, on the other hand, a plea to the jurisdiction challenges the existence of
jurisdictional facts, we look beyond the pleadings and consider evidence submitted
by the parties when necessary to resolve the jurisdictional issues raised, even if the
evidence implicates both the court’s jurisdiction and the merits of a claim. Id. at
227. For a plea that challenges the existence of jurisdictional facts, our standard of
review generally mirrors that of a traditional summary judgment: a plaintiff must
raise a genuine issue of material fact to overcome the challenge to the trial court’s
jurisdiction. Id. at 221, 228. In determining whether a plaintiff has met that burden,
we take as true all evidence favorable to the plaintiff and indulge every reasonable
inference and resolve any doubts in the plaintiff’s favor. Id. at 228. If the evidence
and allegations create a fact question regarding jurisdiction, then a court cannot grant
a plea to the jurisdiction, and the factfinder must resolve the fact issue. Id. at 227-
28. But if the relevant evidence is undisputed or fails to raise a fact question on the
6
jurisdictional issue, then a court rules on the plea to the jurisdiction as a matter of
law. Id. at 228.
B. Licensee or Invitee Status
1. Nature of the claims
We begin by clarifying the nature of appellees’ claims, which we review de
novo. See Sampson, 500 S.W.3d at 385. In their pleading, appellees assert
entitlement to recover under both ordinary negligence and premises liability
theories. As we have noted, however, in a suit against a governmental unit, as in
litigation between private parties, negligence claims of the kind at issue will permit
recovery either in premises liability (premises defect) or in ordinary negligence
(negligent activity), but not both. Harris Cnty. Flood Control Dist. v. Halstead, No.
14-20-00457-CV, —S.W.3d—, 2022 WL 678277, at *3 (Tex. App.—Houston [14th
Dist.] Mar. 8, 2022, no pet.) (citing Sampson, 500 S.W.3d at 385, 389). In evaluating
whether a claimant has alleged a premises defect or a negligent activity claim against
a governmental unit—and a concomitant waiver of immunity for that claim—the
focus is on whether the injury occurred because of a condition of real property
(premises defect), or whether the injury occurred as a contemporaneous result of the
activity itself (negligent activity). See Sampson, 500 S.W.3d at 388; Halstead, 2022
WL 678277, at *4; City of Houston v. Ayala, 628 S.W.3d 615, 625-26 (Tex. App.—
Houston [14th Dist.] 2021, no pet.). Although appellees assert both theories in the
alternative, the nucleus of facts alleged leads inexorably to the conclusion that their
claims sound in premises defect because they complain of an unreasonably
dangerous condition of real property as opposed to injuries suffered as a
contemporaneous result of some government activity. See Sampson, 500 S.W.3d at
388; Ayala, 628 S.W.3d at 625-26. Appellees have not contested this point. We
conclude appellees’ claims are premises liability claims as a matter of law. For this
7
reason, we agree with the part of the City’s argument in which it contends that the
trial court erred in denying its plea as to appellees’ claims that purport to be based
on a negligent activity theory.
2. Duty in premises liability cases
The legislature has waived the immunity of governmental units as to personal
injury “so caused by a condition . . . of real property if the governmental unit would,
were it a private person, be liable to the claimant according to Texas law.” See Tex.
Civ. Prac. & Rem. Code §§ 101.021(1)(B), (2), 101.025. Generally, “if a claim
arises from a premises defect, the governmental unit owes to the claimant only the
duty that a private person owes to a licensee on private property, unless the claimant
pays for the use of the premises.” Id. § 101.022(a). Our court has construed this
section’s final phrase to mean that if the claimant pays for the use of the premises,
then the governmental unit owes the same duty of care that a premises owner owes
to an invitee. Ayala, 628 S.W.3d at 619. A premises owner must use reasonable
care to correct or warn an invitee about dangerous conditions actually known to the
owner, as well as dangerous conditions about which the owner reasonably should
have known. See id. In contrast, the duty owed to a licensee requires that “a
landowner not injure a licensee by willful, wanton or grossly negligent conduct, and
that the owner use ordinary care either to warn a licensee of, or to make reasonably
safe, a dangerous condition of which the owner is aware and the licensee is not.”
Sampson, 500 S.W.3d at 391; see Ayala, 628 S.W.3d at 619.
Distinguishing between invitees and licensees is a vital step under the TTCA
for premises liability claims because the duty of care owed—and hence the
governmental unit’s waiver of immunity—depends on the answer. The City urges
that appellees are licensees because they did not pay for use of the park, at least not
8
on the day of the accident. See Tex. Civ. Prac. & Rem. Code § 101.022(a). We turn
to that question.
3. Allegations and evidence concerning payment
Looking first to the pleadings, appellees alleged that E.L. and M.R. attended
League baseball games at Moody Park on the day in question; that they were League
“participants”; and that “Plaintiffs paid money directly or indirectly to the Defendant
COH for use of the park premises and, therefore, were invitees of the COH.”
The only proof relevant to payment and attached to the City’s plea is one
paragraph in the affidavit of David Hoang, an electrical superintendent employed by
the City. Hoang attested that Moody Park is open to the public and does not charge
an entrance fee or other fee for access, and that the park is not fenced and the public
can access the area containing the electrical box at any time.
In their response to the City’s plea, appellees expanded on their payment
allegations. They asserted that on September 11, 2019, the League held softball
practice for youth girls at Moody Park, and that appellees paid the League $65 “for
the privilege of their girls playing” in the League. Appellees attached the declaration
of E.L.’s mother (appellee Charles), who testified that she paid $65 per season to the
League for E.L. to participate. For purposes of the plea, the City did not deny or
challenge with evidence the assertion that the parents of both E.L. and M.R. paid the
League for those girls to participate, so we accept that fact as true. Buzbee, 616
S.W.3d at 23.4
4
In the trial court, the City conceded that Charles paid $65 to the League for E.L. to
participate. In our court, however, the City notes that M.R., unlike E.L., presented no evidence
that she paid the registration fee to the League. This is true, but M.R. was not obliged to present
such evidence because the pleading alleged that a fee was paid for her to participate, and the City
did not deny or contest that particular factual allegation with evidence attached to the plea. See id.
9
Appellees also asserted and presented evidence that the League paid a
mandatory “rental” fee to the City to use the park’s ballfields pursuant to a permit
contract between the City and the League. On this point, appellees attached a copy
of the permit contract and deposition excerpts of Mario Quintanilla, the League’s
president. Quintanilla testified that the League pays the City a fee to use the
ballfields at Moody Park. In particular, Quintanilla explained that Moody Park is
the only field where the League practices and plays, that there are only two ballfields
at Moody Park, and that the League was authorized to use the ballfields on Mondays
through Thursdays from 6:00 p.m. to 10:00 p.m., and on Saturdays from 10:00 a.m.
to dark. The permit contract confirms that the League paid a fee to the City to rent
or reserve use of the fields between September 4, 2019 and December 14, 2019.
In sum, according to appellees, they paid the League a registration fee for E.L.
and M.R. to participate in the program; then the League paid the City a fee to rent or
reserve the park fields on particular days and at particular times.
In its motion for rehearing, the City says that it challenged the plaintiffs’ alleged
jurisdictional fact that M.R. paid for use of the park because it filed a general denial. The City’s
argument misapprehends the movant’s burden in challenging jurisdictional facts by a plea to the
jurisdiction. The burden mirrors that of a summary judgment motion. Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex. 2012) (citing Miranda, 133 S.W.3d at 228). If a
plaintiff alleges facts sufficient to demonstrate the court’s jurisdiction and the defendant wishes to
challenge certain jurisdictional facts by a plea to the jurisdiction, the defendant must present
evidence refuting the relevant fact. See Buzbee, 616 S.W.3d at 23 (“If the pleading is sufficient to
demonstrate jurisdiction, and if the defendant does not challenge the plaintiff’s factual allegations
with supporting evidence, then our inquiry ends.”). Only when the defendant meets this initial
burden will the plaintiff be obliged to present evidence in response raising a fact question. See
Mission Consol. Indep. Sch. Dist., 372 S.W.3d at 637. The defendant cannot simply deny the
existence of jurisdictional facts—such as by general denial—and force the plaintiff to demonstrate
the existence of a fact issue with evidence. See HS Tejas, Ltd. v. City of Houston, 462 S.W.3d 552,
556 (Tex. App.—Houston [1st Dist.] 2015, no pet.); HSBC Bank USA, N.A. v. Watson, 377 S.W.3d
766, 773 (Tex. App.—Dallas 2012, pet. dism’d).
10
4. Whether the payments were for use of the park
The City argues that to constitute a payment for the use of the premises under
section 101.022(a) the fee “must be paid specifically for entry onto and use of the
premises,” and that the payment appellees described does not qualify as such for two
reasons. First, the City says “indirect” payments to rent or reserve the fields—i.e.,
through an intermediary such as a little league—are not sufficient to constitute a fee
for use of public premises because the claimants paid the League to play softball but
did not pay the City to use the park. Second, the City continues, assuming “indirect”
payments generally suffice, the permit contract in question shows that appellees did
not actually reserve the Moody Park ballfields for September 11, 2019.5
In support of its first argument, the City relies on this court’s decision in
Ayala, which cited City of Dallas v. Davenport, 418 S.W.3d 844 (Tex. App.—Dallas
2013, no pet.), and City of Houston v. Crawford, No. 01-18-00179-CV, 2018 WL
4868306 (Tex. App.—Houston [1st Dist.] Oct. 9, 2018, no pet.) (mem. op.). These
cases involved slip-and-falls at airports. In Ayala, the claimant, Ayala, bought an
airline ticket for a trip from Seattle to Jacksonville, with a connecting flight through
Houston. Ayala, 628 S.W.3d at 621. While at Houston’s Bush Intercontinental
Airport, Ayala slipped and fell as she was disembarking from an escalator in one of
the airport terminals. Id. at 618. We held that Ayala was a licensee, not an invitee,
because her purchase of an airline ticket was not a payment made to the City for the
entry onto and use of the airport premises; instead, her use of the airport was merely
related to her purchase of the ticket. Id. at 621. We cited Davenport and Crawford
5
In its brief, the City suggests a third reason why appellees did not pay to use the ballfields:
because “their injuries did not occur on the ballfield, but in another area that was generally open
and available to the public.” Because the City did not present this contention in its plea to the
jurisdiction, we need not address it. See Miranda, 133 S.W.3d at 228 (explaining that a plaintiff
is required to raise a fact issue only “after the state asserts and supports with evidence that the trial
court lacks subject matter jurisdiction” (emphasis added)).
11
for the proposition that the purchase of a plane ticket, which was “merely related”
to the airport premises, did not confer status on the plaintiff as an invitee of the
airport because the payment was not specifically for entry onto and use of the
premises. Id. at 620 (citing Davenport, 418 S.W.3d at 848; Crawford, 2018 WL
4868306, at *3). Our holding in Ayala is consistent with other Texas appellate court
decisions involving comparable circumstances.6
In other factual situations, however, courts have held that certain fees are
sufficient either to establish invitee status as a matter of law or at least create a fact
question. One notable example involved the use of a city park for a wedding.
Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018, at *8 (Tex.
App.—Fort Worth May 19, 2011, no pet.) (mem. op.). There, the court held that a
rental fee paid to a city for a wedding reception dinner in a city park after closing
hours was a fee for use of the park. Id. In a more recent case, the same court
considered evidence of a similar type of “indirect” payment as we have here. See
City of Fort Worth v. Posey, 593 S.W.3d 924, 927-28 (Tex. App.—Fort Worth 2020,
no pet.). The Posey court held that a claimant injured on a public walkway raised a
fact issue on her status as an invitee for TTCA purposes when her evidence of
payment included proof that (1) she paid a fee to enter the Junior League’s gift fair,
6
City of McAllen v. Quintanilla, No. 13-18-00062-CV, 2019 WL 3023325, at *3 (Tex.
App.—Corpus Christi-Edinburg July 11, 2019, no pet.) (mem. op.) (claimant’s purchase of bus
ticket was insufficient to establish invitee status at bus station premises); City of El Paso v. Viel,
523 S.W.3d 876, 892 (Tex. App.—El Paso 2017, no pet.) (suggesting that, for TTCA purposes,
courts should consider “whether the claimant would have been allowed entry onto premises but
for a payment made to the governmental unit that owns the property”); Clay v. City of Ft. Worth,
90 S.W.3d 414, 417 (Tex. App.—Austin 2002, no pet.) (revenue-sharing agreement between city
and telephone company was related to, but not a fee for use of, premises; thus, telephone company
employee was not invitee when employee sustained injuries on premises); Simpson v. Harris
County, 951 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (payment of filing
fee did not constitute payment for use of courthouse); Garcia v. State, 817 S.W.2d 741, 743 (Tex.
App.—San Antonio 1991, writ denied) (claimant’s payment of licensing fees and fuel taxes not
considered payment for use of state’s highway system).
12
and the Junior League in turn paid the city to rent the premises for its patrons’ use,
and (2) she paid the city a fee to park. Id. The court reasoned that, because the
claimant presented evidence that both the direct and indirect payments she made
“endowed her with the express right to use the walkway to travel between the
parking lot and the gift fair,”7 she raised a fact issue regarding her status as an invitee.
Id. at 930-31. The Fourth Court of Appeals has also held that a claimant raised a
fact question whether she was an invitee for TTCA purposes when she paid an entry
fee to run a 5K race on city-owned property where she was injured. City of San
Antonio v. Realme, No. 04-20-00119-CV, 2021 WL 1009330 (Tex. App.—San
Antonio Mar. 17, 2021, pet. filed) (mem. op.).
Although the claimants’ evidence in Ayala did not raise a fact issue on invitee
status in that case, the circumstances in today’s case are distinguishable. We
conclude, like the court in Posey, that payments made indirectly to a municipality
through an intermediary—such as a little league—can be sufficient evidence to raise
a fact issue on invitee status under section 101.022(a), as long as the payment
specifically allowed the claimants to use the premises. Contrary to the City’s
suggestion, nothing in Ayala or any other authority counsels against recognizing that
“indirect” payments to a city can, despite their indirect nature, specifically permit
use of city premises.
The next question is whether appellees presented some evidence that the
payment to the City in fact allowed E.L. and M.R. to use to the ballfields to play
7
The claimant in Posey presented the rental agreement between the city and the
organization using the coliseum, which “contemplated that the premises’ sidewalks and entryways
would be used by Junior League and its patrons ‘for ingress or egress to and from’ the coliseum[.]”
Id. at 928. Also, the claimant presented deposition testimony from the city’s representative, in
which he agreed that the rental agreement gave the organization’s customers the right to use the
city’s property to enter and exit the coliseum and that part of what the organization paid for was
the ability to access the event space along the walkway. Id.
13
softball. Appellees’ evidence shows that the League’s rental payment to the City
was paid specifically to allow the League teams to use the ballfields. Moreover,
participation in a baseball league necessarily involves playing on baseball fields;
thus, paying a fee to participate in a baseball league encompasses use of the baseball
fields. See Posey, 593 S.W.3d at 929; Sullivan, 2011 WL 1902018, at *8; cf. City of
Dallas v. Patrick, 347 S.W.3d 452, 457 (Tex. App.—Dallas 2011, no pet.)
(concluding that, under the TTCA, city would owe plaintiff the duty it owed an
invitee when plaintiff obtained entry to city zoo through her mother’s membership).
The City disputes that payment is shown here because according to the permit
contract, the League had not reserved Moody Park for September 11, 2019. The
City is correct that the permit contract does not list September 11 as a date on which
the ballfields were “reserved” for the League. We conclude, however, that appellees
raised a fact question on this point through two items of evidence. First, Charles
said in her declaration that the park was “reserved” for the League practice on the
day in question. Second, Quintanilla said in his deposition that the night of
September 11, 2019 was a “scheduled practice,” and that the League was
“authorized” to use the Moody Park fields every day of the week except Fridays and
Sundays. He did not make an exception for the week that included September 11.
Thus, viewing the uncontested allegations together with the evidence in the light
most favorably to appellees,8 we conclude that a fact question exists whether E.L.
and M.R. specifically paid for use of the premises on September 11, 2019, and thus
would be considered invitees at the time of injury. See Ayala, 628 S.W.3d at 620-
21; Posey, 593 S.W.3d at 930-31. The factfinder must resolve that dispute on
8
See Miranda, 133 S.W.3d at 228.
14
remand.9 We hold that the trial court did not err in denying the City’s jurisdictional
plea as to appellees E.L. and M.R.
As to appellee Gilbert, however, we conclude that the record establishes
conclusively that he is a licensee as a matter of law. He is E.L.’s step-grandfather.
There is no allegation or evidence that appellee Gilbert paid any fee to the League
to participate or that he was otherwise entitled to invitee status. On appeal, appellees
do not explain why he, a non-participant in the League who has not paid a
registration fee to the League, should be viewed as having paid for use of the park.10
Because Gilbert is a licensee, we must address the City’s alternative arguments that
he has failed to establish a waiver of the City’s immunity.
C. No Evidence Supporting the City’s Liability to a Licensee
Because Gilbert was a licensee at the time of his injury, the City was required
not to injure him “by willful, wanton or grossly negligent conduct,” and to use
ordinary care either to warn of, or to make reasonably safe, a dangerous condition
of which the owner is aware and the licensee is not. See Sampson, 500 S.W.3d at
391; Ayala, 628 S.W.3d at 619. To defeat the City’s jurisdictional plea, Gilbert was
required to raise a fact issue regarding whether the City either had actual knowledge
of the dangerous condition or that the City was grossly negligent. See Ayala, 628
9
The City did not argue in the trial court, and does not argue in our court, that appellees
have failed to establish a waiver of immunity assuming that they are invitees.
10
Neither the City nor appellees distinguish between the individual appellees; the City
contends that all appellees are licensees, and appellees contend that they are all invitees. However,
in our de novo review of the trial court’s denial of the City’s plea to the jurisdiction, it is necessary
for us to parse out the evidence related to each individual’s status to determine whether the trial
court properly exercised subject matter jurisdiction over all of appellees’ claims. Thomas v. Long,
207 S.W.3d 334, 338-39 (Tex. 2006) (“[I]t is proper for a trial court to dismiss claims over which
it does not have subject matter jurisdiction but retain claims in the same case over which it has
jurisdiction.”).
15
S.W.3d at 619 (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d
235, 237 (Tex. 1992) (op. on reh’g)).
1. No actual knowledge of the dangerous condition
The City contended in its plea that it lacked actual knowledge of the electrified
pass-through box. Actual knowledge requires subjective awareness that the danger
existed at the time of the accident. Sampson, 500 S.W.3d at 392. Hypothetical or
constructive knowledge is simply not enough. See id. “‘[T]he fact that materials
deteriorate over time and may become dangerous does not itself create a dangerous
condition, and the actual knowledge required for liability is of the dangerous
condition at the time of the accident, not merely of the possibility that a dangerous
condition can develop over time.’” Id. at 395 (quoting City of Dallas v. Thompson,
210 S.W.3d 601, 602-03 (Tex. 2006)).
The City offered Hoang’s affidavit on this point. According to Hoang, he
reviewed the City’s work order system for documents related to the pass-through
box at Moody Park for five years preceding the September 11, 2019 incident and
found no work orders for this particular pass-through box. He also stated that he
reviewed the database and the City’s 311 records for reports that a box cover lid in
Moody Park had become electrified and found no such reports. According to Hoang,
the City had no actual knowledge that the pass-through box lid had become
energized before learning of appellees’ injuries on September 11, 2019. This
evidence sufficiently shows that the City had no actual knowledge of the hazardous
condition. See Ayala, 628 S.W.3d at 623; City of Dallas v. Kennedy, No. 05-19-
01299-CV, 2020 WL 3286515, at *3 (Tex. App.—Dallas June 18, 2020, no pet.)
(mem. op.).
None of the evidence submitted by appellees raises a fact question on actual
knowledge. Appellees refer to a 2011 certificate of compliance accepting as
16
complete the field lights remodel at Moody Park. But this document makes no
mention of any hazardous conditions at the park and simply notes, that as of
September 16, 2011, the “building listed hereon has been duly inspected and found
to comply” with the City’s construction code requirements and ordinances.
Appellees also presented the deposition of Anthony LaFaso, another electrical
superintendent in the City’s Parks and Recreation Department in 2019. According
to the City, LaFaso’s testimony supports the City’s argument that it lacked actual
knowledge that the relevant pass-through box at Moody Park had become energized
before the date of appellees’ injuries. Appellees do not cite to this deposition in their
brief, but in their response to the City’s plea, they cited it to support their claim that
the City was “placed on notice of electrical issues at Moody Park that specifically
required the City to open the iron covers to make repairs.” But LaFaso testified that
he did not recall any City work orders relating to the electrical box or electrical
components at issue in this case. According to LaFaso, the City was aware that there
were underground electrical boxes with metal lids “that were not grounded,” but he
did not testify that the City was aware that any of these electrical boxes had ever
became energized. At most, this evidence shows that the City may have been aware
of the possibility of a dangerous condition, which at most shows constructive, rather
than actual, knowledge. See Sampson, 500 S.W.3d at 395; Thompson, 210 S.W.3d
at 603.
Finally, appellees cite to copies of work orders, which—in conflict with
Hoang’s assertion that there were none—purport to show work requested and
performed at Moody Park from April 2016 to November 2017. According to
appellees, these work orders show that the City “was placed on notice of electrical
issues at Moody Park that specifically required the [City] to open the iron covers to
make repairs” at least three times. We disagree. The reports contain minimal
17
information, but they show the nature of the work requested to be “broken ground
box cover,” “install ground box in playground area,” “assist electricians w/open
ground boxes,” and “open ground boxes for electrician to search for bad wire.”
There is no indication that the City was put on notice that the electrical box cover
had become energized or that the box presented an electrical hazard to any patrons.
Appellees’ evidence thus provides no information concerning “reports of prior
injuries or reports of the potential danger presented by the condition.” Sampson, 500
S.W.3d at 397.
We conclude appellees have not raised a fact issue that the City had actual
knowledge, prior to September 11, 2019, that the cover of this pass-through box at
Moody Park had become energized.
2. No evidence of gross negligence
The City also challenged the issue of gross negligence in its plea:
Gross negligence involves proof of two elements: (1) viewed
objectively from the actor’s standpoint, the act or omission must
involve an extreme degree of risk, considering the probability and
magnitude of the potential harm to others; and (2) the actor must have
actual, subjective awareness of the risk involved, but nevertheless
proceed in conscious indifference to the rights, safety, or welfare of
others. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.
1998) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.
1994)). In reference to the first requirement, the “extreme risk” means
the likelihood of serious injury to the plaintiff. Id. In reference to the
second requirement, ordinary negligence rises to the level of gross
negligence when it can be shown that the defendant was aware of the
danger but his acts or omissions demonstrated that he did not care to
address it. Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246-
47 (Tex. 1999); Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.
1981).
The City was not aware that the box lid had, against all probability,
become energized. Exhibit A [Hoang affidavit]. Had it known, the box
18
would have been immediately repaired. Id. The City was not working
with the box at or near the time of the incident – the City in fact has no
records of working on the box in the years leading up to the incident.
Id. There is no evidence of a person ever being electrocuted by any one
of the hundreds of electrical box lids at City parks at any time prior to
the incident. See id. Accordingly, no reasonable person could conclude
that the City had “actual, subjective awareness” that the box would
become energized but chose to do nothing about it. Plaintiffs’ gross
negligence claim therefore fails as a matter of law.
Appellees did not respond to the City’s arguments regarding gross negligence.
Therefore, they did not raise a material fact question on this issue.
* * *
Because the City conclusively established that Gilbert was a licensee and
appellees did not raise a fact question on either actual knowledge or gross
negligence, the trial court erred in denying the City’s plea to the jurisdiction as to
Gilbert’s claims.
D. Bystander Claims
Appellees Coleman and T.R. allege bystander liability against the City on the
basis that they are close family members of M.R. and observed the physical injuries
to M.R. contemporaneously as they occurred in close proximity. The City contends
that, because there is no basis to assert jurisdiction over any of appellees’ claims,11
these bystander claims must likewise fail. This is so, the City continues, because
“[b]efore a bystander may recover, he or she must establish that the defendant has
negligently inflicted serious or fatal injuries on the primary victim.” Edinburg Hosp.
Auth. v. Trevino, 941 S.W.2d 76, 79 (Tex. 1997); see also Am. Indus. Life Ins. Co.
11
The TTCA does not create a cause of action; it waives sovereign immunity as a bar to a
suit that would otherwise exist. Sampson, 500 S.W.3d at 387 (citing City of Tyler v. Likes, 962
S.W.2d 489, 494 (Tex. 1997)).
19
v. Ruvalcaba, 64 S.W.3d 126, 144 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied) (bystander may not recover until defendant’s liability to primary victim is
established).
But as discussed above, a fact issue remains regarding the trial court’s
jurisdiction over M.R.’s premises defect claims. The City has not asserted any other
basis for a lack of subject matter jurisdiction over these bystander claims.
Accordingly, the trial court did not err in denying the City’s jurisdictional plea as to
Coleman’s and T.R.’s bystander claims.
Conclusion
We have concluded that appellees’ claims are premises defect claims, and the
trial court erred in denying the City’s jurisdictional plea to the extent it failed to
dismiss appellees’ claims purportedly based on a negligent activity theory. Further,
the City conclusively established that Gilbert is a licensee, and appellees failed to
raise a fact issue that the City either had actual knowledge of the dangerous condition
or was grossly negligent. Thus, the trial court erred in denying the City’s
jurisdictional plea as to Gilbert’s premises defect claim. Accordingly, we reverse
and render judgment dismissing (1) appellees’ negligent activity claims and
(2) Gilbert’s claims.
However, a fact question exists regarding E.L.’s and M.R.’s status as invitees,
and the trial court did not err in denying the City’s plea as to their premises defect
claims. The trial court also did not err in denying the City’s jurisdictional plea as to
Coleman’s and T.R.’s bystander liability claims. Accordingly, we affirm in part the
20
trial court’s order denying the plea to the jurisdiction as to these claims. We remand
to the trial court for further proceedings.
/s/ Kevin Jewell
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
21 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483433/ | Order filed November 10, 2022.
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00831-CV
____________
THIRD COAST SERVICES, LLC AND SPAWGLASS CIVIL
CONSTRUCTION, INC., Appellants
V.
FELICITAS CASTANEDA, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF PEDRO CASTANEDA, DECEASED; IRVING
CASTANEDA; EVELYN CASTANEDA; AND LIZZIE CASTANEDA,
Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2019-81524
MEMORANDUM MAJORITY OPINION ON ORDER
This is an interlocutory appeal of the denial of appellants’ summary
judgment motions brought pursuant to section 97.002 of the Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Ann. Code § 97.002. This
interlocutory appeal stays the commencement of a trial in the trial court pending
resolution of the appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(b). Appellant
Third Coast Services, LLC has filed a motion requesting that we stay trial
scheduled to begin today, November 10, 2022. The motion is granted.1
Accordingly, we order the trial court to enforce the statutory stay mandated
by section 51.014(b) and stay trial until this appeal is finally disposed. Tex. R.
App. P. 29.3 (temporary orders); see Tex. Civ. Prac. & Rem. Ann. Code §
51.014(b).
PER CURIAM
Panel consists of Justices Zimmerer, Spain, and Poissant.
1
The motion was filed by appellant Third Coast Services, LLC but we grant the stay to apply to the entire
underlying proceeding. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483436/ | Order filed November 10, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00714-CV
____________
JOHN SMITH, Appellant
V.
KERVARA WILLIAMS INDIVIDUALLY AND A/N/F D.S., MINOR,
Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2020-49535
ORDER
The notice of appeal in this case was filed October 3, 2022. The clerk
responsible for preparing the record notified this court that appellant has not made
payment for the record. No evidence that appellant has established indigence has
been filed. See Tex. R. Civ. P. 145. On October 19, 2022, this court notified
appellant that the appeal was subject to dismissal unless appellant filed a response
with proof of payment for the record. No response was filed. Therefore, the court
issues the following order.
Appellant is ordered to demonstrate to this court within ten (10) days of the
date of this order arrangements have been made to pay for the clerk’s record. See
Tex. R. App. P. 35.3(c). If appellant fails to do so, the appeal is subject to dismissal
without further notice for want of prosecution. See Tex. R. App. P. 37.3(b).
PER CURIAM
Panel Consists of Justices Zimmerer, Spain, and Hassan. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483437/ | Order filed November 10, 2022.
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00614-CV
____________
FIDELIS JOHNSON BADAIKI, Appellant
V.
BRYAN MILLER D/B/A CLASSIC TOWING LLC, PINE FOREST PARK
PLACE, AND AMERICAN EAGLE AUTO STORAGE, Appellees
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1092824
ORDER
The reporter’s record in this case was due October 4, 2022. See Tex. R. App.
P. 35.1. On October 14, 2022, this court granted the court reporter’s request for
extension of time to file the record until November 3, 2022. To date, the record has
not been filed with this court. Because the reporter’s record was not filed within the
time prescribed in the previous request, we issue the following order.
We order Alexandra L. McDaniel, the court reporter, to file the record in this
appeal within 30 days of the date of this order.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Poissant.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483439/ | Order filed November 10, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00621-CR
____________
DANIEL JAMES GRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 06-CR-1249
ORDER
This appeal is from an order denying appellant’s motion for forensic DNA
testing. See Tex. Code Crim. Proc. arts. 64.01, 64.04, 64.05. The trial court signed
the order on May 31, 2022. The record reflects the notice of appeal was filed July
25, 2022.
On July 28, 2022, appellant filed a motion to gain additional time. See Tex.
R. App. P. 4.6. In that motion appellant alleges he did not receive notice of the
signing of an appealable Chapter 64 order until July 6, 2022. Pursuant to Texas
Rule of Appellate Procedure 4.6(c), the trial court, after a hearing, must sign a
written order that determines the earliest date when the defendant or the
defendant’s attorney received notice or acquired actual knowledge that the trial
judge signed the appealable order and whether this date was more than twenty days
after the judge signed the appealable order.
Accordingly, we order the case abated and remanded to the trial court for a
hearing and signing of an order determining the date when appellant first either
received notice or acquired actual knowledge that the order was signed. The trial
court shall order the clerk to prepare, certify, and file a supplemental clerk’s record
containing the trial court’s order with the clerk of this court within 30 days of the
date of this order.
The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
supplemental clerk’s record is filed with the clerk of this court. The court will also
consider an appropriate motion to reinstate the appeal filed by either party, or the
court may reinstate the appeal on its own motion. It is the responsibility of any
party seeking reinstatement to request a hearing date from the trial court and to
schedule a hearing, if a hearing is required, in compliance with this court’s order. If
the parties do not request a hearing, the court coordinator of the trial court shall set
a hearing date and notify the parties of such date.
PER CURIAM
Panel Consists of Justices Zimmerer, Spain, and Hassan. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350348/ | THE THIRTEENTH COURT OF APPEALS
13-22-00261-CV
Jesus Castillo
v.
Coastal Bend Cancer Center
On Appeal from the
County Court at Law No. 1 of Nueces County, Texas
Trial Court Cause No. 2022CCV-60109-1
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellant.
We further order this decision certified below for observance.
December 22, 2022 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350353/ | THE THIRTEENTH COURT OF APPEALS
13-20-00568-CV
Charlie W. Torres and Maricela R. Torres
v.
Cameron County, Texas
On Appeal from the
404th District Court of Cameron County, Texas
Trial Court Cause No. 2017-DCL-00130-G
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellants.
We further order this decision certified below for observance.
December 22, 2022 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483440/ | Order filed November 10, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00621-CR
____________
DANIEL JAMES GRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 06-CR-1249
ORDER
Appellant is appealing an order denying his motion for forensic DNA
testing. See Tex. Code Crim. Proc. Ann. art. 64.05. On September 16, 2022, the
trial court clerk filed the clerk’s record, which did not contain a certification of
appellant’s right to appeal. See Tex. R. App. P. 25.2(a)(2), 34.5(a)(12); Tex. Code
Crim. Proc. art. 64.05. An appeal must be dismissed if a certification showing that
the defendant has the right of appeal has not been made part of the record. Tex. R.
App. P. 25.2(d).
We order the trial court to execute a certification of appellant’s right to
appeal and direct the trial court clerk to prepare, certify, and file a supplemental
clerk’s record containing the certification with the clerk of this this court within 30
days of the date of this order. See Tex. R. App. P. 34.5(c)(2), 37.1, 44.4.
PER CURIAM
Panel Consists of Justices Zimmerer, Spain, and Hassan. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483457/ | Order filed November 7, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-20-00870-CV
____________
O.A.O., Appellant
V.
R.S.O., Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2019-76763
ORDER
The clerk’s record was filed January 12, 2021. Our review has determined
that a relevant item has been omitted from the clerk's record. See Tex. R. App. P.
34.5(c). The record does not contain appellant’s request for the reporter’s record if
such a document was filed with the trial court.
The Harris County District Clerk is directed to file a supplemental clerk’s
record on or before November 14, 2022, containing appellant’s request for the
reporter’s record if such a document was filed with the trial court.
If the omitted item is not part of the case file, the district clerk is directed to
file a supplemental clerk’s record containing a certified statement that the omitted
item is not a part of the case file.
PER CURIAM
Panel Consists of Justices Bourliot, Hassan, Wilson. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483443/ | Order filed November 8, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00584-CV
____________
In the Interest of K.L. and C.L.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2020-01646J
ORDER
This is an accelerated appeal from a judgment in a suit in which the
termination of the parent-child relationship is at issue (“parental termination
case”).
The notice of appeal was filed June 28, 2022. On November 8, 2022, a
hearing was held in the trial court and the trial court signed an order finding
appellant is indigent, directing the court reporter to file the record in this appeal,
and appointing counsel on appeal.
Appeals in parental termination cases and child protection cases are to be
brought to final disposition within 180 days of the date the notice of appeal is
filed. See Tex. R. Jud. Admin. 6.2(a). In this case, that date is December 23,
2022. The trial and appellate courts are jointly responsible for ensuring that the
appellate record is timely filed. See Tex. R. App. P. 35.3(c). The trial court must
direct the court reporter to immediately commence the preparation of the reporter’s
record and must arrange for a substitute reporter, if necessary. See Tex. R. App. P.
28.4(b)(1).
Because the reporter’s record has not been filed timely in this accelerated
appeal, we issue the following order:
We order Faith Garcia, the official court reporter, to file the record in this
appeal on or before November 18, 2022. If Faith Garcia does not timely file the
record as ordered, the court may issue an order requiring her to appear at a hearing
to show cause why the record has not been timely filed.
PER CURIAM
Panel Consists of Justices Zimmerer, Spain and Hassan. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483444/ | Appeal Dismissed and Memorandum Opinion filed November 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00718-CV
SUSAN LESLIE SACCOMEN, REBECCA BIERCE, JEFFREY WAYNE
ENGLEDOW, LISA HUDOCK, JAIME LAIR, PAULA SCOTT, KEITH
SUAREZ, AND VALERIE LYNN WILLIAMS, Appellants
V.
LINA HIDALGO, HARRIS COUNTY JUDGE, ET AL, Appellees
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2022-46699
MEMORANDUM OPINION
This appeal is from an order signed September 28, 2022. The appeal was to
the Texas Supreme Court but the Harris County District Clerk subsequently, and
erroneously, assigned this cause to this court. On October 26, 2022, the Harris
County District Clerk advised this court of its error. Because this cause was
erroneously assigned to this court, we dismiss the appeal.
PER CURIAM
Panel consists of Justices Jewell, Bourliot and Zimmerer | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483446/ | Dismissed and Memorandum Opinion filed November 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00531-CV
ROBERT TAMAYO, Appellant
V.
RAMONA TAMAYO, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1185235
MEMORANDUM OPINION
This appeal is from a judgment signed July 6, 2022. The clerk’s record was
filed August 17, 2022. No brief was filed.
On September 22, 2022, this court issued an order stating that unless
appellant filed a brief on or before October 24, 2022, the appeal was subject to
dismissal without further notice for want of prosecution. See Tex. R. App. P.
42.3(b).
Appellant filed no brief or other response. We dismiss the appeal.
PER CURIAM
Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350202/ | On the Water Prods., LLC v Glynos (2022 NY Slip Op 07320)
On the Water Prods., LLC v Glynos
2022 NY Slip Op 07320
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
728 CA 22-00201
[*1]ON THE WATER PRODUCTIONS, LLC, PLAINTIFF-RESPONDENT,
vNICHOLAS GLYNOS AND RYAN EVANS, DEFENDANTS-APPELLANTS.
LAW OFFICE OF SILVERBERG AND SILVERBERG, LLP, BUFFALO (DAVID K. SILVERBERG OF COUNSEL), FOR DEFENDANT-APPELLANT NICHOLAS GLYNOS.
STAMM LAW FIRM, WILLIAMSVILLE (BRADLEY J. STAMM OF COUNSEL), FOR DEFENDANT-APPELLANT RYAN EVANS.
BARCLAY DAMON, LLP, BUFFALO (MICHAEL E. FERDMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeals from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered December 10, 2021. The order, among other things, granted plaintiff's motion for summary judgment and denied the cross motion of defendant Ryan Evans for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking various relief arising from defendant Nicholas Glynos's alleged breach of a contract to sell plaintiff a 53-foot yacht (vessel) and the alleged conversion of the vessel by Glynos and defendant Ryan Evans, the sales broker who arranged the transaction. The second amended complaint seeks specific performance of the parties' oral contract and damages for the alleged conversion of the vessel, as well as an award of punitive damages and attorneys' fees. In his answer to the second amended complaint, Glynos asserted a counterclaim for breach of contract, alleging that plaintiff still owes a balance of $108,281.18 on the parties' oral contract, while Evans, in his answer to the second amended complaint, asserted various counterclaims based on plaintiff's alleged failure to pay his commission.
Following discovery, plaintiff moved for, in effect, partial summary judgment on liability on the breach of contract and conversion causes of action in the second amended complaint, and Evans cross-moved for summary judgment on his counterclaims. Supreme Court granted the motion and denied the cross motion. Defendants separately appeal. For the reasons that follow, we modify the order by denying plaintiff's motion and otherwise affirm.
In granting plaintiff's motion, the court determined that it was compelled to deem admitted the assertions set forth in plaintiff's statement of material facts because neither defendant submitted a counter statement of undisputed facts pursuant to the Uniform Rules for the New York State Trial Courts (see 22 NYCRR 202.8-g [b], [former (c)]). That was error. Although the court had discretion under section 202.8-g (former [c]) to deem the assertions in plaintiff's statement of material facts admitted, it was not required to do so (see Leberman v Instantwhip Foods, Inc., 207 AD3d 850, 850-851 [3d Dept 2022]; see also Smith v MDA Consulting Engrs., PLLC, — AD3d &mdash, 2022 NY Slip Op 06389, *1 [4th Dept 2022]). "[B]lind adherence to the procedure set forth in 22 NYCRR 202.8-g" was not mandated (Leberman, 207 AD3d at 851 [internal quotation marks omitted]).
Here, considering that plaintiff's statement of material facts did not fully comply with 22 NYCRR 202.8-g (d) and ignored the pivotal factual dispute arising from discovery, we conclude that, although it would have been better practice for defendants to "submit a paragraph-by-paragraph response to plaintiff's statement" (Al Sari v Alishaev Bros., Inc., 121 AD3d 506, 507 [1st Dept 2014]), "the court abused its discretion in deeming the entire statement admitted" (Matter of Crouse Health Sys., Inc. v City of Syracuse, 126 AD3d 1336, 1338 [4th Dept 2015]).
In light of that determination, we conclude that plaintiff failed to meet its initial burden on its motion. Plaintiff submitted evidence establishing that it paid $529,896.01 toward the purchase of the vessel, which is far more than the renegotiated price of $399,000 that was orally agreed upon by the parties during a meeting at a pizza parlor in Ohio in the spring of 2015. That amount consists of payments made directly by plaintiff to Glynos and Evans, as well as payments made by plaintiff on Glynos's behalf to a bank that had a lien on the vessel arising from a secured loan extended to Glynos.
In further support of the motion, however, plaintiff submitted the deposition testimony of Glynos and Evans. At his deposition, Glynos testified that plaintiff's authorized representative agreed during the meeting at the pizza parlor that none of the payments made by plaintiff prior to that date would be credited toward the new purchase price. According to Glynos, plaintiff's representative said at the meeting that his wife, who is plaintiff's owner, "wants that boat, whatever it costs," and that the representative agreed that the only payments that plaintiff would get credit for were those made on the boat loan to the bank. All other prior payments were "null and void," with the parties starting "all fresh" with the new purchase price of $399,000, Glynos testified. Evans offered similar testimony during his deposition. Plaintiff's representative, on the other hand, vehemently denied agreeing to any forfeiture of prior payments. "I'd have to be an idiot to allow any payments not to be applied towards the purchase," he testified at his deposition.
If plaintiff's representative agreed to forfeit the money plaintiff paid for the vessel prior to the pizza parlor meeting, as defendants testified in their depositions, then plaintiff still owes Glynos money on the $399,000 contract—approximately $108,000, according to Glynos—and defendants' repossession of the vessel may therefore have been lawful, or at least not a conversion. Although the veracity of defendants' testimony in that regard is called into question by other evidence submitted by plaintiff on its motion, we cannot conclude that the testimony is incredible as a matter of law, i.e., "manifestly untrue, physically impossible, contrary to experience or self-contradictory" (Lewis v Carrols LLC, 158 AD3d 1055, 1056-1057 [4th Dept 2018] [internal quotation marks omitted]; see Key Bank of N.Y. v Dembs, 244 AD2d 1000, 1000-1001 [4th Dept 1997]). The conflict in deposition testimony regarding whether plaintiff's representative agreed to the forfeiture of prior payments "raises a question of credibility to be resolved at trial" (Navetta v Onondaga Galleries LLC, 106 AD3d 1468, 1470 [4th Dept 2013] [internal quotation marks omitted]), necessitating the denial of plaintiff's motion regardless of the sufficiency of the opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Finally, we conclude that the court properly denied the cross motion of Evans inasmuch as he failed to meet his initial burden of establishing entitlement to judgment as a matter of law on his counterclaims (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350204/ | O'Hara v City of Buffalo (2022 NY Slip Op 07331)
O'Hara v City of Buffalo
2022 NY Slip Op 07331
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
771 CA 22-00101
[*1]COLLEEN O'HARA AND ROBERT O'HARA, PLAINTIFFS-RESPONDENTS,
vCITY OF BUFFALO, DEFENDANT-APPELLANT.
CAVETTE A. CHAMBERS, CORPORATION COUNSEL, BUFFALO (DANIEL J. MUSCARELLA OF COUNSEL), FOR DEFENDANT-APPELLANT.
MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (RICHARD A. GRIMM, III, OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (E. Jeannette Ogden, J.), entered January 19, 2022. The order denied the motion of defendant for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries that Colleen O'Hara (plaintiff) allegedly sustained when she stepped in a hole while walking on a lawn in a public park located within defendant, City of Buffalo. Defendant appeals from an order denying its motion for summary judgment dismissing the complaint. We affirm.
Defendant sought summary judgment dismissing the complaint on the ground that it did not receive prior written notice of the allegedly dangerous condition that caused plaintiff's injuries. It is well settled that a "municipality that has adopted a 'prior written notice law' cannot be held liable for a defect within the scope of the law absent the requisite written notice" (Albano v Suffolk County Community Coll., 66 AD3d 719, 719 [2d Dept 2009]), and Charter of the City of Buffalo § 21-2 provides that "[n]o civil action shall be maintained against the city for damage or injuries to person or property sustained in consequence of any street, part or portion of any street including the curb thereof and any encumbrances thereon or attachments thereto, tree, bridge, viaduct, underpass, culvert, parkway or park approach, sidewalk or crosswalk, pedestrian walk or path, or traffic-control sign or signal, being defective, out of repair, unsafe, dangerous or obstructed" unless defendant received prior written notice of the allegedly dangerous condition. Nevertheless, it is also well settled that " '[p]rior written notice provisions, enacted in derogation of common law, are always strictly construed' " (Gorman v Town of Huntington, 12 NY3d 275, 279 [2009], quoting Poirier v City of Schenectady, 85 NY2d 310, 313 [1995]; see Horst v City of Syracuse, 191 AD3d 1297, 1300 [4th Dept 2021]). Thus, in support of its motion, defendant was required to establish that the area where the accident occurred is within the purview of the statute (see generally Pulver v City of Fulton Dept. of Pub. Works, 113 AD3d 1066, 1066 [4th Dept 2014]).
Here, the evidence defendant submitted in support of its motion failed to establish that the alleged defect that caused plaintiff's injury was located within any of the areas enumerated in Charter of the City of Buffalo § 21-2. We therefore conclude that defendant "failed to demonstrate its prima facie entitlement to judgment as a matter of law because it did not show that the area where the plaintiff fell was within the scope of the applicable prior written notice provisions" (Giarraffa v Town of Babylon, 84 AD3d 1162, 1162 [2d Dept 2011]; see Cieszynski v Town of Clifton Park, 124 AD3d 1039, 1040-1041 [3d Dept 2015]; see generally Davis v County of Nassau, 166 AD2d 498, 498 [2d Dept 1990]). Consequently, the motion was properly denied "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. [*2]Ctr., 64 NY2d 851, 853 [1985]).
Finally, defendant's contention that it is entitled to summary judgment because it lacked actual or constructive notice of the allegedly dangerous condition is not properly before us because it is raised for the first time on appeal (see Matter of Schmidt v City of Buffalo Planning Bd., 174 AD3d 1413, 1414-1415 [4th Dept 2019]; see generally Ciesinski v Town of Aurora, 202 AD2d 984, 985 [4th Dept 1994]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483447/ | Order filed November 8, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-21-00491-CR
____________
RICARDO OLIVAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1567655
ORDER
This court has determined, pursuant to Texas Rule of Appellate Procedure
34.5(f) and 34.6(g)(2), that it must inspect the original of State’s exhibit 2B,
labeled “DVD” in Reporter's Record Volume 8.
The clerk of the 184th District Court is directed to deliver to the Clerk of this
court the original of State’s exhibit 2B, labeled “DVD” in Reporter's Record
Volume 8, on or before November 15, 2022. The Clerk of this court is directed to
receive, maintain, and keep safe this original exhibit; to deliver it to the justices of
this court for their inspection; and, upon completion of inspection, to return the
original of State’s exhibit 2B, labeled “DVD” in Reporter's Record Volume 8, to
the clerk of the 184th District Court.
PER CURIAM
Panel Consists of Justices Spain, Poissant, Wilson. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483452/ | Motions Dismissed as Moot; Appeal Dismissed and Memorandum Opinion
filed November 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00643-CR
EX PARTE DOMINIQUE LAVON DICKERSON
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1783029
MEMORANDUM OPINION
This appeal is from an order signed August 26, 2022. The appeal was to the
Texas Court of Criminal Appeals but the Harris County District Clerk
subsequently, and erroneously, assigned this cause to this court. On October 6,
2022, appellant advised this court of the error and moved to transfer the appeal.
The State filed a response, agreeing the assignment to this court was erroneous.
Because this cause was erroneously assigned to this court, we dismiss the
appeal. The notice of appeal filed in this court will be forwarded to the Texas
Court of Criminal Appeals.
Appellant’s pending motions to transfer this appeal and extend time to file a
brief are dismissed as moot.
PER CURIAM
Panel consists of Justices Wise, Jewell, and Poissant.
Do Not Publish – Tex. R. App. P. 47.2(b)
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483455/ | Affirmed and Memorandum Majority and Concurring Opinions filed
November 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00229-CR
CHRIS LONELL HOLLOWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1603520
MEMORANDUM CONCURRING OPINION
I concur in the court’s judgment and join in the opinion as to issue one. Issue
two was not preserved, so I do not join in that portion of the opinion and express
no opinion on it. See Tex. R. App. P. 33.1(a).
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain
(Bourliot, J., majority).
Do Not Publish — TEX. R. APP. P. 47.2(b). | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483460/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,168-02
EX PARTE TOMMY NATHANIEL TAYLOR, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 631602-A IN THE 179TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. NEWELL, J. filed a dissenting opinion joined by RICHARDSON and
SLAUGHTER , JJ.
ORDER
Applicant was convicted of possession of a controlled substance and sentenced to twenty
years’ imprisonment. Applicant filed this application for a writ of habeas corpus in the county of
conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
Habeas counsel, Lana Gordon, filed this application with the Harris County District Clerk
on January 12, 1995. Applicant alleges that a notice of appeal was filed in a companion case, but
this cause number was inadvertently left off of the notice of appeal. He seeks an out of time appeal.
The State was served with this application on January 17, 1995, and filed its answer requesting an
order designating issues on February 1, 1995. The trial judge signed an order designating issues on
February 2, 1995, ordering affidavits from counsel. Counsel both filed their affidavits on February
13, 1995. The trial court held a habeas hearing on April 25, 1995, where one counsel and Applicant
testified. At the end of that hearing, the trial court found counsel ineffective for failing to provide
both cause numbers on the notice of appeal and recommended that this Court grant relief in the form
of an out of time appeal. The judge also stated that written findings of fact would be prepared, but
the record does not contain written findings.
It appears that nothing was done on this writ application from the time of that habeas hearing
until March 30, 2016, when habeas counsel filed a motion to withdraw as counsel. In that motion,
counsel states that she had timely prepared findings of fact for the trial judge’s signature in 1995, but
they were never signed. She also states that in 2014, she was appointed to assist Applicant in
preparing new findings which were also prepared and never signed. She requested that new habeas
counsel be appointed. She was allowed to withdraw on March 31, 2016, and new counsel, Thomas
Martin, was appointed to represent Applicant on April 1, 2016. There is no indication that new
habeas counsel ever filed anything in this cause.
This application was received by this Court on August 1, 2022. The record contains no
explanation as to why there was a decades’ long delay in forwarding the application to this Court.
We remand this application to the trial court to determine whether: (1) Applicant still wishes to
pursue his claim, (2) whether he is suffering collateral consequences from this conviction, and (3)
exactly what happened in the processing of this application to cause such a delay.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: NOVEMBER 09, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483454/ | Affirmed and Memorandum Majority and Concurring Opinions filed
November 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00229-CR
CHRIS LONELL HOLLOWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 1603520
MEMORANDUM MAJORITY OPINION
Appellant Chris Holloway appeals his conviction for aggravated sexual
assault of a child. A jury convicted appellant, found a punishment enhancement
paragraph true, and assessed punishment at imprisonment for life. In two issues,
appellant contends that the trial court erred in (1) not allowing the defense to
question another minor who testified appellant also sexually assaulted her
regarding her sexual assault by another individual and (2) accepting the jury’s
punishment verdict when the punishment verdict form was not signed by the jury
foreman. We affirm.
Background
Appellant was indicted for the offense of continuous sexual abuse of a child.
Complainant T.B., who was fourteen years old at the time of trial, testified
regarding the details of several sexual abuse events by appellant that allegedly
occurred when T.B. was between the ages of three and five. T.B.’s mother testified
regarding T.B.’s outcry statement, which occurred when T.B. was eleven. The
State also presented the testimony of another child, M.L., who stated appellant
sexually abused her around the same time as T.B., when she was also between the
ages of three and five.1
In a hearing outside the presence of the jury, the trial court considered
whether to permit the defense to cross-examine M.L. about her allegation that
another person, L.J., had sexually assaulted her when she was eleven. After hearing
testimony and argument, the trial court determined the line of questioning was
barred by Texas Rule of Evidence 412. At the conclusion of the guilt-innocence
portion of trial, the jury found appellant guilty of aggravated sexual assault of a
child.
At the conclusion of the punishment phase, in open court, the trial court
asked the jury foreman if the verdict on punishment was unanimous and the
foreman responded, “Yes, ma’am.” The judge then read the verdict, including that
the jury, having found appellant guilty and a punishment enhancement paragraph
true, assessed his punishment at imprisonment for life. No one for the defense or
on the jury raised any objections or complaints regarding this process. The
1
The details of the alleged abuse are well known to the parties and unnecessary to the
disposition of the issues raised in this appeal, so we will not recount them here.
2
punishment verdict form in the record contains the instruction “CHOOSE ONE” at
the top followed by five paragraphs of text, each containing a different punishment
verdict. The first paragraph of the form is circled—the one containing the finding
of the enhancement paragraph as true and the life-in-prison term—but the space
available for the foreman’s signature was left blank.
Exclusion of Evidence
As stated, in his first issue, appellant contends the trial court erred in
precluding him, pursuant to Rule 412, from cross-examining witness M.L. about
her allegation that another person, L.J., had also sexually assaulted her. Tex. R.
Evid. 412. We review a trial court’s decision to admit or exclude evidence under
an abuse-of-discretion standard and will not reverse the decision if it is within the
zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex.
Crim. App. 2011). We must uphold the trial court’s decision if it is reasonably
supported by the record and correct under any theory of law applicable to the case.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Rule 412, entitled “Evidence of Previous Sexual Conduct in Criminal
Cases,” prohibits the admission of evidence regarding a victim’s previous sexual
conduct in certain types of cases unless it falls within one of five specified
exceptions. Only two of those exceptions are potentially relevant here: (1) whether
the proffered evidence relates to the motive or bias of the alleged victim and (2)
whether admission of the evidence is constitutionally required. See Tex. R. Evid.
412(b)(2)(C), (E). Even if the proponent of the evidence of past sexual conduct can
satisfy the burden to demonstrate the evidence’s relevance and an applicable Rule
412 exception, the evidence of specific instances of past sexual behavior still must
be excluded unless the probative value of the evidence outweighs the danger of
unfair prejudice. See id. at 412(b)(3).
3
The proponent of challenged evidence generally has the burden of
establishing the evidence’s admissibility by a preponderance of the evidence.
White v. State, 549 S.W.3d 146, 151–52 (Tex. Crim. App. 2018); Willis v. State,
No. 14-17-00559-CR, 2019 WL 1941067, at *7 (Tex. App.—Houston [14th Dist.]
Apr. 30, 2019, pet. ref’d) (mem. op., not designated for publication). Here,
appellant had the burden to demonstrate the admissibility of the evidence related to
M.L.’s other sexual assault allegation. Under the “motive or bias” exception,
appellant had to establish that the proffered evidence was probative on the issue of
M.L.’s motive or bias to make a false allegation of sexual assault against appellant
and that the evidence was more probative than prejudicial. See Willis, 2019 WL
1941067, at *7 (citing Montgomery v. State, 415 S.W.3d 580, 583 (Tex. App.—
Amarillo 2013, pet. ref’d)). Under the constitutionally-required exception,
appellant needed to establish that the Confrontation Clause required admission and
that the evidence was more probative than unfairly prejudicial. See id. (citing
Henley v. State, 493 S.W.3d 77, 95 (Tex. Crim. App. 2016), and Lopez v. State, 18
S.W.3d 220, 225-26 (Tex. Crim. App. 2000)). To determine whether evidence
must be admitted under the Confrontation Clause, a trial court must balance the
defendant’s right to cross-examine and the probative value of the proffered
evidence against the risk factors associated with the evidence. Henley, 493 S.W.3d
at 95. Trial courts possess broad discretion to impose reasonable limits on cross-
examination to avoid harassment, prejudice, confusion of the issues, endangering
the witness, and the injection of cumulative or collateral evidence. Id.
In his brief, appellant asserts that cross-examination of M.L. “could have
shown [she had] a bias or motive to claim” appellant had sexually assaulted her
and it “could have supported a theory that she might be mistaken in her belief that
appellant sexually abused her when . . . it was really this other person.” Appellant
4
does not explain in his brief how such cross-examination would have supported
either theory.
In the hearing outside the presence of the jury, M.L. testified that appellant
sexually assaulted her when she was between the ages of three and five, and L.J.
sexually assaulted her when she was eleven years old. She originally went to the
Children’s Assessment Center regarding the assault by appellant but subsequently
told her mother about the assault by L.J. and returned to the center. M.L. insisted
that she was not confused at all about the two incidents, appellant assaulted her
when she was aged three to five, L.J. assaulted her when she was eleven, and she
had no contact with appellant when she was eleven.
In argument to the trial court, defense counsel pointed out that M.L. was
very young (reportedly 3 to 5 years old) when appellant allegedly sexually
assaulted her, and counsel argued that “when you have a child that young,
memories get mixed up. Memories get confused.” While this might be reasonable
jury argument regarding why M.L.’s allegation against appellant might be suspect,
appellant did not explain how it necessitated admission of evidence that M.L. had
also been assaulted by L.J. years later. Defense counsel additionally referenced
M.L.’s living conditions, although no evidence was presented regarding those
conditions. Counsel noted that both of M.L’s outcry statements came around the
time that she was eleven years old and suggested she may have “switched” the
identity of the person who assaulted her but then felt that she could not retract her
statements. Other than the temporal proximity of the two outcry statements,
however, counsel did not point to any indication of such confusion. Indeed, as
stated above, M.L. expressly denied that she had any confusion regarding the two
incidents. Counsel’s rank speculation regarding the possibility of confusion is not
sufficient to establish bias or motive for Rule 412 purposes. Counsel also asserted
5
that M.L. first identified L.J. as a person who assaulted her and later identified
appellant, but that assertion is not supported by the record; indeed, the record
supports the opposite conclusion. Lastly, counsel suggested there were “a lot of
issues” with M.L.’s memory but did not cite specific examples.
Specifically regarding whether cross-examination based on M.L.’s
allegations against L.J. was constitutionally required, defense counsel argued only
that the testimony was required because the State identified the allegations as
“Brady” material. See generally Harm v. State, 183 S.W.3d 403, 405–06 (Tex.
Crim. App. 2006) (discussing State’s duty to disclose evidence favorable to a
defendant under Brady v. Maryland, 373 U.S. 83 (1963)). As the State pointed out
to the trial court, however, the mere fact the State identified the allegation of
another assault as potentially favorable to the defendant does not require its
admission. Brady is a case about disclosure of information, not admission of
evidence. See id. Appellant cites no authority and makes no argument to the
contrary.
We conclude that the trial court did not abuse its discretion when it barred
defense counsel from cross examining M.L. regarding her allegation that she was
sexually assaulted by L.J. several years after she was allegedly assaulted by
appellant. Appellant did not meet his burden to demonstrate the evidence was
admissible either because it showed bias or motive or because it was
constitutionally required. See Tex. R. Evid. 412(b)(2)(C), (E); see also Willis, 2019
WL 1941067, at *7 (holding defendant failed to meet his burden to demonstrate
evidence of another assault revealed either a bias against the defendant, a motive to
lie, or was constitutionally required); Woods v. State, 301 S.W.3d 327, 334–35
(Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding defendant “failed to
show in what way the previous assault show[ed] the complainant’s motive or bias,
6
if any” or that the evidence of the previous assault was “constitutionally required to
be admitted”).
We overrule appellant’s first issue.
Form of Verdict
In his second issue, appellant contends that the trial court erred in accepting
the jury’s punishment verdict when the verdict form was not signed by the jury
foreman. Appellant asserts that the lack of a signature on the form rendered the
verdict informal and, thus, the trial court had a duty pursuant to Texas Code of
Criminal Procedure article 37.10(a) to call the jury’s attention to the problem and,
if the jury consents, have the problem corrected. Tex. Code Crim. Proc. art.
37.10(a); see also Nixon v. State, 483 S.W.3d 562, 567 (Tex. Crim. App. 2016)
(explaining that article 37.10(a) imposes a duty to act on trial courts).2
In seeking to define what makes a verdict “informal” under article 37.10(a),
the Court of Criminal Appeals has looked to the definition provided in Black’s Law
Dictionary, which defines informal as “[n]ot done or performed in accordance with
normal forms or procedures.” Nixon, 483 S.W.3d at 566 (quoting Black’s Law
Dictionary 898 (10th ed. 2014)). The Court also noted in Nixon that it had
previously described an “informal verdict” as “one that does not meet the legal
requirements of being written or answered as authorized.” Id. (quoting Jennings v.
State, 302 S.W.3d 306, 307 (Tex. Crim. App. 2010)).
2
Article 37.10(a) provides in full as follows:
If the verdict of the jury is informal, its attention shall be called to it, and with its
consent the verdict may, under the direction of the court, be reduced to the proper
form. If the jury refuses to have the verdict altered, it shall again retire to its room
to deliberate, unless it manifestly appear that the verdict is intended as an
acquittal; and in that case, the judgment shall be rendered accordingly,
discharging the defendant.
7
Appellant does not cite any authority suggesting that the lack of a foreman’s
signature on the form rendered the verdict informal. The State points out that no
statute requires such a signature on a verdict form and all that is statutorily
required for a verdict is for it to be “a written declaration by a jury of its decision
of the issue submitted to it in the case.” Tex. Code Crim. Proc. art. 37.01. We note,
however, that the verdict form in this case in fact instructed the foreman to sign the
form in the space provided for the punishment determined by the jury.
However, even if we assume the verdict in this case was informal and the
trial court failed to perform its duty under article 37.10(a), our analysis does not
end there. See Williams v. State, No. 03-18-00267-CR, 2018 WL 3451635, at *13
(Tex. App.—Austin July 18, 2018, pet. ref’d) (mem. op., not designated for
publication) (assuming verdict was informal without deciding); Herod v. State, No.
14-12-00645-CR, 2013 WL 5760739, at *5 (Tex. App.—Houston [14th Dist.] Oct.
22, 2013, pet. ref’d) (mem. op., not designated for publication) (same). Under our
prior precedent, in determining whether a trial court reversibly erred in failing to
correct an informal verdict, we keep in mind that a jury’s verdict generally should
be upheld if the jury’s intention can be reasonably ascertained. See Perez v. State,
21 S.W.3d 628, 631 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see also
Williams, 2018 WL 3451635, at *13 (following Perez); Herod, 2013 WL 5760739,
at *5 (same); Rains v. State, No. 12-11-00135-CR, 2012 WL 1515074, at *6–7
(Tex. App.—Tyler Apr. 30, 2012, pet. ref’d) (mem. op., not designated for
publication) (same); Martinez v. State, No. 04-09-00020-CR, 2009 WL 2882934,
at *2–3 (Tex. App.—San Antonio Sept. 9, 2009, no pet.) (mem. op., not designated
for publication) (same). Such error is nonconstitutional in nature and requires
reversal only if it affects a substantial right of the defendant. See Herod, 2013 WL
5760739, at *5; Perez, 21 S.W.3d at 631. Verdict forms should be reasonably and
8
liberally, rather than strictly, construed, and when a finding of the jury can be
reasonably ascertained, the verdict is sufficient. See Perez, 21 S.W.3d at 631.
As mentioned above, in the present case, after receiving the verdict form, the
trial judge asked the jury foreman if the verdict was unanimous, and the foreman
responded, “Yes, ma’am.” The judge then read the verdict aloud, including that the
jury assessed appellant’s punishment at imprisonment for life. No one for the
defense or on the jury raised any objections or complaints regarding the verdict so
announced. Although the foreman failed to sign the space available for his
signature, the first paragraph of the verdict form is clearly circled, indicating the
jury chose the punishment the trial court had read aloud, life in prison.
Under these circumstances, the jury’s intention can be reasonably
ascertained and the verdict should be upheld. See Herod, 2013 WL 5760739, at *5;
Perez, 21 S.W.3d at 631. Appellant was not harmed by the trial court’s failure to
follow the article 37.10(a) procedure. Accordingly, we overrule appellant’s second
issue.
We affirm the trial court’s judgment.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain. (Spain,
J., concurring).
Do Not Publish — TEX. R. APP. P. 47.2(b).
9 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483448/ | Affirmed and Memorandum Opinion filed November 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00591-CV
NANCY PETRUCCIANI, Appellant
V.
RUSSELL A. PETRUCCIANI, Appellee
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2007-51593
MEMORANDUM OPINION
In this appeal from a post-divorce enforcement order for turnover and
appointment of a receiver, appellant Nancy Petrucciani argues that the debt created
by her 2008 divorce decree is unenforceable because it became dormant after ten
years and was not timely revived. Because the divorce decree conditioned Nancy’s
payment obligation on subsequent events, the earliest of which occurred in 2014, we
conclude that the payment obligation had not become dormant by the time her former
spouse sought to enforce it in 2021. We therefore affirm the trial court’s order.
I.
After having two children together, Nancy and Russell Petrucciani divorced
in 2008.1 In the divorce decree, the trial court awarded Russell $30,000, with simple
interest of 6% to accrue beginning twelve months after the judgment. The debt was
secured by a lien on the home where Nancy resided with the couple’s minor children.
The divorce decree stated that “accrued interest and unpaid principle [are] to be paid
upon the first to occur of any of the following events”: (a) Nancy’s sale of the home,
(b) the emancipation of the couple’s youngest child, (c) Nancy’s remarriage,
(d) Nancy’s cohabitation with a romantic partner, (e) Nancy’s death, or (f) the home
ceasing to be the children’s primary residence.
In 2021, Russell filed an “Application for Turnover After Judgment and
Appointment of Receiver.” At the hearing on the Application, Russell’s counsel
stated that the earliest date that one of the listed events occurred was in May 2014,
when the youngest child reached the age of 18 and graduated from high school. In
response, Nancy argued only that it was too late for Russell to seek execution on the
judgment because it had become dormant and was not timely revived.2 The trial
court rejected Nancy’s argument and signed a turnover order that included the
appointment of a receiver to possess and liquidate Nancy’s non-exempt property as
necessary to satisfy the judgment against her. She appeals the trial court’s order,
1
The decree sates that the divorce was judicially pronounced and rendered in court on July
16, 2008, and was noted on the court’s docket sheet on the same date, but was signed on October
21, 2008.
2
Neither the Application nor a response to it is in the record, but Nancy asserts that she
pleaded dormancy, which is an affirmative defense. See TEX. R. CIV. P. 94; Taylor v. Speck, 308
S.W.3d 81, 87 (Tex. App.—Dallas 2010, no pet.). Because it makes no difference to the outcome
of the appeal, and because dormancy was the topic discussed at the oral hearing on Russell’s
Application, we assume, without deciding, that Nancy did plead dormancy.
2
which we review for abuse of discretion. See Jay & VMK, Corp. v. Lopez, 572
S.W.3d 698, 703 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
II.
In a single issue, Nancy argues that the $30,000 judgment included in the 2008
divorce decree became dormant after ten years, after which Russell had just two
years in which to revive the judgment. See TEX. CIV. PRAC. & REM. CODE
§ 34.001(a) (“If a writ of execution is not issued within 10 years after the rendition
of a judgment of a court of record or a justice court, the judgment is dormant and
execution may not be issued on the judgment unless it is revived.”); id. § 31.006 (“A
dormant judgment may be revived by scire facias or by an action of debt brought not
later than the second anniversary of the date that the judgment becomes dormant.”).
But as Russell correctly pointed out, both in the trial court and on appeal, the
dormancy statute does not begin to run on the date of the judgment if the judgment
predicates payment on future events. See Abrams v. Salinas, 467 S.W.3d 606, 611
(Tex. App.—San Antonio 2015, no pet.). In that event, the ten-year dormancy
deadline “begins to run when the payment becomes due.” Id. (because divorce
decree ordered father to pay child’s college expenses, motion to enforce filed more
than ten years from divorce decree, but less than ten years from the dates child
attended college, was not barred by dormancy statute); see also In re Marriage of
Ward, 806 S.W.2d 276, 277 (Tex. App.—Amarillo 1991, writ denied) (where
divorce judgment ordered husband to pay wife a portion of his monthly retirement
benefits on receipt, dormancy statute applied only as to installments that had been
“due and payable for more than ten years”).
Here, the judgment stated that, as to Nancy’s $30,000 debt to Russell, the
“accrued interest and unpaid principle [are] to be paid upon the first to occur of” one
of six events. By this language, the trial court made the occurrence of one of the six
3
listed events a condition precedent to Nancy’s obligation to pay, and Russell’s right
to enforce the obligation did not accrue until that time. See Solar Applications Eng’g,
Inc. v. T.A. Operating Corp., 327 S.W.3d 104, 108 (Tex. 2010) (“A condition
precedent is an event that must happen or be performed before a right can accrue to
enforce an obligation.”). Because Nancy’s obligation to pay was not enforceable
until the earliest occurrence of one of the six possible conditions precedent, Russell
could not properly have obtained a writ of execution until then. See Rollins v. Am.
Exp. Travel Related Servs. Co., 219 S.W.3d 1, 3 n.1 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (“A ‘writ of execution’ is sought by a judgment creditor to enforce
judgments.”). It is undisputed that the first such event occurred in May of 2014; thus,
Russell’s right to enforce Nancy’s obligation to pay did not accrue until May 2014,
so that this part of the judgment would not have become dormant until May of 2024.
Nancy argues that Abrams can be distinguished in that a divorce agreement
was incorporated into the judgment in that case, and the parties to the agreement
were free to determine what conditions precedent must be met to trigger a payment
obligation. Although the divorce decree in this case does not indicate that it
incorporates an agreement between the parties, that is a distinction without a
difference. Conditions precedent to payment were included in the divorce decree in
this case just as they were in Abrams and their effect is the same regardless of
whether the decision to include those conditions originated with the trial court or in
an agreement between the parties. See Ex parte Gorena, 595 S.W.2d 841, 844 (Tex.
1979) (orig. proceeding) (“The fact that a judgment is rendered by consent gives it
neither less nor greater force or effect than it would have had it been rendered after
protracted litigation, except to the extent that the consent excuses error and operates
to end all controversy between the parties.” (quoting Wagner v. Warnasch, 156 Tex.
334, 339, 295 S.W.2d 890, 893 (1956))).
4
We overrule the sole issue presented.
III.
Because Russell applied for turnover and appointment of a receiver to enforce
Nancy’s payment obligation in 2021—approximately seven years after Nancy’s
payment obligation matured and Russell’s right to enforce it accrued—the part of
the divorce decree creating and conditioning Nancy’s payment obligation never
became dormant. We accordingly affirm the challenged order.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
5 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483449/ | Order filed November 8, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00715-CV
____________
JOSE ISMAEL RAMIREZ D/B/A FORTHRIGHT CONSTRUCTION AND
FORTHRIGHT-RAMIREZ, INC., Appellants
V.
JJ & EG, LLC, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2019-76911
ABATEMENT ORDER
We have determined that this case is appropriate for referral to mediation, an
alternative dispute resolution process. See Tex. Civ. Prac. & Rem. Code §§
154.021—.073. Mediation is a forum in which an impartial person, the mediator,
facilitates communication between parties to promote reconciliation or settlement.
Id.§ 154.023(a). Any communication relating to the subject matter of the appeal
made by a participant in the mediation proceeding is confidential. See Tex. Civ.
Prac. & Rem. Code § 154.053. After mediation, the parties shall advise the court
whether the case settled, or whether any further negotiation efforts are planned.
The court ORDERS the appeal ABATED for a period of sixty days and
refers the underlying dispute to mediation. Any party may file a written objection
1
to this order with the clerk of this court within 10 days of the date of this order.
See Tex. Civ. Prac. & Rem. Code § 154.022. If this court finds that there is a
reasonable basis for the objection, the objection shall be sustained and the appeal
reinstated on this court’s active docket. See id.
The court ORDERS that the mediation be held within 60 days of the date of
this order. The court ORDERS that all parties or their representatives with full
settlement authority shall attend the mediation process, with their counsel of
record. The court FURTHER ORDERS that within 48 hours of completion of
the mediation, the parties shall advise the court in writing whether the case settled.
If mediation fully resolves the issues in the case, the court ORDERS the
parties to file a motion to dismiss the appeal, other dispositive motion, or a motion
for additional time to file the dispositive motion, within 10 days of the conclusion
of the mediation.
The court ORDERS the appellate timetable in this case suspended for 60
days from the date of this order.
The appeal is ABATED, treated as a closed case, and removed from this
court’s active docket for a period of sixty days. The appeal will be reinstated on
this court’s active docket after sixty days. Any party may file a motion stating
grounds for reinstating the appeal before the end of the sixty-day period.
Any party may also file a motion to dismiss the appeal or other dispositive
motion at any time. Any party may file a motion to extend the abatement period
for completion of mediation or to finalize a settlement.
PER CURIAM
Panel Consists of Justices Wise, Jewell, and Poissant.
2
RULES FOR MEDIATION
i. Definition of Mediation. Mediation is a process under which an impartial person, the
mediator, facilitates communication between the parties to promote reconciliation,
settlement or understanding among them. The mediator may suggest ways of resolving
the disputes, but may not impose his own judgment on the issues for that of the parties.
ii. Agreement of Parties. Whenever the parties have agreed to mediation they shall be
deemed to have made these rules, as amended and in effect as of the date of the
submission of the dispute, a part of their agreement to mediate.
iii. Consent to Mediator. The parties consent to the appointment of the individual named as
mediator in their case. The Mediator shall act as an advocate for resolution and shall use
his best efforts to assist the parties in reaching a mutually acceptable settlement.
iv. Conditions Precedent to Serving As Mediator. The mediator shall not serve as a
mediator in any dispute in which he has any financial or personal interest in the result of
the mediation. Prior to accepting an appointment, the Mediator shall disclose any
circumstances likely to create a presumption of bias or prevent a prompt meeting with the
parties. In the event that the parties disagree as to whether the Mediator shall serve, the
Mediator shall not serve.
v. Authority of the Mediator. The Mediator does not have the authority to decide any
issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute
by the parties. The Mediator is authorized to conduct joint and separate meetings with
the parties and to offer suggestions to assist the parties achieve settlement. If necessary,
the Mediator may also obtain expert advice concerning technical aspects of the dispute,
provided that the parties agree and assume the expenses of obtaining such advice.
Arrangements for obtaining such advice shall be made by the Mediator or the parties, as
the Mediator shall determine.
vi. Commitment to Participate in Good Faith. While no one is asked to commit to settle
their case in advance of mediation, all parties commit to participate in the proceedings in
good faith with the intention to settle, if at all possible.
vii. Parties Responsible for Negotiating Their Own Settlement. The parties understand
that the Mediator will not and cannot impose a settlement in their case and agree that they
are responsible for negotiating a settlement acceptable to them. The Mediator, as an
advocate for settlement, will use every effort to facilitate the negotiations of the parties.
The Mediator does not warrant or represent that settlement will result from the mediation
process.
viii. Authority of Representatives. PARTY REPRESENTATIVES MUST HAVE
AUTHORITY TO SETTLE AND ALL PERSONS NECESSARY TO THE
DECISION TO SETTLE SHALL BE PRESENT. The names and addresses of such
persons shall be communicated in writing to all parties and to the Mediator prior to the
mediation.
ix. Time and Place of Mediation. The Mediator shall fix the time of each mediation
session. The mediation shall be held at the office of the Mediator, or at any other
convenient location agreeable to the Mediator and the parties, as the Mediator shall
3
determine.
x. Identification of Matters in Dispute. Prior to the first scheduled mediation session,
each party shall provide the Mediator with confidential information in the form requested
by the Mediator setting forth its position with regard to the issues that need to be
resolved.
At or before the first session, the parties will be expected to produce all information
reasonably required for the Mediator to understand the issues presented. The Mediator
may require any party to supplement such information.
xi. Privacy. Mediation sessions are private. The parties and their representatives may
attend mediation sessions. Other persons may attend only with the permission of the
parties and with the consent of the Mediator.
xii. Confidentiality. Confidential information disclosed to a Mediator by the parties or by
witnesses in the course of the mediation shall not be divulged by the Mediator. All
records, reports or other documents received by a mediator while serving in that capacity
shall be confidential. The Mediator shall not be compelled to divulge such records or to
testify in regard to the mediation in any adversary proceeding or judicial forum. Any
party that violates this agreement shall pay all fees and expenses of the Mediator and
other parties, including reasonable attorney's fees incurred in opposing the efforts to
compel testimony or records from the Mediator.
The parties shall maintain the confidentiality of the mediation and shall not relay on, or
introduce as evidence in any arbitral, judicial, or other proceeding: a) views expressed or
suggestions made by another party with respect to a possible settlement of the dispute; b)
admissions made by another party in the course of the mediation proceedings; c)
proposals made or views expressed by the Mediator; or d) the fact that another party had
or had not indicated willingness to accept a proposal for settlement made by the
Mediator.
xiii. No Stenographic Record. There shall be no stenographic record made of the mediation
process.
xiv. No Service of Process at or near the Site of the Mediation Session. No subpoenas,
summons, complaints, citations, writs or other process may be served upon any person at
or near the site of any mediation session upon any person entering, attending or leaving
the session.
xv. Termination of Mediation. The mediation shall be terminated: a) by the execution of a
settlement agreement by the parties; b) by declaration of the Mediator to the effect that
further efforts at mediation are no longer worthwhile; or c) after the completion of one
full mediation session, by a written declaration of a party or parties to the effect that the
mediation proceedings are terminated.
xvi. Exclusion of Liability. The Mediator is not a necessary or proper party in judicial
proceedings relating to the mediation. Neither Mediator nor any law firm employing
Mediator shall be liable to any party for any act or omission in connection with any
mediation conducted under these rules.
4
xvii. Interpretation and Application of Rules. The Mediator shall interpret and apply these
rules.
xviii. Fees and Expenses. The Mediator's daily fee shall be agreed upon prior to mediation
and shall be paid in advance of each mediation day. The expenses of witnesses for either
side shall be paid by the party producing such witnesses. All other expenses of the
mediation, including fees and expenses of the Mediator, and the expenses of any witness
and the cost of any proofs or expert advice produced at the direct request of the Mediator,
shall be borne equally by the parties unless they agree otherwise.
5
Fourteenth Court of Appeals
MEDIATORS REPORT
Date: ____________________________
Christopher A. Prine, Clerk
301 Fannin, Room 245
Houston, TX 77002
Re: Appellate number:
Case style:
In compliance with this court’s order dated ________________________________, I
conducted a mediation
proceeding in this case on _____________________________.
The mediation [ did / did not ] result in a [ full / partial ] resolution of the matters in
dispute. To my
knowledge, further negotiation efforts [ are / are not ] planned.
The parties and mediator have agreed that the mediator shall be paid as follows:
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
$_______________________ paid by ______________________
Mediator:
Address:
Telephone
E-Mail Address
Return immediately after mediation to:
14th Court of Appeals; 301 Fannin, Room 245, Houston, Texas 77002
(713) 274-2800
6 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483451/ | Order filed November 8, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-20-00777-CV
____________
FLOYD KENNETH BAILEY, JR. AND KENNETH CAMP BAILEY,
Appellants
V.
ADAM PEAVY AND ADAM PEAVY PC, Appellees
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2019-06454
ORDER
After a “sealed first supplemental clerk’s record” was filed in this court on
March 25, 2021, our review determined that three specific documents (the
unredacted version of “Defendants’ Motion to Dismiss Pursuant to the Texas
Citizens Participation Act” filed on August 31, 2020; “Exhibit 2 to Defendants’
Motion to Dismiss Pursuant to the Texas Citizens Participation Act” filed on
August 31, 2020; and “Exhibit 3 to Defendants’ Motion to Dismiss Pursuant to the
Texas Citizens Participation Act” filed August 31, 2020) contained in that filed
record were missing every other page. Therefore, this court issued an order on
July 26, 2022, requesting that the Harris County District Clerk file a supplemental
clerk’s record containing the missing pages. We instructed the clerk in the order,
that if the omitted pages were not part of the case file, to file a supplemental clerk’s
record certifying that those pages were not part of the case file. We further
instructed the parties that, if those missing pages were not part of the case file, “it
is incumbent on the parties to file a new motion to seal in the trial court with
complete copies of the documents to be included in the sealed supplemental
clerk’s record.” This is so the trial court can review the correct and complete
documents for the purpose of sealing.
On August 5, 2022, the Harris County District Clerk filed a third
supplemental clerk’s record certifying that the missing pages were not part of the
case file.
On September 22, 2022, a “‘sealed’ corrected supplemental clerk’s record
‘court ordered’” was filed in this court. That clerk’s record contained (1) the trial
court’s March 23, 2021 order granting the parties’ motion to permit sealed
documents to be filed under seal in this court; (2) defendants’ first supplemental
designation of the clerk’s record filed on May 18, 2021; (3) defendants’
supplemental designation of the sealed clerk’s record filed on February 15, 2021;
(4) “Defendants Motion to Dismiss Pursuant to the Texas Citizens Participation
Act” file-stamped September 19, 2022; (5) “Exhibit 2 to Defendants’ Motion to
Dismiss Pursuant to the Texas Citizens Participation Act” file-stamped September
19, 2022; and (6) “Exhibit 3 to Defendants’ Motion to Dismiss Pursuant to the
Texas Citizens Participation Act” file-stamped September 19, 2022.
It does not appear that the trial court reviewed the documents with the
missing pages pursuant to Texas Rule of Civil Procedure 76a. See Tex. R. Civ. P.
76a. There is no order from the trial court in compliance with Rule 76a(6). See id.
76a(6). There is no record of a hearing pursuant to Rule 76a(5). See id. 76a(5). If
the parties wish to seal and have this court review the correct and complete
documents, it is incumbent on the parties to (1) properly seal the documents in the
trial court pursuant to the procedures set forth in Rule 76a, i.e., file a new motion
to seal in the trial court with complete copies of the documents (containing all
pages) to be included in the sealed supplemental clerk’s record; and (2) ensure that
the Harris County District Clerk provides this court with a complete sealed
supplemental clerk’s record, including documents containing all pages and the trial
court’s order granting the parties’ motion to permit the complete sealed documents
to be filed under seal in this court within 60 days from this order.
The appeal remains abated, treated as a closed case, and removed from this
court’s active docket. The appeal will be reinstated on this court’s active docket
when this court determines that the complete sealed supplemental clerk’s record is
filed in this court. The court will also consider an appropriate motion to reinstate
the appeal filed by either party, or the court may reinstate the appeal on its own
motion.
PER CURIAM
Panel Consists of Justices Wise, Spain, and Hassan. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483458/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,259-01
EX PARTE FREDDIE DEMEATRICE WOLFE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W99-50661-S(A) IN THE 282ND DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
ORDER
Applicant pleaded guilty to violation of a protective order in exchange for deferred
adjudication community supervision. He was later adjudicated guilty and sentenced to twenty-five
years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Wolfe v. State, No. 05-
00-01833-CR (Tex. App. — Dallas November 16, 2001) (not designated for publication). Applicant
filed this application for a writ of habeas corpus in the county of conviction, and the district clerk
forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
Applicant contends that he was denied time credit while released on mandatory supervision.
Applicant has alleged facts that, if true, might entitle him to relief. TEX . GOV ’T CODE § 508.283(b)
and (c); Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). Accordingly, the record should
2
be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC.
art. 11.07, § 3(d). The trial court shall order the Texas Department of Criminal Justice’s Office of
the General Counsel to obtain a response from a person with knowledge of relevant facts. In
developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial
court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is
indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him
at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial
court shall immediately notify this Court of counsel’s name.
The response shall state whether Applicant presented a claim to the time credit resolution
system of the Texas Department of Criminal Justice and, if so, the date the claim was presented. The
response shall then state whether Applicant was serving a sentence for, or has been previously
convicted of, an offense described by § 508.149(a) of the Texas Government Code when his
mandatory supervision was revoked. If not, the response shall state the following:
(1) Applicant’s sentence-begin date,
(2) how much time was remaining on Applicant’s sentence when he was released,
(3) how much time Applicant spent on mandatory supervision before any revocation
warrants were issued,
(4) the dates any revocation warrants were issued and executed, and
(5) whether Applicant received credit while released on mandatory supervision.
The trial court shall make findings of fact and conclusions of law as to whether, before filing
this application, Applicant properly exhausted his administrative remedies as required by §
501.0081(b) of the Government Code. The trial court shall then determine whether Applicant is
eligible to earn street time credit and, if so, whether he is receiving the proper credit for that time.
The trial court may make any other findings and conclusions that it deems appropriate in response
3
to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: November 09, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483453/ | Motion Granted in Part and Order filed November 8, 2022
In The
Fourteenth Court of Appeals
____________
NO. 14-22-00196-CV
____________
DOMINIC MONARITI, Appellant
V.
ANTHONY MONARITI AND CATERINA TORRESS NEE MONARITI,
Appellees
On Appeal from Probate Court No. 2
Harris County, Texas
Trial Court Cause No. 486937
ORDER
Appellant’s brief was originally due May 16, 2022. We have granted a total
of 90 days to file appellant’s brief, until August 29, 2022. When we granted the
last extension, we noted that no further extensions would be granted absent
exceptional circumstances. No brief was filed by the due date. On September 27,
2022, we ordered appellant to file a brief by October 27, 2022, or the appeal would
be subject to dismissal for want of prosecution. No brief was filed by the due date.
On October 28, 2022, a further extension of time was requested. The motion is
GRANTED IN PART.
We order appellant to file a brief with this court within thirty (30) days of
the date of this order. If appellant fails to do so, the appeal is subject to dismissal
without further notice for want of prosecution. See Tex. R. App. P. 42.3(b).
PER CURIAM
Panel Consists of Justices Wise, Jewell and Poissant. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483463/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,846-01
EX PARTE FRANK ROBINSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 18-50042A-422-F IN THE 422ND DISTRICT COURT
FROM KAUFMAN COUNTY
Per curiam.
ORDER
Applicant was convicted of aggravated assault, threaten with a deadly weapon, and was
sentenced to sixty five years’ imprisonment. The Fifth Court of Appeals affirmed his conviction.
Robinson v. State, No. 05-20-00247-CR (Tex. App.—Dallas May 13, 2021) (not designated for
publication). Applicant filed this application for a writ of habeas corpus in the county of conviction,
and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
On June 22, 2022, this Court remanded this matter to the trial court to obtain a response from
trial counsel and findings addressing Applicant’s claims that trial counsel was ineffective. The trial
court held a hearing on the merits of Applicant’s claims on September 26, 2022. At this hearing,
Applicant requested an attorney to represent him. The trial court did not appoint Applicant an
attorney until after the hearing concluded.
We remand this application to the trial court to provide newly appointed habeas counsel an
opportunity to review the grounds raised in the application and consult with Applicant. If the trial
court elects to hold another hearing it shall do so with Applicant’s habeas counsel present. The trial
court shall make findings of fact and conclusions of law as to whether trial counsel’s performance
was deficient and Applicant was prejudiced. The trial court may make any other findings and
conclusions that it deems appropriate in response to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: November 9, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483471/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-92,918-02
EX PARTE ROBERT CASILLAS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2019CR1399-W2 IN THE 399TH DISTRICT COURT
FROM BEXAR COUNTY
Per curiam.
ORDER
Applicant was convicted of possession with intent to deliver a controlled substance and
sentenced to forty-two years’ imprisonment. The Fourth Court of Appeals affirmed his conviction.
Casillas v. State, No. 04-19-00314-CR (Tex. App.—San Antonio May, 13, 2020) (not designated
for publication). Applicant filed this application for a writ of habeas corpus in the county of
conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
On October 12, 2022, this Court denied application number WR-92,918-02 based on the
findings of the trial court without a hearing. Then on October 17, 2022, the Court received a letter
from Applicant stating that he filed a number of documents in the district court that were neither
considered by the trial court nor forwarded to this Court. These documents include exhibits and a
2
memorandum in support that Applicant alleges he filed with his initial application on September 24,
2021; a response to counsel’s affidavit that has a file-stamp date of April 21, 2022; and an amended
application with accompanying exhibits that has a file-stamp date of September 13, 2022. Because
these documents appear to be filed before the trial court issued its findings on September 23, 2022,
they should have been considered by both the trial court and this Court. The writ record indicates
that, for one reason or another, they were not. Therefore, this Court now reconsiders on its own
motion the denial without written order on the findings of the trial court.
However, after an independent review of the record in this case, the Court believes that
Applicant’s amended claims are without merit. Therefore, after reconsideration on the Court’s own
motion, relief is again denied in cause number WR-92,918-02.
Filed: November 09, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483468/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-32,805-06
EX PARTE RAY DANIEL GERHARDT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. A20941-1810-W2 IN THE 64TH DISTRICT COURT
FROM HALE COUNTY
Per curiam.
ORDER
Applicant was convicted of burglary of a habitation and sentenced to 45 years’ imprisonment.
The Seventh Court of Appeals affirmed his conviction. Gerhardt v. State, No. 07-20-00054-CR
(Tex. App.—Amarillo, Nov. 10, 2020). Applicant filed this application for a writ of habeas corpus
in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM .
PROC. art. 11.07.
Applicant contends that trial counsel was ineffective for failing to investigate and call
witnesses. Specifically, counsel failed to: investigate a conversation that Applicant’s brother had
with the investigating officer on the day of the offense; investigate evidence that exculpated
Applicant’s brother; and contact Applicant’s brother and a private investigator who interviewed
2
Applicant and his brother. Applicant contends that, because counsel failed to investigate, Applicant
had to testify to explain his presence near the burglarized house, and his brother and the private
investigator never testified. Applicant also contends that, when Applicant testified, trial counsel
failed to request a limiting instruction concerning Applicant’s criminal history. As a result, Applicant
avers, he felt compelled to volunteer his criminal history.
The writ record contains no details concerning the extent of defense counsel’s investigating
and contacting witnesses, or whether or why counsel called Applicant to testify without requesting
a limiting instruction concerning extraneous offenses.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate
forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial
counsel to respond to Applicant’s claim. In developing the record, the trial court may use any means
set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether
Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court
shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If
counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s
name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s
performance was deficient and Applicant was prejudiced. The trial court may make any other
findings and conclusions that it deems appropriate in response to Applicant’s.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
3
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: November 9, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483467/ | In the Court of Criminal
Appeals of Texas
══════════
No. WR-94,232-01
══════════
EX PARTE CLINTON RAY IVY,
Applicant
═══════════════════════════════════════
On Application for a Writ of Habeas Corpus
Cause No. F43633-A in the 413th District Court
From Johnson County
═══════════════════════════════════════
YEARY, J., filed a concurring opinion.
Applicant was convicted in 2009 of continuous sexual abuse of a
young child and sentenced to fifty years’ imprisonment. The Fourteenth
Court of Appeals affirmed his conviction in 2011. Ivy v. State, No. 14-10-
00028-CR, 2011 WL 915016 (Tex. App.—Houston [14th Dist.] March 17,
2011) (not designated for publication). In October of 2022, Applicant
filed an application for writ of habeas corpus in the county of conviction.
IVY – 2
TEX. CODE CRIM. PROC. art. 11.07. In his application, he alleges that he
received ineffective assistance from both trial and appellate counsel.
Today, the Court remands this application to the trial court to
further develop the record. I join the Court’s remand order. But I write
separately to address my thoughts concerning the doctrine of laches and
its possible application to this case. See Ex parte Smith, 444 S.W.3d 661
(Tex. Crim. App. 2014) (holding a trial court has the authority to sua
sponte consider the doctrine of laches); Ex parte Bazille, ___ S.W.3d ___,
No. WR-89,851-02, 2022 WL 108348 (Tex. Crim. App. Jan. 12, 2022)
(Yeary, J., concurring).
The doctrine of laches ought to be considered in a case like this
one. Applicant’s appeal was finalized in 2011, but this writ application
was not filed until eleven years later. 1 The record is also silent regarding
circumstances that may excuse Applicant’s delay, and at least some
explanation for the long delay in filing should be provided. Consistent
with this Court’s precedent, the trial court “may sua sponte consider and
determine whether laches should bar relief.” Smith, 444 S.W.3d at 667.
If the trial court does so, it must give Applicant the opportunity to
explain the reasons for the delay and give the State’s prosecutors and/or
former counsel for Applicant an opportunity to state whether
Applicant’s delay has caused any prejudice to their ability to defend
against Applicant’s claims. Id. at 670. And ultimately, the trial court
1 “Our revised approach will permit courts to more broadly consider the
diminished memories of trial participants and the diminished availability of
the State’s evidence, both of which may often be said to occur beyond five years
after a conviction becomes final.” Ex parte Perez, 398 S.W.3d 206, 216 (Tex.
Crim. App. 2013) (citing Ex parte Steptoe, 132 S.W.3d 434, 437–39 (Tex. Crim.
App. 2004) (Cochran, J., dissenting)).
IVY – 3
may include findings of fact and conclusions of law concerning the
doctrine of laches in its response to this Court’s remand order.
With these additional thoughts, I join the Court’s order.
FILED: November 9, 2022
DO NOT PUBLISH | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483472/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-69,675-06
IN RE SETH DANIEL BUFFINGTON, Relator
ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. W05-32831-Q(A) IN THE 204TH DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
ORDER
Relator has filed a motion for leave to file an application for a writ of mandamus under this
Court’s original jurisdiction. He contends that he filed an application for a writ of habeas corpus in
Dallas County and his application has not been properly forwarded to this Court.
Respondent, the District Clerk of Dallas County, shall forward Relator’s habeas application
to this Court, respond that Relator has not filed a habeas application in Dallas County, or forward
a copy of an order designating issues together with correspondence documenting the date the State
received Relator’s habeas application. See TEX . CODE CRIM . PROC. art. 11.07, § 3(c) and (d); TEX .
R. APP . P. 73.4(b)(5). This motion for leave to file will be held. Respondent shall comply with this
order within thirty days from the date of this order.
Filed: November 9, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483464/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,876-01
EX PARTE JAMES CHRISTOPHER PHILLIPS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 6880-A IN THE 39TH DISTRICT COURT
FROM HASKELL COUNTY
Per curiam.
OPINION
Applicant was convicted of Engaging in Organized Criminal Activity and sentenced to
nineteen years’ imprisonment. Applicant, through habeas counsel, filed this application for a writ
of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See
TEX . CODE CRIM . PROC. art. 11.07.
Applicant contends that his plea was involuntary because trial counsel affirmatively
misadvised him as to parole eligibility. See Strickland v. Washington, 466 U.S. 668 (1984); Ex parte
Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012). The trial court held an evidentiary hearing
and recommends, with the State’s agreement, that this Court grant habeas relief. The trial court
adopted the parties’ agreed findings and recommendation, which are supported by the record.
2
Relief is granted. The judgment in cause number 6880 in the 39th District Court of Haskell
County is set aside, and Applicant is remanded to the custody of the Sheriff of Haskell County to
answer the charges as set out in the indictment. The trial court shall issue any necessary bench
warrant within ten days from the date of this Court’s mandate.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and the Board of Pardons and Paroles.
Delivered: November 9, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483465/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-94,300-01, 94,300-02, & 94,300-03
EX PARTE FIDEL ANGEL NAVARRO, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NO. W17-75719-U(A), W17-75720-U(A), & W17-75721-U(A)
IN THE 291ST DISTRICT COURT FROM DALLAS COUNTY
Per curiam.
ORDER
Applicant filed these applications for writs of habeas corpus in the county of conviction, and
the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07. According to
the record, the trial court held an evidentiary hearing on July 22, 2022, but the transcript of the
hearing was not forwarded to this Court. Under Article 11.07 of the Texas Code of Criminal
Procedure, a reporter is required to transcribe a hearing within fifteen days of its conclusion and then
to immediately forward the transcript to the district clerk in the county of conviction. Id. at § 3(d).
After receiving the transcript, the district clerk is required to forward it, among other things, to this
Court. Id.; see also TEX . R. APP . P. 73.4(b)(4).
The district clerk shall serve the reporter in Applicant’s case with a copy of this order and
2
then either forward to this Court the transcript of the evidentiary hearing or certify in writing that the
reporter has not transcribed the hearing. The district clerk shall comply with this order within thirty
days from the date of this order.
Filed: November 9, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483470/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,731-02
EX PARTE TIMOTHY WAYNE DUNLAP, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 007-0185-18-A IN THE 7TH DISTRICT COURT
FROM SMITH COUNTY
Per curiam.
ORDER
Applicant entered an open plea of guilty to evading arrest or detention with a motor vehicle
and was sentenced to fifty years’ imprisonment. The Twelfth Court of Appeals affirmed his
conviction. Dunlap v. State, No. 12-18-00180-CR (Tex. App. — Tyler June 28, 2019) (not
designated for publication). Applicant filed this application for a writ of habeas corpus in the county
of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art.
11.07.
Applicant contends, among other things, that his plea was involuntary because trial counsel
advised him that if he entered an open plea, he would receive no more than forty years’
imprisonment. Applicant also alleges that trial counsel failed to object to use of the same
2
enhancement allegations twice, and failed to argue that the evidence did not support an affirmative
deadly weapon finding. Applicant has alleged facts that, if true, might entitle him to relief. Hill v.
Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013).
Accordingly, the record should be developed. The trial court is the appropriate forum for findings
of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to
respond to Applicant’s claims. In developing the record, the trial court may use any means set out
in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether
Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court
shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If
counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s
name.
The trial court shall first ensure that the habeas record is supplemented with copies of the
Brooks notice of intent to seek enhanced punishment in this case, the pre-sentencing investigation
report, and transcripts of the plea and punishment proceedings. The trial court shall make findings
of fact as to whether Applicant pleaded “true” to any punishment enhancements in this case, and if
so, why the judgment does not reflect any plea or findings as to punishment enhancements. The trial
court shall make findings of fact and conclusions of law as to whether trial counsel’s performance
was deficient and Applicant would have insisted on a trial but for counsel’s alleged deficient
performance. The trial court may make any other findings and conclusions that it deems appropriate
in response to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
3
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: November 09, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483423/ | NUMBER 13-22-00194-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ADAM DERRICK HEMPHILL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court No. 1
of Tarrant County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva
Memorandum Opinion by Justice Silva
A jury convicted appellant Adam Derrick Hemphill of aggravated assault with a
deadly weapon, a second-degree felony, and sentenced appellant to eight years’
imprisonment. 1 See TEX. PENAL CODE ANN. §§ 12.33, 22.02(a)(2). Appellant’s court-
appointed counsel has filed an Anders brief stating that there are no arguable grounds
for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s
judgment.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of reversible error upon which an appeal could be predicated. See id.
Counsel’s brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,
an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds
none, but it must provide record references to the facts and procedural history and set
out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.
App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510
n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
1 This case is before this Court on transfer from the Second Court of Appeals in Fort Worth pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the
authority to transfer cases from one court of appeals to another at any time that there is “good cause” for
the transfer).
2
reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
of his rights to file pro se responses, to review the record prior to filing those responses,
and to seek discretionary review if we conclude that the appeal is frivolous; and
(4) provided appellant with a form motion for pro se access to the appellate record that
only requires appellant’s signature and date with instructions to file the motion within ten
days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re
Schulman, 252 S.W.3d at 408–09. In this case, appellant filed neither a timely motion
seeking pro se access to the appellate record nor a motion for extension of time to do so.
Appellant did not file a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found
nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,
827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the
opinion that it considered the issues raised in the briefs and reviewed the record for
reversible error but found none, the court of appeals met the requirements of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.
3
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five
days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion
and this Court’s judgment to appellant and to advise him of his right to file a petition for
discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at
411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
10th day of November, 2022.
2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3.
Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
4 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483397/ | NO. 12-22-00135-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE MATTER OF THE § APPEAL FROM THE 307TH
MARRIAGE OF L.B. AND L.C.B.
§ JUDICIAL DISTRICT COURT
AND IN THE INTEREST OF J.C.B.,
A CHILD § GREGG COUNTY, TEXAS
MEMORANDUM OPINION
Leola Bradley brings a restricted appeal from the default judgment in a suit for divorce
and child custody. Leola argues there is error on the face of the record in that (1) the evidence is
insufficient to rebut the presumption that a standard possession order is in the best interest of the
child; and (2) the trial court erred in granting the marital residence to Louis Bradley without
recognizing the community enhancement to the residence. We affirm.
BACKGROUND
Louis filed his petition for divorce from Leola on July 18, 2019. Louis requested a
temporary injunction prohibiting Leola from engaging in certain activities related to
communications between the parties, custody of their only child, J.C.B., and actions related to
their separate and marital estates. In his petition, Louis asked to be appointed sole managing
conservator (SMC) of J.C.B. and that Leola pay Louis support for J.C.B. Alternatively, Louis
asked that if the court appointed Leola as a joint managing conservator (JMC), that the court
order her possession periods be supervised, that she refrain from using drugs and alcohol during
her periods of possession, and exchange of J.C.B. occur in a protective setting.
Leola filed a counter-petition on July 22. She asked the court to appoint her JMC with
the right to designate J.C.B.’s primary residence, and that Louis be appointed a JMC and ordered
1
to pay support for J.C.B. Leola requested a temporary injunction prohibiting Louis from
engaging in certain activities regarding communications between the parties, custody of J.C.B.,
and actions related to their separate and marital estates.
On July 23, the trial court signed a temporary restraining order prohibiting Leola from
threatening Louis or J.C.B., causing bodily injury to Louis or J.C.B., hiding or secreting J.C.B.
from Louis, and other actions related to their community and marital estates. On August 1, the
parties entered a Rule 11 agreement for temporary orders which provided that Louis and Leola
be named JMCs of J.C.B and that Leola would have the right to designate J.C.B.’s primary
residence in Gregg County, Texas or Harrison County, Texas and receive the exclusive right to
child support. The orders granted Louis possession and access to J.C.B. pursuant to an extended
standard possession order. The orders stated Louis would have exclusive use and possession of
the marital home at 200 Hiawatha, Longview, Texas and that Leola would have the right to go to
the home on August 10 to retrieve her personal belongings. On August 16, Leola filed a motion
to modify the temporary orders alleging that when she went to pick up her possessions on August
10, she discovered her personal belongings were gone or scattered outside of a storage building
on the property. Leola alleged that Louis’s children from another relationship went through her
belongings and sold many of them. On August 22, the parties appeared before the trial court
and the trial court signed an order for Leola to go to the residence on August 24 to remove her
personal belongings. The trial court imposed certain conditions regarding the parties’ behavior
during this time period.
On November 5, Leola’s attorney filed a motion to withdraw as Leola’s counsel, alleging
that she could not effectively communicate with Leola in a manner consistent with good
attorney-client relations. Leola’s attorney indicated in her motion that she notified Leola of her
motion and included instructions on how to proceed if Leola wished to disagree with the motion.
On November 14, the trial court held a hearing on the motion to withdraw and found that good
cause existed for Leola’s attorney to withdraw. The trial court granted the motion and ordered
that the attorney be allowed to withdraw as Leola’s counsel of record. The trial court further
ordered that all notices in the case be either delivered to Leola in person or sent to her last known
address by first class and certified mail, as well as by email. The trial court ordered Leola’s
2
former attorney to notify Leola in writing of any additional settings or deadlines of which her
attorney had current knowledge. 1
On March 20, 2020, the trial court entered formal temporary orders in conformity with
the Rule 11 agreement signed by the parties on August 1, 2019. On August 5, 2021, the trial
court sent notice to Louis, through his attorney of record, and Leola, by mail to her last known
address, that the case had been pending for over a year with no action and would be dismissed if
neither party filed a motion to retain on or before September 17. On August 26, Louis filed a
motion to retain the case on the trial court’s docket. This motion was served through e-filing to
Leola’s former attorney, but there is no indication in the record that it was sent to Leola. On
September 13, the trial court granted Louis’s motion to retain the case and set it for a final
hearing on January 12, 2022. This notice was sent to Leola through e-filing to Leola’s email
address.
On January 12, the trial court held the final hearing in the case. Louis appeared with his
attorney, but Leola did not appear. Louis testified at the final hearing that he and Leola married
on July 29, 2006 and had one child together, J.C.B., born in July of 2008. Louis testified that he
and Leola stopped living together as a married couple on June 1, 2019 when Leola left the
marital residence and left J.C.B. in Louis’s care.
Louis testified that he has been J.C.B.’s primary caretaker for most of J.C.B’s life. He
ensured J.C.B. was ready for school each day, took him to and picked him up from school, and
took J.C.B. to various extracurricular activities and to church. Louis testified that Leola spent
extended periods of time lying in bed and took excessive amounts of prescription medication.
Louis offered pictures of Leola’s medications, which were admitted into evidence, which depict
various bottles of psychotropic medications, including Amitriptyline, Sertraline, Tizanidine, and
Clonazepam prescribed to Leola. Louis expressed concern that Leola took excessive amounts of
prescription medication and seemed “completely out of it” at times. After Leola left in June
2019, Louis discovered various bottles of alcohol hidden around the home.
Louis testified that after Leola left in June, she returned a few weeks later, took J.C.B. by
force, and left the home again, which prompted Louis to hire an attorney, file for divorce, and
seek temporary orders. Louis testified that Leola concealed J.C.B. from that date until the
1
In her motion to withdraw, Leola’s attorney reported that no discovery requests had been served by either
Leola or Louis.
3
temporary orders were agreed to on August 1, 2019. Louis was unable to see J.C.B. on J.C.B.’s
birthday in 2019 because Leola would not allow Louis to see J.C.B. Louis testified that after the
temporary orders hearing in August 2019, Leola exercised visitation with J.C.B. for
approximately a month and then essentially abandoned J.C.B. to Louis. As of January 12, 2022,
Leola had possession of J.C.B. overnight three times and spoke with J.C.B. twice a month since
approximately September 2019. Louis testified that Leola did not financially support J.C.B.
during this time and took approximately $27,000.00 in J.C.B.’s social security benefits, in
contravention of the temporary orders which required her to pay Louis $250.00 from J.C.B’s
benefits each month, with the remaining balance designated as Louis’ child support payment to
Leola. Louis testified that he solely financially supported J.C.B. since Leola abandoned J.C.B.
Louis testified that after Leola moved out of the house, she sold a good deal of the
community property from the marital estate and kept the proceeds from the sale. Louis
explained that Leola came to his home and retrieved her personal belongings. He offered
photographs, which were admitted into evidence, that depict her closet containing her personal
belongings, which Louis testified she retrieved. Louis testified that the marital home located at
200 Hiawatha was purchased prior to his marriage to Leola from his deceased former wife, Eva
Bradley. Louis offered, and the trial court admitted, a warranty deed for the property from Eva
to Louis, signed in February 2006. Louis also offered, and the trial court admitted, a print-off
from the Gregg County Appraisal District with the same legal description found in the warranty
deed. Louis asked the court to award the home and $84,320.05 in debt on the property to Louis,
as his separate property.
Louis testified that he speaks with Leola approximately once or twice a month when she
calls to speak with J.C.B. He testified that she is living in Marshall, Texas, but was unsure of her
home address. Louis asked the court to award her “whatever residence that she’s in with any
associated debt.” Louis testified that the funds she already received, including J.C.B.’s social
security benefits, proceeds from the sale of the community estate, and the benefit of not paying
any support for J.C.B. more than compensate her for any interest that she may have in any other
community property the two own. Louis asked that each party be awarded the property in their
possession and subject to their own control. He further asked the court to list him as the payee
on J.C.B.’s social security benefits.
4
Additionally, Louis testified that J.C.B. is healthy and happy, attends school and church,
and plays football. Louis asked to have the exclusive right to: child support, enroll J.C.B. in
school, and claim J.C.B. as a dependent for tax purposes. Louis testified that he would agree that
Leola should have possession of J.C.B. at all times mutually agreed upon between himself and
Leola, and if a time could not be agreed upon, then Leola should have possession of J.C.B. from
Friday at 6:00 p.m. to Saturday at 6:00 p.m. on the first, third, and fifth weekends of the month.
Louis explained that he takes J.C.B. to church every Sunday, which is why he wanted Leola to
return J.C.B. on Saturday evenings.
After hearing evidence from Louis, the trial court granted a default judgment and signed
a final decree of divorce on January 27, ordering that Louis and Leola be appointed JMCs of
J.C.B. and that Louis have the exclusive right to designate the primary residence of J.C.B. in
Gregg County or a county contiguous to Gregg County. The final decree further mandated that
Leola pay Louis child support at a rate of $400 per month. The trial court entered a custom
possession order for Leola, which provided that she would have possession of J.C.B. on the first,
third, and fifth weekends of the month from Friday at 6:00 p.m. until the following Saturday at
6:00 p.m., as well as on J.C.B.’s birthday for two hours, and on Mother’s Day. The trial court
awarded Louis the residence at 200 Hiawatha, along with debt owed on the property, as Louis’s
separate property. This restricted appeal followed.
RESTRICTED APPEAL
Leola argues that she is entitled to a restricted appeal because she filed a notice of
restricted appeal on June 8, 2022, 2 within six months of the trial court’s final decree entered on
January 27, 2022, she was a party to the underlying lawsuit, she did not participate in the final
hearing that resulted in the final decree of divorce, she did not file any post-judgment motions,
and there is reversible error on the face of the record. Louis concedes that Leola filed her notice
of appeal within six months of the judgment, was a party to the underlying lawsuit and did not
file any post judgment motions. Louis argues that Leola did participate in the lawsuit despite not
appearing for the final hearing and is thus barred from bringing a restricted appeal.
Alternatively, Louis argues there is no reversible error on the face of the record.
2
Leola filed an amended notice of restricted appeal on June 8 because her first notice of restricted appeal
filed May 31 was defective.
5
Analysis
A restricted appeal is a direct attack on a judgment. Roventini v. Ocular Scis., Inc., 111
S.W.3d 719, 721 (Tex. App.—Houston [1st Dist.] 2003, no pet.). To be entitled to a restricted
appeal, an appellant must show that: (1) he filed notice of restricted appeal within six months
after the complained-of judgment was signed; (2) he was a party to the underlying lawsuit; (3) he
did not participate in the hearing that resulted in the complained of judgment and did not timely
file any post-judgment motion or request for findings of fact and conclusions of law; and (4)
error is apparent on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848
(Tex. 2004); Lewis v. Aguirre, No. 01-17-00063-CV, 2018 WL 4868668, at *2 (Tex. App.—
Houston [1st Dist.] Oct. 9, 2018, no pet.) (mem. op.); see TEX. R. APP. P. 26.1(a), 30. These
requirements are jurisdictional; if they are not met, an appellant has no right to relief by way of a
restricted appeal. See Lewis, 2018 WL 4868668, at *2–3; Cox v. Cox, 298 S.W.3d 726, 730
(Tex. App.—Austin 2009, no pet.).
Lack of Participation
We first consider whether Leola satisfied the non-participation requirement for a
restricted appeal. Lack of participation in the hearing that resulted in the complained of
judgment is a jurisdictional requirement for appellate review by restricted appeal. In re B.H.B.,
336 S.W.3d 303, 305 (Tex. App.—San Antonio 2010, pet. denied) see also Lewis, 2018 WL
4868668, at *2–3; Cox, 298 S.W.3d at 730. To determine whether Leola meets this requirement,
we consider whether she took part in the decision-making event that resulted in the adjudication
of her rights. Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589–90 (Tex.
1996); Cox, 298 S.W.3d at 730. The nature and extent of participation necessary to preclude a
restricted appeal in any particular case is a matter of degree because trial courts decide cases in a
wide variety of procedural settings. Texaco, 925 S.W.2d at 589; Cox, 298 S.W.3d at 730. An
appellant’s failure to attend the trial on the merits or hearing that resulted in the complained of
judgment does not prevent him from being deemed to have taken part in the decision-making
event. In re Marriage of Butts, 444 S.W.3d 147, 150 (Tex. App.—Houston [14th Dist.] 2014,
no pet.); Cox, 298 S.W.3d at 731–32 (collecting cases holding appellant participated in decision
making event where appellant, though not present at hearing where final divorce decree entered,
signaled appellant’s approval of final decree before its entry by trial court); see, e.g., Seymour v.
Seymour, No. 14-07-00280-CV, 2009 WL 442259, at *2–4 (Tex. App.—Houston [14th Dist.]
6
Feb. 10, 2009, pet. denied) (mem. op.) (appellant, who was absent from hearing wherein final
divorce decree proven up, still participated sufficiently to prevent him from pursuing restricted
appeal).
We note that in determining whether an appellant’s participation rises to the level of
participation that would preclude a restricted appeal, courts have held that a waiver of service or
an appellant’s statement that he has made a general appearance for all purposes in a proceeding
does not constitute enough participation to prevent him from pursuing a restricted appeal. See
B.H.B., 336 S.W.3d at 305; Seymour, 2009 WL 442259, at *2; Campsey v. Campsey, 111
S.W.3d 767, 770–71 (Tex. App.—Fort Worth 2003, no pet.) (rejecting argument that appellant
participated in proceedings because “he stated in his waiver of service that he made an
appearance for all purposes”). Yet, an appellant who waives citation and the making of a
statement of facts or record and who indicates his approval of a judgment by signing it before its
entry has participated enough to preclude him from pursuing a restricted appeal. See B.H.B.,
336 S.W.3d at 305; Blankinship v. Blankinship, 572 S.W.2d 807–08 (Tex. App.—Houston
[14th Dist.] 1987, no writ) (where appellant signed waiver of citation, indicating that he was
entering appearance for all purposes, waived making of record, and “indicated his approval of
the divorce decree by signing the judgment prior to its entry by the trial court,” he had
“participated in the proceedings in an extent sufficient to preclude him” from pursuing restricted
appeal) (internal quotations omitted).
It is the fact of non-participation, and not the reason for it, that determines a person’s
right to pursue a restricted appeal. Cox, 298 S.W.3d at 730. Here, Louis argues that Leola
[T]ook no interest in her divorce proceedings after the second temporary orders hearing was held
on August 22, 2019…[and] [a]lthough [Leola] did not attend the final hearing at which the
divorce, conservatorship, and property division were ordered, [Leola] must be found to have
participated in the proceedings through her affirmative pleadings as well as her participation,
through counsel, in multiple temporary order hearings. [Leola] cannot now rely on her decision to
not attend the January 12, 2022, hearing as means of support for her request for appellate review
nearly six months after the Final Decree of Divorce was signed.
As the Texas Supreme Court noted in Texaco, there is no equitable component to a restricted
appeal. See 925 S.W.2d at 590 (holding no equitable component to appeal by writ of error,
predecessor to restricted appeal, rather writ of error is but another mode of appeal). Thus, as in
an ordinary appeal, the appellant is not required to show diligence or lack of negligence before
7
its complaints will be heard. Id. Therefore, we confine our consideration to whether Leola
participated in the decision-making event that led to the adjudication of her rights. Cox, 298
S.W.3d at 730. The record makes it clear that she did not. While Leola did file an answer and
sign a Rule 11 agreement for temporary orders, she neither appeared through counsel or in
person for the final hearing, where the divorce decree was proven, which is the decision-making
event in a divorce case. Id. at 731. Moreover, the divorce decree deviates from the Rule 11
agreement on temporary orders, and nothing in the record shows that Leola agreed to the final
decree, which several courts have held qualifies as participation for purposes of a restricted
appeal in a divorce case. Cf. Hammond v. Hammond, 688 S.W.2d 690, 691–92 (Tex. App.—
Beaumont 1985, writ dism’d) (appellant signed property settlement agreement and approved
final divorce decree); Blankinship, 572 S.W.2d at 808 (appellant signed divorce decree prior to
entry by trial court); Seymour, 2009 WL 442259, at *3 (appellant did not sign divorce decree,
but signed agreed motion to reinstate, which requested that trial court finalize decree that had
been proven up at prior hearing); Pierce v. Abbott, No. 04–98–00150–CV, 1998 WL 201583, at
*1 (Tex. App.—San Antonio Apr. 22, 1998, no pet.) (per curiam) (op., not designated for
publication) (appellant signed final divorce decree). Thus, we conclude that Leola has satisfied
the non-participation element and we now decide if error exists on the face of the record.
Error Apparent on the Face of the Record
a. Custom Possession Order
Leola argues that the trial court’s custom possession order is not supported by sufficient
evidence to rebut the presumption that standard possession is in the best interest of J.C.B. See
TEX. FAM. CODE ANN. §§ 153.251(a); 153.252(1), (2) (West 2014). Louis counters that the
absence of proof to justify a deviation from the standard possession order is not error on the face
of the record for purposes of a restricted appeal. See Lynda’s Boutique, 134 S.W.3d at 849
(holding that failure of record to affirmatively show notice of pre-trial hearing was sent to
counsel or notice of order dismissing case was sent to counsel is not error on face of record).
We disagree with Louis’s assertion that Leola may not challenge the sufficiency of the
evidence because it is not “error on the face of the record.” A restricted appeal affords an
appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. See
Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). For purposes of a
restricted appeal, “the face of the record” refers to “all the papers on file in the appeal, including
8
the reporter’s record.” In re Guardianship of V.A., 390 S.W.3d 414, 416 (Tex. App.—San
Antonio 2012, pet. denied) (citing Norman Commc’ns, 955 S.W.2d at 270.) It necessarily
follows that review of the entire case includes review of legal and factual sufficiency claims.
Norman Commnc’ns, 955 S.W.2d at 270.
Louis argues in the alternative that the record contains sufficient evidence to support a
conclusion that the trial court’s deviation from the standard possession order is in the best
interest of J.C.B. We note that the family code states there is a rebuttable presumption that
standard possession provides reasonable minimum possession of a child for a parent named as a
possessory conservator or a JMC and is in the best interest of the child. TEX. FAM. CODE ANN. §
153.252 (1), (2).
A trial court has broad discretion to fashion the terms of a decree related to custody,
visitation, and possession. Gadekar v. Zankar, No. 12-16-00209-CV, 2018 WL 2440393, at *6
(Tex. App.—Tyler May 31, 2018, no pet.) (mem. op.). We review a trial court’s rulings on
conservatorship and visitation under an abuse of discretion standard. Id. When determining
issues related to conservatorship or possession of and access to the child, the best interest of the
child is the primary consideration. Id.
In this case, the final decree gives possession of J.C.B.to Leola as follows:
(c) Possession Regardless of Distance
Except as otherwise expressly provided in this Custom Possession Order, [Leola] shall
have the right to possession of the child as follows:
1. Weekends throughout the year —
On weekends beginning at 6:00 p.m., on the first, third, and fifth Friday of each
month and ending at 6:00 pm. on the following Saturday.
(d) Holidays Unaffected by Distance
Notwithstanding the weekend periods of possession of [Leola], [Louis and Leola] shall
have the right to possession of the child as follows:
1. Child’s Birthday - If a parent is not otherwise entitled under this Custom Possession
Order to present possession of the child on the child’s birthday, that parent shall have
possession of the child beginning at 6:00 p.m. and ending at 8:00 p.m. on that same day,
provided that that parent picks up the child from the other parent’s residence and returns
the child to that same place.
2. Father’s Day – [Louis] shall have the right to possession of the child each year,
beginning at 6:00 pm. on the Friday preceding Father’s Day and ending at 6:00 p.m. on
Father’s Day, provided that if [Louis] is not otherwise entitled under this Custom
Possession Order to present possession of the child.
9
3. Mother’s Day – [Leola] shall have the right to possession of the child each year,
beginning at 6:00 p.m. on the Friday preceding Mother’s Day and ending at 6:00 p.m. on
Mother’s Day, provided that if [Leola] is not otherwise entitled under this Custom
Possession Order to present possession of the child, she shall pick up the child from
[Louis’] residence and return the child to that same place.
(e) Undesignated Periods of Possession
[Louis] shall have the right of possession of the child at all other times not specifically
designated in this Custom Possession Order for [Leola].
Leola is correct that this deviates from the extended standard possession order which governed
custody of J.C.B. when the temporary orders were in place. See TEX. FAM. CODE ANN. § 153.312
(West Supp. 2022) (parents who reside 100 miles or less apart).
Leola argues that the custom possession order, with regard to her periods of weekend
possession, is supported by insufficient evidence because it is only supported by Louis’s
testimony that he takes J.C.B. to church every Sunday and “conflicts with the ‘Moral and
Religious’ duties afforded to Leola pursuant to the Family Code.” See id. § 153.074(3) (West
2014). 3 However, Leola does not provide any authority to support her contention that the custom
possession order conflicts with Leola’s moral and religious duties to J.C.B. See TEX. R. APP. P.
38.1 (i) (“The brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”). Moreover, we note that the moral and
religious duties afforded a parent conservator can be limited by court order and are therefore
within the sound discretion of the trial court. See TEX. FAM. CODE ANN. § 153.074 (“Unless
limited by court order a parent appointed as conservator of a child has the following rights and
duties during the period that the parent has possession of the child...”). Further, just because the
custom possession order does not afford Leola possession of J.C.B. on Sunday morning, a time
when many families traditionally attend church, it does not necessarily result in her inability to
provide J.C.B. with moral and religious training.
Leola further argues that the custom possession order does not allow her possession of
J.C.B. during holidays, summer vacation, or spring break, and the trial court failed to consider
3
Leola’s brief cites to Section 153.074 (3) of the Texas Family Code, which provides that “Unless limited
by court order, a parent appointed as a conservator of a child has the following rights and duties during the period
that the parent has possession of the child...the right to consent for the child to medical and dental care not involving
an invasive procedure.” TEX. FAM. CODE ANN. § 153.074(3) (West 2014). We assume this was a clerical error and
her brief intended to reference Section 153.074(4) which confers upon a conservator “the right to direct the moral
and religious training of the child.” Id. § 153.074(4).
10
the best interests of the child because at the close of testimony it asked Louis what grade J.C.B.
was in and when the last time Leola saw J.C.B. in person. Leola argues:
The Court however did not raise a question concerning that ‘All parties participate in
Counseling’ which stated: IT IS ORDERED that [Child, Appellee, Appellant] shall attend
counseling. IT IS Further ORDERED that Petitioner and Respondent shall ensure that the child is
present at all appointments and shall each participate at the direction of the counselor [sic].
The above dictate by the trial court goes directly a core factor reflecting the trial court
concern for the ‘Best Interest’ of the Child however Appellee trial counsel fails to tender any
question on this directive of the trial court and the trial court fails to address the factor. In indeed
the “Best Interest” of the 12 old is the center of possession order the trial court fails to use the
tools that places all parties in setting to best exercise the duty given to the trial court on this
paramount question [sic].
However the record reflects that the issue is based on innuendos of medication and junkie
closets coupled with superficial question on what grade the child is in and when was the “last time
Appellant ‘put eyes on him actually’ all of which or arbitrarily or unreasonably, without reference
to any guiding rules or principles [sic].
Additionally nor does the evidence in the case at hand raise to level to rebut the ‘Best
Interest’ presumption under Texas Family Code - FAM § 153.251 (a) afforded to Appellant as a
‘Joint Managing Conservator’ in the case at hand. The bench trial was on Wednesday January 12,
2022, Monday was January 10,2022 trial court ruling was an abused its discretion and it acts were
arbitrarily or unreasonably, without reference to any guiding rules or principles [sic].
We construe this argument to mean that (1) the trial court abused its discretion by not ordering
the parties to attend counseling, and (2) that Louis’s evidence regarding Leola’s use of
prescription medications and alcohol and her abandonment of J.C.B. is insufficient to rebut the
presumption that the standard possession order is in the best interest of the child.
As discussed earlier, a trial court has wide discretion in determining the best interest of a
child and over custody, control, possession, support, and visitation matters, and we review a
decision on these matters for an abuse of that discretion. Interest of K.A.M.S., 583 S.W.3d 335,
340 (Tex. App.—Houston [14th Dist.] 2019, no pet.). The trial court abuses its discretion when
it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Id. The
trial court does not abuse its discretion if there is some evidence of a substantive and probative
character to support its decision. Id.
Under the abuse of discretion standard, legal and factual sufficiency are not independent
grounds of error, but instead are relevant factors to determine if the trial court abuses its
discretion. Id. When examining legal sufficiency, we review the entire record, considering
evidence favorable to the finding if a reasonable factfinder could and disregarding contrary
11
evidence unless a reasonable factfinder could not. Id. We indulge every reasonable inference
that would support the challenged finding. Id. Evidence is legally sufficient if it would enable
reasonable and fair-minded people to reach the decision under review. Id. For a factual-
sufficiency review, we examine the entire record and consider evidence favorable and contrary to
the challenged finding. Id. We may set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Id. In a bench trial, the
trial court is in the best position to observe and assess the witnesses’ demeanor and credibility,
and “to sense the forces, powers, and influences that may not be apparent from merely reading
the record on appeal.” Id. (quoting Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955);
In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (internal
quotation marks omitted). As a result, an appellate court defers to a trial court’s resolution of
underlying facts and to credibility determinations that may have affected its determination and
will not substitute its judgment for that of the trial court. K.A.M.S., 583 S.W.3d at 341.
The term “best interest” is a term of art encompassing a broad facts and circumstances
evaluation that is accorded significant discretion. See In re Lee, 411 S.W.3d 445, 460 (Tex.
2013) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). In determining the best
interest of a child, a trial court should consider (1) the desires of the child; (2) the emotional and
physical needs of the child now and in the future; (3) the emotional and physical danger to
the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5)
the programs available to assist these individuals to promote the best interest of the child; (6) the
plans for the child by these individuals or by the agency seeking custody; (7) the stability of the
home or proposed placement; (8) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions
of the parent. In Interest of D.M., 452 S.W.3d 462, 470 (Tex. App.—San Antonio 2014, no
pet.) (citing Holley, 544 S.W.2d at 371–72). These factors are not exhaustive. In the Interest of
C.H., 89 S.W.3d 17, 27 (Tex. 2002). In analyzing these factors, we focus on the best interest of
the child, not the best interest of the parent. Dupree v. Tex. Dep’t of Protective & Regulatory
Servs., 907 S.W.2d 81, 86 (Tex. App.–Dallas 1995, no writ).
We now turn to an evaluation of the evidence before the trial court at the time it made its
determination. According to Louis, Leola was not the primary caretaker of J.C.B. prior to their
separation, spent a lot of time “completely out of it,” and used an inordinate amount of
12
prescription drugs and hid alcohol in the home. Louis testified that he was J.C.B.’s primary
caretaker for most of J.C.B.’s life and ensured that J.C.B. attended school, participated in
extracurricular activities, and attended church regularly. Additionally, after Leola separated
from Louis, she forcibly removed J.C.B. for a short period of time and did not allow Louis,
J.C.B.’s primary caregiver, to see J.C.B. on his 11th birthday. Moreover, after the temporary
orders hearing in August of 2019, she essentially abandoned J.C.B. to Louis and had sparse in
person contact and minimal phone contact with J.C.B. Additionally, she kept J.C.B.’s social
security benefits to the tune of approximately $27,000.00, all while Louis had custody of J.C.B.
and was the sole financial provider for J.C.B. Based upon this evidence, we cannot say that the
trial court abused its discretion in deviating from the standard possession order, and we overrule
Leola’s first issue. See K.A.M.S., 583 S.W.3d at 344 (no abuse of discretion where trial court
appointed mother sole managing conservator and modified father’s possession and access where
Father only parented children when in relationship with Mother, was largely absent from
children’s lives, with exception of intermittent and inconsistent phone and in person contact).
b. Property Distribution
In Leola’s second issue, she argues that the trial court abused its discretion by granting
Louis the marital home without recognizing the community enhancement to Louis’s separate
property. Under Section 3.003 of the Texas Family Code, property possessed by either spouse
during or upon dissolution of the marriage is presumed to be community property and the degree
necessary to establish that property as separate is clear and convincing evidence. TEX. FAM.
CODE ANN. § 3.003(a)-(b) (West 2006). The uncontroverted evidence in the record shows that
Louis purchased 200 Hiawatha Street prior to his marriage to Leola, which Leola does not
dispute on appeal. Leola concedes that the home is Louis’s separate property and argues that she
is entitled to reimbursement pursuant to Section 3.402 of the Texas Family Code. See id. § 3.402
(West Supp. 2022).
However, the party claiming the right of reimbursement has the burden of pleading and
proving that the expenditures and improvements were made, and they are reimbursable. Matter
of Marriage of Wells, No. 12-21-00152-CV, 2022 WL 3724724, at *3 (Tex. App.—Tyler Aug.
30, 2022, no pet. h.) (mem. op.) (citing Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982)).
As Louis correctly argues, Leola never pleaded a claim for reimbursement in the trial court. As
such, Leola cannot now claim that the trial court abused its discretion by failing to consider a
13
claim she never pleaded, much less argue that the failure of the trial court to consider an
unpleaded claim constitutes error apparent on the face of the record in a restricted appeal. See
TEX. FAM. CODE ANN. § 3.402; Wells, 2022 WL 3724724, at *3; Vallone, 644 S.W.2d at 459;
see also Barton v. Barton, 584 S.W.3d 147, 156 (Tex. App.—El Paso 2018, no pet.) (wife
waived claim for reimbursement by failing to request additional findings after trial). Therefore,
we overrule Leola’s second issue.
DISPOSITION
Having found no error apparent on the face of the record, we overrule Leola’s first and
second issues, deny Leola’s restricted appeal, and affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered November 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
14
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 9, 2022
NO. 12-22-00135-CV
IN THE MATTER OF THE MARRIAGE OF
L.B. AND L.C.B. AND IN THE INTEREST OF J.C.B., A CHILD
Appeal from the 307th District Court
of Gregg County, Texas (Tr.Ct.No. 2019-1324-DR)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, that all costs of this appeal be, and the same are,
adjudged against Appellant, LEOLA BRADLEY, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
15 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483421/ | NUMBER 13-22-00167-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAPENG HOLDINGS, LLC
AND YI CHENG ZHENG, Appellants,
v.
JEFFORY DEAN BLACKARD,
BLACKARD GENERAL
PARTNER V, LLC AND BLACKARD
GLOBAL DEVELOPMENT II, LLC, Appellees.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Tijerina
This Court previously abated this appeal because the parties, appellants Dapeng
Holdings, LLC and Yi Cheng Zheng, and appellees, Jeffory Dean Blackard, Blackard
General Partner V, LLC, and Blackard Global Development II, LLC, had entered a
mediated settlement agreement which could potentially resolve the appeal. These parties
have now filed a joint motion to dismiss the appeal on grounds that they have reached a
settlement in this matter which has rendered this appeal moot. See TEX. R. APP. P.
42.1(a)(1) (“In accordance with a motion of appellant, the court may dismiss the appeal
or affirm the appealed judgment or order unless such disposition would prevent a party
from seeking relief to which it would otherwise be entitled.”). The parties request that we
dismiss the appeal with all costs to be paid by the party incurring same. See id. R. 42.1(d)
(“Absent agreement of the parties, the court will tax costs against the appellant.”).
The Court, having examined and fully considered the joint motion to dismiss the
appeal, is of the opinion that the appeal should be dismissed. See id. R. 42.1(a)(1).
Accordingly, we reinstate the appeal, grant the joint motion to dismiss, and dismiss the
appeal. As per the parties’ agreement, the costs will be assessed against the party
incurring same. See id. R. 42.1(d). Having dismissed the appeal at the parties’ request,
no motion for rehearing will be entertained.
JAIME TIJERINA
Justice
Delivered and filed on the
10th day of November, 2022.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483429/ | NUMBER 13-22-00539-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE CHAD SCHAEFER
On Petition for Writ of Mandamus.
ORDER
Before Justices Longoria, Hinojosa, and Silva
Order Per Curiam
On November 4, 2022, relator Chad Schaefer filed a petition for writ of mandamus
and a motion for emergency stay. By petition for writ of mandamus, relator contends that
the trial court erred by ordering relator to pay appellate attorney’s fees which are not
conditioned on the outcome of an appeal and to pay the fees before the appeal has been
resolved. By motion for emergency stay, relator seeks to stay the trial court’s November
1, 2022 temporary order requiring him to pay the attorney’s fees.
The Court, having examined and fully considered the motion for emergency stay,
is of the opinion that it should be granted as stated herein. Accordingly, we grant the
motion for emergency stay and we order the trial court’s November 1, 2022 temporary
order to be stayed, in part, as to the attorney’s fees provision requiring relator to pay
attorney’s fees before 5:00 p.m. on November 7, 2022, by delivery of a cashier’s check.
See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary
relief is effective until the case is finally decided.”). All other provisions of the trial court’s
November 1, 2022, will remain in effect pending resolution of this original proceeding.
We request the real party in interest, Amber Lynn Schaefer, or any others whose
interest would be directly affected by the relief sought, to file a response to the petition for
writ of mandamus on or before the expiration of ten days from the date of this order. See
id. R. 52.2, 52.4, 52.8.
PER CURIAM
Delivered and filed on the
7th day of November, 2022.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483462/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,255-01
EX PARTE TOREY LEWAYNE SHAMBURGER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W19-34438-R(A) IN THE 265TH DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
ORDER
Applicant was convicted of aggravated robbery and sentenced to twenty years’ imprisonment.
The Fifth Court of Appeals affirmed his conviction. Shamburger v. State, No. 05-20-00108-CR
(Tex. App.—Dallas Jun. 15, 2021) (not designated for publication). Applicant filed this application
for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this
Court. See TEX . CODE CRIM . PROC. art. 11.07.
Applicant essentially contends, among other things, that trial counsel was ineffective because
he failed to investigate and present evidence of Applicant’s mental issues that was relevant to both
the guilt-innocence and punishment phases of trial. Applicant has alleged facts that, if true, might
entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should
2
be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC.
art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant’s claim. In
developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial
court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is
indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him
at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial
court shall immediately notify this Court of counsel’s name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s
performance was deficient and Applicant was prejudiced. The trial court shall make specific
findings as to (1) whether counsel adequately investigated Applicant’s mental history, intellectual
history and status, disability status, and family background; and (2) how Applicant’s histories and
statuses effected counsel’s trial strategy. The trial court may make any other findings and
conclusions that it deems appropriate in response to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: November 9, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483473/ | IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,251-01
EX PARTE JESSICA JEWEL CORIN BENTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W16-41572-X(A) IN THE CRIMINAL DISTRICT COURT NO. 6
FROM DALLAS COUNTY
Per curiam.
ORDER
Applicant was convicted of continuous sexual abuse of a child and sentenced to sixty years’
imprisonment. Applicant, through habeas counsel, filed this application for a writ of habeas corpus
in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM .
PROC. art. 11.07.
Applicant alleges that her trial counsel provided ineffective assistance. Strickland v.
Washington, 466 U.S. 668 (1984); Lafler v. Cooper, 132 S.Ct. 1376 (2012). Applicant has alleged
facts that, if true, might entitle her to relief. Accordingly, the record should be developed. The trial
court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The
trial court shall order trial counsel to respond to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law resolving the disputed
factual issues. The trial court may make any other findings and conclusions that it deems
appropriate.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court
Filed: November 9, 2022
Do not publish | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483474/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In re Intercontinental Terminals Company, LLC
Appellate case number: 01-22-00089-CV
Trial court case number: 2019-59120
Trial court: 165th District Court of Harris County
In March 2022, relator advised this Court that the parties had reached a settlement during
mediation. In response to a letter from the Court, relator filed a letter on August 5, 2022, stating
that it anticipated dismissing the underlying trial court case within 30 days. On August 26, 2022,
relator forwarded a copy of a joint stipulation to dismiss the underlying trial court case with
prejudice. No further updates have been filed.
It has come to the Court’s attention that the trial court has signed orders of nonsuit
dismissing the plaintiff’s claims below with prejudice. Accordingly, this Court may dismiss this
original proceeding as moot unless relator files a response to this order within 10 days from the
date of this order, explaining that this original proceeding is not moot.
It is so ORDERED.
Judge’s signature: /s/Peter Kelly
Acting individually
Date: November 10, 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483427/ | NUMBER 13-22-00511-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE WAN-TSING KWANG
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva
Memorandum Opinion by Justice Silva1
Relator Wan-Tsing Kwang filed a petition for writ of mandamus seeking to compel
the trial court to vacate an October 12, 2022 temporary order requiring relator to pay
interim attorney’s fees and expert fees in the underlying divorce proceeding.
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.”); id. R. 47.4 (explaining the
differences between opinions and memorandum opinions).
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re
USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding).
The Court, having examined and fully considered the petition for writ of mandamus,
the response filed by the real party in interest, Jun Liang, and the applicable law, is of the
opinion that relator has not met his burden to obtain relief. Accordingly, we lift the stay
previously imposed in this case. We deny the petition for writ of mandamus. See TEX. R.
APP. P. 52.8, 52.10. Given our resolution of this original proceeding, we deny relator’s
amended motion requesting permission to file a reply brief, and we dismiss as moot
Liang’s emergency motion requesting modification of our stay order.
CLARISSA SILVA
Justice
Delivered and filed on the
8th day of November, 2022.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483401/ | NO. 12-22-00238-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LORENZO CARTER, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Appellant, Lorenzo Carter, filed a motion to dismiss this appeal. The motion is signed by
Appellant’s counsel and contains Appellant’s signed statement expressing his desire to dismiss
the appeal. No decision has been delivered in this appeal. Accordingly, Appellant’s motion to
dismiss is granted, and the appeal is dismissed. See TEX. R. APP. P. 42.2(a).
Opinion delivered November 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 9, 2022
NO. 12-22-00238-CR
LORENZO CARTER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1288-19)
THIS CAUSE came on to be heard on the motion of the Appellant to
dismiss the appeal herein, and the same being considered, it is hereby ORDERED, ADJUDGED
and DECREED by this Court that the motion to dismiss be granted and the appeal be dismissed,
and that the decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483394/ | Opinion filed November 10, 2022
In The
Eleventh Court of Appeals
____________
No. 11-22-00218-CR
____________
EDDIE DALE UNDERWOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 6880-D
MEMORANDUM OPINION
Eddie Dale Underwood, Appellant, has filed a pro se notice of appeal in which
he states that he is appealing “from the trial court’s order that ‘denied’ [Appellant’s]
‘Motion for New Trial’ and the request for ‘Hearing.’” 1 We dismiss this appeal.
Shortly after this appeal was docketed, the clerk of this court wrote Appellant
and informed him that it did not appear that his notice of appeal related to an
1
We note that Appellant’s “motion for new trial” relates to the trial court’s April 2022 order denying
Appellant’s application for writ of habeas corpus. Appellant filed a notice of appeal from the trial court’s
April 2022 order, and this court dismissed that appeal for want of jurisdiction. See Ex parte Underwood,
No. 11-22-00137-CR, 2022 WL 2349700 (Tex. App.—Eastland June 30, 2022, no pet. h.) (mem. op., not
designated for publication).
appealable order. We requested that Appellant respond and show grounds to
continue the appeal. Appellant has filed a response in which he addresses the effect
of a nunc pro tunc judgment, which purportedly corrected a “judicial” error, and the
“status” of the original judgment of conviction. Appellant also suggests that we
abate this appeal and direct the trial court to determine the effect of its nunc pro tunc
judgment. None of the contentions addressed by Appellant in his response
constitutes a ground upon which this appeal may continue.
An appellate court has jurisdiction to consider an appeal by a criminal
defendant from a final judgment of conviction or as otherwise authorized by law.
Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008). A direct appeal
from the denial of a motion for new trial—separate from the appeal of the underlying
conviction—is not permitted. Torres v. State, No. 12-22-00004-CR, 2022 WL
399140, at *1 (Tex. App.—Tyler Feb. 9, 2022, no pet.) (mem. op., not designated
for publication) (“An order denying a motion for new trial is not a separately
appealable order.”); Billiot v. State, No. 02-11-00298-CR, 2011 WL 4469232, at *1
(Tex. App.—Fort Worth Aug. 30, 2011, pet. ref’d) (mem. op., not designated for
publication). Because the order from which Appellant attempts to appeal—the trial
court’s order denying Appellant’s “motion for new trial”—is not an appealable
order, we are without jurisdiction to consider this appeal. See Torres, 2022 WL
399140, at *1; Billiot, 2011 WL 4469232, at *1.
Consequently, we dismiss this appeal for want of jurisdiction.
PER CURIAM
November 10, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483491/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00196-CR
___________________________
D KENDRIK DEWAYNE MOORE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1636632D
Before Wallach, J.; Sudderth, C.J.; and Walker, J.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
D Kendrik Moore filed a pro se notice of appeal from the trial court’s
judgment adjudicating him guilty of sexual assault of a child under seventeen years of
age. See Tex. Penal Code Ann. § 22.011(a)(2). The trial court sentenced him to two
years’ confinement in accordance with an agreement in which Moore pled true to the
allegations in the State’s petition to proceed to adjudication in exchange for the State’s
two-year punishment recommendation. Moore signed written plea admonishments
that included a waiver of the right of appeal. 1
The trial court’s certification of Moore’s right to appeal states that this “is a
plea-bargain case, and the defendant has NO right of appeal.” See Tex. R. App. P.
25.2(a)(2). Based on the certification, we notified Moore that his appeal would be
dismissed unless, within ten days, he or any party desiring to continue the appeal filed
a response showing grounds for continuing it. See Tex. R. App. P. 25.2(a)(2), (d), 44.3.
More than ten days have passed, and the only response we have received was a slightly
1
The written admonishments informed Moore that “[a] motion to revoke your
community supervision or a petition to proceed to adjudication has been filed in
which you are charged with a violation of the conditions of your community
supervision” and that “[t]he punishment agreement is: 2 years TDC.” In that
document, Moore agreed that he was aware of the consequences of his plea and that
he “g[a]ve up and waive[d] any and all rights of appeal.” Under a section titled
“Judicial Confession,” Moore swore that he “enter[ed] [his] plea of true to each and
every act alleged” in the State’s petition.
2
modified version of Moore’s notice of appeal on which he had written some citations
to authority, none of which have any apparent application to this case.2
Rule 25.2(a)(2) does not restrict a defendant’s right of appeal when he pleads
true to one or more allegations in a petition to adjudicate. See Tex. R. App. P.
25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911–12 (Tex. Crim. App. 2006)
(concluding that a case in which a defendant pleads true to allegations in a motion to
adjudicate is not a plea-bargain case under rule 25.2(a)(2)); see also Dears v. State,
154 S.W.3d 610, 613 (Tex. Crim. App. 2005) (“[Rule 25.2(a)(2)] refers only to plea
bargains with regard to guilty pleas, not pleas of true on revocation motions.”).
However, Moore’s waiver of his right of appeal is binding because he signed the
waiver and pled true in exchange for the State’s punishment recommendation, and the
trial court followed the recommendation. See Blanco v. State, 18 S.W.3d 218, 219–
20 (Tex. Crim. App. 2000); Jackson v. State, 168 S.W.3d 239, 242–43 (Tex. App.—Fort
Worth 2005, no pet.). Because Moore waived his right to appeal the trial court’s
adjudication judgment, we dismiss his appeal. See Tex. R. App. P. 43.2(f); Jackson,
168 S.W.3d at 243; see also Salazar v. State, No. 02-18-00004-CR, 2018 WL 1324487, at
2
Moore did not explain the significance of the cited authority or why this court
should continue his appeal, and the cited authority does not address a waiver of the
right to appeal under the circumstances of this case. See U.S. Const. amend. V, VI,
XIV; Tex. Code Crim. Pro. Ann. arts. 37.07, 42.12 (repealed by Act of May 26, 2015,
84th Leg., ch. 770 (H.B. 2299), § 3.01); Koller v. State, 518 S.W.2d 373, 374 (Tex. Crim.
App. 1975); Duhart v. State, 652 S.W.2d 824, 825 (Tex. App.—Fort Worth 1983), aff’d,
668 S.W.2d 384 (Tex. Crim. App. 1984).
3
*1 (Tex. App.—Fort Worth Mar. 15, 2018, no pet.) (mem. op., not designated for
publication).
Per Curiam
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 10, 2022
4 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490864/ | MEMORANDUM OPINION
GEORGE L. PROCTOR, Bankruptcy Judge.
This case is before the Court upon the motion filed by Cody" Motor Company (“Cody”) seeking an extension of time in which to surrender preferred stock certificates pursuant to the debtor’s Fourth Amended Joint Plan of Reorganization. An evidentiary hearing on the motion was held December 16, 1988, and upon the evidence presented, the Court enters the following Memorandum Opinion:
FACTS
On April 20, 1984, The Charter Company (“Charter”) and many of its subsidiaries filed petitions under Chapter 11 of the Bankruptcy Code. 11 U.S.C. § 101, et seq. By orders entered April 20, 1984, and November 14, 1985, these cases have been consolidated for administration.
On August 14, 1986, the Court entered an order approving the Fourth Amended Disclosure Statement. On September 2, 1986, Cody cast a ballot accepting the terms and conditions of the Plan.
On December 18,1986, the Court entered an order confirming the Fourth Amended Joint Plan of Reorganization (the “Plan”) submitted in each of these cases. Jurisdiction was reserved by the Court to “deter*646mine all controversies and disputes arising under, or in connection with, the Plan.”
The terms and conditions of the Plan required the debtor’s shareholders to surrender certificates evidencing their ownership to American Transtech, Inc. (“American Transtech”), debtor’s escrow agent, within one year following the consummation date.
The Plan’s consummation date was March 31, 1987, and Notice of Consummation and Availability of Distributions was published on March 26, 27, and 31, 1987, in The Wall Street Journal, Florida Times Union (Jacksonville, Florida), and The Luxemburger Wort. Thus, the last day for shareholders to surrender their certificates was March 31, 1988 (the “surrender date”).
Cody is the beneficial owner of 6,000 shares of 8.25% cumulative convertible preferred stock (Class J) issued by Charter prior to the petition date. Paragraph 2.25 of the Plan classifies her preferred stock as a “Class 7A Interest.” Paragraph 3.26 of the Plan provides that, with respect to the holders of Class 7A Interests, 6,748,605 shares of new common stock would be distributed to tendering shareholders in full satisfaction of their claims. Regarding such distribution, paragraph 4.12.3(d) of the Plan states:
4.12.3(d) Surrender of certificates as condition precedent to entitlement to distribution. As a condition precedent to the distribution by the Escrow Agent of any property to the holder of a Class — Interest [including Class 7A Interests] with respect to such Interest, such holder must first surrender his certificates evidencing such Class_Interest to the Escrow Agent in the manner and within such time periods as may be fixed in the Escrow Agreement. In the event a holder of a Class_Interest fails to surrender his stock or warrant certificates within 365 days after the Consummation Date in accordance with the procedures fixed in the Escrow Agreement, such holder shall be conclusively deemed to have received his distribution of New Common Stock under the Plan and shall not be entitled to receive any further distribution of property under the Plan with respect to such Class_Interest and all such New Common stock not claimed by such holder shall be cancelled and returned to authorized and unissued New Common Stock.
According to the Plan, if a holder of a Class 7A Interest failed to surrender his certificates within the time specified in paragraph 4.12.2(d), American Transtech is to cancel the certificates and return the unissued stock to Charter to be held as authorized and unissued common stock.
The evidence submitted indicates that Cody received the letter of transmittal pri- or to March 31, 1988, but did not timely surrender its certificates. The owner of Cody Motor Company explained that he relied upon his wife to handle financial matters of this type and that she neglected to surrender the certificates due to a memory lapse. The lapse in memory is said to have been brought about by illness.
According to American Transtech, the following securities were not timely surrendered:
(1) 260,952 shares of common stock;
(2) 11,584 shares of common stock unclaimed by warrant holders who failed to surrender their certificates;
(3) Approximately $297,000 principal amount of Charter’s 10%% Subordinated Debentures (Class 6B-1);
(4) Approximately $130,000 principal amount of Charter’s 14%% Subordinated Sinking Fund Debentures due 1994 (Class 6B-2);
(5) Approximately $532,000 of Charter’s 8¼% Convertible Subordinated Guaranteed Debentures due 1994 (Class 6C);
(6) Approximately $750,000 of Charter’s Gulf Coast Waste Disposal Authority Pollution Control Revenue Bonds (Class 6F).
CONCLUSIONS OF LAW
The central issue raised by the motion is whether the Court has discretion to extend the date for tendering debenture certifi*647cates after the Plan has been confirmed. Charter argues that the Court lacks such authority because (i) only the proponent of the plan may modify a confirmed plan, (ii) that Cody accepted the plan and is now bound by its provisions, and (iii) that extending the deadline will open the “floodgates” to further litigation and uncertainty-
Debtor first suggests that the mov-ant is, in fact, asking for a modification of the Plan. Section 1127 of the Bankruptcy Code governs the post-confirmation modification of a plan. It states that the proponent of a confirmed plan may call for its modification any time prior to substantial consummation. Thus, according to the debtor, the Court lacks authority to modify the Plan because (i) the Plan’s proponent [Charter] did not request a modification, and (ii) because the Plan has been substantially consummated. The Court agrees with this analysis.
Substantial consummation of the Plan was accomplished on March 31, 1987, or one year prior to the filing of the present motion. Secondly, the motion was not filed by the plan’s proponent, Charter. Under § 1127 then, the Court cannot extend the deadline for surrendering the debenture certificates.
However, the Court does not find that the movant is actually seeking a modification of the Plan under § 1127. Instead, the Court is simply being asked to exercise its discretion to allow Cody to surrender its debenture certificates after the surrender date.
A number of cases reported prior to the enactment of the Bankruptcy Code suggest that the Court lacks the authority to extend a plan surrender deadline. For example, in In re Industrial Office Building, Corp., 108 F.Supp. 878 (D.N.J.1952), the confirmed plan of reorganization required the surrender of old certificates in order to obtain new securities in the reorganized company. Like this movant, the stockholder in that case failed to timely surrender its certificates. The Court held:
The earlier plan of reorganization was in fact a voluntary agreement to which all stockholders who accepted its terms and conditions became parties. This Court has no summary jurisdiction to alter or modify the agreement.
Id. at 882.
Similarly, in In re City Stores Company, 94 F.Supp. 266 (D.Del.1950), the Court stated:
The cases seem to hold that a court has no jurisdiction to extend the bar order. ... However, in this case there is an equity against petitioner Stern in that the capital structure of the instant company has now been altered and adjusted under the assumption of a previously existing valid bar order of this court. To readjust capital structure every time a petitioner seeks to extend a bar period would, of course, result in chaos. It may be that other potential petitioners are as favorably situated as this petitioner and consequently the court would have to compel the Debtor to readjust constantly its capital structure. It is recognized that a court will not do this in any case where intervening rights of other stockholders have come into existence, as they have in the case at bar.
Id. at 268-269.
Another court construed former Bankruptcy Rule 10-405(b) [derived from § 204 of the Bankruptcy Act] to limit the bankruptcy court’s discretion to alter the Plan’s surrender date. Said the court:
[T]he clear intent is to fix a period of limitation within which any such creditor or stockholder may claim his distributive share or interest, so that the rights to unclaimed funds and securities may be definitely terminated.
In re Grand Rapids R. Co., 28 F.Supp. 802, 803 (D.Mich.1939).
In In re Reo Motor Car Co., 74 F.Supp. 142, 145 (D.Mich.1947), the court went a step further and said:
Stockholders of Reo Motor Car Company who failed to exchange their stock for that of Reo Motors, Inc., in accordance with the Plan of Reorganization and the various orders and the final decree entered herein on October 7, 1940, have no *648further rights based upon such stock-holdings.
The Court does not find this to be binding precedent and will look elsewhere to avoid a substantial forfeiture by Cody.
Bankruptcy courts have traditionally been endowed with equitable powers which enable them to avoid unjust results. Even those decisions which denied an enlargement of time in which to surrender certificates recognize this inherent power. For instance, in North American Car Corporation v. Peerless W & V., 143 F.2d 938 (2d Cir.1944), the court stated:
In general, questions of reopening time limits for the presentation or other adjustment of claims must rest very largely in the sound discretion of the court....
Id. at 940. See also, Industrial Office Building Corp., supra, (standard applied is whether the option to surrender is exercised “within such reasonable time as would avoid prejudice to the rights of others”).
However, before the Court may exercise its equitable powers to extend the surrender date, it is incumbent upon the movant to provide some valid reason why the deadline imposed by the Plan was not met. The Court has carefully considered the evidence presented in this case and finds that movant has failed to supply any plausible justification for enlarging the time in which it may surrender its stock certificates. The Court is not persuaded by movant’s testimony and finds that the stock certificates were not timely surrendered and the only reason was neglect.
Accordingly, the Court will, by separate order, deny Cody’s request, for an enlargement of the surrender date. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490865/ | MEMORANDUM DECISION
THOMAS C. BRITTON, Chief Judge.
The trustee seeks the avoidance under 11 U.S.C. §§ 547(b) and 550 of the debtors’ transfer of a 1957 Thunderbird to the defendants, parents of the debtor wife. The defendants have answered and the matter was tried on January 24.
I conclude that this transfer occurred April 26,1988 and was, therefore, an avoidable preference, and that the trustee is entitled to its recovery.
The facts, as distinct from the legal consequences of those facts, are relatively sim-pie and are not in significant dispute. The debtor wife embezzled money from her employer. When she was caught, her parents gave her a check for $13,000 so she could make partial restitution. That check was not a loan, but was payment, to the extent of about $500, for the purchase of:
“antiques, household items, jewelry, and collectables [sic]”
as noted originally on the check (Ex. 3). The balance of the check was for a 1957 Ford Thunderbird (# D7FH293560) owned by the debtor and her husband.1 The payment exceeded the fair market value of the purchased property.
The Florida Certificate of Title (Ex. 1) was not issued until more than five months later, on April 26, 1988, the day before this bankruptcy was filed. The defendant husband, who collects antique cars, knowingly occasioned the delay.
A Florida statute, § 319.22(1) provides that, with two exceptions not pertinent here:
“no court shall recognize the right, title, claim or interest of any person in or to any motor vehicle or mobile home sold, disposed of, mortgaged, or encumbered, unless evidenced by a certificate of title duly issued to that person, in accordance with the provisions of this chapter.”
Bearing in mind the broad statutory definitions of “creditor” and “claim” in § 101, § 547(b) permits avoidance by the trustee of a vendor’s performance of a sales contract if that performance (the “transfer”) occurs too long after payment to be a “substantially contemporaneous exchange” under § 547(c)(1)(B). See, e.g., Matter of International Gold Bullion Exchange, Inc., 53 B.R. 57 (Bankr.S.D.Fla. 1985); 4 Collier on Bankruptcy (15th Ed. 1985) ¶ 547.01 ff. The purpose of § 547 is not only to discourage creditors from racing to the courthouse but also to facilitate equality of distribution. Id. 11547.01 n. 18. That purpose is served as well in the context of sales as in credit transactions.
*657The trustee has proved each of the remaining four elements of an avoidable preference, if he has proved the second element: that the transfer of the debtors’ interest in the car was for an “antecedent” rather than a “substantially contemporaneous” debt.2
Therefore, the central, if not only, issue here is whether the car was transferred to the defendant husband on November 14, 1977 when payment was made, or on April 26, 1988 when the certificate of title was issued. If the former, this was a contemporaneous exchange for new value and is not a preference. If the latter, it was a transfer on account of an antecedent debt and a preference.
For the purposes of § 547(b), with an exception not pertinent here, the transfer of personal property is not made until the transfer is “perfected”. § 547(e)(2)(B) and (3). Also, for the purposes of § 547(b), a transfer of personal property:
“is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee.” § 547(e)(1)(B).
In Matter of Canup Mechanical, Inc., 1 B.R. 703, 706 (Bankr.M.D.Fla.1979) it was held that in view of the Florida statute, an execution creditor could have obtained a lien superior to the right of the defendant at any time before the issuance of the Certificate of Title three months after the purchase; therefore for the purposes of § 60a(2), Bankruptcy Act predecessor of § 547(b), the car was not transferred until that date. The plaintiff trustee recovered the car. That decision is equally applicable here.
Defendants argue that Canup overlooked Correria v. Orlando Bank & Trust Co., 235 So.2d 20 (Fla.Dist.Ct.App.1970) which held that a car buyer acquired title superior to that of a bank’s trust security lien, where the purchase was made from a car dealer’s inventory in the ordinary course of business without notice of the lien.
Correria is not in point. Our debtor was not a car dealer and the sale here was not in the ordinary course of business. The sale, therefore, did not fall within UCC § 9-307(1), upon which Correría rests, and which applies solely to sales in the ordinary course of business.
If Correría is applicable to the transaction which concerns us, it would apply to every motor vehicle sale and Fla.Stat. § 319.22(1) would be completely vitiated. That was neither the intent nor the effect of the decision in Correría.
As is required by B.R. 9021, a separate judgment will be entered avoiding the transfer of the Thunderbird to the defendant husband and ordering defendants to turn the car over to the trustee. If the car is not surrendered to the trustee, jurisdiction is retained to fix its value for the entry of a money judgment. Costs may be taxed on motion.
Of course, this decision does not bar the defendant’s claim as a general creditor of this estate for the value of the car.
DONE and ORDERED.
. I do not overlook the significance of the fact that the car was not noted on the check until long after the check was negotiated. However, defendants' testimony and the transfer of title (Ex. C) notarized on November 14, 1987, convince me (in the absence of contrary evidence) that defendants also purchased the car on that date with their check.
. Because the defendants/transferees were "insiders” as defined in § 101(30), the fourth element, § 547(b)(4)(B), is not in issue. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490866/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE came before the Court upon the complaint of Allied Video Corp. (the “creditor”) against Charles E. Fitch (the “debtor”) 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, and being otherwise fully advised in the premises, does hereby make the following Findings of Fact and Conclusions of Law:
Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 157(a), (b) and § 1334(b) and the district court’s general order of reference. This is a core proceeding in which the Court is authorized to hear and determine all matters relating to this case in accordance with 28 U.S.C. § 157(b)(2)(I).
In February, 1985, the debtor entered into a contract for the sale of a customized computer system to the creditor, at a purchase price of $15,584.60, which included hardware, software and training. Of that amount, $13,244.60 was the cost of the standard hardware system, which the debt- or delivered to the creditor and the remainder was for the software and training. After delivery of the hardware system and software, the debtor began implementing the new programs by means of a work schedule. During the course of implementation and training the creditor requested that changes be made to the programs. Consequently, the debtor advised the creditor that the changes requested would require an additional charge of $960.00.
In May, 1986, the creditor advised the debtor of his dissatisfaction with the slow progress of implementation and the performance of the programs. In response, the debtor advised the creditor that the delays in implementation were the result of the creditor’s numerous requests for changes in the implementation procedure. However, the debtor agreed to return the $960.00 received and continue implementation of the programs at an hourly rate. Thereafter, the parties’ relationship continued to deteriorate and the creditor instituted a lawsuit for breach of contract in state court which resulted in a final judgment in favor of the creditor for $40,584.60.
The creditor brings this action pursuant to 11 U.S.C. § 523(a)(2)(A) seeking to exempt from discharge the state court judgment due to the debtor’s fraud and misrepresentations in entering the contract *664for the sale of a computer system. The bankruptcy court is not confined to a review of the final judgment and record in the prior state court proceeding when determining dischargeability of a debt. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The Court, therefore, must determine whether the state court judgment is nondischargeable under 11 U.S.C. § 523(a)(2)(A).
Under 11 U.S.C. § 523(a)(2)(A) a debt will be excepted from discharge when it is obtained by “false pretenses, a false representation, or actual fraud....” The creditor seeking a determination of nondis-chargeability bears the burden of proving by clear and convincing evidence that the debtor was guilty of positive fraud at the time the debt was obtained. Schweig v. Hunter (In re Hunter), 780 F.2d 1577, 1579 (11th Cir.1986). Additionally, the creditor must prove that “the debtor made a false representation with the purpose and intention of deceiving the creditor; the creditor relied on such representation; his reliance was reasonably founded, and the creditor sustained a loss as a result of the representation.” In re Hunter, 780 F.2d at 1579. Furthermore, exceptions to discharge are strictly construed against the creditor and in favor of the debtor. Gleason v. Thaw, 236 U.S. 558, 562, 35 S.Ct. 287, 289, 59 L.Ed 717 (1915).
The creditor argues that the debtor failed to comply with the terms of their agreement by misrepresenting his ability to provide the creditor with a customized computer system that would meet his business needs. The facts, however, do not show that the debtor entered into the agreement intending to defraud the creditor. To the contrary, the parties worked together for one year, during which the debtor delivered the equipment, software, and began implementing the system. A mere breach of contract by the debtor without more is insufficient to prove an intent to defraud for purposes of 11 U.S.C. § 523(a)(2)(A). In re Schmidt, 70 B.R. 634, 639 (N.D.Ind. 1986). Therefore, the Court finds that there is insufficient evidence to prove that the debtor made a knowingly false representation or intended to defraud the creditor when the agreement was entered into in 1985.
Based on the foregoing facts, this Court finds the creditor has failed to prove, by clear and convincing evidence, the elements of 11 U.S.C. § 523(a)(2)(A) and therefore the debt is dischargeable.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483478/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Hira Azhar v. Mohammad Ali Choudhri
Appellate case number: 01-20-00169-CV
Trial court case number: 2015-36895
Trial court: 312th District Court of Harris County
On September 22, 2022, we granted appellee Mohammad Ali Choudhri’s counsel’s
motion to withdraw and abated the case to allow Choudhri the opportunity to retain new
counsel. We also required Choudhri to file a status update on his search for new counsel
no later than October 24. Choudhri filed the status update as ordered, indicating that he was
still in the process of interviewing and retaining new counsel, but that due to the long and
complex history of this case, it was taking prospective counsel time to review the
considerable volume of material in the record.
Accordingly, we order Choudhri to file a motion to reinstate or a status report
advising the Court of the status of his search for new counsel no later than December 8,
2022—additional time will not be granted absent extraordinary circumstances. We reserve
the right to reinstate the appeal and reset this case for submission, either on the briefs or
for oral argument, upon the receipt of a status report, without regard to whether Choudhri
has at that time been able to secure new counsel, or in the event Choudhri fails to file a
status report or motion to reinstate as ordered. After the case is reinstated on this Court’s
active docket, supplemental briefing on the issues identified in this Court’s September 1,
2022 order will be due—on behalf of both Azhar and Choudhri—within 30 days from the
date of reinstatement. After receipt of the supplemental briefing, the Court will determine
whether and when to reset this case for submission on the briefs or for oral argument in
accordance with the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 39.1, 39.7,
39.8.
It is so ORDERED.
Judge’s signature: /s/ Amparo Guerra
Acting individually Acting for the Court
Date: November 8, 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483479/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Ex parte Rene Moreno
Appellate case number: 01-22-00782-CR
Trial court case number: 1788826
Trial court: 482nd District Court of Harris County
Appellant, through counsel, has filed a notice of appeal from the trial court’s
September 29, 2022 order denying his application for writ of habeas corpus. The complete
appellate record has been filed with this Court. After a review of the appellate record, the
Court determines that it desires briefing. See TEX. R. APP. P. 31.1.
Accordingly, appellant is ordered to file a brief within twenty days of the date of
this order. See TEX. R. APP. P. 2, 31.1. The State’s brief, if any, is due to be filed no later
than twenty days from the filing of appellant’s brief.
It is so ORDERED.
Judge’s signature: /s/ Amparo Guerra
Acting individually
Date: November 8, 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483523/ | 21-1005
United States v. Carter
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 14th day of November, two thousand twenty-two.
4
5 PRESENT:
6 JOHN M. WALKER, JR.,
7 BARRINGTON D. PARKER,
8 EUNICE C. LEE,
9 Circuit Judges.
10 _____________________________________
11
12 UNITED STATES OF AMERICA,
13
14 Appellee,
15
16 v. No. 21-1005
17
18 SHEQUILLE CARTER,
19
20 Defendant-Appellant.
21 _____________________________________
22
23 For Defendant-Appellant: BARCLAY T. JOHNSON, for Michael L.
24 Desautels, Federal Public Defender for the
25 District of Vermont, Burlington, Vermont.
26
27
28 For Appellee: ZACHARY B. STENDIG, (Spencer J. Willig,
29 Gregory L. Waples, on the brief) for Nikolas
30 P. Kerest, United States Attorney for the
31 District of Vermont, Burlington, Vermont.
32
33 Appeal from a judgment of the United States District Court for the District of Vermont
34 (Crawford, J.).
35
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that the judgment of the district court is AFFIRMED.
3 I. Background
4 On October 31, 2019, Defendant-Appellant Shequille Carter was charged with possession
5 with intent to distribute heroin, fentanyl, and 28 grams or more of cocaine base, in violation of 21
6 U.S.C. §§ 841(a), 841(b)(1)(B).
7 The case proceeded to trial where evidence was offered that on August 21, 2019, Melissa
8 Rouleau, a confidential source (“CS”), provided a tip to Drug Enforcement Agency Task Force
9 Officer (“TFO”) Christopher Matott that an alleged drug dealer, a black male named “John,” later
10 identified as Carter, was looking for a ride from Burlington to St. Johnsbury, Vermont and would
11 be traveling in a grey Toyota Tacoma truck. Matott relayed this tip to other DEA officers who
12 began surveilling the truck. TFO Dwayne Mellis observed the truck pull into the address he was
13 surveilling in Winooski, Vermont and saw one white male, later identified as Neil Scichitano, and
14 Carter exit the truck and return with a white female, later identified as Rouleau. The truck then
15 traveled to St. Johnsbury where numerous law enforcement officials continued surveillance.
16 Special Agent Timothy Hoffman observed the truck stop at a known drug house in St.
17 Johnsbury and saw Carter and Scichitano go into the house for approximately five minutes and
18 then return. Hoffman contacted Vermont State Police Trooper Giancarlo DiGenova and directed
19 him to make a traffic stop on the truck. After DiGenova observed the truck commit a minor
20 traffic violation, he pulled over the truck and observed Rouleau and Scichitano in the front seats
21 and Carter in the backseat. Upon approaching the truck, DiGenova asked the passengers if they
22 had any drugs, guns, or currency. Carter replied that he had about $3,000 on his person.
2
1 DiGenova asked Rouleau to get out of the truck. DiGenova began speaking with
2 Rouleau, and when he realized that Rouleau was potentially a CS, he informed her that he would
3 “try to separate [her] from what’s inside the car.” Joint App’x 199. After this conversation,
4 DiGenova returned to his car and turned off the dash cam. DiGenova then asked Scichitano, the
5 driver and owner of the truck, to step out of the truck and for consent to search it. While Carter
6 remained in the truck, DiGenova witnessed him move forward towards the front passenger side.
7 DiGenova ordered Carter to put his hands on the headrest and asked what he was doing. Carter
8 replied that he was searching for a lighter in Rouleau’s purse. DiGenova ordered Carter out of
9 the truck and searched him, recovering a lighter in his pocket and about $3,000.
10 DiGenova then searched the truck. In the center rear console he found a pair of gloves
11 stuffed with what was later determined to be 41.8 grams of cocaine base and 13.9 grams of a
12 substance containing heroin and fentanyl. DiGenova also seized a phone from the backseat.
13 Scichitano was let go at the scene. Carter and Rouleau were arrested. However, Rouleau was
14 later released without charges and was paid $500 for her work on Carter’s case.
15 At trial, the Government offered Carter’s post-arrest statement, in which he indicated
16 multiple explanations for the $3,000, including that he had been working, that he recently received
17 a settlement from a car accident, and that the money was from selling marijuana; photographs of
18 the drugs found in the truck and the money seized from Carter; text messages from Carter’s phone
19 sent and received between August 17 and August 21, 2019, which purportedly referred to drug
20 quantities and transactions; and text messages between Rouleau and Carter from the time period
21 when the truck was searched in which Carter stated, “Don’t let them search car please. I can’t
22 afford to go to jail,” Joint App’x 244.
3
1 In its case-in-chief, the defense called a staff investigator at the Vermont Federal
2 Defender’s Office who testified that Carter had in fact received money from a settlement in a civil
3 lawsuit. After deliberating for several hours over the course of two days, the jury returned a
4 guilty verdict. Carter timely appealed. We assume the parties’ familiarity with the underlying
5 facts, the procedural history of the case, and the issues on appeal.
6 II. Discussion
7 On appeal, Carter raises three arguments. First, Carter argues that the district court erred
8 when it excluded information about Matott’s disciplinary records from the police department,
9 which evinced racist behavior and domestic assault charges that resulted in Matott’s termination,
10 and information regarding Scichitano’s prior drug convictions. The district court excluded
11 Matott’s disciplinary records, finding they were not direct evidence as to Matott’s beliefs and
12 prejudices, and they did not go to the credibility of any witnesses testifying. Additionally, the
13 district court excluded the prior drug convictions of Scichitano, who did not testify, finding that
14 the convictions were offered as propensity evidence.
15 Carter now argues that district court’s exclusion of this evidence was erroneous and
16 hindered his defense. Although Matott did not testify, Carter argues, this evidence was highly
17 relevant because Matott was essential to Carter’s arrest and supported Carter’s theory that Matott
18 chose to incriminate Carter due to his racial animus. As he did at trial, Carter notes that three
19 people were found in a truck with narcotics that day, but Carter—the only black person in the
20 group—was the only one prosecuted. Additionally, Carter avers that evidence of Scichitano’s
21 convictions would have further supported his defense that the drugs did not belong to him and was
22 proper evidence on motive, intent, or knowledge.
4
1 “We review the district court’s evidentiary rulings for abuse of discretion.” United States
2 v. Willis, 14 F.4th 170, 185 (2d Cir. 2021). Even if an evidentiary ruling is erroneous, we will
3 affirm if the error was harmless, id., meaning that it is “highly probable that the error did not affect
4 the verdict,” United States v. Stewart, 907 F.3d 677, 688 (2d Cir. 2018) (internal quotation marks
5 omitted). We assess the importance of improperly excluded evidence by considering:
6 (1) the importance of the unrebutted assertions to the government’s case; (2)
7 whether the excluded material was cumulative; (3) the presence or absence of
8 evidence corroborating or contradicting the government’s case on the factual
9 questions at issue; (4) the extent to which the defendant was otherwise permitted to
10 advance the defense; and (5) the overall strength of the prosecution’s case.
11 Id. Regardless of whether there was any abuse of discretion in the exclusion of the cited records,
12 harmless error review defeats Carter’s claim. Here, although Matott initiated the surveillance on
13 Carter, he did not ultimately conduct the traffic stop or the search of the vehicle, undermining the
14 overall importance of Matott to the Government’s case. Moreover, while Carter was not able to
15 introduce specific evidence of Matott’s bias, the district court explicitly noted when ruling that
16 “[c]ertainly, you can make that argument about which of the defendants got charged.” Joint
17 App’x 157. Thus, Carter was still able to offer this line of defense and did so throughout the trial.
18 As Carter points out, defense counsel emphasized for the jury in summations that Carter—the only
19 black person in the group—was the only one prosecuted and described implicit bias and its possible
20 role in Carter’s case. Additionally, although Carter was unable to admit Scichitano’s drug
5
1 convictions, the defense successfully elicited through the cross-examination of Hoffman that
2 Scichitano was a drug user. 1
3 Finally, the Government introduced numerous text messages sent by Carter on August 21
4 and the days leading up to it that suggested Carter was planning to sell heroin and cocaine.
5 Additionally, Carter sent an incriminating text to Rouleau when the truck was about to be searched.
6 This electronic evidence weighed strongly in the Government’s favor and suggested that the drugs
7 were in fact Carter’s. See United States v. McCallum, 584 F.3d 471, 478 (2d Cir. 2009) (“We
8 have repeatedly held that the strength of the government’s case is the most critical factor in
9 assessing whether error was harmless.”). Therefore, even assuming the district court erred in
10 excluding Matott’s disciplinary records and Scichitano’s drug convictions, such error was
11 harmless.
12 Second, Carter argues that the district court erred in denying his motion to suppress his
13 statements because under the totality of the circumstances, including the ongoing ruse by law
14 enforcement about Rouleau taking “the fall for the trafficking charge,” the conditions of his
15 interrogation, law enforcement’s threat of incarceration, and Carter’s race, the statements were
16 involuntary. Joint App’x 205. “On appeal from a challenged suppression order, we review a
17 district court’s findings of fact for clear error, and its resolution of questions of law and mixed
18 questions of law and fact de novo.” United States v. Kourani, 6 F.4th 345, 351 (2d Cir. 2021)
19 (citation omitted). In evaluating voluntariness, we consider, “the totality of the circumstances,
1
Defense counsel also inquired about Scichitano’s prior drug convictions, but Hoffman stated that he was
unaware of Scichitano’s criminal history.
6
1 including (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the
2 conduct of law enforcement officials.” Id. (internal quotation marks omitted).
3 Regarding voluntariness, Carter’s most salient argument is that Hoffman’s threat of
4 continued detention improperly overbore his desire to remain silent. Before Carter was given
5 Miranda warnings and after handing Carter a state-court citation for a felony state drug offense,
6 Hoffman stated: “[Y]ou do have a Citation . . . but you may have a goal of leaving here tonight.
7 And that’s a possibility. You could still be lodged tonight based on this charge or I could call the
8 Southern District of New York right now and speak to your Probation Officer and tell him what’s
9 going on here.” Joint App’x 32. Hoffman then stated that he would like to have a conversation
10 with Carter, and Carter was subsequently Mirandized and proceeded to answer questions.
11 “While ‘coercive police activity’ is a ‘necessary predicate’ to holding a confession
12 constitutionally involuntary, a finding that police conduct is ‘false, misleading, or intended to trick
13 and cajole the defendant into confessing’ does not necessarily render the confession involuntary.”
14 United States v. Haak, 884 F.3d 400, 409 (2d Cir. 2018) (first quoting Colorado v. Connelly, 479
15 U.S. 157, 167 (1986), and then quoting United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991)).
16 In assessing coercion, this Court has drawn the line between “vague promises of leniency for
17 cooperation” and “[m]aterial misrepresentations based on unfulfillable or other improper
18 promises.” Haak, 884 F.3d at 410 (quoting United States v. Ruggles, 70 F.3d 262, 265 (2d Cir.
19 1995) (collecting cases)); United States v. Gaines, 295 F.3d 293, 299 (2d Cir. 2002) (“vague
20 promises of leniency for cooperation are just one factor to be weighed in the overall calculus and
21 generally will not, without more, warrant a finding of coercion”).
7
1 Although Hoffman’s statements imply the possibility of leniency if Carter talked because
2 they suggested that Hoffman would not contact Carter’s probation officer if he complied,
3 Hoffman’s conduct did not render Carter’s statements involuntary under the totality of the
4 circumstances. Previously, this Court has held that statements made by an officer, including that
5 “I’m not looking to mess with you, I’m not looking to come after you, but you gotta get on board
6 or you, you shut your mouth and then the weight of the federal government is gonna come down
7 on you,” did not render statements involuntary. Haak, 884 F.3d at 412–13. Hoffman’s
8 statements here are considerably more benign. Whether or not race should be a factor in the
9 voluntariness calculus, as Carter argues, that additional factor did not render Carter’s statement
10 involuntary.
11 Even assuming arguendo that the district court erred in admitting Carter’s statements, we
12 conclude their admission was harmless. Although the inconsistencies between Carter’s
13 statements to Hoffman (including that he was selling marijuana) and his text messages were
14 highlighted by the Government at trial, ultimately these statements had minimal importance to the
15 Government’s case, especially in light of the Government’s other evidence against Carter, as
16 described throughout. See United States v. Taylor, 745 F.3d 15, 27 (2d Cir. 2014) (when
17 considering whether erroneous admission of statement was harmless, this Court considers factors
18 including “the overall strength of the prosecution’s case” and “the importance of the wrongly
19 admitted testimony”); United States v. Bailey, 743 F.3d 322, 342 (2d Cir. 2014) (“a court must
20 consider the importance of the erroneously admitted exculpatory statements to the government’s
21 proof of guilt in order to assess harmlessness”). For these reasons, we conclude that admission
8
1 of Carter’s statements “was harmless beyond a reasonable doubt.” Taylor, 745 F.3d at 27
2 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
3 Finally, Carter argues that the district court erred by allowing a jury instruction on special
4 investigate techniques (the “Anti-CSI Instruction”), which stated:
5 Specific Investigation Technique Not Required.
6 During the trial you heard testimony of witnesses and argument by counsel that the
7 government did not utilize specific investigative techniques. For example, no
8 fingerprints were taken. You may consider these facts in deciding whether the
9 government has met its burden of proof, because as I told you, you should look to
10 all of the evidence or lack of evidence in deciding whether the defendant is guilty.
11 However, you are also instructed that there’s no legal requirement that the
12 government use any of these specific investigative techniques to prove its case.
13 There’s no requirement to attempt to take fingerprints, or that it offer fingerprints
14 in evidence. Law enforcement techniques are not your concern. Your concern,
15 as I’ve said, is to determine whether or not, on the evidence or lack of evidence, the
16 defendant’s guilt has been proved beyond a reasonable doubt.
17 Joint App’x 356–57. Because Carter did not object below, this claim is reviewed only for plain
18 error. See United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009). Carter avers that the
19 Anti-CSI Instruction lowered the Government’s burden of proof, violating Carter’s Fifth
20 Amendment rights, and that such an instruction was particularly harmful here because the
21 defense’s theory rested in part on the Government’s absent witnesses, failure to investigate, and
22 failure to preserve evidence.
23 This Court has rejected a challenge to a similar jury instruction, which stated, in part, that
24 the Government’s investigative techniques were irrelevant, finding the instruction legally sound
25 and noting that “[t]he jury correctly was instructed that the government has no duty to employ in
26 the course of a single investigation all of the many weapons at its disposal, and that the failure to
27 utilize some particular technique or techniques does not tend to show that a defendant is not guilty
9
1 of the crime with which he has been charged.” United States v. Saldarriaga, 204 F.3d 50, 52–53
2 (2d Cir. 2000) (per curiam).
3 Carter takes particular issue with the Anti-CSI Instruction’s language that “[l]aw
4 enforcement techniques are not your concern,” however, this is akin to the language in Saldarriaga
5 that the Government’s techniques are irrelevant. Moreover, like in Saldarriaga, the district court
6 properly explained that the jury should consider the evidence or lack thereof, and based on that,
7 determine whether the defendant was guilty beyond a reasonable doubt. Because the district
8 court properly instructed the jurors that specific investigative techniques are not required and that
9 they should consider all of the evidence, or lack of evidence, to determine Carter’s guilt, we find
10 that the district court did not err, much less plainly err, in issuing the Anti-CSI Instruction. 2
11 * * *
12 We have considered Carter’s remaining arguments and find them to be without merit.
13 Accordingly, we AFFIRM the judgment of the district court.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
2
Carter argues that even if the three errors he has identified do not individually warrant reversal, the
cumulative effect of the errors do warrant a new trial. Because we have identified no errors in Carter’s
trial, “we must reject [his] claim of cumulative error.” United States v. James, 712 F.3d 79, 107 (2d Cir.
2013).
10 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483537/ | J-S27018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: G.J., FATHER :
:
:
:
:
: No. 982 EDA 2022
Appeal from the Order Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000737-2017
IN THE INTEREST OF: J.M.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: G.J., FATHER :
:
:
:
: No. 983 EDA 2022
Appeal from the Decree Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000081-2021
IN THE INTEREST OF: M.J., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: G.J., FATHER :
:
:
:
:
: No. 984 EDA 2022
Appeal from the Order Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000163-2019
IN THE INTEREST OF: M.A.G.J.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
J-S27018-22
:
:
APPEAL OF: G.J., FATHER :
:
:
:
: No. 985 EDA 2022
Appeal from the Decree Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000082-2021
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2022
Appellant G.J. (Father) appeals from the decree and order granting the
petitions filed by the Philadelphia County Department of Human Services
(DHS) to involuntarily terminate Father’s parental rights to his minor children,
J.B., born in September of 2013, and M.J., born in November of 2018,
(collectively, the Children)1 and change the Children’s permanency goal to
adoption. Father argues that DHS failed to present clear and convincing
evidence supporting the termination of his parental rights and failed to
consider Children’s best interests in changing the permanency goal to
adoption. We affirm.
The relevant facts and procedural history are well known to the parties.
See Trial Ct. Op., 5/5/22, at 1-4. Briefly, DHS became involved with the
family on August 8, 2018, after receiving a general protective services (GPS)
report alleging that A.B. (Mother) had been physically abusing J.B. and his
____________________________________________
1M.J. and J.B. are the minor children of Father and A.B. (Mother). The
Children also have half-siblings who are not included in the instant appeal.
-2-
J-S27018-22
older half siblings. N.T. Hr’g, 3/15/22, at 7, 20-22. From October of 2018
through January of 2019, DHS provided in-home services for Mother. Id. at
59. After Mother gave birth to M.J. in November of 2018, DHS received
additional reports alleging Mother’s “repeated, prolonged, or egregious failure
to supervise” or obtain proper medical care for the Children. Id. at 55.
Throughout the time DHS provided services to Mother, DHS did not have
contact information for Father and had never seen him in Mother’s home. Id.
at 58-59.
On January 29, 2019, DHS obtained an order of protective custody
(OPC) and placed the Children with Maternal Cousin. Following a shelter care
hearing on January 31, 2019, the trial court lifted the OPC, transferred
temporary legal custody of the Children to DHS, and maintained the Children’s
placement with Maternal Cousin. The trial court also appointed counsel on
Father’s behalf.
On June 6, 2019, the trial court adjudicated the Children dependent and
transferred both the care and custody of the Children to DHS. In support of
the Children’s permanency goal of reunification, Father was referred to
Achieving Reunification Center (ARC) for appropriate services and ordered to
complete a parenting capacity evaluation (PCE). See Goal Change Pet.,
2/16/21, Ex. A. The court also ordered Community Umbrella Agency (CUA)
to assess Father’s home and permitted Father to attend twice weekly
supervised visits with the Children. Id.
-3-
J-S27018-22
On July 23, 2019, CUA held a revised single case plan (SCP) meeting.
See Goal Change Pet., 2/16/21, Ex. A. Father’s parental objectives were to
comply with CUA services and court orders, complete a PCE, and attend ARC
services. Id. Father did not participate in the SCP meeting. Id.
On October 10, 2019, the trial court conducted a permanency review
hearing. Father was referred to ARC for parenting classes, ordered to comply
with the PCE when scheduled, and provide proof of employment. See Goal
Change Pet., 2/16/21, Ex. A. The trial court also ordered CUA to evaluate
Father’s home within forty-eight hours. Id. Father’s twice-weekly supervised
visitation schedule remained in place. Id.
The trial court conducted permanency review hearings at regular
intervals. Throughout the life of the case, Father’s SCP objectives remained
the same. Id. At the permanency review hearing on October 27, 2020, CUA
case manager Jasmine Jackson testified that although Father verified his
employment status, he failed to complete ARC as ordered. N.T. Hr’g,
10/27/20, at 13. The trial court also heard testimony that Father had stopped
visiting or calling the Children for at least two months and that he had only
re-engaged in visitation at the beginning of September 2020. Id. at 13-14.
At the conclusion of the hearing, the trial court indicated that it would consider
changing the Children’s permanency goal and terminating Father’s parental
rights at the next hearing. Id. at 65. In the interim, the trial court ordered
Father to complete the PCE, engage in parenting classes, and continue with
his visitation schedule. Id. at 67.
-4-
J-S27018-22
On February 16, 2021, DHS filed petitions to change the Children’s
permanency goal to adoption. See Goal Change Pet., 2/16/21. In support,
DHS alleged that reunification with Father was inappropriate, as he had “failed
to achieve full and continuous compliance with the established SCP objectives”
and “also failed to consistently visit, plan for, and provide for [the Children]
throughout their time in placement.” Id. at Ex. A. That same day, DHS filed
a petition seeking involuntary termination of Father’s parental rights to
Children pursuant to 23 Pa.C.S. §§ 2511(a)(1), (a)(2), (a)(5) and (a)(8). See
Pet. for Involuntary Term., 2/16/21, at 1-11.
The trial court conducted virtual evidentiary hearings on April 28, 2021
and June 1, 2021.2 DHS presented testimony from CUA case worker Jasmine
____________________________________________
2 Blake Mammuth, Esq. served as the Children’s guardian ad litem (GAL)
throughout the proceedings and represented the Children’s best interests.
Attorney Mammuth also represented M.J.’s legal interests. N.T. Hr’g,
10/27/20, at 65; see In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020).
The record reflects that M.J. has extensive development delays and was
entirely non-verbal at the time of the termination proceedings. N.T. Hr’g,
10/27/20, at 33-35; N.T. Hr’g, 4/28/21, at 118. Because M.J. could not
express his own preferences, the trial court did not appoint legal counsel on
his behalf. N.T. Hr’g, 10/27/20, at 65; see In re P.G.F., 247 A.3d 955, 964
(Pa. 2021) (holding that when a child’s best interests and legal interests do
not diverge, or where the child’s legal interests cannot be ascertained, a court-
appointed attorney may serve in the dual capacity of GAL and legal counsel).
Michael Graves, Esq., served as J.B.’s legal counsel during the termination
proceedings, and appeared at the hearings on his behalf. N.T. Hr’g, 4/28/21,
at 8. Attorney Graves testified that J.B. appeared to understand his options,
including adoption. N.T. Hr’g, 6/1/21, at 73. Attorney Graves stated that J.B.
said he was “fine where he is now” in foster care and “[h]e would like to be
adopted[,]” but also specifically stated that he wanted to maintain visitation
with his parents and his prior caretakers. Id. at 73-74.
-5-
J-S27018-22
Jackson, who stated that Father had failed to meet his SCP objectives. N.T.
Hr’g, 4/28/21, at 95. With respect to parenting classes, Ms. Jackson stated
that although Father was referred to ARC several times, the referrals were
closed for non-participation. Id. at 92. Ms. Jackson explained that she also
provided Father with contact information for ARC, but “he didn’t feel like he
should have to do parenting class,” because the issues leading to the
Children’s placement did not occur while they were in Father’s custody. Id.
at 93. Ms. Jackson testified that Father “[e]ventually [] stated that he had
been reaching out to ARC, but that nobody was getting back to him.” Id. Ms.
Jackson also indicated that although Father ultimately engaged with ARC, he
did not do so until May of 2021. Id.
Ms. Jackson testified that Father completed an initial home assessment
in 2019. Id. at 94. Ms. Jackson explained that while Father’s home was “not
structurally inappropriate,” Father’s housing was an issue because the
Children would have had to share a bedroom with both Father and Father’s
older child. Id. Ms. Jackson also noted that after Father was directed to
complete another assessment, Father stated that Mother was handling the
Children’s housing, but later said that he “might be moving,” and that he
would let Ms. Jackson know when he was ready for a home assessment. Id.
At the time of the termination hearing, Father’s housing requirement remained
outstanding. Id. at 95.
With respect to visitation, Ms. Jackson testified that Father was
consistent until
-6-
J-S27018-22
October of 2019, at which point he stated that his work schedule
was a barrier and he wasn’t going to be able to attend the visits
during the week. . . however[,] he didn’t give me the work
schedule which I needed to verify in order to give him Saturday
visits until January of 2020.”
Id. at 96. Ms. Jackson explained that after visits became virtual in March of
2020, Father completed three visits, then stated that “the Zoom wouldn’t work
for him, at which point he didn’t have any more visits until they restarted in
person in August of 2020.” Id. Ms. Jackson stated that although Father
visited with the Children from August of 2020 to November of 2020, two visits
were subsequently cancelled due to weather, two visits were cancelled
because J.B. did not want to attend, and three visits were cancelled because
Father either failed to confirm them or indicated that he was unable to leave
work. Id. As a result of Father’s missed visits, Ms. Jackson stated that “[J.B.]
was upset” and on the next scheduled visit in January of 2021, “[J.B.] said he
didn’t want to come to because [] Father had missed the ones before.” Id. at
97. At that time, Father told Ms. Jackson that “M.J. was a baby and there
wasn’t a lot to do with him, so [Father] would wait [to resume visits] until
[J.B.] wanted to join.” Id. Father did not contact DHS about visiting with the
Children in January, February, or March of 2021. Id. at 99. Father ultimately
contacted DHS in April of 2021 and visits resumed after J.B. agreed to attend.
Id.
Finally, with respect to the Children’s best interests, Ms. Jackson
testified that M.J. had extensive developmental needs and was completely
non-verbal at two years’ old. Id at 117-18. Ms. Jackson stated that in prior
-7-
J-S27018-22
conversations with Father, he indicated that he only wanted custody of J.B.,
“because he felt like [M.J.] was a baby and needed to be with [Mother].” Id.
at 119. Ms. Jackson explained that although J.B. had become upset about
missed visits with Father in the past, J.B. no longer “displayed any negative
effects of not having contact with [F]ather” and would not suffer irreparable
harm if Father’s rights were terminated. Id. at 100-101. She also stated
because M.J. is young and has been in care for most of his life, he “hasn’t had
time to develop a bond with [] Father” and would not suffer irreparable harm
if Father’s rights were terminated. Id. at 102.
Although Father gave some testimony at a virtual hearing on June 1,
2021, he experienced technical difficulties and was ultimately disconnected.
N.T. Hr’g, 6/1/21, at 67-72. After Father’s counsel indicated that he did not
have updated contact information for Father, the trial court found that Father
had waived his right to testify. Id. at 69-72. That same day, the trial court
issued orders terminating Father’s parental rights to the Children pursuant to
Section 2511(a)(1), (a)(2), (a)(5), (a)(8), and (b), and changing the
Children’s permanency goals to adoption.
Father subsequently appealed the trial court’s goal change and
termination orders as to both Children. On appeal, DHS filed an application
to remand the matter for further proceedings. On January 6, 2022, this Court
issued an order granting DHS’s application and remanded the case to allow
Father to testify. See Order, 1/6/22.
-8-
J-S27018-22
The trial court conducted an in-person hearing on March 15, 2022.
Father testified that he has a house, he loves the Children, and he wants them
returned to his custody. N.T. Hr’g, 3/15/22, at 26. Although Father confirmed
that he previously told Ms. Jackson that he only wanted custody of his older
son, J.B., Father stated that he “had a change of heart” and now wanted
custody of both children. Id. at 34. He also indicated that while he had not
been ready to care for M.J. previously, he did have the ability to care for the
Children and would “have [them] if [Mother] wasn’t ignorant.” Id. at 44.
When asked if he took any responsibility for the circumstances that led to the
Children’s placement, Father stated: “It’s not on my watch. That happen[ed]
with [Mother]. It didn’t happen on my watch.” Id. at 45.
Father indicated that, prior to the Children’s removal in 2019, he was
“hands on” with J.B., provided for the Children financially, and often had
custody of J.B. on the weekends. Id. at 47. However, Father stated that he
did not know M.J.’s age, date of birth, or whether M.J. had any special needs.
Id. at 44-45. When Father was asked if he knew “anything about [M.J.],” who
was removed from Mother’s custody as an infant, Father responded: “Nope
because y’all got him.” Id. at 45.
When asked to explain why he failed to complete his SCP objectives,
Father repeatedly stated that DHS “dropped the ball.” Id. at 17, 36, 52. With
respect to visitation, Father claimed that he showed up for visits on several
occasions, but DHS had issues with staffing. Id. at 18. Regarding parenting
classes, Father initially stated that he did not need parenting classes because
-9-
J-S27018-22
the problems that led to the Children’s placement were “the baby mom
department.” Id. at 18. Father later claimed that he had been going to the
classes, but he ultimately stopped going because “people [weren’t] there” and
he was “losing money” because he had to take time off from work. Id. at 38.
Father also stated that he decided to stay away from the Children because he
was frustrated, stressed out, and had “been going to that circus route for two
years and everybody [kept] assassinating [his] character.” Id. at 52.
However, Father confirmed that he failed to complete the court-ordered
parenting capacity evaluation. Id. at 40.
At the conclusion of the hearing, the trial court re-entered the decrees
terminating Father’s parental rights and the orders changing the Children’s
permanency goals to adoption.3 Father subsequently filed a timely notice of
appeal. Both Father and the trial court complied with Pa.R.A.P. 1925.
On appeal, Father raises the following issues for review:
1. Whether the trial court committed error by involuntarily
terminating father [Father’s] parental rights where such
determination was not supported by clear and convincing
evidence establishing grounds for termination under the
Adoption Act, 23 Pa. C.S. §§ 2511 (a)(1), (a)(2), (a)(5) and
(a)(8)?
2. Whether the trial court committed error by changing the
[Children’s] permanency goal from reunification with the
parent(s) to adoption without giving primary consideration to
the developmental, physical, and emotional needs and welfare
____________________________________________
3 However, the trial court noted that Father’s parental rights were terminated
pursuant to Section 2511(a)(1) and (a)(2), and it did not include subsections
(5) or (8).
- 10 -
J-S27018-22
of the child as required by the Adoption Act, 23 Pa. C.S. §
2511(b)?
Father’s Brief at 5 (some formatting altered).
Termination of Parental Rights
Section 2511(a)(1)
Father argues that the trial court erred in terminating his parental rights
under Section 2511(a)(1) because he “never refused or failed to perform his
parental duties” and testified at the termination hearing that “he loves [the
Children] and that he wants to be reunited with them.” Id. at 27. Father
asserts that although he was not the Children’s primary custodian, he “had
been parenting and involved with [the C]hildren since their birth” and had
“ongoingly provided for . . . and maintained a parental relationship” with them
throughout their lives. Id. Further, Father emphasizes that “[t]he
dependency issues that led to the children’s removal from the home and
placement into DHS foster care arose solely from [M]other.” Id. Father also
claims that, unlike Mother, he has no history of “neglect, mental health,
parental abuse, [or] illegal substance abuse” and has maintained
“independent housing and sufficient income to satisfactorily care for [the
C]hildren without any county agency or state assistance.” Id. Therefore,
Father concludes that “in the absence of DHS establishing and implementing
a meaningful reunification plan for [F]ather to comply with to facilitate
reunification, and in its failure to provide [Father] reasonable services and
assistance to meet the objectives of that plan, DHS failed in its burden” to
- 11 -
J-S27018-22
establish clear and convincing evidence supporting the involuntary
termination of his parental rights under Section 2511(a)(1). Id.
In reviewing an appeal from an order terminating parental rights, we
apply the following standard of review:
[A]ppellate courts must apply an abuse of discretion standard
when considering a trial court’s determination of a petition for
termination of parental rights. As in dependency cases, our
standard of review requires an appellate court to accept the
findings of fact and credibility determinations of the trial court if
they are supported by the record. [In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010)]. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. As has been often stated, an abuse of
discretion does not result merely because the reviewing court
might have reached a different conclusion. Instead, a decision
may be reversed for an abuse of discretion only upon
demonstration of manifest unreasonableness, partiality,
prejudice, bias, or ill-will.
As we discussed in R.J.T., there are clear reasons for applying an
abuse of discretion standard of review in these cases. We
observed that, unlike trial courts, appellate courts are not
equipped to make the fact-specific determinations on a cold
record, where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even where
the facts could support an opposite result, as is often the case in
dependency and termination cases, an appellate court must resist
the urge to second guess the trial court and impose its own
credibility determinations and judgment; instead we must defer
to the trial judges so long as the factual findings are supported by
the record and the court’s legal conclusions are not the result of
an error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (some citations
omitted).
- 12 -
J-S27018-22
The burden is on the petitioner “to prove by clear and convincing
evidence that [the] asserted grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
defined as testimony that is so ‘clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.’” Id. (citation omitted).
Our case law has made clear that under Section 2511, the court
must engage in a bifurcated process prior to terminating parental
rights. Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and convincing
evidence that the parent’s conduct satisfies the statutory grounds
for termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b) . . . .
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
Further, we “may affirm the trial court’s decision regarding the
termination of parental rights with regard to any one subsection of section
2511(a).” In re M.T., 101 A.3d 1163, 1179 (Pa. Super. 2014) (en banc)
(citation omitted).
Section 2511(a)(1) provides as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.—The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
(1) The parent by conduct continuing for a period of at least six
months immediately preceding the filing of the petition either
- 13 -
J-S27018-22
has evidenced a settled purpose of relinquishing parental claim
to a child or has refused or failed to perform parental duties.
23 Pa.C.S. § 2511(a)(1).
To meet the requirements of [Section 2511(a)(1)], “the moving
party must produce clear and convincing evidence of conduct,
sustained for at least the six months prior to the filing of the
termination petition, which reveals a settled intent to relinquish
parental claim to a child or a refusal or failure to perform parental
duties.” The court must then consider “the parent’s explanation
for his or her conduct” and “the post-abandonment contact
between parent and child” before moving on to analyze Section
2511(b).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the
development of the child.” Rather, “[p]arental duty requires that
the parent act affirmatively with good faith interest and effort, and
not yield to every problem, in order to maintain the parent-child
relationship to the best of his or her ability, even in difficult
circumstances.”
In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018) (citations omitted).
With respect to “parental duties,” this Court has explained:
There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A child
needs love, protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely passive
interest in the development of the child. Thus, this Court has held
that the parental obligation is a positive duty which requires
affirmative performance. This affirmative duty . . . requires
continuing interest in the child and a genuine effort to maintain
communication and association with the child. Because a child
needs more than a benefactor, parental duty requires that a
parent exert himself to take and maintain a place of importance
in the child’s life.
In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (citations omitted and
formatting altered).
- 14 -
J-S27018-22
Moreover, “[p]arental duty requires that the parent act affirmatively
with good faith interest and effort, and not yield to every problem, in order to
maintain the parent-child relationship to the best of his or her ability, even in
difficult circumstances.” Id. (citation omitted). “A parent must utilize all
available resources to preserve the parental relationship, and must exercise
reasonable firmness in resisting obstacles placed in the path of maintaining
the parent-child relationship.” Id. (citation omitted).
Where the petitioners have presented clear and convincing evidence
that a parent has demonstrated a settled purpose of relinquishing parental
rights or has refused or failed to perform parental duties, “the court must
engage in three lines of inquiry: (1) the parent’s explanation for his or her
conduct; (2) the post-abandonment contact between parent and child; and
(3) consideration of the effect of termination of parental rights on the child
pursuant to Section 2511(b).” Matter of Adoption of Charles E.D.M., II,
708 A.2d 88, 92 (Pa. 1998) (citation omitted).
Additionally, this Court has explained that
[t]o be legally significant, the [post-abandonment] contact must
be steady and consistent over a period of time, contribute to the
psychological health of the child, and must demonstrate a serious
intent on the part of the parent to recultivate a parent-child
relationship and must also demonstrate a willingness and capacity
to undertake the parental role. The parent wishing to reestablish
his parental responsibilities bears the burden of proof on this
question.
In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (citations omitted).
- 15 -
J-S27018-22
Here, the trial court addressed the circumstances of Father’s efforts
towards reunification with the Children as follows:
Ms. Jackson testified she established SCP objectives for Father and
discussed the objectives with him. Father’s objectives were for
him to contact ARC services for parenting[,] undergo a parenting
capacity evaluation, undergo a home assessment, and
employment verification. She testified [that] she made several
referrals for parenting and also gave [Father] the contact
information for ARC so he could call himself; however, Father did
not attend. The referrals [Ms. Jackson] made were closed for non-
participation. Initially, Father told [Ms. Jackson] that he didn’t
feel like he should have to do parenting class because the incident
with J.B. did not occur while the child was with him. Then Father
told [Ms. Jackson] he had contacted ARC, but nobody got back to
him. Father finally did engage in March of 2021. Ms. Jackson
stated [that] Father never indicated to her or took any
responsibility for the reasons his Children remained in care. He
continued to blame the Mother.
Ms. Jackson noted Father’s home assessment was completed in
November 2019. The home was not structurally inappropriate
however, the issue was that [the Children] would have to share a
bedroom with Father’s other son who he has custody of. Recently,
Father told her that the Mother was taking care of housing, then
he told her he might be moving and would let her know when to
do a home assessment, which never occurred. At this point,
housing is an outstanding objective for Father.
Regarding the parenting capacity evaluation (PCE), Ms. Jackson
testified it was court ordered on [June 6,] 2019. Father had an
appointment scheduled for March 25, 2020. And they reached out
to him to a telephone number that was out of service. Therefore,
the evaluation remains an outstanding objective for Father.
Regarding visitation, Ms. Jackson testified Father was ordered to
do visitation twice a week for one hour, but in February 2020,
Father requested to do once a week for two hours. Father was
consistent with visitation up until October of 2019, at which point
he stated that his work schedule was a barrier and he wasn’t going
to be able to attend visits during the week. However, Father never
gave her a work schedule to verify in order to give him Saturday
visits until January of 2020. Father’s visits then became virtual in
- 16 -
J-S27018-22
March of 2020, and then Father completed three visits. After that
Father stopped the visiting because he said Zoom did not work for
him and at that point, he did not have any more visits until they
restarted in person in August 2020. Since then, Father visited
until November 2020. Two visits were cancelled because of
weather, and two visits with J.B. were not held because the child
did not want to attend. Father then missed three visits because
he was unable to attend because of work. By January 2021, J.B.
stated he did not want any more visits. Father did not want to do
visits just with M.J., so Father decided he would wait until J.B.,
wanted to rejoin the visits for the visits to restart. Visits then
restarted in April of 2021, because Father reached out to her and
asked her to restart the visits.
* * *
This court heard testimony from Father, who stated the Children
were not in his care when they were injured and that he did not
know of the injuries until months later when J.B. came to his
house. He testified that M.J. had not been born at that time and
the arrangement he had with Mother was that he would get J.B.
on the weekend and then drop him back with Mother. He stated
he did not get along with Mother, so he blocked her, and they did
not communicate and therefore did not see his son. Later they
communicated again, and he began seeing his son.
* * *
Regarding the FSP objectives, Father testified he did not complete
classes nor training because the “dropped the ball” and he was
losing money. Father testified he did not need classes because he
does not have any of the issues that brought his Children to care.
He stated it was “the baby mom department.” Father testified he
never missed a court date, except the last termination hearing in
June. It was a Zoom video and that’s why he did not show up.
He noted he has come to hearings for two years: “I’ve been going
to this circus show. I’ve always come here.”
Regarding visitation with [the] Children, Father testified he would
drive to see his son and they would not have any staff or it would
be miscommunication with other staff. He noted plenty of times
he would go up there and they did not have anybody there so he
could not see his son. He would complain but get no response.
Father testified visits were not made available to him and he would
drive up from work in New York at that time. He noted a couple
of visits were cancelled. Father stated when a lot of things were
- 17 -
J-S27018-22
shut down, he participated in virtual visits but stated the Foster
Mom was the problem[,] that she was acting up[, did] not pick up
the phone and he could not communicate with her. . . .
Trial Ct. Op. at 17-19 (some formatting altered).
After hearing Father’s testimony at the March 15, 2022 hearing, the trial
court explained:
So this case came back from the Superior Court to allow Father to
offer his version of the facts. And I have two complete binders of
notes of testimony which I have incorporated into the record which
has all of the testimony of the case workers. Specifically, notes
of testimony 4/28/21, and 6/1/21, the two hearings that I held.
And what I heard from father is a narrative, which he made up.
Completely untruthful, completely self-serving, completely
uncredible. We have a father who leaves these children. Says
that he spent time with them yet doesn’t even know the birth date
of his youngest child and struggled with the birth date of his oldest
child. Didn’t do a Parenting Capacity Evaluation. Didn’t complete
other services that were offered to him. And his excuse is, “I was
stressed out, or I was busy working.” It’s a picture of a person
who won’t let go but he doesn’t have the ability to parent these
two children. They’ve been in care for thirty-eight months. I see
the phenomena frequently. And the court reiterates its findings
which it found earlier now having the benefit of Father’s
testimony, which is completely made up and unbelievable. It
doesn’t change the facts. It doesn’t change the facts of this case
as established by the case workers at the first two hearings.
* * *
Father has this fanciful vision of him having some contact with
these children. The facts and the reality are quite different. He
has not been a father and will not likely be a father
notwithstanding this idea that he’s going to care for the children.
The Children have been cared for by the Department of Welfare.
And he’s not paying support for the children. He says he takes
care of them, yet the taxpayers take care of them. That’s the
harsh reality.
N.T. Hr’g, 3/15/22, at 53-55.
- 18 -
J-S27018-22
Following our review, we conclude that the trial court’s findings are
supported by competent, clear, and convincing evidence in the record, and we
find no error in the court’s legal conclusions. See S.P., 47 A.3d at 826-27.
The record reflects that, at the time of the termination hearing, the Children
had been in DHS’s care for thirty-seven-and-a-half months. See N.T. Hr’g,
3/15/22, at 40. Although Father has been aware of his SCP objectives
throughout the life of the case, he has made minimal progress towards
reunification. Specifically, in the six-month period preceding the termination
petition, Father refused to attend parenting classes, failed to undergo a
parenting capacity evaluation, did not complete a required housing
assessment, and failed to maintain consistent visitation with the Children.
Therefore, we agree with the trial court that, for a period far in excess of the
six-month statutory minimum, Father has refused to perform his parental
duties to the Children. See J.T.M., 193 A.3d at 409; see also B., N.M., 856
A.2d at 855.
With respect to the explanations for his conduct, Father repeatedly
stated that he failed to complete his SCP objectives because DHS “dropped
the ball.” N.T. Hr’g, 3/15/22, at 17, 36, 52. Further, he claimed that he did
not need parenting classes, he had adequate housing, and his missed visits
with the Children were caused by DHS. Id. at 17. Finally, Father explained
that while he “wasn’t ready” to care for M.J. in the past, he was now willing
and able to provide appropriate housing and care for the Children. Id. at 44.
- 19 -
J-S27018-22
However, in light the evidence presented by DHS at the termination hearings,
the trial court concluded that Father’s testimony was not credible.
Finally, we note that although Father attended some visits with the
Children throughout the life of the case and during the six-month period
preceding the termination petition,4 his inconsistent contact with the Children
was insufficient to “demonstrate a serious intent . . . to recultivate a parent-
child relationship” or “a willingness and capacity to undertake the parental
role.” Z.P., 994 A.2d at 1119 (citations omitted).
For these reasons, we discern no abuse of discretion by the trial court
in concluding that termination was appropriate under Section 2511(a)(1).
Accordingly, Father is not entitled to relief.
Section 2511(b)
Father also argues that DHS failed to present clear and convincing
evidence to prove that termination “would meet the best interests and
developmental, physical and emotional needs and welfare of [the Children].”
Father’s Brief at 31. In support, Father notes that “no expert, psychological
or therapeutic evidence or testimony was presented by DHS at trial to
establish that the permanent severing of all rights and relationship of [Father]
to his children would not cause significant detrimental effect or harm on [the
____________________________________________
4 As noted previously, although Father attended visits with the Children from
August until November of 2020, visitation ended after Father missed three
scheduled visits and J.B. decided he no longer wanted to see Father. Father
made no effort to resume those visits until April of 2021, two months after
DHS filed the petition to terminate Father’s parental rights.
- 20 -
J-S27018-22
Children].” Id. Further, he claims that “[n]o credible evidence was presented
at trial as to the potential harm and damage that may occur to [the Children]
as the result of permanently severing all relationship, contact and rights of
them to [Father].” Id. Instead, Father asserts that DHS presented “scant
and superfluous information on this critical issue, introduced from the non-
expert, non-psychological, non-therapeutic testimony of its social worker who
is unqualified to give such opinion as a lay person witness.” Id. Therefore,
Father argues that the trial court abused its discretion by concluding that
termination was in the Children’s best interests.
Section 2511(b) states in relevant part:
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent . . . .
23 Pa.C.S. § 2511(b).
“[T]he focus in terminating parental rights is on the parent, under
Section 2511(a), whereas the focus in Section 2511(b) is on the child.” In re
C.L.G., 956 A.2d 999, 1008 (Pa. Super. 2008) (en banc) (citation omitted).
This Court has explained:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
- 21 -
J-S27018-22
In addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, . . . the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond can be
severed without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations
omitted and formatting altered). “Common sense dictates that courts
considering termination must also consider whether the children are in a pre-
adoptive home and whether they have a bond with their foster parents.” In
re T.S.M., 71 A.3d 251, 268 (Pa. 2013) (citation omitted).
“In cases where there is no evidence of any bond between the parent
and child, it is reasonable to infer that no bond exists. The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the particular
case.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (citation
omitted). The question is whether the bond between the parent and the child
“is the one worth saving or whether it could be sacrificed without irreparable
harm to” the child. Id. at 764. “Section 2511(b) does not require a formal
bonding evaluation” and caseworkers may offer their opinions and evaluations
of the bond. Z.P., 994 A.2d at 1121 (citation omitted).
Here, the trial court addressed the Children’s best interests as follows:
Ms. Jackson testified she did not see a parent/child bond between
Father and the Children. J.B. has not been in contact with Father
recently and he has not displayed any negative effects of not
seeing Father. J.B. had requested not to continue visits with
Father, but visits were restarted in April 2021. Regarding M.J.,
who has been in care since he was an infant, the child has not
developed a bond with Father. Ms. Jackson opined that
- 22 -
J-S27018-22
reunification would not benefit the Children because of [the] lack
of parental bond with Father and that Father has failed to comply
with his SCP objectives. She opined the Children would not suffer
irreparable harm if Father’s parental rights were terminated and
it is in the Children’s best interests to be adopted.
Ms. Jackson stated the Children are currently in separate homes,
however, . . . one of the foster parents who is currently fostering
M.J. stated once she stabilized M.J., [there is a possibility that]
she would be willing to have [J.B. and Mother’s other child] join
their sibling at her house. Ms. Jackson opined [that the Children]
would benefit from positive long-term parental relationships.
On cross-examination by Blake Mammuth Esquire, GAL, Ms.
Jackson testified that M.J., who is two years old, receives
extensive developmental services because he is completely non-
verbal. In [Ms. Jackson’s] previous conversations with Father, he
expressed that he wanted custody of J.B. but not M.J. because he
was a baby and needed to be with his Mother. She stated J.B.,
who is seven years old, receives trauma therapy because he is
terrified of Mother and refers to her as a demon. Ms. Jackson has
contact with [J.B.’s] therapist, and adoption has been discussed
with him and [J.B.] understands. J.B. is very verbal for a child of
his age. J.B. is several grades ahead of other children because
the schoolwork is too easy for him, and at one point they were
talking about possibly skipping him to another grade.
* * *
This court heard credible, persuasive testimony from Mike Graves,
Esq., [J.B.’s legal counsel,] who testified he spoke to J.B. and
explained adoption and his other options. It appeared to
[Attorney Graves] that [J.B.] understood what adoption was and
told him he was fine where he was now. J.B. told him he would
like to be adopted, however, he also stated that he did want to
still have visitation with his parents and his prior caretakers.
Trial Ct. Op. at 18-19.
Based on our review of the record, we discern no abuse of discretion by
the trial court in concluding that termination of Father’s parental rights would
best serve the Children’s developmental, physical, and emotional needs and
- 23 -
J-S27018-22
welfare. See S.P., 47 A.3d at 826-27. As noted previously, the trial court
credited Ms. Jackson’s testimony that the Children did not share a bond with
Father and would not suffer irreparable harm if Father’s parental rights were
terminated. Although Father takes issue with the lack of expert testimony,
such evidence is not required in a termination proceeding. See Z.P., 994 A.2d
at 1121 (holding that Section 2511(b) does not require a formal bonding
evaluation and that caseworkers may offer their opinions and evaluations on
whether a bond exists). Therefore, we agree with the trial court that DHS
presented clear and convincing evidence demonstrating that termination of
Father’s parental rights would serve the Children’s best interests. See R.N.J.,
985 A.2d at 276. Further, although Father claims that he has not had the
chance to bond with M.J., this Court has stressed that “a child’s life cannot be
held in abeyance while a parent attempts to attain the maturity necessary to
assume parenting responsibilities.” Interest of D.R.-W., 227 A.3d 905, 914
(Pa. Super. 2020) (citation and brackets omitted). For these reasons, Father
is not entitled to relief.
Goal Change Orders
Father also argues that the trial court abused its discretion in changing
the Children’s goal from reunification to adoption by failing to give primary
consideration to the Children’s best interests. Father’s Brief at 31. However,
given our disposition concerning the termination of Father’s parental rights,
we conclude that his appeal from the goal change order is moot. See D.R.-
W., 227 A.3d at 917 (concluding that a goal change challenge is moot when
- 24 -
J-S27018-22
this Court affirms the decree terminating parental rights); see also In re
Adoption of A.H., 247 A.3d 439, 446 (Pa. Super. 2021) (stating that “the
effect of our decision to affirm the orphans’ court’s termination decree
necessarily renders moot the dependency court’s decision to change [a c]hild’s
goal to adoption” (citation omitted)). In any event, to the extent Father claims
that the trial court failed to give primary consideration to the Children’s best
interests, his claim is belied by the record for the reasons stated previously.
Therefore, Father is not entitled to relief.
For these reasons, we affirm the orders changing the Children’s
permanency goal from reunification to adoption and the decrees terminating
Father’s parental rights.
Orders and decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
- 25 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483538/ | J-A17022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: N.T., FATHER :
:
:
:
: No. 827 EDA 2022
Appeal from the Order Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0000699-2017
IN THE INTEREST OF: E.D.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: N.T., FATHER :
:
:
:
: No. 828 EDA 2022
Appeal from the Decree Entered March 15, 2022
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-AP-0000124-2022
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2022
N.T. (Father) appeals from the decree and order granting the petitions
filed by the Philadelphia County Department of Human Services (DHS),
involuntarily terminating his parental rights to his minor son, E.G (Child), and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A17022-22
changing Child’s permanency goal to adoption.1 Father argues that the trial
court erred in concluding that DHS presented clear and convincing evidence
supporting the termination of his parental rights and in changing Child’s
permanency goal to adoption. We affirm.
The facts underlying this matter are well known to the parties. On March
20, 2017, DHS obtained an order of protective custody (OPC) for Child after
receiving reports that Mother had abandoned him with his maternal
grandmother. See N.T Hr’g, 3/15/22, at 14-15. At that time, Father’s
whereabouts were unknown. Id.
The trial court held a shelter care hearing on March 22, 2017, at which
time Father was granted supervised visitation with Child. See Shelter Care
Order, 3/22/17, at 1. On July 13, 2017, the trial court adjudicated Child
dependent. See Order of Adjudication, 7/13/17, at 1. At the time of the
dependency hearing, Father was incarcerated. See id. Nevertheless, the
court granted Father biweekly supervised visitation with Child. See id.
Throughout the pendency of the case, the trial court held regular
permanency review hearings for Child. The court ordered Father to participate
in drug and alcohol treatment, parenting classes, and domestic violence
services, either while incarcerated or upon his release. Father did not provide
proof of completion for any of his permanency goals.
____________________________________________
1 On December 17, 2021, S.G. (Mother) signed the petition to voluntarily
relinquish her parental rights to Child. Trial Ct. Op., 9/27/22, at 1. The trial
court accepted the petition on March 15, 2022. See id. Mother did not file a
separate appeal and is not a party to the instant appeal.
-2-
J-A17022-22
On February 25, 2022, DHS filed a goal change petition and a petition
seeking the involuntary termination of Father’s parental rights. The trial court
held a combined termination and goal change hearing on March 15, 2022.2
DHS presented the testimony of Community Umbrella Agency (CUA) case
manager Beverly Jackson, and A.B., Child’s foster parent. Father testified on
his own behalf.
Ms. Jackson testified that throughout the history of the case, Father’s
single case plan objectives remained the same: maintain communication with
CUA, attend parenting classes and drug and alcohol treatment, and remain
consistent with visitation. N.T. Hr’g, 3/15/22, at 16. Ms. Jackson also stated
that she personally provided Father and his prison counselor with her contact
information, and that the address and phone number for CUA did not change
at any point during the case. Id. at 20-22. However, Ms. Jackson stated that
Father contacted her only one time and did not send letters or gifts for Child.
Id. at 21-26.
____________________________________________
2 Jay Stillman, Esq., served as Child’s guardian ad litem (GAL) throughout the
proceedings. Attorney Stillman argued that terminating Father’s parental
rights was in Child’s best interests. N.T. Hr’g, 3/15/22, at 2-6, 47-48. Regina
Charles-Asar, Esq., served as Child’s legal counsel during the termination
proceedings, and appeared at the hearing on his behalf. See id. at 2-6; see
also In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020). Attorney Charles-
Asar testified that Child was too young to give a preferred outcome and did
not understand adoption. N.T. Hr’g, 3/15/22, at 34. However, during her
meetings with Child, she observed that Child considered his foster family his
family and home, he was comfortable and bonded with his foster family
members, and he referred to his foster parent as “Mom.” See id.
-3-
J-A17022-22
Ms. Jackson also testified that she made “multiple attempts in trying to
get [Child] to have a virtual visit with [Father]” while Father was incarcerated
at SCI Benner, and she explained that it was “difficult to get through to
anyone” at the prison. Id. at 24. However, Ms. Jackson testified that even
after Father was released from prison, he did not consistently attend
supervised visitation with Child or complete his other objectives such as
parenting, housing, and drug and alcohol treatment. Id. at 17-18.
Ms. Jackson stated that she did not believe that Child shared a parental
bond with Father. Id. at 23. Child never asked about Father, and in the five
years that Child has been in care, Father did not provide any meaningful care
to him. Id. Child has lived with his pre-adoptive foster parent, A.B., since
June 2018 and shares a parental bond with her. Id. at 22. A.B. provides for
all of Child’s needs and has created a nurturing environment for him. Id. at
23-28. Ms. Jackson did not believe Child would suffer irreparable harm from
the termination of Father’s parental rights but would suffer harm if he were
removed from A.B.’s care. Id. at 26.
A.B. testified that Child has lived with her since he was seventeen
months old. Id. at 31. During this time, Father attended two or three
supervised, one-hour visits with Child. Id. at 31-32. A.B. wishes to adopt
Child, and Child refers to A.B. as “Mom.” Id. at 33.
Father testified that he was incarcerated at the time of Child’s birth until
early 2017. Id. at 36. A few months after his release, Father was again
arrested and incarcerated for an additional three years. Id. Father was
-4-
J-A17022-22
released in early 2021 and arrested again a few months later. Id. At the time
of the termination hearing, Father was incarcerated with a minimum release
date of October 23, 2022, and maximum release date of April 23, 2023.
Father admitted that he had been out of prison for only six or seven months
during Child’s life. Id. at 36-37.
When asked about the frequency of his visits with Child, Father testified:
Well, from the point I got locked up in October,[3] I was in contact
with [Child’s] mother, [who] was doing visitation on Thursdays. I
would set it up to where I would be able to get on the phone or I
would do video visitations with her and I would be able to
communicate with [Child] like that. I would be able to talk to him
through video visitation with her. And I was doing -- whenever
she would get him, I would call her at the time and do a video
visitation and I’d be able to talk to him like that.
Id. at 39.
Father stated that when he was incarcerated at SCI Smithfield, he spent
thirty days in quarantine, followed by thirty days in solitary confinement,
during which time he was unable to speak with anyone. Id. Father stated
that he was later moved to SCI Benner, where he completed a thirty-day
quarantine and then attempted to contact Ms. Jackson about visitation. Id.
at 39-40.
Father stated that he was aware of the court orders requiring him to
complete drug and alcohol counseling and violence prevention classes. Id. at
38. Father claimed to be involved in a three-month program called “Thinking
____________________________________________
3 It is unclear from the record where Father was incarcerated before he was
transferred to SCI Smithfield.
-5-
J-A17022-22
for a Change,” and stated that he had previously completed six months of the
required treatment. Id. However, he acknowledged that SCI Benner did not
provide parenting classes. Id. When asked whether he faced barriers in
communicating with people outside of the prison, Father replied: “No. I have
to put numbers on my list . . . . They got to do a background check on that
person to be able to get on my phone list. [I] can communicate through
personal letters . . . .” Id. at 41. Father admitted he had never sent any
letters or gifts to Child. Id. at 45.
At the conclusion of the hearing, the trial court terminated Father’s
parental rights pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and (b),
and changed Child’s permanency goal to adoption.
Father simultaneously filed a timely notice of appeal and a statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i). Following
remand, the trial court issued a Pa.R.A.P. 1925(a) opinion addressing Father’s
claims.
On appeal, Father raises the following issues, which we have re-ordered
as follows:
1. Did the [trial court] err in terminating parental rights where the
Commonwealth, in the form of the prison, interfered with
Father’s ability to communicate with the CUA worker and
[Child,] by failing to have telephone systems with voice mail
and by failing to set up virtual visits with [Child]?
2. Did the [trial court] err in granting the goal change from
reunification to adoption where Father would be released from
custody in a few months?
-6-
J-A17022-22
Father’s Brief at 7-8 (formatting altered).
Termination of Parental Rights
In his first claim, Father challenges the trial court’s order involuntarily
terminating his parental rights.
We begin by stating our standard of review:
The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations omitted and formatting
altered). “[T]he trial court is free to believe all, part, or none of the evidence
presented, and is likewise free to make all credibility determinations and
resolve conflicts in the evidence.” In re Q.R.D., 214 A.3d 233, 239 (Pa.
Super. 2019) (citation omitted).
The burden is on the petitioner “to prove by clear and convincing
evidence that [the] asserted grounds for seeking the termination of parental
rights are valid.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009). We
have explained that “[t]he standard of clear and convincing evidence is
defined as testimony that is so clear, direct, weighty and convincing as to
-7-
J-A17022-22
enable the trier of fact to come to a clear conviction, without hesitance, of the
truth of the precise facts in issue.” Id. (citation and quotation marks omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
that the parent’s conduct satisfies the statutory grounds for
termination delineated in Section 2511(a). Only if the court
determines that the parent’s conduct warrants termination of his
or her parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of the
needs and welfare of the child under the standard of best interests
of the child. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We note
that we need only agree with the trial court as to any one subsection of Section
2511(a), as well as Section 2511(b), to affirm an order terminating parental
rights. In re B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004).
Section 2511(a)(2)
Initially, we note that Father does not specifically direct his arguments
to any specific subsection of the statute. Instead, Father argues that the trial
court erred in terminating his parental rights under Section 2511(a). Father’s
Brief at 26-31. Nevertheless, in support of his challenge to the sufficiency of
the evidence supporting the termination of his parental rights, he asserts that
SCI Benner failed to provide for “communications between prison staff as well
as inmates with outside social workers . . . and failure of the Pennsylvania
-8-
J-A17022-22
prison to provide for visits between prisoners and their children through
video.” Id. at 28. He argues that the prison’s failings prevented him from
maintaining a relationship with Child. See id. at 30. Essentially, Father
concludes that the prison prevented him from rectifying his parental
incapacity. See id.
Section 2511(a)(2) provides, in relevant part, as follows:
§ 2511. Grounds for involuntary termination
(a) General rule.—The rights of a parent in regard to a child may
be terminated after a petition filed on any of the following
grounds:
* * *
(2) The repeated and continued incapacity, abuse, neglect or
refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary for his
physical or mental well-being and the conditions and causes of
the incapacity, abuse, neglect or refusal cannot or will not be
remedied by the parent.
23 Pa.C.S. § 2511(a)(2).
To satisfy the requirements of [Section] 2511(a)(2), the moving
party must prove (1) repeated and continued incapacity, abuse,
neglect or refusal; (2) that such incapacity, abuse, neglect or
refusal caused the child to be without essential parental care,
control or subsistence; and (3) that the causes of the incapacity,
abuse, neglect or refusal cannot or will not be remedied. The
grounds for termination are not limited to affirmative misconduct,
but concern parental incapacity that cannot be remedied.
In re C.M.K., 203 A.3d 258, 262 (Pa. Super. 2019) (citations and quotation
marks omitted).
Further, this Court has explained:
-9-
J-A17022-22
The grounds for termination of parental rights under Section
2511(a)(2), due to parental incapacity that cannot be remedied,
are not limited to affirmative misconduct.
Unlike subsection (a)(1), subsection (a)(2) does not emphasize a
parent’s refusal or failure to perform parental duties, but instead
emphasizes the child’s present and future need for essential
parental care, control or subsistence necessary for his physical or
mental well-being. Therefore, the language in subsection (a)(2)
should not be read to compel courts to ignore a child’s need for a
stable home and strong, continuous parental ties, which the policy
of restraint in state intervention is intended to protect. This is
particularly so where disruption of the family has already occurred
and there is no reasonable prospect for reuniting it.
Thus, while sincere efforts to perform parental duties, can
preserve parental rights under subsection (a)(1), those same
efforts may be insufficient to remedy parental incapacity under
subsection (a)(2). Parents are required to make diligent efforts
toward the reasonably prompt assumption of full parental
responsibilities. A parent’s vow to cooperate, after a long period
of uncooperativeness regarding the necessity or availability of
services, may properly be rejected as untimely or disingenuous.
In re Z.P., 994 A.2d 1108, 1117-18 (Pa. Super. 2010) (citations omitted and
formatting altered).
With respect to incarcerated parents, our Supreme Court has held that
“incarceration, while not a litmus test for termination, can be determinative of
the question of whether a parent is incapable of providing essential parental
care, control[,] or subsistence[.]” In re Adoption of S.P., 47 A.3d 817, 830
(Pa. 2012) (citation and quotation marks omitted). Further,
[e]ach case of an incarcerated parent facing termination must be
analyzed on its own facts, keeping in mind . . . that the child’s
need for consistent parental care and stability cannot be put aside
or put on hold. Parental rights are not preserved by waiting for a
more suitable or convenient time to perform one’s parental
responsibilities while others provide the child with his or her
physical and emotional needs. Rather, a parent must utilize all
- 10 -
J-A17022-22
available resources to preserve the parental relationship, and
must exercise reasonable firmness in resisting obstacles placed in
the path of maintaining the parent-child relationship.
Importantly, a parent’s recent efforts to straighten out [his] life
upon release from incarceration does not require that a court
indefinitely postpone adoption.
Interest of K.M.W., 238 A.3d 465, 474 (Pa. Super. 2020) (en banc)
(citations omitted and formatting altered). Additionally, this Court has
stressed that “a child’s life cannot be held in abeyance while a parent attempts
to attain the maturity necessary to assume parenting responsibilities.”
Interest of D.R.-W., 227 A.3d 905, 914 (Pa. Super. 2020) (citation omitted
and formatting altered).
In the instant case, Child was almost six years old at the time of the
termination hearing. See N.T. Hr’g, 3/15/22, at 36, 41. During his testimony,
Father admitted that he had been incarcerated for all but six or seven
months of Child’s life. Father also testified to his inability to change his ways,
noting that he had been incarcerated for the majority of his life from the time
he was approximately thirteen years old. See id. at 42-43. Father testified
that although he had been released from custody several times, he was never
“on the street” for more than six months at a time. See id. However, even
while not incarcerated, Ms. Jackson testified that Father failed to consistently
attend visitation, attending only two or three one-hour visits with Child. See
id. at 17, 31-32.
Further, although both Father and the CUA case manager testified
regarding the difficulties of setting up video visitation, the case manager also
- 11 -
J-A17022-22
testified that Father never wrote letters or cards to Child, sent gifts, or
attempted to contact CUA in any other way. See id. at 19-26. Although
Father claimed that he had written letters to CUA, the trial court credited Ms.
Jackson’s testimony over Father’s. See id. at 20-21, 25-26. While Father
testified that he had participated in some programming in the prison, as of
the date of the termination hearing, he had not provided proof of completion
of any of his permanency goals and had never informed his case manager of
the same. See id. at 20-26, 38-39.
In addressing the termination of Father’s parental rights, the trial court
emphasized that Father had not consistently visited with Child following his
release from prison, and that Father had not cared for Child or spent any time
with him outside of a small number of supervised visits. See id. at 49-51.
Additionally, the court noted that Father contacted his case worker only once,
and had never sent cards or letters to Child. See id. Although Father testified
that he wished to make a change in his life, the court observed that Father
had been in and out of prison since the age of twelve and that Child had been
in foster care since he was approximately seventeen months old. See id.
In its Rule 1925(a) opinion, the trial court explained:
Father’s current incarceration and his pattern of incarceration
throughout most of [Child’s] life is highly relevant to whether
Father is presently able to provide [Child] with proper parental
care. Nevertheless, Father’s incarceration was not the sole reason
this Court involuntarily terminated Father’s parental rights. While
Father has been repeatedly incarcerated throughout the case,
there were periods of time when Father was released from
incarceration. However, Father failed to engage in his single case
plan objectives and failed to consistently visit [Child] while out of
- 12 -
J-A17022-22
custody. The testimony reflects that Father attended only two or
three in-person visits with [Child] throughout the time he was not
incarcerated. Father participated in [Child’s] adjudicatory hearing
and has been aware of his single case plan objectives, yet he failed
to complete them.
While there have been some limitations due to Father’s
incarceration which have affected his ability to complete his SCP
objectives, Father failed to make a substantial effort to overcome
these obstacles. Ms. Jackson provided Father with her contact
information, as well as the contact information and mailing
address for the CUA agency. Father could have communicated
with CUA by phone or by mail, yet Father failed to maintain
consistent contact with CUA throughout the case. Father also
failed to maintain meaningful contact with [Child] while in and out
of incarceration. He never inquired into [Child’s] wellbeing and
has never sent [Child] any letters, cards, or gifts throughout the
time he has been in care despite having a mailing address and
contact information for the CUA agency and case manager. Father
was advised to add Ms. Jackson and [Child] to his prison contact
list so that he could maintain contact with CUA and visit with
[Child], but he failed to do so.
For these reasons, Father has demonstrated that circumstances
which brought [Child] into care continue to exist. Father is
currently unable to provide proper care for [Child] due to his
incarceration. His inaction and lack of meaningful contact in
[Child’s] life [have] demonstrated that he cannot or will not
remedy the conditions which led to placement once he is released
from incarceration. Throughout the majority of the case and time
that Father has been incarcerated, [Child] has been in the care of
his Foster Parent. Foster Parent has been meeting [Child’s] basic
needs, as well as his medical, emotional, and educational needs.
Father has never provided parental care for [Child,] nor has he
ever met any of [Child’s] needs. Due to Father’s repeated
incarceration throughout his life, [Child] does not know Father as
his father, does not look to him to meet his needs, and is not
bonded to Father. [Child] has resided with the Foster Parent for
most of his life, and she has essentially been the only parent he
has ever known.
The earliest date that Father could be released from SCI Benner
is October 23, 2022. However, his maximum release date is
October 23, 2024. At the time of the [termination of parental
rights (TPR)] hearing in March 2022, Father’s parole hearing had
- 13 -
J-A17022-22
not occurred to determine a definite release date. At the time of
the TPR hearing, Father had at least seven more months of
incarceration before he would be eligible for parole. [Child] has
been in care for over five years—almost his entire life. His
permanency and stability should not be put on hold waiting to see
if Father will be released from prison at his earliest release date
and prepared for reunification.
Trial Ct. Op., 9/27/22, at 16-18 (formatting altered).
Our review of the record confirms that the trial court’s findings are
supported by competent, clear, and convincing evidence. See T.S.M., 71
A.3d at 267. Further, we find no error in the trial court’s legal conclusions.
Id. We recognize that Father has been incarcerated for a substantial portion
of Child’s life, and that there were limitations on Father’s ability to remedy his
parental incapacity during that time. However, as noted by the trial court, the
record reflects that Father failed to make any real efforts towards
reunification, either while he was in prison or after his release. See S.P., 47
A.3d at 830. Therefore, the trial court did not abuse its discretion by
terminating Father’s parental rights to Child pursuant to Section 2511(a)(2).
See C.M.K., 203 A.3d at 262. Accordingly, Father is not entitled to relief.
Section 2511(b)
Father also challenges the trial court’s termination under Section
2511(b). However, Father does not address the requirements of Section
2511(b) with any specificity, nor does he make any argument regarding
Section 2511(b) in his brief. While we could find Father’s claim waived on this
basis, we will nonetheless address Child’s best interests on appeal. See In
- 14 -
J-A17022-22
re C.L.G., 956 A.2d 999, 1009 (Pa. Super. 2008) (en banc) (addressing the
best interests of the child under Section 2511(b) sua sponte).
Section 2511(b) states in relevant part:
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. . . .
23 Pa.C.S. § 2511(b).
“[T]he focus in terminating parental rights is on the parent, under
Section 2511(a), whereas the focus in Section 2511(b) is on the child.”
C.L.G., 956 A.2d at 1008 (citation omitted). This Court has explained:
While a parent’s emotional bond with his or her child is a major
aspect of the subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
In addition to a bond examination, the trial court can equally
emphasize the safety needs of the child, and should also consider
the intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. Additionally, . . . the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond can be
severed without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa. Super. 2015) (citations
omitted and formatting altered). “Common sense dictates that courts
considering termination must also consider whether the children are in a pre-
- 15 -
J-A17022-22
adoptive home and whether they have a bond with their foster parents.”
T.S.M., 71 A.3d at 268 (citation omitted).
“In cases where there is no evidence of any bond between the parent
and child, it is reasonable to infer that no bond exists. The extent of any bond
analysis, therefore, necessarily depends on the circumstances of the particular
case.” In re K.Z.S., 946 A.2d 753, 762-63 (Pa. Super. 2008) (citation
omitted). The question is whether the bond between the parent and the child
“is the one worth saving or whether it could be sacrificed without irreparable
harm to” the child. Id. at 764. “Section 2511(b) does not require a formal
bonding evaluation” and caseworkers may offer their opinions and evaluations
of the bond. Z.P., 994 A.2d at 1121 (citation omitted).
In weighing the bond considerations pursuant to Section 2511(b),
“courts must keep the ticking clock of childhood ever in mind. Children are
young for a scant number of years, and we have an obligation to see to their
healthy development quickly. When courts fail, . . . the result, all too often,
is catastrophically maladjusted children.” T.S.M., 71 A.3d at 269. Finally, we
reiterate that the court may emphasize the safety needs of the child. In re
N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011).
Here, at the termination hearing, Ms. Jackson’s testimony established
that Father had seen Child only a handful of times over the last five years,
and that they did not share any bond, let alone a parent-child bond. See N.T.
Hr’g, 3/15/22, at 23-25, 31-36, 41. The record also reflects that Child has a
healthy, loving parental bond with A.B., and Child calls A.B. “Mom.” See id.
- 16 -
J-A17022-22
at 23-28. Further, Father did not testify regarding the existence of any
parental bond with Child and admitted he had never sent him a letter, card,
or gift. See id. at 36-45.
In addressing Child’s best interests, the trial court explained:
[Child] would not suffer any irreparable harm if Father’s parental
rights were terminated. [Child] has been in DHS care since an
OPC was obtained in March 2017. He has continuously resided
with his current Foster Parent since June 2018 when he was
approximately 17 months old. [Child] is now six years old and
has spent his entire life outside of the care and control of Father.
There was compelling testimony presented at the TPR hearing that
[Child] does not know Father as his Father, and he does not have
a parent-child bond with him. Furthermore, Father’s visits with
[Child] continue to be supervised and have never progressed to
unsupervised. During the short periods of time when Father was
not incarcerated, he did not consistently visit [Child]. Father
testified that he could communicate with the outside world as long
as he added individuals to his contact list. While one of Father’s
SCP objectives was to add CUA and [Child] to his contact list, there
is no testimony that Father ever did so. Nevertheless, Ms. Jackson
made several attempts to arrange virtual visits between Father
and [Child] at the prison and help Father establish a relationship
with [Child].
In determining the best interest of the child, this court must
consider the needs and welfare of the child such as love, comfort,
security, and stability. [Child] does not look to Father to meet
these needs. Throughout the time [Child] has been in DHS care,
Father has never been a parent to [Child] and has never spent
any time with [Child] outside of supervised visits. Father has
never provided [Child] with care and comfort, nor has he attended
to [Child’s] medical, emotional, or educational needs. Throughout
the time he was incarcerated, Father never sent [Child] any
letters, cards, or gifts although CUA case manager provided him
with a mailing address. While Father asserts that he wants to be
a part of [Child’s] life, it is clear that Father is not in a position
where [he] is able to be reunified with [Child].
On the contrary, [Child’s] foster parent provides him with love,
support, care, comfort and stability. [Child] looks to her to meet
- 17 -
J-A17022-22
his basic needs. Ms. Jackson testified that [Child] shares a
parental bond with his foster parent, and described their
relationship as “very nurturing.” He is well-adjusted in the home
and has lived there most of his life. [Child’s] Foster Parent
[testified that Child] calls her “mom” and she considers him as her
child. Additionally, Foster Parent’s home is a pre-adoptive home
for [Child]. [Child’s legal] counsel had the opportunity to observe
[Child] in Foster Parent’s home. [Child’s legal] counsel stated that
another child also lives in Foster Parent’s home, who [Child]
considered his sibling. She stated that while [Child] did not
understand the concept of adoption, he considered the Foster
Parent and foster-sibling to be his family and home. [Child’s legal]
counsel indicated that [Child] appeared comfortable, at ease, and
bonded with everyone in the home. Ms. Jackson testified that
[Child] would suffer irreparable harm if he were removed from
Foster Parent’s home.
Clear and convincing evidence has been presented to establish
that there would be no irreparable harm caused to [Child] if this
court terminated Father’s parental rights. [Child] deserves
permanency and should not wait indefinitely.
Trial Ct. Op., 9/27/22, at 23-25 (formatting altered).
Following our review of the record, we discern no abuse of discretion by
the trial court. See T.S.M., 71 A.3d at 267. The record supports the trial
court’s conclusion that there was no bond between Father and Child, that A.B.
fulfills a parental role for Child, and that there would be no irreparable harm
to Child if Father’s parental rights were terminated. See K.Z.S., 946 A.2d at
764. Accordingly, the trial court did not abuse its discretion in concluding that
the termination of Father’s parental rights would best serve Child’s
developmental, physical, and emotional needs and welfare. See C.L.G., 956
A.2d at 1008-10. Therefore, Father is not entitled to relief on this issue.
- 18 -
J-A17022-22
Goal Change
In his final issue, Father contends that the trial court erred in changing
Child’s permanency goal to adoption. Father’s Brief at 22-26. Father contends
that the trial court should have considered that Father could have been
released from custody as soon as October 23, 2022, and that Child could have
continued to reside with his foster parent until that time. See id. at 25-26.
Father contends that upon release, he would have had the opportunity to build
a relationship with Child and demonstrate that the reasons for Child’s
placement in foster care had been successfully alleviated. See id. at 26.
At the outset, we note that Father’s challenge to the goal change is moot
based on our decision to affirm the order terminating Father’s parental rights
under Section 2511(a)(2) and (b). See Interest of A.M., 256 A.3d 1263,
1272-73 (Pa. Super. 2021). In any event, for the reasons stated herein
concerning Child’s best interests, we discern no abuse of discretion or error of
law in the trial court’s determination that a goal change to adoption was in
Child’s best interests. See 42 Pa.C.S. § 6351(f) (setting forth the factors for
a goal change determination); In re R.M.G., 997 A.2d 339, 345, 347 (Pa.
Super. 2010) (noting that “goal change decisions are subject to an abuse of
discretion standard of review” and that a child’s safety, permanency, and well-
being take precedence over all other considerations in a goal change decision
(citation omitted)).
Therefore, even if we were to consider Father’s challenge to the order
changing Child’s goal to adoption, we would not disturb the trial court’s
- 19 -
J-A17022-22
determination that Child’s need for permanency outweighed Father’s hopes to
reunify with Child in the future. See R.M.G., 997 A.2d at 347. For these
reasons, we affirm the trial court’s order.
Decree affirmed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
- 20 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483476/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In Adolfo Serrano
Appellate case number: 01-22-00734-CV
Trial court case number: 2022-21527
Trial court: 234th District Court of Harris County
Relator, Adolfo Serrano, filed a petition for writ of mandamus, asking this Court to vacate
the trial court’s order signed on October 4, 2022 granting the motion to compel filed by Quincey
Chavis, Individually, and Quincy Chavis A/N/F of B.C.
The Court requested a response from real parties but no response was filed. It has come to
the Court’s attention that the trial court may have vacated its October 4, 2022 order. If the order
challenged in this original proceeding has been vacated, then the original proceeding may be moot.
See In re Chaiken, No. 01-21-00200-CV, 2022 WL 3588716, at *1 (Tex. App.—Houston [1st
Dist.] Aug. 23, 2022, orig. proceeding) (dismissing as moot petition for writ of mandamus because
orders challenged in petition were vacated).
Accordingly, unless relator files a response within 10 days from the date of this order,
explaining why this original proceeding is not moot, the Court will dismiss the proceeding as moot.
It is so ORDERED.
Judge’s signature: /s/ Richard Hightower
Acting individually
Date: November 8, 2022 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483482/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00430-CV
___________________________
IN RE CONNIE RAY PALMER, Relator
Original Proceeding
78th District Court of Wichita County, Texas
Trial Court No. 43,866-B
Before Womack, Birdwell, and Walker, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
The court has considered relator’s petition for writ of mandamus and is of the
opinion that relief should be denied. Accordingly, relator’s petition for writ of
mandamus is denied.
Per Curiam
Delivered: November 10, 2022
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483481/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00417-CV
___________________________
IN RE: THE COMMITMENT OF JAMES LAWRENCE BROWNING
On Appeal from the 271st District Court
Wise County, Texas
Trial Court No. CV21-03-136
Before Sudderth, C.J.; Kerr and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
After a jury found that Appellant James Lawrence Browning was a sexually
violent predator, the trial court signed a final judgment and order civilly committing
him. See Tex. Health & Safety Code Ann. §§ 841.003, .081. On appeal, Browning
raises three issues:
1. Is the evidence factually sufficient to support the jury’s implicit finding
that Browning suffers from a behavioral abnormality, an indispensable
element of a sexually violent predator inquiry?
2. Did the trial court reversibly err by limiting Browning’s examination
of the venire panelists regarding their capacity to afford him a fair trial in
a case involving a child victim?
3. Did the trial court reversibly err by preventing Browning’s expert
witness from explaining how her opinion is informed by the legislative
findings?
Holding that (1) the evidence is factually sufficient, (2) the trial court did not
improperly limit Browning’s examination of the venire panel, and (3) the trial court
did not err by prohibiting Browning’s expert from discussing the legislative findings,
we overrule Browning’s issues and affirm the trial court’s judgment.
II. OVERVIEW
The statute governing the civil commitment of sexually violent predators states
that a person is a sexually violent predator if the person “(1) is a repeat sexually
violent offender; and (2) suffers from a behavioral abnormality that makes the person
likely to engage in a predatory act of sexual violence.” Id. § 841.003(a).
2
Browning does not dispute that the State met the first prong. The evidence
showed that (1) in 1985, Browning was convicted of aggravated sexual assault and
received a ten-year sentence; (2) in March 1994, Browning was convicted of indecency
with a child by contact and received a thirty-five-year sentence; and (3) in July 1994,
Browning was convicted of sexual assault and received a thirty-year sentence.
Regarding the second prong, the statutory definition of “behavioral
abnormality” is “a congenital or acquired condition that, by affecting a person’s
emotional or volitional capacity, predisposes the person to commit a sexually violent
offense, to the extent that the person becomes a menace to the health and safety of
another person.” Id. § 841.002(2). At the heart of the second prong is the person’s
ability to control the behavior. In re Commitment of Gonzalez, No. 02-21-00238-CV,
2022 WL 1183219, at *9 (Tex. App.—Fort Worth Apr. 21, 2022, pet. denied) (mem.
op.), cert. denied, 2022 WL 6573224 (U.S. Oct. 11, 2022) (No. 22-5521); In re
Commitment of Thompson, No. 06-20-00024-CV, 2020 WL 6066205, at *1 (Tex. App.—
Texarkana Oct. 15, 2020, pet. denied) (mem. op.).
III. DISCUSSION
A. Factual Insufficiency
In his first issue, Browning claims that the evidence is factually insufficient to
support findings beyond a reasonable doubt that Browning (1) is a sexually violent
predator, (2) had serious difficulty controlling his behavior at the time of trial, and
(3) suffers from a behavioral abnormality that makes him likely to engage in a
3
predatory act of sexual violence. The record, however, contains factually sufficient
evidence to support each of the challenged findings.
1. Standard of Review
A properly conducted factual-sufficiency review in a sexually-violent-predator
case requires the appellate court to determine whether, on the entire record, a
reasonable factfinder could find beyond a reasonable doubt that the defendant is a
sexually violent predator. In re Commitment of Stoddard, 619 S.W.3d 665, 668 (Tex.
2020). When doing so, the appellate court may not commandeer the jury’s role of
determining the witnesses’ credibility and the weight to be given their testimony. Id.
If a reasonable factfinder could do so, the court presumes that the factfinder resolved
disputed evidence in a manner consistent with the finding. Id. Finally, if—in light of
the entire record—the contrary evidence is so significant that the factfinder could not
have made its finding beyond a reasonable doubt, then the evidence supporting the
verdict is factually insufficient. Id.
Articulated differently, in a sexually-violent-predator case, where the burden of
proof is beyond a reasonable doubt, if, in light of the entire record, (1) a reasonable
factfinder could not have credited the disputed evidence in favor of the sexually-
violent-predator finding and (2) the undisputed facts not supporting the finding are so
significant that the factfinder could not have found beyond a reasonable doubt that
the statutory elements were met, then the evidence is factually insufficient. Id. at 675.
4
The jury alone judges the credibility of the witnesses and the weight to be given
their testimony. In re Commitment of Mullens, 92 S.W.3d 881, 887 (Tex. App.—
Beaumont 2002, pet. denied). When resolving conflicts and contradictions in the
evidence, the jury may believe all, part, or none of the witnesses’ testimony. Id.
Further, from basic facts, a jury may draw reasonable inferences to ultimate facts. Id.
This remains true even when juries weigh opinion evidence and the judgment of
experts. Kirkpatrick v. Mem’l Hosp. of Garland, 862 S.W.2d 762, 772 (Tex. App.—Dallas
1993, writ denied); see David Rafes, Inc. v. Huml, No. 01-08-00856-CV, 2009 WL
3491043, at *6 (Tex. App.—Houston [1st Dist.] Oct. 29, 2009, no pet.) (mem. op.).
The jury decides which expert to believe. Kirkpatrick, 862 S.W.2d at 772. “If the jury
has evidence sufficient that reasonable minds could differ, we may not substitute our
judgment for that of the jury.” Id.
2. Application
a. Abnormal Behavior
Browning’s three offenses themselves illustrated behavior that a rational
factfinder could have determined were well outside the bounds of normal behavior,
that is, that Browning’s behavior was abnormal. Browning discussed his offenses
with two psychologists, Dr. Timothy Proctor, who testified on behalf of the State, and
Dr. Marisa Mauro, who testified on Browning’s behalf. Both experts considered their
conversation with Browning and the record when evaluating the nature and
implications of Browning’s offenses. See Tex. R. Evid. 703.
5
(1) 1985 Aggravated Sexual Assault
Regarding Browning’s first sexual offense (the 1985 aggravated sexual assault),
Browning told both Dr. Proctor and Dr. Mauro that he was angry at the victim,
Cathy,1 for not paying him for some work that he had done and that he had wanted to
degrade her. According to Browning, Cathy was less than tactful when declining to
pay him; laughing at and mocking him did not help. Browning beat her up, grabbed
her by the hair, put her on the ground, banged her head against the floor, bit her and
left bite marks on her back, choked her, pulled out her pubic hair, forced her to
perform oral sex on him, and penetrated her vagina with his penis, causing a
laceration on her vagina. Browning had a knife but denied threatening her with it.
Cathy, however, had allegedly indicated that Browning had used a knife and had
threatened to cut off her breasts or nipples. Finally, during a deposition, Browning
stated that hurting her had aroused him sexually.
(2) March 1994 Indecency with a Child by Contact
Browning’s second victim was his ten- or eleven-year-old stepdaughter, Alice.
Browning clarified that he was just living with the girl’s mother; but the girl called him
dad, so he called her his stepdaughter. He acknowledged touching her breasts and
touching or penetrating her vagina with his finger “[p]robably twice” with the intent
to arouse and gratify his own sexual desire. Alice alleged that she had touched
1
We use a pseudonym to protect the identities of Browning’s three victims. See
Tex. R. App. P. 9.9(a), 9.10(a); 2d Tex. App. (Fort Worth) Loc. R. 7.
6
Browning’s penis, but he asserted that she had not touched him in any way. At the
time of the offense, Browning was having sex with Alice’s mother and three other
women.
(3) July 1994 Sexual Assault
Browning’s third victim was his fourteen- or fifteen-year-old biological
daughter, Betty. Browning related that they had sex three times in three different
places. Betty put the number of occasions at “up to seven.” Regarding the first time,
Browning explained, “We went for a ride on a motorcycle. And on the way back, we
stopped at the bridge to talk. And we [were] leaning against the bridge, and she put
herself in my lap[,] and we went in the woods and had sex.” By his estimate,
Browning had been estranged from Betty since 1976,2 but she came to stay with
Browning at Browning’s suggestion when she was fourteen or fifteen years old. The
offenses started occurring within a few weeks after Betty had come back into his life.
Browning denied threatening Betty, but the record indicated otherwise. When
asked what kind of threats Browning had allegedly made to Betty, Dr. Proctor
responded,
Threats about blowing [Betty] away, killing her, that -- that he would
offend against [Alice] if [Betty] didn’t acquiesce, which, of course, he --
2
Browning estimated Betty’s age in 1976 initially at six or seven years old,
revised it to two years old, and then admitted that he did not know in what year she
had been born.
7
he -- he offended against [Alice] anyway.[3] There’s even indications that
-- that he had told people that he was -- had traded [Betty] for drugs and
that there were other -- another man, at least, that was going to be able
to have sex with her because of that.[4]
b. Recidivism
The evidence showed that incarceration did not dissuade Browning from
committing new offenses. Because mandatory supervision plays a prominent role in
this discussion, we first explain what mandatory supervision is.
“Mandatory supervision” means “the release of an eligible inmate sentenced to
the institutional division so that the inmate may serve the remainder of the inmate’s
sentence not on parole but under the supervision of the pardons and paroles
division.” Tex. Gov’t Code Ann. § 508.001(5). The release is mandatory and is
triggered when the inmate meets certain conditions:
§ 508.147. Release to Mandatory Supervision
(a) Except as provided by Section 508.149,[5] a parole panel shall order
the release of an inmate who is not on parole to mandatory supervision
when the actual calendar time the inmate has served plus any accrued
good conduct time equals the term to which the inmate was sentenced.
(b) An inmate released to mandatory supervision is considered to
be released on parole.
3
According to the indictments, the offense against Alice occurred on May 31,
1992, and the offense against Betty occurred about two weeks later, on June 15, 1992.
4
At trial, Browning denied selling Betty for drugs.
5
This section is entitled “Inmates Ineligible for Mandatory Supervision.” Id.
§ 508.149.
8
(c) To the extent practicable, arrangements for the inmate’s
proper employment, maintenance, and care must be made before the
inmate’s release to mandatory supervision.
Id. § 508.147. In contrast, parole is a discretionary release: “Parole” means “the
discretionary and conditional release of an eligible inmate sentenced to the
institutional division so that the inmate may serve the remainder of the inmate’s
sentence under the supervision of the pardons and paroles division.” Id. § 508.001(6).
(1) 1985 Aggravated Sexual Assault
Browning committed the 1985 aggravated sexual assault offense right after
discharging his mandatory supervision for a non-sex-related offense, burglary of a
habitation. This meant that Browning had already been to prison and had been
released when he committed the aggravated sexual assault.
(2) March 1994 Indecency with a Child by Contact and
July 1994 Sexual Assault
And while Browning was on mandatory supervision for the 1985 aggravated
sexual assault, he committed the two other sexual offenses. This meant that
Browning had already been to prison for a sexual offense when he committed two
more sexual offenses.
(3) Sexual Misconduct While in Prison
Browning had two sexual misconduct cases while in prison, which both experts
considered when making their determinations. See Tex. R. Evid. 703. The first one
9
was in 1995, and the second one was in 2007. Both involved indecent exposure. See
Tex. Penal Code Ann. § 21.08.
c. Dueling Experts
Dr. Proctor concluded that Browning was a sexually violent predator. Dr.
Mauro concluded the contrary, that is, that Browning was not a sexually violent
predator. Both Dr. Proctor and Dr. Mauro set out their analyses and were subject to
cross-examination. Below are examples of their analyses on Browning’s
(1) ability (or inability) to control behavior,
(2) age and its significance,
(3) descriptions of the offenses and their inconsistencies,
(4) insight (or lack thereof),
(5) pedophilic disorder,
(6) indicia of sexually sadistic behavior,
(7) substance-abuse issues, and
(8) impetus for committing the offenses.
Their opinions differed.6
6
As pointed out by Browning in his brief, the trial court admitted much of the
testimony with the following proviso:
Keep in mind hearsay generally -- normally is not admissible.
So in this case, certain hearsay information that are contained in
records or reviewed by an expert can be and is going to be admitted to
you through expert testimony. These statements are admitted only for
10
(1) Ability (or Inability) to Control Behavior
Dr. Proctor found particular significance in Browning’s committing the first
sexual offense after having been in prison and on mandatory supervision for the
burglary offense and, further, in his committing the last two sexual offenses after
serving a prison sentence and while still on mandatory supervision for the first sexual
offense. The three sexual offenses showed that Browning had “serious difficulty
controlling his behavior.” Dr. Proctor also noted that there was a “pattern that the
things that typically deter people from reoffending were not successful with him.”
Elaborating, Dr. Proctor said,
So as I talked about, emotional capacity deals with your psychological
functioning, feelings, emotions, being able to manage, your capacity to
manage your emotions. I don’t think we really got into it, but volitional
capacity is about controlling one’s behavior and whether someone has
serious difficulty controlling behavior. So, like, when you look at his
offending and especially offending after he had already been convicted
the purpose of showing the basis of the expert’s opinion and cannot be
considered as evidence to prove the truth of the matter in and of itself
stated.
The court’s jury charge contained a comparable caveat:
Hearsay is a statement that: 1) the declarant does not make while
testifying at the current trial or hearing and 2) a party offers in evidence
to prove the truth of the matter asserted in the statement. Hearsay
normally is not admissible. In this case, certain hearsay information
contained in records reviewed by an expert or experts was admitted
before you through expert testimony. Such hearsay was admitted only
for the purpose of showing the basis of the expert’s opinion and cannot
be considered as evidence to prove the truth of the matter asserted.
See Tex. R. Evid. 705(d).
11
of a sex offense once and then he offends not with one victim but a
second victim while he’s under supervision, that certainly speaks to
emotional capacity, but certainly volitional capacity.
Finally, Dr. Proctor observed that Browning’s behavior while in prison was not
blemish-free: “[T]here were a couple of sexual misconduct cases once he got to prison
this last time.” Dr. Proctor stated that Browning had eleven major disciplinary cases,
twenty-two minor ones, and “another four or so that were major but were reduced to
minors.” Most of the cases were for not following rules, but a few involved making
threats. “But, of course,” added Dr. Proctor, “for our purposes, the most striking
thing was that there were two sexual misconduct cases.” Dr. Proctor explained their
significance as follows:
We’re looking at sexual offending. Now, typically the kind of offending
you’re doing in jail aren’t sexually violent offenses. They can be, but it --
it’s more often what are called masturbation case, which is where an
inmate is masturbating towards a guard for sexual gratification. So that
very much gets at someone having serious difficulty controlling their
behavior, even in prison they’re still engaging in sexual offense behavior,
especially if it’s, you know, indicated they’re -- they’re doing it for sexual
arousal, they’re targeting guards for the purpose of masturbating in their
presence. That is very relevant to a behavioral abnormality-type opinion.
The first sexual misconduct occurred in 1995: “So in 1995 there was an
incident where he was masturbating at his cell door in public. So, I mean, that’s not
masturbating in his bed covered up or -- that’s standing at the cell door masturbating,
so that -- that speaks to somebody who is -- is intending to be seen.”
The second sexual misconduct took place in 2007:
12
And then [in 2007] there was . . . a female officer that . . . he had an
exchange with where he cussed at her[,] and she was the one who saw
him. So that seems pretty clearly to be targeting.
Even more so in ’07 there was an incident where a -- an officer
came in and -- to his cell. He was in the bottom bunk, and he exposed
his penis, had an erection, and began to masturbate his penis toward --
you know, in -- where the officer could see. That, again, is clearly
targeting. I mean, he -- the officer was standing right there[,] and [he]
pulled out his penis and masturbated, so that would -- that would qualify
as well.
Dr. Proctor acknowledged that Browning’s conduct improved with time and that
Browning’s last disciplinary case was in 2007.
In contrast, Dr. Mauro discounted the significance of Browning’s two sexual
misconduct cases. Although she did not dispute the truth of the allegations, she
effectively disputed their relevance:
Q. And you failed to consider the sexual misconducts in prison; is that
right?
A. Oh, no, I considered them. I just didn’t use them as an index
offense.
Q. Okay. And you’re aware that the Static[7] manual includes
sexual misconducts as an additional charge or index offense if it’s the last
offense for the index; is that correct?
7
According to Dr. Proctor, the Static-99R is the most commonly used risk-
assessment measure for sexual offending. It was not, however, created specifically for
behavioral-abnormality evaluations. Dr. Mauro also used the Static-99R and,
additionally, the Static-2002R, which she described as an actuarial instrument that
relies on historical data to determine predictive risk. Both Dr. Proctor and Dr. Mauro
also used the PCL-R test, which Dr. Proctor said determines general criminal
recidivism but, like the Static-99R, was not specifically designed to score for a
behavioral abnormality. Dr. Mauro said that the PCL-R “is a historical instrument
that measures behavior over the course of the lifetime.”
13
A. Yes. I spoke about that on direct.
Q. And you would agree that [Browning] received two
disciplinaries for sexual misconduct, right?
A. Yes.
Q. And you would agree that the records stated that he exposed
his penis to an officer with, quote, the intent to gratify his sexual desire,
right?
A. It says that.
....
Q. And the allegation was that he took out his penis and then
stroked it towards that officer; is that right?
A. That’s what the officer said, when she’s looking in his cell.
Q. And you said you wouldn’t consider it unless it would be
something illegal in the free world; would you agree with that?[8]
A. Yes.
....
8
Section 21.08 of the Texas Penal Code provides,
INDECENCY EXPOSURE
(a) A person commits an offense if he exposes his anus or any part of his
genitals with intent to arouse or gratify the sexual desire of any person,
and he is reckless about whether another is present who will be offended
or alarmed by his act.
(b) An offense under this section is a Class B misdemeanor.
Tex. Penal Code Ann. § 21.08.
14
Q. Okay. So if someone was in their house standing at a window
masturbating towards someone for their own sexual gratification, that
would be an offense, a sexual offense, correct?
A. It could, I guess, conceivably. I’ve never, you know, seen it,
but, you know, if there was an obvious intent there.
Q. And the other one, he got the disciplinary because he was
masturbating at his cell door, which was considered a public place
because he wasn’t hidden, he wasn’t behind anything, he didn’t cover
himself. He was standing at his cell door masturbating, right?
A. That’s what it says.
Q. If someone in the free world was standing at their door in
their home and someone was outside, that would be considered
exposure; would you agree?
A. If their door is open.
....
Q. So if the officer said that [Browning] was masturbating in
public where he could be viewed, that would be exposure?
A. That’s the officer’s opinion on that in the language in their
rule book. But clinically speaking, I didn’t feel that it met the criteria for
me to count it on the Static.
Q. Okay. And it was more than just an officer’s opinion; it was
also the finding of TDCJ that he did this intentionally?
A. Sure.
....
A. . . . I’m not saying that I’m not believing the allegations or --
or write-ups. I’m saying that it doesn’t, in my opinion, meet the criteria
that is -- that is necessary to count it as an index offense on the -- on the
Static. I don’t think that it supports that. But had I, yes, believed that it
15
did support the requirements to be counted as an index, the score would
have risen from a 1 to a 2, which is still very small.
Based on the jury’s verdict, Dr. Mauro failed to persuade the jurors that Browning’s
two sexual misconduct cases while in prison had little or no significance. See Mullens,
92 S.W.3d at 887.
(2) Age and Its Significance
Next, Browning stresses his advanced age (sixty-four at the time of the trial).
Both Dr. Proctor and Dr. Mauro took Browning’s age into account when performing
their analyses—both identified it as a mitigating factor.
Dr. Proctor explained how Browning’s age lowered his risk factor significantly
yet did not eliminate it:
Q. And so when conducting a behavioral abnormality evaluation, do
you typically consider protective factors?
A. Always.
Q. And did you identify any protective factors with Mr.
Browning?
A. I did.
Q. Which -- what protective factors did you find?
A. Well, the biggest one is age. As a group, as individuals get
older, their risk for reoffense goes down. Obviously[,] it varies
individually, but as a group that’s true. So one of the things we look at is
his age. Also he’s enrolled in a sex-offender treatment program. It’s the
9-month program. He’s still in that program. It’s -- it’s, you know, not a
very lengthy program, but it still has some protective elements certainly.
16
He has some social support, namely an aunt and a brother. He
doesn’t have a lot of social support, but there’s some. That’s protective.
And then I also noted his increased -- increase probably isn’t the best
way to say it. His -- his apparent improvement in his behavior more
recently that I have mentioned before.
Q. And so I want to talk about -- you said age is a big protective
factor for Mr. Browning; is that right?
A. That’s right.
Q. And on the Static we even saw that you could lose three
points on that; is that correct?
A. Right. I mean, the reason his score is not, you know, pretty
significant -- it would be a 5 otherwise, which would be above average --
is because of his age subtracting points.
Q. So even on the Static, just his age does not compensate for all
of the other items he got a point for?
A. True.
Q. So he still scores in the positive?
A. That’s right.
Dr. Mauro also identified Browning’s age as a protective factor, but she
identified it as one of many factors and not necessarily as the dominant one:
Q. Did he exhibit any protective factors?
A. Yes. In my opinion, I think he does.
Q. And which ones were present in this case?
A. So, you know, you can look at protective -- well, protective
factors for him, some of these are -- are included on the Static, and so I
don’t want you to think -- I can never predict how somebody is going to
think about what I say, of course, and I don’t want there to be like a
17
tally. So I know this is already included on -- on the Static, so it’s not
like an extra protective factor is what I’m trying to say, but it’s age.
So -- so age is -- age is protective, but it’s not something that, you
know, adds an extra layer of protection or something like that beyond
what’s already captured by the Static. It’s just clinically speaking and on
the Static, age is protective.
He’s -- also he’s not in -- in -- in the best physical health. His --
his offense with [Cathy], with the first victim, was pretty aggressive and
violent. I think that he would have difficulty engaging in that type of
offending behavior today. Indeed[,] we haven’t seen that type of
violence from him in the prison, certainly in a long time. He’s had a few
fights in prison, but nothing so violent and not in -- not in many years.
Additional protective factors would be that he’s been in -- in
remission from his substance use for a long time. However, I do need
to highlight that if he did become intoxicated or under the influence of
drugs in the future, that in his specific case I would anticipate that would
increase his risk. But right now he does seem to be in remission.
He does have the support of family. We know that life stability is
-- is important for reducing criminal offending, so he does have support
from his brother, possible places to live, possible work, somebody that’s
going to be able to help house, feed, and clothe him. That’s very
important to reduce offending.
He’s also got a very significant history of having appropriate adult
consensual sexual intimate partner relationships. That means that he is
capable of getting his sexual needs met, which all people have, from an
appropriate partner who doesn’t need to have a non-consenting or a
child sexual partner in order to gratify basic human sexual needs. He’s
actually got a pretty lengthy history of girlfriends and wives and things.
He’s been able to cohabitate.
Ironically, as between Dr. Proctor and Dr. Mauro, Dr. Proctor appeared to
place greater importance on Browning’s age as a mitigating factor. Regardless, neither
considered Browning’s age dispositive. Browning nevertheless argues that he is no
18
longer a threat due to his age. Browning explained the scope of his post-release
ambitions: “I have a brother[,] and I have an aunt, and I’ll be living with my brother
out in the country. And all I want to do is sit in the rocking chair. I’m 64 years old.
Sit in a rocking chair and drink some tea and just do time.”
But as an appellate court, we may not usurp the jury’s role in determining the
weight to be given the witness’s testimony. Stoddard, 619 S.W.3d at 668. The experts
considered the same evidence and came to different conclusions; the jury decides
which expert to believe. See Kirkpatrick, 862 S.W.2d at 772.
(3) Descriptions of the Offenses and Their Inconsistencies
Dr. Proctor was concerned about Browning’s inconsistencies:
You know, [Browning] was saying with both of these [offenses against
children] that he very much regretted doing them, had remorse for doing
them, but, you know, wouldn’t -- but was still minimizing elements of it.
But I think that was the thing that stuck out to me. And I guess I would
also add . . . how . . . he’s been very inconsistent. I mean, even recently
really, seemingly from person to person, changing what he said about
what actually happened.
At trial, there were many examples of Browning’s giving inconsistent answers.
Dr. Proctor noted the discrepancy in the number of sexual partners that Browning
had reported:
Well, he said that in the past he had a high sex drive. And then in terms
of the sexual promiscuity, he’s previously reported having 300 or so sex
partners. With me, he said, [“W]ell, it’s actually more like 16 or 17. I
don’t know why I say stuff like that sometimes. Sometimes I just blurt
stuff out and it gets me in trouble.”
When testifying, Browning put the number at “[p]robably about 30.”
19
For Browning, even the number of victims varied. When asked at trial how
many victims he had, Browning responded, “Three.” But Browning acknowledged
that when he was deposed and was asked the same question, he had responded that
he had “committed two crimes against two innocent people.” He had to be reminded
that Cathy was a victim as well.
Along the same lines, Browning stated at his deposition that Betty had initiated
the sex at least some of the time. At trial, Browning denied that Betty had initiated
any of the sex.
Dr. Mauro did not dispute that Browning had been inconsistent regarding
Alice’s offense:
Q. And you would agree that his statements regarding the offense
against [Alice] ha[ve] been inconsistent throughout the records, would
you agree, just his version?
A. Mr. Browning’s?
Q. Yes.
A. Oh, yeah. Early on he denied the behavior for which he’s
been convicted and that he’s now admitted.
Q. Would you agree that during his deposition, most of how he
spoke about [Alice] was that it was accidental touching, it wasn’t
intentional, that kind of thing?
A. That’s what it seemed like, yes.
Q. Okay. But if yesterday he said it was all intentional and he
said that he touched her vagina, touched her breasts, and it was all
20
purposeful, you would agree that that’s a great difference between one
month to another?
A. It certainly is different. Whether or not, you know, he’s
accepting full responsibility or calling it accidental, there’s some
difference there.
While Dr. Mauro did not appear to place any particular weight or significance
on Browning’s inconsistencies, they represented a red flag to Dr. Proctor.
Specifically, those inconsistencies illustrated to Dr. Proctor that Browning still has a
problem with impulsivity and control:
There’s, you know, being irresponsible. So, like, not holding down
responsible jobs; violating trust in other people, like, you know,
offending against the daughter of his girlfriend; impulsivity, very
impulsive person, somebody who will say -- I mean, he is the kind who
had to just pick up and go, couldn’t stay in one place long; makes
decisions without thinking; some aggressiveness, including he has an
assault charge involving a -- a former wife, some dishonesty.
I mean, really, in the realm of -- of pathological lying, which is
lying not just to get out of trouble but just for the sake of lying, like I
mentioned when he was talking to me about some inconsistencies of
what he had told me with others. [“]It’s like, sometimes I just say stuff.
I don’t know why I say it. It’s not true, ends up, you know, kind of
coming back to bite me.[”] All of those [personality features] are -- are
certainly ones that he has.
Inconsistent stories can lend themselves to negative inferences. See Univ. of Tex.
Sw. Med. Ctr. v. Vitetta, No. 05-19-00105-CV, 2020 WL 5757393, at *21 (Tex. App.—
Dallas Sept. 28, 2020, no pet.) (mem. op.); Hill v. Spracklen, No. 05-17-00829-CV,
2018 WL 3387452, at *7 (Tex. App.—Dallas July 12, 2018, pet. denied) (mem. op.). A
rational factfinder could have determined that these inconsistencies undermined
21
Browning’s credibility and, in the process, his trustworthiness. See Univ. of Tex. Sw.
Med. Ctr., 2020 WL 5757393, at *21; Hill, 2018 WL 3387452, at *7. And a rational
factfinder could have further concluded that it is a short step from untrustworthiness
and deception in speech to untrustworthiness and deception in behavior. See Mullens,
92 S.W.3d at 887 (providing that from basic facts, a jury may draw reasonable
inferences to ultimate facts).
(4) Insight (or Lack Thereof)
Dr. Proctor also found troubling Browning’s explanation for why he had
offended against the two children: “[Browning] said he really didn’t know.” This
nondescript response caused Dr. Proctor concern:
As far as the [child] victims, you know, one of the things you’re wanting
to see is someone develop some insight into why they did what they did.
You know, if someone is like I don’t know why I did it, it -- it’s not as
big of a risk factor as you might think on the surface, but it is relevant to
how well someone’s doing in treatment and -- and their ability to restrain
themselves[. Y]ou want to see them understand why they did what they
did and how they can prevent it, and when someone doesn’t have a lot
of what we call insight into that, that’s a concern.
At trial, Browning confirmed this lack of insight when he asserted that he did not
know why he had sexually assaulted Betty.
Dr. Mauro, on the other hand, credited Browning with having “pretty good”
insight:
Q. Okay. So just looking at his treatment, and we’ll end here, do you
believe that he has good insight into his offending history?
22
A. I think it’s pretty good. You know, despite the limited actual
opportunity he’s had to engage in sex offender treatment due to various
issues, lockdowns, and all of those that he can’t control. And, I mean,
his intellectual capacity and education, I think his insight is actually
pretty good.
Q. Do you believe he’s fully taken responsibility for his
offending?
A. Fully? You know, if we’re going to give it, you know, a
hundred percent, I don’t know if he would be missing a few points
there, but he -- comparatively speaking, yes, he takes very good
responsibility. I -- I don’t know if you can say a hundred out of a
hundred. I don’t know.
Q. You would agree that he still engages in victim blame, for
example, [Betty]?
A. Just -- just with [Betty]. And it’s -- it’s not completely
inconsistent with some of [Betty’s] own statements, but certainly I think
he still accepts that he was in the wrong. He was her father. He was
older. He should have not done it.
Q. [Betty’s] statements, you would agree that she said that he
psychologically coerced her, said that he was going to rape her sister if
she didn’t have sex with him, right?
A. Yes, she said that.
Q. That he told her, you’re going to do it my way, when she tried
to resist him?
A. She said that.
Q. Okay. So how is that inconsistent? Like, would you agree
that that’s a sexual assault?
A. I didn’t say it wasn’t. You asked if he was perhaps not doing
some -- if he was perhaps doing some victim blaming in [Betty’s]
statements, and [Betty] did say that there were -- there were times where
23
she, you know, went along, didn’t resist, and didn’t say anything, that she
participated.
Q. Okay.
A. That doesn’t make it right and it doesn’t make it
consensual . . . .
(5) Pedophilic Disorder
Another example of Dr. Proctor’s and Dr. Mauro’s viewing the same evidence
but drawing different conclusions was in determining whether Alice was prepubescent
for purposes of diagnosing whether Browning had a pedophilic disorder. Dr. Proctor
assumed that Alice was (but acknowledged that he did not know for certain), so he
concluded that Browning had a pedophilic disorder.
In contrast, Dr. Mauro entertained the possibility that Alice was not
prepubescent and, for purposes of diagnosing Browning, concluded that Alice was
not. Dr. Mauro explained, “[Alice is] a child in the eyes of the law, a legal minor, but
not clinically a child, so she doesn’t count.”
Dr. Mauro also questioned the lack of duration of Browning’s sexual interest in
children. She explained, “There’s usually a stronger interest in children, and we would
see that through more child victims, perhaps through possession of child
pornography, perhaps through in prison you might continue to see them keeping
pictures of children, writing, like, sexually deviant stories about children.” Dr. Mauro
did not think that Browning met the criteria for pedophilia.
24
(6) Indicia of Sexually Sadistic Behavior
Based primarily on the sexual assault on Cathy, Dr. Proctor thought that
Browning’s conduct suggested sexual sadism, which he defined as “being sexually
aroused by causing pain [or humiliation] to another person.” Dr. Proctor did not,
however, expressly diagnose Browning as a sexual sadist but assigned this diagnosis a
“rule-out” qualifier, which meant that “it’s something that needs to be considered and
that I have considered diagnosing but . . . stopped short of.”9 Dr. Proctor thought
that Browning exhibited force with Alice and Betty—more so with Betty—but that
the indications of sexual sadism were not clear-cut.
Dr. Mauro also found indicia of sexual sadism, but she discounted its
significance:
Q. Okay. And you found no evidence of sexual sadism?
A. No. There was evidence to the extent that I discussed. I
considered it in that one -- one offense where he used more force than
was required to commit an act of rape.
Q. And he also made statements about wanting to humiliate her
and degrade her?
A. Correct.
Q. And do you recall seeing during his deposition where he said
he was aroused by that humiliation? Was that in a deposition or with
you?
See In re M.M., No. 02-18-00337-CV, 2019 WL 1575394, at *6 n.4 (Tex.
9
App.—Fort Worth Apr. 11, 2019, no pet.) (mem. op.) (“A ‘rule[-]out’ diagnosis is a
working diagnosis or one that cannot be diagnosed from a single visit.”).
25
A. Yes.
Q. But yet all of his offending is just simply opportunistic?
A. I don’t -- yes.
(7) Substance-Abuse Issues
Browning reported to Dr. Proctor that he had a significant problem with
alcohol when he was younger and that he had a history of using marijuana, pills, and
stimulants like cocaine and methamphetamine. Dr. Proctor acknowledged that drugs
and alcohol were still available in prison but getting them—Dr. Proctor asserted—was
difficult. To Dr. Proctor’s knowledge, nothing suggested that Browning was using
drugs in prison, so Dr. Proctor listed any alcoholism or drug addiction as “in
remission.” Dr. Proctor cautioned, though, that “[i]t can be very different if you’re in
a . . . world where it’s much more accessible.” Dr. Proctor noted that Browning had
admitted that he was under the influence during his sexual offenses.
Dr. Mauro gave comparable testimony, that is, that Browning had a substance-
abuse disorder. Because Browning had been in prison for about thirty years, she did
not think that substance abuse was a current problem for him. Dr. Mauro took the
position that because drugs and alcohol were available in prison, if Browning had
wanted them, he could have gotten them. Like Dr. Proctor, Dr. Mauro provided a
caveat:
Additional protective factors would be that [Browning’s] been in -- in
remission from his substance use for a long time. However, I do need
to highlight that if he did become intoxicated or under the influence of
26
drugs in the future, that in his specific case I would anticipate that would
increase his risk. But right now he does seem to be in remission.
The jury did not have to rely strictly on Dr. Proctor’s or Dr. Mauro’s testimony
about drugs and alcohol in prison. Browning spoke of his first-hand experience.
Browning did not dispute that getting drugs and alcohol in prison was not difficult.
He stated, “I can go anywhere on my block and get K2, weed, ICE, meth, wine. I can
get anything I want in the penitentiary because it’s there.” Despite the availability of
drugs and alcohol, Browning asserted, “I’ve never had a case, never one.”
When asked if he had ever used drugs, Browning responded, “I’m a recovering
addict.” He said that when he sexually assaulted Cathy, he was on an acid trip. When
offending against Alice, Browning said that he was under the influence of “[w]eed.”
But he denied being under the influence of alcohol or drugs when he sexually
assaulted Betty. When asked why he would have told Dr. Proctor differently,
Browning explained why he was not under the influence and expressed confusion:
Q. You’re saying you were not?
A. We -- we had just moved to Bridgeport and Boyd. I didn’t
know no dope fiends. I didn’t know no drug addicts. I didn’t know no
dope sellers.
Q. So you’re saying you didn’t know anyone. But were you under
the influence of drugs or alcohol?
A. I did not know anybody in Wise County to buy dope from.
Q. So have you ever reported differently?
A. If I have, I don’t remember it.
27
Q. Okay. So you don’t remember telling Dr. Proctor that you
were high on marijuana?
A. If I did, I did, but I don’t remember saying that because I
didn’t know anybody in Boyd, Texas, Bridgeport to buy any dope from.
We had just moved up here.
(8) Impetus for Committing the Offenses
Dr. Mauro described Browning’s offenses as “opportunistic offending.” She
also questioned whether Browning’s behavior issues from thirty years ago persisted
today. The following exchange illustrates Dr. Mauro’s thinking:
A. I didn’t -- I didn’t say there’s no -- no concern about him
reoffending, and I certainly don’t apply opportunistic [offending when
determining risk]. I don’t think opportunistic offending and no risk are
synonymous at all. But in his specific case, looking at all the variables
that we discussed this morning and, I guess, into this afternoon, looking
at all of those details together, I don’t think that his opportunistic
offending and the other details of the case relates to a diagnosis or --
Q. And with [Betty], you thought that was opportunistic as well?
A. Yes.
Q. Even though one of the first conversations they ever had
when they were reintroduced to each other, he was asking her about her
virginity; do you recall seeing that?
A. She said that. I don’t know if that’s fact or not.
Q. Do you recall saying during your deposition that he was not --
or I’m sorry -- he wasn’t in much control of his impulses at the time or
he just disregarded the consequences?
A. Yes.
Q. Would you agree that that is evidence of difficulty controlling
behavior?
28
A. It could be, but that’s 30 to 40 years ago. I don’t think that
that exists today.
Q. You’d agree that literature shows that sexual deviance is a
chronic condition?
A. Yes. I mean, some disorders can remit.
Q. But for Mr. Browning, we’re not concerned about that
chronicity?
A. Well, I don’t think he has a paraphilia.
Q. You don’t think he’s sexually deviant?
A. No. He’s committed illegal sexual offenses.
As with Dr. Mauro’s other testimony, she acknowledged Browning’s conduct; she just
did not think that his conduct translated into “a behavioral abnormality that [made
him] a person likely to engage in a predatory act of sexual violence.” See Tex. Health
& Safety Code Ann. § 841.003(a).
d. Conclusion
Ultimately though, a reasonable factfinder could have credited the disputed
evidence in favor of the sexually-violent-predator finding. While Browning faults
aspects of Dr. Proctor’s testimony, even if the jury found portions of Dr. Proctor’s
analyses unpersuasive, the jury could have nevertheless found his overall analysis
correct. See Kirkpatrick, 862 S.W.2d at 772.
The undisputed facts supported rather than undermined the finding. No one
disputed that Browning’s offense against Cathy was violent or that his other two
29
sexual offenses involved children under the age of seventeen, both of whom were
persons that Browning should have protected rather than exploited. No one disputed
that Browning had committed the offense against Cathy after serving time in prison
and completing a period of mandatory supervision or that he had committed the
sexual offenses against Alice and Betty while on mandatory supervision for the sexual
offense against Cathy. Nor was it disputed that Browning had two sexual misconduct
cases while in prison. The dispute was over what it all meant.
Dr. Mauro came to a different conclusion than Dr. Proctor, but a rational jury
could have found (and the jury by its verdict did find) her analysis suspect, especially
when juxtaposed to Dr. Proctor’s. See id. A rational jury could have concluded that
Dr. Mauro had consistently given Browning the benefit of any doubt, and that
ultimately could have undermined her overall credibility.
The factfinder could thus have found beyond a reasonable doubt that
(1) Browning is a sexually violent predator; (2) Browning had serious difficulty
controlling his behavior at the time of trial; and (3) Browning suffers from a
behavioral abnormality that makes him likely to engage in a predatory act of sexual
violence. Because the statutory elements were met, the evidence was therefore
factually sufficient.
We overrule Browning’s first issue.
30
B. Limitation of Examination of the Venire Panel
In Browning’s second issue, he contends that the trial court reversibly erred by
limiting his examination of the venire members regarding their capacity to afford him
a fair trial in a case involving a child victim. We view Browning’s second issue as
consisting of two components: (1) whether the trial court properly sustained the
State’s objection to Browning’s question, and (2) whether the trial court thereafter
precluded Browning from pursuing a valid line of similar questioning. See Hyundai
Motor Co. v. Vasquez, 189 S.W.3d 743, 755, 758 (Tex. 2006) (addressing the “question”
in part V of its analysis; addressing “[f]urther [q]uestions” in part VI of its opinion).
The State responds that Browning did not preserve error, and even if he did, the State
argues that the “trial court’s ruling was guided by controlling law.”
1. The Record
During the voir dire examination of the venire panel, Browning’s trial counsel
said: “So, I’m asking you is this the right case for you? And we can’t go into the
details, but, for example, if you were to hear that there’s a victim that is related to this
case -- you’re going to hear some evidence about a victim who is a child.” The State’s
attorney objected that Browning was asking a commitment question, and the trial
court sustained the State’s objection. Thereafter, Browning’s trial counsel did not
attempt to rephrase the question but, instead, moved on to another topic and never
broached the subject of child victims.
31
2. Analysis
If the trial court erred by sustaining the objection, error is preserved as to that
specific question. See In re Commitment of Hill, 334 S.W.3d 226, 228–29 (Tex. 2011)
(reversing judgment after the trial court unilaterally prohibited defense counsel from
asking “whether [the] potential jurors could be fair to a person they believed to be a
homosexual” and asserting that “the questions [defense counsel] asked were proper,
and there was no need for him to rephrase because there were no defects for him to
cure”); In re Commitment of Kalati, 370 S.W.3d 435, 441 (Tex. App.—Beaumont 2012,
pet. denied) (reversing judgment after the trial court improperly sustained the State’s
commitment objection; stating that the “question . . . was probative of the potential
jurors’ prejudices towards persons diagnosed with pedophilia[] and [that] the question
. . . did not ask the [venire] members . . . for their opinions about the strength of the
evidence or suggest what weight they would give to the evidence of [appellant’s]
psychiatric diagnosis.”). Accordingly, we must first determine whether the trial court
abused its discretion by sustaining the State’s objection.
a. Applicable Law
The primary purpose of voir dire is to inquire about the venire members’
specific views that would prevent or substantially impair them as jurors from
performing their duty in accordance with their instructions and oath. Hyundai Motor
Co., 189 S.W.3d at 749. Additionally, trial courts should allow the parties broad
latitude to discover any bias or prejudice by the potential jurors so that counsel may
32
intelligently exercise their peremptory challenges. Id. A difference exists, however,
between (1) a question that probes the venire members for biases and prejudices and
(2) a question that probes the venire members to determine how they will vote on a
specific factual issue in a case. The latter is an improper commitment question. See id.
at 747, 756, 757.
“Counsel may ‘question jurors about bias or prejudice resulting from a societal
influence outside the case,’ . . . .” In re Commitment of Barnes, No. 05-19-00702-CV,
2020 WL 4499795, at *6 (Tex. App.—Dallas Aug. 5, 2020, pet. denied) (mem. op.)
(quoting Hyundai Motor Co., 189 S.W.3d at 753). But a commitment question tries to
“bind or commit a prospective juror to a verdict based on a hypothetical set of facts.”
Id. (quoting Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001)).
“Commitment questions ‘require a venireman to promise that he will base his verdict
or course of action on some specific set of facts before he has heard any evidence,
much less all of the evidence in its proper context.’” Id. (quoting Sanchez v. State,
165 S.W.3d 707, 712 (Tex. Crim. App. 2005)). A three-part test determines whether a
voir dire question is an improper commitment question. Id. “First, is the question a
commitment question? Second, if so, is it proper? Third, does the question contain
only the facts necessary to test whether a prospective juror is challengeable for
cause?” Id. (citing Standefer, 59 S.W.3d at 179–82).
33
b. Standard of Review
Appellate courts use an abuse of discretion standard when reviewing a trial
court’s ruling limiting voir dire questions. See Hyundai Motor Co., 189 S.W.3d at 747.
A trial court abuses its discretion if it acts arbitrarily, unreasonably, and without
reference to guiding principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
In the context of questions posed to the venire panel, the supreme court wrote,
Permitting disclosures about the evidence the jury will hear during the
case increases the potential for discovering external biases, but inquiries
to jurors after doing so should not spill over into attempts to preview
the verdict based on the facts as represented to the jurors. Balancing
these competing concerns depends on the facts in a case and on the
inquiries posited to the jury. The trial judge is in a better position to
achieve the proper balance.
Hyundai Motor Co., 189 S.W.3d at 755.
c. Application
(1) Commitment Question
During voir dire, Browning’s trial counsel said, “So, I’m asking you is this the
right case for you? And we can’t go into the details, but, for example, if you were to
hear that there’s a victim that is related to this case -- you’re going to hear some
evidence about a victim who is a child.” Knowing the case involved a child victim
could—for some prospective jurors—both determine and stop the analysis regardless
of any other evidence. See Barnes, 2020 WL 4499795, at *6–7. Determining and
stopping the analysis based solely on the fact that the case involved a child victim,
regardless of any other evidence, would give rise to a valid challenge for cause. Id.
34
And the question was not limited to only those facts necessary to test for potential
bias or prejudice but, instead, injected the additional fact that the jurors would be
hearing evidence of a child victim. See id.
Consequently, because Browning’s counsel prefaced the question with “you’re
going to hear some evidence about a victim who is a child,” the trial court could have
concluded that counsel was probing the venire members for how they would vote on
a specific factual issue in the case. See Hyundai Motor Co., 189 S.W.3d at 757–58.
Thus, under these circumstances, the trial court did not abuse its discretion by
determining that the inquiry was an improper commitment question and by refusing
to allow it. See id.
Browning cites numerous cases for the proposition that the question his
counsel asked was not an improper commitment question. Much depends, however,
on how the question was asked, and in each of Browning’s examples, the questions
lent themselves to inquiries exploring for external biases and unfair prejudices rather
than questions testing the venire members’ possible verdicts based on case-specific
relevant evidence. See, e.g., Hill, 334 S.W.3d at 228–29 (holding that the trial court
committed reversible error by not allowing defense counsel to question the venire
members about whether they could be fair to a person whom they believed to be a
homosexual); Barnes, 2020 WL 4499795, at *6–8 (holding that “if” questions regarding
child victims and pedophilia were proper, so the trial court should not have sustained
the State’s commitment objections, but further holding that the trial court did not
35
abuse its discretion because defense counsel made comparable follow-up questions to
which the State did not object); In re Commitment of Wiley, No. 06-18-00056-CV,
2019 WL 490142, at *1–4 (Tex. App.—Texarkana Feb. 8, 2019, no pet.) (mem. op.)
(holding that the trial court’s refusal to allow defense counsel to ask “if” questions
about elderly victims constituted reversible error); In re Commitment of Porter, No. 11-
18-00015-CV, 2018 WL 6544751, at *1–2 (Tex. App.—Eastland Dec. 13, 2018, no
pet.) (mem. op.) (holding that the trial court committed reversible error by prohibiting
defense counsel from asking venire members whether they would feel uncomfortable
hearing evidence about bestiality and, if so, whether that would impact their ability to
be fair and impartial); In re Commitment of Miller, No. 09-11-00450-CV, 2012 WL
3031160, at *1–3 (Tex. App.—Beaumont July 26, 2012, pet. denied) (mem. op.)
(holding that the trial court committed reversible error by prohibiting defense counsel
from asking the following two questions: “(1) ‘Can you set aside any bias if you find
there’s an offense against a child? Can you listen to all the evidence and follow the
law?’ or (2) ‘Is anyone unable to hear topics about children? Can you listen to the
evidence and follow the law?’”); Kalati, 370 S.W.3d at 440–41 (holding that the trial
court committed reversible error when it refused to allow defense counsel to ask the
venire members, “Would anybody on the first row find it hard to give someone who
has been diagnosed by an expert as a pedophile a fair trial?”).
36
Admittedly, at times, determining whether a question falls on one side of the
line or the other can be troublesome. The Texas Supreme Court, however, has
addressed that issue:
The Texas Constitution guarantees a trial by a fair and impartial jury, and
our courts use voir dire to achieve that goal. Voir dire inquiries that
explore external biases and unfair prejudices further the effort, but those
that test jurors’ possible verdicts based on case-specific relevant evidence
detract from it. The distinction between the two in some cases is a fine
one. Thus, we vest trial judges with the discretion to decide whether an
inquiry constitutes the former or the latter; as appellate courts, we should
defer to their judgment.
Hyundai Motor Co., 189 S.W.3d at 760. On this record, we defer to the trial court’s
ruling.
(2) Browning’s Other Arguments
Browning, however, further complains that the trial court gave the State “a full
opportunity to thoroughly indoctrinate the venire panel about children as sexual-
assault victims before the venire panel was turned over to Browning’s trial counsel for
further questioning on the very same topic.” To support this argument, Browning
provides three examples. Browning’s three examples, however, fail to support his
argument.
In the first example, the State said, “So I’m just going to ask you -- sometimes
these cases involve child victims; sometimes they involve strangers; males; females;
incest . . . .” Here, the trial court could have reasonably determined that the State was
probing for biases or prejudices should the case involve a child victim. See id. at 754–
37
55. The State did not assert that the case, in fact, involved a child victim, and thus it
was not asking the venire members to reveal how they would vote on a fact issue
ahead of the trial itself. See id.
The second example involved an exchange between the State and one venire
member:
[State:] I just want to make sure we’re on the same page. So if you hear
about a certain diagnosis or a specific victim, are you saying that you will
not be able to give Mr. Browning a fair trial?
Prospective Juror: I think it would be extremely hard, yes, if it
was a child.
[State:] . . . .
If it’s a child it’s difficult, right? . . . .
....
[State:] . . . . Okay? It is difficult. It is hard. What I’m asking you
is knowing that it’s difficult, knowing that it’s hard and we’re asking a lot
of you here, are you just done; can’t do it? That’s what I need to know.
Once again, the trial court could have reasonably concluded that the State was asking
whether the involvement of a child would prevent the venire member from giving
Browning a fair trial. See id. When asked in that manner, the question was designed
to disclose any biases or prejudices.
And in the third and last example,
[State:] I just need to make sure that, you know, if opposing counsel
asked you these questions, we already have an idea of what’s going on.
So if you hear that [pedophilia] diagnosis or you hear there’s child
victims or other kind of extremely vulnerable victims, I need to know
38
have you already made up your mind or are you okay understanding
that’s a piece of the puzzle but you still have a lot of evidence to hear.
Okay. So is everyone here who hasn’t already spoken to me -- are
you okay at this point to give Mr. Browning a fair trial?
As with the other two examples, the trial court could have reasonably deduced that
the State was probing for biases and prejudices. See id.
(3) Preclusion of Proper Line of Questioning—Not
Preserved
To preserve error when complaining about a trial court’s purported foreclosure
of a proper line of questioning, it is not enough that the trial court sustains an
opponent’s objection to a particular voir dire question; the proponent must follow up
with other questions: “When the trial court determines that a proffered question’s
substance is confusing or seeks to elicit a pre-commitment from the jury, counsel
should propose a different question or [a] specific area of inquiry to preserve error on
the desired line of inquiry . . . .” Id. at 758. Explaining further, the supreme court
wrote, “Counsel does not have to present a list of questions to preserve error, but
after the trial court’s ruling sustaining [the opponent’s] objection to the one presented,
it [is] incumbent on the [proponent] to request alternative approaches to avoid the
problems the trial court was addressing by its ruling.” Id. at 759. The court
concluded, “We do not know whether the trial court would have allowed other sorts
of inquiries had counsel presented their substance. We therefore hold that the record
does not present a sufficient basis for review of the trial court’s ruling foreclosing
39
further inquiry into” the proposed subject matter. Id. at 760; see In re Commitment of
Tesson, 413 S.W.3d 514, 517 (Tex. App.—Beaumont 2013, pet. denied).
Here, after the trial court sustained the State’s objection, Browning’s trial
counsel never broached the subject of child victims again. Further, he failed to make
the trial court aware of the substance of “other sorts of inquiries” he wished to
pursue. See Hyundai Motor Co., 189 S.W.3d at 760.
We agree with the State that Browning has not preserved error on the portion
of his second issue complaining about the trial court’s precluding a proper line of
questioning. For all these reasons, we overrule Browning’s second issue.
C. Exclusion of Expert’s Testimony Regarding Legislative Findings
In Browning’s third issue, he complains that although Dr. Mauro admitted
relying on the legislative findings when making her decision, she was not allowed to
articulate the substance of the legislative findings to the jury. The State responds that
the trial court’s ruling was not an abuse of discretion but was guided by controlling
law and the Sexually Violent Predator Act.
1. Standard of Review
Appellate courts review a trial court’s evidentiary rulings for an abuse of
discretion. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007).
A trial court abuses its discretion if it acts without regard for guiding rules or
principles. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
40
2. Application
Section 841.001 of the Texas Health and Safety Code, entitled “Legislative
Findings,” provides in pertinent part, “The legislature finds that a small but extremely
dangerous group of sexually violent predators exists and that those predators have a
behavioral abnormality that is not amenable to traditional mental illness treatment
modalities and that makes the predators likely to engage in repeated predatory acts of
sexual violence.” Tex. Health & Safety Code Ann. § 841.001. Browning complains
about the trial court’s prohibiting his expert from “explaining how the legislative
findings informed her opinion.”
The Texas Supreme Court has rejected Browning’s position: “This ‘small but
extremely dangerous group’ language, contained in the Act’s legislative findings, is not
part of the statute’s definition of ‘sexually violent predator’ and [is] not an element the
jury was required to find.” See Stoddard, 619 S.W.3d at 677; see also In re Commitment of
Stratton, 637 S.W.3d 870, 886–87 (Tex. App.—Eastland 2021, no pet.). Because the
“small but extremely dangerous group” language in the legislative findings is not part
of the definition of “sexually violent predator,” it is not an element that the jury is
required to consider when determining whether the offender suffers from a
behavioral abnormality and is, thus, not relevant. See Stratton, 637 S.W.3d at 887
(citing Stoddard, 619 S.W.3d at 677–78). Accordingly, a trial court does not—and the
trial court here did not—abuse its discretion by limiting Browning’s expert’s
testimony in this way. See id.
41
We overrule Browning’s third issue.
IV. CONCLUSION
Having overruled Browning’s three issues, we affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: November 10, 2022
42 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483484/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00182-CR
___________________________
RYAN MATTHEWS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 362nd District Court
Denton County, Texas
Trial Court No. F17-3033-362
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Ryan Matthews shot and killed fifty-seven-year-old Randall Glover,
his roommate’s father, before dawn on July 31, 2017. Matthews claimed self-defense,
but the jury found him guilty of murder and then assessed his punishment at 20 years’
confinement upon determining that he had not acted under the immediate influence
of sudden passion. See Tex. Penal Code Ann. § 19.02; see also id. § 12.32 (stating first-
degree-felony punishment range is 5 to 99 years or life).
In a single issue, Matthews argues that the evidence was insufficient to disprove
self-defense. Because the jury was entitled to assess the weight and credibility of
Matthews’s testimony, in addition to that of the other witnesses and the rest of the
evidence, see Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672,
679 (Tex. Crim. App. 2021), and to determine otherwise, we affirm the trial court’s
judgment.
II. SELF-DEFENSE
Under the Penal Code, a person is justified in using force against another when
and to the degree he “reasonably believes the force is immediately necessary to
protect [himself] against the other’s use or attempted use of unlawful force.” Tex.
Penal Code Ann. § 9.31(a). When deadly force is used, the person using it must
reasonably believe that deadly force is immediately necessary to protect himself from
2
another’s use or attempted use of deadly force. Id. § 9.32(a); Lozano v. State,
636 S.W.3d 25, 32 (Tex. Crim. App. 2021).
After a defendant has introduced some evidence of self-defense, the State bears
the burden of persuasion to disprove it. See Braughton v. State, 569 S.W.3d 592, 608
(Tex. Crim. App. 2018); see Zuliani v. State, 97 S.W.3d 589, 594 & n.5 (Tex. Crim. App.
2003). The State’s burden does not require it to introduce evidence disproving the
defense; rather, it requires the State to prove its case beyond a reasonable doubt.
Braughton, 569 S.W.3d at 608. Self-defense is a fact issue to be determined by the jury.
Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991).
To determine evidentiary sufficiency to disprove a self-defense theory, we ask
whether after viewing all the evidence in the light most favorable to the prosecution,
any rational trier of fact would have found the essential elements of the offense
beyond a reasonable doubt and also would have found against the appellant on the
defensive issue beyond a reasonable doubt. Braughton, 569 S.W.3d at 609; see Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (evidentiary-sufficiency
standard). The jury is entitled to resolve any conflicts in the evidence and to
determine the witnesses’ credibility. Martin, 635 S.W.3d at 679; Gaona v. State,
498 S.W.3d 706, 710 (Tex. App.—Dallas 2016, pet. ref’d).
3
III. DISCUSSION
A. The State’s Case1
Randall’s daughter Chelsey Glover,2 her stepbrother Spencer Thomas, and her
best friend Amanda Baires testified during the State’s case, as did responding
emergency personnel, crime-scene and investigation personnel, and post-crime-scene
examiners and analysts. The trial court admitted into evidence body-camera footage
and 911 calls, as well as photographs of the gun, its magazine, and its bullets; crime-
scene and autopsy photographs; the autopsy report; and three DNA reports.3
Chelsey and Matthews were roommates. Chelsey testified that she and
Matthews had known each other since eighth grade and that they shared a mutual best
friend—Kyle—the original lessor on the house where they lived. In 2016, Kyle
moved out, and Chelsey moved in, paid Kyle’s share of the rent, and assumed the
lease when it expired.
In 2017, Chelsey’s father Randall came over for a weekend but then stayed for
eight months, sleeping on the living-room couch or in Chelsey’s room if she slept at
her then-boyfriend Joe’s home. Chelsey said that she did not ask Matthews’s
1
We combine our evidentiary review with our analysis to avoid repetition.
2
Because Chelsey and Randall share the same last name, we refer to them by
their first names.
Because no one disputes that Matthews fired the gun that killed Randall, we
3
need not discuss evidence connecting Matthews to the gun.
4
permission for Randall to move in because Matthews was not a named lessor.
Randall’s presence caused friction with Matthews because Randall was “a clean freak,”
and Randall and Matthews each told Chelsey about their frustrations with the other.
On July 30, Chelsey invited Matthews to meet her, Joe, Thomas, and Baires at a
bar, and he did so. Chelsey said that the more Matthews drank, the more comfortable
he became with telling her how he felt about her father. He told Chelsey that Randall
was a “bum,”4 that he wanted her to kick him out, and that she should move in with
Joe so that he could take over the lease. This made Chelsey uncomfortable,5 and
around ten or eleven p.m., she, Joe, and Thomas left the bar and went to Joe’s house.
Baires also left. Matthews stayed at the bar and kept drinking. His bar tab from that
night showed that he bought twelve Shiner Bock beers, a Michelob Ultra, and two
Vegas Bomb shots, as well as a carton of Camel Blue cigarettes.6
4
Chelsey described Randall as hard-working. Baires stated that Randall had
been like a father to her.
5
Thomas testified that he did not recall any tension between Chelsey and
Matthews at the bar, but Baires said the conversation between Chelsey and
Matthews—which she described as “if you end up continuing to date Joe and you
move in with him, I will kick your dad out and take over the lease”—had changed the
evening’s “vibe.” Baires said the conversation was “[s]erious, yet flippant. Like it was
not aggressive, but it was like he wanted to have the house to himself.”
6
Chelsey testified that she saw Matthews have four to six drinks between the
time he arrived and the time she left. During his direct testimony, Matthews denied
that he had consumed twelve beers and two shots, and he and Thomas both testified
that it had been common for them to take turns buying rounds of drinks.
5
Around 4 a.m., Randall called Chelsey, waking her to ask her what was wrong
with Matthews. He told Chelsey that Matthews had woken him up7 and yelled at him.
In the background, Chelsey heard Matthews yelling, “You bum. You f---king bum.”8
She heard him laughing and said that it sounded like his voice kept getting closer to
the phone. Thomas said Chelsey had hollered on the phone, “telling them that they
were being idiots and that they needed to cut it out and they’re grown men and to
knock it off.”
Chelsey told her father to get out of the house and run to the police
department, which was nearby. She and Thomas got into her vehicle to race home.
Thomas said that Chelsey stayed on the phone while driving, “hollering at them and
telling them to knock it off.”
On the drive home, Chelsey heard the sounds of “tussling” and heard Randall
tell Matthews to cool off. She heard Randall tell Matthews, “I am going to let you up
and you need to cool off.” Then she heard footsteps walk away and return9 and heard
Randall say, “He’s got a gun. Call 911,” followed by two gunshots.10
7
Randall was in a T-shirt, shorts, and socks when he was killed.
8
Chelsey also heard Matthews call her father a “piece of sh-t.”
9
When she was recalled during the defense case, Chelsey agreed that in her
written police statement she had not mentioned hearing footsteps.
10
The forensic evidence showed that only one shot was fired.
6
Chelsey screamed for her father but received no response. Then she heard
Matthews say, “Ha-ha. Now you should call 911.” Thomas said that Chelsey quieted
and then said, “Did you just shoot my dad?” Thomas took the phone from her and
called 911. He told the 911 operator about the gunshot and that they were five
minutes away from the house.
Matthews also called 911. He reported, “Randy Glover, it’s my roommate’s
dad, tried to f---king choke me out on the ground, and I broke away, and I shot him.”
He asked for 911 to send someone to revive Randall. When he was told to stay on
the line, he argued that he needed to call his employer because he could not afford to
lose his job.
The 911 dispatcher ordered Matthews to go back into the house and asked him
where Randall’s wound was. Matthews told her that it was “in the back of the neck”
and that Randall was not breathing. She instructed him to begin cardiopulmonary
resuscitation (CPR) and walked him through performing chest compressions.
Matthews was still performing CPR on Randall when the police arrived several
minutes later.11 Matthews and Randall were in the kitchen just off the living room of
the small house. Sergeant Thornton asked where the gun was, and Matthews told him
that it was “right there on the ground.”
Then-Argyle Police Sergeant Daniel Rounsavall was dispatched at 4:15 a.m.,
11
and Northlake Police Sergeant Dwight Thornton was dispatched at 4:20 a.m.
7
Sergeant Thornton saw the gun on the kitchen table, and he seized it, removed
the magazine, and then placed the gun and magazine in a police car.12 Sergeant
Rounsavall performed a protective sweep of the house and saw no other weapons.
Mon Nguyen, a firefighter paramedic, testified that he had been dispatched
“right after 4:00 a.m.” for a gunshot wound but that safety protocol had required
waiting until the police cleared the scene. Once allowed on the scene, the paramedics
assessed the unconscious victim. One initiated CPR while another put the victim on a
defibrillation pad and monitor, which showed no cardiac output. The paramedics
worked for two more minutes before calling Randall’s time of death—4:35 a.m.—and
releasing the scene to the police.
Sergeant Rounsavall testified that while waiting for the paramedics to complete
their work, he told Matthews to have a seat in the yard. Instead of sitting, Matthews
lay down on his stomach, mumbling, yelling, and crying. Chelsey and Thomas arrived
around that time, and after she lunged at Matthews, Sergeant Rounsavall ordered her
to stay back. Chelsey yelled at Matthews, “What have you done?” and Matthews
cried, “He was f--king trying to choke me.” Sergeant Rounsavall moved Matthews,
who he said smelled overwhelmingly of alcohol, across the street, away from Chelsey.
Matthews’s speech was slurred, and his balance was unsteady.
12
The gun was a 9-millimeter Luger with a magazine that could hold up to
sixteen rounds. When the police photographed it, the gun had a bullet in the chamber
and its magazine contained fourteen rounds.
8
Matthews told Sergeant Rounsavall that he and Randall had been involved in
an altercation that had turned physical while they were arguing about, according to
Matthews, “the fact that [Randall’s] still here. The fact that it’s been eight months and
he’s still here.” Sobbing, Matthews told Sergeant Rounsavall that at some point
Randall had Matthews in a sort of chokehold or headlock, and when he freed himself,
he grabbed his pistol and instantly pulled the trigger, hitting Randall in the back of the
neck. Sergeant Rounsavall placed Matthews in handcuffs and put him into his patrol
car’s back seat. During that time, Matthews told the sergeant that he could not afford
to lose his job because he had to pay child support for his eight-year-old daughter.
Matthews passed out in the patrol car’s back seat.
Matthews had a small amount of blood on his shirt, his nose was a little
swollen, he had dried blood on the end of his nose and inside his nostrils, and his
neck showed some redness and scratches. He also had some bruising, scratches, and
redness on his chest, some scrapes to his left shoulder and right elbow, and small
bruises on his knees; Sergeant Rounsavall said Matthews looked “like he [had been]
on the ground, rolling around scraping on the ground.” On cross-examination,
Sergeant Rounsavall agreed that Matthews’s injuries were also consistent with having
been in a struggle, that a chokehold could cause the death of the person being choked,
and that one could still be in danger after escaping a chokehold.
9
Sergeant Rounsavall also testified that a few minutes after he placed Matthews
in his patrol car, Chelsey learned that Randall had died. Her grief-stricken cries are
audible in the body-camera footage.
At around 5 a.m., Louie Adams, Argyle’s only police detective at that time,
arrived at the scene. He called in Denton County’s crime-scene unit because it had
more resources and experience, and then he contacted the medical examiner’s office.
He observed Deputy Medical Examiner Tasha Greenberg’s autopsy of Randall the
next day.
Dr. Greenberg testified that Randall’s cause of death, a homicide, was the
gunshot wound, which had entered the left side of his neck below the ear and had
exited on the right side of the neck just behind the right ear. Randall also had a small
laceration on his forehead; some bruising on his left shoulder and upper back, which
Dr. Greenberg opined might have been related to Randall’s falling onto the edge of a
cabinet door; and some small abrasions elsewhere, including on his knees. Randall
had a scrape on his left hand that had been actively bleeding at the time of his death.
He also had heart disease, significant blockages of his coronary arteries, and
anthracosis (black pigment in his lungs from smoking).
With regard to the gun’s proximity to Randall’s gunshot wound, Dr. Greenberg
opined that the gunshot was from a distance because there was no muzzle imprint to
indicate that the muzzle had been against the skin, and there was no gunpowder
tattooing from the impact of burning gunpowder, which occurs at an intermediate
10
range.13 She stated that “distant usually implies from a few feet out to kind of
infinity,” and that it is difficult to determine an exact range of the gun’s muzzle to the
target because that depends on the specific gun, ammunition, and dimensions of the
room where the shooting occurred.
On cross-examination, Dr. Greenberg said that two feet or more from muzzle
to victim was the best she could estimate for the gunshot’s distance. She
acknowledged that Randall’s shirt could have been tested for gunpowder particles to
perform a more accurate distance determination, but she did not request such testing
because it was difficult to perform and was not routine. DPS firearms and toolmark
examiner Kevin Callahan testified that to his knowledge, there was no request for a
distance determination. On redirect, he stated that DPS’s policy was to perform a
distance determination only when there is a bullet hole in clothing. If the bullet entry
is on skin, then the medical examiner determines the distance. Randall’s shirt was
bloodstained and torn in the shoulder area but did not contain a bullet hole.
13
Defense expert witness Jamie Becker testified that tattooing occurs when
gunpowder particles impact the skin and bury themselves into it and that stippling
occurs when the gunpowder particles hit with enough velocity to leave a punctuated
mark or bruise; neither tattooing nor stippling can be washed or wiped off.
Gunpowder that has lost velocity and merely sticks to or lands on skin can be wiped
off and removed.
11
Denton County Sheriff’s Office forensic investigator Ashleigh Berg14 testified
that she had been called to assist the Argyle police at 4:53 a.m.; she arrived at the
scene around 6 a.m. While awaiting a search warrant, she obtained the gun from
Sergeant Rounsavall, collected a gunshot-residue sample from Matthews’s hands, and
took photographs of Matthews. When she photographed Matthews, she could see
several red marks on both sides of his neck and the back of his neck.
Berg photographed the house. The small kitchen had two exits—one into the
back of the house and one into the living room. There was a blue gym bag15 on the
kitchen floor not far from Randall’s legs; it contained a Springfield magazine loaded
with ammunition similar to that found with the gun.16 A spent cartridge case from
14
Berg had a master’s degree in forensic psychology and set up the Wise County
crime-scene unit while completing her master’s program. She was a certified peace
officer and had been with the Denton County Sheriff’s Office for eight years. She
was also an adjunct professor in the Texas Forensic Science Academy through Texas
A&M University, developing post-professional education for state, national, and
international law enforcement. Berg had 400 hours of post-professional training in
blood-stain-pattern analysis, was on the Association for Crime Scene Reconstruction’s
board of directors, and was a member of the International Association of Blood Stain
Pattern Analysts.
15
According to Chelsey and Baires, Matthews always carried this bag, which
contained his wallet and other belongings, including his gun. Berg testified that the
bag was not collected when the first search warrant was executed but that it was still
there when the police executed a second search warrant.
16
Callahan testified that Matthews’s gun had only passive safeties, which are
“safeties within the firearm that when you go through a normal shooting motion, they
automatically deactivate themselves,” and “are on until you go through a shooting
motion to turn them off.” The gun’s trigger pull—the amount of force necessary on
the trigger to effectively discharge the weapon—was a little over 5 pounds. For
12
Matthews’s gun was found on some papers on the counter by the refrigerator.17 A
bag of miscellaneous ammunition and a box of Winchester 9-mm ammunition were
also on the kitchen counter.
Based on her blood-flow-pattern analysis, Berg said that Randall’s head had
been in an upright position when he suffered his forehead laceration. There were
multiple blood-stain patterns on the lower cabinet door behind where Randall had
fallen, as well as on the counter near the sink. Based on Randall’s head wound and the
blood-stain pattern, Berg concluded that what likely had occurred was that Randall’s
head had hit the sharp edge of the cabinet and then he slid, causing a “swipe” stain.
She could not determine whether it happened before or after the gunshot.18 She
analyzed the bullet’s trajectory to determine at what angle it went into the wall and
determined that it went in at approximately 27 or 28 degrees, plus or minus 5
degrees.19 After hitting and killing Randall, the bullet had gone through three layers of
comparative purposes, Callahan said that carrying a gallon of milk on one finger was
eight pounds, breaking the seal on a can of soda was about 4.5 pounds, and fully
opening the can was about 6.5 pounds.
17
Berg stated, “[O]nce a casing is ejected or expended, it behaves like a pin ball.
It can ricochet off any number of surfaces in an environment.”
18
Berg explained that crime-scene reconstruction involves the use of inductive
and deductive reasoning and the scientific method to reconstruct the events of a given
crime, starting from the end point and working backwards using all of the evidence.
19
Berg testified, “[Y]our angle in shooting analysis or trajectory analysis is
always an approximation. It’s plus or minus five degrees. It’s never an exact angle.”
13
wall before bouncing off the back of the home’s exterior wall.20 Berg’s scene-
reconstruction diagrams were admitted into evidence without objection and published
to the jury.
Based on Berg’s reconstruction from the location of Randall’s entry and exit
wounds and where the bullet hit the wall, she deduced that Randall had been standing
when he was shot and had been facing the door towards the living room. Berg’s 3-D
trajectory model placed Matthews in the doorway leading to the laundry room,
roughly four feet away from Randall at the time of the shooting.
B. The Defense’s Case
Becker, a firearm and toolmark analyst and forensic consultant,21 and three
character witnesses—a coworker, a sibling, and the maternal grandmother of
The plus-or-minus is part of the analysis because there is variation in a bullet’s flight
path, and there will be variation when it strikes the surface.
Berg testified that the police returned to the home on August 2 to cut out the
20
piece of bullet-struck wall. During the defense’s case, Becker agreed that Berg’s
testimony had been that “[the police] saw it, overlooked it, left it and then had to
come back for it,” and stated that alterations or changes to the pieces of wall could
have affected Berg’s ultimate conclusions.
21
Becker had worked in forensics for thirty-three years, including sixteen years
at the Tarrant County Medical Examiner’s Office. She provided continuing education
services to prosecutors, defense attorneys, crime-scene investigators, and police
officers on firearms and was a member of the Association of Firearm and Toolmark
Examiners. Berg had been an intern in the Tarrant County Medical Examiner’s
Office in the early 2000s, during Becker’s tenure, and Becker had come into contact
with her again when Berg started working for the Denton County Sheriff’s Office.
14
Matthews’s daughter22—testified in the defense’s case before Matthews took the
stand.
Becker testified that at the time of the 2017 offense, she had still been working
in the Tarrant County Medical Examiner’s Office crime laboratory as the technical
leader of the firearms section. Becker stated that Denton County or the Argyle police
could have asked the Tarrant County Medical Examiner’s Office to perform distance-
determining testing. Becker, who had written Tarrant County’s distance-testing
policies and procedures, stated that in 2017, the medical examiner’s office would have
done the distance determination in this case.23 However, at no point from July 2017
onward did Berg ever call her about the case.
Based on her review of the file, Becker said that she would not disagree with
Dr. Greenberg’s testimony that the minimum firing distance would have been about
two to four feet. From the crime-scene photos, she saw potential gunpowder residue
on Randall’s left sleeve and left chest area and explained that the closer the gun’s
muzzle was to a target contact, the heavier the residue deposition.
Matthews’s three character witnesses all opined that he was a peaceful and
22
law-abiding citizen.
Becker stated that the distance-determination process includes a stereoscopic
23
examination (examination under magnification of the target material) as well as tracing
or mapping of the location of any gunpowder residue or particles, digital or
alternative-light-source photography, and chemical testing for the presence of nitrites,
copper, and lead.
15
Becker agreed that trajectory does not identify where the shooter was standing
but rather where the weapon was when it was fired. She stated that her mathematical
calculations on the hole created in the wall by the gunshot were different from
Berg’s—and that Berg should have shown her mathematical work in her report—but
that they “came in more of an agreement as to the angle of th[e] bullet hole” with
Berg’s testimony that the angle was about 27 or 28, plus or minus 5 degrees.24 Becker
said that she had come up with some different measurements than Berg, with a wider
angle—33 degrees, from the drywall—and a narrower angle—18 degrees from the
first wall layer—which averaged to 25.5 degrees, and that she would have reported
both, as well as the break in the chain of custody.25 She also disagreed with Berg’s
models because after the bullet struck Randall’s neck, it would no longer have
travelled in a straight line, but she could not say how much destabilization of the
bullet’s flight path had occurred after it was deflected by striking one of Randall’s
bones before it hit the wall. Becker would have included a limitation statement about
the deflection.
24
Becker testified that Berg should have included a limitation statement about
how or when the pieces of wall were collected because they had not initially been
collected during the execution of the first search warrant.
25
Becker agreed on cross-examination with the statement that “[a]ll three
methods used by two different people came to pretty much the same conclusion.”
Becker did not check the vertical trajectory and said she would not quibble with
Berg’s calculations on that because, looking at the photographs, she had no reason to
doubt “the 90 plus or minus five.”
16
Becker stated that Greenberg’s representation of where Randall had stood was
not the only position he could have been in because the angle of a bullet says nothing
about which way someone’s head was turned. Rather, the bullet angle provides
information on entry, exit, and the bullet’s ultimate resting place.
Matthews testified that he had lived in the small two-bedroom house for a little
over three years; Chelsey had lived there for a little over a year after picking up the
lease from Kyle. Four months after she started living there, Chelsey initially told him
that Randall would be staying there for “a couple nights,” and he had not objected.
By July 30, 2017, Randall had been living with them for approximately nine months.
Matthews stated that during the nine-month period, he and Randall had been
cordial but had never become friends and mainly tried to avoid each other. He denied
having had any disagreements with Randall before July 3026 and said that he spoke to
Chelsey when there were problems such as when Randall smoked inside the house.
When Randall had an issue with Matthews, Randall would call Chelsey. Matthews
occasionally had conversations with Chelsey about her father’s staying there longer
than was expected.27
During cross-examination, Matthews said he was unaware how Randall felt
26
about his messiness and denied that Randall had ever left dirty dishes on Matthews’s
bed, but he agreed that Chelsey had told him about Randall’s complaints that
Matthews was too loud and stayed up too late.
On cross-examination, Matthews agreed that Randall had overstayed his
27
welcome and that he had wanted Randall to leave.
17
At the time of the shooting, Matthews had been working for four years at a job
he loved. When asked why it seemed he was more concerned about his job than
Randall during the 911 call, Matthews testified, “I don’t know exactly where my head
was at precisely. I know that I had called the cops, and I knew the cops were on the
way. And I guess in my head at that time I thought the next best thing to do was call
my employer,” since he had to be at work at 8 a.m. that morning.
Matthews testified that he had nothing to drink before getting to the bar
around seven that night and that he drank between six and eight beers.28 Thomas,
Chelsey, and Joe were there when he arrived, and Baires arrived shortly thereafter.
Living arrangements at the house did not come up until after Baires arrived.
According to Matthews, at some point after that, Chelsey told him that she and Joe
were thinking about moving in together and asked whether he would consider taking
over the lease. Matthews said that he would take over the lease but that there would
be some changes, such as Randall’s having to move out.29 Chelsey told Matthews that
she wanted to wait for two weeks to say anything to Randall because she did not want
On cross-examination, Matthews agreed that he had also consumed “[m]aybe
28
two” Vegas Bomb shots. He said he had not been drunk but acknowledged that there
were parts of the evening he did not completely remember.
29
Matthews said that at that point in the conversation, Randall’s moving out
“was a joke, but a joke with some like obvious realness behind it.” Matthews stated
that he jokingly asked her if Randall was going to be staying with her at Joe’s house.
Matthews said that it was not uncommon for Chelsey’s friends to make jokes at
Randall’s expense.
18
an upcoming family reunion to be awkward. Matthews stated that at some point, the
conversation became uncomfortable because Thomas started bashing Randall.30 Joe
ended the conversation about Randall, stating that it had gone too far.
Around 11 p.m., Chelsey, Joe, Thomas, and Baires left. Matthews had a couple
more drinks and stayed until the bar closed at 2 a.m. because he was interested in the
new bartender. He spent the rest of the evening trying to talk to her and going out to
smoke with her when she took smoke breaks.
When the bar closed, Matthews opted not to risk driving and went to sleep in
his car. When he woke up, he drove home despite still feeling some level of
intoxication. He went inside and petted his dog, and the dog made noises that might
have been loud enough to wake someone. He then heard a loud noise like a
slamming door from the back of the house. Matthews went through the kitchen,
planning to let his dog go outside before checking the noise. After letting his dog out,
he heard a loud noise from the front of the house, which again sounded like a
slamming door. He sat in the living room to wait for his dog to finish urinating, and
Randall either came in or went out, slamming the patio door, and making a loud
comment. Matthews did not recall the comment.31
30
Randall had been married to Thomas’s mother for around ten years, until
Thomas was around thirteen years old. Thomas described his relationship with
Randall as “[p]retty good” until his mother and Randall broke up.
31
Matthews testified on direct examination that Randall slammed the patio door
in front of him and made the comment while Matthews was sitting there and then
19
Matthews replied to Randall that he did not know what Randall’s problem was
but that nobody needed his attitude. Randall responded by asking him who he was
talking to, implying “[Y]ou aren’t going to talk to me like that.” Matthews said he was
still sitting and that Randall, who was upset, neared to within a foot or two. Matthews
then told Randall that he did not have to watch what he said because Randall was
going to be leaving in about two weeks. Matthews said this made Randall even more
upset. Words, including some profanity, began flying between them. Randall told
him that he did not believe him and that he needed to verify his eviction by calling
Chelsey.
Randall called Chelsey and, according to Matthews, asked her if he was being
kicked out.32 At some point, Randall stopped talking to Chelsey and started talking to
Matthews again.33 Matthews made his way into the kitchen because Randall was
inching back towards him again and was “very unhappy with [Matthews] at that
point,” and their argument proceeded to screaming at each other. Matthews said that
proceeded to come towards him. On cross-examination, Matthews said that Randall
had been on his way outside and then Randall turned around, came right back in,
walked up to confront him, and said, “What did you say to me?” and “Watch how
you’re talking to me.”
32
On cross-examination, Matthews agreed that Randall could have called
Chelsey later that day about the eviction but that “he must have felt like he had to do
it right then,” at 4 a.m.
33
Matthews also agreed that he could have gone outside or to his bedroom
while Randall was talking with Chelsey. Instead, he continued to yell insults at
Randall.
20
as they argued, Randall kept approaching, and when he called Randall a mooch and a
bum,34 this triggered a violent response—Randall came at him with his elbow and
smashed Matthews in the face.35 Matthews said the pain was blinding and that he was
shocked and became worried because he had not expected the altercation to become
physical; Randall, a bigger man,36 had never attacked him before.
Matthews kept a loaded gun in his duffle bag,37 which he ordinarily left in the
kitchen; the unzipped bag was on the counter.38 After Randall hit him, Matthews
could not see, and Randall proceeded to wrestle with him. At some point, Randall
bent him over, put him in a headlock, and got a chokehold around Matthews’s neck.
Matthews said that Randall started to suffocate him and force him to the ground,
putting Matthews in fear for his life. He was in the chokehold for five to ten seconds
before he could get to his knees and sustain enough leverage to force Randall off of
34
Matthews agreed that he had also called Randall a loser and a “piece of sh-t.”
Matthews stated that he did not recall exactly what he said to Randall that
35
caused Randall to attack him.
Randall weighed 268.9 pounds and was six feet, one inches tall. Matthews
36
weighed 240 pounds and was five feet, eleven inches tall.
37
Matthews said that there had been a bullet in the gun’s chamber and fifteen
rounds in the magazine.
38
On cross-examination, Matthews said that he had brought the bag in from his
car when he entered the house and that he had put it down in the kitchen on the
counter.
21
him.39 At that moment, he saw his bag with the gun on the floor within arm’s
distance, where it had been knocked during the struggle, and he went for the gun. As
he stood up, he fired the gun. Matthews said that he had not believed that the fight
was over when he fired the gun and that he had felt in fear for his life.
Matthews agreed that Randall had not been directly facing him when he fired
the gun and that Randall had been at least two feet away. When asked if he thought
there had been any other action he could take short of firing the weapon, Matthews
said no. He explained, “I needed the attack to stop. I was -- I didn’t know if it was
going to proceed. I didn’t -- I didn’t know what was next, but I was nearly choked
out.” He said, “[T]he thought in that moment was I was -- I was attacked and my gun
was there. I -- I went for my closest defense in that moment.” He said that after
firing the weapon, he was in shock.
When asked whether he had heard Randall tell Chelsey to call the police,
Matthews said that he had not and that he did not believe Randall had said that. He
denied having said, “Ha, you probably should call the cops,” or “Yeah, you better call
911.” He also denied that Randall had tried to get out of the house before he shot
him, that he had tried to block Randall from leaving, or that he had walked over to get
the gun. Matthews agreed that Chelsey had heard the gunshot and that he had heard
screaming coming from Randall’s phone.
39
On cross-examination, Matthews denied—contrary to Chelsey’s testimony—
that Randall had said, “Hey, I am going to let you up, but you need to go cool down.”
22
Matthews said that his phone description to the 911 operator—that Randall
had “tried to f---ing choke [him] out on the ground, and [he] broke away and [he] shot
him”—was how it happened. He denied having ever made a statement to the effect
that if someone committed murder, he “should do CPR to make it look like it was
self-defense.” He stated that he did not begin CPR before being told to do so by the
911 operator because he thought Randall was dead.
During cross-examination, Matthews agreed that there was a doorway behind
him that would have led to the backyard and other parts of the house, while the stove
and a cabinet were behind Randall. He agreed that the police station was within
walking distance and that Randall did not have a gun, a knife, or any other weapons.
On redirect, Matthews testified that he had never attacked Randall, that he did
not kill him because he wanted him out of the house, and that he did not go into the
kitchen wanting to kill him. He did not want to kill Randall when he picked up the
gun; he wanted the assault to stop and did not see any other way to end it other than
by shooting Randall. He stated that he thought Randall would have continued the
assault if he had not shot him and that he had been in fear of losing his life because
there was no one to stop the assault. Matthews said that he did not know whether he
would have been able to get away from Randall to run to the police station.
23
C. The Jury Charge, Closing Arguments, and Verdict
Eleven days passed between the closing of the parties’ cases and the trial’s
reconvening, when the jury was instructed on self-defense and closing arguments were
made. See Tex. Penal Code Ann. §§ 9.31(a)–(b), (e), .32(c).
The prosecutor argued that Matthews had murdered Randall without
justification when he intentionally or knowingly shot him and that the jury’s job was
to judge Matthews’s credibility with regard to whether shooting Randall was
immediate, necessary, in response to unlawful deadly force, and reasonable. See id.
She stated, “He was drunk. He was mad. And he murdered Randy Glover.”
Defense counsel argued that Randall hit Matthews first and overpowered him
and that Matthews had been in fear for his life because a chokehold can kill; she asked
the jury to determine what a reasonable person standing in Matthews’s shoes would
have done. Defense counsel also argued that the State had not brought any evidence
to contradict Matthews’s character witnesses and that there was nothing to indicate
that Matthews was the kind of monster who would kill someone “just because he did
not want him as a roommate.” Defense counsel pointed out that Chelsey’s written
police statement never mentioned hearing footsteps, and she contended that Randall
would not have allowed Matthews to walk away to get the gun and that the scattered
items, including the gym bag containing the gun, had been on the kitchen floor.
Defense counsel argued, “[I]t’s entirely reasonable to believe that [Matthews]
24
knocked . . . the bag over, it fell on to the floor, he grabbed the gun, and because he
was in fear of his life, that he fired the weapon.”
In rebuttal, the prosecutor argued that Matthews’s behavior that night was not
that of a reasonable person when he stayed out until 2 a.m., passed out in his car, had
at least eight drinks and two shots, and was more worried about calling his job than
performing CPR on the man he had shot. She contended that the evidence showed
that Matthews shot Randall instead of exiting from either kitchen door and that
Matthews’s description of events was impossible.
The jury deliberated for several hours over two days before finding Matthews
guilty of murder.
D. Application of Law to Facts
In his single issue, Matthews argues that there was no evidence to counter his
testimony that he feared for his life, that he was justified in using deadly force to the
extent he believed it was necessary to stop the assault, and that a rational trier of fact
could not have found against his self-defense claim beyond a reasonable doubt.
When a jury finds the defendant guilty, there is an implicit finding against the
defensive theory. Zuliani, 97 S.W.3d at 594; see Gaona, 498 S.W.3d at 709 (discussing
evidence to support jury’s rejection of self-defense claim).40 We may not act as a
In Gaona, when the appellant started to leave, the victim told him to get out of
40
his car and fight. 498 S.W.3d at 707. The appellant testified that the victim had
threatened to kill him when he refused to fight and that he knew the victim had a gun.
Id. The court concluded that the evidence was sufficient to support the jury’s murder
25
thirteenth juror and must not disregard, realign, or reevaluate the weight and
credibility of the evidence. Fountain v. State, 604 S.W.3d 578, 583 (Tex. App.—
Houston [14th Dist.] 2020, no pet.) (discussing evidence to support jury’s rejection of
self-defense claim).41 When the record supports conflicting inferences, we presume
the jury resolved the conflicts in favor of the prosecution and defer to that
determination. Id.
The evidence shows that Matthews killed Randall, an unarmed man over
twenty years his senior,42 by firing a gun at him in the kitchen’s close confines. Based
on the remaining evidence presented at trial, the jury could have determined that
Matthews had murdered Randall without justification, could have believed or
finding, noting that even if it assumed the appellant’s version of events would be
sufficient to justify his use of deadly force, “other evidence disputed that version and
support[ed] the jury’s rejection of his self-defense claim.” Id. at 709–10 (“A rational
jury could have concluded appellant never believed deadly force was immediately
necessary to protect himself against any unlawful deadly force but that he was angered
when [the victim] cursed at him.”).
41
In Fountain, the appellant, who was driving around with a loaded AR-15
assault rifle, shot the unarmed victim, and a security camera at a nearby residence
recorded the incident. 604 S.W.3d at 581. The appellant testified that in the days
before the shooting, the victim had sent him text messages and had made social-
media postings threatening to kill him and his sister. Id. at 581–82. Despite the
appellant’s arguments that the victim’s pre-shooting threats against him and his family,
as well as other evidence that the victim was prone to violence, weighed in his favor,
“[t]he jury could have concluded from th[e] evidence that, under the circumstances,
appellant did not reasonably believe that deadly force was immediately necessary to
protect himself.” Id. at 584.
42
Matthews was thirty-five years old at the time of the trial.
26
disbelieved various portions of Matthews’s or Chelsey’s version of events,43 or could
have believed Matthews’s account but nonetheless found against his self-defense
claim because it determined that his belief that deadly force was immediately
necessary was no longer reasonable44 after he freed himself from the chokehold. See
Tex. Penal Code Ann. §§ 9.31(a), .32(a). The jury was entitled to resolve any conflicts
in the evidence and to determine the witnesses’ credibility, see Martin, 635 S.W.3d at
679; Fountain, 604 S.W.3d at 583; Gaona, 498 S.W.3d at 710, and there was ample
evidence for it to do so. Accordingly, we overrule Matthews’s sole issue.
43
For example, the jury could have chosen to disbelieve Matthews’s testimony
that Randall had called Chelsey at 4 a.m. to verify that she was evicting him in two
weeks and instead to believe Chelsey’s testimony that Randall called her to ask what
was wrong with Matthews. The jury could have chosen to believe Chelsey’s testimony
that she heard footsteps before Matthews fired the gun over Matthews’s testimony
that the gun was on the floor where his bag had fallen and that he fired the gun as he
stood up. Further, the jury could have chosen to believe Berg’s testimony and
diagrams over Becker’s testimony with regard to distance determination, bullet angle,
and how Randall was standing when Matthews shot him.
44
Under the Penal Code’s self-defense provisions, the “reasonably believes”
language contains both subjective and objective components. Lozano, 636 S.W.3d at
32. The defendant must subjectively believe that another person used or attempted to
use unlawful or deadly force against him and that the defendant’s use of unlawful or
deadly force in response was immediately necessary. Id. And the defendant’s
subjective belief must be reasonable, i.e., a belief that is held by an “ordinary and
prudent man in the same circumstances as the actor.” Id. (citing Tex. Penal Code
Ann. § 1.07(a)(42), which defines “reasonable belief”). The “ordinary and prudent
person” standard typically operates as a limitation on defendants who harbor
unreasonable beliefs that the use of deadly force was immediately necessary, but it
may also prevent a jury from acquitting a defendant based on self-defense when the
defendant did not believe that he acted in self-defense. Id. at 33.
27
IV. CONCLUSION
Having overruled Matthews’s sole issue, we affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 10, 2022
28 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483485/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-22-00382-CV
RAN LI, Appellant § On Appeal from the 96th District Court
V. § of Tarrant County (096-326383-21)
§ November 10, 2022
YAXIN LI, Appellee § Memorandum Opinion by Justice Walker
JUDGMENT
This court has considered the record on appeal in this case and holds that the
appeal should be dismissed. It is ordered that the appeal is dismissed for want of
jurisdiction.
SECOND DISTRICT COURT OF APPEALS
By /s/ Brian Walker
Justice Brian Walker | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483582/ | Filed 11/14/22 Christenfeld v. Regents of the University of Cal. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
NICHOLAS CHRISTENFELD,
Plaintiff and Appellant,
A162690
v.
REGENTS OF THE UNIVERSITY (Alameda County
OF CALIFORNIA, Super. Ct. No. RG19036427)
Defendant and Respondent.
Appellant Nicholas Christenfeld, a psychology professor, participated in
a process that resulted in the graduate-school admission of a student with
whom he was having a sexual and romantic relationship. After this was
discovered, he and the university entered into an informal agreement in
which he agreed to certain terms, one of which provided that disciplinary
charges would be filed if the university received further credible reports that
he violated the faculty’s code of conduct or the university’s sexual harassment
policy.
Years later, Christenfeld sent unsolicited pornographic images to a
different female student using his university email account, although the
parties agree that the student was not the intended recipient. The university
filed disciplinary charges seeking to dismiss him. After a disciplinary
committee agreed with that penalty and it was adopted by respondent
1
Regents of the University of California (the Regents), Christenfeld sought a
petition for a writ of administrative mandate, which the trial court denied.
In this appeal, Christenfeld argues that he did not receive a fair disciplinary
hearing, that the disciplinary committee’s findings were not supported by
sufficient evidence, and that his termination was an abuse of discretion. We
affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Christenfeld began working at the University of California, San Diego
(UC San Diego or the university) in 1991. He was a professor in the
psychology department.
Jane Doe 1 transferred to UC San Diego from community college in fall
2010. During her first semester there, she took an introduction to social
psychology course taught by Christenfeld. Later, in winter 2012, Jane Doe 1
took a smaller seminar with Christenfeld. She began visiting him during his
office hours, where they would talk for several hours about social psychology,
how she might prepare to attend graduate school, and other topics.
Christenfeld is 25 years older that Jane Doe 1, which meant that at the time
he was more than twice her age. They sometimes discussed sexuality (the
subject of her honors thesis), which led to more generalized discussions about
sexual topics, as well as flirting.
After the course ended, the two continued to communicate by email,
and in April 2012 they met for the first time outside office hours. They
quickly began a romantic and sexual relationship, which spanned the next
four years.
A different professor, who was Jane Doe 1’s primary academic mentor
and her honors thesis advisor, let Doe 1 use office space in her lab.
2
Christenfeld and Jane Doe 1 had sex dozens of time in that space because the
room was bigger and more private than Christenfeld’s office, and Jane Doe 1
did not often see the professor in that lab.
In November or December 2012, Jane Doe 1 applied to the UC San
Diego psychology department’s Ph.D. program. Christenfeld did not want to
“officially” recuse himself from her admission process, but they discussed how
he could avoid influencing her admission to the program.
UC San Diego’s psychology department had a total of around six areas
of study, including developmental psychology and cognitive psychology. Jane
Doe 1 was interested in social psychology, one of several areas of study within
psychology. Christenfeld was one of four social psychology faculty members
in a department of around 25 people.
One-on-one interviews for prospective psychology graduate students
took place in February 2013. Jane Doe 1 and Christenfeld knew in advance
that he was one of three people who would separately be interviewing her,
though neither one of them requested that he be her interviewer.
Christenfeld interviewed 14 people that year, or more than twice what would
be considered a lot of people to interview, and he could have requested not to
interview Jane Doe 1. When Christenfeld interviewed Doe 1, they met for
around 30 minutes and mostly discussed topics unrelated to her fitness for
the program.
With most applicants, the three interviewers would separately evaluate
the candidate. Christenfeld suggested that the three interviewers send in
their recommendations regarding Jane Doe 1 as a group. Jane Doe 1’s
academic mentor (the one whose lab space Doe had been using to have sex
with Christenfeld) found the suggestion “odd” and believed it was designed so
that Christenfeld could “make sure that [Jane Doe 1] did indeed get into the
3
program.” The professor explained that “when we did meet as a group, he
[Christenfeld] was very positive about her, and I think that then you can
persuade people, yes, this is somebody that we—and you’re not on paper
having said ‘I want this graduate student for my own.’ ” Christenfeld did not
evaluate Doe 1 through the department’s online system. But when the
admissions committee asked for individual rankings, Christenfeld sent an
email stating he thought Doe 1 was one of the two best applicants for the
graduate program. Jane Doe 1 was accepted into the graduate program.
In the middle of March 2013, after Jane Doe 1 had been admitted, she
and Christenfeld met in the afternoon to have sex in the lab space.
Afterward, they were lying on the ground fully clothed and talking while
Jane Doe 1 waited to hear from a postdoctoral researcher who was visiting
from out of town. Doe thought the researcher would call or text first so they
could meet to discuss a project, but instead the researcher knocked on the
door along with a second person. It took around a minute for Doe 1 to answer
the door, and when she opened it she blocked the door from fully opening.
Her hair was messy, her face was flushed, the breast area of her tank top was
wet, and it appeared to the researcher that she had just had sex. Doe 1
would not let the visitors into the lab and told them she was with
Christenfeld analyzing data.
The next day, the visiting researcher told the chair of the psychology
department and two other psychology professors about the incident. The
chair then reported it to the university’s office for the prevention of
harassment and discrimination, which began an investigation.
Christenfeld communicated “quite a bit” with Jane Doe 1 about how to
handle investigators’ questions. The two of them continued to engage in
sexual activity. Jane Doe 1 met with the head of the office of prevention of
4
harassment and discrimination to discuss her relationship with Christenfeld.
In an effort to protect Christenfeld, she reported that she had not had sexual
intercourse in the lab on the day they were discovered there. Doe 1 also
misrepresented to the investigator that she was no longer in a relationship
with Christenfeld, again in an effort to protect him. Christenfeld also
discussed with Jane Doe 1 his own meetings with investigators. They
discussed his “clever argument” that Christenfeld did not reasonably have
supervisory authority over Jane Doe 1 because she “could be considered
outside the social psychology area, in a different area of the psychology
department” from Christenfeld.
Two members of the psychology department concluded in a report for
the department chair that Christenfeld had not unduly intervened in the
admissions process to have Jane Doe 1 accepted into the graduate program.
But they found that Christenfeld clearly had engaged in behavior that was
ethically and morally questionable, and that at the very least Christenfeld
demonstrated poor judgment. They also found that it was unclear whether
Christenfeld recognized there was a problem with his behavior. The office for
the prevention of harassment and discrimination concluded that it was “a
very close call” and that the “violation regarding evaluative authority [was]
somewhat technical in nature,” but it also concluded that Christenfeld had
been dishonest with his colleagues, which “damage[d] the integrity of the
[graduate] admissions process.” And that turned out to be the case. As Jane
Doe 1’s former mentor later explained, at least one “graduate student[] drew
the conclusion that the way you get into the program is you sleep with a
professor and you get in.”
In September 2013 Christenfeld and UC San Diego entered into an
informal resolution agreement to resolve the complaint (informal agreement).
5
Christenfeld agreed, among other things, not to enter into a romantic or
sexual relationship with any student for whom he had or could be expected to
have academic responsibility. He also agreed to attend a professional
boundaries course, to hold office hours with the door open, and to refrain from
holding office hours at campus pubs or other places that serve alcohol. The
agreement further provided: “If at any future time, additional credible
reports of such behavior on Professor Christenfeld’s part (regarding violations
of the Faculty Code of Conduct or the UC Policy on Sexual Harassment) are
reported to the Office for the Prevention of Harassment and Discrimination,
Professor Christenfeld understands and agrees that the EVC [Executive Vice
Chancellor] for Academic Affairs will immediately file charges in P&T
[Committee on Privilege and Tenure] and recommend discipline up to and
including termination, and provide P&T with the June 21, 2013 report and
findings already issued by OPHD [the office for the prevention of harassment
and discrimination], along with the new credible reports.”
As discussed in more detail below, Christenfeld apparently contends
that the informal agreement was akin to a settlement or plea agreement,
whereby the university was forever precluded from ever pursuing discipline
against Christenfeld based on his relationship with Jane Doe 1. Members of
the psychology department saw it differently. The chair of the department
viewed it as a “you’re-on-thin-ice type of statement.” The professor who later
became department chair considered that Christenfeld “was effectively . . . on
probation, that any further incident, then he would be brought up on a
recommendation of termination.”
Christenfeld and Jane Doe 1 continued to have a sexual relationship
after Christenfeld entered into the informal agreement. Christenfeld did not
feel that the agreement required him to end his relationship with Doe 1
6
because, as he understood it, the agreement referred only to entering into
new relationships. Jane Doe 1 ultimately transferred in August 2015 to a
different school on the east coast and by June 2016 had ended her ties with
Christenfeld.
The events leading to the discipline that directly gave rise to these
proceedings took place in April 2018. According to Christenfeld, he intended
to send an email to a woman with whom he communicates almost exclusively
electronically. When he addressed the email using his UCSD.edu account, he
mistyped a letter of the intended recipient’s email address, and the email
system auto-filled a different address, that of an undergraduate student
(Jane Doe 2), who previously had emailed a final exam to him. The email
Christenfeld sent had the subject line “w, now?” and contained two
pornographic images. The images showed two different women, both holding
erect penises between their exposed breasts.
According to the chair of the psychology department, Jane Doe 2 was
“very distraught” and cried when she received the email. She experienced
anxiety for which she sought medical treatment. According to an
investigative summary of the incident, Jane Doe 2 had planned to take a
summer course with Christenfeld but decided against it after receiving his
email, which meant she ended up having to enroll in two summer sessions
instead of one.
The email was reported to the university’s office for the prevention of
harassment and discrimination, which investigated. The office notified
Christenfeld of the complaint against him in early June, which is the first
time he realized he had misaddressed his email. Christenfeld emailed an
7
apology to Doe 2 and told her he had meant to send the email to his wife.1
His apology email stated, “I am profoundly sorry for the bewilderment and
horror this mistake must have caused, and am filled with shame and
remorse. I hope you will accept my heartfelt apology, and that this careless
fiasco will not poison your memories of [my] class.” An investigator reported
that Jane Doe 2 thought Christenfeld should not have sent the apology email,
which “also affected her and . . . was ‘too much for [her].’ ”
The chair of the psychology department concluded that Christenfeld’s
continued interaction with students and continued ability to use university
resources created a strong risk of immediate and serious harm to the
university community. He recommended that Christenfeld be placed on
involuntary leave.
In December 2018 the executive vice chancellor for academic affairs
submitted formal charges to the committee on privilege and tenure
(disciplinary committee), based both on Christenfeld’s relationship with Jane
Doe 1 and on his sending the email to Jane Doe 2. The vice chancellor
alleged that Christenfeld violated both the University of California’s faculty
code of conduct and the university’s policy on sexual violence and sexual
harassment.
The disciplinary committee held a three-day evidentiary hearing in
May 2019. Before witnesses testified, Christenfeld’s attorney objected that
Jane Doe 2 was not appearing as a witnesses and was therefore unavailable
1 Christenfeld later realized that the email in question was in fact
intended for another woman. An investigator spoke with the woman
Christenfeld said was the intended recipient. She said they did not generally
send sexual photos but speculated that Christenfeld might have sent them
because she did not know what certain terms meant. The woman did not
testify at Christenfeld’s disciplinary hearing.
8
for cross-examination. The university’s attorney stated that Jane Doe 2 was
unavailable because she declined to testify and the university lacked
subpoena power in administrative proceedings. The investigator who
interviewed Jane Doe 2 also declined to testify, as she had been appointed to
be a superior court judge and said she could not ethically testify. The
university’s attorney further argued that it was unnecessary in any event to
cross-examine Doe 2 because her credibility was not at issue. The committee
chair denied the objection.
Jane Doe 1 testified at the hearing. She explained that over the
previous seven years she had matured, had participated in intensive therapy,
and had “come to realize just how unhealthy and unbalanced” her
relationship with Christenfeld had been. She came to believe that they had
“what is called in clinical psychology a traumatic bond,” which is when
someone who is being victimized by someone else actually creates a “very
strong bond” with them, similar to the Stockholm syndrome. Although
Christenfeld never “specifically forced” Doe 1 to have sex, there were times
she did things with him sexually that she “didn’t really want to do” (including
“violent things”), which “created a very negative relationship for [her] to sex.”
She believed that Christenfeld was a predator who had exploited her. Doe 1
was concerned that what happened with Jane Doe 2 was caused by her
(Doe 1’s) failure to have been forthright about her relationship with
Christenfeld. Doe 1 was motivated to testify because she would “feel very
guilty” if someone else “f[ell] prey” to Christenfeld if she did not testify
truthfully.
Christenfeld also testified at the hearing. He expressed remorse for his
actions and said he apologized to Jane Doe 1. He claimed, though, that the
9
university was not seeking the truth but instead appeared “to be agenda
pushing,” which “surprised” him.
The disciplinary committee prepared a 14-page report for the
university chancellor. As for Jane Doe 1, the committee found that
Christenfeld’s behavior violated three provisions of the faculty code of
conduct and one provision of the policy against sexual violence and sexual
harassment. Specifically, committee members found that by entering into
and continuing a relationship with a student interested in social psychology
(his area of expertise) and evaluating her application to the graduate
program, Christenfeld violated policies prohibiting (1) entering into a
romantic or sexual relationship with a student for whom the person has, or
reasonably expects to have, academic responsibility (instructional,
evaluative, or supervisory), and (2) exercising that academic responsibility.
The committee further found that Christenfeld’s evaluation of Jane Doe 1
violated a policy prohibiting conflicts of interest and amounted to a serious
violation of policies governing professional conduct. As for Jane Doe 2, the
committee found that Christenfeld’s behavior violated the faculty code of
conduct and the sexual harassment policy. Specifically, the committee found
that Christenfeld’s email to Doe 2 was sexual harassment that created a
hostile environment as defined by the university (discussed further below),
and the sexual harassment was a serious violation of policies governing
professional conduct.
A majority of the committee members endorsed a recommendation that
Christenfeld be dismissed and that emeritus status be denied. The Regents
ultimately approved the recommendation that Christenfeld be terminated
and his emeritus status be denied.
10
Christenfeld filed a petition for writ of administrative mandate (Code
Civ. Proc., § 1094.5) in the trial court seeking an order directing the Regents
to set aside its administrative findings and decision imposed against him.
Both his original petition and his first amended petition alleged that because
he possessed a vested, fundamental right to his tenured faculty position, he
was entitled to have the trial court exercise its independent judgment in
reviewing the disciplinary committee’s findings (Code Civ. Proc., § 1094.5,
subd. (c)). But in his opening brief in support of his petition, Christenfeld
argued that the disciplinary committee’s findings against him were “not
supported by substantial evidence, much less clear and convincing evidence.”
The Regents’ opposition argued that the trial court was to review the
disciplinary committee’s findings for substantial evidence. Christenfeld’s
reply brief again asserted that the findings against him were not supported
by substantial evidence. In its order denying the petition, the trial court
concluded that the committee’s findings of policy violations were supported
by substantial evidence.
II.
DISCUSSION
A. Christenfeld Was Not Denied a Fair Administrative Hearing.
1. The Standard of Review.
For Christenfeld to have prevailed in the superior court on his petition
for a writ of administrative mandate, he was required to show that the
university “(1) acted without, or in excess of, its jurisdiction, (2) deprived
[him] of a fair administrative hearing, or (3) committed a prejudicial abuse of
discretion.” (Doe v. Regents of University of California (2021) 70 Cal.App.5th
521, 532.) “Abuse of discretion is established if the [agency] has not
proceeded in the manner required by law, the order or decision is not
11
supported by the findings, or the findings are not supported by the evidence.”
(Code Civ. Proc., § 1094.5, subd. (b); see also Doe at p. 532.)
Christenfeld first argues he was deprived of a fair disciplinary hearing
in several ways. “When reviewing a claim that a petitioner did not receive a
fair hearing, we uphold the trial court’s decision if it is supported by
substantial evidence, but when the evidence is substantially undisputed, the
issue becomes a question of law, which we review de novo.” (Doe v. Regents of
University of California, supra, 70 Cal.App.5th at p. 533.)
2. Jane Doe 2’s Unavailability for Cross-examination Did Not
Deprive Christenfeld of a Fair Hearing.
Christenfeld first renews his argument that he was deprived a fair
hearing because he was denied the opportunity to cross-examine Jane Doe 2.
We are not persuaded.
The university’s academic senate bylaws state that parties to
disciplinary hearings have the right “to conduct such cross examination as
may be required for a full and true disclosure of the facts.” (Italics added.)
Where an accused in university disciplinary proceedings faces serious
consequences and findings are likely to turn on the credibility of the
complainant, the complaining witness must be before the trier of fact so that
the person’s credibility may be evaluated. (Doe v. Regents of University of
California, supra, 70 Cal.App.5th at pp. 534–536.)
Christenfeld relies on a series of cases where college students were
accused of, but denied, having nonconsensual sexual contact with other
students. The courts in those cases concluded that the students had been
deprived of a fair hearing because the complainants had not been available
before the fact-finders, who thus were unable to assess the complainants’
credibility. (Doe v. Westmont College (2019) 34 Cal.App.5th 622, 625; Doe v.
12
Allee (2019) 30 Cal.App.5th 1036, 1039; Doe v. Claremont McKenna College
(2018) 25 Cal.App.5th 1055, 1057–1058.) We agree with the Regents that
those cases are distinguishable because Jane Doe 2’s credibility was not
central to the disciplinary committee’s determination. (Doe v. Regents of
University of California, supra, 70 Cal.App.5th at p. 536.)
The disciplinary committee concluded that Christenfeld’s email to Jane
Doe 2 violated the University of California’s policy against sexual violence
and sexual harassment. That policy prohibits sexual harassment, defined as
“unwelcome sexual advances, unwelcome requests for sexual favors, and
other unwelcome verbal, nonverbal or physical conduct of a sexual nature
when” it creates a hostile environment in that “such conduct is sufficiently
severe or pervasive that it unreasonably denies, adversely limits, or interferes
with a person’s participation in or benefit from the education, employment or
other programs and services of the University and creates an environment
that a reasonable person would find to be intimidating or offensive.” (Italics
added.) The committee further found that Christenfeld’s conduct violated the
faculty code of conduct by committing sexual harassment against a student
and by committing a serious violation against professional conduct. Jane
Doe 2’s credibility was not critical to any of these findings. It was undisputed
that the email Christenfeld sent to Jane Doe 2 from his UCSD.edu email
address contained pornography. Although it was also essentially undisputed
that Christenfeld did not intend to send the email to the student who
received it, that does not change the fact that the email was highly
inappropriate and that a reasonable person would find it to be offensive.
“This is not a ‘he-said, she-said’ case because the material facts are not in
dispute.” (Doe v. Regents of University of California, supra, 70 Cal.App.5th at
p. 536, italics added.)
13
Christenfeld contends that he should have been able to ask Doe 2
“about whether the single errant email unreasonably denied, adversely
limited, or interfered with her participation in or benefit from her education,
employment or other programs and services of the University, a critical
element to a finding of Sexual Harassment as defined by University policy.”
He disagrees with the disciplinary committee’s conclusion that it was
undisputed that Doe 2 changed her coursework. He apparently contends that
if Jane Doe 2 did not actually change her coursework, he could not have been
found to have unreasonably denied, adversely limited, or interfered with Jane
Doe 2’s participation in or benefit from the university, as set forth in its anti-
sexual harassment policy. Not so. Any student who enrolls in college can
reasonably expect not to receive unsolicited pornography from a professor. A
professor who sends such emails using a university email account should
understand that they may be received by a student and, if received, will
interfere with that student’s education.
The disciplinary committee also focused on Christenfeld’s lack of
insight into his use of his university email account to send sexually explicit
emails. Christenfeld wrote to Jane Doe 2 that he “would never deliberately
send you, or any student, any such thing,” a reference to the pornographic
email. But he “clarified” at the disciplinary hearing that he had been
“referring to unsolicited pornographic images, unwelcomed pornographic
images.” The disciplinary committee stated in its final decision that it “was
disappointed that a faculty member would suggest that sending such images
from a UCSD email account would be acceptable under different
circumstances.” As the chair of the psychology department put it, the fact a
faculty member who previously had faced discipline then used his university
email account to send pornographic images “engage[d] in potential behaviors
14
that could be that reckless would be—would be problematic and indicative of
the continued major risk to the university.”
In general, “disciplinary proceedings in university settings do not
require ‘all the safeguards and formalities of a criminal trial’ [citation] and a
university ‘ “is not required to convert its classrooms into courtrooms.” ’ ”
(Doe v. Regents of University of California, supra, 70 Cal.App.5th at p. 534.)
Although “the trend in case law has been to expect more adversarial and
criminal-trial-like procedures when a student is accused of sexual misconduct
and the complainant’s credibility is questioned” (ibid.), that was not the case
here. We thus reject Christenfeld’s argument that he was denied a fair
hearing because he was unable to cross-examine the recipient of his email
containing pornographic images.
3. The Charges Relating to Jane Doe 1 Were Not Time-barred or
Otherwise Improper.
Christenfeld next argues that disciplinary charges relating to Jane
Doe 1 were barred by the university’s faculty code of conduct. Again, we are
not persuaded.
The code provides that the chancellor must initiate disciplinary action
no later than three years after the chancellor is deemed to have known of an
alleged violation, defined as when an allegation is first reported to an
academic administrator at the level of department chair or above. Because
the chair of the psychology department was notified of Christenfeld and Jane
Doe 1’s relationship in March 2013, Christenfeld reasons, the university was
barred from bringing charges based on that relationship more than three
years later, in December 2018. This argument is based on an interpretation
of the informal agreement that we reject.
15
As we have recounted, the agreement provided that “[i]f at any future
time, additional credible reports of such behavior on Professor Christenfeld’s
part (regarding violations of the Faculty Code of Conduct or the UC Policy on
Sexual Harassment) are reported to the Office for the Prevention of
Harassment and Discrimination, Professor Christenfeld understands and
agrees that the EVC [Executive Vice Chancellor] for Academic Affairs will
immediately file charges in P&T [Committee on Privilege and Tenure] and
recommend discipline up to and including termination, and provide P&T with
the June 21, 2013 report and findings already issued by OPHD [the office for
the prevention of harassment and discrimination], along with the new
credible reports.” Christenfeld contends that under this agreement he “did
not expressly or implicitly waive his right” to be protected by the statute of
limitations, and the agreement authorized the vice chancellor to file charges
based on new alleged violations. But the vice chancellor is always authorized
to bring charges based on new reports of violations. The agreement
contemplated that when any new credible reports of misbehavior were
received, the executive vice chancellor could immediately recommend
discipline “up to and including termination,” without reference to the
seriousness of any future reports, an indication that a new complaint could be
based on the prior conduct.
A contract must be interpreted in a way as to make it reasonable and
capable of being carried into effect. (Civ. Code, § 1643.) The disciplinary
committee concluded that “[i]mposing an external three year limitation on
the agreement would alter the plain meaning of the language and defeat the
purpose of the agreement (to ensure that the behavior is not repeated).” The
trial court likewise concluded that, “[f]airly read, the Agreement placed
[Christenfeld] on notice that future acts of misconduct could subject him to
16
discipline including termination for his misconduct in 2013, and for
subsequent misconduct.” Reviewing the agreement de novo as there was no
conflicting extrinsic evidence as to its meaning (Brandwein v. Butler (2013)
218 Cal.App.4th 1485, 1497–1498), we agree. And because we find no
ambiguity in the agreement, we also reject Christenfeld’s argument that any
ambiguity should be interpreted in his favor (Civ. Code, § 1654).
We likewise reject Christenfeld’s related argument that to the extent
the university was permitted to pursue charges related to Jane Doe 1, the
scope of those charges was impermissibly expanded beyond his role in
evaluating Doe 1’s application for admission into UC San Diego’s graduate
program. We agree with the Regents that this is simply another way of
claiming that the university filed time-barred charges against him. And we
agree with the two chairs of the psychology department who considered
Christenfeld to be on a form of probation under the informal agreement.
Once he was accused of additional misconduct, the university was entitled
under its procedures and the informal agreement to pursue the charges it
pursued.
Christenfeld briefly contends that his disciplinary hearing “was
essentially a smear campaign and a forum for the University to shame [him]
and police faculty and graduate student morality.” Aside from this statement
providing further evidence that Christenfeld continues to minimize his
behavior and its effect on Jane Doe 1, it provides no support for issuing a writ
of mandate. “An administrative agency is not required to observe the strict
rules of evidence enforced in the courts, and the admission or rejection of
evidence is not ground for reversal unless there has been a denial of justice.”
(McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044, 1054.) There
being no such denial of justice here, we reject Christenfeld’s arguments.
17
B. Substantial Evidence Supports the Disciplinary Committee’s
Findings.
Christenfeld next argues that the disciplinary committee’s findings
were supported by insufficient evidence. The parties disagree both about the
standard of review and about whether there was sufficient evidence
supporting the committee’s conclusions. We agree with the Regents that we
review the findings for substantial evidence and that they are supported by
such evidence.
1. The Standard of Review.
Where an administrative decision does not involve a fundamental
vested right, the trial court reviews the record to determine whether the
findings and decision are supported by substantial evidence. (Doe v. Regents
of University of California, supra, 70 Cal.App.5th at pp. 532–533; Code Civ.
Proc., § 1094.5, subd. (b).) But where an administrative decision affects a
“vested, fundamental right[],” the trial court “exercises its independent
judgment upon the evidence disclosed [before the administrative body] in a
limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Code Civ.
Proc., § 1094.5, subd. (c).) “The courts must decide on a case-by-case basis
whether an administrative decision or class of decisions substantially affects
fundamental vested rights and thus requires independent judgment review.”
(Bixby at p. 144.)
Unlike in his briefs on the merits in the trial court, Christenfeld now
argues that that he possessed a fundamental vested right to his tenured
professorship and was thus entitled to a limited trial de novo. (E.g.,
Turner v. Board of Trustees (1976) 16 Cal.3d 818, 825 [“a tenured teacher
possesse[s] a vested right to be retained”].) He is mistaken. “[U]nder the
California Constitution, article IX, section 9, the University as a
18
constitutionally created state institution has been delegated the quasi-
judicial power to conduct its own administrative decisionmaking on staff
employment matters.” (Do v. Regents of University of California (2013)
216 Cal.App.4th 1474, 1477–1478; see also Strumsky v. San Diego County
Employees Retirement Assn. (1974) 11 Cal.3d 28, 34–35 [independent-
judgment review inapplicable to “agencies of constitutional origin which have
been granted limited judicial power by the Constitution itself”].) We thus
review the disciplinary committee’s decision for substantial evidence. There
is a strong presumption as to its correctness and “[w]e do not reweigh the
evidence; we indulge all presumptions and resolve all conflicts in favor of the
[university’s] decision. Its findings come before us ‘with a strong
presumption as to their correctness and regularity.’ ” (Camarena v. State
Personnel Bd. (1997) 54 Cal.App.4th 698, 701.)
Even if Christenfeld had been entitled to a less deferential standard of
review in the trial court, there is no indication that the result would have
been different. In its order denying Christenfeld’s petition, the trial court
stated it “disagree[d] in the strongest terms” with Christenfeld’s argument
that his conduct was “benign.” This suggests that the trial court did not
consider this a close case. Neither do we. The evidence supports the
committee’s findings.
2. Substantial Evidence Supports the Disciplinary Committee’s
Findings Regarding Jane Doe 1.
The disciplinary committee concluded that Christenfeld’s evaluation of
Jane Doe 1 for the graduate program at UC San Diego violated four
university policies. Specifically, the conduct violated policies against
(1) entering into a romantic or sexual relationship with any student for whom
the faculty member has or reasonably should expect to have academic
19
responsibility (instructional, evaluative, or supervisory), (2) exercising such
academic responsibility, and (3) violating policies against professional
conduct. The committee also concluded that Christenfeld violated the anti-
sexual harassment policy barring conflicts of interest where a faculty member
engages in a decision affecting a person with whom a faculty member has a
romantic or sexual relationship.
Christenfeld stresses that when he originally entered into a
relationship with Jane Doe 1 he did not have academic responsibility over
her. In making this argument, he quotes selectively from investigatory
memos prepared after the relationship was first discovered and suggests they
somehow absolved him of any wrongdoing. To the contrary, one concluded
that Christenfeld’s behavior posed ethical and moral issues and evinced poor
judgment, and the other stated that Christenfeld had been dishonest and did
not fully appreciate the problem with his conduct.
The remainder of Christenfeld’s arguments amount to casting the
evidence in the light most favorable to him. He quibbles about when Jane
Doe 1 became interested in social psychology, his field of expertise. He also
repeats his argument that he did not violate the informal agreement because
it barred him only from entering into a new relationship, not from continuing
his relationship with Doe 1. None of these arguments undermine the
committee’s ultimate conclusion, in light of all the evidence, that Christenfeld
was in a relationship with someone over whom he should reasonably have
expected to have academic responsibility.
Christenfeld characterizes his role in evaluating Jane Doe 1 for
admission to the graduate program as a “[m]arginal [v]iolation” of the faculty
code of conduct and again summarizes the evidence in the light most
favorable to him, downplaying the seriousness of the role he played. Giving
20
the deference we must to the disciplinary committee’s findings, we cannot
agree.
3. Substantial Evidence Supports the Disciplinary Committee’s
Findings Regarding Jane Doe 2.
We must also defer to the disciplinary committee’s findings that
Christenfeld’s sending pornographic images to Jane Doe 2 amounted to
sexual harassment in violation of the university polices against sexual
harassment. Again, we conclude that the committee’s conclusions were
supported by substantial evidence.
As he did at his discipline hearing, Christenfeld characterizes the
message he sent as an “errant email.” He acknowledges that the email
contained “sexually graphic images” but contends that it was not sent “with
any sexual intent of subtext [sic],” and the sexual content was not “severe.”
And he claims that a reasonable undergraduate student would not have
found the email to be “intimidating or offensive,” in violation of the
university’s anti-harassment policies. In support of this assertion, he points
to the testimony at his hearing that another professor teaches a course on
human sexuality. As part of that course, students are shown videos of people
masturbating and having anal sex, and the textbook is a “sex manual.”
Presumably students who sign up for a course in human sexuality would
know in advance that they would view explicit images, and they would
reasonably expect that those images would be presented with appropriate
context and for a legitimate educational purpose. This is far different from
receiving unsolicited sexually graphic images from a professor sent from a
university email account. Like the trial court, we disagree “in the strongest
terms” with Christenfeld’s argument that his behavior was benign, or that
21
that a reasonable undergraduate student would not be “intimidated or
offended” by his email.
Considering all the evidence in the light most favorable to the Regents,
we conclude that substantial evidence supports the disciplinary committee’s
findings that Christenfeld’s conduct with respect to Jane Doe 2 violated
university policies.
C. The Regents Did Not Abuse Its Discretion When It Fired Christenfeld
and Denied Him Emeritus Status.
Lastly, Christenfeld argues that his dismissal and the denial of
emeritus status was “an overly severe sanction” and asks us to set it aside.
(Bold and capitalization omitted.) He acknowledges that we review the
sanction for an abuse of discretion. That is, “ ‘[n]either a trial court nor an
appellate court is free to substitute its discretion for that of an administrative
agency concerning the degree of punishment imposed.’ ” (Hughes v. Board of
Architectural Examiners (1998) 68 Cal.App.4th 685, 692.) “Moreover, ‘[i]t is
only in the exceptional case, when it is shown that reasonable minds cannot
differ on the propriety of the penalty, that an abuse of discretion is shown.’ ”
(Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1106.)
Although reasonable minds might differ about the appropriateness of
Christenfeld’s discipline, we cannot say under the appropriate standard that
it amounted to an abuse of discretion.
III.
DISPOSITION
The judgment is affirmed. The Regents shall recover costs on appeal.
22
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Devine, J. *
*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Christenfeld v. Regents of The University of California A162690
23 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483579/ | Filed 11/14/22 Marriage of Stott CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of JOSHUA and
GRISEL STOTT.
JOSHUA STOTT,
E078373
Appellant,
(Super.Ct.No. FAMSS1900041)
v.
OPINION
GRISEL STOTT,
Respondent.
APPEAL from the Superior Court of San Bernardino County. Candice Garcia-
Rodrigo, Temporary Judge. (Pursuant to Cal. Const., art VI, §21.) Affirmed.
Joshua Stott, in pro. per., for Appellant.
Westover Law Group and Andrew L. Westover for Respondent.
1
Appellant Joshua Stott (Husband) appeals from the denial of a Request for Order
(RFO) filed by him seeking an order terminating all visits between his two children, B.S.
and A.S. (hereinafter, Minors) and their mother, respondent Grisel Stott (Wife), and
appointment of minor’s counsel. Husband alleged that Wife had been involved in a
domestic violence incident in front of Minors. The trial court denied the RFO without
hearing live testimony from any witnesses.
In this appeal, Petitioner contends the trial court (1) used an improper standard in
denying the RFO; (2) abused its discretion by denying the RFO without hearing
testimony pursuant to Family Code section 2171 ; and (3) abused its discretion by refusing
to appoint minor’s counsel pursuant to section 3150..
FACTUAL AND PROCEDURAL HISTORY
A. CUSTODY JUDGMENT
Husband and Wife have two children together, B.S. (born November 2009) and
A.S. (born March 2013). After a hearing, on June 1, 2021, the trial court made final
orders as to custody. The custody order has not been made part of the record on appeal.
Based on information in the pleadings, Husband and Wife were granted 50/50 physical
and legal custody.
B. REQUEST FOR ORDER
On October 8, 2021, Husband filed his RFO. He sought an order from the trial
court modifying visitation and appointment of minor’s counsel. He also sought a
1 All further statutory references are to the Family Code unless otherwise
indicated.
2
temporary emergency order. The trial court denied any emergency temporary order and
the matter was set for a hearing.
Husband sought to modify the court order entered on June 1, 2021. Husband
requested that no visitation occur between Wife and Minors before they could be
interviewed about a domestic violence incident involving Wife and her sister (Aunt). In
addition, he sought to have counsel appointed for Minors to ascertain what had occurred
while they were in Wife’s custody.
Husband provided a declaration. A.S. had recorded a video of Wife discussing the
custody hearing directly with her, which Husband argued was in violation of the “court’s
order.” The video would be available for the hearing. Wife threatened to take away
Minors’ extracurricular activities when she would become upset or inconvenienced. This
caused Minors extreme stress. Husband and Wife had problems working out the court’s
order as to custodial time. Husband declared, “It has always been believed that [Wife]
fails to comply with the court’s order not to drink alcohol within 24 hours of the visits,
because the children frequently come back from their visits reporting that their ‘mom got
drunk and drove them in the car.’ ”
Husband declared that on Monday, October 4, 2021, Minors were dropped off at
school by Wife. They immediately asked their teachers if they could go to the office.
Once in the office, they reported being stressed, unfocused and scared. Minors claimed
they had not slept all weekend while at Wife’s house. Minors also reported to office staff
that Wife had taken them to a party and was drunk at the party. Other partygoers had to
intervene when she attempted to drive them home. Their aunt took Wife’s keys and had
3
someone else take them home. Once they arrived home, Aunt and Wife got into an
altercation. Minors had to lock themselves in the bathroom because they were scared.
They believed they heard gunshots. When Minors came out of the bathroom, they
observed that Wife had a black eye. Husband claimed B.S. had texted an older half-
sibling, Jackie, while they were hiding during the domestic violence incident and Jackie
showed Husband the text messages.
Husband confronted Wife by texting her that he knew that she had been drunk. He
claimed to have seen a video of her drinking on social media and Husband’s dad had
received a “drunk text” from her. Wife did not admit to drinking. Husband concluded
his declaration, “Based on all of the above reasons, I respectfully request that the Court
grant my request ex parte and cease visitation with [Wife] pending appointment of
minor’s counsel and that the children be interviewed by the Family Court Services. I am
fearful that my kids are in danger. The children have reported that they are scared to tell
me anything because [Wife] tells them that they will go back to court. I believe that with
minor’s counsel they will have a voice and feel like they are finally being heard and these
issues can be addressed without it appearing as if I am looking for issues. I really always
hoped [Wife] would do the right thing by our children.”
Attached to the RFO were several exhibits. Exhibit 1 was a text message in
Spanish that had not been translated. Exhibit 2 was a text message with the name Jackie
on the top. An exchange by text message occurred, as follows:
4
“Where are you”
“Where’s [A.S]
“We’re in the room
“Moms room?
“I’m to[o] scared to come out
“Me to[o]
“I thought you left
“No
“Where’s [A.S]
“On her bed
“And mom?
“Sleeping.”
Exhibit 3 was a text message to Wife from Husband: “I know you got in a fight
with [Aunt] this past weekend and the kids are terrified from hearing and seeing all that
went with it. And I’m aware of this drunk text you sent my dad at 1:00[a.m.] also about
not living with [Aunt] anymore and stuff. The kids are really traumatized right now in
returning so soon. Let’s just let things cool off this week and let the kids stay here this
week and resume everything back to normal next week.” Wife responded, “Josh . . . I am
not going to argue with you because it’s really pointless. . . . [Aunt] is leaving in the
morning on vacation for two weeks, nothing is wrong, so don’t try to drag this out . . . I
am pick[ing] up my kids as usual . . . period.” Husband continued to text her, claiming
5
that something was wrong at her house. He claimed that Minors had not slept all
weekend and that she had failed to do A.S.’s homework with her. He insisted that
Minors had to lock themselves in her bathroom because they were scared “that night.”
Wife responded, “There is nothing wrong.” Husband responded, “Something is
definitely wrong if you don’t think that whatever went down was okay for the kids to
witness and be around.” Wife twice texted back, “good night.” Husband texted, “I never
said you’re not a parent but be an adult and admit your mistakes. You keep trying to act
like everything is fine but the kids are suffering from what you’re exposing them too. I
wish you would think about them and their well being instead of what kind of image you
have. Be a safe environment for them so you can be ‘involved.’ ” Wife responded, “You
need to calm down . . . your if anything causing all this distress.” Exhibit 4 was a copy of
photograph, which was too dark to see.
In the memorandum of points and authorities, Husband argued that California
Rules of Court, rule 5.240(b) provides that a court may appoint counsel to represent a
child’s best interests in the trial court if asked by a “party,” “attorney for a party,” a
“relative,” or a mediator. Appointment of minor’s counsel was appropriate in this case.
There had been issues regarding the violation of court orders by Wife and minor’s
counsel could help to alleviate the stress that Minors were feeling. Minors felt unsafe in
Wife’s home because of her frequent drinking and partying. Minors felt they were not
being heard.
6
C. RESPONSIVE DECLARATION TO RFO
Wife filed a responsive declaration. She received a message from Husband’s
attorney that suggested she voluntarily suspend her custodial time with Minors. Wife
surmised that after the custody trial, Husband was unhappy with the result. He was
continually interrogating Minors as to what was occurring in Wife’s home. On October
2, 2021, she and Minors went with Aunt and Aunt’s boyfriend to a party involving
extended family. Aunt’s boyfriend was driving that night as she and Aunt had planned to
enjoy alcoholic beverages along with food and cake. She was not “irresponsibly
intoxicated,” and never would be when caring for Minors. When they all arrived back
home, Minors went to sleep. Wife admitted she and Aunt got into a loud argument that
led to “pushing and shoving between ourselves.” Wife and Aunt reconciled in the
morning. They admitted they were both under a lot of stress. Wife insisted that she and
Aunt did not abuse alcohol or drugs. Minors were never in danger. The argument was
just a “bump in the road.” Wife, Aunt and Aunt’s boyfriend were all willing to testify
about the events of that night.
Wife also declared she had been residing with Aunt in order to save money. She
had spent “substantial sums in attorney’s fees” for the custody trial. She owned a home
but had to rent it out to save money. Wife had mistakenly believed that she texted her
parents that night, and not Husband’s father. She wanted to request a loan from her
parents so that she and Minors could move back into her home. The message went to
Husband’s father, which caused Husband to interrogate Minors as to what was occurring
in Wife’s home while they were in her custody.
7
Wife attached to the responsive declaration the message she received from
Husband’s lawyer. It notified her of the ex parte hearing requested by Husband “because
of the incident that have been going on between you guys.” It also stated, “And then also
the one this weekend when you and [Aunt] got in a fight uh in front of the kids and you
were drinking And try to drive. . . . And what we’re requesting is no visits and until the
kids can be interviewed from family court services. And also that a lawyer get appointed
to the kids so that there’s no more back and forth, it’s called miners Council.” (Sic.)
D. HEARING
The RFO was heard on November 22, 2021. Wife and Husband were present with
counsel. The trial court found that there had been a recent trial on custody and visitation.
There were final orders made after the trial. Based on the final custody and visitation
orders, the trial court felt, from a procedural stance, that the RFO required Husband to
make a prima facie showing there had been a material or substantial change in
circumstances since the custody order. The trial court’s tentative ruling was to deny the
RFO for failure to show a prima facie case of a material change in circumstances because
there had been no “competent evidence presented to support the request for change in
custody.”
Husband’s counsel argued that the RFO and Wife’s declaration showed that there
had been domestic violence in Wife’s home in front of Minors. Wife admitted to pushing
and shoving between her and Aunt in front of Minors. The text message from Jackie,
who was Wife’s older daughter from a prior relationship, showed she was afraid and
8
locked herself in the bedroom. Domestic violence issues were not addressed at the
custody trial.
The trial court stated that the statements were hearsay. They were not based on
Husband’s personal knowledge. Counsel for Husband again referred to the text message
from Jackie, which the trial court stated was hearsay. Wife had admitted to the incident.
The trial court disagreed that Wife admitted to pushing and shoving in front of Minors.
Husband’s counsel responded that Minors were in her care. Husband’s counsel insisted
the text messages between Wife and Husband showed there was an incident. Minor’s
counsel needed to be appointed in order to determine what had occurred. There were no
prior issues of domestic violence that had already been addressed by any court.
Wife’s counsel admitted Wife got into an argument with Aunt but they had
restored their relationship. Wife admitted she had texted Husband’s father that she was
upset and wanted to move out of sister’s home. Wife’s counsel argued, “The true facts
behind this situation is this is a father—ex-husband—who is very upset and disappointed
with the ruling that came down on the Montenegro hearing regarding the children which
resulted in an equal timesharing plan. This is the first opportunity he has had to use
anything to manipulate the circumstances into a request for a change of custody.” Wife’s
counsel argued it was disruptive for Minors.
Wife’s counsel advised the trial court that Minors went to a school run by
Husband’s mother and they lived with Husband’s mother so there was “far too much
influence . . . put on the children with [Husband’s] family.” Notwithstanding, Wife was
happy with the 50/50 custody arraignment with Husband and wanted no changes.
9
Husband’s counsel argued circumstances had changed since the custody order based on
Wife trying to drive drunk with Minors. Husband’s counsel argued that Wife admitted to
domestic violence in her responsive declaration. Counsel for Husband complained that
the trial court was not taking the domestic violence issues seriously.
The trial court ruled, “The court, based on the review of the record, shows that a
full day of court trial was held June 2021. The request for order does not show material
or substantial change in circumstances from that Montenegro order that came out of the
court trial. His declaration contains no direct personal knowledge. It is all hearsay.
There was no request for a [F]amily [C]ode section 217 hearing to present additional
evidence. [¶] There is only one alleged incident, based on mother’s admission, of a
verbal argument that resulted in pushing and shoving, which was outside the physical
presence of the children, although they may have been in bed. The actual effect on the
children of what occurred on that date, again, being an isolated incident that did not result
in any type of arrest or any further harm—or any harm to the children—is based on
father’s hearsay statements, which the court cannot consider as competent evidence
pursuant to [C]ode of [C]ivil [P]rocedure 2015.5.” The RFO was denied.
Husband filed a notice of appeal on January 14, 2022, from the denial of the RFO
under Code of Civil Procedure sections 904.1, subdivisions (a)(2), and (a)(3) through
(a)(13).
DISCUSSION
Husband essentially contends the trial court erred by denying his RFO. First, he
insists that the trial court abused its discretion by using the wrong standard in determining
10
whether to modify visitation and denying appointment of counsel. Second, he claims the
trial court should have conducted a section 217 hearing despite his failure to request such
hearing. Third, the trial court had an obligation to appoint minor’s counsel.
We initially note that Wife has argued in the respondent’s brief that we should find
Husband’s claims have been waived and forfeited for failing to appropriately cite to the
record, and for providing only legal conclusions and no legal authority. We reject these
arguments. While Husband has failed to provide an adequate record on appeal, which we
will address post, his opening brief presents cogent legal argument supported by legal
authority and appropriately cites to the record.
A. CHANGE IN CIRCUMSTANCES
Husband insists the trial court erred by requiring him to show a significant change
of circumstances for a change in visitation and appointment of minor’s counsel. Husband
contends the proper standard for a change in visitation and appointment of minor’s
counsel as requested in the RFO was whether it was in Minors’ best interests, not a
significant change in circumstances. The trial court abused its discretion by denying the
RFO.
Section 3087 provides, “An order for joint custody may be modified or terminated
upon the petition of one or both parents or on the court’s own motion if it is shown that
the best interest of the child requires modification or termination of the order. If either
parent opposes the modification or termination order, the court shall state in its decision
the reasons for modification or termination of the joint custody order.” However, the
California Supreme Court has found, “Once the trial court has entered a final or
11
permanent custody order reflecting that a particular custodial arrangement is in the best
interest of the child, ‘the paramount need for continuity and stability in custody
arrangements—and the harm that may result from disruption of established patterns of
care and emotional bonds with the primary caretaker—weigh heavily in favor of
maintaining’ that custody arrangement. [Citation.] In recognition of this policy concern,
we have articulated a variation on the best interest standard, known as the changed
circumstance rule, that the trial court must apply when a parent seeks modification of a
final judicial custody determination. [Citations.] Under the changed circumstance rule,
custody modification is appropriate only if the parent seeking modification demonstrates
‘a significant change of circumstances’ indicating that a different custody arrangement
would be in the child’s best interest. [Citation.] Not only does this serve to protect the
weighty interest in stable custody arrangements, but it also fosters judicial economy.”
(In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; see also Anne H. v.
Michael B. (2016) 1 Cal.App.5th 488, 496-497.)
“ ‘The changed-circumstance rule is not a different test, devised to supplant the
statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it
has been established that a particular custodial arrangement is in the best interests of the
child, the court need not reexamine that question. Instead, it should preserve the
established mode of custody unless some significant change in circumstances indicates
that a different arrangement would be in the child’s best interest. The rule thus fosters
the dual goals of judicial economy and protecting stable custody arrangements.’ ”
(Montenegro v. Diaz (2001) 26 Cal.4th 249, 256.) “The burden of showing changed
12
circumstances is on the party seeking a modification of the custody order.” (Anne H. v.
Michael B., supra, 1 Cal.App.5th at pp. 496-497.)
Here, Husband has not provided this court with the final custody order that was
entered by the trial court on June 1, 2021. Although Husband commences his opening
brief with language that “The court entered a Montenegro order concerning custody and
visitation issues after a trial on June 1, 2021,” the transcript of the hearing and final order
is not before this court. (Fn. omitted.) The trial court in reviewing the RFO stated on the
record that it had reviewed the custody order, and it was a final custody order. This court
must presume that the prior order was a final custody order as the trial court stated it was
a final custody order, and Husband has not presented any evidence on appeal to refute
such determination. Accordingly, any change in custody would require a showing that
there was a significant change in circumstances.
“[T]he changed circumstance rule does not apply when a parent requests only a
change in the parenting or visitation arrangement not amounting to a change from joint
custody to sole custody, or vice versa. Instead, the trial court considers a request to
change the parenting or visitation arrangement under the best interests of the child
standard.” (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072.) “[T]he
changed circumstance rule does not apply when an order does not change custody but
only alters a parenting schedule.” (Id. at p. 1077.)
“The standard of appellate review of custody and visitation orders is the
deferential abuse of discretion test. [Citation.] The precise measure is whether the trial
court could have reasonably concluded that the order in question advanced the ‘best
13
interest’ of the child. We are required to uphold the ruling if it is correct on any basis,
regardless of whether such basis was actually invoked.” (In re Marriage of Burgess
(1996) 13 Cal.4th 25, 32.)
Husband claims he was only seeking a change in visitation, which does not require
a showing of a significant change in circumstances. We conclude the request to
terminate all visits between Minors and Wife was in fact a request to change custody.
In Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, the Court of Appeal
held the trial court erred by applying the changed circumstance rule to deny a father’s
request to alter a visitation schedule to obtain one extra day with the child each week and
an additional overnight visit. He and the mother shared joint legal and physical custody.
(Id. at pp. 1373, 1376, 1379.) The court concluded the changed circumstance rule did not
apply to requests for modification of visitation not amounting to a change in custody.
(Id. at pp. 1379, 1382.) In reaching this conclusion, the court noted “the California
Supreme Court has repeatedly discussed the changed circumstance rule in cases
involving requests to modify custody, where granting the request would remove custody
from one parent and give it to the other parent.” (Id. at p. 1379.) The Court of Appeal
stated, “[a]lthough [the father]’s proposed changes would alter the parenting schedule, in
terms of potential instability for [the child], they were not on par with a request to change
physical custody from sole to joint custody, or vice versa.” (Id. at p. 1382)
Here, Husband’s request was on “par” with a request to change custody because
he was asking the court to stop all visitation between Minors and Wife. According to the
record before this court, Wife and Husband shared 50/50 legal and physical custody. The
14
impact of the change in visitation would essentially grant Husband full physical custody
of Minors. Although identified as “visitation,” the change would essentially deprive
Wife of any custody of Minors. The trial court could reasonably conclude that Husband
must show changed circumstances.2
Based on the record before this court, we cannot reverse the trial court’s
determination that there were no changed circumstances. Initially, by failing to provide
the court order from June 1, 2021, this court cannot consider if this was a change in
circumstances. The reviewing court does not presume on appeal that there was error; the
judgment or order is presumed correct. (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.) An appellant has the burden of overcoming that presumption
by providing an adequate appellate record demonstrating the error. (Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295.)
Although Husband’s counsel stated that no prior domestic violence was
considered in reaching the custody order on June 1, 2021, we simply do not have any
background on Wife. It is impossible for this court to determine whether the trial court
erred by finding no change in circumstances when we are not aware of the state of
circumstances when the final custody order was entered on June 1, 2021.
Moreover, Husband provided text messages that were allegedly between Minors
and their older sister to support that they were scared and hiding in the bathroom because
2 Husband appears to contend that he was only seeking a temporary cessation of
visits while Minors were being interviewed. He has provided no authority that a
“temporary” change from 50/50 shared custody to no custody does not require a showing
of a significant change in circumstances.
15
Wife and Aunt were having an argument. However, the trial court could not confirm the
messages in fact involved these parties. Further, it could not rely on inadmissible hearsay
in reaching its conclusion on change of circumstances. (See In re Marriage of Swain
(2018) 21 Cal.App.5th 830, 837.) The evidence before the trial court was that Wife
admitted she and Aunt had an argument while Minors were in their bedroom. The issue
was resolved the following morning. There was no evidence that Minors witnessed the
incident. The trial court could conclude that despite the incident, it was not a
“significant” change in circumstances warranting a change in custody.
B. FAMILY CODE SECTION 217
Husband insists the trial court should have ordered a section 217 hearing to have
Minors provide live testimony at a hearing.
Section 217, subdivision (a) provides, “At a hearing on any order to show cause or
notice of motion brought pursuant to this code, absent a stipulation of the parties or a
finding of good cause pursuant to subdivision (b), the court shall receive any live,
competent testimony that is relevant and within the scope of the hearing and the court
may ask questions of the parties.” Subdivision (c) of section 217 provides, “A party
seeking to present live testimony from witnesses other than the parties shall, prior to the
hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a
brief continuance and may make appropriate temporary orders pending the continued
hearing.”
16
Section 217, subdivision (a) requires a trial court, absent limited exceptions, to
receive relevant live testimony at a hearing on a family law motion, including a
postjudgment request for order. (In re Marriage of Swain, supra, 21 Cal.App.5th at pp.
839-840 & fn. 7; Cal. Rules of Court, rule 5.113(a).) Where a party fails to request oral
testimony, section 217 does not preclude the court from proceeding without it. (In re
Marriage of Binette (2018) 24 Cal.App.5th 1119, 1127-1129, 1132.)
Husband did not file and serve a witness list prior to the RFO hearing. Further,
once the trial court stated at the hearing that there was no request for a section 217
hearing, Husband did not request a continuance to provide a witness list. Such failure to
request live testimony foreclosed the trial court from considering whether there may be
good cause not to receive live testimony. (See Chalmers v. Hischkop (2013) 213
Cal.App.4th 289, 313.)3 The trial court did not abuse its discretion by considering the
RFO without hearing live testimony based on Husband’s failure to comply with section
217.
Husband states that it was clear from the RFO that he wanted to call Minors to
testify. He insists it would have been redundant to file a witness list. Section 217 states
3 “ ‘Good cause’ under the statute is explicated in the CRC: ‘In addition to the
rules of evidence, a court must consider the following factors in making a finding of good
cause to refuse to receive live testimony under Family Code section 217: [¶] (1) Whether
a substantive matter is at issue—such as . . . spousal support . . . ; [¶] (2) Whether
material facts are in controversy; [¶] (3) Whether live testimony is necessary for the court
to assess the credibility of the parties or other witnesses; [¶] (4) The right of the parties to
question anyone submitting reports or other information to the court; [¶] . . . and [¶]
(6) Any other factor that is just and equitable.’ ” (In re Marriage of Diamond (2021) 72
Cal.App.5th 595, 604.)
17
that a party “shall, prior to the hearing, file and serve a witness list.” (§ 217, subd. (c).)
California Rules of Court, rule 5.113, subdivision (b)(5) provides that the trial court can
consider prior to accepting live testimony from a nonparty if the party has complied with
section 217. Providing a witness list prior to the hearing was mandatory and could not be
substituted with the trial court—and Wife—having to imply from the pleadings who
Husband would have testify at the hearing. Moreover, it is not clear from the pleadings
that Husband wanted Minors to testify in court. In the RFO, he stated he wanted Minors
interviewed by Family Court Services. Husband did not request that Minors provide live
testimony in the courtroom. Husband did not make a proper request to the trial court to
present live testimony and did not request a continuance once the trial court stated that
Husband had not made such request prior to the hearing. Husband’s claim that the trial
court erred by denying the presentation of live testimony does not require reversal or
remand to the trial court.4
C. APPOINTMENT OF MINOR’S COUNSEL
Husband contends, pursuant to section 3150, subdivision (a), the trial court should
have appointed minor’s counsel to interview and assist Minors. The trial court’s denial,
without any findings on the record, must be reversed.
Section 3150, subdivision (a) provides that, “If the court determines that it would
be in the best interest of the minor child, the court may appoint private counsel to
4 Since we conclude that Husband failed to comply with the provisions of section
217 to present live testimony, we need not address Husband’s further claims regarding
testimony of a child witness.
18
represent the interests of the child in a custody or visitation proceeding, provided that the
court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and
5.242 of the California Rules of Court.” California Rules of Court, rule 5.240 lists the
factors the trial court should consider in deciding whether to appoint counsel, including,
but not limited to, whether the best interest of the child appears to require independent
representation; one of the parents appears incapable of providing a stable, safe and secure
environment; and the dispute involves allegations of physical, emotional, or sexual abuse
or neglect of the child. California Rules of Court, rule 5.241 addresses payment of
counsel and rule 5.242 details the eligibility, education, training and experience
requirements for appointment.
We review the refusal to appoint minor’s counsel for an abuse of discretion. (See
Wendland v. Superior Court (1996) 49 Cal.App.4th 44, 50 & fn. 7.)
“ ‘ “A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.” ’ ” (A.G. v.
C.S. (2016) 246 Cal.App.4th 1269, 1281.) “ ‘[W]here the issues are sufficiently
important, as in a child custody case, formal findings of fact and conclusions of law are
19
required upon the request of a party, regardless of the nature of the proceedings.’ ” (City
and County of San Francisco v. H.H. (2022) 76 Cal.App.5th 531, 545.)5
In ruling on the RFO, the trial court did not state its reasons on the record for
denying the request to appoint minor’s counsel. Husband never objected to the trial
court’s ruling and did not request a written ruling.
Because there is no statement of decision, we presume the trial court made all
factual findings necessary to support the order. (City and County of San Francisco v.
H.H., supra, 76 Cal.App.5th at p. 545.) We therefore determine whether the implied
finding that appointment of minor’s counsel was not in Minors’ best interests is
supported by substantial evidence.
The trial court’s decision was supported by substantial evidence. There was no
admissible evidence that Minors had suffered any harm. There was a final custody order
in place that found it was in the Minors’ best interests that Wife and Husband have 50/50
physical and legal custody. The trial court found there was no change of circumstances
and no live testimony would be heard—including from Minors—because Husband had
not requested a section 217 hearing. The trial court did not abuse its discretion by
denying the request to appoint minor’s counsel.
5 While Code of Civil Procedure section 632 contemplates that a statement of
decision is only required when there has been a trial, there are exceptions for special
proceedings. (City and County of San Francisco v. H.H., supra, 76 Cal.App.5th at pp.
544-545.)
20
DISPOSITION
The trial court’s denial of Husband’s RFO is affirmed. Wife shall recover her
costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
21 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483581/ | Filed 11/14/22 Marriage of Jain CA2/7
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 SEVEN
In re Marriage of MAYANK and B322564
PRIYANKA JAIN.
(Santa Clara County
MAYANK JAIN, Super. Ct. No. 18FL001727)
Appellant,
v.
PRIYANKA JAIN,
Respondent.
APPEAL from a postjudgment order of the Superior Court
of Santa Clara County. James L. Stoelker, Judge. Affirmed.
Mayank Jain, in pro. per., for Appellant.
Priyanka Jain, in pro. per., for Respondent.
_______________________
After the family court denied Mayank Jain permission to
appear telephonically and Mayank failed to attend the trial on
reserved issues in his marital dissolution action with Priyanka
Jain, the court entered judgment in favor of Priyanka.1 The court
thereafter denied Mayank’s motion to set aside the judgment. On
appeal Mayank contends denial of his application to appear
telephonically violated California Rules of Court, rule 3.6702 and,
alternatively, the court erred in declining to set aside the
judgment based on mistake of fact, mistake of law or excusable
neglect under Code of Civil Procedure section 473, subdivision (b)
(section 473(b)). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dissolution Action and Default Judgment on
Reserved Issues
Mayank and Priyanka were married on January 22, 2014.
They have one child, born in February 2018. Mayank petitioned
for a dissolution of the marriage in May 2018. Priyanka obtained
a domestic violence restraining order against Mayank in October
2018, which was renewed prior to trial and extended to
October 7, 2020.
On November 18, 2019 the family court terminated
Mayank and Priyanka’s marital status and set trial on the
remaining issues for March 3, 2020. The court expressly ordered
Mayank “to be personally present for the SOC [settlement officer
1 We refer to Mayank Jain and Priyanka Jain by their first
names for clarity.
2 References to rules are to the California Rules of Court.
2
conference], MSC [mandatory settlement conference] and the
trial.”3
On February 19, 2020 Mayank, who had previously
appeared at matters telephonically through CourtCall, attempted
to arrange a telephonic appearance for the upcoming hearings by
emailing the court’s clerk, who responded, also by email, that this
contact constituted an impermissible ex parte communication
and that Mayank needed to file an ex parte request or
declaration. On the same day the family court granted a motion
by Priyanka to compel documents, noting in the minute order
that Mayank was making “efforts to appear by telephone,” and
that “this was not a new request.” Mayank never filed a formal
application, either with statutory notice or ex parte, to appear by
telephone.
On February 23, 2020 Mayank emailed the court clerk
notices of his intent to appear by telephone at the upcoming
mandatory settlement conference and at trial. Mayank also
managed to schedule a CourtCall telephonic appointment for the
March 3, 2020 trial date without the court’s permission. The
appointment was cancelled after the clerk informed CourtCall the
appearance was set up without court authorization.
Mayank did not appear in person at the mandatory
settlement conference on February 27, 2020. The pro tem
settlement judge spoke to Mayank by telephone and advised him
“that he had no permission to appear by telephone for the
3 Although he had been represented by counsel at various
times during the case, Mayank was self-represented during the
proceedings at issue in this appeal.
3
mandatory settlement conference and for the trial that is
currently set.”
On March 2, 2020, the day before trial, Mayank
electronically filed an extensive trial statement and declaration,
attaching 26 exhibits. Mayank did not appear in person at trial
on March 3, 2020 as ordered.
The family court noted Mayank’s failure to appear and
described for the record the various contacts the court had had
with him over the several weeks prior to trial to provide “some
context for the fact that he is not here this morning”: “There
have been a number of court appearances scheduled, including a
trial on the DVRO issue . . . . There was also a mandatory
settlement conference last week. And for each of those court
appearances, Mr. Jain has contacted this department and asked
for permission to appear telephonically. On each of those
occasions, the Court has consistently indicated that telephone
appearance would not be appropriate and denied Mr. Jain the
opportunity to appear telephonically, or any other way than to be
personally present. That standard of—of practice was consistent
all the way up through and including today’s trial, and again,
Mr. Jain asked for an opportunity to be excused from personal
appearance and to appear telephonically at the trial. Again, the
Court responded that the personal appearance would be required
and that telephone appearance would be inappropriate, and
denied Mr. Jain the permission to appear by phone.”
The court also noted that Mayank had attempted to appear
via CourtCall that day without permission from the court and
stated that, under the circumstances, the court would proceed on
the matter “as if it were a default judgment and allow the
4
evidence to be presented by the respondent, Priyanka Jain,
through counsel.”
The family court limited the scope of the proceedings to
financial issues. Based on Priyanka’s evidence the court found
the date of separation was May 9, 2018; each party’s respective
community property interest was $368,087; and Priyanka had
various reimbursement claims totaling $165,585. The court,
therefore, awarded Priyanka $533,672 ($368,087 plus $165,585).4
The court did not admit or consider Mayank’s declaration or
evidentiary submissions.
The court entered judgment on the property issues on
May 19, 2020. The court reserved the issues of child custody and
visitation and permanent support with all existing temporary
support and custody orders to remain in effect.
2. Mayank’s Motion To Set Aside the Default Judgment
On June 16, 2020 Mayank moved to set aside the default
judgment, arguing the family court had abused its discretion by
not allowing him to appear telephonically pursuant to rule 3.670
and he was entitled to relief under section 473(b) for mistake,
inadvertence, surprise or excusable neglect. Contending he had
been prevented from traveling from his residence in Switzerland
because of visa issues and the COVID-19 pandemic and had
made good faith efforts to participate in court proceedings by
4 The court awarded all funds in 16 specified bank,
brokerage, and retirement accounts to Priyanka; as well as
$194,830.53 from the sale of the parties’ real property, and
ordered Mayank to make an equalization payment to Priyanka of
$94,762.50.
5
telephone, Mayank asserted he was improperly precluded from
offering evidence and rebuttal testimony at the trial.
The family court denied the motion. In its order after
hearing the court reiterated that Mayank had been expressly
instructed on November 18, 2019 that he would not be permitted
to attend the mandatory settlement conference or trial
telephonically and similarly advised by the pro tem settlement
judge on February 27, 2020 that he needed to be personally
present for trial. Thus, the court stated, Mayank’s argument he
was surprised at the last minute to learn he would not be able to
appear telephonically was based on “an incorrect representation
of the facts.” The court also pointed out the trial date (March 3,
2020) preceded the general shutdown due to the COVID-19
pandemic.
After quoting the language of rule 5.9(b), which gives the
family court discretion to permit a party to appear by telephone,
and rule 5.9(c)(1), which authorizes the court to require a party to
appear in person if it determines a personal appearance would
“‘materially assist in the determination of the proceedings or in
the effective management or resolution of the particular case,’”
the court explained it “had expressly made a decision that in a
lengthy contentious hearing where it was anticipated that both
parties would be self-represented and would be offering dozens of
documentary exhibits, a telephone appearance by either party
would not be appropriate. This decision was communicated to
the parties months before the hearing. Petitioner chose to ignore
the court’s order.”
6
This appeal followed.5
DISCUSSION
1. Governing Law and Standard of Review
a. Rules governing telephonic appearances
As Mayank emphasizes, rule 3.670 establishes a general
policy favoring telephone appearances in civil cases.
(Rule 3.670(a) & (c); see Davis v. Superior Court (2020)
50 Cal.App.5th 607, 616 [rule 3.670 “generally authorizes a party
in a civil case to appear by telephone” if “at least two court days
before the hearing, [the party] notif[ies] the superior court and all
other parties that the party intends to appear telephonically”].)
Rule 3.670, however, excludes from its broad authorization of
telephonic appearances certain specific proceedings, including
“[t]rials, hearings, and proceedings at which witnesses are
expected to testify” (rule 3.670(e)(1)(A)); as to those proceedings,
a personal appearance is required unless the court in which the
matter is pending determines a telephone appearance is
5 Mayank attempted to file a notice of appeal on
December 22, 2020, which was received, but rejected by the
Santa Clara Superior Court. A subsequent notice of appeal from
the judgment on reserved issues and postjudgment order denying
the motion to set aside was filed on January 14, 2021. After
issuing an order to show cause regarding the timeliness of the
notice of appeal, the Sixth Appellate District, by its Presiding
Justice, ruled Mayank’s appeal was not timely as to the May 19,
2020 judgment but could proceed with respect to the October 28,
2020 order denying his motion to set aside as a separately
appealable order. The appeal was subsequently transferred to
this court from the Sixth District by the Supreme Court.
7
appropriate and expressly authorizes it (rule 3.670(f)(3)). More
importantly, the Advisory Committee Comment to rule 3.670
explains the rule does not apply in family law matters (except for
hearings regarding support under Title IV-D of the Social
Security Act).
Rule 5.9, rather than rule 3.670, governs appearances by
telephone in family law matters (with limited exceptions not
applicable to this case). Rule 5.9(b) provides the court may
permit a party to appear by telephone at a hearing, conference or
proceeding “if the court determines that a telephone appearance
is appropriate.” Rule 5.9(c)(1) states, “At its discretion, the court
may require a party to appear in person at a hearing, conference,
or proceeding if the court determines that a personal appearance
would materially assist in the determination of the proceedings
or in the effective management or resolution of the particular
case.”
b. Section 473(b)
A default judgment is properly entered when a defendant
fails to appear at trial. (Jackson v. Kaiser Foundation Hospitals,
Inc. (2019) 32 Cal.App.5th 166, 175; Pagnini v. Union Bank, N.A.
(2018) 28 Cal.App.5th 298, 303.)6 Relief may be afforded, in the
court’s discretion, if the defendant establishes the judgment was
6 Although referred to by the cases cited, as well as by the
family court, as a default judgment, the procedure used in this
case was equivalent to that specified in Code of Civil Procedure
section 594, subdivision (a), for trial of a case in the absence of
the adverse party.
8
taken against him or her “through his or her mistake,
inadvertence, surprise, or excusable neglect.” (§ 473(b).)7
“The general underlying purpose of section 473(b) is to
promote the determination of actions on their merits.” (Even
Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses,
LLC (2015) 61 Cal.4th 830, 839.) “Therefore, a trial court order
denying relief is scrutinized more carefully than an order
permitting trial on the merits.” (Rappleyea v. Campbell (1994)
8 Cal.4th 975, 980.) However, such relief remains expressly
discretionary “when the error is the client’s alone.” (Martin Potts
& Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432,
442.)
In determining whether mistake or inadvertence was
excusable, ““‘the court inquires whether “a reasonably prudent
person under the same or similar circumstances” might have
made the same error.”’” (Toho-Towa Co., Ltd. v. Morgan Creek
Productions, Inc. (2013) 217 Cal.App.4th 1096, 1112; accord,
Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d
270, 276; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423.) “An
honest mistake of law is a valid ground for [discretionary relief
under section 473(b)] when the legal problem posed ‘“is complex
and debatable.”’” (State Farm Fire & Casualty Co. v. Pietak
7 Section 473(b) also provides for mandatory relief from a
default judgment or dismissal due to attorney mistake or neglect.
(See Jackson v. Kaiser Foundation Hospitals, Inc., supra,
32 Cal.App.5th at pp. 173-174.) As noted, Mayank was self-
represented when he failed to personally appear for trial and the
default judgment was entered.
9
(2001) 90 Cal.App.4th 600, 611.) “The controlling factors in
determining whether a mistake of law is excusable are the
reasonableness of the misconception and the justifiability of the
failure to determine the correct law.” (Ibid.)
The party seeking relief bears the burden of proof and
“‘“‘must show a satisfactory excuse for his default’”’” and diligence
in making the motion. (Hopkins & Carley v. Gens (2011)
200 Cal.App.4th 1401, 1410 (Hopkins).) “It is simply not enough
to assert a general state of misapprehension or ignorance on
some subject bearing on a possible defense. He must specify the
actual cause of his failure to present the defense the first time
around, and explain why that failure should be excused.” (Ibid.)
“‘A ruling on a motion for discretionary relief under
section 473 shall not be disturbed on appeal absent a clear
showing of abuse.’” (Zamora v. Clayborn Contracting Group, Inc.,
(2002) 28 Cal.4th 249, 257.) “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of
reason.” (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th
1241, 1249; accord, Grados v. Shiau (2021) 63 Cal.App.5th 1042,
1049.) If a ruling turns on a disputed issue of fact, the trial
court’s express and implied factual determinations are not
disturbed on appeal if supported by substantial evidence.
(Strathvale Holdings, at p. 1250; see Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [“[i]f the trial
court’s resolution of [a disputed] factual issue is supported by
substantial evidence, it must be affirmed”]; see also Zamora, at
p. 258 [“‘“where there is a substantial conflict in the facts stated,
a determination of the controverted facts by the trial court will
not be disturbed”’”].)
10
2. The Family Court Did Not Abuse Its Discretion in
Ordering Mayank To Personally Appear at Trial and
Denying Mayank’s Motion To Set Aside the Default
Judgment
Mayank’s fundamental claim is that the family court
abused its discretion in denying permission for him to appear
telephonically—and, as a consequence, denied him his right to
due process—given his “inability to attend the trial in person due
to his residence in Switzerland, COVID-related travel difficulties,
his lack of a visa, and his threat of detention upon entering the
United States.” Elaborating, Mayank asserts he lacked an entry
visa, feared he would be detained upon arrival because Priyanka
had informed immigration authorities of the domestic violence
restraining order against him and the COVID-19 pandemic made
international travel extremely difficult.
Applying rule 5.9 and explaining its reasoning (the parties
were self-represented; the matter would be contentious; many
documentary exhibits were anticipated), the family court
determined it would not be appropriate to allow Mayank to
appear telephonically. The March 3, 2020 trial took place before
the widespread court closures due to the pandemic; and the
court’s decision to require Mayank to attend in person was
communicated months before the trial date, giving Mayank
ample time to arrange to be present (it was he, after all, who
initiated the dissolution proceedings in Santa Clara County) or to
file a proper, formal request to appear telephonically and to
provide proof of his claims that he had no visa or could not obtain
one (contentions expressly disputed by Priyanka). There was no
abuse of discretion in requiring Mayank to appear in person.
11
As to the grounds for setting aside a default judgment in
section 473(b), Mayank no longer argues, as he did in the family
court, he was entitled to relief based on “surprise.” He likewise
has failed to establish any of the other statutory bases for
discretionary relief.
Blending the concepts of mistake of fact and mistake of law,
Mayank contends the family court should have granted relief
because of his good faith error “in assuming that because
circumstances made it virtually impossible for him to appear in
person, this would be taken into account by the court in some
fashion, rather than the court proceeding to adjudicate the
matter as if he did not exist and that there was no evidence in his
favor.” But there was no mistake of fact—Mayank knew what
the family court had ordered (see, e.g., H. D. Arnaiz, Ltd. v.
County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368 [“‘[a]
mistake of fact exists when a person understands the facts to be
other than they are’”]); and it simply was not reasonable for
Mayank to believe, whether as a matter of fact or a question of
law, that he would not suffer adverse consequences for
disregarding an explicit court order that he appear at trial in
person. (See Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1146
[when evaluating a section 473(b) motion based on a claim of
mistake, “[w]e must ask ‘“whether ‘a reasonably prudent person
under the same or similar circumstances’ might have made the
same error”’”]; cf. Hopkins, supra, 200 Cal.App.4th at p. 1413
[“[i]n considering whether a mistake of law furnishes grounds for
relief, “‘the determining factors are the reasonableness of the
misconception and the justifiability of lack of determination of
the correct law”’”].)
12
There is similarly no merit to Mayank’s argument his
failure to appear was the result of excusable neglect because he
“did everything he reasonably could to enable himself to appear
in person.” The record fails to show what, if any, steps Mayank
actually took to obtain a visa during the three and one-half
months between the November 18, 2019 order that he appear
personally at trial and the March 3, 2020 trial date or to
determine whether his fears of detention upon entry into the
United States were justified. And as the family court noted, the
scheduled March 3, 2020 trial took place before the pandemic
precluded in-person appearances.8
Nor did Mayank act reasonably in seeking permission to
appear telephonically. Rather than file a formal request with a
declaration supported by competent evidence, he relied upon
improper email communications with the court clerk and
unauthorized efforts to schedule his appearance through
CourtCall. On this record the family court’s denial of relief under
section 473(b) was well within its ample discretion.9
8 Former President Trump’s initial 30-day travel ban from
Europe was not imposed until March 11, 2020.
9 Mayank’s critical critique of the evidence presented by
Priyanka at the March 3, 2020 trial and his challenge to the
fairness of the family court’s rulings concerning the proper
division of the parties’ property are not properly before us in an
appeal limited to the order denying the motion to set aside the
judgment. (See fn. 4, above.)
13
DISPOSITION
The order denying Mayank’s motion to set aside the default
judgment is affirmed. Priyanka is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
14 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483580/ | Filed 11/14/22 Marriage of Matkovic CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re Marriage of KATE and PETER H047406
MATKOVIC. (Santa Clara County
Super. Ct. No. 2013-6-FL-009652)
KATE MATKOVIC,
Appellant,
v.
PETER MATKOVIC,
Respondent.
In this dissolution appeal, appellant advances several challenges to the trial court’s
award to respondent of her one-half interest (valued at approximately $500,000) in a
community home as a remedy under Family Code section 1101, subdivision (g), for
misappropriating $520,000 in community funds during the marriage. In addition,
appellant challenges the trial court’s imposition of attorney fees, expert costs, and a
$200,000 monetary sanction under Family Code section 2107, subdivision (c), for
disclosure violations in the underlying proceeding. She also challenges the family court’s
denial of her request for attorney fees under Family Code section 271, and asserts a
failure to confirm as her separate property a home she purchased with postseparation
earnings.
As we will explain, the family court incorrectly found that respondent’s one-half
interest in the community estate was impaired in its entirety by appellant’s preseparation
fiduciary breaches. Respondent failed to establish that he was impaired by appellant’s
March 2011 $250,000 loan and May 2012 $95,125 gift to the parties’ daughter. Of the
remaining $174,875 appellant was found to have misappropriated in breach of her
fiduciary duties, the trial court lacked authority under Family Code section 1101,
subdivision (g) to award respondent more than his community interest in those funds
($87,437.50). We see no error related to appellant’s other contentions, but will remand
the matter for the family court to remedy the errors under Family Code section 1101,
subdivision (g).
I. BACKGROUND
Kate and Peter married in 1985.1 They emigrated to the United States from
Croatia, had three children (Ivan born in 1986, Magdalena in 1988, and Andrej in 1995),
and operated a successful Silicon Valley manufacturing business (Accura Precision, Inc.)
for nearly 25 years before separating in July 2012. Peter managed Accura’s business
operations and Kate handled the company’s finances as well as the parties’ personal
finances.
The parties acquired several properties during the marriage including a primary
residence in Cupertino, commercial and rental properties in the Bay Area, and a home in
Croatia. They also helped Ivan start his own company (Spendgo, Inc.) and helped Ivan
and Magdalena purchase real estate.
When the parties separated in July 2012, they executed a transmutation agreement
related to their real property in California, and they transferred ownership of their
company to Ivan and Magdalena. The parties also gifted their children large sums of
money, of which approximately $2.5 million was documented in gift declarations
1We refer to the parties and their adult children by their given names for clarity,
intending no familiarity or disrespect.
2
executed at the time of separation. Many of those cash gifts were made by Kate with
community funds she transferred from joint bank accounts to an individual checking
account she opened in 2010.
Kate returned to work at Accura after the ownership change. The company was
struggling, and Kate was instrumental in guiding its recovery. In 2013, Kate and Ivan
agreed she would receive as compensation “whatever was left” after Accura met its
obligations. Unbeknownst to Peter, Kate was compensated over $6.1 million between
2013 and 2016, an amount comparable to the parties’ joint earnings during the four years
preceding the ownership transfer.
Kate petitioned for dissolution in January 2013. Peter hired an accounting firm to
trace preseparation community income and disbursements, and in 2015 Kate engaged an
expert to rebut the conclusions of Peter’s expert regarding the preseparation activity. In
2017, Peter’s expert investigated Kate’s postseparation receipt of funds from Accura.
Peter moved to Croatia in 2014, where he opened a restaurant in 2016. The
marriage was dissolved in 2017, and a nine-day trial on contested issues was held in
February 2018.
II. TRIAL COURT PROCEEDINGS
Peter alleged Kate breached her fiduciary duties during the marriage by knowingly
and willingly receiving $599,465 more funds than he received from the community
between January 1, 2010 and July 15, 2012. He also alleged a fiduciary breach after
separation by Kate fraudulently receiving $6.13 million from the family business, despite
the parties’ agreement to divest themselves of their ownership interest in the company.
He sought 100 percent of the appropriated assets under Family Code section 1101,
subdivision (h). (Undesignated statutory references are to the Family Code.) He sought
sanctions, attorney fees, and costs for Kate’s disclosure violations under sections 271 and
2107. He argued that a judgment in his favor should be satisfied with Kate’s transmuted
properties.
3
Kate claimed Peter breached his fiduciary duty by maintaining an apartment for a
girlfriend during the marriage with community funds. She sought enforcement of the
transmutation agreement; an equalizing payment ($501,500) for her one-half interest in
the community home in Croatia; reimbursement for Peter’s exclusive use of the Croatia
residence postseparation; and confirmation as separate property the house she purchased
in Croatia in 2016.
The family court heard testimony and received evidence from the parties, their
accounting experts, and their children Ivan and Magdalena. In a partial proposed
statement of decision, the court upheld the transmutation agreement. It found Kate did
not breach her fiduciary duty to Peter by converting $599,465 of community funds to her
own use, but of that amount found that Kate breached her duty to disclose transfers of
$500,000 to Magdalena and $20,000 to Ivan. The court found Peter was not entitled to
exemplary damages because Kate’s fiduciary breaches did not involve oppression, fraud,
or malice. It found Kate failed to prove that Peter breached his fiduciary duty by
spending money on a girlfriend during the marriage. The court divided equally the
community’s liquid assets ($85,000 held by Kate and $2,000 held by Peter).
The court found that Kate did not breach her fiduciary duty by receiving $6.1
million in earnings from Accura between 2013 and 2016, but that she breached her duty
to disclose those earnings in the dissolution proceeding. Kate also breached her duty to
disclose her 2016 real estate purchase, albeit with separate funds. The court concluded
the disclosure violations warranted sanctions, but not exemplary damages.
After further briefing and argument regarding sanctions, the family court issued a
proposed statement of decision and decision in which it awarded Kate’s interest in the
community home in Croatia to Peter under section 1101, subdivision (g) based on Kate’s
failure to disclose the $520,000 she transferred to the children. The court proposed
sanctioning Kate under section 2107, subdivision (c) for failing to disclose her
postseparation Accura earnings by awarding Peter $70,000 in attorney fees, $3,000 in
4
costs, $69,064 in expert fees, and an additional $400,000 to deter repetitive conduct.
Other than the attorney fees awarded to Peter under section 2107, the proposed decision
declined to award to either party attorney fees whether as a sanction under section 271 or
as a prevailing party.
After considering the parties’ objections, the court modified its proposed decision
and issued a 40-page statement of decision and judgment in August 2019. Specifically,
the court subjected Peter’s award of the community home in Croatia to a reimbursement
claim by Kate for his postseparation use of the home; considered Kate’s nondisclosure of
her 2016 real estate purchase in ordering sanctions under section 2107; adjusted the
expert fees to $220,952 (the amount incurred by Peter’s experts before and during trial);
and reduced the deterrence sanction from $400,000 to $200,000, recognizing that both
parties contributed to prolonging the litigation. In total, Kate was sanctioned $493,952 in
addition to her interest in the community home in Croatia.
III. DISCUSSION
We review the division of community property and imposition of sanctions in
dissolution proceedings for abuse of discretion. (In re Marriage of Schleich (2017) 8
Cal.App.5th 267, 276 (Schleich).) We review questions of law presented on undisputed
facts de novo. (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.) And we
apply an independent standard of review to questions of statutory interpretation. (People
v. Johnson (2007) 150 Cal.App.4th 1467, 1481.)
A. “VALUE OF THE ASSET” REMEDY
Section 721 recognizes the fiduciary relationship in transactions between spouses.
The relationship includes “a duty of the highest good faith and fair dealing on each
spouse,” and mandates that “neither [spouse] shall take any unfair advantage of the
other.” (§ 721, subd. (b).) The relationship applies to the management and control of
community assets and liabilities during marriage. (§ 1100, subd. (e).) This duty includes
the obligation to fully disclose to the other spouse “all material facts and information
5
regarding the existence, characterization, and valuation of all assets in which the
community has or may have an interest and debts for which the community is or may be
liable, and to provide equal access to all information, records, and books that pertain to
the value and character of those assets and debts, upon request.” (Ibid.)
Section 1101 creates a right of action for a spouse’s breach of fiduciary duty if it
“results in impairment to the claimant spouse’s present undivided one-half interest in the
community estate.” (§ 1101, subd. (a); In re Marriage of Prentis-Margulis & Margulis
(2011) 198 Cal.App.4th 1252, 1270.) Subdivisions (b), (c), (g), and (h) of section 1101
provide remedies for a spouse’s breach of fiduciary duty. Under subdivision (b), the
court may determine the rights of ownership in community property and classify all
property of the parties to a marriage. Under subdivision (c), a court may order that a
spouse’s name be added to community property held by the other spouse. Subdivision
(g), applied by the trial court here, states: “Remedies for breach of the fiduciary duty by
one spouse, including those set out in Sections 721 and 1100, shall include, but not be
limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent,
of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees
and court costs.” When the breach constitutes fraud, oppression, or malice, the remedy
“shall include, but not be limited to, an award to the other spouse of 100 percent, or an
amount equal to 100 percent, of any asset undisclosed or transferred in breach of the
fiduciary duty.” (§ 1101, subd. (h).)
In December 2010, Kate opened a checking account and began transferring
community funds to that account. From the account, Kate wrote a $250,000 check to
Magdalena on March 4, 2011, a $250,000 check to Magdalena on May 22, 2012, and a
$20,000 check to Ivan on March 7, 2012. The court found Kate breached her fiduciary
duty under section 1100, subdivision (e) by not disclosing those transfers, “because it is
clear that [Peter] wanted to be kept appraised of the financial dealings of the parties,
particularly when the relationship between them began disintegrating, and made repeated
6
requests for copies of documents during the marriage which were not voluntarily
produced by [Kate] to [Peter] or his attorney.” The court found Kate’s interest in the
community home in Croatia to be an appropriate monetary sanction for the disclosure
violation under section 1101, subdivision (g). Although Kate’s interest in the home
(approximately $500,000) exceeded $260,000 (50 percent of the undisclosed transfers),
the court found the award to be within its discretion under section 1101, subdivision (g).2
1. Kate’s Breach of Fiduciary Duty
Kate argues the family court erred by not making a finding under section 1101,
subdivision (a) that Peter’s community interest was impaired by her transfer of
community funds (which she characterizes as loans) to the children. She argues Peter’s
interest was not impaired because he had ceded control of the community finances to
Kate, and the loans were consistent with his desire to help the children. The trial court is
not required to make an express finding of impairment under subdivision (a). Kate’s
authority, In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 165, is inapposite as it
2 At oral argument Peter noted a “calculation error” in his brief and, contrary to his
briefing, advanced for the first time the position that Kate was not sanctioned under
section 1101, subdivision (g) for transferring $520,000 in community funds to the
children, but was actually sanctioned for “the failure to disclose and account for the
$599,465 she had received” which belonged to the community estate, and that the
sanction was reflected in the court not ordering a payment from Peter to Kate of
approximately $244,000 (equalizing Kate’s receipt of the converted funds and the award
to Peter of the community residence in Croatia valued at approximately $1.3 million).
We cannot reconcile Peter’s interpretation with the family court’s final statement of
decision, in which it specifically found “that Kate did not breach her fiduciary duty to
Peter by wrongfully, and without Peter’s knowledge converting $599,465 to her own use,
but does find that Kate breached her fiduciary duty, pursuant to Family Code section
1101(e) [sic] by not fully disclosing the two $250,000.00 ‘loans’ to Magdalena and the
$20,000.00 ‘loan’ to Ivan.” (Underscore in original.) The family court found the loans
“should have been specifically disclosed”; that the “technical breach of the duty to
disclose” does not support exemplary damages; and that “the proper remedy for this
fiduciary disclosure breach” is “the value of the house the parties jointly own in Croatia”
under section 1101, subdivision (g).
7
concerned findings required to support an award of attorney fees under a different section
of the Family Code.
Kate further argues that the evidence does not support an impairment finding
because a person cannot act for the benefit of the community, yet simultaneously breach
a fiduciary duty to the community. A spouse’s fiduciary duty extends to the other
spouse, not the community. Kate had the duty under section 1100, subdivision (e) to
“make full disclosure” to Peter “of all . . . information regarding the existence . . . of all
assets” and to provide access to “all information, records, and books that pertain to the
value and character of those assets and debts, upon request.” The trial court found that
Peter wanted to be kept apprised of the community’s financial dealings when the
relationship began to disintegrate, and made repeated requests for copies of documents
before separation that were not voluntarily produced to him or his attorney. That finding
is supported by the evidence. Peter’s one-half interest in the community estate was
impaired to the extent the transferred funds were not returned to the community, even if
they were consistent with his desire to help his children. (Schleich, supra, 8 Cal.App.5th
267, 284 [husband breached fiduciary duty by failing to disclose money received in
repayment of a loan; breach was not subject to a § 1100, subd. (g) remedy because the
loan proceeds were received by the community].)
2. Offset
Kate argues that Peter was not impaired by the $500,000 transferred to Magdalena
because those funds were offset by $500,000 Kate received from Magdalena in the same
timeframe. Kate wrote two $250,000 checks to Magdalena—one in 2011 and another in
2012. We address the transactions separately.
The 2011 check
Kate wrote a $250,000 check to Magdalena in March 2011. Two months later,
Magdalena wrote Kate a check for $350,000 with “loan refund” written on the memo
line. Kate and her expert represented the $350,000 was repayment for the $250,000
8
check and a $100,000 loan from November 2010. The November 2010 loan was
documented by a $100,000 cancelled check to Magdalena from the parties’ joint account
dated November 9, 2010 (check no. 6124). That check, endorsed by Magdalena,
included the notation “loan” on the memo line.
The family court adopted the conclusion of Peter’s expert that there was no nexus
between the $250,000 check Kate wrote to Magdalena in March 2011 and the $350,000
check Magdalena wrote to Kate two months later. Peter’s expert attributed the November
2010 check to a forgiven $100,000 loan to Ivan. Peter’s expert relied on the parties’ July
2012 schedule of gifts to Ivan, which included a $100,000 loan on November 9, 2010; the
absence of any payment or series of payments to Ivan amounting to $100,000 on or
around that date; and the absence of documents indicating Kate’s $250,000 check was a
loan to Magdalena. He conceded on cross-examination to consulting with counsel
regarding the conflicting documents, and that his conclusion regarding the $100,000 was
a judgment call. The court found that the $100,000 check to Magdalena “was not
actually repaid” with the $350,000 check because the loan was “actually a loan to Ivan”
and forgiven. Finding Kate “provide[d] no other explanation” linking Magdalena’s
$350,000 check to Kate’s $250,000 check, the court concluded the $250,000 was “excess
cash to Kate.”
The conclusion of Peter’s expert that the $100,000 check to Magdalena was in fact
a gift to Ivan is not supported by the evidence. That check (no. 6124) was written to and
endorsed by Magdalena; Kate identified the $100,000 gift to Ivan in an e-mail to the
attorney who prepared the gifting schedules as check no. 6123; and Ivan testified that he
“wasn’t diligent” in reviewing his gifting schedule for accuracy. Without a showing that
$100,000 was transferred from the community to Ivan on or near November 9, 2010, the
evidence could support a finding that the November 9, 2010 entry on Ivan’s gift schedule
was a mistake; but it does not support a finding that funds actually transferred to
Magdalena were intended for and redirected to Ivan, and therefore not repaid by
9
Magdalena. (Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979
[“ ‘where the issue on appeal turns on the failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.” ’ ”].)
Kate, as the spouse who managed the community finances, bears the burden of
proof regarding missing assets. (See In re Marriage of Prentis-Margulis & Margulis,
supra, 198 Cal.App.4th 1252, 1271.) Kate met that burden here by establishing the
$250,000 was returned to the community. The evidence compels a finding that
Magdalena’s $350,000 “loan refund” check to Kate repaid the November 2010 $100,000
loan and the March 2011 $250,000 loan. The absence of a notation on the $250,000
check (or elsewhere) designating those funds as a loan does not contradict or impeach
that evidence.
The 2012 check
Kate’s expert opined that the $250,000 check Kate wrote to Magdalena in May
2012 repaid a $150,000 loan from May 2011 (on May 16, 2011, Magdalena wrote Kate a
check for $150,000, with “loan refund” written on the memo line); repaid a small amount
of interest on that loan ($4,875); and the balance was a new loan to Magdalena of
$95,125. Following a trial recess during which time the expert and Kate spoke, the
expert changed his testimony regarding the $4,875 attributed to interest. The expert
testified the $4,875 was not interest on the $150,000 loan but was interest paid by and
being returned to Magdalena.
Kate did not testify about the interest or the $95,125 loan, but she explained the
basis of the $150,000 loan the community received from Magdalena, which the $250,000
check was to repay. Kate testified that Magdalena had loaned the community $150,000
10
in May 2011 for the community to purchase a $1.1 million condominium in San
Francisco for Magdalena and Ivan. Kate planned to finance the property in part with a
line of credit against the community residence in Cupertino. Kate and Peter applied for
that loan in April 2011, but it was not funded in time to close on the condo. The condo
“was a deal of a lifetime,” so Kate scrambled to secure the funds. Kate recalled Accura
bonuses, and Magdalena contributed $150,000 of her own money. Kate issued a
$1.1 million promissory note to Ivan and Magdalena secured by a deed of trust against
the San Francisco property. Of the $250,000 transferred to Magdalena in 2012, Kate was
returning the $150,000 used to purchase the condo so that Magdalena and Ivan would be
on equal footing with regard to their indebtedness to their parents.
Peter’s expert did not accept Kate’s explanation of the transaction. In his view,
“loan refund” noted on the $150,000 check indicated that Magdalena was repaying (not
extending) a loan. He pointed out that the word “refund” was interlineated on the copy of
the cancelled check which Kate had provided to her expert, who in turn provided it to
Peter’s expert when they exchanged letters regarding their findings. He also noted the
lack of documentation (other than Peter’s gift tax return) characterizing $95,125 as a loan
to Magdalena.
The family court rejected the opinion of Kate’s expert because his math was
supported only by Kate’s representations. The court found that the expert used an
“unsupported plug figure” ($4,875) “to make the transaction add up,” without due
diligence to support his conclusion, and noted his changed testimony regarding the
$4,875 interest payment. The court agreed with Peter’s expert that the memo “loan
refund” indicated Magdalena was repaying a $150,000 loan. It found that the copy of the
$150,000 check with the word “refund” crossed out had been altered, and that a “possible
conclusion regarding the facts of this case is that Kate altered documents in order to
defraud Peter of his fair share of the community estate, specifically in the amount of
$599,465.00.” As for the purported $95,125 gift to Magdalena, the court noted that
11
Peter’s expert was unable to trace the amount to transactions, or a series of transactions,
from the parties’ accounts.
It was within the trial court’s discretion to reject the conclusions of Kate’s expert
to the extent they were based on Kate’s own representations. But even if the expert’s
conclusions are rejected for lack of corroboration, the evidence does not support a finding
that of the $250,000, no loan was made to Magdalena and forgiven by the parties. The
$95,125 loan is documented in a July 2012 e-mail from Kate to the estate planning
attorney and forwarded to Peter. Regarding community gifts intended for Magdalena,
Kate wrote “$95,125.00, 5/22/12, ck 2565. Check 2565 was for $250K, $150K loan
refund from me and Peter to her + $4,875.00 interest and $95,125.00 new loan to her.”
The $95,125 loan, traced to the $250,000 check by that e-mail, was entered on the
schedule of gifts to Magdalena in July 2012, signed by Peter, and declared on Peter’s
2012 tax return. That evidence compels a finding that the community loaned (and
forgave) Magdalena $95,125.3 (Juen v. Alain Pinel Realtors, Inc., supra, 32 Cal.App.5th
972, 978.)
3. Section 1101, subdivision (g)
Subdivision (g) provides, “Remedies for breach of the fiduciary duty by one
spouse . . . shall include, but not be limited to, an award to the other spouse of 50 percent,
or an amount equal to 50 percent,” of any undisclosed or transferred asset, plus attorney
fees and court costs. (§ 1101, subd. (g).) Kate argues an award under subdivision (g) is
3 Regarding the family court’s “possible conclusion” that Kate altered documents
to defraud Peter of his share of the community estate, we observe that “refund” was
interlineated on the copy of the check Kate provided to her expert, and the following was
handwritten (presumably to assist her expert): “for 5/11 550,000 condo SF 125
Alhambra loan balance 400k → payments.” Kate also handwrote notes on the copy of
the $350,000 check for her expert: “for 11/9/10 100k [¶] for 3/1/11 250K.” Those
documents were not held out to either expert or the court as originals, and neither expert’s
opinion rested upon the interlineations. Kate’s expert relied on Kate’s verbal explanation
regarding the transactions, and Peter’s expert relied on bank records Kate provided
during discovery.
12
limited to 50 percent, or an amount equal to 50 percent of the value of the undisclosed
asset. In her view, construing the phrase “shall include, but not be limited to” to permit
additional sanctions at the court’s discretion is contrary to legislative intent and would
render meaningless the distinction between subdivisions (g) and (h). We agree that
interpreting subdivision (g) as giving the family court discretion to impose additional
sanctions blurs the distinction between subdivision (g) and subdivision (h), and renders
meaningless the requirement that a “100 percent of the asset” remedy requires clear and
convincing evidence of oppression, fraud, or malice under subdivision (h). To avoid an
absurd result (Farnow v. Superior Court (1990) 226 Cal.App.3d 481, 486), we construe
the phrase “but not be limited to” to mean a trial court may impose other statutory
sanctions (as well as the remedy under section 1101, subdivision (c)) in addition to 50
percent of the asset and attorney fees authorized under subdivision (g).
Kate argues that section 1101, subdivision (g) does not authorize an award of
unrelated property as a remedy for the fiduciary breach. We disagree, at least to the
extent the award offsets an equalizing payment sought by the breaching spouse for a
community asset which the complaining spouse seeks to retain as separate property.
Kate’s authorities do not persuade us otherwise. The court in In re Marriage of Simmons
(2013) 215 Cal.App.4th 584, 594, held that the subdivision (h) remedy did not apply to
nondisclosures involving separate property. The court in Schleich extended that holding
to awards under subdivision (g), as both subdivisions provide remedies for a spouse’s
fiduciary breach that impairs the other spouse’s community interest. (Schleich, supra, 8
Cal.App.5th 267, 279; see also In re Marriage of Prentis-Margulis & Margulis, supra,
198 Cal.App.4th 1252, 1257-1258; 1270 [upholding “value of the asset” award].) In re
Marriage of Fossum (2011) 192 Cal.App.4th 336, 347-348, and In re Marriage of
Hokanson (1998) 68 CalApp.4th 987, 993, addressed the award of mandatory attorney
fees under subdivision (g). To the extent a subdivision (g) award is offset in whole or in
13
part by a buyout or equalizing payment, the award does not violate the statutory mandate
that the community estate be divided equally.
4. Remaining Arguments
Kate argues the trial court abused its discretion by not determining the value of the
community home in Croatia in formulating its section 1101 remedy. Under section 1101,
subdivision (g), the trial court is required to assess the undisclosed asset at its highest
value, whether it be date of breach, date of sale, or date of the court’s award. The
valuation applies to the undisclosed or transferred asset (cash in this case), not to an
offsetting asset. Kate valued the Croatia home in her 2017 schedule of assets and debts
to be $1,003,200, and she sought a 50 percent equalizing payment based on that value.
The court did not abuse its discretion using the same valuation when it formulated a
remedy under subdivision (g).
We reject Kate’s argument that the award of the community home in Croatia to
Peter was intended to be punitive. Peter had asked that the residence be awarded to him
to remedy Kate’s breaches given that she lacked sufficient funds to satisfy a judgment,
and Kate did not wish to retain an interest in the property but rather asked that the home
be sold and divided equally or that Peter buy her out.
Finally, we reject Peter’s argument that the section 1101, subdivision (g) award
may be upheld as a sanction under section 2107, subdivision (c). That statute applies to
disclosure violations in dissolution proceedings. Here, the fiduciary breach extended to
Kate’s nondisclosure beginning before dissolution proceedings were initiated.
B. SANCTIONS UNDER SECTION 2107
Section 2100, subdivision (b) announces a public policy of full disclosure and
cooperation in a marital dissolution. To that end, the statute mandates in the early stages
of a dissolution proceeding “a full and accurate disclosure of all assets and liabilities in
which one or both parties have or may have an interest . . . regardless of the
characterization as community or separate, together with a disclosure of all income and
14
expenses of the parties.” (§ 2100, subd. (c).) The statute imposes “a continuing duty to
immediately, fully, and accurately update and augment that disclosure to the extent there
have been any material changes” so that “each party will have a full and complete
knowledge of the relevant underlying facts.” (Ibid.)
Section 2102 extends the fiduciary standards set forth in section 721 “to all
activities that affect the assets and liabilities of the other party” from the date of
separation to the date community property is distributed in dissolution proceedings.
(§ 2102, subd. (a).) Those activities include (1) “accurate and complete disclosure of all
assets and liabilities in which the party has or may have an interest or obligation and all
current earnings, accumulations, and expenses,” including “immediate, full, and accurate
update[s]”; (2) accurate and complete written disclosure of any investment or business
opportunity that results from an investment, significant business activity, or
income-producing opportunity of either spouse during the marriage before separation;
and (3) the operation or management of a business (or a business interest) in which the
community may have an interest. (§ 2102, subd. (a)(1)-(3).)
Section 2107 mandates monetary sanctions against a party who fails to comply
with dissolution disclosures. (§ 2107, subd. (c).) “Sanctions shall be in an amount
sufficient to deter repetition of the conduct or comparable conduct, and shall include
reasonable attorney’s fees, costs incurred, or both, unless the court finds that the
noncomplying party acted with substantial justification or that other circumstances make
the imposition of sanctions unjust.” (Ibid.)
The family court found that Kate breached her duty under section 2100,
subdivision (c) to disclose $6.1 million in earnings working for Accura between 2013 and
2016 and her 2016 purchase of a home in Croatia. Under section 2107, subdivision (c),
Kate was sanctioned $73,000 in attorney fees and costs, $220,952 in expert costs, and
$200,000 to deter further disclosure violations.
15
1. Kate’s Nondisclosures
Kate argues she complied with her duty to disclose postseparation income by
disclosing her earnings in 2013 and 2017, which was “months before trial.” The
Legislature requires that “all current earnings” be “immediate[ly], full[y], and
accurate[ly]” updated. (§ 2102, subd. (a)(1).) The record supports the trial court’s
finding that Kate failed to comply with that requirement. Peter became aware of Kate’s
postseparation earnings in 2016 in connection with Kate’s real estate purchase in Croatia,
which resulted in further discovery and Kate’s production in 2017 of W-2s for years 2013
to 2016. Accura paid Kate $880,000 in 2013; $1.44 million in 2014; $2.41 million in
2015; and $1.4 million in 2016—all income earned pursuant to an agreement Kate
reached with Ivan in early 2013. That agreement was a material change requiring Kate to
“immediately, fully, and accurately update” her disclosures with the postseparation
earnings. (§ 2100, subd. (c).) She was in breach as early as 2013 for not doing so.
Further, Kate stated in her March 2013 income and expense declaration that she had no
earnings in the preceding 12 months. Kate also omitted from her April 2013
interrogatory responses that she had earned $1.206 million in 2012. And in answers to
supplemental interrogatories in 2017, Kate omitted earnings of $1.4 million in 2016 and
$2.41 million in 2015. Her 2017 interrogatory responses were also misleading in that she
stated she was not on Accura’s payroll and did not receive pay stubs from the company.
(§ 721, subd. (b) [the spousal relationship “imposes a duty of the highest good faith and
fair dealing on each spouse”].)
Kate challenges the finding that she breached her duty to disclose her 2016 real
estate purchase because Peter knew about the acquisition. Peter testified that he was
aware of the purchase when Kate travelled to Croatia to sign papers. But Peter’s
awareness did not excuse Kate’s statutory duty to disclose the acquisition in her schedule
of assets. (§ 2102, subd. (a)(1).) The home was purchased in August 2016, and Kate
waited until July 2017 before adding the acquisition to her schedule of assets.
16
2. Attorney Fees and Costs
Kate argues that an award of attorney fees and costs under section 2107,
subdivision (c) must be “tethered to” her nondisclosures. In her view, the attorney fees
and expert costs award to Peter was required to have been based on the nondisclosures.
Peter sought $466,044.58 in attorney fees, and the court exercised its discretion to
limit the award ($70,000) to fees incurred during pretrial discovery. Between May 2012
and November 2013, Peter incurred $4,500 in attorney fees related to the parties’
preseparation finances. No additional amounts were incurred until 2017, when Peter
incurred approximately $68,000 in discovery-related fees and costs after learning of
Kate’s postseparation earnings. Peter hired a forensic accountant in early 2013 to trace
the parties’ preseparation expenditures, a task that was unrelated to Kate’s nondisclosure
of postseparation earnings and acquisitions. Peter’s expert was tasked in 2017 with
examining Kate’s postseparation earnings. The expert testified at trial and billed
$220,952 for his services. We see no abuse of discretion in either award. Both were
reasonable in light of Kate’s ongoing disclosure violations beginning in 2013.
Kate cites to Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 344, where the
husband sought $500,000 in postjudgment sanctions under multiple sections of the
Family Code and the Code of Civil Procedure. A $200,000 sanction was awarded only
under section 271. (Menezes, at pp. 344-345 & fn. 2.) The record there identified
$189,427 in attorney fees and costs, which included possible duplicative fees and
$18,000 in unrecoverable travel expenses. (Id. at p. 351 & fn. 5.) The Menezes court
determined that insufficient evidence connected the entire $200,000 sanction to attorney
fees and costs, and the matter was remanded for further consideration. (Id. at p. 352.)
Unlike in Menezes, here the record supports $73,000 in attorney fees and costs and
$220,952 in expert fees. Peter’s attorney and expert submitted monthly invoices
documenting every billable transaction. The invoices provide sufficient detail to support
the awards.
17
Kate also cites In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, but we
do not see that case as demanding a different result. After recognizing that sanctions
under section 2107 are “similar to” sanctions under section 271 and civil discovery
sanctions, the court reviewed a sanctions award under section 2107, subdivision (c) for
abuse of discretion in the first instance. (In re Marriage of Feldman, at p. 1478.) We
uphold the sanctions award here under that standard.
3. $200,000 Monetary Sanction
We reject Kate’s argument that the $200,000 monetary sanction to deter future
misconduct was not authorized by section 2107, subdivision (c). Courts have
consistently recognized that section 2107 authorizes both monetary sanctions and
reasonable attorney fees. (In re Marriage of Feldman, supra, 153 Cal.App.4th 1470,
1477 [“Section 2107, subdivision (c) requires the trial court to impose monetary
sanctions and award reasonable attorney fees if a party fails to comply with any portion
of the chapter of the Family Code that deals with a spouse’s fiduciary duty of disclosure
during dissolution proceedings”]; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295,
1318-1319; In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 651-652.) Had the
Legislature intended sanctions for disclosure violations under section 2107 to be limited
to attorney fees, it would not have amended section 2107, subdivision (c) to provide for
“sanctions . . . in an amount sufficient to deter repetition of the conduct or comparable
conduct,” including reasonable attorney fees and costs as a component of the sanction.
(Stats. 2001, ch. 703 § 6 [Assem. Bill No. 583]. Before the 2001 amendment, section
2107 authorized attorney fees and costs only to remedy disclosure violations.) By its
terms, subdivision (c) of section 2107 provides for monetary sanctions in addition to
reasonable attorney fees and costs.
4. Remaining Arguments
Peter’s claims arose from Kate’s lack of transparency both during and after
separation. Kate contends Peter had unclean hands because he did not prevail on all
18
claims and did not comply with all disclosure requirements himself. But new information
on Peter’s 2017 schedule of assets and debts does not, by itself, establish a disclosure
violation. Nor does Kate’s testimony that Peter’s lawyers did not disclose his purchase of
a business interest in a restaurant shown on Peter’s 2017 schedule of assets and debts.
She has not established the date of the transaction relative to Peter’s disclosure, nor that it
represented a material change in Peter’s financial profile.
C. SECTION 271 SANCTIONS
Section 271, located under the Family Code’s General Provisions, authorizes an
award of attorney fees and costs as a sanction when a party’s conduct “frustrates the
policy of the law to promote settlement of litigation” and “to reduce the cost of litigation
by encouraging cooperation between the parties and attorneys.” (§ 271, subd. (a).) Kate
argues the trial court unfairly denied her request for section 271 fees based on Peter’s
“blatant forum shopping,” inconsistent positions, and overreach.
We see no abuse of discretion on this record. Peter filed suit in Croatia in 2016
related to the characterization of the home Kate purchased there that year. The family
court noted the lawsuit had been stayed pending its decision in the instant litigation, and
expressly exercised its discretion not to sanction Peter for filing that suit, finding that “the
bulk of the blame for prolonging this litigation because of nondisclosure of financial
matters that could have easily been produced” rested with Kate. The court recognized
that Peter also contributed to prolonging the litigation, which is why it awarded Peter
only part of his attorney fees under section 2107, subdivision (c).
D. K ATE’S HOME IN CROATIA
Kate asserts the family court should have confirmed as her separate property the
home she purchased in Croatia in 2016. Peter counters (for the first time in this court)
that the family court lacked authority to confirm the property, as it was separate property
acquired after separation.
19
The family court’s authority in dissolution proceedings is to adjudicate the
community estate. (§ 2550 [in dissolution proceedings, “the court shall . . . divide the
community estate of the parties equally”].) Although jurisdiction to divide property is
limited to the community estate (Hogoboom & King, Cal Practice Guide: Family Law
(The Rutter Group, 2022) ¶ 8:901 [“Except as provided by [§ 2650], property division
jurisdiction under the Family Code extends only to the community estate”]), a court
dividing a community estate “may characterize disputed assets and liabilities as being
separate or community, [and] may confirm separate property to the owner spouse.” (Id.,
¶ 8:903; Kirsch v. Kirsch (1896) 113 Cal. 56, 63 [a court in dissolution proceedings
“has . . . jurisdiction to determine whether or not a given piece of property is or is not
community property”]; In re Marriage of Dorris (1984) 160 Cal.App.3d 1208, 1215
[same].)
Peter’s asserted interest in the Croatia property derived from his claim to Kate’s
postseparation earnings. The family court expressly found those earnings were Kate’s
separate property and that she purchased the home in Croatia using those funds. To the
extent the court did not take the additional step of “confirming” the home to Kate, we see
no prejudice. (Cal. Const. art. VI, § 13 [“No judgment shall be set aside . . . in any
cause . . . for any error as to any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice.”].) The statement of decision is entirely clear that the home is Kate’s separate
property.
IV. DISPOSITION
The judgment is reversed and the matter remanded for the family court to reduce
Peter’s Family Code section 1101 award for Kate’s fiduciary duty breaches to $87,437.50
(one half of $174,875 misappropriated by Kate) and to recalculate an equalizing payment
accordingly. The parties shall bear their own costs on appeal.
20
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P.J.
____________________________
Lie, J.
H047406 – Matkovic v. Matkovic | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490867/ | DECISION ON MOTION PURSUANT TO 11 U.S.C. § 365(d)(2)
BURTON PERLMAN, Chief Judge.
A controversy had arisen in this Chapter 11 case having to do with the rights of the several parties involved in an effort to sell certain real estate owned by the debtor. This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding arising under 28 U.S.C. § 157(b)(A), (B) and (0).
The real estate which is the subject of the controversy is F.H. Lawson Company’s Plant No. 2. Debtor entered into a contract dated January 15,1988 for the sale of the subject property to Peter Marcus as trustee, the buyer. That contract fixed a closing date of April 1, 1988. This bankruptcy case was filed March 25, 1988, a date after the date of the making of the contract, but before the date of the projected closing. The parties, after the making of the initial contract, negotiated further with respect to the conditions of the sale, and subsequently entered into a second contract dated May 13, 1988. Copies of both contracts are a part of the record on the present motion.
The January 14, 1988 contract is a printed form copyrighted by the Cincinnati Board of Realtors, Inc., entitled “Contract to Purchase Industrial — Investment—Commercial”. This contract provides for a purchase price of $385,000.00 with an earnest money payment of $25,000.00 and provides for a commission of 6% for the selling realtor, the Harper Company. There is a typed addendum to the contract which states several specific promises regarding condition of the premises upon delivery.
The May 13, 1988 contract is typed, and states that the parties thereto are Peter Marcus, trustee, and the F.H. Lawson Company. The purchase price is now $380,-000.00 with $25,000.00 acknowledged to have been received, and the balance to be paid at closing. The contract provides that it is conditioned upon approval by the Bankruptcy Court. Further, there is a new and extended provision dealing with the possibility of the presence of asbestos and/or toxic, hazardous or contaminated substances on the premises. Buyer is given the option to terminate the agreement if he finds that the cost of removing such substances exceeds $25,000.00. The last provision in the contract reads: “This Agreement supersedes an earlier contract involving the Real Estate entered into between Buyer and Seller on January 15, 1988.”
Events then occurred in the Bankruptcy Court regarding the second contract. A hearing was noticed to all creditors for consideration of approval of the second contract. Objections thereto were lodged by the City of Cincinnati and the Creditors’ Committee. The court sustained the objections to the sale after learning at the hearing that the City of Cincinnati was willing to pay debtor more than the amount provided for in the contract of sale.
Apart from the foregoing, there are extended representations of facts in the mem-oranda of the parties submitted on this motion. We do not consider these representations as part of the evidentiary record before us. We look only to the documentary facts, and facts regarding occurrences in this court in considering the present motion.
Now before us is a motion by the above-identified movants pursuant to 11 U.S.C. *897§ 365(d)(2) requesting that the court set a date for assumption or rejection of the January 14, 1988 agreement. The purpose of this filing obviously is to position mov-ants to assert claims against debtor for breach of the January 14, 1988 agreement, for which position a rejection of the January 14,1989 agreement is necessary. (Certainly movants can have no expectation that debtor will assume the January 14, 1988 contract.)
In pressing this motion, however, movants seek to by-pass the vital threshold question, whether there is any January 14, 1989 contract to assume or reject, in view of the express statement in the subsequent May 13, 1988 contract that it “supersedes” the earlier contract. If we hold that there is no contract to assume or reject, referring to the January 14, 1988 contract, then mov-ants have no right to press a claim for breach of that contract. Debtor, of course, asserts the position that there is no January 14, 1988 contract to assume or reject.
The issue presented is easy to resolve. The parties, when they entered into the May 13, 1988 contract, intended to replace with that document the earlier one that they had executed on January 14, 1988. This was the intention of the parties for they unequivocally and expressly said so in the May 13, 1988 document. The January 14, 1988 contract was therefore superseded by the later contract. It needs no citation of authority to establish that it is the intention of the parties which governs in contract matters. Furthermore, there is no room for parole evidence, and an evidentia-ry hearing, where the intention of the parties is clearly stated in the document. We accept the position of the debtor that the May 13, 1988 contract was a “substituted contract” which had the effect of discharging the January 14, 1988 contract. See, Restatement of the Law (2nd) of Contracts, § 279(1) and (2).
Movants, however, argue that the intention of the parties cannot be given effect because (1) debtor had no authority to terminate the January 14, 1988 contract without the permission of the Bankruptcy Court, or (2) debtor had no legal authority to enter into the May 13, 1988 contract without the permission of the Court after the filing of the bankruptcy case. We find these arguments to be without merit.
Movants base their first ground upon a contention that where there is an executory contract and bankruptcy intervenes while it is still executory, because of the provisions of 11 U.S.C. § 365, the debt- or has no options with respect to that contract other than to assume or reject it. This, say movants, follows from the language of § 365 which provides for assumption or rejection of executory contracts. We reject this position because while § 365 provides for assumption or rejection, it does not do this by way of limitation. There is nothing in the Bankruptcy Code which supports this position of movants nor would one sensibly expect to find such a limitation on the right of a debtor-in-possession to conduct its affairs in its role as trustee for creditors. Surely, if a trustee has the right to divest itself by further agreement of a disadvantageous obligation, it has the right to enter into a consensual agreement which supersedes an earlier agreement which both parties agree should be superseded. Perhaps if a creditor were to demonstrate that the act of entering into a superseded contract placed the debtor in a less advantageous position than it would have been in had the original contract not been superseded, there might be room for a remedy, but that is not the case here, nor is it the nature of the motion which , is here presented.
The second position advanced by movants is even less meritorious. The proposition is that a contract is void where a debtor enters into it without first securing authorization from the court. In support of this proposition, movants rely upon 11 U.S.C. § 363(b) which provides that a trustee may sell property of the estate other than in the ordinary course of business, after notice and hearing. That statutory provision, however, is merely procedural, and does not deal with the legitimacy of a contract of sale that a debtor-in-possession might enter into prior to the time that notice and hearing took place. No *898court order is necessary before a debtor-in-possession can enter into a valid contract of sale. 2 Collier on Bankruptcy (15th Ed.) § 363.03.
While it may be that these movants may be entitled to relief because of the transactions which have occurred, the present initiative can be of no help to them in securing such relief. The motion will be denied. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491019/ | ORDER ON CREDITOR’S MOTION FOR CLARIFICATION
THOMAS C. BRITTON, Chief Judge.
The debtor’s amended plan of reorganization (CP 23a) was confirmed (CP 30) on March 6, 1989. A secured creditor, First Bank of Indiantown, in Class 3, which rejected the plan, was provided for in the following manner:
“If the State Court determines that First Bank of Indiantown is a secured creditor, then the allowed secured claim First Bank of Indiantown in Class (3), shall retain a lien on its collateral to secure its allowed secured claim and receive 11% simple interest on the amount allowed by the Court with principle [sic] and interest amortized over 360 equal payments; but balance of principle [sic] paid in full on the 61st payment." (Amended Plan ¶ C(2)).
The Order for Payment of Dividends (CP 32) provides for Class 3:
“Objection to Claim & Appeal Pending in State Court Amount of Claim Allowed Amount of Dividend 0 0.”
The order on appeal is the judgment of foreclosure. The debt is secured by a mortgage on the debtor’s residence.
After confirmation of the plan, the parties were heard in State court on the issue of requiring the debtor to post a supersede-as bond. The State court was unable to determine whether it had the authority to schedule a sale date in the event the debtor does not post a bond, and directed the creditor to return to the bankruptcy court for further instructions. (CP 49 Ex. A).
On August 18, the creditor requested clarification regarding sale of the property. The matter was heard on September 5.
The debtor’s response (CP 51) relies on the Order for Payment of Dividends and *382the case closing certificate of the U.S. Trustee. The debtor also cites statutory authority and commentary to establish the binding effect of the plan.
The debtor’s position is that her compliance with the Order for Payment of Dividends, which provided no payment at all to this creditor,1 permits her to hold off a sale of the property. She fails to take into account the basis for confirmation; that is, that the dispute between the secured creditor and the debtor was subject to further determination by the State court.
The only clarification necessary here is whether the confirmed plan gives the debt- or the right to stay a foreclosure sale while she pursues an appeal without complete adherence to the requirements of the State court, specifically the posting of a bond.
It was not the intent of this court to waive any State court requirements or obligations of the debtor/or, in fact, to determine any part of the dispute subject to the jurisdiction of the State court. Furthermore, it was not the intent of this court to confirm a plan providing no payments on the mortgage at all, and surely the Order for Payment of Dividends was not a decision on that point.
The confirmed plan is not the protective shield the debtor asserts unless the debtor proceeds in accordance with its terms. Those terms permit a determination by the State court of the secured status of the subject claim, which it has done, and thereafter payment to the creditor.
As the record here has established, the State court’s authority is set forth in the plan. However, it was never the intent of this court in confirming the plan to impose on the State court departures from its normal requirements or procedures for the convenience of this debtor.
DONE and ORDERED.
. The only payments required were a total of $112.36 to four creditors. The U.S. Trustee felt it was appropriate based on this record to approve the payment of zero dollars to the mortgagee. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491021/ | MEMORANDUM AND ORDER
WILLIAM A. HILL, Bankruptcy Judge.
By Motion filed July 21, 1989, the plaintiffs in the above-captioned adversary proceeding seek summary judgment on their Complaint.
By Complaint filed April 25, 1989, the plaintiffs seek recovery of two payments totalling $4,000.00 which are alleged to constitute preferences under section 547(b) of the Bankruptcy Code. In its Answer the defendant, Strasburg Farmers Union Elevator (Elevator), asserts that the payments were a contemporaneous exchange for new value thus excepted under section 547(c)(1). Both parties have provided the court with affidavits as well as briefs on the issue presented. The original checks perceived to be preferences are attached as an exhibit to the plaintiffs’ affidavit.
Summary judgment is available where the pleadings or other documents on file show there to exist no genuine issue as to any material fact and where the moving party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mandel v. United States, 719 F.2d 963, 965 (8th Cir.1983). When considering motions for summary judgment the weight of authority is that summary judgment may be rendered in favor of the opposing party even though no formal cross-motion has been made, providing the facts developed reveal the opponent is entitled to judgment. National Expositions v. Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir.1987); British Caledonian Airways Ltd. v. First State Bank of Bedford, Tex., 819 F.2d 593, 595 (5th Cir.1987).
It is with the foregoing standard in mind that the facts and issues as they presently appear will be considered.
1.
From the pleadings, affidavits and documents submitted, the relevant facts may be stated as follows:
The Debtor, LeRoy Roehrich, is a dairy farmer in Emmons County, North Dakota who throughout 1988 did business with the elevator. As of January 1, 1988, his outstanding balance with the elevator was $1,600.00. Throughout the year he purchased large quantities of feed and a small amount of propane. He filed for protection under Chapter 12 of the Bankruptcy Code on December 9, 1988. Up until and through July 14, 1988, the Debtor was allowed to make his purchases on credit with payment due in thirty days.
On June 10, 1988, the Debtor presented the elevator with a check in the sum of $2,000.00. It appears from the affidavit of the elevator’s attorney, that the only purchase made on this date was for $784.59 worth of feed. The same affidavit states that the Debtors’ accrued account balance on that date was $6,300.11.
On July 28, 1988, the Debtor presented the elevator with another check in the sum of $2,000.00. According to the affidavit of the elevator's attorney, between June 10 and July 28, 1988, additional credit charges were incurred of $2,875.95. The Debtor, on the other hand, in his brief asserts that he bought $2,000.00 worth of feed on June 10, 1988, with the June 10th check and another $2,000.00 worth of feed on July 28, 1988, again with the July 28, 1988, check. Curiously the elevator’s tally of purchases as contained in its attorney’s affidavit does not reveal these purchases. If no additional contemporaneous purchases were made one might assume that the checks had the effect of reducing the Debtors’ accrued account balance by $4,000.00. If so, then the account balance would have been $5,176.00 as of the date of petition filing. However, the Debtor says and schedule A-3 confirms that his indebtedness to the elevator as of the filing date was actually $10,605.85.
The Debtor, by affidavit, explains saying that on June 10 and July 28 he asked the elevator to extend him $4,000.00 worth of credit with which to purchase cattle feed. According to the Debtor, the credit was extended and in exchange therefor he is*677sued the two checks, each time asking the elevator to hold it until he had sufficient funds on deposit to cover them. It was not until late August or early September when the Debtor sold sufficient numbers of cattle that the necessary funds to cover the two checks were generated. When the funds reached his bank the debtor advised the elevator that the checks would clear whereupon the two checks were presented and honored.
It is unclear from the facts whether the elevator merely extended credit on June 10, 1988 and July 28, 1988 or whether on those dates the Debtor actually purchased and received feed.
2.
As relevant to the issue in contention, section 547(b) of the Bankruptcy Code provides as follows:
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 ninety 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 transfer was an insider;
(5) that enabled such creditor to receive more than such creditor would receive if ...
(A) this 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 ...
11 U.S.C. § 547(b).
The Debtor must establish all elements of section 547(b) to establish a voidable preference. Barash v. Public Finance Corp., 658 F.2d 504, 507 (7th Cir.1981).
Apparently conceding that the two checks in question were used to purchase feed of like value on the dates in question, the Debtors in their brief instead focus upon the date the checks were honored charging that the transfer occurred on September 12, 1988, thus bringing them within the ninety-day preference period and taking them outside the contemporaneous exchange argument. The elevator, relying upon the Debtors’ own affidavit, charges that the checks were a contemporaneous exchange for new value but in its brief fails to address the question of when a “transfer” is deemed to occur in this case.
When a transfer occurred is fundamental since the dispute can be resolved on the basis of whether a check constitutes a complete “transfer” of funds at the time the check is given to a creditor as opposed to the date of honor. Section 547(b) requires that the transfer complained of have occurred on or within ninety days before the date of petition filing including the petition filing date of December 9, 1988. September 11, 1988 is ninety days prior to the date of filing which would bring the September 12, 1988, date of honor within the ninety day period. June 10, 1988, and July 28, 1988, are well outside the ninety day preference period and thus, even if all other elements of section 547(b) are otherwise established, the checks would not constitute a voidable preference if the transfer is deemed to have occurred at the time the elevator was given the two checks. Although there has been some disagreement in the courts as to whether a transfer by check is deemed to occur for purposes of section 547, the issue has been by and large resolved in the appellate courts with the weight of circuit authority holding that a check transfer occurs at the time of delivery to the creditor as opposed to the date it is honored by the bank, providing it is honored within a reasonable time after delivery. In re Continental Commodities, Inc., 841 F.2d 527 (4th Cir.1988); In re Wolf & Vine, 825 F.2d 197 (9th Cir.1987); In re Kenitra, 797 F.2d 790 (9th Cir.1986); *678In re White River Corp., 799 F.2d 631 (10th Cir.1986); In re World Financial Services Center, Inc., 78 B.R. 239 (9th Cir.BAP 1987) contra see Nicholson v. First Inv. Co., 705 F.2d 410 (11th Cir.1983). The rationale for opting for the date of delivery as the date of transfer was set out in White, supra, to-wit:
“The delivery date view encourages trade creditors to continue dealing with troubled businesses by insulating normal business transactions from the trustee’s avoiding power, (citations omitted). Additionally, in the commercial world receipt of a check, as distinguished from the date it clears the drawee bank, is customarily looked upon as the date of payment of an obligation, (citation omitted) ... and that holding that the transfer occurs on the date the check is delivered allows the debtor, as opposed to the bank, to determine the precise date of the transfer.” 799 F.2d at 634.
The three-to-one authority in the circuits is persuasive upon this court and accordingly the June 10, 1988, and July 28, 1988, check delivery dates are deemed to be the date of the transfers thus bringing the offending transfers outside of the ninety-day preference period.
Under the Uniform Commercial Code as adopted in North Dakota, a reasonable time for presentment is determined by the nature of the instrument, any usage of banking or trade and the facts of the particular case. N.D.Cent.Code 41-03-59(2). (U.C.C. § 3-503(2)). The court believes that the date of presentment and honor was timely, given the fact that it was the Debtor himself who requested that the elevator hold the checks in order to afford him sufficient time to garner the funds necessary to cover them. It would be an extremely inequitable twist of the law if a delay in presentment and honor occasioned by the Debtors’ own actions, were held to alter the time a transfer was deemed to occur. In view of the foregoing discussion, the Debtor would under any fact scenario be unable to sustain his burden of proof ■ with respect to one of the essential elements necessary to avoiding the transfer under section 547 and thus the two checks in issue are not amenable to being avoided as preferences.
IT IS ORDERED that judgment be entered in favor of defendant, Strasburg Farmers Union Elevator, and against the plaintiffs, LeRoy and Mary Ann Roehrich. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491022/ | *768FINDINGS OF FACT AND CONCLUSIONS OF LAW
HAROLD L. MAI, Bankruptcy Judge.
THIS MATTER came before the court on May 17, 1989, on the plaintiffs’ Complaint to Determine Dischargeability of a Debt and for Turnover: Georg Jensen, Cheyenne, Wyoming, appearing for the debt- or/plaintiff and the trustee/plaintiff; Philip E. Blondín, Tax Division, U.S. Department of Justice, Washington, D.C., appearing for the government.
Now, the court having considered the testimony and exhibits adduced at trial, the memoranda, having heard arguments of counsel and being fully advised, and the plaintiffs having withdrawn their Complaint for Turnover during the trial, the court does hereby find and conclude as follows:
FINDINGS OF FACT
1. Robert Clements is a business man. In 1978, he and one Harold E. Roeder began a business known as Midwest Door located in Scottsbluff, Nebraska. They incorporated the business as Midwest Door Distributors, Inc. (Midwest Door). Each was a 50% shareholder. Under a franchise, Midwest Door distributed and installed garage doors for residential and commercial use.
2. Mr. Clements was President and Treasurer of the new corporation and Mr. Roeder was Vice President and Secretary. Mr. Clements remained Treasurer of the corporation from the time of its incorporation through the end of September of 1981. Mr. Clements and Mr. Roeder were the only Directors of Midwest Door from its incorporation through the time it ceased business.
3. The business of Midwest Door operated from 1978 through the end of September of 1981.
4. Prior to being involved with Midwest Door, Mr. Clements had been involved in business with other corporations. As a businessman generally, and as Treasurer of Midwest Door, specifically, Mr. Clements was aware of the requirement to collect, account for, and pay over to the United States taxes withheld from the wages of employees.
5. From 1978 until Midwest Door ceased business sometime in September of 1981, Mr. Clements was responsible for operating the business. Mr. Roeder, on the other hand, supervised the installation and service of the doors. Mr. Clements and Mr. Roeder were the only two (2) authorized signatories on the corporate banking accounts. However, it was Mr. Clements who made deposits to the corporate accounts. Both he and Mr. Roeder hired people.
6. Pursuant to his responsibility for operating the business, Mr. Clements was generally “the boss” at Midwest Door. He did ordering for the company, he signed the company checks, he made the bank account deposits, he directed which creditors were to be paid, he directed the employees, and he signed the quarterly 941 returns.
7. Sometime in late 1980, Mr. Clements began another business in Cheyenne, Wyoming, known as Wyoming Overhead Door Services. Mr. Clements commuted back and forth between Cheyenne and Scotts-bluff, Nebraska, from then on. Although he rented an apartment in Cheyenne together with an employee of his companies, he did not stay there during the workweek.
8. From late 1980 on, Mr. Clements and Mr. Roeder discussed a buy out of Mr. Clements’ interest in Midwest Door. Over the next year there were various proposals for a buy out of Mr. Clements’ interest in the corporation by Mr. Roeder and various other individuals. At one time an employee of Midwest Door attempted to participate in a buy out. However, adequate financing was never arranged for any of the proposed buy outs.
9. On August 28, 1981, Mr. Roeder and Mr. Clements signed an “Agreement for Sale of Stock,” whereby Mr. Roeder was to acquire all of Mr. Clements’ stock. Per the Agreement, Mr. Clements did receive a check in September of 1981, but it *769“bounced,” and the sale was apparently never consummated.
10. Mr. Clements remained in control of Midwest Door and its business operations and financial dealings until it ceased operations. He continued to sign checks until the business ceased. Employees of the company testified that there was never a change in Mr. Clements’ direction and control of the company during the entire time it operated, up to and including the time when the business ceased operations.
11. In July, August, and September of 1981, Mr. Clements retained, and exercised, the authority to sign corporate checks and direct which creditors were to be paid. As late as August 31, 1981, Mr. Clements was signing Midwest Door checks.
12. During these months, Mr. Clements was well aware that Midwest Door was in very poor financial condition and was having difficulties paying its creditors. On June 12, 1981, a stockholders meeting was held and it was determined by Mr. Clements and Mr. Roeder that the company would have to be offered for sale due to severe financial problems. Mr. Clements signed the minutes of that meeting as President of the corporation.
13. In July, and again in August of 1981, Mr. Clements lent the corporation funds in the amounts of $9,000 and $5,500. He received Promissory Notes for these amounts.
14. On July 29, 1981, Mr. Clements received notice that Midwest Doors’ operating lender had setoff the company account and was calling its note due. Mr. Clements was personally liable as guarantor of that note.
15. Although Mr. Clements now claims to have resigned as President of Midwest Door on or about May 8,1981, he continued acting in that capacity and exercising authority as President well after the time of the purported resignation. Mr. Clements never did resign as Treasurer and continued to act in that capacity until the business ceased.
16. On July 31, 1981, Mr. Clements signed, as President of Midwest Doors, the Employers Quarterly Federal Tax Return for the second quarter of 1981 (941 form). At that time the return showed the taxes were paid.
17. On September 28, 1981, Mr. Clements, as President of Midwest Door, executed a “Waiver by Debtor of Rights After Default” surrendering all of its collateral to the First State Bank, Scottsbluff, Nebraska. Mr. Roeder also executed this Waiver as Vice President. At the time of execution, Mr. Clements was personally liable to the Bank as guarantor of the corporate debt.
18. Láveme Scoggan was the office employee who was in charge of computing the taxes and filing out the 941 forms. She testified that to the best of her knowledge, the taxes were paid as shown on 941 form for the second quarter of 1981. She testified that it was Mr. Clements who went to the bank and made the deposits.
19. Mr. Clements was the person responsible for accounting for, collecting, and paying over taxes withheld from the wages of Midwest Door employees up through and including the day it ceased its business operations.
20. On October 31, 1981, Mr. Clements was assessed the amount of $11,665.66 as the person responsible for paying the unpaid withholding taxes of Midwest Door for the second and third quarters of 1981.
21. During the period in question, there were sufficient funds in Midwest Door’s checking account to have paid the taxes withheld from the wages paid to employees.
22. On the date of trial, the total amount of the debt for the unpaid withholding taxes, including penalty and interest, was $20,903.57.
CONCLUSIONS OF LAW
This court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 1334 and 157, 11 U.S.C. § 505, and Local Rule 905. This action to Determine the Dischargeability of a Debt is a core proceeding within the meaning of 28 U.S.C. § 157 (b)(2)(I).
*770Any corporate officer or employee with power and authority to avoid default or to direct the payment of taxes is a “responsible person” within the meaning of 26 U.S.C. § 6672. Feist v. United States, 607 F.2d 954, 221 Ct.Cl. 531 (1979).
A person who is a Director, indirect owner, and Treasurer is presumed to be a “responsible person”. Id.
“Willfully,” as used in Section 6672 means a “voluntary, conscious, and intentional decision to prefer other creditors to the Government.” Burden v. United States, 486 F.2d 302 (10th Cir.1973). In the Burden case, willfulness was found where a corporate officer was fully aware of the corporation’s financial difficulties and defaulted tax obligations, and yet chose to pay creditors other than the United States.
Similarly, in the present case, Mr. Clements was fully aware of Midwest Door’s financial difficulties. He was aware that some creditors were having to be “put off.” Mr. Clements was the person in the company who was responsible for the 941 taxes. He was the person who signed the returns. He was the person who made the deposits. He was the corporate Treasurer throughout the relevant times. He testified that he assumes he reviewed the records to determine whether or not the 1981 second quarter 941 return was correct when he signed it. He was in control of the company’s finances during the time in question.
Mr. Clements was in a unique position to know that the taxes were due and to ensure that they were correctly deposited and paid over.
Robert Horace Clements was a responsible person of Midwest Door Distributors, Inc., pursuant to Section 6672 of Title 26 of the United States Code. The claim of the Internal Revenue Service for assessed, but unpaid taxes and statutory additions in the amount of $20,903.57 is lawful. Plaintiffs’ Complaint is dismissed with prejudice in its entirety.
The court will enter an appropriate order. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491023/ | OPINION
DAVID W. HOUSTON, III, Bankruptcy Judge.
On consideration before the Court is the complaint filed by the debtor, Paul H. Jones, Sr., d/b/a Owens Pecan and Cattle Company, hereinafter Jones, Sr., against the United States of America, acting for and on behalf of the Commodity Credit Corporation, an agency within the United States Department of Agriculture, hereinafter referred to as CCC, to recover certain pecan disaster payments allegedly due Jones, Sr., from CCC; answer and counterclaim having been filed by CCC to set off an alleged mutual debt owed to CCC by a separate debtor, Pushmataha Plantation, Inc., hereinafter referred to as Pushmataha Plantation, a corporation whose stock is wholly owned by Jones, Sr., said debt arising under the provisions of the price support loan program; all issues having been joined between the parties and the matter having proceeded to trial with proof being introduced by. oral testimony, stipulations and documentary exhibits; and the Court having heard and considered same, hereby finds as follows, to-wit:
I.
The Court has jurisdiction of the subject matter of and the parties to this adversary 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)(A), (B), (E), and (O).
II.
There are essentially three issues in this adversary proceeding which will be addressed by the Court in the following order:
A. CCC deficiency claim against Push-mataha Plantation, Inc., resulting from the price support loan program.
B. Commercial reasonableness of the sale of the Pushmataha Plantation, Inc., soybeans to Archer. Daniels Midland Co.
C. CCC claim against Paul Jones, Sr., d/b/a Owens Pecan and Cattle Company, for the setoff of certain pecan disaster payments against the aforementioned deficiency allegedly owed to CCC by Pushmat-aha Plantation, Inc.
III.
A. CCC DEFICIENCY CLAIM AGAINST PUSHMATAHA PLANTATION, INC., RESULTING FROM THE PRICE SUPPORT LOAN PROGRAM.
1.
Three farm storage notes and security agreements were executed in connection *890with three price support loans made to Pushmataha Plantation, Inc., tax identification number 64-0541201, as follows:
LOAN NOS. DATE AMOUNT COLLATERAL BUSHELS EXHIBIT NO.
8 or 42 1/29/86 $291,414.20 1985 soybeans 57,365 Exhibit 5
38,836.60 1985 soybeans 7,645 Exhibit 5
17,515:84 1985 soybeans 3,448 Exhibit 5
$347,766.64 68,458
9 or 43 1/29/86 $ 13,014.96 1985 soybeans 2,562 Exhibit 4
10 or 44 1/29/86 $ 8,519.16 1985 soybeans 1,677 Exhibit 6
Totals $369,300.76 72,697
After the loans went into default, the soybeans were removed from the seven grain bins located at Pushmataha Plantation by CCC between May 8, 1987 and May 20, 1987. They were transported to Archer Daniels Midland Co., hereinafter ADM, where they were ultimately purchased by ADM some six weeks later. The receipts allocated to Pushmataha Plantation are reflected as follows:
LOAN NOS. DOLLAR AMOUNT BUSHELS SALES PRICE/ BUSHEL (Exhibit 14)
8 or 42 $276,469.46 59,074.67 $4.81
9 or 43 $ 9,578.42 2,046.67 $4.81
10 or 44 $ 1,743.14* 357.20*
8,547.17 1,751.47
$ 10,290.31 2,108.67 5.01
Totals $296,338.19 63,230.01
CCC calculated the dollar deficiency owed by Pushmataha Plantation after the sale to ADM as follows:
LOAN NOS. SURPLUS/ DEFICIENCY (Exhibits 15 and 16)
8 or 42 79,104.54 deficiency
9 or 43 $ 3,813.58 deficiency-s
10 or 4( 1,742.81) surplus ^ o
$81,175.31 net deficiency
*891The net deficiency for Pushmataha Plantation was raised to $82,348.47 as reflected on Exhibit 17.
The bushel deficiency for Pushmataha Plantation is calculated as follows:
LOAN NOS. COLLATERAL PLEDGED DELIVERED SURPLUS/ DEFICIENCY
8 or 4268,458 59,074.67 9,383.33 deficiency (M ^ O CO
9 or 432,562 2,046.67 515.33 deficiency CO Sh O 00
10 or 441,677 2,108.67 (431.67) surplus ^ 9* O O
72,697 63,230.01 9,466.99 net deficiency
The quantities of soybeans removed from the same grain bins, but allocated to the loan accounts of Paul Jones, Jr., are reflected as follows:
BUSHELS SALE PRICE/ BUSHELS (Exhibit 14)
13,370.00 $5.33
5,308.33 4.92
18,678.33
81,908.34total bushels were, therefore, removed by CCC and delivered to ADM for sale.
Although no loan documentation was introduced into evidence, reflecting the amounts borrowed or collateral pledged by Paul Jones, Jr., no deficiency whatsoever has been assessed by CCC against him.
2.
The CCC price support loans to Pushmat-aha Plantation were made through the Coa-homa County, Mississippi, Agricultural Stabilization and Conservation Service office, whose county executive director was Oby W. Easley, III, hereinafter Easley. Prior to the loans being consummated, Easley made meticulous measurements of the quantities of soybeans which were stored in the seven grain bins located at Pushmat-aha Plantation. The amount of the loans depended primarily on the quantity and test weights of the soybeans which served as collateral for the loans.
During the time that the loans were outstanding, CCC, through Easley or another employee, Tim Morris, made several inspections of the soybeans. The dates of these inspections are reflected on the farm storage loan work sheets which were appended to Joint Exhibits 4, 5, and 6. On all occasions, these inspections resulted in satisfactory reports. On April 28, 1987, after obtaining relief from the automatic stay, Connecticut General Life Insurance Company foreclosed on the real property owned by Pushmataha Plantation which included the land on which the grain bins were situated. The soybeans were inspected by Easley on this date, and again by Tim Morris on April 30, 1987. Because Pushmataha Plantation lost control of its farm storage facilities, CCC demanded payment of the price support loans or, alternatively, for delivery of the soybeans. See, Joint Exhibit 8. On May 8, 1987, after CCC had been advised by Push-mataha Plantation that it had no funds with which to remove and deliver the soybeans, CCC began removing the soybeans under the direction of Morris. CCC employed the services of Buddy Carlson, a local farmer who also operates a trucking business, to transport the soybeans to ADM for storage and ultimately for sale. During this time, Jones, Sr., on behalf of Pushmataha Plantation, requested CCC on several occasions to inspect the soybeans so that there would be no unexplained losses.
The testimony of Easley, Morris, Jones, Sr., and Paul Jones, Jr., was remarkably consistent to the effect that the quantity of soybeans had not diminished from the time that the price support loans were *892made until the removal process was initiated by CCC. There was also no indication that prior to removal that there was anything wrong with the quality of the soybeans.
As can be observed from Joint Exhibit 14, 81,908.34 bushels of soybeans, belonging to both Pushmataha Plantation and Paul Jones, Jr., were eventually sold to ADM. These soybeans were transported to ADM in 83 loads, which indicates that almost 1,000 bushels per load were trucked. The testimony was consistent that ordinarily one load should contain between 800 to 900 bushels or an average of no more than 850 bushels per load. Obviously these trucks were overloaded by at least 100 to 200 bushels per truck. Morris candidly indicated that he had been told by Easley that CCC could not spend a lot of money to remove and haul these soybeans “just right.” Jones, Sr., and Paul Jones, Jr., testified that during the removal process the trucks were overloaded, that beans were spilled on the ground, that some were shoveled up and put back on the trucks and that others were just run over. Considering the size of the loads being hauled to ADM, the Court finds the testimony of the Joneses to be credible.
The Court is of the opinion that since there were no apparent shortages in the quantity of the soybeans prior to their being removed from the bins, the ultimate shortages resulted not from any fault of Pushmataha Plantation or Paul Jones, Jr., but rather from the CCC removal and trucking procedures. To assess damages against Pushmataha Plantation for any shortages in quantity, under the factual circumstances as presented to the Court, would be manifestly inequitable.
3.
Easley indicated that the dollar deficiency assessed against Pushmataha Plantation was caused by both a shortage in quantity and a substandard quality of the soybeans. He could not assign a definitive amount of damages, however, attributable to either cause. Since the Court is of the opinion that the shortages in quantity were caused directly by CCC and not by Push-mataha Plantation, in order to calculate a deficiency, if any, caused by the substandard quality of the soybeans, some evidence supporting this claim for damages must be offered by CCC. In this proceeding, CCC has chosen to assess its deficiency claim based solely on the difference between the outstanding loan balances plus the cost of removal, transportation, etc., precise figures of which were not presented to the Court, and the price eventually paid by ADM to CCC for the soybeans. Since a part of this total deficiency necessarily includes damages resulting from the shortages in quantity, the Court cannot even speculate as to the extent of the damages that might have resulted from the inadequate quality of the soybeans.
Insofar as quality is concerned, the Court makes the following observations, to-wit:
a. Both Paul Jones, Sr., and Paul Jones, Jr., admitted that there were some damages to approximately 1,000 bushels of soybeans caused by heat, but that these damages were nominal. The ADM test reports contained numerous references to heat damaged beans, musty beans, or sour beans. The Court is of the opinion that if the soybeans were damaged this extensively that some comment to this effect should have appeared on the CCC inspection reports. To the contrary, the exhibits indicate that the inspections were all satisfactory.
b. CCC chose not to make any independent tests of the quality of the Pushmataha Plantation soybeans, but elected to rely on the tests performed by ADM, the ultimate purchaser. As James Williams, the manager of ADM’s quality control lab, indicated, ADM usually purchases soybeans that are delivered to its warehouse.
c. Williams, who has 31 years experience in analyzing the quality of soybeans, would ordinarily be considered an expert in this field. He was not offered as an expert witness, however, and did not quantify the extent of damages in “dollars and cents” resulting from the alleged substandard quality. He indicated that moisture and foreign materials were not significant adverse factors, but stated that the quality of *893the soybeans was largely diminished as a result of heat damage and discoloration. The test results that were introduced into evidence were performed under Williams supervision when the soybeans were initially delivered to ADM. Williams testified that these test results were consistent with earlier “on site” tests that he had conducted prior to the soybeans being removed from the grain bins. However, no written reports of these earlier tests were available at trial.
d. After the' soybeans were tested at ADM, they were piled up and stored in an open building for several weeks.
e. The methodology used to calculate the price paid by ADM to CCC for the sale of the soybeans is somewhat of a mystery. Joint Exhibit 14, a memorandum from the Coahoma County ASCS Office to the Mississippi State ASC Committee, dated June 26, 1987, requested the acceptance of bids from Southern Cotton Oil Co. of Clarks-dale, Mississippi, in the following amounts:
PRODUCER LOAN NO. BUSHELS RATE
Paul Jones 40 13,370.00 5.33
Paul Jones 41 5,308.33 4.92
Pushmataha 42 59,074.67 4.81
Pushmataha 43 2,046.67 4.81
Pushmataha 44 2,108.67 5.01
The prices offered per bushel are questionable for a variety of reasons. Essentially, there was no way to differentiate between the soybeans owned by Pushmat-aha Plantation from those owned by Paul Jones, Jr. Although Pushmataha Plantation and Paul Jones, Jr., maintained an accountability for the quantities of soybeans that they each owned, the beans had been commingled for sometime as they were dried within the several bins. In addition, when Morris removed the soybeans from the grain bins, he used the original loan documentation, which was outdated as to the ownership locations, and which had the effect of inaccurately allocating the ownership of the beans between Pushmat-aha Plantation and Paul Jones, Jr. This inability to differentiate between entities is extremely significant when attempting to assess a deficiency resulting from a purported substandard quality of the pledged collateral.
f.CCC offered no testimony as to whether the sales prices were set at the time the soybeans were delivered to ADM or whether these prices were set after the beans had been stored in the open building at ADM for several weeks. There is little doubt that the quality of the soybeans would begin to diminish if left in an open building for an extended period of time. Certainly this would effect the price that ADM would be willing to pay.
g.No one could testify why Paul Jones, Jr., received a significantly better price for his soybeans than did Pushmataha Plantation. Since no one knew exactly whose soybeans belonged to whom, it is remarkable to see the prices allocated as set forth hereinabove.
The individual tickets, representing the tests conducted by ADM, did differentiate, albeit erroneously, between Pushmataha Plantation’s soybeans and Paul Jones, Jr.’s, soybeans. The Court presumes that this was the methodology used to establish the allocated prices although there was no testimony to this effect.
In reality, since an inaccurate identification had occurred as the soybeans were being removed from the grain bins, not withstanding the fact that the soybeans were totally commingled while being stored at ADM, it is unreasonable to presume that the allocations made by CCC on Joint Exhibit 14 are even remotely accurate. Yet CCC has now asserted a deficiency claim against Pushmataha Plantation based on this obviously flawed calculation. No defi*894ciency has been assessed against Paul Jones, Jr., but, of course, he does not have any assets against which this deficiency could be setoff. In short, the Pushmataha Plantation deficiency was concocted on the basis of figures which are not supported by the underlying facts.
The Court recognizes that pursuant to paragraph (j) of the farm storage notes and security agreements, that the producer is liable for all losses due to quantity or quality of the commodity. However, when the quantity loss is actually the fault of CCC and not the producer, and when the quality loss is not proven with some degree of certainty, no damages can be assessed against the producer. Under the circumstances of this case, to assess qualitative damages against Pushmataha Plantation in some speculative amount, based on the proof offered by CCC, would be manifestly inequitable.
IV.
THE COMMERCIAL REASONABLENESS OF THE SALE OF THE PUSHMAT-AHA PLANTATION SOYBEANS TO ARCHER DANIELS MIDLAND CO.
The Court has indicated hereinabove that it cannot assess a deficiency against Push-mataha Plantation for essentially two reasons:
1. That part of the deficiency which was attributed to a shortage in quantity of the soybeans was not caused by the producer, Pushmataha Plantation, but rather was caused by the ineptitude of CCC in the removal, transportation, and storage of the soybeans; and
2. That part of the deficiency attributed to the inadequate quality of the soybeans was not proved by CCC to any degree of certainty, but rather the proof displayed extraordinary inaccuracies in the allocation of the sales prices between Pushmataha Plantation and Paul Jones, Jr.
In support of the aforementioned conclusion, the Court will next examine the commercial reasonableness of the sale of the soybeans by CCC to ADM.
The evidence presented has revealed that the soybeans which secured the Pushmat-aha Plantation price support loans were removed from the grain bins, where they had been located since January 29, 1986, in what could best be described as a haphazard manner. The soybeans were transported to ADM where they were sampled and tested, then piled up in an open building along with soybeans owned individually by Paul Jones, Jr.
According to Joint Exhibit 14, there was an advertisement for the local sale of these soybeans, but neither the form of this advertisement nor its circulation were discussed. As mentioned earlier, only one bid was received and that from Southern Cotton Oil Co. of Clarksdale, Mississippi. The soybeans were obviously sold to ADM. Whether the bidder, Southern Cotton Oil Co. of Clarksdale, Mississippi, was affiliated with ADM, the purchaser, is still another unanswered question.
Since bids were solicited, the Court must presume that the price per bushel reflected on Joint Exhibit 14 was determined sometime after the soybeans had been left for storage at ADM. There is, however, little information in the record to support this conclusion.
The Court has observed the following language appearing in the farm storage notes and security agreements, to-wit:
Foreclosure, (a) Removal and Sale. If prior to maturity of the note, CCC determines that the commodity can no longer be stored because of danger of deterioration or other reasons, or if, upon maturity of the note, the loan indebtedness (i.e., the unpaid amount of the loan, charges, and interest) is not satisfied by payment of the amount thereof or by the delivery of an eligible commodity pursuant to the provisions of the note, the producer authorizes CCC, or its agent, to the extent permitted by law, to enter on the premises and remove the collateral commodity; to commingle such commodity with any other commodity of the same kind; and to sell, assign, transfer, and deliver such commodity, or documents evidencing title thereto, at such time, in such manner, for *895cash or upon terms and conditions as the holder(s) may determine, at any commodity exchange or elsewhere, or through any agency, at private or public sale, for immediate or future delivery, and without demand, advertisement, or notice of the time and place of sale, or adjournment thereof, or otherwise. Any such disposition may be similarly effected without removing the commodity from storage and the commodity may be processed before such disposition. Upon such sale CCC may become the purchaser of the whole or any part of the commodity.
The soybeans were removed and sold in keeping with the literal provisions of the farm storage notes and security agreements. However, the totality of the circumstances surrounding the performance by CCC bears careful scrutiny. Section 75-9-501(3), Miss.Code Ann., hereinafter MCA, provides as follows:
(3) To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied except as provided with respect to compulsory disposition of collateral (section 75-9-504(3) and section 75-9-505(1)) and with respect to redemption of collateral (section 75-9-506); but the parties may by agreement determine the standards by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable:
(a) section 75-9-502(2) and section 75-9-504(2) insofar as they require accounting for surplus proceeds of collateral;
(b) section 75-9-504(3) and section 75-9-505(1) which deal with disposition of collateral;
(c) section 75-9-505(2) which deals with acceptance of collateral as discharge of obligation;
(d) section 75-9-506 which deals with redemption of collateral; and
(e) section 75-9-507(1) which deals with the secured party’s liability for failure to comply with this Part.
Section 75-9-504(3), MCA, provides as follows:.
(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one (1) or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms, but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods, no other notification need be sent. In other cases, notification shall be sent to any other secured party from whom the secured party has received (before sending his notification to the debtor or before the debtor’s renunciation of his rights) written notice of a claim of an interest in the collateral. The secured party may buy at any public sale; and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale, (emphasis added)
At the trial, Easley testified that Push-mataha Plantation was aware of the sale of the soybeans to ADM. There was no written documentation, however, introduced into evidence concerning this notification, and the timing of the notification was not recalled. Paul Jones, Sr., stated that he received no notice concerning the sale of the soybeans to ADM until he received a letter from Easley, dated June 29, 1987, assessing the dollar deficiency following the sale.
The Mississippi Supreme Court in McKee v. Mississippi Bank and Trust Co., 366 So.2d 234, 238 (Miss.1979) construed *896§ 75-9-504(3), MCA, as requiring written notice, rather than merely verbal notice of the proposed sale or disposition of repossessed collateral. It also held that in the absence of compliance with the statutory notice requirement that the burden was upon the creditor, here CCC, to prove that a fair market value was received for the collateral, as well as, to prove that it pursued reasonable commercial practices in disposing of the collateral. Id. at pg. 237. See also, Savings Bank of New Britain v. Booze, 34 Conn.Supp. 632, 382 A.2d 226, 23 U.C.C. Reporting Service 556 (Conn.Sup.Ct., App.Ses.1977).
In the case before this Court, there is a total lack of evidence that any written notice was ever sent by CCC to Pushmataha Plantation regarding the sale of the soybeans to ADM. CCC has attempted to convince the Court that the price received for the soybeans was a fair market price, as well as, that it acted in a commercially reasonable manner in disposing of the soybeans. For the reasons specified earlier in this opinion, the Court cannot determine how the price was calculated for the soybeans, when the price was established, or that the price represented a fair market value. The Court certainly does not think that the soybeans were disposed of in a commercially reasonable manner considering the procedures utilized to remove the soybeans from the grain bins and the fact that the soybeans were allowed to be piled up in an open building for almost six weeks prior to their actual sale.
In the alternative, CCC contends that it complied with the written language set forth in the farm storage notes and security agreements, implying that this language constitutes a waiver of the requirements specified in § 75-9-504(3), MCA. Presumably, CCC’s contention is based on the statutory language set forth in § 75-9-501(3), MCA, which states, inter alia, that the parties may by agreement, determine the standards by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable. This Court is of the opinion that the language appearing in the farm storage notes and security agreements cannot operate as a waiver of the totality of circumstances that exist in this case. This Court reiterates that the procedures, utilized by CCC to liquidate the Pushmataha Plantation soybeans, were so totally devoid of any hint of commercial reasonableness that a waiver of such conduct would be manifestly inequitable.
For this additional reason, this Court refuses to allow CCC to assess a deficiency claim against Pushmataha Plantation.
Y.
CCC CLAIM AGAINST PAUL JONES, SR., d/b/a OWENS PECAN AND CATTLE CO. FOR SET OFF OF CERTAIN PECAN DISASTER PAYMENTS OWING FROM CCC TO PAUL JONES, SR., d/b/a OWENS PECAN AND CATTLE CO.
On January 29, 1987, Owens Pecan and Cattle Co. by Paul H. Jones, Sr., filed an application to receive disaster payments which were applicable to the 1986 pecan crop. See, Joint Exhibits 18 and 19. As a result of this application, CCC approved the disaster payments for Owens Pecan and Cattle Co. as evidenced by the following commodity certificates:
ISSUE DATE AMOUNT
8/15/87 $ 8,017.65
8/15/87 10,000.00
2/26/87 52,011.88
$70,029.53
CCC has taken the position that since a deficiency resulted from the price support loans granted to Pushmataha Plantation, which is owned 100% by Paul Jones, Sr., that the pecan disaster payments owed to Owens Pecan and Cattle Co. should be set-off against the deficiency. Owens Pecan and Cattle Co. is a proprietorship trade name utilized by Paul Jones, Sr. Since the Court has refused to assess a deficiency against Pushmataha Plantation, a discussion of this issue is actually not necessary. However, in an effort to promote judicial economy, the Court will address this issue in the alternative.
*897CCC has chosen to rely on § 553(a) of the Bankruptcy Code which provides as follows:
(a) Except as otherwise provided in this section and in sections 362 and 363 of this title [11 USCS §§ 362 and 363], this title [11 USCS §§ 101 et seq.] does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title [11 USCS §§ 101 et seq.] against a claim of such creditor against the debtor that arose before the commencement of the case, except to the extent that—
(1) the claim of such creditor against the debtor is disallowed other than under section 502(b)(3) of this title [11 USCS § 502(b)(3)];
(2) such claim was transferred, by an entity other than the debtor, to such creditor—
(A) after the commencement of the ease; or
(B)(i) after 90 days before the date of the filing of the petition; and
(ii) while the debtor was insolvent; or
(3) the debt owed to the debtor by such creditor was incurred by such creditor—
(A) after 90 days before the date of the filing of the petition;
(B) while the debtor was insolvent; and
(C) for the purpose of obtaining a right of setoff against the debtor.
This section obviously provides for the setoff of mutual debts incurred pre-petition. In the instant case, the price support loans deficiency assessed by CCC against Pushmataha Plantation arose post-petition, as did the obligation to pay the pecan disaster payments by CCC to Owens Pecan and Cattle Co. Although mutual post-petition obligations could likely be setoff under governing state law, the setoff of post-petition obligations under the Bankruptcy Code has been addressed in In re Mohawk Industries, Inc., 82 B.R. 174, 178-89 (Bankr.D.Mass.1987), as follows:
“... Section 553 does not attempt to deal with the setoff of post filing debts; it refers only to mutual debts which arose prior to the commencement of the case. Setoff of mutual post filing debts, however, is generally allowed despite the lack of any express statutory authorization. In re Alfar Dairy, Inc., 458 F.2d 1258 (5th Cir.1972), cert. den. 409 U.S. 1048, 93 S.Ct. 517, 34 L.Ed.2d 501 (1972); Matter of Fordson Engineering Corp., 25 B.R. 506 (Bankr.E.D.Mich.1982). We agree that a post filing debt may be setoff provided that it has mutuality with the other debt.”
If indeed the deficiency resulting from the price support loans was legitimate, CCC would be further confronted in this proceeding with the requirement that the obligations be mutual. Clearly, the deficiency obligation would be owed by Push-mataha Plantation, Inc., a corporation whose stock is owned exclusively by Paul Jones, Sr. On the other hand, the pecan disaster payments are owed by CCC to Paul Jones, Sr., d/b/a Owens Pecan and Cattle Co., an individual proprietorship. There are numerous cases which recognize that a corporation and its principal stockholder are not mutual entities to which setoff can apply. See, In re Plymouth Plaza Office Bldg. Associates, 16 B.R. 113 (Bankr.E.D.Penn.1981) (The court held where the lessee owed rent to the debtor who, in turn, owed the president of the lessee on a promissory note, there was no mutuality.); In re Condor Diamond Corp., 76 B.R. 342 (Bankr.S.D.N.Y.1987) (The court held that the required mutuality was lacking because the corporate principal was a distinct and separate person from the debtor corporation.); In re Ingersoll, 90 B.R. 168 (Bankr.W.D.N.C.1987) (The fact that a corporation’s principal was the guarantor of the corporation’s debt to debtors did not satisfy the mutuality requirement for setoff of the corporation’s debt owed to the debtors against the debtors’ debt owed to the principal.); In re Eighteenth Avenue Development Corp., 12 B.R. 10 (Bankr.S.D.Fla.1981) (In regard to setoff under the Bankruptcy Code, the debts must be in the same right and be*898tween the same parties who stand in the same capacity.); Matter of Fasano/Harriss Pie Co., 43 B.R. 864 (Bankr.W.D.Mich.1984) (One subsidiary may not setoff a debt owed to a bankrupt against a debt owing from the bankrupt to another subsidiary. The rule has identical application when the parties are a parent corporation and a wholly owned subsidiary.); In re Todd, 37 B.R. 836 (Bankr.W.D.La.1984) (For purposes of determining a creditor’s right to setoff, “mutuality of obligation” means that the obligations must be between the same parties. To allow setoff the Court must find that the claims of the parties are owing to and due in the same rights and capacities.)
Under the Bankruptcy Code, concerning the right of setoff, the requirement of mutuality of debts is to be strictly construed. See, In re Balducci Oil Co., Inc., 33 B.R. 847 (Bankr.D.Colo.1983); In re Bacigalupi, Inc., 60 B.R. 442 (9th Cir. BAP 1986); In re Harbaugh, 99 B.R. 671 (Bankr.W.D.Penn.1989); In re WJM, Inc., 65 B.R. 531 (Bankr.D.Mass.1986).
CCC has asserted that Pushmataha Plantation, Inc., is merely the “alter ego” of Paul Jones, Sr., and, as such, CCC contends that the requirement of mutuality exists. CCC has cited United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 691 (5th Cir.1985), which offers the following insight:
“In lieu of articulating a coherent doctrinal basis for the alter ego theory, we have instead developed a laundry list of factors to be used in determining whether a subsidiary is the alter ego of its parent. These include whether:
1. the parent and the subsidiary have common stock ownership;
2. the parent and the subsidiary have common directors or officers;
3. the parent and the subsidiary have common business departments;
4. the parent and the subsidiary file consolidated financial statements and tax returns;
5. the parent finances the subsidiary;
6. the parent caused the incorporation of the subsidiary;
7. the subsidiary operates with grossly inadequate capital;
8. the parent pays the salaries and other expenses of the subsidiary;
9. the subsidiary receives no business except that given to it by the parent;
10. the parent uses the subsidiary’s property as its own;
11. the daily operations of the two corporations are not kept separate; and
12. the subsidiary does not observe the basic corporate formalities, such as keeping separate books and records and holding shareholder and board meetings.
The proof in this ease has shown the Court the following:
1. Pushmataha Plantation was not engaged in any phase of pecan farming.
2. Owens Pecan and Cattle Co. did not operate on the same land utilized by Push-mataha Plantation.
3. All records were separated and the entities utilized separate fiscal years for tax purposes.
4. There was no showing whatsoever of any fraudulent conduct on the part of any entity.
5. There was no showing that any of the debtor entities commenced operations with an unreasonably small capital infusion.
6. There was an observation of corporate formalities by Pushmataha Plantation.
7. The Pushmataha Plantation price support loans were not individually guaranteed by Paul Jones, Sr., and/or Owens Pecan and Cattle Company.
This bankruptcy adversary proceeding could best be described as a breach of contract cause of action from each side. As mentioned immediately hereinabove, there has been no proof whatsoever of any fraud being perpetrated by any of the debt- or entities. United States v. Jon-T Chemicals, Inc., supra, indicated that in contract cases, fraud is an essential element to support an “alter ego” finding. See also, Edwards Co. v. Monogram Industries, 730 F.2d 977 (5th Cir.1984). This Court is, *899therefore, of the opinion that the “alter ego” theory posited by CCC is not well taken. As such, there is no mutuality existing in the deficiency assessed by CCC against Pushmataha Plantation and the pecan disaster payment obligation owed by CCC to Owens Pecan and Cattle Company. CCC’s request for setoff is impermissible in this bankruptcy proceeding.
CCC is, therefore, liable to Paul Jones, Sr., d/b/a Owens Pecan and Cattle Company in the sum of $70,029.53, with interest accruing thereon at the highest rate permitted by law from and after the date of the judgment which will be entered contemporaneously herewith.
So Ordered.
Shown as received on Exhibit 5 but actually a part of the collateral pledged on Exhibit 6. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491024/ | MEMORANDUM OPINION ON CROSS-DEFENDANT’S MOTION TO DISMISS CROSS-COMPLAINT
JACK B. SCHMETTERER, Bankruptcy Judge.
Alexander Knopfler, trustee for the bankruptcy estate of Milton Schraiber (“Debtor”), filed herein his Adversary Complaint which names as defendants those parties who claim an interest in the Oak Mill Shopping Center (“the Mall”). Count 1 seeks a declaration that Debtor owned the Mall through certain entities which were merely his alter ego. It seeks authority for Trustee to sell the Mall on behalf of the bankruptcy estate. Should the Court find that Oak Mill Shopping Center Associates (“OMSCA”) and/or Oak Mill Associates (“OMA”) are bona fide partnerships which have ownership interests in the Mall, Count 56 seeks to wind up affairs of these partnerships and have Debtor’s share distributed to the estate. See Alexander Knopfler, Trustee v. Milton Schraiber, mem. op. (Bankr.N.D.Ill. May 23,1989) (Denying Motion to Dismiss Count 56).
Certain defendants who assert they are partners in OMSCA (“Cross-Claimants”)1 have filed a cross-claim against Betty Schraiber (Debtor’s wife), Steven Schraiber (Debtor’s son), and Irene Thon (Debtor’s secretary) (collectively “Cross-Defendants”). They seek a declaration that OMSCA is the rightful owner of the entire Mall and that OMA is a fictitious entity. The cross-claim also seeks a declaration that Cross-Defendants do not own capital interests in OMSCA.2
Cross-Defendants plus Marc Schraiber (Debtor’s son) and Randi Kanter (Debtor’s daughter) have moved to dismiss the cross-claim on various grounds, including the failure to join certain parties that Cross-Defendants assert are indispensable under Federal Rule of Civil Procedure 19.3 Specifically, the cross-claim does not join Marc Schraiber or Randi Kanter, each of whom claim to be a partner in OMSCA, nor does it join Trustee. Marc Schraiber and Randi Kanter were joined by Trustee as defendants to the Adversary Complaint, and are thus parties to this case. However, although they join in the motion of Cross-Defendants they have not sought to intervene as parties to the cross-claim.
INDISPENSABLE PARTIES UNDER RULE 19
Cross-Claimants respond to Cross-Defendants’ motion by broadly asserting that “a plaintiff may choose the persons whom he will sue.” Cross-Claimants’ Br. at 6. This of course is an overstatement. A plaintiff’s right to decide who to pursue in a lawsuit is subject to possible interests of other parties and the public’s interest “in avoiding repeated lawsuits on the same essential subject matter.” Evergreen Park Nursing & Convalescent Home, Inc. v. American Equitable Assurance Co., 417 F.2d 1113, 1115 (7th Cir.1969) (quoting Ad*902visory Committee Notes to Rule 19). See 7 Wright, Miller & Kane, Federal Practice and Procedure § 1601 at 18. These countervailing interests of other parties are protected by Rule 19 F.R.Civ.P. (Bankr.R.7019) which governs joinder of parties needed for adjudication. The purpose of that Rule is to protect interests of parties already before the court, absent parties, and the public from multiple litigation and the possibility of inconsistent judicial determinations. Evergreen Park, 417 F.2d at 1115; 7 Federal Practice § 1602 at 21.
The application of Rule 19 closely follows its structure.4 It must first be determined whether the party who is not joined is a person described in either of the two subsections of part (a) of the Rule. Evergreen Park, 417 F.2d at 1115. Specifically, the question is whether failure to join the omitted party prevents the court from rendering complete relief, or alternatively whether the absent party is so situated that the failure to join him or her will impair that party’s interest or expose the named parties to the risk of multiple and potentially inconsistent adjudications. If either of these situations exist, the absent party must be joined if feasible. If joinder is not feasible, the court must determine whether in equity and good conscience it should proceed without this party by analyzing the factors enumerated in part (b) of the Rule (see fn. 8). Only if the court then determines that it should not proceed is the party deemed indispensable and the Complaint dismissed.
A. The Trustee and Lyons Bank
The Trustee and Lyons Savings Bank must be joined under requirements of Rule 19. Count I of Trustee’s Complaint seeks declaratory judgment that the trust which holds nominal title to the Mall is the alter ego of Debtor and that in effect the Mall was owned outright by Debtor and is now property of the Debtor’s bankruptcy estate under § 541. Cross-Claimants specifically ask this court to “declare and adjudge that OMSCA is the rightful owner of Oak Mill Shopping Center.” To grant Cross-Claimants’ requested relief therefore would also implicitly resolve the issues in Trustee’s Count I.
A very similar issue was raised earlier in this proceeding. Lyons Savings Bank (“Lyons”), a party asserting that it held a secured interest in the Mall, claimed that it was improperly joined in the Trustee’s complaint. The Court rejected this claim, reasoning that Lyons was indispensable because the estate’s interest in the property could not be fully determined without resolving the extent and nature of Lyons’ lien on such property. Knopfler, Trustee v. Milton Schraiber, 97 B.R. 937, 942 (Bankr.N.D.Ill.1989). The Court explained that:
[It] must join a party to a suit where the rights of the parties to the suit cannot be fully adjudicated without a determination *903of the joined party's interest in the subject matter of the cause. 3A J. Moore, Moore’s Federal Practice ¶ 19.01 — 1[1], p. 19-17 and 19-19 (2d ed. 1987)....
[A]s a party holding a secured interest in the subject property, it is a necessary party to Count 1 which seeks to adjudicate ownership of that property and the nature and amount of liens thereon. It is thus inconceivable that the court could grant complete relief to the Trustee absent Lyons’ joinder in this proceeding.
This same reasoning is equally applicable to Cross-Claimants’ efforts to have OMS-CA’s ownership of the Mall adjudicated without joining Trustee, who claims that the estate owns the Mall, as a defendant. Trustee is therefore a party described in Rule 19(a). For these same reasons, Lyons should also be joined as a defendant in the cross-claim.
There is no reason why joinder of Trustee and Lyons as defendants in the cross-claim is not feasible. They are already parties in this case. Therefore they must both be joined for the cross-claim to proceed, and Cross-Claimants are by separate order granted time to do this. See Federal Practice § 1604 at 64 (“Once it has been decided that a person whose joinder is feasible should be brought into the action, the claimant should be given a reasonable opportunity to add that person.”). Accordingly, it is not necessary to consider the factors under Rule 19(b). Since trial of the case is imminent and the issues presented by the cross-claim are not new to the parties, the reasonable time to join those parties and for them to answer must necessarily be short.
B. The Unnamed OMSCA Partners
The second issue is whether Marc Schrai-ber and Randi Kanter, the son and daughter of Debtor and Betty Schraiber respectively, (collectively “the Unnamed OMSCA Partners”) are indispensable parties. Although the present cross-claim is not formally broken into separate Counts, it does request different forms of relief. It seeks in part a declaratory judgment that Betty Schraiber, Steven Schraiber, and Irene Thon have no capital interests in OMSCA. In addition, it seeks declaratory judgment that OMA is a fictitious entity and that OMSCA is “the rightful owner” of 100% of the Mall. It does not seek to resolve whether Marc Schraiber or Randi Kanter own capital interests in OMSCA, does not question their assertions with respect thereto, and does not join them as parties. Therefore the issues to be decided on the instant motion are whether Marc Schraiber and Randi Kanter are indispensable parties to the resolution of both the status of Cross-Defendants as partners in OMSCA and OMSCA’s ownership of the Mall. If such parties are persons described in Rule 19(a), that would raise the further question whether joinder of Kanter and Marc Schrai-ber would require disqualification of Hall Triplett, counsel for Cross-Claimants, due to his prior representation of Kanter and Marc Schraiber.
The Supreme Court has emphasized that Rule 19 must be applied pragmatically based on the facts of each case. Provident Tradesmen Bank & Trust Co. v. Patterson, 390 U.S. 102, 107, 114, 88 S.Ct. 733, 740, 19 L.Ed.2d 936 (1968). That instruction is particularly appropriate to this proceeding.
As previously discussed, Rule 19(a)(2)(i) provides that a person shall be joined if “the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may as a practical matter impair or impede the person’s ability to protect that interest.” In Evergreen Park, the Seventh Circuit explained that the impairment referred to does not require that principles of res judicata or collateral es-toppel be applicable, but refers more broadly to practical prejudice. 417 F.2d at 1115. In lawsuits by partners involving transactions impacting their partnership, practical prejudice has been consistently construed to include the stare decisis effect that a decision in a suit by some partners would have on other unnamed partners who might later litigate the same issue. See Gottlieb v. Vaicek, 69 F.R.D. 672, 676 (N.D.Ill.1975) aff'd without opinion, 544 F.2d 523 (7th Cir.1976) (court explained *904that the stare decisis effect of two limited partners’ lawsuit on unnamed limited partner has been held to be a sufficient practical impairment to make the unnamed partner a person described in Rule 19(a)). See also Hagstrom v. Breutman, 572 F.Supp. 692, 702 (N.D.Ill.1983) (“where several limited partners bring an action against the partnership’s general partner, the other limited partners are indispensable parties.”); Harrell & Sumner Contracting v. Peabody Peterson Co., 546 F.2d 1227, 1229 (5th Cir,1977) (“[fjederal courts have held that in an action on a partnership contract, all members of the partnership are indispensable parties plaintiff.”); Hanna Mining Co. v. Minnesota Power & Light Co., 573 F.Supp. 1395, 1399 (D.Minn.1983), aff'd on other grounds, 739 F.2d 1368 (8th Cir.1984).
The case in this jurisdiction most on point is Schmidt v. E.N. Maisel & Assoc., 105 F.R.D. 157 (N.D.Ill.1985). In Schmidt, a limited partnership, B-Y Development, was formed for the purpose of acquiring a shopping center. Subsequent to the acquisition, B-Y’s general partner sought authorization to expand the shopping center. This proposal failed to receive the necessary votes from the limited partners. Subsequently a subset of the limited partners and the general partner organized a new limited partnership to undertake the proposed expansion. A B-Y limited partner who opposed the expansion sued the general partner in federal court alleging essentially that the general partner had exceeded its authority under the B-Y partnership agreement and had engaged in self-dealing. The general partner moved to dismiss the complaint on the ground that all B-Y limited partners who voted against the expansion were indispensable partners whose joinder would destroy diversity jurisdiction.
The court had “no trouble concluding that under Rule 19(a), the absent limited partners are necessary parties who should be joined if feasible.” Id. at 159 n. 1 (citation omitted). The court then proceeded to analyze the first factor under Rule 19(b) which requires consideration of the prejudice to the unnamed limited partners which would occur if the court proceeded in their absence. The similarity between this factor and the standard under Rule 19(a)(2)(i) has been frequently noted. See, e.g., 7 Fed.Practice § 1604 at 40. Indeed, the authority the court relied upon in construing Rule 19(b) primarily addressed Rule 19(a)(2)(i). The Schmidt court explained:
Courts construing [Rule 19] have consistently held that “prejudice” within the meaning of Rule 19 does not require that a judgment have a strict res judicata or collateral estoppel effect vis-a-vis the absent parties; rather the standard is whether “as a practical matter” a judgment in the suit before the court would prejudice the absent parties.
[I]n the present case, the absent limited partners’ interest would as a practical matter be prejudiced by a disposition of this suit without their presence. Plaintiff alleges that [B-Y’s general partner] has, through certain of its actions in connection with the proposed expansion, violated the partnership agreement and breached its fiduciary obligation. In disposing of this case, the court would be required to interpret the partnership agreement to determine if such action by [the general partner] violated the agreement. The construction given to the partnership agreement by this court would carry great weight in any subsequent proceedings by the absent limited partners against [the general partner]. As a result, the absent limited partners would as a practical matter be prejudiced by disposition of this action without their presence.
105 F.R.D. at 160 (citation omitted) (emphasis added).
1. Status of Cross-Defendants as OMSCA Partners
Cross-Defendants argue that Kanter and Marc Schraiber are indispensable parties to any adjudication of Cross-Defendants’ partnership status in OMSCA. Cross-Claimants respond that because the cross-claim “seeks no relief against [Kan-ter and Marc Schraiber], it would be ridic*905ulous to name them as cross-defendants.” Cross-Claimants’ Br. at 6. The reasoning in Schmidt and Gottlieb demonstrates that this argument is incomplete.
Cross-Claimants presumably seek a declaration that Cross-Defendants do not own capital interests in OMSCA because these alleged interests (assuming OMSCA is found to be a bona fide partnership) would result in the OMSCA partnership assets being divided into more pieces, thereby reducing the value of Cross-Claimants’ individual interests. Further, because OMSCA is alleged to be a general partnership, not a limited partnership, a determination that Cross-Defendants are partners in OMSCA might expose other OMSCA partners to potential liability for Cross-Defendants’ conduct in the course of partnership business. Cf. Giles v. Vette, 263 U.S. 553, 44 S.Ct. 157, 68 L.Ed. 441 (1924). As parties allegedly holding capital interests in OMS-CA, and in the absence of the considerations discussed below, Kanter and Marc Schraiber have the same economic incentive as Cross-Claimants. Therefore even though no relief is specifically sought against Kanter and Marc Schraiber, it is theoretically possible that they may later desire an adjudication that Cross-Defendants do not own capital interests in OMS-CA. Although as unnamed parties they would not be legally bound by an adjudication that Cross-Defendants do have partnership status, the effect of stare decisis would hinder them. Under Schmidt and Gottlieb they would undoubtedly be parties described in Rule 19(a).
The actual situation presented in this case, however, is much different. Despite the apparent similarity in economic interests, Kanter and Marc Schraiber for reasons presumably including their family relationship with Cross-Defendants, have made it clear that they do not wish to join Cross-Claimants in the cross action. In fact they are listed with Cross-Defendants in the caption of Cross-Defendants’ motion to dismiss. This creates an unusual situation. These two unnamed OMSCA Partners have an economic interest that would typically require their joinder as indispensable parties, but aligned with Cross-Claimants. For personal and family reasons, however, they have joined the Cross-Defendants in the instant motion. Since they are so aligned, it is less clear that they fall within Rule 19(a).
First, they are not needed to render a complete adjudication of Cross-Defendants’ partnership status. Second, the prejudice to them or threat of multiple litigation resulting from the adjudication in their absence is not obvious once it is pragmatically recognized that they are not primarily motivated by their economic interest in this specific issue. If Cross-Defendants prevail on the cross-claim then Kanter and Marc Schraiber have shown that they will be satisfied with the outcome of the litigation despite the probable adverse economic impact on the value of their OMSCA interests. They will therefore not desire to relitigate the matter and any prejudice resulting from the stare decisis effect of the decision will be more apparent than real. Alternatively, if Cross-Claimants are successful, Kanter and Marc Schraiber might be dissatisfied, but the source of their dissatisfaction is the unfavorable ruling against their family members, not an injury to the value of their interests in OMSCA which would instead be enhanced. Their personal family concerns and loyalties do not comprise an “interest” requiring join-der within Rule 19(a).
An “interest relating to the subject of the action” that makes an absent person a party needed for a just adjudication must be a legally protected interest. 3A Moore’s ¶ 19-07[2] at 19-99. Authority specifically addressing whether a family interest is an interest within Rule 19(a) in the circumstances presently before the court is limited and indirect. Cf. Doe v. Exon, 416 F.Supp. 716, 719 (D.Neb.1975) (3-Judge Panel) (minor’s parents were not persons described in Rule 19(a) in challenge to constitutionality of state statute requiring parental consent before a minor could have an abortion). As discussed, however, the concern addressed by Rule 19 is that a party whose interest might be impaired by a given action must be joined so that he or she can protect that interest. Joinder af*906fords that opportunity and prevents multiple litigation over the interest. The problem of multiple litigation only arises if the absent party has an interest he or she can independently protect.
Kanter and Marc Schraiber are aligned with Cross-Defendants at least in part because of their family relationship with these parties. This motivation, while readily understandable, is typically not recognized for purposes of conferring the right to bring a lawsuit. Relatives cannot sue merely because they want their family members to prevail on a certain point. See 13 Federal Practice § 3531.9 at 548-49 (noting that the parental exception which does exist to the general rule prohibiting third-party standing is confined to such matters as education where it is reasonable to imply injury to the parents as well as to the children). Rather, some direct injury to the plaintiff individually must be shown. See, e.g., Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (“the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights of third parties.”)
Although the concept of “injury” for standing purposes has been interpreted very broadly, See, e.g., United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), when evaluating the prospect of prejudice to an interest within the context of Rule 19, the inquiry is more pragmatic. See Provident Tradesmens Bank, 390 U.S. at 115, 88 S.Ct. at 740-41 (court must assess the probability that an absent party would be prejudiced by an adjudication in his or her absence); Morgan Guaranty Trust Co. of New York v. Martin, 466 F.2d 593, 598 (7th Cir.1972) (the practical not theoretical risk of multiple liability must be considered in the context of Rule 19); Challenge Homes, Inc. v. Greater Naples Care Center, Inc., 669 F.2d 667, 669 (11th Cir.1982) (when determining whether a party is a person described in Rule 19(a), “pragmatic concerns, especially the effect on the parties and the litigation, control”) (citations omitted). The test is whether as a “practical matter” an adjudication in the party’s absence would impair his or her interest. Fed.R.Civ.P. 19(a)(2)(i). The facts and circumstances of this case indicate that the economic interests of Marc Schraiber and Kanter will be essentially the same as those of Cross-Claimants. In no sense are they economically or otherwise prejudiced by being outside of the cross-claim.
The district court has ordered that the Mall be sold. Alexander Knopfler, Trustee v. Milton Schraiber, et al., 89 C 6181 mem. op. (N.D.Ill. October 23, 1989) (order granting motion to sell real property). The order authorizing the sale is stated in the alternative, depending on who is determined to own the Mall. If OMSCA has an ownership interest in the Mall, the Mall is to be sold pursuant to the winding up of OMSCA partnership affairs. Id. at 10. Accordingly, there will not be an ongoing operating business being conducted through OMSCA upon which business decisions would significantly differ. Rather, at stake will be the division of a fixed pool of assets among those adjudged to be OMSCA partners. Cross-Defendants have not explained how an adjudication that Cross-Defendants own capital interests in OMSCA will impact either the winding-up process or Kanter’s or Marc Schraiber’s OMSCA interests other than to decrease the portion of the assets to which the latter are entitled.5
Moreover, Kanter’s and Marc Schraiber’s present counsel also represents Cross-Defendants. Any arguments they would *907raise in support of the position that Cross-Defendants are partners in OMSCA will actually be raised by their counsel in the litigation of the proceeding. Their position in moral support of their relatives will be represented in essentially the same manner as if they were joined. This would not solve the basic problem of disqualification if legally recognizable interests of Ranter and Marc Schraiber were adverse to Cross-Claimants and required their joinder, but that is not the case here.
Accordingly, in view of the practical nature of the inquiry raised by Rule 19, this court holds that Ranter and Marc Schrai-ber are not parties who need to be joined for a proper adjudication of Cross-Defendants’ ownership of capital interests in OMSCA.
2. OMSCA Ownership of the Mall
Cross-Defendants also argue that Ranter and Marc Schraiber are indispensable parties to a declaration that OMA is a fictitious entity and that OMSCA is the beneficial owner of 100% of the Mall.
Count I of Trustee’s complaint seeks a declaration that Debtor’s bankruptcy estate owns 100% of the Mall on the theory that OMA was the mere alter ego of Debtor. Under this theory OMSCA would have no ownership interest in the Mall. Cross-Claimants, the Unnamed OMSCA Partners and Cross-Defendants all oppose this position and all have been joined by Trustee as defendants to his Complaint. These original Defendants all assert that OMSCA has an ownership interest in the Mall, but part company on the size of that interest. As noted, Cross-Claimants contend that OMS-CA should be declared the 100% beneficial owner. In contrast, Cross-Defendants assert that OMSCA only indirectly owns 30% of the Mall through its 30% interest in OMA, the alleged 100% owner.
As in the earlier discussion of Cross-Defendants’ interest in OMSCA, Ranter and Marc Schraiber’s direct economic interest would be best served by a declaration that OMA was a fictitious entity so that their OMSCA interest would entitle them to a corresponding share of 100% of the proceeds from the sale of the Mall, not 30%.6 Notwithstanding this incentive, they have in the instant motion aligned themselves with Cross-Defendants. Accordingly, the same pragmatic considerations previously discussed are applicable. If Cross-Defendants prevail on this issue Ranter and Marc Schraiber will be satisfied with the result. Alternatively, if OMSCA is declared the 100% beneficial owner of the Mall making Ranter and Marc Schraiber’s OMSCA interests were more valuable, they will not have suffered any injury entitling them to relief. Ranter and Marc Schraiber are therefore not indispensable parties to this or any other portion of the cross-claim.
FAILURE TO STATE A CLAIM
1. Fraud Counts
Cross-Defendants also move to dismiss the cross-claim for asserted failure to state a claim for relief. They argue that through the allegation that OMA is a fictitious entity Cross-Claimants are alleging fraud without adequately alleging facts supporting such a claim.
For Cross-Defendants to prevail on their motion to dismiss, it must clearly appear from the pleadings that Cross-Claimants can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Swanson v. Wabash, Inc., 577 F.Supp. 1308 (N.D.Ill.1983). The issue is not whether Cross-Claimants will ultimately prevail, but whether Cross-Claimants have pleaded a cause of action sufficient to entitle them to offer evidence in support of their claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The Court must consider both pleaded facts and reasonable inferences drawn from pleaded facts, in a light most favorable to the Cross-Claimants when reviewing Cross-Defendants’ motion to dismiss. Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979); *908Westland v. Sero of New Haven, Inc., 601 F.Supp. 163, 166 (N.D.Ill.1985).
A complaint asserting common law fraud must allege each of the following elements: (1) a representation or a statement of material fact as opposed to a promise or opinion; (2) the representation must be false; (3) the representation must be known by the party making it to be false; (4) there must be action by the other party in reliance on the truth of the statement; (5) the representation must have been made with the intent to induce the other party to act; and (6) there must be damage resulting from such reliance. Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719 F.2d 1335, 1347 (7th Cir.1983); Hatherly v. Palos Bank & Trust Co., 650 F.Supp. 832, 834 (N.D.Ill.1986).
Closely related to this argument, Cross-Defendants also assert that the cross-claim should be dismissed because it fails to allege facts involved in the alleged misrepresentation with sufficient particularity to satisfy Federal Rule of Civil Procedure 9(b).7 Rule 9(b) provides that “in all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The purpose of this rule is to insure that the defendant may adequately respond to the plaintiffs allegations. Rudolph v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 100 F.R.D. 807, 809 (N.D.Ill.1984).
The cross-claim sufficiently alleges each of the necessary elements of a common law fraud action and does so with enough particularity to satisfy Rule 9(b). The cross-claim asserts that (1) the Articles of Limited Partnership for OMSCA (the “Partnership Documents”) executed by Cross-Defendants contained “a specific purpose to purchase [the Mall]”; (2) Debtor represented to each Cross-Claimant that he or she was buying part of the Mall; (3) Debtor deliberately failed to disclose OMA’s alleged ownership; (4) Cross-Claimants relied upon these representations and executed the Partnership Documents; and (5) Debtor intended to deceive Cross-Claimants and deliberately failed to disclose the existence of OMA in order to defraud them. Through these allegations, Cross-Claimants have sufficiently alleged reliance on a material misrepresentations and omissions knowingly made by Debtor. While Cross-Claimants have sufficiently alleged a common law fraud action, by focusing on this issue Cross-Defendants have misinterpreted the thrust of the cross-claim. In contrast to a typical fraud action which seeks monetary damages from named defendants, the relief sought in this cross-claim is to have OMA declared a fictitious entity. In support of this position, the cross-claim alleges that (1) OMA is beneficial owner of the trust holding legal title to the Mall and is itself owned by Debtor (35%), Betty Schraiber (35%) and OMSCA (30%); (2) the known capital contributions to OMSCA, an alleged partnership whose primary asset under Cross-Defendants’ view is a 30% interest in OMA, was $718,-000, but that Betty Schraiber, an alleged 35% owner in OMA, made substantially less, if any, capital contribution to OMA; (3)the primary evidence of Betty Schrai-ber’s capital interest in OMA is the 35% share of its losses that Betty Schraiber claimed on her tax returns; (4) no bank accounts were opened in OMA’s name until after Debtor filed for bankruptcy; and (5) none of the Cross-Claimants, alleged partners in OMSCA, had any knowledge of OMA despite the fact OMSCA’s 30% interest in OMA would have been OMSCA’s primary asset.
Such allegations and the reasonable inferences drawn from them, if proven, may warrant a finding that OMA was an entity established in name only and should be disregarded as a legal entity owning the Mall. Although there are different theories that Cross-Claimants could develop based on these allegations to support their position, Cross-Claimants essentially argue that OMA was never validly formed. A partnership is “an association of two or *909more persons to carry on as co-owners a business for profit.” Ill.Ann.Stat. ch. 106½, ¶ 6(1) (Smith Hurd 1989). The word “association” requires that the parties voluntarily intended to enter into an agreement. J. Crane & A. Bromberg, Law of Partnership 39-43 (1968) (“X cannot become Y’s partner without Y’s so intending any more than he can without intending it himself.”).
Cross-Claimants have alleged that they were never aware of OMA and did not intend to have OMSCA be a partner with Betty Schraiber and Debtor. They further allege that OMSCA was a general partnership, not a limited partnership, because a certificate of limited partnership was not filed as required by Illinois law. Ill.Ann. Stat. ch. 106½ ¶ 152-1. A partner can only bind a partnership to obligations and commitments incurred in the course of partnership business. Id. at ¶ 9(1). Whether Debtor, as an alleged partner in OMSCA, had authority to bind OMSCA to an agreement with himself individually and his wife in the circumstances of this case is one of the many issues that may be resolved at trial. Cross-Defendants’ motion to dismiss this portion of the cross-claim is denied.
2. Steven Schraiber’s OMSCA Interest
Cross-Defendants also argue that the portion of the cross-claim seeking declaration that Steven Schraiber does not own a capital interest in OMSCA should be dismissed for failure to state a claim. Steven Schraiber asserts that he received a capital interest in OMSCA upon the death of Sheldon Crone pursuant to Crane’s will. Cross-Defendants correctly point out that Cross-Claimants incorrectly read the pertinent portion of the Illinois Uniform Partnership Act as stating that a partnership interest passes to the other partners upon the death of a partner. Id. at ¶ 25(2)(d). This provision addresses “specific partnership property”, not a partner’s capital interest. Id. It is possible for a capital interest to pass by testacy.
Cross-Claimants’ allegations, however, are in the alternative. They also assert that there are no probate records indicating that Crone’s OMSCA interest passed to Steven Schraiber by testacy. Accordingly, Cross-Defendants’ motion to dismiss this portion of the cross-claim must also be denied.
OTHER ARGUMENTS
Cross-Defendants also correctly point out that under Illinois law a partnership interest can be acquired in methods other than by a capital contribution. Id. at ¶ 27. However, that does not warrant dismissing those portions of the cross-claim which seek a declaration that Cross-Defendants do not own interests in OMSCA. Finally, Cross-Defendants’ motion to dismiss the cross-claim on the grounds that it is verbose and conclusory is also denied.
. Cross-claimants include Isabelle Gaik, Fred Groh, Irene Maczka, Patrick Maize, Evelyn Ryd-zon, Lois Schmitt and OMSCA.
. This court has previously held that Trustee’s count 56 is a proceeding "related to” Debtor’s bankruptcy case within 28 U.S.C. § 1334(b) and 28 U.S.C. § 157(c)(1) because the outcome of the dispute will determine the value and extent of the Estate’s interest in OMSCA and OMA. Alexander S. Knopfler, Trustee v. Milton Schraiber, No. 88 A 877 mem. op. at 7 (Bankr.N.D.Ill. May 23, 1989). See also Alexander S. Knopfler, Trustee v. Milton Schraiber, No. 89 C 6181 mem. op. at 2 (N.D.Ill. Oct. 23, 1989). The cross-claim raises similar issues regarding ownership of the Mall and the composition of the entities involved and will therefore also impact the value of Debtor’s estate. As such, absent consent of the parties, this court may enter proposed findings of fact and law that are subject to de novo review by the district court. 28 U.S.C. § 157(c)(1). Cross-Claimants have consented to this court entering final orders pursuant to 28 U.S.C. § 157(c)(2), but Cross-Defendants have not yet filed an answer to the cross-claim.
.Federal Rule of Civil Procedure 19 with some modification not here pertinent is adopted by Bankruptcy Rule 7019 for adversary proceedings.
. Rule 19 provides in pertinent part:
(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if—
(1) in the person's absence complete relief cannot be accorded among those already parties, or
(2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's 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 the claimed interest. If the person has not been so joined, the court shall order that the person be made a party....
(b) If a person as described in subdivision (a)(1) — (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should, be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoin-der.
. This result is not changed by the fact that Steven Schraiber claims to have inherited a partnership interest totalling over half of the value of the capital contributions. Even assuming that "control" would impact the value of OMSCA interests during the winding up period, it is not obvious that even the addition of Steven would create this control. If OMSCA is determined to be a general partnership because no limited partnership agreement was filed as required by Illinois law, then the general rule in the absence of a contrary agreement is that each partner has an equal vote. Ill.Ann.Stat. ch. 1061/2 ¶ 37, ¶ 18(e). Under these assumptions even the addition of all three Cross-Defendants as partners plus Kanter and Marc Schraiber would not give the Schraiber family voting control.
. This is also true for Steven Schraiber and Irene Thon, two of the three named Cross-Defendants, who assert that they own interests in OMSCA, not OMA.
. Both Federal Rule of Civil Procedure 12(b) and 9(b) apply in Adversary proceedings. Bankruptcy Rules 7009, 7012(b). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491025/ | MEMORANDUM DECISION
IRVIN N. HOYT, Chief Judge.
This Memorandum Decision will dispose of Farm Credit Bank of Omaha’s (FCBO) motion that a judgment on the pleadings be entered in its favor and against plaintiff/debtors Jarrett Ranches, Inc. et al. (Jarretts). Jarretts request declaratory and injunctive relief against FCBO and its related entities claiming that FCBO violated the provisions of the Agricultural Credit Act of 1987, Pub.L. No. 100-233, 101 Stat. 1568-1718 (1987) and particularly 12 U.S.C. § 2219a. FCBO moved for judgment on the pleadings asserting that no private right of action exists to enforce the provisions of the Act.
The nature of this proceeding requires a brief recitation of the relevant facts. In December 1988, Donald and Jeannine Jarrett, Ronald and Jacqueline Jarrett and Jarrett Elevators, Inc. each conveyed their interest in approximately 32,000 acres of property located in North and South Dakota to Jarrett Ranches, Inc. Pursuant to a stipulation, Jarrett Ranches, Inc., Jarrett Elevators, Inc., and the individual Jarretts conveyed certain portions of the real estate to the Production Credit Association of the Midlands, and the remainder was conveyed to FCBO.
Jarretts, who are debtors under Chapter 11 of the Bankruptcy Code, later brought this adversary proceeding against FCBO claiming that FCBO violated the Act by failing to give notice to the “previous owner” of the real estate of its right of first refusal. Jarretts also claim that a waiver of their right of first refusal was void as violative of § 2219a(b) of the Act, that FCBO failed to appraise the property at its fair market value, and that FCBO’s proposed public auction of the property denies them their right of first refusal. Jarretts seek an order requiring a new appraisal of the real estate, injunctive relief to prevent the sale or public offering of the property until they are given an opportunity to exercise that right of first refusal, and a declaration that FCBO’s failure to use an independent fee appraiser and failure to follow 12 C.F.R. § 614.4220 is violative of the Act. FCBO argues that even if Jarretts’ claims are true, judgment must be granted in FCBO’s favor because no private right of action exists under the Act.
§ 2219a provides in salient part:
(a) General rule. Agricultural real estate that is acquired by an institution of the system as a result of a loan foreclosure or a voluntary conveyance by ,a borrower (hereinafter in this section referred to as the “previous owner”) who, as determined by the institution, does not have the financial resources to avoid foreclosure (hereinafter in this section referred to as “acquired real estate”) shall be subject to the right of first refusal of the previous owner to repurchase or lease the property, as provided in this section.
(b) Application of right of first refusal to sale of property. (1) Election to sell and notification. Within 15 days after an institution of the System first elects to sell acquired real estate, or any portion of such real estate, the institution shall notify the previous owner by certified mail of the owner’s right—
(A) to purchase the property at the appraised fair market value of the property, as established by an accredited appraiser; or
(B) to offer to purchase the property at a price less than the appraised value.
*965(5) Rejection of offer of previous owner. (A) Duties of institution. An institution of the System that rejects an offer from the previous owner to purchase the property at a price less than the appraised value may not sell the property to any other person—
(i) at a price equal to, or less than, that offered by the previous owner; or
(ii) on different terms and conditions than those that were extended to the previous owner,
without first affording the previous owner an opportunity to purchase the property at such price or under such terms and conditions.
(B) Notice. Notice of the opportunity in subparagraph (A) shall be provided to the previous owner by certified mail, and the previous owner shall have 15 days in which to submit an offer to purchase the property at such price or under such terms and conditions.
(d) Public offerings. (1) Notification of previous owner. If an institution of the System elects to sell or lease acquired property or a portion thereof through a public auction, competitive bidding process, or other similar public offering, the institution shall notify the previous owner, by certified mail, of the availability of the property. Such notice shall contain the minimum amount, if any, required to qualify a bid as acceptable to the institution and any terms and conditions to which such sale or lease will be subject. (2) Priority. If two or more qualified bids in the same amount are received by the institution under paragraph (1), such bids are the highest received, and one of the qualified bids is offered by the previous owner, the institution shall accept the offer by the previous owner.
As it currently stands, there is conflicting opinion concerning whether the Act allows a private right of action. The Ninth Circuit in Harper v. Federal Land Bank of Spokane, 878 F.2d 1172 (9th Cir.1989), employing the factors set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), held that no such right exists. Wilson v. Federal Land Bank of Wichita, No. 88-4058-R, slip op., 1989 WL 12731 (D.Ks. January 30, 1989) also held that no such right exists. In the Eighth Circuit, two district court eases have held that such a right does exist. See Leckband v. Naylor, 715 F.Supp. 1451 (D.Mn.1988) and Martinson v. Federal Land Bank of St. Paul, 725 F.Supp. 469 (D.N.D.1988). These cases were both appealed to the United States Court of Appeals for the Eighth Circuit, but were dismissed on May 9, 1989. Thus, the Eighth Circuit has yet to provide guidance on this issue.
As was used in Harper and Leckband, a Cort v. Ash analysis will help to discern whether a private right of action exists under the Act. Cort set forth four factors to determine whether Congress has intended to imply a private cause of action in a federal statute. The factors are as follows:
First, is the plaintiff one of the class for whose especial benefit the statute was enacted, i.e., does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? Finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the state, so that it would be inappropriate to infer a cause of action based solely on federal law? Cort, 422 U.S. at 78, 95 S.Ct. at 2087.
The second and third factors enunciated in Cort have been held to be determinative of whether a court should imply a private right of action from a statutory scheme. Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). Further, Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988), now makes it clear that the focal point of this inquiry is the second factor — congressional intent.
As did Harper and Leckband, this Court will utilize a Cort analysis to determine whether a private right of action exists under the Act. The analysis of the Harper *966and Leckband Courts may prove instructive and thus will also be considered herein.
1. Especial benefit of the plaintiffs.
The first factor to be considered is whether Jarretts are a member of the class for whose especial benefit the statute was enacted.
The Harper Court noted that one of the purposes of the Act “was to provide borrowers with certain limited rights, including the right to restructure distressed loans and the right of first refusal by the previous owner when the lenders elect to sell acquired property.” 878 F.2d at 1174. However, Harper went on to note that a proper inquiry requires one to focus on the overall purpose of the Act, concluding that the “major impetus for the legislation was the financial crisis of the Farm Credit System” rather than the plight of distressed borrowers. Id.
Judge Devitt, in Leckband, focused solely on borrower’s rights and noted that a prior owner of farm land acquired by a Farm Credit System institution is “clearly a person for whose special benefit § 1229a [sic] was enacted.” at 1454.
This Court’s reading of the statute leads it to conclude, as did the Harper Court, that the primary purpose of the legislation was to treat the ailing Farm Credit System. However, the Act does provide certain specific borrower’s rights, including a right of first refusal. Any benefit from exercising that right would inure primarily to the borrower, with little if any. benefit to the System. The Court thus concludes that while the legislation was largely intended to shore up the Farm Credit System, a previous owner is likewise a member of the class for whose especial benefit the Agricultural Credit Act of 1987 was enacted.
2. Legislative intent.
The second factor to consider is whether Congress has given any indication to create or deny this type of remedy. As noted earlier, Thompson, supra, holds that this factor should be given the most weight.
Both the Harper and Leckband Courts outlined the legislative history of the Act with specific emphasis on the issue of whether a private right of action was intended. It appears from congressional reports that a provision to explicitly grant a private right of action was considered in both the House and Senate chambers. See S.1665, 100th Cong., 1st Sess., 133 Cong. Rec. 11750 (August 7, 1987) and H.R. 3030, 100th Cong., 1st Sess., 133 Cong.Rec. 7638 (September 21, 1987), U.S.Code Cong. & Admin.News 1978, p. 2723. However, the explicit provision to grant such a right was deleted because some members of Congress were under the perception that borrowers already had the right to sue, Harper v. Federal Land Bank of Spokane, 692 F.Supp. 1244 at 1248 (D.Or.1988), and there was concern that the inclusion of a private right of action could actually restrict one’s right to sue. S. 1665, 100th Cong., 1st Sess., 133 Cong.Rec. 16993 (Statement of Senator Burdick). As a result, the Conference Committee deleted any reference to a private right of action prior to final passage of the bill. H.R. 3030, 100th Cong., 1st Sess., 133 Cong.Rec. 11820 (December 18, 1987).
Bearing in mind the legislative history of the Act, the Harper Court noted that it was clear that no private right of action existed under any predecessor statutes or regulations in force prior to the 1987 Act. The Court further stated that as a matter of statutory construction, Congress should have specifically provided for any intended private right of action given judicial determinations which held that no such right previously existed. See Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). Concluding, the Harper Court held that the colloquies contained in the legislative history should not be given an inordinate amount of weight and that Congress intended that an administrative review process should be the exclusive remedy under the Act.
The Leckband Court came to the opposite conclusion. Relying on the legislative history, Judge Devitt concluded that Congress did intend to provide for a private *967right of action but feared making such right explicit could be counterproductive.
This Court concludes that it was the intent of Congress to provide a private right of action. The fact that an explicit provision to that effect was drafted is evidence that Congress considered the issue. The fact that the provision was later deleted must be tempered by examining the reason for such deletion. It appears from the legislative history that members of Congress did not delete the provision because they fundamentally disagreed with the concept of providing a private right of action. Rather, operating from the misperception that such an implied right already existed,1 see H.R. 3030, 100th Cong., 1st Sess., 133 Cong.Rec. 7638, 7693 (Statement of Representative de La Garza) (September 21, 1987), members of Congress feared that the explicit provision of a private right of action could actually restrict one’s right to sue under the Act. Deciding to leave well enough alone, no explicit provision was provided. Based on this series of events, this Court concludes that Congress did intend that a private right of action should exist under the Act.
3. Consistency with legislative purpose.
The third factor for this Court to consider is whether implying a private right of action is consistent with the underlying purposes of the legislative scheme.
The Harper Court found that providing a right of action was inconsistent with the Act’s purpose of restoring financial integrity to the Farm Credit System. The Leck-band Court found that such right was consistent with the Act’s purpose of providing certain specific rights to borrowers. Obviously, the conclusion reached by each Court on this factor was directly related to its earlier consideration of whether the legislation was intended to impart a special benefit on the Farm Credit System, borrowers, or both.
Having earlier concluded that plaintiffs such as Jarretts are beneficiaries under the Act, the Court likewise concludes that the provision of a private right of action is consistent with the purposes thereof. To conclude otherwise would result in Jarretts having as their only remedy the administrative review process and enforcement powers of the Farm Credit Administration. See 12 U.S.C. §§ 2261-2274. These cease and desist powers, as provided by the Act, are designed to detect and remedy unsound practices of Farm Credit System institutions and are inappropriate to effectively protect the restructuring and first refusal rights afforded to the System’s borrowers. Simply put, the time table and scope of the Act’s enforcement powers, if followed by Jarretts, would immerse them in an administrative quagmire through which they could never receive an appropriate remedy. The ability to issue cease and desist orders or suspend, remove or replace institution officials, as contemplated by the Act’s enforcement powers, is of little practical benefit to Farm Credit System borrowers such as the Jarretts.
This case is a prime example of how the proposed administrative remedy would fail to redress injuries to a Farm Credit System borrower. The following time line illustrates how the Jarretts would fare if they utilized the administrative process:2
Date Sale Plan Administrative Process
Feb. 3 FCBO gives Jarretts its notice of intent to sell3
*968Mar. 5 Jarretts make offer
Mar. 20 FCBO rejects Jarretts offer
Mar. 30 Jarretts apply for a cease and desist order; Farm Credit Administration considers the application and notices a hearing4
April 3 Sale begins
April 5 Sale ends-59 tracts sold
May 1 FCA holds hearing5
June 15 FCA issues ruling6
July 15 FCA order becomes effective7
In a best-case scenario, where all of the parties would cooperate in expediting the administrative procedure, at least 30 days would pass between the time of the sale and the effective date of FCA’s order. In a worst-case scenario, where the statutory time limitations were fully utilized by all parties, more than six months would elapse between the sale date and the effective date of the order. In the Court’s example, which contemplates the passage of a reasonable amount of time, more than 100 days would pass from the time that the Jarrett land was sold (April 5) until the FCA order could take effect (July 15). While the FCA order could, in theory, require''FCBO to reconsider Jarretts’ offer and/or perhaps re-do the sale, the practical effect of such an order would create chaos. The purchasers of the 59 separate tracts, who would have possessed the land in excess of three months, may have to be recalled and might have to go through the bidding process again. This would obviously present serious questions concerning the rights of the bona fide purchasers of each of the 59 parcels. Quiet title actions would abound. A title examiner’s nightmare would ensue. Given this administrative “remedy”, the only alternative available to quickly and effectively protect the rights of Farm Credit System borrowers is to seek relief from the Courts.
*9694. Cause of action relegated to state law.
Finally, this Court must consider whether this is an area traditionally relegated to state law, thus making it inappropriate to rely upon federal law for the inference of a private right of action.
South Dakota law makes no provision for the protection of § 2219a rights. It thus appears that any rights afforded under § 2219a of the Act are governed exclusively by federal law.
The Court’s analysis concerning the existence of a private right of action for the relief here sought under the Agricultural Credit Act of 1987 leads it to conclude that such a right may be implied. While this Court partially agrees with the Ninth Circuit’s analysis of this issue, it believes that its conclusion is too narrowly drawn and fails to recognize and appreciate the predicament that distressed Farm Credit System borrowers currently face. Accordingly, FCBO’s motion for a judgment on the pleadings hereby is denied. This is a core proceeding under 28 U.S.C. § 157(b). This Court will enter an order denying FCBO’s motion.
.For example, the Eighth Circuit held that the 1985 amendments to the Farm Credit Act of 1971 did not provide a private right of action for damages. See Redd v. Federal Land Bank of St. Louis, 851 F.2d 219 (8th Cir.1988). However, the Eighth Circuit never reached the issue of whether a private right of action for injunctive relief could be implied thereunder. Redd at 219.
. For purposes of this illustration, the Court does not consider whether FCBO’s method of sale would muster under the statute.
. 12 U.S.C. § 2219a(b) provides the time frame for (1) an institution of the Farm Credit System to give notice to the previous owner of its intent to sell (15 days after first electing to sell); (2) the previous owner to submit an offer to purchase (30 days after receipt of institution’s notice to sell); and (3) the institution to accept or reject the previous owner's offer (15 days after receipt of offer).
. This 10 day period (March 20 — March 30) is not provided by the statute. This period would allow Jarretts to consider their next move, apply to the FCA for a hearing, allow the FCA to consider the merits of Jarretts’ application and notice a hearing on Jarretts’ application. Obviously, in the "real world" the FCA’s consideration of the application could take much longer. Also note that Jarretts are not eligible for a temporary cease and desist order under 12 U.S.C. § 2262 because such order is intended for use where a bank’s solvency is threatened rather than to protect the rights of Farm Credit System borrowers.
. This 30 day period (March 30 — May 1) is in conformance with 12 U.S.C. § 2261(a) which requires that a hearing be held no less than 30 days nor later than 60 days after service of notice, absent a request for an earlier date by one of the parties.
. Per 12 U.S.C. § 2266 the FCA has up to 90 days to reach its final decision. The Court has afforded 45 days for the FCA to consider Jar-retts’ claim for purposes of this example.
. 12 U.S.C. § 2261(b) provides that a cease and desist order becomes effective 30 days after receipt by the concerned parties, except where such order is issued by consent. For purposes of this example, the Court is assuming that the FCA would rule in Jarretts’ favor and that FCBO would not consent to issuance of the order. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491026/ | ORDER ON OBJECTION TO CLAIM
ALEXANDER L. PASKAY, Chief Judge.
THESE are confirmed Chapter 11 cases and the matter under consideration is an Objection filed by Hearing Centers of America, Inc. (Debtor), to the claim of David Lyons (Lyons). The claim under challenge is filed in the amount of $750,-308.16 as an unsecured claim and is composed of the following items: (1) claim for breach of an employment contract by the Debtor; (2) claim for unreimbursed expenses in the amount of $6,394.78; (3) claim based on a promissory note executed by the Debtor in favor of Lyons in the amount of $35,893.73; and, (4) claim of $399,478.00 based on a Bonus Agreement which Lyons contends entitled him to have this amount allowed as part of his overall claim. While the Debtor concedes that the claims based on the promissory note and the unreimbursed expenses are proper and should be allowed, it vigorously objects to the allowance of the claim based on a Bonus Agreement and it also objects to the amount of the damage claim based on a breach of employment contract.
Although the original claim based on a breach of employment contract was originally filed in a much greater amount, it is now conceded by the claimant that this claim is subject to the limitations placed on such claims by the Statute. Section 502(b)(7) states that such claims cannot be greater than the amount provided for by the contract for one year following the earlier of the date of filing of the petition, or that the date on which the employer terminated the employment. In addition to this limitation, the Debtor also takes the position that Lyons voluntarily resigned on June 7, 1988, and, therefore, the only entitled compensation for the salary actually earned is $50,000.00. The biggest bone of contention between the parties, however, is the entitlement of Lyons to compensation to be paid pursuant to a Bonus Agreement entered into between the parties on November 30, 1986. According to the Debtor, Lyons is not entitled to any compensation based on this Agreement.
The facts as established at the final evi-dentiary hearing which are relevant to the remaining issues can be briefly summarized as follows:
Hearing Centers of America, Inc., the Debtor, entered into an agreement to acquire the outstanding stock of the following entities which were controlled by David Lyons and Anthony L. Andreozzi:
Bay Area Hearing Aid Service, Inc.
*1011Ear Lab Hearing Centers of America, Inc.
Gulf View Square Mall Hearing Aid Center, Inc.
Lyons & Andreozzi Enterprises, Inc.
Paddock Mall Hearing Aid Center, Inc.
Sounds of the World Hearing Aids, Inc.
As part of this transaction, the Debtor entered into an Employment Agreement (Agreement) (Debtor’s Exh. No. 1 — Tab 5) with David F. Lyons which provided for a term of three years commencing December 1, 1986, and ending November 30, 1989. Paragraph 2.2 of the Agreement provides that Lyons agreed to devote his full time, attention and skill to the performance of his duties as chairman of Hearing Centers of America, Inc. (HCAI). Paragraph 3.1 of the Agreement provides an annual salary of $100,000.00 payable monthly in advance in twelve equal monthly installments. Section 3 of the Agreement which deals with compensation also provides for reimbursement of automobile expenses. Paragraph 3.2 of the Agreement calls for some fringe benefits. Paragraph 3.3 of the Agreement allows for reimbursement and travel and entertainment expenses. The Agreement does not deal with any bonus arrangement and makes no reference to any Bonus Agreement. At the same time, the corporations being acquired also entered into six separate Bonus Agreements (Debtor’s Exhibit No. 1 — Tab 15) which provided, inter alia:
(a) On or before December 31, 1986, the Employer’s independent accounting firm (the “Accountant”) shall prepare a Bonus Pool Determination Report showing as of the Bonus Date the amount of the Cash Assets plus Bonus Receivables (without deduction for doubtful accounts) and the Bonus Date Obligations then fixed and determinable. The amount shown thereof as the net excess, if any, of the Cash Assets plus the Bonus Receivables less the Bonus Date Obligations shall be the maximum amount of the Bonus Pool.
(b) The amount of the Bonus Pool available for payment shall be determined by the Accountant within 10 days after the end of each month, commencing with December 31, 1986, and thereafter through August 31,1987, and shall be the amount by which the Realized Liquid Assets as of the end of such month exceed (x) the Bonus Date Obligations plus (y) amounts previously paid out of the Bonus Pool.
There is no question that the Debtor did not employ an independent accounting firm and that no Bonus Pool Determination Report was ever prepared. While the Debtor retained the services of the accounting firm of Grossman, Weinberg & Associates, P.A., of Boca Raton, its report which was marked for identification clearly was not intended to be and was not the Bonus Pool Determination Report. It is conceded by the Debtor that Lyons did not receive any payment pursuant to his Bonus Pool Agreement. On June 7, 1988, Lyons tendered his resignation by letter addressed to the members of the Debtor (Defendant’s Exh. No. 4). It is equally without dispute, however, that he was actively locked out of his office earlier on February 22, 1988, and no longer devoted his full time to the affairs of the Debtor.
Concerning first Lyons’ entitlement to damages resulting from the breach of employment contract, this Court is satisfied that the Debtor, in fact, breached the contract by locking him out. Even though Lyons sent a letter of resignation in June, this is really without any significance. For this reason, this Court is satisfied that he should be entitled to have a claim allowed in the amount of $100,000.00 for damages based on the breach of employment contract.
This leaves for consideration Lyons’ entitlement to payment under the Bonus Agreement. The only evidence in this record on this point which is believable and competent is the testimony of the certified public accountant who testified on behalf of the Debtor. As noted earlier, the Debt- or concedes that the claim of Lyons based on the promissory note and his claim for reimbursement of expenses are proper thus these items shall be allowed in the amount claimed. After having reviewed all the documentation relevant to the issues, he stated that no Bonus Pool Determination *1012Report was ever prepared. In addition, according to the testimony of the certified public accountant he determined from the records available that the reconciliation of the liquid assets against the liabilities presented a negative picture and that, rather than indicating an entitlement to a bonus award under the Agreement to Lyons, it indicated that Lyons is, in fact, indebted to the corporations.
Based on the foregoing, this Court is satisfied that Lyons is not entitled to any Bonus Agreement. In light of the foregoing, it is unnecessary to consider whether or not the Bonus Agreement is part of the Employment Contract, thus, subject to the limitations placed on the claim for damages for breach by § 502(b)(7) of the Bankruptcy Code.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Objection of the Hearing Centers of America, Inc., to the claim of Lyons be, and the same is hereby, sustained in part and overruled in part, and the claim of Lyons shall be allowed as an unsecured claim in the total amount of $142,288.51.
DONE AND ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483489/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00394-CV
___________________________
EC LEWISVILLE, LLC, D/B/A ELITE CARE EMERGENCY CENTER;
GREATER HOUSTON EMERGENCY PHYSICIANS, PLLC, D/B/A ELITE
CARE EMERGENCY CENTER; AND HARVEY CASTRO, M.D., Appellants
V.
HERIBERTO MARTINEZ-GONZALEZ, Appellee
On Appeal from the 158th District Court
Denton County, Texas
Trial Court No. 15-04212-158
Before Bassel, Womack, and Wallach, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION AND JUDGMENT
We have considered “Appellants’ Unopposed Motion to Dismiss.” We grant
the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(1), 43.2(f).
In accordance with the parties’ agreement, each party must bear its own costs.
See Tex. R. App. P. 42.1(d).
Per Curiam
Delivered: November 10, 2022
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483492/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00263-CV
___________________________
BARBARA ELLEN LYNCH, Appellant
V.
JASON PAUL NIELD, Appellee
On Appeal from the 158th District Court
Denton County, Texas
Trial Court No. 22-4364-158
Before Womack, Wallach, and Walker, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION AND JUDGMENT
On October 14, 2022, we notified appellant that her brief had not been filed as
the appellate rules require. See Tex. R. App. P. 38.6(a). We stated that we could
dismiss the appeal for want of prosecution unless, on or before October 24, 2022,
appellant filed with the court an appellant’s brief and an accompanying motion
reasonably explaining the brief’s untimely filing and why an extension was needed. See
Tex. R. App. P. 10.5(b), 38.8(a)(1), 42.3(b). We have received no response.
Because appellant has failed to file a brief even after we afforded an
opportunity to explain the initial failure, we dismiss the appeal for want of
prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b), 43.2(f).
Appellant must pay all costs of this appeal.
Per Curiam
Delivered: November 10, 2022
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483486/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00382-CV
___________________________
RAN LI, Appellant
V.
YAXIN LI, Appellee
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-326383-21
Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant attempts to appeal the trial court’s order requiring the parties to
appear for mediation. On October 5, 2022, we notified Appellant of our concern that
this appeal did not appear to be from a final judgment or appealable interlocutory
order. We informed Appellant that the appeal may be dismissed for want of
jurisdiction unless Appellant or any party desiring to continue the appeal filed a
response showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a),
44.3. Appellant responded that, because the order requires Appellant to mediate, the
order is a “mandatory injunction” and is therefore an appealable “final interlocutory
order.” See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (allowing interlocutory
appeal from an order that “grants or refuses a temporary injunction or grants or
overrules a motion to dissolve a temporary injunction as provided by Chapter 65”).
The trial court’s order does not grant or refuse a temporary injunction nor does
it grant or overrule a motion to dissolve a temporary injunction. Instead, the order
requires the parties to appear at mediation; such an order is not an appealable
interlocutory order. See Banc of Am. Inv. Servs., Inc. v. Lancaster, No. 2-04-223-CV, 2004
WL 1879597, at *1 (Tex. App.—Fort Worth Aug. 24, 2004, no pet.) (per curiam)
(mem. op.) (dismissing for want of jurisdiction attempted interlocutory appeal from
order referring case to mediation). Accordingly, we dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
2
/s/ Brian Walker
Brian Walker
Justice
Delivered: November 10, 2022
3 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483497/ | ***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
GABRIELLE CERUZZI HEALEY ET AL. v.
CHARLES MANTELL ET AL.
(AC 44878)
Bright, C. J., and Prescott and Moll, Js.
Syllabus
The defendants, coexecutors of the decedent’s will and cotrustees of all
trusts created under the will, appealed from the judgment of the trial
court rendered in their favor. The decedent left a will leaving the majority
of his estate to a marital trust for his surviving spouse, with the residuary
estate passing to a trust (residual trust) for the benefit of the plaintiffs,
the decedent’s two children. The residual trust was to be divided equally
between two trusts, one for the benefit of each child. The terms of the
separate trusts provided for mandatory distributions of trust principal
when the primary beneficiary reached specific ages. The plaintiffs
alleged in their complaint that the defendants had improperly failed to
fund the residual trust and to pay the required distributions pursuant
to the trust terms and, in so doing, had breached their fiduciary duty
to the plaintiffs as beneficiaries of the estate and of the residual trust,
committed legal malpractice, and engaged in negligent misrepresenta-
tion. The trial court granted the defendants’ motion to dismiss the com-
plaint in its entirety, finding that, although the plaintiffs as beneficiaries
of the residual trust had standing to sue the defendants in their capacities
as both coexecutors and cotrustees, the court lacked subject matter
jurisdiction over the first and third claims because administration of
the estate was not yet completed and, therefore, such claims were not
ripe for adjudication, and the second claim, sounding in legal malprac-
tice, failed because the plaintiffs were neither clients of the named
defendant or his law firm nor intended third-party beneficiaries of such
defendants’ legal services. On appeal, the defendants argued that they
were aggrieved by the trial court’s determination that the plaintiffs had
standing as beneficiaries of the residual trust to bring claims against
the defendants for their actions as coexecutors of the estate and that
the defendants could be collaterally estopped in a subsequent proceeding
from challenging the plaintiffs’ standing to sue the defendants as coexec-
utors. Held that this court did not have subject matter jurisdiction over
the appeal because the defendants were not aggrieved by the trial court’s
decision; in the present case, the defendants were granted the exact
relief they sought—dismissal of the action in its entirety—and, because
the trial court’s determination regarding the plaintiffs’ standing to bring
counts one and three was dictum, it therefore could not have any preclu-
sive effect in a later proceeding.
Argued October 3—officially released November 15, 2022
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged breach of fiduciary duty, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield, and transferred to the judicial district
of Waterbury, Complex Litigation Docket, where the
court, Bellis, J., granted the defendants’ motion to dis-
miss and rendered judgment thereon, from which the
plaintiffs appealed to this court. Appeal dismissed.
Damian K. Gunningsmith, with whom, were Frank
J. Silvestri, Jr., and, on the brief, John Horvack, Jr.,
Matthew R. Peterson, and Kristen G. Rossetti, for the
appellants (named defendant et al.).
Neal L. Moskow, with whom, was Deborah M. Gar-
skof, for the appellees (plaintiffs).
Opinion
PRESCOTT, J. This appeal arises out of an action
brought by the plaintiffs, Gabrielle Ceruzzi Healey and
James Ceruzzi, against the defendants Charles Mantell
and David Novicki for claims originating out of the
defendants’ administration of the estate of Louis L. Cer-
uzzi, Jr. (decedent), the plaintiffs’ father.1 The defen-
dants were the coexecutors of the will and the cotrus-
tees of trusts created by the will, and the plaintiffs were
beneficiaries of one of these trusts.
The defendants appeal from the trial court’s judgment
granting their motion to dismiss the plaintiffs’ action
in its entirety. The defendants do not challenge the
judgment of dismissal itself2 but, rather, they claim that,
although the court properly granted their motion to
dismiss, they nevertheless are aggrieved by certain addi-
tional determinations the court made that, although not
necessary to the court’s decision, could have a preclu-
sive effect in a subsequent proceeding between the
parties. Specifically, the defendants claim that the court
improperly concluded that the plaintiffs had standing,
as beneficiaries, to sue the defendants for their actions
as coexecutors of the estate.3 We conclude that, because
the court ultimately concluded that it lacked subject
matter jurisdiction over the entire action because
counts one and three were not ripe and the plaintiffs
lacked standing to bring count two, its determination
regarding standing to bring counts one and three was
not essential to the court’s decision and is dictum. Con-
sequently, because the determination regarding stand-
ing is dictum and cannot have a preclusive effect in
subsequent proceedings between the parties, the defen-
dants are not aggrieved. Accordingly, we dismiss the
appeal.
The record reveals the following relevant facts and
procedural history. The decedent died testate on August
31, 2017. On September 11, 2017, the decedent’s will
was admitted to the Fairfield Probate Court and the
defendants were appointed as the will’s coexecutors.
The will, inter alia, created two trusts, a marital deduc-
tion terminable interest trust (marital trust) and a resid-
ual trust for the benefit of the plaintiffs, the decedent’s
children (residual trust). Novicki and David Mack, a
friend of the decedent, were named in the will as the
cotrustees of all trusts created by the will. Mack
declined to serve as a trustee, however, and Novicki
appointed Mantell as cotrustee in Mack’s place.
As provided in the will, the intended corpus of the
residual trust was the residue of the decedent’s estate,
including all real, personal, and mixed property. After
all expenses incident to the administration of the resid-
ual trust were deducted, the corpus of the residual trust
was to be divided equally among the decedent’s then
living children and placed in separate trusts, one for
the benefit of each child.4
On January 18, 2021, the plaintiffs commenced the
underlying action, asserting that the defendants had
improperly declined to fund the residual trust and pay
the required distributions. The complaint contained
three counts. Count one alleged that the defendants
breached their fiduciary duties as coexecutors and
cotrustees. Count two alleged that Mantell and the law
firm committed legal malpractice. Count three alleged
that Mantell engaged in negligent misrepresentation.
According to the complaint, the residue of the dece-
dent’s estate totaled $5.2 million at the time of the
decedent’s death. According to the distribution sched-
ule set forth in the will, each plaintiff was entitled to
an equal one-half share of the total corpus of the resid-
ual trust. Each plaintiff’s $2.6 million share of the princi-
pal was to be invested, reinvested, and held in a separate
trust for such plaintiff’s benefit.
On the basis of their respective ages, the plaintiffs
claimed that they were entitled to certain mandatory
distributions of a percentage of their separate trust’s
principal. Specifically, Healey, who was thirty-seven at
the time her father died, claimed that, per the distribu-
tion schedule set forth in the will, she was entitled to
a distribution of the full amount of her trust’s principal
or $2.6 million. Ceruzzi, who was twenty-five at the time
of the decedent’s death, claimed that he was entitled to
one quarter of his trust’s principal or $650,000. Despite
a claimed entitlement to distributions in these amounts,
Healey received a distribution in the amount of only
$50,000 from the defendants and Ceruzzi received no
distribution.
The complaint further alleged that, although Mantell
had made prior assurances that the plaintiffs would
receive their distributions from the residual trust, the
defendants failed to create and fund the residual trust
and distribute its principal. On July 30, 2019, the defen-
dants informed the plaintiffs that they would not be
making any further distributions from the estate.5 The
defendants explained that no distributions could be
made because of contractual agreements with lenders
that the defendants had entered into as a part of their
efforts to continue the decedent’s business operations.6
The defendants’ efforts to continue to carry out the
decedent’s business operations, an action that allegedly
was not required by the will, resulted in the estate
becoming illiquid. After the estate became illiquid, it
was no longer able to fund the residual trust or pay the
residual trust’s mandated distributions.7
In response to the plaintiffs’ complaint, the defen-
dants moved to dismiss the action in its entirety and
filed a memorandum in support of the motion along
with supporting exhibits. The motion to dismiss raised
three jurisdictional defects. First, the defendants
alleged that the plaintiffs, as beneficiaries of the resid-
ual trust, lacked standing to sue the defendants because
only trustees have standing to pursue damages on
behalf of a trust. Second, the defendants alleged that
the plaintiffs’ claims were not ripe because the adminis-
tration of the estate was not complete. Third, the defen-
dants alleged that, in regard to the second count sound-
ing in legal malpractice, the plaintiffs lacked standing
because they were neither clients of the law firm or
Mantell, nor intended third-party beneficiaries of their
legal services.
The plaintiffs subsequently filed an objection to the
motion to dismiss with supporting exhibits. In opposing
the defendants’ motion to dismiss, the plaintiffs
responded to each of the defendants’ jurisdictional chal-
lenges in turn. The plaintiffs first argued that, because
the defendants acted in bad faith in their administration
of the estate by prioritizing their own interests over the
beneficiaries’ best interests, the plaintiffs had standing
as beneficiaries of the residual trust to sue the defen-
dants for breaching their fiduciary duties as coexecu-
tors and cotrustees. The plaintiffs next argued that their
claims were ripe because the plaintiffs’ injury was clear,
and the amount due to the plaintiffs was ‘‘known and
within the coexecutors’ ability to be satisfied.’’ Finally,
the plaintiffs argued that they had an attorney-client
relationship with Mantell and the law firm because of
representations made to the plaintiffs that Mantell was
their attorney. Alternatively, the plaintiffs argued that
they were third-party beneficiaries of the legal services
provided by Mantell and the law firm.
On June 14, 2021, the court heard oral argument on
the defendants’ motion to dismiss. On July 16, 2021,
the court issued a memorandum of decision that
granted the defendants’ motion and dismissed all three
counts brought by the plaintiffs. In dismissing the sec-
ond count, the court held that the plaintiffs lacked
standing to allege legal malpractice because the plain-
tiffs did not allege in the complaint that they were
clients of Mantell, nor did the allegations in the com-
plaint support any inference that they were intended
third-party beneficiaries of Mantell’s or the law firm’s
legal services. In dismissing counts one and three, the
court held that those counts were not ripe for adjudica-
tion because the decedent’s estate was still being pro-
bated and therefore the plaintiffs had yet to experience
any injury. For these reasons, the court granted the
motion to dismiss in its entirety.
Despite the court’s finding that it did not have juris-
diction over the plaintiffs’ claims because they were not
justiciable, it nevertheless concluded that the plaintiffs
had standing as beneficiaries of the residual trust to
bring the first and third counts of the complaint. The
court first determined that the allegations in the plain-
tiffs’ complaint properly asserted causes of action aris-
ing out of the defendants’ conduct both as coexecutors
and as cotrustees. Thus, in order to establish that the
plaintiffs lacked standing to bring the first and third
counts of the complaint, the plaintiffs would need to
lack standing as beneficiaries of the residual trust to
sue the defendants for their actions as both coexecutors
and cotrustees. The court found that the plaintiffs had
standing as beneficiaries of the residual trust to bring
their claims against the defendants in their capacity
as coexecutors. Specifically, the court noted that the
plaintiffs’ complaint alleged sufficient facts to support
that the defendants acted in bad faith and, consequently,
the plaintiffs’ claim fell within an exception to the gen-
eral rule that beneficiaries lack standing to sue on behalf
of the estate. The court also found that the plaintiffs
had standing as beneficiaries to bring claims against
the defendants in their role as cotrustees. The court
found that the plaintiffs alleged sufficient facts to sup-
port that the plaintiffs had standing, as the residual
trust’s beneficiaries, to sue the defendants for a breach
of trust.
Following the court’s ruling, the defendants appealed.
On appeal, the defendants challenge the court’s deter-
mination with respect to counts one and three that the
plaintiffs had standing as trust beneficiaries to sue the
defendants in their capacity as coexecutors of the estate
despite the plaintiffs’ status as beneficiaries of the will.8
The plaintiffs have not cross appealed and do not chal-
lenge the court’s rulings that they lacked standing to
bring the second count and that the claims asserted in
the first and third counts were not ripe for adjudication.
Thereafter, the plaintiffs filed a motion to dismiss
the appeal, arguing that the defendants were not
aggrieved by the judgment and, thus, lacked standing
to appeal. This court denied the motion to dismiss the
appeal, without prejudice, and ordered the parties to
address, along with the merits of the appeal, ‘‘(1)
whether the aggrievement issue in this appeal is justicia-
ble by the Appellate Court; [and] (2) whether the [defen-
dants] have standing to appeal when they claim to be
aggrieved by the ‘collateral estoppel effect’ of the trial
court’s judgment . . . .’’
In their principal brief, the defendants argue that this
court has jurisdiction over the appeal because they were
aggrieved by the trial court’s determination that the
plaintiffs had standing as beneficiaries of the residual
trust to bring claims against the defendants for their
actions as the coexecutors of the estate. Specifically,
the defendants argue that they could be collaterally
estopped in a subsequent proceeding from challenging
the plaintiffs’ standing to sue the defendants. The defen-
dants further argue that the court improperly concluded
that the plaintiffs had standing as beneficiaries of the
residual trust to sue them for their actions as coexecu-
tors of the will. The plaintiffs argue in their principal
brief that this court lacked subject matter jurisdiction
over the appeal because the defendants were not
aggrieved by the judgment of the court, which granted
them the very relief they sought in their motion to
dismiss. Alternatively, the plaintiffs argue that the court
properly concluded that the plaintiffs had standing as
beneficiaries of the residual trust to bring the first and
third counts of the complaint.
Because it implicates the jurisdiction of this court to
hear the appeal, we first consider whether the defen-
dants were aggrieved by the court’s determination that
the plaintiffs had standing as trust beneficiaries to sue
the defendants for their conduct as coexecutors of the
estate, despite the court ultimately holding that it lacked
subject matter jurisdiction over the plaintiffs’ complaint
in its entirety. We conclude that, because the court’s
determination regarding the plaintiffs’ standing to bring
counts one and three was dictum and thus could not
have any preclusive effect in a later proceeding, the
defendants are not aggrieved.
We begin by setting forth the well established legal
principles. ‘‘Aggrievement, in essence, is appellate
standing. . . . It is axiomatic that aggrievement is a
basic requirement of standing, just as standing is a fun-
damental requirement of jurisdiction. . . . There are
two general types of aggrievement, namely, classical
and statutory; either type will establish standing, and
each has its own unique features. . . . The test for
determining [classical] aggrievement encompasses a
well settled twofold determination: first, the party
claiming aggrievement must demonstrate a specific per-
sonal and legal interest in the subject matter of the
decision, as distinguished from a general interest shared
by the community as a whole; second, the party claiming
aggrievement must establish that this specific personal
and legal interest has been specially and injuriously
affected by the decision.’’ (Citations omitted; internal
quotation marks omitted.) In re Ava W., 336 Conn. 545,
554–55, 248 A.3d 675 (2020); see also General Statutes
§ 52-263 (establishing as prerequisite to party filing
appeal that ‘‘party is aggrieved by the decision of the
court or judge upon any question or questions of law’’).
‘‘Aggrievement is established if there is a possibility,
as distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Internal quotation marks omitted.) Avon v. Freedom
of Information Commission, 210 Conn. App. 225, 235,
269 A.3d 852 (2022). ‘‘Ordinarily, a party that prevails
in the trial court is not aggrieved. . . . Moreover, [a]
party cannot be aggrieved by a decision that grants the
very relief sought. . . . Such a party cannot establish
that a specific personal and legal interest has been
specially and injuriously affected by the decision.’’
(Citations omitted; internal quotation marks omitted.)
Seymour v. Seymour, 262 Conn. 107, 110–11, 809 A.2d
1114 (2002).
Nevertheless, even if a party prevails in the trial court,
if there has been an adverse ruling in the course of the
proceeding that may aggrieve the party, the party may
appeal. Equitable Life Assurance Society of the United
States v. Slade, 122 Conn. 451, 465, 190 A. 616 (1937).
For example, ‘‘[a] prevailing party . . . can be
aggrieved . . . if the relief awarded to that party falls
short of the relief sought.’’ (Internal quotation marks
omitted.) In re Allison G., 276 Conn. 146, 158, 883 A.2d
1226 (2005). ‘‘[M]oreover . . . impairment of an
agency’s ability to carry out its responsibilities consti-
tutes aggrievement for purposes of appeal [even when
the agency prevailed in a lower court].’’ Williams v.
Commission on Human Rights & Opportunities, 257
Conn. 258, 265, 777 A.2d 645 (2001). Finally, ‘‘should
actual prejudice be likely to occur from an adverse
finding in . . . a case, despite obtaining the full mea-
sure of relief, there is case law recognizing that such
consequences may give rise to sufficient grounds to
establish aggrievement.’’ In re Allison G., supra, 163;
see also E. Prescott, Connecticut Appellate Practice &
Procedure (7th Ed. 2021) § 2-2:1.3, p. 68 (‘‘[i]njury by
way of legal preclusion under the doctrines of res judi-
cata and collateral estoppel may be sufficient to estab-
lish aggrievement’’).
A party is not aggrieved by a court’s statements that
are considered dicta. ‘‘Dicta are [o]pinions of a [court]
[that] do not embody the resolution or determination
of the specific case before the court [and] [e]xpressions
in [the] court’s opinion [that] go beyond the facts before
[the] court . . . and [are] not binding in subsequent
cases as legal precedent.’’ (Internal quotation marks
omitted.) Honulik v. Greenwich, 293 Conn. 641, 645
n.5, 980 A.2d 845 (2009). ‘‘If an issue has been deter-
mined, but the judgment is not dependent upon the
determination of the issue, the parties may relitigate
the issue in a subsequent action. . . . Thus, state-
ments by a court regarding a nonessential issue are
treated as merely dicta.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Gladysz v.
Planning & Zoning Commission, 256 Conn. 249, 260–
61, 773 A.2d 300 (2001). ‘‘Dictum includes those discus-
sions that are merely passing commentary . . . those
that go beyond the facts at issue . . . and those that
are unnecessary to the holding in the case. . . . [I]t is
not dictum [however] [if] a court . . . intentionally
takes up, discusses, and decides a question germane
to, though not necessarily decisive of, the controversy.
. . . Rather, such action constitutes an act of the court
[that] it will thereafter recognize as a binding decision.’’
(Emphasis added; internal quotation marks omitted.)
Cruz v. Montanez, 294 Conn. 357, 376–77, 984 A.2d
705 (2009).
In the present case, the defendants are not aggrieved
by the court’s determination regarding standing to bring
the claims in counts one and three because their per-
sonal and legal interests have not been affected. First,
the defendants were granted the exact relief they
sought, dismissal of the action in its entirety. See Sey-
mour v. Seymour, supra, 262 Conn. 111 (‘‘[a] party
cannot be aggrieved by a decision that grants the very
relief sought’’ (internal quotation marks omitted)). The
defendants provided two alternative theories for why
the court lacked subject matter jurisdiction over the
first and third counts of the complaint. The court did not
agree with the defendants’ argument that the plaintiffs
lacked standing to bring the first and third counts. The
court did, however, dismiss counts one and three for a
lack of subject matter jurisdiction under the defendants’
second theory—that those counts were not ripe. Jones
v. Redding, 296 Conn. 352, 366, 995 A.2d 51 (2010) (‘‘a
litigant has no right to appeal a judgment in his or her
favor merely for the purpose of having the judgment
based on a different legal ground than that relied upon
by the trial court’’ (internal quotation marks omitted)).
The court also dismissed the second count for a lack
of standing because the plaintiffs were not third-party
beneficiaries of Mantell’s or the law firm’s legal services.
Because the complaint was dismissed in its entirety,
the defendants were awarded the full relief they sought
in the trial court.
Second, although we have recognized that there may
be some instances in which a prevailing party may be
aggrieved for purposes of appeal, this case does not
fall within the exception on which the defendants rely.
The defendants argue on appeal that they are aggrieved
by the court’s determination that the plaintiffs had
standing as beneficiaries to bring counts one and three
of the complaint. Specifically, the defendants argue that
they are aggrieved because they could be collaterally
estopped from challenging the plaintiffs’ standing to
sue the defendants for their actions as coexecutors in
a subsequent proceeding. We conclude that the court’s
findings regarding the plaintiffs’ standing to bring the
first and third counts of the complaint are dicta, and,
therefore, we are not persuaded that the defendants
are aggrieved by the court’s nonbinding conclusions.
Because current Connecticut law does not require
that a court address alleged jurisdictional defects in
any particular order, the statements that the court made
regarding the plaintiffs’ standing to bring counts one
and three were not necessary prior to the court reaching
the conclusion that those claims were not ripe and,
thus, those statements were merely dicta and are not
binding.9 See Peterson v. iCare Management, LLC, 203
Conn. App. 777, 793–94, 250 A.3d 720 (2021) (statements
that are not essential to court’s conclusion are dicta);
see also Avon v. Freedom of Information Commission,
supra, 210 Conn. App. 237 (determination of issue was
not binding if court’s judgment was not dependent on
determination of that issue). Accordingly, the court’s
dicta regarding the plaintiffs’ standing cannot have a
preclusive effect in a later proceeding. See Farmington
Valley Recreational Park, Inc. v. Farmington Show
Grounds, LLC, 146 Conn. App. 580, 589, 79 A.3d 95
(2013) (parties were not collaterally estopped from relit-
igating issue that was determined in mere dicta). Once
the court had concluded that it lacked subject matter
jurisdiction over the plaintiffs’ claims in counts one and
three because the issues were not ripe for adjudication,
the court need not have considered the plaintiffs’ stand-
ing with respect to those claims.10 See, e.g., American
Tax Funding, LLC v. Design Land Developers of New-
town, Inc., 200 Conn. App. 837, 848–49 n.13, 240 A.3d
678 (2020) (‘‘[i]n light of our determination that the
appeal must be dismissed for lack of jurisdiction due
to mootness, we need not address the standing issue
raised . . . which would provide an independent basis
for the determination regarding jurisdiction’’); see also
Carraway v. Commissioner of Correction, 317 Conn.
594, 602 n.10, 119 A.3d 1153 (2015) (‘‘We recognize that
the mootness doctrine is implicated in this appeal and
likely provides an independent basis for our subject
matter jurisdiction determination. Because we decide
the case on the basis of aggrievement, however, we
need not reach the mootness issue.’’).
Because the court’s conclusion that the plaintiffs had
standing as beneficiaries of the residual trust was
merely dictum and, thus, cannot have a preclusive effect
in a later proceeding; see Farmington Valley Recre-
ational Park, Inc. v. Farmington Show Grounds, LLC,
supra, 146 Conn. App. 588–89; the defendants are not
aggrieved for purposes of appeal. See Avon v. Freedom
of Information Commission, supra, 210 Conn. App.
237–38 (holding that defendant was not aggrieved for
purposes of appeal because court’s decision on nonde-
terminative matter was merely dictum). Therefore, this
court lacks subject matter jurisdiction over the defen-
dants’ appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
Weiner, Mantell & Fornes, P.C. (law firm) additionally was named as a
defendant but is not participating in the present appeal. All references in
this opinion to the defendants are to Mantell and Novicki only.
2
The defendants do not challenge the court’s dismissal of counts one and
three for a lack of ripeness and also do not challenge the court’s dismissal
of count two for a lack of standing.
3
The defendants’ principal brief does not specify which counts are impli-
cated in their challenge of the court’s conclusion that the plaintiffs had
standing, as trust beneficiaries, to sue the defendants for their actions as
coexecutors of the estate. Rather, the defendant’s brief discusses the matter
generally stating that, ‘‘the plaintiffs, as beneficiaries of the residuary trust,
failed to meet their burden of establishing that they have standing to pursue
their claims on behalf of or arising under the residuary trust against Mantell
and Novicki as the coexecutors of the estate and this court should reverse
the trial court’s decision to the contrary.’’ Although the defendants do not
specify whether they challenge this determination as it pertains to count
one, three, or both, we interpret their claim as challenging the court’s deter-
mination that the plaintiffs had standing, as beneficiaries, to sue the defen-
dants for their actions as coexecutors of the estate as it pertains to both
counts one and three. Count one, alleging breach of fiduciary duty by Mantell
and Novicki, and count three, alleging negligent misrepresentation by Man-
tell, both require the plaintiffs to have standing as beneficiaries to challenge
the actions taken by the coexecutors of the estate.
4
The will directed the trustees to distribute the property of each child’s
trust as follows: ‘‘(a) During the term of the trust, my Trustees shall distribute
so much of the income as they shall determine to be advisable to or for the
benefit of said child and said child’s descendants living from time to time
for their maintenance, education, and support. My Trustees shall consider
foremost the needs of said child and shall consult said child in making such
distributions; PROVIDED, HOWEVER, that my Trustees shall not be bound
to follow the advice of said child in making such distributions. Any income
not so distributed shall be accumulated and added to principal; (b) Upon
said child’s attaining the age of twenty-five (25) years, my Trustees shall
pay over to said child one-fourth (1/4) of the then remaining principal of
said trust; (c) Upon said child’s attaining the age of thirty (30) years, my
Trustees shall pay over to said child one-third (1/3) of the then remaining
principal of said trust; (d) Upon said child’s attaining the age of thirty-five
(35) years, my Trustees shall pay over to said child the principal then
remaining, absolutely; (e) PROVIDED, HOWEVER, that should the trust for
such child be established after an age when said child is entitled to a
mandatory payment of any of the principal of said trust, the payment of
principal hereinabove provided at such age shall be made immediately, as if
said trust had been established prior to said time; (f) PROVIDED FURTHER,
HOWEVER, that my Trustees, other than said child if said child shall be
so acting as a Trustee, shall have the power in their sole, absolute, and
uncontrolled discretion to distribute the principal of said trust to said child
from time to time, even to the extent of terminating said trust, if my said
Trustees determine such distribution or termination to be in the best inter-
ests of said child, but nothing herein contained shall entitle said child to
require such distribution or termination; (g) PROVIDED FURTHER, HOW-
EVER, that should such child die before receiving full distribution from
said trust, then I give, devise, and bequeath the remaining principal and
undistributed income of said trust fund to those of my descendants as said
child shall appoint in said child’s Last Will and Testament, either outright
or in trust; but if said child shall not so appoint, the remaining principal
and undistributed income shall pass to the descendants then living of said
child, per stirpes, absolutely; and in default of such descendants then living
of such child, to my descendants then living, per stirpes, absolutely. In the
event none of my descendants is then living, the remaining principal and
undistributed income [of] my residue shall pass to my spouse, TERESE M.
CERUZZI, if she is then living, but if she is not then living, the same shall
pass to my then living siblings, in equal shares, per stirpes; (h) PROVIDED
FURTHER, HOWEVER, that in case a portion of my estate is then being
held in trust for the benefit of any of my children or descendants, said
beneficiary’s share under the immediately preceding Subparagraph shall be
added to the principal of such trust instead of its being paid to said benefi-
ciary absolutely.’’ (Emphasis in original.)
5
On March 25, 2019, Mantell emailed Healey: ‘‘Our plan is to make a
distribution to you before the end of 2019 of $2,600,000.’’ Several months
later, Mantell’s intentions changed. In an email on July 30, 2019, Mantell
stated that, ‘‘[a]s to the distributions of the residue to [Healey] and [Ceruzzi],
we have also agreed with [our lenders] to not make any distributions from
the estate property. In addition to these direct restrictions, we have liquidity
covenants with [our lenders] which prevent us from making these distribu-
tions.’’ The record is unclear as to the justification for the $50,000 that was
distributed to Healey.
6
The defendants allegedly were unable to make distributions due to their
failure to secure language within the lender agreements entered into on
behalf of the estate that would have enabled the estate to make distributions
from the residual trust. Instead, such distributions were prohibited by the
lender agreements.
7
The defendants failed to create and fund the residual trust prior to the
estate becoming illiquid. The estate’s illiquidity was the result of several
business decisions the defendants made. Specifically, the defendants used
nearly $7 million of the estate’s assets to purchase insurance policies. On
behalf of the estate, the defendants also took on significant obligations
through their transactions with lenders.
8
The defendants’ principal brief states: ‘‘The trial court erred in concluding
that the plaintiffs have standing to sue [the defendants] as the coexecutors
of the estate for claims brought on behalf of the residuary trust.’’ The
defendants do not challenge on appeal the court’s conclusion that the plain-
tiffs had standing to sue the defendants as cotrustees of the residual trust.
9
Furthermore, the court’s conclusion regarding the plaintiffs’ standing to
bring counts one and three was not an alternative holding. See United States
v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S. Ct. 621, 68 L. Ed. 1110
(1924) (‘‘where there are two grounds, upon either of which [a court] may
rest its decision, and it adopts both, ‘the ruling on neither is obiter [dictum],
but each is the judgment of the court, and of equal validity with the other’ ’’);
see also Rosenthal Law Firm, LLC v. Cohen, 190 Conn. App. 284, 291–93,
210 A.3d 579 (2019) (contrasting nonbinding dicta with alternative holdings
that may be binding authority). The court’s determination that the plaintiffs
possessed standing was not an alternative ground upon which the court
was able to rest its decision to dismiss counts one and three because it
was a determination that militated in favor of jurisdiction and thus was
in contradiction to the court’s conclusion that it lacked subject matter
jurisdiction over the action. Thus, the court’s conclusion was neither neces-
sary to the ultimate conclusion nor an alternative holding and, thus, was
nonbinding dictum.
10
The court considered the defendants’ challenges to the court’s subject
matter jurisdiction in the order they were raised in the defendants’ motion
to dismiss. It is a better practice, however, to address first the issue that
disposes of the case. | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483540/ | J-S27027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTINA DELVALLE-TORRES :
:
Appellant : No. 2211 EDA 2021
Appeal from the Judgment of Sentence Entered September 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003535-2019
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2022
Appellant Justina Delvalle-Torres appeals from the judgment of
sentence imposed following her convictions for aggravated assault, conspiracy
to commit aggravated assault, possessing an instrument of crime (PIC), and
simple assault.1 Appellant challenges the sufficiency and weight of the
evidence, contends that the waiver of her right to jury trial was deficient, and
asserts that trial counsel was ineffective. We affirm.
The trial court summarized the factual history in this case as follows:
At or around 6:00 P.M. on April 23, 2019, Melvin Gonzalez
(hereinafter “Mr. Gonzalez”), the father of Appellant’s nephew,
traveled to the home of Appellant’s sister, Ashley Delvalle-Torres
in Philadelphia to pick up his son in accordance with a pre-existing
custody order. When Mr. Gonzalez arrived at the residence, he
encountered Appellant’s sister, Jalissa Delvalle. At this time, Mr.
Gonzalez was verbally harassed by Jalissa Delvalle. Following his
____________________________________________
1 18 Pa.C.S. §§ 2702(a), 903, 907(a), and 2701(a), respectively.
J-S27027-22
encounter with Jalissa Delvalle, Mr. Gonzalez received a phone call
from Alexander Rivera (hereinafter “Mr. Rivera”). Mr. Gonzalez
informed Mr. Rivera that Appellant’s sister had threatened to have
a group of men beat him up when he returned his son later that
night. Mr. Rivera agreed to meet Mr. Gonzalez at the location
where he would be dropping off his son.
At or around 8:00 P.M. on April 23, 2019, Mr. Gonzalez returned
to Appellant’s sister’s residence with the intent [to] drop off his
son. When Mr. Gonzalez arrived at the residence, he encountered
a group of individuals waiting outside, consisting of Appellant,
Appellant’s mother, Appellant’s two sisters, Appellant’s sister’s
roommate, and three unknown males. Mr. Gonzalez testified that
as soon as he exited the vehicle to retrieve his son from the rear
passenger side of the car, the three unknown males approached,
and an altercation immediately ensued. When Mr. Rivera arrived
to meet Mr. Gonzalez, he observed Mr. Gonzalez in a brawl with
three other males and was simply getting jumped. Upon
becoming aware of the fight between the four men, Mr. Rivera
attempted to break up the altercation and ultimately became
involved in the fracas. During the altercation, Mr. Rivera testified
that he tripped, fell, and tried to get back up. At this point, Mr.
Gonzalez observed Appellant raise a bat over her head and strike
Mr. Rivera in the head with the bat as he attempted to get up from
the ground. The altercation ended after Mr. Rivera began to bleed
from his head injury. Mr. Gonzales immediately drove Mr. Rivera
to Jefferson Torresdale Hospital for treatment of his injuries.
Detective Bartol interviewed Mr. Rivera at the hospital, where he
confirmed that as he was trying to break up the fight, he was hit
on the left side of his head with a hard object. The hospital records
show that Mr. Rivera was treated at Jefferson Torresdale Hospital
for a subdural hematoma, left front orbital fracture, concussion,
and laceration to scalp that required two stitches to close. Mr.
Rivera was discharged from the hospital on or around April 25,
2019. However, Mr. Rivera returned to the hospital on April 29,
2019, stating that he had a seizure-like activity the night before
and a fever for three days. Mr. Rivera was discharged from the
hospital on April 30, 2019, with a prescription for seizure
medication. Mr. Rivera had no prior history of seizures.
-2-
J-S27027-22
Trial Ct. Op., 1/11/22, at 2-4 (citations omitted and formatting altered).2
Following a non-jury trial, Appellant was found guilty of aggravated
assault, conspiracy to commit aggravated assault, PIC, and simple assault.
N.T., Trial , 2/10/21, at 96. On September 21, 2021, the trial court held
Appellant’s sentencing hearing. At the beginning of the hearing, Appellant
made an oral motion for extraordinary relief pursuant to Pa.R.Crim.P. 704(b)
and claimed that she obtained a new video of the altercation involving the
attack on Mr. Rivera, and this video recording was clearer than the video
shown at trial. N.T., 9/21/21, at 4. The Commonwealth responded that
although this video may be clearer, it is the same video that was viewed at
trial and does not amount to newly discovered evidence. Id. at 9. The trial
court then viewed the video. Id. at 11. After watching the video, the trial
court concluded that it did nothing to change its findings of fact, and the video
provided the same information that was received at trial. Id. at 15.
Accordingly, the trial court denied Appellant’s motion for extraordinary relief.
Id. The trial court proceeded to sentence Appellant to an aggregate term of
eighteen to thirty-six months of incarceration, followed by three years of
probation. Sentencing Order, 9/21/21, at 1-2.
____________________________________________
2Appellant’s sister, Ashley Delvalle-Torres was also charged and convicted as
a result of her involvement in the April 23, 2019 incident and attack on Mr.
Rivera. We address Ashley Delvalle-Torres’ appeal separately in a
memorandum filed at Superior Court docket 2330 EDA 2021.
-3-
J-S27027-22
Appellant filed a timely appeal on October 20, 2021. Both the trial court
and Appellant complied with Pa.R.A.P. 1925.3
On appeal, Appellant presents the following issues:
A. Whether the evidence was insufficient to sustain the verdict of
guilty because testimonial evidence was completely contradicted
by incontrovertible video evidence which wholly exonerates
[Appellant]?
B. Whether the verdict was against the weight of the evidence,
where video evidence shows another individual committing the
acts of which [Appellant] is accused?
C. Whether [Appellant] waived her right to a jury trial?
D. Whether [Appellant’s] counsel at trial was ineffective for failing
to call to testify an available fact witness?
E. Whether [Appellant’s] counsel at trial was ineffective for failing
to call to testify available fact witnesses where 1) the witnesses
existed; (2) the witnesses were available; (3) trial counsel was
informed of the existence of the witness or should have known of
the witnesses’ existence; (4) the witnesses were prepared to
cooperate and would have testified on appellant’s behalf; and (5)
the absence of the testimony prejudiced [Appellant]?
F. Whether [Appellant’s] counsel at trial was ineffective for failing
to point out clearly for the trial court video evidence which
contradicted in whole the government’s case?
Appellant’s Brief at 7-8.
____________________________________________
3 On October 21, 2021, the trial court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within twenty-one days. Appellant filed a timely Rule 1925(b) statement on
November 10, 2021. Appellant subsequently filed a separate Rule 1925(b)
statement on November 23, 2021. However, these Rule 1925(b) statements
are nearly identical, and we conclude that the issues Appellant presents in her
brief were raised in the timely Rule 1925(b) statement filed on November 10,
2021.
-4-
J-S27027-22
Sufficiency of the Evidence
In her first issue, Appellant contends that the evidence was insufficient
to sustain the guilty verdicts. Appellant’s Brief at 20-21. Appellant asserts
that “incontrovertible physical facts” render the verdicts unreliable. Id.
It is well settled that when an appellant challenges the sufficiency of the
evidence, the appellant’s Rule 1925(b) statement must specify the element or
elements upon which the evidence was allegedly insufficient in order to
preserve the issue for appeal. Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa. Super. 2009). Here, Appellant not only failed to specify which elements
she was challenging in her Rule 1925(b) statement, she also failed to specify
which convictions she was challenging. Accordingly, we conclude that
Appellant waived her challenge to the sufficiency of the evidence.4 See id.5
____________________________________________
4 We note that the trial court also concluded that Appellant waived her
challenge to the sufficiency of the evidence because she failed to articulate
which convictions or elements of those convictions the Commonwealth
allegedly failed to prove. See Trial Ct. Op., 1/11/22, at 4. Nevertheless, the
trial court proceeded to provide an alternate, yet thorough, analysis of each
of Appellant’s crimes and the sufficiency of the evidence supporting each
conviction. Were we to reach the merits of Appellant’s challenge to the
sufficiency of the evidence, we would affirm on this alternate basis set forth
in the trial court’s opinion. See id. at 4-8.
5 We add that in the argument section of her brief, Appellant sets forth only a
general claim that the evidence was insufficient. See Appellant’s Brief at 20.
However, Appellant’s argument is undeveloped and does not provide citation
to any relevant legal authority. These deficiencies provide an additional basis
upon which to find Appellant’s challenge to the sufficiency of the evidence
waived. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(stating that “where an appellate brief ... fails to develop the issue in any ...
meaningful fashion capable of review, that claim is waived[,]” and “[i]t is not
(Footnote Continued Next Page)
-5-
J-S27027-22
Weight of the Evidence
In her next issue, Appellant contends that the verdict was against the
weight of the evidence and a new trial should be granted. Appellant claims
that video evidence exonerates her and that the verdict must be reversed.
Appellant’s Brief at 22-23.
When reviewing a weight claim, our standard of review is as follows:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. On appeal, our purview
is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence. An appellate court may not reverse a
verdict unless it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(citations omitted and formatting altered). An appellant wishing to challenge
the weight of the evidence must properly preserve her claim for review, and
____________________________________________
the role of this Court to formulate [an a]ppellant’s argument[.]”) (citations
omitted)); see also Pa.R.A.P. 2119(a) (providing that an appellant must
support her argument with discussion and citation to authorities).
-6-
J-S27027-22
the issue must be preserved orally prior to sentencing, by a written motion
before sentencing, or in a post-sentence motion. See Pa.R.Crim.P. 607(A).
The Commonwealth contends that Appellant failed to properly preserve
this issue, and it is, therefore, waived on appeal. Commonwealth’s Brief at 8-
9. The Commonwealth argues although Appellant made a motion for
extraordinary relief under Pa.R.Crim.P. 704(B) at the start of her sentencing
hearing, a motion under Rule 704(B) only permits the trial court hear a pre-
sentence oral motion for a judgment of acquittal or for a new trial under
extraordinary circumstances and when the interests of justice require. Id. at
9. The Commonwealth asserts that such motions are not a substitute for filing
a post-sentence motion pursuant to Rule 607(A). Id. (citing Commonwealth
v. Wilson, 227 A.3d 928, 937 (Pa. Super. 2020)). The Commonwealth
concludes that Appellant waived her challenge to the weight of the evidence
by failing to preserve the issue pursuant to Rule 607(A), and Appellant’s Rule
704(B) motion did not preserve any issues for post-sentence consideration or
appeal. See id. (citing Pa.R.Crim.P. 704(B)(3); Commonwealth v. Woods,
909 A.2d 372, 378 (Pa. Super. 2006)).
We agree with the Commonwealth. The comment to Rule 704 provides
that a motion for extraordinary relief made pursuant to Rule 704(B) is not
sufficient to preserve an issue for appeal. Pa.R.Crim.P. 704(B)(3), cmt. 6
____________________________________________
6 The comment states, in relevant part, as follows:
(Footnote Continued Next Page)
-7-
J-S27027-22
Further, a motion for extraordinary relief pursuant to Rule 704(B) is not an
alternative to presenting the issue in a post-sentence motion.
Commonwealth v. Askew, 907 A.2d 624, 627 (Pa. Super. 2006) (citing
Pa.R.Crim.P. 704(B)(3), cmt.). Because Appellant failed to properly preserve
her challenge to the weight of the evidence pursuant to Rule 607, Appellant’s
weight claim is waived. See id.; see also Wilson, 227 A.3d at 937.
In any event, despite Appellant’s failure to file a post-sentence motion,
we note that the trial court addressed Appellant’s challenge to the weight of
the evidence. See Trial Ct. Op., 1/11/22, at 9. The trial court found that the
verdict was not so contrary to the evidence as to shock one’s sense of justice.
Id. The court considered all of the evidence, including the video recording
that captured part of the assault. The court noted that it was free to believe
some, all, or none of the evidence, and it found Mr. Rivera and Mr. Gonzalez
were credible witnesses. Id. In light of the credible testimony provided by
Mr. Rivera and Mr. Gonzalez, the trial court concluded that the weight of the
evidence supported the verdict. Id. Were we to reach Appellant’s challenge
____________________________________________
a motion for extraordinary relief is neither necessary nor sufficient
to preserve an issue for appeal. The failure to make a motion for
extraordinary relief, or the failure to raise a particular issue in such
a motion, does not constitute a waiver of any issue. Conversely,
the making of a motion for extraordinary relief does not, of itself,
preserve any issue raised in the motion, nor does the judge’s
denial of the motion preserve any issue.
Pa.R.Crim.P. 704(B)(3), cmt.
-8-
J-S27027-22
to the weight of the evidence, we would conclude that the trial court did not
abuse its discretion in concluding that Appellant’s weight claim was meritless,
and that a new trial was not warranted. See id.
Waiver of Jury Trial
In her next issue, Appellant asserts that she did not knowingly and
voluntarily waive her right to a jury trial. Appellant’s Brief at 24-28. Appellant
contends that the trial court’s colloquy on this issue was inadequate. Id. at
25.
The Commonwealth responds that Appellant entered a knowing and
voluntary waiver of her right to a jury trial. Appellant’s Brief at 11. The
Commonwealth asserts that Appellant completed a written jury trial waiver
form and confirmed on the record that she waived her right to a jury trial in
an oral colloquy. Id.
A defendant may waive her right to a jury trial and proceed to trial
before a judge, provided that her waiver is knowing and voluntary.
Commonwealth v. Houck, 948 A.2d 780, 787 (Pa. 2008). To be valid, a
jury waiver must be knowing and voluntary, and the defendant must be aware
of the essential protections inherent to a jury trial. See Commonwealth v.
Mallory, 941 A.2d 686, 696 (Pa. 2008). The essential protections “basic to
the concept of a jury trial, are the requirements that the jury be chosen from
members of the community (a jury of one’s peers), that the verdict be
unanimous, and that the accused be allowed to participate in the selection of
the jury panel.” Id. at 696-87 (citation omitted and formatting altered).
-9-
J-S27027-22
Additionally, our Rules of Criminal Procedure provide that before a
defendant may waive their right to a jury trial, the trial court must:
ascertain from the defendant whether this is a knowing and
intelligent waiver, and such colloquy shall appear on the record.
The waiver shall be in writing, made a part of the record, and
signed by the defendant, the attorney for the Commonwealth, the
judge, and the defendant’s attorney as a witness.
Pa.R.Crim.P. 620.
Before we may address the merits of Appellant’s claim, we must
determine if Appellant properly raised and preserved this issue on appeal. The
trial court concluded that Appellant waived this issue for failing to raise it
before the trial court. Trial Ct. Op., 1/11/22, at 9-10. Upon review, we agree.
The record reveals that Appellant presented this issue for the first time
in her Rule 1925(b) statement. It is well settled that issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.
Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003); see also
Pa.R.A.P. 302(a). Moreover, a party cannot rectify the failure to preserve an
issue by raising it for the first time in a Rule 1925(b) statement. Id. For
these reasons, we agree with the trial court that Appellant waived this issue.
See id.; see also Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884
(Pa. Super. 2019) (stating “issues, even those of constitutional dimension, are
waived if not raised in the trial court.”); Commonwealth v. Gumpert, 512
A.2d 699, 703 (Pa. Super. 1986) (providing that the validity of a jury waiver
is subject to principles of waiver on appeal).
- 10 -
J-S27027-22
We note, however, that the trial court explained that even if Appellant
had preserved this issue, she is entitled to no relief as her jury trial waiver
was knowing and voluntary. Were we to reach the merits of this claim of
error, we would affirm on the basis of the trial court’s opinion. See Trial Ct.
Op., 1/11/22, at 10-11.
Ineffectiveness of Trial Counsel
In Appellant’s three remaining issues, she raises claims alleging
ineffective assistance of trial counsel. Appellant’s Brief at 29-41.7 Appellant
contends that trial counsel was ineffective for failing to call a witness and
argue that video evidence contradicted the Commonwealth’s case. See id. at
29, 35, and 40.
The Commonwealth responds that Appellant’s issues should not be
addressed on direct appeal. Specifically, the Commonwealth contends that
Appellant has not satisfied any exception to the rule requiring claims of
ineffective assistance of counsel to be raised in a collateral proceeding under
the Post Conviction Relief Act (PCRA).8 Commonwealth’s Brief at 12-13.
Our Supreme Court has held that as a general rule, claims of ineffective
assistance of counsel must await collateral review under the PCRA.
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). The Holmes
____________________________________________
7 In her statement of questions involved, Appellant stated six questions, which
she listed as issues A, B, C, D, E, and F. Appellant’s Brief at 7-8. However,
in the Argument section of the brief, issue “F” is referred to as issue “G.” Id.
at 40. We conclude that this was merely a typographical error.
8 42 Pa.C.S. §§ 9541-9546.
- 11 -
J-S27027-22
Court recognized two exceptions to the general rule whereby claims of
ineffective assistance of counsel may be raised and addressed on direct appeal
“both falling within the discretion of the trial judge[:]” (1) there are
extraordinary circumstances in which trial counsel’s “ineffectiveness is
apparent from the record and meritorious to the extent that immediate
consideration best serves the interests of justice” or (2) “there is good cause
shown” and the defendant knowingly and expressly waives his entitlement to
seek subsequent PCRA review of his conviction and sentence). Id. at 563-64.
Subsequently, our Supreme Court recognized an additional exception
permitting courts “to address claims challenging trial counsel’s performance
where the defendant is statutorily precluded from obtaining subsequent PCRA
review.” Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018).9
Here, however, we agree with the trial court’s conclusions that
Appellant’s claims of ineffectiveness were not apparent from the record,
meritorious, nor did her claims rise to the level of requiring immediate
consideration in the interests of justice. See Holmes, 79 A.3d at 563.
____________________________________________
9 We acknowledge that there is an additional limited circumstance where a
defendant may raise a claim of ineffective assistance of counsel outside of a
PCRA petition. This occurs where a defendant is litigating a first PCRA petition,
and the defendant alleges PCRA counsel’s ineffectiveness. In that situation,
the defendant may raise a claim of PCRA counsel’s ineffectiveness at the first
opportunity, even if on appeal. See Commonwealth v. Bradley, 261 A.3d
381, 405 (Pa. 2021). However, it is undisputed that at this juncture, Appellant
has not pursued PCRA relief nor obtained PCRA counsel. Accordingly,
Appellant can have no claim of PCRA counsel’s ineffectiveness in this direct
appeal, and the narrow circumstance discussed in Bradley is inapplicable.
See id.
- 12 -
J-S27027-22
Rather, the trial court concluded that Appellant’s claims must await review
under the PCRA. See Trial Ct. Op., 1/11/22, at 11-12. Additionally, Appellant
did not expressly waive her right to PCRA review. See Holmes, 79 A.3d at
564. Further, Appellant is not statutorily barred from seeking PCRA relief.
See Delgros, 183 A.3d at 361.10 However instantly, none of the exceptions
apply to raise these matters on direct appeal. Therefore, we conclude that
Appellant’s ineffectiveness claims cannot be considered on direct appeal, and
we dismiss these claims without prejudice to Appellant’s right to raise them in
a timely petition under the PCRA.
Judgment of sentence affirmed.
____________________________________________
10 In Delgros, our Supreme Court “granted allowance of appeal to determine
whether a defendant, who is ineligible for statutory collateral review because
he was sentenced to pay a fine without incarceration or probation, may obtain
review of ineffective assistance of counsel claims presented in post-sentence
motions filed in the trial court.” Delgros, 183 A.3d at 353. Because the
appellant in Delgros was sentenced only to a fine, he was ineligible to seek
relief under the PCRA. Id. at 354-55 (citing 42 Pa.C.S. § 9543). The Delgros
Court explained that under the eligibility requirements of Section 9543(a), a
petitioner must be currently incarcerated, on probation, or on parole, and it
precluded PCRA relief for petitioners sentenced only to pay a fine. Id. at 355.
Here, however, Appellant was sentenced September 21, 2021 to a period of
eighteen to thirty-six months of incarceration, followed by three years of
probation. Sentencing Order, 9/21/21, at 1-2. Accordingly, Appellant is not
statutorily precluded from relief under the PCRA, and the exception in Delgros
does not apply.
- 13 -
J-S27027-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
- 14 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483542/ | J-S30005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CONFESOL PADUANI :
:
Appellant : No. 553 EDA 2022
Appeal from the PCRA Order Entered January 24, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0002194-2018
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 14, 2022
Appellant, Confesol Paduani, appeals from the January 24, 2022 order
entered in the Court of Common Pleas of Monroe County, denying his petition
for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Appellant contends the PCRA court erred in
dismissing his petition because trial counsel, inter alia, failed to file a direct
appeal, failed to object to acts that occurred outside the Commonwealth, and
failed to object to Appellant being charged with and sentenced for multiple
conspiracy offenses. Following review, we affirm.
The PCRA court provided the following factual background and
procedural history:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S30005-22
In 2018, [Appellant] and his girlfriend, Cynthia Delgado, were
charged with various crimes after kidnapping a minor child and
transporting him across state lines to commit a sex act. Following
a jury trial which occurred from January 14 to January 17, 2020,
the jury found [Appellant] guilty of Kidnapping to Facilitate a
Felony, Unlawful Contact with a Minor—Sexual Offense,
Interference with Custody of a Child, Endangering the Welfare of
a Child, Luring Child into Motor Vehicle, Conspiracy—Kidnap to
Facilitate a Felony, Conspiracy—Intimidation of Witness/Victim to
Withhold Testimony, Conspiracy—Unlawful Contact with a Minor—
Sexual Offense, Conspiracy—Interference with Custody of a Child,
and Conspiracy—Endangering the Welfare of a Child.
[Appellant] filed an application to represent himself at the
sentencing hearing. However, after the court’s instruction at the
sentencing hearing that he would be held to the same standard as
an attorney if he did so, [Appellant] proceeded with counsel.
[Appellant] was sentenced on June 19, 2020, to an aggregate
period of incarceration of 9 to 18 years, to be followed by 6 years
of probation. On June 25, 2020, at [Appellant’s] request, his trial
counsel, James Fuller, Esq., filed a motion to withdraw his
appearance. This court discharged Attorney Fuller by Order on
July 6, 2020 and advised [Appellant] that he had thirty days from
June 19, 2020 to file an appeal with the Pennsylvania Superior
Court. [Appellant] took no further appellate action.
[Appellant] filed a pro se PCRA petition on July 20, 2020 which
was amended by his counsel on May 20, 2021 [asserting ten
claims of trial counsel ineffectiveness].
PCRA Court Opinion, 1/24/22, at 1-3.
The PCRA court conducted a hearing on September 20, 2021. Following
the submission of briefs on behalf of Appellant and the Commonwealth, the
court issued an order on January 24, 2022, denying Appellant’s petition. This
timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
-2-
J-S30005-22
In this appeal, Appellant asks us to consider eight issues, which we have
reordered for ease of discussion as follows:
1. Did the trial court commit reversible error when it failed to find
trial counsel ineffective for failing to file an appeal when requested
and for the trial court’s failure to reinstate Appellant’s direct
appellate rights?
2. Did the trial court commit reversible error when it failed to find
trial counsel ineffective for permitting acts outside the
Commonwealth to be introduced at trial?
3. Did the trial court commit reversible error when it failed to find
trial counsel ineffective for not objecting to an inappropriate
duplication of conspiracy charges?
4. Did the trial court commit reversible error when it failed to find
trial counsel ineffective for failure to call exculpatory witnesses?
5. Did the trial court commit reversible error when it failed to find
trial counsel ineffective for failure to call expert witnesses?
6. Did the trial court commit reversible error when it failed to find
trial counsel ineffective for failure to present a mental illness
defense?
7. Did the trial court commit reversible error when it failed to find
trial counsel ineffective for failure to object to inflammatory
comments by the prosecution?
8. Did the trial court commit reversible error when it denied
Appellant’s petition pursuant to [the PCRA]?
Appellant’s Brief at 2-3 (some capitalization omitted).
On appeal from the denial of a PCRA petition, we “examin[e] whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012) (citation omitted). “Our scope of review is limited
-3-
J-S30005-22
to the findings of the PCRA court and the evidence of record, viewed in the
light most favorable to the party who prevailed in the PCRA court
proceeding.” Id.
Appellant frames each of his issues in terms of “trial court error,” with
each of the first seven issues asserting an underlying claim of trial counsel
ineffectiveness. We examine these issues in terms of the underlying
ineffectiveness claims. With respect to ineffectiveness claims, our Supreme
Court has stated:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 596 Pa.
119, 941 A.2d 655, 664 (2007). To overcome this presumption,
a petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on
appeal. See Commonwealth v. Natividad, 595 Pa. 188, 938
A.2d 310, 322 (2007) (explaining that “appellants continue to
bear the burden of pleading and proving each of
the Pierce[1] elements on appeal to this Court”). A petitioner’s
failure to satisfy any prong of this test is fatal to the
claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
____________________________________________
1 Commonwealth v Pierce, 786 A.2d 203, 213 (Pa. 2001) (reiterating the
well-settled elements of the ineffectiveness test, as rephrased in Cooper and
quoted in this excerpt from Wholaver).
-4-
J-S30005-22
In his first issue, Appellant contends that trial counsel was ineffective
for failing to file a direct appeal. Citing Commonwealth v. Lantzy, 736 A.2d
564, 571 (Pa. 1999), Appellant correctly explains that counsel will be found
ineffective per se “where the defendant established that he requested counsel
to file a direct appeal and counsel disregarded the request.” Appellant’s Brief
at 15. However, the PCRA court recognized that “[b]efore a court will find
ineffectiveness of trial counsel for failing to file a direct appeal, Appellant must
prove that he requested an appeal and that counsel disregarded this request.”
PCRA Court Rule 1925(a) Opinion, 3/7/22, at 3 (quoting Commonwealth v.
Touw, 781 A.2d 1250, 1254 (Pa. Super. 2001)).
Here, the trial court imposed judgment of sentence on June 19, 2020.
As the PCRA court explained:
Although [Appellant] sent a letter to Attorney Fuller on June 20,
2020 in which he asked Attorney Fuller to file a direct appeal, this
letter also requested that Attorney Fuller immediately withdraw as
counsel so that [Appellant] could file his appeal pro se. Attorney
Fuller promptly filed a motion to withdraw and was discharged as
counsel on July 6, 2020. The July 6, 2020 order advised
[Appellant] that he had thirty days from June 19, 2020 to file an
appeal with the Pennsylvania Superior Court. [Appellant] failed
to do so. [Appellant’s] own error cannot be remedied through a
PCRA petition.
Id. at 3-4 (references to court filings omitted). Despite the admonition from
the trial court that he had thirty days from June 19 to file an appeal, Appellant
did not file a pro se notice of appeal by July 19, 2020. Instead, Appellant filed
a PCRA petition on July 20, 2020, complaining that his former counsel was
-5-
J-S30005-22
ineffective for failing to file a notice of appeal.2 Appellant’s first issue clearly
lacks arguable merit. Having failed the first prong of the Pierce test, and
because failure to satisfy any prong is fatal to a PCRA claim, Appellant’s first
issue fails.
Appellant next argues trial counsel ineffectiveness for failure to object
to testimony relating to criminal acts that occurred outside the
Commonwealth. As the PCRA court observed, Appellant’s allegation is easily
contradicted by the transcript from Appellant’s trial, including the following
excerpt quoted in the PCRA court’s Rule 1925(a) opinion.
MR. FULLER: Your Honor, I’m going to object. Can we approach?
THE COURT: Yes.
MR. FULLER: My objection officially is relevance because none of
this happened in Pennsylvania, let alone Monroe County. The
testimony was that they were in South Carolina. They may be in
North Carolina, South Carolina. We don’t know, but we do know
they’re not in Pennsylvania, let alone Monroe County. My
objection is as to relevance because it’s not relevant to any crime
that happened in Monroe County.
PROSECUTOR: Your Honor, it is relevant to a crime that happened
in Monroe County because we charged them with kidnapping with
the intent to facilitate a felony. The felony is having sex with a
minor child.
THE COURT: I’m going to overrule the objection.
____________________________________________
2 Although Appellant suggests that Attorney Fuller was counsel of record for
Appellant “[a]t the time of trial, the sentencing and for the thirty (30) days
that followed,” Appellant’s Brief at 18 (emphasis added), the record confirms
that counsel was discharged by order entered on July 6, 2020, thirteen days
before the deadline for filing a notice of appeal.
-6-
J-S30005-22
PCRA Court Rule 1925(a) Opinion, 3/7/22, at 4 (quoting Notes of Testimony
(“N.T.”), Trial, 1/14/20, at 156-57). See also N.T., Trial, 1/15/20, at 48-50;
93-100. The PCRA court determined that trial counsel “objected to evidence
of acts occurring outside of Pennsylvania on multiple occasions. This claim is
baseless.” Id. at 5.
Our review of the record supports the PCRA court’s conclusion. Because
Appellant’s second issue lacks arguable merit, his claim fails.
In his third claim, Appellant argues trial counsel ineffectiveness for not
objecting to “an inappropriate duplication of conspiracy charges.” Appellant’s
Brief at 3. The PCRA court rejected this argument, noting that a petitioner
must prove he was prejudiced by counsel’s action or inaction. PCRA Court
Rule 1925(a) Opinion, 3/7/22, at 5.
Here, the Commonwealth countered Appellant’s claim, noting there had
been “no showing of prejudice with regard to the charging of multiple
conspiracy counts. Most significantly, a review of the June 19, 2020
sentencing order reveals that the only count of conspiracy that [Appellant]
received a consecutive sentence on was Count 7[.] All other conspiracy counts
. . . were run concurrently.” Commonwealth Brief in Opposition to Defendant’s
PCRA Petition, 11/17/21, at 8.3 The PCRA court similarly noted that Appellant
____________________________________________
3 The Commonwealth did not file a brief with this Court.
-7-
J-S30005-22
received a consecutive sentence, i.e., a sentence consecutive to other non-
conspiracy counts, on only one count, commenting:
[Appellant] has failed to show he was prejudiced by this charging
strategy; he received a sentence equivalent to being charged with
one general count of conspiracy. Further, even if [Appellant] was
instead charged with one general count of conspiracy with multiple
objectives, all evidence introduced at trial would still have been
admissible to substantiate [Appellant’s] multiple objectives. Thus,
[Appellant] cannot show prejudice as to the admission of evidence
substantiating the conspiracy or as to the sentence imposed for
the same.
PCRA Court Rule 1925(a) Opinion, 3/7/22, at 5. We agree. Because failure
to satisfy any prong of the Pierce test is fatal to an ineffectiveness claim,
Appellant’s failure to satisfy the prejudice prong defeats his claim with respect
to multiple conspiracy charges and sentences.
In his fourth and fifth claims, Appellant contends trial counsel was
ineffective for failing to call exculpatory and expert witnesses, respectively.
The PCRA court did not address these issues in its opinion in light of Appellant’s
failure to address them in his reply memorandum filed with the PCRA court.
However, the court did announce that “the court finds them without merit.”
PCRA Court Rule 1925(a) Opinion, 3/7/22, at 5.4 Although Appellant did not
address the issues in his reply memorandum, he did discuss them in his
original memorandum filed with the PCRA court and, more importantly,
____________________________________________
4 The court’s general pronouncement regarding lack of merit refers not only
to Appellant’s fourth and fifth issues, but also to his sixth and seventh issues,
which will be discussed infra.
-8-
J-S30005-22
preserved them in his Rule 1925(b) statement and discussed them in the brief
filed with this Court. Therefore, we shall address them.
Regarding exculpatory witnesses, Appellant cites cases that refer to the
overwhelming need for character evidence “in a case such as this,” Appellant’s
Brief at 24, and argues that counsel’s failure to subpoena exculpatory
witnesses provided to counsel by Appellant constitutes ineffectiveness.
However, as the Commonwealth recognizes, counsel “did attempt to contact
and subpoena any witness identified by [Appellant], however, none
responded.” Commonwealth Brief in Opposition to Defendant’s PCRA Petition,
11/17/21, at 5. See also N.T., PCRA Hearing, 9/20/21, at 9-10. Moreover,
as the Commonwealth observed, Appellant failed to establish that any
witnesses existed, that they were available and willing to testify for the
defense, and that the absence of their testimony was so prejudicial as to have
denied Appellant a fair trial. Commonwealth Brief in Opposition to Defendant’s
PCRA Petition, 11/17/21, at 5 (citing Commonwealth v. Johnson, 966 A.2d
523, 536 (Pa. 2009) (explaining petitioner’s burden to satisfy requirements of
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), with
respect to potential witness claims)). Therefore, Appellant’s fourth claim lacks
merit.
Appellant’s fifth issue claims ineffectiveness for failure to call an expert
witness, in this case, clinical and forensic psychologist, Frank M. Dattilio,
Ph.D., who conducted a psychological and sexual risk assessment of
-9-
J-S30005-22
Appellant. Appellant notes that to satisfy the arguable merit prong of the
Pierce test, a petitioner must prove that the expert was available and willing
to testify, that counsel should have known about the witness, and that the
petitioner was prejudiced by the absence of testimony. Appellant’s Brief at
25. Appellant then cites a number of cases in which the failure to call an
expert prejudiced the defendants. Id. at 25-27. However, his “argument”
does not go beyond mention of the cited cases. Nowhere does Appellant offer
any proof or even any suggestion that the failure to call Dr. Dattilio prejudiced
Appellant. At a minimum, Appellant has failed to satisfy the prejudice prong
of the Pierce test.
Moreover, as the Commonwealth correctly contends,
Attorney Fuller did not subpoena Dr. Dattilio or seek to admit
evidence of mental illness as neither would have been relevant to
or admissible at trial. Dr. Dattilio determined that [Appellant] was
competent to stand trial, and said conclusion was supported [in a
more recent] evaluation. Apart from competency, the only other
appropriate mental health evidence to be admitted during the trial
would address a diminished capacity defense. However,
diminished capacity is an extremely limited defense [available
under circumstances that do not exist in this case].
Commonwealth Brief in Opposition to Defendant’s PCRA Petition, 11/17/21, at
6 (citation omitted; cleaned up). Because Appellant is unable to demonstrate
that he was prejudiced by the failure to call Dr. Dattilio as an expert witness,
his fifth claim fails.
Appellant’s sixth issue is related to the issue involving Dr. Dattilio. In
this iteration, Appellant contends that trial counsel was ineffective for failing
- 10 -
J-S30005-22
to present a mental illness defense. We note that Attorney Fuller testified that
whether mental health issues (or sexual issues with respect to possible
sexually transmitted diseases) “would have any play in anything would not be
the ultimate distinction of innocence or guilt.” N.T., PCRA Hearing, 9/20/21,
at 9. Perhaps more importantly, Appellant has not explained how he was
prejudiced by the lack of testimony concerning any mental illness. In fact,
Appellant has failed to develop the issue at all. In his brief, Appellant merely
suggests that “[t]rial counsel ignored admissible evidence tending to establish
a viable defense. To that end, trial counsel failed to present evidence of
[Appellant’s] mental illness.” Appellant’s Brief at 27. Appellant then cites
cases with parenthetical indications of their holdings of ineffectiveness but
does not explain in what way trial counsel was ineffective with regard to
Appellant’s alleged mental illness, or even what mental health issue was
involved. Appellant has failed to develop this issue and has failed to prove
that he was prejudiced by the absence of mental illness evidence. Appellant’s
sixth issue fails.
In his seventh issue, Appellant contends trial counsel was ineffective for
failing to object to “prejudicial and inappropriate remarks made by the
Commonwealth during the closing arguments.” Appellant’s Brief at 28. Once
again, Appellant has failed to develop this issue in any meaningful way but
instead simply cites case law regarding closing arguments.
- 11 -
J-S30005-22
In his brief, Appellant does not identify any offensive language
attributable to counsel for the Commonwealth in her closing argument. In the
course of the PCRA hearing, Appellant’s counsel did ask Attorney Fuller why
he did not object to the prosecutor’s “overuse” of the term “predator” when
describing Appellant and his co-defendant, noting that the term was used “no
less than 13 times during her closing argument.” N.T., PCRA Hearing,
9/20/21, at 14-15. Trial counsel responded that the prosecution may argue
what she wants in closing. He explained, “I wasn’t going to object to a closing
unless [it was] something I thought was egregious. If that was the theme of
her closing, I wasn’t going to object to it.” Id. at 15. Counsel provided a
reasonable basis for not objecting to remarks made by the prosecution in
closing. As such, Appellant is not able to satisfy the second prong of the
Pierce test. Even if the issue did not fail for being undeveloped, it would
nevertheless fail.
In his final issue, Appellant presents the all-encompassing claim of trial
court error for denying Appellant’s petition. Appellant did not separately
address this issue in his brief. Instead, Appellant provided case law and a
framework for reviewing a PCRA court’s denial of a petition and then discussed
each of the seven claims of ineffectiveness discussed above. As Appellant
correctly recognized, this Court’s review of a PCRA court’s determination is
limited to whether the court’s determination is supported by the record and is
free of legal error. Based on our review, we find the PCRA court’s factual
- 12 -
J-S30005-22
findings have support in the record and that its legal conclusions are free of
error. Therefore, we shall not disturb the PCRA court’s denial of Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
- 13 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483544/ | J-S34021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MITCHELL CRAIG LITZ :
:
Appellant : No. 393 WDA 2022
Appeal from the PCRA Order Entered March 3, 2022
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0001495-2015
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 14, 2022
Mitchell Craig Litz (Appellant) appeals pro se from the order dismissing
his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On January 6, 2016, Appellant pled guilty to aggravated assault by
vehicle while driving under the influence (Count One), accidents involving
death or personal injury (Count Three), driving under the influence – highest
rate of alcohol (Count Six), and driving while operating privilege suspended
or revoked. On March 1, 2016, the trial court sentenced Appellant to an
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34021-22
aggregate 102 – 204 months of incarceration.1 This Court affirmed.
Commonwealth v. Litz, 169 A.3d 1180 (Pa. Super. 2017) (unpublished
memorandum). Appellant did not seek allowance of appeal.
Appellant filed his first PCRA petition on June 6, 2017. The PCRA court
denied relief and Appellant appealed. This Court quashed the appeal based
on Appellant’s substantially defective, pro se brief. Commonwealth v. Litz,
193 A.3d 1115 (Pa. Super. 2018) (unpublished memorandum) (PCRA court
appointed counsel, but after conducting a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the PCRA court granted
Appellant’s request to proceed pro se). The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal, nunc pro tunc.
Commonwealth v. Litz, 146 WM 2018, 2018 Pa. LEXIS 5720 (Pa. 2018).2
On February 7, 2022, Appellant filed the instant pro se PCRA petition,
his second, titled as a “Motion to Correct Illegal Sentence.”3 Appellant claimed
his sentence at Count Three was illegal because it should have merged with
his sentence at Count One. Three days later, the PCRA court issued
____________________________________________
1The trial court sentenced Appellant to 60 - 120 months at Count One, and a
consecutive 42 - 84 months at Count Three; there was no further sentence at
Count Six because it merged with Count One.
2Appellant also sought relief in federal court. See, e.g., Litz v. Erie Cty.
DA, 2020 U.S. Dist. LEXIS 85378 (W.D. Pa. 2020).
3 “[A]ny petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition.” Commonwealth v. Jackson, 30 A.3d 516, 521
(Pa. Super. 2011) (citation omitted).
-2-
J-S34021-22
Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing.
The PCRA court opined that it lacked jurisdiction because the petition was
untimely, and Appellant failed to invoke an exception to the PCRA’s timeliness
requirement. On March 2, 2022, Appellant filed a pro se response to the Rule
907 notice. The PCRA court dismissed the petition the next day. Appellant
timely filed this appeal.
On April 5, 2022, the PCRA court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal (Rule 1925(b)
Order).4 On May 4, 2022, the PCRA court filed an opinion adopting the
reasoning stated in its Rule 907 notice, and observing that Appellant had not
filed a Rule 1925(b) concise statement.
On May 31, 2022, Appellant filed in this Court a pro se “Motion to
Proceed, Nunc Pro Tunc.” Appellant sought permission to file a Rule 1925(b)
statement, nunc pro tunc, claiming he never received a copy of the Rule
1925(b) Order; Appellant also attached a Rule 1925(b) statement to his
Motion. On June 10, 2022, this Court remanded for the PCRA court to
determine whether Appellant received a copy of the Rule 1925(b) Order. The
PCRA did not respond.5
____________________________________________
4 On April 20, 2022, Appellant filed a pro se “Motion to Correct Illegal
Sentence.” The PCRA court denied the motion the next day.
5We conclude there was a breakdown in the court process. Accordingly, we
will not penalize Appellant for his failure to comply with the Rule 1925(b)
-3-
J-S34021-22
On appeal, Appellant presents the following questions:
1) Was the sentence illegal as per merger law in 42 Pa.C.S. §
9765?
2) Did the [PCRA] court err since all [of Appellant’s] crimes …
arose from a single criminal act?
Appellant’s Brief at 4 (unnumbered).
We first address jurisdiction. See Commonwealth v. Albrecht, 994
A.2d 1091, 1093 (Pa. 2010) (the merits of a PCRA petition cannot be
addressed unless the PCRA court has jurisdiction; jurisdiction does not exist if
the PCRA petition is untimely); see also Commonwealth v. Chester, 895
A.2d 520, 522 (Pa. 2006) (“If a PCRA petition is untimely, neither this Court
nor the [PCRA] court has jurisdiction over the petition.”) (citation omitted). A
PCRA petition must be filed within one year of the date the judgment of
sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1).
Appellant’s judgment of sentence became final in May 2017; thus, his
PCRA petition filed on February 7, 2022, is untimely. Pennsylvania courts may
consider an untimely PCRA petition if the petitioner pleads and proves a
statutory exception set forth in 42 Pa.C.S.A. § 9545(b)(1). “[I]t is the
petitioner’s burden to plead in the petition and prove that one of the
____________________________________________
order. See Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super.
2015) (an appellant “should not be precluded from appellate review based on
what was, in effect, an administrative breakdown on the part of the trial
court.”); Commonwealth v. Davis, 867 A.2d 585, 588 (Pa. Super. 2005)
(en banc).
-4-
J-S34021-22
exceptions applies. That burden necessarily entails an acknowledgement
by the petitioner that the PCRA petition under review is untimely but
that one or more of the exceptions apply.” Commonwealth v. Crews, 863
A.2d 498, 501 (Pa. 2004) (emphasis in original; citations omitted). Appellant
has not met his burden. Appellant has not acknowledged that his PCRA
petition is untimely, nor has he invoked a timeliness exception. See id. Thus,
the PCRA court properly dismissed Appellant’s petition. Albrecht, supra.
In his reply brief, Appellant argues the PCRA court had jurisdiction
because his claim involves the legality of his sentence, and an illegal sentence
claim cannot be waived. Appellant’s Reply Brief at 1 (citing Commonwealth
v. Passarelli, 789 A.2d 708, 714 (Pa. Super. 2001) (“Inquiry into the legality
of a sentence is a non-waivable matter.”) (overruled by Commonwealth v.
Spruill, 80 A.3d 453, 463 n.13 (Pa. 2013)). We disagree.
Although “challenges to the legality of a sentence cannot be waived … a
trial court must first have jurisdiction to address the illegality ….”
Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (emphasis added)
(citing Robinson v. Pa. Board of Probation and Parole, 582 A.2d 857, 860
(Pa. 1990) (“Jurisdiction is the predicate upon which a consideration of the
merits must rest.”); see also Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999) (“Although legality of sentence is always subject to review within
the PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.”).
-5-
J-S34021-22
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
-6- | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483543/ | J-S17039-22
J-S17040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
EDDIE BENSON MILAN
Appellant No. 2413 EDA 2021
Appeal from the Judgment of Sentence Entered October 26, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0003108-2019
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
EDDIE BENSON MILAN
Appellant No. 2414 EDA 2021
Appeal from the Judgment of Sentence Entered October 26, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0003459-2019
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 14, 2022
Appellant Eddie Benson Milan appeals from the October 26, 2021,
judgments of sentence entered in the Court of Common Pleas of Chester
County (“trial court”), following his open guilty plea to possession of drug
paraphernalia, driving under the influence (“DUI”) (third offense), fleeing or
J-S17039-22
J-S17040-22
attempting to eluding a police officer, resisting arrest, and recklessly
endangering another person (“REAP”).1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly, on
April 23, 2019, Appellant was charged with, among other things, possession
of drug paraphernalia at docket number 3108-2019 (“First Case”). On August
18, 2019, Appellant was charged with multiple crimes, including DUI,
fleeing/eluding a police officer, resisting arrest and REAP at docket number
3459-2019 (“Second Case”). On March 12, 2021, Appellant pleaded guilty to
the aforementioned crimes in both cases. On October 14, 2021, the trial court
sentenced Appellant to an aggregate sentence of 60 to 120 months’
imprisonment.
On October 19, 2021, Appellant filed post-sentence motions,
challenging, inter alia, the trial court’s discretionary aspects of sentencing.
With respect to both cases, Appellant argued that the trial court abused its
discretion in failing to consider his mitigating circumstances. Separately, with
respect to the Second Case, Appellant argued that the trial court abused its
discretion in imposing consecutive, rather than concurrent, sentences.
On October 26, 2021, following a hearing, the trial court re-sentenced
Appellant to an aggregate term of 45 to 90 months’ incarceration in the
Second Case. Specifically, the trial court re-sentenced Appellant to 18 to 36
months’ incarceration for DUI, and a consecutive term of 18 to 36 months in
____________________________________________
1 35 P.S. § 780-113(a)(32); 75 Pa.C.S.A. §§ 3802(d)(2) 3733(a); and 18
Pa.C.S.A. §§ 5104, 2705, respectively.
-2-
J-S17039-22
J-S17040-22
prison for fleeing/eluding a police officer. The court also imposed a
consecutive term of 9 to 18 months’ incarceration for resisting arrest. Lastly,
the court directed Appellant to serve a sentence of 12 to 24 months in prison
for REAP concurrently with his sentence of 18 to 36 months’ imprisonment for
fleeing/eluding a police officer. That day, the trial court also re-sentenced
Appellant to 12 months’ probation for possessing drug paraphernalia in the
First Case. The probationary sentence was to run consecutively with the 18-
to-36-months’ sentence imposed in the Second Case for fleeing/eluding a
police officer. Appellant timely appealed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal,2 Appellant presents two issues for our review. First, he
argues that his aggregate sentence is excessive because the trial court failed
to consider mitigating factors. Second, Appellant argues that the trial court
abused its discretion in imposing consecutive, rather than concurrent
sentences in the Second Case.
____________________________________________
2 When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
-3-
J-S17039-22
J-S17040-22
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa. Super. 2011). Rather, where an appellant challenges the discretionary
aspects of a sentence, an appellant’s appeal should be considered as a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first three requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, preserved the
issue on appeal through his post-sentence motions, and included a Pa.R.A.P.
-4-
J-S17039-22
J-S17040-22
2119(f) statement in his brief.3 We, therefore, must determine only if
Appellant’s sentencing issues raise a substantial question.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). We have found that a substantial question exists
“when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa. Super. 2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa.
2009). “[W]e cannot look beyond the statement of questions presented and
the prefatory [Rule] 2119(f) statement to determine whether a substantial
question exists.” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super.
2013), affirmed, 125 A.3d 394 (Pa. 2015).
It is settled that this Court does not accept bald assertions of sentencing
errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). When we examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists, “[o]ur inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.”
____________________________________________
3 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
-5-
J-S17039-22
J-S17040-22
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)
(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
A Rule 2119(f) statement is inadequate when it “contains incantations of
statutory provisions and pronouncements of conclusions of law[.]”
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation
omitted).
Here, Appellant asserts in his Rule 2119(f) statement that (1) his
sentence is excessive because the court did not take into account mitigating
factors and (2) the trial court should have imposed concurrent, rather than
consecutive, sentences in the Second Case. Based on Appellant’s 2119(f)
statement, we conclude that Appellant has failed to raise a substantial
question.
Appellant’s excessiveness claim principally is premised on his argument
that the trial court failed to consider his mitigating circumstances. In this
regard, we have “held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super.
2010)); see also Commonwealth v. Berry, 785 A.2d 994 (Pa. Super. 2001)
(explaining allegation that sentencing court failed to consider certain
mitigating factor generally does not raise a substantial question);
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)
(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not
-6-
J-S17039-22
J-S17040-22
adequately consider’ certain factors does not raise a substantial question that
the sentence was inappropriate,”), appeal denied, 676 A.2d 1195 (Pa.
1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997)
(finding absence of substantial question where appellant argued the trial court
failed to adequately consider mitigating factors and to impose an
individualized sentence). Consistent with the foregoing cases, we conclude
that Appellant failed to raise a substantial question with respect to his
excessiveness claim premised on inadequate consideration of mitigating
factors.
Even if we were to find a substantial question, Appellant still would not
be entitled to relief. Our review of the sentencing transcript reveals that the
trial court heard testimony and argument concerning Appellant’s mitigating
circumstances, especially his age and health issues, and considered the same
in crafting his sentence. See N.T., Sentencing, 10/14/21, at 2-4, 15-18, 24.
Moreover, we consistently have recognized that excessiveness claims
premised on imposition of consecutive sentences also do not raise a
substantial question for our review. See Commonwealth v. Caldwell, 117
A.3d 763, 769 (Pa. Super. 2015) (en banc) (stating, “[a] court’s exercise of
discretion in imposing a sentence concurrently or consecutively does not
ordinarily raise a substantial question[.]”), appeal denied, 126 A.3d 1282
(Pa. 2015); see also Commonwealth v. Ahmad, 961 A.2d 884, 887 n.7
(Pa. Super. 2008); Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.
Super. 2006). Thus, consistent with the foregoing cases, we conclude that
-7-
J-S17039-22
J-S17040-22
Appellant failed to raise a substantial question with respect to his
excessiveness claim premised on the imposition of consecutive sentences.
Finally, Appellant suggests that his sentence in the Second Case is illegal
because the trial court failed to merge DUI, fleeing/eluding a police officer and
resisting arrest for sentencing purposes.4 In support, Appellant suggests that
the offenses stemmed from a single criminal act. Without providing any legal
authority, Appellant asserts that “[i]t is arguable that DUI and fleeing or
eluding, as both are traffic code offenses, and DUI could satisfy fleeing or
eluding if there is a failure to stop, should run concurrent.” Appellant’s Brief
____________________________________________
4 Although Appellant seemingly raises a merger issue, he does not develop
any cogent argument with citation to the record and legal authority for why
the trial court erred in declining to merge the offenses in the Second Case.
See Pa.R.A.P. 2119(a) (stating that the argument section of the parties’ briefs
“shall be divided into as many parts as there are questions to be argued; and
shall have at the head of each part—in distinctive type or in type distinctly
displayed—the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.”); Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009), (“[W]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review, that claim
is waived.”) (citation omitted), cert. denied, 562 U.S. 906 (2010); see also
Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006)
(deeming appellant’s claims waived under Pa.R.A.P. 2119(a) because he did
not develop meaningful argument with specific references to relevant case law
and to the record to support his claims); Commonwealth v. Heilman, 867
A.2d 542, 546 (Pa. Super. 2005) (recognizing that failure to provide “such
discussion and citation of authorities as are deemed pertinent” may result in
waiver); Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004)
(declining to review appellant’s claim where there was limited explanation and
development of the argument). Despite this glaring omission, we decline to
find waiver.
-8-
J-S17039-22
J-S17040-22
at 22. Appellant further claims that “resisting arrest satisfies the elements of
fleeing and eluding.” Id.
A claim that crimes merge for sentencing purposes raises a challenge to
the legality of the sentence. Commonwealth v. Martinez, 153 A.3d 1025,
1029-30 (Pa. Super. 2016). We review this legal issue de novo, and our scope
of review is plenary. Id. The merger statute, Section 9765 of the Judicial
Code, provides:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765 (emphasis added). Section 9765 prohibits merger
“unless two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Commonwealth v.
Golphin, 161 A.3d 1009, 1029 (Pa. Super. 2017), appeal denied, 170 A.3d
1051 (Pa. 2017).
Here, even assuming that the offenses in the Second Case arose from a
single criminal act, Appellant still would not obtain relief because DUI,
fleeing/eluding a police officer and resisting arrest do not have any statutory
elements in common. Under Section 3802(d)(2) of the Vehicle Code:
An individual may not drive, operate or be in actual physical
control of the movement of a vehicle [when t]he individual is
under the influence of a drug or combination of drugs to a degree
-9-
J-S17039-22
J-S17040-22
which impairs the individual’s ability to safely drive, operate or be
in actual physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(d)(2). The offense of fleeing/eluding a police officer
occurs when “[a]ny driver of a motor vehicle who willfully fails or refuses to
bring his vehicle to a stop, or who otherwise flees or attempts to elude a
pursuing police officer, when given a visual and audible signal to bring the
vehicle to a stop[.]” 75 Pa.C.S.A. § 3733(a). With respect to resisting arrest:
A person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force to
overcome the resistance.
18 Pa.C.S.A. § 5104. Because the offenses are not completely subsumed
within each other (and Appellant does suggest otherwise), the trial court did
not err in failing to merge them for sentencing purposes.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
- 10 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483541/ | J-S27028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ASHLEY DELVALLE TORRES :
:
Appellant : No. 2330 EDA 2021
Appeal from the Judgment of Sentence Entered September 21, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003534-2019
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2022
Appellant Ashley Delvalle Torres appeals from the judgment of sentence
imposed following her convictions for aggravated assault, conspiracy to
commit aggravated assault, possessing an instrument of crime (PIC), and
simple assault.1 Appellant challenges the sufficiency and weight of the
evidence, contends that the waiver of her right to jury trial was deficient,
claims the trial court abused its discretion by imposing a sentence of
incarceration, and asserts that trial counsel was ineffective. We affirm.
The trial court summarized the factual history in this case as follows:
At or around 6:00 P.M. on April 23, 2019, Melvin Gonzalez
(hereinafter “Mr. Gonzalez”), the father of Appellant’s child,
traveled to Appellant’s home in Philadelphia to pick up his son in
accordance with a pre-existing custody order. When Mr. Gonzalez
arrived at the residence, he encountered Appellant’s sister, Jalissa
____________________________________________
1 18 Pa.C.S. §§ 2702(a), 903, 907(a), and 2701(a), respectively.
J-S27028-22
Delvalle. At this time, Mr. Gonzalez was verbally harassed and
threatened by Jalissa Delvalle. Following his encounter with
Jalissa Delvalle, Mr. Gonzalez received a phone call from
Alexander Rivera (hereinafter “Mr. Rivera”). Mr. Gonzalez
informed Mr. Rivera that Appellant’s sister threatened to have a
group of men beat him up when he returned his son later that
night. Mr. Rivera agreed to meet Mr. Gonzalez at the location
where he would be dropping off his son.
At or around 8:00 P.M. on April 23, 2019, Mr. Gonzalez returned
to Appellant’s residence with the intent to drop off his son. When
Mr. Gonzalez arrived at the residence, he encountered a group of
individuals waiting outside, consisting of Appellant, Appellant’s
mother, Appellant’s two sisters, Appellant’s roommate, and three
unknown males. Mr. Gonzalez testified that as soon as he exited
the vehicle to retrieve his son from the rear passenger side of the
car, the three unknown males approached, and an altercation
immediately ensued. When Mr. Rivera arrived to meet Mr.
Gonzalez, he observed Mr. Gonzalez in a brawl with three other
males and was simply getting jumped. Upon becoming aware of
the fight between the four men, Mr. Rivera attempted to break up
the altercation and ultimately became involved in the fracas.
During the altercation, Mr. Gonzalez testified that he was hit with
a brick by [Appellant]. At this point, Mr. Gonzalez observed
Appellant raise a bat over her head and strike Mr. Rivera in the
head with the bat, as he attempted to get up from the ground.
The altercation ended after Mr. Rivera began to bleed from his
head injury. Mr. Gonzalez immediately drove Mr. Rivera to
Jefferson Torresdale Hospital for treatment of his injuries.
Detective Burkhimer interviewed Mr. Gonzalez at the hospital,
where he confirmed that [Appellant] threw a brick at him that hit
his head. Mr. Gonzalez suffered a concussion, bruising and
swelling to the right side of his face, pain in the back of his head,
and abrasions to the knees and legs as a result of the incident.
Mr. Gonzalez did not seek treatment while at Jefferson Torresdale
Hospital, due to the fact that he did not have medical insurance.
Trial Ct. Op., 1/11/22, at 3-4 (citations omitted and formatting altered).2
____________________________________________
2Appellant’s sister, Justina Delvalle-Torres was also charged and convicted as
a result of her involvement in the April 23, 2019 incident and the physical
(Footnote Continued Next Page)
-2-
J-S27028-22
Following a non-jury trial, Appellant was found guilty of aggravated
assault, conspiracy to commit aggravated assault, PIC, and simple assault.
On September 21, 2021, the trial court sentenced Appellant to terms of nine
to eighteen months of incarceration, followed by three years of probation, on
the aggravated assault, conspiracy to commit aggravated assault, and PIC
charges. Sentencing Order, 9/21/21, at 1-2. These three sentences were
ordered to be served concurrently. Id. The charge of simple assault merged
with aggravated assault for sentencing purposes, which resulted in an
aggregate sentence of nine to eighteen months of incarceration, followed by
three years of probation. Id.
Appellant filed a timely post-sentence motion for reconsideration of
sentence, which the trial court denied on October 18, 2021. Appellant filed a
timely appeal on November 10, 2021. Both the trial court and Appellant
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues, which we have
renumbered as follows:
1. Whether the trial court committed an error of law when it
concluded that sufficient evidence was presented to sustain
convictions for aggravated assault, simple assault, conspiracy
and PIC.
____________________________________________
assault of Mr. Rivera. We address Justina Delvalle-Torres’ appeal separately
in a memorandum filed at Superior Court docket 2211 EDA 2021.
-3-
J-S27028-22
2. Whether the trial court erred when it concluded that its rulings
on aggravated assault, simple assault, conspiracy and PIC were
not against the weight of the evidence.
3. Whether the trial court erred when it ruled that the Appellant’s
waiver of her right to trial by jury had been knowing and
intelligent.
4. Whether the trial court erred when it declined to reconsider the
Appellant’s sentence.
5. Whether the trial court erred when it declined to review the
Appellant’s claims for ineffective assistance of counsel.
Appellant’s Brief at 5 (formatting altered).
Sufficiency of the Evidence
In her first issue, Appellant contends that the evidence was insufficient
to sustain the guilty verdicts. Appellant’s Brief at 15.
It is well settled that when an appellant challenges the sufficiency of the
evidence, the appellant’s Rule 1925(b) statement must specify the element or
elements upon which the evidence was allegedly insufficient in order to
preserve the issue for appeal. Commonwealth v. Gibbs, 981 A.2d 274, 281
(Pa. Super. 2009). Here, Appellant not only failed to specify which elements
she was challenging in her Rule 1925(b) statement, she also failed to specify
which convictions she was challenging. Accordingly, we conclude that
Appellant waived her challenge to the sufficiency of the evidence.3 See id.
____________________________________________
3 We note that the trial court also concluded that Appellant waived her
challenge to the sufficiency of the evidence because she failed to articulate
which convictions or elements of those convictions the Commonwealth
allegedly failed to prove. See Trial Ct. Op. at 5. Nevertheless, the trial court
proceeded to provide an alternate, yet thorough, analysis of each of
(Footnote Continued Next Page)
-4-
J-S27028-22
Weight of the Evidence
In her next issue, Appellant contends that the verdict was against the
weight of the evidence and a new trial should be granted. Appellant’s Brief at
19-20.
When reviewing a weight claim, our standard of review is as follows:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. On appeal, our purview
is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence. An appellate court may not reverse a
verdict unless it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)
(citations omitted and formatting altered). An appellant wishing to challenge
the weight of the evidence must properly preserve her claim for review, and
the issue must be preserved orally prior to sentencing, by a written motion
____________________________________________
Appellant’s crimes and the sufficiency of the evidence supporting each
conviction. Were we to reach the merits of Appellant’s challenge to the
sufficiency of the evidence, we would affirm on this alternate basis set forth
in the trial court’s opinion. See id. at 5-9.
-5-
J-S27028-22
before sentencing, or in a post-sentence motion. See Commonwealth v.
Rivera, 238 A.3d 482, 497 (Pa. Super. 2020); Pa.R.Crim.P. 607(A).
Our review of the record reveals that Appellant did not file a post-
sentence motion challenging the weight of the evidence. Although Appellant
made a motion for extraordinary relief under Pa.R.Crim.P. 704(B) at the start
of her sentencing hearing, a motion under Rule 704(B) only permits the trial
court to hear pre-sentence oral motions for a judgment of acquittal or for a
new trial under extraordinary circumstances and when the interests of justice
require, and such motions are not a substitute for filing a post-sentence
motion pursuant to Rule 607(A). Commonwealth v. Wilson, 227 A.3d 928,
937 (Pa. Super. 2020); Commonwealth v. Askew, 907 A.2d 624, 627 (Pa.
Super. 2006) (citing Pa.R.Crim.P. 704(B)(3), cmt.). The comment to Rule
704 provides that a motion for extraordinary relief made pursuant to Rule
704(B) is not sufficient to preserve an issue for appeal. Pa.R.Crim.P.
704(B)(3), cmt.4
____________________________________________
4 The comment states, in relevant part, as follows:
a motion for extraordinary relief is neither necessary nor sufficient
to preserve an issue for appeal. The failure to make a motion for
extraordinary relief, or the failure to raise a particular issue in such
a motion, does not constitute a waiver of any issue. Conversely,
the making of a motion for extraordinary relief does not, of itself,
preserve any issue raised in the motion, nor does the judge’s
denial of the motion preserve any issue.
Pa.R.Crim.P. 704(B)(3), cmt.
-6-
J-S27028-22
On this record, we conclude that Appellant waived her challenge to the
weight of the evidence by failing to preserve the issue pursuant to Rule
607(A), and Appellant’s Rule 704(B) motion did not preserve any issues for
post-sentence consideration or appeal. See Rivera, 238 A.3d at 497;
Commonwealth v. Woods, 909 A.2d 372, 378 (Pa. Super. 2006); see also
Pa.R.Crim.P. 704(B)(3).
In any event, despite Appellant’s failure to file a post-sentence motion,
we note that the trial court addressed Appellant’s challenge to the weight of
the evidence. See Trial Ct. Op. at 9-10. The trial court found that the verdict
was not so contrary to the evidence as to shock one’s sense of justice. Id. at
10. The court considered all of the evidence, including the video recording
that captured part of the assault. The court noted that it was free to believe
some, all, or none of the evidence, and it found Mr. Rivera and Mr. Gonzalez
were credible witnesses. Id. In light of the credible testimony provided by
Mr. Rivera and Mr. Gonzalez, the trial court concluded that the weight of the
evidence supported the verdict. Id. Were we to reach Appellant’s challenge
to the weight of the evidence, we would conclude that the trial court did not
abuse its discretion in concluding that Appellant’s weight claim was meritless,
and that a new trial was not warranted. See id.
Waiver of Jury Trial
In her next issue, Appellant asserts that she did not knowingly and
voluntarily waive her right to a jury trial. Appellant’s Brief at 20-21. Appellant
-7-
J-S27028-22
contends that the trial court’s colloquy on this issue was “too perfunctory.”
Id. at 21.
The Commonwealth responds that Appellant entered a knowing,
intelligent, and voluntary waiver of her right to a jury trial. Commonwealth’s
Brief at 15. The Commonwealth contends that Appellant completed a written
jury trial waiver form and confirmed on the record that she waived her right
to a jury trial in an oral colloquy. Id. 16-18.
A defendant may waive her right to a jury trial and proceed to trial
before a judge, provided that her waiver is knowing, intelligent, and voluntary.
Commonwealth v. Houck, 948 A.2d 780, 787 (Pa. 2008). To be valid, a
jury waiver must be knowing, intelligent, and voluntary, and the defendant
must be aware of the essential protections inherent to a jury trial. See
Commonwealth v. Mallory, 941 A.2d 686, 696 (Pa. 2008). The essential
protections “basic to the concept of a jury trial, are the requirements that the
jury be chosen from members of the community (a jury of one’s peers), that
the verdict be unanimous, and that the accused be allowed to participate in
the selection of the jury panel.” Id. at 696-87 (citations omitted and
formatting altered).
Additionally, our Rules of Criminal Procedure provide that before a
defendant may waive their right to a jury trial, the trial court must:
ascertain from the defendant whether this is a knowing and
intelligent waiver, and such colloquy shall appear on the record.
The waiver shall be in writing, made a part of the record, and
signed by the defendant, the attorney for the Commonwealth, the
judge, and the defendant’s attorney as a witness.
-8-
J-S27028-22
Pa.R.Crim.P. 620.
Before we may address the merits of Appellant’s claim, we must
determine if Appellant properly raised and preserved this issue on appeal. The
trial court concluded that Appellant waived this issue for failing to raise it
before the trial court. Trial Ct. Op. at 10. Upon review, we agree.
The record reveals that Appellant presented this issue for the first time
in her Rule 1925(b) statement. It is well settled that issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.
Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003); see also
Pa.R.A.P. 302(a). Moreover, a party cannot rectify the failure to preserve an
issue by raising it for the first time in a Rule 1925(b) statement. Watson,
835 A.2d at 791. For these reasons, we agree with the trial court that
Appellant waived this issue. See id.; see also Commonwealth v. Pi Delta
Psi, Inc., 211 A.3d 875, 884 (Pa. Super. 2019) (stating “issues, even those
of constitutional dimension, are waived if not raised in the trial court” (citation
omitted)); Commonwealth v. Gumpert, 512 A.2d 699, 703 (Pa. Super.
1986) (providing that the validity of a jury waiver is subject to principles of
waiver on appeal).
We note, however, that the trial court explained that even if Appellant
had preserved this issue, she is entitled to no relief as her jury trial waiver
was knowing, intelligent, and voluntary. Were we to reach the merits of this
claim of error, we would affirm on the basis of the trial court’s opinion. See
Trial Ct. Op. at 10-12.
-9-
J-S27028-22
Reconsideration of Sentence
Appellant next argues the trial court abused its discretion when it
imposed sentence. Appellant’s Brief at 23-24. Appellant claims that the trial
court failed to consider certain factors and should not have imposed any period
of incarceration. Id. at 24.
The Commonwealth responds that the trial court was within its
discretion when imposed Appellant’s sentence. Commonwealth’s Brief at 20.
The Commonwealth asserts that the trial court considered all relevant factors
and imposed a sentence below the sentence recommended under the
Sentencing Guidelines. Id. at 20-21.
The decision to impose a sentence of total confinement is within the
discretion of the sentencing court. See, e.g., Commonwealth v. Kenney,
210 A.3d 1077, 1081 (Pa. Super. 2019); 42 Pa.C.S. § 9721(a). It is well
settled that “challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Derry, 150
A.3d 987, 991 (Pa. Super. 2016) (citations and brackets omitted). Before
reaching the merits of such claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
[her] issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
- 10 -
J-S27028-22
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise [her] issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”).
Here, the record reflects that Appellant preserved her sentencing claim
by filing a post-sentence motion, a timely notice of appeal, and including the
issue in her Rule 1925(b) statement. However, we note that Appellant has
failed to include a Rule 2119(f) statement in her brief. Nevertheless, because
the Commonwealth has not objected to the absence of Appellant’s Rule
2119(f) statement, we will not find waiver. Commonwealth v. Antidormi,
84 A.3d 736, 759 (Pa. Super. 2014). Accordingly, we will proceed and
determine whether Appellant has raised a substantial question. See id.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
- 11 -
J-S27028-22
which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
This Court has stated that an allegation that the sentencing court “failed
to consider” or “did not adequately consider” various factors does not raise a
substantial question. Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super.
2002) (citation omitted). However, “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014 (citation omitted).
Here, Appellant contends that although her sentence was within the
Sentencing Guidelines, a sentence of incarceration was an abuse of discretion
because she had a prior record score of zero, and Appellant is a single mother
of a young child with autism. Appellant’s Brief at 24. Appellant claims that
the sentence “was unreasonable, almost unconscionable.” Id. As stated
previously, the trial court imposed sentences of nine to eighteen months of
incarceration followed by three years of probation on the conviction for
aggravated assault, conspiracy, and PIC, and these three sentences were
ordered to be served concurrently. Sentencing Order, 9/21/21, at 1-2.
However, in her brief, Appellant fails to challenge a specific sentence or
identify any individual crime, and she argues merely that a sentence of nine
to eighteen months of incarceration was excessive under the circumstances.
Appellant’s Brief at 24. Appellant’s vague argument does not indicate which
sentence was inconsistent with a specific provision of the Sentencing Code or
- 12 -
J-S27028-22
illustrate how any of the sentences were contrary to the fundamental norms
underlying the sentencing process. See Grays, 167 A.3d at 816. On this
basis we are constrained to find that Appellant has failed to present a
substantial question for review. See id. Accordingly, Appellant is entitled to
no relief on this issue.5
____________________________________________
5 Were we to conclude that Appellant raised a substantial question and reach
her challenge to the discretionary aspects of her sentence, we would conclude
that Appellant is due no relief. We note that sentencing is a matter vested in
the sound discretion of the trial court, and we will not disturb a sentence on
appeal absent an abuse of that discretion. Raven, 97 A.3d at 1253. “When
imposing a sentence, the sentencing court must consider the factors set out
in 42 Pa.C.S. § 9721(b), [including] the protection of the public, [the] gravity
of offense in relation to impact on victim and community, and [the]
rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892 A.2d
843, 847-48 (Pa. Super. 2006) (citation omitted and formatting altered).
“[T]he trial court is required to consider the particular circumstances of the
offense and the character of the defendant[,]” including the defendant’s “prior
criminal record, age, personal characteristics, and potential for rehabilitation.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(citation omitted). This Court has held that “where the sentencing judge had
the benefit of a presentence investigation [(PSI)] report, it will be presumed
that he or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Id. (citation omitted). This Court may only disturb a standard-range
sentence if we find that the circumstances of the case rendered the application
of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). Here, the
record from Appellant’s sentencing hearing reflects that the trial court
explained that Appellant engaged in an “ambush” and a “planned attack.”
N.T., Sentencing, 9/21/21, at 41. The trial court stated its consideration of
the PSI, and the extent of the injuries Appellant’s attack caused, and it
balanced those factors with letters of support from the community, Appellant’s
tireless work with her son with autism, her work history, and other relevant
factors. Id. at 20, 42-42. The record further reflects that on the conviction
for aggravated assault, graded as a felony of the second degree, Appellant
had a prior record score of zero with an offense gravity score of eight. Id. at
17-18. This resulted in a standard range minimum sentence of between nine
(Footnote Continued Next Page)
- 13 -
J-S27028-22
Ineffectiveness of Trial Counsel
In Appellant’s final issue, she raises a boilerplate claim of ineffective
assistance of trial counsel. Appellant’s Brief at 22-23.
Our Supreme Court has held that as a general rule, claims of ineffective
assistance of counsel must await collateral review under the Post Conviction
Relief Act6 (PCRA). Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.
2013). The Holmes Court recognized two exceptions to the general rule
whereby claims of ineffective assistance of counsel may be raised and
addressed on direct appeal “both falling within the discretion of the trial
judge[:]” (1) there are extraordinary circumstances in which trial counsel’s
____________________________________________
to sixteen months, plus or minus nine months. See id.; see also 204 Pa.Code
§ 303.16. Accordingly, the incarceration portion of Appellant’s sentence,
which was a minimum of nine months to a maximum of eighteen months, was
at the lowest end of the standard range of the Sentencing Guidelines.
Were we to reach this issue, based on our review of the record, we would
discern no abuse of discretion by the trial court. See Raven, 97 A.3d at 1253.
The trial court had the benefit of a PSI and considered the appropriate
sentencing factors and mitigating evidence as stated at the sentencing
hearing. See Ventura, 975 A.2d at 1135. Ultimately, the trial court
concluded that nine to eighteen months of incarceration was necessary in light
of the circumstances of this case, the planned attack, and the level of violence
and the extent of injuries caused as a result of Appellant’s crimes. Under
these circumstances, we would have no basis upon which to conclude that the
trial court’s application of the Sentencing Guidelines was “clearly
unreasonable” or that the trial court abused its discretion by imposing a
sentence of incarceration that was lowest end of the standard range of the
applicable Sentencing Guidelines. See 42 Pa.C.S. § 9781(c)(2); see also
Raven, 97 A.3d at 1253. For these reasons, Appellant would not be entitled
to relief.
6 42 Pa.C.S. §§ 9541-9546.
- 14 -
J-S27028-22
“ineffectiveness is apparent from the record and meritorious to the extent that
immediate consideration best serves the interests of justice;” or (2) “there is
good cause shown” and the defendant knowingly and expressly waives her
entitlement to seek subsequent PCRA review of her conviction and sentence.
Id. at 563-64. Subsequently, our Supreme Court recognized an additional
exception permitting courts “to address claims challenging trial counsel’s
performance where the defendant is statutorily precluded from obtaining
subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d 352, 361
(Pa. 2018).7
Here, however, Appellant’s claim is merely a boilerplate accusation of
ineffectiveness. See Appellant’s Brief at 22-23. Moreover, the trial court
opined that Appellant’s claims must await review under the PCRA. See Trial
Ct. Op. at 12-13. Additionally, Appellant did not expressly waive her right to
PCRA review. See Holmes, 79 A.3d at 564. Further, Appellant is not
____________________________________________
7 We acknowledge that there is an additional limited circumstance where a
defendant may raise a claim of ineffective assistance of counsel outside of a
PCRA petition. This occurs where a defendant is litigating a first PCRA petition,
and the defendant alleges PCRA counsel’s ineffectiveness. In that situation,
the defendant may raise a claim of PCRA counsel’s ineffectiveness at the first
opportunity, even if on appeal. See Commonwealth v. Bradley, 261 A.3d
381, 405 (Pa. 2021). However, it is undisputed that at this juncture, Appellant
has not pursued PCRA relief nor obtained PCRA counsel. Accordingly,
Appellant can have no claim of PCRA counsel’s ineffectiveness in this direct
appeal, and the narrow circumstance discussed in Bradley is inapplicable.
See id.
- 15 -
J-S27028-22
statutorily barred from seeking PCRA relief. See Delgros, 183 A.3d at 361.8
For these reasons, we conclude that none of the exceptions apply, and
Appellant’s ineffectiveness claim cannot be considered on direct appeal.
Accordingly, we dismiss Appellant’s claim of ineffectiveness without prejudice
to Appellant’s right to raise it in a timely petition under the PCRA.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2022
____________________________________________
8 In Delgros, our Supreme Court “granted allowance of appeal to determine
whether a defendant, who is ineligible for statutory collateral review because
he was sentenced to pay a fine without incarceration or probation, may obtain
review of ineffective assistance of counsel claims presented in post-sentence
motions filed in the trial court.” Delgros, 183 A.3d at 353. Because the
appellant in Delgros was sentenced only to a fine, he was ineligible to seek
relief under the PCRA. Id. at 354-55 (citing 42 Pa.C.S. § 9543(a)). The
Delgros Court explained that under the eligibility requirements of Section
9543(a), a petitioner must be currently incarcerated, on probation, or on
parole, and it precluded PCRA relief for petitioners sentenced only to pay a
fine. Id. at 355. Here, however, Appellant was sentenced September 21,
2021 to an aggregate term of nine to eighteen months of incarceration,
followed by three years of probation. Sentencing Order, 9/21/21, at 1-2.
Accordingly, Appellant is not statutorily precluded from relief under the PCRA,
and the exception in Delgros does not apply.
- 16 - | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483490/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-22-00196-CR
D KENDRIK DEWAYNE MOORE, § On Appeal from the 371st District Court
Appellant
§ of Tarrant County (1636632D)
§ November 10, 2022
V.
§ Per Curiam Memorandum Opinion
THE STATE OF TEXAS § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that the
appeal should be dismissed. It is ordered that the appeal is dismissed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483493/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00375-CV
___________________________
IN RE THE STATE OF TEXAS, Relator
Original Proceeding
County Court at Law of Cooke County, Texas
Trial Court No. CV2101971
Before Sudderth, C.J.; Birdwell and Walker, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
The court has considered (1) relator the State of Texas’s petition for writ of
mandamus, (2) the real party in interest Kamy Real Property Trust’s response, and (3)
the State of Texas’s reply.
Kamy Real Property Trust’s response and the State of Texas’s reply address
arguments not raised in the trial court, and both require resolution of factual issues—
from whom Kamy Real Property Trust received actual notice that the special
commissioners’ award had been filed in the trial court, when Kamy Real Property
Trust received actual notice, whether the trial court clerk complied with Section
21.049 of the Texas Property Code, and, if the trial court clerk did so, when. See Tex.
Prop. Code Ann. § 21.049.
“It is well established Texas law that an appellate court may not deal with
disputed areas of fact in an original mandamus proceeding.” Brady v. Fourteenth Ct. of
App., 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding) (op. on reh’g); In re Wilson,
421 S.W.3d 686, 690 (Tex. App.—Fort Worth 2014, orig. proceeding) (op. on
reconsideration).
Accordingly, the State of Texas’s petition for writ of mandamus is denied.
Per Curiam
Delivered: November 8, 2022
2 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483487/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-22-00032-CV
MELANIE BELL LORANT, Appellant § On Appeal from the 236th District Court
§ of Tarrant County (236-313813-19)
V.
§ November 10, 2022
2016 PARKVIEW CONDOMINIUMS § Memorandum Opinion by Justice Walker
DEVELOPMENT LLC, Appellee
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was no error in the trial court’s judgment. It is ordered that the judgment of the trial
court is affirmed.
It is further ordered that appellant Melanie Bell Lorant shall bear the costs of
this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By /s/ Brian Walker
Justice Brian Walker | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483483/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-21-00182-CR
RYAN MATTHEWS, Appellant § On Appeal from the 362nd District Court
§ of Denton County (F17-3033-362)
V. § November 10, 2022
§ Memorandum Opinion by Justice Womack
THE STATE OF TEXAS § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was no error in the trial court’s judgment. It is ordered that the judgment of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Dana Womack
Justice Dana Womack | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491029/ | MEMORANDUM AND ORDER
KENNETH J. MEYERS, Bankruptcy Judge.
Plaintiff, trustee of debtors’ Chapter 7 bankruptcy estate, has filed a complaint to avoid the lien held by defendant, Sears Consumer Financial Corporation (Sears), on a 1989 Monaco Crown Royale motor home. Plaintiff contends that Sears failed to perfect its lien in accordance with Missouri law and that the lien is thus subordinate to the trustee’s subsequent lien as hypothetical lien creditor. See, 11 U.S.C. § 544(a). Sears has filed a motion for relief from stay and for order of abandonment, contending that the vehicle is fully encumbered by its validly perfected lien and should be abandoned from the estate by the trustee. The matter is before the Court on Sears’ motion for summary judgment and the trustee’s motion to have the matter decided on briefs and arguments, which the Court will construe as a motion for summary judgment.1
The undisputed facts show that on August 20, 1988, debtor J. Lloyd Tomer purchased the motor home in question and executed a retail installment contract in the amount of $130,000, which was assigned to Sears. Separate certificates of origin were issued for the coach and the chassis of the motor home, and Sears’ lien was shown on both certificates of origin. A vehicle invoice dated August 20, 1988, also showed Sears as lienholder.
On February 15, 1989, debtor, who was residing in Missouri, made application for title with the Missouri Department of Revenue (Department). The “application for title and/or license” executed by debtor failed to list Sears as lienholder. The Department subsequently issued a title to the motor home showing no liens and mailed it to debtor.
In March 1989, Sears contacted the Motor Vehicle Bureau of the Department and learned that there was no record of its lien on the motor home. Department officials advised Sears that the title would be recalled because it had been incorrectly issued without Sears’ lien on it. On March 29, 1989, the Department wrote to debtor requesting that he return the title to the Department so that Sears’ lien could be noted and the title mailed to Sears as lien-holder. Further letters to debtor were mailed on April 13, 1989, and July 17, 1989. Debtor did not respond to the Department’s request, and, on July 7, 1989, he filed a Chapter 7 bankruptcy petition.
In arguing that it holds a perfected lien, Sears observes that the lien was iden*206tified on the certificates of origin mailed to the Department along with debtor’s application for title and the required fee on February 15, 1989. Sears has submitted exhibits which include an undated “word processor information slip” of the Department’s Motor Vehicle Bureau indicating that Sears was a lienholder for certificate of title purposes. Sears asserts that this information slip as well as the Department’s letters in which it acknowledged that the title had been incorrectly issued show that the Department was aware of Sears’ lien when it issued the title to debtor and that Sears’ lien was validly perfected notwithstanding the Department’s failure to list the lien on the title issued to debtor.
The trustee responds that Sears’ lien was not perfected because debtor’s application for title failed to list Sears as a lienholder as required by the Missouri statute for perfection of liens on motor vehicles. Section 301.600.2 of the Missouri Revised Statutes provides:
2. A lien or encumbrance on a motor vehicle or trailer is perfected by the delivery to the director of revenue of the existing certificate of ownership, if any, an application for a certificate of ownership containing the name and address of the lienholder and the date of his security agreement, and the required certificate of ownership fee. It is perfected as of the time of its creation if the delivery of the aforesaid to the director of revenue is completed within thirty days thereafter, otherwise as of the time of the delivery.
Mo.Rev.Stat. § 301.600.2 (1988) (emphasis added).
Under section 301.600.2, one of the required elements for perfection of a lien on a motor vehicle is the delivery of an application for certificate of ownership showing the lienholder’s name and address and the date of his security agreement. See Zuke v. Mercantile Trust Company National Association, 385 F.2d 775 (8th Cir.1967); In re Jackson, 268 F.Supp. 434 (E.D.Mo.1967). In the present case, the application submitted by debtor on February 15, 1989, failed to show Sears’ lien. While Sears’ lien was noted on the certificates of origin completed at the dealership and sent to the Department by debtor, this was not sufficient to fulfill the statutory requirement. Thus, Sears’ argument that the Department was aware of the lien when it issued title is unavailing, as the statute plainly states that delivery of an application showing the specified lien information is necessary for perfection of a lien.
Ford Motor Credit Company v. Pedersen, 575 S.W.2d 916 (Mo.Ct.App.1978), cited by Sears for the proposition that the Department’s error should not prevent perfection of its lien, is distinguishable from the instant case. In Pedersen, the Department erroneously issued a title showing no liens after the lienholder, Ford Motor Credit Company (Ford Credit), had complied with the requirements of section 301.600.2 by submitting an application for certificate of ownership on which its lien was indicated. The Pedersen court found that Ford Credit had done everything required of it to assure that its lien rights were perfected according to statute. Thus, despite the Department’s “oversight [or] mistake” in failing to record the lien on Pedersen’s certificate of title, the lien was perfected because of Ford Credit’s compliance with the statute.
Unlike the lienholder in Pedersen, Sears has not complied with the requirements of section 301.600.2 for perfection of its lien on debtor’s motor home. The lienholder in Pedersen, pursuant to Mo.Rev.Stat. § 301.620(2) (1988), filed the application for certificate of ownership itself to insure that its lien was shown. In the present case, neither debtor nor Sears filed an application for certificate of ownership showing Sears’ lien. Because no such application was presented to the Department, Sears’ lien was unperfected regardless of any error by the Department in issuing title without the lien.2
Sears additionally asserts that it is entitled to an equitable lien with regard to *207the motor home because debtor, after being notified that the title had been incorrectly issued without notice of Sears’ lien, refused to tender the title to the Department so that a new title could be issued. This Court has previously stated that an equitable lien arising under state law is ineffective against the avoiding powers of a trustee under § 544(a). Boatmen’s Bank of Benton v. Wiggs, 87 B.R. 57 (Bkrtcy.S.D.Ill.1988). Without determining whether Sears would be entitled to such an equitable lien under the facts here presented, the Court reiterates the rule of Wiggs that the bankruptcy court’s equity powers are “not a license to rewrite specific provisions of federal and state law concerning the powers of a [trustee in bankruptcy] to avoid unperfected liens.” 87 B.R. at 59. Sears’ lien was not perfected in accordance with section 301.600.2, and the trustee may, therefore, avoid this lien as a hypothetical lien creditor under § 544(a).
From a review of the pleadings and exhibits on file as well as consideration of the arguments of counsel, the Court finds that there is no genuine issue of material fact and that plaintiff is entitled to judgment as a matter of law on the trustee’s complaint to avoid lien. Accordingly, the Court will grant plaintiff’s motion for summary judgment and deny the motion for summary judgment filed by Sears. The Court further finds that Sears, as an unperfected creditor, is not entitled to relief from stay and, accordingly, denies its motion for relief from stay.
IT IS ORDERED that plaintiff’s motion for summary judgment is GRANTED and judgment is entered for plaintiff and against Sears on the trustee’s complaint to avoid lien. IT IS FURTHER ORDERED that Sears’ motion for summary judgment is DENIED.
. The Court has heard arguments on the issues in plaintiffs complaint and deems further argument on the motions for summary judgment to be unnecessary.
. The Court finds no merit in Sears’ assertion that an application for certificate of ownership was not needed because the certificates of origin showing debtor as owner and showing Sears’ lien constituted such certificate of ownership. The “certificate of ownership” referred to in *207section 301.600.2 is a document issued by the Department over the director’s signature and is distinct from a manufacturer’s certificate of origin. See Mo.Rev.Stat. § 301.190 (1988). Even if an existing certificate of ownership had been sent, submission of an application for a new certificate containing the lien information is an additional, not an alternative, requirement for perfection under the statute. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8491031/ | FINDINGS OF FACT AND CONCLUSIONS BY THE COURT
L. CHANDLER WATSON, Jr., Bankruptcy Judge.
Introduction—
The above-styled chapter 11 bankruptcy case is pending before the bankruptcy judges upon the voluntary petition of Perdi-do Motel Group, Inc. (hereinafter referred to as “debtor”), filed under title 11, chapter 11, United States Code, on June 22, 1988. The above-styled adversary proceeding was commenced by the complaint of the debtor, which is a debtor-in-possession, against the defendant, Florida National Bank (hereinafter referred to as “defendant”), filed herein on July 8, 1988, seeking to recover the sum of $184,800.00 for an alleged preferential transfer of the debtor’s property, pursuant to 11 U.S.C. § 547 and § 550.
The parties filed stipulations of fact on October 19,1989; however, on said day this adversary proceeding also was tried to a conclusion before the Court and submitted. This trial was the latest (but not the last) of the controversies litigated between these parties since the commencement of this reorganization bankruptcy case. The debt- or failed in its first effort to reorganize but was successful in obtaining confirmation of its second plan of reorganization; however, this Court’s order of confirmation is on appeal at the instance of the defendant.
Findings of Fact—
The evidence at trial produced no critical evidence beyond the facts established in the stipulation which the parties filed on the date of the trial. The details of the defendant’s transactions are tedious, but it is unnecessary for the Court to find the facts of this controversy in excruciating detail, and the Court will find the relevant and necessary facts in a broad outline.
The defendant is a bond trustee in a so-called industrial development bond transaction, whereby the debtor became liable for the payment of principal and interest on the municipal bonds. The bonds were sold, and the proceeds were used to construct and equip the debtor’s motel near Pensacola, Florida, with the funds being disbursed by the defendant. An anticipated flowering of economic development in the area of the motel did not materialize, and the debtor defaulted in making bond-mortgage payments to the defendant, for disbursement to the bondholders.
As a part of the financial package for the motel development, a principal stockholder and officer of the debtor guaranteed $400,-000.00 of the debtor’s obligation concerning the bonds and obtained and delivered to the defendant a bank letter of credit in that amount, for security of his guaranty. This amounted to a guaranty of about 10% of the total bond indebtedness. The letter of credit, by its provisions, terminated December 27, 1986. Although the debtor had defaulted prior to that time, has remained in default, the guaranty of $400,000.00 was not made good, and the guarantor also may be financially distressed, the defendant negligently failed to draw upon the bank letter of credit. In response to demands by the bondholders, the defendant put up $400,000.00 of its own money to stand in the place of the guaranty and the letter of credit.
In November, 1987, at the direction of the bondholders, the defendant paid to them approximately $111,000.00 for interest payments due and unpaid on the bonds, and the defendant then opened an account with itself and deposited the remaining approximately $289,000.00 into this account, which was titled “Perdido Motel ’85 Guaranty Collateral Account.” On June 1,1988, the defendant issued checks totaling $184,-800.00 to the bondholders, for a payment of part of the interest then due on the bonds, and sent these checks to the bondholders within a few days. By a series of transfers and deposits on or about June 7 and 8, 1988, the defendant transferred approximately $184,000.00 from the “Guaranty” account through other accounts which the defendant maintained with itself and into another such account, having the effect of reimbursing itself for the June 1 disburse*318ment to the bondholders. It is this reimbursement of the defendant, from the “Guaranty” account which is the basis of the alleged voidable and preferential transfer claimed by the debtor. The debtor never had any control or exercised any control over any of the bank accounts involved.
The debtor is hopelessly insolvent, and the defendant’s reimbursement of itself for its advance to the bondholders would enable it to receive more than it would have received for this advance on the debtor’s bond obligation if this were a chapter 7 liquidation case, the transfer or reimbursement had not been made, and the creditor had received reimbursement or payment to the extent provided by the provisions of title 11, United States Code.
Conclusions by the Court—
This controversy has been tried and submitted to the Court upon the principal question of whether the funds in the “Guaranty” account, upon the defendant’s deposit of $400,000.00 into the account, constituted property of the debtor such as would make a reimbursement of the defendant from these funds a “transfer of an interest of the debtor in property.” 1 Aside from other aspects of a preferential transfer which is avoidable by the trustee in bankruptcy or by a chapter 11 debtor-in-possession,2 pursuant to section 547(b), the debtor recovers from the defendant the $184,800.00, if the defendant reimbursed itself from funds of the debtor for the previous advance to the bondholders, on the debtor’s behalf; but, if the reimbursement was not from property of the debtor, the debtor has nothing to recover.
The funds in the “Guaranty” account originated from the defendant and from the defendant’s own money. The debtor never had and never exercised any control over the funds. The $400,000.00 was put up by the bank to satisfy the bondholders’ claim against it for a negligent failure to draw down the $400,000.00 under the bank letter of credit or to obtain a substitute for the letter of credit. The $400,000.00 was to secure the guaranty of that portion of the debtor’s bond indebtedness guaranteed by its principal stockholder and officer, who, apparently, has not (perhaps, cannot) make good on the guaranty. The $400,000.00 was no more intended to become or became property of the debtor than was the bank letter of credit. Without the bank letter of credit to back up the guaranty of the debt- or’s principal stockholder and officer of $400,000.00 of the bond indebtedness, the guaranty, apparently, was worthless, and the bank’s intentions and actions in putting up the $400,000.00 were directed toward remedying the worthlessness of this guaranty.
The debtor has placed substantial stress and reliance upon the fact that the $400,-000.00 was deposited in an account bearing the title “Perdido Motel ’85 Guaranty Collateral Account.” The debtor argues that the title of the account shows that it belonged to “Perdido Motel Group, Inc.,” the debtor. Under the circumstances of the creation of this account, including the funds credited to it, the debtor’s argument is a non sequitur.
“All things considered,” the defendant’s transfer to reimburse itself was not made from property of the debtor or property in which the debtor had an interest,3 the transfer was not a voidable and preferential transfer, the complaint has not been sustained, and an order will be entered favorable to the defendant.
. 11 U.S.C. § 547(b).
. 11 U.S.C. § 1107(a).
. The defendant filed in this case a proof of claim for the $400,000 deposited by it in the "Guaranty” account but now seeks to withdraw the claim. While the filing by the defendant of the proof of claim appears to be inconsistent with its position that the $400,000 did not become property of the debtor, that is an inconsistency arising subsequent to the transfer in question, and it does not control the issue to be determined in the proceeding. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483480/ | In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-21-00417-CV
IN RE: THE COMMITMENT OF JAMES § On Appeal from the 271st District Court
LAWRENCE BROWNING
§ of Wise County (CV21-03-136)
§ November 10, 2022
§ Memorandum Opinion by Justice Womack
JUDGMENT
This court has considered the record on appeal in this case and holds that there
was no error in the trial court’s judgment. It is ordered that the judgment of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By /s/ Dana Womack
Justice Dana Womack | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483501/ | [Cite as State v. Coleman, 2022-Ohio-4029.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210600
TRIAL NO. 21CRB-16674
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
TISAAN COLEMAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2022
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Rebecca Barnett, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Tisaan Coleman appeals the judgment of the
Hamilton County Municipal Court convicting him of aggravated menacing, a
misdemeanor of the first degree. Coleman argues that his conviction is based on
insufficient evidence and is against the manifest weight of the evidence, and he also
challenges the trial court’s imposition of court costs. For the reasons that follow, we
affirm the judgment of the trial court.
Facts and Procedure
{¶2} On September 15, 2021, Coleman was charged with aggravated
menacing under R.C. 2903.21 for threatening his neighbor with a firearm. On
September 30, 2021, a bench trial was held. At trial, Demetrius Peterson, Coleman’s
neighbor, testified that he had been sitting outside of his apartment building with his
daughter and her boyfriend. Peterson continued to sit outside for a few minutes after
his daughter and her boyfriend went inside to get ready for work. He testified that
when he went back inside the building, he saw Coleman standing in front of his
daughter and her boyfriend pointing a gun at them. Peterson testified that, at this
point, he walked up the stairs to his apartment on the third floor to call the police.
Then, Coleman, “ran behind [him] up the steps” and while pointing a gun at him said,
“no motherfucker, you can get some too.” Peterson then went inside his apartment
and called the police. Peterson testified that Coleman’s sister came into the building
after the incident had occurred to “get [Coleman] and take him away.”
{¶3} Cincinnati Police Officer Bittinger testified that Peterson was “very
nervous and agitated and seemed like he may have been a bit frightened,” when police
arrived. Bittinger testified that Peterson recounted to him that Coleman said, “I’ll
2
OHIO FIRST DISTRICT COURT OF APPEALS
shoot you.” Bittinger testified that he knocked on Coleman’s door, but there was no
answer. Coleman’s apartment was not searched, and a firearm was not found.
{¶4} Coleman testified in his own defense, and stated that he has Asperger’s
syndrome, and often has difficulty communicating with others. Coleman testified that
on the day of the incident, he left his apartment to walk his dog and check his mail.
On his way back to into the building, Coleman walked past Peterson and then, once
inside, “said some short words” to Peterson’s daughter’s boyfriend as they passed on
the stairs “about some taunts that w[ere] made a week earlier” during an apartment
building inspection. Specifically, Coleman testified that “I asked him if he said
something about me. He said he didn’t. I walked up the steps.” Coleman elaborated,
“I asked him if he had something – I asked him what he had against me. I don’t know.
I guess from what another person told me * * * I’m a topic of conversation, and I asked
why. Other than that, it was cool. We went past each other.” Coleman denied
threatening anyone with a gun, testifying, “I don’t carry guns. I don’t do things like
that. It’s not me. I don’t like to be there. I have a really hard time being loud. It’s
stressful.” Coleman testified that although he “heard somebody,” he was not sure if
the police officer knocked on his door because he was in his bedroom watching
television.
{¶5} Coleman’s sister, Kai Coleman, testified for the defense. She testified
that she was in Coleman’s apartment that day and sat by his open door while he went
to check his mail. She denied hearing any interaction between her brother and anyone
else in the hallway. Kai testified that she had never seen Coleman interact with
Peterson before, and that she had never seen Coleman with a gun. Kai testified that
3
OHIO FIRST DISTRICT COURT OF APPEALS
she did not answer the door when the police officer knocked because she was in the
bathroom.
{¶6} A long-time neighbor and former building maintenance manager,
Randy Stoughton, also testified for the defense. He stated that he often hears
arguments in the building’s hallways, but that he did not recall hearing an argument
or any threats on the day of the incident, though he added it is often difficult for him
to hear over the noise of his television. Stoughton testified that he had never seen
Coleman with a gun.
{¶7} After hearing this testimony, the court found Coleman guilty as charged.
Coleman was sentenced to 180 days in jail, with credit for 34 days already served.
Coleman timely appealed, and the court granted a motion to stay the sentence pending
the appeal.
Sufficiency and Weight of the Evidence
{¶8} In Coleman’s first assignment of error, he contends that his conviction
was based on insufficient evidence and runs counter to the manifest weight of the
evidence.
{¶9} When this court reviews a challenge to the sufficiency of the evidence,
we ask “whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. Sufficiency review “raises a question
of law, the resolution of which does not allow the court to weigh the evidence.” State
v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983), paragraph two of the
syllabus; see State v. Guthrie, 1st Dist. Hamilton No. C-180661, 2020-Ohio-501, ¶ 7.
4
OHIO FIRST DISTRICT COURT OF APPEALS
Essentially, we ask “whether the evidence against a defendant, if believed, supports
the conviction.” (Emphasis sic.) State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311,
182 N.E.3d 1161, ¶ 16.
{¶10} A manifest-weight argument on the other hand, “challenges the
believability of the evidence.” State v. Staley, 1st Dist. Hamilton Nos. C-200270,
C-200271 and C-200272, 2021-Ohio-3086, ¶ 10. When we review a challenge to the
manifest weight of the evidence, we must “review the entire record, weigh the
evidence, consider the credibility of the witnesses, and determine whether the trier of
fact clearly lost its way and created a manifest miscarriage of justice.” State v. Powell,
1st Dist. Hamilton No. C-190508, 2020-Ohio-4283, ¶ 16, citing State v. Thompkins,
78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). The court should only reverse the
conviction and grant a new trial in “exceptional case[s] in which the evidence weighs
heavily against the conviction.” Martin at paragraph three of the syllabus. This is
because “the weight to be given the evidence and credibility of the witnesses are
primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 231, 227
N.E.2d 212 (1967).
{¶11} Coleman was convicted of aggravated menacing under R.C. 2903.21(A),
which provides: “[n]o person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of the other
person.” A person acts knowingly “when the person is aware that the person’s conduct
will probably cause a certain result or will probably be of a certain nature.” R.C.
2901.22(B). As relevant here, serious physical harm to persons includes physical harm
that “carries a substantial risk of death,” or involves some incapacity, disfigurement,
or acute pain. R.C. 2901.01(A)(5)(b) – (e).
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} If believed, Peterson’s testimony established that Coleman threatened
multiple individuals in his apartment building with a firearm, and followed Peterson
to his unit, before pointing a firearm at him and delivering a verbal threat. Peterson
testified that after Coleman threatened him with a gun, he immediately went into his
apartment and called 911. He stated, “[W]e stay next door. I can’t even walk out the
door. I wouldn’t feel safe walking out that door.” Peterson’s testimony, coupled with
Bittinger’s testimony that Peterson was “very nervous and agitated and seemed like he
may have been a bit frightened” was sufficient to demonstrate that Peterson feared
Coleman was going to cause him serious physical harm. Thus, Coleman’s conviction
was supported by sufficient evidence. See, e.g., In re Shad, 1st Dist. Hamilton Nos.
C-080965 and C-081174, 2009-Ohio-3611, ¶ 17 (holding conviction for aggravated
menacing was based on sufficient evidence where the victim testified that the
defendant pointed a gun at him, and the victim was afraid he would be shot).
{¶13} Coleman primarily makes a manifest-weight argument because his
focus is on Peterson’s lack of credibility. He contends that because Peterson’s
testimony had some slight inconsistencies, it was not credible, and the court should
not have believed it.
{¶14} The trial court was confronted with conflicting evidence in this case.
And to be sure, Peterson’s testimony certainly had some inconsistencies.
Nevertheless, the court chose to believe Peterson. See, e.g., State v. Carson, 1st Dist.
Hamilton No. C-180336, 2019-Ohio-4550, ¶ 19-20 (holding that the conviction was
not against the manifest weight of the evidence even though there was conflicting
testimony about the interaction, the defendant denied owning a gun, and a gun was
not found, because credibility determinations are primarily for the trier of the facts).
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} In handing down its guilty verdict, the court stated that “[t]he officer
absolutely substantiated the prosecuting witness’s state of fear and belief of being
caused harm.” The court went on to state that the motive “was actually revealed by
Mr. Coleman who said that he felt like he had been taunted in the past * * * and
someone had told [him] that the daughter’s boyfriend had made some comments on a
recent inspection.” The court did not give any weight to Stoughton’s testimony that
he did not recall hearing any threats that day because the court found it difficult to
hear Coleman when he testified even though the court had told him to speak louder.
The court stated, “You do not have to yell a threat in order to utter a threat.” The court
further found that if Coleman had not done anything, he would have opened the door
when the police officer knocked on it.
{¶16} While we certainly weigh the evidence and consider witness credibility
when we review for manifest weight, the trier of facts—the judge in this case—was in
the best position to assess the credibility of the witnesses. See State v. Landrum, 1st
Dist. Hamilton No. C-150718, 2016-Ohio-5666, ¶ 17 (affirming aggravated-menacing
conviction under manifest-weight review and holding that “The trial court was free to
accept the victim’s version of the events and reject [the defendant’s] story * * *
especially where [the defendant] admitted to being angry upon seeing the victim, and
the victim’s version was corroborated by another witness at the scene.”). This is not
one of those exceptional cases in which the evidence weighs heavily against the
conviction. And we cannot say that that the trial court clearly lost its way and created
a manifest miscarriage of justice. Accordingly, the first assignment of error is
overruled.
7
OHIO FIRST DISTRICT COURT OF APPEALS
Court Costs
{¶17} In Coleman’s second assignment of error, he contends that the court
erred by imposing court costs in the sentencing entry, without imposing them at the
sentencing hearing. In support of this argument, Coleman cites to State v. Davis, 1st
Dist. Hamilton Nos. C-200249, C-200250, C-200251 and C-200252, 2021-Ohio-
2954, for the proposition that a reviewing court should reverse the order to pay court
costs where the trial court fails to impose them at the sentencing hearing. The state
concedes this assignment. While our review of the record confirms that the trial court
failed to impose costs at the sentencing hearing, a remand order is not required.
{¶18} We recently explained in State v. Fissel, 1st Dist. Hamilton No.
C-210483, 2022-Ohio-1856, ¶ 17, that “To the extent that Davis is inconsistent with
[State v.] Beasley [153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028,] and R.C.
2947.23(C), the latter control.” See Beasley at ¶ 265 (explaining that the amendments
to R.C. 2947.23(C) allow a defendant to file a motion to waive costs without appellate
court intervention). R.C. 2947.23(C) provides that, “The court retains jurisdiction to
waive, suspend, or modify the payment of the costs of prosecution, * * * at the time of
sentencing or at any time thereafter.” (Emphasis sic.) Fissell at ¶ 17, quoting R.C.
2947.23(C). Thus, Coleman does not need this court to remand the matter to the trial
court and can instead file a motion to waive court costs. The second assignment of
error is overruled.
Conclusion
{¶19} In light of the foregoing analysis, we overrule Coleman’s first and second
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
8
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
9 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483503/ | [Cite as Ownerland Realty, Inc. v. Conversion Properties, L.L.C., 2022-Ohio-4032.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ALEXANDER MARK MOKSIN, : APPEAL NO. C-220074
TRIAL NO. A-2004171
and :
SIMON MOKSIN, : O P I N I O N.
Plaintiffs, :
and :
OWNERLAND REALTY, INC., :
Plaintiff-Appellant, :
vs. :
CONVERSION PROPERTIES LLC, :
MAYFAIR OF MONTGOMERY :
CONDOMINIUM, LLC,
:
CHARLES K. SCHULMAN,
:
MELVIN R. RUBIN,
:
and
:
MARILYN SHAFRON,
:
Defendants-Appellees,
:
and
:
JOHN DOE,
Defendant. :
OHIO FIRST DISTRICT COURT OF APPEALS
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: November 14, 2022
Droder & Miller Co., L.P.A., Edward Collins and Jonathon Powell, for Plaintiff-
Appellant,
Rapier & Bowling Co., L.P.A., and Kyle M. Rapier, for Defendants-Appellees.
2
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} On appeal, plaintiff-appellant Ownerland Realty, Inc., advances a single
assignment of error in which it challenges the entry of summary judgment for
defendants-appellees Conversion Properties L.L.C., Mayfair of Montgomery
Condominium, L.L.C., Charles K. Schulman, Melvin R. Rubin, and Marilyn Shafron
on Ownerland Realty’s complaint. Ownerland Realty seeks recovery for breach of a
written contract against two corporations and various individuals who are allegedly
liable as shareholders. The record demonstrates that when granting summary
judgment to the defendants-appellees, the trial court applied a six-year statute of
limitations when an eight-year statute of limitations governs the breach-of-contract
claim. Consequently, we reverse the trial court’s judgment, and remand the cause for
further proceedings.
{¶2} The dispute involves whether Ownerland Realty can recover for
allegedly unpaid commissions related to the leasing and sale of “apartment
condominiums.” The lawsuit, filed in November 2020, initially involved two
additional plaintiffs, but the trial court granted summary judgment to the defendants-
appellees on those plaintiffs’ claims due to lack of standing, and those plaintiffs have
not appealed the judgment.
{¶3} The primary issue the defendants-appellees asserted in the trial court
when seeking judgment in their favor with respect to Ownerland Realty involved
whether Ownerland Realty’s breach-of-contract claim was barred by the statute of
limitations where Ownerland Realty’s complaint related to commissions that were
alleged as due and owing from February 2013.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The trial court found Ownerland Realty’s breach-of-contract claim
barred by the statute of limitations, referencing the February 2013 date and the six-
year statute of limitations found in R.C. 2305.07. The court granted summary
judgment to the defendants-appellees on that basis. This court reviews the grant of
summary judgment de novo, applying the standard set forth in Civ.R. 56. See Comer
v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.
{¶5} The evidentiary material submitted below demonstrates that
Ownerland Realty’s claim is based upon a written contract that was originally signed
in 2011 and was extended by written agreements through December 2014. R.C.
2305.06 is the general statute of limitations for an action based upon the breach of a
written contract. That statute governs here. See Jones v. Sittineasy L.L.C., 8th Dist.
Cuyahoga No. 103294, 2016-Ohio-712, fn 1. When the complaint was filed in
November 2020, that statute afforded an eight-year statute of limitations. The trial
court applied the six-year statute of limitations found in R.C. 2305.07. This was error.
{¶6} The defendants-appellees concede the error but urge this court to
uphold the trial court’s judgment on other grounds that the trial court never reached.
Considering the original motion and the arguments advanced, we decline to do so in
the first instance. See Sad Adlaka v. New York Life Ins. & Annuity Corp., 2015-Ohio-
605, 27 N.E.3d 871, ¶ 9-10 (7th Dist.), and cases cited therein. The assignment of error
is sustained. The trial court’s judgment applying the statute of limitations in R.C.
2305.07 to bar Ownerland Realty’s breach-of-contract claim concerning the written
contract is reversed, as it barred a claim falling within the eight-year statute of
limitations found in former R.C. 2305.06, and the cause is remanded for further
proceedings.
4
OHIO FIRST DISTRICT COURT OF APPEALS
Judgment reversed and cause remanded.
MYERS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
5 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483500/ | [Cite as State v. Montgomery, 2022-Ohio-4030.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220063
TRIAL NO. 21TRC-10998A
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ANTONIO MONTGOMERY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2022
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Amber H. Daniel, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Antonio Montgomery appeals from the trial
court’s entry convicting him upon a no-contest plea of operating a motor vehicle while
under the influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a). In a single
assignment of error, Montgomery argues that the trial court erred in denying his
motion to suppress. Finding Montgomery’s argument to be without merit, we affirm
the trial court’s judgment.
Factual and Procedural Background
{¶2} On May 20, 2021, several Cincinnati police officers were dispatched to
a home on Glenway Avenue in response to a report of domestic violence. When they
arrived at the home, Leprecious Turner, Montgomery’s wife, told the officers that
Montgomery had assaulted her earlier in the evening outside of a White Castle
restaurant in Northside. While the officers were speaking to Turner, Montgomery
arrived on the scene. After speaking to Montgomery, the officers suspected that he
was under the influence of alcohol. Montgomery agreed to perform field-sobriety
tests. Following his performance on those tests, Montgomery was placed under arrest
and transported to Cincinnati Police Station District Three. At the station, he was read
his Miranda rights and voluntarily submitted to a breath test and a urinalysis test.
{¶3} Montgomery was charged with three OVI related violations: a violation
of R.C. 4511.19(A)(1)(a) for operating a motor vehicle while under the influence of
alcohol or drugs, a violation of R.C. 4511.19(A)(1)(d) for operating a vehicle with a
prohibited concentration of alcohol per liters of breath, and a violation of R.C.
4511.19(A)(1)(j) for operating a motor vehicle with a prohibited concentration of a
controlled substance.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Montgomery filed a motion to suppress. He argued, as relevant to this
appeal, that he was subject to a custodial interrogation at the scene without being read
his Miranda rights and that the officers lacked reasonable suspicion to ask him to
perform field-sobriety tests. He sought to suppress any statements he made, the
results of his field-sobriety tests, and the results of the breathalyzer and urinalysis
tests.
{¶5} At the suppression hearing, Cincinnati Police Officer Randall Bryant
testified that while he was speaking with Turner about the domestic-violence incident,
Montgomery arrived on the scene at approximately 12:15 a.m. and parked across the
street. At the time Montgomery arrived, Officer Bryant believed, after speaking with
Turner and observing her visible injuries, that there was probable cause to arrest
Montgomery for domestic violence, but he did not convey this to Montgomery when
they spoke.
{¶6} According to Officer Bryant, Montgomery scraped his wheels on the
curb as he parked his vehicle and seemed unsteady as he walked across the street, “like
he was swaying back and forth.” Officer Bryant and two other officers approached
Montgomery and began questioning him about the domestic-violence incident with
his wife. Montgomery seemed very excited, and it was difficult for the officers to
initiate questioning. Officer Bryant detected a mild odor of alcohol emanating from
Montgomery and noticed that he had “a bit of slurring to his speech,” as well as
bloodshot and watery eyes. Montgomery continually laughed as the officers spoke
with him.
{¶7} When Officer Bryant asked him if he had been in a physical altercation
with his wife, Montgomery stated that he had been drinking that night and could not
3
OHIO FIRST DISTRICT COURT OF APPEALS
remember getting into a physical altercation. In response to the officer’s follow-up
questions, Montgomery indicated that he had consumed too much alcohol to be able
to remember the physical incident, but he “had not drank too much alcohol to be able
to drive a vehicle.” Montgomery eventually shared more details about the altercation
with his wife, stating that they had drunk “a little bottle” and argued. Montgomery
indicated that he had scratches on his face and hands from the altercation and that he
had been punched in the head.
{¶8} Officer Bryant believed that Montgomery was impaired and asked him
to submit to field-sobriety tests. Officer Bryant testified in detail about all three field-
sobriety tests that Montgomery performed and, ultimately, failed. He stated that at
the conclusion of the field-sobriety tests, Montgomery was placed under arrest and
transported to the police station, where he was read his Miranda rights and voluntarily
submitted to breath and urinalysis tests. Upon further questioning at the station,
Montgomery admitted that he drank red wine that evening, and that he had stopped
drinking between 9:00 p.m. and 11:00 p.m.
{¶9} Officer Bryant’s body-worn camera video, which captured his entire
interaction with Montgomery, including the field-sobriety tests, was admitted into
evidence and played for the court.
{¶10} On cross-examination, Officer Bryant was questioned thoroughly about
exactly when he believed that he had probable cause to arrest Montgomery for
domestic violence. Officer Bryant again stated that he believed he had probable cause
to arrest for that offense when Montgomery arrived on the scene. He also
acknowledged that he was aware of a Cincinnati Police Department policy favoring the
immediate arrest of a domestic-violence offender when probable cause exists.
4
OHIO FIRST DISTRICT COURT OF APPEALS
According to Officer Bryant, Montgomery was not under arrest upon his arrival at the
scene, but he would have been detained if he had attempted to leave. Officer Bryant
attempted to clarify, stating that “So our probable cause is based on the fact that we
only have a one sided statement. When he showed up that gave us the opportunity to
talk to both sides to determine if we still had probable cause to make the arrest,” and
“I wanted to give him the opportunity to give his side of the story before I arrested
him.”
{¶11} Cincinnati Police Officer Vernon Hiatt testified that he read
Montgomery his Miranda rights at the police station and witnessed Montgomery
execute a waiver of those rights. Officer Hiatt witnessed Montgomery provide a urine
sample and administered a breathalyzer test to Montgomery. He testified that the
results of the breathalyzer test indicated that Montgomery’s blood alcohol content was
.081.
{¶12} In an oral decision issued from the bench, the trial court denied the
motion to suppress. In relevant part, it found that the statements challenged by
Montgomery were not the product of a custodial interrogation. In support, the court
stated that “He was not in handcuffs. He was not at the police station. He was not in
the police cruiser. He was on the sidewalk and voluntarily provided a great deal of
information to the police in regards to both the reason for the initial encounter and
ultimately to—they found it to be relevant to this OVI charge.”
{¶13} Montgomery subsequently pled no contest to OVI in violation of R.C.
4511.19(A)(1)(a), and the two remaining charges were dismissed. He was sentenced to
180 days in jail. Montgomery received seven days of credit for time served, and the
remaining 173 days were suspended. The trial court additionally imposed a six-month
5
OHIO FIRST DISTRICT COURT OF APPEALS
period of community control, financial sanctions, and a one-year driver’s license
suspension.
{¶14} Montgomery now appeals, arguing in a single assignment of error that
the trial court erred in denying his motion to suppress.
Standard of Review
{¶15} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. We must accept the trial court’s factual findings if they are supported by
competent, credible evidence, but we review de novo the trial court’s application of the
law to those facts. Id.
Denial of Motion to Suppress
{¶16} Montgomery contends that the trial court erred in denying his motion
to suppress because he was subject to a custodial interrogation without having had
Miranda rights administered. He argues that his statements should have been
suppressed because of the Miranda violation, and that the results of his field-sobriety,
breath, and urinalysis tests should have been suppressed as fruit of the poisonous tree.
{¶17} The Fifth Amendment to the United States Constitution provides that
no person “shall be compelled in any criminal case to be a witness against himself.”
To protect a person’s Fifth Amendment privilege against self-incrimination, the
United States Supreme Court announced in Miranda v. Arizona, 384 U.S. 436, 444,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that the prosecution may not use statements
stemming from a custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards. The law is well-settled that in the absence of Miranda
6
OHIO FIRST DISTRICT COURT OF APPEALS
warnings, statements obtained during a custodial interrogation are inadmissible.
State v. Hill, 1st Dist. Hamilton No. C-170507, 2018-Ohio-3130, ¶ 45.
{¶18} An accused is subject to a custodial interrogation where she or he “has
been taken into custody or deprived of his freedom, and a law enforcement officer
questions that person.” Id. An objective test is used to determine whether an accused
was subject to a custodial interrogation. State v. Durgan, 1st Dist. Hamilton No. C-
170148, 2018-Ohio-2310, ¶ 14. “Determining what constitutes custody for Miranda
purposes depends on the facts of each case.” State v. Neely, 161 Ohio App.3d 99, 2005-
Ohio-2342, 829 N.E.2d 718, ¶ 26 (1st Dist.). “Whether a custodial interrogation has
occurred depends on how a reasonable person in the suspect’s position would have
understood the situation.” State v. Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893,
817 N.E.2d 411, ¶ 40 (1st Dist.). An officer’s intent to arrest does not dictate whether
a custodial interrogation occurred. As the United States Supreme Court set forth in
Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), “[a]
policeman’s unarticulated plan has no bearing on the question whether a suspect was
‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in
the suspect’s position would have understood his situation.”
{¶19} The Supreme Court of Ohio clarified this reasonable-person test in
Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 30, holding that
the test to be applied when determining whether a suspect was subject to a custodial
interrogation is whether a reasonable person in the suspect’s position would have
understood herself or himself to be in custody, and not whether a reasonable person
in the suspect’s position would have felt free to leave. The court stated:
7
OHIO FIRST DISTRICT COURT OF APPEALS
Oles contends that his belief that he was not free to leave should be
dispositive. The court of appeals also articulated the test this way,
finding that a reasonable person would not have felt free to leave. But
the relevant inquiry is whether a reasonable person in the suspect’s
position would have understood himself or herself to be in custody.
This nuance is important and well reasoned. If the inquiry were
whether the driver felt free to leave, then every traffic stop could be
considered a custodial interrogation because ‘few motorists would feel
free either to disobey a directive to pull over or to leave the scene of a
traffic stop without being told they might do so,’ Berkemer, 468 U.S. at
436, 104 S.Ct. 3138, 82 L.Ed.2d 317. And a law-enforcement officer, in
the midst of investigating a traffic stop and performing all its attendant
procedures, would not consider a driver free to leave unless given
permission. But ‘not free to leave’ and ‘in custody’ are distinct concepts.
For purposes of the constitutional privilege against self-incrimination,
the test is not whether the individual feels free to leave but whether the
situation ‘exerts upon a detained person pressures that sufficiently
impair his free exercise of his privilege against self-incrimination to
require that he be warned of his constitutional rights.’
Oles at ¶ 30-31, quoting Berkemer at 436-437.
{¶20} With this relevant law in mind, we turn to Montgomery’s arguments.
Montgomery contends that because the officers at the scene had probable cause to
arrest him for domestic violence and intended to arrest him for that offense, he was
subject to a custodial interrogation as soon as they began questioning him. He urges
8
OHIO FIRST DISTRICT COURT OF APPEALS
this court to adopt a bright-line rule that Miranda warnings must be given any time
officers have probable cause to arrest. We reject Montgomery’s proposition and
decline to adopt such a rule. Rather, we continue to apply the well-settled law that
whether an offender was subject to a custodial interrogation depends upon whether a
reasonable person in the offender’s position would have understood herself or himself
to be in custody. See id. at ¶ 30.
{¶21} In determining whether a reasonable person in the offender’s situation
would have understood herself or himself to be in custody, the Second District has
relied on the following factors:
1) What was the location where the questioning took place -- i.e., was
the defendant comfortable and in a place a person would normally feel
free to leave? For example, the defendant might be at home as opposed
to being in the more restrictive environment of a police station;
2) Was the defendant a suspect at the time the interview began (bearing
in mind that Miranda warnings are not required simply because the
investigation has focused);
3) Was the defendant’s freedom to leave restricted in any way;
4) Was the defendant handcuffed or told he was under arrest;
5) Were threats were (sic) made during the interrogation;
6) Was the defendant physically intimidated during the interrogation;
7) Did the police verbally dominate the interrogation;
8) What was the defendant’s purpose for being at the place where
questioning took place? For example, the defendant might be at a
9
OHIO FIRST DISTRICT COURT OF APPEALS
hospital for treatment instead of being brought to the location for
questioning;
9) Were neutral parties present at any point during the questioning;
10) Did police take any action to overpower, trick, or coerce the
defendant into making a statement.
State v. Estepp, 2d Dist. Montgomery No. 16279, 1997 Ohio App. LEXIS 5279, *10-11
(Nov. 26, 1997). While this court has not formally adopted these factors, we find them
instructive.
{¶22} As we consider whether a reasonable person in Montgomery’s situation
would have understood herself or himself to be in custody, we are mindful of the trial
court’s factual findings that Montgomery was not handcuffed by the officers, and was
questioned on a sidewalk outside his home, rather than in a police cruiser or at a police
station. As the trial court found, Montgomery was not questioned in a restrictive
environment. He voluntarily returned to his home without being summoned there,
and he approached the officers upon arriving on the scene. Although three officers
formed somewhat of a perimeter around him for questioning, they did not engage in
coercive tactics, intimidate, or threaten Montgomery. Nor did they dominate the
questioning. The record indicates that Montgomery voluntarily answered the officers’
questions and engaged in conversation with them. Upon his arrival at the scene, the
officers suspected Montgomery of committing domestic violence, but he was not a
suspect in any alcohol-related offenses.
{¶23} Following our review of the record, we hold that a reasonable person in
Montgomery’s situation would not have understood herself or himself to be in custody,
10
OHIO FIRST DISTRICT COURT OF APPEALS
and therefore, that Montgomery was not subject to a custodial interrogation. Because
he was not subject to a custodial interrogation, Miranda warnings were not required.
{¶24} Montgomery additionally relies on Ohio’s preferred arrest policy set
forth in R.C. 2935.03 to argue that Miranda warnings were required in this situation
where officers had probable cause to arrest him for domestic violence. R.C.
2935.03(B)(3)(b) provides in relevant part:
If pursuant to division (B)(3)(a) of this section a peace officer has
reasonable grounds to believe that the offense of domestic violence or
the offense of violating a protection order has been committed and
reasonable cause to believe that a particular person is guilty of
committing the offense, it is the preferred course of action in this state
that the officer arrest and detain that person pursuant to division (B)(1)
of this section until a warrant can be obtained.
{¶25} We find this statute irrelevant to an analysis of whether a suspect’s
constitutional rights were violated as the result of a custodial interrogation. As clearly
established in Berkemer, an officer’s unarticulated intent to arrest an offender has no
bearing on whether a suspect was in custody. Berkemer, 468 U.S. at 442, 104 S.Ct.
3138, 82 L.Ed.2d 317. Rather, the focus remains on whether a reasonable person in
the suspect’s situation would have understood herself or himself to be in custody. Like
an officer’s unarticulated intent to arrest, Ohio’s statutory preference for the arrest of
offenders believed to have committed domestic violence similarly has no bearing on
whether a custodial interrogation has occurred. And in any event, it is simply a
preference.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Because Montgomery was not subject to a custodial interrogation,
Miranda warnings were not required. And because Miranda warnings were not
required, Montgomery’s statements were not inadmissible and the results of the field-
sobriety, breath, and urinalysis tests were not subject to exclusion as fruit of the
poisonous tree.1
{¶27} The trial court did not err in denying the motion to suppress.
Montgomery’s assignment of error is overruled, and the judgment of the trial court is
affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
1 We note that even if Montgomery had been subject to a custodial interrogation rendering his
statements inadmissible, the record establishes that even with the exclusion of any statements
made by Montgomery, the officers had reasonable suspicion to request that he perform field-
sobriety tests. Officer Bryant’s testimony established that Montgomery struck the curb when
parking, seemed unsteady and swayed as he walked across the street, laughed at inappropriate
times during the questioning, slurred his speech to an extent, had bloodshot and watery eyes, and
had a mild odor of alcohol emanating from him.
12 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483502/ | [Cite as State v. Bailey, 2022-Ohio-4028.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210584
TRIAL NO. B-2004719
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
RYAN BAILEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: November 14, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah Nelson, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant, Ryan Bailey, appeals the trial court’s denial of his
motion to suppress. In this case, we are asked to determine whether Bailey, who had
been stopped for a missing headlight, was surrounded and blocked-in by police
officers, ordered out of his car, handcuffed, patted down, and told that a K-9 unit
would be walked around his car, was “in custody” when he was questioned by an officer
without being informed of his Miranda rights. Because we agree that a reasonable
person in such a situation would have understood himself to be in custody, we hold
that the trial court should have granted Bailey’s motion to suppress.
Facts and Procedure
{¶2} On September 12, 2020, defendant-appellant Ryan Bailey was stopped
by Cincinnati Police in the parking lot of a Cincinnati Metropolitan Housing Authority
apartment complex in Cincinnati, Ohio. Officers searched his car and found
marijuana and a firearm.
{¶3} On September 17, 2020, Bailey was indicted on three counts: (1)
receiving stolen property in violation of R.C. 2913.51(A); (2) carrying a concealed
weapon in violation of R.C. 2923.12(A)(2); and (3) improperly handling a firearm in a
motor vehicle in violation of R.C. 2923.16(B). Each charge is a fourth-degree felony.
On July 7, 2021, Bailey filed a motion to suppress statements he made admitting to
the marijuana in the vehicle, and the other evidence found based on those statements.
{¶4} At the suppression hearing, Officer Tom Chiappone testified that
members of the gun task force had been dispatched to the parking lot around 11:30
p.m. to disperse “a large group gathering, [of people] using marijuana in the open.”
Officer Chiappone’s partner, Trent Meucci, testified that Bailey caught the attention of
2
OHIO FIRST DISTRICT COURT OF APPEALS
an officer because he was trying to exit the lot “in a hurry.” Suspecting his exit was
precipitated by the police presence, an officer communicated this information over the
radio. Officers Chiappone and Meucci heard the call, saw the car, activated their lights,
and positioned their cruiser to block Bailey from exiting the parking lot. The officers
testified that they had observed a broken headlight on Bailey’s car prior to the stop.
{¶5} After relaying Bailey’s information to dispatch, officers learned that
Bailey had several open capiases for traffic offenses. Meucci asked Bailey to step out
of his vehicle and he placed Bailey in handcuffs while the capiases were being
investigated. Meucci testified that during the walk to his police cruiser, he:
advised [Bailey] that we were going to call and confirm the warrants;
that he wasn’t necessarily going to go to jail * * * I did ask him, maybe
twice, if there was anything in the vehicle. I made him aware that there
was a K-9 officer that was on scene. And I simply asked, if the K-9 did
an open-air sniff, would he hit on your vehicle? And he said, Yes, I have
weed in the car.
The body-camera footage, which was played at trial, largely confirms Meucci’s account
of the interaction and shows that there were at least three marked police cruisers and
five uniformed officers at the scene. While handcuffing Bailey, Meucci can be heard
saying, “Doesn’t mean you’re going to jail or anything, my friend. We gotta at least
check everything out.” Then, Meucci led Bailey towards his police cruiser. On the way
to the cruiser, Bailey was patted down as the following exchange occurred:
MEUCCI: You ain’t got anything on you, do you? Cause I’m going to
be checking–just let me know.
BAILEY: No.
3
OHIO FIRST DISTRICT COURT OF APPEALS
MEUCCI: Anything in the car?
BAILEY: No.
MEUCCI: You’re the registered owner, right?
BAILEY: Yes.
MEUCCI: So if the dog walked around your car it wouldn’t hit on
anything? Marijuana or anything like that?
BAILEY: I might – I have some weed in the car.
At this point, approximately three minutes had elapsed since Bailey’s car had been
stopped. A second officer, Officer Twehues, joined the pair, and asked:
TWEHUES: You have some weed in the car?
BAILEY: Yes.
TWEHUES: Where’s it at?
BAILEY: Under my radio
Meucci continued:
MEUCCI: If we can get you re-cited on these we’ll work with you man.
BAILEY: Okay
MEUCCI: There’s nothing in the car is there?
BAILEY: Just the weed.
MEUCCI: Just the weed? Okay cause they’re gonna check, alright? I’ll
get you in the car here in a second – [if it’s] something we can get you
re-cited on, we’ll definitely take care of you.
{¶6} Bailey was then placed in the back of the police cruiser, still in
handcuffs. Around the same time, police searched his vehicle and, in addition to the
marijuana, found a handgun under the driver’s seat that was discovered to be stolen.
4
OHIO FIRST DISTRICT COURT OF APPEALS
Approximately 90 seconds after being put in the backseat, he was advised of his
Miranda rights.
{¶7} In his motion to suppress, Bailey argued that his statements admitting
to the marijuana in the vehicle, and any related evidence, must be suppressed pursuant
to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because
he made the statements during a period of custodial interrogation, and prior to being
advised of his Miranda rights. He further argued that any evidence found based on
those statements must also be suppressed as “fruit of the poisonous tree.” See Wong
Sun v. United States, 371 U.S. 471, 484-489, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In
denying Bailey’s motion to suppress the trial court reasoned that “a reasonable person
would not conclude that the Defendant was in custody” because he was told that he
was not necessarily going to jail, there were no threats or intimidating comments made
to him, the intrusion was minimal, and the exchange was brief and to the point.1
{¶8} On October 21, 2021, Bailey withdrew his not-guilty plea and pleaded
no contest to all the charges. The court found him guilty as charged, and sentenced
him to three years of community control, including a residential term at River City
Correctional Center and postresidential community supervision. Bailey timely
appealed, and his sentence was stayed pending the appeal.
Law and Analysis
{¶9} In Bailey’s sole assignment of error, he contends that the trial court
erred when it denied his motion to suppress his statements about the marijuana in his
vehicle. The state contends that the motion was properly denied because Bailey was
1In reaching this conclusion, the trial court relied on ten factors set forth in State v. McCrary, 2d
Dist. Montgomery No. 18885, 2002-Ohio-396.
5
OHIO FIRST DISTRICT COURT OF APPEALS
not subject to custodial interrogation at the time of his admission, and thus a Miranda
warning was unnecessary.
{¶10} This court’s review of a motion to suppress is “ ‘a mixed question of law
and fact. We must accept the trial court’s findings of fact as true if competent, credible
evidence supports them. But we must independently determine whether the facts
satisfy the applicable legal standard.’ ” State v. Thompson, 1st Dist. Hamilton No.
C-200388, 2021-Ohio-3184, ¶ 10, quoting State v. Taylor, 174 Ohio App.3d 477,
2007-Ohio-7066, 882 N.E.2d 945, ¶ 11 (1st Dist.). We review de novo “ ‘whether the
facts satisfy the applicable legal standard.’ ” Id., quoting State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶11} Generally, when “police take a suspect into custody and then ask him
questions without informing him of [his Miranda rights], his responses cannot be
introduced into evidence to establish his guilt.” Berkemer v. McCarty, 468 U.S. 420,
429, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Derivative evidence when “obtained by
exploitation of the illegal search or seizure,” known as fruit of the poisonous tree, also
cannot be introduced. State v. Pies, 140 Ohio App.3d 535, 541, 748 N.E.2d 146 (1st
Dist.2000); see Wong Sun, 371 U.S. at 484-489, 83 S.Ct. 407, 9 L.Ed.2d 441.
{¶12} The key issue in this case is whether Bailey was subject to custodial
interrogation such that the protections afforded by Miranda were triggered. In
Miranda, the Supreme Court defined custodial interrogation as “questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way * * *.” Miranda, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694, first paragraph of the syllabus.
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} While not all traffic stops trigger Miranda, “[i]f a motorist who has been
detained pursuant to a traffic stop thereafter is subjected to treatment that renders
him ‘in custody’ for practical purposes, he will be entitled to the full panoply of
protections prescribed by Miranda.” Berkemer at 440. In Berkemer, the United States
Supreme Court reasoned that traffic stops are unlike other forms of police questioning
because (1) the stops are “presumptively temporary and brief,” and (2) the stops are
“substantially less ‘police dominated.’ ” Id. at 439. Ultimately, the court held that “the
only relevant inquiry in determining whether a person is in custody is how a
reasonable man in the suspect’s position would have understood his situation.” Id. at
442 (holding that a defendant was not taken into custody where he was asked to step
out of the vehicle, was questioned about his drinking, and failed a field-sobriety test,
because he did not demonstrate that he was subjected to “restraints comparable to
those associated with a formal arrest.”); see City of Cleveland v. Oles, 152 Ohio St.3d
1, 2017-Ohio-5834, 92 N.E.3d 810, ¶ 30 (holding that the relevant inquiry is not
whether a person would have felt free to leave, but rather “whether a reasonable
person in the suspect's position would have understood himself or herself to be in
custody.” (Emphasis sic.)).
{¶14} The Ohio Supreme Court applied these principles in State v. Farris, 109
Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 14, when it held that a defendant
was in custody after a routine traffic stop because the officer patted him down, took
his car keys, instructed him to sit in the front seat of his police car, and told the subject
that he was going to search his car because he smelled marijuana. Id. at ¶ 3. The court
reasoned that the defendant was “in custody for practical purposes” because “he had
no car keys and reasonably believed that he would be detained at least as long as it
7
OHIO FIRST DISTRICT COURT OF APPEALS
would take for the officer to search his automobile.” Id. at ¶ 14. Thus, the defendant’s
admission about drug paraphernalia in the car, along with the paraphernalia itself,
was inadmissible. Id. at ¶ 48-49; compare State v. Leonard 1st Dist. Hamilton No.
C-060595, 2007-Ohio-3312, ¶ 22 (“[c]ompared to the facts in Farris, the intrusion * *
* was minimal” because the defendant sat in the front seat of the police cruiser, was
not handcuffed or patted down, and he kept his own keys); see State v. Lukjare, 5th
Dist. Ashland No. 15-COA-038, 2016-Ohio-4613, ¶ 37 (holding that defendant was not
in custody, despite being in the back of a police car because he was not handcuffed, his
keys were not taken, and he was not subject to lengthy detention); State v. Strozier,
172 Ohio App.3d 780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 19 (2d Dist.) (holding that
the defendant was in custody where he was “ordered out of the vehicle by at least five
officers at gunpoint, told to lie on the ground, and handcuffed”).
{¶15} The state points to the factors set out in Oles, 152 Ohio St.3d 1, 2017-
Ohio-5834, 92 N.E.3d 810, to demonstrate the Bailey was not subject to police
interrogation. In Oles, the court synthesized prior decisions in Berkemer, Farris, and
others, and identified three factors to consider when faced with custodial interrogation
issues:
questioning a suspect during a traffic stop in the front seat of a police
vehicle does not rise to the level of a custodial interrogation when (1) the
intrusion is minimal, (2) the questioning and detention are brief, and
(3) the interaction is nonthreatening or nonintimidating.
Id. at ¶ 24.
{¶16} Notably though, Bailey was not yet in a police cruiser at the time of his
admission. So, while these factors are helpful, we also consider the factors set out by
8
OHIO FIRST DISTRICT COURT OF APPEALS
the Seventh District in State v. Withrow, 2022-Ohio-2850, 194 N.E.3d 804 (7th Dist.).
In Withrow, the defendant was ordered out of the vehicle, patted down, and asked if
there was any contraband on his person. Id. at ¶ 4-5. Withrow denied having anything
on him, but apparently not believing him, the officer repeated back to him, “No?” Id.
at ¶ 4- 5. Withrow then admitted to having marijuana on his person. Id. at ¶ 5. He
was then handcuffed, taken away from his car, and told, “You’re not under arrest,
you’re being detained.” Id. at ¶ 46. The officer then asked, “Nothing else is on you but
the weed?” and told Withrow that “he intended to search every pocket and every
crevice of his body, and gave him what he referred to as the chance for ‘honesty hour,’
an opportunity to admit that he possessed any contraband that might be found in a
search.” Id. at ¶ 6. The officer then conducted a thorough search of his person and
found additional drugs, a methamphetamine pipe, and $287. Id. at ¶ 7. Based on these
statements and the evidence, his car was subsequently searched, and additional
contraband was found. Id. at ¶ 9. On appeal, the court reasoned that relevant factors
to consider when determining whether a subject was in custody for purposes of
Miranda included “whether the subject was handcuffed at time of the statement,” the
number of police officers on the scene, and how many times a specific question is
asked. Id. at ¶ 45. Considering all these factors, the court held that Withrow was in
custody at the time of his first admission—even before being handcuffed. Id. at ¶ 57.
Thus “all evidence, whether verbal or physical, obtained from the moment [the officer]
asked his first question [was] inadmissible.” Id.
{¶17} Here, it is undisputed that after Bailey exited his vehicle, he was
handcuffed, searched, and taken away from his vehicle to a police cruiser. At the time
of this interaction, there were at least five police officers and three police cruisers at
9
OHIO FIRST DISTRICT COURT OF APPEALS
the scene. Bailey’s car was entirely blocked in. Despite the officer’s assurances that
Bailey was not necessarily going to jail, we hold that, considering the totality of the
circumstances, a reasonable person would have understood themselves to be in
custody at the time of Bailey’s admission.
{¶18} The intrusion here was not minimal. Although the interaction was brief,
Bailey was handcuffed, patted down, led away from his vehicle, and subjected to
repeated questioning about the contents of his vehicle, while headed for a police
cruiser.
{¶19} The environment was also threatening and intimidating because the
police presence at the scene was significant. Moreover, Bailey only admitted to having
marijuana in the vehicle after he was threatened that police would run a K-9 unit
around his car.2 Similar to the custodial interrogations in Farris and Withrow, police
suggested to Bailey that additional effort would be made to locate contraband in his
vehicle. (“So if the dog walked around your car it wouldn’t hit on anything? Marijuana
or anything like that?”).
{¶20} While the state contends that a K-9 open-air sniff is not the same as a
search, it is still reasonable to conclude that it would evoke a similar response from
someone in Bailey’s position. Unlike a typical traffic stop, this was precisely the “kind
of interrogation—designed to pressure a suspect to confess to illegal conduct—that was
of particular concern to the Supreme Court in Miranda.” See Oles, 152 Ohio St.3d 1,
2017-Ohio-5834, 92 N.E.3d 810, at ¶ 28 (noting that the police questioning in Farris,
wherein an officer “made it known that he suspected illegal conduct * * *, told [the
2The trial court’s entry denying the motion to suppress noted that “the drug dog was on scene and
ready to be used,” so we note that this was not an empty threat.
10
OHIO FIRST DISTRICT COURT OF APPEALS
suspect] that he would search the car, and then asked about [contraband] that he
might find in the car” exemplified a threatening and intimidating interaction).
{¶21} Similar to the defendant in Withrow, Bailey was handcuffed at the time
of his statement, at least five police officers were on the scene, and he was asked about
the presence of contraband multiple times before making his admission. See Withrow,
2022-Ohio-2850, 194 N.E.3d 804, at ¶ 45.
{¶22} Therefore, we hold that Bailey’s statement about the marijuana in his
vehicle was obtained in violation of Miranda and should have been suppressed, along
with the firearm found during the subsequent search. Consequently, we sustain
Bailey’s assignment of error, reverse the judgment of the trial court, and remand the
matter for further proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
MYERS, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
11 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483499/ | [Cite as Veach v. Adams, 2022-Ohio-4031.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TIFFANY L. VEACH, : APPEAL NO. C-220072
TRIAL NO. DR-1402299
Plaintiff-Appellee, :
vs. : O P I N I O N.
AARON J. ADAMS, :
Defendant-Appellant. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2022
The Lampe Law Office, LLC, and Vicki L. Richmond, for Plaintiff-Appellee,
Alex van der Zee, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Aaron J. Adams (“father”) appeals the judgment
of the Hamilton County Court of Common Pleas, Domestic Relations Division, which
modified the terms of his parenting time. Appellant’s appeal is focused on one
sentence of the court’s order that states, “No child shall be forced to attend parenting
time with Father and the Court will not entertain any motion for contempt for the
refusal of a child to attend parenting time when that child has vehemently protested
going to Father’s home.” For the reasons that follow, we affirm the judgment of the
trial court.
I. Factual and Procedural History
{¶2} The parties were divorced via a decree of divorce entered by the court
on July 29, 2016. Five children—O.A., C.A., I.A., M.A., and L.A.—were born issue of
the marriage.1 Plaintiff-appellee Tiffany L. Veach (“mother”) was designated the
residential parent and legal custodian of the children and an order was issued for
father to have parenting time. Mother filed a motion to modify or restrict father’s
parenting time on August 28, 2020, asserting that father was recently terminated from
his employment under allegations that were concerning. Father filed his own motion
to modify parenting time on January 4, 2022, asserting that mother had “blocked” his
parenting time on numerous occasions and requesting that the court order him more
time with the children. Father filed an amended motion the following day with no
relevant changes. A hearing was held on all motions on February 10, 2022.
{¶3} At the hearing, mother entered as evidence records from father’s
previous employer, Proclean, which asserted that father was fired for sexual
1O.A. reached 18 years of age during the pendency of this case and is therefore not the subject of
this appeal.
2
OHIO FIRST DISTRICT COURT OF APPEALS
harassment of two minor employees and making inappropriate sexual comments to
other employees. Father testified that he was shocked when he saw these records as
he was only told that the owner wanted to part ways. Father denied that the allegations
in the records were true. The general manager of Proclean testified that father—who
was the regional manager at Proclean—would engage in “inappropriate talk” about sex
at work and said that father was fired after this was brought to the owner’s attention.
The general manager also testified that he distanced himself from father because
father’s behavior made him feel “sick and uncomfortable.” Father admitted in his
testimony that he was also fired from Amazon due to allegations of sexual harassment.
{¶4} Mother also entered as evidence a photo of a camera that was found in
the closet of M.A. and I.A.’s room at father’s house. Father testified that the camera
was removed about a year ago. He said that the camera was placed there to watch his
two-year-old daughter, who was born issue of his current marriage. He claimed that
he and his wife would place the two-year-old in the room with a baby gate across the
door and the camera would allow his wife to watch the child while he was at work. He
said that he only became aware that the camera made M.A. and I.A. (“the girls”)
uncomfortable when his attorney told him, and that is when he took the camera down.
He denied ever recording the girls in their bedroom or ever accessing the camera. He
testified that he also had a camera in the two-year-old’s room. Mother testified that
she found out about the camera from O.A.
{¶5} Both parties testified regarding an incident that occurred with M.A.
during father’s parenting time the weekend of February 12, 2021. Mother testified that
she texted father before his parenting time to let him know that M.A. was not feeling
well. Father testified that M.A. had a “slight fever” and he gave her medicine and
Gatorade to keep her hydrated. He said that M.A. was crying and said that she didn’t
3
OHIO FIRST DISTRICT COURT OF APPEALS
feel well and her stomach hurt, so he gave her medicine and her stomach stopped
hurting. He claimed that it was “just like a typical flu,” and MA. was feeling better on
Sunday before she left. Mother testified that, when M.A. got out of the car at the
parenting exchange at the end of the weekend, M.A. looked pale and “so sick.” She
took M.A. to the emergency room and was told that M.A. was in “complicated shock.”
She said that M.A.’s blood pressure was extremely low and her heart rate was
extremely fast, and she was in so much pain from her stomach that the medical staff
gave her fentanyl several times. M.A. was in the hospital for four days and was
diagnosed with MIS-C, which is a condition that children develop after COVID that is
extremely rare but severe. Mother described this experience as having a traumatic
effect on all the children.
{¶6} Testimony was presented regarding the children’s behavior leading up
to and during parenting exchanges. Mother’s husband testified that the girls would
start “acting out” on the Thursday prior to their visits with father. He described “acting
out” as screaming, hollering, fighting and just “being bad” in general. He said that the
girls would fight and cry and “stuff like that” on the way to and from parenting
exchanges and said that it usually took them a few days to get back to normal. He
denied that C.A. or L.A. (“the boys”) acted any differently before father’s parenting
time. Mother testified that M.A. would cry and “go to herself,” while I.A. would be
kicking and screaming on the floor. She said that this behavior happened all the time,
but also said that the “crying and stuff” had “eased up” since I.A. had gotten older.
Regarding the boys, mother testified that they were “okay.” Father denied that the girls
ever made him aware that they did not want to come to his house and said that he only
heard about it from mother. He claimed that the girls told their mother one thing and
him another.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Mother testified that the girls’ changes in behavior, the camera in their
bedroom at father’s house, and the fact that father was terminated from his
employment for sexual harassment caused her to have a “bad feeling.” She said that
she just wanted the children to be safe and protected and said, “I think there’s a lot of
mental abuse happening, and I am concerned about the kids honestly.”
{¶8} Father testified that he did not believe that mother would follow any
“open-ended” parenting-time order and said that he felt like mother would not answer
his call or text him back if he asked for more time with the children. He submitted a
list of missed parenting-time dates where no make-up time was given or offered.
Mother agreed that father had missed those parenting times. She testified that one of
the times was when the girls were crying and screaming in the road at the parenting
exchange and M.A. “physically climbed in the back seat to hide,” so she did not send
the children to father’s house.
{¶9} After the hearing, the trial court entered a decision on February 11,
2022, granting all motions. The court expressly considered the factors under R.C.
3109.051(D) and ordered that there was to be no change in father’s parenting time
except for a few slight changes not relevant to this appeal. As stated above, this appeal
concerns one sentence of the court’s order that says, “No child shall be forced to attend
parenting time with Father and the Court will not entertain any motion for contempt
for the refusal of a child to attend parenting time when that child has vehemently
protested going to Father’s home.”
II. Law and Analysis
A. Discretion of a Child to Attend Parenting Time
{¶10} In his first assignment of error, father asserts that the trial court erred
by giving the children discretion not to attend parenting time. “We review the trial
5
OHIO FIRST DISTRICT COURT OF APPEALS
court’s judgment on modifications to parenting time for an abuse of discretion.”
Bohannon v. Lewis, 1st Dist. Hamilton Nos. C-210316 and C-210332, 2022-Ohio-
2398, ¶ 27, citing Souders v. Souders, 1st Dist. Hamilton No. C-210469, 2022-Ohio-
1953, ¶ 6. “An abuse of discretion ‘implies that the trial court’s decision was
unreasonable or arbitrary.’ ” Id. at ¶ 14, citing Kane v. Hardin, 1st Dist. Hamilton No.
C-180525, 2019-Ohio-4362, ¶ 6. The trial court has broad discretion in modifying
parenting time. Id. at ¶ 27, citing In re Ross, 154 Ohio App.3d 1, 2003-Ohio-4419, 796
N.E.2d 6, ¶ 5 (1st Dist.).
{¶11} Where one parent is the legal custodian of the children, modifications
to parenting time are governed by R.C. 3109.051. Id. at ¶ 28, citing Hartman v.
Hartman, 8th Dist. Cuyahoga No. 107251, 2019-Ohio-1637, ¶ 16, and Braatz v. Braatz,
85 Ohio St.3d 40, 43, 706 N.E.2d 1218 (1999), paragraph one of the syllabus. “In
determining whether to modify parenting time, a change in circumstances is not
required.” Id. at ¶ 30, citing Braatz at paragraph two of the syllabus. “Rather, the court
must determine whether the modification is in the child’s best interest, considering
the best-interest factors set forth in R.C. 3109.051(D).” Id., citing Ross at ¶ 5. The best-
interest factors include, in relevant part, the prior interaction and interrelationships
of the child with the child’s parents, the age of the child, the health and safety of the
child, the mental and physical health of all parties, and any other factor in the best
interest of the child. R.C. 3109.051(D)(1), (4), (7), (9), (16). “Whenever possible, the
order or decree permitting the parenting time shall ensure the opportunity for both
parents to have frequent and continuing contact with the child, unless frequent and
continuing contact by either parent with the child would not be in the best interest of
the child.” R.C. 3109.051(A).
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} “A trial court has the discretion to limit or restrict visitation rights.”
Hagan v. Hagan, 5th Dist. Delaware No. 18 CAF 03 0030, 2019-Ohio-51, ¶ 44, citing
Jannetti v. Nichol, 7th Dist. Mahoning No. 97-CA-239, 2000 Ohio App. LEXIS 2116,
*3 (May 12, 2000). “ ‘This includes the power to restrict the time and place of
visitation, to determine the conditions under which visitation will take place and to
deny visitation rights altogether if visitation would not be in the best interests of the
child.’ ” Id., quoting Janneti; accord Lumley v. Lumley, 10th Dist. Franklin No. 09AP-
556, 2009-Ohio-6992, ¶ 17. The best interest of the child is the paramount
consideration when granting visitation rights and a parent’s right to visit a child is
subservient to the welfare of the children. Id. at ¶ 49.
{¶13} “[A]n affirmative and independent decision by a child to not visit a
parent plays a pivotal role in whether the visitation should be compelled.” Id., citing
Smith v. Smith, 70 Ohio App.2d 87, 89-90, 434 N.E.2d 749 (10th Dist.1996). Courts
have upheld a trial court’s decision to allow parenting time to be at a child’s discretion
where the trial court’s determination that such discretion was in the best interest of
the child was supported by the record. See, e.g., Hagan at ¶ 46-47, 51; Wilson v.
Redmond, 12th Dist. Madison No. CA2003-09-033, 2004-Ohio-3910, ¶ 7-8, 12-13;
Kelley v. Kelley, 6th Dist. Wood No. WD-19-073, 2020-Ohio-1535, ¶ 42-43.
{¶14} Here, the trial court left participation in parenting time within the
discretion of each child only to the extent that no child would be forced to attend
parenting time. Father argues that the trial court’s order will allow mother to
manipulate the children into not exercising any parenting time with him. However,
such concerns are not supported by the record. The record shows that M.A. and I.A.
have a history of acting out in anticipation of their parenting time with father and, in
some circumstances, have even expressed their desire not to attend parenting time
7
OHIO FIRST DISTRICT COURT OF APPEALS
with father by crying, screaming, lying on the ground, or hiding in mother’s car.
Notably, the protests from the children occurred on the way to the parenting exchange
or at the exchange. There was no evidence of any manipulation by mother to cause the
children to avoid parenting time. In fact, the evidence indicated that the protest
occurred while mother was trying to cause the children to attend parenting time. We
recognize that the evidence reflects that only the girls have protested parenting time.
However, the trial court’s order would only become relevant to the boys if they
exhibited similar protests to attending parenting time. When looking at what was in
the best interest of the children, the trial court expressly considered all the best-
interest factors and determined that it was in the best interest of the children not to be
forced to attend parenting time. Based on the evidence presented in this case, we
cannot say that such a determination was unreasonable or arbitrary. Therefore, we
hold that the trial court did not abuse its discretion in ordering that no child shall be
forced to attend parenting time, and we overrule this assignment of error.
B. Conduct Constituting Contempt
{¶15} In his second assignment of error, father asserts that the trial court
erred when it ordered that it would not entertain any motion for contempt for the
refusal of a child to attend parenting time. Father argues that the trial court’s order
prevents him from “exercising his right to hold mother in contempt for interfering with
his parenting time.” However, father’s reading of the court’s order is too broad. “The
trial court is empowered to ‘determine the kind and the character of conduct that
constitutes contempt.’ ” Bohannon, 1st Dist. Hamilton Nos. C-210316 and C-210332,
2022-Ohio-2398, at ¶ 47, quoting Fisher v. Fisher, 7th Dist. Harrison No. 17 HA 0008,
2018-Ohio-2477, ¶ 25. In essence, by saying that the court would not entertain a
motion for contempt in the narrow circumstance where a child had “vehemently”
8
OHIO FIRST DISTRICT COURT OF APPEALS
protested attending parenting time, the court was establishing that mother’s conduct
in not forcing the child to attend under these circumstances would not constitute
contempt. Courts have upheld a trial court’s decision not to hold a residential parent
in contempt where, despite encouragement, a child of suitable age had refused to
engage in parenting time. See, e.g., K.M.M. v. A.J.T., 8th Dist. Cuyahoga No. 109815,
2021-Ohio-2452, ¶ 26-28.
{¶16} Based on the record, it is apparent that the court’s order was assuming
a situation in which a child’s protest was obvious, such as when M.A. was crying and
screaming and hiding in the back of the van to avoid going with father. If the children
exhibit this type of behavior at an exchange, there would be little question that the
children were “vehemently” protesting going with father. Therefore, the court’s order
would not encompass a situation such as the one father is envisioning where mother
manipulates the children into saying they did not want to attend parenting time.
Should father feel that mother is attempting to influence the children in this way,
nothing about the court’s order would prevent him filing a motion for contempt.
Therefore, we overrule this assignment of error.
IV. Conclusion
{¶17} Having overruled both assignments of error, we affirm the judgment of
the trial court.
Judgment affirmed.
MYERS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry this date.
9 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483504/ | [Cite as In re Ezeh, 2022-Ohio-4033.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: NDUBUISI EZEH : APPEAL NOS. C-220081
C-220084
: TRIAL NO. MI2022000044
:
: O P I N I O N.
Appeals From: Hamilton County Court of Common Pleas, Probate Division
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2022
Faulkner & Tepe, L.L.P., and A. Norman Aubin, for Petitioner-Appellee,
Michael J. Trapp, for Respondent-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Respondent-appellant Ndubuisi Ezeh appeals the Hamilton County
Court of Common Pleas, Probate Division’s judgment declaring Ezeh to be a mentally-
ill person subject to court-ordered treatment under R.C. 5122.01,1 and that the least
restrictive setting for his treatment was Summit Behavioral Healthcare (“Summit”).
We affirm the probate court’s judgment.
I. Facts and Procedure
Ezeh underwent a competency evaluation in a criminal matter
{¶1} In October 2021, Ezeh was charged with four counts of aggravated
menacing and one count of criminal trespassing in the case numbered 21CRB-18033
(A)-(E).2 The trial court found that Ezeh was incompetent to stand trial and ordered
Ezeh to Summit to attempt to restore him to competency.
{¶2} In January 2022, the trial court determined that Ezeh would not be
restored to competency and referred Ezeh to the probate court. Later in January 2022,
Dr. Vanessa Doyle filed an affidavit of mental illness and an application for emergency
admission under R.C. 5122.01 on behalf of Summit in the probate court, averring that
Ezeh had been found nonrestorable in the cases numbered 21CRB-18033 (A)-(E) and
that Ezeh would not take his medication voluntarily.
1A previous version of the statute used the term “mentally ill person subject to hospitalization by
court order.” The current version of the statute (in effect at the time of the hearings) removes
“hospitalization” from most of the statute. Instead, the statute involves whether a person is subject
to court-ordered treatment.
2 Ezeh was previously found to be incompetent to stand trial and unrestorable in the cases
numbered 21CRB-16688; C-21-CRB-14727; 21CRB-14804 in September 2021.
2
OHIO FIRST DISTRICT COURT OF APPEALS
Probate court determined that Ezeh had a mental illness and was subject to
treatment
{¶3} A probate court magistrate held an initial hearing on a motion for forced
medication. Dr. Cyma Khalily, a psychiatrist, testified as the independent evaluator
appointed by the court. Khalily explained that Ezeh was referred to Summit to restore
competency and he presented with a substantial thought-and-mood disorder. She
provided examples of Ezeh’s behavior where he had exhibited irrational, unrealistic
thought processes and erratic moods, and an inability to take responsibility “for
himself for his behaviors.”
{¶4} Khalily testified that Ezeh had been hospitalized multiple times and
repeatedly threatened Summit staff and patients. Ezeh was refusing to engage in
treatment and to voluntarily take his medication. As a result, multiple doctors treated
Ezeh over the course of his hospitalization. Summit administered emergency
medication on one occasion. Ezeh’s violent behavior was “getting to an extreme.”
{¶5} Ezeh testified in the hearing on his behalf. He requested to continue the
hearing as to the issue of forced medication.
{¶6} The magistrate determined by clear and convincing evidence that Ezeh
had a mental illness, finding that Ezeh had a substantial disorder of thought and mood,
“which grossly impairs his ability to recognize reality or meet the ordinary demands of
life.” The magistrate found that treatment at Summit was the least restrictive setting.
{¶7} Ezeh objected to the magistrate’s finding that Ezeh was a mentally-ill
person through counsel. The trial court overruled the objections and ordered that Ezeh
be treated at Summit and forcibly medicated.3
3 Ehez does not appeal the forced-medication portion of the judgment.
3
OHIO FIRST DISTRICT COURT OF APPEALS
II. Law and Analysis
{¶8} On appeal, Ezeh argues that the probate court’s judgment was not
supported by competent, credible evidence.
A. Mootness
{¶9} As an initial matter, we must determine whether Ezeh’s appeal is moot
because Summit released him in April 2022.4 Ezeh raised the mootness question based
on his release from Summit and this court’s decision in In re N.E., 1st Dist. Hamilton
No. C-210181, 2022-Ohio-1184, which affirmed a trial court order finding that Ezeh
was mentally ill and subject to court-ordered treatment.
{¶10} Because mootness is a matter of subject-matter jurisdiction, a court
cannot maintain jurisdiction over a moot controversy. McQueen v. Dohoney, 1st Dist.
Hamilton No. C-130196, 2013-Ohio-2424, ¶ 13. An appeal is moot if the issues
presented no are longer live or the parties lack a legally cognizable interest in the
outcome, rendering it impossible for the court to grant any relief. (Citations omitted.)
Andrew v. Dennis, 1st Dist. Hamilton No. C-210638, 2022-Ohio-2567, ¶ 7. A reviewing
court may consider evidence outside of the record to determine whether a case is moot.
Id.
{¶11} This court may entertain Ehez’s appeal. Ezeh, after his release from
Summit, continued to be subject to court-ordered outpatient treatment with the
Greater Cincinnati Behavioral Health Center. Ezeh is still subject to court-ordered
treatment based on the same mental-illness affidavit that subjected him to treatment
at Summit. Accordingly, Ezeh’s appeal is not moot.
B. Clear and convincing evidence supports
the probate court’s judgment
4 Neither party has filed a motion to dismiss the appeal.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Ezeh argues in his sole assignment of error that the trial court’s finding
that he is a mentally-ill person subject to treatment by court order under R.C. 5122.01
is not supported by competent, credible evidence. This court’s review entails
examining the record and determining whether the trial court had sufficient evidence
to satisfy the clear-and-convincing-evidence standard. State v. McNichols, 2020-
Ohio-2705, 154 N.E.3d 125, ¶ 13 (4th Dist.).
{¶13} R.C. 5122.01(A) defines “mental illness” as “a substantial disorder of
thought, mood, perception, orientation, or memory that grossly impairs judgment,
behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.”
Because this definition is statutory, people may be adjudicated as mentally ill
regardless of whether their conditions meet the clinical definition of mental illness.
State v. Sullivan, 90 Ohio St.3d 502, 510, 739 N.E.2d 788 (2001), fn. 4.
{¶14} When a mentally-ill person poses a risk of harm to self or others,
involuntary treatment protects society and provides help for the illness. But “the state
nonetheless must meet a heavy burden to show that the individual in fact suffers from
a mental illness and must be confined in order to treat the illness.” Id., quoting In re
T.B., 10th Dist. Franklin No. 06AP-769, 2006-Ohio-4789, ¶ 8.
{¶15} Courts must consider a three-prong test for an involuntary
commitment, and each part must be met by clear and convincing evidence. In re K.W.,
10th Dist. Franklin No. 06AP-943, 2007-Ohio-699, ¶ 9-18. First, there must be a
substantial disorder of thought, mood, perception, orientation, or memory. Id.; R.C.
5122.01(A). Second, that disorder must grossly impair judgment, behavior, the
capacity to recognize reality, or the ability to meet the ordinary demands of life. In re
5
OHIO FIRST DISTRICT COURT OF APPEALS
T.B. at ¶ 9; R.C. 5122.01(A). Third, the evidence must support involuntary treatment
under one or more of the bases provided in R.C. 5122.01(B). In re K.W. at ¶ 15-16.
{¶16} R.C. 5122.01(B) provides that a “[m]entally ill person subject to court
order” means a mentally-ill person who, because of that illness, (1) is at substantial
risk of physical harm to self; (2) is at substantial risk of physical harm to others; (3) is
at substantial and immediate risk of serious physical impairment or injury to self
because the person is unable to provide for the person’s basic physical needs; (4)
exhibits behavior creating a grave and imminent risk to the substantial rights of others
or the person; or (5) would benefit from treatment because of the inability to safely
survive, a history of lack of compliance with treatment, is unlikely to participate in
treatment, or to prevent deterioration that would likely cause substantial risk of
serious harm to self or others.
{¶17} The state must present evidence of more than just unusual or
abnormal behavior to justify court-ordered treatment. For example, an individual
suffering from a delusional disorder that grossly impaired her judgment, preventing
her from meeting her basic needs, was subject to involuntary treatment. Franklin Cty.
ADAMH Bd. v. D.F., 10th Dist. Franklin No. 06AP-609, 2006-Ohio-4786, ¶ 9-10. And
evidence of paranoia and eccentric behavior combined with a dysfunctional family was
sufficient to order treatment. In re Mental Illness of Thomas, 108 Ohio App.3d 697,
700-702, 671 N.E.2d 616 (1996). But conduct that is merely “bothersome or annoying”
is insufficient to order involuntary treatment. In re Slabaugh, 16 Ohio App.3d 255,
257, 475 N.E.2d 497 (10th Dist.1984).
{¶18} Here, the trial court found Ezeh to be a mentally-ill person subject to
court-ordered treatment under R.C. 5122.01(B)(2), (3), and (4). We agree.
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} The expert testimony presented clear and convincing evidence showing
that Ezeh was a mentally-ill person, who, because of his illness, represented a
substantial risk of physical harm to others under R.C. 5122.01(B)(2). Ezeh had been
threatening Summit staff and patients and refused to voluntarily engage in treatment
or take medication. Ezeh’s violent behavior was “getting to an extreme.” Ezeh became
disorderly and destructive due to his mental illness.
{¶20} The state presented clear and convincing evidence that Ezeh had a
substantial mental disorder, the mental disorder grossly impaired his functioning, and
Ezeh was subject to court-ordered treatment because his behavior represented a
substantial risk of physical harm to others that satisfied R.C. 5122.01(B)(2).
{¶21} Ezeh’s sole assignment of error is overruled.
III. Conclusion
{¶22} Ezeh’s appeal is not moot. The record demonstrates that the probate
court’s judgment was based on competent, credible evidence. We affirm the probate
court’s judgment.
Judgment affirmed.
MYERS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
7 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483520/ | Opinion issued November 8, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00071-CV
———————————
CITY OF HOUSTON, Appellant
V.
MARTHA VOGEL AND MARIA ESCALANTE, Appellees
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2019-75683
MEMORANDUM OPINION
In this interlocutory appeal,1 appellant, the City of Houston, challenges the
trial court’s order denying its plea to the jurisdiction in a suit for negligence brought
1
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing interlocutory appeal
from order granting or denying plea to jurisdiction by governmental unit); Thomas
v. Long, 207 S.W.3d 334, 339–40 (Tex. 2006).
against it by appellees, Martha Vogel and Maria Escalante. In its sole issue, the City
contends that it retains its governmental immunity and thus the trial court lacks
subject-matter jurisdiction over the suit by Vogel and Escalante.
We reverse and render.
Background
Vogel and Escalante alleged that, on August 3, 2018, they were involved in a
traffic accident with a City of Houston Fire Department (“HFD”) ambulance
operated by a City employee, emergency medical technician (“EMT”) J. Brooks.
Vogel asserted that she was driving her Toyota Tundra truck southbound in the 5800
block of Hardy Street, with her mother, Escalante, as a passenger. EMT Brooks was
driving the ambulance westbound on Euel Street. Vogel alleged that she had the
right-of-way at the intersection of Hardy and Euel, and that Brooks “ran a stop sign”
governing traffic on Euel, drove across Hardy Street and into her lane of travel, and
collided with her truck.
Vogel asserted that the collision “totaled” her truck and that she “sustained
substantial injuries.” Escalante asserted that she suffered a head injury, fractures to
her ribs and left hand, lacerations to her liver, and “severed intestines,” requiring
surgical repair. Escalante asserted that she continues to suffer “concussion-like
symptoms,” including impaired vision and balance. Together, they sought personal-
injury damages “totaling more than $2,500,000.”
2
Vogel and Escalante sued the City, asserting that its employee, EMT Brooks,
was negligent in “running the stop sign and causing the accident in question resulting
in [their] injuries.” They asserted that the trial court had subject-matter jurisdiction
over their suit because the City waived its governmental immunity under the Texas
Tort Claims Act (“TTCA”).2
The City filed a plea to the jurisdiction, arguing that the City was entitled to
governmental immunity because its employee, EMT Brooks, was entitled to official
immunity. In its plea, as amended, the City asserted that this case arises from a
motor vehicle collision between an ambulance driven by Brooks, who is an HFD
firefighter and EMT, and a Toyota Tundra truck driven by Vogel. HFD EMT C.
Ross was a passenger in the ambulance, and Escalante was a passenger in the Toyota.
On August 3, 2018, Brooks and Ross responded to an “emergency call.” The City
asserted that the deposition testimony of both Brooks and Ross established that
Brooks activated the emergency lights and siren on the ambulance and drove toward
the scene. While en route, Brooks was traveling west on Euel Street and encountered
a stop sign at the intersection with Hardy Street. Brooks testified that he stopped the
ambulance at the stop sign, checked for cross-traffic, determined that the intersection
was clear, and proceeded across Hardy Street. EMT Ross also testified that the
ambulance came to a stop at the stop sign and that cross-traffic was “very far off.”
2
See TEX. CIV. PRAC. & REM. CODE § 101.021(1).
3
As Brooks proceeded to cross over Hardy, however, the truck driven by Vogel, who
was traveling south on Hardy Street, “slammed into the side of the ambulance with
such force that the ambulance rolled on its side.” The City noted that witnesses in a
vehicle traveling near Vogel’s truck testified that they heard the ambulance siren and
saw its emergency lights ahead of them and came to a stop.
The City noted that the TTCA governs the waiver of immunity for tort suits
against governmental units and provides only a limited waiver of immunity for such
suits in certain narrowly-defined circumstances. The legislature has provided such
limited waiver of immunity in suits against governmental entities for damages
caused by an employee’s negligent operation of a motor-driven vehicle if the
employee would be personally liable under Texas law.3 The City argued that EMT
Brooks is entitled to official immunity because, at the time of the collision, he was
exercising discretion in responding to an emergency call and performing his duties
in “good faith.”4 Accordingly, the City asserted, it is entitled to governmental
immunity.
The City also asserted that the TTCA lists certain circumstances in which the
limited waiver of immunity does not apply. Here, the City asserted, because it is
undisputed that EMT Brooks was responding to a 9-1-1 dispatch to a medical
3
See id.
4
See Telthorster v. Tennell, 92 S.W.3d 457, 461 (Tex. 2002).
4
emergency at the time of the collision, the TTCA’s “Emergency Exception” and
“9-1-1 Emergency Service” exception apply and the City retains its immunity.5 In
support, the City attached the affidavit of Brooks’s supervisor, HFD Captain T.
Gunnels, and excerpts of the deposition testimony of Brooks, Gunnels, Ross, Vogel,
Escalante, and witnesses, Alexander Medina and Angel Huerta.
In their response to the City’s plea, Vogel and Escalante asserted that their
suit falls within the TTCA’s waiver of governmental immunity. They asserted that,
although an employee is entitled to official immunity from suit arising from his
performance of discretionary duties that are within the scope of his authority and
that he performs in good faith, the City failed to conclusively establish that Brooks
was acting in good faith at the time of the collision.
Vogel and Escalante further argued that the City did not retain its immunity
under the TTCA’s “Emergency Exception” or “9-1-1 Emergency Service” exception
because EMT Brooks violated certain traffic statutes and acted recklessly.6 They
asserted that, even though Brooks was operating an emergency vehicle, “he still had
an obligation to yield the right-of-way to [Vogel], who did not have a stop sign, or
other traffic control device,” and that fact issues exist as to whether Brooks “entered
the intersection despite being totally blocked from visually determining whether the
5
See TEX. CIV. PRAC. & REM. CODE §§ 101.055(2), .062(b).
6
See id. §§ 101.055(2), .062(b).
5
intersection was clear.” To their response, Vogel and Escalante attached a field
diagram and photographs of the scene, the affidavit of James Evans, an accident
reconstructionist, and excerpts of the deposition testimony of Gunnels, Brooks,
Ross, Medina, and James Beasley, an HFD firefighter/EMT.
After a hearing, the trial court denied the City’s plea to the jurisdiction.
Governmental Immunity
In its sole issue, the City argues that the trial court erred in denying its plea to
the jurisdiction because it conclusively established EMT’s Brooks’s official
immunity, and thus it retained its governmental immunity from the suit by Vogel
and Escalante. The City also asserts that it conclusively established that the TTCA’s
“Emergency Exception” and “911 Emergency Service” Exception apply and thus it
retained its immunity.
Standard of Review and Principles of Law
Under the common-law doctrine of sovereign immunity, the state cannot be
sued without its consent. City of Hous. v. Williams, 353 S.W.3d 128, 134 (Tex.
2011). “Governmental immunity operates like sovereign immunity to afford similar
protection to subdivisions of the State,” including cities. Harris Cnty. v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004). “[G]overnmental immunity has two components:
immunity from liability, which bars enforcement of a judgment against a
governmental entity, and immunity from suit, which bars suit against the entity
6
altogether.” Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).
Governmental immunity from suit deprives a trial court of subject-matter
jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–
26 (Tex. 2004).
The City of Houston is a governmental entity generally immune from tort
liability except when its immunity has been specifically waived by the legislature.
City of Hous. v. Rushing, 7 S.W.3d 909, 914 (Tex. App.—Houston [1st Dist.] 1999,
pet. denied). Under the doctrine of governmental immunity, the City cannot be held
liable for the torts of its employees unless its immunity has been waived. Mount
Pleasant Indep. Sch. Dist. v. Est. of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989).
Under the TTCA, the legislature has provided a limited waiver of immunity
from suits against governmental units for damages and injuries “proximately caused
by the wrongful act or omission or the negligence of an employee acting within his
scope of employment” if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle . . . ; and
(B) the employee would be personally liable to the claimant
according to Texas law; . . . .
TEX. CIV. PRAC. & REM. CODE § 101.021(1) (emphasis added); Ryder Integrated
Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015).
7
Generally, governmental employees are protected from personal liability by
official immunity. Univ. of Hous. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). A
governmental employee is entitled to official immunity from suit arising from (1) the
performance of discretionary duties (2) that are within the scope of the employee’s
authority, (3) provided that the employee acts in good faith. Telthorster v. Tennell,
92 S.W.3d 457, 461 (Tex. 2002). “[O]fficial immunity is designed to protect public
officials from being forced to defend their decisions that were reasonable when
made, but upon which hindsight has cast a negative light.” Id. at 463. If the
governmental employee is protected from liability by official immunity, then the
governmental employer is shielded from liability by governmental immunity. Clark,
38 S.W.3d at 580.
Even if immunity is waived under section 101.021, however, the legislature
has provided for certain “Exclusions and Exceptions” from the applicability of the
TTCA. See TEX. CIV. PRAC. & REM. CODE §§ 101.051–.067; Delaney v. Univ. of
Hous., 835 S.W.2d 56, 58 (Tex. 1992) (noting that such exceptions are not
“prohibition[s] of certain actions against the government,” but “exception[s] to the
limited waiver of immunity brought about by the [TTCA]”); City of Hous. v. Nicolai,
539 S.W.3d 378, 392 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). If an
exclusion or exception applies, “then Section 101.021(1)(A) of the Act does not
waive the City’s immunity from those claims regardless of whether they would
8
otherwise fall within the scope of that waiver.” City of San Antonio v. Maspero, 640
S.W.3d 523, 529 (Tex. 2022); City of Hous. v. Davis, No. 01-13-00600-CV, 2014
WL 1678907, at *4 (Tex. App.—Houston [1st Dist.] Apr. 24, 2014, pet. denied)
(mem. op.) (“When the exception applies, the [TTCA] is unavailable as a waiver of
immunity even if the facts otherwise fall within . . . Section 101.021.”).
One of the exceptions at issue here is section 101.055(2), the “Emergency
Exception,” which provides that the TTCA does not apply to a claim arising
from the action of an employee while responding to an emergency call
or reacting to an emergency situation if the action is in compliance with
the laws and ordinances applicable to emergency action, or in the
absence of such a law or ordinance, if the action is not taken with
conscious indifference or reckless disregard for the safety of others.
TEX. CIV. PRAC. & REM. CODE § 101.055(2).
The other exception at issue in this case is section 101.062, the “9-1-1
Emergency Service” exception, which provides that the TTCA
applies to a claim against a public agency that arises from an action of
an employee of the public agency . . . and that involves . . . responding
to a 9-1-1 emergency call only if the action violates a statute or
ordinance applicable to the action.
Id. § 101.062(b).
Governmental immunity may be asserted in a plea to the jurisdiction, which
challenges the trial court’s subject-matter jurisdiction. Miranda, 133 S.W.3d at 224.
We review a trial court’s ruling on a plea to the jurisdiction de novo. Chambers-
Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). A plea to
9
the jurisdiction may be utilized to challenge whether the plaintiff has met its burden
of alleging jurisdictional facts or to challenge the existence of jurisdictional facts.
Miranda, 133 S.W.3d at 226–27.
When a plea to the jurisdiction challenges the pleadings, we determine
whether the pleader has alleged facts that affirmatively demonstrate the trial court’s
jurisdiction. Id. at 226. We construe the pleadings liberally in favor of the pleader,
accept all factual allegations as true, and look to the pleader’s intent. Heckman v.
Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If a plaintiff “fails to plead facts
that establish jurisdiction, but the petition does not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
plaintiff should be afforded the opportunity to amend.” Cnty. of Cameron v. Brown,
80 S.W.3d 549, 555 (Tex. 2002).
Review of a plea challenging the existence of jurisdictional facts, however,
mirrors that of a traditional summary-judgment motion. Mission Consol. Indep. Sch.
Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012); City of Hous. v. Guthrie, 332
S.W.3d 578, 587 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“[T]his
standard generally mirrors that of a summary judgment . . . . By requiring the
[political subdivision] to meet the summary judgment standard of proof . . . , we
protect the plaintiffs from having to put on their case simply to establish
jurisdiction.”); see also TEX. R. CIV. P. 166a(c). “[A] court deciding a plea to the
10
jurisdiction . . . may consider evidence and must do so when necessary to resolve the
jurisdictional issues raised.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555
(Tex. 2000). We may consider evidence as necessary to resolve a dispute over the
jurisdictional facts even if the evidence “implicates both the subject matter
jurisdiction of the court and the merits of the case.” Miranda, 133 S.W.3d at 226.
We take as true all evidence favorable to the nonmovant and indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Id. at 228.
If the defendant meets its burden to establish that the trial court lacks
jurisdiction, the plaintiff is then required to present jurisdictional evidence raising a
material fact issue. Id. at 227–28. If the evidence raises a fact issue regarding
jurisdiction, the plea cannot be granted, and a fact finder must resolve the issue. Id.
On the other hand, if the evidence is undisputed or fails to raise a fact issue, the plea
must be determined as a matter of law. Id. at 228.
9-1-1 Emergency Service Exception
In its plea to the jurisdiction, the City argued that the jurisdictional evidence
conclusively establishes that, even if the claims against it fall within the scope of the
TTCA’s waiver, the “9-1-1 Emergency Service” exception applies. See Maspero,
640 S.W.3d at 529 (holding that if exception applies, “then Section 101.021(1)(A)
of the Act does not waive the City’s immunity from those claims regardless of
whether they would otherwise fall within the scope of that waiver”).
11
As discussed above, the “9-1-1 Emergency Service” exception provides that,
in claims arising from the action of a city employee responding to a 9-1-1 emergency
call, immunity is waived “only if the employee’s action violates a statute or
ordinance applicable to the action.” See TEX. CIV. PRAC. & REM. CODE
§ 101.062(b); Guillen v. City of San Antonio, 13 S.W.3d 428, 432 (Tex. App.—San
Antonio 2000, pet. denied).
The law applicable to the operation of an emergency vehicle is found in Texas
Transportation Code Chapter 546.7 See TEX. TRANSP. CODE ch. 546 (governing
operation of emergency vehicles); City of Hous. v. Hussein, No. 01-18-00683-CV,
2020 WL 6788079, at *7 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, pet.
denied) (mem. op.). Section 546.001(2) provides that, “[i]n operating an authorized
emergency vehicle the operator may . . . proceed past a red or stop signal or stop
sign, after slowing as necessary for safe operation.” See TEX. TRANSP. CODE
§ 546.001(2); see also id. § 546.002(b) (noting that section 546.001(2) applies when
operator is responding to emergency call). Apart from inapplicable exception, the
operator “shall use, at the discretion of the operator in accordance with policies of
the department . . . , audible or visual signals.” Id. § 546.003.
7
Vogel and Escalante assert, and the City does not dispute, that the applicable
policies and ordinances mirror the applicable provisions of the Transportation Code.
12
Chapter 546 “does not relieve” the operator of an emergency vehicle from:
(1) the duty to operate the vehicle with appropriate regard for the
safety of all persons; or
(2) the consequences of reckless disregard for the safety of others.
Id. § 546.005. The Texas Supreme Court has concluded that, in section 546.005,
“the Legislature intended for emergency vehicle operators in emergency situations
to be cognizant of public safety, but only intended to impose liability for reckless
conduct.” City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998).
“Under the Transportation Code, reckless driving consists of driving a vehicle
in willful or wanton disregard for the safety of persons or property.” Maspero, 640
S.W.3d at 531. The standard requires “conscious indifference” or “subjective
awareness of an extreme risk.” Id. Recklessness reflects “more than a momentary
judgment lapse.” Id. Rather, it “requires a showing that the driver committed an act
he knew or should have known posed a high degree of risk of serious injury.” Id.
“[C]onscious indifference” and “reckless disregard” “require proof that a party knew
the relevant facts but did not care about the result.” City of San Antonio v. Hartman,
201 S.W.3d 667, 672 n.19 (Tex. 2006); City of Pasadena v. Kuhn, 260 S.W.3d 93,
99 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
In its plea, the City argued that the 9-1-1 exception to the TTCA waiver
applies because EMT Brooks was responding to an 9-1-1 emergency call and did not
violate any applicable laws. The City asserted that “it is undisputed that EMT
13
Brooks was operating the ambulance while responding to a 9-1-1 call with lights and
siren active” and that “EMT Brooks did not only slow, but also stopped, at the stop
sign, as well as checked for oncoming traffic, before entering the intersection.”
The City’s evidence shows that Brooks testified that he was responding to an
“emergency call” and “had [his] lights and sirens on when [he] left the station.” He
noted that the weather was clear. He testified that, while traveling on Euel Street,
he arrived at a stop sign at the intersection with Hardy Street, which is a four-lane,
one-way street. His intent was to go straight across Hardy and continue on Euel.
Brooks testified: “I stopped at the stop sign. I looked right. It was clear. I proceeded
across.” He noted construction “cones and barriers” in the “first two lanes of traffic”
on Hardy and a tree near the intersection, but that they did not obstruct his vision of
traffic. He proceeded, traveling at a rate of 20 miles per hour, across the first and
second lanes of Hardy. As he crossed over the third lane, Vogel’s truck struck the
ambulance from the right side, causing the ambulance to roll onto its side.
EMT Brooks’s passenger, EMT Ross, testified: “We came to a complete stop.
We looked. We couldn’t see anything. So we proceeded forward a little bit slowly
and got a better view.” Ross testified that “there were vehicles that were very far
off” and that he did not see Vogel’s truck until moments before it hit the ambulance.
Captain Gunnels testified that he was the station captain on duty, and EMT
Brooks’s supervisor, on the day of the collision. He testified that Brooks was
14
dispatched in response to a “911 emergency call.” Gunnels testified that he arrived
on the scene within minutes after the collision and investigated. He opined that, “to
turn an ambulance over, you’ve got to be moving pretty fast.”
Alexander Medina testified that he and a co-worker, Angel Huerta, were
traveling down Hardy Street in a delivery truck, saw Vogel’s truck, and witnessed
the collision. Medina testified that he and Huerta:
noticed that there was a truck that was next to us on the driver’s side.
So as we were passing by the light we were going down Hardy and we
hear an ambulance and we see the lights. As the ambulance was trying
to come across, we stopped and the truck just kept on going. And as
soon as the truck hit the ambulance, the ambulance just spun. It spun
out of control.
Medina opined that Huerta was “going at least 35 miles per hour” as they approached
the intersection, but that Vogel’s truck, “on the other hand, was going way beyond
that” and passed them. Medina noted that he saw the ambulance “right there in the
corner of the intersection,” that he had a “clear view of the ambulance,” and that “the
lights and siren were on.” He noted that, “[a]utomatically, we stopped,” but Vogel’s
truck “just didn’t stop.”
Huerta testified that, although the windows of the delivery truck were closed
and he was playing music, he heard the ambulance siren. He testified that he saw
the ambulance “yield” at the intersection, but Vogel’s truck was “coming too fast.”
In City of San Angelo Fire Department v. Hudson, a fire truck collided with a
motorist at an intersection. 179 S.W.3d 695, 698 (Tex. App.—Austin 2005, no pet.).
15
The motorist sued the city and asserted a waiver of immunity under the TTCA. Id.
at 697. The city sought dismissal for a lack of subject-matter jurisdiction. Id. The
fire truck driver, a city firefighter, testified that, at the time of the collision, he was
responding to an emergency call, had his lights and siren activated, slowed as he
reached the intersection at issue, and looked in both directions and determined that
the intersection was clear, before proceeding into the intersection. Id. at 700–01. A
witness testified that he heard the fire truck siren, stopped prior to entering the
intersection, and observed that other vehicles had also yielded. Id. at 701. The court
concluded that the city conclusively demonstrated that its firefighter had complied
with the applicable statutes, namely, Transportation Code sections 546.001–.003 and
.005, as a matter of law. Id. at 700–01.
Here, like in Hudson, the City’s jurisdictional evidence established that EMT
Brooks was responding to a 9-1-1 emergency call and that he had his lights and siren
activated. See TEX. CIV. PRAC. & REM. CODE § 101.062(b); TEX. TRANSP. CODE
§ 546.003. The City’s evidence also established that Brooks stopped at the stop sign,
proceeded forward slowly and got a better view, looked for oncoming traffic,
determined that the intersection was clear, and proceeded across. Thus, the City
established that Brooks complied with the applicable laws, that he proceeded “after
slowing as necessary for safe operation,” and that he did not act with conscious
indifference or reckless disregard for the safety of others. See TEX. TRANSP. CODE
16
§§ 546.001(2), .005; Maspero, 640 S.W.3d at 531; Hudson, 179 S.W.3d at 700–01;
see also Smith v. Janda, 126 S.W.3d 543, 546 (Tex. App.—San Antonio 2003, no
pet.) (holding evidence that ambulance driver was responding to emergency with
lights and siren activated, which other drivers at subject intersection saw and heard,
and that ambulance driver “slowed down and looked around” before proceeding into
intersection, established as matter of law that ambulance driver was not reckless).
In their response to the City’s plea, Vogel and Escalante did not dispute that
EMT Brooks was responding to a 9-1-1 emergency call at the time of the collision
or that the ambulance was traveling with its lights and siren activated. They
conceded that “EMT Brooks came to a complete stop behind the stop sign on Euel”
and that, “[a]fter coming to a complete stop behind the stop sign, EMT Brooks
looked for traffic on Hardy.” They argued, rather, that “fact issues exist concerning
whether EMT Brooks entered the intersection despite being totally blocked from
visually determining whether the intersection was clear.” Specifically, they asserted:
because of construction on southbound Hardy which blocked the two
lanes closest to the ambulance, EMT Brooks had the opportunity to
slowly cross into the blocked lanes and determine whether there was
oncoming traffic in the far two southbound lanes; those lanes of traffic
to which he owed a duty to yield to. Because EMT Brooks could not
possibly identify oncoming traffic when he stopped at the stop sign—
where it was admitted the view to the north was obscured by foliage
and construction—and he failed to take any action to determine if there
was oncoming traffic before proceeding into the intersection, he
proceeded with reckless disregard for the safety of others, including
[Vogel] and [Escalante].
17
Vogel and Escalante asserted that, “[i]f EMT Brooks entered into the intersection
without determining whether the intersection was clear, his actions would constitute
a violation” of section 546.001 because he “failed to ‘slow as necessary for safe
operation’ and thus his actions constitute reckless behavior.”
In support of their argument, Vogel and Escalante cite the following excerpts
of EMT Brooks’s deposition testimony:
Q. So you made your decision then to cross Hardy Road at the stop
sign? In other words, you made the decision to cross Hardy Road
without stopping. You made that decision at the stop sign
because you said you never stopped any more in the intersection,
correct?
A. Yes. Yes, sir. At the stop sign I decided to proceed across.
Q. Right. Without stopping?
A. Yes, sir.
(Emphasis added.)
Q. All right. You then satisfied yourself —after you had come to a
full stop behind the stop sign, you satisfied yourself that there
was no traffic coming. Is that when you then proceeded into the
intersection with your ambulance?
A. Yes, sir.
Q. Did you ever stop any other time after you had already stopped
behind the stop sign?
A. No, sir.
(Emphasis added.)
Vogel’s and Escalante’s burden was to present evidence raising a genuine
issue of material fact as to a violation of the law by EMT Brooks. See TEX. CIV.
18
PRAC. & REM. CODE § 101.062(b) (providing that TTCA “applies to a claim against
a public agency that arises from an action of an employee of the public
agency . . . and that involves . . . responding to a 9-1-1 emergency call only if the
action violates a statute or ordinance applicable to the action” (emphasis added)).
They do not direct us to any authority supporting that Brooks, having come to a
complete stop and having determined that the intersection and oncoming lanes were
clear, was required to stop again “in the intersection,” that is, in the moving lanes of
Hardy Street.
The mere fact that a collision occurred is not evidence that EMT Brooks
lacked regard for the safety of others at the time that he entered the intersection. See
Quested v. City of Hous., 440 S.W.3d 275, 286 (Tex. App.—Houston [14th Dist.]
2014, no pet.); Kuhn, 260 S.W.3d at 100–01; Hudson, 179 S.W.3d at 702 (holding
that mere observation that “large pumper truck ‘slammed’ into . . . car ‘full force’
does not provide evidence raising a fact issue about [officer’s] regard for the safety
of others or whether he slowed as necessary”).
Vogel and Escalante also asserted that their evidence raised a fact issue
because it showed that EMT Brooks was reckless in entering the intersection
“completely blind.” They presented photographs of the intersection at issue, which
they asserted “show EMT Brooks’ view of Hardy was completely blocked by
construction, a house, parked box trucks, trees and shrubs.” (Emphasis added.) The
19
record does not support their assertion. The photographs do not show that Brooks’s
view of Hardy was “completely blocked.” Rather, the Exhibit 3 photograph shows
a view of traffic on Hardy Street. Although plastic barriers and pylons appear, traffic
behind them is readily visible. Their field diagram shows the stop sign located at
the corner of the intersection, and the tree depicted in the photographs is shown in
Exhibit 3 to be set back from the corner. There is not a house shown in the
photographs attached their response to the City’s plea.
Vogel and Escalante asserted that the following excerpt of Captain Gunnels’s
deposition testimony demonstrates that he “saw the obstructions that would have
blocked EMT Brooks’ view looking north down Hardy while stopped on Euel”:
Q. Okay. Did Firefighter Brooks ever tell you that there either was
or was not any sort of obstruction that kept him from seeing the
intersection clearly?
A. He didn’t tell me that, no.
Q. Okay. Have you heard that from other sources?
A. I saw it, myself.
Q. Okay. So you did see that there were some obstructions. Correct?
A. The first two lanes traveling west, crossing Hardy, were blocked
by construction, by barriers, sandbags, and such, signs.
Q. Okay. Did you ever go back and look, when you were there, at
the intersection, or where the stop sign was?
A. Yes.
Q. Did you notice any sort of trees, bushes, or other things that—
A. Yes.
Q. —could have created an obstruction, there?
A. Yes, there was a tree in front of the entirety of the stop sign.
20
Thus, Gunnels testified that he saw construction in the first two lanes of
Hardy, which is undisputed and addressed above, and that there was a tree “in front
of . . . the stop sign.” (Emphasis added.) It is undisputed, however, that EMT
Brooks heeded the stop sign. Thus, it could not have been totally obstructed. More
importantly, the issue is whether Brooks could see oncoming traffic on Hardy Street,
and Gunnels did not, in the cited testimony, state that the tree blocked Brooks’s view
of oncoming traffic on Hardy Street.
Vogel and Escalante asserted that EMT Brooks “acknowledged that there
were obstructions that prevented him from seeing the traffic on Hardy,” referring to
a house and parked trucks situated behind him at the stop sign, as follows:
Q. So just from this photo—and we’re going to have some other
photographs to look at. Just from this photograph that’s up on
the screen, the jury now knows that when you were stopped at
the stop sign over here on Euel, you could not see through this
house, you could not see through these trucks back here to see
the traffic that was on Hardy Road back here. Correct?
A. That’s correct. Uh-huh.
(Emphasis added.) They also pointed to the deposition testimony of EMT Ross that,
“behind” or before the stop sign, a house, foliage, and trucks on the right side of the
ambulance “obstructed the early lanes” of traffic on Hardy Street. They also
presented the expert affidavit of James Paul Evans, P.E., who opined that “trees and
bushes near Mr. Brooks’ stop sign would have obstructed the view of each driver.”
21
However, notwithstanding whether the view of any lanes of Hardy Street were
initially obstructed “behind” or “near” the stop sign, the record shows that EMT
Ross testified that EMT Brooks, after he stopped, “proceeded forward” “slowly” and
“got a better view,” as follows:
Q. So you’re saying that the view of Firefighter Brooks would have
been obstructed if he tried to look from behind the stop sign?
A. Looking from behind the stop sign, I believe we could see that
two lanes were under construction so we could have a better view
if we proceed. We came to a complete stop. We looked. We
couldn’t see anything. So we proceeded forward a little bit
slowly and got a better view.
(Emphasis added.) Brooks testified that his view was not obscured, that he
determined that the lanes of travel were “clear,” and that he proceeded across Hardy.
In City of Pasadena v. Kuhn, after a city police officer driving an emergency
vehicle to a house fire collided with a motorist, the motorist argued that the officer
was reckless for “blindly” entering the intersection at issue. 260 S.W.3d at 99–100.
The motorist attached photographs to show that the intersection at issue was “blind”
from the officer’s standpoint and alleged that there was a “hedge row, a building, a
marquee, as well as parked cars in the lot on the corner” that precluded the officer
from seeing approaching vehicles “until just before the intersection.” Id. at 97. This
Court held that whether the intersection was blind did not create a material fact issue
because the undisputed evidence showed that the officer was responding to an
emergency, had activated his emergency lights and siren, recognized that he had a
22
red light, slowed down or stopped, and determined that it was safe to proceed before
attempting to cross the intersection. Id. at 100. We noted: “Any intersection that
an officer attempts to traverse when responding to an emergency is potentially a
‘blind intersection.’ That is why the statute provides that an emergency vehicle may
proceed through a stop light after ‘slowing as necessary.’” Id. (citing TEX. TRANSP.
CODE § 546.001(2)). We concluded that the undisputed evidence showed that the
officer followed those procedures. Id. We further concluded that the existence of a
blind spot did not constitute evidence that the officer acted with conscious
indifference or reckless disregard for the safety of others. Id. Thus, we held, the
motorist did not demonstrate a material fact issue, and the city retained its immunity
as a matter of law. Id. at 101.
Here, like in Kuhn, whether the intersection was “blind” did not create a
material fact issue in light of the undisputed evidence that EMT Brooks was
responding to a 9-1-1 emergency call, activated his lights and siren, came to a
complete stop at the stop sign on Euel, and looked for traffic. The City also
presented evidence that Brooks proceeded forward slowly and got a better view and
determined that the intersection and oncoming lanes were clear before proceeding.
Even if Brooks missed seeing Vogel, recklessness “reflects more than a momentary
judgment lapse.” See Maspero, 640 S.W.3d at 531. Rather, it requires “proof that
23
[Brooks] knew the relevant facts but did not care about the result.” Hartman, 201
S.W.3d at 672 n.19. No such evidence was presented.
In support of their argument that EMT Brooks failed to slow as necessary and
acted with recklessness, in violation of Transportation Code sections 546.001(2) and
546.005, Vogel and Escalante argue that this case is like Gomez v. City of Houston,
587 S.W.3d 891 (Tex. App.—Houston [14th Dist.] 2019, pet. denied), Rivera v. City
of Houston, No. 01-19-00629-CV, 2022 WL 2163025 (Tex. App.—Houston [1st
Dist.] June 16, 2022, no pet.) (mem. op.), and City of Houston v. Green, No. 14-20-
00190-CV, 2022 WL 97334 (Tex. App.—Houston [14th Dist.] Jan. 11, 2022, pet.
filed) (mem. op.). Their reliance on these cases is misplaced.
In Gomez, the police officer responding to an emergency call traveled on wet
roads without reducing his speed to compensate, traveled without activating his
siren, and admitted that he “looked down and away from the road as he approached
the intersection” at issue. 587 S.W.3d at 902. Further, there was a fact issue as to
whether he had activated his emergency lights. Id. In Rivera, the officer entered
the intersection at issue without determining whether she was traveling against a red
light and wholly failed to evaluate the risk of proceeding through the intersection.
2022 WL 2163025, at *7. Notably, she admitted that she was not looking at the
road, but was instead typing a message to the dispatcher on her mobile data terminal.
Id. In Green, the court concluded that the motorist raised a fact issue regarding
24
whether the officer’s conduct was reckless because the evidence supported an
inference that the officer entered the partially obstructed intersection at issue in the
dark, without his sirens, and against a red light, without stopping. 2022 WL 97334
at *6. Thus, in each of these cases, unlike in the instant case, there was evidence of
a total failure to evaluate the risks of entering the intersection at issue coupled with
evidence of a failure to warn oncoming motorists of the emergency vehicle.
We conclude that Vogel and Escalante did not present evidence raising a
genuine issue of material fact as to a violation of the law by EMT Brooks and that
the City conclusively established that it retained its governmental immunity under
the “9-1-1 Emergency Service” exception to the TTCA. See TEX. CIV. PRAC. & REM.
CODE § 101.062(b); Guillen, 13 S.W.3d at 432–34. Accordingly, we hold that the
trial court erred in denying the City’s plea to the jurisdiction.
We sustain the City’s sole issue.
Conclusion
We reverse the trial court’s order and render judgment dismissing Vogel and
Escalante’s suit against the City for want of jurisdiction.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
25 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483519/ | Opinion issued November 8, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00403-CV
———————————
TOM JOHNS, Appellant
V.
THE FOX HALL, LTD A/K/A FOX HALL APARTMENTS, FOX HALL
APARTMENTS, LLC AND FOX HALL, LTD, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2020-08163
MEMORANDUM OPINION
Appellant Tom Johns, proceeding pro se, attempts to appeal the trial court’s
May 5, 2022 “Order Granting Defendant The Fox Hall, Ltd’s Traditional Motion
For Summary Judgment on Grounds of Stricken Pleadings.” The order dismisses
with prejudice “all claims and causes of action” asserted by Johns against appellee
The Fox Hall, Ltd.1
The clerk’s record reflects that Fox Hall filed a counterclaim against Johns
before the trial court signed the May 5, 2022 summary-judgment order dismissing
Johns’s claims. Fox Hall’s counterclaim appears to remain pending in the trial court.
Unless specifically authorized by statute, Texas appellate courts only have
jurisdiction to review final judgments. Bison Bldg. Materials, Ltd. v. Aldridge, 422
S.W.3d 582, 585 (Tex. 2012). Because no statute authorizes an interlocutory appeal
in this case, this Court has jurisdiction over this appeal only if the trial court’s
summary-judgment order is a final judgment. See TEX. CIV. PRAC. & REM. CODE
§ 51.014 (listing interlocutory orders that are appealable). A summary-judgment
order is final for purposes of appeal only if it either “actually disposes of all claims
and parties then before the court . . . or it states with unmistakable clarity that it is a
final judgment as to all claims and all parties.” Lehmann v. Har–Con Corp., 39
S.W.3d 191, 192–93 (Tex. 2001); see N.Y. Underwriters Ins. Co. v. Sanchez, 799
S.W.2d 677, 678–79 (Tex. 1990) (“In the absence of a special statute making an
interlocutory order appealable, a judgment must dispose of all issues and parties in
1
In his notice of appeal, Johns also referred to appellee The Fox Hall, Ltd as Fox Hall
Apartments, Fox Hall Apartments, LLC, and Fox Hall, Ltd.
2
the case, including those presented by counterclaim or cross action, to be final and
appealable.”).
Because it does not dispose of Fox Hall’s counterclaim, and it does not state
that it disposes of all claims and all parties, the summary-judgment order against
Johns is not a final judgment. See Lehmann, 39 S.W.3d at 192–93; see also Gonzales
v. Terrell, No. 01–14–00711–CV, 2015 WL 1735370, at *1–2 (Tex. App.—Houston
[1st Dist.] Apr. 14, 2015, no pet.) (mem. op.) (holding that summary-judgment order
was not final for purposes of appeal because it did not dispose of counterclaim or
contain sufficient finality language). Rather, the summary-judgment order is
interlocutory, and, as mentioned, no interlocutory appeal is authorized by statute
from the order. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)
On October 11, 2022, we notified the parties that, due to the lack of a final
judgment, this appeal may be dismissed for lack of jurisdiction unless they
demonstrated that we have jurisdiction over this appeal. See TEX. R. APP. P. 42.3(a),
43.2(f). In response, Johns filed in this Court a motion to sever Fox Hall’s pending
counterclaim from his claims against Fox Hall that were dismissed in the summary-
judgment order. He contends that the severance would make the summary-judgment
order final and appealable. However, “[o]nly the trial court can sign a severance
order to make the [summary-judgment] order in [this] case an appealable judgment.”
Elias v. Woods, No. 10–03–00245–CV, 2004 WL 575391, at *1 (Tex. App.—Waco
3
Mar. 17, 2004, no pet.) (mem. op.). Thus, we do not have jurisdiction to grant the
motion to sever. See id.
As an alternative to his motion to sever, Johns has filed a “motion to invoke,”
citing Civil Practice and Remedies Code subsection 51.014(d), which concerns
permissive appeals. See TEX. CIV. PRAC. & REM. CODE § 51.014(d). Johns asks that
we sign an order “to invoke” subsection 51.014(d) to permit him to appeal the
interlocutory summary-judgment order. However, because the procedures for a
permissive appeal—including filing a timely petition and obtaining permission from
the trial court to appeal the otherwise unappealable order—have not been followed,
we have no jurisdiction to determine the motion. See TEX. R. APP. P. 28.3; TEX. CIV.
PRAC. & REM. CODE § 51.014(d), (f); Hale v. Rising S Co., LLC, No. 05-20-01025-
CV, 2021 WL 1248273, at *1 (Tex. App.—Dallas Apr. 5, 2021, no pet.) (mem. op.)
(rejecting appellant’s argument that court of appeals had jurisdiction over appeal
from interlocutory order under subsection 51.014(d) when procedures necessary for
permissive appeal had not been followed); see also Progressive Cnty. Mut. Ins. Co.
v. Dowdy, No. 01–20–00817–CV, 2022 WL 1572044, at *3–4 (Tex. App.—Houston
[1st Dist.] May 19, 2022, no pet.) (mem. op.) (dismissing petition for permissive
appeal for lack of jurisdiction because appellant did not file its petition within 15
days after order to be appealed was signed, as required by Rule of Appellate
Procedure 28.3(c) and Civil Practice and Remedies Code subsection 51.014(f)).
4
Because the summary-judgment order is not a final judgment, and an
interlocutory appeal of the order is not authorized by statute, we conclude that this
Court lacks jurisdiction over the appeal. See Young v. Luxury Direct Ltd. Co., No.
01–20–00658–CV, 2022 WL 175360, at *1 (Tex. App.—Houston [1st Dist.] Jan.
20, 2022, no pet.) (mem. op.) (concluding that court lacked jurisdiction over appeal
from summary-judgment order because counterclaims remained pending);
Gonzales, 2015 WL 1735370, at *2 (same). Accordingly, we dismiss the appeal for
lack of jurisdiction. See TEX. R. APP. P. 42.3(a). We also dismiss for lack of
jurisdiction Johns’s motions to sever and to invoke subsection 51.014(d). All other
pending motions are dismissed as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices and Landau and Hightower.
5 | 01-04-2023 | 11-14-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483521/ | Opinion issued November 8, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00019-CV
———————————
CHERYE ALTICE, Appellant
V.
KRYSTLE HERNANDEZ, Appellee
On Appeal from the Probate Court No. 1
Harris County, Texas
Trial Court Case No. 474669
O P I NI O N
Appellant, Cherye Altice, filed suit contending that the will of her deceased
mother, Theresa Altice, was procured by undue influence, was invalid, or both. After
jury disagreed and made findings in favor of Cherye’s niece, appellee Krystle
Hernandez, the trial court confirmed Krystle as the Independent Executrix of
Theresa’s will and ordered that the will, which had previously been admitted to
probate, be probated. In four issues, Cherye contends that (1) there was legally and
factually insufficient evidence to support the jury’s finding that the will met the
requisite statutory formalities, (2) the self-proving affidavit attached to the will was
defective, (3) there was factually insufficient evidence for the jury to reject Cherye’s
undue-influence claims, and (4) there was legally and factually insufficient evidence
to support the jury’s finding that Cherye proffered a purported 1998 Holographic
Will in bad faith. We affirm.
BACKGROUND
The Parties, the Properties, the Claims, and the Wills
Theresa Altice died on March 14, 2019, at the age of 81. Theresa had four
children, Andy, Randall, James, and Cherye, and several grandchildren, including
Krystle, Randall’s daughter. Theresa’s estate at death included a home on Scharpe
Street in Houston, a home on Kingston Street in Houston, and a home in Wimberley,
Texas,1 as well as stocks, cash accounts, and mineral interests.
1
The evidence shows that Cherye and Randall lived with their mother at the Scharpe
Street home while they were growing up. When Krystle was young, she lived in a
garage apartment behind the Scharpe Street home with Randall, while Theresa lived
in the main house. At some point, Theresa inherited the Kingston Street house in
River Oaks from her employer and lived there with her husband, Julio Madrigal.
For a few months before her death, Theresa moved back into the Scharpe Street
house with Cherye so that Cherye could help care for her.
2
Theresa left a will dated October 19, 2017, that named her granddaughter,
Krystle, as executor and sole beneficiary. Krystle filed an application to probate the
will, and, on April 9, 2019, the trial court admitted the will to probate [“the Admitted
Will”], ordered that Krystle be named as Independent Executrix, and authorized the
issuance of Letters Testamentary to her.
In December 2019, Cherye filed an Opposition and Contest to the Admitted
Will. In her live pleading before trial, Cherye claimed that the Admitted Will was
(1) a forgery or (2) procured by undue influence. Cherye also offered a holographic
will dated March 5, 1998, which she sought to probate as an alternative to the
Admitted Will.
In fact, there were three wills in this case: (1) a March 5, 1998 Holographic
Will [the “1998 Holographic will”], in which Theresa left “all my world[ly]
possessions to my Children Andy Martinez, Randall Martinez, James Martinez, and
Cherye Altice,” and specifically disinherited a prior husband, Bob Adams; (2) a
Holographic Will dated October14, 2017 (the “2017 Holographic Will”)—five days
before the Admitted Will—in which Theresa expressed her wish “to grant my
granddaughter Krystle Elizabeth Martinez my whole estate” and, to “specifically
disinherit Julio Perez Madrigal (my husband)”; and (3) the October 19, 2017
Admitted Will, in which Theresa again “specifically disinherit[ed] Julio Perez
Madrigal” and stated that “I give, devise and bequeath my entire estate, both real
3
and personal property, to my grand-daughter, Krystle Martinez.” The Admitted Will
bears both Theresa’s signature and those of two witnesses, Randall and Christian
Hernandez.2
The Trial
Cherye, as the contestant of a will that had been admitted to probate, was the
plaintiff in the case and had the burden of proof. See Williams v. Hollingsworth, 568
S.W.2d 130, 132 (Tex. 1978) (“[T]he burden of proof is upon the contestant in a suit
to set aside an order admitting a will to probate”). She called six witnesses, whose
testimony we summarize below.
Joe Garza—the Notary
Joe Garza testified that he was a notary in the Spring Branch area of Houston.
Randall and Theresa walked in his place of business on October 19, 2017, and asked
him to notarize a document. As is his practice, he made copies of their driver’s
licenses and the document he notarized. In his records, he had copies of pages 6 and
7 of the Admitted Will, which contained only the self-proving affidavit and the page
on which he affixed his notary seal. He did not recall seeing pages 1 through 5,
which included the will itself. He only notarized Randall’s and Theresa’s signatures,
but he did not notarize Christian’s signature, or he would have made a copy of
2
Christian Hernandez is Krystle’s husband, but they were not married in 2017, when
he witnessed Theresa’s will. Christian and Theresa did not marry until 2020, well
after Theresa’s death.
4
Christian’s driver’s license. Based on his records, he concluded that Christian did
not appear before him. Garza testified that he did not type Christian’s name on the
self-proving affidavit, but he did say that he had a typewriter in his office. He did
not recall if he typed Randall’s name on the self-proving affidavit.
Garza testified that, sometime later, a man came to his office and asked if he
could also sign the document, and Garza told the man that he could not alter a
document that he had already notarized. It was his understanding that the man who
came by his office was married to one of the parties.
Garza testified that he was comfortable that Theresa was “willingly signing
the document” because it was his practice to tell affiants that if they were not
comfortable signing, he would not notarize the subject document.
Christian Hernandez—the Witness
Christian testified that he was married to Krystle and that Theresa was
Krystle’s grandmother. But, at the time the will was executed, he and Krystle were
not yet married; they did not marry until 2020. On October 19, 2017, Randall and
Theresa came by his house and told him that they needed his signature. He
recognized the Admitted Will as the document he saw. Christian did not see Theresa
sign the Admitted Will, but, when asked how he was sure she signed it, he responded,
“By her words.” “By her words, you know. They just said they needed my signature
and, you know, that they signed and they just needed my signature.” Christian
5
testified that he signed the document in his home; he was not at the notary’s office
and he did not sign either the Admitted Will’s attestation clause or the self-proving
affidavit in Garza’s presence. It was his recollection that when he signed, both his
and Randall’s typed names were already on the document and he did not know who
added the names. When Randall and Theresa asked him to sign, “[Christian] pretty
much signed it, scanned through it and signed it.” He identified his signature and
writing on the Admitted Will. He was sure that the Admitted Will was the document
that he signed.
Christian admitted that sometime later, he went to Garza’s office to see if the
affidavit that Garza had in his possession matched the affidavit attached to the
Admitted Will, but he denied asking Garza to alter any document.
Judith Brokaw—the Attorney
Brokaw was Theresa’s attorney and had worked on a debt-collection matter
with her before the events of this case. At some point, Theresa asked Brokaw to
prepare a will for her. The only thing that Brokaw remembered discussing with
Theresa about the will was Theresa’s desire to disinherit her husband, Julio
Madrigal. Brokaw’s billing records show that she charged Theresa $300 for the
preparation of a will. She did not recall the will, but she acknowledged that there
was documentation that her office sent out a draft of Theresa’s will for her review
and that the draft will “looks like something [she] would have prepared.” In the letter
6
accompanying the draft will, Brokaw told Theresa to call and schedule an
appointment to come by and execute the will. She advised bringing a friend as a
witness, warning Theresa that there would be a $150 charge if she did not.
` Brokaw did not remember ever having the will executed in her office or
meeting Randall or Christian or Garza, the notary. Brokaw testified that it was not
her standard practice to provide a notary or a witness for a will that she drafted.
Brokaw testified that she did have a typewriter, but she did not believe that her office
had typed in Christian’s and Randall’s names on the self-proving affidavit.
Regarding a description of her office, Brokaw testified that she had Chinese
sculptures and Asian art in her reception area, but she did not have a glass conference
room.
Brokaw testified that she would never draft a will based on instructions
received from family members or someone other than the testator because “a will is
a very personal thing.” She stated that if there were misspellings in a will, she would
have corrected them before the will was executed.
Randall Martinez—The Witness/Son
Randall testified that he was Theresa’s second son and that he lived down the
block from the Scharpe Street house where he grew up and where Cherye currently
resided. For a while he lived in Theresa’s garage apartment while he was raising his
children, including Krystle. He testified that Theresa loved all of her children “in her
7
own way.” Randall said that his mother was not “meek and mild” and she “did what
she wanted when she wanted.” He said that Theresa “helped with [Cherye’s]
children, gave her a lot of money, paid her bills when she couldn’t pay them, dealt
with her boyfriends, let them move in. . . . all the time she was supporting them.”
On October 19, 2017, Theresa called him and asked him to drive her to a
lawyer’s office. Randall then drove Theresa to Brokaw’s office, where he and
Theresa signed the Admitted Will. Only three people were present at the time—
Randall, Theresa, and Brokaw. Brokaw did not have a notary in her office. Christian
was not at Brokaw’s office and did not sign the will then. Randall testified that he
remembered that Brokaw’s office had cherry wood Asian sculptures in the shape of
dragons. He thought he remembered a glass conference room, but he might have
been mistaken.
From Brokaw’s office, Randall and Theresa drove to a notary’s place of
business. He and Theresa gave Garza, the notary, their driver’s licenses, and both
signed the self-proving affidavit, having already signed the will at Brokaw’s office.
At some point, Garza mentioned that Theresa needed a second witness. Randall and
Theresa asked whether they should go get someone, but Garza said that they should
pick whom they wanted and that he would put that person’s name on the affidavit.
Then, they could have Christian sign it and send the copy back to Garza. The
document was never mailed to Garza after Christian later signed it. Randall did not
8
see his and Christian’s names being typed on the self-proving affidavit. He did not
have a typewriter, but he noticed that Garza had a typewriter.
From Garza’s place of business, Randall and Theresa drove to Christian’s
house and asked him to sign the will and self-proving affidavit, which Christian did
in both his and Theresa’s presence.
Randall also testified about a Holographic Will dated October 14, 2017—five
days before the Admitted Will was signed. This will also left everything to Krystle
and disinherited Theresa’s husband, Julio. Randall testified that he had discussed his
mother’s will with her before this date and that she had told him, “Randall, what am
I going to do about my will? I can’t leave anything to Julio. I don’t like him. All my
kids . . . are pieces of . . . and they’ve all disappointed me. They don’t deserve
anything. I want to give it all to charity. . . . [a]ll y’all have done is disappoint[] me.
Cherye takes my money, Andy takes my money . . . Randall, you’re the only one
that didn’t cause me any problems.” Randall said that he encouraged Theresa to give
all her money to St. Jude’s. According to Randall, “[T]heresa never intended for her
children to have it because we’d all disappointed her, and some of them have taken
advantage of her for years and years and years.”
Randall testified that, once the Admitted Will was probated, Krystle was
going to sign over the Scharpe Street house to Cherye, where Cherye was currently
living. Krystle was also going to give Cherye a car and some money because “[t]hat
9
was [Theresa’s] wishes” in consideration for Cherye having taken care of Theresa
for the last few months of her life.
After the Admitted Will was signed and notarized, it was placed in an
envelope and left with Krystle.
Randall testified that he was artistically talented, and several of his drawings
were admitted into evidence. He denied being able to forge signatures.
Krystle Hernandez—the Granddaughter/Beneficiary
Krystle testified about a 2017 Holographic Will that Theresa drafted and
signed at her house just five days before she executed the Admitted Will. Theresa
wrote the 2017 Holographic Will in one of Krystle’s school notebooks and left it
with Krystle. Prior to the drafting of the 2017 Holographic Will, Brokaw, at
Theresa’s request, send a draft of a will to Krystle’s home. The draft will, the 2017
Holographic Will, and the Admitted Will all left Theresa’s estate to Krystle. Theresa
did not want any of the will documents in her home because she was afraid her
husband would find out that she was disinheriting him.
Several months before either the 2017 Holographic Will or the Admitted Will
were signed, Krystle had begun helping Theresa draft a will and she wrote in her
notebook, “I, Theresa Altice, wish for Krystle . . . .” Krystle testified that she stopped
because she “just felt it was inappropriate for me to write that for her; and I didn’t
even know if that would be legally valid either. So I didn’t finish it.” Krystle said
10
that she “thought that was something that [Theresa] needed to do in [her] own
handwriting . . . [i]t was going to be her will.” Two months later, in fact, Theresa
employed Brokaw to draft a will for her.
Regarding her grandmother’s personality, Krystle testified that Theresa “was
very strong-willed.” “She was feisty, fierce, very determined, just did what she
wanted when she wanted.” “Nobody could tell her anything.” “She was just very
strong-willed.” Krystle grew up in the garage apartment behind Theresa’s house and
they had a “great relationship.” Theresa was like a mother to Krystle, who did not
have a relationship with her own mother. After Krystle moved out to go to college,
she only saw Theresa “every now and then.”
When asked about the fact that Theresa signed her middle name as “Meschell”
on the Admitted Will and “Mechell” on the self-proving affidavit, she speculated
that Theresa signed the Admitted Will so that it matched what way it had been typed
on the both documents, which was apparently a misspelling. She pointed out that her
own name was spelled two different ways in the Admitted Will.
Cherye Altice—the Daughter/Contestant
When asked to describe her mother, Cherye said Theresa was “funny and
strong-willed.” Theresa was 81 when she died; she had been married four times.
Cherye said that Theresa’s relationship with her kids had “ups and downs, but . . .
she loved us all.” Cherye said that she lived with Theresa “off and on my whole
11
life.” In 2017—the time during which the Admitted Will was created—Theresa
spent lots of time with Cherye’s family. “She was always there.” Theresa was also
close to her other grandchildren. She was not dependent on Krystle or Randall for
anything. Cherye had “no knowledge of any time that Randall ha[d] ever influenced
[Theresa] to do something she did not otherwise want to do.”
Cherye testified that she also had a good relationship with Krystle while she
was growing up. She said that she did not file the will contest because of any “ill
feeling towards Krystle.”
Cherye said that she had discussed will planning with her mother, and that she
had given Theresa a Powerpoint packet that she had gotten at work so that Theresa
would be knowledgeable. She did not tell Theresa what she should do regarding her
will.
At some point, Cherye had a discussion with Theresa that led Cherye to
confront Randall about Theresa’s estate planning. Cherye felt that something was
bothering her mother and that “[t]here was a document out there that she didn’t agree
to.” Cherye understood that Krystle had the only copy of the document that she
believed that Theresa was upset about.
During the pendency of the will contest, Cherye was asked to gather
documents that exemplified Theresa’s handwriting. In November 2020, she found
a handwritten will dated March 5, 1998. In this 1998 Holographic Will, Theresa
12
stated that she wished to “leave all my world[ly] possessions to my children Andy
Martinez, Randall Martinez, James Martinez and Cherye Altice.” The same
document disinherited Bob Adams, her husband at that time. Cherye testified that
she recognized the handwriting on the 1998 Holographic Will as her mother’s.
Cherye believed that until Theresa’s death, “it remain[ed] her mother’s wishes that
her children inherit from her.” Cherye also acknowledged that the 1998 Holographic
Will was written before Theresa inherited the estate of her employer, which included
a home in River Oaks.
Cherye was Theresa’s caregiver during the last months of her life, and Theresa
moved back into the Scharpe Street home with her.
Cherye could think of no reason why Krystle “would receive something [from
Theresa] to the exclusion of [her other children and grandchildren].” She also did
not believe that the signature on page 4 of the Admitted Will was Theresa’s. She
pointed out that Theresa’s middle name was misspelled on the signature to the will
and the last name “looks different.”
In addition to believing that Theresa’s signature was a forgery, she testified
that Theresa would not have left everything to Krystle absent “an instance of undue
influence.” However, Cherye conceded that her mother did not lack the mental
capacity to make a will and that Theresa was of sound mind in 2017. Cherye did not
know what Theresa told Brokaw about what she wanted in her will. Cherye also
13
testified that her mother liked to pay her bills in person. When presented with a check
to Brokaw dated October 19, 2017, Cherye admitted that it was “more than likely”
that Theresa went to Brokaw’s office on that date, which is the same date that
Randall said that they signed the Admitted Will there.
Cherye testified that she did not believe that Randall and Theresa ever took
the Admitted Will to the notary. She contended “[t]hat what was taken to the notary
was just some piece of paper, that it wasn’t even a real will” and that “the notary
allowed [Randall] to sign for Christian.”
Finally, Theresa affirmed that she “proceeded in this contest with good faith
and just cause.”
Susan Abbey—the handwriting expert
Krystle called just one witness at trial, Susan Abbey, a forensic document
examiner. Abbey testified that, after comparing many handwriting exemplars from
Theresa, it was her expert opinion that both the 2017 Holographic Will and the 2017
Admitted Will were signed by Theresa.3
The Jury Verdict and Judgment
After a jury trial, the jury found against Cherye on (1) the issue of undue
influence and (2) the invalidity of the will. The jury also found that Cherye did not
3
Cherye did not discover the 1998 Holographic Will until shortly before trial, and
Abbey was never asked to opine about the authenticity of Theresa’s signature on
that document.
14
act in good faith and with just cause in prosecuting the 1998 Holographic Will, but
that Krystle did act in good faith and with just cause in defending the Admitted Will.
Accordingly, the trial court entered a Final Judgment, which ordered that (1)
“The October 19, 2017 Will of Theresa Altice, previously admitted to probate,
remains admitted to probate,” and that (2) “Krystle Hernandez (nee Martinez)
remains the Independent Executor of the Estate of Theresa Altice, and is entitled to
administer and distribute the Estate in conformance with the October 19, 2017 Will.”
This appeal followed.
SUFFIENCY OF THE EVIDENCE
In issues one and two, Cherye contends that (1) the evidence is legally and
factually insufficient to support the jury’s answer to jury question number two, in
which it found that the October 19, 2017 Admitted Will met the statutory
requirements for a valid will, because, among other reasons asserted by Cherye, (2)
the self-proving affidavit attached to the will was defective. In issue three, Cherye
contents that the evidence is factually insufficient evidence to support the jury’s
rejection of her undue-influence claim in jury question number one. Finally, in issue
four, Cherye contends that the evidence is legally and factually insufficient to
support the jury’s finding in jury question number five that she did not proffer the
March 5, 1998 Holographic Will in good faith.
15
Jury Question 2—Validity of the October 19, 2017 Admitted Will
Question 2 of the Jury Charge asked: “Does the document dated October 19,
2017 (Exhibit C-4) fail to meet any one or more of the following requirements?”
1. The document was signed by Theresa Altice in person; or
2. The document was attested by two or more credible persons who
were at least fourteen years of age and who signed their names to the
document in their own handwriting in the decedent’s presence; or
3. Theresa Altice signed the document with the intent to dispose of her
property after her death.
Thereafter, the question instructed the jury that “[a] self-proving affidavit is
not part of a will. A self-proving affidavit is a separate document, the sole purpose
of which is evidentiary.”
Finally, Question 2 instructed the jury about forgery, as follows:
“Forgery” means to alter, make, complete, execute, or authenticate any
writing so that it purports:
(i) to be the act of another who did not authorize that act;
(ii) to have been executed at a time or place or in a numbered
sequence other than was in fact the case;
(iii) to be a copy of an original when no such original existed.
The jury answered Question 2: “No.”
In her first and second issues, Cherye contends that the evidence is legally and
factually insufficient to support the jury’s negative answer to Question 2 of the Jury
Charge; a question on which Cherye had the burden of proof. See Williams, 568
16
S.W.2d at 132 (holding that, after will admitted to probate, contestant bears burden
to show invalidity).
Standard of Review
When, as here, a party challenges both the legal and factual sufficiency of the
evidence, appellate courts should decide the legal sufficiency issues first. Glover v.
Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (citing Robert W.
Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L.
REV. 361, 369 (1960)); see TEX. R. APP. P. 43.3; Bradleys’ Elec., Inc. v. Cigna
Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (concluding that appellate courts
must first address points that afford greatest relief, that Rule 43.3 “incorporates this
principle,” and that court “erred by not deciding the rendition issue before the
remand issue”).
To analyze a legal sufficiency challenge, we must determine whether the
evidence presented would enable reasonable and fair-minded people to make the
finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
We review the evidence in the light most favorable to the finding, crediting any
favorable evidence if a reasonable factfinder could and disregarding any contrary
evidence unless a reasonable factfinder could not. Id. at 821–22, 827. If conflicting
evidence can be resolved either way, we must presume the factfinder did so in favor
of the prevailing party and disregard the conflicting evidence. Id. at 821. When an
17
appellant attacks the legal sufficiency of an adverse finding on an issue for which
the appellant bore the burden of proof, the appellant “must demonstrate on appeal
that the evidence establishes, as a matter of law, all vital facts in support of the
issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
When reviewing a factual sufficiency challenge, we “must consider and weigh
all of the evidence,” not just the evidence that supports the trial court’s
finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998); see also
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must review the evidence in a
neutral light. Woods v. Kenner, 501 S.W.3d 185, 196 (Tex. App.—Houston [1st
Dist.] 2016, no pet.). When a party attacks the factual sufficiency of an adverse
finding on an issue for which it had the burden of proof, it must demonstrate on
appeal “that the adverse finding is against the great weight and preponderance of the
evidence.” Dow Chem. Co., 46 S.W.3d at 242 (citing Croucher v. Croucher, 660
S.W.2d 55, 58 (Tex. 1983)).
Under either standard, the trial court is the sole judge of the credibility of
witnesses and the weight to be given their testimony. See Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); In re Estate of Scott, 601 S.W.3d
77, 88 (Tex. App.—El Paso 2020, no pet.).
18
Applicable Law
With exceptions not applicable here, a valid will must be (1) in writing, (2)
signed by the testator in person or by another person on behalf of the testator in the
testator’s presence and under the testator’s direction, and (3) attested to by two or
more credible witnesses who are at least 14 years of age and who subscribe their
names to the will in their own handwriting in the testator’s presence. TEX. EST. CODE
§ 251.051.
Analysis
It is undisputed that the Admitted Will was in writing, thus the first element
for a valid will is both uncontested and met.
Regarding the second element—Theresa’s signing of the will—Randall
testified that he and his mother, Theresa, signed the will in Brokaw’s office and that
he saw Theresa sign the will. According to Randall “[they] were standing side by
side” when Theresa signed the Admitted Will. Christian testified that he did not
actually see Theresa sign the Admitted Will, but that Randall and Theresa came to
his house, presented it to him, and asked him to sign. When asked how he “was sure
that [Theresa] actually signed this document,” Christian responded, “By her words.”
When asked what Theresa said to him regarding her signature on the Admitted Will,
Christian said “that [Randall and Theresa] signed, they just needed my signature.”
See Brown v. Traylor, 210 S.W.3d 648, 661 (Tex. App.—Houston [1st Dist.] 2006,
19
no pet.) (“The witness[] need not see the testator sign the will, as long as [he] can
attest, from direct or circumstantial facts, that the testator in fact executed the
document [he] is signing.”). Thus, Randall’s and Christian’s testimony is legally
sufficient to show that Theresa signed the Admitted Will.4
Nevertheless, Cherye argues that this evidence is factually insufficient
because (1) Theresa did not initial the document on each page and (2) it was not
signed in both Randall’s and Christian’s presence. Cherye points out that the
Admitted Will itself states that “the [will] was signed [in Randall’s and Christian’s
presence] by Theresa Meschell Altice and declared by her to be her last will.” She
also points out that the will states that “I, Theresa Meschell Altice hereby sign my
name to this, my last Will, on each page of which I have placed my initials, on this
19th day of October, 2017, at Houston, Texas. These contradictions between
recitations in the Admitted Will and Randall’s testimony about the signing of the
Admitted Will, Cherye contends, renders the evidence regarding Theresa’s signing
of the Admitted Will factually insufficient. We disagree.
First, there is no requirement that a will be initialed on each page. Indeed, this
Court has held that evidence that a will that was only initialed on each page but was
not signed by the testator, either at the end of the will or on the self-proving affidavit,
4
Though she argued at trial the Theresa’s signature on the Admitted Will was a
forgery, Cherye does not make that argument on appeal.
20
was sufficient. See Jones v. Jones, No. 01-20-00073-CV, 2022 WL 904444 (Tex.
App.—Houston [1st Dist.] Mar. 29, 2022, no pet.) (holding that testimony by
witnesses who saw testator sign will constituted legally and factually sufficient
evidence of testamentary intent, even though testator only initialed 6 of 7 pages of
will and did not sign at all). Here, the witnesses testified that Theresa signed the
Admitted Will, and the Admitted Will is, in fact, signed. That the document itself
refers to Theresa also initialing the Admitted Will, which she did not do, does not
render the remaining evidence insufficient, but was just one fact for the jury to
consider in determining whether Theresa signed the Admitted Will.
Second, as mentioned above, there is no requirement that the witnesses
actually see the testator sign the will; the requirement is that the testator see the
witnesses sign the document. See TEX. EST. CODE § 251.051(3) (requiring that
witnesses “subscribe their names to the will in their own handwriting in the testator’s
presence”); see also Brown, 210 S.W.3d at 661 (“The witness[] need not see the
testator sign the will, as long as [he] can attest, from direct or circumstantial facts,
that the testator in fact executed the document [he] is signing”). Here, there was
both direct and circumstantial facts from which Christian, as well as Randall, could
have concluded that Theresa signed the Admitted Will. Teresa, “by her words,” told
Christian that she had signed the Admitted Will and she needed him to sign too.
Christian testified that he “scanned through it” and signed it, as Theresa had
21
requested. That the document itself states that Theresa signed it in the presence of
both witnesses, which both Randall and Christian admit that she did not do, does not
alone render the remaining evidence insufficient, but was just one fact for the jury
to consider in determining whether Theresa properly signed the Admitted Will.
Regarding the third element—attestation to the Admitted Will by Randall and
Christian, both Randall and Christian testified that they signed the Admitted Will in
front of Theresa, thereby rendering the evidence legally sufficient. See TEX. EST.
CODE § 251.051(3) (requiring that witnesses “subscribe their names to the will in
their own handwriting in the testator’s presence”). Nevertheless, Cherye contends
that the evidence is factually insufficient because Christian did not sign Admitted
Will or the self-proving affidavit at the same time that Randall and Teresa signed
those documents.
We have already noted that there was no requirement that Christian actually
see Theresa sign the Admitted Will or that he sign it contemporaneously. See Brown,
210 S.W.3d at 661 (“The witness[] need not see the testator sign the will, as long as
[he] can attest, from direct or circumstantial facts, that the testator in fact executed
the document [he] is signing”).
Regarding the self-proving affidavit, Krystle acknowledges that the self-
proving affidavit attached to the Admitted Will is defective because both parties
agree that Christian did not sign the self-proving affidavit before the notary, Garza.
22
See TEX. EST. CODE § 251.104(b) (“A self-proving affidavit must be made by the
testator and the attesting witnesses before an officer authorized to administer
oaths.”) (emphasis added)). However, it is not necessary that a will be self-proving;
a self-proving will merely allows a proponent of a will to admit it to probate without
calling any subscribing witnesses. See id. § 251.102(a)(1) (“A self-proved will may
be admitted to probate without the testimony of any subscribing witnesses if . . . the
testator and witnesses execute a self-proving affidavit.”). The jury was instructed
that a self-proving affidavit is not required and is evidentiary only. A defect in a self-
proving affidavit does not make a will invalid because the affidavit is not part of the
will; it just means that the will’s proper execution must be proved by other means.
See Michol O’Connor, O’CONNOR’S PROBATE LAW HANDBOOK, ch. 4-A, § 4 (2022–
2023 ed.). When an attested will is not self-proved, the will “may be proved by the
sworn testimony or affidavit of one or more of the subscribing witnesses to the will
taken in open court.” TEX. EST. CODE §256.153(b); see also Jones, 649 S.W.3d at
588.
Here, both Randall and Christian testified regarding their attestation to
Theresa’s will, therefore, any defects in the self-proving affidavit are irrelevant.
And, both Randall and Christian testified that they signed the Admitted Will in
Theresa’s presence, thus meeting the attestation requirement of section 251.051. See
23
TEX. EST. CODE § 251.051(3) (requiring that witnesses “subscribe their names to the
will in their own handwriting in the testator’s presence”).
Here, in her legal-sufficiency challenge, it was Cherye’s burden to show “all
vital facts” necessary to prove the invalidity of the Admitted Will. Dow Chem., 46
S.W.3d at 241. In her factual-sufficiency challenge, it was Cherye’s burden to show
that the jury’s failure to find that the will was invalid was against the great weight
and preponderance of the evidence. See id. at 242. For the reasons discussed above,
she has failed to show either.
Accordingly, we overrule issues one and two.
Jury Question 1—Undue Influence
Question 1 of the trial court’s charge asked: “Did Theresa Altice, (the
decedent in this case) sign the document dated October 19, 2017 (exhibit c-4) as a
result of undue influence?” The question provided the following instruction:
“[U]ndue influence” means:
1. an influence existed and was exerted, and
2. the influence undermined or overpowered the mind of the decedent
at the time she signed the document dated October 19, 2017 (Exhibit
C-4), and
3. the decedent would not have signed the document dated October 19,
2017 (Ex. C-4) but for the influence.
You may also consider the circumstances surrounding the execution of
the instrument; the relationship of the decedent and recipients of the
bounty; and the motive, character and conduct of the persons benefited.
24
The jury answered Question 1: “No.”
In issue three, Cherye contends that the evidence is factually insufficient to
support the jury’s negative answer to Question 1 of the Jury Charge; a question on
which she had the burden of proof. See Rothermel v. Duncan, 369 S.W.2d 917, 922
(Tex. 1963) (“The burden of proving undue influence is upon the party contesting
its execution.”).
Standard of Review
When reviewing the factual sufficiency of the evidence, we must examine the
entire record, considering both the evidence in favor of, and contrary to, the
challenged findings. See Ellis, 971 S.W.2d at 406–07; Cain, 709 S.W.2d at 176.
When a party attacks the factual sufficiency of an adverse finding on which it had
the burden of proof, it must demonstrate on appeal that the adverse finding is against
the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at
242. We are not a factfinder. Ellis, 971 S.W.2d at 407. Accordingly, we may not
pass upon the witnesses’ credibility or substitute our judgment for that of the jury,
even if the evidence would support a different result. Id.
Applicable Law
To show undue influence, a contestant must prove: (1) the existence and
exertion of an influence (2) that subverted or overpowered the testator’s mind when
she executed the will, (3) such that she executed a will that she would not have
25
otherwise executed but for the influence. Rothermel, 369 S.W.2d at 922. Not every
influence is an undue influence. Id. Indeed, “one may request or even importune and
entreat another to execute a favorable dispositive instrument; but unless the
importunities and entreaties are shown to be so excessive as to subvert the will of
the maker,” there is no undue influence. Id.
The presence of undue influence “is usually a subtle thing and by its very
nature usually involves an extended course of dealings and circumstances[,]” and it
may be proved by circumstantial evidence. Id. The circumstances relied on as
establishing undue influence must be of a reasonably satisfactory and convincing
character, and they must not be equally consistent with the absence of such influence.
In re Kam, 484 S.W.3d 642, 652 (Tex. App.—El Paso 2016, pet. denied).
We may consider ten non-exhaustive factors when determining whether
undue influence exists. See Rothermel, 369 S.W.2d at 923. The first five factors
concern whether the proponent exerted any influence over the testator, considering:
(1) the nature and type of relationship between the testator, contestant,
and proponent;
(2) the opportunities existing for the exertion of the type of influence or
deception possessed or employed;
(3) the circumstances surrounding the drafting and execution of the
will;
(4) the existence of a fraudulent motive;
26
(5) whether there has been habitual subjection of the testator to the
control of another.
Rothermel, 369 S.W.2d at 923; Kam, 484 S.W.3d at 652. The next four factors are
used to determine whether the testator’s will was subverted or overpowered by any
influence exerted by the proponent, considering:
(6) the state of the testator’s mind at the time he executed the will;
(7) the testator’s mental or physical incapacity to resist such influence
or the susceptibility of the testator’s mind to the type and extent of
influence exerted;
(8) the words and acts of the testator;
(9) the testator’s weakness of mind and body, whether a result of age,
disease, or otherwise.
Rothermel, 369 S.W.2d at 923; Kam, 484 S.W.3d at 652. Finally, the tenth factor is
relevant to determining whether the will would have been executed in the absence
of the influence exerted by the proponent, considering:
(10) whether the will executed is unnatural in its disposition of the
testator’s property.
Rothermel, 369 S.W.2d at 923; Kam, 484 S.W.3d at 652.
Analysis
We begin by considering the first five Rothermel factors, which address
whether there is factually sufficient evidence to show that an influence existed and
was exerted against Theresa.
27
1. The nature and type of relationship between the testator, contestant,
and proponent
Under this factor, Cherye points out that she had a much closer relationship
with Theresa than Krystle had. Specifically, Cherye recounts Krystle’s testimony, in
which she claimed that “at one time she and [Theresa] were close; but after Krystle
turned 20 and moved out of [Theresa’s] apartment, she only saw [Theresa] one to
two times per month.” In contrast, Cherye argues that she and Theresa “saw or spoke
to each other every day for the past 25 years; that [she] had moved in with [Theresa]
to help take care of her when her health began failing; that [she] did everything for
[Theresa] wrote her checks, drove her around to pay her bills, took her to her doctor’s
appointment.”
However, this evidence does not show that Krystle (or Randall) had any
influence over Theresa. Instead, it shows that, if anyone had opportunity to exert
influence over Theresa, it was Cherye, not Krystle. Thus, this factor weighs against
finding that Krystle had influence over Theresa.
2. The opportunities existing for the exertion of the type of deception
possessed or employed
Under this factor, Cherye argues that Krystle had opportunities to deceive
Theresa because (1) Krystle grew up in Theresa’s garage apartment “at least half her
life,” (2) Krystle had in her possession a holographic will dated October 14, 2017—
five days before the Admitted Will was executed, (3) the lawyer sent drafts of the
28
Admitted Will to Krystle’s home, (4) there is insufficient evidence that Christian
signed the Admitted Will in Theresa’s presence, and (5) Krystle and Randall “had
ample opportunity to make changes to the draft will and present them to [Theresa]
as coming from her attorney, Brokaw.
All this evidence was countered by other evidence presented at trial.
Specifically, (1) Cherye agrees that Krystle had little contact with Theresa after she
moved out of the garage apartment; (2) Krystle explained that Theresa came to her
house and signed the 2017 Holographic Will because she had not yet executed the
Admitted Will; she asked Krystle to keep it at her house because she did not trust
her husband, Julio; (3) Krystle testified that she never gave Brokaw her address, and
that Brokaw sent the Admitted Will to Krystle’s house because that is where Theresa
told her to send it; (4) both Christian and Randall testified that Christian signed the
Admitted Will in Theresa’s presence; and (5) the jury was not presented with any
evidence regarding changes between the Admitted Will and any earlier drafts.
3. The circumstances surrounding the drafting and execution of the will
Much of Cherye’s undue-influence claim is based on the circumstances
surrounding the drafting and execution of the Admitted Will. Specifically, Cherye
argues that there are many unanswered questions surrounding the Admitted Will’s
drafting and execution, including: “Why was it not sent to [Theresa] at her own
home?” “Why did [Theresa] not execute [the Admitted Will] when she allegedly
29
went to Brokaw’s office? “Why instead did [Randall] take her to [the notary’s] office
to have her signature notarized by a stranger who would not question [Theresa]?”
Why did Christian not appear before the notary? Why was Theresa’s middle name
misspelled on the Admitted Will? Why did Krystle begin drafting a Holographic
Will on January 22, 2017, and why was it never completed?
Many of these issues were, in fact, explored before the jury. Krystle testified
that Brokaw sent the draft will to Krystle’s home because Theresa gave her Krystle’s
address. Krystle testified that Theresa did not want her will at her home because she
did not want her husband to see it. Although Brokaw did not recall Theresa and
Randall signing the Admitted Will in her office, Randall testified that both he and
Theresa signed it there, but then left to find a notary and second witness because
Brokaw did not have one available at her office. Randall testified that Christian did
not go with him and Theresa to the notary because they did not know that he needed
to. He also testified that the notary told them to take it and have Christian sign it and
then send it back to him. There was evidence that Theresa never signed her middle
(maiden) name, and none of the handwriting exemplars show how she signs her
middle name, though the parties seem to agree that the correct spelling would have
been “Meshell,” not “Meschell.” Whether she signed an incorrect spelling on the
Admitted Will so that it would match the document as drafted was considered by the
jury. But, the handwriting expert agreed that both the signature on the Admitted
30
Will, which was “Meschell,” and the signature on the self-proving affidavit, which
was “Meshell,” were both written by Theresa. Regarding the one-line attempt at a
holographic will, Krystle testified that she began writing a will at Theresa’s request,
but that she stopped when she decided that this was something that Theresa needed
to do herself. And, in fact, Theresa thereafter engaged Brokaw to draft a will.
4. The existence of a fraudulent motive
Under this factor, in addition to the circumstances of the execution discussed
above, Cherye asserts that Krystle’s fraudulent motive was to obtain Theresa’s
entire, substantially sized estate, to the exclusion of Theresa’s children and other
grandchildren. However, the fact that Theresa excluded most of her family members,
including her children and other grandchildren, “is not in and of itself evidence of
undue influence.” See Kam, 484 S.W.3d at 653 (quoting In re Estate of Sidransky,
420 S.W.3d 90, 99 (Tex. App.—El Paso 2012, pet. denied)); see also Rothermel,
369 S.W.2d at 923–24 (noting that situation in which testator prefers one close
relative over another “is frequently present in cases involving the issue
of undue influence, and it is only where all reasonable explanation in affection for
the devise is lacking that the trier of facts may take this circumstance as a badge of
disorder or lapsed mentality or of its subjugation”).
31
5. Whether there had been a habitual subjugation of the testator to the
control of another
Cherye concedes that “[t]here was no evidence from either party on this
factor.”
In sum, considering the five factors relating to whether Krystle (or Randall)
exerted any influence over Theresa, the jury’s finding that no such influence existed
is not against the great weight and preponderance of the evidence. See Dow Chem.
Co., 46 S.W.3d at 242. Having decided that there was factually sufficient evidence
to support the jury’s negative finding on the existence of an influence against
Theresa, we need not address the remaining Rothermel factors regarding whether
such influence subverted or overpowered Theresa’s will or whether the Admitted
Will, as executed, is unnatural in its disposition of Theresa’s property.5
We overrule issue three.
5
Even if we were to consider the remaining Rothermel factors, our decision would
remain unchanged. Randall testified that “[Theresa] did what she wanted when she
wanted.” “No one controlled her.” Krystle testified that Theresa “was feisty, fierce,
very determined, just did what she wanted when she wanted.” Cherye testified that
Theresa “was funny and strong-willed.” There was also evidence that Theresa had
previously threatened to disown her children and leave her entire estate to charity.
The notary testified that he was “comfortable that [Theresa] was willingly signing
the document.” The attorney testified that the wills she drafted were always prepared
according to the testator’s wishes because “a will is a very personal thing.” Although
Cherye’s brief suggests that Theresa may have been “paranoid” at the time she wrote
her will, the only evidence about her mental condition was that she was afraid of
her husband, a convicted sex-offender. No evidence suggested any mental weakness
on Theresa’s part. And, we have already stated that Theresa’s desire to exclude her
children from her will is not in and of itself evidence of undue influence. See Kam,
484 S.W.3d at 653.
32
Jury Question 5—Cherye’s Bad Faith
Question 5 of the trial court’s charge asked: “Did Cherye Altice act in good
faith and with just cause, whether or not successful, in prosecuting the holographic
(handwritten) will dated March 5, 1998 (Exhibit C-19) with the intention of
admitting it to probate?” The question provided the following instructions:
“[G]ood faith” means an action that is prompted by honesty of intention
or a reasonable belief that the action was probably cored.
“With just cause” means that the actions were based on reasonable
grounds and there was a fair and honest cause or reason for the actions.
The jury answered Question 5: “No.”
In issue four, Cherye contends the evidence is legally insufficient to support
the jury’s negative answer to Question 5 of the Jury Charge; a question on which she
had the burden of proof. See TEX. EST. CODE § 352.052(b) (providing that will
proponent may seek reasonable attorney’s fees from estate for proceeding brought
in “good faith and with just cause whether or not successful”); see also Estate of
Lynch, 350 S.W.3d 130, 140–41 (Tex. App.—San Antonio 2011, pet. denied)
(finding sufficient evidence to support jury’s rejection of will proponent’s asserted
good faith).
Standard of Review
To analyze a legal-sufficiency challenge, we must determine whether the
evidence presented would enable reasonable and fair-minded people to make the
33
finding under review. City of Keller, 168 S.W.3d at 827. We review the evidence in
the light most favorable to the finding, crediting any favorable evidence if a
reasonable factfinder could and disregarding any contrary evidence unless a
reasonable factfinder could not. Id. at 821–22, 827. If conflicting evidence can be
resolved either way, we must presume the factfinder did so in favor of the prevailing
party and disregard the conflicting evidence. Id. at 821. When an appellant attacks
the legal sufficiency of an adverse finding on an issue for which the appellant bore
the burden of proof, the appellant “must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem.
Co., 46 S.W.3d at 241. The trial court is the sole judge of the credibility of witnesses
and the weight to be given their testimony. See Golden Eagle Archery, 116 S.W.3d
at 761; Scott, 601 S.W.3d at 88.
Applicable Law
Section 352.052 of the Estates Codes sets forth the law regarding attorney’s
fees in will contests:
(a) A person designated as executor in a will or an alleged will, or as
administrator with the will or alleged will annexed, who, for the
purpose of having the will or alleged will admitted to probate, defends
the will or alleged will or prosecutes any proceeding in good faith and
with just cause, whether or not successful, shall be allowed out of the
estate the executor’s or administrator’s necessary expenses and
disbursements in those proceedings, including reasonable attorney’s
fees.
34
(b) A person designated as a devisee in or beneficiary of a will or an
alleged will who, for the purpose of having the will or alleged will
admitted to probate, defends the will or alleged will or prosecutes any
proceeding in good faith and with just cause, whether or not successful,
may be allowed out of the estate the person’s necessary expenses and
disbursements in those proceedings, including reasonable attorney’s
fees.
TEX. EST. CODE § 352.052(a)-(b). In sum, the trial court shall award attorney’s fees
to executors, and may award attorney’s fees to devisees or beneficiaries, attempting
to admit as will to probate or to defend a will. See id. However, a party who seeks
only to contest a will may not obtain statutory reimbursement for attorney’s fees.
See Zapalac v. Cain, 39 S.W.3d 414, 419 (Tex. App.—Houston [1st Dist.] 2001, no
pet.) (interpreting previous version of section 352.052(b)).
Whether a will proponent acts in good faith and with just cause in prosecuting
or defending a will is a question of fact, to be determined by the jury upon a
consideration of all the circumstances of a case. See Huff v. Huff, 132 Tex. 540, 124
S.W.2d 327, 330 (1939); see also Russell v. Moeling, 526 S.W.2d 533, 536 (Tex.
1975) (recognizing that question of whether will proponent acted in good faith and
with just cause is question for jury that should be determined in original probate
proceeding); Kam, 484 S.W.3d at 654 (recognizing that good faith is question of fact
and that appellate court should uphold jury finding unless evidence conclusively
establishes party’s good faith).
35
Analysis
Very little evidence was presented at trial about the 1998 Holographic Will.
Cherye testified that she found this will long after the current will contest was filed
when she was looking for exemplars of Theresa’s handwriting, and she believed that,
because the 1998 Holographic Will left everything to her children, it was her belief
that this remained Theresa’s intent until the day she died. Cherye also testified that
she sought to admit the 1998 Holographic Will to probate in good faith. She contends
that, because there is no direct evidence rebutting her testimony, the evidence is
legally insufficient to support the jury’s rejection of her professed good faith.
However, the jury heard other evidence which might have led to its conclusion
that Cherye did not act in good faith in proffering the 1998 Holographic Will. The
jury heard that Theresa was disappointed in her children and felt that she had to
support them during their lives (except for Randall) and that she had, in fact,
discussed leaving her estate to charity at one time. The jury could have concluded
that Cherye’s loss of her mother’s financial support motivated her to assert the
continued validity of the 1998 Holographic Will. See Estate of Longron, 211 S.W.3d
434, 442 (Tex. App.—Beaumont 2006, pet. denied) (noting jury could disregard will
proponent’s claimed good faith and “reasonably conclude[] that [proponent’s]
pecuniary interests motivated him to attempt to probate the Will”). There were also
significant factual circumstances that, the jury could have concluded, should have
36
led Cherye to question whether the 1998 Holographic Will continued to express
Theresa’s desires regarding the disposition of her estate. For example, the 1998
Holographic Will expressly disinherited a husband to whom Theresa was no longer
married at the time of her death. And, sometime after the 1998 Holographic Will
was drafted, Theresa inherited a sizable estate from her employers, including a home
in River Oaks. The jury could have also considered the fact that Cherye knew that
her mother had twice drafted subsequent wills—the October 14, 2017 Holographic
Will then the October 19, 2017 Admitted Will—as evidence that Cherye knew that
her mother’s 20-year-old Holographic Will no longer expressed her testamentary
intent. Finally, because Cherye produced no evidence of forgery, which she asserted
at trial to attack the Admitted Will, the jury could have concluded that Cherye knew
that her mother had signed a subsequent will but sought to admit the 20-year-old
Holographic Will anyway.
Although the jury was free to believe that Cherye acted in good faith based on
her own testimony that she did so, it was also free to disbelieve the same testimony,
especially in light of the evidence that Cherye’s financial situation would benefit if
the 20-year-old Holographic Will were to be admitted to probate, Cherye had been
the beneficiary of her mother’s largesse during her lifetime and that would
discontinue if the Admitted Will were probated, Cherye knew that Theresa’s
personal and financial situation had changed significantly since the 1998
37
Holographic Will was drafted, and Cherye also knew that Theresa drafted at least
two wills after she drafted the 1998 Holographic Will.
Because the evidence does not conclusively establish Cherye’s good faith, see
Kam, 484 S.W.3d at 654, we overrule Cherye’s legal-sufficiency challenge to the
jury’s finding that she lacked good faith in attempting to probate the 1998
Holographic Will.
We overrule issue four.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
38 | 01-04-2023 | 11-14-2022 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.